Discrimination Cases

Civil Rights Commission—Filing of an unlawful discriminatory charge with Ohio Civil Rights Commission under R.C. 4112.05(B)(1) does not preclude person alleging handicap discrimination from instituting an independent civil action under R.C. 4112.99.

Patricia A. Weber vs. Community Teamwork, Inc., & others. Middlesex. April 5, 2001. August 13, 2001. Present: Marshall, C.J., Greaney, Spina, Sosman, & Cordy, JJ. Anti-Discrimination Law, Termination of employment, Prima facie case, Burden of proof. Employment, Discrimination, Termination, Retaliation. Contract, Employment. Unlawful Interference. Malice. In an action by the plaintiff alleging unlawful discrimination in her employer’s failure to promote her, the judge correctly concluded that the plaintiff had established a prima facie case of discrimination, but had not met her burden of proving unlawful discrimination because there was evidence to support some of her employer’s “legitimate, nondiscriminatory” reasons for choosing a male applicant over the plaintiff. [766-769] In an action by the plaintiff alleging unlawful discrimination in her employer’s termination of her employment, the judge correctly concluded that the plaintiff had established a prima facie case of discrimination; however, the record did not support the judge’s conclusions that the defendants’ proffered reasons for terminating the plaintiff were “wholly lacking” in evidentiary support and in credibility; moreover, while the judge made the requisite findings that the plaintiff was a member of a protected class and was harmed by the termination, she did not determine whether the defendants harbored any discriminatory animus and, if so, whether that animus was the determinative cause in bringing about the plaintiff’s termination, and consequently, this court remanded the case so that the judge could make findings and reach conclusions on those two essential elements. [769-778] In an action by the plaintiff alleging breach of contract in her employer’s termination of her employment, the judge erred in concluding that a progressive discipline policy, implemented during the tenure of the plaintiff’s predecessor, constituted an implied employment contract between the plaintiff and her employer that the employer breached, where the policy was not binding on the employer because it was not submitted to or approved by its board; where, by its own terms, the policy did not apply to disciplinary action taken by the employer’s executive director against a department head such as the plaintiff; and where the plaintiff failed to establish that she relied on the terms of the policy as a condition of her continuing employment. [778-781] This court vacated a ruling by a Superior Court judge that a nonprofit corporation’s executive director had unlawfully interfered with the plaintiff employee’s advantageous relations with her employer, and the plaintiff’s claim was remanded for further findings with regard to the requirement that the plaintiff show, as to “improper motive or means,” that the “controlling factor” in the alleged interference was “actual” malice. [781-783] In an action arising out of the plaintiff’s termination from her employment, the judge erred in allowing the plaintiff to amend her complaint to state a claim for retaliatory discrimination under G. L. c. 151B, § 4 (4), raised for the first time after the close of the evidence, where, since the plaintiff asserted her claim for retaliatory discrimination nearly four years after the last allegedly retaliatory act was committed, the retaliation claim was barred by the three-year statute of limitations provided by G. L. c. 151B, § 9, and where, since her claim did not “arise out of the conduct, transaction, or occurrence” she alleged in her earlier pleadings, Mass. R. Civ. R 15 (c), it did not relate back to her earlier pleadings. [783-786] Civil action commenced in the Superior Court Department on December 10, 1993. The case was heard by Sandra L. Hamlin, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Cheryl M. Cronin (Douglas Phillips with her) for the defendants. Frederick T. Golder (Elisabeth M. LeBrun & Jeffrey R. Mazer with him) for the plaintiff. The following submitted briefs for amici curiae: Sally L. Adams, Daryl J. Lapp, & Steven L. Schreckinger for Association of Independent Colleges and Universities in Massachusetts. Robert S. Mantell, Jonathan J. Margolis, & James E. Fitzgerald for Massachusetts Employment Lawyers Association. Thomas H. Conway, Jr., and James L. Canavan, Jr. Marshall, C.J. In early 1992, Patricia Weber, a longtime employee of Community Teamwork, Inc. (CTI), applied for, but was not promoted to, the position of CTI’s executive director. Some months later she was terminated by CTI’s new executive director, James L. Canavan, Jr. She brought suit against CTI, Canavan, and Thomas H. Conway, Jr., a member of CTI’s board of directors, alleging discrimination on the basis of sex and sexual orientation, breach of contract, unlawful interference with contractual relations, retaliatory discrimination, wrongful termination in violation of public policy, and a violation of the Massachusetts equal rights statute, G. L. c. 93, § 102. After a jury-waived trial, a judge in the Superior Court rejected Weber’s claims that CTI’s failure to promote her was discriminatory or that her termination from CTI was a violation of any public policy. The judge ruled, however, that Weber’s termination constituted discrimination, breach of contract, unlawful interference with contractual relations, and retaliatory discrimination. She awarded Weber back pay damages and benefits in the amount of $133,704, fifteen years of front pay damages in the amount of $546,480, and emotional distress damages of $100,000. The judge also awarded Weber her attorney’s fees in an unspecified amount. The parties filed cross appeals, and we transferred the case to this court on our own motion. We affirm the judge’s rulings that CTI’s failure to promote Weber was lawful. We vacate the remaining aspects of the judgment challenged by the defendants, and remand the case to the Superior Court for additional findings and conclusions by the judge on Weber’s claims of discrimination and unlawful interference with contractual relations. I We summarize the procedural history because it is relevant to some of the issues on appeal. Weber first filed her charges with the Massachusetts Commission Against Discrimination (MCAD), alleging that all three defendants had discriminated against her on the basis of her sex by failing to promote her to the position of executive director of CTI in October, 1992, and by terminating her without warning in March, 1993. See G. L. c. 151B, § 5. Weber, who is a lesbian, subsequently amended her charges to include claims of discrimination on the basis of sexual orientation. Before the MCAD acted on her charges, she brought suit in Superior Court pursuant to G. L. c. 151B, §§ 4, 9, adding claims for breach of contract, intentional interference with contractual relations, and a violation of the Massachusetts equal rights statute, G. L. c. 93, § 102. The trial commenced in February, 1997. At the close of Weber’s evidence the judge allowed the defendants’ motion to dismiss Weber’s equal rights claim, G. L. c. 93, § 102, but denied their motion in all other respects. She later denied their motion for a directed verdict. On the final day of trial, and immediately prior to closing arguments, Weber moved to amend her complaint to add claims that her termination violated public policy and constituted retaliatory discrimination in violation of G. L. c. 151B, § 4 (4). Over the defendants’ objection, the judge allowed her motion. The judge subsequently entered findings of fact and conclusions of law, which we shall summarize in greater detail below. On appeal Weber claims that it was error for the judge to conclude that CTI’s failure to promote her to the position of CTI’s executive director did not constitute unlawful discrimination in violation of G. L. c. 151B, and to deny her punitive damages on her retaliation claim. The defendants challenge the judge’s rulings that (1) Weber’s termination from CTI constituted unlawful employment discrimination; (2) they breached Weber’s employment contract with CTI; and (3) Canavan had unlawfully interfered with Weber’s advantageous relationship with CTI. See note 4, supra. They also challenge the judge’s ruling permitting Weber to amend her complaint to add a claim for retaliatory discrimination, and her subsequent ruling that the defendants had in fact engaged in retaliatory discrimination. As to damages, the defendants challenge the award to Weber of fifteen years of front pay under G. L. c. 151B, and argue that any damages awarded for violations of that statute by the defendants should, in any event, be capped at $20,000 pursuant to G. L. c. 231, § 85K. Finally, they challenge the award to Weber of attorney’s fees for so much of her G. L. c. 151B claim on which she did not prevail. n Before turning to consider the respective arguments, we summarize the chronology of Weber’s career at CTI because it provides helpful context to her claims. Weber was hired by CTI in 1975 as an assistant director of family day care. In the succeeding twelve years, Weber assumed steadily increasing program development and supervisory responsibilities, serving from 1976 to 1978 as an assistant director of the family life services department, and from 1978 to 1987 as that department’s director. In 1987, she was named associate director of programs, in which capacity she reported directly to CTI’s longtime executive director, Leo Desjarlais, and became the direct supervisor of CTI’s eight department directors, including the director of its housing and community development department. Sometime thereafter, Weber discovered that Desjarlais was mishandling CTI’s funds. She triggered an investigation by the office of the Auditor of the Commonwealth, which ultimately led to Desjarlais’s discharge from CTI in 1991. In late 1991, following Desjarlais’s discharge, the board appointed the defendant Conway, then the president of CTI’s board of directors, as CTI’s acting executive director. Fearing that her position as associate director of programs was in jeopardy with the impending appointment of a new executive director, and although she herself became a candidate for that position, Weber asked Conway to appoint her as the director of CTI’s housing and community development department. Weber had not previously worked in the housing department, but Conway agreed, and in February, 1992, Weber assumed that position. Shortly thereafter, she applied for the position of executive director, but an outside candidate, Canavan, was the successful applicant. Ill We first address Weber’s argument that the judge erred by ruling that CTI’s failure to promote her to the position of executive director did not constitute unlawful discrimination. We recount the judge’s findings relevant to this claim. From 1987 to 1992, in her tenure as associate director of CTI, Weber served “in all but title” as CTI’s executive director. The judge found that Weber was a “hardworking, responsible, talented, caring and dedicated employee with excellent administrative ability,” who consistently received “excellent” performance reviews. When it became necessary to replace Desjarlais, the board advertised the position and ultimately hired Canavan, who served at the time as the director of development and planning at an agency similar to CTI. Canavan previously had worked from 1987 to 1990 as an assistant energy planner, an assistant director of the housing services program, and finally as the acting director of the office of community and economic development within the Executive Office of Communities and Development (EOCD). EOCD provides housing subsidies to low-income persons and ensures that subsidized housing units comply with Federal and State regulations. It had contracted with CTI’s department of housing and community development to run various low-income housing programs. EOCD was in fact one of CTI’s primary sources of funding. There was extensive testimony that, in the wake of Desjarlais’s mismanagement, CTI was in a financial crisis, its staff lacked morale and strong leadership, and it had lost credibility with EOCD. There was unrebutted testimony that CTI’s board believed that new leadership by an outsider, but one who “had the experience and the knowledge of . . . what [CTI’s] kind of agency was about,” was essential to meeting CTI’s goals of improving its fractured relationship with EOCD and remedying its fiscal crisis. CTI explained at trial that these were the reasons it appointed Canavan as CTI’s new executive director. The judge found that, based on her resume, background, and work experience, Weber was “eminently more qualified” than Canavan to assume the position of CTI’s executive director. She also found