Discrimination Cases

LUCIANO PINEDA-LOPEZ, Plaintiff v. NORTH CAROLINA GROWERS ASSOCIATION, INC., PHILLIP MORGAN AND HORACE MORGAN, Defendants No. COA01-1273 (Filed 16 July 2002) Civil Procedure— Rule 52 — mixed findings of fact and conclusions of law A claim for retaliatory employment discrimination was remanded where the trial court dismissal of the claim violated N.C.G.S. § 1A-1, Rule 52 by making mixed findings of fact and conclusions of law. Appeal by plaintiff from order entered on 14 March 2001 by Judge Henry W. Hight, Jr., Superior Court, Wake County. Heard in the Court of Appeals 12 June 2002. Legal Services of North Carolina, Farmworker Unit, by Alice Tejada and Mary Lee Hall, North Carolina Justice and Community Development Center, by Carol L. Brooke, for plaintiff-appellant. Constangy, Brooks, & Smith, LLC, by Virginia A. Pierkarski and A. Robert Bell, III and W.R. Loftis, Jr., for defendant-appellant. WYNN, Judge. Plaintiff Luciano Pineda-Lopez appeals a trial court order dismissing his North Carolina Retaliatory Employment Discrimination Act claim. Because the order of the trial court violates the mandate of Rule 52 of the North Carolina Rules of Civil Procedure to make separate findings of fact and conclusions of law, we vacate the order and remand it to the trial court to comply with the rule. Mr. Pineda-Lopez is a Mexican national who worked in North Carolina under a temporary visa granted through a federal program to allow migrant workers to perform agricultural work in this country. Defendant North Carolina Growers Association operates on behalf of its agricultural employer members; it recruits, hires and assigns migrant workers to its grower members. Defendants Horace and Phillip Morgan are members of the North Carolina Growers Association who operate a farm in Wake County, North Carolina. The Morgans employed Mr. Pineda-Lopez from 6 June 1997 through 7 August 1997. On 31 July 1997, Mr. Pineda-Lopez and one of his co-workers, Marco Antonio Barrios, complained to a lawyer in the Farmworkers Unit of Legal Services of North Carolina about his working conditions on the Morgan Farm. He complained that after being sprayed with pesticides, while working in the tobacco fields, he experienced headaches and vomiting, and reported his condition to Philip Morgan the same day. He also stated that the Morgans failed to provide him and other workers with sufficient drinking water in the fields to last the entire work day. Upon hearing the complaints, the lawyer contacted the North Carolina Growers Association about the workers’ complaints and requested that they be transferred to another grower. On 1 August 1997, the North Carolina Growers Association conducted an investigation of the workers’ complaints and reported to the lawyer that none of the workers on the farm had complained about the drinking water supply, pesticide exposure, or sickness from the work. The investigation also revealed that there had been an issue about Mr. Pineda-Lopez and Mr. Barrios using alcohol on the job and that they had informed the other members of the crew that the work was too hard and that they intended to quit as soon as the tobacco leaf harvest began. Based on its investigation, the North Carolina Growers Association denied Mr. Pineda-Lopez’s request for a transfer to another grower. On 7 August 1997, a representative from North Carolina Growers Association met with Mr. Pineda-Lopez at the Morgan farm. According to Mr. Pineda-Lopez, the representative refused to grant his request for a transfer, and told him to sign a resignation form unless he wanted to be taken to an abandoned house and remain there until a transfer was available. Mr. Pineda-Lopez signed the resignation form; thereafter, the representative drove him to the bus station for return to Mexico. On 7 January 1998, several months after his return to Mexico, Mr. Pineda-Lopez filed a Retaliatory Discrimination Act complaint with the North Carolina Department of Labor. Ultimately, the matter was resolved in Superior Court where after conducting a nonjury trial, the trial court dismissed his claims in their entirety with prejudice. Mr. Pineda-Lopez appealed to this Court. The dispositive issue on appeal is whether the trial court erred in making mixed findings of fact and conclusions of law. We answer, yes. Our standard of review of a nonjury trial is whether there was competent evidence to support the trial court’s findings of fact and whether its conclusions of law were proper in light of such facts. Shear v. Stevens Bldg. Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992). If the court’s factual findings are supported by competent evidence, they are conclusive on appeal, even though there is evidence to the contrary. Lagies v. Myers, 142 N.C. App. 239, 246, 542 S.E.2d 336, 341, review denied, 353 N.C. 526, 549 S.E.2d 218 (2001); Chicago Title Ins. Co. v. Wetherington, 127 N.C. App. 457, 460, 490 S.E.2d 593, 596 (1997), review denied, 347 N.C. 574, 498 S.E.2d 380 (1998). On appeal, Mr. Pineda-Lopez contends that the trial court erred by making mixed findings of fact and conclusions of law. We agree. Rule 52(a)(1) which governs findings by the trial court in a non-jury proceeding states that: In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment. N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) (2001) (emphasis added). Thus, this rule requires the trial judge hearing a case without a jury to make findings of fact and conclusions of law. See Gilbert Eng’g Co. v. City of Asheville, 74 N.C. App. 350, 328 S.E.2d 849, cert. denied, 314 N.C. 329, 333 S.E.2d 485 (1985); see also N.C. Gen. Stat. § 1A-1, Rule 52(a)(1). Surely under Rule 52, a trial court must avoid the use of mixed findings of fact and instead, separate the findings of fact from the conclusions of law. However, in this case the trial judge labeled his order “Mixed Findings of Fact and Conclusions of Law.” In reviewing this order, it is difficult to discern what indeed is a finding of fact and what is a conclusion of law. The language of Rule 52 is mandatory; in nonjury actions, the trial court shall find the facts specially and state separately its conclusions of law. See, e.g., DKH Corp. v. Rankin-Patterson Oil Co., Inc., 348 N.C. 583, 585, 500 S.E.2d 666, 668 (1998) (Our Supreme Court held that the mandatory language of Rule 54(b) of the North Carolina Rules of Civil Procedure that stated, “Such judgment shall then be subject to review by appeal,” required the appellate court to hear the appeal.). Since the trial court violated that mandate in issuing the subject order, we are compelled to remand this matter to the trial court to reissue its order in compliance with Rule 52(a)(1). Vacated and remanded. Judges HUNTER and CAMPBELL concur.

