Discrimination Cases

REMBERT v RYAN’S FAMILY STEAK HOUSES, INC Docket No. 196542. Submitted June 1, 1998, at Lansing. Decided April 9, 1999, at 9:15 A.M. Leave to appeal sought. John Rembert brought an action in the Genesee Circuit Court against Ryan’s Family Steak Houses, Inc., his employer, and another, seeking damages for race discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and handicap discrimination under what is now known as the Persons With Disabilities Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq. The plaintiff thereafter resigned from his employment and amended his complaint to include claims of constructive discharge and intentional infliction of emotional distress. The court, Geoffrey L. Neithercut, X, after finding that the plaintiff had failed to establish that he was incompetent to understand the arbitration agreement that he had signed at the time of his employment, granted summary disposition for the defendants on the basis that the claims raised by the plaintiff were subject to, and thus barred by, the arbitration agreement. The plaintiff appealed. The Court of Appeals, Corrigan, C.J., and Griffin and Hoekstra, JX, in an opinion released December 2, 1997, affirmed the trial court’s order with respect to the claims of constructive discharge and intentional infliction of emotional distress, but reversed the trial court’s order with respect to the two statute-based discrimination claims on the basis of the holding of the majority in Rushton v Meijer, Inc (On Remand), 225 Mich App 156 (1997), which was binding precedent pursuant to MCR 7.215(H). The panel further indicated that in the absence of the requirement that it follow the holding of the majority in Rush-ton, it would have affirmed the order of the trial court for the reasons set forth in Judge (now Justice) Taylor’s opinion in Rushton. 226 Mich App 822 (1997). By its order of December 16, 1997, the Court of Appeals vacated the December 2 opinion and convened a special panel pursuant to MCR 7.215(H) to resolve the conflict between the position taken by the panel in this case and the position taken by the majority in Rushton. 226 Mich App 821 (1997). After consideration by the conflict resolution panel, the Court of Appeals held-. 1. The Michigan Legislature, by enacting the Michigan arbitration act, MCL 600.5001 et seq.; MSA 27A.5001 et seq., has expressed a strong public policy favoring private voluntary arbitration, and Michigan courts have historically enforced agreements to arbitrate disputes. Michigan law has upheld predispute agreements to arbitrate statutory claims where the agreements have not diminished the effect of the statute. 2. Because of this state’s strong public policy favoring arbitration, predispute agreements to arbitrate statutory employment discrimination claims are valid if there is a valid binding contract to arbitrate the statutory claims, the statute itself does not prohibit an agreement to arbitrate claims under the statute, the arbitration agreement does not waive the substantive rights and remedies set forth in the statute, and the arbitration procedures are fair so that an employee may effectively assert the statutory rights. 3. If an agreement to arbitrate a statutory employment discrimination claim does not waive any statutory rights and provides a procedurally fair method of resolving such claims, it is reasonable as a matter of law and is not an unenforceable contract of adhesion. Accordingly, on remand the trial court must make findings of fact concerning whether the agreement in this matter waives any statutory rights and provides a procedurally fair method of resolving the statutory claims. 4. Neither the Civil Rights Act nor the Persons With Disabilities Civil Rights Act contains a provision that precludes an employer and employee from entering into a predispute agreement to arbitrate employment discrimination claims that may arise under those acts. Further, because the Michigan arbitration act gives broad approval to arbitration agreements and expressly excludes collective labor contracts and certain real estate disputes from its provisions while containing no similar exclusion with respect to statutory employment discrimination claims, the act implicitly includes agreements to arbitrate employment discrimination claims within the scope of its provisions. 5. In order to ensure that an employee has a fair opportunity to vindicate effectively any statutorily protected rights, a predispute agreement to arbitrate employment discrimination claims must give clear notice to the employee that the right to adjudicate discrimination claims in a judicial forum is being waived and that such claims will be arbitrated, must inform the employee of the right to representation by counsel, must provide that the arbitration proceedings will be before a neutral arbitrator, must provide for reasonable discovery, and must provide for a fair arbitral hearing. Fairness does not require that the employer must pay the fees of an arbitrator or an arbitration service. 6. Judicial review of an arbitral award is pursuant to the provisions of MCR 3.602(J)(1), which provides for the vacation of an award where, among other things, the arbitrator has exceeded the powers granted to the arbitrator. The powers granted to the arbitrator are exceeded where the arbitrator makes an error of law that is so material or so substantial as to have governed the award and but for which the award would have been substantially otherwise. To allow for sufficient review, arbitral awards must be in writing and contain findings of fact and conclusions of law. Remanded. Cavanagh, J., dissenting, stated that the decision of the trial court that direct judicial construction of the statutory claims was precluded by the predispute arbitration agreement should be reversed because Michigan’s longstanding public policy entitling persons seeking to protect their civil rights to direct review of their claims by the courts cannot be abrogated by contract. 1. Arbitration — Employment Discrimination — Employment Contracts — Agreement to Arbitrate. Predispute agreements to arbitrate statutory employment discrimination claims are valid if there is a valid binding contract to arbitrate the statutory claims, the statute itself does not prohibit an agreement to arbitrate claims under the statute, the arbitration agreement does not waive the substantive rights and remedies set forth in the statute, and the arbitration procedures are fair so that an employee may effectively assert the statutory rights. 2. Arbitration — Civil Rights Act — Persons With Disabilities Civil Rights Act — Employment Contracts — Agreement to Arbitrate — Public Policy. An agreement in an employment contract requiring any subsequent dispute involving a claim under the Civil Rights Act or the Persons With Disabilities Civil Rights Act to be submitted to binding arbitration is not contrary to any express provision of either act and is not contrary to the public policy of the state of Michigan (MCL 37.1101 et seq., 37.2101 et seq.; MSA 3.550[101] et seq., 3.548[101] et seq.). 3. Arbitration — Employment Discrimination — Employment Contracts — Agreement to Arbitrate — Contracts of Adhesion. An agreement to arbitrate a statutory employment discrimination claim that does not waive any statutory rights and provides a procedurally fair method of resolving such a claim is reasonable as a matter of law and is not an unenforceable contract of adhesion. 4. Arbitration — Employment Contracts — Employment Discrimination — Agreement to Arbitrate. An agreement in an employment contract to arbitrate any subsequent employment discrimination claims that may arise must give clear notice to the employee that the right to adjudicate discrimination claims in a judicial forum is being waived and that such claims will be arbitrated, must inform the employee of the right to representation by counsel, must provide that the arbitration proceedings will be before a neutral arbitrator, must provide for reasonable discovery, and must provide for a fair arbitral hearing; fairness does not require that the employer must pay the fees of an arbitrator or an arbitration service. Stark and Gordon (by Sheldon J. Stark and Carol A. Laughbawn) and (Kenneth Ivan Brown, of Counsel), for the plaintiff. Bodman, Longley & Dahling LLP (by Diane L. Akers, and Paul R. Bernard), for the defendants. Amici Curiae: Jeffrey S. Reuble and Miller, Canfield, Paddock and Stone, PL.C. (by Charles S. Mishkind), for Meijer, Inc. Jackson, Lewis, Schnitzler & Krupman (by Stephen X. Munger and by J. Steve Warren and Stephen F. Fisher), for Employment Dispute Services, Inc. Clark Hill PL.C. (by Duane L. Tamacki and J. Walker Henry), for Michigan Manufacturers Association. Dykema Gosssett PLLC (by Laurence D. Connor and Rosemary G. Schikora) and Richard L. Hurford, for Masco Corporation, Masco Tech, and TriMas. Patrick L. Rose, Thomas Donnellan, Sheldon J. Stark, and Michael J. Steinberg, for American Civil Liberties Union Fund of Michigan. Amberg, McNenly, Zuschlag, Firestone and Lee, PC. (by Joseph H. Firestone), for Michigan Education Association. Sachs, Waldman, O’Hare, Helveston, Bogas & McIntosh, PC. (by John R. Runyan, Jr., Mary Katherine Norton, and Elizabeth A. Cabot), for Michigan State AFL-CIO, International Union UAW, and Wolverine Bar Association. Kelman, Loria, Simpson, Will, Harvey & Thompson (by Janet M. Tooley), for Michigan Trial Lawyers Association. Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Robert L. Willis, Jr., Assistant Attorney General, for Michigan Department of Civil Rights. Before: Gage, P.J., and Kelly, Hood, McDonald, Cavanagh, Saad, and O’Connell, JJ. Saad, J. I. NATURE OF THE CASE This conflicts panel was convened to decide if a predispute agreement to arbitrate statutory employment discrimination claims arising under the Michigan Civil Rights Act (cra) and the Persons With Disabilities Civil Rights Act (pwdcra) is valid and enforceable. In Rushton v Meijer, Inc (On Remand), 225 Mich App 156; 570 NW2d 271 (1997), this Court held that this kind of predispute agreement is invalid as a matter of public policy. Contrary to Rushton’s holding, the overwhelming majority of federal and other state courts have held that these agreements are enforceable, provided that the arbitration procedures are fair and the agreement waives no substantive rights and remedies. We join the majority of courts and hold that as long as no rights or remedies accorded by the statute are waived, and as long as the procedure is fair, employers may contract with their employees to arbitrate statutory civil rights claims. Our holding breaks no new ground, but rather is consistent with our state’s public policy, and federal public policy, both of which increasingly and overwhelmingly favor arbitration as an inexpensive and expeditious alternative to litigation. Specifically, our holding furthers the objectives of the Michigan arbitration act (maa), which is a strong and unequivocal legislative expression of Michigan’s proarbitration public policy. In accordance with the maa’s endorsement of arbitration, and the cra’s and the pwdcra’s silence regarding the matter, we will not interfere with private parties’ contractual undertakings to arbitrate these claims. Our opinion is also consistent with the traditional principles of freedom of contract in the employment context. Clearly, employers are free to condition employment on employer-drafted wage and benefit structures and work rules as long as they comply with applicable statutory and common-law mandates. Similarly, we hold that employers are also free to require arbitration of claims as a condition of employment, provided that the agreement complies with our holding here. While our decision upholds the principle of freedom of contract and advances the public policy that strongly favors arbitration, it does so subject to two conditions generally accepted in the common law: that the agreement waives no substantive rights, and that the agreement affords fair procedures. These conditions are rooted in two critically important bases: (1) our Supreme Court’s decision in Renny v Port Huron Hosp, 427 Mich 415; 398 NW2d 327 (1986), which held that agreements to arbitrate employment claims must have fair procedures, and (2) Michigan and federal decisions (which generally have been held to be persuasive authority in Michigan employment discrimination cases) that uniformly hold that these arbitration agreements may not waive any substantive rights or remedies provided by the statute and must provide for fair procedures. With regard to procedural fairness, we will also detail below the specific procedural safeguards that we believe are mandated by Penny's requirement of fair procedures. Additionally, as we discuss below, contracts providing for compulsory arbitration of discrimination claims must, of course, meet the general rules regarding the validity of contracts. Although other contractual issues raised in this case are beyond the scope of this conflicts panel, we do hold, as a matter of law, that an arbitration agreement that does not diminish the rights and remedies guaranteed by the relevant employment discrimination statute and that is fair procedurally is not an unenforceable contract of adhesion. After discussing the facts, we will analyze the issues in the following sequence. We begin by discussing the prevailing public policy favoring arbitration that is evidenced in both Michigan and federal law. We then address how this proarbitration policy developed to include claims arising under public interest statutes and trace that development to judicial approval of predispute agreements to arbitrate statutory civil rights claims. Thereafter, we examine the necessary conditions for enforcement of these agreements: (1) a valid arbitration contract, (2) the absence of statutory prohibition against arbitrating particular statutory claims, and (3) the requirements of procedural fairness. Finally, we set forth the specific requirements for procedural fairness and define the standard of review. II. FACTS AND PROCEEDINGS Defendant Ryan’s Family Steak Houses, Inc., hired plaintiff as a bread maker in October 1993. At the time he was hired, plaintiff signed an arbitration agreement with Employment Dispute Services, Inc. (eds). The arbitration agreement provided, in pertinent part: Your potential Employer (“signatory company” or “Company”) has entered into an agreement with Employment Dispute Services, Inc. (eds) to arbitrate and resolve any and all employment-related disputes between the Company’s employees (and job applicants) and the Company. The following Agreement between You and eds is a “selection of forum” agreement by which you agree that employment-related disputes between You and the Company shall be resolved through arbitration. Any arbitration matter shall be heard and decided under the provisions and the authority of the Federal Arbitration Act, 9 USC sec. 1, as applicable. The purpose of this agreement is to provide You and the Company a forum in which claims or disputes with the Company and any other signatories may be resolved by arbitration rather than litigation. This Agreement does not restrict you from filing a claim or charge with any state or federal agency, for example, Equal Employment Opportunity