that, before Canavan was hired, a “sexist attitude prevailed at CTI” and that it was “common knowledge” throughout the organization that Weber is a lesbian. The judge then applied the analytical framework of Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 440-446 (1995). She concluded that Weber had established a prima facie case of discrimination, but had not met her burden of proving unlawful discrimination because there was evidence to support some of CTI’s “legitimate, nondiscriminatory” reasons for choosing Canavan over Weber. Weber now argues that, because the judge found that she was “eminently more qualified” than Canavan and that a “sexist attitude prevailed” at CTI, the judge should have concluded that the defendants’ asserted reason for hiring Canavan was a pretext. See id. at 444-446. The judge’s ruling was correct. Weber’s contention rests on the flawed supposition that the findings on which she relies precluded a finding that CTI’s asserted reasons for hiring Canavan were in fact its reasons for hiring him. There was sufficient evidence that Canavan’s “outsider” status and his prior work experience and previous dealings with EOCD were sound reasons for CTI to prefer him over a well qualified internal candidate, even one “eminently more qualified.” While it would have been preferable for the judge to make explicit what is implied by her findings, namely, that Weber and Canavan were both qualified for the position of executive director but were qualified in different ways, she did not err in concluding that Weber did not meet her burden of proving that the defendants’ failure to promote her constituted unlawful discrimination. Even if Weber had succeeded in persuading the judge that CTI’s asserted explanation for hiring Canavan was not the reason it actually hired him, a point not argued by the defendants, the judge would have been permitted to conclude that the failure to promote Weber did not amount to unlawful discrimination. See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 118 (2000) (fact that employer’s asserted reason is pretext permits, but does not require, an inference that there was unlawful discrimination). The judge would have been entitled to weigh evidence indicating that the defendants had no discriminatory motive in hiring Canavan, or that they had some other lawful explanation for choosing Canavan over Weber that had been advanced and was supported by the evidence. See id. IV We turn next to the question of the judge’s ruling that Weber’s termination from CTI, in contrast to CTI’s failure to promote her to the position of executive director, did constitute unlawful employment discrimination. We summarize the judge’s findings on this aspect of the case, supplementing them where appropriate with uncontested facts in evidence. By early 1992, when Weber was appointed the director of CTI’s housing department, that department faced pervasive problems. For many years previously, Desjarlais had diverted funds from the department. There was also a perception that Desjarlais had hired individuals in that department based on favoritism rather than competence. By the time Desjarlais’s employment was terminated, the department had an operating deficit of approximately $150,000, and the housing staff were beset by poor morale. In short, the department was in crisis. Because subsidies provided by CTI to low-income tenants were funded by EOCD, CTI was subject to EOCD’s regulatory oversight, and there was evidence that EOCD had serious concerns about the management of CTI’s housing programs. CTI’s housing department suffered from a poor “lease-up rate.” Worse, CTI was subsidizing many housing units of marginal quality, and its “maintenance failure” rate was high. CTI’s own inspections confirmed the department’s poor record. The judge found that, in her first year as director, Weber’s “hard work” and “good management” made a difference. But see note 15, supra. Within eleven months, the department’s operating deficit decreased from $150,500 to $115,534; within three months, the “lease-up” rate of low-income housing units subsidized by CTI rose to 99%. The “staff failure” rate was also reduced under Weber’s “hands-on management” and her improvements in the housing inspection process. Despite these improvements, it was undisputed that EOCD remained deeply concerned about CTI’s housing program. According to Canavan, CTI’s new executive director, in early January, 1993, EOCD officials “were breathing down our necks” to take swift action to improve the inspections of, and conditions in, certain low-income housing developments subsidized by CU. On February 2, 1993, Weber, Canavan, and a third CTI employee met with three senior officials at EOCD. The EOCD officials expressed their serious concerns about the continuing inadequacy of CTI’s housing inspections, the poor maintenance of housing units subsidized by CTI, and the “overall history of mismanagement.” There was uncontroverted evidence that at this meeting the deputy secretary of EOCD threatened to terminate all of CTI’s substantial housing funding if it did not take aggressive steps by June, 1993, to correct the problems in the housing department. There was also unrebutted testimony that, during the February, 1993, meeting, a senior EOCD official instructed CTI to “fire” Darryl Courtnay, Weber’s deputy in the housing department. A senior EOCD official had also told Weber that she was “upset" with her. The threatened loss of EOCD’s housing subsidies was serious; the EOCD subsidies comprised one-third of CTI’s budget. There was uncontradicted evidence that CTI’s housing department depended entirely on EOCD for its funding. The loss of such significant funds would also have necessitated a number of lay-offs of CTI employees. While Weber had made improvements in the department, Canavan was left with the impression from that critical meeting that, to “save” the housing program, Darryl Courtnay and Weber “had to go.” On March 16, 1993, one week after Weber and Canavan last met to discuss progress in CTI’s housing department, Canavan called Weber to his office, and in the presence of several CTI board members, offered her the option of resigning or being terminated. Weber was given no explanation for this action. Weber chose to be terminated. That same day Canavan offered the same choice to Darryl Courtnay. Courtnay resigned. Several weeks later Canavan appointed another woman to fill the position vacated by Weber. Explaining her decision that Weber’s termination constituted unlawful discrimination, the judge pointed to the fact that, in the wake of the critical EOCD meeting in February, 1993, Canavan did not give Weber any “specific directions” about steps she should take to remedy the problems cited by EOCD. The judge also found that, in spite of Weber’s persistent efforts to hire more inspectors, Canavan “refused to move” on improving the staff failure rate, “consistently stalled on responding to her recommendations,” and “stymied her efforts to rectify the situation.” The judge found that Canavan had not told Weber that he was dissatisfied with her performance, nor ha

JOHN S. RENEGAR, Plaintiff v. R.J. REYNOLDS TOBACCO COMPANY, Defendant No. COA00-450 (Filed 17 July 2001) Statute of Limitations— wrongful discharge — filing state action after voluntary dismissal of federal action The trial court did not err in a wrongful discharge action by granting summary judgment in favor of defendant employer based on the expiration of the three-year statute of limitations under N.C.G.S. § 1-52(5) even though plaintiff filed the instant state action within one year of the voluntary dismissal without prejudice of his non-diversity federal complaint under Federal Rule 41, because: (1) plaintiffs voluntary dismissal of a non-diversity case failed to implicate the savings provision of N.C.G.S. § 1A-1, Rule 41(a) and Federal Rule 41 contains no savings provision; (2) plaintiffs federal complaint reveals no basis upon which the federal court might have assumed supplemental jurisdiction under 28 U.S.C.A.§ 1367(a) for plaintiff’s wrongful discharge claim; and (3) plaintiffs state court action was not a new action based upon the same claims as those asserted in the prior action so as to bring N.C.G.S. § 1A-1, Rule 41(a) into play. Appeal by plaintiff from order entered 29 November 1999 by Judge Peter M. McHugh in Forsyth County Superior Court. Heard in the Court of Appeals 30 January 2001. Herman L. Stephens for plaintiff-appellant. Gonstangy, Brooks & Smith, L.L.C., by W.R. Loftis, Jr. and Virginia A. Piekarski, for defendant-appellee. JOHN, Judge. Plaintiff John S. Renegar appeals the trial court’s 29 November 1999 order granting summary judgment in favor of defendant R.J. Reynolds Tobacco Company (RJR). We affirm the trial court. Our disposition of plaintiff’s appeal renders a lengthy recitation of the underlying facts unnecessary. Plaintiff began employment with RJR on 2 June 1984 and was terminated 15 April 1996. In June 1998, plaintiff filed a pro se civil action (plaintiff’s federal action) against RJR in the United States District Court for the Middle District of North Carolina. Plaintiff amended his complaint 7 July 1998, alleging the following six separate causes of actions: (1) discrimination against plaintiff in violation of title VII of the federal Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq. (1994); (2) discrimination against plaintiff in violation of 42 U.S.C.A. § 12101 et seq. (1995), the Americans With Disabilities Act; (3) violation of plaintiff’s rights under the federal Family and Medical Leave Act, 29 U.S.C.A. § 2601 et seq. (1999); (4) violation of plaintiffs federal constitutional rights to privacy and speech under the First, Fourth and Fourteenth Amendments to the United States Constitution; (5) “infliction of daily emotional distress” as a result of discrimination, harassment and retaliation; (6) and discrimination against plaintiff in violation of 29 U.S.C.A. § 621 et seq. (1999), the Age Discrimination in Employment Act. On 29 August 1998, plaintiff filed a voluntary dismissal without prejudice, pursuant to Rule 41(a) of the Federal Rules of Civil Procedure (Federal Rule 41), as to each of the foregoing claims. See Fed. Rules Civ. Proc. Rule 41(a), 28 U.S.C.A. (1992). Precisely one year later, on 29 August 1999, plaintiff filed a complaint against RJR in Forsyth County Superior Court (plaintiffs state action) asserting a claim of wrongful discharge in violation of public policy. RJR thereupon moved to dismiss plaintiffs complaint pursuant to N.C.G.S. § LA-1, Rule 12(b)(6) (1999) on grounds “it fail[ed] to state a claim upon which relief can be granted because the claim asserted by Plaintiff therein is time-barred” (RJR’s motion). The trial court treated RJR’s motion as one for summary judgment and, by order dated 29 November 1999, granted the motion on the basis that the applicable statute of limitations had expired. Plaintiff appeals. It is undisputed that the statute of limitations for a wrongful discharge action under North Carolina law is three years from the date of discharge. See N.C.G.S. § 1-52(5) (1999). In the case sub judice, therefore, the statute began to run 15 April 1996, the date of plaintiff’s termination, and thus ordinarily would have expired 15 April 1999, several months prior to the filing of plaintiff’s state action. Rule 41 of the North Carolina Rules of Civil Procedure differs from its federal counterpart in that it contains the following additional provision: If an action commenced within the time prescribed therefor, or any claim therein, is dismissed without prejudice under this subsection, a new action based on the same claim may be commenced within one year after such dismissal unless a stipulation filed under (ii) of this subsection shall specify a shorter time. G.S. § 1A-1, Rule 41(a)(1) (1999). “The effect of this provision is to extend the statute of limitations by one year after a voluntary dismissal.” Staley v. Lingerfelt, 134 N.C. App. 294, 298, 517 S.E.2d 392, 395, disc. review denied, 351 N.C. 109, 540 S.E.2d 367 (1999). Disposition of the instant appeal therefore turns upon the applicability of the one-year savings provision of N.C. Rule 41 to plaintiffs state action. Plaintiff argues the trial court erred in allowing RJR’s motion in light of the savings provision of N.C. Rule 41. According to plaintiff, the federal court had supplemental or “pendent” jurisdiction over his wrongful discharge claim. See 28 U.S.C.A. § 1367(a) (1993) (when federal district court has original jurisdiction over a civil action, it may also exercise “pendent” or “supplemental” jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy). As such, plaintiff maintains “state substantive law governs all pendent jurisdiction North Carolina state law claims” in a federal case. Because he commenced the instant state action within one year of the voluntary dismissal of his federal complaint, plaintiff concludes his state action was timely filed under N.C. Rule 41(a). However, regarding his initial federal action, plaintiff concedes “[t]here was no diversity of citizenship between plaintiff and [RJR],” and that “[t]he federal court’s jurisdiction was based on the federal questions he presented in his federal complaint.” Accordingly, plaintiff’s first complaint was not predicated upon diversity of citizenship jurisdiction, i.e., it was a “non-diversity” case. This is significant because determination of the law to be applied in federal court is governed by the source of the right or issue being adjudicated. 