Discrimination Cases

VENABLE v GENERAL MOTORS CORPORATION (ON REMAND) Docket No. 219037. Submitted August 1, 2002, at Detroit. Decided October 22, 2002, at 9:05 a.m. Phillip I. Venable, a sixty-one-year-old male Caucasian, brought an action in the Genesee Circuit Court against General Motors Corporation, alleging that the defendant’s termination of his employment as a supervisor constituted unlawful employment discrimination based on race, gender, and age under the Civil Rights Act, MCL 37.2101 et seq. The court, Judith A. Fullerton, J., granted summary disposition for the defendant, ruling that there were no genuine issues of material fact and the defendant was entitled to judgment as a matter of law because the plaintiff was dismissed for regularly joining his subordinate employees in leaving work early and going to a nearby bar after the plaintiff and fellow supervisors had been warned by the defendant that they would be immediately discharged if they knowingly allowed an employee to leave work while on company time. The Court of Appeals, O’Connell, P.J., and Fitzgerald and Wilder, JJ., in an unpublished opinion issued April 20, 2001, and citing Allen v Comprehensive Health Services, 222 Mich App 426 (1997), affirmed the trial court’s decision. The Supreme Court considered the plaintiff’s application for leave to appeal and entered an unpublished order on July 31, 2002, remanding the case to the Court of Appeals for an explanation whether it was necessary to rely on Allen in affirming summary disposition for the defendant and, if it was necessary, whether the “background circumstances” test imposed by Allen in evaluating “reverse discrimination’’ claims is consistent with the Civil Rights Act and, if so, whether it is consistent with state or federal equal protection principles. On remand, the Court of Appeals held: 1. The framework established by McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), is used in deciding employment discrimination claims under the Civil Rights Act. That framework requires a showing that the plaintiff was a member of a protected class, was subject to an adverse employment action, and was qualified for the position and that others, similarly situated and outside the protected class, were unaffected by the employer’s adverse action. Allen was wrongly decided in that it added an element to the McDonnell Douglas framework in reverse employment discrimination cases by holding that a reverse discrimination plaintiff can rely on the McDonnell Douglas framework to establish a prima facie case of intentionally disparate treatment only when background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority. 2. Reliance on Allen was not necessary to affirm the trial court’s grant of summary disposition for the defendant. Under the McDonnell Douglas framework untainted by Allen, the plaintiff cannot survive summary disposition because he cannot make out a prima facie case and, even if he could, the reason stated by the defendant for the defendant’s discharge was legitimate and was not a pretext for discrimination. Affirmed. Wilder, J., concurring, stated that reliance on Allen was not required to affirm the trial court’s decision in this panel's prior opinion. The plaintiff failed to show that he was situated similarly to other supervisors of different gender or race who were not discharged. Law Office of Gregory T. Gibbs (by Jeanmarie Miller) for the plaintiff. Hardy, Lewis & Page, PC. (by Terence V. Page and Kay Rivest Butler) (Keller Thoma, P.C., by Kimberly A. Sordyl and Lincoln G. Herweyer, of counsel), for the defendant. ON REMAND Before: O’Connell, P.J., and Fitzgerald and Wilder, JJ. O’Connell, P.J. This reverse employment discrimination case is before us on remand from our Supreme Court. In an unusual remand order, the Court stated in part: The panel is directed to explain . . . whether, in affirming summary disposition in favor of defendant, it was necessary to rely on Allen v Comprehensive Health Services, 222 Mich App 426; 564 NW2d 914 (1997). If it was not, the Court should explain why not. If it was, the Court should explain why it was and address whether the [“]background circumstances!”] test imposed by Allen in evaluating [“]reverse discrimination!”] claims is consistent with the Civil Rights Act, MCL 37.2101 et seq. If so, it should also address whether the test is consistent with state or federal equal protection principles.[] [Venable v General Motors Corp, 650 NW2d 339 (2002) (Docket No. 119202).] From this language we discern that our Supreme Court has ordered us to (1) determine if this Court’s previous opinion in Allen was wrongly decided and (2) determine if the Allen decision is outcome determinative of the present case. We conclude that Allen was wrongly decided and that the Allen decision is not outcome determinative of the present case. Thus, we again, affirm the trial court’s order granting summary disposition for defendant. I. THE MCDONNELL DOUGLAS FRAMEWORK In McDonnell Douglas Corp v Green, 411 US 792, 802; 93 S Ct 1817; 36 L Ed 2d 668 (1973), the United States Supreme Court established the elements of a prima facie case for claims alleging race discrimination in employment under title vn of the Civil Rights Act of 1964, 42 USC 2000e et seq. The complainant in a Title vh trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. [McDonnell Douglas, supra at 802.] In Town v Michigan Bell Telephone Co, 455 Mich 688; 568 NW2d 64 (1997), our Supreme Court adapted the McDonnell Douglas framework to the Michigan Civil Rights Act. This was done to accommodate additional types of discrimination claims — including employment discrimination based on sex and age — and to accommodate other “adverse employment action[s].” Id. at 695 (Brickley, J., with Boyle and Weaver, JJ., concurring). The framework, long used by courts of this state, requires a showing that plaintiff was “(1) a member of a protected class, (2) subject to an adverse employment action, (3) qualified for the position, and that (4) others, similarly situated and outside the protected class, were unaffected by the employer’s adverse conduct.” Id. at 695 (Brickley, J., with Boyle and Weaver, JJ., concurring), 707 (Riley, J., concurring in the judgment); see also Lytle v Malady (On Rehearing), 458 Mich 153, 171-173, n 19 (Weaver, J., with Boyle and Taylor, JJ., concurring), 185 (Brickley, J., concurring in the judgment); 579 NW2d 906 (1998). n. APPLICATION TO REVERSE DISCRIMINATION CASES We believe Allen was wrongly decided because Allen improperly modified the McDonnell Douglas framework by adding an element for reverse employment discrimination cases. Citing questionable federal precedent, the Allen Court concluded that reverse discrimination plaintiffs can rely on the McDonnell Douglas framework to establish “a prima facie case of intentionally disparate treatment only ‘when background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.’ ” Allen, 222 Mich App 432 (emphasis added), quoting Parker v Baltimore & O R Co, 209 US App DC 215, 220; 652 F2d 1012 (1981). This additional element has become known as the “background circumstances” test. The Allen Court reasoned as follows: Recognizing that “[t]he facts necessarily will vary in Title VII cases,” the McDonnell Douglas Court noted that its specification of the prima facie burden of proof “is not necessarily applicable in every respect to differing factual situations.” Id. at 802, n 13. The District of Columbia Circuit Court of Appeals accepted this invitation to modify the McDonnell Douglas test for purposes of a “reverse discrimination” claim in Parker],] [supra] .... * * * . . . The Parker court held that majority plaintiffs [i.e., Caucasian or male plaintiffs] can rely on the McDonnell Douglas criteria to prove a prima facie case of intentionally disparate treatment only “when background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.” Id. The Parker analysis has been followed by appellate courts in at least three other federal circuits. With these courts, we conclude that Parker appropriately modified the McDonnell Douglas test for application to a reverse discrimination claim brought under title VO. Further, recognizing that these precedents are not binding upon us in interpreting Michigan’s Civil Rights Act, we nonetheless are convinced by the Parker analysis and adopt its approach for purposes of this statute as well. Accordingly, we hold that a reverse discrimination plaintiff who has no direct evidence of discriminatory intent may establish a prima facie claim of gender [sex] discrimination under the Civil Rights Act with respect to a promotion decision by showing (i) background circumstances supporting the suspicion that the defendant is that unusual employer who discriminates against men; (ii) that the plaintiff applied and was qualified for an available promotion; (iii) that, despite plaintiff’s qualifications, he was not promoted; and (iv) that a female employee of similar qualifications was promoted.[] Upon this showing, a “presumption” of discriminatory intent is established for possible rebuttal by the employer. Absent this showing, a reverse discrimination plaintiff who has no direct evidence of discriminatory intent cannot proceed. [Allen, supra, 222 Mich App 430-433 (citations omitted; emphasis added).] HI. ALLEN’S MODIFICATION OF THE McDONNELL DOUGLAS FRAMEWORK By adding the “background circumstances” test to the McDonnell Douglas framework, Allen made it more difficult procedurally for a Caucasian or male plaintiff-employee than for an African-American or female plaintiff-employee to allege employment discrimination. See Pierce v Commonwealth Life Ins Co, 40 F3d 796, 801, n 7 (CA 6, 1994). While the McDonnell Douglas decision allowed its framework to be adapted to different types of discrimination or different types of “adverse employment action[s]” (Town, supra at 695), Allen clearly departed from McDonnell Douglas and added an entire element to the framework. In our opinion, the “background circumstances” test imposed by Allen in evaluating reverse employment discrimination claims is inconsistent with the Michigan Civil Rights Act. The Civil Rights Act does not make a distinction concerning whether an employee alleging race discrimination is Caucasian or African-American. It only provides that “[a]n employer shall not. . . discriminate against an individual with respect to employment . . . because of religion, race, color, national origin, age, [or] sex . . . .” MCL 37.2202(1)(a). That is, any individual, Caucasian or African-American, male or female, is protected from race or sex discrimination under the Civil Rights Act. Consequently, ordinary and reverse discrimination claims are equally sustainable under the Civil Rights Act. See Pierce, supra. Therefore, we hold that the Allen Court erred in adding the “background circumstances” test to a prima facie case for plaintiffs alleging reverse discrimination in employment. IV THE FACTS OF OUR PREVIOUS DECISION IN VENABLE The facts of this case were set forth in our previous opinion: Plaintiff, a sixty-one-year-old Caucasian male, was discharged from his employment with defendant in 1996 after approximately thirty-one years of service. At the time of his discharge, plaintiff held the position of a sixth-level supervisor in defendant’s Service Parts Organization (spo) plant in Swartz Creek. In August 1996, defendant received a phone call from an anonymous individual on its “Awareline,” a confidential toll-free number defendant’s employees used to report suspected misconduct. The caller alleged that plaintiff had been observed leaving the SPO facility on company time with hourly employees and drinking at a nearby bar. Subsequent surveillance by defendant confirmed the caller’s allegations, and plaintiff was discharged. Plaintiff’s termination in October 1996 followed a meeting for all sixth-level supervisors held in the spring of 1996, where management personnel warned employees that they would be immediately discharged if they knowingly allowed an employee to leave the plant while on company time. After his employment with defendant was terminated, plaintiff commenced the instant action alleging race, gender, and age discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., wrongful discharge, and fraudulent misrepresentation. After defendant moved for summary disposition under MCR 2.116(C)(10), the trial court summarily disposed of all of plaintiff’s claims.