Discrimination Cases

KERNS v DURA MECHANICAL COMPONENTS, INC (ON REMAND) Docket No. 198393. Submitted December 10, 1999, at Grand Rapids. Decided July 21, 2000, at 9:00 A.M. Leave to appeal sought. Robert H. Kerns brought an action in the Antrim Circuit Court against Dura Mechanical Components, Inc., alleging that the defendant terminated his employment in violation of, among other things, the Michigan Handicappers’ Civil Rights Act (i-icra), now known as the Persons with Disabilities Civil Rights Act (pwdcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq., and the age discrimination prohibition of the Civil Rights Act (CRA), MCL 37.2101 et seq.; MSA 3.548(101) et seq. The court, Thomas G. Power, J., summarily dismissed the handicap discrimination claim, ruling that in light of the plaintiff’s representations of total and permanent disability in support of a successful claim for social security disability benefits, judicial estoppel precluded the handicap discrimination claim. The court also summarily dismissed the age discrimination claim, ruling that the plaintiff failed to establish that an issue of fact existed concerning whether the defendant’s proffered nondiscriminatoiy reasons for termination were mere pretext for discrimination. The Court of Appeals, Griffin, P.J., and Wahls and Gribbs, JJ., in an unpublished opinion per curiam, issued December 5, 1997 (Docket No. 198393), affirmed, holding that judicial estoppel precluded both claims. The Supreme Court, in lieu of granting leave to appeal, remanded the case to the Court of Appeals for reconsideration in light of Tranker v Figgie Int’l, Inc (On Remand), 231 Mich App 115 (1998), and Cleveland v Policy Management Systems Corp, 526 US 795 (1999). 461 Mich 905 (1999). On remand, the Court of Appeals held: 1. As decided in Tranker with respect to handicap discrimination claims under the hora and in Cleveland with respect to handicap discrimination claims under the Americans with Disabilities Act (ada), 42 USC 12101 et seq., the pursuit and receipt of social security disability benefits no longer automatically gives rise to judicial estoppel so as to bar claims under the hcra or the ada. Nevertheless, summary disposition based on judicial estoppel will be upheld on appeal, without need of a remand, where, as in this case, the inconsistency between statements of total disability in support of the claim for social security disability benefits and statements of ability to perform essential job functions in support of the claim of handicap discrimination cannot be reconciled in a way that would enable a reasonable juror to conclude that, notwithstanding the earlier statements of disability, the claimant could perform the essential functions of the job, with or without reasonable accommodation. An irreconcilable inconsistency exists between the plaintiff’s earlier statements that his job required standing and walking for long periods, but that his physical condition was such that he could not walk on a hard surface and had very limited ability to walk, and his later statements that he could perform the essential functions of his job. By the plaintiffs own admission the job could not be performed unless the person doing the work could stand and walk for long periods. None of the workplace accommodations suggested by the plaintiff were of the reasonable sort required by the hcra. 2. The plaintiff cannot establish a prima facie case of age-related employment discrimination under the cra in light of his inability to provide evidence that he was qualified for the job. Affirmed. Smolensk, X, dissenting, stated that an employment discrimination claim under the pwdcra should not be summarily dismissed on the basis of judicial estoppel relating to an earlier statement of total disability made in the course of seeking social security disability benefits where the claimant offers a sufficient explanation for the inconsistency between such statement and a statement of ability to perform the job made in pursuing the employment discrimination claim under the pwdcra. In this case, the plaintiff provided a sufficient explanation by arguing that reasonable workplace accommodation is not considered in determining eligibility for social security disability benefits, but is considered for purposes of the pwdcra. The grant of summary disposition should be reversed and the case should be remanded for further proceedings because the plaintiff established prima facie cases of handicap discrimination and age discrimination. Civil Rights — Persons with Disabilities — Employment Discrimination — Social Security Disability. The pursuit and receipt of social security disability benefits does not automatically give rise to judicial estoppel to preclude a later claim of employment discrimination under the Handicappers’ Civil Rights Act, now known as the Persons with Disabilities Civil Rights Act; judicial estoppel arises only where the inconsistency between the earlier statement of total disability and the later statement of ability to perform the job sought cannot be reconciled in a way that would enable a reasonable juror to conclude that the claimant could perform the essential functions of the job, with or without accomodation (MCL 37.1101 et seq:, MSA 3.550[101] et seq.). Bott & Spencer, P.C. (by Timothy J. Bott), for the plaintiff. Dickinson, Wright, Moon, Van Dusen & Freeman (by Timothy H. Howlett and David Deromidi), for the defendant. ON REMAND Before: Griffin, P.J., and Gribbs and Smolensk, JJ. On remand, Judge Smolensk has been substituted for Judge Wahls. Griffin, P.J. This case is on remand to us from the Michigan Supreme Court, 461 Mich 905 (1999), for reconsideration in light of Tranker v Figgie Int'l, Inc (On Remand), 231 Mich App 115; 585 NW2d 337 (1998) (Tranker II), and Cleveland v Policy Management Systems Corp, 526 US 795; 119 S Ct 1597; 143 L Ed 2d 966 (1999). We affirm. i Plaintiff Robert Kerns brought an action in the Antrim Circuit Court against defendant Dura Mechanical Components, Inc., alleging defendant violated an employment contract, the Michigan Handicappers’ Civil Rights Act (HCRA) (now known as the Persons with Disabilities Civil Rights Act), MCL 37.1101 et seq.-, MSA 3.550(101) et seq., and the Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq., when it terminated his employment. In our previous opinion in this matter, Kerns v Dura Mechanical Compo nents, Inc, unpublished opinion per curiam, issued December 5, 1997 (Docket No. 198393), we affirmed the trial court’s order granting defendant’s motion for summary disposition with regard to plaintiff’s wrongful discharge, handicapper discrimination, and age discrimination claims. In affirming dismissal of the latter two claims, we relied on the doctrine of judicial estoppel espoused in Tranker v Figgie Int'l, Inc, 221 Mich App 7; 561 NW2d 397 (1997), nullified 456 Mich 931 (1998) (Tranker I), holding plaintiff’s successful representations to the Social Security Administration that he was totally and permanently disabled precluded his claims in the present lawsuit under the HCRA and the Civil Rights Act. After our previous decision, our Supreme Court remanded Tranker I to this Court for reconsideration in light of several federal circuit court decisions that allowed claims under the Americans with Disabilities Act (ADA) even though the plaintiffs therein had previously represented a total disability to the Social Security Administration. 456 Mich 934 (1998). On remand, Tranker II, supra at 121-123, our Court vacated its prior ruling that judicial estoppel automatically bars a subsequent handicap discrimination claim, holding in pertinent part: In our previous opinion we . . . held that the doctrine of judicial estoppel barred plaintiff’s handicap discrimination claim. However, upon further review, we now disavow that position. Like the ADA, the . . . HCRA . . . prohibits discrimination, including in hiring, firing, and advancement. MCL 37.1202; MSA 3.550(202). After its 1990 amendments, it also requires that reasonable accommodations be made to assist the handicapped in performing duties of their employment. . . . [T]he receipt of social security disability benefits should not bar a subsequent claim under the hcra for the same reasons that it does not bar a subsequent claim under the ADA. The two acts are designed for different purposes and utilize different standards, and requiring a plaintiff to choose between the acts is unreasonable and illogical. Moreover, we agree that the social security definition of “disability” does not require a finding that the individual cannot perform any job under any circumstance. . . . The SSA does not take into consideration that a disabled individual may be able to perform a job with reasonable accommodations. Therefore, it is not inconsistent that a plaintiff could be disabled under the SSA and still be qualified to perform the duties of his job or a job he is seeking with reasonable accommodation under the HCRA. For that reason, we also agree that judicial estoppel should not bar a subsequent handicapper claim. . . . We note that although we have determined that judicial estoppel does not operate to automatically bar a disability benefit recipient’s handicap discrimination claim, statements made by the plaintiff in his prior application for disability benefits may