19 C. Wright, A. Miller & E. Cooper, Fed. Prac. & Proc. 2d § 4520 (1996). For example, “[t]he tolling of a state statute of limitation in a diversity case is strictly a substantive matter of state law,” Kahn v. Sturgill, 66 F.R.D. 487, 491 (M.D.N.C. 1975) (emphasis added), which the federal court must follow, id.; see Erie Railroad v. Tomkins, 304 U.S. 64, 78, 82 L. Ed. 1188, 1194 (1938) (federal court in diversity case is to apply substantive provisions of state law), and Guaranty Trust Co. v. York, 326 U.S. 99, 108, 89 L. Ed. 2079, 2086 (1945) (“federal court adjudicating a state-created right solely because of the diversity of citizenship of the parties is for that purpose, in effect, only another court of the State”). Conversely, where a federal court gains jurisdiction over state claims supplementally, pursuant to 28 U.S.C.A. § 1367(a), because the action was . . . brought based on federal or constitutional law, the [federal] court is not bound to state substantive law only. Harter v. Vernon, 139 N.C. App. 85, 94, 532 S.E.2d 836, 841, appeal dismissed and disc. review denied, 453 N.C. 263, 546 S.E.2d 97 (2000), cert. denied,-U.S.-,-L. Ed. 2d - (2001). In response to plaintiffs arguments, RJR maintains that plaintiffs voluntary dismissal under Federal Rule 41 of a non-diversity case failed to implicate the savings provision of N.C. Rule 41(a), and further that plaintiffs state court action in any event was not “a new action based upon the same claims as those asserted in the prior action” (emphasis in original) so as to bring N.C. Rule 41(a) into play. In sum, the issue before us is whether plaintiff, after having first filed a voluntary dismissal without prejudice under Federal Rule 41 of his federal action, a non-diversity case, was improperly precluded, in light of the one-year savings provision of N.C. Rule 41(a)(1), from pursuing a claim in state court after the statute of limitations had run on that claim. Previous decisions of our appellate courts indicate this issue must be resolved against plaintiff. In Bockweg v. Anderson, 328 N.C. 436, 402 S.E.2d 627 (1991), the plaintiffs filed a complaint in federal court sitting in diversity jurisdiction alleging various state malpractice claims. Id. at 437, 402 S.E.2d at 628. Plaintiffs subsequently stipulated to a voluntary dismissal without prejudice as to one of the claims, refiling that claim in state court within one year of the voluntary dismissal, but beyond the applicable limitations period for the dismissed claim. Id. The trial court rejected the suit as untimely and plaintiffs appealed. Our Supreme Court characterized the issue on appeal as the effect of the dismissalf] on plaintiffs’ subsequent attempt to refile the action in state court within the one-year savings provision in N.C.G.S. § 1A-1, Rule 41(a)(1), but outside the period of limitations that controls unless N.C.G.S. § 1A-1, Rule 41(a)(1) applies. Id. at 438, 402 S.E.2d at 628. Citing decisions from the federal courts, the Court stated that the effect of a voluntary dismissal under Federal Rule 41 was dependent upon “whether the federal court’s jurisdiction was based on the existence of a federal question or on diversity of citizenship.” Bockweg, 328 N.C. at 441, 502 S.E.2d at 630. Further, [fjederal courts ordinarily need not consider the applicability of a savings provision, as the federal rule contains no such provision. This applies to cases in federal court in which jurisdiction is not based on diversity of citizenship and in which there is no occasion for the federal court to apply state substantive law. Id. at 438, 402 S.E.2d at 629 (emphasis added). Finally, relying on Humphreys v. United States, 272 F.2d 411 (9th Cir. 1959), the Court stated that “a voluntary dismissal under the Federal Rules in a nondi-versity case in federal court does not toll the statute of limitations or invoke [the] savings provision.” Bockweg, 328 N.C. at 439, 402 S.E.2d at 629. The Court also pointed out that federal courts sitting in diversity, and thus following North Carolina law, have applied the one-year savings provision of N.C. Rule 41 to diversity cases dismissed in federal court and recommenced in that court. Id. at 439-40, 402 S.E.2d at 629-30; see Haislip v. Riggs, 534 F. Supp. 95 (W.D.N.C. 1981); Shuford v. K.K. Kawamura Cycle Co., 649 F.2d 261 (4th Cir. 1981); and Webb v. Nolan, 361 F. Supp. 418 (1972), aff’d, 484 F.2d 1049 (4th Cir. 1973), cert. denied, 415 U.S. 903, 39 L. Ed. 2d 461 (1974). Accordingly, [i]n diversity cases in which state law concerning voluntary dismissal is different from federal law, the federal court will conduct an analysis under Erie and its progeny to determine the applicable law. Further, federal courts sitting in diversity applying North Carolina substantive law have concluded that when a plaintiff voluntarily dismisses in federal court and recommences in federal court, he is entitled to the benefit of the North Carolina savings provision as a matter of state substantive law. Bockweg, 328 N.C. at 441, 402 S.E.2d at 630. Applying the foregoing reasoning to the case before it, the Court held that a plaintiff who stipulates to a voluntary dismissal, without prejudice, of a timely filed action in a federal court sitting in diversity and applying North Carolina law, and refiles the action in North Carolina state court, may invoke the one-year savings provision in N.C.G.S. § 1A-1, Rule 41. Id. at 450, 402 S.E.2d at 635 (emphasis added). However, as in Clark v. Velsicol Chemical Corp., 110 N.C. App. 803, 807, 431 S.E.2d 227, 229 (1993), aff'd, 336 N.C. 599, 444 S.E.2d 223 (1994) (plaintiffs federal case involuntarily dismissed because of lack of diversity, Bockweg inapplicable, and plaintiffs subsequent state action filed outside the appropriate statute of limitations properly dismissed as time barred), Bockweg is inapposite to the case sub judice. Unlike the plaintiffs in Bockweg, plaintiff by his own admission brought his federal action pursuant to the court’s federal question jurisdiction as opposed to its diversity of citizenship jurisdiction. Under Bockweg, therefore, the effect of the voluntary dismissal of plaintiffs federal action upon his state action was governed by Federal Rule 41 which contains no savings provision. See Bockweg, 328 N.C. at 438, 402 S.E.2d at 629; see also Harter v. Vernon, 139 N.C. App. 85, 93-4, 532 S.E.2d 836, 841 (2000) (voluntary dismissal under federal Rule 41 in a nondiversity case does not toll the statute of limitations or implicate the savings provision of N.C. Rule 41(a)). Accordingly, because plaintiffs state action was filed outside North Carolina’s three year statute of limitations for a wrongful discharge claim, see G.S. § 1-52(5), and the savings provision of N.C. Rule 41 was inapplicable to plaintiff’s state action, the trial court did not err in entering summary judgment against plaintiff. Notwithstanding, plaintiff advances the proposition that the federal court maintained “supplemental” jurisdiction, see 28 U.S.C.A § 1367(a), over his wrongful discharge claim in plaintiff’s federal action, thereby necessitating application of North Carolina substantive law, including N.C. Rule 41, to that claim. We do not agree. First, Bockweg did not address supplemental jurisdiction of a federal court over a state action, but rather held that a federal court sitting in diversity and applying North Carolina law, i.e., N.C. Rule 41(a)(1), would allow up to one-year for refiling an action which had been voluntarily dismissed. Bockweg, 328 N.C. at 450, 402 S.E.2d at 635. We reiterate that plaintiff has conceded that jurisdiction over his federal action was based upon “federal question jurisdiction rather than diversity of citizenship jurisdiction.” Perhaps more significantly, careful review of plaintiff’s federal complaint reveals no basis upon which the federal court might have assumed supplemental jurisdiction of plaintiffs wrongful discharge claim. Assuming arguendo plaintiffs claim of wrongful discharge may have been “so related to claims in the action within [the] original jurisdiction [of the federal court] that [it] form[ed] part of the same case or controversy,” 28 U.S.C.A. § 1367(a), plaintiffs federal complaint alleged six claims of action based solely upon federal statutes and the federal constitution and set forth no specific claim under North Carolina substantive law, and specifically no North Carolina wrongful discharge claim, such that the federal court would have been accorded supplemental jurisdiction over that claim. It is well established, moreover, that [t]o benefit from the one year extension of the statute of limitation, the second action must be “substantially the same, involving the same parties, the same cause of action, and the same right. ...” Cherokee Ins. Co. v. R/I, Inc., 97 N.C. App. 295, 297, 388 S.E.2d 239, 240 (citation omitted), disc. review denied, 326 N.C. 594, 393 S.E.2d 875 (1990). Assuming arguendo North Carolina Rule 41(a)(1) was applicable to plaintiffs state action, therefore, plaintiff was not entitled to invoke the one-year savings provision because that action and his prior federal action were not “based on the same claim[s].” G.S. § 1A-1, Rule 41(a)(1). In Stanford v. Owens, 76 N.C. App. 284, 332 S.E.2d 730, disc. review denied, 314 N.C. 670, 336 S.E.2d 402 (1985), a claim of fraud, first alleged during re-filing of a previously voluntarily dismissed negligence claim, was held to have been time-barred by the statute of limitations. The plaintiffs maintained the fraud claim was properly filed within one year of the dismissal in that it ha[d] in effect been before the court all along, since it rest[ed] upon somewhat the same allegations that were made in support of the negligent misrepresentation claim when the action was first filed .... Id. at 289, 332 S.E.2d 733. This Court disagreed, concluding that “[a] claim for fraud is fundamentally different from a claim for negligence,” id., and that plaintiffs original allegations of negligence “did not in effect or otherwise,” id., allege fraud. In Staley v. Lingerfelt, 134 N.C. App. 294, 517 S.E.2d 392, this Court considered the circumstance wherein the plaintiffs’ first complaint [filed 4 August 1995] arose out of the [collision] on 11 June 1993, but alleged on a section 1983 claim and a claim of loss of consortium. Id. at 298, 517 S.E.2d at 395. Plaintiffs subsequently voluntarily dismissed that action and thereafter instituted an action 5 September 1995 alleging the two original claims as well as claims of assault and battery, false arrest and imprisonment, malicious prosecution, intentional infliction of emotional distress, negligent infliction of emotional distress, trespass by a public officer, violations of the North Carolina Constitution, and a claim for punitive damages. Id. at 296, 517 S.E.2d at 394. This Court held the latter claims, filed within one year after voluntarily dismissal of the first complaint but outside the applicable limitations period, did not fall within the one year savings provision of North Carolina Rule 41(a)(1) and thus were barred. Id. at 299, 517 S.E.2d at 396. We reasoned that [although the claims [in plaintiffs’ second complaint] ar[o]se from the same events as the section 1983 and loss of consortium claims, defendants were not placed on notice that they would be asked to defend these claims within the time required by the statute of limitations. Id. In the case sub judice, the claims set forth in plaintiff’s federal and state actions arose from the same event, his discharge by RJR. However, the claim of wrongful discharge alleged in the state action and the federal statutory and constitutional claims alleged in the federal action each constitute “independent cause [s] of action with unique elements which must be proven by plaintiff[],” id., and RJR thus was not placed on notice by plaintiff’s federal action that it would be asked to defend plaintiff’s state wrongful discharge claim “within the time required by the statute of limitations,” id. In short, plaintiff’s state action thus was not “based on the same claims,” G.S. § 1A-1, Rule 41(a)(1), alleged in his federal action. To conclude, plaintiff’s state action, filed 20 August 1999, was not timely filed, and the trial court properly granted summary judgment in favor of RJR. Affirmed. Judges GREENE and TYSON concur.