[] [Venable v General Motors Corp, unpublished opinion per curiam of the Court of Appeals, issued April 20, 2001 (Docket No. 219037).] V. ANALYSIS Our previous opinion in this case cited Allen's modification and application of the McDonnell Douglas framework. See Allen, supra, 222 Mich App 431-432, citing McDonnell Douglas, supra. Having determined that Alim was wrongly decided, our next task is to ascertain whether the result of our previous opinion in this case would have been the same without employing the Allen “background circumstances” test. In direct answer to our Supreme Court’s first question on remand, we hold that it was not necessary to rely on Allen in our previous opinion because direct application of the adapted McDonnell Douglas framework produces the same result. Thus, because our application of Allen in our previous opinion was not outcome determinative, we need not declare a conflict, in the present case. See MCR 7.215(I)(2)-(3); Booker v Detroit, 251 Mich App 167, 181, 185; 650 NW2d 680 (2002). In our opinion, under McDonnell Douglas, the present plaintiff cannot survive summary disposition. See Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Therefore, the trial court in this case properly granted summary disposition to defendant pursuant to MCR 2.116(C)(10) for lack of a genuine issue of material fact. With regard to the first element in the McDonnell Douglas framework, according to Michigan’s Civil Rights Act the instant plaintiff is a member of a protected class on the basis of his race and sex. See Town, supra at 695, 707; MCL 37.2202(1)(a) (“[a]n employer shall not. . . discriminate against an individual . . . because of. . . race, color, national origin, age, sex . . .”). Second, plaintiff was subjected to an adverse employment action, i.e., discharge. See Town, supra. Third, according to the evidence in this case, plaintiff was otherwise qualified for his position. Id. Fourth, and finally, plaintiff claims that similarly situated African-American and female employees were not discharged for the same conduct. Id.; Lytle, supra at 172-173, 185. Even if plaintiff could make out a prima facie case under the above framework, we hold that he cannot survive the next steps in the analysis involving shifting the burden of production. After a plaintiff-employee sets out a McDonnell Douglas prima facie case, the burden of production shifts to the defendant-employer to produce a nondiscriminatory reason for the adverse employment decision. Town, supra at 695, citing McDonnell, supra. In the present case, defendant established (and plaintiff conceded) that plaintiff was discharged because he regularly joined his subordinate employees in leaving work early and proceeding to a nearby bar. Because this explanation satisfied defendant’s burden at this stage of the analysis, the burden of production shifted back to plaintiff to prove by a preponderance of the evidence that this reason for discharge was a pretext for race or sex discrimination. Town, supra at 696-697, 707. Plaintiff cannot meet this burden of production on the evidence presented on summary disposition. Indeed, the evidence shows that after defendant announced a policy prohibiting the alleged misconduct and warning of adverse employment consequences for those who defied the policy, plaintiff chose to leave work early with his subordinates. As we stated in our previous opinion, the similarly situated individuals plaintiff points to did not engage in such conduct after the policy was announced, as plaintiff did. Nor was their conduct as egregious as plaintiffs. Thus, plaintiff was not fired because of his race or sex, but for misconduct that similarly situated African-American and female employees did not commit. See Town, supra; Lytle, supra. VI. CONCLUSION Therefore, on remand, as in our previous opinion, we again affirm the trial court’s grant of summary disposition, albeit on different grounds. See Town, supra; Lytle, supra. Having decided that it was not necessary to rely on Allen in this case, but that the outcome is the same, we need not address the additional questions posed by our Supreme Court. Affirmed. Fitzgerald, J. I concur in the result only. We note that leave to appeal to our Supreme Court was granted in Allen, 459 Mich 861 (1998), and the Court subsequently “directfed] the parties to file . . . supplemental briefs on the question of the propriety of applying the analysis of McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), in determining the existence of a prima facie case in cases arising under the Elliott-Larsen Civil Rights Act.” Allen v Comprehensive Health Services, 590 NW2d 573 (1999). The case was dismissed soon after by stipulation of the parties without resolution by our Supreme Court. In essence, our Supreme Court has ordered us to act as an appellate corut over the previous opinion of our colleagues in Allen. We undertake this task with due respect for the Allen panel’s decision. While we conclude that Allen was wrongly decided, we note that one panel of this Court may not overrule a decision of another panel. MCR 7.215(I)(1). In addition, we cannot declare a conflict and convene a conflict panel because, in our opinion, Allen is not outcome determinative of the present case. See MCR 7.215(I)(2)-(3); Booker v Detroit, 251 Mich App 167, 181, 185; 650 NW2d 680 (2002). Because our Supreme Court retained jurisdiction of the present case on remand, we urge the Court to grant leave in the present case and resolve the conflict created by this case and the Allen decision. See Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 708; 614 NW2d 607 (2000) (wrongly decided cases produce more injury when followed than if overruled). Our previous opinion in this case was Venable v General Motors Corp, unpublished opinion per curiam of the Court of Appeals, issued April 20, 2001 (Docket No. 219037). One of the first cases in which our Supreme Court adopted the McDonnell Douglas framework for “ordinary” employment discrimination cases was Victorson v Dep’t of Treasury, 439 Mich 131, 142-143; 482 NW2d 685 (1992) (affirmative action plan claim brought by male employee); see also Rasheed v Chrysler Corp, 445 Mich 109, 132-133, n 41; 517 NW2d 19 (1994) (race and religious discrimination case); Town, supra at 694-696 (sex and age discrimination); Lytle v Malady (On Rehearing), 458 Mich 153, 171-173, n 19 (Weaver, J., with Boyle and Taylor, JJ., concurring), 185 (Brickley, J., concurring in the judgment); 579 NW2d 906 (1998) (sex and age discrimination); Hazle v Ford Motor Co, 464 Mich 456, 467-472; 628 NW2d 515 (2001) (race discrimination). This Court has applied the McDonnell Douglas framework in several published “ordinary

Sonja Sahli vs. Bull HN Information Systems, Inc. Middlesex. May 8, 2002. September 9, 2002. Present: Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Anti-Discrimination Law, Employment, Termination of employment, Age. Employment, Discrimination, Retaliation. Constitutional Law, Right to petition government. Practice, Civil, Costs. This court concluded that a lawsuit filed by a corporate employer against a former employee, seeking a declaration of its rights, duties, and obligations under a release and severance agreement entered into with the former employee, who had lodged a charge of age discrimination ¿gainst the employer, did not constitute an act of retaliation or interference in violation of the Commonwealth’s antidiscrimination laws, G. L. c. 151B, § 4 (4), or G. L. c. 15IB, § 4 (4A), where, although the interest in remedying discrimination was weighty, it was not so weighty as to justify what would amount to an absolute restriction on the employer’s right to petition the courts, and where the lawsuit had a legitimate basis in law and fact. [700-707] In a civil action, the judge properly allowed the prevailing defendant’s motion for costs. [707] Civil action commenced in the Superior Court Department on June 30, 1998. The case was heard by Nonnie S. Bumes, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Justine H. Brousseau (Nina Joan Kimball with her) for the plaintiff. David B. Chaffin {Kathleen A. Kelley with him) for the defendant. Thomas F. Reilly, Attorney General, Catherine C. Ziehl & Kathleen Z. Quill, Assistant Attorneys General, for the Attorney General, amicus curiae, submitted a brief. Cordy, J. In this case, we hold that a lawsuit filed by an employer against a former employee who has lodged a charge of discrimination is not an act of retaliation or interference in violation of the State’s antidiscrimination laws where the lawsuit had a legitimate basis in law and in fact. 1. Background. Sonja Sahli worked in the human resources department of Bull HN Information Systems, Inc. (Bull), for eight years. She was laid off in April, 1995, at age fifty-three. After she was notified about the impending layoff, Sahli applied for, but was not selected to fill, a vacant position in the human resources department. Before she left Bull, Sahli signed a release and severance agreement, in which she agreed to release Bull from any “current or prior claims arising out of [her] employment with or termination from Bull,” in exchange for eight weeks of her salary as severance payment. Several months after leaving Bull, Sahli learned that the person who was hired to fill the vacant position was a younger woman. Believing that she was not chosen to fill the position because of her age, Sahli filed a charge of discrimination with the Massachusetts Commission Against Discrimination (MCAD), asserting, inter alla, that: (1) “Bull’s policy and practice in the event of a lay-off is to place a laid-off employee in another vacant position within the company, where