Discrimination Cases

COLLINS v BLUE CROSS BLUE SHIELD OF MICHIGAN Docket No. 200333. Submitted December 3, 1997, at Detroit. Decided March 13, 1998, at 9:05 am. Leave to appeal sought. Irma Collins and Blue Cross Blue Shield of Michigan (bcbsm) submitted to arbitration her claim that bcbsm, in terminating her employment, had discriminated against her on the basis of a psychiatric disorder in violation of the Americans with Disabilities Act (ada), 42 USC 12101 et seq., and the Michigan Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq. Collins had gone on psychiatric disability, bcbsm, seeking to confirm Collins’ continued eligibility for disability benefits, had her evaluated by a psychiatrist other than the one who was treating her. The psychiatrist chosen by bcbsm had reported back to bcbsm that Collins stated that she had thought of killing her immediate supervisor but had decided not to do so when a strike caused the redeployment of the staff in her department. The arbitrator ruled in Collins’ favor and ordered Collins reinstated with back pay. The Wayne Circuit Court, J. Phillip Jourdan, J, confirmed the arbitration award. Bcbsm appealed. The Court of Appeals held: 1. The arbitration agreement between the parties was not made invalid by a provision that allowed judicial review for errors of law. The provision is consistent with MCL 600.5001 et seq.; MSA 27A.5001 et seq., and MCR 3.602, which govern statutory arbitration awards. Under the court rule, a statutory arbitration award may be vacated in limited circumstances, such as when an arbitrator’s powers are exceeded. An arbitrator’s scope of authority is exceeded when the arbitrator acts in contravention of controlling principles of law. 2. The arbitrator in this case committed an error of law in ruling that Collins’ discharge violated the ada and the hcra. Collins did not establish a prima facie case under the ada or the hcra. The ada requires a claimant to prove qualification to perform the essential functions of the job, and the hcra requires a claimant to prove that the claimant’s handicap was unrelated to ability to perform the duties of the job or position or was unrelated to the claimant’s qualifications for employment. Here, Collins’ homicidal ideation left her unqualified for employment by bcbsm. A discharge for misconduct does not violate the ADA or the hcra, even where the misconduct is a manifestation of the employee’s disability, bcbsm’s perception that Collins was a risk to workplace safety, as opposed to any actual instances of Collins endangering the workplace, was sufficient cause for discharge in view of the specific and detailed threat made by Collins. Reasonable accommodation for a disabled or handicapped employee is required of an employer by the ada and the hcea only where the employee is qualified for employment. Circuit court order confirming arbitration award vacated. 1. Arbitration — Judicial Review. A statutory arbitration award may be vacated in limited circumstances, such as where an arbitrator evidences partiality, refuses to hear material evidence, or exceeds powers (MCL 600.5001 et seq.; MSA 27A.5001 et seq.; MCR 3.602). 2. Arbitration — Arbitrator’s Scope op Authority. An arbitrator’s scope of authority is exceeded where the arbitrator acts beyond the material terms of the contract from which authority is drawn, or in contravention of controlling principles of law. 3. Civil Rights — Americans With Disabilities Act — Michigan Handicappers’ Civil Rights Act — Employment Discrimination — Misconduct. A prima facie case of employment discrimination in violation of the Americans with Disabilities Act or the Michigan Handicappers’ Civil Rights Act requires a demonstration by the employee of qualification to perform the job; misconduct, even if a manifestation of a disability or handicap, disqualifies an employee such that a discharge for misconduct cannot violate either act (42 USC 12101 et seq.; MCL 37.1101 et seq.; MSA 3.550[101] et seq.). 4. Civil Rights — Americans With Disabilities Act — Michigan Handicappers’ Civil Rights Act — Employment Discharge — Misconduct — Homicidal Threats. An employer’s perception of an employee as a risk to workplace safety, formed from a report of specific and homicidal ideation by the employee involving a co-worker by a psychiatrist assigned by the employer to evaluate the employee’s continued qualification for disability benefits for a psychiatric condition, provides a sufficient ground for discharge for misconduct; such a discharge does not violate the Americans with Disabilities Act or the Michigan Handicappers’ Civil Rights Act (42 USC 12101 et seq.; MCL 37.1101 et seq.; MSA 3.550[101] et seq.). 5. Ckil Rights — Americans With Disabilities Act — Michigan Handicappers’ Civil Rights Act — Employment Discrimination — Reasonable Accommodation. An employers’ duty under the Americans with Disabilities Act and the Michigan Handicappers’ Civil Rights Act to make reasonable accommodations for an employee’s disability or handicap extends only to those who are qualified for employment, i.e., whose disabilities or handicaps are unrelated to their abilities to perform their jobs (42 USC 12101 et seq.; MCL 37.1101 et seq.; MSA 3.550[101] et seq.). Nelson S. Chase and William L. Fischel, for the plaintiff. Kienbaum Opperwall Hardy & Pellón, P.L.C. (by Theodore R. Opperwall and Noel D. Massie) (Frank W. Jackson, of Counsel), for the defendant. Before: Holbrook, Jr., P.J., and Young and J. M. Batzer, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Per Curiam. While plaintiff was on psychiatric disability leave from her employment with defendant, plaintiff expressed homicidal ideation regarding her immediate supervisor to a psychiatrist assigned to evaluate her disability claim. After she returned to work, plaintiff was terminated as a result of those statements. Plaintiff claimed discrimination under the Americans with Disabilities Act (ADA), 42 USC 12101 et seq., and the Michigan Handicappers’ Civil Rights Act (HCRA), MCL 37.1101 et seq., MSA 3.550(101) et seg.The matter was submitted to binding arbitration and, following a hearing, the arbitrator ruled in plaintiff’s favor. Eventually, an order confirming the arbitrator’s ruling was entered by the circuit court. Defendant now brings this appeal, and we vacate the arbitrator’s decision. i In 1985, plaintiff began working for defendant as a secretary, and in 1989 she was promoted to administrative analyst. Plaintiff generally received positive performance reviews until she was promoted to the position of technical writer in 1992. Plaintiff’s immediate supervisor, Marjorie Jacobson, criticized plaintiff’s substandard work and plaintiff became very sensitive to this criticism. Todd Harrison, a human-resources specialist who was brought in to address the problem, concluded that plaintiff had been promoted beyond her skill level and that she “would not be a good candidate for reassignment within the company as her performance/interpersonal skill deficiencies precede her.” Shortly after receiving her performance appraisal from Derek Knight, her manager, plaintiff began a medical leave of absence for job stress. Plaintiff was treated by Dr. Rosalind Griffin, who concluded that plaintiff suffered from major depression/adjustment disorder and was disabled from work. To confirm plaintiff’s continued eligibility for disability benefits, defendant’s benefit plan administrator arranged for plaintiff to be examined by another psychiatrist, Dr. Jolyn Welsh Wagner. At the interview, plaintiff was angry because Dr. Wagner arrived twenty-five minutes late and because she believed defendant had disseminated information to her coworkers that she was undergoing psychiatric care. In an interim report sent to defendant’s plan administrator on the same day as the examination, Dr. Wagner opined that plaintiff presented as an “angry hypervigilant, and extremely paranoid woman who made various threatening statements about her supervisor.” Plaintiff attributed her problems at work to racism perpetrated by Jacobson, who she described as a “white bitch,” and stated that she felt unsupported by Knight, her “Uncle Tom black manager.” The report further stated that plaintiff said Jacobson was “living on borrowed time” and warned that plaintiff’s comments should be taken seriously. In a more detailed report, Dr. Wagner indicated that plaintiff stated she “had killed [Jacobson] a thousand times in [her] mind,” and that she talked about “taking a .38 and blowing [Jacobson] away.” Plaintiff further indicated to Dr. Wagner that “she had thought of killing her supervisor prior to the [company] strike and had decided not to when the department was dispersed to other areas to meet the demands of the strike.” Defendant forwarded a copy of Dr. Wagner’s interim report to plaintiff’s treating physician, Dr. Griffin, and asked if she believed plaintiff posed a threat to Jacobson or others in the workplace. Dr. Griffin responded that she did not feel plaintiff had the ability to carry out her homicidal thoughts referenced in Dr. Wagner’s report, that plaintiff had not expressed similar thoughts during their sessions, and that she did not feel plaintiff was a danger to herself or others in the workplace. Dr. Griffin added that defendant should safeguard plaintiffs confidentiality and that plaintiffs prognosis for returning to work was uncertain because of plaintiffs belief that her coworkers had been informed of her psychiatric treatment. Dr. Griffin ultimately determined that plaintiff had recovered from her disability. When plaintiff returned to work she was terminated. Defendant had made the decision to terminate plaintiffs employment after receiving Dr. Wagner’s report, but delayed firing plaintiff until she returned to work. Plaintiff filed a request for binding arbitration pursuant to her employment agreement with defendant. Hearings were held before an arbitrator with regard to plaintiff’s claims that her discharge violated the ADA and the HCRA. During the hearing, defendant acknowledged that plaintiff’s statements to Dr. Wagner were the sole reason for plaintiffs termination. At the hearing, plaintiff testified that she did not recall making most of the statements attributed to her in Dr. Wagner’s report; although she did acknowledge calling Jacobson a liar and a bitch. Dr. Wagner testified in a deposition that she would not characterize plaintiff’s statements as “threats,” but rather as expressions of plaintiff’s thoughts. Dr. Wagner also stated that she would defer to the opinion of the treating physician, Dr. Griffin, with respect to whether plaintiff had recovered from her disability or whether she posed any actual threat to Jacobson. Dr. Griffin testified in her deposition that she never reported plaintiff’s homicidal ideation because she did not believe that plaintiff would act on it or that she otherwise posed any threat to Jacobson. The arbitrator ruled in plaintiffs favor with regard to both claims and ordered that plaintiff be reinstated with back pay to a “comparable, but not identical, position” under a different supervisor and at a different work site if possible. The award added that defendant had the right to satisfy itself that plaintiff did not present a threat to other employees by requiring plaintiff to be examined by another psychiatrist and to continue treatment if necessary. Specifically, the arbitrator found that plaintiff’s statements to Dr. Wagner were products of her psychiatric disability. The arbitrator also found that defendant was aware when it decided to terminate plaintiff’s employment that she suffered from a psychiatric disability that manifested itself in homicidal ideation. Therefore, the arbitrator concluded that defendant’s termination of plaintiff was a violation of both the ADA and the HCRA because defendant was not justified in considering plaintiff to be an unqualified person and did not have a nondiscriminatory basis for termination. On judicial review, the circuit court confirmed the arbitrator’s ruling. n On appeal, defendant argues that the trial court erred in affirming the arbitrator’s award because it was premised on an error of law. We agree. A The parties’ arbitration agreement included a provision for limited judicial review of the arbitrator’s decision: The decision of the arbitrator shall be final and binding; however, that limited judicial review may be obtained in a Michigan federal district court or Michigan circuit court of competent jurisdiction (a) in accordance with the standards for review of arbitration awards as established by law; or (b) on the ground that the arbitrator committed an error of law. We find this judicial review provision to be consistent with the provisions of MCL 600.5001 et seq.; MSA 27A.5001 et seq., and MCR 3.602, which govern “statutory arbitration” awards. See Gordon Sel-Way, Inc v Spence Bros, Inc, 438 Mich 488, 495; 475 NW2d 704 (1991). Under the court rule, a statutory arbitration award may be vacated in limited circumstances, such as where an arbitrator evidences partiality, refuses to hear material evidence, or exceeds powers. MCR 3.602(J)(1); Gordon Sel-Way, supra at 495-497. Arbitrators exceed the scope of their authority “whenever they act beyond the material terms of the contract from which they primarily draw their authority, or in contravention of controlling principles of law.” DAIIE v Gavin, 416 Mich 407, 434; 331 NW2d 418 (1982); Gordon Sel-Way, supra at 496. A reviewing court may vacate an arbitration award where it finds an error of law that is apparent on its face and so substantial that, but for the error, the award would have been substantially different. Gordon Sel-Way, supra at 497. Given these foregoing principles, we find no merit to plaintiffs argument that the parties’ arbitration agreement was invalid to the extent that it allowed judicial review for errors of law. As our Supreme Court stated in Gavin, supra at 433, “If the appellate judiciary has any proper function at all, it is to correct material error.” B The gravamen of this appeal requires us to determine whether the arbitrator committed an error of law in ruling that plaintiff was discharged because of her disability, rather than for her homicidal ideation toward her supervisor. Although we do not dispute the arbitrator’s finding of fact that plaintiff’s homicidal ideation was a product of her psychiatric condition, we conclude that the arbitrator committed an error of law in ruling that defendant’s discharge of plaintiff constituted discrimination under the ADA and the HCRA. We hold that plaintiff failed to establish a prima facie case of discrimination under the ADA or the HCRA because her homicidal ideation left her unqualified for employment with defendant and because defendant did not discharge her because of her disability. The federal ADA and this state’s HCRA have similar purposes and definitions, and utilize similar analyses. Stevens v Inland Waters, Inc, 220 Mich App 212, 216-217; 559 NW2d 61 (1996); Fritz v Mascotech Automotive Systems Group, Inc, 914 F Supp 1481, 1491 (ED Mich, 1996). To establish a prima facie case under the ADA, a plaintiff must demonstrate that (1) she was disabled, (2) she was qualified to perform the essential functions of the job, and (3) her employer subjected her to discriminatory treatment solely because of her disability. 