Discrimination Cases

CHMIELEWSKI v XERMAC, INC Docket No. 106499. Argued January 7, 1998 (Calendar No. 15). Decided June 9, 1998. Gary P. Chmielewski brought an action in the Oakland Circuit Court under the Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq., against his former employer, Xermac, Inc., alleging that his employment was terminated to avoid continued health insurance premium increases caused by a liver transplant and the need to take costly antirejection medication. He further alleged wrongful discharge pursuant to Touissant v Blue Cross & Blue Shield, of Michigan, 408 Mich 579 (1980). The court, Francis X. O’Brien, J., dismissed the wrongful discharge claim because the plaintiff was an employee at will. Thereafter, he entered judgment on a jury verdict for the defendant. The Court of Appeals, Mackenzie, P.J., and J. P. O’Brien, J. (Fitzgerald, J., concurring in part and dissenting in part), affirmed, holding that the trial court did not err in refusing to instruct the jury that it should consider the plaintiff’s condition without the benefit of his antirejection medication. Nor did the trial court err in allowing evidence regarding the plaintiff’s alcoholism and the defendant’s economic condition (Docket No. 162968). The plaintiff appeals. In an opinion by Chief Justice Mallett, joined by Justices Brickley, Boyle, Weaver, and Taylor, the Supreme Court held-. Because the plain language of the Handicappers’ Civil Rights Act requires that a person actually have a determinable characteristic that substantially limits a major life activity, the trial court did not err in refusing to give the plaintiffs requested special jury instruction. Nor did the court err in admitting evidence of the plaintiff’s alcoholism and the defendant’s economic condition. 1. The Handicappers’ Civil Rights Act prohibits discrimination against persons because of handicapped status and mandates their employment to the fullest extent reasonably possible. To prove discrimination, a plaintiff must show a handicap as defined in the act, that the handicap is unrelated to the ability to perform job duties, and discrimination as delineated in the statute. To be handicapped, a person must have a determinable physical or mental characteristic that substantially limits a major life activity unrelated to the ability to perform the duties of a particular job. Handicap does not include a determinable physical or mental characteristic caused by the use of alcohol, if that physical or mental characteristic prevents a person from performing the duties of the job. 2. A person’s handicapped status should be examined as it exists presently, case by case. By limiting the act’s protection to persons having conditions that actually impose substantial limitations, the standard for determining a handicap preserves the high purpose of the act. If the burdens associated with the use of medications, prosthetic devices, or other mitigating measures are sufficiently great, the definition will be met. Courts must carefully analyze each person and must not categorically apply the definition to a given diagnosis. In this case, the plaintiff’s condition, examined as it exists with the benefit of antirejection medication, reveals no limitation of any major life activity. Thus, the plaintiff is not handicapped. Because the law requires the factfinder to assess a person’s condition as it actually exists, the trial court did not err in refusing to give the plaintiff’s requested instruction. S. The trial court also did not err in admitting evidence of the plaintiff’s alcoholism and of the defendant’s financial status. The evidence of alcoholism was relevant to whether his condition met the act’s definition of handicap and to the issue of damages, and the court cautioned the jury regarding the appropriate use of the evidence. The probative value of the evidence was not substantially outweighed by its prejudicial effect. The evidence of the defendant’s financial condition tended to disprove that the plaintiff was fired because of his alleged handicap. Affirmed. Justice Kelly, joined by Justice Cavanagh, dissenting, stated that the failure of the trial court to give plaintiff’s proposed instruction resulted in substantial injustice. If a jury is to perform its function properly, it must receive correct instructions regarding the law on the effect of mitigating measures. Generally, a decision that an instruction is accurate and applicable to a case is within the sound discretion of the trial court. While a trial court has the discretion to give an instruction not included in the Standard Jury Instructions, that discretion is limited by the duty to assure that the instructions given accurately state the law. When assessing handicap status under Michigan’s Handicappers’ Civil Bights Act, a court should consider a person’s condition as it would exist without regard to medication or other mitigating measures. Factors to be considered are the nature of the impairment, its severity, its duration or expected duration, and its long-term effect. The existence of an impairment should be determined without regard to mitigating measures such as medicines. Merely because plaintiff in this case is able to control his condition with medication does not mean that the condition does not substantially limit a major life activity. The requested jury instruction simply clarified that control of a determinable physical condition with medication does not disqualify an otherwise qualified person from handicap status. By narrowing the class of persons qualified as handicapped, the majority contracts the intent of the Legislature in enacting the hcra. 216 Mich App 707; 550 NW2d 797 (1995) affirmed. Malley & Fett, P.C. (by James K. Fett and Marla A. Linderman), for the plaintiff. Kerr, Russell & Weber, PL.C. (by Daniel G. Beyer and Joseph K Grekin), for the defendant. Amicus Curiae: Stewart R. Hakola, Mary J. Michalak, and Gayle C. Rosen, for Michigan Protection & Advocacy Service. Mat,lett, C.J. This Handicappers’ Civil Rights Act suit involves the question whether, in considering if a person has a condition that meets the act’s definition of “handicap,” the trier of fact should assess the individual without the benefit of medication or other mitigating measures, or if it should assess the individual’s condition as it presently exists with the benefit of such measures. The act requires that to qualify as having a “handicap” for purposes of coming within the act’s protection, an individual must have a determinable physical or mental characteristic that substantially limits a major life activity. Plaintiff, who underwent a liver transplant and is dependent on antirejection medication, argues that the trial court erred in refusing to give the jury a special instruction to the effect that it should consider his condition without the benefit of his antirejection medication. Because we disagree and find that the requested instruction contravenes the plain language of the statute, we affirm the Court of Appeals affirmance of the jury verdict for the defendant. We also affirm the Court of Appeals holding that the trial court did not err in admitting evidence of the plaintiff’s alcoholism and of the defendant’s economic condition. i FACTS AND PROCEEDINGS The plaintiff began working as a salesperson for defendant Xermac, a supplier of sophisticated electronic machinery, in the fall of 1985. His duties also included demonstrating and installing machinery. Plaintiff is an alcoholic, although his alcoholism apparently had little or no effect on his ability to perform his job functions. His alcoholism did, however, have an effect on his liver. In 1988, plaintiff learned that he had cirrhosis of the liver and underwent a lifesaving liver transplant. He returned to his job in December, 1989, after a six-month medical leave of absence. On January 29, 1990, he signed a sales agreement, in which he agreed to a decrease in his sales territory from a multistate region to an exclusive right for sales in Michigan, an increase in his commission rate for sales, a car allowance, and sales quotas. While he had periodically signed similar agreements while with Xermac, this was apparently the first time the company had included sales quotas. When he signed the document, the plaintiff added his own comment indicating his concern about meeting the sales quotas. The plaintiff alleged at trial that his supervisors also began to criticize his work for the first time during the period after his return. In June, 1990, the defendant terminated the plaintiff’s employment, citing his failure to meet the sales quotas delineated in the January, 1990, agreement. The plaintiff brought this employment discrimination suit and later added a claim for wrongful discharge pursuant to Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980). The defendant moved for summary disposition on both claims. The trial court, finding that plaintiff was an employee at will, dismissed the Toussaint claim. The court allowed the discrimination claim to go forward, finding that there were material issues of fact regarding whether the plaintiff came within the protection of the Handicappers’ Civil Rights Act. The plaintiff’s theory at trial was that the defendant employer terminated him in violation of the hcra to avoid continued health insurance premium increases caused by the liver transplant and his need to take costly antirejection medication for the rest of his life. The plaintiff testified at trial that the plant manager, John Purrett, visited him at his home while on medical leave and informed him that Xermac’s president, Pete Schmitt, wanted to terminate him because of the increased medical insurance costs. Mr. Donald Shaver, Xermac’s general manager and the plaintiff’s immediate supervisor, also testified that at several meetings he and Mr. Schmitt had discussed the matter of the plaintiff’s medical bills contributing to the company’s increased insurance costs. The defendant countered plaintiff’s hcra suit by arguing (1) that the plaintiff does not come within the hcra’s protection because he is not handicapped, and (2) that the plaintiff was not terminated because of an alleged handicap, but because of economic necessity. Regarding the first argument, the defendant pursued two lines of defense. First, the act requires that to be handicapped one must be substantially limited in a major life activity. MCL 37.1103(e)(i)(A); MSA 3.550(103)(e)(i)(A). The defendant argued that since the lifesaving operation, the plaintiff has no limitation in any life activities and consequently cannot claim handicapped status. Second, the defendant points out that the hcra excludes from the definition of handicap, conditions caused by the use of alcohol that prevent an individual from performing the duties of his job. MCL 37.1103(f)(ii); MSA 3.550(103)(f)(ii). The defendant argued that because the plaintiffs alcoholism necessitated the liver transplant, any claimed handicap flowing from the liver transplant falls outside the act’s protection. During the trial, the plaintiff sought to exclude evidence relating to his alcoholism and cirrhosis. He argued that it was not relevant because it did not prevent him from performing his job functions and that even if it was relevant, its prejudice outweighed any probative value. The trial court disagreed and denied the plaintiff’s motion. The plaintiff also sought to exclude evidence regarding the defendant’s economic condition, arguing that the defendant was attempting to assert an economic-necessity defense and that because it did not raise this affirmative defense during discovery or in any responsive pleadings, it was waived. The trial court also denied this motion. It found that evidence of the defendant’s economic condition was relevant to disproving a required element of plaintiff’s prima facie discrimination case because the evidence tended to disprove that he was terminated because of a handicap. During closing argument, the attorneys for the plaintiff and the defendant focused the jurors’ attention on whether the plaintiff, for purposes of meeting the hcra’s definition of handicap, should be viewed with or without his antirejection medication. The plaintiff’s attorney argued that the law requires that the plaintiff’s condition be considered without the benefit of his medication and that, because he would die if he did not take his medicine, his condition met the hcra’s requirement of substantially limiting a major life activity. Conversely, the defense argued that the law required that the plaintiff’s condition be viewed as it presently existed, i.e., with the benefit of his medication. Before closing argument commenced, the plaintiff requested a special jury instruction regarding the effect of mitigating measures, such as medication, on an individual’s handicapped status. The proposed instruction was as follows: A person that has a determinable physical [characteristic] which substantially limits one or more life activities is handicapped even if the determinable physical condition is controlled with medication or medical care. The trial court refused to give the instruction, concluding that it was more appropriate to simply instruct the jury in the language of the act, without distinguishing between the plaintiff’s premedicated and postmedicated states. During deliberations, the jury sent a note to the trial judge inquiring about the relevance of the plaintiff’s dependence on medication. The court refused to comment further on the issue and instructed the jurors to rely on the evidence presented and on the instructions already given. The jury returned a general verdict for the defendant. The Court of Appeals affirmed, rejecting the plaintiffs arguments that the trial court erred in failing to give the proposed special jury instruction and in allowing evidence regarding plaintiff’s alcoholism and defendant’s economic condition. We granted leave to appeal in an unlimited grant order. n BACKGROUND The HCRA prohibits discrimination against individuals because of their handicapped status. The purpose of the act is to mandate “the employment of the handicapped to the fullest extent reasonably possible.” Allen v Southeastern Michigan Transportation Authority, 132 Mich App 533, 537-538; 349 NW2d 204 (1984). The act is remedial, and, as a remedial act, it is to be liberally construed by the courts. See Chandler v Dowell Schlumberger Inc, 456 Mich 395, 398; 572 NW2d 210 (1998); Allen, supra. Further, in interpreting provisions of the HCRA, analogous federal precedents are persuasive, although not necessarily binding. Robson