Commission, state unemployment agency, state workers’ compensation commission, where applicable. Rather, the Agreement applies only to State or Federal court proceedings. While an employee with Ryan’s Family Steak Houses, Inc., plaintiff sued defendants in the circuit court for race discrimination under the CRA and handicap discrimination under the pwdcra (then known as the Michigan Handicappers’ Civil Rights Act). Plaintiff alleged that he suffers from epilepsy and cognitive defects resulting from a head injury. Plaintiff made a variety of allegations relating to discrimination in the terms of his employment. Plaintiff subsequently resigned his employment and amended his complaint to include a charge of constructive discharge. Plaintiff also raised a common-law claim of intentional infliction of emotional distress. Defendants moved for summary disposition pursuant to MCR 2.116(C)(7) (agreement to arbitrate) based on the signed arbitration agreement. After ruling that plaintiff had failed to establish that he was incompetent to understand the agreement he had signed, the trial court granted defendants’ motion. Plaintiff appealed. Meanwhile, a majority of a panel of this Court decided in Rushton, supra, that agreements to arbitrate employment-related discrimination claims were unenforceable as a matter of public policy. A panel of this Court therefore reversed the trial court’s order in this case because it was obligated to follow Rushton under MCR 7.215(H)(1). Rembert v Ryan’s Family Steakhouse, Inc, 226 Mich App 821; 575 NW2d 287 (1997) (Rembert I). The Rembert I panel opined that it reversed the trial court’s order only because it was obligated to follow Rushton and that it would have held otherwise if free to do so. The Court thereby invoked the conflicts panel provision under MCR 7.215(H). Pursuant to MCR 7.215(H), Rembert I was vacated, 226 Mich App 821-822, and this special conflicts panel was convened to resolve the conflict. III. ANALYSIS A. MICHIGAN AND FEDERAL LAW ENDORSE ARBITRATION 1. MICHIGAN COMMON LAW AND STATUTORY LAW STRONGLY FAVOR ARBITRATION Our Legislature has expressed a strong public policy favoring private voluntary arbitration, and our courts have historically enforced agreements to arbitrate disputes. As early as the nineteenth century, our Supreme Court held: “A parol submission to arbitration is good at common law, and is not forbidden by any statute. ... If [the parties submitted their agreement to a common arbiter], it would be a valid award.” Cady v Walker, 62 Mich 157, 159; 28 NW 805 (1886). See also Hoste v Dalton, 137 Mich 522, 526; 100 NW 750 (1904) (rejecting various arguments against enforcement of arbitration), and Detroit v A W Kutsche & Co, 309 Mich 700, 703; 16 NW2d 128 (1944) (“The general policy of this State is favorable to arbitration. ... If parties desire arbitration, courts should encourage them.”). Judicial approval of arbitration has broadened and strengthened in recent decades. This Court stated in EE Tripp Excavating Contractor, Inc v Jackson Co, 60 Mich App 221, 246-247; 230 NW2d 556 (1975): The heavily case-loaded courts are no longer jealous of their jurisdiction. Where the parties, by a fair agreement, have adopted a speedy and inexpensive means by which to have their disagreements adjusted, we see no public policy reasons for the courts to stand in their way. On the contrary we have a clear expression of public policy in the legislative enactments which provide for statutory arbitration. [Emphasis supplied.] Judicial approbation of arbitration has grown and now applies to many fields. For example, in the important area of medical malpractice, our Court, in Cox v D'Addario, 225 Mich App 113, 129-130; 570 NW2d 284 (1997), upheld an arbitration agreement as valid under Michigan’s medical malpractice act because “the public policy of this state favors the enforcement of valid arbitration agreements.” Further, in Moss v Dep’t of Mental Health, 159 Mich App 257, 264; 406 NW2d 203 (1987), involving statutory and contract rights of mental health provider employees, our Court held that arbitration was not an “unconstitutional intrusion upon the powers of the judiciary,” but rather is a “well-established mechanism for dispute resolution which is highly favored by the courts.” In FJ Siller & Co v City of Hart, 400 Mich 578, 581-582; 255 NW2d 347 (1977), our Supreme Court declined to interpret an agreement to arbitrate a construction contract dispute as meaning that arbitration was merely a “condition precedent”

Ling Zhang & another vs. Massachusetts Institute of Technology. No. 96-P-1588. Middlesex. May 12, 1998. - April 5, 1999. Present: Armstrong, Perretta, & Spina, JJ. Practice, Civil, Summary judgment. Anti-Discrimination Law, Burden of proof, Prima facie case, Termination of employment, Sex, Race. Employment, Discrimination, Termination. Contract, Misrepresentation. Husband and Wife, Consortium. In a claim alleging employment discrimination based on disparate treatment on account of gender, the plaintiff presented sufficient evidence on the defendant’s motion for summary judgment to show a prima facie case of discrimination because of her pregnancy and the existence of disputed questions of fact as to whether her employer’s proffered reasons advanced to support its termination of the plaintiff were pretexts. [601-604] In a claim alleging discrimination in employment based on race, the plaintiff’s proffer on the defendant’s motion for summary judgment was insufficient to show a prima facie case of race discrimination, and the judge correctly ordered summary judgment in favor of the defendant. [604-605] A Superior Court judge correctly granted summary judgment in favor of the defendant on a claim for misrepresentation [605-606], and a claim for loss of consortium [606-607], where the plaintiffs had no reasonable expectation of proving an essential element of those claims. Civil action commenced in the Superior Court Department on May 22, 1995. The case was heard by Hiller B. Zobel, J., on a motion for summary judgment. Celina Gerbic for the plaintiffs. Elizabeth P. Seaman for the defendant. James Cen. Perretta, J. This appeal is from a grant of summary judgment in favor of the defendant, Massachusetts Institute of Technology (MIT), on a complaint brought by the plaintiff, Ling Zhang, alleging employment discrimination (gender and race) and misrepresentation; and by her spouse, James Cen, claiming a loss of consortium. Based upon the materials submitted pursuant to Mass.R.Civ.P. 56, 365 Mass. 824 (1974), a Superior Court judge ruled that Zhang’s allegations of discrimination were based on no more than speculation that the termination of her employment was the result of her pregnancy and that the term “tar baby” had been made in reference to her situation and not her race. He granted MIT summary judgment on her claim that MIT had misrepresented the duration of her employment on the basis that the materials showed that Zhang knew that she had received a term-appointment which was subject to nonrenewal. The judge did not address Cen’s claim for loss of consortium, apparently reasoning that dismissal of Zhang’s claims necessarily disposed of his ancillary action. We think that the materials submitted on the motion show genuine disputes of material fact on Zhang’s claim of gender discrimination and reverse the judgment with regard to that claim only. 1. The facts. This litigation arises out of Zhang’s employment position with the Atmospheric Sciences Group (ASG) at the Haystack Observatory (haystack), a MIT research laboratory. We relate the facts as they appear in the plaintiffs’ affidavits, deposition transcripts, and exhibits. Although MIT disputes many of the facts asserted by the plaintiffs, “[o]ur review of the grant of summary judgment in favor of the defendant requires us to assume the truth of all the facts set forth in all the materials the plaintiff[s] properly presented to the Superior Court judge, as well as to give [them] the benefit of any favorable inferences that may be drawn from those materials.” Harrison v. Boston Financial Data Servs., Inc., 37 Mass. App. Ct. 133, 136 (1994). See Judson v. Essex Agrie. & Technical Inst., 418 Mass. 159, 162 (1994). In 1992, John C. Foster was an associate director at Haystack, and Zhang was a Ph.D. candidate in physics at Boston College. In May of that year, while attending an American Geophysical Union meeting, Zhang introduced herself to Foster and asked if he was still doing research in the area of plasma convection in the ionosphere, which was the topic of her thesis. Foster informed her that he had an opening at Haystack for someone with a background in that field. As of that time, Zhang had sent out many resumes in search of a tenure-track teaching position, and she had received one offer from a college in Atlanta, Georgia, at an annual salary of $28,000. Cen was then living and working in Atlanta. Soon after the conference, Foster invited Zhang to visit Haystack to discuss postdoctoral opportunities. Zhang accepted the invitation and went to Haystack for an interview with Foster. During that interview, she asked him whether the position was a “permanent” or “long-term” one. Foster told Zhang that no one at Haystack had a permanent position, that “we are all under soft money and everybody gets renewed every year depending on funding,” and that, in the past, funding had been good. Zhang understood the term “soft money” to mean “money which would come from some government source and it may not always be there.” It was also her understanding that a “postdoctoral staff position” was a position for someone with, or soon to obtain, a doctoral degree. As put by her, “It’s a category to differentiate someone who is staff without a doctorate degree and someone who is staff with a doctorate degree.” Foster also informed Zhang that the annual salary for the position was $35,000. At the conclusion of the interview, he told Zhang that she would be receiving an offer from MIT very shortly. The offer came in the form of two letters. In the first letter, dated December 16, 1992, the offered position was described as a “temporary, Sponsored Research Staff — Postdoctoral appointment,” effective January 1, 1993, through December 31, 1993. The letter further stated that the position was a “temporary full-time position.” The second letter, dated December 24, reiterated the effective dates of the appointment (January- December, 1993), referred to the position as a “Sponsored Research Staff — Postdoctoral,” and made no reference to “temporary.” Although Zhang did not like the use of the word “temporary” in the first letter, she did not seek clarification from anyone at MIT for several reasons: the first letter was signed by MIT’s personnel officer whereas the second letter, in which the word “temporary” was not used, was signed by MIT’s vice-president and dean for research, and Foster had told her that because continued employment was dependent upon funding, no one at Haystack had a permanent position and that everyone was on a year-to-year appointment. Zhang began working at Haystack in January of 1993. On October 29, 1993, she was advised that her “current temporary appointment” had been extended through December 31, 1994. In January of 1994, she received a small, one percent salary increase. Zhang testified at her deposition that although she was not pleased about the amount of the increase, she accepted Foster’s explanation in which he praised her work and stated that the budget was very tight. He also told her that because money might also be very tight the following year, her appointment might not be renewed. Zhang stated that she was surprised to learn about the budget situation because Foster had told her during her interview that Haystack’s funding history was good. In late June, 1994, Foster left for a three-month sabbatical in Japan. When he returned to Haystack at the beginning of October, he passed Zhang in the hallways. At this time she was six months pregnant, and her condition was apparent. Foster called a meeting for ASG members for October 6. Zhang stated that the purpose of the October 6 meeting was to address funding issues. Foster announced that funding for 1995 would be level with 1994 and that two new people would be joining ASG. Although Foster named the two individuals, one of whom was a Monica Coakley, and gave a brief statement about where they were coming from, he gave no indication that they were to be replacements for anyone. Zhang knew, however, that two people had left Haystack during 1994. After the meeting, Zhang approached Foster and told him that her baby was due in January. He congratulated her and asked about her plans. When Zhang stated that she intended to return to work in mid-January, Foster told her that he would have to check his budget for that year, that it was very tight. Zhang responded that if the budget was tight, she would consider an appointment for a term less than one year. In late November, Zhang had another conversation with Foster in which he asked Zhang whether she would consider a short, three-month extension of her appointment. Although surprised, Zhang stated that if that was all the budget could allow, she would take it, that she had recently enrolled in MIT’s health insurance plan, and that she most likely could find another position at the end of that short-term extension. On or about December 12, 1994, Zhang was notified that, because of a lack of funding, her appointment would not be extended beyond December 31, 1994. Her position was filled by Coakley. Cen testified at his deposition that Zhang’s employment situation caused stress in their lives and that they would have disagreements over trifling matters two or three times a week. 2. The discrimination claim. In examining Zhang’s discrimination claims based upon disparate treatment, we follow an established three-step analysis. See Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 138 (1976), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441-442, 446 (1995); Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1997). Zhang must first make a prima facie case of gender and racial discrimination. Based upon that evidence, discrimination will be presumed, and the burden then shifts to MIT to give a legitimate, nondiscriminatory reason for its hiring decision and to produce evidence to show that the reasons given for that decision were the real reasons. Once that burden is met, the presumption of discrimination dissolves, and the burden again shifts to Zhang who must now show, by a preponderance of the evidence, that the nondiscriminatory reasons given by MIT were not the real reasons for its decision and thus were pretexts. Blare, supra at 443. To make a prima facie case of sex discrimination, a plaintiff must show membership in a protected class, satisfactory job performance, termination, and the hiring of a replacement who possesses similar skills. See Beal v. Selectmen of Hingham, 419 Mass. 535, 544 (1995). The materials presented on summary judgment show that Zhang has a reasonable expectation of proving each of the four elements of a prima facie case of gender discrimination. “Asserting a claim based on sex discrimination as a pregnant woman, [Zhang] is a member of a protected group.” White v. University of Mass, at Boston, 410 Mass. 