Discrimination Cases

DAVID B. MILLER, Plaintiff v. BARBER-SCOTIA COLLEGE, Defendant No. COA03-292 (Filed 7 December 2004) 1. Civil Rights— dismissed college professor — burden of proof not carried The trial court erred by not dismissing a claim for racial discrimination under 42 U.S.C. § 1981 by a college professor who was dismissed after a dispute with the administration over changing a grade. Plaintiff did not meet his burden of showing that defendant’s stated reason for its action was a pretext. 2. Civil Rights— dismissed college professor — punitive damages — aggravated conduct — evidence insufficient Assuming, that the trial court properly denied defendant’s motions to dismiss (which it did not) in a claim of racial discrimination by a dismissed college professor, the trial court erred by not granting defendant’s motions for a directed verdict and a j.n.o.v. on punitive damages. The jury made no finding of aggravated conduct and plaintiff’s testimony standing alone is not sufficient, as its probative value is slight and it did not address whether defendant knew that its purported actions were illegal. Judge Hudson concurring in part and dissenting in part. Appeal by defendant from judgment entered 20 March 2001 by Judge Donna H. Johnson in Cabarrus County District Court. Heard in the Court of Appeals 20 November 2003. U. Wilfred Nwauwa for plaintiff-appellee. Plummer, Belo & Russell, PA, by Vernon A. Russell, for defendant-appellant. STEELMAN, Judge. Defendant, Barber-Scotia College, appeals a trial court order denying its motions for directed verdict and judgment notwithstanding the verdict. For the reasons discussed herein, we vacate the judgment of the trial court and reach only defendant’s first two assignments of error. Plaintiff, David B. Miller, was a professor at defendant Barber-Scotia College, teaching sociology, criminal justice, and anthropology. In February 1997, plaintiff requested that defendant’s registrar change a grade of Mr. Jones, a student, who had taken a course taught by plaintiff. Once a final grade for a student has been submitted by a professor to defendant, it can only be changed in accordance with a specific policy adopted by defendant. This policy allows for a grade to be changed in only four situations: (1) an incorrectly computed grade; (2) an incorrect transcription of a grade; (3) an unintentional omission of some component of a student’s work; and (4) a successful grade appeal. Any request for a grade change must be in writing and must state the reason for the grade change. The grade change form must be approved by the professor’s division chairperson and then by the dean for academic affairs before it is forwarded to the registrar of the college. Plaintiff initially submitted a grade change request for Mr. Jones which did not state a reason for the grade change. This request was rejected by Mr. James Ramsey, dean of academic affairs for defendant. Plaintiff submitted the grade change request for Mr. Jones a second time without stating a reason for the requested change. Again, Mr. Ramsey denied the request. Mr. Jones’s grade change request was submitted a third time. A reason was stated on the third request but was not one of the four situations set forth in defendant’s grade change policy. This last grade change request was approved by plaintiff’s division chairperson and immediate supervisor, Dr. Babafemi Elufiede, but was again rejected by Mr. Ramsey. The record does not indicate whether Dr. Elufiede approved the first two grade change requests. Following a meeting with plaintiff to discuss the rejected grade change requests for Mr. Jones, Mr. Ramsey sent a memo to defendant’s president recommending that plaintiff be given a one year terminal contract based upon his disregard of college policies on changing grades. This memo was dated 22 April 1997. On 23 April 1997 defendant tendered an employment contract to plaintiff for the next school year. The contract contained a provision stating that it was a “terminal contract” which would not be renewed by defendant. Plaintiff filed a complaint against defendant alleging breach of contract and racial discrimination under 42 U.S.C. § 1981 (2004). Plaintiff alleged that his contract was not renewed because of his race (white). At trial, a jury returned a verdict finding that defendant discriminated against plaintiff based upon his race and awarded plaintiff $68,495.00 in compensatory damages plus interest and $7,500.00 in punitive damages. The jury found that there was no contract of employment between plaintiff and defendant beyond the 1997-1998 school year. Defendant appeals. We note that due to a failure of the courtroom recording system, there is no transcript of the trial proceedings. This case is therefore reviewed based upon the parties’ summation of the evidence contained in the record on appeal. In its first assignment of error, defendant argues that the trial court erred by failing to dismiss plaintiffs claim for racial discrimination under 42 U.S.C. § 1981 at the close of plaintiffs evidence and at the close of all the evidence, and by denying its motion for judgment notwithstanding the verdict. We agree. The standard of review for the denial of motions for directed verdict and judgment notwithstanding the verdict is identical. Tomika Invs., Inc. v. Macedonia True Vine Pentecostal Holiness Church of God, Inc., 136 N.C. App. 493, 498, 524 S.E.2d 591, 595 (2000). Therefore, we consider these arguments together. The evidence must be viewed in the light most favorable to the nonmovant, giving him the benefit of every reasonable inference, in determining whether the evidence was sufficient to go to the jury. Hawley v. Cash, 155 N.C. App. 580, 582, 574 S.E.2d 684, 686 (2002). A “directed verdict is mandated where the facts and the law will reasonably support only one conclusion.” McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 356, 112 L. Ed. 2d 866, 111 S. Ct. 807 (1991). “To defeat an employer’s motion for [judgment as a matter of law] as to liability in a discrimination suit, the plaintiff must present substantial evidence to support as a reasonable probability, rather than as a mere possibility, that her employer discriminated against her because of a protected characteristic.” DeJarnette v. Corning, Inc., 133 F.3d 293, 298 (4th Cir. 1998). “While we are compelled to accord the utmost respect to jury verdicts and tread gingerly in reviewing them, we are not a rubber stamp convened merely to endorse the conclusions of the jury, but rather have a duty to reverse the [jury’s verdict] if the evidence cannot support it.” Price v. City of Charlotte, 93 F.3d 1241, 1250 (4th Cir. 1996). Plaintiff’s claim of racial discrimination was based solely upon the theory of disparate treatment. In order to prevail against a motion for a directed verdict, or a judgment notwithstanding the verdict, plaintiff must meet its burden of persuasion as initially established in the Title VII context by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 677 (1973). DeJarnette v. Corning, Inc., 133 F.3d 293 (4th Cir., 1998). The test is the same under Title VII and 42 U.S.C. § 1981. Love-Lane v. Martin, 355 F.3d 766, 786 (4th Cir., 2004). In order to satisfy his burden under the McDonnell Douglas test ■ “plaintiff must first establish a