Discrimination Cases

Kathleen Pielech & another vs. Massasoit Greyhound, Inc., No. 97-P-1677. Bristol. January 6, 1999. July 21, 1999. Present: Warner, C.J., Jacobs, & Spina, JJ. Statute, Retroactive statute. Practice, Civil, Relief in the nature of certiorari, Relief from judgment. Due Process of Law, Retroactive application of statute. The clear language of the retroactivity provisions of St. 1997, c. 2, were applicable, as a matter of law, to a case in which a petition for certiorari was pending in the United States Supreme Court at the time the statute became effective; consequently, plaintiffs’ motion under Mass.R.Civ.R 60(b)(6) seeking relief from summary judgment dismissing their claims arising under G. L. c. 151B, § 4(1A), should have been allowed. [324-327] In a civil action, the judge’s entry of summary judgment in favor of the defendant on the plaintiffs’ claims for intentional infliction of emotional distress and violation of G. L. c. 93, from which the plaintiffs did not perfect an appeal, was not properly the subject of a motion pursuant to Mass.R.Civ.R 60(b)(6), seeking relief from the dismissal of those claims. [327] This court declined to consider a constitutional issue insufficiently raised on the factual record in the court below. [327-328] Civil action commenced in the Superior Court Department on June 15, 1993. Following a decision of the Supreme Judicial Court, 423 Mass. 534 (1996), a motion for relief from judgment was heard by John J. O’Brien, J. Harvey Weiner (Michael P. Duffy with him) for the plaintiffs. Joel A. Kozol for the defendant. The following submitted briefs for amici curiae: A. Van C. Lanckton & Merle Ruth Hass for American Jewish Congress. Howard A. Brick, Michael N. Sheetz, & Laurin Levin for The Anti-Defamation League. Patricia Reed. The defendant states in its, brief that its correct name is Massasoit Greyhound Association, Inc. We acknowledge the filing of amicus briefs by the American Jewish Congress and by the Anti-Defamation League. Jacobs, J. By complaint filed in 1993, the plaintiffs asserted that their employment as part-time parimutuel clerks was “terminated” by their former employer, Massasoit Greyhound, Inc. (Massasoit), because they “refused to work on Christmas Day [of 1992] for religious reasons.” Their complaint contained counts alleging (1) unlawful discrimination under c. 15IB, § 4(1A); (2) violation of G. L. c. 93, § 102 (the Massachusetts Equal Rights Act); and (3) intentional and negligent infliction of emotional distress. After the allowance of Massasoit’s motion for summary judgment by a Superior Court judge, the Supreme Judicial Court, in Pielech v. Massasoit Greyhound, Inc., 423 Mass. 534, 540 (1996), cert, denied, 520 S. Ct. 1131 (1997), construed § 4(1 A) as violative of the establishment clause of the First Amendment to the United States Constitution and affirmed the judgment in favor of Massasoit. Soon thereafter, a bill was introduced in the Legislature, the effect of which “would be to change the construction that the court gave to § 4(1 A) in its Pielech opinion so that the protection of § 4(1A) would not be limited ‘to persons whose practices and beliefs mirror those required by the dogma of established religions.’ ” Opinion of the Justices, 423 Mass. 1244, 1245 (1996), quoting from Pielech v. Massasoit Greyhound, Inc., supra at 539-540. In response to a question submitted by the Legislature, the Supreme Judicial Court concluded that § 4(1 A) with the proposed amendment would not violate the Massachusetts and Federal Constitutions. Id. at 1246-1247. The proposed amendment was subsequently enacted as St. 1997, c. 2, effective February 27, 1997. Section 3 of St. 1997, c. 2, provides: “The provisions of section two of this act shall apply to all claims arising not earlier than three years before the effective date of this act which have not yet been filed, and to all other claims pending before the commission against discrimination or a court on the effective date of this act, including claims upon which final judgment or judgment after rescript has not entered or as to which a period to file an appeal, certiorari petition, petition for rehearing or similar motion has not expired on said effective date.” While the amendment was pending, the plaintiffs sought and received from the United States Supreme Court an extension to February 10, 1997, for the filing of a petition for certiorari. They filed their petition on February 8, 1997. On the day following the enactment of the amendment, the plaintiffs initiated a separate action (the new case) in the Superior Court under G. L. c. 15IB, § 4(1 A), as amended by St. 1997, c. 2, repeating the discrimination claims of their 1993 complaint. After their petition for certiorari was denied on March 17, 1997, the plaintiffs returned to the instant case on March 28, 1997, by filing an “emergency” motion pursuant to Mass.R. Civ.R 60(b)(6), 365 Mass. 829 (1974), in which they sought relief from the summary judgment dismissing their original complaint. On the same day, they filed a motion to amend their original complaint by substituting the amended § 4(1 A) and adding a count under Title VII of the Civil Rights Act of 1964, see 42 U.S.C. § 2000e (1994), accompanied by a “First Amended Complaint” that repeated verbatim the counts under G. L. c. 93, § 102, and for intentional and negligent infliction of emotional distress contained in their original complaint. On April 25, 1997, the rule 60(b)(6) motion was denied by the same Superior Court judge. 1. Retroactivity. In his decision on the rule 60(b)(6) motion, the judge concluded that the retroactivity provision of the amended statute does not apply to this case because the “plaintiffs did not have a ‘claim pending’ as of the effective date of the [amendment], February 27, 1997.” The judge also wrote: “Moreover, this court’s decision comports with the traditional understanding that judgments are final. Finally, the plaintiffs are free to attempt to vindicate their rights in another action which, consequently, they are doing.” It is well established that-ordinarily “[a] motion under Rule 60 is addressed to the judge’s discretion,” Trustees of the Stig matine Fathers, Inc. v. Secretary of Admin. & Fin., 369 Mass. 562, 565 (1976), and “appellate courts will show marked deference to the lower court’s resolution of such a motion.” Chiu-Kun Woo v. Moy, 17 Mass. App. Ct. 949 (1983). Here, however, the judge’s ruling as to retroactivity is purely one of law and does not reflect an exercise of discretion. It may, therefore, be reviewed for correctness as matter of law, without deferential weighting. See Stilwell v. Travelers Ins. Co., 327 F.2d 931, 933 (5th Cir. 1964); Cuzzi v. Board of Appeals of Medford, 2 Mass. App. Ct. 887, 888 (1974) (while a judge’s denial of a discretionary motion ordinarily does not present an issue of law on appeal, “the rule is otherwise where the denial is based on a ruling that [the judge] was without power to grant it”). See also 11 Wright, Miller & Kane, Federal Practice & Procedure § 2872 (1995). The pertinent provision of the retroactivity clause makes the amendment applicable to “all . . . claims pending before . . . a court on [February 27, 1997], including claims ... as to which a period to file [a] . . . certiorari petition . . . has not expired on said . . . date.” We construe this provision solely to determine whether it encompasses the instant action, leaving to another time the question of its constitutionality. The relevant status of this action as of February 27, 1997, was that the summary judgment dismissing the plaintiffs’ complaint had been affirmed by the Supreme Judicial Court, and a timely petition for certiorari had been filed by the plaintiffs with the United States Supreme Court. In deciding that the amended version of § 4(1 A) was inapplicable to the case at bar, the judge concluded that the plaintiffs did not have a “claim pending” on February 27, 1997. Relying on case law and a dictionary definition, he determined that “a claim is the set of operative facts that gives rise to an enforceable right and certiorari is not a matter of ‘right’ but, instead, rests in the sound discretion of the court.” Whatever might be the validity of that analysis in other circumstances, it is here inapposite. One need not go beyond the plain language of the retroactivity clause to determine that among the included claims to which the amendment is to apply is one “as to which a period to file [a] . . . certiorari petition . . . has not expired.” In the context of that retroactivity language, it is of no moment that certiorari may be a matter of discretion rather than right. The certiorari petition procedure described merely provides one of several time lines for determining the claims to which the amended § 4(1 A) applies. Given that definitional function, it would be inconsistent to treat a claim in a case as pending for purposes of the retroactivity provision until the time for filing a petition for certiorari has expired but as not pending when a certiorari petition properly has been filed within that time. Even if we thought there to be ambiguity in the retroactivity provision, and resorted to attempting to ascertain the intent of the Legislature, we would again arrive at retroactive application to this case. That intent is “ascertained from all [the words of the statute] . . . considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.” Hanlon v. Rollins, 286 Mass. 444, 447 (1934). The order by which the House of Representatives brought the question of the constitutionality of the amended version of § 4(1 A) to the Supreme Judicial Court makes clear that the amendment was enacted in response to that court’s Pielech opinion, see Opinion of the Justices, supra at 1245, and the amendment itself speaks of an “intention . . . immediately to restore the right of individuals to be free from discrimination in the workplace based on their sincerely held religious beliefs.” St. 1997, c. 2, § 1. In Opinion of the Justices, supra, the court not only recognized the broad remedial objective of the amended § 4(1A), but also indicated that the constitutionality of the retroactivity provision (§ 3) “is one that can be raised in pending litigation.” Id. at 1247-1248. No great inferential leap is required to conclude that the court believed that it was the intention of the Legislature to encompass the plaintiffs’ action in the retroactivity provision. This point was conceded by Massasoit in its opposition to the rule 60(b) motion in the Superior Court, which states that the retroactivity clause was an attempt by the Legislature “to create a new cause of action specifically for the plaintiffs.” While “changes in the law alone would not justify reopening [a final] judgment,” Galvin v. Welsh Mfg. Co., 382 Mass. 340, 344 (1981), the clear language of the retroactivity provision coupled with the resolve of the Legislature to give the plaintiffs their day in court constitute the “compelling or extraordinary circumstances” required for relief under rule 60(b) in “the interests of justice.” Winthrop Corp. v. Lowenthal, 29 Mass. App. Ct. 180, 188-189 (1990). See Bromfield v. Commonwealth, 400 Mass. 254, 257 (1987). 2. The other claims. In his decision ordering summary judgment for Massasoit, the judge ruled that the plaintiffs’ c. 93 claim fell within the c. 15IB discrimination allegation and also concluded that “ [Massasoit’s] actions are not severe enough to constitute a viable claim for intentional infliction of emotional distress.” In Pielech, the court did not address the emotional distress claims and briefly noted that the plaintiffs’ treatment of the c. 93 issue was insufficient appellate argument. Accordingly, those claims are foreclosed by the general proposition that rule 60(b) is not a mechanism for addressing errors that could have been the subject of an appeal. See Amerada Hess Corp. v. Garabedian, 416 Mass. 149, 156 (1993). See also Bromfield v. Commonwealth, 400 Mass, at 257. In any event, given our decision and the broad remedial provisions of c. 151B, § 9, which include “actual and punitive damages” and “reasonable attorney’s fees and costs,” these other claims of the plaintiffs are essentially duplicative of their discrimination claim. Compare G. L. c. 93, §§ 102(6) & (d). No injustice derives from treatment of those claims as closed. The plaintiffs’ motion to amend their original complaint by adding a count under Title VII also appears to be duplicative of the c. 151B claim, but, in any event, the disposition of that motion is left to the Superior Court on remand. 3. Constitutionality. The plaintiffs maintain that retroactive application of G. L. c. 151B; § 4(1 A), as amended, does not violate any constitutional right of due process. Massasoit, noting the opinion of the Supreme Judicial Court that “the answer to the due process of law question will depend on the facts of each case,” Opinion of the Justices, 423 Mass, at 1247, argues that the factual record before us is insufficient to determine the constitutionality issue. We agree with the latter contention. “The rule that guides judges in deciding whether a retroactive statute violates due process rights ... is that only statutes ‘which, on a balancing of opposing considerations, are deemed to be unreasonable, are held to be unconstitutional.’ American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., 374 Mass. 181, 189-190 (1978).” Opinion of the Justices, supra at 1248. The criteria for evaluating the reasonableness of a retroactive statute include three considerations: “the nature of the public interest which motivated the Legislature to enact the retroactive statute;, the nature of the rights affected retroactively; and the extent or scope of the statutory effect or impact.” Leibovich v. Antonellis, 410 Mass. 568, 577 (1991). While the first consideration readily could be addressed on the basis of the record before us, the other considerations require examination of factual questions to which our record does not provide adequate answers. Analysis of “the nature of the rights affected retroactively” necessarily involves an examination of whether Massasoit “acted in reasonable reliance upon the previous state of the law.” Liebovich v. Antonellis, supra at 578. That inquiry involves a determination whether Massasoit relied on G. L. c. 151B, § 4(1A), prior to its amendment and as previously construed by the Supreme Judicial Court and whether such reliance was reasonable. Also implicated is the question whether Massasoit would have acted differently, by way of accommodation, had it known that the amendment would be enacted. See Liebovich v. Antonellis, supra at 578 & n.7. With respect to the third consideration involving the impact of retroactive application, we are unable to determine the number of claims under § 4(1 A) that may have arisen in the three years prior to February 27, 1997, and the number of “other claims pending before the commission against discrimination or a court” on that date. While it may be reasonable to assume that the range of cases retroactively affected by the amended version of § 4(1 A) will be narrow, see Liebovich v. Antonellis, supra at 579-580, that determination is better made after a hearing. Accordingly, we reverse so much of the rule 60(b)(6) motion as denied the plaintiffs relief from the judgment on their claims under c. 151B, § 4(1 A), and remand the matter to the Superior Court for further proceedings on the plaintiffs’ complaint, treated as stating only a claim under G. L. c. 151B, § 4(1 A), as amended by St. 1997, c. 2, and for the determination of such other matters as may properly come before the court. The question of the constitutionality of the retroactivity provisions of § 3 of St. 1997, c. 2, is reserved, in the first instance, to that court. So ordered. On the same day, February 28, 1997, the plaintiffs filed a motion to reopen and amend their original complaint to assert a claim under § 4(1A), as amended. The preferred “amended complaint” states only a claim under c. 151B. Massachusetts Rule of Civil Procedure 60(b)(6) provides for relief from a final judgment for “any . . . reason justifying relief from the operation of the judgment.” To the extent that Massasoit relies on the judge’s denial of the rule 60(b) motion on the alternative grounds that “the plaintiffs are free to attempt to vindicate their rights in another action which, consequently, they are doing,” it is at least arguable that the “new case” having been filed in 1997, more than three years after the alleged discrimination, is not encompassed by the retroactivity clause and is time-barred as maintained by Massasoit in that action. Conversely, if the new case were determined not to be time-barred under the theory that the claims on which it is based fall within the retroactivity provision, the plaintiffs would be placed in essentially the same position as our decision puts them.