553, 557 (1991). She stated at her deposition that Foster praised her work. During his deposition, Foster testified that while some members of his research staff had higher performance evaluations than Zhang, her work was good. When Zhang’s appointment was not renewed, her position was given to a woman possessing similar skills. To satisfy its burden of production, MIT presented materials to show that Foster had determined not to renew Zhang’s appointment before she even became pregnant and that his determination was based upon her low evaluations and reductions in funding. According to an affidavit from Foster, funding was very erratic in 1993 and 1994. In mid-1993, the Air Force Office of Scientific Research (AFOSR) cut back its funding by $20,000. That reduction “directly affected the viability of a post-doc position continuing.” In the fall of 1993, Foster met with Haystack’s director, Joseph Salah, to review the performance and salary of each ASG employee. At that meeting, Foster told Salah that Zhang had not been as productive as he had hoped and that he did not expect her to complete any significant research project. Foster and Salah met again in January, 1994, and discussed the effect of the funding cutbacks on the post-doctoral positions. Foster and Salah decided that although there was sufficient funding to cover the second year of Zhang’s appointment, she would not be offered a third year at Haystack after 1994. Foster stated that that decision was based upon both the funding situation and his “low evaluation” of Zhang’s accomplishments. He then informed Zhang that, because of funding, her employment would end on December 31, 1994. In the meantime, according to Foster’s affidavit, the National Science Foundation renewed its funding support in June of 1994. That money would allow ASG to fill the position that would be open upon the termination of Zhang’s employment. Because he was due to leave for Japan on sabbatical, Foster asked members of ASG to look for someone in the research area of optical ionospheric research. There is an affidavit from an ASG research scientist in which he states that, in late June, he told Monica Coakley about an upcoming postdoctoral position, that she visited Haystack over the Labor Day weekend, and that she told the affiant that she would need a prompt response from MIT. Again reading Foster’s affidavit, we are informed that one of the first things he did upon his return to Haystack was, on October 5, 1994, offer a postdoctoral position to Coakley and announce her employment, commencing in 1995, at the ASG meeting the next day. We conclude that the facts set out in MIT’s proffer are sufficient to satisfy its burden of production to show that its decision to terminate Zhang was based on nondiscriminatory reasons. Its proffer was, therefore, sufficient to rebut Zhang’s prima facie case. See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass, at 128. That being so, the question now is whether the materials submitted on the motion for summary judgment are sufficient to show that the reasons advanced by MIT were a pretext. Although Foster states that he informed Zhang in January of 1994 that her employment would end on December 31, 1994, because of a lack of funding, Zhang states that, at that time, Foster praised her work and told her only that funding was tight. While Foster set out in his affidavit that he had given Zhang’s work a “low evaluation,” he testified at his deposition that her work performance was, like that of eight other research staff members, good. Because there were other research staff members who had received higher evaluations, Zhang’s was “low.” Further, Foster knew of the renewed funding from the National Science Foundation before he left on sabbatical and before he knew of Monica Coakley. Upon his return from sabbatical, he saw that Zhang was pregnant; he offered a postdoctoral position to a candidate who had been found and recommended by someone within the ASG group and whom, from all that appears, he had not even met; he announced level funding for 1995; and he thereafter informed Zhang that funding was tight but that he would look into whether she could be given a short-term, three-month extension of her employment without also telling her that Coakley had been appointed to her (Zhang’s) postdoctoral position. Zhang was not offered a short-term appointment because, as shown on copies of electronic mail messages, Salah’s assistant, Alan Blackburn, took the position that Zhang knew from the outset that her appointment was limited to two years and that a short-term extension would open the door for Zhang to claim generous health care benefits and maternity leave from MIT. Putting aside, as we must, issues of credibility and the weight of the evidence, see Attorney Gen. v. Brown, 400 Mass. 826, 832 (1987), and bearing in mind that summary judgment is disfavored in disputes involving a party’s state of mind, motive, or intent, see Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass, at 439, we conclude that Zhang’s proffer shows a prima facie case of discrimination on account of her pregnancy and presents disputed questions of fact whether the reasons advanced by MIT, the “low” evaluation of her work performance viewed in light of reduced funding, were pretexts. We do not, however, reach a similar conclusion on her claim of race discrimination. A claim of race discrimination brought under G. L. c. 151B, § 4(1), follows the same analysis as that applied to a gender-based claim. See Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 765-766 (1986). That is, to make her prima facie case, Zhang must show membership in a racial minority, acceptable job performance, termination of her employment, and replacement with a similarly qualified individual. See McKenzie v. Brigham & Women’s Hosp., 405 Mass. 432, 434-435 (1989). Evidence of the employer’s general practice and policies concerning the employment of racial minorities, the treatment of employees of different race, and the specific treatment of the plaintiff while employed are all relevant to show racial discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. at 804-805; Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass, at 767; McKenzie v. Brigham & Women’s Hosp., 405 Mass, at 437. Zhang’s claim of race discrimination rests entirely upon the electronic mail messages sent by Blackburn to Foster and the personnel director in which he twice used the term “tar baby,” words generally understood to be either a derogatory reference to black Americans or a difficult or sticky problem. See IV Oxford English Dictionary Supplement (1986). For purposes of this decision, we acknowledge that the term “tar baby” is extremely offensive to African-Americans. Nonetheless, in view of the undisputed facts that Zhang is not a member of the minority who rightfully take offense from that term, that Blackburn viewed Zhang’s request for a short-term extension of her employment as an unfair and calculated attempt to obtain MIT’s generous health insurance and maternity leave benefits, and that MIT has a history of employing minorities, including Asians, we agree with the Superior Court judge’s conclusion that Zhang’s proffer was insufficient to show a prima facie case of race discrimination. See Fontaine v. Ebtec Corp., 415 Mass. 309, 314 n.7 (1993) (isolated or ambiguous remark, standing alone, is insufficient to prove discriminatory intent). See also Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 450 (1996). 3. The misrepresentation claim. This claim is based upon Foster’s statements to Zhang during her meeting with him at Haystack in May, 1992. Zhang testified at her deposition that Foster, in response to her inquiries concerning the nature and tenure of her possible position at Haystack, told her that the position was a regular staff and not a postdoctoral position, that no one at Haystack had a permanent position, that employment depended upon funding, that everybody gets renewed every year depending upon funding, and that, in the past, funding had been good. Zhang argues that, because these statements contradict MIT’s subsequent representations that her appointment was to a postdoctoral position of limited duration (two years), she has shown the requisite falsity, materiality, and purpose (inducement) of Foster’s statements in May of 1992 as well as her detrimental reliance upon them. See Zimmerman v. Kent, 31 Mass. App. Ct. 72, 77 (1991). As earlier noted, MIT does not dispute, for purposes of this appeal, Zhang’s version of her 1992 interview with Foster. See note 3, supra. Construing Foster’s statements in a fight most favorable to Zhang, we think that they could be construed reasonably as a representation by Foster that her appointment would be renewed from year to year so long as funds were available. “Massachusetts law clearly states that statements of present inte

LeGENDRE v MONROE COUNTY Docket No. 194647. Submitted November 18, 1997, at Lansing. Decided April 2, 1999, at 9:15 A.M. Terrie J. LeGendre and Nancy M. Feick, former Monroe County assistant prosecutors, brought an action under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., against Monroe County and the Monroe County Prosecutor after they were not reappointed as assistant prosecutors and not offered other employment with the county. LeGendre alleged gender discrimination and retaliation for filing civil rights complaints with the Equal Employment Opportunity Commission and the Michigan Department of Civil Rights. Feick raised the same allegations made by LeGendre and further alleged age discrimination and raised issues concerning political activity and affiliation. Both plaintiffs alleged that they suffered embarrassment, mortification, humiliation, and outrage as a result of the claimed discriminatory acts of the defendants. The court, Timothy P. Pickard, J., granted a motion by the defendants for severance of the plaintiffs’ actions. After LeGendre asserted the physician-patient privilege in declining to answer the defendants’ interrogatories about her medical history, including psychiatric care, if any, the court granted defendants’ motion under MCR 2.314 to preclude her from presenting evidence about her medical history or mental or physical condition as they relate to the claim of mental distress. After LeGendre failed to comply with a discovery order to produce medical records related to a physical injury for which she received disability insurance benefits while employed in the prosecutor’s office, the court dismissed her action. LeGendre appealed. The Court of Appeals held,-. 1. The trial court did not abuse its discretion in granting the defendants’ motion for severance. Different proofs would be required to establish each of the plaintiffs’ cases in light of differences in their backgrounds, levels of experience, length of employment in the prosecutor’s office, and positions held in the prosecutor’s office. Feick also raised claims that were not raised by LeGendre. There was great potential for jury confusion and prejudice against the defendants had the claims not been severed. 2. The trial court did not err in precluding LeGendre from presenting evidence of her medical history or mental or physical condition. Administrative Order No. 1996-4 constrains this panel of the Court of Appeals to follow the holding in Hyde v Univ of Michigan Bd of Regents, 226 Mich App 511 (1997), that allegations of ordinary mental distress by a plaintiff in an employment discrimination case place the plaintiff’s mental condition in controversy and, thus, make it open to discovery pursuant to MCR 2.314. MCR 2.314(B)(2) provides that, unless the court orders otherwise, if a party asserts that medical information is subject to a privilege and the assertion has the effect of preventing discovery of medical information otherwise discoverable under MCR 2.302(B), the party may not thereafter present or introduce any physical, documentary, or testimonial evidence relating to the party’s medical history or mental or physical condition. Were it not for Hyde, the Court would hold that the mental condition of a party is in controversy for purposes of MCR 2.314 when there is a separate tort claim for emotional distress, the plaintiff alleges that the plaintiff suffers from a severe ongoing mental injury or a psychiatric disorder, the plaintiff will offer expert testimony to support the claim, or the plaintiff concedes that the plaintiff’s mental condition is in controversy. Because none of these situations is involved in this case, the Court, were it not for Hyde, would reverse the order precluding the plaintiff from introducing evidence supportive of her claim of emotional distress. 3. The trial court abused its discretion in dismissing LeGendre’s action for her failure to comply with the discovery order for the production of medical records related to her disability claim. An in camera hearing is the appropriate vehicle to determine whether the information requested was protected by the physician-patient privilege as contended by LeGendre. The case must be remanded for such a determination. Orders of severance and preclusion of LeGendre from presenting evidence regarding emotional distress affirmed; order of dismissal vacated; case remanded for in camera hearing regarding whether disability medical records are subject to privilege. 1. Trial — Severance. A court may grant a motion for separate trials to avoid prejudice or for convenience, expedition, or economy; although a ruling regarding such a motion is reviewed on appeal for abuse of discretion, severance should be ordered only upon the most persuasive showing that the convenience of all the parties and the court requires it (MCR 2.505[B]). 2. Peetrial Procedure — Discovery — Remedies — Appeal. The Court of Appeals reviews for abuse of discretion a trial court’s decision to dismiss an action or impose sanctions for the plaintiff’s failure to permit discovery. 