42 USC 12112; Fritz, supra at 1491. Similarly, a prima facie case of discrimination under the HCRA is established where (1) the plaintiff is “handicapped” as defined in the statute, (2) the handicap is unrelated to the plaintiff’s ability to perform the duties of a particular job or position or is unrelated to her qualifications for employment or promotion, and (3) the plaintiff has been discriminated against in one of the ways set forth in the statute. MCL 37.1202(1); MSA 3.550(202)(1), MCL 37.1103(e)(i)(A); MSA 3.550(103)(e)(i)(A); Stevens, supra at 215. Defendant argues on appeal that, because plaintiff was discharged for her expressed homicidal ideation regarding her supervisor, not because of her disability, it did not act with discriminatory intent. Our review of the current state of the law regarding this issue supports defendant’s argument that a disabled employee may be discharged for misconduct, even where the misconduct is a manifestation of the employee’s disability. See, e.g., Maddox v Univ of Tennessee, 62 F3d 843, 848 (CA 6, 1995) (upholding discharge of a football coach for drunken driving, even though he claimed his behavior was the result of alcoholism); Landefeld v Marion General Hosp, Inc, 994 F2d 1178, 1181 (CA 6, 1993) (upholding discharge of an internist whose misconduct in pilfering colleagues’ hospital mailboxes was claimed to be a result of his mental illness); EEOC v Amego, Inc, 110 F3d 135, 149 (CA 1, 1997) (upholding discharge of nurse who, because of depression, attempted suicide by taking overdoses of prescription medications); Johnson v New York Hosp, 96 F3d 33, 34 (CA 2, 1996) (upholding discharge of hospital employee who claimed that off-duty scuffle with hospital security guards while intoxicated was a result of his alcoholism); Pesterfield v Tennessee Valley Authority, 941 F2d 437, 442 (CA 6, 1991) (upholding discharge of employee whose psychological condition rendered him hypersensitive to criticism and rejection in the workplace). Recently, in Palmer v Cook Co Circuit Court, 117 F3d 351 (CA 7, 1997), the Seventh Circuit Court of Appeals held that an ADA claim failed where the plaintiff had been discharged because of threats she made to her supervisor, not because of her diagnosed major depression/delusional disorder. Chief Judge Posner explained, id. at 352: There is no evidence that Palmer was fired because of her mental illness. She was fired because she threatened to kill another employee. The cause of the threat was, we may assume, her mental illness. . . . But if an employer fires an employee because of the employee’s unacceptable behavior, the fact that that behavior was precipitated by a mental illness does not present an issue under the Americans with Disabilities Act. The Act does not require an employer to retain a potentially violent employee. Such a requirement would place the employer on a razor’s edge — in jeopardy of violating the Act if it fired such an employee, yet in jeopardy of being deemed negligent if it retained him and he hurt someone. The Act protects only “qualified” employees, that is, employees qualified to do the job for which they were hired; and threatening other employees disqualifies one. A qualified individual with a disability is one who satisfies the requisite skill, experience, education, or other work-related requirements of the job and who can perform its essential functions with or without reasonable accommodation. 42 USC 12111(8). Simply put, the ADA does not cover all disabled persons, but only those who can perform their jobs’ essential functions with the aid of reasonable accommodation. Indeed, an express provision of the ADA allows employers to defend against a charge of discrimination by establishing certain employee “qualification standards” that are job-related, consistent with business necessity, and accomplished by reasonable accommodation. 42 USC 12113(a). “Qualification standards” include “a requirement that an individual shall not pose a direct threat to the health and safety of other individuals in the workplace.” 42 USC 12113(b). “Direct threat” means “a significant risk to the health and safety of others that cannot be eliminated by reasonable accommodation.” 42 USC 12111(3). Plaintiff argues that defendant impermissibly perceived her as a direct threat to workplace safety, despite the fact that she had never directly threatened her supervisor and despite the opinion of plaintiff’s treating psychiatrist that plaintiff would not act on her homicidal idea

J. Gibb Brownlie vs. Kanzaki Specialty Papers, Inc. No. 96-P-0592. Hampden. December 3, 1997. - March 12, 1998. Present: Jacobs, Gillbrman, & Spina, JJ. Anti-Discrimination Law, Age, Termination of employment, Prima facie case, Burden of proof, Damages. Employment, Discrimination, Termination. Limitations, Statute of. Evidence, Failure to produce witness. In a civil action, the judge did not err in ruling that the only event of alleged employment discrimination properly before the jury was the plaintiff’s claim of discharge, which was timely filed within six months as required by G. L. c. 151B, § 5. [412-413] Evidence presented at the trial of an age discrimination case warranted the jury’s finding that the plaintiff established a prima facie case that the defendant employer terminated the plaintiff’s employment due to his age, as well as the jury’s rejection of the defendant’s proffered explanation for the plaintiff’s discharge. [413-416] At the trial of a complaint alleging age discrimination in discharge from employment, error, if any, in the judge’s instructions regarding the defendant employer’s burden of persuasion in a mixed motive case was harmless, where the jury found that the defendant’s proffered explanation for the plaintiff’s termination was not a legitimate business reason and was merely a pretext for discrimination. [416-419] In an age discrimination case, the judge did not abuse his discretion in instructing the jury that they could draw an adverse inference from the failure of the defendant employer to call a key witness at trial, where the defendant failed to provide a plausible explanation as to why the witness was unable to testify. [419-420] Allegedly prejudicial remarks made during closing argument by the plaintiff’s counsel in an age discrimination case did not warrant a new trial. [420] In an age discrimination case, the trial judge properly awarded double damages to the plaintiff where the evidence was sufficient to support a finding that the defendant employer terminated the plaintiff’s employment with knowledge, or reason to know, that the termination violated the provisions of G. L. c. 151B, § 4. [420] Civil action commenced in the Superior Court Department on December 2, 1992. The case was tried before James P. Dohoney, J., and posttrial motions were heard by him. William A. Escobar (Samuel A. Marsella with him) for the defendant. Charles V. Ryan for the plaintiff. Gillerman, J. J. Gibb Brownlie was discharged from his position as vice-president of public affairs for Kanzaki Specialty Papers, Inc. (Kanzaki), in February, 1992. He had been demoted in 1990, when he turned sixty, and demoted again in 1991. After he was discharged, Brownlie filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) in April, 1992, alleging age discrimination. General Laws c. 151B, § 4(1B), makes it an unlawful practice for an employer to refuse to hire or employ or to bar or to discharge from employment any individual because of his or her age. (Under G. L. c. 151B, § 1(8), a person over forty years may claim age discrimination.) Brownlie withdrew his complaint from the MCAD and filed his action in the Superior Court in December, 1992. In June, 1994, a jury returned a verdict on special questions in favor of Brownlie. He was awarded compensatory damages in the amount of $262,252 and emotional distress damages in the amount of $50,000. The trial judge subsequently ordered Kanzaki to pay double damages in the amount of $624,504, attorney’s fees in the amount of $157,492.50, and costs in the amount of $10,404.35. He concluded that the president of Kanzaki had “reason to know” that the termination violated G. L. c. 151B, § 4. The trial judge also denied Kanzaki’s posttrial motions for judgment notwithstanding the verdict or a new trial. Kanzaki filed a timely appeal from the final judgment and from the denial of its posttrial motions. We proceed with the factual background and a discussion of the issues open on appeal. 1. Factual background. We state the facts under the standard applicable to a motion for judgment notwithstanding the verdict. Kanzaki is a specialty paper company and a subsidiary of Kanzaki Japan, a Japanese corporation. In 1991, the year immediately prior to Brownlie’s discharge, annual sales were $89,641,000. Kazuhico Watanabe was the president of Kanzaki during the relevant time period, and he reported daily to the president of Kanzaki Japan. Kanzaki Japan had a written policy that required all employees, including senior managers, to retire at age sixty. Although a mandatory retirement policy was in effect at Kanzaki Japan, Watanabe knew that age discrimination was illegal in Massachusetts and in the United States. In December, 1986, Kanzaki purchased a plant in Massachusetts from Ludlow Corporation, another paper company. Brownlie had been employed by Ludlow in various positions from 1978 to 1986. After Kanzaki purchased the Ludlow plant, most of the former Ludlow employees, including Brownlie, became employees of Kanzaki. Brownlie was fifty-six years old at the time he was hired by Kanzaki. From December, 1986, until June, 1989, he was marketing services and public relations manager. His duties included responsibility for advertising, sales promotion, public relations, and product management. On June 1, 1989, Watanabe promoted Brownlie, then age fifty-nine, to the position of vice-president of sales and marketing and Brownlie received a salary increase from $46,000 to $71,000. He was responsible for advertising, sales promotions, public relations, and product management, and reported directly to Watanabe. He also managed the inside sales force, which was comprised of approximately eight people, and the field sales force, which was made up of approximately twelve sales people and three regional managers. In August, 1990, when Brownlie was sixty years old, Watanabe relieved Brownlie of his sales responsibilities and transferred those tasks to Hamlet Collina, a new employee who was forty-nine years old. Collina became vice-president of sales, and Brownlie was demoted to vice-president of marketing. Although Brownlie was demoted, his salary and benefits were not reduced. When Watanabe demoted Brownlie in 1990, he knew that Brownlie was sixty years old. On the day that Brownlie learned of his impending demotion, Watanabe said to him, “[Yjou’ve been doing a good job, but I want a younger man .... [Wjhen is Steve Jablonski planning to retire?” Watanabe also informed Brownlie during the same conversation that he was hiring Collina, whom he described as “a younger man,” as the new vice-president of sales. Brownlie asked Watanabe if he was being demoted because he was not doing a good job. Watanabe answered, “No, it’s not that, it’s a reason beyond your control.” The next day, Brownlie reported the substance of his conversation with Watanabe to Kevin Moriarty, who was the director of human resources. Prior to Brownlie’s 1990 demotion, Moriarty had explained to Watanabe the discrimination laws of the United States. From August, 1990, when he was first demoted, to the middle of March, 1991, Brownlie did not receive any criticism from Watanabe regarding his performance as vice-president of marketing. Nevertheless, in April of 1991, he was demoted again. Watanabe promoted Collina to vice-president of sales and marketing, and Brownlie, now relieved of both sales and marketing, became vice-president of public affairs, a newly-created position. As was the case with his first demotion, Brownlie’s salary and benefits were not reduced at the time of the second demotion. Although Kanzaki claimed that Brownlie was being demoted for poor performance, Brownlie received a four percent merit raise two months after being demoted to vice-president of public affairs. On February 19, 1992, ten months after the second demotion, Watanabe terminated Brownlie’s position with the company without consulting any other senior managers. Brownlie was then sixty-one years old. Two other employees were discharged on the same day that Brownlie was terminated, including Jablonski, who was sixty-two; Jablonski was the same employee about whom Watanabe inquired in August, 1990. After Brown-lie was discharged, his advertising, sales promotions, and public relations responsibilities were given to Collina. In response to a special verdict form, the jury concluded that Brownlie had presented a prima facie case of employment discrimination when he was discharged in February, 1992 (special question 1); that Kanzaki did not have a legitimate business purpose in discharging Brownlie (special question 2); that the reason advanced by Kanzaki for Brownlie’s discharge was a pretext for age discrimination (special question 3); that age discrimination was a “motivating factor” in Kanzaki’s decision to discharge Brownlie (special question 3A); and that Kanzaki failed to prove that “[t]he legitimate business purpose given by it as the reason for the discharge, standing alone, would have convinced [it] to discharge Brownlie in February of 1992” (special question 3B). The special verdict form, including the responses of the jury, is reproduced in the Appendix to this opinion. 