Pauline D. Cormier, executrix, vs. Pezrow New England, Inc. Hampden. November 5, 2001. July 15, 2002. Present: Marshall, C.J., Greaney, Ireland, Cowin, Sosman, & Cordy, JJ. Practice, Civil, Motion to dismiss, Venue, Judgment notwithstanding verdict, Directed verdict. Anti-Discrimination Law, Age, Damages. Employment, Termination. Damages, Punitive. This court concluded that a claim of age discrimination in employment could be brought in more than one venue and that, even if venue was improper in one county, transfer rather than dismissal would be the proper remedy; where the trial had occurred, and the defendant had made no showing of unfairness or prejudice by litigating in one county rather than another, any error in failing to transfer the case did not warrant reversal. [304-308] In an age discrimination in employment case in which the jury returned a verdict in favor of the employee, motions for a directed verdict and for judgment notwithstanding the verdict were properly denied, where there was ample, albeit contested, evidence at trial to warrant the jury’s finding that the employee was terminated due to his age, which reflected a conclusion that the proffered reasons for termination were false. [308-309] An award of double damages in an age discrimination in employment case was error, where the judge’s finding that the defendant had “reason to know” that the termination of the plaintiff was in violation of the provisions of G. L. c. 151B, § 4, was not properly based on evidence of knowledge or reckless indifference to the rights of others, but rather was inadequately based on the educational background and general experience of the manager who terminated the plaintiff. [309-310] Civil action commenced in the Superior Court Department on December 6, 1994. A motion to dismiss was heard by Francis X. Spina, J., and the case was tried before Judd J. Carhart, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Joseph F. Ryan for the defendant. Robert C. Sacco for the plaintiff. Of the estate of Kenneth J. Cormier. A suggestion of death was filed in the Appeals Court on January 19, 2001. We shall refer to Cormier as the plaintiff. Cordy, J. Kenneth J. Cormier filed a complaint in the Superior Court for Hampden County, against his former employer, Pezrow New England, Inc. (Pezrow), alleging that his employment as a sales representative had been unlawfully terminated after twenty-five years because of his age, in violation of G. L. c. 151B, § 4 (IB). A jury returned a verdict in favor of Cormier, and assessed damages in the amount of $209,500. The trial judge ruled that Pezrow’s violation of G. L. c. 151B was “willful” and doubled the award of damages pursuant to G. L. c. 151B, § 9. Before trial, Pezrow filed a motion to dismiss based on improper venue; during trial, it filed motions for a directed verdict after the close of Cormier’s evidence and again at the close of all the evidence; and after trial, it filed a motion for judgment notwithstanding the verdict. All of these motions were denied. Judgment entered in favor of Cormier. Pezrow appealed from the denial of its motions and the doubling of the damage award. The Appeals Court vacated the judgment for Cormier, ruling that Pezrow’s motion to dismiss and motions for a directed verdict based on improper venue should have been allowed. Cormier v. Pezrow New England, Inc., 51 Mass. App. Ct. 69 (2001). The court reasoned that although Cormier was employed by a Massachusetts company and was assigned to manage the accounts of customers located almost exclusively in Hampden County, he actually “worked [at the Pezrow office] in Enfield, Connecticut” (Connecticut), and therefore his discharge “did not occur in Hampden County.” Consequently, the special venue requirement of G. L. c. 15 IB that an action for age discrimination be brought in the county in which the “unlawful practice occurred” had not been satisfied. We granted Cormier’s application for further appellate review. We conclude that a claim of age discrimination may be brought in more than one venue, and even if venue was improper in Hampden County, transfer, not dismissal, would have been the proper remedy. In the absence of a showing of unfairness or prejudice from having to litigate the case in Hampden County, the judgment should not be vacated. We also decide the issues raised in Pezrow’s appeal that the Appeals Court did not reach because of its ruling on the question of venue. We affirm the trial judge’s denial of the motions for directed verdict and verdict notwithstanding the verdict, but vacate the award of double damages. 1. Factual Background. Pezrow is a Massachusetts corporation headquartered in West-wood, which is located in Norfolk County. It is engaged in the food brokerage business. Cormier was a resident of Chicopee, which is located in Hampden County. He had been employed since 1969 by Pezrow and its predecessor corporations, as a sales representative managing the accounts of supermarkets located almost exclusively in Hampden County. Until October, 1993, when Chase-Kolbrin merged with Pezrow, Cormier worked out of his home in Chicopee. After the merger, Cormier’s files were transferred from his home to Pezrow’s office in Connecticut. Cormier was also assigned a desk in Connecticut where he spent, on average, one day per week performing routine business activities. He continued to work with accounts in Hampden County, where he spent the majority of his time. Corporate officials who worked at Pezrow’s headquarters in Westwood made the decision to terminate Cormier in the spring of 1994. Cormier received his termination notice on April 15, 1994, while he was working at his desk in Pezrow’s Connecticut office. 2. Discussion. a. Venue. One of the principal purposes of G. L. c. 151B is to “protect the citizens of the Commonwealth against employment discrimination,” Charland v. Muzi Motors, Inc., 417 Mass. 580, 583 (1994), and its provisions are to be “construed liberally for the accomplishment” of that purpose. G. L. c. 151B, § 9. See Dahill v. Police Dep’t of Boston, 434 Mass. 233, 240 (2001). The statute contains a special venue provision directing that actians for discrimination are to be brought “in the superior or probate court for the county in which the alleged unlawful practice occurred.” G. L. c. 151B, § 9. We have not had occasion to interpret the words “in which the alleged unlawful practice occurred,” in the context of determining where an action for age discrimination may properly be brought. We begin by noting that there is no question of jurisdiction raised in this case. Nor is there any doubt that Massachusetts courts have the power to decide an employment discrimination controversy between a Massachusetts citizen and a Massachusetts employer whose headquarters is located in Massachusetts. The question is one of venue, a matter that has “procedural implications totally distinct from jurisdiction,” commonly having to do with geographical subdivisions, and in no way affecting the inherent authority of the court. Markelson v. Director of the Div. of Employment Sec., 383 Mass. 516, 518 (1981). Paige v. Sinclair, 237 Mass. 482, 483-484 (1921). When jurisdiction exists, venue requirements should be read liberally to ensure access to the Commonwealth’s courts, for “[i]t cannot be presumed that the Legislature, when undertaking to confer jurisdiction upon our courts . . . could have intended in many conceivable instances to deprive the holder of [such] claims of all opportunity to bring an action.” Potter v. LaPointe Mach. Tool Co., 201 Mass. 557, 563 (1909). The motion judge denied Pezrow’s motion to dismiss based on his conclusion that the “core of the employment relationship” existed in Hampden County, and therefore “the unlawful act of discrimination, the actual severance of the employment relationship between [Cormier] and Pezrow, occurred in Hampden County, where the relationship was based.” Pezrow contended at trial and on appeal that any unlawful act occurred only when Cormier received notice of his termination in the company’s Connecticut office; accordingly, Connecticut was where the unlawful act occurred, and venue was not proper in Hampden County. The Appeals Court first rejected Pezrow’s argument by explaining, “the place where the employee is notified of his discharge does not necessarily establish the place where the alleged unlawful discharge occurred. To