Discrimination Cases

Edgar W. Dorman vs. Norton Company & others. No. 04-P-167. Worcester. November 16, 2004. - July 15, 2005. Present: Greenberg, Cowin, & Doerfer, JJ. Employment, Discrimination, Termination. Anti-Discrimination Law, Employment, Age, Termination of employment. Unlawful Interference. Contract, Interference with contractual relations. Public Policy. In a civil action alleging age discrimination in employment, in violation of G. L. c. 15 IB, § 4(1B), the judge properly granted summary judgment in favor of the defendant employer, where the plaintiff employee failed to offer admissible evidence either that at least one reason given by the employer for the plaintiff’s discharge was false, or that other facts demonstrated the existence of a discriminatory motive in the making of the discharge decision [6-10]; likewise, the absence of evidence of a discriminatory purpose on the part of individual defendants defeated the plaintiff’s claim for intentional interference with contract [10], and there was no evidence that the plaintiff’s discharge violated public policy [10-11], Civil action commenced in the Superior Court Department on September 7, 2000. The case was heard by Kenneth J. Fishman, J., on a motion for summary judgment. James R. Tewhey for the plaintiff. Renee E. Hackett for the defendants. Robert Clark and Alan Gustafson. Cowin, J. The plaintiff, Edgar W. Dorman, appeals from a judgment of dismissal of his complaint of age discrimination in employment, see G. L. c. 151B, § 4(1B), intentional interference with contractual relations, and employment termination in violation of public policy following the entry of summary judgment in favor of the defendants on each count. In a comprehensive opinion, a judge of the Superior Court applied the three-stage order of proof established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and adopted by the Supreme Judicial Court with respect to proceedings under G. L. c. 151B, see Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 134-136 (1976). Pursuant thereto, the judge assumed that the plaintiff had satisfied the first-stage obligation to present evidence sufficient to make out a prima facie case of discrimination; determined that the defendant employer, Norton Company (Norton or employer), had satisfied its second-stage burden of production by articulating and supporting a legitimate, nondiscriminatory reason for terminating the plaintiffs employment; and ultimately ruled, with respect to the third stage, that the plaintiff had not offered admissible evidence sufficient to" warrant a finding that at least one of the employer’s proffered reasons was untrue or that, on other grounds, the termination was motivated by a discriminatory intent. See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 446 (1995); Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 118 (2000); Lipchitz v. Raytheon Co., 434 Mass. 493, 501 (2001). The defendants prevailed on their motion for summary judgment with respect to the remaining counts as well. With regard to the plaintiff’s claim against the individual defendants for intentional interference with contractual relations, the judge determined that the plaintiff’s failure to demonstrate a discriminatory motive on the part of the employer or its agents precluded the possibility that the plaintiff could show the element of “improper motive or means” required to prevail in an intentional interference case. See Weber v. Community Teamwork, Inc., 434 Mass. 761, 781 (2001). Likewise, the judge ruled that the plaintiff’s contention that termination of his employment was motivated by his earlier report of employee theft of copper scrap, even if correct, did not rise to the level of a public policy concern that would limit the employer’s rights with respect to what was otherwise at-will employment. See Mello v. Stop & Shop Cos., 402 Mass. 555, 560-561 (1988). On appeal, the plaintiff argues in essence that he presented, in the summary judgment record, admissible evidence sufficient to support a finding that at least one of the employer’s proffered reasons was false, thereby making permissible (though not obligatory) an inference by the fact finder that the employer’s real motivation for the termination was discriminatory. See Lipchitz v. Raytheon Co., supra. It follows, the argument continues, that a fact finder would be warranted in finding that the employer’s agents (defendants Clark and Gustafson) acted with improper motive or by improper means when they brought about termination of the plaintiff’s employment. See Weber v. Community Teamwork, Inc., supra. Finally, the plaintiff contends, with respect to his violation of public policy claim, that his discharge violated a protectable social interest in the reporting of criminal activity. We conclude that the judge’s legal and factual analysis of each claim was sound, and we accordingly affirm. The underlying facts. The facts that appear from the summary judgment record to be genuinely undisputed are as follows. At the recommendation of the defendant Robert Clark, Norton’s chief engineer at its Worcester plant, the plaintiff was hired by Norton as a watch engineer in 1993. At that time, the plaintiff was fifty-two years old and Clark was forty-nine. As watch engineer, the plaintiff supervised a shift of employees and monitored the operation of plant equipment, including a turbine. The first event of any significance to the case took place in March, 1995, when the plaintiff and three other watch engineers wrote to Norton to complain that the watch engineers were not receiving a competitive salary. The letter generated a decision on the part of management to conduct a wage study, as a result of which the watch engineers’ hourly wages were increased. The plaintiff’s annual evaluations in June, 1996, and June, 1997, were largely positive. In 1996, he received eighty-seven points out of a possible 100, and Clark wrote that the plaintiff “had considerable experience” and was “a pleasure to work with.” In 1997, the plaintiff received eighty-nine points out of a possible 100, and Clark, acknowledging the plaintiff’s “varied experience and very good job skills,” stated that he “works well with others.” In mid-1997, the copper scrap incident took place. Prior thereto, Norton had permitted its employees to collect and sell scrap copper which accumulated at the company’s site. The practice generated complaints, and Clark informed the employees that the sales could not continue. Notwithstanding this directive, certain employees carried on the sales, and the plaintiff reported the matter to Clark. Clark investigated, learning that three employees (including his cousin) had continued the practice. He orally reprimanded the employees, and directed that the amount improperly collected (about $4,000) be donated to charity. No other action against them was taken as a result of the violation. In October, 1997, the plaintiff had an encounter with William Black, an employee assigned to the shift that the plaintiff supervised in his capacity as a watch engineer. Black apparently had concluded that the plaintiff was in some way responsible for vandalism to Black’s vehicle; Black threatened the plaintiff; and the plaintiff responded with profanity. After an investigation, it was determined that Black would receive a written warning for the threat, while the plaintiff would be given an oral warning for his profanity directed at a fellow employee. Although at the time of the incident there was consideration of a shift swap that would separate Black and the plaintiff, no swap was arranged and the relationship between the two men continued to deteriorate. Feeling threatened by Black, the plaintiff, in November, 1997, installed a motion detector outside of his office to warn him of anyone approaching. Clark caused the motion detector to be removed and, after consultation with Norton’s human resources manager and the defendant, Alan Gustafson, Norton’s director of facilities services, Clark issued a written warning to the plaintiff stating, “Unsatisfactory job performance by failing to maintain an effective work team and work environment. Disruption of the work environment and violations of safety rules. Unauthorized installation of motion detector.” The written warning also advised the plaintiff that any further disciplinary action would be cause for discharge. Later in November, 1997, a security officer reported that the plaintiff had been sleeping at his desk. While Clark told the plaintiff that such behavior would not be tolerated, no warning was issued and the incident was not referred to in the plaintiff’s evaluation (June, 1998). However, the plaintiff’s rating in that evaluation slipped considerably from what it had been in the preceding two years. In the section for “specific improvement needs,” Clark wrote, “Needs to improve his communication and cooperation with coworkers and supervision. Needs to continue to develop and [sic] effective work team and work environment.” On June 23, 1998, Thomas Donahue, a Norton engineer, reported both to Clark and to Norton’s safety office that the plaintiff appeared to be sleeping in his office while a turbine alarm was sounding. While the plaintiff denied that he was sleeping at the time, he admitted at his deposition that he heard the alarm sound and intentionally let it ring for an additional five or ten minutes (apparently to demonstrate to management the validity of his and others’ continuing insistence that the alarm was too loud). On the basis of the more recent sleeping incident, the prior written warning, the performance review of June, 1998, and a “failure to perform his duties,” Clark ordered the plaintiffs employment terminated effective June 29, 1998. At that time, both of the individual defendants and all of the on-site employees, with a single exception, were within the protected class, i.e., over forty years of age. See G. L. c. 151B, § 1(8); Knight v. Avon Prods., Inc., 438 Mass. 413, 420-421 (2003). Discussion. As indicated above, the judge assumed that the plaintiff had satisfied his burden on summary judgment to present evidence that would, if believed, establish a prima facie case. The defendants challenge this, asserting that the plaintiff did not demonstrate that he was performing his job in an acceptable manner. See Abramian v. President & Fellows of Harvard College, 432 Mass. at 116. Because the defendants prevail on other grounds, we need not decide the issue. We note, however, that “the plaintiff’s initial burden of establishing a prima facie case is not intended to be onerous.” Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 45 (2005), citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Whether the plaintiff performed at a satisfactory level was disputed, and the plaintiff offered at least some evidence that his performance was adequate. The judge’s assumption regarding the plaintiff’s satisfaction of his burden in the first stage was not unreasonable. That the defendants met their burden of producing and supporting nondiscriminatory reasons for discharging the plaintiff, see Sullivan v. Liberty Mut. Ins. Co., supra at 50, is not disputed. The outcome of the case turns, therefore, on the answer to the question whether the plaintiff has offered admissible evidence sufficient to avoid summary judgment that shows either that at least one reason given by the employer for the discharge was false, see Lipchitz v. Raytheon Co., 434 Mass. at 501, or that other facts demonstrate the existence of a discriminatory motive in the making of the discharge decision, see Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. at 446. The plaintiff did not attempt to develop so-called direct evidence of discrimination, such as suspect statements by management on the subject of age or statistical studies showing that protected class members were often treated differently from younger employees. Indeed, such demonstrations were unlikely given that virtually all of the employees at the operation of which the plaintiff was a part were over forty years of age, and that the plaintiff was first hired, then discharged, by a supervisor (Clark) who was himself the plaintiff’s junior by a mere three years. Thus, the plaintiff instead attempted to make his third-stage case by offering evidence of alleged different treatment between himself and other employees who were younger. This, he argues, would support a finding that one or more reasons for the plaintiff’s discharge were a pretext, therefore permitting a fact finder to draw the inference that the employer’s true purpose was discriminatory. See Lipchitz v. Raytheon Co., supra. The principle, i.e., that evidence that similarly situated employees were treated differently can establish that a proffered reason for an adverse job action was a pretext, is sound. See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 129 (1997). The problem for the plaintiff is that the evidence does not demonstrate that the defendants treated similarly situated employees differently, or otherwise singled out the plaintiff (or a class of which he was a member) for special, negative treatment. This being the case, the inference on which the plaintiff depends cannot reasonably be drawn. Examining the plaintiff’s factual assertions in chronological order, there is no evidence of a connection between the plaintiff’s participation in March, 1995, in the watch engineers’ effort to obtain a wage increase and his employment termination in June, 1998. The effort was ultimately successful; the plaintiff’s role generated no negative oral or written responses; there was no evidence that adverse action was taken against any of the other watch engineers; the plaintiff’s evaluations in 1996 and 1997 were favorable; and the passage of time between the wage request and the discharge (more than three years) strongly suggests that the events were unrelated. With respect to the plaintiff’s report in mid-1997 regarding the continued sale of copper scrap, in violation of Norton’s new policy, the defendants were entitled to evaluate the significance of the violation and to select a response they considered appropriate in the circumstances. See Smith College v. Massachusetts Commn. Against Discrimination, 376 Mass. 221, 229 (1978). Here, management concluded that an oral reprimand and contribution of the sale proceeds to charity were sufficient. There is no basis for assuming that these employees were treated any differently with respect to the level of discipline imposed than any other employees in the same situation would have been treated. Clearly there was no different treatment with respect to the plaintiff, given that he was not a violator and was not disciplined. Turning to the plaintiff’s episode with his subordinate, William Black, and its aftermath, the plaintiff again complains of a difference in treatment. We are unable to identify an inequitable difference. Management disciplined Black more severely for the threat (a written warning) than it disciplined the plaintiff for the use of profanity to a subordinate (an oral warning). That management did not accommodate the plaintiff’s request for a shift change, arguably difficult given that the plaintiff had supervisory functions, was not shown to be a product of anything other than an exercise of management’s right to deploy personnel in a manner it deems best for its own business purposes. Likewise, management’s response to the plaintiff’s unauthorized installation of the motion detector, including the written warning advising that further disciplinary action would be cause for discharge, has not been shown to be unreasonable per se or otherwise inconsistent with Norton’s disciplinary practices. The slippage in the plaintiff’s performance evaluation in June, 1998, and the emphasis on his need to improve his teamwork and supervisory skills were not arbitrary in light of the incident with Black and the motion detector installation. Given the events of the preceding eight months, particularly the written warning that further discipline could lead to discharge, the defendants’ termination of the plaintiff’s employment following the second report that he had been observed sleeping on the job was, at least facially, well within the scope of permissible action by an at-will employer, and the plaintiff has offered no evidence that would suggest that the treatment was either inequitable or unduly harsh in light of the employer’s normal practices. The plaintiff contests the truth of the engineer Donahue’s report of the plaintiff sleeping on the job that constituted the last link in a chain of events leading to his termination. He denies that he was sleeping (either then or on a prior occasion when a similar report was made) and argues with the accuracy of Clark’s effort to verify the report of a reading of the pressure gouge. It is unnecessary to resolve these questions. The plaintiff admitted that he intentionally delayed silencing the turbine