2. The denial of the motion for judgment n.o.v. a. Statute of limitations. Kanzaki argues that Brownlie failed to file his claim with the MCAD within the six-month period of limitations provided by G. L. c. 151B, § 5. This is so, the argument runs, because the measuring period should start from the demotions in 1990 and 1991, and not the termination of employment in 1992, and therefore the judge should have allowed Kanzaki’s motion for judgment notwithstanding the verdict. Kanzaki’s argument proceeds from the proposition that Brownlie “did not seriously contend below that his dismissal was in and of itself [emphasis in original] discriminatory — only that he would not have been in the non-essential advertising position” at the time of his nondiscriminatory discharge but for his two previous (allegedly) discriminatory discharges. Kanzaki mischaracterizes, or misunderstands, Brownlie’s position. At the colloquy between counsel and the judge regarding the special verdict form, the judge first stated his preference for a single discriminatory incident — Brownlie’s termination in February, 1992. Brownlie’s counsel, in explaining his acceptance of the form of question proposed by the judge, said, “this was a package deal... the intent was formed in July of 1990 to do this on the installment plan .... [B]y the time they got all through with this plan, concocted in 1990 and carried all the way through, all of his duties had been transferred to the same younger man . . . Collina.” The judge responded that Brownlie’s counsel “could argue it that way.” Since the judge permitted Brownlie’s counsel to argue that the employment discrimination occurred, if at all, when Brown-lie was terminated in February, 1992, the judge implicitly concluded that the evidence supported the theory put forward by Brownlie’s counsel. There was ample support in the record for the judge’s ruling, as discussed more fully below. Thus, special question 1 appropriately inquired whether Brownlie “has presented believable evidence to make up a prima facié case of employment discrimination relative to age when he was discharged in February of 1992” (emphasis added). Since the judge did not err in ruling that the only event of alleged employment discrimination that the jury properly could be called upon to assess was the discharge in February, 1992, and since the complaint to the MCAD was filed within six months thereafter, there was no violation of the short statute of limitations. b. Brownlie’s evidence of discrimination and Kanzaki’s proffered reasons for its employment decision. The familiar “three-stage order of proof” in discrimination cases, see Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 440-441 (1995), is commonly reduced to two stages at trial. This occurs when the employee establishes a prima facie case of discrimination, with the consequence that the unlawful discrimination is presumed (stage one). See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1997). See also Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1 (1998). The employer then may articulate a nondiscriminatory reason for the discharge decision coupled with supporting evidence that its preferred reason was the “real reason” (stage two), see Matthews, 426 Mass. at 128, and, if it does so, the presumption of the illegality of the employer’s action “vanishes.” Ibid. However, the plaintiff’s prima facie evidence does not vanish; it remains as evidence in the case, see Liacos, Massachusetts Evidence § 5.8.5, at 236-237 (6th ed. 1994), available to satisfy the employee’s ultimate burden of persuasion on the issue of discrimination. See Blare, 419 Mass. at 445. So it was in this case. At the conclusion of Kanzaki’s case, and the judge’s charge, the jury found (via special questions 1, 2, and 3) that (i) Brownlie had established a prima facie case of employment discrimination, (ii) Kanzaki had no legitimate reason for terminating Brownlie, and (iii) the reasons proffered by Kanzaki for the discharge were a pretext for age discrimination. See note 12, infra. Kanzaki now argues that its motion for judgment notwithstanding the verdict should have been allowed because (i) Brownlie failed to establish a prima facie case by failing to come forward with “any evidence” that Brownlie’s discharge was “motivated by his age” and (ii) Kanzaki’s evidence of its nondiscriminatory reasons for the discharge compels the allowance of the motion. We conclude that these arguments have no merit. i. Brownlie’s evidence of discrimination. The jury could infer that Watanabe’s intent to discriminate was first evident in July, 1990, when Brownlie learned of his impending demotion. It was then that Watanabe told the plaintiff, “[Yjou’ve been doing a good job, but I want a younger man. . . . [Wjhen is Steve Jablonski [then sixty-one years old] planning to retire?” Watanabe’s statements were admissible. Northeast Metropolitan Regional Vocational Sch. Comm. v. Massachusetts Commn. Against Discrimination, 31 Mass. App. Ct. 84, 87 (1991). In ruling on Brownlie’s application for multiple damages, the judge wrote, and we agree, that these remarks by Watanabe were “much stronger” than mere “stray remarks,” as in Johansen v. NCR Comten, Inc., 30 Mass. App. Ct. 294, 302 (1991). Probative remarks, such as those made by Watanabe to Brown-lie, are ordinarily not to be judged as matter of law; they are for the jury to assess. See Fontaine v. Ebtec Corp., 415 Mass. 309, 314 n.7 (1993) (“Ultimately, the jury had to decide whether the remarks were made, whether they indicated a discriminatory intent, and how much weight should be given them”). Watanabe’s additional remark to Brownlie — that the 1990 demotion which deprived him of his sales responsibilities was due to “a reason beyond [Brownlie’s] control” — could be taken by the jury as additional evidence that the reason beyond Brownlie’s control was his age. The jury could also have inferred that Watanabe was referring to Kanzaki Japan’s mandatory retirement policy and the need he felt to implement it. The judge observed (in the same memorandum referred to above), “[h]ere Watanabe acknowledged that Brownlie has performed well and then simultaneously took action to demote him.” While Kanzaki claimed that Brownlie was demoted in 1990 for poor performance, Brownlie presented credible evidence that he was performing his job in a satisfactory manner, that he had received several raises based on his performance, and that he was praised for his performance by Watanabe. From this evidence, the jury could also infer that Brownlie was demoted in 1990 for a reason other than the quality of his job performance, and that his demotion was merely a preliminary step in Kanzaki’s plan to terminate him. The jury could also infer from the evidence that Brownlie’s second demotion in April, 1991, was in furtherance of Kanzaki’s discriminatory intent, and that the second demotion, claimed to be for poor performance, was “papered over” with a merit increase in compensation. In sum, the jury could have found that Brownlie’s discharge was the culmination of a carefully arranged sequence of events to conceal the purposeful design to discharge Brownlie because of his age. We conclude that the jury were warranted in finding that Brownlie had made out the necessary prima facie case (special question 1). See Dartt v. Browning-Ferris Indus., Inc. (Mass.), supra. ii. Kanzaki’s justification. Kanzaki argues next that its evidence of a nondiscriminatory reason for Brownlie’s discharge was both “compelling and undisputed.” Kanzaki fails to recognize that its evidence, even if undisputed, could be — and was — rejected by the jury in its entirety. See special questions 2 and 3. See also Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. at 442 (in stage two, the employer must “produce credible evidence . . . that the reason or reasons advanced were the real reasons” [emphasis added]); Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 138 (1976) (when an employee has made a prima facie case of discrimination, and the employer’s explanation “is wholly disbelieved [and hence is transparently a pretext], the employee should prevail”). In any event, the jury’s findings rejecting Kanzaki’s explanation had adequate support in the evidence. Kanzaki claimed that in 1992 it was in severe financial difficulty. Even assuming that to be so, when Kanzaki reduced its work force by only thirteen persons during 1991-1992, Watanabe, as the judge pointed out in the same memorandum referred to above, in February, 1992, “terminated three people. Two of these three were persons about whom [Watanabe] had expressed age related comments” (Brownlie and Jablonski). Further, financial difficulty in a company the size of Kanzaki does not necessarily dictate, or even necessarily explain, the discharge of this employee. The jury could reasonably reject the proffered business explanation for Brownlie’s discharge as not credible. 3. The denial of the motion for a new trial. a. The “mixed motive” charge. The thrust of Kanzaki’s argument in support of its request for a new trial is its claim that the trial judge erred in giving the jury a “mixed motive” charge which impermissibly shifted the burden of persuasion to Kanzaki. See special question 3B. It appears from the colloquy concerning the form of the special questions that the judge, in accepting the “mixed motive” inquiry, had in mind the decision of the Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), as discussed in Johansen v. NCR Comten, Inc., 30 Mass. App. Ct. at 300-301. In Price Waterhouse the Court shifted the burden of persuasion to the employer — where the evidence demonstrated that the employer had mixed motives, that is, one legitimate and the other illegitimate, for its employment decision — to prove that the “legitimate reason, standing alone, would have induced it to make the same decision.” Price Warehouse, supra at 252. It does not appear that the Supreme Judicial Court has ever applied the “mixed motive” formula in a case involving Massachusetts discrimination law. In a 1976 decision, Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. at 138-139, the court made it clear that where the employer advances a nondiscriminatory reason which has reasonable support in the evidence, and the employee has already established his prima facie case, the burden then falls on the employee to prove by a preponderance of the evidence that the" employer’s proffered reasons were not the real reasons for its action. In Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. at 444-445, after reviewing Federal

Brian A. Dartt vs. Browning-Ferris Industries, Inc. (Mass.). Suffolk. November 6, 1997. February 26, 1998. Present: Wilkins, C.J., Abrams, Lynch, Grbaney, Fried, Marshall, & Ireland, JJ. Handicapped Persons. Anti-Discrimination Law, Handicap, Prima facie case, Termination of employment. Employment, Discrimination, Termination. Statute, Construction. Practice, Civil, Instructions to jury, Presumptions and burden of proof, Damages. Workers’ Compensation Act, Claim. Evidence, Relevancy and materiality. Damages, Punitive. Americans with Disabilities Act. This court concluded, upon consideration of the plain language of G. L. c. 151B, § 4 (16), the legislative history of that statute, the cognate provisions of art. 114 of the Amendments to the Massachusetts Constitution, and Federal cases interpreting the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., that a plaintiff alleging handicap employment discrimination in violation of G. L. c. 151B, § 4 (16), need not establish, as part of his prima facie case, that he was terminated or otherwise adversely treated by his employer “solely” because of his handicap. [6-11] In a handicap discrimination case, the judge’s instructions to the jury, read as a whole, correctly informed the jury of the plaintiff’s burden of proof. [12] In a handicap discrimination case in which the plaintiff alleged that the defendant terminated the plaintiff’s employment to avoid payment of workers’ compensation benefits, the trial judge’s refusal to instruct the jury on the defendant’s payment obligations under the workers’ compensation statute constituted prejudicial error requiring a new trial. [12-14] At the trial of an employment discrimination case, the trial judge erred in admitting in evidence an outdated application form, used by the defendant prior to the effective date of the Americans with Disabilities Act, to show the defendant’s “state of mind.” [14-16] At the trial of a handicap discrimination case, there was sufficient evidence for the jury to conclude that the defendant employer regarded the plaintiff as having a physical impairment and that the employer terminated the plaintiff’s employment on that basis. [16-17] In a handicap discrimination case, where there was no admissible evidence that the defendant employer’s conduct was outrageous in any respect, the judge should not submit the question of punitive damages to the jury in the trial of the case after remand. [17-18] Civil action commenced in the Superior Court Department on December 31, 1993. The case was tried before Carol S. Ball, J., and posttrial motions were heard by her. The Supreme Judicial Court granted an application for direct appellate review. Paul J. Murphy (Theodore E. Daiber with him) for the defendant. Kevin G. Powers for the plaintiff. Marshall, J. We clarify today the prima facie standard a plaintiff must meet to establish liability in a case involving a claim of handicap discrimination in violation of G. L. c. 151B, § 4 (16). The defendant, Browning-Ferris Industries, Inc. (Mass.) (BFI), appeals from a jury verdict that it unlawfully fired the plaintiff, Brian A. Dartt, because of a handicap, an earlier work-related injury to his back. BFI maintained that Dartt’s prior injury played no role in its decision to terminate him, and that he was terminated because he was grossly negligent when a BFI tractor-trailer that he was operating flipped over. The jury awarded Dartt $83,000 in back pay, $16,000 in emotional distress damages, and $175,000 in punitive damages. BFI filed posttrial motions and Dartt filed a motion for attorney’s fees. After a hearing, the judge denied BFI’s motions and awarded Dartt substantially all of his attorney’s fees. We granted BFI’s application for direct appellate review. We rule that to establish a prima facie case of unlawful employment discrimination on the basis of handicap under G. L. c. 151B, § 4 (16), a plaintiff must present credible evidence that (1) he is handicapped within the meaning of the statute; (2) he is qualified to perform the essential functions of the job with or without reasonable accommodation; (3) he was terminated or otherwise subject to an adverse action by his employer; and (4) the position he had occupied remained open and the employer sought to fill it. See Beal v. Selectmen of Hingham, 419 Mass. 535, 541 (1995). See also Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995). It is not a requirement that a plaintiff show, as part of his prima facie case, that he was terminated “solely” because of his handicap. In this case the judge’s instructions were generally consistent with these requirements. We nevertheless conclude that a new trial is required because two of the judge’s rulings, described below, constitute prejudicial error. We also conclude that Dartt presented