v General Motors Corp, 137 Mich App 650; 357 NW2d 919 (1984), rev’d on other grounds 427 Mich 505; 398 NW2d 368 (1986). Federal courts have similarly noted that analysis of claims under the HCRA largely parallels analysis under the federal Americans with Disabilities Act. Hamlin v Flint Charter Twp, 942 F Supp 1129, 1136 (ED Mich, 1996); Fritz v Mascotech Automotive Systems Group, Inc, 914 F Supp 1481 (ED Mich, 1996). To prove a discrimination claim under the HCRA, the plaintiff must show (1) that he is handicapped as defined in the act, (2) that the handicap is unrelated to his ability to perform his job duties, and (3) that he has been discriminated against in one of the ways delineated in the statute. Ashworth v Jefferson Screw Products, Inc, 176 Mich App 737, 743; 440 NW2d 101 (1989). This case primarily involves the first element, i.e., whether the plaintiff is handicapped as defined in the act. The act, as amended in 1990, defines handicap as follows: (i) A determinable physical or mental characteristic of an individual, which may result from disease, injury, congenital condition of birth, or functional disorder, if the characteristic: (A) For purposes of article 2 [employment discrimination], substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s ability to perform the duties of a particular job or position or substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s qualifications for employment or promotion. (ii) A history of a determinable physical or mental characteristic described in subparagraph (i). (iii) Being regarded as having a determinable physical or mental characteristic described in subparagraph (i). [MCL 37.1103(e); MSA 3.550(103)(e).][] For purposes of employment discrimination under article 2 of the act, the definition of handicap does not include: A determinable physical or mental characteristic caused by the use of an alcoholic liquor by that individual, if that physical or mental characteristic prevents that individual from performing the duties of his or her job. [MCL 37.1103(f)(ii); MSA 3.550(103)(f)(ii).] The act does not specifically address mitigating measures, such as medication. Consequently, we must engage in a more detailed analysis of how such measures affect a person’s handicapped status. We turn next to this issue and will consider the plaintiff’s other claims of error regarding admission of evidence of the plaintiff’s alcoholism and of the defendant’s economic conditions later in this opinion. in CLAIMED INSTRUCTIONAL ERROR The question whether to consider a person’s unmitigated condition in determining handicapped status under the 1990 HCRA definition of “handicap” is one of first impression. Because the HCRA definition mirrors that of the ADA, we examine federal law for guidance. While the ADA itself, like the hcra, does not specifically address the issue of mitigating measures, the Equal Employment Opportunity Commission, the federal agency charged with administering the act in the employment context, has determined that an individual’s status should be determined not as it presently exists, but as it would exist without regard to medication or other mitigating measures. The interpretive guidelines state: The existence of an impairment is to be determined without regard to mitigating measures such as medicines, or assistive or prosthetic devices. See Senate Report at 23, House Labor Report at 52, House Judiciary Report at 28. For example, an individual with epilepsy would be considered to have an impairment even if the symptoms of the disorder were completely controlled by medicine. Similarly, an individual with a hearing loss would be considered to have an impairment even if the condition were correctable through the use of a hearing aid. [29 CFR 1630.2(h), Appendix, p 350 (1997). ][] Despite this interpretive guidance, and the general rule that federal courts accord deference to agency interpretation of the act that the agency is charged to administer, many federal courts that have considered the issue have rejected the eeoc’s guidelines. Federal courts are split on whether the ADA requires consideration of the individual’s present status, or whether the eeoc guidelines should be followed and consideration be given to the individual’s condition as it would hypothetically exist without the aid of mitigating measures. We find the reasoning of those federal courts that have rejected the EEOC guidelines to be persuasive and that this reasoning applies to our interpretation of the HCRA. We will turn next to a review of the arguments presented by these courts. First, and most important, the approach taken in the EEOC guidelines contravenes the plain language of the ADA, and also of the hcra. The ADA and hcra definitions require an individual to have a condition that substantially limits a major life activity. In contrast, the administrative gloss imposed on this plain language by the guidelines provides that an individual who would have a substantial limitation if he failed to take his medication or discontinued using other mitigating measures comes within the definition. In other words, the eeoc approach, which is the appr

GILMAN v NORTHWEST AIRLINES, INC Docket No. 200161. Submitted April 22, 1998, at Detroit. Decided June 9, 1998, at 9:15 A.M. Rachel Gilman brought an action in the Oakland Circuit Court against Northwest Airlines, Inc., and Jay Jennings, alleging that the defendants wrongfully discharged her from employment in violation of an agreement that her employment could be terminated for just cause only and in violation of prohibitions in the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., against sex-based and age-based discrimination. The defendants moved for partial summary disposition, arguing that the sex- and age-discrimination claims are preempted by the Airline Deregulation Act, 49 USC 41713(b)(1). The court, Fred M. Mester, J., denied the motion. The defendants appealed by leave granted. The Court of Appeals held: The preemption clause of the Airline Deregulation Act, which prohibits states from enacting or enforcing laws or regulations related to airline prices, routes, or services, does not apply where the effect of the laws or regulations on prices, routes, or services is too tenuous, remote, or peripheral. The Civil Rights Act, insofar as it prohibits sex-based and age-based discrimination by airlines against their employees, affects airline prices, routes, or services in a manner that is too tenuous, remote, and peripheral to be preempted by the Airline Deregulation Act. Affirmed. Civil Rights — Employment Discrimination — Airline Deregulation Act — Preemption. An action brought under the Civil Rights Act alleging sex-based or age-based employment discrimination by an airline is not preempted by the federal Airline Deregulation Act (49 USC 41713[b][l]; MCL 37.2101 et seq.; MSA 3.548[101] et seq.). Sommers, Schwartz, Silver & Schwartz, P.C. (by Donald J. Gasiorek and David F. Greco), for the plaintiff. Miller, Canfield, Paddock and Stone, P.L.C. (by George D. Mesritz and Donna J. Donati), for the defendants. Before: Jansen, P.J., and Kelly and Markey, JJ. Per Curiam. Defendants, Northwest Airlines, Inc., and Jay Jennings, appeal by leave granted from the circuit court order denying their motion for partial summary disposition. We affirm. On April 17, 1978, plaintiff, Rachel Gilman, commenced employment with defendant Northwest Airlines, Inc. Defendant Jennings became plaintiffs immediate supervisor in March of 1994. On September 1, 1994, Jennings placed plaintiff on a performance improvement plan. On December 12, 1994, plaintiff was terminated from her employment for alleged poor job performance. At the time of her termination, plaintiff was an account executive in Northwest’s Detroit sales office. On May 7, 1996, plaintiff filed a three-count complaint against defendants. Count one stated a claim for wrongful discharge wherein plaintiff alleged that she could be terminated for just cause only. Count two was a claim of age discrimination in violation of the Civil Rights Act wherein plaintiff contended that she was treated differently than the younger employees and was terminated on the basis of her age. Count three was a claim of sex discrimination in violation of the Civil Rights Act wherein plaintiff claimed she was treated differently than the male employees and was terminated on the basis of her sex. Subsequently, defendants filed a motion for partial summary disposition pursuant to MCR 2.116(C)(4) and (8). They argued that plaintiff’s sex- and age-discrimination claims, brought under the Civil Rights Act, were preempted by the Airline Deregulation Act (ADA), 49 USC 41713(b)(1), and thus, plaintiff should only be able to proceed with respect to her claim of breach of employment contract in state court. After a hearing on defendants’ motion, the trial court concluded that plaintiff’s claims were not preempted by the ADA and denied defendants’ motion for partial summary disposition. We granted defendants’ subsequent application for leave to appeal. On appeal, defendants claim that the trial court erred in denying their motion for partial summary disposition because plaintiffs age- and sex-discrimination claims under the Civil Rights Act were preempted by the ADA. The question presented in this appeal, whether state Civil Rights Act claims are preempted by the ADA, is one of first impression in Michigan. In order to decide the question presented in this case, it is necessary to examine the legislative intent behind the enactment of the ada, and the preemption provision in particular. The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993). Statutory language should be interpreted reasonably, considering the purpose of the act. Barr v Mt Brighton Inc, 215 Mich App 512, 516; 546 NW2d 273 (1996). Once the intention of the legislation is discovered, it must prevail over any construction arrived at through a conflicting rule of statutory construction. Terzano v Wayne Co, 216 Mich App 522, 527; 549 NW2d 606 (1997). In determining the intent of the Legislature, the court must first look to the specific language used in the statute. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993). If the plain and ordinary meaning of the language is clear, judicial construction is normally not necessary or permitted. Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992); Heinz v Chicago Rd Investment Co, 216 Mich App 289, 295; 549 NW2d 47 (1996). However, if reasonable minds could differ with respect to the meaning of a statute, judicial construction is appropriate. Id. The court must look to the object of the statute, the harm it is designed to remedy, and apply a reasonable construction that best accomplishes the purpose of the statute. Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich 638, 644; 513 NW2d 799 (1994). The ADA was enacted by Congress in 1978 in large part to deregulate domestic air transport. American Airlines v Wolens, 513 US 219; 115 S Ct 817; 130 L Ed 2d 715 (1995). Two of its primary purposes are the “maintenance of safety as the highest priority in air commerce” and the “placement of maximum reliance on competitive market forces.” Belgard v United Airlines, 857 P2d 467, 471 (Colo App, 1993). In addition, the quality of the services rendered by an airline employee is of extreme importance because it directly affects the services the airline renders to its customers. Id. Thus, in order to ensure that the states would not interfere with federal deregulation or enact similar laws, the ada included a preemption clause that provides, in relevant part: Except as provided in this subsection a State, political subdivision of a State, or a political authority of at least two States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any air carrier that may provide air transportation under this subpart. [49 USC 41713(b)(1).] Since the statute was enacted, there has been a clear indication from the courts that Congress intended this provision to be broadly interpreted. However, there is nothing in the language of the statute to suggest that Congress intended, nor does the case law suggest, that the preemption provision should be interpreted in such a broad and extensive manner as to completely shelter airlines from a state action by an employee who has allegedly been discriminated against by the airline in no connection whatsoever to the services it provides. Indeed, the ada was concerned with the states’ attempt to regulate airlines fares, routes, and services, not employment practices. Delta Air Lines, Inc v New York State Div Of Human Rights, 229 AD2d 132, 137; 652 NYS2d 253 (1996). In Morales v Trans World Airlines, Inc, 504 US 374, 384; 112 S Ct 2031; 119 L Ed 2d 157 (1992), the Supreme Court explained that a state law is “related to” airline routes or services if it has “a connection with or reference to airline ‘rates, routes, or services.’ ” The Court limited the scope of the preemptive effect of the ada, however, by noting that “[s]ome state actions may affect [airline fares] in too tenuous, remote, or peripheral a manner” to have a preemptive effect. Id., 390. In other words, if a provision in a state statute is “too tenuous, remote, or peripheral” to have an effect on the prices, routes, or services provided by an airline, the ADA does not preempt the provision. This notion was reaffirmed in Wolens, swpra, 225, where the Court stated that “[t]he ADA’s preemption clause . . . ruled out ‘only those state laws and regulations that specifically relate to and have more than a tangential connection with an airline’s rates, routes or services.’ ” Hence, the decisive issue in the instant matter is not simply whether any claim brought under the Civil Rights Act is preempted by the ADA, but whether sex- and age-discrimination claims involving physical characteristics that are unrelated to an individual’s job qualifications and too tenuous or peripheral to affect the airline’s services fall within the scope of the preemptive provision of the ADA. In support of their argument that plaintiff’s state claims are preempted by the ADA, defendants rely primarily on a recent opinion of this Court, Fitzpatrick v Simmons Airlines, Inc, 218 Mich App 689, 690; 555 NW2d 479 (1996). In that case, the plaintiff was employed by a division of American Airlines and was terminated because he did not meet the height and weight standards promulgated by the defendant. Id. Thereafter, the plaintiff filed an action under the Civil Rights Act, alleging that he was unlawfully discharged because he was overweight according to the standards utilized by the defendant. Id. The defendant moved for summary disposition, maintaining that the plaintiff’s claim was preempted by the Airline Deregulation Act, 49 USC 41713(b)(1). Fitzpatrick, supra, 690. The trial court granted the defendant’s motion for summary disposition, and the plaintiff appealed, arguing that the trial court erred because his claim was not preempted. Id., 690-691. On appeal, this Court explained that the first inquiry was whether preemption was expressed or implied in the statute at issue. Id. The language contained in the ada expressly preempts a state from enacting any law relating to services of any air carrier. Id. Thus, the next question was whether the Civil Rights Act is a law relating to services of an air carrier. Id., 691. Relying on Morales, supra, this Court found that it was. Id. This Court concluded that the provision of the Civil Rights Act that protected employees from discrimination based on height or weight was “related to” services of an air carrier, and that the Civil Rights Act would restrict the defendants’ ability to select employees. Fitzpatrick, supra, 692-693. Accordingly, this Court denied the plaintiff’s claim and affirmed the trial court’s grant of summary disposition in favor of the defendants, finding that the plaintiff’s state claim was preempted by the ADA. Id., 693. Defendants also cite Belgard, supra, 467, where the plaintiffs were denied employment as pilots because they had undergone eye surgery. The Colorado Court of Appeals determined that they could not pursue their claims under the state’s handicap discrimination law because the law, when applied to an airline, had “a connection with” or “reference to” the airline’s services. The Colorado Court of Appeals explained: [A]ny law or regulation that restricts an airline’s selection of employees, based upon their physical characteristics, must necessarily have a connection with and reference to, and therefore must be one “relating to,” the services to be rendered by that airline. [Id., 471.] We believe that the foregoing cases of preemption are distinguishable from the instant case. In particular, there is an important distinction to be drawn between the effect physical abilities or characteristics have on an airline’s services and the effect one’s age or sex has on the industry. For instance, it is easy to make sense of the airline industry’s need to implement height and weight standards for certain positions in order to promote safety and efficiency when providing services. Thus, it is conceivable that an individual’s weight or height may be sufficiently related to the safety and quality of services an air carrier can provide to permit preemption on this basis. Hence, we do not contest that the quality of airline employees, flight personnel in particular, as well as their physical capabilities and good health, will directly affect the services rendered by an airline. In fact, this element was such a concern of the airline industry that the federal legislation established minimum physical requirements for such personnel. See Belgard, supra, 471. However, nowhere in the statute are there minimum requirements pertaining to an individual’s age or gender to ensure top quality employees. Indeed, these qualities are, for the most part, wholly unrelated to an individual’s ability to carry out duties and serve the airline industry. We are unable to discern how an individual’s age or sex has any reasonable connection or relation to airline services or how a state law abridging unlawful discrimination on those bases will restrict an airline’s authority to select employees. To the contrary, a state law prohibiting an airline from hiring or terminating employees on the basis of race, gender, or ethnicity is wholly unrelated to the services it provides. See also Ruggiero v AMR Corp, 1995 WL 549010 (ND Cal, 1995) (holding the plaintiffs retaliatory discharge claim distinguishable from claims for discrimination based on physical characteristics because the ada did not regulate wrongful termination); Anderson v American Airlines, Inc, 2 F3d 590 (CA 5, 1993) (holding that the ADA was passed to deregulate the airline industry and a claim for retaliatory discharge had too remote an effect on services to be preempted). In fact, the United States Supreme Court entered a ruling consistent with this theory several years ago in Colorado Anti-Discrimination Comm v Continental Air Lines, Inc, 372 US 714; 83 S Ct 1022; 10 L Ed 2d 84 (1963). The Court held that a federal law did not preempt the enforcement against an air carrier of a Colorado statute prohibiting racial discrimination in the hiring of employees. The Court reasoned that the state law could not have an adverse effect on, or even interfere with, the required national law prohibiting discrimination, because a contrary requirement would not be enforceable in any state. In contrast to state statutes that regulate an airline’s hiring practices with respect to physical characteristics (i.e., height, weight, handicap), state statutes that prohibit discrimination based on age and race do not raise the same potential for conflicting rules and inconsistencies because it is illegal, under the laws of all states, to discriminate against an employee on the basis of age or gender. More recently, in Abdu-Brisson v Delta Air Lines, Inc, 128 F3d 77 (CA 2, 1997), the Second Circuit Court of Appeals held that the plaintiffs age discrimination claim was not preempted by the ADA because the defendants were unable to establish how enforcement of the state laws would frustrate the purpose of the ADA. In particular, the Second Circuit Court of Appeals noted that the enforcement of New York’s age discrimination law would not affect competition between airlines, which was the primary concern in enacting the ADA. Id., 84. The court distinguished the case from Morales and Wolens, noting: [W]hether an airline discriminates on the basis of age (or race or sex) has little or nothing to do with competition or efficiency. Although one may argue that shedding older workers can result in savings, such savings will result in a better competitive position only indirectly, if at all. Moreover, to the extent that the scope of the protected group in age discrimination statutes may vary from jurisdiction to jurisdiction, state and local age discrimination laws are little different from generally applicable tax, environmental, or blue sky laws, which as a general matter are not preempted under the ADA. [Id.] Similarly, in Delta Air Lines v New York State Div of Human Rights, supra, 137-138, the court upheld several age, disability, and marital status discrimination claims filed by employees under state law. In holding that the claims were not preempted by the ada, the court remarked that “preemption ... is not favored absent persuasive reasons either that the nature of the . . . subject matter” or the state regulations requires preemption or Congress has expressly prescribed preemption, and that “preemption must be determined on a case-by-case basis,” ascertaining “ ‘whether the dangers and hardships of diverse regulation justify foreclosing a State from the exercise of its traditional powers.’ ” Id. (Citation omitted.) The court reasoned that compliance with the state human rights laws in no way interfered with the airline’s ability to comply with the ada because the statute did not prescribe what amounted to discrimination against airline employees. Id., 139. Moreover a finding either for or against the airline would not frustrate the purpose of the ADA. Id. Accordingly, the plaintiffs’ claims were not preempted. Id. We note that recently, in Parise v Delta Air Lines, 1997 WL 375296 (MD Fla, 1997), a United States District Court ruled that the ada preempted state discrimination laws where the petitioners alleged age discrimination. However, that case is inapposite to the instant case because the conduct for which the plaintiff was ultimately terminated was determined to have directly affected the services of the airline. The court explained that an airline’s decision to terminate an agent for fear of customer safety was related to the airline’s services and fell within the preemption clause of the ADA. Id. However, in so ruling, the court cautioned that “the ada does not ‘completely preempt’ employment anti-discrimination laws ([only] if they ‘relate to’ airline ‘rates, routes, or services,’) . . . ” Id., * 3. The foregoing cases make it clear that while the ADA has been interpreted to have a broad preemptive sweep over state Civil Rights Act claims, there must, nonetheless, be an apparent connection or relation to the airline’s routes, prices, or services, in order for the preemptive provision of the ada to be applicable. Furthermore, we note that defendants did not introduce any evidence that plaintiff’s claims would frustrate the purposes of the ada. Nor did defendants put forth any evidence to show that plaintiffs age- and sex-discrimination claims were connected with or related to the airline’s routes, prices, or services. We hold, therefore, that plaintiff’s claims were not preempted by the ADA. In light of our conclusion, the trial court properly denied defendants’ motion for partial summary disposition. Affirmed. MCL 37.2101 et seq.-, MSA 3.548(101) et seq. The plaintiff was terminated for admittedly making numerous violent threats to his supervisor and co-worker.

COLE v WEST SIDE AUTO EMPLOYEES FEDERAL CREDIT UNION Docket No. 199614. Submitted January 7, 1998, at Lansing. Decided May 19, 1998, at 9:05 A.M. Guy Cole brought an action in the Genesee Circuit Court against West Side Auto Employees Federal Credit Union, alleging that his discharge from employment by the defendant constituted unlawful age discrimination under the Civil Rights Act, MCL 37.2101 et seq.) MSA 3.548 et seq., and unlawful discrimination based on handicap (alcoholism) under the Michigan Handicappers’ Civil Rights Act,MCL 37.1101 et seq.) MSA 3.550(101) et seq. The plaintiff’s employment had been terminable for just cause only, and an employee handbook had provided for arbitration as the exclusive means by which a discharged employee could challenge the termination as violative of the contractual agreement for discharge for just cause only or as violative of statutes prohibiting employment discrimination. Arbitration that resulted in a decision in favor of the defendant had preceded the plaintiff’s action. The court, Robert M. Ransom, X, granted summary disposition for the defendant, ruling alternatively that the plaintiff was obligated to submit his discrimination claims to arbitration or that collateral estoppel applied to prevent the plaintiff from pursuing his discrimination claims in court. The plaintiff appealed. The Court of Appeals held: 1. Factual findings made by an arbitrator after a proper arbitration proceeding are conclusive in a later-filed civil suit between the same parties, including a situation in which the earlier arbitration involved a contractually based wrongful discharge claim and the later lawsuit involves a claim that the discharge violated one or more state civil rights statutes. 2. The trial court did not err in summarily dismissing the claim of employment discrimination based on handicap. The Michigan Handicappers’ Civil Rights Act expressly excludes alcoholism as a handicap with respect to employment discrimination where the condition prevents the employee from performing his duties. Here, the arbitrator found that the plaintiff’s job performance was detrimentally affected by his drinking. 3. The trial court did not err in summarily dismissing the claim of employment discrimination based on age. The plaintiff could not establish a prima facie case of age discrimination because he could not show that he was qualified for his position in view of the arbitrator’s finding that the plaintiff was unable to handle the supervisory and public relations responsibilities of his job. 4. The arbitration procedure in this case encompassed any claims of wrongful discharge, including statutorily based employment discrimination claims. Accordingly, collateral estoppel properly applies to preclude the plaintiff from pursuing his civil rights claims in court. Affirmed. 1. Judgments — Collateral Estoppel — Arbitration. Collateral estoppel precludes relitigation of an issue in a subsequent, different cause of action between the same parties when the prior proceeding culminated in a valid final judgment and the issue was actually and necessarily determined in the prior proceeding; this principle likewise applies to factual determinations made during grievance hearings or arbitration proceedings. 2. Civil Rights —• Michigan Handicappers’ Civil Rights Act — Employment Discrimination —• Alcoholism. Alcoholism is not a handicap for which employment discrimination is prohibited by the Michigan Handicappers’ Civil Rights Act where the condition prevents the employee from performing the employee’s duties CMCL 37.1103[f][ii]; MSA 3.550[103][f][iij). 3. Civil Rights — Employment Discrimination — Age — Prima Facie Case. An essential element of a prima facie case of age discrimination is a showing by the plaintiff that the plaintiff was qualified for the position at issue (MCL 37.2101 et seq.