alarm, an act of questionable judgment from an operational viewpoint that would by itself have been of legitimate concern to management. Furthermore, the plaintiff confuses the alleged falsity of Donahue’s accusation that he had been sleeping with the falsity, the plaintiff claims, of the reasons given by the employer for his discharge. It is the latter that is significant under Abramian v. President & Fellow of Harvard College, 432 Mass. at 117, and Lipchitz v. Raytheon Co. 434 Mass. at 501, and there is no evidence here that the defendants discharged the plaintiff on the basis of a report that they knew to be false. To the extent that the plaintiff argues that the above incidents, taken as a whole rather than viewed in isolation, demonstrate a disparity between the leniency with which other employees were treated and the harshness meted out to the plaintiff, the short answer is that the offenses were dissimilar, particularly when examined in the light of the plaintiff’s work history immediately preceding his discharge. In the absence of any evidence of different treatment of the plaintiff by the defendants, the plaintiff’s case that there was pretext, and therefore discriminatory motive, on the defendants’ part collapses completely. There is no direct evidence of discrimination. The only indirect evidence, i.e., that the employer’s proffered reasons for discharge were false in at least one respect, fails because the record contains nothing to support a finding that those reasons were in fact false. The plaintiff cannot avoid summary judgment merely by speculating that his treatment by the employer came about not because of the merits of his performance as the employer observed it, but rather because of impermissible consideration of his age. The third-stage burden of proof requires more than that. Accordingly, there being a failure of proof that age was in any way a motivating factor, summary judgment for the defendants on this count was correctly entered. We briefly address the plaintiff’s remaining claims. An action for intentional interference with contract requires that the plaintiff prove the existence of a contract; the intentional interference with the contract by one or more third parties; that such interference was improper in motive or means; and resulting harm to the plaintiff. See Weber v. Community Teamwork, Inc., 434 Mass. at 781. His case on the third element (improper motive or means) is dependent on his allegation of age discrimination. That allegation, if proved, could satisfy the requirement that the interference be motivated by “a spiteful, malignant purpose, unrelated to the legitimate corporate interest.” Id. at 782, quoting from Boothby v. Texon, Inc., 414 Mass. 468, 487 (1993). Here, the absence of evidence of discriminatory purpose on the part of the individual

School Committee of Norton vs. Massachusetts Commission Against Discrimination & another. No. 04-P-188. Bristol. March 4, 2005. July 12, 2005. Present: Lenk, Kafker, & Katzmann, JJ. Massachusetts Commission Against Discrimination. Administrative Law, Substantial evidence, Findings. Handicapped Persons. Anti-Discrimination Law, Handicap, Damages, Employment, Termination of employment, Attorney’s fees. Damages, Emotional distress, Under anti-discrimination law, Back pay, Attorney’s fees. In a civil action for employment discrimination based on handicap in violation of G. L. c. 151B, § 4(16), a Superior Court judge properly upheld the decision of the Massachusetts Commission Against Discrimination (MCAD) that a cafeteria worker who was terminated from her employment because of a permanent medical restriction precluding her from lifting in excess of twenty-five pounds, was a qualified handicapped person capable of performing the essential functions of her job with reasonable accommodation, and that her employer, a town school committee, discriminated against her by not engaging her in dialogue regarding accommodations, not adquately investigating reasonable accommodations, and failing to demonstrate that such accommodation would be burdensome [843-848]; further, the MCAD was within its discretion to award the employee emotional distress damages [848-849] and to decline to offset any unemployment benefits she received against her back pay award [849-850], In an employment discrimination action, the Massachusetts Commission Against Discrimination was well within its discretion in using the “lodestar method” to determine the employee’s attorney’s reasonable hourly billing rates for purposes of calculating an award of attorney’s fees, and in not reducing the lodestar, given that the attorney provided substantial, uncontested evidence of the market value of his services. [850-854] Civil action commenced in the Superior Court Department on March 20, 2003. A decision of the Massachusetts Commission Against Discrimination was affirmed with the exception of the award of attorney’s fees by Richard T. Moses, J., and a motion for judgment on the pleadings was heard by John P. Connor, Jr, J. Maureen A. Lee for the plaintiff. John F. Tocci for Mary-Ann Woodason. Steven Locke for Massachusetts Commission Against Discrimination. Mary-Ann Woodason. Kafker, J. The issues presented in this case are whether the Massachusetts Commission Against Discrimination (MCAD or commission) correctly determined that Mary-Ann Woodason, a cafeteria worker terminated from her employment by the school committee of Norton (school committee) because of a permanent medical restriction precluding her from lifting in excess of twenty-five pounds, was (1) a qualified handicapped person capable of performing the essential functions of her job with reasonable accommodation and if so, whether she was (2) entitled to emotional distress damages, lost pension benefits, a back pay award without an offset for unemployment compensation, and attorney’s fees. A Superior Court judge affirmed the decision of the MCAD with the exception of the award of attorney’s fees, which he concluded were limited as a matter of law to the billing rate the attorney charged at the commencement of the representation, before he joined a large Boston firm. We conclude that the MCAD did not abuse its discretion in awarding attorney’s fees based on the lodestar method, which calculates the fees using a reasonable market rate, and the judgment shall be so modified. We otherwise affirm the judgment of the Superior Court upholding the MCAD decision. 1. Background. The defendant, Mary-Ann Woodason, began working for the school committee as a cafeteria assistant on March 20, 1989. Woodason had served seven years at the L.G. Nourse Elementary School when, in the spring of 1997, she injured her back and underwent surgery to repair a ruptured disc. On August 19, 1997, she informed the cafeteria director, Irene Stanovich, of the operation and her inability to return to work until she had fully recuperated. They agreed that Woodason would use her accrued sick time until she was ready to return to work. After meeting with her doctor, Woodason called Stanovich on October 22, 1997, to report her progress and informed Stanovich that, due to her condition, she would not be able to lift objects weighing more than twenty-five pounds. Stanovich did not indicate at this time that the restriction would be a problem. On November 19, 1997, Woodason met with her doctor, who cleared her to return to work on December 1, 1997, with a medical restriction prohibiting her from lifting more than twenty-five pounds. Woodason relayed this information to Stanovich on the same day and requested an accommodation. During this conversation, Stanovich told Woodason that she could not return to work with the lifting restriction. Through her counsel’s letter dated January 12, 1998, Woodason requested that she be allowed to return to work with an accommodation, which she described as having another employee lift a thirty-one pound milk crate into a milk dispenser, a task that she said was required once a day. On January 28, 1998, the school committee informed Woodason by letter that her employment would be terminated on February 6, 1998 (when her sick leave expired), if she still were subject to the lifting restriction. The school committee wrote that in order to accommodate her lifting restriction, it would have to hire an additional cafeteria assistant, which would “impose an undue hardship to its business of operating the schools,” as Woodason’s duties as a cafeteria assistant “require her to consistently lift objects heavier than twenty-five pounds.” Woodason was still subject to the restriction on the assigned date, and the school committee subsequently terminated her employment. On February 20, 1998, Woodason filed a complaint against the school committee with the MCAD alleging that the school committee had discriminated against her because of her handicap in violation of G. L. c. 151B, § 4(16). She further alleged that Maurice Splaine, the superintendent of schools, and Stanovich aided and abetted the school committee’s discriminatory acts. An MCAD hearing officer held a public hearing over the course of three days in February, 2001, and issued her decision in favor of Woodason on January 31, 2002. First, the hearing officer found, based on undisputed testimony and medical records, that Woodason had a chronic back injury that resulted in a “permanent medical restriction prohibiting her from lifting more than twenty-five pounds. This was a permanent restriction applicable to every aspect of her life. As a result of this restriction, Complainant is unable to perform a number of routine tasks in her life. She is unable to do yard work and gardening or shovel snow. She can no longer lift and carry her grandchildren and cannot carry filled grocery bags. She and her husband moved from their home to a condominium because of her inability to continue performing many of these routine household tasks.” Second, the hearing officer concluded that Woodason was a “qualified handicapped person” under G. L. c. 151B, § 1(16), because she was “capable of performing the essential functions of her position with a reasonable accommodation on those occasions when an accommodation was necessary.” The hearing officer found that only a few of Woodason’s duties required her to lift more than twenty-five pounds, and Woodason could have been accommodated by breaking each of those tasks down into lighter tasks, making additional trips, using a wheeled cart, or relying on help from other employees. None of these accommodations, the hearing officer concluded, would have imposed an undue financial or administrative hardship on the cafeteria operations. Third, the hearing officer found that the school committee, Splaine, and Stanovich failed to engage in a dialogue with Woodason regarding possible accommodations and did not attempt to ascertain whether possible accommodations were an option. Fourth, the hearing officer ordered the school committee to pay Woodason emotional distress damages of $50,000, back pay for eighteen weeks totaling $4,595.40, and lost pension benefits of $28,970.32. Finally, the hearing officer instructed the school committee to conduct training sessions on the accommodation of disabled employees. The full commission of the MCAD affirmed the hearing officer’s decision and awarded Woodason attorney’s fees in the amount of $74,760.80. The school committee appealed the commission’s decision to the Superior Court pursuant to G. L. c. 151B, § 6, which provides for a review in accordance with the standards set out in G. L. c. 30A, § 14(7). The Superior Court judge affirmed the commission’s decision except with respect to the attorney’s fees. All parties appealed. 2. Discussion, a. Standard of review. Based on statutory law, “[w]e will affirm a decision and order of the MCAD unless the findings and conclusions are unsupported by substantial evidence or based on an error of law.” Salem v. Massachusetts Commn. Against Discrimination, 44 Mass. App. Ct. 627, 640-641 (1998). See G. L. c. 151B, § 6; G. L. c. 30A, § 14(7). “Substantial evidence is ‘such evidence as a reasonable mind might accept as adequate to support a conclusion,’ taking ‘into account whatever in the record detracts from its weight.’ ” Lycurgus v. Director of Div. of Employment Security, 391 Mass. 623, 627-628 (1984). See G. L. c. 30A, § 1(6). We also give deference to the MCAD’s findings where the evidence is conflicting, given the agency’s “experience, technical competence, and specialized knowledge . . ., as well as the discretionary authority conferred on it.” G. L. c. 30A, § 14(7). See Smith College v. Massachusetts Commn. Against Discrimination, 316 Mass. 221, 224 (1978); Ramsdell v. Western Mass. Bus Lines, Inc., supra at 676. However, “[a] court will overturn the commission’s findings only if the court concludes, as matter of law, that the commission’s reliance on evidence was unreasonable.” School Comm. of Brockton v. Massachusetts Commn. Against Discrimination, 423 Mass. 7, 15 (1996). b. Handicap discrimination. As provided by G. L. c. 151B, § 4(16), as inserted by St. 1983, c. 533, § 6, it is unlawful “[f]or any employer, personally or through an agent, to dismiss from employment . . . because of [her] handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer’s business.” We begin with the threshold question whether Woodason was a handicapped person. As defined by G. L. c. 151B, a “handicap” means “(a) a physical or mental impairment which substantially limits one or more major life activities of a person; (b) a record of having such impairment; or (c) being regarded as having such impairment.” G. L. c. 151B, § 1(17). See generally Dahill v. Police Dept. of Boston, 434 Mass. 233 (2001); Ocean Spray Cranberries, Inc. v. Massachusetts Commn. Against Discrimination, 441 Mass. 632 (2004); Dube v. Middlesex Corp., 59 Mass. App. Ct. 734 (2003). As further interpreted by the MCAD, the term “major life activities” includes “lifting.” MCAD Guidelines: Employment Discrimination on the Basis of Handicap Chapter 151B, § II.A.5 (1998) (MCAD Guidelines). See generally Dahill v. Police Dept. of Boston, supra at 239 (“guidelines represent the MCAD’s interpretation of G. L. c. 151B, and are entitled to substantial deference”). The guidelines provide no more specific guidance regarding the inability to lift as a handicap. They do state generally, however, that the “determination of whether an impairment substantially limits a major life activity depends on the nature and severity of the impairment, the duration or expected duration of the impairment, and the permanent or long-term impact of the impairment.” MCAD Guidelines § II.A.6. The Supreme Judicial Court has also emphasized that “[G. L.] c. 151B anticipates that determining whether a person is a ‘handicapped person’ will be an individualized inquiry. . . . [P]er se rules are to be avoided.” Ocean Spray Cranberries, Inc. v. Massachusetts Commn. Against Discrimination, supra at 637. The school committee initially stated in a joint certification memorandum submitted to the MCAD and dated October 17, 2000, that there was “no dispute that Mary Ann Woodason is a ‘handicapped person’ as that term is defined by M.G.L. c. 151B, § 4(16).” See generally Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 447 (2002) (issue of handicap apparently not contested where the medical restriction for an admitting assistant at a hospital prescribed “no repetitive lifting or intermittent lifting” above fifteen pounds, as well as no repetitive tasks such as keyboarding or writing). In the certification order dated November 10, 2000, the investigating commissioner referenced the joint certification memorandum, but nevertheless included the handicap issue for the public hearing following a conference with the parties. During the hearing, the school committee did not contest any of the evidence regarding Woodason’s handicapped status; rather, it sought to prove that the twenty-five pound lifting restriction meant that she could not perform the essential functions of the job or be reasonably accommodated. In its petition for full commission review, the school committee did not object to the finding that Woodason was handicapped. The issue was apparently raised for the first time only in the school committee’s “Supplemental Memorandum to Petition for Review.” The Superior Court judge ruled that the school committee was precluded from pursuing the handicap issue because it had not been raised in the MCAD hearings. The judge relied on the provision of G. L. c. 151B, § 6, as inserted by St. 1946, c. 368, § 4, that states “[n]o objection that has not been urged before the commission shall be considered by the court.” We conclude that the undisputed evidence on this essentially uncontested issue supports the commission’s findings that Woodason had a physician-imposed, permanent lifting restriction of twenty-five pounds arising out of chronic back problems, including a ruptured disk in her back. As lifting is specifically defined