weigh against him in his subsequent handicap discrimination claim. “The conclusion we reach today does not mean that claimants’ statements in support of disability claims are never relevant in ADA suits. For example, ADA plaintiffs who in support of claims for disability benefits tell the Social Security Administration they cannot perform the essential functions of a job even with accommodation could well be barred from asserting, for ADA purposes, that accommodation would have allowed them to perform that same job.” [Swanks (v Washington Metropolitan Area Transit Authority, 325 US App DC 238; 116 F3d 582 [1997]), supra at 243.] More recently, in Cleveland v Policy Management Systems Corp, supra, the United States Supreme Court held the pursuit and receipt of social security disability insurance benefits neither automatically estops the recipient from pursuing an ADA claim nor erects a strong presumption against the recipient’s success under the ADA. However, the Cleveland Court, supra at 806-807, further held that to survive a defendant’s motion for summary disposition, [a]n ADA plaintiff cannot simply ignore the apparent contradiction that arises out of the earlier ssdi total disability claim. Rather, she must proffer a sufficient explanation. . . . . . . When faced with a plaintiff’s previous sworn statement asserting “total disability” or the like, the court should require an explanation of any apparent inconsistency with the necessary elements of an ada claim. To defeat summary judgment, that explanation must be sufficient to warrant a reasonable juror’s concluding that, assuming the truth of, or the plaintiffs good faith belief in, the earlier statement, the plaintiff could nonetheless “perform the essential functions” of her job, with or without “reasonable accommodation.” The Cleveland Court, supra at 807, found that, under the particular circumstances of that case, the plaintiff had advanced a sufficient explanation for her contradictory representations to warrant remanding the case to the trial court for further proceedings on the issue: In her brief to this Court, Cleveland explains the discrepancy between her SSDI statements that she was “totally disabled” and her ADA claim that she could “perform the essential functions” of her job. The first statements, she says, “were made in a forum which does not consider the effect that reasonable workplace accommodations would have on the ability to work.” Brief for Petitioner 43. Moreover, she claims the ssdi statements were “accurate statements” if examined “in the time period in which they were made.” Ibid. The parties should have the opportunity in the trial court to present, or to contest, these explanations, in sworn form where appropriate. Accordingly, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. Thus, pursuant to Tranker II and Cleveland, judicial estoppel no longer automatically precludes plaintiffs discrimination claims asserted in this case. Moreover, as this Court has already acknowledged in Hall v McRea Corp, 238 Mich App 361, 369; 605 NW2d 354 (1999), “[t]he Cleveland requirement of an explanation from the plaintiff is fully consistent with this Court’s holding in Tranker II.” In some cases, a remand to the trial court to afford plaintiff the opportunity to reconcile his representation of total disability (for social security purposes) with his hcra and Civil Rights Act discrimination claims would be the appropriate remedy. However, we conclude neither Tranker II nor Cleveland mandates a remand for further explanation in every instance in which inconsistent claims regarding disability have been alleged. As two post-Cleveland federal decisions have expressly recognized, summary disposition based on estoppel, without the necessity for remand, is warranted under certain circumstances. As explained in Motley v New Jersey State Police, 196 F3d 160, 164, 167 (CA 3, 1999): The Supreme Court [in Cleveland] acknowledged, as do we, that a statement of total disability when applying for disability benefits may be a “context-related legal conclusion, namely, T am disabled for purposes of the [disability act].’ ” Id. [Cleveland] at [119 S Ct] 1601. . . . The Court also acknowledged that certain statements made during disability hearings may lead to generally applicable factual conclusions. Where factual inconsistencies between claims exist, as opposed to context-specific legal conclusions, the Court held that the law remains “where [it] found it.” See Cleveland, 119 S Ct at 1601-02 .... * -i= * As the Supreme Court made clear in Cleveland, 119 S Ct at 1603-04, the mere fact that the statutory standards differ in some aspects does not mean that a prior assertion of permanent and total disability can never preclude a party from bringing a claim under the ADA. Cleveland holds simply that where context-related legal conclusions are involved, courts must not apply presumptions automatically without first considering whether the ADA plaintiff can reconcile the two apparently inconsistent statutory claims. There may be cases where, looking at the previous facts and statements by a party, the assertions are such that the party cannot prove that he was a qualified individual because his previous statements take the position that he could not perform the essential functions of the job, with or without accommodation. [Emphasis added.] On the basis of the existing record before it, the Motley Court, supra at 166-167, concluded that the plaintiff would not be able to satisfactorily reconcile the factual inconsistencies between his pension disability and ADA claims and, therefore, a remand was not required pursuant to Cleveland: [S]imply averring that the statutory schemes differ is not enough to survive summary judgment in light of Cleveland. An ADA plaintiff must offer a more substantial explanation to explain the divergent positions taken, or else summary judgment could never be granted. Motley has failed to bring additional reasons for his conflicting answers to our attention. If anything, looking to the different statutory schemes in this particular case convinces us that Motley’s claims are, in fact, unreconcilable. * * * Motley, relying on several specific and severe physical injuries, asserted that he was “permanently and totally disabled.” This was not a mere blanket statement of complete disability checked on a box in order to obtain pension benefits. Rather, the assertion was supported by Motley’s additional statements concerning the type and extent of his injuries. Furthermore, the medical board diagnosis, uncontested by Motley, also concluded that Motley was permanently incapacitated for police officer duties. On their face, these assertions are patently inconsistent with his present claims that he was a “qualified individual” under the ADA. Motley asserted that he was totally disabled so that he could receive special retirement benefits. After his retirement, he brought this claim, which necessarily relies on the fact that he was not totally disabled. Examining all the facts, we cannot say that the District Court erred when it concluded that the ada case brought by Motley was inconsistent with his earlier statements regarding his disability. Thus, under Cleveland, the entry of summary judgment against Motley was proper. Likewise, in Mitchell v Washingtonville Central School Dist, 190 F3d 1 (CA 2, 1999), the United States Court of Appeals concluded that summary judgment was appropriate, and a remand for further proceedings was not warranted. The Mitchell Court held that the plaintiff custodian’s previous assertions that he could no longer walk or stand (made as part of his successful worker’s compensation and social security disability compensation claims) were purely factual conclusions (not “context-related legal conclusion[s],” Cleveland, supra at 802) that prevented the plaintiff from asserting a contrary factual position in his ADA claim: Mitchell [plaintiff] argues that ... in its application of judicial estoppel the district court effectively imposed a per se rule preventing an SSDI recipient who claims an inability to work from later asserting under the ada that he or she is able to work. We disagree. The district court did not hold that Mitchell was estopped from arguing that he was able to work with a reasonable accommodation once he asserted, for purposes of obtaining workers’ compensation and social security benefits, that he was too disabled to work. On the contrary, the lower court specifically declined to apply any such categorical rule and held Mitchell was estopped from asserting, as a factual matter, that he was capable of performing work in other than a sedentary position. Such an application of judicial estoppel is consistent with Cleveland. The Supreme Court emphasized that the case before it did not “involve directly conflicting statements about purely factual matters, such as ... T can/cannot raise my arm above my head[,]’ ” and indeed that the decision “leaves the law related to . . . purely factual. . conflict[s] where [the Court] found it.” Cleveland, [526] US at [802]; 119 S Ct at 1601-02. Therefore, if the requirements for judicial estoppel are otherwise met, Mitchell may be prevented from claiming, as a factual matter, that he could stand and walk at work on the basis of prior factual assertions to the contrary. Turning to those requirements, we conclude that the district court correctly held that Mitchell was estopped from asserting in the present action that he was capable of performing work that required him to stand or walk. . . . Mitchell’s prior statements, made in 1994, 1995 and 1996 to the Workers’ Compensation Board and the Social Security Administration, that he was incapable of standing for any length of time or of walking and that he required work he could perform seated, clearly contradict Mitchell’s position in this litigation that as of late 1994 he was able to stand and walk for a substantial portion of the work day. . . . Since Mitchell’s earlier assertions as to his inability to walk or stand were accepted by these prior administrative tribunals, resulting in a determination in his favor, judicial estoppel prevents Mitchell from advancing, for purposes of this litigation, the contrary position. * * :|: We also agree with the district court that, once estopped from arguing he could walk and stand and therefore bound to the assertion that he could only do sedentary work, Mitchell could not show that he could perform the essential functions of Head Custodian