possible.” (2) “I was amply qualified for [a vacant position in the human resources department].” (3) “I heard that Bull had filled the [vacant position] with an outside applicant who was a number of years younger than I was. On information or belief, the person who was hired for the position was less qualified for it than I was.” (4) “I believe that Bull failed to follow its policy and practice in my case of relocating laid-off employees into vacant positions within the company and failed to hire me for the [vacant position] because of my age.” In response to Sahli’s MCAD charge, Bull filed a complaint for declaratory relief in the Superior Court alleging that Sahli’s discrimination charge was barred by the terms of the release that she had signed when she left Bull. Bull contended that the essence of Sahli’s discrimination claim was Bull’s failure to relocate her into a vacant position instead of laying her off, and as such, was a claim arising out of her termination. Therefore, Bull asked the court to “declar[e] the parties’ respective rights, duties, and obligations under the Release Agreement,” find that Sahli’s bringing of the discrimination charge violated its terms, and order the return of Sahli’s severance payment. One month after Bull filed its complaint, Sahli filed a second charge of discrimination with the MCAD alleging that Bull’s complaint constituted discriminatory retaliation in violation of G. L. c. 151B, § 4 (4) (retaliation claim), and threats, intimidation, coercion, and interference with her protected rights in violation of G. L. c. 151B, § 4 (4A) (interference claim). She also filed a motion to dismiss Bull’s complaint in the Superior Court, arguing that the release did not bar her MCAD charge because it involved a “failure to hire” claim that did not accrue until she discovered, several months after she had left Bull, that the person who filled the vacant position was a younger woman. Without deciding the merits of Bull’s claim, a Superior Court judge allowed Sahli’s motion to dismiss without prejudice. As permitted by G. L. c. 151B, § 9, Sahli removed both of her charges from the MCAD and filed a complaint in the Superior Court alleging age discrimination in violation of G. L. c. 151B, § 4 (IB) (Count I), retaliation in violation of G. L. c. 15IB, § 4 (4) (Count II), and interference with a protected right in violation of G. L. c. 151B, § 4 (4A) (Count HI). Following discovery, both parties moved for summary judgment and, on March 16, 2001, a judge allowed Bull’s motion on all counts. She ruled that the undisputed fact that the person who filled the vacant position was more qualified than Sahli defeated her discrimination claim. She also ruled that Sahli’s retaliation claim failed because Sahli could not show that she suffered any “adverse employment consequence” as a result of filing her MCAD charge, and that her interference claim failed because the filing of a lawsuit did not rise to the level of “threats, intimidation or coercion” necessary to violate § 4 (4A). Bull then filed a motion for costs, which was allowed. Sahli appealed the summary judgment rulings on her claims of retaliation (Count II), and interference (Count HI). She also appealed from the allowance of the motion for costs. We transferred the case here on our own motion. We conclude that Bull’s filing of a complaint in the Superior Court for declaratory relief did not constitute an act of retaliation or interference violative of G. L. c. 151B, § 4 (4), or G. L. c. 15IB, § 4 (4A), and therefore affirm the judge’s allowance of Bull’s motion for summary judgment, although on different grounds. GTE Prods. Corp. v. Stewart, 421 Mass. 22, 36 (1995). We also affirm the allowance of Bull’s motion for costs. 2. Discussion. Retaliation claims under G. L. c. 151B, § 4 (4), and interference claims under G. L. c. 151B, § 4 (4A), constitute separate and independent causes of action. See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 121 (2000). Sahli contends that Bull violated both § 4 (4) and § 4 (4A), by filing the complaint for declaratory relief which forced her to defend herself in a separate litigation, incur additional attorney’s fees, and fear the loss of her severance pay. The threshold question we must decide is whether the filing of a lawsuit by a corporate employer seeking a declaration of its rights, duties, and obligations under a contract entered into with one of its employees can constitute an act violative of the retaliation and interference provisions of G. L. c. 151B. To resolve this question, we must balance the constitutional right to seek judicial resolution of disputes under the First Amendment to the United States Constitution and art. 11 of the Massachusetts Declaration of Rights* against the statutory right under G. L. c. 151B to seek redress for allegations of discrimination without fear of retaliation for or interference with the exercise of that right. We had occasion to balance similar interests in Bain v. Springfield, 424 Mass. 758 (1997) (Bain). In that case, a newspaper article described the plaintiff’s allegations of discriminatory hiring practices in city government. The same article also reported the mayor’s response to the allegations, which included his belief that the plaintiff’s complaints were “ ‘baseless,’ ‘meritless,’ and ‘an example of someone trying to manipulate the civil rights laws for personal gain.’ ” Id. at 760. The plaintiff filed suit, alleging that the mayor’s comments, among other things, constituted retaliation under G. L. c. 151B against her for having voiced concerns about the city’s hiring practices. Id. at 761, 765-766. Balancing the plaintiff’s interest in remedying discrimination with the mayor’s First Amendment right to free speech, we concluded: “[W]e most emphatically cannot countenance as an instance of retaliation . . . the mayor’s response in the local newspaper to the charges against him. The newspaper quoted Bain’s serious and damaging charges against the mayor, an elected official. He was entitled to respond in the same forum, to defend himself and to state what political judgments seemed appropriate so long as they were not defamatory — which these were not. . . . The interest in remedying discrimination is weighty but not so weighty as to justify what amounts to a restriction on core political speech.” Id. at 766-767. Consistent with this reasoning, we conclude in the instant case that, although the interest in remedying discrimination is weighty, it is not so weighty as to justify what amounts to an absolute restriction on an employer’s right to petition the courts. The United States Supreme Court has recognized the right to petition the government, including the courts, as one of “the most precious of the liberties safeguarded by the Bill of Rights,” United Mine Workers v. Illinois Bar Ass’n, 389 U.S. 217, 222 (1967), implied by the “very idea of a government, republican in form,” United States v. Cruikshank, 92 U.S. 542, 552 (1875). See Pinnick v. Cleary, 360 Mass. 1, 11-12 (1971) (art. 11 “is clearly directed toward the preservation of procedural rights and has been so construed”). The Court has protected the right to petition “whenever it is genuine, not simply when it triumphs.” BE & K Constr. Co. v. NLRB, 536 U.S. 516, 532 (2002) (BE & K). Thus, in the antitrust context, the Court has held that unless petitioning activity is both objectively and subjectively a “sham,” it is immune from antitrust liability. Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-61 (1993). And in the labor context, the Court has held that the First Amendment protects “[t]he filing and prosecution of a well-founded lawsuit [from being] enjoined as an unfair labor practice, even if it would not have been commenced but for the plaintiff’s desire to retaliate against the defendant for exercising rights protected by the [National Labor Relations] Act.” Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983). The right to petition is not, however, an absolute right. For example, “baseless” or “sham” litigation is not protected by the First Amendment. See Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 144 (1961) (Noerr). See also BE & K, supra at 531 (“our holdings [have] limited regulation to suits that were both objectively baseless and subjectively motivated by an unlawful purpose” [emphasis in original]). “Sham” litigation has been defined in the antitrust context as litigation that is “objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits,” and in which the litigant’s subjective motivation is “ ‘to interfere directly with the business relationships of a competitor’ . . . through the ‘use [of] the governmental process — as opposed to the outcome of that process — as an anticompetitive weapon’” (emphasis in original). Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., supra at 60-61, quoting Noerr, supra at 144, and Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 380 (1991). The United States Supreme Court recently granted certiorari to reexamine the scope of the right to petition when it considered whether the National Labor Relations Board (NLRB) could “impose liability on an employer for filing a losing retaliatory lawsuit, even if the employer could show the suit was not objectively baseless.” BE & K Constr. Co. v. NLRB, 534 U.S. 1074 (2002). The employer (BE & K) had filed a series of unsuccessful complaints in Federal court against several unions, alleging that they had attempted to delay a construction project because BE & K’s employees were not unionized. BE & K, supra at 520-522. The unions responded by lodging complaints against BE & K with the NLRB, alleging that BE & K had violated the antiretaliation provision of the National Labor Relations Act (NLRA). Id. at 522. The NLRB agreed, deciding that BE & K’s lawsuit was not meritorious and “had been unlawfully motivated because it was directed at protected conduct’ and ‘necessarily tended to discourage similar protected activity,’ and because petitioner admitted it had filed suit ‘to stop certain [u]nion conduct which it believed to be unprotected.’ ” Id. at 523. Based on these conclusions, the NLRB concluded that BE & K had violated the NLRA, and ordered BE & K “to cease and desist from prosecuting such suits and to post notice to its employees . . . promising not to pursue such litigation in the future.” Id. The United States Court of Appeals for the Sixth Circuit found substantial evidence to support the NLRB’s conclusions. Id. at 523-524. The Supreme Court reversed, concluding that “unsuccessful but reasonably based suits” fall within the scope of First Amendment protection. Id. at 536. In support of its decision, the Court rejected the NLRB’s view of a retaliatory lawsuit — “one ‘brought with a motive to interfere with the exercise of protected [NLRA] rights’ ” — because that definition “broadly covers a substantial amount of genuine petitioning.” Id. at 533. The Court decided that if an employer’s belief that certain conduct is illegal “is both subjectively genuine and objectively reasonable, then declaring the resulting suit illegal affects genuine petitioning.” Id. at 533-534. The Court concluded that “[a]s long as a plaintiff’s purpose is to stop conduct he reasonably believes is illegal, petitioning is genuine both objectively and subjectively” (emphasis in original). Id. at 534. Where the only evidence of retaliatory purpose was the bringing of a reasonably based but unsuccessful lawsuit, combined with testimony that the employer disliked the unions, the Court held that finding the lawsuit to be violative of Federal law barring employers from interfering with, restraining, or coercing employees in the exercise of their rights, unduly burdened the employer’s First Amendment right to petition. Applying these principles to G. L. c. 15IB, we decline to read § 4 (4) and § 4 (4A) as reaching all reasonably based but unsuccessful lawsuits brought in response to the filing of a discrimination claim. Cf. BE & K, supra at 536. When an employer files a complaint seeking a declaration of its rights, duties, and obligations under a contract that it entered into with an employee, and the lawsuit has a legitimate basis in law and fact, the employer does not violate the provisions of either § 4 (4) or § 4 (4A), absent evidence that the employer’s purpose is other than to stop conduct it reasonably believes violates the terms of the contract. Cf. BE & K, supra at 533-534. We now apply this holding to the case before us. We first consider whether Bull’s complaint for declaratory relief had a legitimate basis in law. General Laws c. 231 A, § 1, allows courts to “make binding declarations of right, duty, status and other legal relations sought thereby, either before or after a breach or violation thereof has occurred in any case in which an actual controversy has arisen and is specifically set forth in the pleadings.” The purpose of this statute is to provide a plaintiff relief from uncertainty and insecurity with respect to rights, duties, status, and other legal relations. See, e.g., Oxford v. Oxford Water Co., 391 Mass. 581, 584-585 (1984). The determination of contractual rights is a proper subject of a declaratory judgment proceeding. See, e.g., Pitman v. J.C. Pitman & Sons, 324 Mass. 371 (1949) (determining effect of general release signed in conjunction with sale of business). See also Billings v. Fowler, 361 Mass. 230, 234 (1972) (c. 231A “was intended to expand, at least in the discretion of the court, prior provisions for the interpretation of written instruments”); School Comm. of Cambridge v. Superintendent of Schs. of Cambridge, 320 Mass. 516, 518 (1946) (“One of the benefits of the declaratory procedure is that it does not require one to incur the risk of violating some term of a contract or of invading some right of the other, even if done in good faith, before he may have relief”). Thus, Bull’s complaint seeking declaratory relief had a legitimate basis in law. We next consider whether there was a legitimate basis in fact to support Bull’s complaint. Bull’s one-count complaint sought a declaration from the court regarding its rights under the terms of the release: “Sahli released and covenanted not to sue Bull for any current or prior claims arising out of her employment with Bull or her termination from Bull. At the time she signed the Release Agreement, she knew she was being terminated and so acknowledged in the Release Agreement. The essence of her claim is that she was terminated rather than being relocated into an open position pursuant to an alleged policy or practice of Bull HN.” Bull asserted that “[a] real, substantial, and justiciable controversy exists between Bull HN and Sahli concerning whether she has breached her Release Agreement with Bull HN and concerning the parties’ respective rights and obligations under the General Release and Severance Agreement.” Sahli contended that there should never have been any confusion about the basis of her “failure-to-hire” claim. We disagree. The correspondence between Sahli’s counsel and Bull preceding the filing of the MCAD charge, the description of the claim set out in the MCAD charge itself, and the affidavits attached to the charge demonstrate that as originally filed, Sahli’s MCAD charge included discrimination claims based both on Bull’s failure to relocate her into the vacant position instead of laying her off (a claim likely covered by the release), and on Bull’s failure to hire her into the vacant position after she had been laid off (a claim likely not covered by the release). Even if viewed in the light most favorable to Sahli, the basis for her original charge was unclear. To the extent that this lack of clarity could have reasonably led Bull to believe that part or all of Sahli’s MCAD charge was barred by the release, there was a legitimate basis in fact to support the filing of Bull’s complaint. Finally, there is no evidence that Bull’s purpose in bringing the lawsuit was anything other than to stop conduct it reasonably believed to be violative of the terms of the release. The only evidence of retaliatory purpose was the filing of the lawsuit itself. As the Supreme Court held in BE & K, supra, such evidence is inadequate, as a matter of law, to justify any burden on Bull’s constitutional right to petition the courts. The filing of Bull’s complaint did not violate § 4 (4) or § 4 (4A) of G. L. c. 15IB, and summary judgment was properly granted. 3. Award of costs. The Superior Court judge properly allowed Bull’s motion for costs. General Laws c. 261, § 1, states: “In civil actions the prevailing party shall recover his c

Jennifer Thomas vs. EDI Specialists, Inc.; Steven A. Mills, third-party defendant. Bristol. May 8, 2002. August 15, 2002. Present: Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Contribution. Indemnity. Anti-Discrimination Law, Employment. Actionable Tort. Limitations, Statute of. A Superior Court judge correctly dismissed an employer’s third-party complaint against an employee who had been named as a primary offender in a fellow employee’s discrimination action against the employer pursuant to G. L. c. 15IB, where the employer had no right of contribution or indemnification against the offending employee for the alleged violations of c. 151B. [538-543] Civil action commenced in the Superior Court Department on October 13, 2000. A motion to dismiss a third-party complaint was heard by Ernest B. Murphy, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Randall T. Weeks, Jr. (Matthew C. Worthen with him) for EDI Specialists, Inc. John T. Landry, III, for Steven A. Mills. The following submitted briefs for amici curiae: Cynthia L. Amara for New England Legal Foundation. Thomas F. Reilly, Attorney General, Catherine C. Ziehl & Kathleen Z. Quill, Assistant Attorneys General, for the Attorney General. Robert S. Mantell for Massachusetts Employment Lawyers Association. Cowin, J. We decide today whether an employer has a right of contribution or indemnification against an offending employee for alleged violations of G. L. c. 151B. Jennifer Thomas filed a discrimination action in the Superior Court pursuant to G. L. c. 151B against her employer, EDI Specialists, Inc. (EDI). In her complaint, she names Steven A. Mills, a fellow employee, as a primary offender. EDI filed a third-party complaint against Mills seeking contribution and indemnification in the event it is found liable to Thomas. Mills moved to dismiss the third-party complaint, claiming, inter alla, that G. L. c. 151B does not provide for a right of contribution or indemnification against an employee. A judge in the Superior Court agreed with Mills and dismissed EDI’s third-party complaint. We affirm. 1. Facts and procedural background. We summarize the relevant facts from the Superior Court’s order, supplemented by relevant information from the record. EDI is an eighteen-employee company located in Massachusetts. Thomas was hired by EDI as an implementation services manager, and Mills as an operations director. In her charge of discrimination before the Massachusetts Commission Against Discrimination (commission), Thomas named EDI as the sole respondent and claimed that, after the announcement of her pregnancy, she was subjected to continuous and ongoing discrimination. Specifically, she alleged that, after becoming pregnant, she was required to document “every minute” of her time and was harassed and subjected to derogatory comments. She claimed further that after the birth of her child, she was not returned to the assignment she had before her maternity leave as she had been promised, and she was also changed from a salaried to an hourly employee. After waiting the requisite ninety days after the filing of her complaint with the commission, see G. L. c. 151B, § 9, Thomas commenced an action in the Superior Court under G. L. c. 151B, thereby transferring the case from the commission. EDI is the only defendant named in the complaint. Thomas alleged, inter alla, that EDI unlawfully discriminated against her on the basis of sex and in connection with her pregnancy in violation of G. L. c. 151B. According to Thomas, Mills referred to her as the “Company Prego” and told her that her inability to travel was detrimental to EDI. Thomas also alleged discriminatory behavior by the company’s president, Joseph Gilbody, and EDI itself for the failure to adopt company policies regarding sexual harassment and maternity leave. EDI filed a third-party complaint against Mills seeking indemnification and contribution. A Superior Court judge granted Mills’s motion to dismiss EDI’s third-party complaint, reasoning that G. L. c. 23IB, § 1 (a), the statute providing for the right to seek contribution, only applies to tort claims, and a claim under G. L. c. 15IB is not a “ ‘tort-like’ cause of action.” EDI petitioned for interlocutory review of the Superior Court’s order to a single justice of the Appeals Court, who granted EDI leave to file an interlocutory appeal. We transferred the case to this court on our own motion. 