prima facie case of discrimination, the defendant may respond by producing evidence that it acted with a legitimate, nondiscriminatory reason, and then the plaintiff may adduce evidence showing that the defendant’s proffered reason was mere pretext and that race was the real reason for the defendant’s less favorable treatment of the plaintiff.” Williams v. Staples, Inc., 372 F.3d 662, 667 (4th Cir., 2004) (citation omitted). Assuming arguendo that plaintiff proved a prima facie case of racial discrimination, defendant then had a burden of production under the McDonnell Douglas line of cases to show a legitimate, nondiscriminatory reason for the adverse action against the employee. Williams, 372 F.3d 662, 668. If the employer satisfies its burden, the “presumption of discrimination raised by the prima facie case is rebutted and drops from the case.” Williams, 372 F.3d at 669. The “sole remaining issue for our consideration becomes whether [plaintiff] can prove by a preponderance of the evidence” that defendant’s stated reason for its action was a pretext to hide racial discrimination. Id.; Mereish v. Walker, 359 F.3d 330, 336 (4th Cir., 2004). Appellant can meet its burden of proving pretext “either by showing that [defendant’s] explanation is ‘unworthy of credence’ or by offering other forms of circumstantial evidence sufficiently probative of . . . discrimination.” Id. “ ‘The ultimate question is whether the employer intentionally discriminated, and proof that the employer’s proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that [plaintiff’s] proffered reason ... is correct.’ It is not enough to disbelieve the defendants here; the fact-finder must believe [plaintiff’s] explanation of intentional race discrimination.” Love-Lane, 355 F.3d at 788. A plaintiff’s own assertions of discrimination are insufficient to overcome an employer’s legitimate, nondiscriminatory reason for discharge. Williams v. Cerberonics, Inc., 871 F.2d 452, 456 (4th Cir., 1989). This is because “It is the perception of the decision maker which is relevant, not the self-assessment of the plaintiff.” King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir., 2003), cert denied, 157 L. Ed. 2d 742, 124 S. Ct. 922 (U.S. 2003) (quoting Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 960-61 (4th Cir. 1996)). “At the end, the burden remains on [plaintiff] to demonstrate that the reasons offered by [defendant] are a pretext for discrimination, or stated differently, that the [defendant’s] reason is unworthy of credence to the extent that it will permit the trier of fact to infer the ultimate fact of intentional discrimination.” Dugan v. Albemarle County Sch. Bd., 293 F.3d 716, 723 (4th Cir., 2002) (citation omitted). In the instant case, defendant met its burden by proffering a legitimate, nondiscriminatory reason for plaintiffs discharge, namely that plaintiff failed to follow College policy when requesting the grade changes for Mr. Jones and did not meet the college’s legitimate expectations by failing to understand the potential damage to students and the College for giving unearned grades. The record includes a memorandum from Mr. Ramsey to Dr. Sammie Potts, president of the College, describing plaintiff’s conduct, action taken thus far, and future recommendations. In the memorandum, Ramsey indicated that plaintiff “disregarded College Policy as stated in the College Catalog on numerous occasions relative to the changing of grades.” Mr. Ramsey further noted: “In discussions with [plaintiff], it is my feeling that he does not understand the [damage] that is being done to students who receive unearned grades and he does not understand the potential damages to the institution.” Dr. Potts agreed with Mr. Ramsey’s recommendation, and subsequently offered plaintiff the terminal contract. While Mr. Ramsey had only been in employment with the College for a short time prior to plaintiff’s termination, he was hired out of retirement as Academic Dean to strengthen the academic integrity of the College and to effectuate changes in college policy. Therefore, it was proper for Mr. Ramsey to observe and conclude that plaintiff did not conform to the legitimate academic expectations of the College. Because defendant met its burden of production in articulating a non-discriminatory reason for its actions, the presumption of discrimination created by plaintiff’s prima facie case dissolved and plaintiff was required to meet his burden of persuasion that defendant’s proffered reason was mere pretext. Williams, 372 F.3d at 669. Plaintiff offered his own allegations that Mr. Ramsey acted with discriminatory intent (stating that he felt he was fired because of his race). This evidence, coming as it does from plaintiff, is “close to irrelevant.” Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir., 2000). The only other evidence presented by plaintiff pertinent to the issue was the testimony of plaintiff’s immediate supervisor, Dr. Elufiede. Dr. Elufiede, who is black, testified that if plaintiff violated defendant’s policies by recommending the grade change then he also violated it by approving the request. Plaintiff submitted a grade change request form for Mr. Jones on three separate occasions. Mr. Ramsey declined to approve each of the requests. It is unclear from the record whether Dr. Elufiede approved the first two grade change requests. However, it is clear that Dr. Elufiede approved the third grade change request and forwarded it to Mr. Ramsey, his direct supervisor. Dr. Elufiede was not given a terminal contract. Plaintiff and Dr. Elufiede were not similarly situated, and thus •any disparate treatment between Dr. Elufiede and plaintiff does not tend to prove discrimination by defendant. See Disher v. Weaver, 308 F. Supp. 2d 614, 620 (M.D.N.C., 2004). Foremost, Dr. Elufiede was plaintiff’s immediate supervisor. He was the chair of the social sciences department, and plaintiff was only a professor in that department. They did not share the same immediate supervisor, did not have the same job responsibilities or job description, and did not have equivalent experience. Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir., 2002). Furthermore, it was not Dr. Elufiede who initiated the grade change requests on three separate occasions without valid reasons. Rather, he merely reviewed and approved one of them as plaintiff’s supervisor. The conduct with respect to the grade change request by plaintiff and Dr. Elufiede was not substantially similar. These differences in Dr. Elufiede’s and plaintiff’s job duties and conduct are such that any difference in the treatment of the two does not support an assertion of discrimination. This circumstantial evidence is simply too weak and speculative to establish that defendant’s stated legitimate reasons for offering plaintiff a terminal contract were pretextual. Thus, defendant was entitled to a directed verdict dismissing plaintiff’s claim for discrimination. Reeves, 530 U.S. at 148-49, 147 L. Ed. 2d at 120. In its second assignment of error, defendant argues that the trial court erred in denying its motion to dismiss plaintiff’s claims for punitive damages. We agree. Plaintiff’s claim for punitive damages was based solely upon the alleged racial discrimination by defendant. As discussed above, this claim