3. Pretrial Procedure — Discovery — Privileged Information — In Camera Hearings. An in camera hearing is the appropriate vehicle to determine whether information requested in discovery proceedings is protected by a statutory privilege. Green & Green (by Christine A. Green), for Terrie J. LeGendre. Cummings, McClorey, Davis & Acho, P.C. (by Suzanne P. Bartos and Thomas J. Laginess), for Monroe County. Johnson, Rosati, Galica, LaBarge, Aseltyne & Field, P.C. (by Laura A. Amtsbuechler and Marcelyn A. Stepanski), for Monroe County Prosecutor. Before: Hood, P.J., and McDonald and White, JJ. Per Curiam. In this sex discrimination and retaliation case brought under the Civil Rights Act (cra), MCL 37.2101 et seq.; MSA 3.548(101) el seq., plaintiff appeals as of right from the circuit court’s orders severing plaintiff’s case from that of a coplaintiff; precluding plaintiff from presenting evidence relating to her psychological, emotional, or physical condition in support of her claims for noneconomic damages; and granting dismissal in favor of defendants. We vacate the circuit court’s order of dismissal and affirm its order severing the cases. Regarding the order precluding plaintiff from presenting evidence relating to her psychological, emotional, or physical condition, we disagree with, but must follow, Hyde v Univ of Michigan Bd of Regents, 226 Mich App 511; 575 NW2d 36 (1997), under Administrative Order No. 1996-4, and therefore affirm. Were it not for Hyde, we would reverse the portion of the order precluding testimony regarding plaintiffs ordinary psychological or emotional distress and remand for further proceedings consistent with this opinion. Plaintiff and Nancy M. Feick, initially a coplaintiff in this case, were attorneys in the Monroe County Prosecutor’s Office. Feick was hired by the prosecutor’s office in 1985 and plaintiff was hired in 1991. In January of 1991, Feick was promoted to chief assistant prosecutor by then-prosecutor William Frey. Defendant Edward F. Swinkey was elected Prosecuting Attorney of Monroe County in the 1992 election. Plaintiff had run against him. Plaintiff and Feick were the only two women working in the Monroe County Prosecutor’s Office when Swinkey took office. Plaintiffs and Feick’s employment ended on December 31, 1992, when Swinkey did not reappoint them. Two male assistant prosecutors were also not reappointed by Swinkey. Plaintiff and Feick filed complaints with the Equal Employment Opportunity Commission (eeoc) and the Michigan Department of Civil Rights (mdcr), claiming that Swinkey fired them because of their gender. Subsequently, plaintiff applied for an assistant prosecutor position and was granted an interview. During the interview, Swinkey questioned plaintiff about her discrimination charges and warned her that what she had said would be held against her. Swinkey hired a female applicant who had not yet passed the bar examination to fill the position. During the summer of 1993, plaintiff was offered the position of Special Prosecutor for Domestic Affairs for Monroe County, but only when she agreed to withdraw her discrimination charges. Plaintiff left that position at the end of 1993. In December of 1993, plaintiff applied for a position as a Monroe County Juvenile Court Referee, but a male was hired for the job. In the scant excerpts of plaintiffs deposition before us, plaintiff testified that she left the position of special prosecutor for domestic affairs after only six months because of a difference of opinion with a supervisor, John Pace, regarding her being on disability. Plaintiff testified that her doctor had told her that she could go back to work part-time following foot surgery. She testified that she was teaching at a community college at the time and had done so for the preceding four years. Plaintiff testified that she approached Pace regarding working part-time until the end of the college semester, which was in six weeks, and said that she would then return to work full-time. Plaintiff testified that Pace told her that if she could not work full-time as a prosecutor, she could not teach at the college. Plaintiff testified that classes at the college were starting that day, that she could not leave the college without an instructor, and that she therefore left the prosecutor’s position. Plaintiff believed she had been treated discriminatorily by her supervisor because a male co-worker had been allowed to take a great deal of disability time off and hold an outside job without reprisal. Plaintiff received disability payments after her foot surgery, but refused to divulge the amount at deposition, asserting the physician-patient privilege. Plaintiff and Feick filed their complaint on July 14, 1995. They alleged that defendants’ actions regarding their employment violated the cra, as well as their right to equal protection guaranteed by Const 1963, art 1, § 2. The complaint alleged that defendants fired and refused to rehire them because they were female, because of Feick’s age, and in retaliation for their civil rights complaints to the EEOC and the MDCR. It further alleged that they “each suffered injuries, all of which are continuing in nature,” including embarrassment, mortification, humiliation, and outrage. Before discovery began, Swinkey filed a motion to sever plaintiff’s and Feick’s claims, pursuant to MCR 2.505(B), 2.206, and 2.207, with which Monroe County concurred. The circuit court granted defendants’ motion, severing the cases for discovery as well as trial. After both defendants filed motions to compel plaintiff and Feick to answer interrogatories, the parties stipulated that plaintiff and Feick would produce the interrogatory answers within ten days. Plaintiff and Feick served answers to Swinkey’s interrogatories within the stipulated time, but both responded to the following interrogatories with the answer “Plaintiff objects to this interrogatory for the reason that it calls for privileged information.” 14. Have you treated with or consulted with any psychologist, psychiatrist, social worker, clergyman or other professional regarding the mental distress alleged in your Complaint? 15. If you [sic] response to the proceeding [sic] interrogatory was in the affirmative, please state: (a) The name and address of each and every such person visited; (b) The dates that you consulted with, or treated with each and every such professional; (c) Please complete, sign and return the enclosed authorization from [sic] for each and every such person. 16. List chronologically with dates, the names and addresses of all doctors, psychiatrists, psychologist or social workers whom you have seen or with whom you have consulted from January 1980 to present; the nature of the ailment or other reason for which each doctor was consulted and the treatment on each occasion. 17. Give the names and address of all hospitals, including psychiatric, where you have been either and [sic] in-patient or an out-patient during yo [sic] entire life and as to each hospital, give: (a) Date of admission and discharge; (b) Nature of the ailment or illness for which you were hospitalized; (c) Name and addresses of any attending physicians. The interrogatories also asked the foüowing question regarding physical injury: 18. Do you allege any physical injury as a result of the incidents alleged within your Complaint? If so, set forth the exact nature of all present physical complaints which you allege are attributable to the incidents complained of. ANSWER: No. 19. If you have been hospitalized or treated by a doctor or, [sic] medical professional by reason of this incident, list the names and addresses of all such hospitals, doctors clinics or other medical institutions with which you were a patient as well as the date of confinement in any hospital. ANSWER: Not applicable. 20. Have you discussed this case with any potential expert witnesses or do you intend to expect to call an expert to testify on your behalf as the time of trial?. . . . ANSWER: No. Swinkey filed a motion to preclude plaintiffs from presenting evidence of their physical and mental damages at trial pursuant to MCR 2.314(B)(2) so that he would not be “sandbagged” with unknown and unforeseen information. Monroe County concurred in Swinkey’s motion. At the beginning of the hearing regarding Swinkey’s motion, the circuit court requested that separate complaints be filed because it had not received them after entering its order to sever. Plaintiff’s counsel asserted that plaintiff had not put her physical and mental conditions in controversy simply by alleging embarrassment, mortification, humiliation, and outrage, and further stated that plaintiff did not plan to present expert testimony at trial about any physical or mental injuries suffered. The circuit court granted defendants’ motion, stating: It appears from the court rule that when you invoke the privilege that the parties may not thereafter present or introduce any physical, documentary or testimonial evidence relating to the medical history, mental or physical condition of the Plaintiff who is complaining. And I can see a real pitfall to the Defendant if such a motion were not filed for the simple reason that if the testimony comes in at the time of trial that somebody was crying uncontrollably or demonstrating mental or physical stress and trying to relate it to the complaint against the Defendant without the ability to discover these facts there might be some other underlying cause for that emotional distress. So, therefore, I would grant the motion. Swinkey subsequently filed a motion to compel production of plaintiff’s disability insurance records pursuant to MCR 2.313(A)(2)(a). Swinkey had requested medical records related to plaintiff’s disability claim, but plaintiff refused to release them, asserting the physician-patient privilege. Swinkey alleged that plaintiff left the special prosecutor’s job because of her disability, not because of defendants’ threats that she would receive and keep the job only if she dropped her discrimination complaints or because she was forced to choose between employment by Monroe County or by the community college. Swinkey claimed that he needed the disability records to ascertain plaintiff’s ability to hold the special prosecutor’s job or find similar employment and so meet her obligation to mitigate damages. Swinkey also argued that any disability payments plaintiff received after resigning her position as special prosecutor for domestic affairs were a collateral source that defendants should be allowed to deduct from any wage-loss claim under MCL 600.6303(1); MSA 27A.6303(1), and that this information should be contained in the disability insurance records. Swinkey further argued that defendants believed plaintiff was on disability for a different reason before returning to work for the prosecutor’s office in the summer of 1993. He argued that it appeared that plaintiff made the disability claim before leaving the prosecutor’s office on January 1, 1993. At the hearing regarding Swinkey’s motion, Swinkey’s counsel argued that although plaintiff was now willing to answer questions regarding when she received disability and the records of payments received, and that the parties would stipulate an order requiring that she answer those questions and produce records of payment, plaintiff still refused to release the medical records contained in the disability records on the basis of privilege. Counsel asserted that the records were relevant to plaintiff’s ability and efforts to mitigate her damages incurred after leaving the friend of the court position in 1993. Plaintiff’s counsel argued that plaintiff’s medical condition was irrelevant, in that it was not necessary to know the specific medical condition to determine whether plaintiff was available for work because, if she received disability benefits, she was unavailable for work and could not obtain back-pay for those periods. Counsel argued that it was the fact of disability that was relevant, that plaintiff had agreed to provide that information, and that the court had already stricken noneconomic damages and plaintiff still insisted on her right of privacy. Counsel for Monroe County then suggested a compromise, i.e., that the court view the medical records in camera. Plaintiff’s counsel and Swinkey’s counsel agreed, noting: Ms. Amtsbeuchler [defense counsel]: That would be fine. I just want to make sure we are clear, I think there is more than one disability application. I think there may be three: one before she can [sic, came] to the prosecutor’s office: one while she was at the prosecutor’s office, after the time she found out she wasn’t going to be reappointed: and three, at the special prosecutor’s job. We think they are all relevant, whether it was foot surgery or some other condition. I guess the condition may or may not be important depending on what it is. We have no way of knowing until, obviously, somebody takes a look at them. And if the court is willing to do that, that’s fine. Plaintiffs counsel responded: If the Court is inclined to provide copies of the medical records to the Defendants, I think in fairness to the Plaintiff the Plaintiff should have the opportunity to dismiss the lawsuit rather than waiving that privilege. The Court: At this point I will not read the medical records in camera because I will not investigate this case and do the work of the attorneys. I will grant the motion that she either produce those [disability records including the medical records] or the case be dismissed. Plaintiff did not produce the records, and the court dismissed her case. This appeal ensued. i First, we disagree with plaintiffs argument that the circuit court erred in granting defendants’ motion to sever her claims from Feick’s. MCR 2.505(B) allows a circuit court to sever trials to avoid prejudice or for convenience, expedition, or economy. Hodgins v Times Herald Co, 169 Mich App 245, 261; 425 NW2d 522 (1988). Although we review for abuse of discretion a circuit court’s grant of a motion to sever, the decision to sever trials should be ordered only upon the most persuasive showing that the convenience of all parties and the court requires it. Id.; Jemaa v MacGregor Athletic Products, 151 Mich App 273, 278; 390 NW2d 180 (1986). Plaintiff’s claims arose from a different set of occurrences than Feick’s, except, possibly, Swinkey’s not reappointing them on December 31, 1992. See Jemaa, id. at 279. On that date, plaintiff was an assistant prosecutor and had worked for the prosecutor’s office for about one year, while Feick was chief assistant prosecutor and had worked for the prosecutor’s office for over seven years. Feick had more responsibility and more seniority than plaintiff. After not being reappointed, plaintiff and Feick applied for different positions