\ MSA 3.548[101] et seq.). Law Offices of Dean T Yeotis (by Daniel J. Lang-don), for the plaintiff. Bower, Anderson, Radabaugh, Milton & Brown, P.C. (by Thomas R. Bowen and Evelyn C. Tombers), and Van Suilichem & Brown, P.C. (by Craig S. Schwartz), for the defendant. Before: Fitzgerald, P.J., and O’Connell and Whit-beck, JJ. Per Curiam. Plaintiff Guy Cole appeals as of right an order granting summary disposition to defendant West Side Auto Employees Federal Credit Union on his claims of age discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and discrimination based on his alleged handicap of alcoholism in violation of the Michigan Handicappers’ Civil Rights Act (hora), MCL 37.1101 et seq.; MSA 3.550(101) et seq. The trial court based its grant of summary disposition on the credit union’s motion for summary disposition pursuant to MCR 2.116(C)(7) and (10). Although we cannot approve all aspects of the trial court’s reasoning, we affirm its decision. I. FACTS Cole began working for the credit union sometime around October 1971 and eventually became the chief executive officer (CEO) of the credit union. The credit union discharged Cole on or about March 26, 1993. Following his discharge by the credit union, Cole challenged his discharge as wrongful under the credit union’s Termination and Grievance Policy. After an arbitration proceeding, the arbitrator upheld Cole’s discharge as being based on just cause. Following the arbitrator’s decision, Cole filed this lawsuit. The trial court granted summary disposition to the credit union on two grounds. First, the trial court held that Cole was obligated to submit the claims in this suit to binding arbitration pursuant to the credit union’s Termination and Grievance Policy (as opposed to filing suit in a court of law). Alternatively, the trial court noted that, assuming Cole was not obligated to submit this dispute to binding arbitration, he voluntarily did so. The trial court stated that to allow Cole to relitigate these issues “would be to give him an opportunity certainly not within the reasonable expectations of the parties at the time of the contract.” Further, the trial court indicated that the doctrine of collateral estoppel, which applies to factual determinations made during an arbitration proceeding, barred relitigation of the issues underlying this case. The trial court concluded that the arbitrator’s factual findings, which it regarded as conclusive, precluded Cole from establishing the necessary elements of either of his discrimination claims. In this appeal, Cole argues that the trial court erred in holding that he was obligated to submit his statutory discrimination claims to binding arbitration and, alternatively, that he was collaterally estopped from pursuing those claims in the trial court. Pursuant to an employee handbook issued by the credit union for its salaried employees, Cole was assured that he would not be discharged except for just cause. The employee handbook also provided for grievance and arbitration procedures applicable to salaried employees who were discharged by the credit union. The procedures purportedly were to be the only method allowed for such employees to challenge an alleged wrongful termination, expressly including employment discrimination claims. The handbook stated: These procedures shall apply to any and all disputes concerning the termination of salaried employees, including employment discrimination claims, and shall be the sole and exclusive remedy for any salaried employee claiming wrongful termination from employment with the Credit Union. [Emphasis supplied.] The arbitration procedure to be followed under the employee handbook involved the selection of a neutral arbitrator in accordance with the procedures of the American Arbitration Association. H. ARBITRATION UNDER RUSHTON v MEIJER, INC (ON REMAND) Under Rushton v Meijer, Inc (On Remand), 225 Mich App 156; 570 NW2d 271 (1997), we must reject the portion of the trial court’s analysis that concluded that Cole was obligated to submit his statutory claims of handicap and age discrimination to arbitration. The Rushton majority summarized its pertinent holding as follows: Accordingly, we hold that Meijer cannot require its employees, as a condition of employment, to waive prospectively their right to pursue direct and immediate review of civil rights claims in a judicial forum. The provision of the parties’ private employment contract requiring plaintiff, a nonunion employee, to exhaust the termination appeal procedure, including binding arbitration, before filing a lawsuit in the circuit court, is void as it relates to her gender discrimination claim under Michigan law. [Rushton, supra at 170 (emphasis supplied).] Even more pointedly, the Rushton majority declared, “Michigan’s declared public policy entitling a state civil rights plaintiff to direct and immediate review of such claims in the circuit court cannot be abrogated by contract.” Id. at 165. If Cole had not pursued the credit union’s alternative dispute resolution (adr) procedure to the point of arbitration, then clearly under Rushton Cole would have had a right to reject the ADR procedure with regard to his civil rights claims against the credit union under Michigan statutes by proceeding with a complaint against the credit union in the trial court. However, this case is materially distinguishable from Rushton. Cole decided to proceed to binding arbitration under the credit union’s ADR procedure after he had been discharged. The Rushton majority concluded that an employer could not require an employee, as a condition of employment, to prospectively waive the right to pursue civil rights claims under a state statute in a judicial forum. Id. at 170. However, this concern is inapplicable with regard to a former employee, such as Cole, whom the employer already has discharged. Indeed, the Rushton majority quoted with agreement the following comments reflecting the view of three justices of the Michigan Supreme Court in Heurtebise v Reliable Business Computers, Inc, 452 Mich 405, 438; 550 NW2d 243 (1996) (Cavanagh, J., joined by Levin and Mallett, JJ.): Finally, I would assert that I am not backing away from the public policy favoring alternative means of dispute resolution. For aggrieved individuals seeking to pursue remedies for claims that have already accrued, arbitration may present a quicker and cheaper means of receiving relief, and I fully support the parties’ voluntary intent in those cases. I would limit this opinion to the arbitration agreements in employment contracts entered into before any claim for unlawful discrimination has accrued. [Rushton, supra at 169-170 (emphasis supplied).] Accordingly, we conclude that Rushton does not apply here. We hold that a discharged employee who alleges that he was wrongly discharged and who voluntarily submits to an arbitration procedure is barred in a lawsuit filed after the arbitration decision from seeking a factual finding different from that which was found in the arbitration decision. As noted above, the Rushton majority concluded that a provision in an employment contract purporting to prospectively require arbitration of civil rights claims under state statutes is unenforceable. However, the Rushton panel unanimously concluded that a provision of an employee handbook requiring arbitration of employment disputes is enforceable with regard to a contractually based employment dispute when the employee handbook also provides for just-cause employment. Rushton, supra at 161-164 (majority opinion), 170 (Taylor, J., concurring in this part of the majority opinion). Because the plaintiff in Rush-ton never proceeded to arbitration under the employer’s ADR procedure in that case, id. at 159-160, the Rushton panel did not consider whether factual findings by an arbitrator in a proceeding in which a discharged employee alleged that the discharge violated contractual just-cause provisions would be conclusive if the employee thereafter filed a lawsuit alleging that the discharge violated one or more state civil rights statutes. Nevertheless, in Porter v Royal Oak, 214 Mich App 478, 485; 542 NW2d 905 (1995), this Court stated: Collateral estoppel precludes relitigation of an issue in a subsequent, different cause of action between the same parties when the prior proceeding culminated in a valid final judgment and the issue was actually and necessarily determined in the prior proceeding. This principle likewise applies to factual determinations made during grievance hearings or arbitration proceedings. [Citations omitted; emphasis supplied.] On the basis of the plain language of Porter, we conclude that factual findings made by an arbitrator after a proper arbitration proceeding are conclusive in a later-filed civil suit between the same parties, including a situation in which the earlier arbitration involved a contractually based wrongful discharge claim and the later lawsuit involves a claim that the employee’s discharge violated one or more state civil rights statutes. m. discrimination claim In this case, Cole alleged that his discharge involved age discrimination contrary to the Civil Rights Act and handicap discrimination contrary to the hcra. Cole based his claim of handicap discrimination solely on the alleged handicap of alcoholism. However, “The HCRA expressly excludes alcoholism as a handicap with respect to employment discrimination under Article 2 where the condition prevents the employee from performing his duties. MCL 37.1103(f)(ii); MSA 3.550(103)(f)(ii).” Gazette v Pontiac, 212 Mich App 162, 168-169; 536 NW2d 854 (1995). The arbitrator in his written opinion stated: “I find that [Cole’s] job performance was detrimentally affected by his excessive drinking during the strike.” The arbitrator also recounted various ways in which Cole’s intoxication detrimentally affected his job performance and reflected negatively on the credit union. Accordingly, we conclude that, as a matter of law, if Cole indeed suffered from alcoholism, under the arbitrator’s conclusive factual findings, Porter, supra at 485, this did not constitute a handicap that could form the basis of a claim of illegal employment discrimination under the hcra because it prevented Cole from properly performing job duties. Thus, the trial court correctly granted summary disposition to the credit union with regard to Cole’s claim of handicap discrimination. With regard to Cole’s claim of age discrimination, he presented no direct evidence of age-based animus on the part of the credit union. Accordingly, to avoid a grant of summary disposition under MCR 2.116(C)(10), Cole had to establish a “prima facie case” of age discrimination on the basis of circumstantial evidence. Harrison v Olde Financial Corp, 225 Mich App 601, 606-609; 572 NW2d 679 (1997). One essential aspect of such a prima facie case in an age discrimination case based on discharge from employment is that the plaintiff was qualified for the position. Meagher v Wayne State Univ, 222 Mich App 700, 710-711; 565 NW2d 401 (1997). Arguably, the arbitrator’s finding that Cole’s discharge was “based upon just cause” would necessarily encompass a factual determination that he was not qualified for his position as CEO of the credit union at the time of the discharge. However, assuming for purposes of discussion that a finding of just cause for termination of employment does not automatically amount to a finding that an employee is unqualified for a position, the factual findings contained in the following paragraph of the arbitrator’s decision require a conclusion that Cole was not qualified for his CEO position at the time of discharge: It is acknowledged that [Cole] accomplished much on behalf of the credit union during his long tenure supervising the construction of a $4.5 million building and expanding assets from $70 to $110 million. (TR 446). But in my view his effectiveness as a Chief Operating Officer is substantially impugned by the above incidents of misconduct which constitute sufficient evidence of just cause to warrant sustaining the Employer’s action of discharge. As is often the case it took a traumatic event, such as the hit and run incident, to alert [Cole] to the fact of his disease of alcoholism. But by that time much damage had been sustained by the credit union relative to [Cole’s] relationship with its other employees and to the public. Such damage cannot be overcome by the arguable fact that [Cole] now has his alcoholism condition under control. [Emphasis supplied.] According to the arbitrator’s conclusive factual findings, Porter, supra at 485, the damage to Cole’s relationship with other employees of the credit union and the public could not be overcome. Obviously, this requires a conclusion that Cole was, at the time of his discharge, not qualified to handle the supervisory and public relations responsibilities inherent in being the CEO of the credit union. Thus, the trial court correctly granted summary disposition to the credit union with respect to the age discrimination claim. IV. COLLATERAL ESTOPPEL While Cole invokes Florence v Dep’t of Social Services, 215 Mich App 211; 544 NW2d 723 (1996), in support of his position that the trial court erred in holding that he was collaterally estopped from pursuing his civil rights claims in a judicial forum, that case involving a union-represented employee is inapposite. In Florence, the defendant hired the plaintiff despite knowing of her severe hearing problem. Id. at 212. The plaintiff asserted that the defendant refused repeated, reasonable requests to accommodate her handicap during a training program. Id. After her training, the plaintiff was unable to perform her job adequately and was discharged. Id. at 212-213. After the discharge, the labor union that represented the plaintiff filed a grievance that resulted in a settlement agreement between the union and the defendant employer in which the defendant changed its records to indicate that the plaintiff had resigned. Id. at 213. The plaintiff did not participate in the settlement proceedings or sign the agreement. Id. Thereafter, the plaintiff filed a lawsuit alleging wrongful termination contrary to the HCRA, but the trial court granted summary disposition with one ground being that the suit was barred by the grievance settlement. Id. at 212-213. This Court concluded that the pursuit and settlement of the plaintiffs contractual grievances by the union did not preclude the plaintiff from bringing suit in her own right for the alleged violation of the HCRA: Plaintiff argues that the settlement agreement between plaintiff’s union and defendant did not bar an action based on her statutory civil rights. We agree. . . . Although a union speaks for its members, its duty is to make and uphold the terms of a collective bargaining agreement for its members. However, a union does not have a duty to pursue for its members rights possessed independent of the collective bargaining agreement. Here, it is true that plaintiffs union reached an agreement with defendant concerning plaintiffs contractual grievance. However, plaintiff’s claims in this suit do not arise out of the collective bargaining agreement. It is an “incontestable,” “black-letter statement of law” that employees in Michigan have “ ‘an independent, nonnegotiable right not to be discriminated against on the basis of handicap.’ ” Similarly, claims under the cra [the state Civil Rights Act] concern nonnegotiable state rights that are entirely independent of the collective bargaining agreement. Accordingly) plaintiff has a right to proceed in this case on her claims pursuant to the HCRA and the CRA regardless of the agreement that her union signed with respect to her contractual grievances. [Id. at 213-214 (citations omitted; emphasis supplied).] The reasoning of Florence is inapplicable to this case. It is evident that the grievance procedure in Florence was limited to contractual grievances. Accordingly, in pursuing the contractual grie