PETZOLD v BORMAN’S, INC Docket No. 211567. Submitted May 2, 2000, at Detroit. Decided July 18, 2000, at 9:05 A.M. Karl Petzold brought an action in the Wayne Circuit Court against Borman’s, Inc., and Gary Chapell, alleging that the defendants violated the Handicappers’ Civil Rights Act (hcra), now known as the Persons with Disabilities Civil Rights Act, MCL 37.1101 et seq.-, MSA 3.550(101) et seq., when they terminated his employment as a Farmer Jack’s grocery store courtesy clerk or bagger and when they failed to make workplace accommodations for his Tourette Syndrome (ts), a neurological disorder that causes the plaintiff to involuntarily utter obscenities and racial epithets in the presence of customers, children, and fellow employees. The defendants moved for summary disposition, which the court, Michael J. Callahan, J., denied. The defendants appealed by leave granted. The Court of Appeals held: 1. The trial court erred in denying summary disposition of the discrimination claim. The plaintiff failed to establish a prima facie case of employment discrimination under the hcra because the plaintiff’s ts is not unrelated to his ability to perform the duties of his job or position. The plaintiff’s offensive language made him unfit for his job. Furthermore, a disabled employee may be discharged for misconduct, even where the misconduct is a manifestation of the employee's disability. The plaintiff’s offensive language violated Farmer Jack work rules against abusive language or discourteous conduct toward customers, supervisors, or fellow employees. 2. The trial court erred in denying summary disposition of the claim of failure to make workplace accommodations. In order to bring a cause of action under the hcra for failure to make accommodations, a plaintiff must have advised the defendant in writing of the need for accommodation. MCL 37.1210(18); MSA 3.550(210)(18). The plaintiff in this case gave no such notice. Reversed. 1. Civil Rights — Persons with Disabilities — Employment Discrimination. A prima facie case of discrimination under the Handicappers’ Civil Rights Act, now known as the Persons with Disabilities Civil Rights Act, is established where the plaintiff is “handicapped” as defined in the statute, the handicap is unrelated to the plaintiffs ability to perform the duties of a particular job or position or is unrelated to the plaintiffs qualifications for employment or promotion, and the plaintiff has been discriminated against in one of the ways set forth in the statute (MCL 37.1103[e][i][A], 37.1202[1]; MSA 3.550[103][e][i][A], 3.550[202][1]). 2. Civil Rights — Persons with Disabilities — Employment Discrimination — Termination — Misconduct. A disabled employee’s discharge for misconduct does not constitute discrimination under the Handicappers’ Civil Rights Act, now known as the Persons with Disabilities Civil Rights Act, even where the misconduct is a manifestation of the employee’s disability. Cutler & Associates, P.L.L.C. (by Michael H. Cutler), for the plaintiff. Brown Schwartz Patterson & Ankers (by Malcolm D. Brown and Craig S. Schwartz), for the defendants. Before: McDonald, P.J., and Gage and Talbot, JJ. McDonald, P.J. Defendants, Borman’s, Inc., doing business as Farmer Jack, and Gary Chapell, appeal by leave granted the trial court’s denial of their motion for summary disposition in this action under the Handicappers’ Civil Rights Act (HCRA), now known as the Persons with Disabilities Civil Rights Act, MCL 37.1101 et seq.-, MSA 3.550(101) et seq. We reverse. The relevant facts in this case are largely undisputed. Plaintiff, Karl Petzold, suffers from a rare neurological disorder known as Tourette Syndrome (TS). He has had TS since he was seven years old. In order to understand the events in this case, it is first necessary to have a basic understanding of plaintiff’s disorder. The symptoms of TS include motor and vocal tics. Vocal tics axe “the utterance of noises, words, and sometimes unacceptable language, which is called coprolalia.” Levi-Pearl & Cohen, Understanding Coprolalia, (Tourette Syndrome Assoc, Inc, 1994). Plaintiff has coprolalia. The pamphlet in the record entitled Understanding Coprolalia includes the following information: What is Coprolalia? Coprolalia is a medical term used to describe one of the most baffling and socially stigmatizing symptoms of Tourette Syndrome — the involuntary outburst of obscene words or socially inappropriate and derogatory remarks, which may include ethnic or religious slurs. Other examples may include references to genitals, excrement and sexual acts. Although coprolalia is the most well known symptom of ts, it occurs in only a minority of ts patients. * * * How is Coprolalia Manifested? While obscenities and profanities may be common in everyday conversation in our culture, coprolalia is different from simply swearing or using bad language. These vocal tics usually are not uttered within social or emotional contexts, and are often spoken or repeated compulsively in a louder tone or different cadence or pitch than normal conversational speech. Particularly embarrassing for some individuals with coprolalia are involuntary outbursts within social contexts, such as racial or ethnic slurs in the company of the very people who would be most offended by such remarks. A minority of people with coprolalia have this particular problem. [Emphasis in original.] At his deposition, plaintiff explained his coprolalia causes him to say the obscene terms “f . . . ” and “b . . . . ” and racial epithets, especially “n......” Plaintiff also utters shortened forms of these words, for example, “nig.” Plaintiff compared his coprolalia to a sneeze in that he can feel it coming on, but is unable to control it, even with medication. The coprolalia causes him to utter obscenities and racial epithets regularly, usually when he is talking to someone or under stress. Plaintiff explained that his coprolalia would most likely cause him to use the word “n.....,” often accompanied by the word “f . . . ,” when he is with persons who are African-American. Similarly, plaintiff testified that he would be more likely to say the word “b . . . . ” if he were talking with a woman. Plaintiff began working at defendant Farmer Jack’s grocery store located in the city of Hamtramck in July 1995. He was hired for a part-time position that is alternatively known as “courtesy clerk” or “bagger.” His job duties included bagging groceries for customers at the checkout counter, retrieving shopping carts from the parking lot, changing the bags in the bottle-return machines, and sometimes assisting elderly customers by taking their groceries to their cars. These tasks placed him in continual contact with customers and other employees, the majority of whom are African-American and many of whom are female. At his deposition, plaintiff admitted that his coprolalia caused him to utter obscene terms and racial epithets in the presence of customers, children, and other employees on a daily basis. Plaintiff remained employed at Farmer Jack for approximately ten months. However, an incident occurred in May 1996 that led to the termination of plaintiff’s employment. One evening plaintiff was bagging groceries at Loretta Wilkins’ register. Wilkins’ affidavit states there was a line of customers at her register, including a woman and several young men who were African-American. Plaintiff began loudly stating “n....., n . . When Wilkins called his name twice and asked him not to say that, plaintiff acted confused and started putting orders in the wrong shopping baskets. When a woman asked where her meat was, the young men waiting in the line laughed. According to Wilkins, plaintiff then “blurted out loudly, f. . . you, f. . . you, n....., n......” The young men were “outraged” and asked Wilkins what plaintiff said. Although Wilkins explained that plaintiff just talked to himself all the time and did not mean any harm, the young men continued to be angry and Wilkins was “worried that they might retaliate against [plaintiff] after he left work that night.” The store manager, David Flis, testified at his deposition that an African-American male customer complained