should have been dismissed by the trial court and as a result we hold that the plaintiff’s claim for punitive damages, too, should have been dismissed. Further, assuming arguendo that the trial court properly denied defendant’s motions on the issue of liability, we hold that the trial court erred in failing to grant defendant’s motions for directed verdict and judgment notwithstanding the verdict with respect to the issue of punitive damages. After determining that defendant had discriminated against plaintiff, the jury awarded plaintiff $7,500.00 in punitive damages. In order for a plaintiff to sustain an award of punitive damages pursuant to § 1981 he must prove some aggravating conduct beyond that needed to sustain a claim of discrimination under the statute. Smith v. Wade, 461 U.S. 30, 51, 75 L. Ed. 2d 632, 648 (1983); Lowery v. Circuit City Stores, Inc., 206 F.3d 431, 441 (4th Cir., 2000); Rowlett v. Anheuser-Busch, 832 F.2d 194 (1st Cir. 1987); Caperci v. Huntoon, 397 F.2d 799, 801 (1st Cir., 1968) (federal common law applies); Tillman v. Wheaton-Haven Recreation Ass’n, 367 F. Supp. 860, 864 (D. Md., 1973). “[M]ere proof of a violation of the statute is not enough to recover punitive damages. There must also be proof that the defendant, in violating the letter of section 1981, exhibited oppression, malice, gross negligence, willful or wanton misconduct, or reckless disregard of the plaintiff’s civil rights.” James D. Ghiardi et al., Punitive Damages L. & Prac. § 15.07 (1999). In the case of Kolstad v. ADA, 527 U.S. 526, 144 L. Ed. 2d 494 (1999), the United States Supreme Court analyzed what aggravated conduct plaintiff must prove under Title VII to entitle it to punitive damages pursuant to 42 U.S.C. § 1981a (2004). The Fourth Circuit has determined that the Kolstad test is applicable to cases brought under 42 U.S.C. § 1981 as well as those brought under Title VII. Lowery, 206 F.3d at 441 (“Thus, any case law construing the punitive damages standard set forth in § 1981a, for example Kolstad, is equally applicable to clarify the common law punitive damages standard with respect to a § 1981 claim.”). Following Kolstad, the Lowery Court held that in order to recover punitive damages under 42 U.S.C. § 1981, the plaintiff must prove that defendant “ ‘engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to [plaintiff’s] federally protected rights,’ 42 U.S.C. § 1981a(b)(l),” Lowery, 206 F.3d at 441. In order for plaintiff to prove this aggravated conduct, he must not only prove that defendant discriminated, but that it discriminated “ ‘in the face of a perceived risk that its actions will violate federal law.’ ” Id. at 442 (quoting Kolstad, 527 U.S. at 536). The jury in the instant case made no finding of aggravated conduct on the part of defendant. Our review of the record fails to uncover any evidence, beyond two sentences summarizing plaintiff’s personal feelings on the matter (“Mr. Miller thinks that he was single [sic] out for dismissal because of his race (white). He feels the only explanation for his dismissal is that Mr. Ramsey (black) had innate feelings toward whites.”), that would support a finding of the required aggravated conduct. Plaintiff fails in meeting his burden because, even assuming arguendo that plaintiff has proved discrimination, he has not offered any evidence that defendant acted with the knowledge that its conduct was in violation of federal law. Plaintiffs testimony standing alone is not sufficient, as its probative weight is slight (see King v. Rumsfeld, 328 F.3d 145, 150 (4th Cir., 2003); Gairola v. Virginia Dep’t of General Services, 753 F.2d 1281, 1288 n.4 (4th Cir., 1985)), and it does not address the issue of defendant’s knowledge that its purported actions were illegal. Thus, even assuming argu-endo that plaintiff proved his case of discrimination under 42 U.S.C. § 1981, having offered no evidence of aggravated conduct, defendant’s motion for directed verdict on the issue of punitive damages should have been granted. VACATED AND REMANDED. Judge TYSON concurs. Judge HUDSON dissents in part, concurs in part. HUDSON, Judge, concurring in part and dissenting in part. Defendant appeals from the denial of a motion for judgment not withstanding the verdict (JNOV), following a jury verdict in plaintiff’s favor. Because I believe the majority has misapplied the legal precedents and imposed burdens on plaintiff that the law does not require, I dissent with respect to the primary claim of employment discrimination. I concur, however, with the disposition of the issue of punitive damages. “In considering a motion for JNOV, the trial court is to consider all evidence in the light most favorable to the party opposing the motion; the nonmovant is to be given the benefit of every reasonable inference that legitimately may be drawn from the evidence; and contradictions must be resolved in the nonmovant’s favor.” Tomika Invs., Inc. v. Macedonia True Vine Pent. Holiness Ch. of God, 136 N.C. App. 493, 498, 524 S.E.2d 591, 595 (2000). The standard of review for the denial of a JNOV is whether the evidence was sufficient to go to the jury. Id. “The hurdle is high for the moving party as the motion should be d

BAGERIS v BRANDON TOWNSHIP Docket No. 249008. Submitted September 8, 2004, at Detroit. Decided October 21, 2004, at 9:00 a.m. Christopher Bageris brought an action in the Oakland Circuit Court against Brandon Township, alleging a failure to accommodate a disability under the Persons with Disabilities Civil Rights Act, MCL 37.1101 et seq. The plaintiff, a part-time firefighter, had applied for full-time employment, but his application was denied after other applicants outscored him on examinations that included a written portion. The court, John J. McDonald, J., granted summary disposition for the defendant, determining that, although Bageris had provided his employer with a written notice of his request for an accommodation for disability before the examination, MCL 37.1210(18), the notice was ineffective because it did not describe any reason or disability requiring accommodation. The plaintiff appealed. The Court of Appeals held: MCL 37.1210(18) requires one with a disability who requests an accommodation to file a written notice of the need for the accommodation within 182 days after the person with the disability knew or reasonably should have known that an accommodation was needed. The plaintiff was able to do his fire-fighting tasks without accommodation, but claimed to need a reader to help with the examination process because of his dyslexia. In this sort of discrimination case, to be liable, the employer must have a certain level of awareness regarding the plaintiffs disability because that knowledge enables the employer to know what sort of accommodation or remedial action is appropriate. Without some specified showing of the reason for the requested accommodation, an employer cannot properly determine whether to grant the requested accommodation. Affirmed. Civil Rights — Persons With Disabilities Civil Rights Act — Accommodation by Employer — Notice. Notice of a disability by a person seeking accommodation by his employer must specify the reason for the requested accommodation, without which the employer cannot properly determine whether to provide the requested accommodation (MCL 