by the MCAD Guidelines as a major life activity, and it was substantially and permanently limited here, along with other important life activities, we conclude that there was sufficient evidence to support the MCAD’s conclusion that Woodason was a handicapped person as defined by G. L. c. 151B, § 1(17). We also conclude that the school committee submitted too little too late to the MCAD on the handicap issue to satisfy the requirements of G. L. c. 151B, § 6, which are prerequisites to raising the issue in Superior Court. We next consider whether Woodason was a “qualified handicapped person,” i.e., a “handicapped person who would be capable of performing the essential functions of a particular job with reasonable accommodation to [her] handicap.” G. L. c. 151B, § 1(16). “Essential functions” are “those functions which must necessarily be performed by an employee in order to accomplish the principal objectives of the job.” MCAD Guidelines § HB. However, a reasonable accommodation may include “modifying when and how an essential job function is performed.” Id. at § II.C.3. The school committee argues that some of the essential functions of a cafeteria assistant — lifting dish trays, cleaning serving stations, and filling a coffee um — required lifting of more than twenty-five pounds. The hearing officer credited testimony from Woodason and several of her former coworkers that she could perform all these functions with simple modifications, such as sharing chores with coworkers, using a cart to move some objects, and lightening the load in carrying other objects from one place to another. With these reasonable accommodations, she concluded, Woodason’s duties could be accomplished within the allotted time and without additional personnel or disruption of the cafeteria’s schedule. The school committee points out the conflicting testimony as to whether Woodason could perform the essential functions of her job on time with the practical modifications. It further argues that the hearing officer’s reliance on Woodason and her witnesses was unreasonable. Under the substantial evidence test, however, “Credibility is an issue for the commissioner and not for this court.” Ramsdell v. Western Mass. Bus Lines, Inc., 415 Mass. at 676. It was not unreasonable for the hearing officer to credit Woodason and her witnesses, particularly given inconclusive and inconsistent testimony from the school committee’s witnesses regarding the frequency with which Woodason performed certain tasks and her ability to work with the lifting restriction. We therefore conclude that the MCAD’s decision that Woodason was a qualified handicapped person finds substantial support in the evidence. Third, the school committee disputes the hearing officer’s findings that it discriminated against Woodason on the basis of handicap by (1) not engaging her in dialogue regarding accommodations, (2) not adequately investigating reasonable accommodations, and (3) failing to demonstrate that such accommodation would be burdensome. The school committee incorrectly asserts that it was not obligated to engage Woodason in dialogue regarding accommodations: “[I]t is the employee’s initial request for an accommodation which triggers the employer’s obligation to participate in the interactive process of determining one.” Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. at 457, quoting from Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th Cir.), cert. denied, 519 U.S. 1029 (1996). Ocean Spray Cranberries, Inc. v. Massachusetts Commn. Against Discrimination, 441 Mass. at 644. See MCAD Guidelines § II.C (“If a person with a handicap requests but cannot suggest an appropriate accommodation, the employer and the individual should work together to identify one”). Not only was there substantial evidence that the school committee did not engage in a dialogue with Woodason, the record shows that neither Splaine nor Stanovich consulted with other cafeteria workers about their respective duties or considered or investigated alternative accommodations. “The refusal of an employer to participate in [the] process ... is a violation of our discrimination laws.” Ocean Spray Cranberries, Inc. v. Massachusetts Commn. Against Discrimination, supra at 644. There was no error of law. The school committee also asserts the affirmative defense that Woodason’s accommodations imposed an undue hardship to its business. According to the testimony of Splaine and Stanovich, the only way to accommodate Woodason was to hire another full-time employee, which would have been too expensive. To the contrary, the hearing officer found that such a measure would not be necessary based on other employees’ testimony that the cafeteria was a cooperative working environment where they assisted each other with various responsibilities and swapped duties depending on their proclivities for certain types of work. These circumstances allowed the hearing officer to conclude that Woodason could be accommodated with the previously described “practical modifications” without imposing an undue hardship on her employer. We therefore conclude that the evidence substantially supports the MCAD’s decision that the school committee discriminated against Woodason because of her handicap. c. Damages. The school committee claims that it was error to award Woodason damages for emotional distress, back pay, and lost pension benefits and to order the school com

SYLVIA YOUSE, Plaintiff-Appellant v. DUKE ENERGY CORPORATION, Defendant-Appellee No. COA04-797 (Filed 5 July 2005) 1. Appeal and Error— violations of appellate rules — issues clear — no dismissal Violations of the Rules of Appellate Procedure did not result in dismissal of the appeal where the Court of Appeals was able to determine the issues on appeal and defendant was put on sufficient notice of the issues. 2. Collateral Estoppel and Res Judicata— federal and state claims — identical underlying factual issues Collateral estoppel barred plaintiff’s state claims for discrimination in the termination of her employment based on age and disability where her companion federal case had determined identical underlying factual issues. 3. Collateral Estoppel and Res Judicata— negligent infliction of emotional distress — prior federal determination Collateral estoppel barred plaintiffs state claim for negligent infliction of emotional distress based on breach of public policy on age and disability discrimination. A federal court had already determined that no age or disability discrimination occurred in her termination. 4. Collateral Estoppel and Res Judicata— claim splitting— collateral estoppel not waived A defendant does not waive collateral estoppel by consenting to claim splitting. 5. Collateral Estoppel and Res Judicata— federal action — not simultaneous A federal action filed on the same day as a state action was not a subsequent or simultaneous action for collateral estoppel where the federal action was complete by the time the state action was heard. Judge Tyson dissenting. Appeal by plaintiff from order and judgment entered 11 February 2004 by Judge Anderson Cromer in Superior Court, Guilford County. Heard in the Court of Appeals 2 February 2005. Hicks McDonald Noecker LLP, by David W. McDonald, for plaintiff-appellant. Constangy, Brooks & Smith, LLC, by John J. Doyle, Jr. and Jill Stricklin Cox, for defendant-appellee. McGEE, Judge. Sylvia Youse (plaintiff) was employed by Duke Energy Corporation (defendant) from 8 October 1984 to 21 March 2002. Plaintiff became a Quality Assurance Analyst (QAT Analyst) for defendant on 1 June 1999. The QAT Analyst job description contained the following provision: I. POSITION PURPOSE Monitors and evaluates the quality of inbound telephone calls. Document[s] quality issues and performance measures for management review .... Provide [s] information to assist in the feedback and formal education process of individuals on the phone. Provides subject matter expertise regarding call segment processes and call criteria. Informal feedback and auditing of non-call work is also summarized and audited to assure quality issues are addressed. II. MAJOR ACCOUNTABILITIES/ESSENTIAL DUTIES 2. . . . B. Maintains appropriate relationships and credibility-needed to assure that quality scores are used effectively to improve performance of Customer Service Specialists. Plaintiff and her husband owned a house in Mebane, North Carolina (the Mebane house), which they leased to their son and daughter-in-law. Defendant provided electrical service to the Mebane house. Plaintiffs son and daughter-in-law arranged to move out of the Mebane house in February 2002. Electrical service was scheduled to be changed from plaintiffs daughter-in-law’s name to plaintiffs name on 18 February 2002. However, the electrical service was disconnected on 11 February 2002. Plaintiff telephoned defendant on 11 February 2002 and inquired as to why the electrical service was not working. Plaintiff spoke with customer service representative Demishie Grier (Grier), who informed plaintiff that the electrical service had been disconnected for non-payment. Plaintiff and Grier began to disagree as to whether the electrical service should be turned back on. When plaintiff asked to speak with a supervisor, Grier stated that Grier could not transfer the call but would have a supervisor call plaintiff. Plaintiff stated that she could not be called back since she was on a cell phone and had an unreliable connection. Plaintiff and Grier thereafter ended their telephone conversation. Plaintiff then telephoned call service response and spoke with Billy Kingry (Kingry), a service response specialist. Plaintiff had originally hired Kingry to work for defendant and was Kingry’s former supervisor. Plaintiff asked Kingry to look at the Mebane house account and told him that she needed electrical service at the Mebane house. Kingry then arranged to have the electrical service turned back on at the Mebane house. This reconnection of the electrical service was in violation of defendant’s “non-pay reconnect” guidelines, which provide that a reconnect of an account is only available once payment has been made on the account. Kingry told Yolanda Peterson (Peterson), a HR Consultant for defendant, that he did “ma[k]e an exception for [plaintiff] because of [Kingry and plaintiff’s] previous relationship and [plaintiff’s] knowledge of how things work.” The following day, on 12 February 2002, defendant determined that the electrical service at the Mebane house had been erroneously reconnected. The account was scheduled for another non-pay disconnect, and a disconnect notice was delivered to the Mebane house. Peterson received an email on 18 February 2002 from Dawn Morrison (Morrison), plaintiffs supervisor. The email stated that plaintiff may have engaged in “very inappropriate conduct.” The email also recommended that an investigation take place. Peterson began an investigation into plaintiff’s conduct, during which Peterson interviewed numerous individuals and reviewed the history of the Mebane house account. Plaintiff was removed from defendant’s employment on 8 March 2002 pending the completion of Peterson’s investigation. During the course of the investigation, Peterson learned that in January 2002, plaintiff had accessed her daughter-in-law’s account at the Mebane house. This activity was in violation of defendant’s procedures which prohibit employees from working on their own, their co-workers,’ or their family members’ electrical service accounts. Peterson also determined that plaintiff’s conduct, when plaintiff spoke with Grier, included “hostile and intimidating statements” and an “attempt to persuade . . . Grier to circumvent established call procedures.” Finally, Peterson found that plaintiff “circumvent[ed] . . . customer service processes” when she called Kingry directly in an effort to restore the electrical service, and that she made false statements to Kingry about the Mebane house account. Due to this conduct, Peterson determined that plaintiff was unable to satisfy the requirements of her position as a QAT Analyst. Peterson found that plaintiff compromised her credibility and her relationship with [defendant’s] employees when she completely disregarded the very same customer service procedures that she was charged with administering, made intimidating statements to a customer service specialist and service response employee, and abused her position [with defendant] to achieve her own personal objectives. Peterson recommended to Lynetta Chisolm (Chisolm), General Manager of Customer Contact Services, that plaintiff be discharged. Chisolm agreed, and plaintiffs employment with defendant was terminated on 21 March 2002. Plaintiff filed a complaint against defendant on 20 September 2002, alleging wrongful termination in violation of public policy based on age and handicap discrimination, negligent infliction of emotional distress, a violation under the Wage and Hour Act, N.C. Gen. Stat. § 95-25.1-95-25.25, and punitive and special damages. That same day, plaintiff filed a complaint in the United States District Court for the Middle District of North Carolina (Middle District) alleging identical facts to those in the state court complaint. The complaint filed in the Middle District alleged violations of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621-634, the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101-12213, and the Employment Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001-1461. Defendant filed a motion for summary judgment in the Middle District case on 24 October 2003. In an order and recommendation dated 15 December 2003, a magistrate judge recommended that defendant’s motion for summary judgment be granted. Youse v. Duke Energy Corporation, 1:02CV00808 (M.D.N.C. 2003). Plaintiff objected to the recommendation, and a district court judge made a de novo determination of the magistrate judge’s recommendation. See 28 U.S.C. § 636 (b)(1) (2004). The district court judge adopted the magistrate judge’s recommendation and ordered that defendant’s motion for summary judgment be granted as to all claims on 23 January 2004. Defendant filed a motion for summary judgment in state court on 21 January 2004. The trial court granted defendant’s motion in an order entered 11 February 2004. Plaintiff appeals. I. We first address defendant’s argument that plaintiff’s appeal should be dismissed due to plaintiffs violations of the North Carolina Rules of Appellate Procedure. Defendant specifies that plaintiff has violated the Rules by: (1) failing to reference the record page numbers on which her assignments of error appear, see N.C. R. App. P. 28(b)(6); (2) referencing the incorrect assignment of error in support of Argument D in her brief, see id.; (3) using argumentative language when summarizing the facts of the case, see N.C. R. App. P. 28(b)(5); (4) failing to reference pages of the transcript or record on appeal in connection with her factual assertions, see id.; (5) failing to include relevant portions of statutes in the Appendix to her brief, see N.C. R. App. P. 28(d)(1)(c); (6) using the incorrect font size for the footnotes in her brief, see N.C. R. App. P. 26(g); (7) providing the improper citations for several of the authorities on which plaintiff’s brief relies, see N.C. R. App. P. 28(b)(6); and (8) filing her Appeal Information Statement two weeks after the date her brief was due to be filed, see N.C. R. App. P. 41(b)(2). Although we recognize that plaintiff failed to comply with several of our Rules of Appellate Procedure, we do not find that dismissal of the appeal is proper in this case. Despite the Rules violations, we are able to determine the issues in this case on appeal. Furthermore, we note that defendant, in filing a brief that thoroughly responds to plaintiffs arguments on appeal, was put on sufficient notice of the issues on appeal. See Viar v. N.C. Dep’t of Transportation, 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005). Since plaintiffs Rules violations are not “so egregious as to invoke dismissal^]” Symons Corp. v. Insurance Co. of North America, 94 N.C. App. 541, 543, 380 S.E.2d 550, 552 (1989), we elect to review the significant issues of this appeal pursuant to N.C. R. App. P. 2. See Symons, 94 N.C. App. at 543, 380 S.E.2d at 552. II. Plaintiff’s first assignment of error, contends that the trial court erred in granting summary judgment in favor of defendant on plaintiffs claim of wrongful discharge against public policy. The trial court’s order stated the following: 1. Defendant is entitled to summary judgment on plaintiff’s claim of wrongful discharge against public policy. . . . The same issues that are dispositive of plaintiff’s claim of wrongful discharge against public policy already have been litigated to final judgment by the [Middle District] in plaintiff’s companion lawsuit against defendant.... Therefore, plaintiff’s claims in this state court proceeding are barred by the doctrine of collateral estoppel. Summary judgment is appropriate when “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 any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003). The moving party to a summary judgment motion can prevail by showing that “the other party cannot overcome an affirmative defense which would bar the claim.” Caswell Realty Assoc. v. Andrews Co., 128 N.C. App. 716, 720, 496 S.E.2d 607, 610 (1998). Collateral estoppel is an affirmative defense. See N.C. Gen. Stat. § 1A-1, Rule 8 (2003); Johnson v. Smith, 97 N.C. App. 450, 453, 388 S.E.2d 582, 584, disc. review denied, 326 N.C. 596, 393 S.E.2d 878 (1990). Collateral estoppel prevents “the subsequent adjudication of a previously determined issue, even if the subsequent action is based on an entirely different claim.” Whitacre P’ship v. Biosignia, Inc., 358 N.C. 1, 15, 591 S.E.2d 870, 880 (2004). An action is barred under the doctrine of collateral estoppel “even if the first adjudication is' conducted in federal court and the second in state court.” McCallum v. N.C. Coop. Extension Serv., 142 N.C. App. 48, 52, 542 S.E.2d 227, 231, disc. review denied, 353 N.C. 452, 548 S.E.2d 527 (2001). Collateral estoppel will apply when: “(1) a prior suit resulted] in a final judgment on the merits; (2) identical issues [were] involved; (3) the issue was actually litigated in the prior suit and necessary to the judgment; and (4) the issue was actually determined.” McDonald v. Skeen, 152 N.C. App. 228, 230, 567 S.E.2d 209, 211, disc. review denied, 356 N.C. 437, 571 S.E.2d 222 (2002) (citing Thomas M. McInnis & Assoc., Inc. v. Hall, 318 N.C. 421, 429-30, 349 S.E.2d 552, 557-58 (1986)). In determining what issues were actually litigated or decided by the earlier judgment, the court in the second proceeding is “ ‘free to go beyond the judgment roll, and may examine the pleadings and the evidence [if any] in the prior action.’ ” Miller Building Corp. v. NBBJ North Carolina, Inc., 129 N.C. App. 97, 100, 497 S.E.2d 433, 435 (1998) (alteration in original) (quoting 18 James W. Moore et al., Moore’s Federal Practice § 132.03 [4] [i] (3rd ed. 1997)). Although plaintiffs companion Middle District case was based on different legal claims than the case before us, the state court and Middle District cases involved identical underlying factual issues. “To the extent the U.S.-District Court ruled on these issues, plaintiff is barred from relitigating the issues in state court.” Williams v. City of Jacksonville Police Dep’t, 165 N.C. App. 587, 594, 599 S.E.2d 422, 429 (2004). We conclude that plaintiffs state law claim that she was discriminated against on the basis of her age and disability in violation of North Carolina’s public policy is barred by collateral estoppel. N.C. Gen. Stat. § 143-422.2 (2003) states: “It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination ... on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees.” Our Supreme Court has directed that “we look to federal decisions for guidance in establishing evidentiary standards and principles of law to be applied in discrimination cases.” Dept. of Correction v. Gibson, 308 N.C. 131, 136, 301 S.E.2d 78, 82 (1983); see also Brewer v. Cabarrus Plastics, Inc., 130 N.C. App. 681, 685-86, 504 S.E.2d 580, 584 (1998), disc. review denied, 350 N.C. 91, 527 S.E.2d 662 (1999). In this case, the Middle District considered plaintiff’s claims for both age discrimination under the ADEA, and disability discrimination under the ADA. While plaintiff argues that the Middle District never addressed the issue of whether North Carolina public policy was violated, plaintiff also “contends that her discharge was motivated by defendant’s discrimination based upon her age and disability,” the same factual issues decided by the Middle District. The Middle District granted summary judgment to defendant on plaintiff’s ADEA claim since, although plaintiff was able to establish a prima facie case of discrimination, defendant “ha[d] proffered substantial evidence of a legitimate, nondiscriminatory reason for [p]laintiff’s discharge, and [p]laintiff ha[d] failed to produce sufficient evidence that [defendant's proffered reason [wa]s a pretext for discrimination.” Specifically, the Middle District found that “[d]e-fendant’s evidence demonstrates that [p]laintiff violated [defendant’s] policy against working orders to a relative’s account, engaged in inappropriate behavior with a customer service specialist over the telephone, and abused her status as a QAT analyst and former supervisor to circumvent established company procedures.” -Since the Middle District determined that plaintiff had failed to prove that defendant’s preferred reason for plaintiff’s termination was a pretext for discrimination, plaintiff’s state law claim based on the same factual allegation of age discrimination is collaterally estopped. Similarly, the Middle District granted summary judgment to defendant on plaintiff’s ADA claim. The Middle District found that plaintiff had failed to even establish a prima facie case of disability discrimination: Plaintiff has not offered any further evidence of actions by [defendant] which would tend to show resentment of or animus towards [p]laintiff because of her “disability.” Rather, the record evidence demonstrates a long history of accommodations by [defendant] for [plaintiff’s personal and health needs. Furthermore, [p]laintiff admits that no one at [defendant] ever made any derogatory remarks about her health. Again, since the Middle District determined that plaintiff had failed to prove, under the ADA, that she was discriminated against based on her disability, we find that plaintiff’s state law claim based on the same factual allegation of disability discrimination is collaterally estopped. We also find that collateral estoppel bars plaintiffs claim for negligent infliction of emotional distress. To establish a claim for negligent infliction of emotional distress, a plaintiff must prove that: “(1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress . . . , and (3) the conduct did in fact cause the plaintiff severe emotional distress.” Johnson v. Ruark Obstetrics, 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990). To prove that a defendant “negligently engaged in conduct,” a plaintiff must show: (1) a legal duty; (2) a breach of that duty; and (3) that damages were proximately caused by such breach. Tise v. Yates Construction Co., 345 N.C. 456, 460, 480 S.E.2d 677, 680 (1997). In this case, plaintiff claims that defendant breached its duty to plaintiff to not violate the public policy of North Carolina by discriminating against her on the basis of her age and disability. However, as stated above, the Middle District determined that defendant did not discriminate against plaintiff on either the basis of her age or disability. Assuming arguendo that defendant had a duty to plaintiff to not violate the public policy of North Carolina, the Middle District has already determined that a breach of such duty did not occur. Therefore, plaintiffs claim for negligent infliction of emotional distress is collaterally estopped. Plaintiff argues that defendant has waived its right to a collateral estoppel defense because defendant failed to oppose plaintiffs strategy of filing two different lawsuits. Plaintiff contends that defendant, by not objecting to the Middle District action on the grounds of prior pending action, waived a collateral estoppel defense. In support of her argument, plaintiff cites Bockweg v. Anderson, 333 N.C. 486, 428 S.E.2d 157 (1993) and Howerton v. Grace Hospital, 130 N.C. App. 327, 502 S.E.2d 659 (1998). We find Bockweg and Howerton inapplicable to this case. First, neither Bockweg nor Howerton involved the doctrine of collateral estoppel, or issue preclusion, but rather involved the doctrine of res judicata, or claim preclusion. Bockweg, 3

ELEZOVIC v FORD MOTOR COMPANY Docket No. 125166. Argued December 8, 2004 (Calendar No. 4). Decided June 1, 2005. Lula and Joseph Elezovic brought an action in the Wayne Circuit Court against Ford Motor Company and Daniel R Bennett, seeking, under the Civil Rights Act (CRA), MCL 37.210 et seq., damages for alleged sexual harassment resulting from a hostile work environment. The plaintiffs alleged that Bennett, a supervisor at the Ford plant where Lula Elezovic (plaintiff) worked, exposed himself to the plaintiff, requested oral sex, and repeatedly engaged in other sexually offensive conduct. The court, Kathleen Macdonald, J., granted the defendants’ joint motion in limine to exclude evidence of Bennett’s prior criminal misdemeanor conviction of indecent exposure, which involved conduct that did not occur on Ford property and did not involve Ford employees. The court later granted directed verdicts in favor of the defendants. The Court of Appeals, Jansen, EJ., and Neff, J. (Kelly, J., concurring), affirmed. 259 Mich App 187 (2003). The Court of Appeals held that it was bound to follow the decision in Jager v Nationwide Truck Brokers, Inc, 252 Mich App 464 (2002), that a supervisor engaging in activity prohibited by the CRA may not be held individually liable for violating a plaintiffs civil rights. The Court stated that, were it not bound by MCR 7.215(J)(1) to follow Jager, it would reach the opposite result. The Court also found that Ford did not have sufficient notice of the alleged harassment. The plaintiff appealed. 470 Mich 892 (2004). In an opinion by Chief Justice Taylor, joined by Justices Corrigan, Young, and Markman, the Supreme Court held: An agent of an employer may be held individually liable under the CRA. Ford did not have sufficient reasonable notice of the alleged harassment. The judgment of the Court of Appeals must be reversed in part and affirmed in part, and the case must be remanded to the circuit court for further proceedings regarding Bennett. 1. The CRA defines an “employer” as a “person,” which is defined to include a corporation. The CRA also states that an “employer” includes an “agent of that person.” The Legislature, by including “agent” within the definition of “employer” did not intend to only provide vicarious liability for the agent’s employer, but also created individual liability for an employer’s agent. Bennett may be sued individually under the CRA. 2. Federal decisions construing Title VII of the federal civil rights act and holding that there is no individual liability under the federal act should not be followed because it would lead to a result contrary to the text of the CRA. The history of amendments of the CRA does not preclude a finding of individual liability on the part of an agent of an employer. 3. The fact that the plaintiff told two low-level supervisors, in confidence, that Bennett had exposed himself did not constitute reasonable notice to Ford. Letters sent to Ford by the plaintiffs psychologist and attorney mentioning “harassment” or “hostile environment” were insufficient to give Ford reasonable notice of sexual harassment, given the plaintiffs prior complaints against Bennett that were not sexual in nature. A reasonable employer would not, under the totality of the circumstances in this case, have been on notice of a substantial probability that sexual harassment was occurring. 4. The trial court did not abuse its discretion in precluding evidence of Bennett’s prior indecent exposure conviction. The conviction had been expunged before the trial in this matter and under MCL 780.623(5) the evidence was not admissible. The trial court did not err in holding that the prejudice to Ford that would result from the evidence would substantially outweigh any probative value it might have. 5. The opinion in Jager must be overruled. The part of the judgment of the Court of Appeals that affirmed the directed verdict in favor of Ford must be affirmed and the part of the judgment that affirmed the directed verdict in favor of Bennett must be reversed. The matter must be remanded to the trial court for further proceedings regarding Bennett and consistent with the Supreme Court’s opinion. Justice Cavanagh, joined by Justice Kelly, concurring in part and dissenting in part, dissented from the opinion of the majority with regard to the issues whether the CRA provides for individual liability against an agent of an employer and whether sufficient evidence was presented to allow the jury to decide whether Ford had notice of the alleged sexual harassment. The CRA does not provide for individual liability against an agent of an employer, and the plaintiff provided sufficient evidence to allow the jury to decide the notice issue. The majority reached the correct result in this case when it determined that the trial court did not abuse its discretion by excluding evidence of the alleged sexual harasser’s expunged indecent exposure conviction. Justice Weaver, concurring in part and dissenting in part, concurred in the majority’s conclusions that the trial court’s ruling on the defendants’ motion in limine was not an abuse of discretion and that the trial court’s decision to exclude the evidence of Bennett’s expunged conviction should be affirmed. She dissents, however, from the majority’s conclusion that the CBA provides for individual liability against an agent of an employer and from its conclusion that Ford was entitled to a directed verdict because the plaintiff failed to establish that Ford had notice of the sexual harassment. The Legislature included the word “agent” in the definition of “employer” to denote respondeat superior liability, not individual liability. The conclusion of the Cotut of Appeals that there is no individual liability under the act should be affirmed. The opinion in Jager v Nationwide Truck Brokers, Inc, should not be overruled. Considering all the evidence and the reasonable inferences that may be drawn from it, there are factual questions about which reasonable jurors could differ regarding whether Ford had notice of the sexual harassment. Therefore, the directed verdict in favor of Ford with regard to the question of notice should be reversed. Affirmed in part, reversed in part, and remanded. Civil Rights — Workplace Sexual Harassment — Supervisors. An agent of an employer may be held individually hable under the Civil Rights Act for sexually harassing an employee in the workplace (MCL 37.2101 et seq.). Mark Granzotto, EC. (by Mark Granzotto), and Edwards & Jennings, EC. (by Alice B. Jennings), for the plaintiff. Kienbaum Opperwall Hardy & Eelton, P.L.C. (by Elizabeth Hardy and Julia Turner Baumhart) {Patricia J. Boyle, of counsel), for the defendants. Amici Curiae: . Scheff & Washington, EC. (by George B. Washington and Miranda K.S. Massie), for Justine Maldonado, Milissa McClements, and Pamela Perez. Carol Hogan for Michigan Conference of the National Organization for Women. TAYLOR, C.J. At issue in this case is (1) whether the Michigan Civil Rights Act (CRA) provides a cause of action against an individual agent of an employer and (2) whether plaintiffs employer, Ford Motor Company, was entitled to a directed verdict in plaintiffs sexual harassment lawsuit against it. We hold that an agent may be individually sued under § 37.2202(1) (a) of the CRA. Thus, we overrule Jager v Nationwide Truck Brokers, Inc, 252 Mich App 464, 485; 652 NW2d 503 (2002), because it held to the contrary, and reverse the Court of Appeals judgment in favor of Daniel Bennett that followed Jager. We also hold, consistently with the lower courts, that Ford was entitled to a directed verdict. Thus, we affirm the trial court and Court of Appeals judgments in favor of Ford. I. FACTS AND PROCEEDINGS BELOW Plaintiff filed a lawsuit in November 1999 pursuant to the CRA against Ford Motor Company and Daniel Bennett, a supervisor at Ford’s Wixom assembly plant where she worked. As relevant here, her claim was that she had been sexually harassed as a result of a hostile work environment. The CRA allows such a lawsuit against an employer. Plaintiffs lawsuit named Bennett as an individual defendant consistently with the then-controlling case of Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785; 369 NW2d 223 (1985), which held that individual supervisors could be liable under the CRA. Regarding the specifics in her complaint, plaintiff alleged that, while she was on the job in the summer of 1995, Bennett exposed himself to her while masturbating and requested she perform oral sex. Further, she claimed that after that he repeatedly continued to harass her by grabbing, rubbing, and touching his groin and licking his lips and making sexually related comments. Before trial, defendants filed a joint motion in limine to exclude from evidence an unrelated, prior criminal misdemeanor conviction of Bennett for indecent exposure. Defendants pointed out that the incident did not occur on Ford property and involved non-Ford employees. Plaintiff, however, argued that the indecent exposure conviction was evidence of a scheme or plan Bennett had of exposing himself to women and that it