to Flis regarding plaintiff’s language that evening. The man was “irate” and reported that plaintiff was “saying the N-word and he was swearing.” The man also told Flis that he would handle the problem with plaintiff himself if Flis did not handle it. Flis called plaintiff into his office and asked him what he had said. Plaintiff admitted to Flis that he had said the words “f . . . ” and “n.....,” but Flis could not remember the exact order or how many times plaintiff had used each word. Plaintiff testified candidly at his deposition that on the night the customer complained, he was loudly saying “f . . . , f . . . , n....., n......” Plaintiff did not recall saying “f . . . you.” Plaintiff again explained that his uttering of the offensive words was “part of [his] disability,” that he was not doing it intentionally or “trying to deliberately upset people.” Plaintiff was sent home before his shift ended on the night of the incident, which turned out to be his last night of employment. On another date, plaintiff was given a “Corrective Action Notice” that indicated he was “suspended pending advisability of discharge” because of his “failure to perform job functions per company policies [and] procedures” on the night in question. Plaintiff filed a grievance with his union, United Food & Commercial Workers Union Local No. 876, claiming he was unjustly suspended, but the union’s executive board determined his grievance lacked merit and would not be taken to arbitration. Plaintiff’s employment was eventually officially terminated. A letter dated June 28, 1996, from Farmer Jack’s director of personnel indicated that “courteous and proper treatment” of customers and co-workers were essential job functions that plaintiff was unable to fulfill. The letter also stated that plaintiff’s “inappropriate (if not completely offensive) outbursts and comments” could not be tolerated and that “regardless of whether these outbursts and comments are voluntary or involuntary we still cannot permit our customers, employees or vendors to be subjected to them.” On January 23, 1997, plaintiff filed his complaint in this case. Plaintiff alleged that his Tourette Syndrome was a handicap under the HCRA, that his ts did not affect his ability to perform the duties and requirements of his job, and that defendants terminated his employment because of his ts in violation of the hcra. Plaintiff further alleged that defendants failed to accommodate his handicap as required by the HCRA. Defendants moved for summary disposition on January 23, 1998, under MCR 2.116(C)(10), arguing that plaintiff did not qualify as a handicapper under the hcra because his ts is not unrelated to his ability to perform the job. Defendants also argued that plaintiff’s claim for failure to accommodate should be dismissed because plaintiff admitted that he never made a written request for accommodation as required by the hcra. Following a hearing, the trial court denied defendants’ motion for summary disposition. Defendants sought interlocutory leave to appeal in this Court, which was granted. Defendants argue the trial court erred in denying their motion for summary disposition. We agree. We review a trial court’s ruling on a motion for summary disposition de novo. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). When a motion under MCR 2.116(C)(10) is made, the court considers the affidavits, pleadings, depositions, admissions, and other documentary evidence submitted or filed in the action to determine whether a genuine issue of any material fact exists to warrant a trial. Id. The hcra protects individuals from discrimination based on their handicapped status. Chmielewski v Xermac, Inc, 457 Mich 593, 601; 580 NW2d 817 (1998). The HCRA “prohibits discrimination, including in hiring, firing, and advancement.” Tranker v Figgie Int’l, Inc, 231 Mich App 115, 121; 585 NW2d 337 (1998); MCL 37.1202; MSA 3.550(202). “The purpose of the act is to mandate ‘the employment of the handicapped to the fullest extent reasonably possible.’ ” Chmielewski, supra at 601, quoting Allen v Southeastern Michigan Transportation Authority, 132 Mich App 533, 537-538; 349 NW2d 204 (1984). A prima facie case of discrimination under the HCRA is established where (1) the plaintiff is “handicapped” as defined in the statute, (2) the handicap is unrelated to the plaintiff’s ability to perform the duties of a particular job or position or is unrelated to the plaintiff’s qualifications for employment or promotion, and (3) the plaintiff has been discriminated against in one of the ways set forth in the statute. Chmielewski, supra at 602; Collins v Blue Cross Blue Shield of Michigan, 228 Mich App 560, 568; 579 NW2d 435 (1998); MCL 37.1202(1); MSA 3.550(202)(1), MCL 37.1103(e)(i)(A); MSA 3.550(103)(e)(i)(A). Defendants argue that plaintiff failed to establish a prima facie case because he has not demonstrated that his TS is unrelated to his ability to perform his job. We agree. Plaintiff’s offensive language, which he admitted using on a daily basis in the presence of customers, children, and other employees, made him unfit for his job as a bagger as a matter of law. In reaching this holding, we emphasize that there certainly are jobs that persons with TS and coprolalia could perform. However, plaintiffs coprolalia renders him completely unqualified to perform this particular job, which required continual contact with members of the general public. We find that it would be ridiculous to expect a business such as defendant Farmer Jack to tolerate this type of language in the presence of its customers, even though we understand that because of plaintiffs condition, his utterance of obscenities and racial epithets is involuntary. Defendants further argue the trial court erred in concluding that Farmer Jack’s uniform work rules, which prohibit “abusive language to any employee, supervisor or customer” and “discourtesy towards customers, supervisors, or fellow employees” were not determinative of this case. We agree. In Collins, supra, this Court held that the defendant was entitled to terminate the plaintiff’s employment because the plaintiff’s psychological disorder caused her to express homicidal ideation regarding her immediate supervisor to a psychiatrist assigned to evaluate her disability claim. Collins, supra at 563-564, 568-569. This Court held that “a disabled employee may be discharged for misconduct, even where the misconduct is a manifestation of the employee’s disability.” Id. at 569. The trial court incorrectly limited Collins, supra, to its facts involving homicidal ideation. We agree with defendants that the holding of Collins is applicable to this case. In the instant case, plaintiff’s TS caused him to utter offensive language in the presence of customers and other employees. This constituted misconduct, especially considering defendant Farmer Jack’s uniform work rules that prohibit “abusive language to any employee, supervisor or customer” and “discourtesy towards customers, supervisors, or fellow employees.” Plaintiff has presented no evidence that he was terminated because of his disability, rather than his misconduct. Indeed, plaintiff admitted that he did not suffer discrimination at his job until he was fired after Farmer Jack received customer and employee complaints. Accordingly, the trial court should have granted summary disposition in favor of defendants with regard to plaintiffs claim under the HCRA. Defendants next argue that they were entitled to summary disposition of plaintiffs claim that defendants failed to accommodate his handicap, as required by the statute. The hcra requires an employer to take reasonable steps to accommodate a handicapped employee’s disability. MCL 37.1102(2); MSA 3.550(102)(2); Rourk v Oakwood Hosp Corp, 458 Mich 25, 29; 580 NW2d 397 (1998). In order to bring a cause of action under the statute for failure to accommodate in employment, the employee must advise the employer in writing of the need for accommodation. Sanchez v Lagoudakis (After Remand), 458 Mich 704, 724, n 25; 581 NW2d 257 (1998). The statute provides in relevant part: A handicapper may allege a violation against a person regarding a failure to accommodate under this article only if the handicapper notifies the person in writing of the need for accommodation within 182 days after the date the handicapper knew or reasonably should have known that an accommodation was needed. [MCL 37.1210(18); MSA 3.550(210)(18) (emphasis added).][] In this case, it is undisputed that at no time did plaintiff make a written request for accommodation. In his deposition, plaintiff stated that his only request for accommodation was verbal. Plaintiff does not address this issue on appeal. We conclude that the trial court erred in denying defendants’ motion for summary disposition of the issue of defendants’ failure to make reasonable accommodations. Reversed. Consistent with the parties, we will refer to defendant Borman’s, Inc., as “Farmer Jack” throughout this opinion. This pamphlet and other information is available on the website maintained by the Tourette Syndrome Association, Inc. <http://tsa.mgh.harvard.edu/> (visited July 3, 2000). There are inconsistencies in the record regarding the specific date of the incident. The statute now uses the term “person with a disability” instead of “handicapper.”