37.1210E18]). Law Offices of Frank J. Kokenakes, PLC (by Frank J. Kokenakes), for the plaintiff. Johnson, Rosati, LaBarge, Aseltyne & Field, EC. (by Marcia L. Howe, Laura S. Amtsbuechler, and Carlito H. Young), for the defendant. Before: SCHUETTE, EJ., and BANDSTRA and METER, JJ. BANDSTRA, J. In this claim for failure to accommodate disability, plaintiff appeals as of right the trial court order granting summary disposition in favor of defendant pursuant to MCR 2.116(0(10). We conclude that plaintiff failed to adequately inform defendant of his alleged disability, resulting in no duty to accommodate. We affirm. BASIC FACTS Plaintiff began working with defendant’s fire department as a part-time firefighter in 1997. In December 2001, plaintiff applied for one of three full-time firefighter/paramedic positions that became available. The selection process involved a three-part examination consisting of practical, written, and oral portions. Plaintiff scored seventh, among as many applicants, with a combined test score of seventy-one percent. After the top applicant withdrew his name from contention, the remaining top three applicants with the highest combined scores (ranging from eighty-three to ninety-one percent) were offered the full-time positions. Plaintiffs complaint alleged that defendant violated Michigan’s Persons With Disabilities Civil Rights Act (PWDCRA), MCL 37.1101 et seq., by failing to provide a reasonable accommodation to plaintiff during the written portion of the examination. Specifically, plaintiff alleged that he suffers from dyslexia and that, before the written examination, he informed Fire Department Chief Robert McArthur that he needed a “reader” to assist him during the examination. Plaintiff claims that, as a result of defendant’s failure to provide the requested accommodation, he did not do well enough to be awarded a position. At his deposition, plaintiff testified that he was first diagnosed with dyslexia in junior high school. However, the report from the Livonia Public Schools regarding plaintiffs condition does not specifically state that plaintiff suffered from dyslexia. It indicates only that plaintiff suffered from a “learning disability.” Plaintiff testified that, despite the school district’s conclusion that he had a learning disability, he never followed up with a visit to a doctor regarding his condition. Plaintiff further testified that, before the firefighter/paramedic examination, the first time he informed Chief McArthur that he was dyslexic and required a reader was at the orientation for the examination. However, McArthur testified that while plaintiff informed him that he needed a reader, plaintiff never indicated that he needed the reader because he was dyslexic. Rather, McArthur testified that plaintiff told him he needed the reader because “he had difficulty taking tests, [and] that he did not like taking them____” Plaintiff testified that, two days before the examination, he followed up with Chief McArthur on his initial oral request for a reader by leaving a note on McArthur’s desk, reiterating his desire to have a reader for the examination. But McArthur testified that he never saw the note. Plaintiff also indicated that he went to McArthur’s office the following day to ask him whether a reader would be provided. Plaintiff testified that McArthur told him that a proctor would be at the examination, and that if anyone had a question about the examination, they could ask the proctor. Plaintiff also testified that McArthur told all the candidates there would be no time limit for the written portion of the examination; however, “the understanding was that the test was from [9:00 a.m.] until whenever you finished] and then whenever you finished you [could] have lunch but the practical [portion of the examination started at 1:00 p.m.].” McArthur testified that plaintiff never indicated' that merely having the proctor available during the written examination was unacceptable. Despite the presence of the proctor during the 130-question examination, plaintiff testified that he did not approach her to ask questions because he believed it would be disruptive for the other test-takers and an embarrassment to himself. Finally, plaintiff testified that his dyslexia did not affect his work as a part-time firefighter because he was able to keep a dictionary with him to aid him in filling out his job reports. Plaintiff acknowledged that at one point his reports had become so illegible that he was required to practice filling them out. Plaintiff also indicated that his dyslexia had not kept him from his daily activities. Defendant moved for summary disposition pursuant to MCR 2.116(0(10). Defendant argued that plaintiffs PWDCRA claim was meritless because plaintiff failed to provide any documentary evidence regarding his alleged disability before the examination. Defendant further pointed out that plaintiff was not even diagnosed with dyslexia until he was examined by an expert witness — after he filed the lawsuit. And, although plaintiff allegedly provided a note to McArthur requesting a reader for the examination, plaintiff admitted that the note did not specifically inform McArthur that the reader was necessary because plaintiff had dyslexia. In granting defendant’s motion for summary disposition, the trial court first noted that although plaintiff “provide[d] his employer, Chief McArthur, with written notice of his request for an accommodation two days prior to the exam at issue ... [t]he written notice did not contain the reason or disability requiring the accommodation.” The trial court ruled that plaintiffs claim must therefore fail because plaintiff did not provide sufficient documentation of his alleged disability before the examination: It further appears undisputed that Plaintiff was not officially diagnosed as dyslexic until after the lawsuit was filed. At the time of the requested accommodation it is undisputed that Plaintiff failed to provide his employer with any documentation regarding this disability. The absence of any documentation or other documentary evidence showing Plaintiff was dyslexic is fatal to his claim under the act____ An allegedly dyslexic Plaintiff is not handicapped under the civil rights statute when Plaintiff fails to provide documentary evidence in support of the allegation. In other words, the trial court ruled that plaintiff could not maintain a claim of failure to accommodate because he had not properly notified defendant in writing of the need for accommodation. MCL 37.1210(18). STANDARD OF REVIEW We review de novo the grant or denial of a motion for summary disposition. Monat v State Farm Ins Co, 469 Mich 679, 682; 677 NW2d 843 (2004). “A motion under MCR 2.116(0(10) tests the factual sufficiency of the complaint.” Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). In evaluating a motion brought under this subsection, we consider affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties in the light most favorable to the party opposing the motion. Id. “Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law.” Id. Similarly, statutory interpretation is a question of law that we review de novo. Golf Concepts v Rochester Hills, 217 Mich App 21, 26; 550 NW2d 803 (1996). The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004). Statutory language should be construed reasonably, keeping in mind the purpose of the act. Draprop Corp v City of Ann Arbor, 247 Mich App 410, 415; 636 NW2d 787 (2001). The first criterion in determining legislative intent is the specific language of the statute. Rose Hill Ctr, Inc v Holly Twp, 224 Mich App 28, 32; 568 NW2d 332 (1997). “If the statute’s language is clear and unambiguous, we assume that the Legislature intended its plain meaning, and we enforce the statute as written.” Wickens v Oakwood Healthcare Sys, 465 Mich 53, 60; 631 NW2d 686 (2001). “In reviewing the statute’s language, every word should be given meaning, and we should avoid a construction that would render any part of the statute surplusage or nugatory.” Id. DISCUSSION The only issue properly presented to us for review is whether the trial court correctly concluded that plaintiff failed to provide sufficient written notice regarding his alleged disability and thus failed to trigger a duty for defendant to accommodate that disability. The actual written notice plaintiff alleges he provided to defendant is not contained in the record. However, plaintiff did not testify, and does not specifically argue on appeal, that the written notice he allegedly provided defendant did anything beyond requesting a reader, i.e., it did not specify any handicap necessitating that assistance. The statutory notice of accommodation provision states as follows: A person with a disability may allege a violation against a person regarding a failure to accommodate under this article only if the person with a disability notifies the person in writing of the need for accommodation within 182 days after the date the person with a disability knew or reasonably should have known that an accommodation was needed. [MCL 37.1210(18).] The trial court interpreted the above notice requirement as requiring that, in addition to a written request for an accommodation, the person requesting the accommodation must provide documented evidence of a specific disability to the employer. Therefore, the question before us is what type of written notification “of the need for accommodation” is necessary under MCL 37.12KX18). Although simply stated, the most appropriate axiom for interpreting this statute is that we “should not abandon the canons of common sense.” Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich 638, 644; 513 NW2d 799 (1994). Additionally, if a statute’s language is clear and unambiguous, we assume that the Legislature intended its plain meaning, and enforce the statute as written. Wickens, supra at 60. In this case, nothing in the plain language of the statute provides any guidance on what type of written notification is necessary to reasonably inform the employer what type of accommodation is needed or, more importantly, why the accommodation is needed. However, the PWDCRA places the burden of proof for a claim of failure to accommodate on the person with a disability. MCL 37.1210(1). In light of that and applying common sense, we conclude that an employee cannot satisfy the written notice requirement of MCL 37.1210(18) by simply stating “I need a reader because I have difficulty with tests.” Without at least a brief explanation of why an accommodation is needed, in terms of some physical or mental condition, the employer has no basis on which to make an educated decision whether a “disability” under the PWDCRA, and thus any “duty to accommodate,” is at issue. The employer would be left in an unnecessarily precarious position. Having no informed basis on which to respond, an employer could deny an accommodation and be held liable in an action under the PWDCRA for a failure to accommodate — even though the employer had no way of knowing whether the act applied or whether an accommodation was legally necessary. Our conclusion here is similar to the notice requirement for a claim alleging sexual harassment within a hostile work environment, pursuant to the Civil Rights Act, MCL 37.2101 et seq. An employer must have notice of the alleged harassment before liability will attach because, without such notice, the employer has no basis on which to take remedial action. Sheridan v Forest Hills Pub Schools, 247 Mich App 611, 621; 637 NW2d 536 (2001). Moreover, “[c]ourts must apply an objective standard of review when considering whether the employer was provided adequate notice.” Id. “ ‘[N]otice of sexual harassment is adequate if, by an objective standard, the totality of the circumstances were such that a reasonable employer would have been aware of a substantial probability that sexual harassment was occurring.’ ” Id. at 622, quoting Chambers v Trettco, Inc, 463 Mich 297, 319; 614 NW2d 910 (2000) (emphasis in Sheridan). For instance, in Elezovic v Ford Motor Co, 259 Mich App 187, 196; 673 NW2d 776 (2003), lv gtd on unrelated issues 470 Mich 892 (2004), this Court ruled that the plaintiff failed to provide adequate notice to her employer of alleged sexual harassment. Although the plaintiff filed various grievances and complaints alleging that a co-worker’s actions created a “hostile environment,” nothing in the written notices indicated that the alleged sexual harassment had occurred in the workplace. Id. Therefore, under the objective standard required by Chambers, supra at 319, this Court ruled that the plaintiff failed to establish that the defendant had notice of the alleged sexual harassment. Elezovic, supra at 196. The analogy to the notice requirement of hostile work environment/sexual harassment cases is useful because both notice requirements have the same purpose: to make an employer aware of the situation so that, if necessary, remedial action can be taken. Thus, both types of discrimination cases must be premised on the employer having a certain level of awareness regarding a plaintiffs situation because that enables the employer to know what type of remedial action to take. Under MCL 37.1210(18), the notice of a need for accommodation must allow defendant the opportunity to assess the accommodation request. Without some specified showing of the reason for the requested accommodation, an employer cannot properly determine whether to grant the requested accommodation. Our conclusion in this regard also disposes of plaintiffs claim that defendant owed him a duty to engage in an interactive process regarding his need for an accommodation. That claim, based on federal law, is premised in part on a showing that “the employer knew about the employee’s disability.” Barnes v Northwest Iowa Health Ctr, 238 F Supp 2d 1053, 1085 (ND Iowa, 2002). For the reasons stated, plaintiff cannot satisfy this requirement here and this claim is without merit. We affirm. Defendant also argued that plaintiff did not meet the definition of an individual with a “disability” under MCL 37.1103(d)(i)(A). Specifically, defendant pointed out that plaintiff testified that his dyslexia did not prevent him from performing any of his major life activities and argued that plaintiff failed to establish that his dyslexia is “unrelated to [his] ability to perform” the duties of a firefighter/paramedic. Id. Further, defendant argued that even if plaintiff met the definition of an individual with a disability, his claim would still fail because he did not establish that defendant failed to reasonably accommodate his alleged disability. These arguments did not form the basis of the trial court’s ruling and, in light of our decision to affirm on other grounds, we express no opinion on their merit. On appeal, plaintiff argues that defendant failed to properly post notices regarding how to properly allege a disability and need for accommodation under MCL 37.1210(19) and argues that defendant was thus prohibited from requiring notification under the statute and common-law estoppel principles. However, these issues were not preserved below and plaintiff has failed to provide any citation of the record that would substantiate his position that notice was not posted. See Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998) (“a mere statement without authority is insufficient to bring an issue before this Court”). Moreover, it is insufficient for plaintiff “simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position.” Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). Further, plaintiff argues that defendant’s actions constituted a failure to promote him because of a disability under MCL 37.1202(l)(a), but “[tjhis issue was not preserved for appeal because it was not raised in and decided by the trial court.” Fast Air, Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489 (1999). The only allegation in plaintiffs complaint was a failure to accommodate under MCL 37.1210(18), and that was the basis for the trial court’s ruling. This is an issue of first impression; there is no Michigan case law interpreting what type of written notice of a “need for accommodation” is sufficient to satisfy MCL 37.1210(18). In the worst case, in the absence of a requirement that there be notice of a known disability, a plaintiff could bring a claim of failure to accommodate upon later discovering that he had a disability justifying the accommodation at the time. Further, we note that here the record does not establish that plaintiffs written request even referenced the PWDCBA. However, even if he had done so, but failed to provide any information on the condition he claimed was a disability, our conclusion would be the same.

Hiram Clifton vs. Massachusetts Bay Transportation Authority. No. 02-P-781. Suffolk. October 20, 2003. September 30, 2004. Present: Armstrong, C.J., Kaplan, & Porada, JJ. Further appellate review granted, 443 Mass. 1104 (2005). Anti-Discrimination Law, Race. Employment, Discrimination, Retaliation. Evidence, Rebuttal. Limitations, Statute of. Practice, Civil, Instructions to jury, Interlocutory Appeal, Report. Damages, Punitive. Interest. Judgment, Interest. Discussion of the applicability of the continuing violation doctrine set forth in Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 541-542 (2001), to claims of a hostile work environment based on racial discrimination in violation of G. L. c. 151B, § 4(1), and of the statute of limitations applicable to such claims [167-170], as well as of the applicability of the continuing violation doctrine to claims of retaliation in the workplace for complaints about discriminatory acts [174-175]. In a civil action for damages arising from a hostile work environment based on race discrimination and retaliation in violation of G. L. c. 15 IB, § 4(1), (4), the judge did not err or abuse his discretion in admitting in evidence, for limited purposes, testimony of sexual and racial discrimination suffered by the plaintiff’s coworkers and a racist flyer that had been posted on a bulletin board at the plaintiff’s place of employment [170-171], or in excluding from evidence reports that had not been proffered or marked for identification [171]; moreover, the judge properly left to the jury the question whether evidence of discriminatory conduct that the plaintiff had suffered more than six months before the plaintiff filed an administrative claim for discrimination was time-barred [171-173]. In a civil action for damages arising from a hostile work environment based on race discrimination and retaliation in violation of G. L. c. 151B, § 4(1), (4), the judge did not impermissibly collapse his instructions defining race discrimination and retaliation [173], nor did he err in using a chalk to indicate the various time periods that the jury could consider in awarding damages [173] or in refusing to give an instruction that did not correctly reflect the law of the Commonwealth [176]; however, although the judge correctly applied the continuing violation rule to the plaintiff’s claim of racial discrimination, he failed to instruct the jury that, if the plaintiff had proved a continuing violation, the claim for earlier conduct would be barred if the plaintiff knew or reasonably should have known, more than six months prior to his filing an administrative claim, that his work sitúatian was pervasively hostile and unlikely to improve [173-174]; moreover, although the judge correctly applied the continuing violation doctrine to the plaintiff’s retaliation claim under the circumstances of this case, the instructions contained errors regarding the time period in which a violation had to have occurred and the ability of the jury to award damages if they found that found that an incident of retaliation within the applicable limitation period could be perceived as a continuation of prior reprisals [175-176]. No error arose from the fact that the jury rather than the judge in a civil action awarded punitive damages for a hostile work environment based on race discrimination and retaliation in violation of G. L. c. 151B, § 4(1), (4). [176] In a civil action for damages arising from a hostile work environment based on race discrimination and retaliation in violation of G. L. c. 151B, § 4(1), (4), the judge did not abuse his discretion or err in concluding that a punitive damage award was excessive and should be reduced [176-177]; moreover, while the judge erred in vacating the award of prejudgment and postjudgment interest on compensatory damages [177-178], he correctly denied the plaintiff’s request for prejudgment interest on the punitive damages award [178-179], This court concluded that while Mass.R.Civ.P. 64, as amended, 423 Mass. 1410 (1996), did not permit the judge in a civil action, after entry of separate judgments for compensatory and punitive damages following a jury trial, to file a report of all matters on the issues of liability and damages during the course of the trial, the judge’s order allowing a new trial on punitive damages following the plaintiff’s rejection of a remittitur of the punitive damages award was properly before this court on report as an interlocutory order. [179] Civil action commenced in the Superior Court Department on May 17, 1995. The case was tried before Ralph D. Gants, J., and was reported by him to the Appeals Court. Walter M. Foster for the defendant. Kevin G. Powers for the plaintiff. Marisa Campagna, Theresa Finn-Dever, & James S. Weliky, for National Employment Lawyers Association, Massachusetts Chapter, amicus curiae, submitted a brief. Porada, J. In 1995 Hiram Clifton brought an action in the Superior Court against the Massachusetts Bay Transportation Authority (MBTA) alleging that, because of his race, he was subjected to a hostile work environment, in violation of G. L. c. 15IB, § 4(1), and was harassed in retaliation for his complaints