hold otherwise would allow employers to circumvent G. L. c. 151B by simply notifying employees of their discharge when they are not in the Commonwealth.” Cormier v. Pezrow New England, Inc., 51 Mass. App. Ct. 69, 73 (2001). However, it went on to conclude that because Cormier’s desk and files were located in Connecticut, he “worked” there, and therefore the discharge did not occur in Hampden County. The clear implication of the court’s conclusion is that Connecticut was indeed the place “in which the alleged unlawftd practice occurred.” We do not read G. L. c. 15 IB so narrowly as to mean that conduct constituting an unlawful termination can occur in only one place, and, consequently, that there is only one venue in which an employment discrimination claim may be brought. Such a confining interpretation would be inconsistent with the realities of today’s employment world. An unlawful employment practice may consist of many actions and decisions made far from where the employee is physically located, between company officials who themselves are separated by great distances, and may be implemented in one of many jurisdictions. Limiting an employee to a single venue in which to bring a discrimination action when an unlawful decision and its implementation may have occurred in many places would be inconsistent with our mandate to construe liberally the statute to protect Massachusetts employees from workplace discrimination. At the very least, the unlawful practice here occurred in Connecticut, where Cormier was assigned an office and received notice of his termination, and in Westwood (Norfolk County), where the decision was made. We also agree with the motion judge that an unlawful employment practice may occur where “the core of the employment relationship” lies. Whether that was in Hampden County, however, is a closer question. Although Cormier spent most of his time working with customers in Hampden County, and had for many years worked from his home in Chicopee (Hampden County), after the merger he was relocated to the company’s Connecticut office. In addition, Pezrow had no physical presence in Hampden County, and the decision to terminate was not made, communicated, or arguably implemented there. In the circumstances of this case, however, we do not need to decide whether the motion judge was correct in concluding that the “core of the employment relationship” was in Hampden County. The remedy for improper venue is not necessarily dismissal of the action when venue may be properly found in another court of the Commonwealth. Markelson v. Director of the Div. of Employment Sec., supra at 519 (“dismissal [for improper venue] is not required as a matter of law”). Venue was clearly proper in Norfolk County, where it is undisputed that the unlawful decision to terminate Cormier was made. Cormier filed a motion to transfer the case to Norfolk County in addition to opposing Pezrow’s motion to dismiss on venue grounds. If the motion judge had found that venue was not proper in Hampden County, there would have been no basis on which to dismiss the case as a matter of discretion, and he would have been constrained to allow Cormier’s motion to transfer it to Norfolk County. Id. Consequently, even if Pezrow had prevailed in its argument, it would have been entitled only to such a transfer. Where the trial has occurred, and Pezrow has made no showing of unfairness or prejudice by litigating the case in Hampden County, rather than Norfolk County, any error in failing to transfer it does not warrant reversal. b. Motions for a directed verdict and for judgment notwithstanding the verdict. In reviewing the denials of the motions for directed verdict and for judgment notwithstanding the verdict, “the standard is ‘whether “anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff”. ... In applying this standard, we examine the evidence in the light most favorable to the plaintiff’ ” Martignetti v. Haigh-Farr, Inc., 425 Mass. 294, 304 (1997), quoting Forlano v. Hughes, 393 Mass. 502, 504 (1984). Pezrow argues that (1) Cormier failed to present sufficient evidence to support a finding that he was performing his job at an acceptable level, which is required to establish a prima facie case of discrimination in the first of the three stages of proof set forth in Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995); (2) Cormier failed to present sufficient evidence to support a finding that Pezrow’s proffered reason for his discharge was a pretext under the third stage of proof; and (3) that uncontroverted evidence establishes that Pezrow’s reason for discharging Cormier was not a pretext. Pezrow’s arguments fail because they are premised on a view of the evidence favorable to it rather than to Cormier. In many respects, the trial boiled clown to a credibility contest between Cormier and his direct supervisor (Harvey Goldberg) on one side, and Pezrow’s management personnel (Gerald Capaldi and Eugene Mahoney) on the other. The verdict reflects that the jury believed Cormier’s version of events over Pezrow’s version. Viewing the evidence in the light most favorable to Cormier, the jury could have found that he was a twenty-five year employee of Pezrow and Chase-Kolbin with no prior negative performance evaluations; he was terminated at the age of sixty; and at the time of termination, he was the oldest sales representative in his department. The jury also could have found that Pezrow’s claim that it laid off a total of fifty people between the time of the merger and December, 1994 (compared to the twenty-five contended by Cormier), was not true; that Pezrow’s claim that Cormier’s layoff (among others) was necessitated by the loss of $500,000 in annual revenue from one account was not credible in light of evidence that that account was replaced with a new $1 million account; and that Pezrow’s claim at trial that Cormier was also terminated for performance issues was inconsistent with its earlier position that the termination was due to staff reductions and the elimination of his position. In sum, the jury’s answer of “yes” to the question whether they found Cormier was terminated due to his age, reflected a conclusion that the proffered reasons for termination were false and that the termination was due to age discrimination. There was ample, albeit contested, evidence at trial on which such a conclusion could be based. c. The award of double damages. Pursuant to G. L. c. 151B, § 9, a judge may award double damages if he finds “that the discriminatory act or practice complained of was committed with knowledge, or reason to know, that the act or practice at issue violated the provisions of G. L. c. 151B, § 4, which prohibits . . . age discrimination.” Brownlie v. Kanzaki Specialty Papers, Inc., 44 Mass. App. Ct. 408, 420 (1998). Here, the judge found that Pezrow, through its vice-president, Gerald Capaldi (who took part in making the decision to discharge Cormier and in notifying him of it), had reason to know that Cormier’s discharge violated G. L. c. 151B: “Capaldi made the decision to terminate the plaintiff. Capaldi has a Master’s degree in business administration and is an executive in the defendant food company. I find that his decision to terminate the plaintiff was in complete disregard of the provisions of G. L. [c.] 151B. I find that the defendant had reason to know that the termination of the plaintiff was in violation of the provisions of” G. L. c. 151B, § 4. Cormier concedes that there was no evidence at trial that Pezrow had actual knowledge that its action violated Massachusetts law, but argues that the judge’s finding that Pezrow “had reason to know” is supported by the record, including evidence that Capaldi was well educated and had been with Pezrow for fifteen years; that Pezrow maintained a human resources staff to which managers could turn for advice; that it was policy to report any termination to human resources before it was carried out; and that “[a]ny manager in today’s business environment with that level of responsibility, experience and education and with access to those resources, knows or should know that it is illegal to terminate an employee based on their age.” Cormier further argues that Capaldi was evasive at trial; that he knew that Cormier was sixty years old and the oldest sales representative; and that the person who replaced Cormier was younger (although still in the protected age group). Thus, “Capaldi knew that his termination of Cormier was age discrimination.” We conclude, however, that the award of double damages was erroneous. “[M]ultiple damages are ‘essentially punitive in nature.’ ” Fontaine v. Ebtec Corp., 415 Mass. 309, 322 (1993), quoting McEvoy Travel Bur., Inc. v. Norton Co., 408 Mass. 704, 717 (1990) (age discrimination). In determining whether there is sufficient evidence that Capaldi “had reason to know” that his conduct was illegal, the court is guided by the punitive nature of multiple damages, which are “awarded for conduct that is ‘outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.’ ” Goodrow v. Lane Bryant, Inc., 432 Mass. 165, 178 (2000), quoting Dartt v. Browning-Ferris Indus., Inc. (Mass.), All Mass. 1, 17a (1998) (failure to pay overtime compensation in violation of G. L. c. 151, § 1A). The evidence to support the multiple damages claim was that Capaldi had a master’s degree and fifteen years of management experience in a large company with a human resources department. There was no evidence that discrimination law had been discussed in connection with Cormier’s discharge, see Brownlie v. Kanzaki Specialty Papers, Inc., supra, or that the company had a policy against age discrimination of which managers were notified, see Koster v. Trans World Airlines, Inc., 181 F.3d 24, 37 (1st Cir.), cert. denied, 528 U.S. 1021 (1999). Holding that “reason to know” existed in this case would award punitive damages on the basis of Capaldi’s status and not on evidence of knowledge or reckless indifference to the rights of others. Goodrow v. Lane Bryant, Inc., supra. In light of the severity of punitive damages, and their goal of deterring intentional conduct, a manager’s education and general experience alone is not an adequate basis for such an award. d. Propriety of the jury instructions. Pezrow for the first time argues that the judge’s instructions to the jury concerning pretext were erroneous because he failed to instruct the jury that Cormier was required to prove discriminatory animus and causation. Lipchitz v. Raytheon Co., 434 Mass. 493, 501-504 (2001). Pezrow has waived this issue because it failed to object to the instructions at trial. See Mass. R. Civ. P. 51 (b), 365 Mass. 816 (1974). See also Rotkiewicz v. Sadowsky, 431 Mass. 748, 751 (2000); Flood v. Southland Corp., 416 Mass. 62, 66-68 (1993). 3. Conclusion. The denials of the motions for a directed verdict and judgment notwithstanding the verdict are affirmed. The judgment of the Superior Court is affirmed in part and vacated in part. The case is remanded to the Superior Court where an amended judgment will enter reducing the double damages consistent with this opinion. So otdered. Pezrow New England, Inc., is the successor corporation to Chase-Kolbin Associates, with wh

James V. Ventresco vs. Liberty Mutual Insurance Company. No. 00-P-1096. Suffolk. April 12, 2002. - June 13, 2002. Present: Armstrong, C.J., Mason, & Grasso, JJ. Anti-Discrimination Law, Age. Employment, Discrimination. Practice, Civil, Instructions to jury, Burden of proof, Interest. Pension. Damages, Future damages, Interest. Interest. In a civil action alleging age discrimination, the judge did not err in instructing the jury that the plaintiff was entitled to prevail if he proved “pretext,” where she also told them that, by pretext, she meant pretext for discrimination, and thus, when read as a whole, the instructions were adequate to inform the jury that the plaintiff was required to prove that the defendant had acted with a discriminatory motive or intent. [205-209] The evidence in a civil action alleging age discrimination was sufficient to support the jury’s award of lost pension benefits, and the award of lost pension benefits was not inconsistent with the award of front pay. [209-211] This court modified the judgment in a civil action alleging age discrimination to provide that prejudgment interest would be allowed only on those portions of the judgment representing amounts for back pay and emotional distress damages. [211] Civil action commenced in the Superior Court Department on March 19, 1998. The case was tried before Diane M. Kottmyer, J., and motions for judgment notwithstanding the verdict and for attorney’s fees were heard by her. Richard W. Renehan (Deborah H. DosSantos with him) for the defendant. Robert R. Berluti for the plaintiff. Mason, J. The plaintiff, James V. Ventresco, brought this action in March, 1998, alleging that the defendant, Liberty Mutual Insurance Company (Liberty), had laid him off from his employment with Liberty in September, 1996, because of his age, in violation of G. L. c. 151B, § 4. The jury returned a verdict for the plaintiff and awarded him $201,100 in compensatory damages, including $21,500 in back pay, $14,400 in front pay, $140,200 in lost pension benefits and $25,000 for emotional distress. The jury further determined that because Liberty had acted with knowledge or reason to know it was violating the law against age discrimination, their award of compensatory damages therefore should be doubled to $402,200. See G. L. c. 151B, § 9. Acting on Liberty’s motion for judgment notwithstanding the verdict or for a new trial, the judge ordered that a new trial would be held unless the plaintiff accepted a re-mittitur of $150,992, to which the plaintiff agreed. The plaintiff moved for attorney’s fees and costs and received an award of $95,000 and $1,903, respectively. A final judgment then entered accordingly. On appeal from the judgment, Liberty claims that (1) a new trial is necessary because the judge erred in instructing the jury that they must find for the plaintiff if he simply proved “pretext,” relieving him of his burden of proving discrimination; (2) the award of lost pension benefits was improper because there was insufficient evidence that, but for his layoff, the plaintiff would have remained employed at Liberty until he was sixty-five years old and, in any event, any such finding by the jury was inconsistent with their award of only $14,400 in front pay; and (3) the plaintiff was improperly allowed prejudgment interest on the entire award, including the portions for front pay and lost pension benefits. We agree that prejudgment interest should not have been allowed on the portions of the jury’s award for front pay and lost pension benefits, and accordingly, we order that the judgment be modified to provide prejudgment interest only on those portions of the judgment representing amounts for back pay and emotional distress damages. We otherwise affirm. Background facts. The plaintiff was initially hired by Liberty as an employee in its mailroom in the fall of 1963, which was shortly after the plaintiff had completed high school. The plaintiff left his employment in 1965, but then he returned in November, 1972, after he had completed college and service in the United States Army. The plaintiff thereafter continued as an employee of Liberty until his layoff in September, 1996. In February or March, 1973, the plaintiff was offered and accepted a position as a production assistant in Liberty’s advertising and public relations department. He was subsequently promoted to the position of production manager and, ultimately, in 1983 to the position of director of production services. As director of production services, the plaintiff was responsible for overseeing and coordinating the department’s print production projects, including the company’s annual report and also its periodic newsletters and magazines. He was also responsible for tracking progress on these projects and monitoring the expenses incurred in completing them. The plaintiff reported directly to Whitney Lancaster, who was the head of the advertising and public relations department. The plaintiff regularly received annual performance evaluations while he was employed as director of production services. For each of the years ending January, 1993, through January, 1996, the plaintiff received an over-all rating of “meets expectations” on his then-current performance evaluation, which was in the middle of the scale of possible ratings. The plaintiff never received any warning that his job performance was unsatisfactory even though, throughout this period, Liberty had a written progressive discipline policy in effect providing that employees should be given such a warning and then placed on probation prior to being