Viatcheslav G. Abramian vs. President & Fellows of Harvard College & others. Middlesex. February 11, 2000. July 14, 2000. Present: Abrams, Lynch, Ireland, Spina, & Cowin, JJ. Employment, Discrimination, Termination, Retaliation. Anti-Discrimination Law, Employment, Termination of employment, Burden of proof, National origin. Practice, Civil, Judgment notwithstanding verdict, Instructions to jury, Conduct of counsel. Federal Preemption. Waiver. Damages, Punitive. Evidence at the trial of an employment discrimination case warranted a finding that an employer’s reason for terminating an employee was a pretext and that the disparate treatment received by the employee was motivated by a discriminatory animus based on national origin. [113-115] A Superior Court judge correctly ruled that, in an employment discrimination action, the defendant employer waived its affirmative defense of Federal preemption. [115] This court undertook to reexamine the holding of Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 444-446 (1995), and stated that, in an employment discrimination case in which the plaintiff demonstrates that the employer’s proffered reason for terminating the plaintiff is a pretext, i.e., untrue, that gives rise to an inference of unlawful discrimination sufficient to withstand a motion for directed verdict and sufficient to warrant a jury to return a verdict for the plaintiff; and that the employer may rebut this inference by showing that there was no discriminatory intent or that the employer’s action was based on a different nondiscriminatory reason. [115-118] Where, in an action alleging unlawful employment discrimination based on national origin, the judge instructed the jury in response to a question in accordance with Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 444-446 (1995), to the effect that they had to find for the plaintiff if they determined that the defendants’ proferred reason for terminating the plaintiff’s employment was a pretext, the jury was thereby stripped of their fact-finding function: where there was a basis in the evidence for concluding that the plaintiff was terminated for other than a discriminatory reason, the defendants were entitled to a new trial. [117-119] A Superior Court judge correctly allowed defendants’ motion for a new trial in an employment discrimination case on the issue of punitive damages, where the judge concluded that his instructions could have allowed the jury to award punitive damages without a finding that the defendants’ conduct was “outrageous.” [119] At the trial of an employment discrimination case based on national origin, the judge properly allowed evidence of racial bias expressed by one defendant as relevant to the defendant’s state of mind and credibility, and the judge properly allowed use of such evidence to impeach the defendant; further, plaintiffs counsel’s pursuit of evidence of racial bias at trial did not constitute a basis for the grant of a new trial. [119-121] In a retaliation claim brought under G. L. c. 15 IB, § 4 (4), arising from asserted employment discrimination, the evidence was sufficient for the jury to return a verdict for the plaintiff and the judge instructed the jury correctly on that claim. [121-122] A retaliation claim was separate from and independent of the underlying discrimination in employment claim, on which the defendant was granted a new trial, but claims of intentional interference with contractual relations and aiding and abetting discrimination were, in the circumstances, so intertwined with or derivative of the discrimination claim that the defendant was entitled to a new trial on those claims as well. [122] At a civil trial, the judge did not err in excluding evidence proffered to demonstrate an assertion that the proponent had no reasonable expectation of proving. [122-123] Civil action commenced in the Superior Court Department on October 14, 1993. The case was tried before James F. McHugh, III, J. The Supreme Judicial Court granted an application for direct appellate review. George Marshall Moriarty (Allan A. Ryan, Jr., with him) for the defendants. John J. Barter {John G. Swomley with him) for the plaintiff. The following submitted briefs for amici curiae: Michael E. Malamut for Associated Industries of Massachusetts. Betsy L. Ehrenberg & James S. Weliky for National Employment Lawyers Association, Massachusetts Chapter, & others. Paul E. Johnson, Robert J. Dowling, and Thomas Henaghan. Spina, J. Viatcheslav G. Abramian (Abramian) brought a civil action against the president and fellows of Harvard College (Harvard), alleging that (1) he was discharged in February, 1993, from his employment as a security guard because of his national origin in violation of G. L. c. 151B, § 4 (1), and (2) he was harassed and eventually discharged in retaliation for his complaints about discriminatory acts directed at him because of his national origin in violation of G. L. c. 151B, § 4 (4). The jury returned verdicts against Harvard on both counts, and as to each count the jury awarded compensatory damages of $522,136 and punitive damages of $750,000. In response to special questions, the jury specified the components of compensatory damages as follows: (1) past lost wages — $116,866; (2) future lost wages — $155,270; and (3) emotional distress — $250,000. Abramian named as additional defendants Paul E. Johnson, chief of police and security at Harvard (Johnson); Robert J. Dowling, manager of operations for the security department (Dowling); Thomas Henaghan, supervisor (Henaghan); and Timothy Carlow, a fellow security guard (Carlow). Abramian alleged, inter alia, that each individual defendant (1) aided and abetted acts of unlawful discrimination directed at him, G. L. c. 151B, § 4 (5), and (2) intentionally interfered with his employment relationship with Harvard. The jury returned verdicts for Johnson and against Dowling and Henaghan for aiding and abetting unlawful discrimination, and awarded punitive damages of $25,000. The jury returned verdicts against Johnson, Dowling, and Henaghan for intentional interference with an employment relationship, and awarded compensatory damages of $522,136. The jury were not asked to identify the components of this aspect of damages, as it had with respect to Harvard. The jury returned verdicts for Carlow on both counts. Abramian moved for attorney’s fees and received an award of $161,181.01. The defendants (other than Carlow) moved for judgment notwithstanding the verdict (judgment n.o.v.), Mass. R. Civ. P. 50 (b), 365 Mass. 814 (1974), in which they challenged the sufficiency of the evidence and raised a Federal preemption claim. The defendants also filed a motion for a new trial, Mass. R. Civ. P. 59 (a), 365 Mass. 827 (1974), contending, inter alia, that the judge gave incorrect burden-shifting instructions as to “pretext” and incorrect instructions as to punitive damages. The defendants also sought a new trial based on alleged repeated misconduct of Abramian’s trial counsel. Finally, the defendants filed a motion to alter or amend judgment, Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974), challenging the damages as duplica-tive, and requesting that compensatory damages awarded against the individual defendants be broken into component parts, similar to what had been done for Harvard, to avoid calculation of prejudgment interest on future damages. The judge denied the defendants’ motion for judgment n.o.v. and granted the defendants’ motion for a new trial only as to the issue of punitive damages. The defendants’ motion to alter or amend the judgment was allowed such that they would be jointly and severally liable for compensatory damages; it was denied as to the individual defendants’ request that compensatory damages be broken into components, and prejudgment interest was ordered on that entire amount. The defendants and Abramian appealed. We granted both applications for direct appellate review. On appeal, the defendants claim that (1) the evidence was insufficient to warrant a finding of pretext; (2) the judge erroneously concluded that they waived their Federal preemption claim; (3) the judge gave an erroneous instruction as to the effect of a finding of pretext; (4) the judge’s erroneous instructions of pretext and punitive damages require a new trial as to all issues; (5) they are entitled to a new trial because of repeated misconduct by Abramian’s counsel; and (6) the calculation of prejudgment interest on the award of compensatory damages against the individual defendants was error. Abramian claims that the judge erred in (1) allowing the defendants’ motion for a new trial as to punitive damages; (2) ordering certain subpoenas quashed; and (3) making certain evidentiary rulings. We affirm the judgment against Harvard on the count alleging retaliation, and vacate the other judgments. 1. Background facts. We summarize facts that the jury could have found. Abramian, a white male bom in Russia, was hired by Harvard as a security guard in January, 1988. Abramian was one of approximately ninety security guards on the force. At the time Abramian was hired, Dowling maintained input into the hiring and disciplining of security guards, but did not have direct control. Dowling became manager of operations, with authority to hire and recommend the discipline of guards, in 1989. Henaghan was hired as a security guard in February, 1989, and was promoted to supervisor in August of that same year. He was one of five men who supervised Abramian. The first two years of Abramian’s employment at Harvard were relatively uneventful except for three incidents. In November, 1988, he was found sleeping during his midnight to 8 a.m. shift, and was suspended for five days. The customary sanction for sleeping on post was a suspension of from two to three days. An American-born guard who was also found asleep at his post was disciplined with a letter of reprimand but no suspension. In January, 1989, Abramian was terminated after two Harvard custodial staff members complained that he had fallen asleep on post again. After his union steward investigated the matter during a grievance procedure, Abramian was reinstated with back pay in February, 1989, and the incident was ordered expunged from his personnel file. In May, 1989, a supervisor noted that Abramian had lost part of his uniform, but Abramian received no discipline as a result of this incident. The harassment alleged by Abramian occurred between 1990 and 1993 after Henaghan had become a supervisor. In July, 1990, Henaghan submitted a written