DONAJKOWSKI v ALPENA POWER COMPANY Docket No. 108468. Argued January 20, 1999 (Calendar No. 2). Decided June 30, 1999. Local 286, Utility Workers of America, brought an action in the Alpena Circuit Court on behalf of Christina Donajkowski and other female union members against the Alpena Power Company, alleging sex discrimination in violation of the Civil Rights Act. The union subsequently was dismissed as a plaintiff, and Alpena Power filed a third-party complaint, seeking contribution from the union in the event the defendant was found liable to the plaintiffs. The court, Joseph P. Swallow, X, allowed the third-party complaint, over the union’s protest, and eventually granted summary disposition for the defendant. The Court of Appeals, Neff, P.J., and Fitzgerald, X (C. A. Nelson, X, dissenting), reversed the grant of summary disposition, but affirmed the decision allowing the third-party complaint against the union. 219 Mich App 441 (1996) (Docket No. 183475). The union appeals. In an opinion by Justice Young, joined by Chief Justice Weaver, and Justices Brickley, Taylor, and Corrigan, the Supreme Court held-. Under the Michigan contribution statute, MCL 600.2925a; MSA 27A.2925(1), an employer being sued for sex discrimination based upon the operation of a collective bargaining agreement may seek contribution from a union that was a party to the agreement. 1. While Michigan common law prohibits an intentional tortfeasor from seeking contribution, the Michigan contribution statute, MCL 600.2925a; MSA 27A.2925(1), does not include such a limitation or prohibition. Thus, contribution may be had between tortfeasors without regard to the intentional character of their acts, and, on the basis of its plain and unambiguous terms, the statute, with specific exceptions, authorizes an intentional tortfeasor to seek contribution. 2. The Civil Rights Act did not impliedly repeal the contribution statute. A repeal may be inferred when it is clear that a subsequent legislative act conflicts with a prior act, or when a subsequent act of the Legislature clearly is intended to occupy the entire field covered by a prior enactment. In this case, the union failed to meet the burden of establishing either of these criteria. Nothing in the Civil Rights Act directly conflicts with the contribution statute, nor is there any evidence that the Civil Rights Act was intended to address, much less completely occupy, the field of contribution. Affirmed. Justice Kelly, joined by Justice Cavanagh, dissenting, stated that the defendant employer may not seek contribution from the union for intentional sexual discrimination arising from a collective bargaining agreement provision. The majority has erroneously read into § 2925a a right to contribution among wilful tortfeasors, despite the fact that the right is lacking from the manifest intent of the Legislature as derived from the words of the act itself. Rather, the language of the statute indicates that the Legislature intended only to permit contribution among negligent, or nonintentional, tortfeasors. The Fishman Group (by Steven J. Fishman, Paul D. Kramer, Donald H. Scharg and Thomas A. Pinch) for plaintiffs. Sachs, Waldman, O’Hare, Helveston, Bogas & McIntosh, P.C. (by Mary Ellen Gurewitz, John R. Runyan, and Marshall J. Widick), for third-party defendant-appellant, Local 286, Utility Workers of America, AFL-CIO. Amicus Curiae: Jordan Rossen, General Counsel, and Georgi-Ann Oshagan, Associate General Counsel, for International Union, UAW. Young, J. We granted leave in this case to address the scope of the Michigan contribution statute, MCL 600.2925a; MSA 27A.2925(1). Specifically, we are presented with the question whether an employer being sued for sex discrimination based upon the terms of a collective bargaining agreement may seek contribution from a union that was a party to that labor agreement. We hold that Michigan law permits an employer to bring such a contribution action. i FACTS AND PROCEDURAL HISTORY Plaintiff Christina Donajkowski began working for defendant Alpena Power Company in 1985. In 1986, she became a meter reader, and the first female member of Local 286, Utility Workers of America, AFL-CIO. Plaintiff Beth McDonald joined Donajkowski as a meter reader and member of the union in 1989. Later that year, Alpena Power and the union negotiated a three-year collective bargaining agreement that created a new classification entitled “general labor/meter reader.” Donajkowski and McDonald were placed in this new classification. Pursuant to the agreement, the wage range for the new classification was between $7.50 and $10.50 an hour. Because the members of the new classification, which included two men, had been making more than $10.50 an hour before the agreement, the agreement froze their wages. The two men in the general labor/meter reader classification moved into other classifications before the agreement took effect, leaving only plaintiffs Donajkowski and McDonald in the general labor/meter reader classification. The agreement provided pay increases for the other union classifications. There were no women in these other classifications. Alpena Power hired plaintiff Deedra Duranceau into the general labor/meter reader classification in 1990. Duranceau started at $7.50 an hour and received regular increases until she reached the $10.50 maximum. When Alpena Power and the union could not agree on a new contract in 1992, Alpena Power instituted the terms of its last best offer and union members worked without a contract. Defendant’s last best offer maintained the basic structure of the 1989 collective bargaining agreement insofar as it maintained the maximum wage for the general labor/meter reader classification while providing increases for the other classifications. The effect of these terms was to freeze the wages of the three female union members — all of whom were in the general labor/meter reader classification — while granting increases for the remaining classifications, which were populated by male union members. However, nonunion female employees also received pay increases during this period. In 1993, plaintiffs and the union filed suit against Alpena Power alleging sex discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.] MSA 3.548(101) et seq., and the Equal Pay Act, 29 USC 206(d)(1). After the union was dismissed as a party-plaintiff pursuant to stipulation, defendant filed a third-party complaint seeking contribution from the union in the event defendant was found liable to plaintiffs. Defendant argued that the union should be jointly liable for any discrimination stemming from the collective bargaining agreement because that agreement was the result of negotiation between defendant and the union. The trial court allowed the third-party complaint, over the union’s protest. Eventually, the trial court also granted summary disposition for defendant on plaintiffs’ claims. Plaintiffs and the union then appealed. The Court of Appeals reversed the grant of summary disposition, but affirmed the decision allowing the third-party complaint against the union. Alpena Power and the union both sought leave to appeal. We denied Alpena Power’s application, but granted leave to the union. Thus, the merits of the underlying claims are not at issue here, and we only concern ourselves with the propriety of defendant’s third-party complaint against the union. n THE PARTIES’ ARGUMENTS The parties correctly assert that a claim for sex discrimination sounds in tort. See Stimson v Michigan Bell Telephone Co, 77 Mich App 361, 366, n 3; 258 NW2d 227 (1977). Our Legislature has declared that there is a right of contribution among joint tortfeasors: Except as otherwise provided in this act, when 2 or more persons become jointly or severally liable in tort for the same injury to a person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them. [MCL 600.2925a(l); MSA 27A.2925(1)(1).] The defendant employer contends that, to the extent it is liable to plaintiffs for sex discrimination, the union is liable as a joint tortfeasor under the statute. For its part, the union contends: (1) an intentional tortfeasor may not seek contribution, and (2) the Civil Rights Act should be construed as prohibiting any attempt by an employer to seek contribution from a union. As explained below, we are not persuaded by the union’s arguments, and we conclude, as did the trial court and the Court of Appeals, that the plain language of the contribution statute permits defendant to pursue a third-party claim against the union. m STANDARD OF REVIEW We review questions of statutory construction de novo. McAuley v General Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998). In construing a statute, our purpose is to ascertain and to give effect to the Legislature’s intent. Reardon v Mental Health Dep’t, 430 Mich 398, 407; 424 NW2d 248 (1988). If the language of a statute is clear and unambiguous, the plain meaning of the statute reflects the legislative intent and judicial construction is not permitted. Tryc v Michigan Veterans’ Facility, 451 Mich 129, 135; 545 NW2d 642 (1996). We must give the words of a statute their plain and ordinary meaning. Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995). IV ANALYSIS A. THE CONTRIBUTION STATUTE At common law, courts have often drawn distinctions between intentional and nonintentionai tortfeasors vis-a-vis their right to seek contribution. Indeed, Michigan common law prohibits an intentional tortfeasor from seeking contribution. However, our Legislature has not seen fit to maintain that common-law distinction in our statutory scheme. Thus, unlike a number of other states, our contribution statute does not include any limitation or prohibition concerning intentional tortfeasors. Whatever the policy arguments for or against such a rule, we conclude that the Legislature has unambiguously provided that contribution may be had between tortfeasors without regard to the intentional character of their acts, and we are not at liberty to ignore the plain language of the statute. The union relies upon a number of cases addressing the distinction between intentional and nonintentional tortfeasors. Most of those cases dealt with the common law. See Moyses v Spartan Asphalt Paving Co, 383 Mich 314; 174 NW2d 797 (1970), overruled in part on other grounds in Hapner v Rolf Brauchli, Inc, 404 Mich 160, 182, n 5; 273 NW2d 822 (1978); Caldwell v Fox, 394 Mich 401; 231 NW2d 46 (1975); Fidelity & Deposit Co of Maryland v Newman, 109 Mich App 620; 311 NW2d 821 (1981); Johnson v Bundy, 129 Mich App 393; 342 NW2d 567 (1983). In addition, the facts in Moyses, Caldwell, and Johnson involved negligence, breach of warranty, or products liability, rather than intentional torts. Thus, to the extent that any of these cases suggest that the contribution statute does not apply to intentional tortfeasors, they do so only in dicta. The only Michigan case that directly addresses the statutory contribution rule is Hunt v Chrysler, 68 Mich App 744, 747-750; 244 NW2d 16 (1976), where the Court concluded that an intentional tortfeasor may bring an action for contribution under the statute. The union does cite one federal case, In re Air Crash at Detroit Metropolitan Airport, 791 F Supp 1204, 1226 (ED Mich, 1992), wherein the federal district court stated that “Michigan courts have ruled that an intentional tortfeasor may not recover contribution under the [contribution statute].” However the court in In re Air Crash was mistaken; no Michigan court has so held. The court in In re Air Crash confused the Michigan common-law rule with that established in the Michigan contribution statute, and essentially relied on dicta from the cases it cited for this proposition. We conclude that, on the basis of its plain and unambiguous terms, the Michigan contribution statute, with specific exceptions, authorizes an intentional tortfeasor to seek contribution. B. THE CIVIL RIGHTS ACT The union also argues that the Civil Rights Act should be read to preclude an action for contribution brought by an employer against a union. The union does not point to any language in the act requiring or even hinting at such a result. Instead, the union relies on a case involving title vn, the federal counterpart to our Civil Rights Act. In Northwest Airlines v Transport Workers Union of America, 451 US 77, 90-95; 101 S Ct 1571; 67 L Ed 2d 750 (1981), the United States Supreme Court found that title vn did not provide an employer charged with a civil rights violation with a right to contribution from the union. The Court also concluded that, in the absence of congressional authorization, the Court was without authority to grant an employer such a right. Id. at 95-98. While we often examine federal law in construing our Civil Rights Act, Michigan law is not analogous to federal law on this point. Under federal law, there is no statutory right to contribution, whereas in Michigan there is. Under these circumstances, Northwest Airlines is wholly inapplicable. The union additionally argues that the Civil Rights Act “impliedly repealed” the contribution statute. We find no merit in this argument. We will only infer the repeal of a statute in narrow circumstances, and there is a strong presumption against such a finding. House Speaker v State Administrative Bd, 441 Mich 547, 563; 495 NW2d 539 (1993). A repeal may be inferred: (1) when it is clear that a subsequent legislative act conflicts with a prior act, or (2) when a subsequent act of the Legislature clearly is intended to occupy the entire field covered by a prior enactment. Id. Here, the union has failed to meet the heavy burden of establishing either of these criteria. Nothing in the Civil Rights Act directly conflicts with the contribution statute, nor is there any evidence that the Civil Rights Act was intended to address, much less completely occupy, the field of contribution. Under these circumstances, there is absolutely no basis for finding that the contribution statute has been impliedly repealed by the Civil Rights Act. C. PUBLIC POLICY Finally, the union argues that public policy precludes an employer from seeking contribution from a union. We are unaware of, and the union has failed to identify the source of, any free-standing public policy that would operate to protect a wrongdoer from paying for its own discriminatory actions. Indeed, the articulated legislative policy of this state is that discrimination in employment on the basis of sex is forbidden. MCL 37.2202; MSA 