FEICK v MONROE COUNTY Docket No. 198014. Submitted November 18, 1997, at Lansing. Decided April 21, 1998, at 9:00 A.M. Leave to appeal sought. Nancy M. Feick, a former Monroe County chief assistant prosecutor, brought an action in the Monroe Circuit Court against Monroe County and the Monroe County Prosecutor, alleging violations of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. The plaintiff contended that the defendants retaliated against her for filing a complaint with the Equal Employment Opportunity Commission (eeoc), that the county prosecutor discriminated against her on the basis of age and gender when he refused to reappoint her as chief assistant prosecutor after he defeated the incumbent county prosecutor who last appointed her, and that the county discriminated against her in rejecting various applications for county employment after she lost her assistant prosecutor position. The court, Timothy P. Pickard, J., granted summary disposition for the defendants and imposed sanctions against the plaintiff for filing a frivolous action. The plaintiff appealed. The Court of Appeals held: 1. The discrimination claim regarding the county’s refusal to hire the plaintiff for various county positions was correctly dismissed by the trial court. By failing to present evidence regarding her qualifications for those county positions, the plaintiff failed to establish that there was a genuine issue of material fact concerning whether she was qualified for the position. 2. The plaintiff established a prima facie case of gender and age discrimination with respect to the county prosecutor’s decision not to reappoint her as chief assistant prosecutor. The plaintiff showed that she was a member of a protected class, that she was qualified for continued employment as chief assistant prosecutor, and that she was replaced by someone who was younger and who was male. However, a legitimate, nondiscriminatory reason for not reappointing the plaintiff was given, and the plaintiff failed to show that the articulated reason was a mere pretext for discrimination. The plaintiff’s political affiliation with the county prosecutor’s opponent was a legitimate, nondiscriminatory reason for not reappointing the plaintiff inasmuch as political affiliation is pertinent to the performanee of the duties of an assistant prosecutor. The plaintiff failed to show that the county prosecutor’s reason for not reappointing her had no basis in fact, or, if it did, it was not the actual factor motivating the decision, or, if it was, it was insufficient to justify the decision. 3. The trial court correctly dismissed the retaliation claim. The evidence presented by the plaintiff to support the claim was not sufficient to establish a genuine issue of material fact with regard to whether there had been retaliation for the plaintiff’s filing of an eeoc complaint. 4. The trial court did not clearly err in finding that the action was brought with malice to harass and embarrass the county prosecutor and that it was therefore frivolous, thereby subjecting the plaintiff to sanctions under MCL 600.2591(3)(a); MSA 27A.2591(3)(a), MCR 2.114(F), and MCR 2.625(A)(2). Affirmed. 1. CrviL Rights — Employment Discrimination — Prima Facie Case. A plaintiff, absent direct evidence of discrimination, may establish a prima facie case of employment discrimination by showing membership in a protected class, adverse employment action, qualification for position, and replacement by one who was not a member of the protected class; once a prima facie case is established, the burden shifts to the employer, who must articulate a legitimate, nondiscriminatory reason for the employment action; if the employer articulates a nondiscriminatory reason, the plaintiff must show by a preponderance of the evidence that the reason given is a mere pretext for discrimination (MCL 37.2101 et seq.-, MSA 3.548[101] et seq.). 2. Civil Rights — Employment Discrimination — Prima Facie Case. A plaintiff alleging employment discrimination establishes that an articulated legitimate, nondiscriminatory reason given by the employer for the challenged employment action is a mere pretext for discrimination by showing that the reason has no basis in fact, or, if it does, that it was not the actual factor motivating the decision, or, if it was, that it was insufficient to justify the decision (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 3. Civil Rights — Employment Discrimination — County Prosecutors — Political Affiuation. Political affiliation inimical to that of the county prosecutor is a legitimate, nondiscriminatory reason for not reappointing an assistant prosecutor; a county prosecutor incurs no liability under the Civil Rights Act for discrimination by not reappointing on that basis (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 4, Appeal — Frivolous Claims — Costs — Sanctions — Standard of Review. Clear error is the standard of review of a trial court’s findings in support of a decision to impose sanctions and costs against a plaintiff for filing a frivolous claim (MCL 600.2591[3][a]; MSA 27A.2591[3][a]; MCR 2.114[F], 2.625[A][2]). Green & Green (by Philip Green), for Nancy M. Feick. Cummings, McClorey, Davis & Acho, P.C. (by Joseph Nimako and Thomas J. Laginess), for Monroe County. Johnson, Rosati, Gálica, Labarge, Aseltyne & Field, P.C. (by Marcia L. Howe and Laura S. Amtsbuechler), for Edward F. Swinkey. Before: Hood, P.J., and McDonald and White, JJ. Per Curiam. Plaintiff appeals as of right from the circuit court’s order granting summary disposition and awarding sanctions to defendants in this employment discrimination action brought under the Civil Rights Act (CRA), MCL 37.2101 et seq.; MSA 3.548(101) et seq. Plaintiff, a former chief assistant prosecuting attorney, alleged that by terminating her and not subsequently rehiring her for various positions, defendants discriminated against her on the basis of her gender and age, and retaliated against her for filing a complaint with the Equal Employment Opportunity Commission (eeoc). We affirm. i Plaintiff first argues that the circuit court improperly dismissed her claims of gender and age discrimination because genuine issues of material fact remained regarding whether defendants discriminated against her. We disagree. A Absent direct evidence of discrimination, a plaintiff may establish a prima facie case of employment discrimination by showing (1) that the plaintiff was a member of a protected class, (2) that an adverse employment action was taken against the plaintiff, (3) that the plaintiff was qualified for the position, and (4) that the plaintiff was replaced by one who was not a member of the protected class. Matras v Amoco Oil Co, 424 Mich 675, 683; 385 NW2d 586 (1986). Plaintiff established that she was a member of protected classes on the basis of her age and gender and that she was not reappointed by Monroe County Prosecutor Edward E Swinkey after he won the 1992 election, defeating her former boss, William Frey. Plaintiff also established that she was replaced by a younger male and subsequently not rehired as chief assistant prosecutor and for various other positions. Although defendants dispute that plaintiff was qualified to be rehired as chief assistant prosecuting attorney, viewing the facts in a light most favorable to plaintiff, we conclude that plaintiff established that she was qualified for the position of chief assistant prosecutor on the basis of having held the position for seven years and the qualifications she testified to at deposition. However, regarding the remaining positions plaintiff applied for, department head in the office of the friend of the court and a position with the drain commission, plaintiff presented no evidence of the qualifications required for those positions or that she met those qualifications. Accordingly, with regard to the friend of the court and drain commission positions, plaintiff failed to present the requisite evidence to establish a genuine issue of material fact that she was cis qualified as the persons who obtained the positions. Dubey v Stroh Brewery Co, 185 Mch App 561, 564-565; 462 NW2d 758 (1990). We thus conclude that plaintiff presented a prima facie case of gender and age discrimination with respect to Swinkey’s not reappointing her to the chief assistant prosecutor position on December 31, 1992, find with respect to Swinkey’s failure to subsequently rehire her for that position. B The burden therefore shifted to defendant to articulate a legitimate, nondiscriminatory reason for not reappointing plaintiff and not subsequently rehiring her for the chief assistant prosecutor position. Dubey, supra at 563. It is undisputed that after Swinkey won the 1992 election, he did not reappoint four prosecuting attorneys who had served under Frey, his predecessor: plaintiff, another woman, and two men. In an affidavit submitted in support of his motion for summary disposition, Swinkey stated that he did not reappoint plaintiff because he wanted to hire a staff of committed and competent attorneys who would appropriately and adequately represent and further the policies and goals he promised to the electorate and that he had evaluated plaintiffs performance and decided she did not possess the requisite competence and ability. Swinkey presented evidence that, before the 1992 election, Frey came under investigation by the Attorney Grievance Commission (AGC). Swinkey presented evidence that several of the charges brought against Frey involved plaintiff, including that plaintiff and Frey represented adverse parties in a divorce action while plaintiff was chief assistant prosecutor; that plaintiff took part in Frey’s decision to fire Swinkey’s brother, an assistant prosecutor under Frey who had testified before the AGC during its investigation of Frey; and that plaintiff had been aware that Frey was monitoring Swinkey’s telephone conversations and had listened to tapes made by Frey. Plaintiff argues that defendant discharged plaintiff “for being associated with his opponent in an election” and that such reason does not constitute a legitimate reason for its adverse employment actions but is, rather, unlawful political discrimination. In response to plaintiff’s argument, Swinkey argued that, by statute, assistant prosecuting attorneys hold office at the pleasure of the prosecuting attorney. See MCL 49.35; MSA 5.795, which provides that “assistant prosecuting attorneys and other employees appointed by said prosecuting attorney under this act shall hold office during the pleasure of the prosecuting attorney.” Swinkey also argues that he could properly premise not reappointing plaintiff on plaintiff’s political affiliation. Under the circumstances presented here, we agree. A dismissal or other adverse employment action toward a public employee based solely on the employee’s private political beliefs or affiliation presumptively violates the First Amendment. Branti v Finkel, 445 US 507, 515-517; 100 S Ct 1287; 63 L Ed 2d 574 (1980); Rutan v Republican Party of Illinois, 497 US 62, 65, 71-73, 75; 110 S Ct 2729; 111 L Ed 2d 52 (1990) (noting that promotions, transfers, and recalls after layoffs of lower-level public employees based on political affiliation or support impermissibly infringe their First Amendment rights). However, political affiliation may be an acceptable requirement for some types of employment. Branti, supra at 517-518; Hall v Tollett, 128 F3d 418, 422 (CA 6, 1997). The term “political affiliation” includes not only partisan political interests and concerns, but also beliefs and commitments, Monks v Marlinga, 732 F Supp 749, 753, n 2 (ED Mich, 1990), aff’d 923 F2d 423 (CA 6, 1991). In the instant case, plaintiff and Swinkey are members of the same political party. The United States Court of Appeals for the Sixth Circuit in McCloud v Testa, 97 F3d 1536, 1553 (CA 6, 1996), held that First Amendment protection from adverse patronage employment actions extends to nonideologicai political factions of the same party. See also Monks, supra at 753, n 2. To determine whether political considerations are appropriate in making personnel decisions for a certain position, courts must examine the inherent duties of that position and the duties that the new holder of that position will perform. Hall, supra at 423. In Monks, supra, which also involved members of the same party, the plaintiffs were assistant prosecutors who brought suit against Macomb County’s prosecutor, alleging that the defendant terminated them because of their political affiliation, in violation of 42 USC 1983. The district court dismissed the plaintiffs’ political affiliation claims, concluding that political affiliation is pertinent to the effective performance of an assistant prosecutor’s duties: The Court’s research has uncovered no precedent squarely addressing whether political affiliation is pertinent to the performance of the duties of an assistant county prosecutor appointed pursuant to Michigan law. The language of the relevant statutes, however, suggests that an assistant prosecutor’s position involves, at a minimum, “a modicum of policymaking responsibility, access to confidential information, or official communication.” Mariani-Giron v Acevedo Ruiz, 877 F2d 1114, 1117 (1st Cir 1989) (emphasis in original). Specifically, assistant prosecutors “perform any and all duties pertaining to the office of prosecuting attorney at such time or times as he may be required so to do by the prosecuting attorney and during the absence or disability of the prosecuting attorney . . . .” [Quoting MCL 49.42, 49.52; MSA 5.802, 5.812.] . . . .... The mere fact that assistant prosecutors try cases under the direction of the prosecutor indicates that political loyalty is important to the office of assistant prosecutor. Every prosecuting attorney, as an elected official, necessarily possesses a political agenda. That agenda is manifested through the handling of criminal cases within such prosecutor’s county. Thus, the Court cannot escape the conclusion that political affiliation is pertinent to the effective performance of an assistant prosecutor’s duties. [Monks, supra at 753], See also McCloud, supra at 1557, in which the court established four categories which attempt to capture the positions that could possibly fall into the Branti exception, including: Category One: positions specifically named in relevant federal, state, county or municipal law to which discretionary authority with respect to the enforcement of that law or the carrying out of some other policy of political