FRANZEL v KERR MANUFACTURING COMPANY Docket No. 201802. Submitted November 3, 1998, at Detroit. Decided March 30, 1999, at 9:00 A.M. Shirley Franzel brought an action in the Wayne Circuit Court against Kerr Manufacturing Company and Rebecca Leinen, Kerr’s vice president of human resources, alleging several claims as a result of Franzel’s second termination from employment. The court, Kay Tertzag, J., granted Leinen’s motion for summary disposition and dismissed the plaintiff’s claims of sexual harassment, hostile work environment sex discrimination, retaliation for attempting to oppose a violation of the Civil Rights Act, and intentional infliction of emotional distress. The jury considered the claims of wrongful discharge, sex discrimination in violation of the Civil Rights Act, and breach of contract for Kerr’s alleged violation of an unconditional offer to the plaintiff to return to work after her first termination from employment. The jury, specifically finding that the plaintiff was not an employee whose employment could be terminated for just cause only, found no wrongful discharge. The jury also found no sex discrimination, but did find that Kerr breached the contract between it and the plaintiff made before the plaintiff returned to work after her first termination from employment. The jury awarded the plaintiff damages but reduced the amount because of the plaintiff’s failure to mitigate her damages. Kerr appealed and the plaintiff cross appealed. The Court of Appeals held: 1. The plaintiff was entitled to only nominal damages for the breach of the at-will employment contract. The court erred in denying Kerr’s motion for remittitur, and that order must be reversed. 2. The jury did not find that the plaintiff had been an at-will employee before her first termination from employment or that following her reinstatement she was an employee whose employment could be terminated for just cause only. 3. The plaintiff was on notice when she signed the reinstatement contract that her employment was at will. 4. The court erred in admitting, over Kerr’s objection, a letter written by Kerr’s counsel to defendant Leinen. The letter was not intentionally presented to the plaintiff by Kerr’s counsel. An unprejudiced person reviewing the evidence would find no justification or excuse for the court’s decision to deny Kerr’s motion to suppress the evidence. The letter was improperly admitted and its contents created undue prejudice against Kerr. The admission of the evidence constituted error requiring reversal of the judgment with regard to the breach of contract claim. 5. The court abused its discretion in permitting an expert witness to testify that the plaintiff is a credible witness and in permitting the witness to testify with regard to matters outside the witness’ field of expertise. The expert witness should not have been allowed to testify with regard to evidence that was subject to the attorney-client privilege and that was erroneously admitted into evidence. 6. The court did not err in finding either no genuine issue of material fact regarding the claims of intentional gender discrimination, sexual harassment, retailiation for opposing a violation of the Civil Rights Act or the failure to state a claim regarding sexual harassment, gender discrimination by defendant Leinen, or intentional infliction of emotional distress. Those orders of summary disposition must be affirmed. Affirmed in part, reversed in part, and remanded. 1. Contracts — Employment at Will — Breach of Contract — Damages. The measure of damages for an employer’s breach of an employment contract involving an at-will employee is nominal damages. 2. Contracts — Damages. Neither mental distress damages nor exemplary damages are available in an action for breach of contract, even if the breach was malicious or wilful. 3. Master and Servant — Employment at Will. An at-will employment relationship is presumed where an employment agreement is silent regarding the type of employment relationship intended. 4. Witnesses — Experts — Opinion Testimony — Appeal. Whether a witness is qualified to render an expert opinion and the admissibility of an expert’s testimony are matters within a trial court’s discretion; an abuse of discretion will be found only if an unprejudiced person, considering the facts on which the trial court acted, would say there was no justification or excuse for the ruling. 5. Witnesses — Experts. The subject matter of an expert’s testimony should be directly related to and within the immediate scope of the witness’ expertise; a prerequisite to the admission of an expert’s testimony is a showing that the expert has knowledge in a particular area that belongs more to an expert than to the common man; an expert should not be permitted to express an opinion where the jury is in as good a position as the expert to determine intelligently the issue involved without enlightenment from the expert (MRE 702). 6. Witnesses — Experts — Work-Product Privilege. Facts known and opinions held by an expert are not work product, but the expert’s arrangement of those facts and opinions in a report, made in direct response to the inquiries of an attorney, is work product protected by the work-product privilege (MCR 2.302[B][4]). 7. Trial — Witnesses — Jury Trial — Witness Credibility — Expert Testimony. The jury is the sole arbiter of witness credibility in a jury trial; expert testimony regarding the credibility of a witness is improper in a jury trial. Allen J. Counard, P.C. (by Allen J. Counard), for the plaintiff. Kell & Lynch, P. C. (by M. V. Kell and Margaret A. Lynch), for Kerr Manufacturing Company. Before: Hood, P.J., and Griffin and Markey, JJ. Per Curiam. Kerr Manufacturing Company (hereafter defendant) appeals by right the jury verdict finding that while defendant did not wrongfully discharge plaintiff Shirley Franzel or commit sexual discrimination against her, defendant did breach the parties’ contract that formed the basis for plaintiff’s return to work in January 1987. Plaintiff cross appeals to determine whether the trial court erred in summarily dismissing plaintiff’s claims under the Civil Rights Act (cra) of intentional gender discrimination, MCL 37.2202(1); MSA 3.548(202)(1), hostile work environment sexual harassment, MCL 37.2103(1); MSA 3.548(103)(i), retaliation for attempting to oppose a violation of the CRA, MCL 37.2701; MSA 3.548(701), gender discrimination by defendant Rebecca Leinen, Kerr’s vice president of human resources, and her claim of intentional infliction of emotional distress. Plaintiff also cross appeals from the trial court’s refusal to enter an order of judgment including costs, attorney fees, or mediation sanctions. We vacate the judgment in favor of plaintiff and affirm regarding the cross appeal. FACTS Plaintiff worked as a sales representative, district manager, and metro market manager for defendant, a dental products manufacturer, from 1981 through July 1986, and again from January 1987 through May 1987. Plaintiff aspired to the position of regional manager, but allegedly defendant and a host of its employees were committed to preventing a woman from reaching upper management. Plaintiff claims that defendant began discriminating and conspiring against her after three January 1986 incidents at a national sales meeting in Marco Island, Florida, where two comments were made during a slide show that insinuated plaintiff had slept her way to her current position, and where another manager, who was vying for the same regional manager promotion, pinched her on the buttocks. Rick Amos, plaintiff’s supervising regional manager, terminated her employment in July 1986 for failing to satisfy the requirements of a February 1986 “performance improvement plan” (pip), also known as probation. In August 1986, plaintiff filed her complaint in state court against defendant Kerr, asserting claims of sexual harassment and sexual discrimination in violation of the CRA, breach of contract, wrongful discharge, negligent evaluation, and retaliatory treatment for filing the lawsuit, but the action was removed to the United States District Court for the Eastern District of Michigan on diversity grounds. After a lengthy trial before Judge Barbara K. Hackett, the federal court jury found that plaintiffs employment could be terminated for just cause only, but issued a verdict of no cause of action. The federal case was subsequently dismissed, however, when plaintiff filed a posttrial challenge to diversity jurisdiction and defendant did not oppose it. Thus, the parties refiled their pleadings in the Wayne Circuit Court and the instant lawsuit proceeded. Rebecca Leinen was also added as a defendant in the state court action. While her federal lawsuit was pending, however, defendant made plaintiff an unconditional offer to return to work. After negotiations, plaintiff agreed and signed a December 11, 1986, letter setting forth the conditions of her reinstatement, including the geographical territories she would service (which did not include the same successful Michigan accounts she had in the past), that Amos would no longer oversee her work, and that she was subject to annual reviews like all other district managers. From the outset, the problems that had plagued plaintiff before her first termination involving extremely late paperwork and expense reports began to reoccur, and plaintiff was again placed on a pip. When plaintiff refused a direct order to (1) retrieve from home some “documentation” that she claimed existed to rebut the allegations in her pip (and support many of the allegations she made against other employees who allegedly sexually harassed her and conspired against her), and (2) return to work with the documentation on the same day, she was suspended. Plaintiff then informed defendant that she could not return to work for medical reasons at the direction of her psychologist, but she refused to submit to an independent medical or psychological examination that defendant requested. Defendant once again terminated her employment, this time for insubordination. In the state court action, the trial court granted defendant Rebecca Leinen’s motion for summary disposition and dismissed plaintiffs claims of sexual harassment, hostile work environment sex discrimination, retaliation, and intentional Infliction of emotional distress. The jury was instructed with regard to the claims of (1) wrongful discharge, (2) sex discrimination in violation of the CRA, and (3) breach of contract for defendant’s alleged violation of the unconditional offer to return to work. The jury found no wrongful discharge (specifically finding that plaintiff was not an employee whose employment could be terminated for just cause only) and no sex discrimination, but it did find that defendant breached the contract between the parties that formed the basis for plaintiff’s return to work in January 1987. The jury awarded plaintiff $425,000 in damages but reduced that amount by $200,000 for failure to mitigate. Defendant appealed, and plaintiff cross appealed to this Court. i A First, defendant Kerr asserts that the trial court committed error requiring reversal in refusing to reduce the jury’s damage award to a nominal amount Defendant argues that the jury’s damage award was purely speculative and that plaintiff was entitled to only nominal damages under Sepanske v Bendix Corp, 147 Mich App 819; 384 NW2d 54 (1985), and Environair, Inc v Steelcase, Inc, 190 Mich App 289, 293; 475 NW2d 366 (1991). These cases support the proposition that even if defendant breached its contract with plaintiff regarding her return to work, nothing in the contract ensured her continued employment because, as the jury found, she was an at-will employee, not an employee whose employment could be terminated for just cause only. Notably, neither mental distress damages nor exemplary damages are available in an action for breach of contract, even if the breach is malicious or wilful. Walker v Consumers Power Co, 824 F2d 499, 504-505 (CA 6, 1987); Valentine v General American Credit, Inc, 420 Mich 256, 259-263; 362 NW2d 628 (1984). We find that plaintiff was entitled to only nominal damages for breach of the at-will employment contract and the trial court erred in denying defendant’s motion for remittitur. In Sepanske, supra at 828-829, this Court affirmed the proposition that the breach of an at-will employment contract entitles the employee to receive only nominal damages because, regardless of the contract terms, the employee had no reasonable expectation of continued employment. In that case, plaintiff Sepanske returned to work after taking a company-approved social service leave of absence but was placed in a different job in a different department, contrary to company policy guaranteeing reinstatement to a former position or one of equal or greater responsibility. The defendant’s personnel manager had also given Sepanske a letter stating that Sepanske was “ ‘scheduled to return to [his] former position’ ” upon completion of his social service leave. Id. at 823. The jury found that Sepanske’s responsibilities regarding his new job were neither greater than nor equal to those regarding his former job, and awarded him $75,206 in damages for future lost earnings. Id. at 824-825. This Court vacated the jury’s damage award and remanded to the district court for entry of a judgment in Sepanske’s favor “for nominal damages only.” Id. at 829. The Court stated: We take an entirely different approach [than the parties] on the issue of damages. We think that plaintiff was entitled to nominal damages only for defendant’s breach of the employment contract. This is not a case of wrongful discharge. Plaintiff’s expectation under the contract was to be restored to his old job or to an at-will position which was equivalent to or better than his position in pension and payroll, but he had no actionable expectation that any such restoration would be permanent. The position was still at will—one which the employer was free to alter or terminate without consequence. The fact that defendant historically had not arbitrarily reclassified positions or terminated employees does not change its right to do so. . . . The jury’s damage assessment in such a situation amounts to pure speculation. There is no tangible basis upon which damages may be assessed where plaintiff’s eccpectation was for an at-will position which could have been changed or from which he could have been terminated without consequence. See Sax v Detroit, G H & M R Co, 129 Mich 502, 506; 89 NW 368 (1902). [Id. (emphasis added).] This Court recently reiterated that Sepanske should not be extended beyond breach of contract actions where at-will employees are entitled to only nominal damages. Hord v Environmental Research Institute of Michigan, 228 Mich App 638, 643-644; 579 NW2d 133 (1998). In Environair, supra at 293-294, we stated that while Sepanske involved an employment relationship, its holding regarding the speculative nature of damages was equally applicable to nonemployment, at-will contractual relationships (e.g., exclusive sales contracts). Our Supreme Court has not affirmatively endorsed Sepanske, but the Court has discussed its holding, if only to distinguish it from a case being considered. In Phillips v Butterball Farms Co, Inc (After Second Remand), 448 Mich 239, 251, n 31, 253; 531 NW2d 144 (1995), the Supreme Court found Sepanske inapplicable where the plaintiff sued her employer in tort for worker’s compensation retaliatory discharge. After quoting pertinent parts of the Sepanske opinion as set forth above, the Supreme Court merely stated that “[t]he claim in Sepanske, however, was premised on breach of contract, not a separate tort.” Id. at 253. Accord Sax, supra at 506; Mallory v Jack, 281 Mich 156; 274 NW 746 (1937) (future damages may not be awarded under employment contracts terminable at will). Notably, the Sax Court stated: There is no foundation for even a guess by a jury upon either question of fact [regarding when the employment contract would end and when it in fact ended], because either could terminate the contract at will, and it was equally impossible to tell how much of the time [the plaintiff, a train brakeman who was injured and subsequently rehired,] would be employed. The jury were [sic] turned, loose into afield of pure speculation and conjecture, without any practical or tangible basis upon which to assess damages. Under such circumstances, none can be assessed. [Sax, supra at 506 (emphasis added).] Plaintiff offers no case law support contrary to Sepanske; rather, she merely emphasizes Judge Shepherd’s position in his dissenting opinion in Sepanske that because the defendant could have fired the plaintiff at any time, it did not mean that the defendant was likely to fire him. Sepanske, supra at 832. In his dissent, Judge Shepherd also argued that public policy and fairness favor placing the burden of proof on the defendant to show that in fact the plaintiff would have been discharged, particularly given that the plaintiff in Sepanske was providing a public service on the defendant’s behalf while on leave before the employment relationship ended. Id. at 833. We find these arguments unpersuasive. B Plaintiff also argues that the reinstatement “contract” between plaintiff and defendant dated December 11, 1986, constituted an employment contract that was terminable for just cause only. Plaintiff asserts that the jury’s special verdict form evidences that the jury found plaintiff to be an at-will employee during her first term of employment but not during her reinstatement. A quick review of the jury’s special verdict form disproves this argument. The following are the questions and the jury’s responses to the special verdict form: Count i: Do you find that Plaintiff has proven by a preponderance of the evidence that the employment relation ship between the Plaintiff and Defendant was such that Plaintiff would not be discharged except for just cause? NO Count n: Do you find that Plaintiff has proved by a preponderance of the evidence that one of the reasons she was discharged was because of her sex? no Count III: Question 1: Do you find that Plaintiff has proved by a preponderance of the evidence that Defendant breached the contract which Plaintiff and Defendant entered into upon her return to work? yes Question 2: Do you find by a preponderance of the evidence that Plaintiff suffered damages as a result of the breach of contract? yes Damages: Question 1: If plaintiff suffered damages, what is the amount of damages you award to Plaintiff? Count ill, Breach of Contract, $425,000 Question 2: Did Plaintiff make a reasonable effort to minimize her damage? NO By what amount do you find the award of damages will be reduced? $200,000 [Emphasis added.] Cleaxly, nothing in the language of the special vexdict foxm xegaxding count I limited the question of at-will ox just-cause employment to eithex plaintiffs first ox second period of employment. c Plaintiff further argues that the language of the reinstatement contract itself establishes the just-cause nature of the employment relationship. A review of the pertinent language in the reinstatement contract that plaintiff signed supports a contrary view: 1. Kerr will unconditionally reinstate you to the position of District Manager within the Michigan market effective January 5, 1987. 