3.548(202). If, as defendant has alleged in its contribution action, the union was complicit with defendant in discriminating, then they are both wrongdoers and neither should be able to escape liability. v RESPONSE TO THE DISSENT We find it easier to consolidate our response to the dissent, rather than providing it piecemeal. The dissent has taken on the leviathan burden of justifying the position that plaintiffs’ union may escape liability for its alleged role in fostering employment discrimination in the workplace. Stripped to its essentials, the dissent would hold that a union may conspire to discriminate on the basis of sex, and, when called to account at the bar of justice for its role in that conspiracy by the others charged, escape liability. Thus, the dissent would grant this union a blanket immunity from contribution that is unavailable to any other person, corporation, or entity in our state. To make the matter plain, the legal question posed by this case is simple: Where a plaintiff has alleged that the terms of a collective bargaining agreement negotiated by her employer and her union discriminate against her on the basis of her gender, may the union escape liability for its asserted complicity in that act of discrimination? As set forth above, we hold that the union is accountable for its role in any alleged discrimination in the workplace and is subject to a contribution action as a joint tortfeasor. By contrast, the dissent concludes that a union alleged to be complicit in workplace sex discrimination is nonetheless immune from contribution. The dissent’s answer to this charge is that the plaintiffs are free to file a discrimination suit against then-union. The dissent fails to point out that this is true in all cases involving joint tortfeasors; a plaintiff is always free to file suit against any or all tortfeasors. Yet, our Legislature has seen fit to allow contribution among joint tortfeasors, even when the plaintiff chooses not to sue all of them. The dissent’s recognition that plaintiffs are free to sue their union also seems to contradict the dissent’s primary argument, that plaintiffs here (and, perhaps, plaintiffs in general) need the assistance of their union in order to maintain a discrimination suit. We find it odd that the dissent urges union litigation support as its primary policy rationale for avoiding contribution liability. While assisting union members with litigation may be a laudatory union object, surely it is secondary to the union’s core duty to negotiate and administer labor agreements. The irony here is that plaintiffs contend that their union negotiated pay provisions that were discriminatory. We are not prepared to overlook a union’s alleged discrimination in performing this core duty in order to further one of the union’s secondary functions, and we do not believe that the dissent’s rationale for granting this union a “free pass” can withstand scrutiny. A. THE DISSENT’S STATUTORY CONSTRUCTION ARGUMENT The linchpin of the dissent’s argument that a union charged with discrimination in the workplace may not be held accountable for such discrimination is its “construction” of the contribution statute. The dissent acknowledges that the contribution statute, according to its plain terms, allows contribution among “joint tortfeasors.” The dissent further recognizes that the statute does not distinguish between joint tortfeasors whose conduct injures by intentional design and those whose conduct injures by negligence. Notwithstanding the absence of any supporting language in the statute, the dissent finds a legislative intent to distinguish between the two kinds of joint tortfeasors. The dissent relies in part on one of our longstanding rules of statutory construction — that statutes enacted in derogation of the common law are narrowly construed. After properly stating the rule, however, the dissent immediately misapplies it. Relying upon Moyses, supra, the dissent asserts that the term “joint tortfeasor” was a term of art defined in our common law to refer only to negligent tortfeasors. Even if this were true, it is simply irrelevant: four years after Moyses was decided, our Legislature amended the contribution statute to remove any reference to the phrase “joint tortfeasors.” Moreover, to the extent the Court in Moyses addressed a right of contribution among intentional tortfeasors, it did so only in dicta; the issue before the Court there was whether several, but not joint, tortfeasors could seek contribution. There was simply no allegation that any of the defendants in Moyses were intentional tortfeasors. Yet the dissent appears prepared to treat Moyses as binding authority on this point. Despite evidence of a legislative intent to eliminate any distinction between negligent and intentional tortfeasors, the dissent attempts to revive the contrary dicta from Moyses by pointing out that our Legislature has not seen fit to overrule that dicta. Aside from the obvious fallacy in this argument (why would this or any other court expect the Legislature to react to dicta?), we note that the Legislature only amended the contribution statute to bring it into conformity with the Uniform Contribution Among Tortfeasors Act in 1974, four years after Moyses was de

COLE v GENERAL MOTORS CORPORATION Docket No. 206057. Submitted March 2, 1999, at Detroit. Decided June 29, 1999, at 9:00 am. Rex A. Cole brought an action in the Genesee Circuit Court against General Motors Corporation, alleging violation of the Civil Rights Act on the basis that the plaintiff, a Caucasian male, was excluded from a preapprentice training program that the defendant instituted as part of an affirmative action plan implemented pursuant to a conciliation agreement between the defendant, the federal Equal Employment Opportunity Commission (eeoc), and the United Automobile, Aerospace, and Agricultural Implement Workers of America. The plan was not submitted to or approved by the Michigan Civil Rights Commission. The court, Geoffrey L. Neithercut, J., granted summary disposition in favor of the defendant. The plaintiff appealed. The Court of Appeals held: 1. Summary disposition was properly granted on the basis that ■ subsection 813(b) of title VH bars any action or proceeding based on any alleged unlawful employment practice where the defendant proves that it acted in good faith and in reliance on an eeoc opinion. 42 USC 2000e—12(b). 2. The training at issue was offered in a good-faith attempt to comply with the conciliation agreement and in reliance on an eeoc opinion letter that qualified as an eeoc opinion under subsection 713(b). 3. Because the defendant would be insulated from liability under title VII under the circumstances of this case, the defendant is also insulated from liability under the Civil Rights Act. Affirmed. Gribbs, P.J., concurring, wrote separately to state that the Civil Rights Act clearly and unambiguously provides that a voluntary affirmative action program is invalid unless it has been approved by the Michigan Civil Rights Commission. Civil Rights — Master and Servant — Employment Practices — Equal Employment Opportunity Commission. Subsection 713(b) of title VII insulates an employer from liability for decisions made in reliance on an opinion of the federal Equal Employment Opportunity Commission where the employer acted in good faith with regard to an affirmative action plan created in reliance on an eeoc opinion; title VII bars any action or proceeding based on any alleged unlawful employment practice if the employer proves that it acted in good faith and in reliance on an eeoc opinion; the employer is also insulated from liability in an action under § 202 of the Michigan Civil Rights Act where the employer would be insulated from liability under title VII (42 USC 2000e—12[b]; MCL 37.2202; MSA 3.548[202]). Law Office of Glen N. Lenhojf (by Glen N. Len-hoff), for the plaintiff. Stuart R. Cohen, for the defendant. Before: Gribbs, P.J., and Griffin and Wilder, JJ. Griffin, J. Plaintiff Rex A. Cole appeals as of right an order of the circuit court granting summary disposition in favor of defendant General Motors Corporation pursuant to MCR 2.116(C)(10). We affirm. Plaintiff is a Caucasian male who brought this claim under § 202 of the Michigan Civil Rights Act, MCL 37.2202; MSA 3.548(202), because he was excluded from a preapprentice training program that defendant instituted for women and minorities as part of an affirmative action plan. The plan was implemented pursuant to a conciliation agreement between defendant, the federal Equal Employment Opportunity Commission (eeoc), and the United Automobile, Aerospace, and Agricultural Implement Workers of America, but was not submitted to or approved by the Michigan Civil Rights Commission. A trial court’s grant of summary disposition is reviewed de novo on appeal. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion for summary disposition is properly granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10). See Quinto v Cross & Peters Co, 451 Mich 358, 362-363; 547 NW2d 314 (1996). In this case, the parties do not dispute any material facts on appeal. The legality of the affirmative action plan is a question of law for the court to decide. See Betty v Brooks & Perkins, 198 Mich App 28, 29; 497 NW2d 512 (1993), aff’d 446 Mich 270; 521 NW2d 518 (1994). Defendant claims that it was entitled to judgment as a matter of law because title VII bars “any action or proceeding based on any alleged unlawful employment practice” if the defendant proves that it acted in good faith and in reliance on an EEOC opinion. Subsection 713(b), 42 USC 2000e—12(b) (emphasis added). We agree. Subsection 713(b) of title VII “insulates employers from liability for decisions made in reliance on an EEOC opinion” when the employer acted in good faith on an affirmative action plan created in reliance on an EEOC opinion. Plott v General Motors Corp, Packard Electric Division, 71 F3d 1190, 1194 (CA 6, 1995). In Plott, the Sixth Circuit Court of Appeals upheld a grant of summary judgment in favor of defendant General Motors in a reverse discrimination suit brought under title VII by a white male who was denied preapprenticeship training. Because a 1983 EEOC conciliation agreement with General Motors directed the defendant to “ ‘provide pre-apprentice training for minorities and women at selected facilities where openings are anticipated in the foreseeable future,’ ” General Motors created a preapprenticeship training program at its Packard Electric Division in 1987. Id. at 1192. In the year following adoption of the conciliation agreement, the EEOC sent defendant a letter stating that, in its opinion, “ ‘any action or omission of General Motors Corporation . . . taken in a good faith attempt to comply with the affirmative action or other provisions of the Conciliation Agreement . . . will not constitute a violation of any of the provisions of Title VIL’ ” Id. at 1194. The plaintiff had been on the initial list of qualified people for the program, but this list did not comport with the agreement because it contained too few women and minorities. The plaintiff was ultimately displaced from the list by women and minorities who exceeded his score after taking the preapprentice training class. Id. at 1192-1193. The Plott court held that the EEOC’s opinion letter “met all the requirements of 29 CFR § 1601.93 (1995) and therefore qualified as an EEOC opinion under § 713(b).” Id. at 1194. The court further held that the plaintiff’s claim was barred under subsection 713(b) of title VII because General Motors made its decision in a good-faith attempt to comply with the terms of the agreement and in reliance on the EEOC opinion letter’s assurance that actions taken under the agreement would not be held to violate title VII. Id. at 1194-1195. The court finally noted that the preappren-tice program met the requirements for affirmative action plans as determined by federal case law because it did not take away white males’ seniority rights, require their replacement, or prevent them from participating in the apprenticeship program. Id. at 1195. In the present case, both the preapprentice training program and the circumstances leading to defendant’s decision to offer it are virtually identical to those in Plott. The affirmative action plan at issue is a preapprentice training program at another plant created pursuant to the same conciliation agreement and same EEOC opinion letter as in Plott. While Michigan courts are not bound by federal title VII precedent in interpreting Michigan Civil Rights Act cases, such precedent is highly persuasive. Victorson v Dep’t of Treasury, 439 Mich 131, 142; 482 NW2d 685 (1992); DeFlaviis v Lord & Taylor, Inc, 223 Mich App 432, 437; 566 NW2d 661 (1997). Furthermore, defendant has presented uncontroverted, documentary evidence that the training at issue was offered in a good-faith attempt to comply with the conciliation agreement and in reliance on the EEOC opinion letter. Plaintiff does not allege that defendant acted in bad faith in the instant case. Therefore, we conclude that, because defendant would be insulated from liability under title VII under the circumstances of this case, Plott, supra, defendant is also insulated from liability under the Civil Rights Act. Cf. Loomis v General Motors Corporation, 70 Fair Empl Prac Cas (BNA) 691 (ED Mich, 1994). Accordingly, the trial court did not err in granting defendant’s motion for summary disposition. In view of our disposition, it is unnecessary for us to address the additional grounds for affirmance argued by defendant. Affirmed. Wilder, J., concurred. Grebbs, P.J., (concurring). I agree with the majority that, under the current state of Michigan jurisprudence, defendant’s insulation from liability under title VII also, in effect, insulates it under the Michigan Civil Rights Act. See Victorson v Dep’t of Treasury, 439 Mich 131; 482 NW2d 685 (1992). I write separately, however, to again state my view that the Civil Rights Act clearly and unambiguously provides that a voluntary affirmative action program is invalid unless it has been approved by the Michigan Civil Rights Commission. As I stated in Victorson v Dep’t of Treasury, 183 Mich App 318, 323; 454 NW2d 256 (1990), rev’d 439 Mich 131; 482 NW2d 685 (1992), “[t]he mere fact that a statute appears impolitic or unwise is not sufficient for judicial construction but is a matter for the Legislature.” I urge the Supreme Court to revisit this matter.