concern is granted. We conclude that under this line of authority, Swinkey could properly premise his decision not to reappoint plaintiff on plaintiffs political affiliation with his opponents. Swinkey thus articulated a legitimate, nondiscriminatory reason for not reappointing or subsequently rehiring plaintiff. The burden then shifted to plaintiff to show by a preponderance of the evidence that the legitimate reason offered by defendants was a mere pretext for discrimination. Dubey, supra at 563. A plaintiff can establish that a defendant’s articulated legitimate, nondiscriminatory reasons are pretexts (1) by showing the reasons had no basis in fact, (2) if they have a basis in fact, by showing that they were not the actual factors motivating the decision, or (3) if they were factors, by showing that they were jointly insufficient to justify the decision. Id. at 565-566. Plaintiff did not present evidence sufficient to satisfy any of the three prongs. She did not present evidence that defendants’ reasons had no basis in fact or that they were insufficient to justify the decision not to reappoint or rehire. Plaintiff also failed to introduce evidence from which a factfinder could conclude that Swinkey’s articulated reasons were not the actual factors motivating the decisions. We conclude that the circuit court properly dismissed plaintiffs claims of age and gender discrimination because plaintiff failed to present sufficient evidence to raise a triable factual issue that Swinkey’s articulated nondiscriminatory reasons for not reappointing her or subsequently rehiring her were pretexts. Grant v Michigan Osteopathic Medical Center, Inc, 172 Mich App 536, 540; 432 NW2d 313 (1988). n Plaintiff next argues that a genuine issue of material fact remained regarding whether defendants retaliated against her. We disagree. The cra prohibits an employer from retaliating against an employee for making a charge, filing a complaint, testifying, assisting, or participating in an investigation, proceeding, or hearing under the act. MCL 37.2701; MSA 3.548(701). McLemore v Detroit Receiving Hosp, 196 Mich App 391, 395-396; 493 NW2d 441 (1992). Plaintiff’s retaliation claim fails because she presented no evidence from which a reasonable factfinder could infer that there was a causal connection between her eeoc complaint and defendants’ adverse employment actions. Kocenda v Detroit Edison Co, 139 Mich App 721, 726; 363 NW2d 20 (1984); see also Parnell v Stone, 793 F Supp 742, 746 (ED Mich, 1992), aff’d 12 F3d 213 (CA 6, 1993). The only evidence plaintiff presented was that Swinkey testified at deposition that he was not pleased that plaintiff had filed an eeoc complaint and that he had talked about the complaint to one other person. This was insufficient to establish a causal link between plaintiff’s eeoc complaint and the adverse employment actions. The circuit court properly dismissed plaintiffs retaliation claim for failing to establish that a genuine issue of material fact remained regarding whether defendants retaliated against her for filing her discrimination complaint. McLemore, supra at 395-396. In light of our disposition, we need not address defendant Monroe County’s argument that it was not an employer within the meaning of the CRA. Monroe County was properly dismissed because plaintiff’s claims of discrimination and retaliation failed. in Finally, plaintiff argues that the circuit court erred in granting defendants’ motions for sanctions and costs pursuant to MCL 600.2591(3)(a); MSA 27A.2591(3)(a), MCR 2.114(F), and MCR 2.625(A)(2). A circuit court’s finding that a claim is frivolous is reviewed for clear error. LaRose Market, Inc v Sylvan Center, Inc, 209 Mich App 201, 210; 530 NW2d 505 (1995). The trial court expressly found that the action was brought to harass and embarrass defendant Swinkey and with malice. While the conclusion was not compelled, we are unable to conclude that the circuit court’s finding was clearly erroneous. Affirmed. Plaintiff also presented evidence that her younger male replacement left after less than a year on the job and that another younger male was hired as chief assistant prosecutor. Plaintiff also applied for a position with the probate court. However, at the hearing regarding defendants’ motion for summary disposition, plaintiff’s counsel withdrew plaintiff’s claim regarding that position. Plaintiff has cited no authority in support of this argument. In McCloud, several Franklin County auditor’s office employees, who were Republicans, brought suit when they were dismissed following the resignation of the Ohio Auditor and the appointment of a rival Republican to serve out the term. Id. at 1539. The plaintiffs alleged that their First Amendment rights to be free of patronage dismissals were violated, contravening 42 USC 1983. Id. at 1541. Plaintiff alleged that Monroe County funded and assisted in operating the office of Monroe County prosecutor and assisted in staffing that office with assistant prosecutors, all of whom are Monroe County employees.

NORRIS v STATE FARM FIRE & CASUALTY COMPANY Docket No. 195422. Submitted October 8, 1997, at Detroit. Decided April 10, 1998, at 9:15 A.M. Gail Norris, who suffers from rheumatoid arthritis, brought an action in the Wayne Circuit Court against State Farm Fire and Casualty Company and other State Farm companies, and Martha J. Piney, alleging claims arising out of her discharge from employment with Piney’s insurance agency. The court, Kirsten Frank Kelly, J., granted summary disposition in favor of the defendants. The plaintiff appealed with regard to the dismissal of her claims alleging unlawful discrimination in violation of the Handicappers’ Civil Rights Act (hora), MCL 37.1101 et seq.\ MSA 3.550(101) et seq., intentional infliction of emotional distress, and negligent supervision. The Court of Appeals held: 1. The plaintiff established a genuine issue of material fact regarding whether she was unlawfully discriminated against because of her handicap. Because the plaintiff testified regarding an alleged admission by Piney of employment discrimination based on the plaintiff’s handicap, the burden-shifting approach of McDonnell Douglas Corp v Green, 411 US 792 (1973), was not applicable. The court erred in granting summary disposition on the basis that the plaintiff failed to satisfy her burdens of production under McDonnell Douglas. Therefore, the traditional burdens of proof were applicable. However, the plaintiff always bears the burden of proving that she was qualified for the position from which she was discharged. The plaintiff sustained her burden for purposes of the motion for summary disposition. A genuine issue of material fact exists regarding whether the plaintiff was qualified for the position at the time of her discharge. 2. The court did not err in granting summary disposition for State Farm with regard to the claims of unlawful discrimination and negligent supervision. 3. Except in a case involving worker’s compensation benefits, the correct standard to address respondeat superior liability is the control test, not the economic-reality test The plaintiff did not show that State Farm had the right to control the employment decisions of Piney. Because defendants State Farm were not the employer of Piney, they owed no duty to the plaintiff regarding the claim of negligent supervision of Piney. Summary disposition was properly granted in this regard. 4. The alleged conduct of the defendants was not sufficiently outrageous to give rise to a separate cause of action for intentional infliction of emotional distress. The court properly granted the defendants’ motion for summary disposition regarding the claims of intentional infliction of emotional distress. Affirmed with regard to defendants State Farm, affirmed in part and reversed in part with regard to defendant Piney. Hoekstra, J., dissenting, stated that the court did not err in granting the defendants’ summary disposition with regard to the claim alleging violation of the hcra because the plaintiff did not establish that there was a genuine issue of material fact regarding whether she was qualified for the position from which she was terminated. To be qualified, the plaintiff must have been performing the job at a level that met her employer’s legitimate expectations. The defendants presented well-documented evidence that the plaintiff was not working at a level that met Piney’s expectations, the evidence that the plaintiff offered regarding her qualifications was irrelevant, the plaintiff did not present relevant evidence to show that she was doing her job well enough to rule out the possibility that she was discharged for inadequate job performance, and the plaintiff failed to prove a prima facie case of handicapper discrimination. The order of the court should be affumed. 1. Civil Rights — Employment Discrimination — Direct Evidence — Borden of Proof. Traditional burdens of proof apply and the burden-shifting approach of McDonnell Douglas Corp v Green, 411 US 792 (1973), is not applicable where a plaintiff alleging unlawful employment discrimination based on the plaintiff’s handicap presents direct evidence of unlawful discrimination by the employer; nonetheless, the plaintiff always bears the burden of proving that the plaintiff is otherwise qualified for the position in question. 2. Master and Servant — Respondeat Superior — Control Test. ... The correct standard to assess respondeat superior liability in all cases except those concerning worker’s compensation benefits is the control test, not the economic-reality test. Powell & Gerisch (by Jonathan P. Gerisch), for the plaintiff. Pepper, Hamilton & Scheetz (by Robert C. Ludolph and Judith E. Coliman), for State Farm Fire and Casualty Company, State Farm Annuity and Life Insurance Company, State Farm General Insurance Company, State Farm Life Insurance Company, and State Farm Mutual Insurance Company. Sullivan, Ward, Bone, Tyler & Asher, PC. (by A. Stuart Tompkins and Sheri B. Cataldo), for Martha J. Piney. Before: Corrigan, C.J., and Griffin and Hoekstra, JJ. Griffin, J. Plaintiff appeals as of right an order granting summary disposition in favor of defendants regarding plaintiffs claims arising out of her discharge from employment. We reverse in part and affirm in part with regard to defendant Martha J. Piney and affirm with regard to defendants State Fitrm Fire and Casualty Company, State Farm Annuity and Life Insurance Company, State Farm General Insurance Company, State Farm Life Insurance Company, and State Farm Mutual Insurance Company. i Plaintiff, who suffers from rheumatoid arthritis, began working for defendant Martha J. Piney (Piney) in November 1994 as a probationary employee. Martha J. Piney is the owner and operator of the Piney Insurance Agency, which sells exclusively insurance policies written by defendants State Farm. On February 24, 1995, following a satisfactory three-month job performance review, defendant Piney offered and plaintiff accepted a position of regular employment as a claims specialist. However, less than three weeks later, on March 10, defendant Piney terminated plaintiffs employment for alleged poor job performance. Defendant Piney claims that the employment deficiencies noted in plaintiffs thirty- and sixty-day reviews had escalated to the extent that plaintiffs overall job performance was unsatisfactory. However, in her deposition, plaintiff alleges that at the conclusion of her March 10 meeting with defendant Piney, Piney admitted to plaintiff that the true reason for her discharge was “[i]t’s because you’re handicap [sic].” Following her discharge, plaintiff filed suit against defendant Piney and defendants State Farm, alleging a variety of claims. The lower court granted summary disposition in favor of defendants pursuant to MCR 2.116(C)(10). Plaintiff appeals as of right the dismissal of her claims of alleged unlawful discrimination in violation of the Michigan Handicappers’ Civil Rights Act (HORA), MCL 37.1101 et seq.-, MSA 3.550(101) et seq., intentional infliction of emotional distress, and negligent supervision. n A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual support for a claim. In Quinto v Cross & Peters Co, 451 Mich 358, 362-363; 547 NW2d 314 (1996), the Supreme Court set forth the following standards for deciding such a notion: In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), a trial court considers affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law. MCR 2.116(0(10), (G)(4). In presenting a motion for summary disposition, the moving party has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary evidence. Neubacher v Globe Furniture Rentals, 205 Mich App 418, 420; 522 NW2d 335 (1994). The burden then shifts to the opposing party to establish that a genuine issue of disputed fact exists. Id. Where the burden of proof at trial on a dispositive issue rests on a nonmoving party, the non-moving party may not rely on mere allegations or denials in pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists. McCart v J Walter Thompson, 437 Mich 109, 115; 469 NW2d 284 (1991). If the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly granted. McCormic v Auto Club Ins Ass’n, 202 Mich App 233, 237; 507 NW2d 741 (1993). In the present case, plaintiff has established a genuine issue of material fact regarding whether she was unlawfully discriminated against because of her handicap. Plaintiff testified regarding an alleged admission by defendant Piney of employment discrimination based on her handicap. Because direct evidence of unlawful discrimination was presented, the burden-shifting approach of McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), is not applicable. Harrison v Olde Financial Corp, 225 Mich App 601; 572 NW2d 679 (1997). Accordingly, the lower court erred in granting summary disposition on the basis that plaintiff failed to satisfy her burdens of production under McDonnell Douglas. As the Sixth Circuit Court of Appeals stated in Monette v Electronic Data Systems Corp, 90 F3d 1173, 1184 (CA 6, 1996): [W]hen the plaintiff has direct evidence of discrimination based on his or her disability, there is no need for a McDonnell Douglas type burden shift and traditional burdens of proof will apply. . . . Nonetheless, the disabled individual always bears the burden of proving that he or she is “otherwise qualified” for the position in question, absent the challenged job function or with the proposed accommodation. Because plaintiff presented direct evidence of unlawful discrimination, the pivotal issue is whether plaintiff submitted