insufficient evidence to support the punitive damages awarded to him. I From 1985 until 1992, when he was terminated, Dartt was employed by BFI as a truck driver, first in Colorado and later in Tyngsborough. Dartt operated a ten-wheel tractor-trailer used to transport and dump large loads of waste. In March, 1990, Dartt injured his back when he fell from a trailer while attempting to secure a canvas flap. BFI’s safety review board determined that Dartt was not at fault for that accident. As a result of his injury, Dartt was required to undergo two operations and he was unable to work for almost two years. BFI paid Dartt $61,389 in workers’ compensation benefits for that injury. On May 19, 1992, approximately two months after returning to full-time work, Dartt had another accident that precipitated this lawsuit. On that day, the vehicle that Dartt was operating flipped over while he was dumping a load of sludge at a landfill in Rochester, New Hampshire. After he had backed the vehicle to an appropriate location, Dartt engaged the hydraulic dumping mechanism located in the cab of the vehicle to raise the trailer bed. He aborted that initial process when he observed through the vehicle’s mirrors that the trailer was rising unevenly. Dartt then moved the vehicle forward to what he thought was more level ground, and commenced the dumping procedure a second time. He testified that, while he watched through two side mirrors as the trailer rose, he reached down for a soda located in a plastic lunch box placed to the right of the driver’s seat. To retrieve the soda, Dartt removed the lid on the plastic cooler and then transferred the soda bottle from one hand to the other. Dartt testified that “the next thing [he] knew,” the truck had flipped and was lying on its side. Dartt did not sustain any injury, but the accident caused damage to the tractor-trailer. Dartt immediately telephoned Ernest G. Stone, the district safety manager for BFI, and informed him of the accident. Stone traveled to the landfill to investigate. Dartt told Stone that the vehicle had tipped over while he was reaching for the soda. He testified that he also told Stone that, in his view, the sludge load had stuck to one side of the trailer, creating an imbalance that had caused the vehicle to tip over. The following morning BFI’s management review board consisting of Stone, Ronald Greenwood, BFI’s district manager, and Donald Butler, Dartt’s immediate supervisor, met to discuss the accident. Based on his observations at the site and on his interview with Dartt, Stone informed the others that it was his view that Dartt had not been paying attention to what he was doing when the truck flipped on its side. Greenwood directed Stone to terminate Dartt for violating BFI’s safety policy. A few days later, at his request, Dartt met with Greenwood and Butler to explain the accident. Greenwood told Dartt that he would look into the matter, but Dartt heard nothing further from him. On May 31, 1992, after Stone had told Dartt he was terminated, BFI’s safety review board met to review the accident. The role of the safety review board in employee discipline matters, as described in BFI’s policy and procedures manual, is to determine whether an accident was “preventable.” The board, composed of managers and other employees, reviews all aspects of the accident with the driver involved, then presents its findings to the district manager for- evaluation, and possible disciplinary action, including termination. The driver also is informed of the board’s decision, and he may appeal it. The manual provides that after a third “preventable” accident in any twelve-month period, a driver “may” be subject to discharge. In this case the board concluded that the accident could have been prevented by Dartt. Although the manual provided that “the board will review all aspects of the accident with the driver involved,” Dartt was not informed of the board meeting. Other than this incident, Dartt had a safe driving record, as documented by BFI. Dartt never claimed that he was injured in the second accident. He argued that he was fired because BFI was concerned that he might file a new claim for workers’ compensation, and that BFI wanted to avoid paying him any such compensation. There was evidence that before this accident BFI was concerned about containing what it perceived were escalating workers’ compensation claims: Dartt testified that, at one of the weekly safety meetings that he was required to attend, Stone told a group of employees that the number of workers’ compensation claims had to .be reduced. In addition, while Dartt was on the earlier disability leave of absence, BFI’s workers’ compensation administrator told Stone that BFI would have “exposure for future temporary partial benefits in the event that [BFI] would not be able to accommodate [Dartt] on a permanent basis in a position within his restrictions.” n BFI claims that the judge erred in her instructions to the jury on the elements of a prima facie case of handicap discrimination, and that there was insufficient evidence as a matter of law to support a finding of discriminatory termination. We address first BFI’s challenge to the judge’s instructions. In cases of handicap discrimination brought under G. Li c. 151B, § 4 (16), we use the familiar three-stage order of proof that we have recognized in cases alleging disparate treatment under G. L. c. 151B, § 4 (1), which prohibits discrimination “because of the race, color, religious creed, national origin, sex, sexual orientation ... or ancestry” of an individual. Labonte v. Hutchins & Wheeler, 424 Mass. 813, 821 (1997). At issue here is the first stage order of proof — the plaintiff must establish a prima facie case of discrimination by a preponderance of the evidence. Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995). General Laws c. 15IB, § 4 (16), provides that an employer may not “dismiss from employment or refuse to hire, rehire or advance in employment or otherwise discriminate against, because o/his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation” (emphasis supplied). The parties dispute how the term “because of” affects a plaintiff’s prima facie burden of proof. At trial, relying on Garrity v. United Airlines, Inc., 421 Mass. 55 (1995), and Tate v. Department of Mental Health, 419 Mass. 356, 361 (1995), BFI asked the judge to charge the jury that in his prima facie case Dartt had to prove that he was terminated “solely because of his handicap.” The judge rejected BFI’s request. Relying on Blare, supra, she gave the following charge to the jury: “To recover, the plaintiff must prove at the outset the following by a fair preponderance of the credible evidence, first, that the plaintiff had a ‘handicap’ at the relevant time; second, that the plaintiff was a ‘qualified handicapped person’; and third, that the plaintiff was terminated by the defendant.” On appeal, BFI argues further that any dispute concerning this issue was put to rest by our recent opinion in Labonte v. Hutchins & Wheeler, 424 Mass. 813 (1997), where we said that it is a plaintiff’s burden to establish in his prima facie case that he was terminated “solely” because of his handicap. We recognize that some of our earlier decisions concerning a plaintiff’s prima facie burden in a case of handicap discrimination may have been the cause of confusion, for we previously have not been consistent in our descriptions of that burden. We sometimes have said that a plaintiff must establish that he was terminated “in spite of [his] qualifications,” see, e.g., Whalen v. NYNEX Info. Resources Co., 419 Mass. 792, 795-796 (1995); Beal v. Selectmen of Hingham, 419 Mass. 535, 541 (1995), or that he was fired “because of” a handicap, see, e.g., Tate, supra at 361-362, while at other times we have said that to establish a prima facie case a plaintiff must demonstrate that he was fired “solely because of his handicap.” See, e.g., Labonte, supra at 821; Garrity, supra at 60; Tate, supra at 362. We now make clear that as part of his prima facie case, a plaintiff alleging a violation of G. L. c. 15IB, § 4 (16), need not establish that he was terminated (or received some other adverse treatment from his employer) “solely” because of his handicap. We reach this conclusion for several reasons. We commence our analysis, appropriately, with the plain language of the statute. Massachusetts Bay Transp. Auth. v. Massachusetts Bay Transp. Auth. Retirement Bd., 397 Mass. 734, 738 (1986). General Laws c. 151B, § 4 (16), does not use the term “solely.” We discern no other similarly restrictive language in the statutory scheme, and we hesitate to rewrite the statute judicially to import such a restriction. In interpreting the substantially identical causal language in the context of Title VII, the United States Supreme Court concluded that “because of” does not mean “solely because of.” Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989) (plurality opinion). While no opinion of the Court garnered a majority of votes, all the Justices agreed on this point. See id. at 241 (plurality opinion); id. at 258-259 (White, J., concurring in the judgment); id. at 262-263 (O’Connor, J., concurring in the judgment); id. at 284 (Kennedy, J., dissenting). Writing for the plurality, Justice Brennan noted that “since we know that the words ‘because of’ do not mean ‘solely because of,’ we also know that Title VII meant to condemn even those decisions based on a mixture of legitimate and illegitimate considerations” (footnote omitted; emphasis in original). Id. at 241. Similarly, we will not read the restrictive term “solely” into G. L. c. 151B, § 4 (16). The legislative history confirms that our interpretation is consistent with what the Legislature intended. Prior to adopting St. 1983, c. 533, § 2, the 1983 amendment that inserted § 4 (16) into G. L. c. 15IB, the Legislature rejected proposed amendments that would have prohibited discrimination “solely because of” a handicap. See, e.g., 1981 Senate Doc. No. 208; 1981 House Doc. No. 353; 1981 House Doc. No. 485; 1981 House Doc. No. 3537; 1980 House Doc. No 650. BH is correct that the legislative history does not elucidate why the Legislature rejected each of these competing bills. But we will not add to a statute a word that the Legislature had the option to, but chose not to, include. Bronstein v. Prudential Ins. Co., 390 Mass. 701, 706 (1984). Nor does our conclusion ignore the cognate amendment to the Massachusetts Constitution enacted a few years before the statutory amendment at issue here. Article 114 of the Amendments to the Massachusetts Constitution, enacted in 1980, provides in relevant part: “No otherwise qualified handicapped individual shall, solely by reason of his handicap, be excluded from the participation in, denied the benefits of, or be subject to discrimination under any program or activity within the commonwealth” (emphasis added). A statute may provide greater protection than a constitutional counterpart. Here, the statute protects fully those persons covered under art. 114. Were we to require the plaintiff to prove at the prima facie stage that he had been discriminated against “solely because of a handicap,” we would be imposing on him a greater burden at the first stage than he is required to meet at the third stage of proof. Conversely, the standard we adopt today achieves the purpose we intend by requiring a plaintiff to demonstrate a prima facie case: to “eliminate[] the most common nondiscriminatory reasons for the plaintiff’s rejection.” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). See Blare, supra at 441. We are also guided in our resolution by interpretations of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ■ (1994) (ADA), even though that statute was enacted in 1991, after the enactment of G. L. c. 151B, § 4 (16). The ADA provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability.” 42 U.S.C. § 12112(a). Because that causal language is substantially similar to the prohibition of G. L. c. 15 IB, § 4 (16), that an employee may not be discriminated against because of his handicap, judicial analyses of the ADA are helpful. The decision of the United States Court of Appeals for the First Circuit in Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 511 (1st Cir. 1996), is particularly instructive. In that case, the court concluded, as we have, that a plaintiff could prove a claim of discrimination under the ADA by using the three-stage framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Jacques court then outlined a five-part test a plaintiff must meet to establish a prima facie case of handicap discrimination: “[A] plaintiff must first prove by a preponderance of the evidence that he or she (i) has a disability within the meaning of the Act; (ii) is qualified to perform the essential functions of the job, with or without reasonable accommodations; (iii) was subject to an adverse employment action by a company subject to the Act; (iv) was replaced by a non-disabled person or was treated less favorably than non-disabled employees; and (v) suffered damages as a result.” Id. at 511. See EEOC v. Amego, Inc., 110 F.3d 135, 141 n.2 (1st Cir. 1997). The United States Court of Appeals for the Eighth Circuit uses a similar test to establish a prima facie case of disability discrimination under the ADA. See Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1318 (8th Cir. 1996) (third and final element of prima facie case is that plaintiff “has suffered an adverse employment action under circumstances from which an inference of unlawful discrimination arises”). For all these reasons we hold that Dartt was not required to demonstrate at the prima facie stage that he was terminated by BFI “solely” because of his handicap. There was no error in the judge’s instructions. BFI also argues, in passing, that the jury instructions as a whole did not require the jury to find affirmatively at any stage that BFI was motivated by discrimination. We agree that the burden of persuasion rests with the plaintiff at all times. Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 445 (1995). We have said that at the third stage of proof, “the presumption of discrimination vanishes, and the burden returns to the plaintiff to persuade the court, by a fair preponderance of the evidence, that the defendant’s proffered reason for its employment decision was not the real reason, but is a pretext.” Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1997). We have also said that “[t]he plaintiff bears the burden of persuasion on the ultimate issue of discrimination . . . and therefore must ‘produce evidence sufficient to support a jury verdict that it was more likely than not that the articulated reason was pretext for actual discrimination.’ ” Id.