2. Discussion. On appeal, EDI argues that an employer sued under G. L. c. 15IB may seek contribution and indemnification from an offending employee pursuant to G. L. c. 23IB, § 1 (a). General Laws c. 15IB, § 4, provides that “[i]t shall be an unlawful practice . . . for an employer . . . because of race, color, religious creed, national origin, sex, sexual orientation . . . , genetic information, or ancestry ... to discriminate against such individual in compensation or in terms, conditions or privileges of employment. . .” (emphasis added). The statute sets forth a detailed procedure that an aggrieved employee must follow in pursuing a discrimination claim, G. L. c. 151B, § 5, and has been interpreted to allow an action against an individual employee as well as an employer. See Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 490-492 (2000). General Laws c. 15 IB contains no provision regarding an employer’s right to seek contribution from the offending employee. However, EDI argues that contribution is permitted by G. L. c. 23 IB. That statute provides for a right to contribution “where two or more persons become jointly liable in tort,” G. L. c. 23IB, § 1 (a), and permits a tortfeasor to seek partial reimbursement from a party who is jointly hable if he has paid more than his “pro rata share” of the damages. G. L. c. 23IB, § 1 (b). The language of the statute does not distinguish between intentional torts and negligence. The right of contribution created by G. L. c. 23 IB is not limited to those causes of action that existed when the statute became effective. Wolfe v. Ford Motor Co., 386 Mass. 95, 98-99 (1982). Rather, in deciding whether a particular statutory action supports a claim for contribution under G. L. c. 23IB, we must look to whether the underlying claim is “in essence a tort claim.” Id. at 99. See Ankiewicz v. Kinder, 408 Mass. 792, 795 (1990). Applying tins principle, we have held that a defendant may seek contribution in connection with a claim of implied warranty of merchantability, Wolfe v. Ford Motor Co., supra, and a claim of violation of the lead paint prevention law, Ankiewicz v. Kinder, supra. See Framingham Union Hosp. v. Travelers Ins. Co., 744 F. Supp. 29 (D. Mass. 1990) (permitting contribution in connection with claim of unfair business practices under G. L. c. 93A). EDI maintains that a discrimination action under c. 151B, like the statutes described above, “sound[s] in tort,” and thus permits third-party actions for contribution. Although we have, at times, analogized discrimination actions to tort actions, see, e.g., Dalis v. Buyer Advertising, Inc., 418 Mass. 220, 224 (1994); Conway v. Electro Switch Corp., 402 Mass. 385, 387-388 (1988), in other contexts, we have distinguished discrimination actions from tort actions. See Jancey v. School Comm. of Everett, 421 Mass. 482, 501 (1995), S.C., 427 Mass. 603 (1998) (“acts of discrimination — whether intentional or unintentional — do not thereby become torts”). See also McMillan v. Massachusetts Soc’y for the Prevention of Cruelty to Animals, 168 F.R.D. 94, 97 (D. Mass. 1995) (holding that statutory cap on tort damages recoverable against charitable organizations not applicable to claims brought under c. 151B). Our prior cases recognize that, in some but not all respects, actions brought under G. L. c. 151B are analogous to tort actions. Even if G. L. c. 151B can be considered “tort-like” for some purposes, allowing an action for contribution would undermine the statute’s complex and detailed procedures; the Legislature could not have intended such a result. General Laws c. 151B sets forth a comprehensive scheme for the resolution of discrimination claims. Guzman v. Lowinger, 422 Mass. 570, 571 (1996). Melley v. Gillette Corp., 19 Mass. App. Ct. 511 (1985), S.C., 397 Mass. 1004 (1986). A complainant may pursue a remedy either through administrative proceedings within the commission or through the judicial system. G. L. c. 151B, §§ 5, 9. However, a complainant under G. L. c. 151B must meet certain procedural requirements before proceeding in the courts, East Chop Tennis Club v. Massachusetts Commission Against Discrimination, 364 Mass. 444, 448 (1973); Melley v. Gillette Corp., supra at 512, and is not permitted to withdraw the case until the completion of a ninety-day waiting period unless “a commissioner assents in writing” to an earlier withdrawal. G. L. c. 15 IB, § 9. Allowing a right of contribution would interfere with the Legislature’s preference for resolving the proceedings at the administrative level. Charland v. Muzi Motors, Inc., 417 Mass. 580, 585 (1994), quoting Melley v. Gillette Corp., supra at 513 (referring to “legislative preference for an administrative solution”). The administrative process provides a defendant with notice and the opportunity for conciliation. G. L. c. 151B, § 5. Courts have recognized “the importance under c. 151B of sufficient notice being provided in the [commission] filing of the charges being made and of the parties deemed responsible, so as to allow both the opportunity to attempt early conciliation and a fair opportunity to litigate the issues raised.” Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 492 (2000), citing Chatman v. Gentle Dental Ctr. of Waltham, 973 F. Supp. 228, 235 (D. Mass. 1997). The commission’s regulations do not provide a method by which a defendant may join a third party, thereby potentially depriving a third-party defendant of the opportunity to participate in the administrative process. School Comm. of Brockton v. Massachusetts Comm’n Against Discrimination, 423 Mass. 7, 13 (1996) (“The investigating commissioner denied the school committee’s motion to join the union as a party-respondent because the commission has no rule allowing for third-party practice”). Further, the short statute of limitations of G. L. c. 15IB conflicts with the longer period of time in which a defendant may seek contribution under G. L. c. 23IB. At the time of this case, claims under G. L. c. 151B were lost if not brought within six months of the offending conduct. G. L. c. 151B, § 5. However, an action for contribution may be commenced as late as “one year after the judgment has become final by lapse of time for appeal or after appellate review.” G. L. c. 23IB, § 3 (c). The present case exemplifies the potential procedural pitfalls if we permit a defendant to assert a third-party complaint for contribution. Mills was not named as a respondent by Thomas in her original or amended complaint before the commission. In addition, EDI filed its third-party complaint against Mills only after the case had proceeded to court and after the six-month statute of limitations had expired. Thus, Mills was not afforded the administrative protections provided under G. L. c. 151B, and EDI’s late filing of the complaint deprived him of the benefit of the short limitations period of G. L. c. 151B. Engrafting a right to contribution would conflict with the remaining provisions of the statute and undermine the importance of its specific procedures. We cannot infer that the Legislature intended such a result. In addition, allowing a claim for contribution would circumvent the purposes of G. L. c. 151B. The language of the statute provides that an “employer” may be liable for discriminatory acts committed “by himself or his agent.” G. L. c. 151B, § 4. The statute also directs employers to adopt certain policies to prevent discrimination. See, e.g., G. L. c. 151B, § 3A. Thus, the statute clearly evinces an intent to reduce discrimination in the workplace by holding employers responsible for the discriminatory actions of their employees, regardless of whether these actions were authorized or supported by the employer or its policies. Although our conclusion may burden the employer who bears sole liability for the unauthorized conduct of an employee, that appears to be precisely what the Legislature intended. We also note that employers may protect their interests by contracting with employees for indemnification and enforcing that contract in a separate action, if the employer is held liable for the employee’s discriminatory behavior. The United States Supreme Court has reached a similar result in interpreting Title VII of the Civil Rights Act of 1964, the analogous Federal discrimination statute. Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 80-81 (1981). The Court reasoned that there is no Federal statutory right to contribution; Title VII was enacted solely to establish a statutory right of employees against employers, not to benefit employers; and the comprehensive nature of the remedial and enforcement schemes “expressly fashioned by Congress strongly evidences an intent not to authorize additional remedies.” Id. at 91-94. As discussed above, c. 151B, like its Federal counterpart, was enacted to eliminate discrimination by employers against employees through a comprehensive enforcement scheme. Although c. 15 IB, unlike Title VII, allows for the personal liability of individual employees, Beaupre v. Cliff Smith & Assocs., supra at 490-491, we find the reasoning of the Northwest Airlines case convincing. College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 163 (1987) (“In interpreting our statute, we may look to the interpretations of Title VII of the analogous Federal statute . . . “). As judges, we cannot amend the legislative scheme by “adding to [it] another private remedy not authorized by [the Legislature].” Northwest Airlines, Inc. v. Transport Workers Union, supra at 94. Judgment affirmed. Although EDI maintains that it is entitled to indemnification as well as contribution, EDI does not argue separately on indemnification. EDI makes no allegation of an express or implied contractual provision for indemnity. See Fall River Hous. Auth. v. H.V. Collins Co., 414 Mass. 10, 14 (1992). EDI apparently assumes that G. L. c. 231B, § 1 (a), provides a right to indemnification. Indemnification, however, is a common-law right available to one who is “without fault, [and] compelled by operation of law to defend himself against the wrongful act of another.” Santos v. Chrysler Corp., 430 Mass. 198, 217 (1999), quoting Elias v. Unisys Corp., 410 Mass. 479, 482 (1991). The Legislature did not intend that an employer found to be in violation of G. L. c. 151B could later be considered fault free in a subsequent action for indemnity. The commission has previously recognized a right of contribution under G. L. c. 23 IB against a union jointly liable for the discrimination. See Angelli vs. Lynn Sch. Comm., No. 81 BEM 0275 (1985). See also School Comm. of Brockton v. Massachusetts Comm’n Against Discrimination, 423 Mass. 7, 13 (1996). In the Angelli case, however, the third-party procedure was not needed to reach the union, as the complainants had named both the employer and the union in their complaint. Angelli vs. Lynn Sch. Comm., supra. The commission was thus faced with the complainants’ direct claims against both respondents, and did not have to confront the problems posed when a named respondent, not the claimant, seeks to bring another respondent into the case. The time for filing such complaints has since been extended to 300 days. See St. 2002, c. 223, § 1. We recognize that other jurisdictions have allowed actions for contribution under their own discrimination statutes. See Degener v. Hall Contracting Corp., 27 S.W.3d 775 (Ky. 2000); Donajkowski v. Alpena Power Co., 460 Mich. 243, 248-250 (1999) (permitting a third-party claim against union in gender discrimination claim); Flaherty vs. S.D. Warren Co., U.S. Dist. Ct. No. 98-254-P-H (D. Me. Jan. 26, 1999); Rodolico vs. Unisys Corp., 189 F.R.D. 245, 250 (E.D.N.Y. 1999) (same); Biggs v. Surrey Broadcasting Co., 811 P.2d, 111, 114-115 (Okla. Ct. App. 1991) (permitting counterclaim claim for indemnification by employer against employee in gender discrimination claim). As recognized in these decisions, there may be many sound policy reasons favoring an award of contribution. We are of the view, however, that those policy considerations are for the Legislature to weigh, and we will not engraft provisions that the Legislature has not enacted onto the very detailed procedures of G. L. c. 151B.