discharged for such unsatisfactory job performance. In January, 1996, Lancaster was replaced by Steven Sullivan as the head of the advertising and public relations department which, shortly thereafter, was renamed the Liberty communication services (LCS) department. At the time he was hired, Sullivan was told by Liberty’s chief executive officer, Gary Countryman, that the department was “somewhat dysfunctional” and not well-regarded by the other operating departments within Liberty, and that Countryman was looking to him to reorganize the department and turn it into a “world-class communications department.” Sullivan promptly met with all the managers in the department, including the plaintiff, and asked them what they thought their job functions were and what they thought they were doing. Sullivan testified that, as a result of his interview with the plaintiff, he obtained the impression that the plaintiff “didn’t have a lot to do” principally because his production duties had declined, and that he was performing a lot of tasks, such as scheduling vacations for secretaries, which should have been performed by other people. Sullivan also testified that he was struck by the fact that the plaintiff seemed content to view his job as a meaningful job, even though it did not appear to Sullivan to have substance. At or about this same time, Sullivan retained an outside consultant, Walter Pile, to advise him with respect to reorganizing the LCS department. Sullivan met with Pile in late January or early February and specifically told him that the plaintiff’s position was “outside the scope of [the department’s] assignment” because “the production director title ... no longer really applied relative to [the plaintiff’s] current responsibilities.” Sullivan thereafter had periodic discussions with Bruce Anderson, who was vice-president and manager of human resource services at Liberty, regarding his plans for reorganizing the LCS department. Sullivan told Anderson during these discussions that he doubted that the plaintiff, who by this time was fifty-one years old, or another employee, Richard Kallio, who was sixty-one years old, would retain positions in the reorganized department due to their poor job performance. On July 1, 1996, Pile sent Sullivan a letter outlining their joint recommendations for reorganizing the department and the reasons for the recommendations. At Sullivan’s request, Pile included in this letter a statement that, as a result of the proposed reorganization, “long-standing under performers will be out-placed, sending an important, positive message to [strategic business unit] clients as well as the LCS staff.” Shortly thereafter, on July 17, 1996, Sullivan met with the plaintiff and told him that his position was being eliminated. Sullivan further told the plaintiff at this time that two new posi-tians were being created, including one that would serve an accounting function and one that would serve a trafficking/ production function, but that the company would be hiring from the outside to fill those positions. Sullivan also told the plaintiff that he would be allowed sixty days to find another position within Liberty but that, if he failed to do so, his employment would be terminated and he would receive Liberty’s thirty-nine week severance package. The plaintiff thereafter did attempt to obtain another position within Liberty but was unable to do so. His employment with Liberty was accordingly terminated on September 16, 1996. Kallio’s position was also eliminated at this same time and he retired. Liberty eventually filled the new accounting position with a man who was thirty-five years old and the new trafficking/ production position with a woman who was twenty-nine years old. Liberty also created a new operations manager position within the LCS department and appointed to the position a woman who was thirty-five years old and whose prior position had also been eliminated in the reorganization of the department. Following the termination of his employment with Liberty, the plaintiff was employed first as a senior production manager by CFI Design Group and then, starting in July, 1998, as a project manager by Fidelity Investments (Fidelity). While the plaintiff’s basic annual salary at Fidelity was approximately $7,200 less than his salary had been at Liberty, the plaintiff was eligible to receive annual bonuses at Fidelity of up to fifteen percent of his salary. The plaintiff could also qualify for pension benefits at Fidelity but only up to $300 per month at age sixty-five. At the time he left his employment at Liberty, the plaintiff was fully vested in Liberty’s pension plan and, whereas he was then entitled to a monthly payment of $1,122 at age sixty-five, he would have been entitled to a payment of approximately $2,330 per month if he had remained at Liberty until age sixty-five. Accordingly, the plaintiff lost substantial pension benefits as a result of the termination of his employment with Liberty, which he could not recover at Fidelity. 1. Jury instructions. Citing Abramian v. President & Fellows of Harvard College, 432 Mass. 107 (2000), Liberty claims the judge erred in instructing the jury that the plaintiff was entitled to prevail if he proved “pretext,” rather than discrimination. In Abramian, the Supreme Judicial Court held that, in an indirect evidence case such as the present one, proof that the reason the employer has articulated for its action is false or a pretext may permit, but does not require, the fact finder to infer discrimination. Id. at 117-118. Hence, it is error for the judge to instruct the jury that, if they find that the employer’s articulated reason for its action is a pretext, then they are required (as distinct from permitted) to find that the employer engaged in discrimination. Id. at 118. It is well settled, however, that “reversible error will not be found merely by ‘consideration of [a] fragment [of an instruction] which may be open to criticism.’” Lipchitz v. Raytheon Co., 434 Mass. 493, 507 (2001), quoting from Haven v. Brim-field, 345 Mass. 529, 533 (1963). Rather, “[t]he trial judge maintains discretion in charging the jury, and a charge is to be read as a whole in determining whether the jury were properly instructed.” Sarvis v. Boston Safe Deposit & Trust Co., 47 Mass. App. Ct. 86, 100 (1999), citing O’Connor v. Raymark Indus., Inc., 401 Mass. 586, 592 (1988). In the present case, the judge submitted four special questions to the jury, only the first of which dealt with liability. That question was, “Did the defendant, Liberty Mutual Insurance Company. . . discriminate against the plaintiff, James V. Ventresco ... by terminating his employment because of age?” The judge drew her instructions with respect to this question primarily from the order of proof originally described in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and adopted by the Supreme Judicial Court in Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130 (1976). Thus, the judge instructed the jury that, to prevail on his claim of age discrimination, the plaintiff was required to prove by a preponderance of the evidence that (1) he is a member of the protected class, i.e., over forty years of age (see G. L. c. 151B, §§ 1, 4); (2) he was performing his job at an acceptable level of performance; (3) his employment was nevertheless terminated; and (4) Liberty either did not treat age neutrally in deciding to eliminate his position or, alternatively, he was qualified for another position which was given to a younger person with similar or inferior qualifications and he did not apply for the position because Liberty, by acts or deeds, indicated to him that he would not be considered for the position. The judge then further instructed the jury that, since Liberty had produced a nondiscriminatory reason for its action, the plaintiff must also prove “one further element of his claim, namely, that the reason given by the defendant, or reasons given by the defendant, was not the real reason for the termination of his employment. That is that the defendant’s asserted reasons are false or a pretext.” The judge then did state, as Liberty complains, that “[i]f you find that the plaintiff has proven that the reasons given by the defendant are not believable or not the real reasons for the decision, then you must return a verdict for the plaintiff.” She also stated that the plaintiff “bears the burden of proof on the ultimate issue of discrimination, and therefore must produce evidence that more likely than not, the articulated reason was a pretext.” Immediately after making these statements, however, the judge further stated that “[t]he burden is on the plaintiff to prove that, but for his age, his employment would not have been terminated.” The judge then instructed the jury that a critical issue in the case was the defendant’s intent and that such intent could be proven by direct or circumstantial evidence and, further, that if the jury found that the defendant was motivated in part by unlawful bias and in part by a legitimate reason, then the defendant must prove that it would have made the same decision regardless of the plaintiff’s age. The judge then stated the following: “When assessing a plaintiff’s claim that the reason given by the defendant is a pretext, you should focus on the motivation of the employer, not its business judgment. While an employer’s judgment or course of action may seem poor or erroneous or mistaken, the relevant question is simply whether the given reason was a pretext for illegal discrimination, not whether it was the correct decision or a smart or intelligent decision, but whether it was a pretext for illegal discrimination” (emphases added). The judge further explained: “The employer’s stated legitimate reason must be reasonably articulated and non-discriminatory, but it does not have to be a reason that you, the jury, would act on or approve. An employer is entitled to make its own policy and business judgments and may, for example, fire an adequate employee to hire one who will be even better, as long as that is not a pretext for discrimination” (emphasis added). Thus, while the judge told the jury that they were required to find for the plaintiff if they found pretext, she also told the jury that, by pretext, she meant pretext for discrimination. Read as a whole, these instructions were adequate to inform the jury that the plaintiff was required to prove that Liberty had acted with a discriminatory motive or intent. See Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 12 &n.18 (1998). Liberty’s reliance on Abramian v. President & Fellows of Harvard College, supra, and Lipchitz v. Raytheon Co., supra, is misplaced. In Abramian, 432 Mass. at 115, during its deliberations, the jury sent a question to the judge stating that they were “confused after reviewing [his] instructions” and specifically asking whether they were “bound” to find discrimination if they found pretext. The judge responded, “The answer to your question is ‘Yes,’ ” and thereby explicitly and improperly directed the jury to find discrimination if they found pretext. In Lipchitz, 434 Mass. at 499 n. 11, the judge began his instructions by stating that the burden with respect to pretext was on the plaintiff “to prove by a fair preponderance of the evidence that the reasons given by the defendant were not the real reasons for failing to promote her . . . but were a pretext for gender discrimination,” but then went on to state that the plaintiff could satisfy this burden by proving “that the employer’s articulated reason or reasons was not the real reason or reasons for the hiring decision.” The court found that the “entire import” of the judge’s instruction on the plaintiff’s burden to establish liability “was whether she had proved ‘pretext,’ not whether she had proved that [the defendant] had refused to promote her ‘because of. . . [her] sex,’ ” and that the error was “compounded by the additional instruction that if [the plaintiff] established that the reasons given by [the defendant] were not its ‘real reason,’ she had established [the defendant’s] liability and the jury were to move on to the question of assessing damages.” Id. at 502-503. Here, by contrast, the judge started by telling the jury that the plaintiff was required to prove pretext but then went on to explain that the precise question the jury were called upon to decide was “not whether [the defendant’s course of action] was the correct decision or a smart or intelligent decision, but whether it was a pretext for illegal discrimination.” Viewing the instructions as a whole, the judge did not direct the jury to find discrimination if they found pretext alone. We therefore reject Liberty’s claim that, in instructing the jury, the judge committed error requiring reversal. We note, however, that the Supreme Judicial Court has expressly cautioned trial judges against continuing to draw jury instructions from the McDonnell Douglas “analytical framework,” which was “established in the context of summary judgment ‘to give judges a method of organizing evidence and assigning the burdens of production and persuasion in a discrimination case,’ ” Lipchitz v. Raytheon Co., supra at 508, quoting from Loeb v. Textron, Inc., 600 F.2d 1003, 1016 (1st Cir. 1979), but has been “problematic” when used as a basis of jury instructions. Lipchitz v. Raytheon Co., supra at 507. 2. Lost pension benefits. Lost pension benefits are recoverable in an action under G. L. c. 151B. See Talbert Trading Co. v. Massachusetts Commn. Against Discrimination, 37 Mass. App. Ct. 56, 65 (1994). See also Lindemann & Grossman, Employment Discrimination Law 1817 (3d ed. 1996) (“lost pension and other fringe benefits may be recoverable as part of front pay”). Nevertheless, Liberty claims that the evidence was insufficient to support the jury’s award of such lost pension benefits in this case because there was no evidence that, but for his layoff, the plaintiff would have remained employed at Liberty until he was sixty-five years old, and Liberty presented substantial evidence to the contrary. Liberty also claims that the jury relied on impermissible speculation in awarding such benefits, see Conway v. Electro Switch Corp.,

VEENSTRA v WASHTENAW COUNTRY CLUB Docket No. 117985. Argued November 7, 2001 (Calendar No. 8). Decided May 29, 2002. Brent Veenstra brought an action in the Washtenaw Circuit Court against the Washtenaw Country Club for employment discrimination on the basis of marital status in violation of the Michigan Civil Rights Act and for breach of contract. The court, David S. Swartz, J., granted summary disposition for the defendant on both issues. The Court of Appeals, Fitzgeraid, P.J., and Neff and Smolensk:, JJ., in an unpublished opinion per curiam, affirmed on the breach of contract issue and reversed on the employment discrimination action on the ground that the plaintiff had presented sufficient evidence to establish a genuine issue of material fact (Docket No. 216907). The defendant appeals. In an opinion by Justice Young, joined by Chief Justice Corrigan, and Justices Taylor and Markman, the Supreme Court held: The Civil Rights Act prevents only improper consideration of an employee’s protected status. An employee’s conduct or misconduct is not a protected status under the employment provisions of the act. Thus, an employee discharged solely because of adultery is not protected by the Civil Rights Act. The Civil Rights Act prohibits an employer only from making employment decisions because of race, sex, marital status, and other enumerated protected statuses. If an employer takes adverse action against an employee for conduct, without regard to a protected status—-here, marital status, the act provides no redress. A discrimination claim premised merely on an employer’s consideration of an employee’s adultery would provide no basis for recovery under the act. Justice Weaver, concurring, joined in all but part iv(d) of the majority opinion. Vacated and remanded. Justice Cavanagh, joined by Justice Kelly, dissenting, stated that the rationale provided by the majority inappropriately narrows the understanding of discrimination. There is no principled reason to import a distinction between status and conduct where it fails to properly and fully address the discriminatory action. The Legislature did not intend to permit a “conceptual out” or “conduct defense” whenever the Supreme Court finds the discrimination morally permissible. Conduct and status often are inextricably linked; any rule attempting to assert otherwise is unworkable. Green, Green, Adams & Palmer, P.C. (by Thomas L. Kent), for the plaintiff-appellee. Miller, Canfield, Paddock & Stone, P.L.C. (by Charles A. Duerr, Jr. and Linda O. Goldberg), for the defendant-appellant. Young, J. Defendant