about discriminatory acts directed at him, in violation of G. L. c. 151B, § 4(4). A jury returned a special verdict against the MBTA and awarded Clifton compensatory damages of $500,000 for emotional distress and $5 million in punitive damages. The MBTA moved for judgment notwithstanding the verdict, a new trial, remittitur of the emotional distress and punitive damage awards, a hearing regarding jury bias, and alteration of the judgment to eliminate any prejudgment or postjudgment interest. Clifton moved to alter the judgment to include prejudgment interest on the punitive damage portion of the award and for reasonable attorney’s fees. In a consolidated memorandum of decision and order on the posttrial motions, the judge allowed the MBTA’s request for a remittitur of the punitive damage award, reducing it from $5 million to $500,000; its motion for a new trial as to punitive damages only if Clifton rejected the remittitur; and its motion to alter the judgment to vacate any prejudgment and postjudgment interest on the award for damages for emotional distress. The judge denied the MBTA’s remaining posttrial motions. The judge also allowed Clifton’s motion for attorney’s fees, but denied his motion for an award of prejudgment interest on the punitive damages. Upon Clifton’s rejection of the remittitur of the punitive damage award, the judge filed a report to this court of “all matters decided in the Consolidated Memorandum of Decision and Order on Post-Trial motions, dated February 3, 2000, and all other matters decided on the issues of liability and damages during the course of the trial of this case.” As his reason for doing so, the judge stated that “[sjince this case involves difficult and important legal issues and since the new trial on the issue of punitive damages would be lengthy, this Court finds (and the parties agree) that the interests of justice are better served by having all relevant issues decided by the Appeals Court before the commencement of the trial on punitive damages.” Neither party has challenged the propriety of the report of the entire case including the postjudgment orders. Instead, each party has briefed the case as if the entire case were here on appeal. We, therefore, defer our discussion of the procedural posture of the appeal until after a discussion of the facts and substantive issues raised. We recite the general background facts, reserving the details concerning the alleged discriminatory acts for our discussion of the particular issues. The plaintiff, an African-American man, started working for the MBTA as a nighttime track laborer in 1983. He did maintenance work on the subway tracks with a group of approximately ten to twelve other employees. In 1984 he became a trackman at the MBTA’s rail shop in the Charlestown section of Boston where he fabricated rails for installation on the MBTA lines. The supervisor in Charlestown was Robert Rooney, a Caucasian man. In 1986 the plaintiff was selected to be a line foreman by Rooney and the manager. He worked in this position until 1988. The plaintiff relocated to a facility in the Jamaica Plain section of Boston from 1988 to 1991. His immediate supervisor was Jerry Romano, a Caucasian man. In late 1991 he returned to Charlestown as a line foreman and again came under the direct supervision of Rooney. When the general foreman retired, the plaintiff took his turn in the rotational sequence used to fill the position. The plaintiff filed internal complaints with the MBTA for discriminatory practices in the workplace in 1990 and 1991. He filed complaints with the Massachusetts Commission Against Discrimination (MCAD) in 1993, alleging discrimination, and in 1994, alleging racial harassment and retaliation for his prior complaint against the MBTA. In 1995 the plaintiff withdrew his two MCAD complaints to file the Superior Court action. We turn now to a discussion of the issues raised. 1. Continuing violation doctrine. In order to pursue his claims, the plaintiff relies on the application of the continuing violation doctrine now set forth in Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 541-542 (2001), to claims of a hostile work environment based on racial discrimination in violation of G. L. c. 151B, § 4(1). In Cuddyer, the Supreme Judicial Court determined that the continuing violation doctrine set forth in the regulations of the MCAD at 804 Code Mass. Regs. § 1.03(2) (1993) applied to claims of a hostile environment based on sexual harassment. The court further held that if a claimant has shown a continuing violation, the claimant will not be barred from recovering for discriminatory acts occurring six months prior to filing a complaint with the MCAD unless the claimant “knew or reasonably should have known, more than six months prior to her MCAD filing, that her work situation was pervasively hostile and unlikely to improve and, therefore, a reasonable person in her position, armed with her knowledge, would have filed a seasonable complaint with the MCAD.” Id. at 541. The MBTA argues that this continuing violation rule is limited to claims of sexual harassment because the definition of “sexual harassment” contained in G. L. c. 151B, § 1(18)(b), as appearing in St. 1987, c. 473, § 2, prohibits conduct with the “purpose [of]” as well as the “effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment” and no comparable definition for racial harassment exists in G. L. c. 151B. We disagree. Unlike “sexual harassment,” racial harassment is not defined in G. L. c. 151B. Nevertheless, G. L. c. 151B, § 4(1), states that it is an unlawful practice for an employer because of race “to discriminate against [an] individual in compensation or in terms, conditions or privileges of employment.” In deciding the Cuddyer case, the Supreme Judicial Court did not base its analysis of the employee’s claim on the statutory definition of sexual harassment. Instead, the court gave deference to the MCAD’s decisions and its rule making authority. Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. at 533-534. The court also observed that, pursuant to G. L. c. 151B, § 9, “the provisions of this chapter [151B] are to be construed liberally” in order to eliminate discriminatory conduct. Ibid., quoting from G. L. c. 151B, § 9. The MCAD has consistently applied the continuing violation rule to claims of hostile work environment based on racial discrimination, see Beldo v. University of Mass. Boston, 20 Mass. Discrimination L. Rep. 105, 111 (1998), in addition to claims based on sex discrimination, Nassab v. Massachusetts Gen. Hosp., 25 Mass. Discrimination L. Rep. 429, 440 (2003). The underpinnings of the continuing violation doctrine set forth in Cuddyer support its application to hostile work environment claims based on racial discrimination. If there had been any doubt about the applicability of this rule to claims of racial discrimination, it was dispelled by Ocean Spray Cranberries, Inc. v. Massachusetts Commn. Against Discrimination, 441 Mass. 632, 642 (2004), in which the Supreme Judicial Court applied the Cuddyer rule to a claim of handicap discrimination. Just as the prohibition against racial discrimination does not parrot the defining discriminatory conduct language for claims of sexual harassment, G. L. c. 151B, § 4(16), simply prohibits an employer