James Lavelle vs. Massachusetts Commission Against Discrimination & others. Hampden. September 8, 1997. - December 23, 1997. Present: Wilkins, C.J., Abrams, Lynch, Grbanby, Fried, Marshall, & Ireland, JJ. Massachusetts Commission Against Discrimination. Administrative Law, Judicial review. Practice, Civil, Jury trial. Common Law. Constitutional Law, Trial by jury, Sex discrimination, Equal protection of laws. Jury and Jurors. Anti-Discrimination Law, Sex, Employee. Employment, Discrimination. A respondent, named in a complaint of sex discrimination seeking more than equitable relief and filed with the Massachusetts Commission Against Discrimination, is entitled, after the commission has taken final action, to a jury trial in a judicial determination of the discrimination claim, pursuant to art. 15 of the Massachusetts Declaration of Rights and principles stated in Dalis v. Buyer Advertising, Inc., 418 Mass. 220 (1994), and pursuant to his right to equal protection of the law. [334-339] Lynch, J., concurring. Civil action commenced in the Superior Court Department on July 8, 1996. The case was heard by Judd J. Carhart, J., on a motion to dismiss. The Supreme Judicial Court granted an application for direct appellate review. John F. Moriarty for the plaintiff. Thomas O. Bean, Assistant Attorney General, for Massachusetts Commission Against Discrimination. The following submitted briefs for amici curiae: James M. Paulson, Robert P. Morris & Patricia Lim for Associated Industries of Massachusetts. Seymour Weinstein & Karen L. Stern for Jewish Nursing Home Center, Inc. Jane K. Alper, Nan Myerson Evans & Wendy A. Kaplan for the National Employment Lawyers Association & another. Joan F. Hash, city of Holyoke, and Holyoke Gas & Electric Department. Only the plaintiff and the defendant commission have filed briefs in this appeal. Wilkins, C.J. In Dalis v. Buyer Advertising, Inc., 418 Mass. 220 (1994) (Dalis), this court held that a plaintiff alleging gender-based discrimination in a judicial proceeding was entitled, as a matter of State constitutional right, to a trial by jury. Cf. MacCormack v. Boston Edison Co., 423 Mass. 652, 655 (1996) (claimant asserting unlawful retaliation has right to jury trial); Whalen v. NYNEX Info. Resources Co., 419 Mass. 792, 795 (1995) (same for person asserting handicap discrimination). We concluded that art. 15 of the Massachusetts Declaration of Rights applied to the plaintiff’s sex discrimination claim because that action was analogous to common law actions sounding in tort and contract. Dalis, supra at 223. Article 15, which is set forth in full in the margin, preserves the common law trial by jury in its indispensable aspects as it was known at the time our Constitution was adopted. Department of Revenue v. Jarvenpaa, 404 Mass. 177, 185-186 (1989). Unless a dispute brought to court is one that a court would have decided in 1780 without a jury, art. 15 prescribes the right to a trial by jury as a sacred procedure for resolving the case. Dalis, supra at 222. The plaintiff in this case (Lavelle) is a respondent named in a complaint of sex discrimination filed with the Massachusetts Commission Against Discrimination (commission) by Joan F. Hash (complainant). Lavelle brought this action asserting, pursuant to art. 15 principles stated in our Dalis opinion and pursuant to his right to equal protection of the law, that he is entitled to a jury trial in a judicial determination of the complainant’s discrimination claim. On motion of the commission, a judge in the Superior Court dismissed the complaint, but only on the ground that, because Lavelle had not exhausted his rights before the commission, the action was premature. We set forth the facts alleged in the complaint and, therefore, admitted by the motion to dismiss. Lavelle was a commissioner of the Holyoke Gas & Electric Department (department). The complainant, a customer account clerk in the department, filed a complaint, later amended, alleging that she was subjected to unlawful sex discrimination on August 14, 1993, in violation of G. L. c. 151B, § 4. Although the complaint does not say so, it seems likely that Lavelle was the person who committed the alleged discriminatory conduct. Approximately two years later, the commission notified Lavelle, the city, and the department that it had found probable cause to conclude that unlawful discrimination had occurred. The commission scheduled a conciliation conference for May 15, 1996. Before the conference was held, Lavelle notified the commission that he wished to have a judicial determination of the discrimination complaint, that he was entitled to a jury trial, and that the right granted by G. L. c. 15IB only to a complainant to obtain a jury trial denied him equal protection of the law. The commission did not respond to Lavelle. This action was commenced on July 8, 1996. The commission promptly filed a motion to dismiss which a Superior Court judge allowed because proceedings before the commission, which might produce a result favorable to Lavelle, had not been concluded. We granted Lavelle’s application for direct appellate review of his appeal. As we have said, the judge allowed the commission’s motion to dismiss without prejudice on the ground that Lavelle had not shown that he had yet been aggrieved, even assuming that he had a right to a jury trial. The judge indicated that Lavelle could raise the absence of a right to a jury trial if, after completion of the commission’s proceedings, he were to be aggrieved by the agency’s decision. Lavelle points out that neither the proceedings before the commission nor the judicial review of a commission decision adverse to him would provide him with a jury trial. The commission does not conduct jury trials, and judicial consideration of a commission decision is limited to review of the agency record pursuant to the standards set forth in § 14 (7) of the administrative procedure act, G. L. c. 30A. See G. L. c. 151B, § 6. If G. L. c. 15 IB provided that, following a commission decision adverse to him, Lavelle could obtain a jury trial on issues raised by the complainant and decided against him, we would agree that a claim of a right to a jury trial before conclusion of the agency proceedings would be premature. If, however, Lavelle is entitled to a jury trial, it may be that, to avoid a claim of waiver, he must assert that right before the commission holds a hearing on the complaint, perhaps at the same point in the proceedings that G. L. c. 151B, § 9, permits a complainant to elect a judicial, rather than a commission, determination of the complaint. General Laws c. 151B says nothing explicitly about a respondent’s right to a jury trial and implicitly indicates that a respondent has no such right. There is a controversy as to Lavelle’s constitutional right to a jury trial. Lavelle is entitled to know now whether he has a constitutionally based right to a jury trial so that he may decide how to proceed in defense of his position and when to assert his right to a jury trial, if he has one. See Rushworth v. Registrar of Motor Vehicles, 413 Mass. 265, 268 n.4 (1992). The commission urges us to refrain from deciding the constitutional question so that it might offer facts on remand that would, it claims, demonstrate that Lavelle’s constitutional arguments should be rejected. These facts include the number of claims filed by unrepresented claimants, the volume of commission business, and the percentage of cases involving claims for damages below $25,000. These facts would not justify the denial to Lavelle of a constitutionally based right to a jury trial in the circumstances. We start with the fact that a complainant has the right under G. L. c. 15 IB, § 9, to terminate agency proceedings and obtain a judicial determination of her claim. If she asserts gender-based discrimination in a requested judicial proceeding, the Constitution of the Commonwealth grants her the right to a jury trial. Dalis, supra. On the other hand, a respondent has no right to elect a judicial determination of the claim, has only a right of a judicial review of agency action based on the record before the commission, and can only successfully claim a jury trial when a complainant elects a judicial determination of her claim. These differences have led Lavelle to assert that the statutory scheme denies him equal protection of the law. In New York & Mass. Motor Serv., Inc. v. Massachusetts Comm’n Against Discrimination, 401 Mass. 566 (1988) (Motor Service), we rejected an employer’s argument that certain differences in G. L. c. 151B, §§ 5 and 9, in the treatment of complainants and respondents deprived employers of a fundamental right and thus denied them the equal protection of the law guaranteed by the Fourteenth Amendment to the United States Constitution. Id. at 580-581. Among the differences that we held in the Motor Service case did not deprive an employer of equal protection with respect to a fundamental right was the right of a complainant to elect to go to court in lieu of having an agency determination, while an employer could not go to court until after final agency action. Id. at 579-581. The issue of a complainant’s greater right to obtain a jury trial under G. L. c. 151B was not raised in the Motor Service case. The absence of that issue in the Motor Service case is understandable because this court did not identify the jury trial right of a . complaining employee until six years later in its Dalis opinion. We learn from the Motor Service case that there is no denial of equal protection of the law simply because a complainant has the right to seek a judicial determination of her claim, bypassing the agency, and a respondent has no parallel right. If the complainant is seeking only equitable relief against Lavelle before the commission, she is advancing claims that would entitle neither Lavelle nor her to a trial by jury. See Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 526 (1997), and cases cited. We do not know on this record, however, whether the complainant is seeking relief beyond injunctive and other traditionally equitable relief. Although G. L. c. 151B, § 5, recites that the relief that the commission may grant is traditionally equitable in nature, the commission has authority to grant relief that goes beyond traditional areas of equity. The commission may award damages for emotional distress. See Labonte v. Hutchins & Wheeler, 424 Mass. 813, 824 (1997); Bournewood Hosp., Inc. v. Massachusetts Comm’n Against Discrimination, 371 Mass. 303, 316-317 (1976); Buckley Nursing Home, Inc. v. Massachusetts Comm’n Against Discrimination, 20 Mass. App. Ct. 172, 182 (1985). In appropriate circumstances, the commission may also award front pay, compensatory damages for loss of future earning capacity. See Conway v. Electro Switch Corp., 402 Mass. 385, 387-388 (1988). Damages for pain and suffering, emotional distress, and economic loss except perhaps back wages are not traditional forms of equitable relief and may not easily be treated as incidental to equitable relief. The question for us is whether, if the complainant is seeking more than equitable relief against Lavelle and she elects, as she has, not to seek a judicial determination of her claim, the fact that Lavelle does not have a statutory right to claim a jury trial at some stage in the proceedings denies him a constitutional right to a jury trial. The reasoning of this court in its Dalis opinion identifying the constitutional right of a complainant to have a trial by jury applies equally to a respondent such as Lavelle. If one side to a dispute has a constitutional right to a jury trial, generally the other side must have a similar right. We are dealing here with a fundamental right (art. 15 says the right is sacred), and differing treatment of complainants and respondents in respect to the availability of that fundamental right, unlike the differences in the Motor Service case, cannot be justified. For this court to declare that Lavelle is entitled to a jury trial and to say no more would be unhelpful to the parties, to the commission, and to other persons with similar matters before the commission. We should deal with the consequences of our decision. Surely, it would be contrary to the purpose of the statute for us to declare the complainant’s claim unenforceable because the statutory scheme does not grant Lavelle a right to seek a trial by jury. See G. L. c. 151B, § 10 (If the application of G. L. c. 15 IB “to any person or circumstance, shall, for any reason, be held invalid,” the application of such provision to others shall not be affected thereby). Lavelle must be given the right, in circumstances that we shall describe, to claim a jury trial. We must fashion a remedy that will be available to Lavelle, and to similarly situated respondents, until the Legislature, if it elects to do so, provides another solution. We could direct that Lavelle has the same right that a complainant has under G. L. c. 151B, § 9, to elect a judicial determination, with a right to a jury trial. However, to do so would disregard the Legislature’s decision that a complainant, but not a respondent, may take a gender-based discrimination claim to court before the commission has acted on it. We are not compelled to adopt such a procedure because, as we have noted, differences in the treatment of complainants and respondents are permissible provided fundamental rights are not jeopardized. See New York & Mass. Motor Serv., Inc. v. Massachusetts Comm’n Against Discrimination, supra at 580. A right in a respondent to obtain a jury trial only after the commission has taken final action is the best available option. In this way the commission will be involved in the matter as fully as possible and as the Legislature directed. Many disputes will be settled by the commission and will not need to be adjudicated. Persons representing themselves will not be forced into unfamiliar court surroundings but will be heard instead in less intimidating agency proceedings. Courts, in turn, will not be unnecessarily inundated with gender-based discrimination lawsuits demanded by respondents, perhaps in some instances for tactical reasons. Also, the commission may decide in favor of the respondent on the merits, thereby ending the matter. G. L. c. 151B, § 9, first par. Moreover, although the commission may decide in favor of the complainant, it might only grant traditional equitable relief. In such a case, a respondent would have no right to a jury trial. Additionally, an unsuccessful respondent may conclude that an appeal based on the agency record (G. L. c. 151B, § 6) provides an adequate avenue of relief from the agency decision. We adopt this solution recognizing that it gives certain respondents two chances to prevail, before the commission and