Washtenaw Country Club declined to renew plaintiffs contract as the club’s golf professional, following plaintiff’s apparently notorious and public separation from his wife and cohabitation with another woman. The trial court summarily dismissed plaintiff’s breach of contract and marital discrimination claims. The Court of Appeals upheld the dismissal of the contract claim, but held that, under our decision in McCready v Hoffius, 459 Mich 131; 586 NW2d 723 (1998) (McCready II), vacated in part 459 Mich 1235 (1999), discrimination on the basis of “unmarried cohabitation” violated the Civil Rights Act, MCL 37.2101 et seq. We granted leave to appeal to consider whether the Civil Rights Act extends to discrimination against an employee on the basis of the employee’s conduct, in this case adultery. We hold that an employee discharged solely because of conduct such as adultery is not protected by the Civil Rights Act; the statute prohibits an employer only from making decisions because of race, sex, marital status, and the other protected statuses enumerated in the statute. In opposition to defendant’s motion for summary disposition, plaintiff has arguably introduced some evidence that defendant considered his marital status in addition to his unprotected conduct. However, because the trial court did not explain why this evidence was insufficient to meet plaintiffs burden under MCR 2.116(G)(4), we vacate the holding of the Court of Appeals and remand this matter to the trial court for further proceedings consistent with this opinion. I. FACTS AND PROCEDURAL HISTORY Plaintiff was employed as defendant’s golf professional from 1991 through 1996. His employment was based on a yearly contract. Plaintiff’s then current contract expired on its own terms in December 1996. In January 1996, plaintiff, who was married, began having an adulterous affair with a married woman. In April 1996, plaintiff moved out of his marital home. A few weeks after leaving the marital home, plaintiff began cohabitating with his mistress and escorted her to club events. All these activities became well known to members of the Washtenaw Country Club and were the subject of discussion. In June 1996, board member Russo prepared and distributed a survey to the general membership of the country club asking members to evaluate certain key personnel, including plaintiff. The surveys revealed that a number of members were dissatisfied with plaintiff’s performance as the club golf professional. Plaintiff received far more negative reviews than the other three personnel who were also the focus of the performance survey. In September 1996, plaintiff’s wife instituted formal divorce proceedings. Two months later, defendant informed plaintiff of its decision not to renew his yearly employment contract. The employment contract expired at the end of 1996. Plaintiff’s divorce from his wife became final in May 1997. In December 1997, plaintiff filed suit, alleging marital status discrimination and breach of contract. Regarding the discrimination claim, plaintiff alleged that his termination “was motivated in part if not entirely because of his status as a divorced person.” The trial court granted summary disposition for defendant on both counts of the complaint pursuant to MCR 2.116(C)(10). Relying on McCready v Hoffius, 222 Mich App 210; 564 NW2d 493 (1997) (McCready I), the trial court ruled that cohabitation was not a protected status under the Civil Rights Act. Viewing the evidence in a light most favorable to plaintiff, the trial court concluded that “if there was discrimination against plaintiff, it was not based on his pending divorce but on his cohabitation with his mistress.” In granting summary disposition to defendant, the trial court did not address an affidavit plaintiff submitted that arguably supported a claim that his pending divorce was a factor in the decision not to renew his contract. On appeal, the Court of Appeals affirmed in part and reversed in part. The panel affirmed the granting of summary disposition on the breach of contract claim. However, the panel reversed the order granting summary disposition regarding the marital status discrimination claim. McCready /, relied on by the trial court in granting summary disposition for defendant, had been reversed by this Court in McCready II. Citing the Court’s decision in McCready II, the Court of Appeals concluded that plaintiff had a valid claim for marital discrimination “to the extent that plaintiff establishes discrimination on the basis of his unmarried cohabitation . In concluding that plaintiff presented direct evidence sufficient to create a genuine issue of material fact, the Court of Appeals cited the affidavit of defendant’s outside operations manager who stated that three of the board’s eight members specifically expressed their disapproval of plaintiff’s divorce, stated that the situation was “disgusting,” referred to plaintiff as a “slut,” and stated that they “had to get rid of him.” Defendant sought leave to appeal, which was granted. 464 Mich 874 (2001). II. STANDARD OF REVIEW The decision to grant or deny summary disposition is a question of law that is reviewed de novo. Van v Zahorik, 460 Mich 320; 597 NW2d 15 (1999). This case also presents the issue whether plaintiff’s adulterous behavior is protected under the Civil Rights Act. The interpretation and application of a statutory provision is a question of law that is reviewed de novo by this Court. People v Webb, 458 Mich 265, 274; 580 NW2d 884 (1998). III. PRINCIPLES OF STATUTORY CONSTRUCTION When interpreting statutory language, our obligation is to discern the legislative intent that may reasonably be inferred from the words expressed in the statute. Wickens v Oakwood Healthcare System, 465 Mich 53; 631 NW2d 686 (2001). When the Legislature has unambiguously conveyed its intent in a statute, the statute speaks for itself and there is no need for judicial construction; the proper role of a court is simply to apply the terms of the statute to the circumstances in a particular case. Turner v Auto Club Ins Ass’n, 448 Mich 22; 528 NW2d 681 (1995). In construing a statute, the words used by the Legislature must be given their common, ordinary meaning. MCL 8.3a. IV. ANALYSIS A. THE STATUTE Plaintiff’s claim for marital status employment discrimination is premised upon MCL 37.2202(1), which provides in relevant part: An employer shall not do any of the following: (a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status. While the term “marital status” is not defined in the statute, this Court has historically defined the term as “whether a person is married.” Miller v C A Muer Corp, 420 Mich 355, 363; 362 NW2d 650 (1984); Whirlpool Corp v Civil Rights Comm, 425 Mich 527, 530; 390 NW2d 625 (1986); McCready II, supra at 137. The clear, unambiguous language of the statute protects status, not conduct. As a result, if an employer takes adverse action against an employee for conduct, without regard to marital status, the Civil Rights Act simply provides no redress. Thus, a discrimination claim premised merely on an employer’s consideration of an employee’s adultery would provide no basis for recovery under the act. B. THE APPLICABILITY OF MCCREADY II In McCready II, defendants, who owned residential rental property, refused to rent their property to unmarried couples. In doing so, defendants stated “that the units were available only to married couples” and that they usually “did not rent to unmarried couples.” 