LOWN v JJ EATON PLACE Docket No. 205937. Submitted March 2, 1999, at Lansing. Decided June 4, 1999, at 9:05 am. Leave to appeal sought. Joyce Lown brought an action in the Eaton Circuit Court against JJ Eaton Place, her former employer, alleging that endometriosis and a restriction placed on her by her physician against lifting more than fifteen pounds after surgery constituted a disability under the Persons with Disabilities Civil Rights Act (pwdcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq., and that the defendant terminated her employment as a cook in violation of the pwdcra when she refused to perform dishwashing duties that would have involved lifting items weighing more than fifteen pounds. At the hearing on the defendant’s motion for summary disposition, the plaintiff orally requested to be allowed to amend her complaint to allege other disabilities. The court, Calvin E. Osterhaven, J., denied the motion to amend and granted summary disposition for the defendant, ruling that the plaintiff was not disabled within the meaning of the pwdcra. The plaintiff appealed. The Court of Appeals held: 1. The issue regarding the trial court’s denial of the plaintiff’s request to amend her complaint is not preserved for appeal in the absence of a written order or judgment by the trial court denying the request. In any event, because the plaintiff failed to comply with the requirement of MCR 2.118(A)(4) that the amendment be in writing, the trial court did not abuse its discretion in denying the plaintiffs request. 2. The trial court did not err in granting summary disposition for the defendant. A handicap, for purposes of the pwdcra, is a physical or mental impairment that substantially limits one or more major life activities and is unrelated to an individual’s ability to perform the duties of a particular job or position or to the individual’s qualifications for employment or promotion. In this case, the plaintiff failed to show that her lifting restriction substantially limited the major life activity of lifting or working. Affirmed. 1. Civil Rights — Persons with Disabilities — Employment Discrimination — Prima Facie Case. A plaintiff seeking to establish a prima facie case of employment discrimination under the Persons with Disabilities Civil Rights Act must demonstrate that the plaintiff is disabled as defined by the act, that the disability is unrelated to the plaintiff’s ability to perform the duties of a particular job, and that the plaintiff was discriminated against in one of the ways described in the statute (MCL 37.1101 et seg.; MSA 3.550(101] et seg.). 2. Civil Rights — Persons with Disabilities — Employment Discrimination — Disabilities — Major Life Activities. A disability, for purposes of the employment discrimination provisions of the Persons with Disabilities Civil Rights Act, is a determinable physical or mental characteristic that substantially limits one or more of the mqjor life activities of the individual having the disability and is unrelated to the individual’s ability to perform the duties of a particular job or position or to the individual’s qualifications for employment or promotion; whether an impairment substantially limits a major life activity is determined in light of the nature and severity of the impairment, its duration or expected duration, and its permanent or expected permanent or long-term effect (MCL 37.1103[d][i][A]; MSA 3.550(103][d][i][A]). 3. Civil Rights — Persons with Disabilities — Employment Discrimination — Disabilities — Lifting Restrictions. A medical restriction limiting the amount of weight an employee may lift constitutes a disability under the Persons with Disabilities Civil Rights Act when it imposes substantial limitations on the employee’s ability to perform the normal activities of daily living; a lifting restriction of twenty-five pounds is not a substantial limitation and does not constitute a disability under the act (MCL 37.1103[d][i][A]; MSA 3.550(103][d][i][A]). 4. Civil Rights — Persons with Disabilities — Employment Discrimination — Disabilities — Major Life Activities. Working, in the absence of any other major life activity that is substantially limited by an individual’s disability, may be considered a major life activity for purposes of the employment discrimination provisions of the Persons with Disabilities Civil Rights Act; a substantial limitation on the major life activity of working is shown upon a demonstration that the individual is significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities; an impairment that interferes with an individual’s ability to do a particular job, but does not significantly decrease the individual’s ability to obtain satisfactory employment elsewhere, does not substantially limit the major life activity of working (MCL 37.1103[d][i][A]; MSA 3.550[103][D][i][A]). Rapaport, Pollok, Farrell & Waldron, PC. (by Mark S. Farrell), for the plaintiff. Murphy, Brenton & Spagnuolo, PC. (by Michael S. Wellman), for the defendant. Before: Cavanagh, P.J., and Mackenzie and McDonald, JJ. Cavanagh, P.J. Plaintiff Joyce Lown appeals as of right the trial court order granting defendant’s motion for summary disposition pursuant to MCR 2.116(C)(10) in this action under the Persons with Disabilities Civil Rights Act (PWDCRA), MCL 37.1101 et seq.-, MSA 3.550(101) et seq. We affirm. Defendant JJ Eaton Place is a restaurant owned in part by Deanne Davis. In July 1994, Davis hired plaintiff as a prep cook. At that time, plaintiff told Davis that she had “physical problems” that caused her to suffer intermittent pain and cramps. In August 1994, plaintiff was diagnosed with endometriosis. That same month, plaintiff underwent surgery. When she returned to work, plaintiff submitted a note from Dr. Paul Kelly dated August 17, 1994, which stated that plaintiff could “do no heavy lifting or bending until after her 1 month post operative check up.” Plaintiff’s duties as a prep cook never caused her any difficulties. Plaintiff testified that she often received help lifting heavy objects, such as bags of onions or carrots. When no assistance was available, plaintiff would make multiple trips with smaller loads. However, periodically during her employment with defendant, plaintiff was required to work as a dishwasher. Plaintiff had no problems when she had help in the dish room, but when assigned to work by herself, she experienced pain while carrying large tubs of dirty dishes and stacks of clean dishes. Plaintiff nevertheless did the work because she was afraid that she would be fired if she refused. When plaintiff arrived at work the morning of March 27, 1995, she was told by another employee that she would be working alone in the dish room that day. Plaintiff called Davis at home to tell Davis that she could not work in the dish room by herself for eight hours because she had “been up all night hurting.” Davis told plaintiff that she had to work in the dish room because several other employees were out sick. After plaintiff refused to do so, Davis told her to go home. When plaintiff returned to work several days later, she discovered that she had been fired. On October 18, 1996, plaintiff filed her complaint in the instant case. Plaintiff alleged that she was disabled within the meaning of the PWDCRA because she “suffers from endometriosis, which causes her pain in the abdomen and which restricts her ability to lift.” Plaintiff further alleged that defendant discharged her because of her status as a disabled individual, even though her disability was unrelated to her ability to perform her job, and that defendant had not discharged other, nondisabled individuals for refusing to perform dishwashing duties. On June 24, 1997, defendant moved for summary disposition pursuant to MCR 2.116(C)(10) on the basis that plaintiff had not established that she had a disability as defined in the pwdcra. Defendant conceded that plaintiff had endometriosis, but asserted that plaintiff was not disabled within the meaning of the PWDCRA because her endometriosis did not substantially limit any major life activities. Following oral argument, the trial court held that plaintiff was not disabled under the pwdcra and therefore granted defendant’s motion for summary disposition. I Plaintiff first argues that the trial court erred in refusing to allow her to amend her complaint. Plaintiff presented notes prepared by a physician, dated May 7, 1994, stating that plaintiff “has a mild speech defect and abnormal facies, almost like Down’s but no clue [sic] that she has any intellectual limitations.” In a brief opposing defendant’s motion for summary disposition, plaintiff anticipated that she would be seeking leave to amend her complaint to allege discrimination based on plaintiff’s speech defect, abnormal facies, and possible intellectual limitations. At the hearing regarding defendant’s motion for summary disposition, plaintiff orally requested leave to amend her complaint, and the trial court denied the request in the same manner. Plaintiff asserts that the trial court abused its discretion in refusing to allow her to amend her complaint. However, we conclude that this issue is not properly before this Court because no written order or judgment was entered by the trial court on plaintiffs request to amend her complaint. A court speaks through its orders, and the jurisdiction of this Court is confined to judgments and orders. Law Offices of Lawrence J Stockler, PC v Rose, 174 Mich App 14, 54; 436 NW2d 70 (1989). In any case, pursuant to MCR 2.118(A)(4), amendments must be in writing. In the instant case, the request to amend was oral, and plaintiff never offered any written amendments. Accordingly, because plaintiff did not comply with the court rule, the trial court did not abuse its discretion in denying the request to amend. See Burse v Wayne Co Medical Examiner, 151 Mich App 761, 768; 391 NW2d 479 (1986). II Plaintiff next argues that the trial court erred in granting defendant’s motion for summary disposition. On appeal, an order granting or denying summary disposition is reviewed de novo. A motion for summary disposition may be granted pursuant to MCR 2.116(C)(10) when, except with regard to the amount of damages, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Giving the benefit of reasonable doubt to the nonmovant, the trial court must determine whether a record might be developed that would leave open an issue upon which reasonable minds might differ. Moore v First Security Casualty Co, 224 Mich App 370, 375; 568 NW2d 841 (1997). To establish a prima facie case of discrimination under the pwdcra, a plaintiff must demonstrate (1) that she is disabled as defined by the pwdcra, (2) that the disability is unrelated to her ability to perform the duties of a particular job, and (3) that she was discriminated against in one of the ways described in the statute. Rollert v Dep’t of Civil Service, 228 Mich App 534, 538; 579 NW2d 118 (1998). The pwdcra defines a “disability” as a determinable physical or mental characteristic of an individual, which may result from disease, injury, congenital condition of birth, or functional disorder, if the characteristic: (A) For purposes of article 2, substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s ability to perform the duties of a particular job or position or substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s qualifications for employment or promotion. [MCL 37.1103(d)(i); MSA 3.550(103)(d)(i) (emphasis added).] On appeal, plaintiff argues that the trial court erred in finding that she was not disabled under the pwdcra. Plaintiff asserts that she is substantially limited in the major life activity of lifting. In contrast, defendant argues that lifting does not constitute a “major life activity” under the PWDCRA. This Court has previously looked to the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 for guidance in construing the terms “substantially limits” and “major life activities” as used in the pwdcra. See Stevens v Inland Waters, Inc, 220 Mich App 212, 217; 559 NW2d 61 (1996). For the purpose of interpreting the pwdcra, the Stevens Court relied on federal administrative regulations to define “major life activities” as “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” See id. at 217. Whether an impairment substantially limits a major life activity is determined in light of (1) the nature and severity of the impairment, (2) its duration or expected duration, and (3) its permanent or expected permanent or long-term effect. Id. at 218. Defendant contends that “lifting” cannot be a major life activity under the PWDCRA because it was not specifically mentioned as such in Stevens. We disagree. In Stevens, this Court adopted a nonexclusive list of functions that would constitute major life activities under federal regulations. Thus, the fact that lifting is not explicitly included in the list of major life activities in Stevens is not dispositive. In Koester v Novi, 458 Mich 1; 580 NW2d 835 (1998), our Supreme Court examined lifting in the context of a pwdcra claim based on the plaintiffs pregnancy. The Court held that a “restriction limiting [the] plaintiff’s lifting abilities to twenty-five pounds is not a substantial impairment of a major life activity,” and therefore the plaintiff had not stated a claim under the PWDCRA. See id. at 9. However, the Court focused on whether the plaintiff had demonstrated a substantial impairment of a major life activity and did not address whether lifting itself constitutes a major life activity. Accordingly, we look to federal regulations and case law for guidance. The interpretative guidelines promulgated by the Equal Employment Opportunity Commission (EEOC) state: “Major life activities” are those basic activities that the average person in the general population can perform with little or no difficulty. Major life activities include caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. This list is not exhaustive. For example, other major life activities include, but are not limited to, sitting, standing, lifting, reaching. [29 CFR 1630.2(f), Appendix (emphasis added).] Federal courts, relying on these guidelines, have concluded that lifting constitutes a major life activity. See, e.g., Gutridge v Clure, 153 F3d 898, 901 (CA 8, 1998); Ray v Glidden Co, 85 F3d 227, 229 (CA 5, 1996); Dutcher v Ingalls Shipbuilding, 53 F3d 723, 726, n 7 (CA 5, 1995); Frix v Florida Tile Industries, Inc, 970 F Supp 1027, 1033 (ND Ga, 1997). Nevertheless, federal courts have held that where the major life activity is lifting, a general lifting restriction, without more, is insufficient to constitute a disability within the meaning of the ada. See, e.g., Gutridge, supra; Zarzycki v United Technologies Corp, 30 F Supp 2d 283, 289 (D Conn, 1998). The Fourth, Fifth, Eighth, and Ninth Circuit Courts of Appeals have held individuals who were limited to lifting less than twenty-five pounds were not, as a matter of law, disabled. See Thompson v Holy Family Hosp, 121 F3d 537, 539-540 (CA 9, 1997); Williams v Channel Master Satellite Systems, Inc, 101 F3d 346, 349 (CA 4, 1996); Aucutt v Six Flags Over Mid-America, Inc, 85 F3d 1311, 1319 (CA 8, 1996); Ray, supra. In those cases, the courts essentially concluded that such a limitation is not significant when compared to the limitations and abilities of the general population. Where the weight restriction is less than twenty-five pounds, several federal courts have indicated that evidence other than the mere existence of the restriction must be presented to create a genuine issue of material fact regarding whether the impairment imposes substantial limitations on major life activities other than work. See Helfter v United Parcel Service, Inc, 115 F3d 613, 617 (CA 8, 1997); Hilburn v Murata