then in court, while a complainant unsuccessful before the commission may not proceed to court for a new hearing (G. L. c. 151B, § 9, first par.), but may seek judicial review only on the agency record (G. L. c. 151B, § 6). We also recognize that there will be practical problems in extending a jury trial right to a respondent, including the preparation of a complaint to be filed in court by or on behalf of a complainant. Other questions may arise concerning the process we have described, but we decline to anticipate and answer them now. Any other solution must be left to the Legislature. If the statutory pattern granted neither party the right to elect a judicial determination of a gender-based employment discrimination case, no equal protection issue would be presented. An art. 15 issue concerning the absence of a jury trial right would remain. There is authority that would support the disposition of this kind of statutory discrimination claim in an administrative agency, with judicial review based only on the agency record. See Department of Revenue v. Jarvenpaa, 404 Mass. 177, 188 (1989); Opinion of the Justices, 309 Mass. 571, 601-602 (1941); Opinion of the Justices, 309 Mass. 562, 568 (1941). Cf. Doherty v. Retirement Bd. of Medford, 425 Mass. 130, 137 (1997); Pernell v. Southall Realty, 416 U.S. 363, 383 (1974) (Seventh Amendment to the United States Constitution); Kentucky Comm’n on Human Rights v. Fraser, 625 S.W.2d 852, 854 (Ky. 1981) (same); Plasti-Line, Inc. v. Tennessee Human Rights Comm’n, 746 S.W.2d 691, 693-694 (Tenn. 1988) (same under State Constitution); Romero v. J & J Tire, JMH, Inc., 238 Mont. 146, 151 (1989) (no jury trial right in discrimination case heard by administrative agency; Seventh Amendment and State Constitution). It is, however, not within our authority to order such a result in the face of a legislative mandate that a complainant must have the right to elect a judicial determination of her gender-based discrimination claim. The order allowing the commission’s motion to dismiss is vacated. The case is remanded to the Superior Court for further proceedings consistent with this opinion. A declaration shall be entered that James Lavelle will be entitled to a trial by jury on any of the complainant’s claims that, after final agency action, has resulted in the granting of relief that departs from or exceeds the relief that a court of equity could traditionally have granted. So ordered. “In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practiced, the parties have a right to a trial by jury; and this method of procedure shall be held sacred, unless, in causes arising on the high seas, and such as relate to mariners’ wages, the legislature shall hereafter find it necessary to alter it.” Other respondents are Holyoke and its gas and electric department. The commission based its motion to dismiss solely on an assertion that Lavelle had no right to a jmy trial. It was apparently willing to face the issue on the allegations of the complaint because it did not raise the claim of exhaustion of administrative remedies in its motion. A complainant’s right to obtain a judicial determination of her claim does not depend on whether she is seeking only equitable relief, that is, only relief that a court of equity could have traditionally granted. A complainant who seeks only equitable relief in a judicial determination of her claim would not be entitled to a jury trial. LaveIIe, for no apparent reason, rests his argument only on the Fourteenth Amendment to the Constitution of the United States. He makes a passing reference to art. 11 of the Massachusetts Declaration of Rights but does not argue that the differences in treatment additionally and separately violate equal protection rights set out in the Constitution of the Commonwealth. We have recognized equal protection of law principles in arts. 1, 6, 7, and 10 of the Massachusetts Declaration of Rights. See Brest v. Commissioner of Ins., 270 Mass. 7, 14 (1930). Article 11 may also be involved. See King v. Grace, 293 Mass. 244, 246-247 (1936). The Dalis v. Buyer Advertising, Inc., 418 Mass. 220 (1994), opinion assumed that the plaintiff was seeking damages that exceeded those traditionally available from a court of equity. A governmental respondent’s right to a jury trial, if any, has implicitly been waived in G. L. c. 151B, at least where a complainant does not elect a judicial determination of her claim. In expressing this opinion, we need not embrace the “public rights” doctrine that the United States Supreme Court has advanced to justify the denial of a Seventh Amendment right to a trial by jury in matters assigned for resolution to an administrative agency. See Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 51-53 (1989); Atlas Roofing Co. v. Occupational Safety & Health Review Comm’n, 430 U.S. 442, 455 (1977). See 1 K.C. Davis & R.J. Pierce, Jr., Administrative Law § 2.8, at 100-101 (3d ed. 1994). Lynch, J. (concurring). I

REMBERT v RYAN’S FAMILY STEAKHOUSE, INC Docket No. 196542. Released December 2, 1997, at 9:00 am.; vacated December 16, 1997. Before: Corrigan, C.J., and Griffin and Hoekstra, JJ. GRIFFIN, J. Plaintiff appeals as of right an order of the circuit court granting summary disposition in favor of defendants on the basis that plaintiff’s claims are barred by an agreement to arbitrate. MCR 2.116(C)(7). Were we permitted, we would affirm for the reasons set forth in Judge (now Justice) Taylor’s opinion (concurring in part and dissenting in part) in Rushton v Meijer, Inc (On Remand), 225 Mich App 156; 570 NW2d 291 (1997). However, pursuant to MCR 7.215(H) we must follow and apply the holding of the majority opinion in Rushton, supra, which compels us to affirm in part and reverse in part. I Contemporaneously with his hiring by defendants, plaintiff executed a contract in which he agreed to arbitrate all employment-related disputes. Unlike in Heurtebise v Reliable Business Computers, Inc, 452 Mich 405; 550 NW2d 243 (1996), the arbitration agreement here is clearly a contract. Accordingly, the basis found by the Supreme Court in Heurtebise for not enforcing the arbitration provision is not applicable in the present case. However, in Rushton, supra at 170, this Court in a two to one decision adopted Justice Cavanagh’s concurring opinion in Heurtebise. The Rush-ton majority held “that Meyer [the employer] 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 Rushton panel based its decision on Michigan’s longstanding public policy of vigorously protecting the civil rights of its citizens. Judge Taylor dissented, arguing the fundamental policy of freedom of contract. Judge Taylor also noted that Michigan’s public policy, as reflected in our arbitration act, MCL 600.5001; MSA 27A.5001, and judicial decisions, favors arbitration and other forms of alternative dispute resolution (adr). The exclusion of all prospective civil rights claims from adr would thwart these important public policy objectives. Further, as Judge Taylor noted in Rushton, supra at 177-178: [T]he whole notion of prospective waivers of important rights is not, as the majority seems to believe, inherently repugnant to our constitutional order. Indeed, it is well established that rights of a higher standing than that of forum selection, i.e., constitutional rights themselves, may be prospectively waived. . . . Given that these highly valued constitutional rights may be prospectively waived without offending public policy, how can it be seriously suggested that, without a statute or provision of the constitution prohibiting it, and, in fact, our state arbitration act allowing it, the right to have a circuit court to resolve a civil rights dispute may not be prospectively waived in favor of having such a claim adjudicated in an arbitral forum? We agree with the reasoning of Judge Taylor and would follow and adopt his opinion.* We find no support for the Rushton majority’s conclusionaiy statement that all employment contracts to arbitrate prospective civil rights claims violate public policy. As noted by Judge Taylor, important rights, even of a constitutional magnitude, may be waived, modified, or limited by contract. Indeed, the Rushton holding contradicts recent federal court decisions, which have routinely ordered employees to arbitrate a wide variety of state and federal statutory claims under the provisions of predispute mandatory arbitration agreements governing employment discrimination claims. In Gilmer v Interstate/Johnson Lane Corp, 500 US 20; 111 S Ct 1647; 114 L Ed 2d 26 (1991), the United States Supreme Court considered whether claims arising under the Age Discrimination in Employment Act (adea), 29 USC 621 et seq., could be the subject of an enforceable arbitration agreement. The Court concluded that there was no evidence of a congressional intent to preclude arbitration of adea claims and allowed enforcement of an agreement to arbitrate such claims. Gilmer, supra at 35. In so holding, the United States Supreme Court, id. at 30, reiterated the significance of arbitration as a viable means of dispute resolution: In arguing that arbitration is inconsistent with the adea, Gilmer also raises a host of challenges to the adequacy of arbitration procedures. Initially, we note that in our recent arbitration cases we have already rejected most of these arguments as insufficient to preclude arbitration of statutory claims. Such generalized attacks on arbitration “rest on suspicion of arbitration as a method of weakening the protections afforded in the substantive law to would-be complainants,” and as such, they are “far out of step with our current strong endorsement of the federal statutes favoring this method of resolving disputes.” Rodriguez de Quijas [v Shearson/American Express, Inc, 490 US 477, 481; 109 S Ct 1917; 104 L Ed 2d 526 (1989)]. Post-Gilmer decisions uniformly have found its rationale to be equally applicable to the arbitration of claims arising under another federal civil rights statute, title VII of the Civil Rights Act of 1964, 42 USC 2000e et seq. See, e.g., Cosgrove v Shearson Lehman Bros, 105 F3d 659 (CA 6, 1997); Willis v Dean Witter Reynolds, Inc, 948 F2d 305, 310 (CA 6, 1991); Cremin v Merrill Lynch Pierce Fenner & Smith, Inc, 957 F Supp 1460, 1471 (ND Ill, 1997) (and cases cited therein). These cases demonstrate that “[b]y agreeing to arbitrate a statutory claim, a party does not forego the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.” Mitsubishi Motors Corp v Soler Chrysler-Plymouth, Inc, 473 US 614, 628; 105 S Ct 3346; 87 L Ed 2d 444 (1985). Were we permitted, we would follow this persuasive line of authority. We apply the holding of the majority opinion in Rushton, supra, only because we are required to do so pursuant to MCR 7.215(H). II Plaintiff’s complaint alleges claims of (1) racial discrimination, (2) handicap discrimination, (3) intentional infliction of emotional distress, and (4) constructive discharge. Plaintiff’s claims of intentional infliction of emotional distress and constructive discharge are clearly covered by the arbitration contract and, therefore, the circuit court’s order subjecting these claims to arbitration is affirmed. However, pursuant to Rushton, supra, plaintiffs claims of racial discrimination and handicap discrimination may not be submitted to arbitration. Accordingly, the lower court’s order regarding plaintiff’s claims of racial discrimination and handicap discrimination is reversed. The remaining issues raised on appeal are without merit. We agree with the ruling of the lower court that plaintiff failed to sustain his burden of submitting any evidence that he was incompetent to enter into the arbitration contract. Further, we agree that the contract for arbitration is clear and unambiguous with regard to the waiver of substantive legal rights and that it applies to defendants. We also hold that summary disposition was not prematurely granted, because further discovery was not necessary for plaintiff to discover his own alleged incompetence. Summary disposition is premature if discovery of a disputed issue is incomplete; however, it is appropriate if there is no fair chance that further discovery will result in factual support for the nonmoving party. Vargo v Sauer, 215 Mich App 389, 401; 547 NW2d 40 (1996). Moreover, there must be a disputed issue before the court. Bellows v Delaware McDonald’s Corp, 206 Mich App 555, 561; 522 NW2d 707 (1994). After having been given approximately six months to conduct discovery with regard to the competency issue and the opportunity to supplement any evidence in this regard, the trial court properly held that plaintiff’s conclusory averments regarding his own incompetency did not raise a genuine issue of fact. SSC Associates Ltd Partnership v General Retirement System of the City of Detroit, 192 Mich App 360, 365-366; 480 NW2d 275 (1991). Finally, during oral argument, defendants argued that the present case is distinguishable from Rushton for the reason that plaintiff’s employment allegedly involved interstate commerce and, therefore, is governed by the federal arbitration act, 9 USC 1 et seq. We disagree. For the reasons stated in the Rushton majority opinion, we hold that plaintiff’s employment contract as a breadmaker at defendant Ryan’s Family Steakhouse, Inc., was not “a contract evidencing a transaction involving [interstate] commerce . . . . “ 9 USC 2. Accordingly, plaintiff’s civil rights claims are not preempted by the federal arbitration act. Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. See, e.g., Detroit v A W Kutsche & Co, 309 Mich 700, 703; 16 NW2d 128 (1944), Grazia v Sanchez, 199 Mich App 582, 584; 502 NW2d 751 (1993), McKain v Moore, 172 Mich App 243, 248; 431 NW2d 470 (1988), Marciniak v Amid, 162 Mich App 71, 76; 412 NW2d 248 (1987), Omega Constr Co, Inc v Altman, 147 Mich App 649, 655; 382 NW2d 839 (1985), and Northland Ins Co v Sny, 98 Mich App 507, 508; 296 NW2d 292 (1980). We would not adopt the unnecessary commentary contained in the footnotes. The notion of unconscionability may be an underpinning of the Rush-ton decision. On this unarticulated issue, we note that, although atypical, many employment contracts are entered into with equal bargaining strength. Furthermore, in contracts involving some corporate executives or famous sport stars, the employee, not the employer, often has the stronger bargaining position. To hold in such situations that the employee cannot contractually agree to arbitrate prospective claims, including civil rights claims, is to deny, without reason, the right to contract. While case by case we might find some employment contracts to arbitrate future claims to be unconscionable, or not arbitrable as gleaned from legislative intent, the all-encompassing rule of law created by Rushton simply goes too far.