459 Mich 134. Plaintiffs, two unmarried couples who intended to cohabit, brought suit after being denied the opportunity to rent the property. Defendants maintained that any discrimination was premised upon “their perception of plaintiffs’ conduct” rather than the plaintiffs’ marital status. Id at 138. The issue to be resolved in McCready II was whether a claim for marital status discrimination could be stated where the claim was premised on defendant’s rejection of plaintiffs because of their unmarried cohabitation. The statutory provision at issue in McCready II, MCL 37.2502(1), states in pertinent part: A person engaging in a real estate transaction, or a real estate broker or salesman, shall not on the basis of religion, race, color, national origin, age, sex, familial status, or marital status of a person or a person residing with that person: (a) Refuse to engage in a real estate transaction with a person. [Emphasis added.] In determining that the plaintiff had stated a claim for marital status discrimination, this Court attempted to distinguish status from conduct, concluding that “[plaintiffs’ marital status, and not their conduct in living together, is the root of the defendants’ objection to renting the apartment to the plaintiffs.” Id. at 140. We further noted that the case was “complicated” by a statute forbidding lewd and lascivious cohabitation by unmarried couples, MCL 750.335. Id., 136. However, the opinion held that there was “insufficient evidence that the plaintiffs intended to engage in lewd and lascivious behavior.” Id., 141. In reversing the trial court’s grant of summary disposition for defendant in this case, the Court of Appeals applied McCready II and concluded that plaintiff had a valid claim for marital discrimination “to the extent that plaintiff establishes discrimination on the basis of his unmarried cohabitation . . . .” Slip op at 4. However, McCready should not be read so expansively as to create a right to cohabit under our Civil Rights Act. Properly read, the plaintiffs in McCready II submitted sufficient direct evidence of marital status discrimination to survive defendant’s motion for summary disposition. While stated above, we take this opportunity to unequivocally reiterate that the unambiguous language of the Civil Rights Act protects only the consideration of a person’s marital status. Adverse action against an individual for conduct, without regard to marital status, provides no basis for recourse under the act. It is irrelevant that the conduct at issue does or does not have criminal consequences. In McCready, direct evidence was presented that the defendants considered the marital status of the plaintiffs in refusing to engage in the desired real estate transaction. Our Civil Rights Act requires no more. C. DEFENDANT’S MOTION FOR SUMMARY DISPOSITION UNDER MCR 2.116(C)(10) Defendant brought a motion for summary disposition pursuant to MCR 2.116(C)(10). A motion under this section tests the factual sufficiency of the complaint. The movant must specifically identify issues to which it believes no genuine issue as to any material fact exists. MCR 2.116(G)(4). In opposition to the motion, the nonmoving party may not rest upon mere allegations or denials, but must proffer evidence of specific facts showing that there is a genuine issue for trial. Id.; Smith v Globe Life Ins Co, 460 Mich 446; 597 NW2d 28 (1999). Evidence offered in support of or in opposition to the motion can be considered only to the extent that it is substantively admissible. MCR 2.116(G)(6); Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817 (1999). In evaluating a motion for summary disposition brought under this subsection, a trial court is required to consider the affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10), (G)(4). Quinto v Cross & Peters Co, 451 Mich 358; 547 NW2d 314 (1996). In the instant case, defendant’s motion for summary disposition maintains that its refusal to renew plaintiff’s contract did not relate to his marital status. In response, plaintiff offered the affidavit of defendant’s outside operations manager, Patrick Godfrey. Mr. Godfrey averred that, “[o]n several occasions,” he overheard three board members “specifically express their disapproval” of plaintiff’s divorce, state that the situation was “disgusting,” refer to plaintiff as a “slut,” and state that they “had to get rid of him.” Plaintiff argues that sufficient evidence was presented that, at a minimum, defendant harbored mixed motives when it discharged him. Evidence of mixed motives, when one motive is impermissible under the Civil Rights Act, is sufficient to withstand summary disposition. In such a case, the impermissible factor must be a determining factor. See Matras v Amoco Oil Co, 424 Mich 675, 682-683; 385 NW2d 586 (1986). When the Court of Appeals evaluated plaintiff’s claim as one related to his pending divorce and adultery, it failed to evaluate whether the pending divorce was a determining factor. Likewise, the trial court did not consider the affidavit suggesting that the defendant may have acted on an impermissible motive. In granting defendant’s motion, the trial court merely concluded that any discrimination was motivated by plaintiff’s cohabitation with his mistress and did not specifically address the adequacy of the affidavit. There is little evidence in the record indicating that the trial court considered the evidence contained in the affidavit as required by MCR 2.116(G)(5). We therefore remand this case to the trial court. On remand, the trial court is to consider defendant’s motion for summary disposition, and plaintiff’s response thereto, in conformance with MCR 2.116(G)(4)-(6). D. RESPONSE TO THE DISSENT The dissent consciously and wilfully chooses to ignore the holding that has been stated several times throughout this opinion—that adverse action against an individual for conduct, without regard to a protected status, provides no basis for recourse under the Civil Rights Act. This construction is required because the act provides that it is unlawful to discriminate “because of one of the enumerated protected characteristics. Where no direct evidence of discrimination based on one of the protected characteristics exists, the burden is on the plaintiff to establish a link between the conduct and a protected status. Absent evidence that the reason offered for the alleged discriminatory action is merely pretextual, the claim fails. Hazle v Ford Motor Co, 464 Mich 456; 628 NW2d 515 (2001). However, where there is sufficient evidence of pretext, the claim survives. The dissent incorrectly maintains that our holding creates a “rule per se excluding conduct. . . .” Post at 169. However, as we have made clear, conduct may be the subject of protection under the Civil Rights Act if such conduct is mere pretext for action based on consideration of a protected status category. In fact, the rule we articulate is undeniably consistent with the language of the statute, which protects enumerated characteristics, not conduct. This rule is also consistent with our jurisprudence under the Civil Rights Act. Like any other prima facie case of discrimination, a claim for marital status discrimination survives if a plaintiff can establish that adverse action was taken because of a protected status notwithstanding that conduct is asserted as the basis for the challenged action. However, in this case, plaintiff has not needed to posture his discrimination action as a prima facie case predicated within the McDonnell Douglas framework. Rather, this case is premised upon an allegation of direct evidence of marital status animus. Instead of simply adhering to the plain language of the statute and applying the analytical frameworks that currently exist in civil rights jurisprudence, the dissent prefers to engage in what it considers a more “thoughtful analysis” of marital status discrimination claims-an analysis that ponders the “essential conception^] of human dignity” as well as whether adverse actions are “motivated by moral judgments about a person’s conduct. . . .” Post at 171. To say the least, these philosophical musings are not found within the canons of statutory construction. Accordingly, we simply decline to circumvent the language of the statute in favor of the sociological and moral inquiry favored by the dissent. V. conclusion The clear language of the Civil Rights Act prevents only consideration of an employee’s protected status—here, marital status. We further hold that an employee’s conduct or misconduct is not a protected status under the employment provisions of the act, and our opinion in McCready II should not be read otherwise. Because there is no indication that the trial court considered plaintiffs evidence in opposition to the motion for summary disposition as required by the court rules, we vacate the holding of the Court of Appeals and remand this matter to the trial court for further proceedings consistent with this opinion. Corrigan, C.J., and Taylor and Markman, JJ., concurred with Young, J. Unpublished opinion per curiam, issued October 6, 2000 (Docket No. 216907). Plaintiff did not appeal the Court of Appeals ruling on the breach of contract claim, so that issue is not before us. We note that the adultery statute applies equally to married and unmarried in