Electronics North America, Inc, 17 F Supp 2d 1377, 1382 (ND Ga, 1998) (“A mere assertion of diminished capacity does not constitute a disability under the ADA.”). We find an inherent inconsistency in the approach followed by those federal courts that have held that lifting is a major life activity under the ADA, but then concluded that a lifting restriction alone is insufficient to trigger the protections of that statute, given that the ADA defines a disability as an “impairment that substantially limits one or more of the major life activities of such individual.” See 42 USC 12102(2). The PWDCRA, like the ADA, requires that a disability “substantially limit]] 1 or more of the major life activities of [an] individual,” MCL 37.1103(d)(i); MSA 3.550(103)(d)(i). This Court has stated that whether an impairment substantially limits a major life activity is determined in part by the nature and severity of the impairment. Stevens, supra. “It is not enough that an impairment affect a major life activity; the plaintiff must proffer evidence from which a reasonable inference can be drawn that such activity is substantially or materially limiting.” Snow v Ridgeview Medical Center, 128 F3d 1201, 1207 (CA 8, 1997). Thus, a plaintiff seeking to recover under the statute has the burden of providing some evidence from which a factfinder could conclude that her disability caused substantial limitations when compared to the average person. See id. Nonwork major life activities are examined in light of whether the person can perform the normal activities of daily living. Pryor v Trane Co, 138 F3d 1024, 1027 (CA 5, 1998); Ray, supra at 229; Dutcher, supra at 726. Therefore, we hold that a lifting restriction constitutes a disability under the PWDcra when it imposes substantial limitations on an individual’s ability to perform the normal activities of daily living. Here, viewing the evidence in the light most favorable to plaintiff and granting her the benefit of all reasonable doubt, we conclude that plaintiff did not establish the existence of a genuine issue of material fact regarding the existence of a disability that would entitle her to the protection of the pwdcra. The medical proofs, at best, establish a temporary lifting restriction that commenced after plaintiff underwent surgery in August 1994. In sworn answers to interrogatories, plaintiff stated that she was restricted from lifting over ten to fifteen pounds from August 1994 through August 1996. At the time of plaintiff’s deposition on May 20, 1997, she was able to lift objects weighing up to twenty-five pounds. Federal courts have held that evidence of a twenty-five-pound lifting limitation does not suffice to establish a genuine issue of a material fact regarding the existence of a disability because it is not a substantial limitation when compared to the average person. See Thomp son, supra; Williams, supra; Aucutt, supra; Ray, supra. We adopt this holding, which is consistent with the result reached by our Supreme Court in Koester, supra. Accordingly, the fact that plaintiff is unable to lift more than twenty-five pounds does not establish that she is disabled within the meaning of the PWDCRA. Thus, the evidence establishes only that plaintiff had a temporary lifting restriction of no more than ten to fifteen pounds, which was in place for two years. As a general rule, “[intermittent, episodic impairments are not disabilities, the standard example being a broken leg.” Vande Zande v Wisconsin Dep’t of Administration, 44 F3d 538, 544 (CA 7, 1995), citing 29 CFR 1630.2Q), Appendix. Federal courts have not delineated the precise moment when a “temporary

NOVAK v NATIONWIDE MUTUAL INSURANCE COMPANY Docket No. 204162. Submitted February 2, 1999, at Detroit. Decided June 1, 1999, at 9:05 A.M. Leave to appeal sought. Terry Novak and Novak & Associates Insurance, Inc., brought an action in the Wayne Circuit Court against Nationwide Mutual Insurance Company and other Nationwide Insurance companies (hereinafter Nationwide) and Edward Malinowski, seeking damages for Nationwide’s allegedly illegal termination of Novak’s employment as an insurance sales agent. When plaintiff Novak took over plaintiff agency from his father, he signed an employment agreement with Nationwide that specified, among other things, that he would be enrolled in Nationwide’s agent development program upon successful completion of a training period, that he would begin to receive full commissions on his father’s former accounts if he successfully handled those accounts for two years, that he would not sell insurance for insurance carriers other than Nationwide unless directed to do so by Nationwide, and that the employment contract was terminable at will by either party. Less than two years later, Nationwide terminated Novak’s employment. Novak asserted that the termination of his employment was not subject to the employment-at-will provision of the employment agreement, that he was entitled to continued employment by reason of promissory estoppel or fraudulent and innocent misrepresentations, and that the termination of his employment was improper because it resulted in violations of the Insurance Code, the federal Fair Housing Act, and the Civil Rights Act. Nationwide moved for summary disposition, asserting that, notwithstanding the at-will provision of the employment agreement, Novak’s employment was terminated for cause. The court, Brian K. Zahra, J., granted summary disposition for Nationwide. Plaintiff Novak appealed. The Court of Appeals held: 1. Because the written employment contract contained both an express provision that Novak’s employment was at-will and an express provision that any modification of the contract must be in writing and signed by a representative of Nationwide, Novak’s allegation that he was told by one of Nationwide’s employees that the at-will provision would not apply to him, even if true, would not negate the express language of the written contract that he signed. Accordingly, the trial court properly granted summary disposition for Nationwide with respect to Novak’s common-law wrongful discharge claim. Further, because Novak failed to claim that Nationwide promised just-cause employment to its work force in general, the court properly dismissed Novak’s claim of a right to continued employment based on a legitimate expectation of just-cause employment. 2. Novak alleged that notwithstanding the employment contract’s at-will provision, Nationwide’s termination of his employment was precluded by the anti-redlining provision of § 209 of the Michigan Insurance Code, MCL 500.1209; MSA 24.11209. Subsection 3 of § 209, MCL 500.1209(3); MSA 24.11209(3), provides that a home or automobile insurer is prohibited from canceling an agent’s contract except for malfeasance, breach of fiduciary duty or trust, violation of the Insurance Code, failure to perform in accordance with the parties’ contract, or failure to submit at least twenty-five applications for insurance in the preceding twelve-month period. Subsection 4 of § 209, MCL 500.1209(4); MSA 24.11209(4), provides that subsection 3 is not to be construed as permitting termination of an agent’s authority where the termination is based primarily on the location of the agent’s insurance business or on the actual or expected loss experience of the agent’s business insofar as the loss experience is related to the geographical location of the agent’s business. Subsection 5, MCL 500.1209(5); MSA 24.11209(5), provides that subsection 3 does not apply with respect to an agent that is an employee of the insurer where the property rights in the renewal of insurance policies are owned by the insurer and the termination of the agent’s employment contract does not result in the cancellation or nonrenewal of any home or automobile insurance policy. 3. There is no factual dispute that Novak was an employee of Nationwide or that Nationwide owned the property rights in the renewal of the policies issued to Novak’s customers. Although Novak suggests that the termination of his employment resulted in the cancellation or nonrenewal of home or automobile insurance policies, pointing to a slightly higher rate of cancellation of automobile policies than was usual following the termination, Novak failed to show a single instance in which a home or automobile policy cancellation resulted from the termination of his employment rather than from some legitimate reason. Further, Nationwide’s alleged inefficient servicing of the policies of Novak’s customers after the termination, even if it resulted in those customers seeking insurance with other insurers, does not constitute constructive cancellation of those policies so as to constitute a policy cancellation within the meaning of the language of subsection 5. Accordingly, the trial court properly concluded that the termination of Novak’s employment was subject to subsection 5 and was thus not subject to the restrictions found in subsection 3. 4. Subsection 4 is clearly intended to clarify the nature of the rights and restrictions set forth in subsection 3 and was not meant to stand alone or to create any rights separate and apart from those protected by subsection 3. Accordingly, the exclusionary reference to subsection 3 that is found in subsection 5 is equally applicable to subsection 4, and the trial court properly dismissed Novak’s claim insofar as it was based on § 209 of the Insurance Code. 5. Novak’s claim that the alleged statement by an employee of Nationwide that the at-will provision of the employment contract would not apply to Novak created a right to continued employment under the theory of promissory estoppel is without merit. Because the contract specifically provided that Novak’s employment was to be at-will and that all oral promises were integrated into the written agreement, the circumstances precluded an objective finding of a clear and definite promise of just-cause employment, and the trial court properly dismissed the promissory estoppel claim. 6. Novak’s claim based on fraudulent and innocent misrepresentation is without merit. Novak claimed that he was induced into signing the written agreement by Nationwide’s informing him that he would immediately begin to receive commissions on renewals of policies serviced by his father, that everything in Nationwide’s power would be done to transfer his father’s agency to him, that his office expenses would be paid directly to the creditors, that the at-will provision in the written contract did not apply to him, and that he would be allowed to sell insurance for companies other than Nationwide. 7. A claim of fraudulent misrepresentation requires a showing that a plaintiff suffered damages as a result of acting on a representation that a defendant knew or should have known was false and that was made by the defendant with the intention that the plaintiff act on the representation. Novak failed to establish the elements of a claim of fraudulent misrepresentation. Because Novak acknowledged that the statement concerning commissions was made after the employment contract was signed, it could not have induced Novak to sign the contract. The employment manual that Novak referred to in coqjunction with the allegation concerning the transfer of the agency provides that Nationwide would “sincerely endeavor” to facilitate the transfer if other conditions were met, and there is no evidence that Nationwide failed to do that. There was no showing that the promise with respect to office expenses was false when made, but, rather, the record shows that Nationwide was unable to pay Novak’s office expenses directly because of unforeseen billing difficulties and the apportioning of office expenses between Novak and his non-Nationwide office mate. The allegations relative to the at-will provision and the selling of other insurance were directly contrary to provisions in the written contract, and, thus, Novak could not have reasonably relied on either statement. 8. Novak’s claim that his firing resulted in racial discrimination that was actionable under the federal Fair Housing Act, 42 USC 3604 et seg., was not timely brought. The period of limitation for such a claim is two years. Because the basis of his claim was the economic effect resulting from his firing, the period of limitation began to run on the date of his firing. Thus, the claim under the Fair Housing Act was time-barred three months before Novak brought his action. 9. To the extent that Nationwide may have acted to deny insurance to minorities in violation of § 302 of the Civil Bights Act, MCL 37.2302; MSA 3.548(302), which prohibits racial discrimination in the provision of goods and services, Novak lacked standing to raise that claim. Although Novak may have had an economic interest, § 302 protects the persons who are denied goods and services, not those who are providing those services. Because the Civil Rights Act does not confer standing on insurance agents to bring an action on behalf of persons who are denied insurance by reason of race, Novak lacked standing to bring a claim under § 302 of the Civil Rights Act. Further, because Novak did not show that Nationwide had coerced, intimidated, threatened, or interfered with him as a result of his having aided or encouraged a minority person to exercise any right under the Civil Rights Act, Novak failed to plead a viable action under subsection f of § 701 of the Civil Rights Act, MCL 37.2701(f); MSA 3.548(701)(f). Moreover, because newly licensed drivers are not a protected class under the Civil Rights Act, any attempt by Nationwide to obstruct or to prevent Novak from issuing automobile insurance to newly licensed drivers could not constitute the obstruction or prevention of a person from complying with the act in violation of subsection e of § 701 of the Civil Rights Act, MCL 37.2701(e); MSA 3.548(701)(e). Affirmed. 1. Insurance — Insurance Code — Redlining — Constructive Cancellation op Insurance. Inefficient servicing by an insurer of the policies of its customers, even if such servicing results in those customers seeking insurance with other insurers, does not constitute constructive cancellation of those policies so as to constitute cancellation of a policy within the meaning of the language of subsection 5 of the anti-redlining provisions of § 209 of the Insurance Code (MCL 500.1209[5]; MSA 24.11209[5]) 2. Insurance — Insurance Code — Redlining. Subsection 4 of the anti-redlining provision of § 209 of the Insurance Code is clearly intended to clarify the nature of the rights and restrictions set forth in subsection 3 of § 209 and is not meant to stand alone or to create any rights separate and apart from those protected by subsection 3; accordingly, the exclusionary reference to subsection 3 that is found in subsection 5 of § 209 is equally applicable to subsection 4 (MCL 500.1209[3], [4], [5]; MSA 24.11209[3], [4], [5]). 3. Fraud — Misrepresentation — Reasonable Reliance on Misrepresentation. An actionable claim of fraudulent misrepresentation requires a showing that a plaintiff reasonably relied on the alleged misrepresentation. 4. Civil Rights — Racial Discrimination — Goods and Services — Insurance Agents — Standing. An insurance agent lacks standing to bring an action under the Civil Rights Act for an alleged attempt by an insurance company to deny insurance to minority customers of the agent; the Civil Rights Act protects the rights of persons who are being denied goods and services, not the economic interests of persons who attempt to provide the goods and services (MCL 37.2302; MSA 3.548[302]). 