from discriminating against a “handicapped” person. Ibid. It strains credulity to suggest that the Supreme Judicial Court would not apply the continuing violation doctrine to a claim based on racial discrimination. Here, the judge did not have the benefit of the Cuddyer decision at the time of the trial. He nevertheless applied the continuing violation rule set forth in the regulations of the MCAD. See note 2, supra. He did not err in instructing the jury in accordance with the regulation, but, as we will discuss in the subsequent section on jury instructions, his application of the continuing violation doctrine was incomplete. See part 3, infra. The defendant also argues that Clifton’s claims for damages under the continuing violation rule are confined to the three-year limitation period set forth in G. L. c. 260, § 5B, or G. L. 151B, § 9. The statute of limitations applicable to Clifton’s case is set forth at G. L. c. 151B, § 9. The MBTA’s argument is foreclosed by our decision in Carter v. Commissioner of Correction, 43 Mass. App. Ct. 212, 222 (1997). As we pointed out in Carter, “[i]t would be anomalous to recognize the applicability of the continuing violation rule in respect to § 5 while precluding its application to § 9.” Ibid. 2. Evidentiary rulings. The MBTA next argues that the judge committed a number of evidentiary errors. At trial, evidence of sexual harassment of one of Clifton’s coworkers was introduced in evidence during the cross-examination of witnesses for the MBTA. The evidence was introduced to rebut testimony of those witnesses who testified that the tension in Clifton’s working environment in 1994 was caused solely by budget constraints and fear of privatization. The judge limited the scope of the questioning to the specific rebuttal of that testimony. The judge did not abuse his considerable discretion, see Anthony’s Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 477 (1991), in allowing this evidence to be admitted for this purpose. The MBTA next argues that the judge erred in allowing testimony regarding racial discrimination suffered by Clifton’s coworker Craig Dias. Dias worked in the Charlestown yard for a short period and visited the yard from time to time thereafter in his work assignments. He relayed to Clifton that he had been the subject of racially discriminatory remarks and conduct. Acts of harassment directed against others that are known to a plaintiff, and the defendant’s failure to discipline anyone for those acts or effectively to remedy them, may be considered as part of the environment in which the plaintiff worked. Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. at 541. The judge specifically instructed the jury that Dias’s testimony was relevant only to the degree that what happened to Dias was made known to Clifton and thus formed part of the alleged hostile environment in which Clifton worked at the MBTA. There was no error in the admission of this evidence for this limited purpose. The plaintiff was allowed to introduce in evidence a racist flyer posted on the MBTA bulletin board in the Charlestown yard. The flyer was entitled “Application for Employment to Jesse Jackson’s Staff” and contained questions such as “Yo’ Daddies name (if known)”; “Length of Last Jail Term”; and “How Fast Can Yo’ Steal & Strip a Car.” The MBTA did not object to Clifton’s testimony about the flyer but objected to the admissibility of the flyer on the ground the flyer was not properly authenticated and its prejudicial effect outweighed its relevancy. Clifton testified that he had shown the flyer to his superiors but that no action was taken about it. The judge ruled correctly that the failure to identify who posted the flyer went to the weight of the evidence and not to its admissibility. The flyer was relevant to paint a picture of Clifton’s workplace and the reaction of his superiors. There was no error in its admission. The MBTA also challenges the exclusion from evidence of incident reports of fellow MBTA workers that were allegedly relevant to explain adverse employment actions taken by the MBTA against Clifton. The record does not disclose that those documents were proffered in evidence or marked for identification. Nor does it appear a proper foundation was laid for their admissibility. There was no error in excluding them. The defendant also contends that the judge erred in allowing the jury to consider evidence of discriminatory conduct prior to the six months that Clifton filed his first claim with the MCAD for discrimination on April 20, 1993, on the ground that Clifton knew or should have known that he was being discriminated against because of his race and had knowledge that his working environment was unlikely to improve. The judge instructed the jury that they could consider evidence of discriminatory conduct prior to October 20, 1992, the date on which the six-month statute of limitations began to run, if they found that the defendant was subjected to a hostile work environment that continued into the limitation period. He further instructed that the discriminatory acts would have to have been of a continuing nature, which he defined as “similar to or reasonably related to the discrimination complained about to the MCAD,” but not earlier than July of 1986, the date on which Clifton was appointed to a foreman’s position, in assessing damages. (See discussion in part 3, infra.) The MBTA argues that this formulation was error because Clifton himself testified that after he became the first black foreman in the Charlestown yard in July, 1986, working conditions became so intolerable that he requested a transfer out of the yard in 1988. The MBTA points to Clifton’s testimony that during this period racial epithets like “Sanford & Son” were consistently sprayed on his locker; the men on his crew frequently threw firecrackers over the stall door when he used the bathroom or sprayed the door with a water hose; his superiors would rig up a cup of water over their office door and call Clifton in for a fake meeting to watch the water spill on him; and his complaints to his supervisors about this conduct went unheeded as illustrative of Clifton’s awareness and knowledge that he was being discriminated against. The MBTA argues that Clifton should also have known at the time of his transfer out of the Charlestown yard in 1988 that his working conditions were unlikely to improve because, although he had a new immediate supervisor, according to Clifton’s testimony, his superiors continued to display discriminatory animus to him by calling him “Roxbury man,” “Sanford,” and referring to Clifton and another black employee as “ding and dong”; failing to follow established seniority practices when it would have benefited Clifton; and giving him more stringent supervision, harsher discipline, and fewer working privileges than his white counterparts. There was also evidence that in 1990 and 1991 Clifton filed complaints with the MBTA’s equal employment opportunity office about the discriminatory treatment of him, but nothing was done to remedy the situation. Although we agree with the MBTA that this evidence presents a serious question whether the discriminatory acts prior to the six-month limitation period are time-barred, we are of the opinion that this is a factual issue that shou