2. You will be reinstated at your former salary of $35,000.00 per year. 3. You will be entitled to the normal bonus arrangement available to District Managers. 4. You will be provided with all fringe benefits available to District Managers. 5. You will be subject to annual reviews the same as is provided to all other District Managers. 6. For a period of six (6) months, you will be assigned the following accounts: A. University of Michigan B. Healthco C. Either Patterson or Bignall While the

Cheryl Nardone vs. Patrick Motor Sales, Inc., & another. No. 97-P-1393. Worcester. November 12, 1998. March 12, 1999. Present: Jacobs, Porada, & Rapoza, JJ. Anti-Discrimination Law, Damages, Attorney’s fees. Damages, Attorney’s fees, Interest, Punitive. Postjudgment interest on an award of trial attorney’s fees [453] and postjudgment interest on punitive damages [453-454] were properly assessed in a G. L. c. 15 IB discrimination case. A Superior Court judge had no authority to award appellate attorney’s fees and costs in circumstances in which the prevailing party had not requested such fees in the appellate court. [454] Civil action commenced in the Superior Court Department on September 1, 1992. Following review by this court, 40 Mass. App. Ct. 1118 (1996), motions for appellate attorney’s fees, postjudgment interest on punitive damages, and interest on trial attorney’s fees were heard by Francis R. Fecteau, J. Michael J. Michaeles for the defendants. Richard C. Van Nostrand for the plaintiff. Neil Patrick. Jacobs, J. A Superior Court jury awarded the plaintiff compensatory and punitive damages in a G. L. c. 151B, § 4(11A), discrimination action, and the judge awarded her trial attorney’s fees and costs under G. L. c. 151B, § 9. We affirmed the judgments in an unpublished memorandum and order (95-P-948). See 40 Mass. App. Ct. 1118 (1996). Following the entry of judgment after rescript, the plaintiff successfully moved in the Superior Court for appellate attorney’s fees and costs and postjudgment interest on the awards of punitive damages and trial attorney’s fees and costs. The defendants appeal from these post-rescript orders. 1. Trial attorney’s fees. The plaintiff is entitled to postjudgment interest on the award of trial attorney’s fees. Compare International Totalizing Sys., Inc. v. PepsiCo, Inc., 29 Mass. App. Ct. 424, 437 (1990) (“Interest on the portion of the award representing attorneys’ fees should ... be calculated from the time judgment was entered on the c. 93A claim”). The commands of G. L. c. 93A, §§ 9(4) and 11, and G. L. c. 151B, § 9, that a court finding for a petitioner “shall,” in addition to other relief, award “reasonable attorney’s fees and costs,” are sufficiently similar, see Powers v. H.B. Smith Co., 42 Mass. App. Ct. 657, 667 (1997), to persuade us that postjudgment interest on trial attorney’s fees should be assessed in discrimination cases. We find additional support for this conclusion in the liberal construction to be given to G. L. c. 151B, as stated in § 9, in order to accomplish its purposes. Compare Gaulin v. Commissioner of Pub. Welfare, 23 Mass. App. Ct. 744, 748, 750 (1987) (pointing out that postjudgment interest on attorney’s fees assessed for prevailing party in a civil rights action, under 42 U.S.C. §§ 1983 and 1988, parallels practice with respect to ordinary money judgments and that “[i]f, in the end, fees awarded as reasonable were paid after delays, net of interest, the effect as a practical matter would be to reduce those fees by indeterminate amounts without an explicable logic”). We find further support for this approach in Federal practice. Compare id. at 748 (citing cases); Mill Pond Assocs. v. E & B Giftware, Inc., 751 F. Supp. 299, 303 (D. Mass. 1990). 2. Punitive damages. Both the postjudgment interest statute, G. L. c. 235, § 8, and the prejudgment interest statute, G. L. c. 231, § 6B, are silent with respect to interest on punitive damages. Our court has ruled that prejudgment interest compensates a prevailing party for loss of use of money, and that such compensatory purpose would not be served by adding prejudgment interest to punitive damages. Makino, U.S.A., Inc. v. Metlife Capital Credit Corp., 25 Mass; App. Ct. 302, 320-321 (1988) . The defendants argue by analogy that postjudgment interest therefore should not be awarded on punitive damages. The plaintiff relies on Fontaine v. Ebtec Corp., 415 Mass. 309, 326-328 (1993), in which a Superior Court jury found for the plaintiff on claims of age discrimination under G. L. c. 151B, § 4(1B), and under the Federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq. (1988), and awarded actual and liquidated damages. Id. at 310-311. The Supreme Judicial Court, treating the liquidated damages under the Federal statute as “essentially punitive in nature,” id. at 321, ordered an award of postjudgment interest pursuant to G. L. c. 235, § 8. Drawing on Fontaine and the plain language of § 8, making it applicable to “[ejvery judgment for the payment of money,” we conclude the plaintiff here similarly is entitled to postjudgment interest on the punitive damages award. 3. Appellate attorney’s fees. Without a directive from this court, the Superior Court had no authority to award appellate attorney’s fees and costs. Patry v. Liberty Mobilehome Sales, Inc., 394 Mass. 270, 272 (1985). The plaintiff does not deny she failed to request these fees in her brief in the prior appeal to this court, contrast Yorke Mgmt. v. Castro, 406 Mass. 17, 18, 20 (1989) , but argues that because that appeal was decided without oral argument she had no opportunity to request fees at that time and that the issue, therefore, properly was before the trial court. She offers no citation or persuasive rationale in support of that argument. Nor does she argue that G. L. c. 151B, § 9, mandates the award of appellate attorney’s fees at this time. Compare Powers v. H.B. Smith Co., 42 Mass. App. Ct. at 667. Accordingly, we vacate the order awarding appellate attorney’s fees and affirm the award of postjudgment interest with respect to punitive damages and trial attorney’s fees and costs. We deny the plaintiff’s request for her costs and attorney’s fees in this and her previous appeal. See Anthony’s Pier Four, Inc. v. HBCAssocs. 411 Mass. 451, 476 n.27 (1991). So ordered. The defendants make no argument in their appellate brief that postjudgment interest on costs should not have been allowed. The issue is therefore waived. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). In International Totalizing Sys. Inc., supra, this court relied on Patry v. Liberty Mobilhome Sales, Inc., 394 Mass. 270, 272 (1985), in ruling that interest on attorney’s fees should be calculated from the time of judgment and not from the time the complaint was filed. We believe this is a correct interpretation of the statement in Patry that “[n]o interest should have been allowed on the amount of trial court attorney’s fees.” Ibid. Review of the procedural background of the Patry case, including its three sojourns in this court, leads us to conclude that the Supreme Judicial Court’s rejection of the trial judge’s order in 1983 that interest be added to the 1981 award of attorney’s fees “from the date of the award,” id. at 271, may fairly be read as addressed solely to prejudgment interest on attorney’s fees. See, e.g., Mill Pond Assocs. v. E & B Giftware, Inc., 751 F. Supp. 299, 302 (D. Mass. 1990).

Rehearing Denied March 5, 1999: Morris v Clawson Tank Company, No. 108659. Reported ante, 256. Weaver, C.J. I would grant rehearing. Young, J. I would grant rehearing. I believe that the Court’s opinion is inconsistent with the settled mitigation law of Michigan and the federal courts. While this Court accurately noted that the duty of mitigation obligates a claimant to avoid unemployment or underemployment, 459 Mich 256, 264 (1998), it nonetheless held that such a claimant had no duty to seek employment of a “like nature” in order to satisfy the duty of mitigation. This Court’s opinion conflates the principle that a claimant need not take an “unacceptable job” with the core mitigation duty to “use such means as are reasonable under the circumstances to avoid or minimize the damages.” Shiffer v Gibraltar School Dist Bd of Ed, 393 Mich 190, 197 (1974). There is no inconsistency between requiring a claimant reasonably to seek employment to minimize avoidable damages and requiring a claimant to seek employment “like” that which was discriminatorily refused. To the extent that the measure of damages remains the job from which a claimant was discriminatorily excluded, removing the obligation to seek like employment introduces an inappropriate asymmetry in the basic mitigation doctrine. Such a duty to seek like employment clearly serves the fundamental mitigation obligation reasonably to reduce avoidable damages. The duty to seek like employment does not as this Court’s opinion suggests place an undue burden on a claimant who has been discriminatorily denied employment in the first instance. It is the reasonableness of that effort that is at issue if the defendant chooses to contest mitigation, and the defendant bears the burden of demonstrating a failure of mitigation. Riethmiller v Blue Cross & Blue Shield of Michigan, 151 Mich App 188, 191 (1986). Here, plaintiff obtained only seasonal employment and stipulated on the record that he did not actively seek full time employment thereafter. Thus, the issue was whether plaintiff had fulfilled his duty of mitigation by merely seeking and obtaining seasonal employment and abandoning efforts to obtain year-round employment similar to that from which he was wrongfully discharged by his employer. In contrast with this Court’s opinion, I find nothing in the earlier reported employment discrimination cases of this state or the federal courts suggesting that a claimant may remain wilfully underemployed and satisfy the obligation to mitigate. Thus, this Court’s holding that plaintiff was not obligated to seek “like employment” is not only logically inconsistent with the general mitigation principle, but it actively subverts the primary mitigation duty reasonably to avoid damages. Moreover, as stated, I believe the Court’s holding is at variance with the established case law of Michigan and the federal courts. See Brewster v Martin Marietta Aluminum Sales, Inc, 145 Mich App 641, 663 (1985); Riethmiller v Blue Cross & Blue Shield of Michigan, supra at 191. See also Ford Motor Co v EEOC, 458 US 219, 231-232 (1982).

BARNEY HUANG, Plaintiff v. THOMAS J. ZIKO, BECKY R. FRENCH, BRUCE R. POULTON, THE BOARD OF GOVERNORS OF THE UNIVERSITY OF NORTH CAROLINA AND CONSTITUENT INSTITUTION, NORTH CAROLINA STATE UNIVERSITY, Defendants No. COA98-352 (Filed 16 February 1999) Statute of Limitations— tolling — federal action The trial court did not err by allowing defendant’s motion for summary judgment on the basis of the statute of limitations where plaintiff pursued through the state and federal courts claims arising from his dismissal as a university professor following charges of attempted second-degree rape and assault on a female; assuming that plaintiffs claims accrued when defendant Board affirmed his dismissal on 9 February 1990, plaintiff ordinarily would have had until 9 February 1993 to file his complaint in state court; plaintiff did not file his claim in state court until 22 May 1996 and his claims were time barred unless the statute of limitations was tolled; no statute or rule provides for the exclusion of the time during which the federal action was pending from the limitations period; and, because North Carolina has no applicable “grace period” longer than the thirty-day period set out in 28 U.S.C.A. § 1367, the statute of limitations was tolled while the federal action was pending and for thirty days thereafter. Plaintiff could have filed his complaint in state court at any time during the pendency of the federal action and up to thirty days after the United States Court of Appeals reached its decision on 7 December 1995. Appeal by plaintiff from judgment entered 16 February 1998 by Judge Stafford G. Bullock in Wake County Superior Court. Heard in the Court of Appeals 25 January 1999. Kenneth N. Barnes for plaintiff-appellant. Attorney General Michael F. Easley, by Special Deputy Attorney General David Roy Blackwell, for defendants-appellees. TIMMONS-GOODSON, Judge. Prior to his dismissal, plaintiff was a tenured professor in the Department of Biological and Agricultural Engineering at North Carolina State University (hereinafter “defendant University”). In June 1988, plaintiff was charged with attempted second-degree rape and assault on a female. On 14 July 1988, defendant Bruce R. Poulton, then chancellor of defendant University, issued a notice of intent to discharge letter to plaintiff suspending him from his duties and terminating his salary as of 1 January 1989. Plaintiff requested a hearing on his dismissal pursuant to the Code of the Board of Governors of the University of North Carolina (hereinafter “defendant Board”). Following a hearing and recommendation by a Faculty Hearing Committee that plaintiff be removed from the faculty, defendant Poulton