5. Civil Rights — Civil Rights Act — Insurance Agents — Coercion — Actions. An insurance agent that has not aided or encouraged a minority customer to exercise any right protected by the Civil Rights Act in response to the denial of insurance by an insurer may not maintain an action against the insurer under the provision of the Civil Rights Act prohibiting coercion or intimidation of a person who aided or encouraged another in the exercise or enjoyment of a right protected by the Civil Rights Act (MCL 37.2701 [f]; MSA 3.548[701][f|). James W. Bigelow, for the plaintiff. Harvey Kruse, P.C. (by Thomas F. Kauza and William F Rivard), for the defendants. Before: Mackenzie, P.J., and Gribbs and Wilder, JJ. Mackenzie, P.J. Plaintiff Terry Novak (plaintiff), who alleged that the Nationwide defendants (defendants) illegally terminated his position as an insurance sales agent because they found his Detroit-area clients economically undesirable, appeals as of right from an order granting defendants’ motion for summary disposition of his nine-count complaint. We affirm. FACTUAL BACKGROUND In August 1991, in anticipation of assuming responsibility for his father’s insurance agency, Novak & Associates Insurance, Inc., plaintiff signed an employment agreement with defendants. Among other things, the agreement specified that (1) if plaintiff successfully completed a training period, defendants would enroll him in their New Agent Development Program or New Business Agent Program, (2) if plaintiff successfully handled his father’s former accounts for two years, he would then begin to receive full commissions on those accounts, (3) plaintiff was not to sell insurance for any insurance carriers other than defendants unless defendants specifically directed him to do so, and (4) plaintiff’s employment with defendants was terminable at will by either party. In March 1993, defendants terminated plaintiff’s employment. Plaintiff filed suit, claiming, among other things, that the at-will provision in the employment contract was inapplicable to him and that defendants improperly terminated his employment on the basis of his reluctance to move his agency out of Wayne County. Defendants argued that notwithstanding the at-will provision, they properly terminated plaintiffs employment because he (1) commingled personal and business funds, (2) often remitted premium payments to them in an untimely fashion, and (3) allowed unauthorized individuals to sign insurance certificates. STANDARDS OF REVIEW Except for his claim under the federal Fair Housing Act (FHA), 42 USC 3601 et seq., discussed infra, all of plaintiffs claims were dismissed under MCR 2.116(C)(10). We review de novo a trial court’s grant of summary disposition under MCR 2.116(C)(10). Paul v Lee, 455 Mich 204, 210; 568 NW2d 510 (1997). Like the trial court, we look at the entire record, view the evidence in favor of the nonmoving party, and decide if there exists a relevant factual issue about which reasonable minds might differ. Id. If, as in the instant case, the nonmoving party would bear the burden of proof at trial, that party, in order to avoid summary disposition, must provide documentary evidence showing the existence of a disputable issue. Quinto v Cross & Peters Co, 451 Mich 358, 362; 574 NW2d 314 (1996). The trial court dismissed plaintiff’s FHA claim under MCR 2.116(C)(7) because it concluded that the period of limitation for the claim had run. We review a grant of summary disposition under MCR 2.116(C)(7) de novo. Iovino v Michigan, 228 Mich App 125, 131; 577 NW2d 193 (1998). We consider all documentary evidence submitted by the parties and accept the plaintiff’s well-pleaded allegations, except those contradicted by documentary evidence, as true. Id.; Patterson v Kleiman, 447 Mich 429, 433-435; 526 NW2d 879 (1994). We view the uncontradicted allegations in favor of the plaintiff and determine whether the claim is time-barred. Id. WRONGFUL DISCHARGE AND BREACH OF LEGITIMATE EXPECTATIONS Plaintiff argues that the termination of his employment violated an implied just-cause employment agreement and that the trial court therefore should not have summarily disposed of his wrongful discharge and breach of legitimate expectations claims. He bases this argument on an alleged oral statement by one of defendants’ employees that the at-will termination provision in the written employment contract would not apply to him. This alleged oral statement, however, did not negate the at-will provision in the written contract, which also contained a provision requiring that modifications of the contract be in writing and be signed by a company representative. When an employment contract expressly provides for employment at will, a plaintiff, by signing the contract, assents to employment at will and cannot maintain a cause of action based on a prior oral agreement for just-cause employment. Nieves v Bell Industries, Inc, 204 Mich App 459, 463; 517 NW2d 235 (1994); see also Stopczynski v Ford Motor Co, 200 Mich App 190, 193; 503 NW2d 912 (1993). Thus, the trial court properly dismissed plaintiff’s wrongful discharge claim. The court also properly dismissed plaintiff’s breach of legitimate expectations claim, because a claim based on legitimate expectations rests on the employer’s promises to the work force in general — for example, promises contained in a company handbook — rather than on promises made to an individual employee, and because plaintiff made no claim that defendants promised just-cause employment to the work force in general. Nieves, supra at 464; see also Dolan v Continental Airlines/Continental Express, 454 Mich 373, 384, 386-387; 563 NW2d 23 (1997). INSURANCE CODE ANTI-REDLINING PROVISIONS Plaintiff argues that notwithstanding the employment contract’s at-will provision, defendants nevertheless improperly terminated his employment because the Insurance Code precludes the termination of an agent’s employment for certain specified reasons even if an employment contract otherwise allows for it. Specifically, plaintiff claims that there was a question of fact regarding whether defendants discharged him because of the loss history and geographic location of his Wayne County agency and thereby violated the anti-redlining provisions contained in § 209 of the Michigan Insurance Code, MCL 500.1209; MSA 24.11209, which states, in pertinent part, as follows: (3) As a condition of maintaining its authority to transact insurance in this state, an insurer transacting automobile insurance or home insurance in this state shall not cancel an agent’s contract. . . except for 1 or more of the following reasons: (a) Malfeasance. (b) Breach of fiduciary duty or trust. (c) A violation of this act. (d) Failure to perform as provided by the contract between the parties. (e) Submission of less than 25 applications for home insurance and automobile insurance within the immediately preceding 12-month period. (4) Subsection (3) shall not be construed as permitting a termination of an agent’s authority based primarily upon any of the following: (a) The geographic location of the agent’s home insurance or automobile insurance business. (b) The actual or expected loss experience of the agent’s automobile or home insurance business, related in whole or in part to the geographical location of that business. * * * (5) Subsection (3) . . . shall not apply with respect to an agent who is an employee of an insurer ... if the property rights in the renewal are owned by the insurer . . . and the cancellation or termination of the agent’s contract does not result in the cancellation or nonrenewal of any home or automobile insurance policy. [Emphasis added.] Plaintiff argues that he did not fall within the parameters of subsection 5 — and that he was therefore protected by subsections 3 and 4 — because his discharge resulted in the cancellation of home and automobile insurance policies. He additionally argues that even if subsection 5 had

Thomas Wooster vs. Abdow Corporation.. No. 97-P-702. Hampshire. April 17, 1998. April 28, 1999. Present: Armstrong, Lenk, & Beck, JJ. Handicapped Persons. Practice, Civil, Summary judgment. Anti-Discrimination Law, Burden of proof, Termination of employment, Handicap, Age. Employment, Discrimination, Termination. In an action alleging age and handicap discrimination in employment, the materials presented on summary judgment raised a genuine issue of material fact whether the defendant’s stated reasons for terminating the plaintiff were pretexts for handicap discrimination and, as to that claim, the matter was remanded for trial. [669-673] Civil action commenced in the Superior Court Department on February 22, 1994. The case was heard by John F. Murphy, Jr., J., on a motion for summary judgment. Maurice M. Cahillane for the plaintiff. Robert L. Leonard for the defendant. Beck, J. The issue in this age and handicap discrimination case is whether the plaintiff produced sufficient evidence of pretext “to clear the summary judgment hurdle.” Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995). The plaintiff, a manager in the defendant’s restaurant business, claims his discharge was in violation of State and Federal law, including G. L. c. 151B, § 4. A Superior Court judge allowed the defendant’s motion for summary judgment. The plaintiff appeals, arguing there was sufficient evidence of pretext to warrant sending the case to a jury. As to the claim of handicap discrimination, we agree. 1. Summary judgment issues. We address first certain questions concerning the defendant’s summary judgment materials, because their resolution affects the recitation of the facts. Among the documents submitted in support of its motion for summary judgment, the defendant included an affidavit of its president, Ronald Abdow, setting out the names of those who were familiar with the plaintiff’s work and attaching “a statement of Abdow to the Massachusetts Commission Against Discrimination (‘MCAD’) ... in response to [the plaintiff’s] claim of discrimination.” In the affidavit, Ronald Abdow claimed to have “personal knowledge of some of the facts” in the attachment. The attachment itself was a letter from Abdow’s lawyer on law firm letterhead, setting out Abdow’s defense to the plaintiff’s MCAD complaint. Under the lawyer’s signature was that of Ronald Abdow, on behalf of the corporation, stating that “[t]he above information is correct to the best of knowledge and belief [sz'c].” Attached to the letter were various other documents, which supported some, but not all, of the factual allegations included in the letter. In his opposition to the defendant’s motion for summary judgment in Superior Court, the plaintiff argued that the defendant’s “[employee] turnover rate statistics,” as set out in the letter, “are not competent or admissible as evidence.” He claimed the defendant destroyed the documents on which the statistics were based. On appeal, the plaintiff again complains of the destruction of the records used to calculate the turnover rates. He also challenges the defendant’s use of the lawyer’s letter, which was drafted after the plaintiff’s claim of discrimination, and argues generally that the defendant’s allegations as to the plaintiff’s performance are “unsupported by admissible documentary evidence.” While these complaints may well have substantive merit, they are not properly before us because the plaintiff did not move to strike the inadmissible portions of Abdow’s affidavit. See Madsen v. Erwin, 395 Mass. 715,721 (1985). See also Mass.R.Civ. P. 56(e), 365 Mass. 824 (1974); Wright, Miller, & Kane, Federal Practice and Procedure § 2738, at 372-375 (1998). Compare Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 123 n.l (1997) (Supreme Judicial Court disregarded several parts of summary judgment affidavit because they contained hearsay and the affidavit had been challenged by motion to strike). The Superior Court judge was therefore within his discretion in considering the defendant’s affidavit. Madsen v. Erwin, supra. Moreover, there is no evidence in the record that the plaintiff requested copies of the underlying employee turnover rate documents. He sent the defendant an interrogatory asking “whether such data or statistics are routinely kept by the company.” The company responded that “[t]he payroll records from which the information was compiled are maintained by the company but reports regarding the turnover rate were not usually kept by the company for an extended period of time.” An explicit request to produce the data would have established whether the records survived. 2. The facts. Neither party disputes that the other met its initial burden in the first two stages of the discrimination analysis. See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass, at 440-442, and cases cited. The defendant, Abdow Corporation (Abdow), is a family-owned chain of nineteen restaurants in central Massachusetts. There are four specialty or dinner restaurants; the remainder are family restaurants. The plaintiff, Thomas Wooster, began work for Abdow as a management trainee at one of the defendant’s family restaurants in 1981, when he was thirty-six. In 1983, he became shift manager at the P.J. Scott dinner house restaurant in Chicopee and was promoted to executive manager of that restaurant four months later. He remained in that position until he was discharged in May, 1992, at the age of forty-seven. His replacement was a younger man, apparently with no handicap. a. The plaintiff’s prima facie case: evidence regarding handicap and age. Because the defendant does not argue that the plaintiff has failed to establish a prima facie case of either age or handicap discrimination, for purposes of the appeal we assume the plaintiff has done so. See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. at 128. See also Dartt v. Browning-Ferris Indus., Inc. (Mass.), All Mass. 1, 3 (1998), setting out the standards for proof of a prima facie case. The plaintiff’s evidence, in the light most favorable to him, was as follows. During his employment with Abdow, the plaintiff suffered from chronic asthma, which required several medications, including steroids, to control. He explained the effect of the steroids on his mood to Ronald Abdow, and mentioned that the medications could cause future medical problems such as cataracts and diabetes. In fact, in January and March of 1992, he had two cataract operations. During the physical examination in preparation for the first eye surgery, he discovered he had diabetes, and he informed Paul Lichwan, Abdow’s vice-president for operations, of this new diagnosis. He also had a bad back for which he had regular chiropractic treatment. In December, 1991, Steven Abdow, Ronald’s son and the plaintiff’s supervisor, announced to Abdow’s restaurant managers that Abdow had decided to make employee health care a “controllable expense.” In announcing the change in policy, Steven Abdow admonished the managers to “make sure that we hire people . . . [who] are not going to be big insurance gobblers.” When the plaintiff asked whether Steven Abdow “[was] suggesting . . . that we fire the people that use the insurance . . . there was a very long pause.” Finally Steven Abdow said, “If you had a position for one individual, and you had two people for that position, if one of the people was going to be an insurance user or had reason for the insurance, and the other person didn’t, you would want to go with the person that didn’t.” The plaintiff was aware of the volume of his own insurance claims; he felt it was “like there was no end in sight.” Between December, 1991, and May, 1992, the plaintiff received calls from Abdow’s central office questioning medical expenses of other employees at the restaurant he managed. The plaintiff claimed that managers at the other dinner restaurants were considerably younger than he; that when there was a vacancy for the manager at the flagship dinner restaurant, the job did not go to him but to a younger man; and that only five of the forty-seven managers were over age forty, and of those, two were demoted, two left, and he was fired. He provided no comparable information for managers under age forty. b. The defendant’s legitimate nondiscriminatory reason. The plaintiff does not dispute that the defendant articulated a legitimate nondiscriminatory reason for his discharge — the plaintiff’s poor performance as a manager between December, 1991, and his termination in May, 1992. The defendant’s evidence of its reasons for discharging Wooster included the plaintiff’s deposition testimony acknowledging his receipt of a disciplinary report; Ronald Abdow’s deposition testimony claiming that the plaintiff’s job performance had deteriorated over time; and Steven Abdow’s deposition testimony containing certain details about the plaintiff’s performance, including violations of the defendant’s dress codes. The MCAD letter reported high staff turnover rates in 1991 and 1992 at the restaurant the plaintiff managed; verbal abuse of a female employee; increasing customer complaints; and attempts to counsel the plaintiff to improve his performance. The attachments to the MCAD letter included an unfavorable management performance review from Steven Abdow, dated February 25, 1992; the complaint of a part-time employee about her work schedule; and an employee counseling/suspension notice, also from Steven Abdow, dated December 9, 1991, based on a customer complaint, violations of grooming and uniform dress standards, and misrepresentation (which the plaintiff claimed stemmed from his account of the customer’s complaint). 