incident report into Abrami-an’s personnel file that described Abramian on duty in his T-shirt rather than his uniform shirt. In April, 1991, Henaghan submitted a report that described Abramian wearing a summer uniform shirt opened to the fourth button and wearing civilian pants. In May, 1991, Dowling entered a “final warning” into Abramian’s personnel file, citing a “substantial number of verbal warnings” for being out of uniform. In August, 1991, Henaghan submitted an incident report describing Abramian on duty wearing a uniform shirt open to the second button, no uniform belt, and a uniform shirt and pants in “a mass of wrinkles.” Abramian testified that he never received copies of these written reports, and the jury could have found that the incident reports were false and were entered into Abramian’s file without his knowledge, in violation of Harvard’s personnel policy. From 1990 to 1993, Henaghan was the only supervisor to “write up” Abramian for being out of uniform. During that same time period, Abramian was subjected to demeaning slurs about his national origin. In the presence of an unnamed supervisor, an unnamed guard called him a “bullshit Bolshevik” but no action was taken on the matter. Henaghan, in speaking about Abramian, said, “I’d like to send that fucking Russian back to Russia,” and, “This Russian is nothing but trouble.” Fellow guard Carlow called him a “commie,” and a “fucking Russian” as well. Henaghan also ridiculed Abramian for having an accent and attempting to practice his English skills. Carlow, while in the presence of Henaghan, called Abramian “fucking Rainman” in reference to the movie about an autistic man who “memorizefd] a lot of stuff.” Abramian’s work environment also was tainted by his supervisors’ pejorative references to the national origin of others. From the testimony of a guard of Portuguese descent, the jury could have found that Henaghan ridiculed the guard’s name and the accent of the guard’s mother. From his own testimony, the jury could have found that Henaghan purposefully declined immediately to reprimand another guard for referring to a supervisor of Italian descent as a “fucking little guinea.” After Dowling received complaints about a guard whose native language was Spanish, he said, “We’re trying to give him a job with his own kind, like the Dining Hall Service.” There was testimony that Dowling expressed support, while in the workplace, for the 1992 presidential candidacy of David Duke, a former candidate for Governor of Louisiana in 1991 whose background included an affiliation with the Ku Klux Klan. Dowling condoned comments by other guards who referred to the holiday honoring the birthday of Dr. Martin Luther King, Jr., as “nigger day.” On February 17, 1992, Henaghan went to Abramian’s work station and reprimanded him for not wearing a tie and ridiculed his accent. Abramian asked Henaghan to stop harassing him,, but in response Henaghan threatened to beat him up and challenged him to meet him “outside” at the end of his shift. Abramian wrote a letter dated March 11 to Johnson complaining about the threats and harassment from Henaghan. On March 14, Henaghan wrote up Abramian for being tardy; on March 16, Henaghan wrote up Abramian for eating dinner at a coffee shop during his shift and wearing a civilian jacket; and on March 18, Henaghan wrote a note to Dowling claiming that Abramian had left numerous doors and windows open at the end of his shift. On April 2, a meeting presided over by Dowling was convened for the alleged purpose of discussing the harassment claimed by Abramian, but the result of the meeting was that Abramian was suspended without pay for three days for lying and being out of uniform and Henaghan was not asked to stop harassing Abramian. Although an arbitrator reduced the suspension to one day for being out of uniform, Carlow and other American-born guards had received as many or more warnings than Abramian for being out of uniform, but only Abramian was suspended for being out of uniform. On May 20, 1992, the Harvard Crimson, a student-run newspaper, ran an article detailing how an unnamed Russian security guard (Abramian) was being harassed on a regular basis by his supervisors in the security division of the Harvard police department. After the article was published, Carlow told another guard that he would “help [Dowling] get rid of the — Russian, because he’s causing a lot of problems.” On January 21, 1993, Abramian walked into the security office to pick up his paycheck and see if any new opportunities for promotion had been posted on the bulletin board. Dowling and Carlow were the only others present. As Abramian approached the bulletin board, Carlow blocked his way, and Abramian asked him to move. Carlow refused, looked at Dowling, told Abramian, “Get out from here, fucking Russian,” and struck him and threatened to kill him. After this incident, witnessed by Dowling and reported to Johnson, Abramian was fired for committing assault and battery, filing a false report, and having a history of disciplinary actions. Carlow, who had been a part-time guard, was promoted to a full-time position, inferably Abramian’s. Although there had been other incidents of assaultive behavior between American-born guards, no other guard except Abramian actually had been terminated for assaultive behavior during Johnson’s ten-year tenure as chief of police. 2. Motion for judgment notwithstanding the verdict, (a) Sufficiency of the evidence of pretext. The defendants argue that the judge erred in denying their motion for judgment n.o.v. because the evidence did not support a finding that the reason advanced by Harvard for discharging Abramian was a pretext. They contend that there was no evidence that Dowling knew Carlow started the fight with Abramian that led to his discharge, or that Dowling heard Carlow’s disparaging remark about Abramian’s national origin. They further contend that Abramian failed to “identify and relate specific instances where persons similarly situated ‘in all relevant aspects’ were treated differently.” Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 129 (1997), quoting Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989). The evidence warranted a finding of pretext. Although Abramian was discharged because he allegedly started the fight with Carlow, the jury could have concluded that Carlow started the fight with Dowling’s approval. The fight occurred in front of Dowling, and the jury heard testimony that Carlow looked toward Dowling as if to seek approval before escalating the hostilities. The defendants rely on a statement Abramian allegedly gave to an investigator in which he was reported to have said that Carlow positioned himself so that Dowling would not be able to see or hear what occurred. The jury were not bound by this testimony, which was at odds with Abramian’s trial testimony and could be discounted as a misunderstanding attributable to Abramian’s difficulty with English. There was sufficient evidence for the jury to find that the reason given by Harvard for terminating Abramian was not true, which alone would have warranted a finding for Abramian, as we discuss at Part 3(a), infra. The graphic evidence of discriminatory animus on the part of Dowling and Henaghan provides further support for a finding that Abramian was more likely than not the victim of unlawful discrimination. The derogatory references to Abramian’s national origin and the denigration of other security guards because of their national origin indicate that Dowling and Henaghan were very likely biased against people of other nationalities, and that they carried out their responsibilities as supervisors by harassing such employees and tolerating an atmosphere of bigotry in the workplace. There was also evidence that persons similarly situated were treated differently. Abramian was punished more severely than American-born guards for falling asleep on post, being out of uniform, and engaging in assaultive behavior. As noted, the jury could have concluded that it was Carlow who started the fight, and rather than being discharged, as was Abramian, he was promoted. The jury could have found that the treatment of Abramian was motivated by discriminatory animus rather than a legitimate employment decision. (b) Waiver of Federal preemption claim. The defendants argue that the judge erred in finding that they had waived their affirmative defense of preemption. They contend that Abramian’s claim of wrongful interference with contractual relations is preempted by § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1994), where, as here, a collective bargaining agreement is involved. See Magerer v. John Sexton & Co., 912 F.2d 525, 528 (1st Cir. 1990). The “majority of Federal courts have concluded that, where a Federal statute only controls what substantive law applies rather than the forum in which the matter must be adjudicated, preemption is a waivable affirmative defense.” Central Transp., Inc. v. Package Printing Co., 429 Mass. 189 (1999), and cases cited. Where the defendants first raised this defense in their motion for judgment n.o.v. and not in their motion for directed verdict, we agree with the trial judge that the defense is now waived. Bonofiglio v. Commercial Union Ins. Co.,

Attorneys at law—Misconduct—Two-year suspension with second year of suspension stayed with one-year probation—Engaging, in a professional capacity, in conduct involving discrimination prohibited by law because of race, color, religion, age, gender, sexual orientation, national origin, marital status, or disability—Finding of discrimination by the Ohio Civil Rights Commission, the Equal Employment Opportunity Commission, or a state or federal court is not a prerequisite to the Board of Commissioners on Grievances and Discipline finding that an attorney violated DR 1-102(B).

Discrimination—Age-discrimination claim premised on violation described in R.C. Chapter 4112—Statute of limitations period begins to run on date of employee-plaintiff's termination from defendant-employer.

Civil rights—Unlawful discriminatory practices—Establishing violation of R.C. 4112.02(A)—Requirements to establish claim of hostile-environment sexual harassment—R.C. 4112.02(A) protects men as well as women from all forms of sex discrimination in the workplace—Harassing conduct that is simply abusive, with no sexual element, can support a claim for hostile-environment sexual harassment, when—Determining whether harassing conduct was "severe or pervasive" enough to affect conditions of plaintiff's employment.