dismissed plaintiff effective 7 February 1989. Plaintiff appealed to defendant University’s Board of Trustees and, then, to defendant Board. Defendant Board ultimately affirmed the Board of Trustees’ decision on 9 February 1990. Plaintiff appealed to the superior court, which reversed his dismissal. This Court affirmed the superior court’s reversal of plaintiff’s dismissal, but the Supreme Court reversed this Court’s decision and upheld plaintiff’s dismissal. In re Dismissal of Huang, 336 N.C. 67, 441 S.E.2d 696 (1994). Prior to exhausting his administrative remedies, plaintiff filed a complaint in superior court against defendant University and defendant Poulton for breach of contract and intentional infliction of emotional distress. The trial court granted summary judgment for defendants on the emotional distress claim and for plaintiff on the contract claim. Defendants appealed to this Court, which reversed the trial court’s summary judgment for plaintiff on the ground that he had an adequate remedy for breach of contract in the administrative appeal of his discharge. Huang v. N.C. State University, 107 N.C. App. 710, 421 S.E.2d 812 (1992). On 21 June 1991, plaintiff filed a complaint in the United States District Court for the Eastern District of North Carolina against defendants Thomas J. Ziko, Becky R. French, Poulton, Board, and University. In the complaint, he alleged federal claims of civil rights violations, Title VII violations, free speech violations, and age discrimination. He alleged state claims of due process and equal protection. Defendants filed a motion for summary judgment. On 11 January 1993, the United States District Court granted defendants’ motion for summary judgment with respect to all federal claims. As to plaintiff’s state claims, the court ruled as follows: Because all the federal claims have been dismissed against defendants in this action, the court dismisses without prejudice the remaining pendent state claims plaintiff has asserted under the North Carolina Constitution. In view of this, the court is divested of jurisdiction to entertain these claims, and plaintiff is left to pursue these matters in state court. Plaintiff appealed to the United States Court of Appeals for the Fourth Circuit. On 7 December 1995, the Court of Appeals affirmed the lower court’s decision in an unpublished per curiam opinion. Huang v. French, 73 F.3d 357 (4th Cir. 1995). On 22 April 1996, the United States Supreme Court denied plaintiffs petition for a writ of certiorari. Huang v. French, 517 U.S. 1157, 134 L. Ed. 2d 649 (1996). On 22 May 1996, plaintiff filed a complaint in the superior court seeking compensatory and punitive damages from defendants for breach of contract, due process violations, malicious prosecution, intentional infliction of emotional distress, civil conspiracy, and constructive fraud. Defendants subsequently filed an answer that included a motion to dismiss and alternative motion for summary judgment. Defendants asserted as an affirmative defense that each of plaintiffs claims was barred by a three-year statute of limitations. On 16 February 1998, the trial court granted defendants’ motion for summary judgment. The trial court ruled that “[t]he statute of limitations bars each and every one of the Plaintiff’s claims.” Plaintiff appeals. Plaintiff argues that the trial court erred by granting defendants’ motion for summary judgment. He contends that the statute of limitations had not run at the time he filed his complaint. We disagree. The parties agree that each of plaintiff’s claims was subject to a three-year statute of limitations. Assuming arguendo that plaintiff’s claims accrued when defendant Board affirmed his dismissal on 9 February 1990, plaintiff ordinarily would have had until 9 February 1993 to file his complaint in state court. Because plaintiff did not file his complaint in state court until 22 May 1996, his claims were time-barred, unless the statute of limitations was tolled. As the parties recognize, “filing an action in federal court which is based on state substantive law . . . toll[s] the statute of limitations while that action is pending.” Clark v. Velsicol Chemical Corp., 110 N.C. App. 803, 808, 431 S.E.2d 227, 229 (1993), aff’d per curiam, 336 N.C. 599, 444 S.E.2d 223 (1994). The parties agree that plaintiff’s federal action was no longer pending for the purpose of tolling the statute of limitations when the United States Court of Appeals reached its decision on 7 December 1995. See Clark, 110 N.C. App. 803, 431 S.E.2d 227 (holding that because a petition for writ of cer-tiorari to the United States Supreme Court is not an appeal of right, the federal action is not alive for the purpose of tolling the statute of limitations while a decision to allow or deny such a petition is pending). However, the parties disagree as to whether plaintiff had additional time to file his complaint in state court after the United States Court of Appeals reached its decision. Plaintiff contends that once the federal action was no longer pending, the time for filing his complaint in state court should have been extended for the portion of the three-year limitations period that had not been used when he filed the federal action. Since less than a year and a half had passed when plaintiff filed his federal action, he would have had more than a year and a half after 7 December 1995 to file his complaint in state court. Plaintiff’s contention is untenable. The rule which plaintiff would have this Court adopt is contrary to the policy in favor of prompt prosecution of legal claims. Furthermore, such a rule is contrary to the general rule that “[i]n the absence of statute, a party cannot deduct from the period of the statute of limitations applicable to his case the time consumed by the pendency of an action in which he sought to have the matter adjudicated, but which was dismissed without prejudice as to him[.]” 51 Am. Jur. 2d Limitation of Actions § 311 (1970). In this case, no statute or rule provides for the exclusion of the time during which the federal action was pending from the limitations period. We likewise find unpersuasive defendants’ contention that the statute of limitations was tolled only until the United States Court of Appeals reached its decision and that plaintiff had no additional time to file his complaint in state court. We believe the question presented by this appeal is controlled by 28 U.S.C.A. § 1367 (1993). See Kolani v. Gluska, 75 Cal. Rptr. 2d 257 (1998); Roden v. Wright, 611 So. 2d 333 (Ala. 1992). That federal statute provides that when a federal district court has original jurisdiction over a civil action it may also exercise “pendent” or “supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy[.]” 28 U.S.C.A. § 1367(a). A federal district court may decline to exercise supplemental jurisdiction over a claim if it “has dismissed all claims over which it has original jurisdiction].]” 28 U.S.C.A. § 1367(c)(3). The statute further provides that the period of limitations for any supplemental claim “shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.” 28 U.S.C.A. § 1367(d). Since the claims now asserted by plaintiff were supplemental claims dismissed by the United States District Court, he was entitled to thirty additional days to file his complaint in state court after the United States Court of Appeals reached its decision, unless some state statute provided for a longer period of time. Rule 41(b) of the North Carolina Rules of Civil Procedure provides a savings provision for claims that have been involuntarily dismissed: If the court specifies that the dismissal of an action commenced within the time prescribed therefor, or any claim therein, is without prejudice, it may also specify in its order that a new action based on the same claim may be commenced within one year or less after such dismissal. N.C. Gen. Stat. § 1A-1, Rule 41(b) (1990). Assuming arguendo that Rule 41(b) could apply in this case, the United States District Court did not specify in its order that a new action based on the same claims could be commenced within one year after the dismissal. See Bockweg v. Anderson, 328 N.C. 436, 402 S.E.2d 627 (1991). Therefore, the time for plaintiff to file his complaint in state court was not extended for an additional year. Because North Carolina has no applicable “grace period” longer than the thirty-day period set out in 28 U.S.C.A. § 1367, the statute of limitations was tolled while the federal action was pending and for thirty days thereafter. Plaintiff could have filed his complaint in state court at any time during the pendency of the federal action and up to thirty days after the United States Court of Appeals reached its decision on 7 December 1995. Plaintiffs complaint, filed on 22 May 1996, was not timely filed, and the trial court did not err by allowing defendants’ motion for summary judgment. The summary judgment entered by the trial court is affirmed. Affirmed. Judges GREENE and HUNTER concur.

LAMORIA v HEALTH CARE & RETIREMENT CORPORATION Docket No. 199795. Submitted October 15, 1998, at Lansing. Decided January 29, 1999, at 9:10 A.M. Barbara A. Lamoria brought an action in the Saginaw Circuit Court against Health Care & Retirement Corporation and others, seeking damages for her alleged wrongful discharge from her employment as a registered nurse at a retirement home owned by the corporate defendant. Among the theories of recovery pleaded by the plaintiff were violation of the state Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., violation of the state Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq., and retaliation for the plaintiffs seeking worker’s compensation benefits. The plaintiff had injured her knee in the course of her employment and was discharged from her employment eleven months after her injury while she was still on an extended medical leave related to the knee injury, allegedly on the basis of an employment policy providing that medical leaves of absence were not to exceed six months. The plaintiff alleged that the defendant’s’ failure to extend her medical leave violated the provisions of the hcra because by such failure the defendant failed to malee reasonable accommodation for the handicap that she suffered as a result of her injured knee. The court, Leopold P. Borrello, J., granted summary disposition for the defendants with respect to all of the plaintiff’s claims, finding that the plaintiff did not have a valid claim under the hcra because the alleged handicap was related to the plaintiff’s ability to do her job and that the defendants were not required to give the plaintiff more time to heal. The plaintiff appealed. The Court of Appeals, O’Connell and Whitbeck, JJ. (Fttzserald, P.J., concurring), in an opinion released July 10, 1998, reversed the trial court’s grant of summary disposition with respect to the claims alleging violation of the Civil Rights Act and retaliation for filing a worker’s compensation claim on the basis that there were contested issues of material fact and reversed with respect to the hcra claim on the basis that it was required by MCR 7.215(H) to follow the holding in Rymar v Michigan Bell Telephone Co, 190 Mich App 504 (1991), although the majority opinion expressed disagreement with the holding in Rymar. 230 Mich App 801, 812-817 (1998). By its order of July 24, 1998, the Court of Appeals vacated the July 10 opinion and convened a special panel pursuant to MCR 7.215(H) to resolve the conflict between the position taken by the panel in the Lamoria opinion and the position taken by the panel in the Rymar opinion. 230 Mich App 801 (1998). After consideration by the conflict resolution panel, the Court of Appeals held: The majority opinion in Lamoria properly concluded that the hcra does not require that an employer allow a disabled employee a reasonable time to heal before applying the provision in the hcra that limits its application to handicaps that are unrelated to an employee’s ability to perform the duties of a particular job or position. Accordingly, the trial court’s grant of summary disposition for the defendants with respect to the plaintiffs hcra claim must be affirmed. In all other respects, the opinion of the prior Lamoria panel is adopted. Affirmed in part and reversed in part. Cavanagh, J., concurring, stated that the “reasonable time to heal” doctrine is too vague to give either employers or employees any meaningful guidance. Civil Rights — Handicappers’ Civil Rights Act — Temporary Disabilities — Employment Discrmnation. A person who is unable to perform the duties of a particular position because of a temporary disability, even if that disability could be remedied within a reasonable period so that the person would be able to perform those duties, does not have a handicap for which that person may seek the protections against employment discrimination provided by the Handicappers’ Civil Rights Act (MCL 37.1101 et seq.; MSA 3.550[101] et seq.). Howard & Howard Attorneys, P.C. (by Michael J. Brown), for the plaintiff. Kienbaum Opperwall Hardy & Pelton, P.L.C. (by Eric J. Pelton and Noel D. Massie), for the defendants. Amicus Curiae: Clark Hill P.L.C. (by Duane L. Tamacki and J. Walker Henry), for Michigan Manufacturers Association. Before: Corrigan, C.J., and Kelly, Gribbs, McDonald, Doctoroff, Cavanagh, and Markey, JJ. Per Curiam. This Court convened this special panel under MCR 7.215(H)(3) to resolve the conflict between the prior vacated opinion in this case, Lamoria v Health Care & Retirement Corp, 230 Mich App 801; 584 NW2d 589 (1998), and Rymar v Michigan Bell Telephone Co, 190 Mich App 504; 476 NW2d 451 (1991), regarding the “reasonable time to heal” doctrine under the Handicappers’ Civil Rights Act (HCRA), MCL 37.1101 et seq.; MSA 3.550(101) et seq. The original Lamoria panel, in compliance with MCR 7.215(H)(1), followed this Court’s holding in Rymar that an employee who on the date of his discharge is unable to perform the requirements of his job because of a disability may still have a claim under the hcra if he would have regained the capacity to do the work within a reasonable time. If not for the precedential effect of Rymar, the Lamoria majority would have affirmed the trial court’s grant of summary disposition for defendants regarding plaintiff’s HCRA claim. We agree with the Lamoria majority and hold for the reasons it expressed that the hcra does not require that an employer allow a disabled employee a reasonable time to heal. We therefore affirm the trial court’s grant of summary disposition regarding plaintiff’s HCRA claim. In all other respects, we adopt the opinion of the prior Lamoria panel as our own. Affirmed in part and reversed in part. Plaintiff, as the prevailing party, may tax costs under MCR 7.219. Judge Fitzgerald concurred, but wrote separately to express his belief that Rymar was correctly decided. Cavanagh, J. (concurring). I concur in the result reached by the majority. Even assuming that a temporary disability constitutes a handicap within the meaning of the Handicappers’ Civil Rights Act, MCL 37.1101 et seq.] MSA 3.550(101) et seq., I believe that the “reasonable time to heal” doctrine is too vague to give either employers or employees any meaningful guidance in making decisions in situations such as that presented in the instant case.