3. Evidence of pretext and the appropriate standards. We now arrive at the third stage in the plaintiff’s order of proof of discrimination. See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. at 440-443, and cases cited; Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. at 127-128, and cases cited. In order to prevail at this final stage, the plaintiff “must persuade the fact finder by a fair preponderance of the evidence that the defendant’s asserted reasons were not the real reasons . . . [for the plaintiff’s discharge].” Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 443, quoting from Brunner v. Stone & Webster Engr. Corp., 413 Mass. 698, 700 (1992). In an appeal from summary judgment, “our task is to consider whether there is evidence which generates a genuine dispute of fact on the pretext point.” Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 448 (1996). In that task, “[o]ur reading of the summary judgment materials is in a light most favorable to the nonmoving party, here the plaintiff.” Ibid., citing Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 438. In addition to the prima facie evidence set out above, which “remains as evidence in the case,” Brownlie v. Kanzaki Specialty Papers, Inc., 44 Mass. App. Ct. 408, 413 (1998); see Liacos, Massachusetts Evidence § 5.8.5, at 236-237 (6th ed. 1994), to demonstrate pretext the plaintiff offered written evaluations he had received covering the same period as the documents the defendant introduced to show nondiscriminatory motive. The plaintiff’s documents included an unsigned November 16, 1991, report on his restaurant’s condition headed with the words “fantastic job”; a specialty restaurant inspection form dated January 14, 1992, signed by Steven Abdow, awarding 86 points out of 100 and commenting “very nice”; a second specialty restaurant inspection form dated March 10, 1992, which Steven Abdow also signed, awarding 95 points and commenting “excellent”; and a memorandum dated April 14, 1992, announcing that the plaintiff’s restaurant had come in second in the competition for the “Pacesetter’s Cup” for the month of March, 1992. The plaintiff also produced a letter of reference dated June 6, 1992, from Paul Lichwan stating that the plaintiff was “proficient in all functions of a restaurant’s operations,” as well as Lichwan’s deposition testimony that the plaintiff was a good manager and that he would hire him again if he had authority to do so. a. Handicap discrimination claim. The Superior Court judge found that the plaintiff “failed [to] produce sufficient evidence that the reasons articulated by Abdow for his termination were a pretext for handicap[ ] discrimination.” However, in his memorandum of decision, the Superior Court judge failed to mention any of the written evaluations submitted by the plaintiff. Moreover, although he considered the evidence regarding health care costs, the judge observed that “[the plaintiff] presented] no evidence that Abdow ever inquired into [the plaintiff’s] own use of the plan or commented on his medical expenses.” But it is just this kind of “smoking gun” evidence that is not required, because it is “rare.” Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass, at 445. “[T]he plaintiff’s ultimate burden of persuasion may be satisfied either by direct or circumstantial evidence of discrimination.” Id. at 445 n.8. “The ultimate issue of discrimination, raised by the plaintiff’s and defendant’s] conflicting evidence as to the defendant’s] motive, is not for a court to decide on the basis of affidavits [and other summary judgment materials], but is for the fact finder after weighing the circumstantial evidence and assessing the credibility of the witnesses.” Id. at 445. The facts of this case are consistent with those in Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 446-447, where the Supreme Judicial Court concluded that conflicting evidence of satisfactory performance, combined with remarks about Blare’s ability to do his work and evidence that younger workers were not similarly disciplined, was sufficient to raise a genuine issue of material fact as to discrimination. See Handrahan v. Red Roof Inns, Inc., 43 Mass. App. Ct. 13, 15-17 (1997) (evidence of disciplinary warnings for failure to comply with unwritten time limits for cleaning motel rooms following disclosure of the plaintiff’s epilepsy, considered against generally favorable performance evaluations which had noted plaintiffs failure to clean her assigned rooms in a timely manner in the past, although thin, sufficient to reach a jury). “The timing of the enforcement of the . . . rule . . . is . . . suspect,” id. at 17, and along with the defendant’s “practice and policies concerning employment of [people with health care expenses],” Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. at 447, quoting from Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 767 (1986), “could support an inference that the defendant’s real motive was discrimination.” Handrahan v. Red Roof Inns, Inc., 43 Mass. App. Ct. at 17. b. Age discrimination claim. The age discrimination count is a much closer question. The same factual dispute regarding the plaintiffs work performance applies to the plaintiffs claim of age discrimination. However, other than the undisputed fact that the plaintiff was over age forty at the time he was discharged, there is little evidence that the employer was concerned about the plaintiffs age. The question then is whether the “conflicting evidence” about the plaintiff’s work performance is sufficient evidence of pretext to withstand the motion for summary judgment. To support a claim of discrimination, the plaintiff must produce “evidence sufficient to support a jury verdict that it was more likely than not that the articulated reason was pretext for actual discrimination. ‘[Ajbsent direct proof of [age] discrimination, evidence which may be relevant to the plaintiffs showing of pretext may include application of a certain criterion to employees [not within the protected category]; the employer’s general practice and policies concerning employment of [those within the protected category]; and the employer’s treatment of the plaintiff during [his] employment,’ ” Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. at 447, quoting from Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. at 767. “The plaintiff bears the burden of persuasion on the ultimate issue of discrimination.” Blare, supra at 445. The case law is consistent with these requirements, notwithstanding the court’s statement in Blare v. Husky Injection Mold ing Sys. Boston, Inc., supra at 443, that “Massachusetts is a pretext only jurisdiction.” In Blare, in addition to the prima facie evidence, the evidence that “the three remarks made by Blare’s supervisor regarding the ability of Blare to work considering his age, and the evidence that other workers not in the protected category who committed similar errors were not terminated was sufficient to raise a genuine issue of material fact as to whether the defendants discriminated against the plaintiff on the basis of his age.” Id. at 447. See Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass, at 16 (evidence that employer’s deviation from normal management procedures in summarily terminating the plaintiff could support reasonable inference of discrimination based on perceived handicap); Finney v. Madico, Inc., 42 Mass. App. Ct. 46 (1997) (persistent remarks over three year period that women not qualified to be managers sufficient to withstand motion for summary judgment on claim of discriminatory discharge during reduction in force); Handrahan v. Red Roof Inns, Inc., 43 Mass. App. Ct. at 17 (jury could have disbelieved rule was an established policy when enforcement, followed notice of plaintiff’s epilepsy); Brownlie v. Kanzaki Specialty Papers, Inc., 44 Mass. App. Ct. at 413-414 (explicit statement “I want a younger man” and jury’s disbelief of nondiscriminatory reason satisfied “employee’s ultimate burden of persuasion on the issue of discrimination,” citing Blare, 419 Mass. at 445); Salem v. Massachusetts Commn. Against Discrimination, 44 Mass. App. Ct. 627, 643-645 (1998) (several instances of disparate treatment combined with pretextual reasons for hiring decisions, including development of more reasons as discrimination claim proceeded, adequate to support claim of discrimination). Here there are no remarks concerning age and no apparent connection between the evaluations and the plaintiff s age. The plaintiffs evidence of disparate treatment is anecdotal at best, and there is no evidence of deviation from normal management procedures connected to age in Abdow’s treatment of the plaintiff. See Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. at 449-450, in which there was a “dispute of fact about how serious Tardanico’s errors were,” but we held that the plaintiffs age, and “isolated or ambiguous remarks, tending to suggest animus based on age” (citation omitted), were insufficient to withstand the employer’s motion for summary judgment. See also Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. at 129-130 (to show discriminatory discharge, at least when employer’s reason for discharge is theft of company product, employee must show disparate treatment by identifying other similarly situated employees and demotistrating that their offenses are of similar seriousness). But see Powers v. H.B. Smith Co., 42 Mass. App. Ct. 657, 658, 662 (1997) (reduction in force age discrimination case where jury’s disbelief of defendant’s explanation for termination decision sufficient to establish pretext; case also rife with “procedural tangles and . . . several critical missteps”). To withstand a defendant’s motion for summary judgment, a plaintiff claiming discrimination must show something more than a conflict in the evidence regarding the employer’s legitimate, nondiscriminatory explanation for the employment decision and the plaintiff’s membership in a protected group. Compare Miner v. Connleaf, Inc., 989 F. Supp. 49, 53 (D. Mass. 1997) (“the concepts of pretext and discrim

WILCOXON v MINNESOTA MINING & MANUFACTURING COMPANY Docket No. 204431. Submitted April 7, 1999, at Detroit. Decided April 23, 1999, at 9:15 am. Leave to appeal sought. Dallias E. Wilcoxon brought an action in the Wayne Circuit Court against Minnesota Mining & Manufacturing Company (3M) and two 3M employees, alleging race and sex discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.\ MSA 3.548(101) et seq., and other claims. The court, Deborah A. Thomas, J., in response to the defendants’ first motion for summary disposition, found that the plaintiff had not demonstrated any of the criteria necessary to show that her transfer from one position to another had been an adverse employment action. The court determined that the only issue left pertained to the plaintiff’s separation from 3M. The court dismissed the claim that was based on the alleged wrongful transfer and dismissed one of the individual defendants from the action. In response to the defendants’ second motion for summary disposition, the court held that the plaintiff had failed to show that, with regard to her termination from employment, the plaintiff was treated differently from other employees similarly situated, the basis for such treatment was discriminatory, that 3M’s stated reason for the discharge from employment was a pretext, and that the reason for the discharge was based on a factor that violated the laws of the state. The court entered an order that dismissed the action in its entirety. The plaintiff appealed. The Court of Appeals held: 1. The claim regarding the transfer is a disparate treatment claim under MCL 37.2202(l)(a); MSA 3.548(202)(l)(a ). Regardless of the approach the plaintiff employed to establish her claim, she had to prove that she suffered an adverse employment action. 2. In order for an employment action to be adverse for purposes of a discrimination action, the action must be materially adverse in that it is more than mere inconvenience or an alteration of job responsibilities and there must be some objective basis for demonstrating that the action is adverse. The employee’s subjective impressions regarding the desirability of one position over another are not controlling. 3. The plaintiff failed to make any showing that her transfer was a materially adverse employment action, other than advancing her own subjective views. The court properly dismissed the claim with regard to the transfer. 4. There is no dispute that the plaintiff’s termination from employment qualifies as an adverse employment action. The plaintiff could have established that claim under a mixed motive theory or a pretextual theory. 5. The plaintiff, a black female, falls into two protected classes contemplated by the Civil Rights Act and, thus, meets the first element of the test applicable to actions under the mixed motive theory. She meets the second element because her termination from employment is an adverse employment action. The plaintiff therefore had to prove that the defendants were predisposed to discriminate against members of the protected class, the third element, and that the defendants actually acted on the predisposition in terminating the plaintiff’s employment, the last element. 6. The occurrences of which the plaintiff complains, if believed, would not require a conclusion that the defendants acted with discriminatory animus. The plaintiff’s claim cannot be proved under the mixed motive theory. 7. The plaintiff meets the first three elements of the test applicable to actions under the pretextual theory because she is a member of a protected class who suffered an adverse employment action and was qualified for the job. Therefore, the plaintiff had to show that she suffered the adverse employment action under circumstances that give rise to an inference of unlawful discrimination, the last element. 8. The court did not err in finding that the plaintiff failed to show that similarly situated male or white employees were not terminated from employment under like circumstances. Summary disposition was properly granted with regard to the pretextual theory of proof. The court properly granted summary disposition in favor of the defendants with regard to the rest of the plaintiff’s claims, which alleged intentional infliction of emotional distress. Affirmed. 