Grace Cuddyer vs. The Stop & Shop Supermarket Company. Norfolk. March 8, 2001. July 12, 2001. Present: Marshall, C.J., Grbaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Anti-Discrimination Law, Sex, Employment. Massachusetts Commission Against Discrimination. Limitations, Statute of. Practice, Civil, Summary judgment. Discussion of the effect of the continuing violation doctrine on the statute of limitations governing G. L. c. 151B claims of sexual harassment. [530-532] Discussion of the theory of sexual discrimination based on a hostile work environment. [532-534] Statement of the Federal interpretation (“revelatory” standard) that a continuing violation claim of sexual harassment will fail if the plaintiff was, or should have been, aware that she was being unlawfully discriminated against while earlier acts, now untimely, were taking place [534-536], and the reasons why, in construing G. L. c. 151B, this court frequently does not follow the reasoning of Federal appellate decisions applying Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(a)(l) [536-539], On a claim against the defendant employer seeking damages for discrimination by means of sexual harassment in the workplace in violation of G. L. c. 151B, § 4(1) and (16A), alleging that the plaintiff employee had been subjected to a hostile work environment, this court held that the plaintiff had set forth an actionable case of sexual harassment and that, based on the continuing violation doctrine, her claim was not barred by the six-month limitation period set forth in G. L. c. 15 IB, § 5, for complaints filed with the Massachusetts Commission Against Discrimination. [539-540] This court, stating that a female employee had set forth a prima facie claim against her employer of discrimination based on sexual harassment, vacated the grant of summary judgment for the employer and remanded the case to the Superior Court for proceedings consistent with guidelines set forth in this opinion. [540-542] Civil action commenced in the Superior Court Department on September 23, 1997. The case was heard by Judith Fabricant, J., on a motion for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Leonard H. Kesten (Deidre Brennan Regan & Steven C. Sharaf with him) for the plaintiff. Lisa J. Damon (Kent D.B. Sinclair with her) for the defendant. The following submitted briefs for amici curiae: Marisa A. Campagna & Deborah M. Silva for the Massachusetts Chapter of the National Employment Lawyers Association. Simone Liebman for the Massachusetts Commission Against Discrimination. Loretta M. Smith for the Associated Industries of Massachusetts & another. Greaney, J. The plaintiff, Grace Cuddyer, was employed as a line worker in the commissary of the defendant, The Stop & Shop Supermarket Company. She brought a complaint in the Superior Court against the defendant seeking damages for discrimination by means of sexual harassment in the workplace in violation of G. L. c. 151B, § 4 (1) and (16A), alleging that she had been subjected to a hostile work environment. A judge in the Superior Court granted summary judgment for the defendant. The judge primarily concluded that the plaintiff’s, claim was barred by the six-month statute of limitations set forth in G. L. c. 151B, § 5, for complaints filed with the Massachusetts Commission Against Discrimination (MCAD). The plaintiff appealed, and we granted her application for direct appellate review to examine the application of the six-month statute of limitations in a claim of sexual harassment of the type alleged here. We conclude that the plaintiff has set forth an actionable case of sexual harassment and that, based on the continuing violation doctrine, her claim is not barred by the six-month limitation period. Accordingly, we vacate the grant of summary judgment and remand the case to the Superior Court for trial. We set out the background of the case by reciting the facts in the summary judgment record as viewed in the plaintiff’s favor, see Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 459 (1997), and the reasoning of the judge in concluding that the defendant was entitled to summary judgment. The plaintiff has been employed by the defendant in the manufacturing division of its Readville facility since 1973. Since her hire, the plaintiff has worked in the commissary as a line worker on a variety of production lines, including the soda and the cold kitchen lines. The commissary staff includes employees at three levels: supervisors; foremen; and line workers. Supervisors are salaried, nonunion employees, whose job responsibilities include directing manufacturing operations, assigning personnel to the production lines, and addressing disciplinary and other problems. Foremen are union members, paid on an hourly basis, whose function is to implement the supervisors’ instructions and generally to run the production line. Their responsibilities include instructing line workers as to specific production requirements, directing where on the line they work, scheduling the workers’ breaks, acting on workers’ requests to leave the line during their shift (such as to visit the restroom), and, in the event of problems on the line, calling maintenance or the supervisor. Each production line has one or two foremen. As of 1998, of the twelve foremen employed in the commissary, only one was female, and, out of approximately 120 employees working on production lines, only six or seven were female. The events relevant to this case began shortly after the outset of the plaintiff’s employment. The plaintiff alleges that, from “day one,” she was subject to both verbal and physical sexual conduct by her then supervisor Billy Leach. According to the plaintiff, Leach subjected her to harassment, by constantly seeking dates and asking her “can I touch you once, can I kiss you in your ear, can I kiss your belly button, stuff like that.” The plaintiff did not report Leach’s behavior to management, because “Billy does it to everybody” (although the plaintiff also indicated that Leach treated her differently from other females in the company), and because she felt that, if she complained, he could make her work harder. The plaintiff also testified that, a couple of times in the past, Leach had made her work harder after she had told him to leave her alone. The plaintiff is not specific as to when Leach’s offensive conduct occurred. Beginning in 1986 or 1987, and continuing until September, 1994, a line worker, Pedro Cordero, continually would rub against or bump into the plaintiff. On at least one occasion, Cordero bent over and “hit his fanny against [the plaintiff’s].” More than once, Cordero purposefully banged his arm into the plaintiff’s breasts. He also repeatedly made comments to the plaintiff about her body, telling her she had a “beautiful body, nice boobs, [and] nice fanny.” Sometime before September, 1994, while the plaintiff was working on the cold kitchen line, Cordero approached the plaintiff and said, “Grace, I had a dream about you. ... I had a dream of you sticking your finger up my ass, and, boy it felt good.” The plaintiff did not report this incident because she did not want to cause trouble. The plaintiff also perceived, from prior experience of reporting unwelcome advances of one foreman, Henry Sanchez (to be set forth shortly), and having Sanchez deny the conduct, that nothing would come of her complaints. The plaintiff finally reported the dream incident to management during a meeting on September 23, 1994, and to Jimmy Beggan, her union representative, who spoke with Cordero. The conduct subsequently ceased. The plaintiff often worked under the direction of foremen A1 Pearson and David Arce on the soda line. Pearson regularly used vulgar language (such as “f-you,” “Mother —and “cunt”); repeatedly approached female employees, moving in a sexually suggestive manner; and frequently asked the plaintiff about her menstrual cycle. She complained of the vulgar language to Beggan, who discouraged her from bringing Pearson’s behavior to the attention of management. On February 16, 1991, the plaintiff was working on the soda line. When she asked Pearson for permission to go to the restroom, he replied, “Oh, it’s that time of the month again. . . . Go ahead.” After the plaintiff returned to the fine, Arce crept up behind her and attached a sanitary pad spotted with raspberry syrup to her back. Other employees laughed and the plaintiff felt humiliated and angry. She immediately informed the supervisor about the incident, telling him, “I can take a joke, but this is ridiculous. This has just gone too far.” During a meeting in the supervisor’s office, Arce apologized and both the plaintiff and Arce returned to work. Although Arce was fired by the defendant for his part in the incident, he was reinstated, after four months unpaid leave, by an arbitrator. In the wake of the sanitary pad incident, both Pearson and Arce treated the plaintiff with hostility. On his return from unpaid leave, Arce had resumed his position as a foreman on the soda line. He once told the plaintiff that it was her fault that he had lost four months pay and also made false reports about the plaintiff’s work performance to her supervisor. The plaintiff perceived that Pearson and Arce’s behavior toward her was motivated by a desire to get her removed from the soda line. The plaintiff told Beggan, who advised her not to complain to management. She followed that advice (although continuing to complain to the union on a weekly basis), except on one occasion, when she and another woman complained that Arce and Pearson were giving them a “hard time.” Discussion ensued regarding alleged inadequacies in the plaintiff’s work, and no disciplinary action resulted. During this time, other workers as well expressed anger that the plaintiff had caused trouble for Arce. The hostility directed at the plaintiff continued until Arce left as foreman of the soda fine in December, 1994, or January, 1995. In 1993, the plaintiff frequently worked on the cold kitchen line under the direction of foreman Henry Sanchez. Sanchez several times asked her for a date and offered to take care of her and give her money. Once he pulled her hair, telling her that he would take her strands of hair to a witch doctor to make her fall in love with him. When the plaintiff refused Sanchez’s advances, he would get angry and scream at her, or falsely accuse her of doing something she had not done. Once Sanchez told the plaintiff that “[he was] going to have [her] taken out of the cold kitchen [line].” At times, after Sanchez complained to the supervisor about the plaintiff’s work performance, she would be taken out of the cold kitchen line. The plaintiff complained to the union and to management, and Sanchez (who denied the plaintiff’s accusations) was warned. Because of management’s failure to take action against Sanchez, the plaintiff was left with the impression that her complaints to management were useless. On September 14 or 15, 1994, a glue machine, used to attach labels to bottles on the soda line, jammed. Following customary procedure for this frequent occurrence, Pearson put on disposable surgical gloves and reached into the pail of glue to remove any labels stuck inside. He then stood behind the plaintiff with glue dripping from his gloves and jerked his hands back and forth to simulate masturbation. The plaintiff turned around and saw him pretending to masturbate behind her. Shocked and dumbfounded, she reported this incident to her supervisor. On September 23, 1994, at a meeting with management and union representatives, the plaintiff became so upset while recounting the incident that she had to be helped out of the room. Pearson denied that he had done anything except wipe excess glue from the gloves before removing them. He was not disciplined for the incident, but was warned that he would be terminated if any future sexual harassment occurred. The next day, Pearson wore a hat on which was affixed a fluorescent sign, reading “Beware.” The plaintiff believed that this message was directed at her. After this incident, Pearson continued to give the plaintiff a “very hard time,” and often yelled at her on the job. Other employees also gave the plaintiff a hard time. On one occasion, approximately six months after the glue incident, a male coworker told her, “Don’t worry, I’m not going to touch you. You’re nothing but trouble anyway.” On another occasion, the same coworker made the sign of a cross as she walked by him. Although the plaintiff spoke with Beggan about the matter, the male coworker continued to bother her. The offensive conduct directed at the plaintiff by Pearson, however, stopped when Pearson became aware that the plaintiff had taken legal action. On March 6, 1995, the plaintiff filed a complaint with the MCAD, charging the defendant with unlawful discrimination based on sexual harassment in violation of G. L. c. 151B, § 4 (1). Her complaint alleged that Arce had created a hostile work environment because of past complaints of discrimination made by her, and that the hostile work environment had continued until December, 1994. In the body of her complaint, the plaintiff specifically referred to the glue incident involving Pearson (described as occurring in September, 1994), and the dream incident involving Cordero (for which the plaintiff did not give an approximate date). On September 13, 1996, a commissioner of the MCAD entered a finding of probable cause on the plaintiff’s complaint and determined both that the plaintiff had established a prima facie case of discrimination and that the defendant had established a legitimate nondiscriminatory defense that the conduct alleged did not constitute discrimination. The plaintiff filed her complaint in the Superior Court on September 23, 1997. Sometime during the same month, Sanchez was standing behind the plaintiff, who was leaning over a table on which some boxes were stacked. Sanchez drew a sketch, which he showed to another worker and then to the plaintiff. To the plaintiff, the drawing appeared to represent a portion of her (unclothed) body. When questioned about the drawing by Alan Goodman, plant manager of the Readville facility, Sanchez denied that he had intended to portray the plaintiff and insisted instead that the drawing was of a dog. Goodman examined the drawing and commented that it looked like a camel or a dog. He ordered that the plaintiff and Sanchez be separated, but took no other action. With respect to the effects of the workplace experience on the plaintiff, a psychologist, Dr. John Daignault, testified at a depositian that the plaintiff suffers from recurrent major depression and posttraumatic stress disorder, which, as stated in a written psychological evaluation, are “directly causally related to persistent episodes of sexual harassment and its sequelae allegedly perpetrated upon her in her workplace.” Although Dr. Daignault did not identify a particular incident, or group of incidents, from among all of those related to him by the plaintiff as causing her medical condition, or attempt to pinpoint the time when the plaintiff’s condition arose, he rejected the possibility that experiences other than work-related ones might have contributed to the plaintiff’s condition. The record also indicates that the defendant first adopted a written sexual harassment policy in the 1980’s. The policy was contained in a corporate policy guide given to upper management, and was posted in work areas such as the break room and employee bulletin boards. The defendant held informal meetings in the late 1980’s with groups of employees to discuss its policy on sexual harassment, and conducted training on sexual harassment for all salaried management employees. During the plaintiff’s employment, the Readville manufacturing plant had a