provided notice to Ford that Bennett engaged in inappropriate sexual acts. The trial court ruled that the indecent exposure conviction was inadmissible with regard to Bennett under MRE 404(b)(1) because it was not offered for any purpose other than to show that he had a propensity to expose himself. The court also held it was inadmissible with regard to Ford pursuant to MRE 403 because any probative value would be substantially outweighed by the danger of unfair prejudice. The case was tried before a jury for three weeks. Plaintiff testified consistently with the allegations in her complaint against Bennett. While it was uncontested that she had not filed a formal written complaint of sexual harassment pursuant to Ford’s anti-harassment policy, plaintiff attempted to establish that Ford was otherwise aware, or on notice, of the sexual harassment for several reasons. She claimed that she told two first-line supervisors (friends of hers who were under Bennett in the chain of command) that Bennett had exposed himself to her, but admitted that she had pledged them to secrecy. She also introduced two letters her psychologist had written to the Wixom plant physician, one indicating that in his view plaintiff was descending into mental illness “[d]ue to the harassment she perceived from Mr. Bennett” and a second stating that plaintiff continued “to feel uncomfortable with Dan Bennett.” These letters were offered with a third letter from the same psychologist to the Wixom plant manager regarding complaints against a different coworker in which it was said “there has been harassment going on for the past year and a half at her Wixom plant job.” Also introduced was testimony from an employee to a Ford Labor Relations Department representative to the effect that the employee would remain on medical leave until someone did something about the situation between plaintiff and Bennett. Finally, reference was made to a letter from plaintiffs attorney (her son-in-law) to the Ford Labor Relations Department in which he asserted he might take legal action “to insure that our client [plaintiff] is not subjected to working in a hostile environment.” At the close of plaintiffs proofs, defendants filed a joint motion for a directed verdict, arguing that plaintiff had not presented a prima facie case against them. Ford emphasized that plaintiff had not established that it had notice of the alleged sexual harassment by Bennett and, thus, it could not be held liable for any improper acts by him. The trial court took the joint motion under advisement, with defendants continuing to present their cases to the jury. Bennett testified that he had not sexually harassed the plaintiff and that her claims were false. Ford presented evidence showing that the only time plaintiff had ever filed a sexual harassment complaint was in 1991, involving a UAW committeeman, and that none of the several grievances and complaints plaintiff filed against Bennett had mentioned sexual harassment. Rather, with regard to Bennett, her complaints concerned having her shift changed from days to afternoons and disputes regarding overtime. She also filed a complaint alleging that a female coworker had physically threatened her. Upon the close of defendants’ proofs, the trial court granted directed verdicts to the defendants. The trial court held that plaintiff had failed to establish a prima facie case of sexual harassment with regard to either defendant and, in particular, found that Ford could not be liable because it had no notice of Bennett’s alleged harassment. Plaintiff, asserting that she had established a prima facie case against Bennett and Ford, appealed to the Court of Appeals. That Court, however, affirmed the orders of the trial court in a published opinion. In ruling for Bennett, the majority in Elezovic relied on the then-recent holding in Jager, supra at 485, that “a supervisor engaging in activity prohibited by the CRA may not be held individually liable for violating a plaintiffs civil rights.” The Jager Court had reached its conclusion by relying largely on federal court holdings that under Title VII of the federal civil rights act, the federal analogue to our CRA, there is no individual liability. While it was obligatory that the majority, in Elezovic follow Jager pursuant to MCR 7.215(J)(1), the majority indicated at the same time that, but for that court rule, it would have reached the opposite result. It was the majority’s view that Jager was wrongly decided simply because it was not consistent with the actual language of our CRA, which it concluded made agents individually liable. Moreover, it believed Jager was inconsistent with Chambers v Trettco, Inc, 463 Mich 297; 614 NW2d 910 (2000), which it read as recognizing that an individual may be held liable for sexual harassment under the CRA. With regard to the directed verdict for Ford, the Court -of Appeals rejected plaintiffs claim that her evidence regarding notice had been sufficient to enable her to reach the jury. The Court held that plaintiffs report of Bennett’s conduct to her supervisors did not constitute actual notice to Ford because of her request at the same time that this information not be conveyed to their supervisor or other appropriate persons. Elezovic v Ford Motor Co, 259 Mich App 187, 194; 673 NW2d 776 (2003). As for the letters that had been sent to Ford, the Court of Appeals concluded that these also did not provide notice because, importantly, none of them referred to sexual conduct. The Court held that this fact, when viewed in the context that plaintiffs previous harassment complaints had not been sexual in nature, but were explicitly nonsexual concerning Bennett and others (with the exception of the 1991 complaint against a UAW committeeman that plaintiff did not rely on as part of her case), meant Ford would not reasonably have been put on notice. Id. at 195. Finally, the Court also affirmed the trial court’s decision to exclude evidence regarding Bennett’s indecent exposure conviction. It was the Court’s conclusion that plaintiff failed to establish that the evidence was offered for a proper purpose because Bennett’s act of indecent exposure outside the workplace was not sufficiently similar to sexually harassing an employee in the workplace to establish a common plan, scheme, or system. Id. at 206. The Court further concluded that the trial court had not abused its discretion, concerning defendant Ford, in holding that the probative value of this evidence would have been substantially outweighed by the danger of unfair prejudice. Id. at 207-208. Plaintiff applied for leave to appeal in this Court, and we granted leave to appeal and directed the parties to include among the issues briefed whether a supervisor engaging in activity prohibited by the Michigan Civil Rights Act, MCL 37.2101 et seq., may be held individually liable for violating a plaintiffs civil rights. 470 Mich 892 (2004). II. STANDARDS OF REVIEW We review de novo the question whether our CRA authorizes a cause of action against an individual agent for workplace sexual harassment because it is a question of law. Morales v Auto-Owners Ins Co (After Remand), 469 Mich 487, 490; 672 NW2d 849 (2003). In reviewing the statute, if its language is clear, we conclude that the Legislature must have intended the meaning expressed, and the statute is enforced as written. Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995). We also review de novo a trial court’s ruling regarding a motion for a directed verdict, viewing the evidence and all legitimate inferences in the light most favorable to the nonmoving party. Sniecinski v Blue Cross & Blue Shield of Michigan, 469 Mich 124, 131; 666 NW2d 186 (2003); Meagher v Wayne State Univ, 222 Mich App 700, 707-708; 565 NW2d 401 (1997). Finally, the decision whether to admit or exclude evidence is reviewed for an abuse of discretion. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). III. INDIVIDUAL AGENT LIABILITY UNDER THE CRA The CRA prohibits an employer from discriminating on account of sex, which includes sexual harassment. MCL 37.2202(l)(a); MCL 37.2103(i) (“Discrimination because of sex includes sexual harassment.”). As previously set forth, the statute expressly defines an “employer” as a “person,” which is defined under MCL 37.2103(g) to include a corporation, and also states that an “employer” includes an “agent of that person.” MCL 37.2201(a). This statutory language uncontroversially means that Ford Motor Company is an “employer” under the CRA. What is contested is whether an agent of the corporation is also subject to individual liability. Bennett and Ford have argued that the statutory definition of “employer,” which includes an “agent of that person,” should not be read as providing individual liability because (1) inclusion of the term “agent” in the statutory definition of “employer” operates solely to confer vicarious liability on the employer, (2) federal courts of appeals have all held that Title VII — the analogous federal sexual discrimination statute with its similar definition of “employer” — does not allow individual liability, and (3) the amendment history of our CRA suggests a different intention on the part of the Legislature. Regarding the first of these arguments, that this statute should not be read to expand the class of potential defendants to include agents, defendants assert that Chambers, supra at 310, supports this narrowing conclusion because it held that the inclusion of an “agent” within the definition of an “employer” in MCL 37.2201(a) served to confer vicarious liability on the agent’s employer. We disagree with this analysis. While Chambers held that this language establishes vicarious liability, our discussion did not limit it to that function. The reason is that, when a statute says “employer” means “a person who has 1 or more employees, and includes an agent of that person,” it must, if the words are going to be read sensibly, mean that the Legislature intended to make the agent tantamount to the employer so that the agent unmistakably is also subject to suit along with the employer. (Emphasis added.) Indeed, when we said in Chambers, supra at 320, that categorizing a given pattern of misconduct allows the Court “to determine whether the sexual harasser’s employer, in addition to the sexual harasser himself, is to be held responsible for the misconduct,” we believe we said as much. (Emphasis in original.) Accordingly, we reject the argument that including “agent” within the definition of “employer” serves only to provide vicarious liability for the agent’s employer and we conclude that it also serves to create individual liability for an employer’s agent. With respect to defendants’ second argum

Maura McKeag Leach vs. Commissioner of the Massachusetts Rehabilitation Commission. No. 03-P-1540. Suffolk. September 20, 2004. May 19, 2005. Present: Celinas, Smith, & Cowin, JJ. Anti-Discrimination Law, Handicap, Employee. Employment, Discrimination. In a civil action alleging handicap discrimination in employment in violation of G. L. c. 151B, § 4(16), the defendant employer was not obligated to anticipate the likelihood that the plaintiff employee would develop a certain condition from the time of her hire through the time one and one-half years later when she first complained to the defendant of the condition, where development of the condition was by no means a certainty, and where the plaintiff gave no indication that she might suffer from the condition prior to her specific complaint. [566-568] In a civil action alleging handicap discrimination in employment in violation of G. L. c. 151B, § 4(16), the plaintiff employee failed to present sufficient admissible evidence at the summary judgment stage to warrant a finding in her favor either that she could perform the essential functions of her job with or without reasonable accommodation, or that, despite her needing reasonable accommodation in order to perform the essential functions, the defendant employer denied her such reasonable assistance. [569-570] Civil action commenced in the Superior Court Department on February 3, 1999. The case was heard by Christopher J. Muse, J., on a motion for summary judgment. Thomas O. Moriarty for the plaintiff. David Stanhill, Assistant Attorney General, for the defendant. Although the complaint was nominally brought against the Commissioner of the Massachusetts Rehabilitation Commission, the parties have treated the commission as the defendant. We adopt the parties’ position that the action is effectively against the commission. Cowin, J. The plaintiff, Maura McKeag Leach, commenced proceedings against her employer, the Massachusetts Rehabilitation Commission (commission or defendant), alleging, somewhat ironically, that the commission had violated the provisions of G. L. c. 151B, § 4(16), by failing to accommodate her handicaps (a hearing disability, followed by repetitive stress injury). A judge of the Superior Court allowed the defendant’s motion for summary judgment and dismissed the complaint. The plaintiff alleges various errors, asserting that (1) the defendant had an obligation to provide certain accommodations notwithstanding the absence of a specific request by the plaintiff therefor; (2) the judge erred in concluding that accommodation was unnecessary when an employee can perform the essential functions of the job without it; (3) the defendant failed to provide reasonable accommodations between August, 1996, and November, 1996; and (4) the judge’s determination that the plaintiff, even with accommodation, could not perform the essential functions of her job was not warranted. We conclude that, on this record, the defendant was not obligated to anticipate the need to accommodate the plaintiffs repetitive stress injury without a request by the plaintiff; the plaintiff failed to present sufficient evidence to support a finding that the defendant did not provide reasonable accommodation; and the plaintiff failed to show that she could perform the essential functions of her job even with reasonable accommodation. Accordingly, we affirm the judgment for the defendant. The material facts are not disputed. The plaintiff has a hearing disability. In August, 1994, she was hired by the defendant, a State agency that assists disabled clients to find employment, for the full-time position of vocational rehabilitation counselor. Because of her hearing handicap, the defendant provided the plaintiff with a teletypewriter so that she could communicate with others by means of typing messages carried over telephone lines. She was also required, as were other employees of the defendant, to use a computer on a regular basis. The plaintiff first experienced the physical symptoms of repetitive stress injury (RSI) in the fall of 1995. She did not bring the condition to the attention of any representative of the defendant at this time or for a number of months thereafter. However, by March, 1996, the pain had increased, and the plaintiff complained to the defendant’s general office secretary. She left work at this time, not returning until August, 1996. From some time prior to the hiring of the plaintiff in August, 1994, the defendant was aware of the science of ergonomics, as well as the increased risk experienced by hearing impaired persons of contracting RSI because of physical stress resulting from the use of communication expedients such as the teletypewriter. Indeed, the defendant assigned personnel to study the subject, and received recommendations that more should be done to make the commission’s work stations, especially those occupied by employees with a higher risk of developing RSI, ergonomically sound. In addition, during this period the defendant received periodic complaints from employees regarding their experiencing of symptoms of RSI. Prior to her return to work on a part-time basis in August, 1996, the plaintiff requested a swivel chair and a lower desk. Upon her return, the plaintiff discussed further accommodations with James Samo, the director of the commission’s Somerville regional office and the plaintiff’s unit supervisor. She was immediately given a new ergonomic chair as well as a reduced caseload and work hours. In addition, encouraged to do so by the defendant, the plaintiff requested that a rehabilitation engineer study her workspace. The request was granted, and the rehabilitation engineer recommended that a special computer desk be provided; that additional lamps be added to reduce eyestrain (not related either to the plaintiff’s hearing disability or to her RSI); and that the plaintiff resist her tendency to lift the little fingers while typing because of the stress caused to the tendons in her hands. Subsequently, an additional recommendation of a split keyboard was included. Between November and December, 1996, the defendant provided the plaintiff with an ergonomic desk, a split keyboard, and a wrist pad. The defendant also arranged for adjustments to the new ergonomic