sufficient evidence to establish a genuine issue of material fact that she was qualified for the position from which she was discharged. Contrary to the position taken by the dissent, we conclude that plaintiff has sustained her burden for purposes of summary disposition. We are mindful that it is not the role of the court to evaluate the strength of the evidence in ruling regarding a motion for summary disposition. Rather, when deciding a motion for summary disposition that alleges no genuine issue of material fact, [a] trial court tests the factual support of a plaintiff’s claim when it rules upon a motion for summary disposition filed under MCR 2.116(C)(10). Lichon v American Universal Ins Co, 435 Mich 408, 414; 459 NW2d 288 (1990). The court must consider the affidavits, pleadings, depositions, admissions, and documentary evidence submitted or filed in the action. The court is not permitted to assess credibility, or to determine facts on a motion for summary judgment. Zamler v Smith, 375 Mich 675, 678-679; 135 NW2d 349 (1965). Instead, the court’s task is to review the record evidence, and all reasonable inferences therefrom, and decide whether a genuine issue of any material fact exists to warrant a trial. [Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). ] Viewing the evidence in a light most favorable to the nonmoving party, we conclude that plaintiff presented sufficient evidence for a reasonable person to conclude that she was qualified for the job from which she was discharged. In particular, in a ninety-day performance review held less than three weeks before plaintiffs discharge,, defendant Piney evaluated plaintiffs job performance as satisfactory. In light of plaintiff’s satisfactory job performance, defendant Piney thereafter offered plaintiff a regular full-time position. Piney’s February 24, 1995, offer of permanent employment to plaintiff states as follows: Gail Norris Start Date: 11/7/94 2/24/94 [sic] Three month review. I have worked with Gail for three months and two weeks now. In three months she has proven to be a quick learner, very task oriented, and very dependable. At this time I am making an offer from temporary employment to holding the position of claims specialist for my agency with the hopes that Gail will continue to develop and grow as an expert in her position and continue to strive and reach the goals that are set for this agency. Continued salary with benefit package as attached and presented at time of original start date. 2/24/95 /s/ Gail Norris 2/24/95 Is/ Martha J. Piney, agent In addition to defendant Piney’s admissions regarding plaintiffs job qualifications, plaintiff also presented the deposition testimony of coemployees who noted no change in plaintiffs job performance in the period from February 24, 1995, until her discharge. Finally, although Piney claims that plaintiff was discharged because of poor customer-service skills, plaintiff submitted evidence that there were no complaints from customers regarding her job performance. After recognizing that fact finding and assessment of credibility are inappropriate when ruling regarding a motion for summary disposition, Dzierbowicz v American Seating Co, 450 Mich 969; 544 NW2d 473 (1996); Crittenden v Chrysler Corp, 178 Mich App 324; 443 NW2d 412 (1989), we conclude that a genuine issue of material fact exists regarding whether plaintiff was qualified for the position at the time of her discharge. m Next, plaintiff claims that the lower court committed error requiring reversal in granting summary disposition in favor of defendants State Farm with regard to plaintiffs claims of unlawful discrimination and negligent supervision. We disagree. Regarding these issues, both sides claim that the appropriate test for respondeat superior liability is the economic-reality test as set forth in McCarthy v State Farm Ins Co, 170 Mich App 451; 428 NW2d 692 (1988). Although McCarthy appears to be applicable, we hold that McCarthy was wrongly decided and therefore should not be followed. McCarthy relied on worker’s compensation cases in holding that respondeat superior liability should be decided on the basis of “the economic reality test.” However, after McCarthy, it is now well established that except for worker’s compensation benefits, the correct standard to assess respondeat superior liability is the control test, not the economic-reality test. Hoffman v JDM Associates, Inc, 213 Mich App 466, 468-469; 540 NW2d 689 (1995); Kral v Patrico’s Transit Mixing Co, 181 Mich App 226, 230-232; 448 NW2d 790 (1989). Cf. Meridian Mut Ins Co v Wypij, 226 Mich App 276; 573 NW2d 320 (1997). Here, plaintiff presented evidence of the economic dependency of defendant Piney on defendants State Farm. However, plaintiff presented no evidence that defendants State Farm had any right to control the employment decisions of Piney. Absent any right of control, there is no liability of defendants State Farm for the action of defendant Piney under the doctrine of respondeat superior. Hoffman, supra; Kral, supra. Similarly, because defendants State Farm were not the employer of defendant Piney, defendants State Farm owed no duty to plaintiff regarding the claim of alleged negligent supervision of defendant Piney. See, generally, Janice v Hondzinski, 176 Mich App 49; 439 NW2d 276 (1989). For these reasons, the lower court was correct in granting summary disposition in favor of defendants State Farm. Although the lower court’s decision was based on a different rationale, we will not reverse when the lower court reaches the correct result albeit for the wrong reason. Porter v Royal Oak, 214 Mich App 478, 488; 542 NW2d 905 (1995); State Mut Ins Co v Russell, 185 Mich App 521, 228; 462 NW2d 785 (1990). IV Finally, we conclude that the lower court correctly granted defendants’ motion for summary disposition regarding plaintiff’s claims of intentional infliction of emotional distress. Assuming the facts as alleged by plaintiff to be true, defendants’ conduct was not sufficiently outrageous to give rise to a separate cause of action for intentional infliction of emotional distress. Doe v Mills, 212 Mich App 73, 91; 536 NW2d 824 (1995). For these reasons, we reverse in part and affirm in part with regard to defendant Piney and affirm with regard to defendants State Farm. Defendants State Farm may recover taxable costs. No costs in favor of plaintiff or defendant Piney, neither party having prevailed in full. Corrigan, C.J., concurred. As we noted in Durant [v Stahlin, 375 Mich 628, 646-647; 135 NW2d 392 (1965)], “there is a great difference between an inquiry to determine whether or not there is an issue of fact and a trial to decide a disputed issue of fact.” McCarthy predates MCR 7.215(H) and its predecessors, Administrative Orders 1990-6, 1994-4, and 1996-4. Accordingly, McCarthy is not preeedentially binding on this Court. Meridian addresses an employee exclusion in an insurance policy that does not define the term “employee.” The Meridian panel’s holding regarding the undefined insurance policy term is not applicable to the present case. To the extent that dicta in Meridian conflicts with our decision, we chose not to follow it and note that the Meridian panel was obligated to follow our prior decision, Hoffman v JDM Associates, Inc, supra,. Hoekstra, J. (dissenting). I respectfully dissent. I disagree with the majority’s conclusion in section n, which is that the lower court erred in granting defendants summary disposition of plaintiff’s claim brought under the Michigan Handicappers’ Civil Rights Act (HORA), MCL 37.1101 et seq.; MSA 3.550(101) et seq. I would affirm the order of the lower court granting defendants’ motions for summary disposition pursuant to MCR 2.116(C)(10) because plaintiff has not established a genuine issue of material fact about whether she was qualified for the position from which she was terminated. The majority correctly states that the lower court’s analysis was improper in this case because plaintiff presented direct evidence of discriminatory intent, namely, defendant Martha J. Piney’s alleged statement that she terminated plaintiff’s employment because of plaintiff’s handicap. When a plaintiff is able to produce direct evidence of discriminatory intent, there is no need to utilize the burden of proof analysis established in McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973). Matras v Amoco Oil Co, 424 Mich 675, 683-684; 385 NW2d 586 (1986); Harrison v Olde Financial Corp, 225 Mich App 601, 609; 572 NW2d 679 (1997). In Harrison, a race discrimination case, this Court explained how a court should instead analyze whether summary disposition pursuant to MCR 2.116(C)(10) is appropriate in cases in which a plaintiff presents direct evidence of discriminatory animus. There, this Court held the following: [W]e hold that the following principles of proof apply in a typical single-plaintiff, mixed-motive employment discrimination case. First, as with circumstantial discrimination cases, in a case involving direct evidence of discrimination, the plaintiff always bears the burden of persuading the trier of fact that the employer acted with illegal discriminatory animus. Second, whatever the nature of the challenged employment action, the plaintiff must establish evidence of the plaintiff’s qualification (or other eligibility) and direct proof that the discriminatory animus was causally related to the decisionmaker’s action. Upon such a presentation of proofs, an employer may not avoid trial by merely “articulating” a nondiscriminatory reason for its action. Under such circumstances, the case ordinarily must be submitted to

Doris Blanchette vs. School Committee of Westwood. Norfolk. December 9, 1997. - April 6, 1998. Present: Wilkins, C.J., Abrams, Lynch, Greaney, Fried, Marshall, & Ireland, JJ. School and School Committee, Arbitration, Collective bargaining, Termination of employment. Arbitration, Collective bargaining, School committee, Waiver. Labor, Arbitration, Collective bargaining. Anti-Discrimination Law, Arbitration, Employment. Employment, Retaliation, Sexual harassment, Termination. Waiver. Judicial Estoppel. An employee of a school committee who filed an action alleging violation of G. L. c. 151B, § 4 (4), was not precluded from raising the issue whether the school committee unlawfully retaliated against her for filing a charge of sexual harassment with State and Federal agencies by reason of her having proceeded to arbitration on the same facts pursuant to a collective bargaining agreement that by statute and its own terms was limited to disputes concerning its own interpretation and application [179-183]; nor was the doctrine of waiver applicable to thé circumstances [183-184], The doctrine of judicial estoppel was not applicable in circumstances in which a civil plaintiff was not asserting an inconsistent position from that put forward in an arbitration proceeding under a collective bargaining agreement involving the same factual situation. [184-185] Civil action commenced in the Superior Court Department on January 10, 1996. The case was heard by Barbara A. Dortch-Okara, J., on a motion to dismiss. Leave to prosecute an interlocutory appeal was allowed in the Appeals Court by Christopher J. Armstrong, J. The Supreme Judicial Court granted an application for direct appellate review. Kay H. Hodge (Geoffrey R. Bok with her) for the defendant. Albert W. Wallis (Betty A. Gittes & Daniel S. O’Connor with him) for the plaintiff. Harold L. Lichten & Warren H. Pyle for the Massachusetts National Employment Lawyers Association & another, amici curiae, submitted a brief. Judith M. Neumann for the Massachusetts Teachers Association, amicus curiae, submitted a brief. Ireland, J. The plaintiff, Doris Blanchette, a former employee of the defendant, school committee of Westwood (committee), commenced this action in the Superior Court, alleging that the committee, in violation of G. L. c. 15IB, § 4 (4), retaliated against her by evaluating her unfairly and by failing to renew her employment because she had filed a charge of sexual harassment with the Equal Employment Opportunity Commission (EEOC) and the Massachusetts Commission Against Discrimination (MCAD). The committee moved to dismiss or for summary judgment, contending that the claims raised in this action had been fully and fairly adjudicated in an arbitration proceeding pursuant to the terms of a collective bargaining agreement (agreement) between the Westwood Teachers Association (association) and the committee. The judge denied the motion. A single justice of the Appeals Court granted the committee’s petition for leave to prosecute an interlocutory appeal, and we granted the committee’s application for direct appellate review. We now affirm. 1. Facts. Blanchette began working as a library media specialist at the Thurston Middle School (Thurston) in Westwood in September, 1990. At all relevant times, Blanchette was a member of the association, and the association had an agreement with the committee. On June 8, 1992, Blanchette complained to the superintendent of schools that she had been sexually harassed by Thurston’s principal. The superintendent investigated Blanchette’s allegations and similar allegations that other members of the association subsequently made. As a result of the investigation, the principal resigned on July 3, 1992. On August 7, 1992, Blanchette filed a charge of sexual harassment against the committee with the EEOC and the MCAD. Following an investigation, the EEOC and the MCAD dismissed Blanchette’s charge in May, 1994. In the fall of 1992, Thurston’s new principal began formal evaluations of Blanchette’s performance, pursuant to the agreement’s procedures for awarding tenure. On January 13, 1993, the principal wrote a letter to Blanchette discussing her job performance in mostly negative terms. In March, 1993, the principal completed the formal evaluation procedures and recommended to the committee that Blanchette not receive tenure. Based on this recommendation, the committee did not grant Blanchette tenure and did not renew her employment at the conclusion of the 1992-1993 school year. 2. The grievances. The association filed two grievances on behalf of Blanchette. The first grievance was filed on February 11, 1993, and concerned the principal’s letter of January 13. The association claimed that the letter violated the agreement’s evaluation procedures and was in retaliation against Blanchette because she had filed the sexual harassment charge with the EEOC and the MCAD. After the grievance was denied at each procedural level contained in the agreement, the association invoked its right under the agreement to demand binding arbitration. The second grievance was filed on May 17, 1993, and concerned the committee’s failure to renew Blanchette’s contract. The association again claimed that the decision was in retaliation against Blanchette because she had filed the sexual harassment charge. This grievance was also denied, and the association again invoked its right under the agreement to demand binding arbitration. By mutual consent, the two grievances were consolidated into a single arbitration. 