personnel representative who managed human resource issues, including concerns about workplace harassment. In early 1995, the defendant conducted one-hour meetings with groups of employees and supervisors from the Readville plant, which were prompted, in part, by the plaintiff’s allegations, and in which harassment and discrimination issues were discussed. The defendant moved for summary judgment, asserting that only two of the incidents that the plaintiff alleged (the September, 1994, glue incident involving Pearson and the September, 1997, incident involving Sanchez’s drawing) were timely and that these were not sufficiently egregious or pervasive to constitute actionable sexual harassment under G. L. c. 151B. The defendant also argued that the plaintiff’s failure to assert the 1997 drawing incident in a complaint to the MCAD barred its consideration. Finally, the defendant asserted that its response to the glue incident protected it from liability for that event, even if that incident standing alone would suffice to constitute sexual harassment. The judge, in her written memorandum of decision, determined that only the glue and drawing incidents could be considered as evidence of a hostile work environment. These two incidents, she concluded, did not rise to the level of an actionable claim of sexual harassment. The judge rejected the plaintiff’s argument that, because her claim of sexual harassment constituted a continuing violation, the MCAD’s six-month statute of limitations for filing a claim as to the earlier incidents was not applicable. Relying on Federal law interpreting the continuing violation doctrine under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2 (a)(1) (Title VII), the judge concluded that the plaintiff was barred from asserting the doctrine because the plaintiff’s testimony indicated that she was aware that she was the subject of unlawful discrimination while acts prior to the six-month cutoff were taking place. See Provencher v. CVS Pharmacy, Div. of Melville Corp., 145 F.3d 5, 14 (1st Cir. 1998); Sabree v. United Bhd. of Carpenters & Joiners, Local No. 33, 921 F.2d 396, 401 (1st Cir. 1990). The judge concluded that, although the continuing violation doctrine “permit[s] the inclusion of acts whose character as discriminatory was not apparent at the time they occurred,” Speer v. Rand McNally, 123 F.3d 658, 663 (7th Cir. 1997), it does not obviate the general rule that “a knowing plaintiff has an obligation to file promptly or lose his [or her] claim.” See Provencher v. CVS Pharmacy, Div. of Melville Corp., supra at 15. The judge next considered the evidence of the two incidents of harassment within the statutory limitations period, the 1994 glue incident and the 1997 drawing incident. (The judge apparently did not consider Pearson’s wearing of the hat with a “Beware” sign as an incident of harassment). She determined that neither incident involved any physical contact, request for sexual favors, vulgar or demeaning language, or threat or intimidation. She concluded that evidence of the two incidents, three years apart, even when considered in the context of what the judge considered to be the earlier time-barred incidents, was insufficient to support the plaintiff’s claim of sexual harassment. Based on the reasoning described, the judge granted summary judgment for the defendant. 1. We first consider the effect of the continuing violation doctrine on the statute of limitations governing G. L. c. 151B claims of sexual harassment. Specifically, we inquire whether the plaintiff’s awareness that she was being sexually harassed by incidents occurring before September 6, 1994 (the date six months prior to her filing of her complaint with MCAD), bars her from asserting a substantive claim in court based on those incidents. In evaluating the issue, we keep in mind that a defendant seeking summary judgment has the burden of establishing that the plaintiff “has no reasonable expectation of proving an

Martha C. Lipchitz vs. Raytheon Company. Middlesex. February 8, 2001. July 9, 2001. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Anti-Discrimination Law, Sex, Prima facie case, Burden of proof, Employment. Employment, Discrimination. Practice, Civil, Instructions to jury. Evidence, Statistics. At the trial of a civil action brought against the plaintiff's employer, alleging that the plaintiff was denied a promotion because of her gender in violation of G. L. c. 151B, § 4, the judge properly denied the employer’s motion for a directed verdict where, viewing the evidence in the light most favorable to the plaintiff, the evidence was sufficient to support a finding that at least one of the reasons advanced by the employer for denying the promotion was false, from which the jury could have inferred that the plaintiff was denied a promotion because of her gender. [498-499] This court declined to adopt an employer’s argument that an employee, who alleged that she was denied a promotion because of her gender in violation of G. L. c. 151B, § 4, had the burden of proving that the employer’s reasons for not promoting her were a “pretext for discrimination,” and that a judge’s use of the term “pretext,” without more, lowered the employee’s burden of proof. [499-501] At the trial of a civil action brought against the plaintiff’s employer, alleging that the plaintiff was denied a promotion because of her gender in violation of G. L. c. 15 IB, § 4, the employer was entitled to an instruction that the plaintiff had the burden of proving the element of discriminatory animus [501-504], and that discrimination was “the determinative cause” of the adverse employment decision [504-507]; the judge’s failure to instruct on these elements was prejudicial, requiring that the case be retried [507], This court stated that, in future discrimination cases based on indirect evidence, judges should abandon the use of jury instructions that rely on the terms “pretext” and “pretext for discrimination,” and that are framed in terms of shifting burdens, and craft instructions that will focus the jury’s intention on the ultimate issues of harm, discriminatory animus and causation. [507-508] On a claim of individual disparate treatment on the basis of gender in violation of G. L. c. 15 IB, § 4, by an employee against a corporate defendant, the plaintiff’s statistical evidence indicating that, until 1993, there were no women in the highest ranks of the corporation was relevant, and was properly introduced in evidence. [508-509] Civil action commenced in the Superior Court Department on June 7, 1995. The case was tried before Paul A. Chernoff, J. The Supreme Judicial Court granted an application for direct appellate review. Joan A. Lukey (Mary B. Strother with her) for the defendant. Jody L. Newman (Phyllis A. Flora with her) for the plaintiff. Marisa A. Campagna, Betsy Ehrenberg & James S. Weliky for National Employment Lawyers Association, Massachusetts Chapter & others, amici curiae, submitted a brief. We acknowledge receipt of the joint amicus brief filed by the Massachusetts chapter of the National Employment Lawyers Association, the Disability Law Center, Gay & Lesbian Advocates and Defenders, and the Women’s Bar Association of Massachusetts. Spina, J. Martha C. Lipchitz brought this civil action in 1995 against her employer, Raytheon Company, alleging that she was denied a promotion to the position of corporate medical director (CMD) because of her gender in violation of G. L. c. 151B, § 4. The jury returned a verdict for the plaintiff and awarded her $500,000 in compensatory damages, including $30,000 in back pay, $150,000 in front pay, and $320,000 for emotional distress. Raytheon filed several posttrial motions, all of which were denied, except for Raytheon’s motion for remittitur. The plaintiff moved for attorney’s fees and costs and received an award of $225,000 and $20,681, respectively. Raytheon appealed, and we granted its application for direct appellate review. Raytheon claims that the jury were improperly instructed that the plaintiff was only required to prove “pretext” rather than “pretext for discrimination,” and that it was entitled to an instruction that gender was “the determinative factor” in the promotion decision. We do not adopt Raytheon’s argument as to how a jury should be instructed on the question of pretext. We conclude, however, that Raytheon was entitled to an instructian that the plaintiff had the burden of proving the elements of discriminatory animus, and that discrimination was “the determinative cause” of the adverse employment decision as we later define that term. We vacate the judgment and remand the case to the Superior Court for a new trial. We further recommend that in discrimination cases based on indirect evidence, judges abandon the use of jury instructions that rely on the terms “pretext” and “pretext for discrimination,” and that are framed in terms of shifting burdens. 1. Background Facts. In 1975, Lipchitz began working as a physician in the medical department of Raytheon’s largest manufacturing plant located in Andover. The department was responsible for performing physical examinations and providing on-site general and emergency medical services for the plant’s 5,000 to 7,000 employees. In 1980, Lipchitz was promoted to manager of the Andover plant’s medical services department, in which capacity she supervised the plant’s medical department and staff. In addition to her regular administrative duties (including, for example, coordinating and monitoring the medical care of individuals receiving workers’ compensation, attending meetings, and writing reports), she also took the initiative to study health and safety issues affecting Raytheon’s employees, such as substance abuse, and developed teaching modules for plant supervisors on those subjects. At the time of trial in 1997, Lipchitz continued to be employed by Raytheon in this position. From 1980 until 1993, Lipchitz reported directly to Andover plant managers, and had a “dotted-line” supervisory relationship with the CMD, Stephen Alphas. Throughout those years, Lipchitz received highly favorable written performance reviews, the vehicle by which recommendations for merit increases generally were made. Lipchitz’s favorable evaluations resulted in a salary that was at the upper end of the salary grade for her position, as well as frequent bonuses and, eventually, stock options. In addition to the performance evaluations, Lipchitz wrote annual or biennial self-evaluations in which she catalogued her contributions and accomplishments, and noted her strong desire to advance into a corporate position. The only corporate position available to a practicing medical doctor was the CMD position, and as the years went by Lipchitz made known her desire to fill that position when Alphas retired. Her performance evaluations noted both her desire for advancement and her capacity for a management position. In 1988, after he underwent bypass surgery, Alphas continued in the CMD position but his superiors raised with him the question of who would succeed him. In 1989, Alphas hired Harry Azadian as a full-time plant physician. Azadian was a long-time acquaintance and colleague of Alphas and had been working one day a week at Raytheon since 1977. Lipchitz presented evidence to suggest that both the decision to offer Azadian the full-time position and the manner in which he was hired reflected Alphas’s expectation that Azadian would be his successor. There was additional evidence to suggest that this view was shared by Azadian. A job descriptionf for the position was written in 1990 and required that the CMD be “[bjoard [c]ertif[ied] in an appropriate area of specialization.” Azadian was board certified as a general surgeon; Lipchitz was not board certified. Alphas, the outgoing CMD, had not been board certified. Raytheon argued that its reason for passing over Lipchitz in favor of Azadian was primarily difficulties over the years between Lipchitz and Alphas, the CMD, as well as between her and various managers within the Andover plant. Lipchitz had pushed hard for certain opportunities she deemed necessary for her professional advancement, but the response she received from Andover plant managers was negative and, on occasion, patronizing. At the same time, she tended to rebuff requests from Alphas and other managers to take on additional responsibilities, requests that might have been viewed by them as ways to earn opportunities for advancement. Her superiors perceived her as unwilling to take on extra work without asking for additional compensation, and unwilling to be a “team player.” These perceptions were reflected in notations made on documents relevant to, and contemporaneous with, the promotion decision. Testimony regarding the difficulties with her superiors was corroborated by Lipchitz’s desk diary in which she had recorded her disagreements with various managers and supervisors over the years. These difficulties were not mentioned in Lipchitz’s annual reviews or in her self-evaluations. Alphas retired in January, 1994, and Azadian was promoted shortly after. Rather than receive a full promotion to CMD and a salary increase to that position’s salary grade, Azadian was appointed the acting CMD and his salary remained unchanged. The vice-president of human resources testified that Azadian was appointed to this provisional position because Alphas’s retirement was the opportunity he had been awaiting to consider reorganizing the medical department or outsourcing medical services. It was possible that such a change would eliminate the the CMD position. Testimony revealed, however, that as acting CMD, Azadian had all the authority of the CMD, and he expressed his belief that his title and salary had been on hold because of the litigation. 2. Sufficiency of the Evidence on Liability. After the close of the plaintiff’s evidence, Raytheon moved for a directed verdict. On appeal, it argues that there was insufficient evidence to support a finding of pretext at the third stage of the now-familiar order of proof originally set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and adopted by us in Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130 (1976). The plaintiff presented sufficient evidence from which a reasonable jury could find that at least one of Raytheon’s reasons was false and from this it properly could have inferred that she was not promoted because of unlawful discrimination. See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 118 (2000). The reasons Raytheon presented for its decision were Lipchitz’s lack of board certification, and the personal and workstyle difficulties she had with members of management. However, where Lipchitz’s performance evaluations included comments suggesting that she was qualified to hold a management position, the jury could have found that the question of board certification was not the reason Lipchitz had not been promoted, and in other circumstances, the lack of board certification might have been accommodated. In addition, the jury could have credited Lipchitz’s contention that the difficulties she had with Alphas, the CMD, and her Andover managers were not the result of her personality and workstyle and therefore, were the result of gender bias. If the jury found Lipchitz to be a credible witness, and discredited the testimony of Raytheon’s witnesses, the jury could reasonably have believed that, had she been a man, her strict adherence to her principles and the official lines of command and her determination about advancing her career, might have been viewed with admiration rather than resentment. “The ultimate issue of discrimination, raised by the [parties’] conflicting evidence as to the defendants] motive, is not for a court to decide on the basis of [briefs and transcripts], but is for the fact finder after weighing the circumstantial evidence and assessing the credibility of the witnesses.” Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 445 (1995). See Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 16 (1998). Viewing the evidence in its light most favorable to the plaintiff, the evidence was sufficient to support a finding that at least one of the reasons advanced by Raytheon was false, from which the jury could have inferred that the plaintiff was denied a promotion because of her gender. See Abramian v. President & Fellows of Harvard College, supra at 118. The motion for a directed verdict was properly denied. We do not address Raytheon’s argument that the verdict was against the weight of the evidence because we are remanding for a new trial due to errors in the jury instructions. 3. Jury Instructions. (a) Pretext. Raytheon submitted a written request for an instruction that Lipchitz had the burden of proving that Raytheon’s reasons for not promoting her were a “pretext for discrimination.” It renewed the request after the judge charged the jury and before the jury retired to deliberate. See Mass. R. Civ. P. 51 (b), 365 Mass. 816 (1974). The issue was preserved for appellate review. Torre v. Harris-Seybold Co., 9 Mass. App. Ct. 660, 678-679 (1980). Raytheon argues that the judge’s failure to give its requested instruction (“pretext for discrimination”) and to use instead the term “pretext,” without more, lowered Lipchitz’s burden in the third stage. Raytheon additionally argues that the jury’s inability to reach a consensus on question 4, one of the special questions that the judge asked the jury to answer, is evidence of this flaw in the instructions. Lipchitz counters that because Massachusetts is a “pretext only” jurisdiction, Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 443, Raytheon was not entitled to an instruction that she prove “pretext for discrimination” because it would have been an incorrect statement of the law. The phrase “pretext for discrimination” implies that the plaintiff must prove not only that a reason given by the employer for the adverse decision was false, but that the reason was given to cover a discriminatory animus. Our decisions do not require this. See Abramian v. President & Fellows of Harvard College, supra at 118. Cf. Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1997). If the employee were able to prove by direct evidence that discriminatory animus motivated the decision, she would not have to rely on the indirect method of proving animus by disproving at least one of the employer’s articulated, nondiscriminatory reasons. Compare Wynn & Wynn, P.C. v. Massachusetts Comm’n Against Discrimination, 431 Mass. 655 (2000), with Buckley Nursing Home, Inc. v. Massachusetts Comm’n Against Discrimination, 20 Mass. App. Ct. 172 (1985). In an indirect evidence case, if the fact finder is persuaded that one or more of the employer’s reasons is false, it may (but need not) infer that the employer is covering up a discriminatory intent, motive or state of mind. See Riffelmacher v. Police Comm’rs of Springfield, 27 Mass. App. Ct. 159, 165 (1989). Permitting, but not requiring the fact finder to draw the inference strikes the proper balance by holding the plaintiff to her ultimate burden without requiring her to produce direct evidence of discriminatory animus, a form of evidence that, we recognize, rarely exists. See Wheelock College v. Massachusetts Comm’n Against Discrimination, supra at 137. Cf. Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611, 615-616 (1983). That inference, combined with the evidence adduced to meet the employee’s burden of proof under the first stage of McDonnell Douglas, permits the fact finder to conclude that the employee has satisfied her ultimate burden of proving that the decision was made “because of” the unlawful discrimination as G. L. c. 151B, § 4(1), requires. See Abramian v. President & Fellows of Harvard College, supra at 118. (b) Discriminatory animus. Although a “pretext for discrimination” instruction was not required, we agree that the instructians on the issue of pretext, given without the benefit of any instructions on discriminatory animus, were, for the reasons that follow, erroneous. (The special verdict form the jury were asked to complete also reflected the error.) The statute sets out four elements: membership in a protected class, harm, discriminatory animus, and causation. See note 13, supra. See also Dahill v. Police Dep’t of Boston, ante 233, 243 (2001) (membership in protected class and causation); Abramian v. President & Fellows of Harvard College, supra at 117 (animus); MacCormack v. Boston Edison Co., 423 Mass. 652, 662-663 (1996) (harm). It was undisputed that Lipchitz was a member of a protected class because she was a woman, and was harmed by an employment decision when Raytheon bypassed her for promotion. We therefore turn our attention to the element of discriminatory animus. As we have said, in an indirect evidence case, we permit the fact finder to infer discriminatory animus (and causation) from proof that the employer offered a false reason for the adverse employment decision. Permitting the fact finder to infer discriminatory animus from proof that the employer has advanced a false reason does not, however, eliminate the plaintiff’s burden to prove this essential element. See School Comm. of Boston v. Labor Relations Comm’n, 40 Mass. App. Ct. 327, 334 (1996). Stated differently, the “indirect evidence” moniker derives from the type of evidence (pretext) that may establish one or both statutory elements (discriminatory animus and causation). Cf. Johansen v. NCR Comten, Inc., 30 Mass. App. Ct. 294, 299-300 (1991). Pretext does not thereby become the element. Here, the entire import of the instruction on Lipchitz’s burden to establish liability was whether she had proved “pretext,” not whether she had proved that Raytheon had refused to promote her “because of . . . [her] sex.” G. L. c. 151B, § 4 (1). See Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 767 (1986). Cf. Carter v. Comm’r of Correction, 43 Mass. App. Ct. 212, 226 (1997). The instruction transformed “pretext” into an essential element of the plaintiff’s case. The error was compounded by the additional instruction that if Lipchitz established that the reasons given by Raytheon were not its “real reason,” she had established Raytheon’s liability and the jury were to move on to the question of assessing damages. See Abramian v. President & Fellows of Harvard College, supra at 117-118. The only “instruction” the jury received on discriminatory animus was given in connection with special question 4, an advisory question, which the judge described to the jury as having “no effect” on the verdict. The judge should have instructed that Lipchitz was required to prove that Raytheon acted with a discriminatory intent, motive or state of mind. As we said in Abramian v. President & Fellows of Harvard College, supra, decided two years after the trial in this case, juries should be instructed that this element of proof may be satisfied by circumstantial evidence, such as the inference of discriminatory animus that may be drawn from proof that one or more of the reasons advanced by the employer is false. (c) Causation. Raytheon also requested an instruction that Lipchitz had to persuade the jury that her gender was “the determining factor in the decision not to promote her to Acting CMD,” and that “but for” a motive to discriminate . . . she would have been promoted” (emphasis added). Raytheon argues that without this instruction, the jury were ill-equipped to weigh the factors involved in the promotion decision if they were persuaded that some of its reasons were legitimate and some were discriminatory. Lipchitz contends that Raytheon was not entitled to this instruction because it is only applicab

CUNNINGHAM v DEARBORN BOARD OF EDUCATION Docket No. 216170. Submitted December 12, 2000, at Detroit. Decided July 6, 2001, at 9:05 A.M. Denise Cunningham brought an action in the Wayne Circuit Court against the Dearborn Board of Education, her employer, alleging sex discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq., with respect to the defendant’s refusal to provide favored work to the plaintiff that would have been consistent with restrictions placed by her physician because of her pregnancy, whereas the defendant offers favored work to employees who sustain work-related disabilities that qualify them for worker’s compensation. The court, Dalton A. Roberson, J., granted summary disposition for the defendant, ruling that the plaintiff failed to establish a prima facie case of sex discrimination. The plaintiff appealed. The Court of Appeals held: The Civil Rights Act prohibits employment discrimination based on sex and defines “sex” to include pregnancy. The defendant’s policy of extending favored work to employees who sustain work-related disabilities that qualify them for worker’s compensation, but not to employees who sustain disabilities not related to work, such as pregnancy, does not constitute sex discrimination under the Civil Rights Act. The plaintiff failed to establish a prima facie case of sex discrimination inasmuch as she was not similarly situated with employees who sustain work-related disabilities and she was accorded the same rights as employees who sustain disabilities not related to work. Affirmed. Civil Rights — Civil Rights Act — Employment Discrimination — Sex — Pregnancy. An employer does not discriminate against an employee on the basis of sex or pregnancy in making favored work available to employees who sustain work-related disabilities that qualify them for worker’s compensation, but not to employees who sustain disabilities not related to work, such as pregnancy (MCL 37.2201[d], 37.2202[l][a]). Wahl & Rivers, EC. (by Beth M. Rivers), for the plaintiff. Plunkett & Cooney, P.C. (by Robert G. Kamenec and Suzanne P. Barios), for the defendant. Before: Griffin, P.J., and Holbrook, Jr., and Murphy, JJ. Griffin, P.J. Plaintiff appeals as of right an order granting summary disposition in favor of defendant pursuant to MCR 2.116(C)(10). We affirm. i Since 1991, plaintiff has worked for defendant as a Custodian C. At all relevant times, defendant had promulgated and distributed a job description for its Custodial C (Custodian C) position. The “performance responsibilities” contained in the Custodian C job description are as follows: 1. Perform cleaning duties as outlined by the Building Engineer including but not limited to: classrooms, rest rooms, shower and locker rooms, offices and other areas of the school building. 2. Perform minor repairs to school fixtures such as doors, light fixtures, window shades, desks and other furniture, etc. 3. Perform outside cleaning of building and grounds as outlined by the Building Engineer such as snow shoveling, grass cutting, window cleaning and policing grounds and parking area. 4. Assist in preparing of athletic fields. 5. Operate mechanized custodial equipment such as vacuums, hand scrubber, auto scrubber, carpet shampooers, etc. 6. Move and rearrange school furniture as directed by the Building Engineer. 7. Lock and unlock building to provide security and entry of groups using the building. 8. Maintain manual and mechanized custodial equipment and report needed repairs to Building Engineer. 9. Maintain supplies and reports needs to Engineer. 10. Remove trash to outside containers. 11. Replace burned out lamps using step ladders, extension poles or scaffolding. 12. Work cooperatively with other employees in performance of project cleaning. 13. Report cleaning or safety problems to Building Engineer. 14. Scrub and refinish floors during the school year to maintain protection of hard surfaces and minimize the need for floor stripping during summer cleaning. [Emphasis added.] The above duties of a Custodian C employee were the subject of a union contract negotiated between defendant and the Dearborn Federation of School Employees. In her deposition, plaintiff explained the day-to-day duties of a Custodian C position as follows: Q. Do you know what the difference is between a custodial A and custodial C? A. Yes, I do. Q. What is the difference? A. No heavy lifting for custodial A, they normally don’t throw out their own trash, no ladder climbing, no running of any dangerous machinery. Q. What would the heavy lifting be, what type of heavy lifting would there be? A. Moving of heavy desks, furniture, filing cabinets, supplies. Q. Why would you have to get on a ladder, what would that entail? A. Changing a light bulb. * * * Q. What were your duties at Woodworth when you arrived there in ‘94? A. I did the whole first floor hall, I did every entrance in and out of the building, large gym, two gang bathroom [sic], three classrooms, boys lockeroom [sic] and some other duties I can’t remember. H: ' * ‡. Q. At Woodworth, would your duties change in the summer months? A. Yes, it would. Q. What would you do during the summer? A. 'Stripping, wax floors, moving the furniture, cleaning them, change the light bulbs, dusting, major cleaning. Q. Basically the same thing, you would do at McDonald? A. Yes. Q. And since you got at — went to Woodworth, is there any change in your duties as of today? A. I have a different area. Q-. Okay. What would be different about your area, just a different portion of building? A. Correct. Q. The same functions. A. Same functions. In 1995, plaintiff became pregnant with her second child. Because of her pregnancy, on March 22, 1995, plaintiffs personal physician restricted her, employment activities to no lifting of more than fifteen to twenty pounds, no ladder climbing, and no use of an industrial buffer. Shortly after plaintiff presented defendant with her written work restrictions, defendant’s supervisor of human resources wrote a letter to plaintiff that stated: Dear Ms. Cuimingham: As I told you on Monday, March 27, 1995, you cannot currently perform your Custodial C duties due to the restrictions your doctor has placed you under because of your pregnancy. Since you have exhausted all your sick, personal business, and vacation banks, you must apply for leave under the Family and Medical Leave Act. Please complete the appropriate forms as soon as possible and return them to the Department of Human Resources. Thereafter, defendant placed plaintiff on extended health leave that was later converted to family medical leave. After the birth of her child, plaintiff returned to work as a Custodian C on November 30, 1995. It is undisputed that defendant had a collective bargaining agreement with the Dearborn Federation of School Employees, of which plaintiff, as a full-time custodian, was a member. Pursuant to an agreement between defendant and the union, defendant had a “favored work” program. Under the agreement, and by policy of defendant, “an employee who was either eligible for or is receiving Worker’s Compensation benefits is eligible for inclusion in the Favored Work Program,” under which that employee will be permitted to work within the parameters of the medical restrictions placed on the employee. It is uncoñtested that because plaintiff was not eligible for worker’s compensation for her pregnancy, she was not offered favored work. Plaintiff subsequently filed a complaint in the circuit court, alleging that defendant’s decision to suspend plaintiff’s employment as a Custodian C because of her medical restrictions constituted sex discrimination in violation of Michigan’s Civil Rights Act, MCL 37.2101 et seq. In her claim based on “disparate treatment,” plaintiff maintained she was treated differently than alleged similarly situated individuals because defendant permits favored work for job-related disabilities when an employee is eligible for or