Wynn & Wynn, P.C. vs. Massachusetts Commission Against Discrimination & another. Bristol. February 10, 2000. June 6, 2000. Present: Marshall, C.J., Abrams, Lynch, Greaney, Ireland, Spina, & Cowin, JJ. Administrative Law; Findings, Judicial review. Massachusetts Commission Against Discrimination. Practice, Civil, Jury trial, Retroactivity of judicial holding, Attorney’s fees, Costs. Constitutional Law, Trial by jury, Retroactivity of judicial holding, Sex discrimination. Anti-Discrimination Law, Sex, Employee, Burden of proof. Employment, Discrimination. Limitations, Statute of. Emotional Distress. The defendant in an action alleging unlawful gender discrimination in employment was not entitled to the retroactive application of the holding in Lavelle v. Massachusetts Commission Against Discrimination, 426 Mass. 332 (1997), upon raising the issue in a motion for new trial, where the defendant had failed to assert a jury claim in the case at a time when such a right was sufficiently developed and thus had not properly preserved the issue. [662-664] Discussion of the three-stage approach to proof of a discrimination claim [664-666] and of the mixed-motive analysis applicable to some discrimination claims [666-667], This court articulated the analysis to be applied beyond the threshold stage when a mixed-motive framework is invoked in a discrimination case. [668-670] In the circumstances of a claim of gender discrimination in employment in which the plaintiff demonstrated by direct evidence that discriminatory animus was a factor in the defendant’s decision not to hire her, the record of proceedings before a hearing officer of the Massachusetts Commission Against Discrimination supported his conclusion that, although the decision not to offer the plaintiff a position may have resulted “in part” from concerns about her performance, the defendant’s actions were motivated primarily by unlawful discriminatory animus. [667-668, 670-671] Claims of sexual harassment and disparate treatment were not timely filed within the six-month period specified in G. L. c. 151B, § 5, and did not relate back to the filing of the claimant’s original discrimination complaint, nor was there any equitable reason to toll the limitations period. [671-673] In a gender discrimination in employment claim, the hearing officer’s award of damages for emotional distress was fully supported by substantial evidence, and the damages were not greatly disproportionate to the injury proved, nor did they represent a miscarriage of justice. [675] An award of attorney’s fees in a proceeding before the Massachusetts Commission Against Discrimination was reasonable and not an abuse of discretion [675-676], and the commission properly considered attorney’s fees billed in quarter-hour increments [676], A hearing officer of the Massachusetts Commission Against Discrimination did not err in declining to award front pay in an employment discrimination case, where the amount was not reasonably ascertainable. [676-677] A claimant in a sex discrimination in employment case, prevailing on appeal, was entitled to an award of appellate attorney’s fees and costs. [677] Civil action commenced in the Superior Court Department on November 5, 1996. The case was heard by Richard J. Chin, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Douglas A. Hale for the plaintiff. Judith Ashton (Howard P. Speicher with her) for Jill Carmichael. Jerrold S. Levinsky (Christine E. Davio with him) for Massachusetts Commission Against Discrimination. Howard M. Brown, for Northeast Security, Inc., amicus curiae, submitted a brief. Jill Carmichael. Marshall, C.J. This is an appeal from a judgment of the Superior Court affirming a decision of the Massachusetts Commission Against Discrimination (MCAD or commission) that the law firm of Wynn & Wynn, P.C. (Wynn & Wynn or firm), discriminated against Jill Carmichael on the basis of her sex when it failed to hire her as an associate on her graduation from law school. G. L. c. 151B, § 4 (l). We determine that the judge in the Superior Court correctly concluded that Wynn & Wynn was not entitled to a jury trial. In addition, we conclude that the decision of the commission concerning the discriminatory failure to hire was supported by substantial evidence and was consistent with applicable law. See G. L. c. 30A, § 14 (7). We affirm the judgment in all respects. On May 18, 1992, Carmichael filed her discrimination complaint with the commission charging Wynn & Wynn with failure to hire her on the basis of her sex. On August 18, 1992, Carmichael alleged additional claims for sexual harassment and disparate treatment while she was employed as a law clerk. On December 1, 1992, the MCAD investigating commissioner found probable cause to credit all of Carmichael’s allegations. Conciliation efforts proved unsuccessful, and the matter was certified for a public hearing. In October and November, 1994, a four-day public hearing was held before an MCAD hearing officer. One year later, on November 16, 1995, the hearing officer issued her findings of fact and conclusions of law. She found in favor of Carmichael on her failure to hire claim, and awarded her damages for lost back wages and for emotional distress. She denied Carmichael’s claim for front pay, and dismissed as untimely her claims of sexual harassment and disparate treatment. Wynn & Wynn appealed to the commission, and Carmichael cross-appealed. On September 30, 1996, the commission affirmed the decision in all respects. The commission also concluded that Carmichael had “prevailed,” and awarded her attorney’s fees and costs. G. L. c. 151B, § 5. Wynn & Wynn filed a complaint for judicial review in the Superior Court, challenging the MCAD’s ruling that it had failed to hire Carmichael because of her sex, and the award of fees and costs. See G. L. c. 151B, § 6; G. L. c. 30A, § 14. Carmichael filed a counterclaim seeking to set aside so much of the commission’s decision as denied her damages for front pay and dismissed her sexual harassment and disparate treatment claims as untimely. In the alternative, Carmichael asked the judge to enforce the decision of the commission, and to award her attorney’s fees and costs. Both Wynn & Wynn and the commission moved to dismiss Carmichael’s counterclaim as an “appeal” that had not been filed within the requisite thirty-day filing period. See G. L. c. 151B, § 6; G. L. c. 30A, § 14 (1). A Superior Court judge denied their motions. Wynn & Wynn then filed a motion for judgment on the pleadings, as did Carmichael. The judge affirmed all aspects of the commission’s decision, and judgment entered on September 12, 1997. Wynn & Wynn and Carmichael filed timely appeals. Carmichael filed a motion for attorney’s fees and costs, which the Superior Court judge awarded. On December 23, 1997, we issued our decision in Lavelle v. Massachusetts Comm’n Against Discrimination, 426 Mass. 332 (1997), holding that in a discrimination case a respondent has the same right to a jury trial as a complainant after the MCAD has taken final action. On January 9, 1998, Wynn & Wynn moved to set aside the judgment of the Superior Court and for a jury trial, which the judge denied. Wynn & Wynn appealed from that decision. We transferred this case from the Appeals Court on our own motion, and treat the appeals as consolidated. 1. The commission decision. Under the State Administrative Procedure Act, we defer to the fact-finding function of the commission where substantial evidence exists to support its findings and there is no error of law. See G. L. c. 30A, § 14 (7); Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 133 (1976). The employment decision adverse to Carmichael that the hearing officer concluded was unlawful was made at a meeting in April, 1991, following which Carmichael, then a law student employed as a law clerk at Wynn & Wynn, was told by a managing partner that there were no openings for an associate. We summarize the facts as determined by the hearing officer, supplementing her findings, as appropriate, with facts from the record on appeal. . Carmichael attended New England School of Law as a full-time student from September, 1988, to December, 1991. She passed the Massachusetts bar examination in February, 1992, and was sworn in as an attorney in June, 1992. In November, 1989, while she was a law student, Carmichael obtained a position as a law clerk at Wynn & Wynn in its Fall River office. Carmichael’s interview for that position was with Charles Murray, the managing partner of the Fall River office. During the interview she informed Murray that she was married, had a small child, and planned to have additional children in the future. Carmichael was not pregnant at the time: she was not asked to, nor did she, volunteer this information. She was hired and, within a few days, began work as a law clerk. Her second child was born on September 28, 1990, approximately ten months later. Throughout her tenure as a law clerk, Carmichael worked almost exclusively for William McKeon, an associate, later a partner, on a complex, multi-party litigation case, performing duties in the nature of paralegal work. During the academic year she worked approximately three days a week; during the summers she worked full time. We defer until later discussion the findings concerning Carmichael’s allegations of sexual harassment by McKeon. See part 4, infra. In March, 1991, Carmichael asked to meet with Murray to discuss a raise, which Murray authorized; he also agreed to ask any attorneys supervising her to submit written evaluations of her work. Later that month Carmichael told Murray that she wished to be considered for an associate position with Wynn & Wynn on her graduation from law school in December, 1991. He said he would do so. At Murray’s initiative, in April, 1991, Carmichael’s request to become an associate was discussed at a meeting of the attorneys in