JAGER v NATIONWIDE TRUCK BROKERS, INC Docket Nos. 226007, 228672. Sumitted May 8, 2002, at Grand Rapids. Decided August 9, 2002, at 9:20 am. Leave to appeal sought. Brenda S. Jager brought an action in the Kent Circuit Court against Nationwide Truck Brokers, Inc., James Wilkerson, Designed Administrative Resources and Technologies, Inc., and Simplified Employment Services, Inc., seeking damages under the Michigan Civil Rights Act (ora), MCL 37.2101 et seq. The plaintiff was employed with defendants Designed and Simplified and worked, through an employee lease agreement, for defendant Nationwide under the supervision of defendant Wilkerson. The plaintiff alleged that defendant Wilkerson made unwanted sexual advances toward her and that she told certain employees of defendant Nationwide about Wilkerson’s conduct before she left work at Nationwide. On the plaintiff’s last day of work, an attorney on behalf of the plaintiff sent a letter to the president of Nationwide concerning the alleged harassment. After Nationwide, Designed, and Simplified had conducted a prompt investigation and were unable to substantiate the plaintiff’s allegations of harassment, Nationwide invited the plaintiff to return to work for Nationwide in a capacity in which she would not have to have any contact with Wilkerson, arid Designed and Simplified offered to assist the plaintiff with finding a new job assignment if she preferred not to return to Nationwide. The plaintiff declined both offers and commenced her action. Following discovery, Nationwide and Wilkerson moved for summary disposition, arguing that the plaintiff could not demonstrate quid pro quo sexual harassment because the defendants took no adverse employment action against the plaintiff and that the plaintiff could not show a hostile work environment because she had not properly notified Nationwide of the harassment. The plaintiff argued that she had been subjected to severe and pervasive harassment and that her communications with Nationwide employees concerning the harassment provided adequate notice to Nationwide. The court, Robert A. Benson, X, granted summary disposition for Nationwide and Wilkerson and dismissed the plaintiff’s complaint, holding that the plaintiff had not demonstrated that any adverse employment action had been taken against her, that the plaintiff had not demonstrated that Nationwide had been properly notified of the sexual harassment before receiving the letter from her attorney that resulted in its prompt investigation of the plaintiff’s charges, and that there was no authority for holding an individual employee liable under the cra for sexual harassment where the employer had been dismissed. The court denied the plaintiff’s motion to amend her complaint to add a count of assault and battery against Wilkerson. Nationwide and Wilkerson moved for attorney fees pursuant to the case evaluation provisions of MCR 2.403(0), which the court, George S. Buth, J., granted, albeit in an amount less than requested, on the basis of the affidavits of defense counsel, the itemized billing statements, and the surveys of hourly rates of Michigan attorneys that had been provided in support of the motion. The plaintiff appealed separately the order granting summary disposition and dismissing her complaint (Docket No. 226007) and the order granting case evaluation sanctions (Docket No. 228672). The appeals were consolidated. The Court of Appeals held: 1. The cra prohibits an employer from discriminating on the basis of sex, which includes sexual harassment. Subsection 103(i) of the cra, MCL 37.2103(i), defines sexual harassment as sexual advances, requests for sexual favors, or other verbal or physical conduct or communication of a sexual nature where submission to such conduct or communication is made a term or condition to obtain employment, where submission to or rejection of such conduct or communication by an individual is used as a factor in a decision affecting employment, or where such conduct or communication has the purpose or effect of substantially interfering with employment. The first two situations are commonly labeled quid pro quo harassment, while the third situation is commonly labeled hostile environment harassment. 2. In order to establish a claim of quid pro quo harassment, an employee must show, by a preponderance of the evidence, subjection to any of the types of unwelcome sexual conduct or communication described in the statute and that the employer or the employer’s agent used submission to or rejection of the proscribed conduct as a factor in a decision affecting employment. 3. In order to establish a claim of hostile environment harassment, an employee must show, by a preponderance of the evidence, membership in a protected group, subjection to unwelcome sexual conduct or communication, that the unwelcome sexual conduct or communication was either intended to or did substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment, and respondeat superior. 4. Although the plaintiffs proffered evidence created a genuine issue of material fact concerning whether she was subjected to unwelcome sexual conduct and communication, the plaintiff failed to present any evidence of a decision affecting her employment that was related to her submission to or rejection of the unwelcome sexual conduct and communication. Accordingly, the trial court properly granted summary disposition for Nationwide with respect to the plaintiff’s claim of quid pro quo sexual harassment under the cra. 5. To establish the respondeat superior element of a hostile environment harassment claim, a plaintiff must show that the employer knew of the harassment, which can be shown by evidence that a complaint was made to higher management, or that the employer should have known about the harassment because of its pervasiveness. Higher management is someone in the employer’s chain of command who possesses the ability to exercise significant influence in the decision-making process of hiring, firing, and disciplining the employee who was engaging in the offensive behavior. 6. The plaintiff failed to show on the record that she had specifically informed any person who had management authority over Wilkerson of his harassment of her at any significant time before she left her employment with Nationwide. The plaintiff further failed to show that the harassment was so pervasive that Nationwide should have been alerted to the possibility that she was being harassed. Because the plaintiffs threats to Wilkerson to stop his harassment does not constitute notice to higher management, the trial court properly granted summary disposition for Nationwide with respect to the claim of hostile environment harassment under the cra. 7. The language of the cra indicates a clear intent that liability for violation of the civil rights protected by the act rests solely on employers even though that liability may arise from the acts of employees who have the authority to act on the employer’s behalf. Because the cra imposes liability only on employers and not on individual employees of an employer, the trial court properly held that Wilkerson could not be held liable with respect to the plaintiffs claims under the cra and, accordingly, properly granted summary disposition for Wilkerson with respect to those claims. 8. The trial court did not abuse its discretion in denying the plaintiff’s motion to amend her complaint to add a claim against Wilkerson for assault and battery, given the fact that the motion to amend was made more than l'A years after the original complaint was filed, and after the close of discovery, after case evaluation, and after summary disposition had been granted to the defendants. 9. There was sufficient evidence on the record to support the trial court’s award of attorney fees and, accordingly, there was no need to hold an evidentiary hearing concerning the reasonableness of those fees. Affirmed. Civil Rights — Civil Rights Act — Employers — Agents — Individual Liability. The Michigan Civil Rights Act imposes liability on an employer for violation of the civil rights of an employee that are protected under the act; the act creates liability on the part of the employer for acts committed by an agent of the employer, but the act does not impose on the agent any individual liability for a violation of the civil rights of an employee that are protected under the act (MCL 37.2201[a], 37.2202). Eardley Law Offices, P.C. (by Eugenie B. Eardley), for the plaintiff. Warner Norcross & Judd LLP (by Paul T. Sorensen and Andrea J. Bernard) for Nationwide Truck Brokers, Inc., and James Wilkerson. Before: Wilder, P.J., and Bandstra and Hoekstra, JJ. Hoekstra, J. In these consolidated appeals stemming from plaintiffs sexual harassment action against her employers and her supervisor, plaintiff appeals as of right the trial court’s grant of summary disposition in favor of defendant Nationwide Truck Brokers, Inc. (ntb), and defendant James Wilkerson (Docket No. 226007), and the trial court’s grant of case evaluation sanctions to those defendants (Docket No. 228672). We affirm. I. FACTS AND PROCEDURAL HISTORY Plaintiff was employed with defendants Designed Administrative Resources and Technologies, Inc. (dart), and Simplified Employment Services, Inc. (ses). Through an employee lease agreement, plaintiff worked for ntb under the supervision of Wilkerson as a log entry clerk in ntb’s safety department. According to plaintiff, in August 1996, Wilkerson began making unwanted sexual advances toward her, including sending her sexually explicit electronic mail “pop up” messages, repeatedly asking her to go out with him, and telling her that she “smelled” good. Further, Wilkerson allegedly grabbed her breasts and buttocks, put his face close to her breasts, pulled her skirt up over her waist, ran a toy golf club up the slit of her skirt, presented her with a gift of lingerie, and made sexually explicit remarks to her. Plaintiff testified at a deposition that she told certain employees of ntb about Wilkerson’s conduct, including Dave Wojtaszek and Mark Doyle, and talked to Dave Birge about possibly transferring to his department. On February 17, 1997, plaintiff left work at NTB. Thereafter, plaintiff contacted an attorney, who sent a letter on that same date to Henry Schwarz, the president of ntb, notifying NTB of the harassment. Plaintiff was given paid leave, as she requested, and Wilkerson was placed on suspension pending the outcome of an investigation. Ntb, dart, and ses conducted an investigation and were unable to substantiate plaintiff’s allegations of harassment. Thereafter, ntb invited plaintiff to return to work at ntb, but indicated that plaintiff would not have any contact with Wilkerson, either directly or indirectly. Similarly, dart and ses offered to assist plaintiff with finding a new job assignment if she preferred not to return to NTB. Plaintiff declined both offers. On June 8, 1998, plaintiff filed a complaint against NTB, DART, SES, and Wilkerson, alleging two counts of discrimination in violation of Michigan’s Civil Rights Act (CRA), MCL 37.2101 et seq. The only count at issue on appeal is plaintiff’s claim of “sexual discrimination and harassment.” Defendants answered the complaint, and Wilkerson also filed a counterclaim alleging slander and intentional infliction of emotional distress. Discovery ensued and in September 1999, NTB and Wilkerson moved for summary disposition under MCR 2.116(C)(10). These defendants argued, in essence, that plaintiff could not demonstrate quid pro quo sexual harassment because defendants took no adverse employment action against plaintiff and that plaintiff could not demonstrate a hostile work environment because she had not properly notified ntb of the harassment. In response, plaintiff claimed she was subjected to severe and pervasive harassment and that notice had been given to defendant ntb because plaintiff told ntb employees Dave Wojtaszek, Mark Doyle, and Al Szukala about the harassment. After a hearing on the motion, on February 4, 2000, the trial court granted summary disposition in favor of ntb and Wilkerson and dismissed the sexual harassment count of plaintiffs complaint. The trial court noted that under the quid pro quo theory of sexual harassment, plaintiff had not demonstrated that any adverse job action was taken against her. The trial court also rejected plaintiffs hostile environment sexual harassment clafitt because ntb was not notified of the sexual harassment until ntb received the letter from plaintiffs attorney and thereafter ntb suspended Wilkerson, provided plaintiff with paid leave, and conducted a prompt investigation. Further, the trial court explained that plaintiff provided no authority for the proposition that an individual employee could be held liable for sexual harassment where the employer had been dismissed. In another order relevant to this appeal, the trial court denied plaintiff’s oral motion to amend the complaint to add an assault and battery count against Wilkerson. Further, ntb and Wilkerson moved for case evaluation sanctions in accordance with MCR 2.403(0), which the trial court awarded, albeit in an amount less than requested. H. SUMMARY DISPOSITION OF PLAINTIFF’S SEXUAL HARASSMENT CLAIMS AGAINST NTB On appeal, plaintiff first argues that the trial court erred in granting summary disposition pursuant to MCR 2.116(C)(10) in favor of ntb under two separate theories of liability, quid pro quo sexual harassment and hostile environment sexual harassment. Plaintiff claims that she produced sufficient evidence to create a question of fact and, thus, that her sexual harassment claims under these theories should have gone to a jury. We review de novo a trial court’s grant of summary disposition. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion pursuant to MCR 2.116(C)(10) tests the factual sufficiency of the claim. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). “When reviewing a motion for summary disposition brought under MCR 2.116(C)(10), the trial court must consider the affidavits, pleadings, depositions, admissions, and documentary evidence submitted by the parties in the light most favorable to the party opposing the motion.” Meyer v Center Line, 242 Mich App 560, 574; 619 NW2d 182 (2000). Summary disposition is appropriate where the proffered evidence fails to establish a genuine issue of material fact. Maiden, supra; Smith v Globe Life Ins Co, 460 Mich 446, 455-456, n 2; 597 NW2d 28 (1999). The CRA prohibits an employer from, among other things, discriminating because of sex, which includes sexual harassment. MCL 37.2202(1); MCL 37.2103(i); Chambers v Trettco, Inc (On Remand), 244 Mich App 614, 617; 624 NW2d 543 (2001). Section 103(i) of the act, MCL 37.2103(i), defines sexual harassment: Sexual harassment means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature under the following conditions: (i) Submission to the conduct or communication is made a term or condition either explicitly or implicitly to obtain employment.... (ii) Submission to or rejection of the conduct or communication by an individual is used as a factor in decisions affecting the individual’s employment.... (iii) The conduct or communication has the purpose or effect of substantially interfering with an individual’s employment ... or creating an intimidating, hostile, or offensive employment. . . environment. When sexual harassment falls under one of the first two subsections, it is commonly labeled quid pro quo harassment, and when it falls under the third subsection, it is commonly labeled hostile environment harassment. Chambers v Trettco, Inc, 463 Mich 297, 310; 614 NW2d 910 (2000). With regard to each of these two categories of sexual harassment, our Supreme Court has identified the elements that a plaintiff must establish to make out a claim. Id. Quoting its previous decisions in Champion v Nation Wide Security, Inc, 450 Mich 702; 545 NW2d 596 (1996), and Radtke v Everett, 442 Mich 368; 501 NW2d 155 (1993), our Supreme Court explained: In order to establish a claim of quid pro quo harassment, an employee must, by a preponderance of the evidence, demonstrate: “(1) that she was subject to any of the types of unwelcome sexual conduct or communication described in the statute, and (2) that her employer or the employer’s agent used her submission to or rejection of the proscribed conduct as a factor in a decision affecting her employment. [Champion, supra at 708-709.]” In order to establish a claim of hostile environment harassment, an employee must prove the following elements by a preponderance of the evidence: “(1) the employee belonged to a protected group; “(2) the employee was subjected to communication or conduct on the basis of sex; “(3) the employee was subjected to unwelcome sexual conduct or communication; “(4) the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment; and “(5) respondeat superior. [Radtke, supra at 382-383.]” [Chambers, supra, 463 Mich 310-311.] However, when hostile environment harassment is committed by an agent of the employer, an employer may avoid liability if it adequately investigated and took prompt and appropriate remedial action upon notice of the alleged harassment. Chambers, supra, 463 Mich 312. “The bottom line is that, in cases involving a hostile work environment claim, a plaintiff must show some fault on the part of the employer.” Id. “An employer, of course, must have notice of alleged harassment before being held liable for not implementing action.” Radtke, supra at 396-397. When considering whether the employer was provided adequate notice, courts must apply an objective standard. Chambers, supra, 463 Mich 319 (“notice 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”). A. QUID PRO QUO HARASSMENT We first address plaintiff’s claim of quid pro quo harassment and conclude that plaintiff satisfied only the first of the two elements. Viewing the evidence in a light most favorable to plaintiff, plaintiff did present evidence that created a genuine issue of material fact concerning whether she was subjected to unwelcome sexual conduct and communication. Plaintiff presented evidence that Wilkerson made sexually explicit comments to her and made inappropriate sexual contact with her. However, plaintiff must also present evidence that her submission to or rejection of the sexual advances was used as a factor in a decision affecting her employment. Chambers, supra, 463 Mich 310. Here, plaintiff offers no evidence of a decision affecting her employment made by Wilkerson that related to her submission to or rejection of his sexual advances. Rather, on appeal, she argues that she was constructively discharged because her efforts to alert someone to the harassment appeared to be futile, she felt hopeless, she thought she needed outside help, she felt humiliated after ntb conducted its investigation but found her charges unsubstantiated, and she was dissatisfied with ntb’s request that she return to work under a different supervisor or seek reassignment through DART and SES, while Wilkerson returned to his job. While we acknowledge that under certain circumstances a constructive discharge can be an adverse employment action resulting from submission to or rejection of sexual advances, see Champion, supra at 710-713, plaintiff has not shown that connection in this case. Chambers, supra 463 Mich 317. In other words, the events on whic

Elise Russell vs. Cooley Dickinson Hospital, Inc., & another. Hampshire. March 7, 2002. August 8, 2002. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Anti-Discrimination Law, Handicap, Employment. Employment, Discrimination. Estoppel. Workers’ Compensation Act, Preference in hiring. Words, “Qualified handicapped person.” Pursuit and receipt of workers’ compensation benefits based on an assertion of total temporary disability did not automatically estop a plaintiff from pursuing an action for employment discrimination on the basis of handicap under G. L. c. 151B, § 4 (16), where the plaintiff was able to produce evidence sufficient to raise a question as to her ability, if provided with a reasonable accommodation, to perform the essential functions of the position in question [450-453]; however, summary judgment in favor of the defendant employer was appropriate where the plaintiff did not have any reasonable expectation of establishing that the hospital, by failing to create a new position for her, to provide her with indefinite leave, or to assign her to a position that she did not request, failed to provide her with a reasonable accommodation for her disability [453-458]. A plaintiff in an employment discrimination action failed to demonstrate that her employer denied her the hiring preference to which she was entitled under G. L. c. 152, § 75A [458], and failed to establish the elements of her claims of fraudulent and negligent misrepresentation on the part of her employer [458-459]. Civil action commenced in the Superior Court Department on May 6, 1997. The case was heard by Peter A. Veils, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Susan D. Sachs for the plaintiff. Margaret W. Has san for the defendants. Sharon L. Gasior, director of human resources and employee health from 1994 to 1996, and vice-president of human resources during and after 1996. Ireland, J. This case presents a question of first impression in the Commonwealth: whether an employee who receives workers’ compensation benefits for “temporary total disability” is precluded from claiming that she is a “qualified handicapped person,” capable of performing “the essential functions of the position involved” with or without “reasonable accommodation,” for purposes of claiming employment discrimination under G. L. c. 151B, § 4 (16). A Superior Court judge granted summary judgment for the defendants, concluding that the plaintiff was barred from claiming that she was a “qualified handicapped person” for purposes of bringing an employment discrimination claim because she was receiving disability benefits on the assertion of being “temporarily totally disabled.” The judge further concluded that the defendants did not fail to provide the plaintiff with a reasonable accommodation and, therefore, were entitled to summary judgment on those claims. The plaintiff appealed and we transferred the case to this court on our own motion. The plaintiff claims that the rulings of the Superior Court were erroneous, that she should not have been barred automatically from claiming she was a “qualified handicapped person” simply because of her prior claims for, and receipt of, disability benefits, and that the defendants failed to provide her with a rehabilitation position, leave extension, or reserve position to accommodate her disability, in violation of G. L. c. 151B, § 4 (16). Although we conclude that pursuit, and receipt, of disability benefits based on an assertion of total disability does not automatically estop a plaintiff from pursuing an action for employment discrimination, we affirm the judgments in this case because the plaintiff has no reasonable expectation of showing that Cooley Dickinson Hospital, Inc. (hospital), failed to provide a reasonable accommodation under G. L. c. 151B, § 4 (16). I. Facts. Because an understanding of the facts is critical to an understanding of the results, we set them out in some detail. The plaintiff, Elise Russell, currently works at the hospital as a part-time patient registration and admitting assistant. Russell began her employment at the hospital in the admitting department in 1987, taking a job in another department for a short time, and returning to the admitting department in 1988. Admitting assistants perform various duties associated with the admitting of patients, including entering patient data into the hospital computer system. The relevant job description requires the use of keyboarding, stating that admitting assistants must have “fine motor skills for the effective and efficient handling of writing tools, office equipment . . . and entry of patient data.” On numerous occasions between December, 1991, and September, 1994, the plaintiff reported work-related injuries that caused pain in her upper extremities, neck, or back, which she believed were related to her use of the computer. The hospital responded by adjusting the plaintiff’s work environment in consultation with a physical therapist and specialist treating the plaintiff. Among the changes the hospital made were excusing the plaintiff from working at the reception desk, lowering her desk to a specified height, adjusting the height of her computer, providing new chairs with improved ergonomics, providing a document holder, providing wrist rests, and permanently assigning the plaintiff to the fourth of the admitting clerk stations to accommodate a lighter work volume and to allow the plaintiff to pace herself. The plaintiff took an industrial accident leave of absence from August 31, 1993, to November 24, 1993, for surgery to alleviate some of her symptoms. Her pain, however, persisted when she returned to work. On the advice of her physician, the plaintiff commenced a second leave of absence in September, 1994. The plaintiff received workers’ compensation benefits based on temporary total disability during both of her leaves of absence. The hospital’s third-party administrator of its self-insured workers’ compensation fund, Compco, hired Lucinda Palmer, president of Action Care Management Services, Inc., to manage the plaintiff’s medical treatment and to facilitate her return to work. Palmer reviewed the plaintiff’s medical records, interviewed her, visited and spoke with her regularly, and accompanied her to various medical appointments. She submitted periodic reports to Compco, copies of which she forwarded to the plaintiff’s attorney at the attorney’s request. To meet departmental needs during the plaintiff’s absence, the hospital requested that part-time admitting assistants work additional hours, had the department’s assistant managers cover a