is receiving worker’s compensation benefits, while defendant does not afford favored work for non-job-related disabilities such as pregnancy. Following discovery, defendant moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that plaintiff was unable to establish a prima facie case of sex discrimination based on her pregnancy because she could present no evidence that she was treated differently than any other employees with non-work-related conditions. Specifically, defendant contended that its decision not to allow plaintiff to continue working in a favored work capacity was based on defendant’s district-wide policy, contained in the collective bargaining agreement with plaintiff’s union and uniformly applied to men and women, that an employee is not given favored work unless that employee is eligible for worker’s compensation by virtue of a work-related injury, which plaintiff conced-edly did not have. The trial court ultimately agreed with defendant’s arguments and granted summary disposition in its favor. Plaintiff now appeals. n In her brief on appeal, plaintiff concedes “there are no Michigan cases on point” but relies on conflicting federal authorities to argue that illegal sex discrimination based on pregnancy occurs if a defendant/ employer does not treat pregnancy as a job-related disability eligible for favored work. However, we agree with the circuit court and hold that defendant’s differing treatment for job-related disabilities and non-job-related disabilities including pregnancy does not violate the Michigan Civil Rights Act. Because plaintiff’s cause of action is not based on title VII of the Civil Rights Act of 1964, 42 USC 2000e et seq. as amended in 1978 by the Pregnancy Discrimination Act (pda), we express no opinion regarding the dissimilar federal statute and its conflicting interpretations. The Michigan Civil Rights Act provides: An employer shall not do any of the following: 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 . . . sex .... [MCL 37.2202(1)(a).] In response to the United States Supreme Court’s decision in General Electric Co v Gilbert, 429 US 125; 97 S Ct 401; 50 L Ed 2d 343 (1976), the Michigan Legislature amended the Civil Rights Act and the United States Congress amended title VII of the Civil Rights Act of 1964. Both the Michigan Legislature and the Congress reacted to remedy the Supreme Court’s decision, which held that title VII of the Civil Rights Act did not prohibit discrimination based on pregnancy. See, generally, Koester v City of Novi, 458 Mich 1, 10-12; 580 NW2d 835 (1998). However, the substance of the state and federal amendments were different. Michigan’s amendment was a straightforward redefinition of the term “sex discrimination,” which was clarified to include pregnancy and pregnancy-related conditions: “Sex” includes, but is not limited to, pregnancy, childbirth, or a medical condition related to pregnancy or childbirth that does not include nontherapeutic abortion not intended to save the life of the mother. [MCL 37.2201(d) (1978 PA 153, effective May 22, 1978).] By contrast, the 1978 congressional amendment of title VII of the Civil Rights Act was more than a clarification. Unlike the 1978 amendment of the Michigan Civil Rights Act, the federal améndment, the pda, not only stated that sex discrimination included discrimination based on pregnancy and pregnancy-related conditions but further provided “women affected by pregnancy, . . . shall be treated the same for all employment-related purposes, ... as other persons not so affected but similar in their ability or inability to work.” 42 USC 2000e(k) (emphasis added). The United States Sixth Circuit Court of Appeals in Ensley-Gaines v Runyon, 100 F3d 1220, 1226 (CA 6, 1996), on which plaintiff herein relies, held that the pda not only overturned the Supreme Court’s decision in Gilbert, supra, by outlawing discrimination based on pregnancy but also “provided additional protection to those women affected by pregnancy. ” According to the Ensley-Gaines court, the additional protection afforded by the pda is the second clause of the pda, which “mandates that pregnant employees ‘shall be treated the same for all employment-related purposes’ as nonpregnant employees similarly situated with respect to their ability to work.” Id. (Emphasis in original.) On the basis of this language contained in the pda, the Ensley-Gaines court held that pregnant employees may not be treated differently on the basis of whether their disability is work-related or non-work-related: [T]he pda explicitly alters the analysis to be applied in pregnancy discrimination cases. While Title VII generally requires that a plaintiff demonstrate that the employee who received more favorable treatment be similarly situated “in all respects,” Mitchell [v Toledo Hosp], 964 F2d [577 (CA 6, 1992)] at 583, the pda requires only that the employee be similar in his or her “ability or inability to work.” 42 USC 2000e(k). Accordingly, when a Title VII litigant alleges discrimination on the basis of pregnancy in violation of the pda, in order to establish a prima facie case of discrimination, she must demonstrate only that another employee who is similarly situated in her or his ability or inability to work received more favorable benefits. In addition, of course, she still must meet her burden of demonstrating that she is a member of the class to be protected by the pda, that she was denied benefits, and that she was qualified to receive those benefits. See McDonnell Douglas [Corp v Green], 411 US [792] at 802, 93 S Ct [1817] at 1824 [36 L Ed 2d 668 (1973)]. Likewise, this ruling does not alter the plaintiff’s burden in rebutting any legitimate, nondiscriminatory reasons which may be offered by the defendant for its employment actions. Therefore, raider the pda, an individual employee alleging discrimination based upon pregnancy need not meet “the same supervisor test” as enunciated in Mitchell, but need only demonstrate that another employee who was similar in her or his ability or inability to work received the employment benefits denied to her. [Ensley-Gaines, supra at 1226.] The Sixth Circuit Court of Appeals opinion in Ens-ley-Gaines, supra, was followed recently by the federal district court for the eastern district of Michigan in Sumner v Wayne Co, 94 F Supp 2d 822, 826 (2000). In applying the second clause protections of the pda, Judge Cohn held: Contrary to defendants’ arguments, the distinction that Seely’s [another employee] temporary disability was as a result of an injury sustained on the job, while Sumner’s [plaintiff] was as a result of her pregnancy (presumably sustained while she was off-duty), is not material. The proper focus under the comparison prong is whether the employees are similar in their ability or inability to work, regardless of the source of the injury or illness. Accordingly, relying on the precise language of the second clause of the pda, the Sixth Circuit Court of Appeals and the federal district court for the eastern district of Michigan have held that in regard to pregnant employees, employers may not make a distinction between work-related disabilities and non-work-related disabilities. However, in Urbano v Continental Airlines, Inc, 138 F3d 204, 206 (CA 5, 1998), the Fifth Circuit Court of Appeals rejected the holding of Ensley-Gaines, supra, when it held that it was not a violation of the PDA for the employer to deny light duty assignments to pregnant employees even though employees who were injured on the job were provided with such an opportunity. The Urbano court held that the pda merely reestablished the principles of title VII law as they had been understood before the Gilbert decision and included pregnancy and pregnancy-related conditions within the definition of sex discrimination without affording pregnant workers any greater rights. Id. at 207. In a footnote, the Urbano court opined that if the PDA were construed in the manner advanced by Ensley-Gaines, the act would discriminate against male employees and therefore violate the intent of title VII, which is to prohibit any discrimination based on sex. Id. at 208, n 2. Likewise, in Spivey v Beverly Enterprises, Inc, 196 F3d 1309 (CA 11, 1999), the Eleventh Circuit Court of Appeals, favorably acknowledging Urbano, supra, held that the defendant employer did not violate the pda by offering modified duty solely to employees injured on the job, and not to employees with nonoccupational injuries, including pregnant employees such as the plaintiff. The Spivey court explained, supra at 1313: The correct comparison is between Appellant and other employees who suffer non-occupational disabilities, not between Appellant and employees who are injured on the job. Under the pda, the employer must ignore an employee’s pregnancy and treat her “as well as it would have if she were not pregnant.” Piraino v International Orientation Resources, Inc, 84 F3d 270, 274 (7th Cir 1996). Ignoring Appellant’s pregnancy would still have left Appellee with an employee who suffered from a non-occupational injury. Appellee, as per its policy, was therefore entitled to deny Appellant a modified duty assignment as long as it denied modified duty assignments to all employees who were not injured on the job. * * * We therefore hold that an employer does not violate the pda when it offers modified duty solely to employees who are injured on the job and not to employees who suffer from a non-occupational injury. Of course, pregnant employees must be treated the same as every other employee with a non-occupational injury. Cf. Spaziano v Lucky Stores, Inc, 69 Cal App 4th 106; 81 Cal Rptr 2d 378 (1999). In the present case, plaintiffs claim of unlawful sex discrimination is based solely on the Michigan Civil Rights Act, not title VII. Most importantly, our Civil Rights Act does not contain the critical language of the pda that was found dispositive in Ensley-Gaines, supra, and Sumner, supra. Michigan’s 1978 amendment is narrower in scope than the federal pda. Thus, as previously noted, the above conflicting interpretations of the dissimilar federal statute are inapposite and not dispositive of the case at hand. Recently in Chambers v Trettco, Inc, 463 Mich 297; 614 NW2d 910 (2000), our Supreme Court emphasized that our Civil Rights Act does not always follow its parallel federal counterpart. In this regard, the Michigan Supreme Court stated: We are many times guided in our interpretation of the Michigan Civil Rights Act by federal court interpretations of its counterpart federal statute. See, e.g., Sumner v Good year Tire & Rubber Co, 427 Mich 505, 525; 398 NW2d 368 (1986). However, we have generally been careful to make it clear that we are not compelled to follow those federal interpretations. See, e.g., Radtke [v Everett, 442 Mich 368, 382; 501 NW2d 155 (1993)]. Instead, our primary obligation when interpreting Michigan law is always “to ascertain and give effect to the intent of the Legislature, ... ‘as gathered from the act itself.’ ” McJunkin v Cellasto Plastic Corp, 461 Mich 590, 598; 608 NW2d 57 (2000). Although there will often be good reasons to look for guidance in federal interpretations of similar laws, particularly where the Legislature has acted to conform Michigan law with the decisions of the federal judiciary, see, e.g., Koester v City of Novi, 458 Mich 1, 15-16; 580 NW2d 835 (1998), we cannot defer to federal interpretations if doing so would nullify a portion of the Legislature’s enactment. [Id. at 313.] Because the language of our Civil Rights Act differs from its federal counterpart, we rely on other state jurisdictions for guidance. In this regard, we note that in Lavalley v E B & A C Whiting Co, 166 Vt 205; 692 A2d 367 (1997), the Vermont Supreme Court addressed the prese

ALSPAUGH v COMMISSION ON LAW ENFORCEMENT STANDARDS Docket No. 220156. Submitted February 5, 2001, at Detroit. Decided June 29, 2001, at 9:05 A.M. Aaron W. Alspaugh and Raymond Kqjawa brought an action in the Oakland Circuit Court against the Commission on Law Enforcement Standards, formerly known as the Michigan Law Enforcement Officers Training Council, alleging gender discrimination resulting from the defendant’s use of different physical fitness performance standards for men and women regarding a performance skills test that must be completed to attend a police academy and eventually become a viable candidate for certification as a police officer. The plaintiffs also alleged that if gender-norming the physical fitness performance standards is constitutionally sanctioned, then the defendant should also age-norm the performance standards to control for concomitant decreases in muscular strength, endurance, and aerobic capacity attributable to the aging process and that the failure to do so is unlawful age-based discrimination. The court, Rudy J. Nichols, J., granted summary disposition in favor of the defendant. The plaintiffs appealed. The Court of Appeals held-. 1. Ignoring the immutable physiological differences between males and females with regard to the performance skills test would disproportionately exclude female candidates from the pool of individuals eligible for certification as police officers. 2. Tests that control for inherent immutable characteristics between males and females and thus provide differing standards do not violate equal protection guarantees. 3. The performance skills test at issue is designed to assess general physical fitness, not to delineate the specific minimum fitness standards required to become a police officer. Gender norming ensures that the most physically fit female candidates are placed into the larger pool of qualified applicants from which different agencies may hire. Gender norming is a measure designed to include viable female candidates, not to exclude viable male candidates. The gender norming is an act of inclusion rather than exclusion. 4. The gender-norming practice serves the sufficiently important governmental interest of avoiding the potential for a disproportionate effect that a single standard would necessarily have on the female candidates in the area of employment, an important governmental interest, and is sufficiently related to the achievement of that interest. The practice does not violate the equal protection provisions of Const 1963, art 1, § 2 or the Civil Rights Act, MCL 37.2101 et seq. 5. The plaintiffs failed to establish the essential elements to sustain a viable claim of age discrimination; i.e., they failed to show that they had qualifications comparable to the person ultimately selected and that the determining factor in the decision not to hire them was their age. Affirmed. Constitutional Law — Equal Protection — Gender-Based Discrimination — Gender-Norming Test Procedures. The equal protection provisions of the constitution and the Civil Rights Act are not violated where a performance skills test developed by the Commission on Law Enforcement Standards to assess the general physical fitness of candidates for police academies uses different performance standards for males and females to control for the relative differences in strength because of the immutable physiological differences between the genders; the use of the gender-norming procedure serves the important governmental interest of avoiding the potential for the disproportionate effect on the employment opportunities of female candidates that a single standard would have and is sufficiently related to the achievement of that interest (Const 1963, art 1, § 2; MCL 37.2101 et seq.). Gabrian & Parks, PC. (by Dennis L. Gabrian), for the plaintiffs. Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Kristin M. Smith, Assistant Attorney General, for the defendant. Before: Hood, P.J., and Doctoroff and K. F. Kelly, JJ. K. F. Kelly, J. Plaintiffs Walter Alspaugh and Raymond Kujawa appeal as of right from the trial court’s decision granting defendant’s motion for summary disposition and dismissing their claims of gender and age discrimination. We affirm. I. OVERVIEW This appeal addresses the constitutional propriety of “gender-norming” physical fitness performance standards in conjunction with a preemployment physical fitness test adopted and implemented by the Michigan State Police. To attend the police academy and eventually become a viable candidate for certification as a police officer, the candidate must first successfully complete a performance skills test. The results of the test are gender-normed, ostensibly to control for the innate physiological differences between the genders, with the top scoring male and female candidates becoming eligible to attend the police academy. Plaintiffs contend that the gender-norming process, which specifies different performance standards for men and women, unfairly discriminates against them on the basis of their gender in contravention of the equal protection provisions of the Michigan Constitution and the state Civil Rights Act (hereinafter cra). Plaintiffs also allege that if gender-norming physical fitness performance standards is constitutionally sanctioned, then defendant should also “age norm” the performance standards. Plaintiffs contend that age norming is necessary to control for concomitant decreases in muscular strength, endurance, and aerobic capacity attributable to the aging process. Consequently, plaintiffs submit that defendant’s failure to age norm the performance standards results in unlawful age-based discrimination in violation of the equal protection provisions of the Michigan Constitution and the cra. Defendant maintains that the primary objective of the physical fitness skills test is to measure general physical fitness rather than establish the minimum physical requirements necessary for law enforcement officers. In other words, the test was designed to ascertain general fitness levels and, thus, separate the physically fit from the physically unfit, not to create minimum performance standards required to become a police officer. If a candidate does not pass the physical performance skills test, that candidate may retake the test as frequently as the candidate pleases until that individual receives a passing score. II. DEFENDANT’S PERFORMANCE SKILLS TEST Defendant, the Commission on Law Enforcement Standards (hereinafter coles), is the state agency authorized by statute to promulgate rules establishing the minimum level of physical fitness required for “recruitment, selection, appointment, and certification of law enforcement officers.” MCL 28.609(1)(a). Pursuant to that authority, the coles developed the performance skills test under the supervision and direction of a psychometrician, an industrial psychologist, and an exercise physiologist. The test itself includes six different activities designed to measure overall physical fitness vis-a-vis dynamic strength, explosive strength, speed, agility, and aerobic capacity. Both males and females perform the same six events. However, to account for the relative differences in strength between men and women due to the immutable physiological differences between the genders and to thus eliminate the potential for an adverse impact on female candidates, the council created different performance standards applicable to males and females. The method employed to accomplish this task, was to “norm” the candidates’ performance by gender so that females are compared with females and males are compared with males. In this way, it was possible to identify and select the most generally physically fit candidates from each group. These candidates were then placed into the larger pool of those individuals eligible to attend the police academy and eventually attain certification as police officers. in. THE PLAINTIFFS Plaintiffs Aaron Alspaugh and Raymond Kujawa are both currently employed as deputy sheriffs in the corrections division in Oakland County. Both Alspaugh and Kujawa took defendant’s performance skills test, did not receive passing scores, and, accordingly, neither of the plaintiffs became eligible to attend the police academy and eventually receive certification as police officers. However, both would have received passing scores if their respective performances had been evaluated pursuant to the standards applicable to the female candidates. Thus, plaintiffs argue that defendant’s “gender-norming” procedure amounts to intentional gender-based discrimination in violation of the equal protection provisions contained in art 1, § 2 of the Michigan Constitution and the cra. Plaintiffs also claim that if gender norming passes constitutional muster, then the performance standards should also be “age normed” to account for the relative decrease in muscular strength and general fitness as a result of the aging process. Plaintiffs sought injunctive and declaratory relief for the alleged violations. Plaintiffs appeal the trial court’s decision granting defendant’s motion for summary disposition pursuant to MCR 2.116(C)(10) and further dismissing plaintiffs’ complaint in its entirety. We affirm. IV. STANDARD of review This court reviews de novo a trial court’s decision granting or denying a motion for summary disposition. Wilcoxon v Minnesota Mining & Mfg Co, 235 Mich App 347; 597 NW2d 250 (1999). Incumbent on the court when considering a motion brought pursuant to MCR 2.116(C)(10) is to consider, in a light most favorable to the nonmoving party, all the documentary evidence, along with all reasonable inferences drawn therefrom, to determine whether a genuine issue of material fact exists upon which reasonable minds may differ. Wilcoxon, supra at 358. V. PLAINTIFFS’ CLAIMS OF INTENTIONAL GENDER-BASED DISCRIMINATION Plaintiffs argue that the performance skills test is not designed to assess general physical fitness, but, rather, is designed to measure the minimum physical skills necessary to be a police officer, and that gender-norming the scores gives preferential treatment to female candidates thus constituting unlawful affirmative action. Plaintiffs argue that gender norming to avoid statistical disparities by gender in passing rates is not substantially related to an important governmental interest and violates the Equal Protection Clause of the Michigan Constitution and the CRA. On the contrary, defendant argues that the justification for gender-norming the performance standards is to eliminate the disproportionate impact or the possibility of disparate-impact discrimination on women because of their physiological characteristics. Defendant maintains that ignoring the immutable physiological differences between males and females as regards the performance skills test would disproportionately exclude female candidates from that pool of individuals eligible for certification as police officers. We agree. A. APPLICABLE CONSTITUTIONAL AND STATUTORY PROVISIONS Article 1, § 2 of the Michigan Constitution provides in pertinent part: No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The CRA expanded the constitutional classifications of “religion, race, color or national origin” to include age, sex, and marital status. MCL 37.2102(1) provides, in pertinent part, that “[t]he opportunity to obtain employment . . . without discrimination because of . . . sex ... is recognized and declared to be a civil right.” See also Neal v Dep’t of Corrections (On Rehearing), 232 Mich App 730, 739; 592 NW2d 370 (1998); Dep’t of Civil Rights ex rel Forton v Waterford Twp Dep’t of Parks & Recreation, 425 Mich 173, 186; 387 NW2d 821 (1986) (recognizing that the CRA broadened the constitutional classifications to include age, sex, and marital status). In Neal, supra at 734, the Court acknowledged that “[t]he purpose of the Civil Rights Act is to prevent discrimination directed against a person because of that person’s membership in a certain class and to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases.” The Michigan Constitution guarantees equal protection of the laws, which means that those who are similarly situated must receive the same treatment. In re Hawley, 238 Mich App 509, 511; 606 NW2d 50 (1999). Conversely, equal protection does not require the same treatment be given those that are not similarly situated. Id. Classifications based on gender are reviewed under the “intermediate” or “heightened-scrutiny” test and will pass constitutional muster only if the classification is “ ‘substantially related to an important governmental objective.’ ” Crego v Coleman, 463 Mich 248, 260; 615 NW2d 218 (2000) (citation omitted); Gora v Ferndale (On Remand), 217 Mich App 295; 551 NW2d 454 (1996). However, as the Court in Neal observed: [M]erely because the state engages in a practice that treats men and women differently, it does not necessarily mean that it engages in unlawful gender discrimination. Rather, the test is whether the gender-based treatment serves a sufficiently important governmental interest and is substantially related to the achievement of that interest. [Neal, supra at 741.] In Dep’t of Civil Rights, supra at 202, our Supreme Court stated that “[f]acts and circumstances . . . play a large part in assessing the end-means relationship. While the relationship need not be perfect, it should be close.” If the classification at issue does not pass this intermediate level or heightened scrutiny, the classification is constitutionally infirm and, thus, must fall. With regard to gender discrimination, those federal civil rights cases interpreting title VII of the federal Civil Rights Act of 1964, 42 USC 2000e et seq., and as amended, 42 USC 1983, although not controlling, provide persuasive authority for considering and resolving cases brought pursuant to Michigan’s Civil Rights Act. Bedker v Domino’s Pizza, Inc, 195 Mich App 725; 491 NW2d 275 (1992). Accordingly, we turn to those cases for general guidance. In Lynch v Freeman, 817 F2d 380, 389 (CA 6, 1987), the court stated that “[a]natomical differences between men and women are ‘immutable characteristics,’ just as race, color and national origin are immutable characteristics.” Thus, the issue becomes whether tests that control for inherent “immutable” characteristics between males and females and thus provide differing standards violate equal protection. We hold that they do not. In United States v City of Wichita Falls, 704 F Supp 709 (ND Tex, 1988), a case cited and relied on by plaintiffs, the court considered two separate and distinct tests: the physical agility test and the physical assessment test. Whereas the physical agility test was “a test of specific strengths and motor abilities directly related to the accomplishment of police functions,” id. at 711, the physical assessment test was employed as a screening mechanism to analyze “the general fitness of an individual instead of an individual’s ability to perform certain tasks.” Id. at 714 (emphasis added). The United States alleged that the physical assessment test discriminated against women in violation of the provisions of a consent decree that enjoined the city from “engaging in any act which had the purpose or effect of discriminating against any applicant ... for employment with the City of Wichita Falls Police Department because of their sex.” Id. at 710. The court disagreed, stating that discrimination based on gender would be “impossible” relative to the physical assessment test because “[although women and men take the same test, the standards against which they are compared are not the same. Women are compared against women and men are compared against men.” Id. at 714 (emphasis added). The court went on to note that the physical assessment test at issue was validated through “ ‘construct validity,’ meaning that the test accurately identifies characteristics necessary to perform a job.” Id. To that end, the court noted that it is “incontrovertible that police officers must be in good physical condition to perform their job.” Id. B. ANALYSIS In the case at bar, defendant’s practice of gender-norming physical fitness performance standards creates a gender-based classification. However, as the Neal Court observed, that alone is not sufficient to establish illicit gender-based discrimination. Gender-based classifications are subject to heightened scrutiny and will overcome the constitutional challenge if substantially related to an important governmental interest. Like the physical assessment test employed in Wichita Falls, the documentary evidence submitted in the case sub judice definitively establishes that the performance skills test at issue herein is a test designed to assess general physical fitness, not to delineate the specific minimum fitness standards required to become a police officer. Gender norming ensures that the most physically fit female candidates are placed into the larger pool of qualified applicants from which different agencies may hire. Reviewing plaintiffs’ claim of gender-based discrimination occasioned by norming performance standards according to gender, those courts that make a distinction between inclusive procedures designed to increase the number of qualified applicants and those procedures designed to exclude members of certain groups are particularly insightful. As one court astutely observed, “non-discrimination is the foundation of inclusion, while discrimination is a basis of exclusion.” Shuford v Alabama State Bd of Ed, 897 F Supp 1535, 1552 (MD Ala, 1995). Indeed, ensuring the largest pool of qualified candidates is a desirable goal. In fact, “[a]n inclusive recruitment effort enables employers to generate the largest pool of qualified applicants and helps to ensure that minorities and women are not discriminatorily excluded from employment. This not only allows employers to obtain the best possible employees, but it ‘is an excellent way to avoid lawsuits.’ ” Duffy v Wolle, 123 F3d 1026, 1039 (CA 8, 1997) (citations omitted). The only harm wrought by ensuring the largest possible pool of qualified candidates is increasing competition between and among the most capable applicants for the position. The Shuford court recognized that techniques of inclusion do not give rise to the traditional equal protection or title VII analysis employed by those courts analyzing techniques designed to exclude. Although not confronted with an affirmative action program designed to remedy past discrimination against women within the Michigan State Police Department, the inclusive/exclusive dialogue is.nonetheless instructive in considering the issues raised in the case at bar. Defendant’s gender norming the performance skills test to determine the most physically fit female candidates relative to their gender is not designed to exclude viable male candidates, but rather, is a measure designed to include viable female candidates. As the court in Shuford explained, “[ejxpanding the pool is an inclusive act. . . . Exclusion occurs if . . . the best candidate from the expanded pool fails to get the job because he was passed over for a woman. This can only happen at the selection stage, which occurs after the pool expansion.” Shuford, supra at 1553 (emphasis added). Defendant’s practice of gender-norming the performance skills test is employed to segregate the most physically fit candidates within each respective group by controlling for the innate physiological differences between the genders and operates to expand the entire pool of qualified applicants. Thus, defendant’s practice of gender-norming the performance skills te

Employer and employee—Unlawful discriminatory practices—Court of appeals' reversal of jury award in sex discrimination action and finding that trial court erred in denying motion for directed verdict reversed and trial judgment reinstated.