HYDE v UNIVERSITY OF MICHIGAN BOARD OF REGENTS Docket Nos. 181187, 190178. Submitted March 13, 1997, at Detroit. Decided November 25, 1997, at 9:00 a.m. Maurice Hyde, an African-American, brought an action in the Washte-naw Circuit Court against the University of Michigan Board of Regents, alleging disparate treatment in employment, retaliation, and discriminatory discharge on the basis of race. The plaintiff also alleged breach of contract, which count was heard separately by the circuit court sitting by stipulation as the Court of Claims. The court, Patrick J. Conlin, J., granted the defendant’s motion for partial summary disposition with regard to the plaintiff’s claim that his assignment was reduced from full-time to part-time because of his race. A jury heard the disparate treatment, retaliation, and discriminatory discharge claims and found that the plaintiff was not discharged from employment because of his race, that he was not retaliated against because of his complaints of discrimination, and that he was not entitled to any monetary back pay. The jury found that the defendant discriminated against the plaintiff by treating him differently than nonminorities, and awarded him noneconomic damages for outrage, indignation, humiliation, and embarrassment. The jury awarded the plaintiff $20,000, plus court costs and attorney fees. The Court of Claims action was decided adversely to the plaintiff. The plaintiff appealed, and the defendant cross appealed. (Docket No. 181187). The plaintiff also appealed from the trial court’s order awarding the defendant mediation sanctions for the plaintiff’s rejection of the mediation evaluation. (Docket No. 190178). The appeals were consolidated. The Court of Appeals held: 1. Partial summary disposition was properly granted with regard to the plaintiff’s claim that his change from full-time to part-time status was motivated by illegal race discrimination. 2. Where, as here, the plaintiff in an employment discrimination case seeks more than economic damages from an employer, the defendant employer may pursue normal discovery of the plaintiff’s emotional and mental history. A plaintiff who prefers to shield the plaintiff’s mental and emotional history from discovery may do so, but only if all claims for mental or emotional distress damages are withdrawn, including claims for damages arising out of embarrassment, anger, indignation, humiliation, and all similar issues. Where, as here, a plaintiff asserts the physician-patient privilege to shield psychological or mental history from discovery, it is error to allow the plaintiff to seek noneconomic damages or to introduce evidence of noneconomic injury. 3. The court erred in attempting to create two separate categories of psychic injuries: “serious” and “garden variety.” The court properly prevented the plaintiff from presenting more specific and additional evidence of mental anguish. 4. The plaintiff did not preserve for appellate review his allegation that the verdict with regard to the issues of retaliation and termination was contrary to the great weight of the evidence. 5. The mediation sanctions imposed on the plaintiff must be affirmed. 6. The jury’s verdict against the plaintiff regarding the claims of discriminatory discharge and retaliation precludes the retrial of any issues concerning economic damages on remand. The Court of Appeals ruling precluding the claims for noneconomic damages where the privilege has been invoked precludes the retrial of any issues concerning noneconomic damages on remand. Therefore, because there can be no evidence of damages on remand, there is no need for a new trial. The judgment reflecting the jury verdict for noneconomic damages and the award of costs and attorney fees must be reversed and the matter must be remanded for entry of a judgment of no cause of action. The remainder of the court’s rulings in other respects must be affirmed. Affirmed in part, reversed in part, and remanded. 1. Civil Rights — Employment Discrimination — Evidence — Noneconomic Damages — Discovery. A plaintiff in an employment discrimination and wrongful discharge case brought under the Civil Rights Act who seeks recovery for noneconomic damages, such as pain and suffering, mental distress, hurt feelings, or embarrassment, places the plaintiff’s mental condition in issue and consequently open to discovery; a plaintiff who asserts a privilege to prevent discovery with regard to this issue must withdraw, or the court must dismiss, any claim for noneconomic damages (MCR 2.314[A],[B]; MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 2. Civil Rights — Actions — Psychic Injuries. Victims of discrimination may recover for psychic injuries such as humiliation, embarrassment, outrage, disappointment, and other forms of mental anguish that flow from discrimination; Michigan courts have not recognized a two-tiered approach to emotional or psychic injuries that would create separate categories for “serious” and “garden variety” injuries. 3. Pretrial Procedure — Mediation — Appeal — Sanctions. It is the ultimate verdict that the parties are left with after appellate review is complete that should be measured against a mediation evaluation to determine whether sanctions should be imposed on a rejecting party pursuant to MCR 2.403(0). Green, Green & Craig, P.C. (by Philip Green and Christine A. Green), for the plaintiff. Miller, Canfield, Paddock and Stone, P.L.C. (by Richard J. Seryak and Megan P Norris), for the defendant. Before: Sawyer, P.J., and Saad and Gage, JJ. Saad, J. i NATURE OF THE CASE In this case we address several legal issues, but highlight here the key issue of first impression. In an employment discrimination, wrongful discharge case brought under the Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq., may a plaintiff seek more than economic damages yet shield from discovery his mental history? Our answer is clear and simple: no. If a plaintiff, as here, seeks more than economic damages from his employer, the defendant-employer may pursue normal discovery that includes discovery of the plaintiff’s emotional and mental history. If plaintiff prefers to shield his mental and emotional history from discovery, he may do so but only if he withdraws all claims for mental or emotional distress damages, including claims for damages arising out of embarrassment, anger, indignation, humiliation, and all similar issues. Because the trial court erred in allowing plaintiff to seek noneconomic damages after shielding his psychological or mental history from discoveiy by asserting the privilege, we reverse the lower court’s judgment with regard to those damages and the award of costs and attorney fees and affirm the circuit court’s rulings with regard to the other issues raised herein. n FACTS AND PROCEDURAL HISTORY At all times relevant to this case, the University of Michigan School of Social Work had a contract with the UAW-Ford Motor Company National Education, Development & Training Center (UAW-Ford Center) located in Dearborn, to provide academic and career counseling to Ford’s union workers. Plaintiff, an African-American male, was hired by the University of Michigan in 1985 to work as a Regional Life Education Advisor (rlea) with the iife/Education Planning Program (LEPP) for the UAW-Ford Center. Plaintiff’s duties as an rlea required travel to various Ford plants in his region, at which he developed and presented workshops and seminars for Ford employees. Plaintiff testified at trial that although he allegedly enjoyed a good working relationship with his previous supervisors, problems began about a year after Justine Bykowski became his supervisor in 1986 or 1987. Plaintiff filed a formal grievance against Ms. Bykowski in August, 1990, alleging racial discrimination and challenging her alleged “confrontational and inflexible management style.” After a hearing, a grievance panel unanimously found no evidence of discrimination, but called for both parties to “communicate clearly.” In 1989 and 1990, Ms. Bykowski wrote three disciplinary memos to plaintiff addressing alleged travel irregularities. Sometime later, plaintiff’s employment was reduced from full-time to half-time by the UAW-Ford Center. Plaintiff filed a second grievance against Ms. Bykowski, again alleging racial discrimination. On April 16, 1992, a panel again found no evidence of discrimination. Indeed, one African-American member that sat on both grievance panels (by plaintiff’s choice) attributed the difficulties between Bykowski and plaintiff to a personality conflict, rather than race. According to plaintiff, after his second grievance his relationship with Bykowski continued to deteriorate until the “Buffalo” incident at the Buffalo, New York, plant on September 1-3, 1992. On August 24, 1992, plaintiff was asked to service the Buffalo plant beginning on September 1, and he agreed to do so. On August 29, 1992, a friend asked plaintiff to sing in Chicago at the funeral of the friend’s father, and plaintiff telephoned Bykowski repeatedly to ask if his schedule could be changed. She made inquiries with the UAW-Ford Center and reviewed schedules of other regional rleas to determine if anyone could take plaintiff’s place. However, when she was unable to find a replacement, she notified plaintiff that he could not alter his schedule. Plaintiff refused to accept Ms. Bykowski’s answer, and he proceeded to contact others in the program, including people at the UAW-Ford Center in Dearborn and the local co-chair at the Buffalo plant, as well as some of Ms. Bykowski’s superiors in an attempt to override her determination. Eventually, plaintiff and Bykowski spoke by telephone again and Bykowski faxed plaintiff a memo telling him to fulfill the Buffalo assignment. Plaintiff did fulfill his obligations in Buffalo, but also sent a reply to Bykowski, in which he included the statement, “Also, at all costs you forego all professional management skills and opt to perform behaviors that border on what I believe are tactics adopted by the white supremacy.” Plaintiff sent copies of his letter to Harold Johnson (the dean of the university’s School of Social Work under which the lepp was administered), Shirley Anderson, the dean’s assistant, Program Director Bob Toronto, as well as Ron Dick and Dan Gamble of the personnel department. Following notification and a hearing, plaintiff was discharged on October 16, 1992. Mr. Toronto and Ms. Anderson recommended plaintiff’s dismissal to Dean Johnson, who himself felt that the discharge was long overdue, and who instructed Toronto to “proceed with all speed.” (Johnson, an African-American, described plaintiff as being noted for irregular expenditures, having difficulty in accepting assignments, and using poor judgment.) After further consultation with Dean Johnson, Mr. Toronto decided that plaintiff’s employment should be terminated and he authorized plaintiffs termination letter, which stated: In the recent episode at Buffalo Stamping, a routine scheduling decision made, in order to meet the needs of the program, was transformed by you into a point of contention which disrupted the work of numerous people. By your involving others in and outside of the University in your attempt to override the scheduling decision, you placed your personal convenience and priorities above those of the University, the Sponsor, the local site and the program as a whole. Your conduct damaged our relationship with the sponsor and the location and disrupted the provision of service to workers. This was inexcusably unprofessional. The Buffalo episode, in and of itself, would have caused me to consider the termination of your employment. In the context of the prior written warnings and your apparent inability to understand and appreciate the negative impact of your actions on the University’s relationship with its Sponsor, such action is inescapable. Your position in the [Disciplinary Review Conference] was that there was nothing wrong with your conduct in this or any other instance. This strengthened my conviction that termination was the only outcome that would meet the long term needs of the Program. Plaintiff brought this suit against the University of Michigan Board of Regents only, not the UAW-Ford Center or any individual (including Bykowski). In summary, plaintiff alleged: (1) disparate treatment on the basis of race in regard to his travel arrangements, assignments, work schedules, and criticisms from his supervisor, (2) retaliation for having filed two grievances alleging race discrimination, (3) termination from employment in October 1992, on the basis of illegal race discrimination, and (4) breach of contract. On March 8, 1994, the trial court granted defendant’s motion for partial summary disposition regarding plaintiffs claim that his assignment was reduced from full-time to part-time because of his race; the court determined that plaintiff had failed to raise a genuine issue of fact for trial that the decision had been made by the defendant, rather than by the uaw-Ford Center, whom plaintiff had not sued. The case proceeded to a jury trial of plaintiffs disparate treatment, retaliation, and discriminatory discharge claims. The jury found that plaintiff was not discharged from employment because of his race, that he was not retaliated against because of his complaints of discrimination, and that he was not entitled to any monetary back pay. The jury found that defendant discriminated against plaintiff by treating him differently than nonminorities, and awarded him noneconomic damages for outrage, indignation, humiliation, and embarrassment. The jury awarded $20,000, plus court costs and attorney fees. On appeal, in Docket No. 181187, plaintiff raises several substantive issues, one of which is cross appealed by defendant. In Docket No. 190178, plaintiff raises certain procedural issues involving mediation sanctions. The appeals were consolidated. m ANALYSIS A Plaintiff first alleges that the circuit court erred in granting partial summary disposition with regard to his claim that his change from full-time to part-time status was motivated by illegal race discrimination. We disagree. As a threshold matter, it is undisputed that it was the UAW-Ford Center, not the defendant university, that made the decision to reduce plaintiffs status. It is similarly undisputed that, in response to the UAW-Ford Center’s request for information, Ms. Bykowski provided the center with statistical information regarding the services actually performed by the RLE As. Plaintiff claims that Ms. Bykowski’s alleged racial animus tainted the center’s ultimate decision. However, plaintiff was unable to present facts to support his contention. In response to defendant’s motion, plaintiff presented no evidence that the statistics compiled by Bykowski were inaccurate or slanted, or that the statistics were not based on the reports actually submitted by the RLEAs themselves. Although plaintiff stated that “further discovery will very likely shed additional light on these questions,” plaintiff failed to show by affidavit that further development would support his claims. MCR 2.116(H). Thus, had Bykowski harbored illegal discriminatory animus, plaintiff was unable to show that it contributed in any way to the UAW-Ford Center’s decision to reduce plaintiff’s hours. See McDonald v Union Camp Corp, 898 F2d 1155, 1161 (CA 6, 1990). We find no error. B The parties next cross appeal various noneconomic damages issues, for which an additional factual discussion is necessary. In his complaint, plaintiff alleged that, as a result of defendant’s racial discrimination, he suffered, inter alia, “mental anguish, outrage, embarrassment and humiliation.” The applicable Michigan Court Rule regarding discovery provides: (1) When a mental or physical condition of a party is in controversy, medical information about the condition is subject to discovery under these rules to the extent that (a) the information is otherwise discoverable under MCR 2.302(B), and (b) the party does not assert that the information is subject to a valid privilege. [MCR 2.314(A)(1).] Pursuant to MCR 2.314, defendant sought discovery of plaintiffs mental histoiy. Plaintiff refused this request, asserted the physician-patient privilege, and contended: Plaintiff states [in his complaint] that he is seeking damages for mental anguish, humiliation, embarrassment, and the like, which are psychic damages. He is not claiming psychiatric injury or exacerbation of a pre-existing psychological or psychiatric condition. Because plaintiff asserted the privilege to shield his mental history from discovery, defendant asked the trial court by a motion in limine to preclude plaintiff from introducing any evidence of emotional distress at trial, pursuant to MCR 2.314(B)(2): Unless the court orders otherwise, if a party asserts that the medical information is subject to a privilege and the assertion has the effect of preventing discovery of medical information otherwise discoverable under MCR 2.302(B), the party may not thereafter present or introduce any physical, documentary, or testimonial evidence relating to the party’s medical history or mental or physical condition. Plaintiff argued to the circuit court that MCR 2.314(A)(1) did not apply because “as long as the claim for non-economic damages is restricted to embarrassment, humiliation, outrage and indignation, which some courts are referring to as the garden variety of emotional injuries, . . . the medical and psychological] records are not relevant and are not likely to lead to any relevant or admissible evidence.” The trial court incorrectly ruled that it would permit plaintiff to introduce evidence regarding embarrassment, humiliation, outrage, and indignation, but not mental anguish and emotional distress. In an August 12, 1994, opinion, the trial court refused plaintiffs request to expand the ruling to permit evidence of damages for mental anguish. At trial, the court attempted to limit plaintiffs evidence to his feelings of indignation, embarrassment, humiliation, and outrage and to prohibit testimony regarding emotional distress or mental anguish. Thus, plaintiff testified that he felt disgusted, frustrated, and embarrassed, that he felt angry, disrespected, and very insignificant as a person, and that he felt like “a broke forty-one year old man living with his mother.” At one point, the trial court sustained defendant’s objection that plaintiff’s testimony was invading the province of emotional/mental anguish. As previously stated, the jury ultimately awarded plaintiff $20,000 in noneconomic damages for outrage, indignation, humiliation, or embarrassment resulting from racial discrimination in his employment. We reverse this award because it was predicated on evidence of damages that should have been excluded by the trial court. It is well established that victims of discrimination may recover for psychic injuries such as humiliation, embarrassment, outrage, disappointment, and other forms of mental anguish that flow from discrimination. Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785, 799; 369 NW2d 223 (1985). See also Phillips v Butterball Farms Co, Inc (After Second Remand), 448 Mich 239, 250-253; 531 NW2d 144 (1995). However, the trial court clearly erred in attempting to create two separate categories of psychic injuries: (1) “serious” injuries such as “emotional distress” and “mental anguish,” and (2) “garden variety” injuries, such as hurt feelings, outrage, embarrassment, and humiliation. Such a distinction cannot be realistically maintained. In Veselenak v Smith, 414 Mich 567, 576; 327 NW2d 261 (1982), which addressed the duplication between ordinary damages and exemplary damages, the Court rejected the contention that “ordinary damages for shame and mortification” and “exemplary damages for humiliation and indignity” compe