shift, and used reserve employees to cover shifts when they were available. In January, 1995, it posted a temporary sixteen-hour a week admitting assistant position to cover some of the plaintiff’s hours. During the winter spanning 1994 to 1995, the plaintiff’s condition improved and she expressed a desire to return to work. Palmer contacted the plaintiff’s supervisor, Janet Mc-Enaney, who indicated that she was willing to allow the plaintiff to return to work on a modified duty basis and to “accommodate [the plaintiff] on a very, gradual and incremental return to work.” As a preliminary step, commonly used to acclimate returning employees still experiencing pain, Palmer scheduled a “work simulation” with an occupational therapist in March, 1995. During the simulation, the plaintiff performed functions that would be required of her at work, including keyboarding. The simulation occurred over a period of weeks, starting with ten minutes of keyboarding and gradually increasing to fifteen minutes. The plaintiff suffered significant pain during the simulations and discontinued them. Palmer reported that, after completing occupational therapy and visiting with physicians, “it was determined that [the plaintiff] is apparently not going to be able to fulfill the functional demands of her job.” Palmer copied the report to the plaintiff’s attorney. The plaintiff did not tell Palmer or anyone at the hospital that she disagreed with the report or that she thought she could perform her job. Palmer then focused her efforts on “vocational rehabilitation” for the plaintiff so that she could learn the skills necessary to perform a different job, not requiring heavy keyboarding or writing. Palmer’s report indicated that the plaintiff agreed with this approach. Palmer then requested, with the plaintiff’s cooperation and the plaintiff’s attorney’s approval, that the Department of Industrial Accidents office of education and vocational rehabilitation categorize the plaintiff as suitable for vocational rehabilitation because of her inability to return to her job. The plaintiff and her attorney participated in the preparation of an individualized work rehabilitation plan. On May 11, 1995, Palmer wrote to the defendant Sharon L. Gasior, inquiring whether the plaintiff could pursue another job at the hospital. The surgeon who operated on the plaintiff’s hand recommended pursuing other positions with the following limitations: “[Fjull time [work] with no continuous use of arms or hands in repetitive tasks, such as keyboarding or writing, for greater than [twenty] minutes. Repetitive tasks need to be followed by a brief rest, and then she must change to a different task. She must perform no repetitive lifting or carrying, and intermittent lifting or carrying is allowed to [fifteen] pounds only.” On May 26, 1995, Palmer, Gasior, and Joyce Boucher, the hospital’s occupational health nurse, met and discussed the possibility of finding the plaintiff a position suiting the limitations set out by her doctor. They concluded that there were no such positions at that time, with the exception of possible reserve positions in the linen or laundry departments. Palmer and Boucher examined the positions in the linen and laundry departments, and concluded that there was no single position that would meet the plaintiff’s restrictions, but that there were functions in the various jobs that the plaintiff could perform. Gasior agreed to consider creating a rehabilitation position of a composite of duties from different positions. Gasior told Palmer that if a rehabilitation position were identified and could be provided, she would inform Palmer or the plaintiff in writing. Gasior consulted with the supervisors in the laundry and linen departments and the director overseeing both departments. The creation of a position comprising the various duties that the plaintiff likely could perform would require oversight by supervisors of both departments. Gasior was unable to resolve the question of a rehabilitation position for the plaintiff until September, 1995. Hospital policy provides that industrial accident leaves of absence are not to exceed one year, the longest leave the hospital provides. The plaintiff was aware of the policy prior to May, 1995, and believed that she would be terminated at the end of her leave if the hospital did not create a rehabilitation position for her. In late July, 1995, Gasior wrote to Palmer stating that she still did not know whether the hospital would be able to provide a rehabilitation position because the issue was still being evaluated. Palmer shared the letter with the plaintiff. On July 28, 1995, the plaintiff told Palmer about the hospital policy regarding leaves of absence, positing that the hospital was “stalling” its response. Palmer conveyed the plaintiff’s concerns to Gasior on August 17, 1995, who responded that if a rehabilitation position were possible it could be provided even after the plaintiff was terminated. Palmer met with the plaintiff and her attorney on August 30, 1995, and the plaintiff expressed her concern that she would be terminated when her leave expired. As a result, Palmer wrote to Gasior requesting that the hospital put the plaintiff back to work in some capacity before her leave expired, or to extend her leave pending determination whether a rehabilitation position would be made available. She also indicated that the plaintiff continued to be evaluated medically to determine what combination of treatment and accommodation would be required to return the plaintiff to work. The letter was silent regarding the plaintiff’s present or future ability to work as an admitting assistant. The plaintiff’s attorney also wrote to Gasior on September 6, 1995, requesting that the hospital not apply its one-year leave policy to the plaintiff, but did not make any claim as to the plaintiff’s ability to perform the duties of an admitting assistant. After returning from vacation, Gasior responded to both letters, notifying Palmer that the rehabilitation position was still under consideration, but that the leave policy would be applied. In fact, however, Gasior extended the plaintiff’s leave for one additional week, during which time she was able to complete her consultations regarding the rehabilitation position, learning that it would not be possible. The plaintiff’s employment was terminated effective September 15, 1995, one week after it would have otherwise expired. The hospital divided the plaintiff’s forty-hour position into two positions, one twenty-four hour position and one sixteen-hour position. Shortly thereafter, one part-time admitting assistant increased her regular hours to twenty-four. The plaintiff began new treatments with a different hand specialist and she noted improvement during the fall of 1995. In early December, 1995, she applied for vacant admitting assistant positions at the hospital in accordance with her doctor’s work clearance. The hospital offered the plaintiff the open sixteen-hour position, pending a work capacity evaluation, which was deferred for additional medical treatment. Once the evaluation was completed in the spring of 1996, the plaintiff’s doctor clarified his work clearance. In August, 1996, the plaintiff began working with restrictions in the sixteen-hour admitting assistant position. Her restrictions limited her to, among other things, no more than thirty minutes at a time of continuous use of arms or hands in repetitive tasks, such as keyboarding or writing, and required that she follow repetitive tasks with a rest and a different task. Since her return to work, the plaintiff has experienced pain and has filed incident reports stating that the pain is work related. The plaintiff also twice applied for additional hours in the admitting department, but these hours were given to another internal applicant with more seniority. She eventually increased her work schedule to twenty-six hours a week. II. Discussion. A. Employment discrimination. To establish a prima facie case for employment discrimination on the basis of handicap, the plaintiff must show that she was terminated, that she is “handicapped,” that she is a “qualified handicapped person,” and that she was terminated because of her handicap. See Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 7 (1998). The issue in this case is whether the plaintiff is a “qualified handicapped person” under the provisions of G. L. c. 151B, § 1 (16), and G. L. c. 152, § 75B. A “qualified handicapped person” is defined under G. L. c. 151B, § 1 (16), as “a handicapped person 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.” 1. Estoppel. The defendants argue and the judge concluded that the plaintiff cannot establish that she is a qualified handicapped person because at all relevant times she was collecting disability benefits on the basis of being “temporarily totally disabled.” See G. L. c. 152, § 34. See also Shirley’s Case, 355 Mass. 308, 311 (1969) (total disability shown if disability prevents employee from “performing remunerative work of a substantial and not merely trifling character”); Fennell’s Case, 289 Mass. 89, 94 (1935) (when employee “is disabled from doing some types of work and is unable to obtain work of the type he is able to do,” total incapacity finding warranted). The judge concluded that the plaintiff “filed for and received benefits ... on the basis of temporary total disability during her one-year leave of absence, and thus she is barred from claiming that she was able to perform the essential functions of her job with or without reasonable accommodation. ’’ We reject this conclusion but affirm the grant of summary judgment based on the judge’s alternative reasoning that the plaintiff could not establish that the hospital failed to provide her with a reasonable accommodation. In Labonte v. Hutchins & Wheeler, 424 Mass. 813 (1997), we faced a similar question. In that case, the defendant maintained that the plaintiff was estopped from bringing a claim for discrimination because he sought disability benefits, through a law firm insurance policy, after his termination from the law firm, suggesting that a plaintiff claiming disability benefits admits that he is totally disabled and, therefore, cannot be a “qualified handicapped person.” Id. at 816. We noted that a majority of courts reject the proposition that seeking benefits automatically disqualifies a plaintiff from bringing a discrimination claim. We stated that “[cjourts are wary of allowing plaintiffs to play ‘fast and loose with the courts’ by claiming to be too disabled to perform the functions of a job and also claiming that they were terminated from their positions despite being able to perform those same functions. . . . However, if the evidence creates a disputed issue of fact whether the handicapped person can perform the essential functions of the job, then estoppel is not appropriate.” (Citations omitted.) Id. Although a claim for benefits is an important factor to be considered in determining whether a fact question exists, the claim for benefits is not automatically dispositive. See id. at 817. The Supreme Court of the United States faced a similar question in Cleveland v. Policy Mgt. Sys. Corp., 526 U.S. 795 (1999), in which the plaintiff, after seeking and receiving Social Security disability insurance (SSDI) benefits, brought suit against her former employer under the Americans with Disabilities Act of 1990 (ADA). A Federal District Court granted summary judgment to the defendant because, in its view, the plaintiff had conceded that she was “totally disabled” and was estopped from proving an essential element of her ADA claim. Id. at 799. The United States Court of Appeals for the Fifth Circuit affirmed the District Court’s judgment, but stated that a rebuttable presumption of estoppel arises from the application for and receipt of SSDI benefits against a plaintiff suing under the ADA. Id. at 800. The Supreme Court vacated the judgment of the Court of Appeals and remanded for further proceedings, noting that claims under SSDI and the ADA, “in context, . . . are often consistent.” Id. at 797. The pursuit and receipt “of SSDI benefits does not automatically estop the recipient from pursing an ADA claim. Nor does the law erect a strong presumption against the recipient’s success under the ADA.” Id. at 797-798. The Court reasoned that “[a]n SSA [Social Security Administration] representation of total disability differs from a purely factual statement in that it often implies a context-related legal conclusion, namely T am disabled for purposes of the Social Security Act.’ ” Id. at 802. For example, the SSA does not take account of the possibility of “reasonable accommodation” when determining whether an individual is disabled for SSDI purposes. Id. at 803. “[A]n ADA suit claiming that the plaintiff can perform her job with reasonable accommodation may well prove consistent with an SSDI claim that the plaintiff could not perform her own job (or other jobs) without i