chair that the plaintiff had previously received. In response to the plaintiff’s further requests, the defendant assigned another employee to assist the plaintiff with typing on a part-time basis; hired a full-time vocational counselor to assist the plaintiff with her caseload; and arranged for a head clerk to provide additional assistance as necessary. The defendant did not provide the recommended additional lighting, nor did it accede to the plaintiff’s request for increased assistance by other commission personnel. Despite these accommodations, by December, 1996, the plaintiff was unable to work an eight-hour day, unable to type on the modified computer keyboard, unable to use the teletypewriter, and unable to write reports or communicate with others by means of sign language. She attempted to continue to work despite these limitations and the accompanying discomfort. In April, 1997, her physician advised that, despite various medications, therapies, and ergonomic adjustments to her work station, the plaintiff had not achieved permanent relief, and that “[h]cr symptoms seem to be exacerbated by stress and prolonged work at the computer keyboard.” The employee left work again, this time apparently permanently. Although the defendant thereafter offered that she could return to the position, the plaintiff did not accept the offer. We address first the plaintiff’s proposition that the defendant was obligated to anticipate the likelihood that she would develop RSI during the period of August, 1994 (her date of hire), through March, 1996 (when she first complained to the defendant of the condition), and arrange to provide accommodations at that time. It does not appear to be disputed that the defendant accommodated the plaintiff’s hearing disability per se. What the plaintiff complains of initially is that the defendant did not, during the first one and one-half years of her employment, recognize that she, as an individual with a hearing disability, was a candidate for RSI, and take steps to accommodate the potential RSI condition at that time. We consider this an unrealistically demanding standard and one not required by applicable legal principles. Ordinarily, an employer’s obligation to attempt to accommodate a handicapped employee comes into being when the employee brings his or her need for accommodation to the employer’s attention. See Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 457 (2002); Ocean Spray Cranberries, Inc. v. Massachusetts Commn. Against Discrimination, 441 Mass. 632, 649 n.21 (2004). The guidelines promulgated by the Massachusetts Commission Against Discrimination (MCAD), which we regard as persuasive, though not binding, interpretive assistance, see Dahill v. Police Department of Boston, 434 Mass. 233, 239 (2001), indicate that it is generally “the responsibility of the individual with a disability to inform the employer that an accommodation is needed.” MCAD Guidelines: Employment Discrimination on the Basis of Handicap Chapter 151B, § VILA (1998) (MCAD Guidelines). To the same effect, see Reed v. LePage Bakeries, Inc., 244 F.3d 254, 261 (1st Cir. 2001) (interpreting Americans with Disabilities Act). We recognize that there may be situations in which a request by the employee is unnecessary. These result from circumstances such as a condition that makes it obvious that accommodation is required, or a condition that renders the employee incapable of making a request. See Reed v. LePage Bakeries, Inc., supra at 261 n.7. Such situations will, by their nature, be infrequent, and there was no evidence that such circumstances existed in this case. With the accommodations that the defendant provided with respect to her hearing disability, the plaintiff functioned “normally most of the time.” Ibid. While hearing-disabled individuals in positions involving the use of equipment such as computers and teletypewriters are more susceptible to RSI than is the general population, development of the condition in this population subset is by no means a certainty, and prior to March, 1996, the plaintiff gave no indication that she might suffer from the condition. That the defendant was aware of the relationship between hearing disabilities and an increased risk of RSI, and that it had embarked on a program to improve its responses to clients and employees on the subject, does not mean that it was on notice that a specific individual (the plaintiff) required accommodation. We turn, then, to the period (March, 1996, forward) following the plaintiffs specific complaint regarding her RSI and her requests for accommodations. It is at this point, it appears to us, that each party diverts from the central question. The plaintiff accuses the motion judge of ignoring the proposition that accommodations may be required even though an employee is capable of performing the essential functions of a position without them. See New Bedford v. Massachusetts Commn. Against Discrimination, 440 Mass. 450, 463 n.27 (2003); Carroll v. Xerox Corp., 294 F.3d 231, 237-238 (1st Cir. 2002). We do not locate such an error in the judge’s decision. Indeed, the judge implicitly acknowledged the principle on which the plaintiff insists by citing Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 383 (1993) (qualified individual with handicap is one who can perform the essential functions of the job, with or without reasonable accommodation). Regardless, as the judge correctly concluded that the plaintiff had not shown that she could perform the essential functions of the job even with reasonable accommodations, any consideration of her rights in the event of a theoretical ability on her part to perform would be wholly hypothetical, and we do not undertake it. On its part, the employer argues that the plaintiff failed to prove that she was a “qualified handicapped person” as defined in G. L. c. 151B, § 1(16), and thus she is not entitled to protection pursuant to G. L. c. 151B, § 4(16). A “qualified handicapped person” is one “who is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with reasonable accommodation to his handicap.” G. L. c. 15IB, § 1(16), as inserted by St. 1983, c. 533, § 2. Consequently, the definition by itself does not decide the outcome. Were the plaintiff to prevail on the proposition that she was capable of performing with or without accommodation, she would then have established that she is a “qualified handicapped person.” If she is unable to demonstrate that she can do the job, with or without accommodation, then she is not a “qualified handicapped person.” The definition of “qualified handicapped person” and the merits of an individual plaintiff’s case appear to be entirely intertwined. We therefore address what appears to us to be the crux of the case, i.e., whether the plaintiff presented sufficient admissible evidence at the summary judgment stage to warrant a finding in her favor either that she could perform the essential functions of the job with or without reasonable accommodation, or that, despite her needing reasonable accommodation in order to perform the essential functions, the defendant denied her such reasonable assistance. We agree with the motion judge that the evidence was insufficient to support either proposition. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991); Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. at 444. The evidence demonstrated that once the plaintiff informed the defendant’s agents of the onset of RSI, the defendant in fact engaged in the kind of “open and ongoing dialogue” with the employee that the MCAD Guidelines envision. See MCAD Guidelines § VII. This, together with the advice of a rehabilitation engineer, resulted in a reduction in the plaintiffs caseload; a reduction in her hours; acquisition of a new ergonomic chair, and subsequent adjustment of the chair; acquisition of a new desk, computer keyboard, and wrist pad; part-time assistance with computer work; assignment of a vocational counselor to assist with the now-reduced caseload; and additional assistance by the head office clerk. These efforts, perhaps influenced by the defendant’s own statutory mission and institutional sympathies for problems of this nature, were the antithesis of a failure to accommodate. Indeed, while the defendant would have the burden of proof on the subject, the plaintiffs demands appear to us to encroach on the defendant’s right not to be subjected to undue hardship as a result of an accommodation. See G. L. c. 151B, § 4(16). The plaintiff points to requests for accommodation that were denied. She was not provided with additional lighting, yet no relationship was shown between better lighting and the easing of the symptoms of RSI. The plaintiff complains further that the defendant did not address her requests for a full-time assistant, providing her only with the part-time help of employees with other responsibilities. However, the commission is an agency with limited, publicly funded resources. There comes a point at which those resources must be preserved for the commission’s clients. In sum, we conclude that no reasonable fact finder could determine on this record that the defendant failed in its legal obligation to provide reasonable accommodation to the plaintiffs handicap. Despite accommodations which, as set forth above, were not shown to be less than reasonable in the circumstances, the plaintiff has not demonstrated that she was capable of performing the essential functions of the position. Her own physician provided a statement that the plaintiff “has not found permanent relief of her symptoms.” Her claim on appeal that she is capable of performing the essential functions despite the pain is belied both by the evidence and by the fact that she left her employment voluntarily and has not returned despite the commission’s invitation to do so. Judgment affirmed. General Laws c. 151B, § 4, as inserted by St. 1983, c. 533, § 6, provides, in relevant part: “It shall be an unlawful practice: . . . (16) For any employer ... to dismiss from employment or refuse to hire, rehire or advance in employment or otherwise discriminate against, because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation.” The plaintiff received workers’ compensation benefits both for this period and thereafter until July 28, 2001. Ergonomics is defined as “an applied science concerned with the characteristics of people that need to be considered in designing and arranging things that they use in order that people and things will interact most effectively and safely.” Webster’s Third New Intl. Dictionary 771 (2002). The plaintiff had, however, testified at a deposition that she in fact spent very little time at her computer because her assistant did most of that work. We acknowledge that the MCAD Guidelines on the subject were finalized in 1998, subsequent to the time at which the plaintiff was obligated to notify the commission that she desired accommodation. Nevertheless, the Guidelines themselves indicate that they are intended to reflect existing practices and preferences. See MCAD Guidelines § I. For a recent discussion of the concept of “essential functions,” see Cargill v. Harvard University, 60 Mass. App. Ct. 585, 594-597 (2004). The plaintiff observes that although she returned to work in August, 1996, the defendant did not produce much of the new equipment until November-December of that year, and asserts that the delay was itself a failure to accommodate. We agree that delay can be tantamount to denial. There is, however, no requirement that accommodation be instantaneous, and the equipment acquisition process in the State government can be slow. The plaintiff has not shown that any delay was intentional, or that it had an effect on her ability to perform the essential functions of the job.

GARG v MACOMB COUNTY COMMUNITY MENTAL HEALTH SERVICES Docket No. 121361. Argued November 9, 2004 (Calendar No. 1). Decided May 11, 2005. Amended 473 Mich 1205. Sharda Garg, a person of Asian Indian ancestry, brought an action in the Macomb Circuit Court against Macomb County Community Mental Health Services, her employer, alleging violations of the Civil Rights Act, MCL 37.2101 et seq., specifically that she was denied promotions and subjected to poor treatment because of national-origin discrimination and in retaliation for engaging in activities protected by the act. A jury awarded damages, finding retaliation but not discrimination. The court, Roland L. Olzark, J., entered a judgment consistent with the verdict and denied the defendant’s motion for judgment notwithstanding the verdict or a new trial. The Court of Appeals, Griffin, EJ, and Meter and Kelly, JJ., affirmed in an unpublished opinion per curiam, issued March 29, 2002 (Docket No. 223829). The Supreme Court granted the defendant’s application for leave to appeal. 469 Mich 1042 (2004). In an opinion by Justice Markman, joined by Chief Justice Taylor, and Justices Corrigan and Young, the Supreme Court held: The plaintiff failed to present sufficient evidence that she was subjected to retaliation either for her alleged opposition to sexual harassment or for filing a grievance claiming national-origin discrimination. The judgment of the Court of Appeals must be reversed and the matter must be remanded to the trial court for entry of a judgment in favor of the defendant. 1. There is insufficient evidence either that plaintiff opposed sexual harassment or that defendant knew that plaintiff was engaged in opposition to sexual harassment in the workplace. The plaintiff claimed that she observed a supervisor sexually harass women in the workplace and that she engaged in activity protected by the Civil Rights Act by opposing such harassment in striking an unknown person who had touched her back and who turned out to be the same supervisor. However, the supervisor was not sexually harassing the plaintiff when she struck him, the plaintiff never characterized her reaction to the touching as opposing sexual harassment until she filed her action, and the plaintiff never told or gave any indication to the supervisor or anyone else that striking the supervisor was an act of opposing sexual harassment. 2. The “continuing violations” doctrine of Sumner v Goodyear Tire & Rubber Co, 427 Mich 505 (1986), which allows consideration of acts falling outside the three-year limitations period of MCL 600.5805(1) and (10) applicable to actions under the Civil Rights Act, is inconsistent with the statute of limitations and must be overruled. 3. The plaintiff engaged in activity protected by the Civil Rights Act in filing a grievance alleging violation of the act. The defendant was aware of this activity. However, absent evidence of acts occurring outside the period of limitations, the plaintiff failed to establish a causal link between the filing of the grievance and the subsequent alleged adverse employment actions. There is no evidence to suggest any distinction between denials of promotion by the supervisor who received the grievance and by other supervisors who were not aware of the grievance. Also lacking was evidence that the plaintiff was treated any differently at work by the supervisor who received the grievance and by other supervisors who were not aware of the grievance. Reversed and remanded to the circuit court. Justice Cavanagh, joined by Justice Kelly, dissenting, agreed with the majority’s conclusion that there was insufficient evidence of retaliation based on the plaintiffs alleged opposition to the sexual harassment of her coworkers, but disagreed with the conclusion that the plaintiff presented insufficient evidence that she was retaliated against for filing a grievance. Further, Sumner should not be overruled and the continuing violations doctrine should not be abolished. The majority also erred in concluding that because the continuing violations doctrine no longer applies, evidence of prior acts must be excluded from consideration. In this case, the continuing violations doctrine should be applied and should result in a conclusion that all of the adverse employment actions taken by the defendant against the plaintiff are actionable. A review of the four principles to be considered before established precedent is overruled, as detailed in Pohutski v City of Mien Park, 465 Mich 675, 694 (2002), shows that none of the factors weighs in favor of overruling Sumner and abolishing the continuing violations doctrine. Even if Justice Cavanagh were to agree with the majority that the continuing violations doctrine is no longer viable, the natural consequence of abolishing that doctrine is not to exclude untimely acts from consideration. Rather, abolishing the doctrine simply means that untimely acts are not actionable. Justice Weaver, joined by Justice Kelly, dissenting, agreed with the reasoning and conclusions in Justice Cavanagh’s dissenting opinion. She wrote separately to state that she is not persuaded that the unanimous adoption of the continuing violations doctrine in Sumner v Goodyear Tire & Rubber Co, 427 Mich 505 (1986), was unwarranted or that the doctrine should be abandoned. 