the Fall River office. The hearing officer found that Murray expressed concern that (in his view) Carmichael had failed to inform him that she was pregnant when he hired her as a law clerk; he felt this indicated a lack of forthrightness on her part. Three other attorneys, Catherine Murphy, Laurie Mullen, and William Kenney each testified, however, that during the meeting Murray stated “flatly” that he would not have hired Carmichael as a law clerk had he known that she was pregnant, and that Carmichael’s priorities were “elsewhere,” presumably with raising a family instead of the practice of law. They said, and the hearing officer found, that Murray informed the group that he was going to tell Carmichael that there was no position available. Murray denied making these statements, but the hearing officer did not credit his testimony. Three witnesses also testified that, after Murray made his comments, McKeon seemed shocked and stated, “I’m glad you said that and not me.” The hearing officer found that, although Murray told Carmichael that there were no openings, another law clerk was under consideration as an associate attorney. Moreover, three months later Murray hired a new associate, Gary Vancini, a Rhode Island lawyer with less than one year of legal experience. Carmichael immediately confronted Murray, who insisted that Vancini was in a different category. In August, 1991, Carmichael met with Attorney Kevin O’Malley, who supervised the firm’s law clerk program. He informed her that her evaluations were excellent, that there was “not a black mark on them,” but that, due to the hiring of Vancini, there was no position available in Fall River. Carmichael was again upset. Even then she sent a copy of her resume to the firm’s named partner at its main office and asked to be considered for a position at any Wynn & Wynn office. When Carmichael left Wynn & Wynn in November, 1991, shortly before her graduation, she had heard nothing about her request. The hearing officer found that until March, 1992, Carmichael had no reason to believe that her earlier pregnancy had anything to do with the decision not to hire her. A chance encounter with William Kenney, who by then had left the firm, led her to speak to Laurie Mullen and Catherine Murphy. They relayed to her the events of the April, 1991, meeting at which Carmichael’s future at the firm had been discussed. Carmichael filed her discrimination charge shortly thereafter. The hearing officer made detailed findings concerning Wynn & Wynn’s explanation of its failure to hire Carmichael as an associate attorney. First, it said Carmichael’s performance as a law clerk had been unacceptable. The hearing officer reviewed the testimony of various attorneys who had worked with Carmichael, credited some, and discredited others. She found that Carmichael had never received substantive negative feedback during her entire employment at the firm, and that Murray’s evaluation of Carmichael was not credible and was tainted by sexism. Wynn & Wynn also claimed that Carmichael had not been offered an associate’s position because no entry-level position existed at the time. The hearing officer found otherwise: shortly after the adverse employment decision (April, 1991), Murray had in fact hired associate Gary Vancini. The hearing officer also found that when associates Mullen and Murphy left the firm in February, 1992, Carmichael was not offered either of their positions; she found those associates were “replaced by male attorneys.” Until the spring of 1992, Carmichael continued to believe that an attorney position would be offered to her if one became available. The hearing officer concluded that Carmichael had demonstrated “by direct evidence” that discriminatory animus was a “factor” in the decision not to hire her. She pointed to the array of witnesses who had testified credibly that Murray, the managing partner “ultimately responsible” for Carmichael’s hiring, had said he would inform Carmichael that there were no available openings in the face of evidence to the contrary. The hearing officer concluded that Wynn & Wynn’s failure to hire Carmichael as an attorney was the result of a determination “tainted by sex discrimination.” The decision, she said, may have resulted “in part” from concerns about Carmichael’s performance, but the unlawful considerations were the “real reason” Carmichael was not offered a position. Murray, she concluded, was responsible for the decision not to hire Carmichael, and his expressed opinions with respect to her pregnancy “reveal a bias that tainted his estimation of her potential as an attorney and that was the primary factor influencing his decision not to offer her a position.” The hearing officer also concluded that the conduct of McKeon and Murray pointed to “a pervasive attitude of sexism” that existed in the Fall River office; see part 4, infra. 2. Right to jury trial. Wynn & Wynn seeks retroactive application of our decision in Lavelle v. Massachusetts Comm’n Against Discrimination, 426 Mass. 332 (1997). The judge in the Superior Court denied the firm’s motion for a new trial, reasoning that retroactive application of Lavelle to this case was not appropriate under the standards of McIntyre v. Associates Fin. Servs. Co. of Mass., 367 Mass. 708, 712 (1975). He further concluded that, even if a new trial was warranted,'Wynn & Wynn had failed to preserve its right to a jury. We agree, but for somewhat different reasons. Prior to our decision in MacCormack v. Boston Edison Co., 423 Mass. 652, 657 (1996), we applied the three-factor analysis described in McIntyre v. Associates Fin. Servs. Co. of Mass., supra, to determine whether a rule should have retroactive application. In MacCormack, we concluded that the “issue of retroactivity may be resolved more simply.” MacCormack v. Boston Edison Co., supra at 656. To eradicate “selective temporal barriers” to the application of claims under our State Constitution in civil cases, we determined that we would give retroactive effect to a new constitutional rule, such as Lavelle, to all litigants with live claims, i.e., those litigants with cases still open on direct review. MacCormack v. Boston Edison Co., supra at 656-658. In Lavelle we applied the rule recognizing the right of a respondent in a discrimination case to a jury trial to the parties before us. See Lavelle v. Massachusetts Comm’n Against Discrimination, supra at 339. Because this case was pending on direct review at the time Lavelle was decided, it is appropriate to give retroactive effect here to that holding. But that is not the end of our inquiry because Carmichael and the commission insist that Wynn & Wynn did not, in any event, preserve its right to a jury trial. We have recognized that it would be manifestly unfair to conclude that a party waived a constitutional issue by failing to raise it before the theory on which its argument is premised “has been sufficiently developed to put him on notice that the issue is a live issue.” Commonwealth v. Bowler, 407 Mass. 304, 307 (1990). See Commonwealth v. Stokes, 374 Mass. 583, 587-588 (1978). We, therefore, must determine whether a respondent’s right to a jury trial was sufficiently developed when Wynn & Wynn could have, but did not, assert that right. We have little hesitancy in concluding that it was. The right to a trial by a jury is recognized in art. 15 of the Massachusetts Declaration of Rights. See also Mass. R. Civ. R 38 (a), 365 Mass. 800 (1974) (right of trial by jury “shall be preserved to the parties inviolate”). Presented with any claim to a trial by jury in a discrimination case under G. L. c. 151B, we consistently have recognized that right as sacred. See MacCormack v. Boston Edison Co., supra at 655 (extending the right to trial by jury to claims for unlawful retaliation); Whalen v. NYNEX Info. Resources Co., 419 Mass. 792, 794-795 (1995) (plaintiff constitutionally entitled to trial by jury for claim of employment discrimination based on physical handicap); Dalis v. Buyer Advertising, Inc., 418 Mass. 220, 226 (1994) (“plaintiff is constitutionally entitled to a trial by jury for her claim of employment discrimination based on sex”). Our decision in Lavelle was the inevitable jurisprudential step that followed Dalis and MacCormack’, we had not intimated in any respect that a respondent in a discrimination case had no such right. Wynn & Wynn argues that it could not have asserted a jury claim before Lavelle because its right had not been recognized. But that is exactly what was done in every other case in which the right to a jury trial in a discrimination case was at issue: the party asserting the right properly preserved the issue. See Lavelle v. Massachusetts Comm’n Against Discrimination, supra at 334; MacCormack v. Boston Edison Co., supra at 654; Dalis v. Buyer Advertising, Inc., supra at 221. See also Whalen v. NYNEX Info. Resources Co., supra at 792-793;'Dean v. Springfield, 38 Mass. App. Ct. 910, 911 (1995). It required no clairvoyance to anticipate the conclusion we reached in Lavelle. Indeed, Wynn & Wynn seems to have anticipated it; it acknowledges that it intended to seek a right to a jury trial from the appellate court on appeal. The Superior Court judge was correct to conclude that Wynn & Wynn waived its right to a jury trial. 3. The discriminatory failure to hire. Wynn & Wynn’s challenge to the conclusion that it unlawfully failed to hire Carmichael may be succinctly summarized. Carmichael had the burden, it argues, to prove as part of her “prima facie” case that there was an opening for an entry-level associate attorney. Even if the hearing officer correctly concluded that Wynn & Wynn’s reasons were a pretext, it continues, Carmichael faced a further “insurmountable hurdle”: to prove as part of her prima facie case that a male entry-level associate was actually hired in her place. Wynn & Wynn misapprehends our law. In cases involvin