MORRIS v CLAWSON TANK COMPANY Docket No. 108659. Argued October 8, 1998 (Calendar No. 18). Decided December 28, 1998. Rehearing denied post, 1234. Matthew J. Morris lost an eye in an accident unrelated to his employment as a general laborer with the Clawson Tank Company. Although his physician certified that he was able to return to work a month later, Clawson Tank discharged him. Over the next three and a half years, Morris worked at various full- and part-time jobs. During that time, he also filed a grievance, and an arbitration panel ordered his reinstatement. When Clawson Tank refused to reinstate him, claiming no position was available, Morris brought an action in the Oakland Circuit Court, Denise Langford-Morris, J., seeking enforcement of the arbitration award and asserting a cause of action under the Handicappers’ Civil Rights Act, MCL 37.1101 et seq.-, MSA 3.550(101) et seq. He later moved to seek monetary relief only, and the court ruled that reinstatement would no longer be available and declared the ruling to be the law of the case. Clawson Tank subsequently purported to recall the plaintiff to work. Following a bench trial, the court awarded the plaintiff back and front pay. The Court of Appeals, Taylor, P.J., and Corrigan and D. A Johnston, JJ., affirmed the trial court’s finding of liability, but vacated its decision, and remanded for a substantial reduction of the back-pay award and elimination of the front-pay award. 221 Mich App 280 (1997) (Docket No. 183374). The plaintiff appeals. In an opinion by Justice Brickley, joined by Chief Justice Mallett, and Justices Cavanagh and Kelly, the Supreme Court held: The Court of Appeals utilized a legally erroneous standard in determining whether the plaintiff had properly mitigated damages. It also failed to properly observe the clearly erroneous standard in reviewing the factual findings of the trial court. When evaluated in light of the proper legal standards, the trial court’s findings were not clearly erroneous, mandating reversal of the judgment of the Court of Appeals. The circuit court did not specifically determine, however, whether the defendant met its burden of showing that the plaintiff unreasonably rejected its conditional offer of employment. Remand is required to determine whether the defendant met this burden and, therefore, whether an award of front pay is appropriate. 1. In the context of a breach of an employment contract, wrongful discharge, or discriminatory firing, mitigation of damages obligates the victim of the wrongdoing to make reasonable efforts to find employment after discharge. A back-pay award of a plaintiff who succeeds at trial is then reduced by the amount earned in mitigation. While a plaintiff may not purposefully remain unemployed or underemployed in order to maximize recoverable damages in the form of lost wages, it would be inappropriate to require him to make all efforts to eliminate the economic damages resulting from the wrongdoing. Rather, he is required only to make efforts to find employment that are reasonable under the circumstances. 2. The mitigation rule also obliges the plaintiff to accept, if offered, employment that is substantially similar to that from which the plaintiff was fired. If offered employment of a like nature is rejected, the plaintiff forfeits continuing back and front pay. The defendant bears the burden of proving that the plaintiff failed to make reasonable efforts to mitigate damages. 3. The Court of Appeals applied an erroneous rule of law in holding that the evidence showed that plaintiff’s own efforts to secure similar employment were not reasonable. It collapsed the two aspects of the doctrine of mitigation into one test: In order to mitigate damages, a plaintiff must make a reasonable, good-faith effort to secure “like employment,” defining like employment as work similar in type, hours, wages, tenure, and working conditions. There is no reason to require a plaintiff to search for like employment, as defined by the Court of Appeals, in an effort to mitigate damages. The sole interest of the defendant, the courts, and the public, in the type of employment sought by the plaintiff in mitigation is the interest those parties have in avoiding unnecessary economic loss. Thus, while a defendant may object to the reasonableness of the amount of compensation typical of the jobs sought in mitigation, work conditions and type of work are relevant only to the job seeker. There is no requirement that the plaintiff find employment with compensation equivalent to that of the job lost. The Court of Appeals standard is particularly inappropriate, given that the Handicapper’s Civil Rights Act, like the Civil Rights Act and title vii of the federal Civil Rights Act, is a remedial act, the primary goal of which is to end discrimination. The plaintiff was not required to find a job that was reasonably similar to the one that he held with the defendant; rather, the relevant question is whether the plaintiff made reasonable efforts to mitigate damages. The trial judge properly stated the allocation of the burden of proof, and found that the defendant failed to meet that burden. 4. The Court of Appeals holding, that after the plaintiff basically stopped looking for work his back-pay award should have been cut off, relies on a misapplication of the principles of the doctrine of mitigation. Determining the reasonableness of a job search is a fact-laden inquiry that relies upon determinations of credibility far more within the competence of the trial court than within the competence of an appellate court. The extent to which a plaintiff continues a job search after finding employment simply is one of many facts to be taken into consideration by the factfinder. A defendant must show that the plaintiff failed to make an honest, good-faith effort to secure employment; showing that more exhaustive efforts could have been made is not sufficient. In this case, the trial court’s finding, that the plaintiff made reasonable efforts to mitigate damages, was not clearly erroneous. 5. Where an employer makes an offer of reinstatement to a plaintiff, the court must first determine whether the reinstatement offer is conditional or unconditional. The second step is to assess whether a rejection is reasonable. The first step involves a question of law for the court, while the question of reasonableness is one of fact. The Court of Appeals statement of the law was error, because it implies that acceptance of offered reinstatement is in some way meaningfully different from acceptance of like employment from another employer. The defendant’s reinstatement offer was conditional in this case, but the Court of Appeals ignored the dispute between the parties over whether the job offer in fact was legitimate, or, rather, merely a trial tactic. Because the trial court did not document its findings regarding the reasonableness of the rejection, remand to the circuit court is required for a specific finding in that regard. 6. There was no clear error in the trial court’s factual findings. Justice Weaver, joined by Justice Boyle, concurring, stated that the doctrine of mitigation requires the victim of wrongdoing to make reasonable efforts to mitigate damages or forfeit the right to back pay. Further, and pursuant to the doctrine of mitigation, where the victim of wrongdoing refuses an offer of like employment, the right to continuing back pay and front pay also is forfeited. Because the trial court’s award of back pay after August 1990 was not clearly erroneous, it should be reinstated. The plaintiff’s receipt of disability from September 1989 through February 1990 does not preclude a concurrent award of back pay, although the trial court correctly reduced the back pay award by the amount of disability payments. Remand is necessary, however, to determine whether the plaintiffs rejection of the September and October 1992 job offers was reasonable. If the defendant demon-states that the plaintiff’s rejection was unreasonable, the plaintiff is entitled to neither back pay nor front pay after October 1992. It remains unclear whether the trial court correctly applied the doctrine of mitigation to the front pay award. The facts of the case may support a modified award of front pay after plaintiff accepted a substantially similar position in February 1993. While there is an obligation to mitigate future damages, the record does not adequately reflect whether the trial court properly considered the mitigation principles with respect to future damages. It remains to be determined what constitutes future damages. Thus, the case should be remanded not only to determine whether the plaintiff was reasonable in rejecting the defendant’s September and October job offers but also to reexamine the issue of front pay. Reversed and remanded. Justice Taylor took no part in the decision of this case. Otis M. Underwood, Jr., for the plaintiff-appellant. Karl Reibel for the defendant-appellee. Brickley, J. We are called upon to determine the scope of the plaintiffs duty to mitigate damages in the context of a discriminatory discharge suit under the Handicappers’ Civil Rights Act. MCL 37.1101 et seq.\ MSA 3.550(101) et seq. i The plaintiff was employed as a general laborer by the defendant, a manufacturer of underground storage and waste tanks. The plaintiff lost an eye on August 13, 1989, in an incident not related to his work at Clawson Tank. He reported back to Clawson Tank one month later with a note from his physician stating that he was able to return to work. At this point, however, he was discharged by the defendant. With the encouragement and assistance of the defendant, the plaintiff began receiving payments under disability insurance. He continued to receive disability payments for about five months following his discharge. The plaintiff began to search for other work almost immediately after he was fired. For six months in 1990, he held a temporary job at Cranbrook School, earning $6 an hour. In August of 1990, he began working for the Barkman Landscaping Company, earning $5 an hour and often working in excess of forty hours a week. This was a seasonal job, so the plaintiff was out of work in the winter, but was rehired by Barkman the next year and in 1992 as a supervisor earning $6 an hour. Between August 1991 and February 1993, the plaintiff made approximately fifty job inquiries to landscape companies, gas stations, and similar employers. During this period, the plaintiff held several short-term, odd jobs in addition to those already described. In February 1993, the plaintiff began working in a full-time, permanent position at Cranbrook School as a janitor earning $7.46 an hour, along with health care, pension, and other benefits. During the period following his discharge, the plaintiff was also pursuing legal remedies. The plaintiff filed a grievance, seeking reinstatement at Claw-son Tank, and, on January 20, 1990, an arbitration panel ordered that he be reinstated, as long as his rehiring would not displace employees of greater seniority. The defendant claimed that no such position was available, and refused to reinstate the plaintiff. The plaintiff then filed a lawsuit, seeking to enforce the arbitration award. On September 11, 1991, the trial court allowed the plaintiff to amend his complaint to assert a cause of action under the Handicappers’ Civil Rights Act. On August 17, 1992, the plaintiff stated at a motion hearing that, because of the increasing hostility of the litigation, and the lack of trust between the parties, he would only be seeking monetary relief, and no longer wanted reinstatement at Clawson Tank. Thus, the court ruled that reinstatement was no longer an available remedy, and on October 28, 1992, the circuit judge declared this ruling to be the law of the case. The plaintiff did not amend his complaint to correspond with this ruling. On September 18, 1992, and on October 23, 1992, the defendant mailed letters to the plaintiff, purportedly recalling him to work. The plaintiff did not respond to these letters, and the parties dispute whether the job offered actually existed and, if so, whether it was actually available to the plaintiff. A bench trial in the circuit court began in April 1994. The court heard testimony regarding the plaintiffs efforts to find work after his firing, both from the plaintiff and from the defendant’s experts. The court also heard testimony from both sides regarding the genuineness of the defendant’s September/October 1992 job offer to the plaintiff. The plaintiff’s expert presented evidence that the amount of back pay lost by the plaintiff was $46,729, and that the amount of front pay lost by the plaintiff was $76,516. In January 1995, the trial court ruled for the plaintiff, finding that he had fulfilled his duty to mitigate damages and awarded him $130,439. The Court of Appeals affirmed the trial court’s finding of liability, but vacated its decision, remanding the case for a substantial reduction of the plaintiff’s back-pay award, and elimination of his front-pay award. 221 Mich App 280; 561 NW2d 469 (1997). In reaching this conclusion, the Court of Appeals articulated a number of specific holdings. The panel held that the trial court’s award of back pay for the period between October 1989 and February 1990 was clearly erroneous because the plaintiff was receiving disability benefits; therefore, “plaintiff admitted that he was disabled” during this period. 221 Mich App 287. Because the plaintiff was still disabled, there could not yet have been an “act of discrimination” by the defendant justifying damages. Id. For the period between February 1990 and August 1990, the Court of Appeals held that the trial court’s award of back pay was not clearly erroneous, “because the trial court found credible plaintiff’s claim that he was also looking for comparable employment.” Id., p 288, citing MCR 2.613(C). The Court of Appeals further held that “the trial court should have cut off back pay in August 1990, when plaintiff took a seasonal job paying $5 an hour at a landscaping company and admittedly stopped seeking other employment.” Id., p 288 (emphasis in the original). The trial count’s award of front pay was, according to the Court of Appeals, clearly erroneous on two grounds. First, the defendant’s September/October 1992 offer of employment to the plaintiff was unreasonably refused by the plaintiff. Such a refusal forfeits the plaintiff’s right to front pay. Id., pp 290-291, citing Rasheed v Chrysler Corp, 445 Mich 109, 132; 517 NW2d 19 (1994). Second, “the trial court’s award of front pay for the period after February 1993, when plaintiff obtained like employment, was clearly erroneous because plaintiff incurred no damages after that time.” Id., p 291. Plaintiff sought leave to appeal to this Court, and we granted leave. 457 Mich 853 (1998). We now reverse the Court of Appeals decision as set forth below. n Mitigation of damages is a legal doctrine that seeks to minimize the economic harm arising from wrongdoing. “Where one person has committed a tort, breach of contract, or other legal wrong against another, it is incumbent upon the latter to use such means as are reasonable under the circumstances to avoid or minimize the damages. The person wronged cannot recover for any item of damage which could thus have been avoided.” [Shiffer v Gibraltar School Dist Bd of Ed, 393 Mich 190, 197; 224 NW2d 255 (1974) (quoting McCormick, Damages, § 33, p 127).] In the context of a breach of an employment contract, wrongful discharge, or discriminatory firing, mitigation of damages obligates the victim of the wrongdoing to make reasonable efforts to find employment after discharge. Id. The plaintiffs back-pay award, if he succeeds at trial, is then reduced by the amount that he earned in mitigation. See EEOC v Harper Grace Hospitals, 689 F Supp 708, 716 (ED Mich, 1988). Such a plaintiff may not purposefully remain unemployed or underemployed in order to maximize recoverable damages in the form of lost wages. It must be remembered, however, that the plaintiff here was wrongfully discriminated against when he was fired by the defendant. 221 Mich App 284-286. It would be inappropriate to require him to make all efforts to eliminate the economic damages resulting from the wrongdoing. Rather, he is only required to make efforts that are reasonable under the circumstances to find employment. Rasheed, supra, p 124. A plaintiff who does not make such efforts loses the right to claim full back pay as damages. Id. This Court has noted that “a claimant required to make reasonable efforts to mitigate damages is not held to the highest standards of diligence. . . . ‘[T]he claimant’s burden is not onerous, and does not require him to be successful in mitigation.’ ” Rasheed, supra, p 123, quoting Rasimas v Dep’t of Mental Health, 714 F2d 614, 624 (CA 6, 1983), cert den 466 US 950 (1984). The mitigation rule also obliges the plaintiff to accept, if offered, employment that is substantially similar to that from which the plaintiff was fired. See Ford Motor Co v EEOC, 458 US 219, 231-232; 102 S Ct 3057; 73 L Ed 2d 721 (1982). This aspect of the mitigation rule balances the interest of the plaintiff in not being forced to accept an unacceptable job in order to maintain his right to back pay, against the interests of the defendant and the public in avoiding unnecessary economic loss. As the United States Supreme Court has explained, the mitigation requirement cannot be construed to force a plaintiff to accept employment that he or she finds demeaning, particularly inconvenient, or otherwise unacceptable. [T]he unemployed or underemployed claimant need not go into another line of work, accept a demotion, or take a demeaning position, [but] he forfeits his right to backpay if he refuses a job substantially equivalent to the one he was denied. [Ford Motor Co, supra, pp 231-232.] Thus, in order to mitigate damages, the plaintiff must make efforts that are reasonable under the circumstances to minimize the economic harm caused by the wrongdoer; and, if offered employment of a “like nature,” the plaintiff forfeits further back-pay awards by turning it down. Significantly, “the question whether an employee was reasonable in not seeking or accepting particular employment is one to be decided by the trier of fact.” Rasheed, supra, p 124, citing Riethmiller v Blue Cross & Blue Shield of Michigan, 151 Mich App 188, 194-195; 390 NW2d 227 (1986). The defendant bears the burden of proving that the plaintiff failed to make reasonable efforts to mitigate damages. Rasheed, supra, p 124. If the plaintiff was offered “like employment” and turned it down, the burden of proving this is likewise on the defendant. Id. In light of these principles, we now examine the holdings of the Court of Appeals. A As is made evident from this discussion of the doctrine of mitigation of damages, the Court of Appeals applied an erroneous rule of law in holding that “the evidence showed that plaintiff’s own efforts to secure similar employment were not reasonable.” 221 Mich App 287. The Court of Appeals erred in collapsing the two aspects of the doctrine of mitigation into one test: “In order to mitigate damages, a plaintiff must make a reasonable, good-faith effort to secure ‘like’ employment.” Id. The Court of Appeals defined “like employment” as “work that is similar in type, hours, wages, tenure, and working conditions.” Id. We find no reason to require a plaintiff to search for “like employment,” as defined by the Court of Appeals, in an effort to mitigate damages. The sole interest of the defendant, the courts, and the public, in the type of employment sought by the plaintiff in mitigation is the interest those parties have in avoiding unnecessary economic loss. See Shiffer, supra, p 197, “The principle of mitigation is a thread permeating the entire jurisprudenc