1. Civil Rights — Employment Discrimination — Retaliation. A plaintiff seeking to establish a prima facie case of unlawful employment-related retaliation under the Civil Rights Act must show that the plaintiff engaged in a protected activity, that this was known by the defendant, that the defendant took an employment action adverse to the plaintiff, and that there was a causal connection between the protected activity and the adverse employment action (MCL 37.2701). 2. Civil Rights — Employment Discrimination — Limitation of Actions — Continuing Violations Doctrine. The continuing violations doctrine announced in Sumner v Goodyear Tire & Rubber Co, 427 Mich 505 (1986), which allows consideration of acts falling outside the three-year limitations period of MCL 600.5805(1) and (10) applicable to actions under the Civil Rights Act, is inconsistent with the language of the statute of limitations and may no longer be applied. Pitt, Dowty, McGehee, Mirer & Palmer, PC. (by Beth M. Rivers and Robert W. Palmer), and Monica Farris Linkner and Allyn Carol Ravitz for the plaintiff. Kitch Drutchas Wagner DeNardis & Valitutti (by Susan Healy Zitterman and Karen B. Berkery) for the defendant. Amici Curiae: Michael A. Cox, Attorney General, and Susan I. Leffler, Ron D. Robinson, and Suzanne D. Sonneborn, Assistant Attorneys General, for the Michigan Civil Rights Commission and the Department of Civil Rights. Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Patrick J. O’Brien and Heather S. Meingast, Assistant Attorneys General, for the Attorney General. Sachs Waldman, PC. (by Mary Katherine Norton), for the Michigan State AFL-CIO, the Michigan Trial Lawyers Association, and the Michigan Employment Lawyers Association. MARKMAN, J. We granted leave to appeal to consider whether there was sufficient evidence to support plaintiffs claims of retaliatory discrimination and whether the “continuing violations” doctrine of Sumner v Goodyear Tire & Rubber Co, 427 Mich 505; 398 NW2d 368 (1986), should be preserved, modified, or abrogated in light of the language of the statute of limitations, MCL 600.5805(1). The jury found that plaintiff was not discriminated against on the basis of national origin, but was retaliated against on the basis of either her opposition to sexual harassment or because she filed a grievance claiming national-origin discrimination. The Court of Appeals affirmed. Because we conclude that, once, evidence of acts that occurred outside the statute of limitations period is removed from consideration, there was insufficient evidence of retaliation based on either plaintiffs alleged opposition to sexual harassment or her filing of a grievance, we reverse the judgment of the Court of Appeals and remand to the trial court for entry of a judgment in favor of defendant. In so holding, we overrule the “continuing violations” doctrine of Sumner, supra, as inconsistent with the language of the statute of limitations, MCL 600.5805(1) and (10). As a result, we do not reach the other issues raised on appeal or the issues raised in plaintiffs cross-appeal. i. pacts and procedural history Plaintiff Sharda Garg is of Asian Indian ancestry. She began her employment as a staff psychologist with defendant Macomb County Community Mental Health Services in 1978. Plaintiff testified that Donald Habkirk, the director of defendant’s disability section, which included the facility where plaintiff worked, had during 1981 engaged in what plaintiff characterized as “sexually harassing” behavior with female coworkers. Specifically, plaintiff observed Habkirk pull one coworker’s bra strap and snap the elastic panties of another. Plaintiff acknowledges that she herself was never treated in this manner or otherwise sexually harassed, and that she never reported to anyone the incidents she allegedly observed. Habkirk denied engaging in such conduct. At “around the same time,” plaintiff, while walking down an office corridor, felt someone’s hand touch her upper back, near her shoulder. Plaintiff reacted as follows: “I felt somebody touching me, and I just turned around and swung at him.” She farther observed, “it was a very automatic reaction on my part.” It was only after she hit this person that she realized it was Habkirk whom she had hit. She and Habkirk stared at each other for a moment before she proceeded into her office. Plaintiff did not file a grievance, tell anyone about the incident, or offer any explanation to anyone regarding why she had struck Habkirk. In response to a question concerning whether the touching was “improper,” plaintiff did not characterize it as such. While Habkirk never took any formal action against plaintiff for striking him, and indeed testified that he could not even remember the incident, plaintiff claims that her formerly cordial relationship with Habkirk deteriorated as he became increasingly cold and distant. While plaintiff generally enjoyed a good employment relationship with defendant and its management initially, she asserted that she began to perceive changes in this relationship following the touching incident. After six years of being rated as either “outstanding” or “very good,” plaintiffs 1983 performance review was downgraded to “satisfactory.” It was also at this point that plaintiff applied for several job promotions, in each case unsuccessfully. The first position she applied for in 1983 was given to someone from outside the organization, despite a general inclination by defendant in favor of internal promotions. Two other promotion applications in 1983 were also rejected. Over the next three years, plaintiff applied unsuccessfully for four more promotions. Plaintiff was denied a total of eighteen promotion opportunities, including eleven during the period of 1983 through 1987. During this period, Habkirk always served in plaintiffs chain of command. Once at a dinner party with plaintiffs immediate supervisor, Robert Slaine, plaintiffs husband asked why plaintiff had not been promoted. Slaine responded that, in his opinion, it was because Habkirk did not like plaintiff. Slaine denied making this statement, and Habkirk denied telling Slaine that he disliked plaintiff. In 1986, Kent Cathcart was chosen by Habkirk as the new program director in plaintiffs facility. However, little changed for plaintiff because she failed to receive any of the next three promotions for which she applied. In December 1986, she was denied a promotion in favor of a contract employee with less seniority. Following this rejection in February 1987, plaintiff filed her first promotion-related grievance with the union representing defendant’s employees. When plaintiff was again denied a promotion in early 1987, this time in favor of a person from outside the company, she filed a second promotion-related grievance with the union in June 1987, alleging that the denial was due to discrimination based on her national origin and color. The grievance was forwarded to Cathcart, and was denied without investigation. Plaintiff next applied for a promotion in 1989, but was again denied. Plaintiff was denied seven promotions during the period of 1989 through 1997. Plaintiff claims that the “retaliation” against her for filing these grievances also took the form of poor overall treatment by defendant. Specifically, she claims that Cathcart, and the two supervisors who succeeded Cathcart after plaintiff was transferred to defendant’s First North facility in 1995, treated her “in a degrading and humiliating manner.” Plaintiff claims that Cathcart would criticize her for not participating in agency activities, but would then deny her requests to participate in meetings, conferences, and committees. In addition, plaintiff testified that Cathcart would reprimand her for being even two minutes late for work, but would let her coworkers “come and go as they pleased.” Plaintiff also testified that Cathcart once chastised her for going outside to look at a rainbow, but that her coworkers were routinely allowed to go outside for cigarette breaks on company time. Cathcart also refused to give her keys to the facility. Finally, when she moved to First North, plaintiff was given an office that was formerly a storage closet. The office was uncarpeted and had no windows. In addition, it was located next to a bathroom, forcing plaintiff to hear “people defecating and urinating” throughout the day. Plaintiff was assigned to this office despite her seventeen years of seniority and the availability of more desirable office spaces. Plaintiff also claims that Cathcart demonstrated a predisposition against “people of color” during the period that she was employed by defendant under his supervision. Specifically, plaintiff testified regarding four separate displays of this predisposition. First, when Cathcart learned that plaintiffs son had been accepted to medical school, he allegedly stated that “there are enough Indian doctors already.” Second, Cathcart allegedly complained about the accent of an Indian psychiatrist, stating that “these people have been here long enough, they ought to speak good English.” Third, Cathcart allegedly stated that he would not have hired an African-American nurse if a white candidate had been available. Finally, Cathcart allegedly used a racially derogatory term when referring to African-Americans. Cathcart denies making any of these statements. On -July 21,1995, plaintiff brought this action under the Civil Rights Act, MCL 37.2101 et seq., claiming that her promotion denials and poor treatment were due to national-origin discrimination and were in retaliation for engaging in activities protected by the aGt. Plaintiff originally claimed retaliatory discrimination based solely on the union grievance claiming national-origin discrimination. She later amended her complaint to allege that she was also retaliated against for opposing sexual harassment. Defendant denied the allegations and asserted that some of the allegations were barred by the three-year period of limitations. MCL 600.5805(1) and (10). Defendant moved for partial summary disposition on that basis, but the trial court denied the motion, citing the “continuing violations” doctrine adopted in Sumner. Following a three-week trial, the jury found that plaintiff was not discriminated against because of national origin or color. However, the jury also found that defendant had retaliated against plaintiff because she “opposed sexual harassment or because she filed a complaint or charge about being discriminated against.” The jury awarded plaintiff $250,000 in damages. Defendant filed a motion for judgment notwithstanding the verdict or a new trial. The trial court noted that “physical acts can convey a message better than words,” and that plaintiffs physical response to the touching by Habkirk was sufficient to inform defendant that she opposed Habkirk’s sexually harassing behavior. The trial court further held that sufficient evidence was presented to allow a reasonable juror to find a causal connection between plaintiffs striking Habkirk and her failure to be promoted. Because the evidence supported at least one of the retaliation theories, defendant’s motion was denied. In an unpublished opinion, the Court of Appeals affirmed the jury’s verdict. Unpublished opinion per curiam of the Court of Appeals, issued March 29, 2002 (Docket No. 223829). The Court of Appeals held that the “continuing violations” doctrine allowed the introduction of factual allegations going back more than three years before plaintiff filed her lawsuit and thus the statute of limitations was not a bar to the facts plaintiff presented to the jury. With regard to the merits, the Court of Appeals held that when plaintiff struck Habkirk, a reasonable juror could have concluded that she “ ‘raise[d] the specter,’ ” quoting Mitan v Neiman Marcus, 240 Mich App 679, 682; 613 NW2d 415 (2000), that she was opposing Habkirk’s sexual harassment. The Court of Appeals also determined that there was sufficient evidence to allow a reasonable juror to conclude that plaintiff established both of her retaliation claims. After this Court directed the parties to present oral argument on whether to grant leave to appeal or take other action permitted by MCR 7.302(G)(1), 469 Mich 983 (2003), and having heard such argument, we granted defendant’s application for leave to appeal, directing briefing regarding whether the “continuing violations” doctrine of Sumner was consistent with the statute of limitations, MCL 600.5805(1). 469 Mich 1042 (2004). II. STANDARD OF REVIEW The denial of a motion for judgment notwithstanding the verdict is subject to review de novo. Sniecinski v Blue Cross & Blue Shield of Michigan, 469 Mich 124, 131; 666 NW2d 186 (2003). Reversal is permitted only if the evidence, while viewed in a light most favorable to plaintiff, fails to establish a claim as a matter of law. Wilkinson v Lee, 463 Mich 388, 391; 617 NW2d 305 (2000). Whether the “continuing violations” doctrine is consistent with MCL 600.5805(1) and (10) is a question of law that we review de novo. Jenkins v Patel, 471 Mich 158, 162; 684 NW2d 346 (2004). III. ANALYSIS The issue in this case is not whether plaintiff was treated poorly or insensitively by defendant. Nor is it whether defendant “retaliated” against plaintiff for her conduct in hitting Habkirk. Instead, the issue is whether defendant retaliated against plaintiff specifically for conduct on her part protected by the Civil Rights Act. MCL 37.2701 provides, in pertinent part: Two or more persons shall not conspire to, or a person shall not: (a) Retaliate or discriminate against a person because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act. To establish a prima facie case of retaliation, a plaintiff must show: (1) that he engaged in a protected activity; (2) that this was known by the defendant; (3) that the defendant took an employment action adverse to the plaintiff; and (4) that there was a causal connection between the protected activity and the adverse employment action. [DeFlaviis v Lord & Taylor, Inc, 223 Mich App 432, 436; 566 NW2d 661 (1997).] A. RETALIATION BASED ON OPPOSITION TO SEXUAL HARASSMENT Plaintiffs first theory is that defendant retaliated against her because she opposed Habkirk’s sexual harassment. At “around the same time” that plaintiff allegedly observed sexually harassing behavior by Habkirk toward female employees, she felt someone touch her on the ba