3. The arbitration. The arbitration hearing began on March 10, 1994. At the outset, the committee contended that the arbitrator did not have authority to hear the association’s retaliation claims because the agreement contained no language that prohibited such retaliation. The association argued in response that the agreement incorporated by reference State and Federal antidiscrimination laws, including G. L. c. 15IB, § 4 (4), and Title VII of the Federal Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (1994) (Title VII), which prohibit retaliation against an employee for filing a harassment charge. In an interim ruling issued on May 17, 1994, the arbitrator concluded that the retaliation claim was arbitrable. Relying on explicit references in the agreement to external law, the arbitrator determined that “the parties intended that claims of discrimination be examined in light of such external law, as well as the language of the Agreement.” On February 29, 1996, the arbitrator issued an opinion and award in which she determined that the committee had violated the agreement in its evaluation and treatment of Blanchette. On March 25, 1996, the arbitrator issued a final award, consisting of the expungement of various offending documents from Blanchette’s personnel file, reinstatement of Blanchette to her former position (in order to redo her third year and be properly and fairly evaluated for tenure), and back pay. The arbitrator offered Blanchette the option, in lieu of reinstatement, of receiving back pay as a lump-sum payment with interest.* 4. The Superior Court action. On January 10, 1996, Blanchette filed this action in the Superior Court, while the arbitration was still pending. Based on the same facts at issue in the arbitration, Blanchette claimed that the committee had violated her civil rights under G. L. c. 151B, § 4 (4), by retaliating against her for filing a charge of sexual harassment with the EEOC and the MCAD (statutory civil rights claim). The committee moved to dismiss or for summary judgment. Relying on Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), and Boston v. Massachusetts Comm’n Against Discrimination, 39 Mass. App. Ct. 234 (1995), the judge denied the motion. 5. Discussion. The committee argues that the doctrines of preclusion, waiver, and judicial estoppel prevent Blanchette from pursuing her statutory civil rights claim in a judicial forum. We address the arguments under each doctrine separately. a. Preclusion. By statute, parties to a collective bargaining agreement may include grievance procedures “culminating in final and binding arbitration” in their agreement. G. L. c. 150E, § 8. However, the grievance procedures can apply only to disputes “concerning the interpretation or application” of any such agreement. Id. Consistent with this statutory treatment, art. XVII of the agreement here states that the grievance procedures “shall be applicable only to questions of interpretation of the terms of this Agreement.” We have held that the prior submission of a claim to arbitration may have a preclusive effect on the same claim in a subsequent court action. See Miles v. Aetna Cas. & Sur. Co., 412 Mass. 424, 427 (1992). The inquiry turns, in large part, on whether the “right” or “issue” on which preclusion is sought has been “the product of full litigation and careful decision.” Id., quoting Home Owners Fed. Sav. & Loan Ass’n v. Northwestern Fire & Marine Ins. Co., 354 Mass. 448, 455 (1968). In Alexander v. Gardner-Denver Co., 415 U.S. 36, 43 (1974), the United States Supreme Court held that an employee who had exhausted his remedies under the grievance procedures of a collective bargaining agreement was not precluded from pursuing a judicial action under Title VII, because the “rights” that concern the interpretation and application of a collective bargaining agreement are distinguishable from the statutory “rights” to be free from discrimination in the workplace under Title VII. Id. at 49-50. In particular, the Court stated that: “In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective-bargaining agreement. By contrast, in filing a lawsuit under Title VH, an employee asserts independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence. And certainly no inconsistency results from permitting both rights to be enforced in their respectively appropriate forums.” Id. The Court further noted that “in instituting an action under Title VII, the employee is not seeking review of the arbitrator’s decision. Rather, he is asserting a statutory right independent of the arbitration process.” Id. at 54. We reached a similar result interpreting our State antidiscrimination statute in School Comm. of Brockton v. Massachusetts Comm’n Against Discrimination, 377 Mass. 392, 399 (1979), where we relied on Alexander to distinguish rights that are part of a collective bargaining process from individual rights conferred by G. L. c. 151B, § 4, including the right to equal employment opportunities. The Appeals Court discussed this distinction in more detail in Boston v. Massachusetts Comm’n Against Discrimination, 39 Mass. App. Ct. 234, 238 (1995), and concluded that the “dominant idea underlying the [Alexander] line of cases is that when Congress accords a person an independent statutory right (or in the State context, when the Legislature accords such a right), that public right ... is independent and paramount to the privately arrived at collective bargaining agreement.” The Appeals Court then held that submitting a claim of racial discrimination to arbitration under a collective bargaining agreement did not give preclusive effect to the arbitrator’s decision in a subsequent discrimination action brought before a court or specialized agency under G. L. c. 151B, § 4. Id. Applying these analyses to the instant case, the arbitrator determined that the committee “violated the Collective Bargaining Agreement with respect to its evaluation and treatment” of Blanchette. However, the arbitrator also expressly recognized that her opinion and award of February 29, 1996, pertained only to “contractual violations.” She indicated that there may have been additional “statutory violations” with respect to any “statute(s) prohibiting retaliation or reprisal” against Blanchette, but this was a “legal question” and she did not address it. Consistent with both G. L. c. 150E, § 8, and art. XVH of the agreement, the arbitrator thus did not hear Blanchette’s statutory civil rights claim, because that claim did not involve a question of interpreting the agreement. As a result, the rights on which the committee is seeking preclusion have not been the product of full litigation and carefhl decision. See Miles, supra. We thus conclude that the preclusion doctrines do not apply to Blanchette here. Blanchette is not getting a second bite of the same apple, as the committee contends. Instead, she is seeking single bites from two separate apples as she looks to enforce two different sets of rights in the respective forums that are available to her. Nothing in the preclusion doctrine prevents this. The committee attempts to distinguish this case from Alexander on the basis that the collective bargaining agreement in that case contained a general nondiscrimination clause only, while the agreement here explicitly incorporated Federal and State law. However, the committee gives us no reason why such a distinction should be of any importance. Similarly, the committee attempts to distinguish this case because Blanchette prevailed in the arbitration. We find nothing in the language of Alexander and its progeny or in our own cases that makes such a distinction, nor has the committee pointed us to any such language. The committee also urges us to abandon the principles of Alexander in favor of Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26-27 (1991), in which the Supreme Court held that an employee’s statutory claims under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. (ADEA), could be submitted to arbitration and that such submission precluded a subsequent judicial review of the claims. We do not necessarily follow the interpretation of Federal antidiscrimination statutes in construing G. L. c. 151B, § 4. See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 440-441 (1995), citing College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 163 (1987). Were we persuaded that we should do so here, we note first that Gilmer appears to strike out in a different direction from Alexander. However, the Supreme Court has gone to great lengths to distinguish the two cases and to emphasize their over-all consistency, both in Gilmer, supra at 35, and in Livadas v. Bradshaw, 512 U.S. 107, 127 n.21 (1994). The distinctions that are of particular relevance here are that Gilmer involved an employee who was not covered by a collective bargaining agreement and who had signed an agreement requiring that all disputes be resolved by arbitration. Here, Blanchette was a member of a union covered by a collective bargaining agreement and the agreement, both by statute and by its own terms, was limited to disputes concerning its own interpretation and application. Accordingly, this case more closely follows Alexander than Gilmer. 8Even if we were persuaded to follow the interpretation of Federal antidiscrimination statutes in construing G. L. c. 15IB, § 4, we would agree with the United States Court of Appeals for the Eleventh Circuit that, although Gilmer may have cut back Alexander, the latter case remains the applicable standard for cases of this type. See Brisentine v. Stone & Webster Eng’g Corp., 117 F.3d 519, 525 (11th Cir. 1997). b. Waiver. We note first that Blanchette did not waive her right to pursue her statutory civil rights claim in a judicial forum merely by being a member of a union that was covered by a collective bargaining agreement. Although a union has the power to waive statutory rights related to collective activity, rights of the kind protected by G. L. c. 151B, § 4, which are of a personal, and not merely economic, nature are beyond the union’s ability to bargain away. See School Comm. of Brockton v. Massachusetts Comm’n Against Discrimination, 377 Mass. 392, 399 (1979), citing Alexander, supra at 51. The larger question here is whether Blanchette, by her own individual actions, waived her right to pursue her statutory civil rights claim in a judicial forum. The committee argues that Blanchette’s voluntary choice to request the association to proceed to arbitration constituted such a waiver, because Blanchette could have proceeded with her statutory civil rights claim in a judicial forum in the first place. However, the committee’s argument here is based solely on its contention that Blanchette’s statutory civil rights claim was, in fact, brought to arbitration. This contention is incorrect. See supra at 180-183. Accordingly, the committee’s argument is without merit. Blanchette may have been able explicitly and voluntarily to waive her right to pursue her statutory civil rights claim in a judicial forum. See Gilmer, supra at 26, quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985). See also Alexander, supra at 52; Mugnano-Bornstein v. Crowell, 42 Mass. App. Ct. 347, 351-353 (1997). However, there is no evidence that Blanchette made such an explicit and voluntary waiver, nor does the committee contend that she ever did so. We thus conclude that the waiver doctrine does not apply to Blanchette here. c. Judicial estoppel. Judicial estoppel is an equitable doctrine that precludes a party from asserting a position in one legal proceeding that is contrary to a position it had previously asserted in another proceeding. Fay v. Federal Nat’l Mtge. Ass’n, 419 Mass. 782, 787 (1995). We have never precisely defined the specific requirements for judicial estoppel and need not do so here. It is sufficient to note that in deciding whether a party should be judicially estopped, “we will look to see whether that party is seeking to use the judicial process in an inconsistent way that courts should not tolerate.” East Cambridge Sav. Bank v. Wheeler, 422 Mass. 621, 623 (1996). At the arbitration, the association argued that the arbitrator should award the “full range” of both contractual and statutory remedies. From this, the committee concludes that it is inconsistent for Blanchette to argue now that additional remedies could be available in a different legal proceeding. Logically,.the association’s argument that the arbitrator should award the full range of statutory damages can pertain only to those damages that were within her authority to award in the first place. It was within the arbitrator’s authority to award some damages as a result of the committee’s violations of the antidiscrimination statutes, because those statutes were incorporated into the agreement. But these “statutory” damages were necessarily limited by G. L. c. 150E, § 8, and art. XVII of the agreement to the impact such violations had on Blanchette’s rights under the agreement, because the arbitrator had no authority to hear any other matters. See supra at 180. The arbitrator could not and did not hear Blanchette’s statutory civil rights claim under G. L. c. 151B, § 4 (4), see supra at 180-184, and thus could not award damages with respect to this claim. Neither Blanchette nor the association have argued to the contrary. There is thus no inconsistency in Blanchette’s looking now to a different legal proceeding for damages that were not available to her in the arbitration. Because Blanchette is not asserting an inconsistent position, the doctrine of judicial estoppel does not apply here. Larson v. Larson, 30 Mass. App. Ct. 418, 427-428 (1991). Of course, any remedies that Blanchette may receive from judicial action with respect to her statutory civil rights claim cannot be duplicative of the remedies that she may already have recieved as a result of the arbitration. See Szalla v. Locke, 421 Mass. 448, 453 (1995), and cases cited. 6. Conclusion. For the reasons stated above, the doctrines of