1. Civil Rights — Master and Servant — Employment Discrimination — Disparate Treatment — Adverse Employment Actions. A necessarily included element of an action alleging disparate treatment of an employee by an employer in violation of subsection 202(l)(a) of the Civil Rights Act is a demonstration that the employee suffered an adverse employment action; for an employment action to be adverse for purposes of a discrimination action, the action must be materially adverse in that it is more than mere inconvenience or an alteration of job responsibilities and there must be some objective basis for demonstrating that the change is adverse; the employee’s subjective impressions regarding the desirability of one position over another are not controlling in determining whether a change of positions is adverse (MCL 37.2202[l][a]; MSA 3.548[202][l][aD. 2. Civil Rights — Master and Servant — Employment Discrimination — Disparate Treatment — Mixed Motive Evidentiary Method — Elements. The elements of an action under subsection 202(l)(a) of the Civil Rights Act alleging disparate treatment in employment and proceeding under the “mixed motive” evidentiary method are the plaintiff’s membership in a protected class, an adverse employment action, a showing that the defendant was predisposed to discriminating against members of the plaintiff’s protected class, and a showing that the defendant actually acted on that predisposition in visiting the adverse employment action on the plaintiff (MCL 37.2202[l][a]; MSA 3.548[202][l][a]). 3. Civil Rights — Master and Servant — Employment Discrimination — Disparate Treatment •— Pretextual Evidentiary Method — Elements. The elements of an action under subsection 202(l)(a) of the Civil Rights Act alleging disparate treatment in employment and proceeding under the “pretextual” evidentiary method are the plaintiff’s membership in a protected class, and showings that the plaintiff suffered an adverse employment action, the plaintiff was qualified for the position, and the plaintiff suffered the adverse employment action under circumstances that give rise to an inference of unlawful discrimination; circumstances give rise to an inference of discrimination when the plaintiff was treated differently than persons of a different class for the same or similar conduct; being qualified for a job, for purposes of establishing a prima facie case of discrimination, requires minimal qualification only; to create an inference of disparate treatment, the plaintiff must prove that all the relevant factors were nearly identical to those of a differently treated person (MCL 37.2202[l][a]; MSA 3.548[202][l][a]). Dallias E. Wilcoxon, in propria persona. Barris, Sott, Derm & Driker, P.L.L.C. (by Sharon Woods and Claudia D. Orr), for the defendants. Before: Hood, P.J., and Holbrook, Jr., and Whitbeck, JJ. Whitbeck, J. Plaintiff-appellant Dallias E. Wilcoxon contests the dismissal, by summary disposition, of her claims of unlawful race and sex discrimination in her former employment. The trial court dismissed portions of Wilcoxon’s complaint relating to a transfer on the basis of her failure to produce any objective evidence that the transfer was an adverse employment action. Just before trial, the trial court dismissed the remainder of Wilcoxon’s action, primarily on the basis of her inability to identify any similarly situated members of another class who were treated differently. Wilcoxon now appeals as of right. We affirm. I. BASIC FACTS AND PROCEDURAL HISTORY Wilcoxon, a black female with a master’s degree in Public Administration and a law degree, began working in the govemment/community affairs department of the outdoor advertising subsidiary of defendantappellee Minnesota Mining & Manufacturing Company (3M National) in 1989 as the first minority or female in that capacity. From 1990 through 1992, she received promotions, raises, and above-average performance evaluations. However, these evaluations noted a need for her to improve her working relationship with field management. As the govemment/community affairs manager in 3M National’s Detroit area offices, Wilcoxon monitored legislative and regulatory matters affecting outdoor advertising (i.e., billboards) in the northeastern portion of the United States and worked to improve or preserve her employer’s position in that regard. Additionally, Wilcoxon provided information regarding these matters as necessary to support field managers who procured and marketed the available billboard space. During Wilcoxon’s tenure with 3M National, she experienced difficulty dealing with defendant-appellee David Horton, who was the market manager and, later, district manager of the marketing department for the same territory, and at least one other market manager. Although Horton was not Wilcoxon’s superior and Wilcoxon concedes that people in general found Horton difficult to work with, Wilcoxon attributed her problems relating to field management to racism and sexism. By Horton’s account, however, Wilcoxon was difficult to talk to and her attitude was both condescending and offensive as perceived by him and staff members who complained to him. Defendant-appellee Edward Kenevan became Wilcoxon’s direct supervisor in May 1992. The following March, Kenevan gave Wilcoxon a below-average performance appraisal, ostensibly on the basis of her poor relationship with field management and an insufficient familiarity with the industry. In the section of the evaluation for comments by the next level of supervision, Kenevan’s own supervisor observed that Wilcoxon had always been professional in his presence and that perhaps she needed a new challenge in another department. According to Kenevan, he decided to transfer Wilcoxon to the newly created position of public service/community affairs manager, in order to take advantage of her strengths, while minimizing her role in her areas of weakness. In this new position, which Wilcoxon was charged with developing, Wilcoxon was to oversee 3M National’s public service and charitable activities nationwide. Wilcoxon resisted the transfer, which did not entail any loss of pay or benefits, but apparently was not afforded a choice in the matter. Her replacement, whom she helped train for a month or two, was a white male. Although Wilcoxon continued to work out of the Detroit area offices for seven months, her new supervisor, John Provost, made it clear that eventually Wilcoxon would have to relocate to Chicago. In January 1994, Wilcoxon went on sick leave and applied for short-term disability benefits, which she initially began receiving. Her physician described her symptoms as headache, stress/anxiety, and chest pain. Consistent with company policy, Wilcoxon’s application for short-term disability benefits was submitted to physicians retained by 3M’s benefits department for review. The reviewing physicians found nothing disabling about Wilcoxon’s condition and reported this to 3M’s benefits department personnel, who in turn advised Wilcoxon that continued benefits would be denied and that she should return to work by February 28, 1994. Wilcoxon appealed within the sixty days allotted for that purpose and forwarded additional documentation to the reviewing physicians who, again, found nothing disabling about Wilcoxon’s condition. Disability benefits were again denied. Thereafter, Provost informed Wilcoxon that if she did not return to work by April 18, 1994, she would be presumed to have resigned. Wilcoxon did not return to work by that date and was thereafter notified that she was no longer employed at 3M National. In June 1994, Wilcoxon filed a complaint alleging race and sex discrimination in violation of the Civil Rights Act (CRA), MCL 37.2101 et seq.; MSA 3.548(101) et seq. According to Wilcoxon, she was (1) provided less training than white males in similar employment positions, (2) provided less support staff than similarly situated white males, (3) undermined by defendants’ employees while attempting to accomplish necessary employment functions, (4) denied reimbursement for continuing education courses, while similarly situated white males enjoyed such a benefit, and (5) demoted and replaced by a white male. In February 1996, defendants filed their first motion for summary disposition. Defendants argued that Wilcoxon could not maintain race or sex discrimination claims because her transfer did not constitute an adverse employment action, since she suffered no loss in pay or benefits. Furthermore, defendants asserted a legitimate business reason for both Wilcoxon’s transfer and her termination from employment. Defendants maintain that Wilcoxon was unable to produce any evidence that she was treated any differently than white or male employees who refused to return to work following a disability leave. Defendants contended that, because Wilcoxon was unable to establish that 3M National’s reasons were a mere pretext for discrimination, Wilcoxon’s race and sex discrimination claims must fail. Finally, defendants claimed that Horton could not be individually liable for the alleged discrimination because Horton did not qualify as an agent of 3M National. In November 1996, the trial court issued its ruling from the bench. First, the trial court found that Wilcoxon had not demonstrated any of the criteria necessary to show that her transfer had been an adverse employment action. Second, the trial court declined to decide whether Wilcoxon had resigned or had been constructively discharged by intolerable discriminatory conditions inasmuch as “there are several questions of fact that must be resolved.” Third, the trial court found that the question whether there was a legitimate nondiscriminatory reason for plaintiffs transfer was an issue for the finder of fact. Fourth, the trial court addressed whether Horton, who was not Wilcoxon’s supervisor but who exercised control over her worksite, could be held personally liable for Wilcoxon’s claims. The trial court stated, “even viewing it in the light most favorable to the Plaintiff” there was not a “sufficient legal basis upon which to hold Mr. Horton personally liable.” According to the trial court, because Wilcoxon’s transfer was not an adverse employment action, the only issue left was with regard to Wilcoxon’s ultimate separation from 3M National. By a subsequent order, the trial court deemed the transfer not to be an adverse employment action and dismissed Wilcoxon’s claims based on that action; the trial court dismissed Horton from the action as well. In April 1997, defendants brought three motions in limine to (1) preclude, on the basis of the trial court’s prior ruling, Wilcoxon from characterizing her transfer as a demotion, (2) preclude Wilcoxon from mentioning discreet incidents of allegedly unfavorable treatment unless she laid a foundation by showing that at some point she was discriminated against by being treated differently than similarly situated white or male employees, and (3) preclude Wilcoxon from mentioning acts that preceded the filing of her complaint by more than three years. During a hearing regarding these motions, it was revealed that Wilcoxon had yet to identify another individual who had been treated differently when the individual failed to return to work from medical leave. In response, the trial court adjourned trial to a date that would allow sufficient time for defendants to bring another motion for summary disposition. In May 1997, defendants brought their second motion for summary disposition pursuant to MCR 2.116(C)(10). Defendants argued that it was incumbent on Wilcoxon to show that “but for” her race or sex, she would not have been discharged. Moreover, defendants argued that because defendants asserted a legitimate nondiscriminatory reason for the employment separation, Wilcoxon would also have to establish that this was a pretext. Defendants asserted that, because Wilcoxon had not come forward with any evidence of either disparate treatment or pretext concerning her termination from employment, summary disposition in favor of defendants was proper. Defendants supported this motion by, among other things, the affidavits of Barbara Warner, supervisor of 3M’s health care and disability program, and Provost. Warner averred that in performing her duties she made the ultimate decision to deny Wilcoxon benefits while unaware of Wilcoxon’s race, and race or sex was not used in the decision. Warner also averred that Wilcoxon’s employment status was not within the scope of her decision. Provost averred that, as Wilcoxon’s supervisor at the time, after learning that Wilcoxon was ineligible for disability leave, he notified her that she must return to work by April 18, 1994, or she would be considered as having resigned. When Wilcoxon did not so return, Provost stated that he terminated her employment. In response to defendant’s motion, Wilcoxon named a white female office supervisor, a white male sales representative, two other white males, and a white female as similarly situated employees who were not discharged when their illnesses caused their extended absences from work. Further, Wilcoxon argued that a race or sex discrimination case can be established either by showing disparate treatment or by showing intentional discrimination. Wilcoxon contended that she had established a case of intentional discrimination by showing that defendants were predisposed to discriminate against women or blacks and had acted on that disposition in terminating her employment. At a June 1997 hearing regarding this motion, defendants argued that they conducted a last-minute record search with regard to the supposedly similarly situated people identified in Wilcoxon’s brief. According to defendants, two individuals could not be found, there was no record of disability leaves for two more, and the other (who had been on extended leave after a complicated pregnancy) had, unlike Wilcoxon, voluntarily returned to work at the expiration of her leave. Moreover, defendants argued, the decisionmaker with regard to Wilcoxon’s disability leave did not know Wilcoxon’s race and Wilcoxon had conceded that the decisionmaker with regard to the termination of Wilcoxon’s employment had never discriminated against her. The trial court issued the following ruling: Discovery in this matter has been closed, witness lists have been filed and there’s no opportunity that these five individuals were made witnesses in this matter. The individual who made the decision with regard to the termination, would be the individual in the personnel office. Who would send out the communication, the questioned returned date that the decision-maker determines whether or not to terminate. For failure to return to work, which is the matter that remains before this Court. The burden lies upon the plaintiff to show that somehow she was treated differently than other employees similarly situated. And that the basis for such treatment was discriminatory. She does not have either the individuals who were treated differently than herself, nor has she been able to establish that the employer[’]s stated reason for the discharge was a pretext. And that there was any evidence to establish that the reason for discharge was based on a factor which violated the laws of [this] state, established to protect those individuals who have historically been treated unfairly because of race. The trial court entered an order the same day that dismissed Wilcoxon’s action in its entirety with prejudice. Wilcoxon timely appealed as of right. II. STANDARD OF REVIEW This Court reviews a trial court’s decision regar