Mary Sullivan vs. Liberty Mutual Insurance Company. Suffolk. December 7, 2004. April 15, 2005. Present: Marshall, C.J., Grbaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Anti-Discrimination Law, Employment, Sex, Age, Prima facie case. Employment, Discrimination. Discussion of the standard of review when an employer seeks to obtain summary judgment in an action alleging employment discrimination. [38-39] Discussion of the elements of a claim of employment discrimination. [39-40] This court concluded that in an action alleging discrimination in employment in a situation in which the plaintiff has been laid off or otherwise harmed during a reduction in force, the plaintiff may satisfy the fourth element of her prima facie case (i.e., that her employer sought to fill her position by hiring another individual with qualifications similar to hers) by producing some evidence that her layoff occurred in circumstances that would raise a reasonable inference of unlawful discrimination. [40-46] In a civil action alleging sex and age discrimination in employment, the plaintiff established a prima facie case of sex discrimination, where there was undisputed, admissible evidence that the employer retained male attorneys with the same job classification as the plaintiff, who had been rated lower than she had in the last performance evaluation conducted before a reduction in force [46-49]; likewise, the plaintiff established a prima facie case of age discrimination, where the employer retained lower-rated, younger attorneys with the same job classification as the plaintiff [49-50]; however, the employer articulated a credible nondiscriminatory reason for its choice to terminate the plaintiff by demonstrating that it was engaged in a legitimate reduction in force and chose to terminate the plaintiff on the basis of a history of sub-par performance evaluations combined with recent serious complaints from clients about her handling of work [50-54], and the plaintiff failed to establish with credible evidence that the employer’s proffered reasons for her layoff were merely a pretext for a true intent of sex or age discrimination [54-57]. Civil action commenced in the Superior Court Department on May 4, 2000. The case was heard by Patrick J. King, J., on a motion for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. William. Royal, Jr., for the plaintiff. Lisa J. Damon (Brigitte M. Dujfy with her) for the defendant. Martin J. Newhouse, Andrew R. Grainger, & Benjamin G. Robbins, for New England Legal Foundation & another, amici curiae, submitted a brief. Marshall, C.J. The plaintiff, Mary Sullivan, challenges a Superior Court judge’s order granting summary judgment to the defendant, Liberty Mutual Insurance Company (Liberty), on Sullivan’s sex and age discrimination in employment claims brought pursuant to the antidiscrimination statute, G. L. c. 151B. The case arose from Liberty’s implementation in 1999 of a reduction in force in which it permanently discharged eleven employees in its New England region legal department, including Sullivan. Sullivan appealed. We transferred the case here on our own motion to consider the elements for establishing a prima facie case of discrimination under G. L. c. 151B, when the challenged employment action arises in the context of a reduction in force. We affirm the order granting summary judgment, but for reasons somewhat different from those of the motion judge. 1. Background. We briefly summarize the basic facts in their light most favorable to Sullivan, the nonmoving party, reserving additional facts for later discussion. In 1986, Sullivan began working for Liberty as an attorney representing the company’s insureds, moving to its Boston office in 1988. In June, 1999, precipitated (according to Liberty) by a decline in its business and a recent merger, Liberty implemented a reduction in force. In the months before implementation, Liberty first imposed a hiring freeze and then requested its managerial staff to determine whether each of Liberty’s offices was appropriately staffed. Kenneth A. Latronico, Liberty’s general attorney for its New England region, was charged with analyzing what Liberty referred to as “productivity” and “capacity” for all offices within the region. After receiving information ffom each office, Latronico determined there was no overstaffing in the Connecticut, New Hampshire, or Canadian offices, but concluded there was overstaffing in the five offices in eastern Massachusetts (Andover, Bedford, Boston, Brockton, and Worcester). He recommended, among other actions, a ten per cent staff reduction in eastern Massachusetts and the eventual closure of the Bedford office by relocating its remaining attorneys to other offices. After further consultation with senior management, Latronico then solicited recommendations from each office as to which attorneys to lay off. Latronico himself made the layoff recommendations for the Boston office; he recommended the layoff of Steven Hope, David Hartigan, and Sullivan, in that order. On June 15, 1999, Liberty discharged Sullivan and five other attorneys employed in the New England region, including Hope and Hartigan. Three of the attorneys who were laid off (including Sullivan) worked in the Boston office, two were from the Bedford office, and one was from the Worcester office. Three of the six attorneys terminated were women. Five of the six were over forty years of age; the sixth was thirty-eight years old. At the time of her layoff, Sullivan was forty-nine years old. La-tronico transferred the cases on which Sullivan had been working to six other attorneys, five of whom were men, all of whom were substantially younger than Sullivan. During her twelve years with Liberty, Sullivan had received various performance evaluations, as had other attorneys employed by Liberty. While Sullivan’s reviews were not the highest when compared to other attorneys in the Boston office, her reviews were generally positive. On no occasion had she received an over-all evaluation falling below “meets expectations,” although beginning as early as 1992, Liberty had noted some concerns with Sullivan’s lack of responsiveness to clients, and, later, her “collegiality” and “human relations skills,” especially concerning her interactions with clerical staff. On December 15, 1999, Sullivan filed a charge of discrimination with the Massachusetts Commission Against Discrimination, alleging that she was terminated because of her sex and age in violation of G. L. c. 15IB, § 4. On May 4, 2000, Sullivan commenced this action in the Superior Court against Liberty. See G. L. c. 151B, § 5. Over the following twenty months, the parties engaged in discovery, which included twelve depositions and Liberty’s production of over 2,000 pages of documents. On December 20, 2001, Liberty moved for summary judgment on all of Sullivan’s claims, which Sullivan opposed. A judge in the Superior Court allowed Liberty’s motion, and a different judge subsequently denied Sullivan’s motion for reconsideration. Sullivan timely appealed from the summary judgment as well as from an order granting Liberty’s emergency motion to strike portions of Sullivan’s affidavit, and an earlier order denying her leave to proceed as “Jane Doe.” 2. Standard of review. In cases involving claims of employment discrimination, a defendant employer faces a heavy burden if it seeks to obtain summary judgment: summary judgment is disfavored in discrimination cases based on disparate treatment because the question of the employer’s state of mind (discriminatory motive) is “elusive and rarely is established by other than circumstantial evidence.” Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 439 (1995), citing Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 137 (1976). This requires “the jury to weigh the credibility of conflicting explanations” of the adverse decision. Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 440. In reviewing an order granting summary judgment in such cases, we of course apply our traditional test and consider the facts in their light most favorable to the nonmov-ing party, drawing all reasonable inferences in her favor. See Mass. R. Civ. R 56 (c), 365 Mass. 824 (1974); Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 438. We may also make “an independent compilation of the relevant facts to frame the ultimate legal question whether summary judgment is appropriate.” Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 123 n.1 (1997). While the standard of review is the same as in all other cases, Liberty, as the moving party, “has the burden of affirmatively demonstrating the absence of a genuine issue of material fact on every relevant issue, even if [Liberty] would not have the burden on an issue if the case were to go to trial.” Id. at 127. Liberty may satisfy its burden by demonstrating that Sullivan “has no reasonable expectation of proving an essential element of the case at trial.” Id. And although summary judgment is disfavored in employment discrimination cases of disparate treatment, we have upheld summary judgment in favor of an employer where “the plaintiff is unable to offer admissible evidence of the defendant’s discriminatory intent, motive, or state of mind sufficient to carry the plaintiff’s burdens and support a judgment in the plaintiff’s favor.” Id., citing Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 440, and cases cited. We turn now to consider the record in light of these standards, beginning with an overview of the legal requirements imposed on both Sullivan and Liberty in this reduction in force case. 3. Claims of discrimination. We have construed G. L. c. 151B as containing four elements an employee must prove to prevail on a claim of discrimination in employment: membership in a protected class, harm, discriminatory animus, and causation. See Lipchitz v. Raytheon Co., 434 Mass. 493, 502 (2001). In cases such as this, where the claim is one of discrimination because of sex and age, the first two elements are seldom disputed. Rather, the conflict arises as to the latter two elements. Direct evidence of those elements (discriminatory animus and causation) rarely exists, see Wynn & Wynn, P.C. v. Massachusetts Comm’n Against Discrimination, 431 Mass. 655, 665 (2000), and a plaintiff may therefore establish one or both by indirect or circumstantial evidence using the familiar three-stage, burden-shifting paradigm first set out in McDonnell Dou glas Corp. v. Green, 411 U.S. 792, 802-805 (1973) (McDonnell Douglas). The three-stage order of proof “does not circumvent the plaintiff’s burden to prove all the essential elements of a discrimination claim, but does permit the jury to infer discriminatory animus and causation from proof that an employer has advanced a false reason for the adverse employment decision, in the absence of direct evidence that the actual motivation was discrimination.” Knight v. Avon Prods., Inc., 438 Mass. 413, 422 (2003). See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 116 (2000), citing McDonnell Douglas, supra at 802. As we shall explain later, Sullivan has not produced any direct evidence of either age or sex discrimination. See note 24, infra. We confine our discussion to considering whether she has adduced sufficient indirect or circumstantial evidence to survive summary judgment. 4. The prima facie case. Under the McDonnell Douglas formulation, Sullivan bears the initial burden of establishing by the preponderance of the evidence a prima facie case of discrimination. Her burden is not onerous. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). See also Currier v. United Techs. Corp., 393 F.3d 246, 254 (1st Cir. 2004). Sullivan must simply produce sufficient evidence that Liberty’s actions, “if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978). As the Supreme Court noted in Texas Dep’t of Community Affairs v. Burdine, supra at 253-254, the prima facie case “serves an important function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff’s rejection.” For this reason, if she establishes a prima facie case, Sullivan is entitled to a “legally mandatory, rebuttable presumption” that Liberty unlawfully terminated her, and she will prevail on her claims if Liberty fails to satisfy its burden at the second stage of the framework. Id. at 254 n.7. Generally, a plaintiff who is terminated from her position establishes a prima facie case of discrimination by producing evidence that she is a member of a class protected by G. L. c. 151B; she performed her job at an acceptable level; she was terminated; and her employer sought to fill her position by hiring another individual with qualifications similar to hers. See Abramian v. President & Fellows of Harvard College, supra. Liberty does not dispute that Sullivan satisfies the first three elements of this formulation of the prima facie case on each of her discrimination claims. Indeed it is likely that in a reduction in force case every plaintiff claiming sex or age discrimination can easily satisfy the first three elements of the prima facie case. The first and third elements are straightforward. As for the second element, in a reduction of force case the discharge is not the result of the employer concluding that an individual is not performing well: presumably before layoffs, every plaintiff in such a case is performing “at an acceptable level” or she would have been discharged before a downsizing occurs. Rather, the dispute will almost always concern the fourth element, and therein lies the difficulty. As generally formulated, the fourth element is nonsensical in a reduction in force case: the plaintiff is not replaced, nor does her employer “seek to fill” the position, for the very purpose of a workforce reorganization is generally to reduce the number of employees. See Lewis v. Boston, 321 F.3d 207, 214 n.6 (1st Cir. 2003) (in typical reduction of force case fourth element is “unworkable because the plaintiff’s position no longer exists”). Yet it cannot be that every individual in the workforce who falls within some protected class (the overwhelming majority of employees) can establish a prima facie case of discrimination simply because she is laid off during a reduction in force. At the same time, because an employer seeks to reduce its workforce does not mean that it is free to make its employment decisions on impermissible grounds: “even during a legitimate reorganization or workforce reduction, an employer may not dismiss employees for unlawful discriminatory reasons.” Maresco v. Evans Chemetics, 964 F.2d 106, 111 (2d Cir. 1992), quoting Hagelthorn v. Kennecott Corp., 710 F.2d 76, 81 (2d Cir. 1983). This case presents our first opportunity to consider how the fourth element of the prima facie case must be varied so that a plaintiff who is laid off (or otherwise harmed) during a reduction in force may establish a prima facie case of unlawful discrimination. See Abramian v. President & Fellows of Harvard College, supra (elements of prima facie case “may vary depending on the specific facts of the case”). We begin by examining how other courts have resolved the issue. Some have concluded that the fourth element “should be ‘relaxed’ when the employee’s layoff occurred in the context of a reduction in force.” Marzano v. Computer Sciences Corp., 91 F.3d 497, 503 (3d Cir. 1996). These courts permit a plaintiff to satisfy that element merely by showing that “other unprotected workers were retained.” Id. at 506, quoting DiBiase v. Smith-Kline Beecham Corp., 48 F.3d 719, 723 n.2 (3d Cir.), cert. denied, 516 U.S. 916 (1995). Accord Coburn v. Pan Am. World Airways, Inc., 711 F.2d 339, 343 (D.C. Cir.), cert. denied, 464 U.S. 994 (1983); Baker v. National State Bank, 312 N.J. Super. 268, 289-290 (App. Div. 1998), aff’d, 161 N.J. 220 (1999). Under that formulation Sullivan would establish a prima facie case by showing, in her sex discrimination claim, that a man was retained during the reduction in force and showing, in her age discrimination claim, that an employee at least five years younger than she was retained. Cf. Knight v. Avon Prods., Inc., supra at 424-425 (age disparity of five years or more between discharged plaintiff and younger replacement satisfies fourth element in age discrimination case). We reject that formulation, as such evidence is insufficient to establish a “legally mandatory, rebuttable presumption” of unlawful discrimination. Texas Dep’t of Community Affairs v. Burdine, supra at 254 n.7. Other courts have advanced different formulations, each seeking to mesh more satisfactorily evidence establishing the prima facie case with entitlement by the plaintiff to the presumption of discrimination. The United States Court of Appeals for the First Circuit permits a plaintiff to satisfy the fourth element in an age discrimination case through a narrower, more specific showing that the employer retained unprotected or younger workers “in the same position” as the plaintiff (emphasis added). Currier v. United Techs. Corp., supra at 254. This is consistent with the majority view that permits a plaintiff to satisfy the fourth element by producing some evidence “from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue,” Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996), quoting Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 812 (5th Cir. 1991), or some similar formulation. Cf., e.g., Currier v. United Techs. Corp., supra (evidence that employer “otherwise did not treat age neutrally” in terminating plaintiff); Fast v. Southern Union Co., 149 F.3d 885, 890 (8th Cir. 1998) (evidence that age was “a factor in the employer’s decision to terminate” plaintiff); Maresco v. Evans Chemetics, supra at 110-111 (evidence that plaintiff was discharged in circumstances “that gave rise to an inference of discrimination”); Barnes v. GenCorp., Inc., 896 F.2d 1457, 1465 (6th Cir.), cert. denied, 498 U.S. 878 (1990) (some evidence “tending to indicate” that employer “singled out the plaintiff for discharge for impermissible reasons”). As we shall explain, a formulation along these lines is more satisfactory. The purpose of the prima facie case is to identify those circumstances where the employer’s actions, “if left unexplained, are more likely than not based on unlawful discrimination.” Lewis v. Boston, supra at 216. Stated differently, in the typical case where the plaintiff is not hired or is fired, the existing formulation of the prima facie case “ ‘eliminates the most common nondiscriminatory reasons for the plaintiff’s rejection,’ which are lack of competence and lack of job availability, and thereby creates a presumption of discrimination.” Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 116 (2000), quoting Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995). In contrast, in a reduction in force case, “the most obvious explanations for the discharge of any one employee are lower proficiency and/or random chance.” Barnes v. GenCorp., Inc., supra at 1466. When these “most common” nondiscriminatory reasons for the plaintiff’s layoff have been eliminated as possible reasons for the employer’s actions, the presumption of discrimination is established, for “it is more likely than not the employer, who we generally assume acts only with some reason, based [its] decision on an impermissible consideration.” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978). Because there must be “at least a logical connection between each element of th