Carleton Matthews vs. Ocean Spray Cranberries, Inc. Plymouth. October 14, 1997. - November 12, 1997. Present: Wilkins, C.J., Abrams, Lynch, Grbaney, Marshall, & Ireland, JJ. Employment, Discrimination, Termination. Anti-Discrimination Law, Burden of proof, Employment, Prima facie case, Race, Termination of employment. Practice, Civil, Summary judgment. Massachusetts Commission Against Discrimination. Discussion of the burden of proof in an employment discrimination claim in the context of cross motions for summary judgment. [127-128] The record of an employment discrimination case on cross motions for summary judgment showed that the defendant introduced credible evidence of a legitimate, nondiscriminatory reason for terminating the plaintiff for having removed company product from company premises without authorization in violation of the company’s widely publicized rules [128-129]; further, the record showed that the defendant demonstrated that the plaintiff would be unable to prove at trial that the stated reason for terminating him was a pretext for racial discrimination [129-134], A finding of probable cause by the Massachusetts Commission Against Discrimination in an employment discrimination case did not preclude a court of competent jurisdiction from entering summary judgment for the defendant employer on the record of cross motions for summary judgment in a civil action arising out of the same circumstances. [134-135] Civil action commenced in the Superior Court Department on September 9, 1993. The case was heard by Raymond J. Brassard, J., on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Edward J. McCormick, III (Elizabeth Maitland with him) for the plaintiff. Kay H. Hodge (Andrew L. Matz with her) for the defendant. Greaney, J. The plaintiff, Carleton Matthews, an African-American male, was terminated from his position as a forklift operator in the shipping department of the defendant’s, Ocean Spray Cranberries, Inc.’s, Middleborough manufacturing facility on April 23, 1992, after he admitted to removing product (cranberry sauce) from the facility’s premises without authorization. The plaintiff grieved his termination to arbitration pursuant to his collective bargaining agreement, and the arbitrator concluded, in a written decision which was not appealed, that the plaintiff had been terminated for just cause. The plaintiff filed complaints with the United States Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), and with the Massachusetts Commission Against Discrimination (MCAD) alleging employment discrimination. The OFCCP issued a notice of violation (which it subsequently rescinded), and the MCAD entered a finding of probable cause. The plaintiff next withdrew his charge before the MCAD and filed a complaint in the Superior Court, alleging that the defendant had terminated him because of his race in violation of G. L. c. 151B, § 4 (1). Both parties filed motions for summary judgment, and the judge granted the defendant’s motion. Thereafter, the judge denied the plaintiff’s motion to strike an affidavit submitted by the defendant’s human resources manager. The plaintiff has appealed, and we granted his application for direct appellate review. We affirm the summary judgment for the defendant. 1. The following facts are relevant for the purpose of summary judgment. The defendant maintains at its Middleborough facility a set of “plant rules” which are divided into “major” and “minor” violations. Included as a major violation, which “may result in discharge or a disciplinary suspension,” is “stealing,” which “involves the stealing of [cjompany or other employee’s property, stealing [cjompany time such as sleeping on the job, deliberate time card falsification, punching another’s time card, claiming pay not due, etc.” On March 20, 1989, a memorandum was issued in which the plant manager highlighted “stealing,” and three other major violations, as transgressions that the company would “not tolerate.” The memorandum “clarif[ied] that [stealing] also [applies to] individuals who are removing product from production lines without authorization, removing product from any designated production or storage area, bringing product or company property outside of the area in which it normally resides without authorization. It includes product or company property that is in an individual’s possession or under [the individual’s] control[,] such as in a bag or locker or is removed from the control or domain of the company whether it is on the premises or off.” The memorandum further stated: “all major violations as noted in the plant rules including stealing . . . will be dealt with in the most extreme manner possible. These plant rules when abused will be looked at as a threat to the well-being of our employees and as such, any individual found to have engaged in any of these activities [will] be terminated.” Neither the definition of stealing in the clarifying memorandum, nor in the plant rules, distinguishes between the unauthorized removal of damaged or undamaged product. On September 20,1991, the plant manager issued a memorandum entitled “REMOVAL OF COMPANY PROPERTY FROM OCEAN SPRAY COMPOUND.” The memorandum stated: “May this note serve to remind all employees that [c]ompany property removed from this facility requires pre-approval by a Manager or Supervisor. Prior approval to remove items may be granted by Managers and Supervisors under circumstances deemed appropriate according to policy and practice at the facility.” The plant rules, and both memoranda, were distributed to employees at the time of their issuance, and are posted on the employee bulletin board next to postings of employee schedules and assignments. At the time of the incident at issue, numerous employees had utilized the authorization form procedure to remove various objects discarded in the facility’s dumpsters. The facility also maintains a store where employees may purchase damaged product for three dollars per case. Despite the rules, deposition testimony indicated that the unauthorized removal of damaged product is commonplace at the facility. Nonetheless, the plant’s rules regarding the unauthorized removal of company product are well known and understood among the facility’s nearly 400 employees. The defendant has terminated all employees it has discovered taking company product without authority since the clarification memorandum was issued. The Middleborough facility does not manufacture cranberry sauce, although the facility stores and distributes sauce manufactured at the company’s Bordentown, New Jersey facility. The defendant tracks inventory received by the Middleborough facility, and cranberry sauce arrives at the facility in palletized lots for distribution to retailers. The company claims that it maintains records regarding damaged product, although some damaged product is discarded without having been recorded. The plaintiff began his employment with the defendant on October 12, 1987, and by all accounts, he was a good employee and was qualified for his position. In 1988, he received a written warning and a suspension for a major violation of the company’s rules (fighting). The warning stated that “your involvement in any major violation in the future will place your job in jeopardy.” On Friday, April 17, 1992, at approximately noontime, James Hurley, a production supervisor at the facility, observed the plaintiff in the cafeteria of the plant carrying a cardboard case containing eight-ounce cans of cranberry sauce under his left arm. The case appeared to Hurley to be unopened. A dark colored jacket was placed on top of the case. The plaintiff then left the cafeteria. Shortly thereafter, Barbara Denkner, the human resources manager at the facility, learned that the plaintiff had left the facility with company product. She immediately began an investigation into the incident in the course of which she interviewed the plaintiff and other facility employees. Denkner first spoke with the facility’s shipping and employee sales departments to ask whether the plaintiff had purchased or had been given any company product. When she was informed that he had not been authorized to remove product from the facility, Denkner then met with the plaintiff and his supervisor, Mustapha Finni. On informing him that he was seen taking a case of company product, the plaintiff readily admitted that he had taken the product. He explained that he had removed a damaged cardboard case containing dented cans of cranberry sauce from a dumpster in the lot outside the shipping area of the facility. He stated that he believed that he could take the product without authorization because it had been discarded and was in the dumpster. In response to Denkner’s suggestion that he return the product, the plaintiff stated that he had given it to his wife after he left the building. Following this meeting, Denkner advised Linda Hogan, the acting plant manager, “that an employee had admitted to stealing product.” At Hogan’s direction, Denkner again met with the plaintiff. James Luckraft, a supervisor at the facility, was present at this meeting. The plaintiff again admitted to taking company product without authorization, and acknowledged that he had received a copy of the plant rules at his orientation and that he was aware of the September 20, 1991, memorandum requiring employees to submit an authorization form, signed by their supervisor, prior to the removal of company property. He maintained that the rules were unclear and that he had misunderstood the authorization policy in that he believed that discarded product found in a dumpster was no longer company product subject to the authorization form requirement. Denkner did not find the plaintiff’s explanation credible because the September 20, 1989 “clarification” memorandum had been distributed to all employees when it was issued and had continued to be posted throughout the facility. In addition, the authorization form policy was posted throughout the plant and was being followed by other employees. At the conclusion of the meeting, Denkner informed the plaintiff that he was suspended pending further investigation of the incident. Later that afternoon, after he was advised that return of the product would assist the investigation, the plaintiff returned to Denkner’s office with seven uniformly dented, clean, and otherwise unblemished cans of cranberry sauce in a “Shaw’s Supermarket” paper bag, which he told Denkner were the cans he had taken from the dumpster. Following the plaintiff’s suspension, Denkner reviewed company records which indicated that the cans the plaintiff returned were included in a shipment of cranberry sauce received by the Middleborough facility on April 16, 1992, and that part of the shipment had been transported to various retailers in palletized quantities on the same day. The records did not indicate that the cans the plaintiff returned had been damaged, reworked or destroyed during the week and one half, prior to, and including, April 17, 1992. Furthermore, because the dumpster from which the plaintiff alleged he retrieved the cans is emptied daily, Denkner concluded that the plaintiff could not have found the cans in the dumpster. Denkner also concluded that the plaintiff had been untruthful about the quantity of product taken, since he had been observed carrying a case of product. After reviewing both the investigation report prepared by Denkner and the plaintiff’s personnel file, and after speaking with Denkner, Luckcraft, Finni, and Hurley, Hogan decided to terminate the plaintiff. Hogan asserted in a deposition that, because the plaintiff had removed product from the facility despite the rule against removing company property without authority, and because the authorization form policy for removing property was widely promulgated, and well-utilized by other employees, she did not consider suspending the plaintiff. The plaintiff’s disciplinary record did not “weighQ heavily” on her decision because “[u]nder the circumstances with [the plaintiff] having stolen company property, it would have stood alone ... in terms of requiring a termination.” On April 23, 1992, Hogan met with the plaintiff to advise him that he was discharged. Hogan maintained that prior to that meeting, she had “never connected [the plaintiff’s] face and [his] name.” 2. The party moving for summary judgment has the burden of affirmatively demonstrating the absence of a genuine issue of material fact on every relevant issue, even if the party would not have the burden on an issue if the case were to go to trial. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). The moving party may satisfy its burden by demonstrating that the opposing party has no reasonable expectation of proving an essential element of the case at trial. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). Here, we concentrate on the defendant’s motion for summary judgment which is the one granted by the judge, and is at the heart of the appeal. Summary judgment is admittedly a disfavored remedy in discrimination cases based on disparate treatment. Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 439 (1995), and cases cited. Nonetheless, summary judgment is not always inappropriate in these cases. We have upheld summary judgment in favor of defendants where their motions demonstrate that the plaintiff is unable to offer admissible evidence of the defendant’s discriminatory intent, motive, or state of mind sufficient to carry the plaintiff’s burdens and support a judgment in the plaintiff’s favor. See id. at 440, and cases cited. In employment discrimination cases alleging disparate treatment, we allocate the burden of producing evidence according to the framework set forth by the United States Supreme Court under the Federal antidiscrimination provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (1994). See id. at 440-441 (1995); Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 138 (1976), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under this framework, the plaintiff bears the initial burden of establishing a prima facie case of racial discrimination. Blare, supra at 441. See McDonnell Douglas Corp., supra at 802; Wheelock College, supra at 138. Once the plaintiff meets this burden, unlawful discrimination is presumed. The burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its hiring decision, Blare at 441-442, citing Wheelock College, supra at 136, and McDonnell Douglas Corp., supra, and to “produce credible evidence to show that the reason or reasons advanced were the real reasons.” Blare, supra at 442, quoting Wheelock College, supra at 138. The defendant’s “burden of production is not onerous.” Blare, supra at 442. “The reasons given for a decision may be unsound or even absurd,” and the action may appear “arbitrary or unwise,” nonetheless the defendant has fulfilled its obligation. Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 766-768 (1986). The defendant is not required to persuade the fact finder that it was correct in its belief. Tate v. Department of Mental Health, 419 Mass. 356, 362 (1995). Once the defendant meets its burden, the presumption of discrimination vanishes, and the burden returns to the plaintiff to persuade the court, by a fair preponderance of the evidence, that the defendant’s proffered reason for its employment decision was not the real reason, but is a pretext for discrimination. Blare, supra at 444-445. The plaintiff bears the burden of persuasion on the ultimate issue of discrimination, id. at 445, and therefore must “produce evidence sufficient to support a jury verdict that it was more likely than not that the articulated reason was pretext for actual discrimination.” Id. at 447. If the defendant’s reasons are not discriminatory, and if the plaintiff does not prove that they are pretexts, the plaintiff cannot prevail. Lewis, supra at 766. 3. Because the defendant does not argue that the plaintiff has failed to establish a prima facie case for summary judgment purposes, we assume, without deciding, that a prima facie case has been demonstrated. The plaintiff contends that the judge erred in denying his cross motion for summary judgment because the defendant failed to produce sufficient evidence to rebut the prima facie case. We disagree. The record shows that the defendant introduced credible evidence to demonstrate that it terminated the plaintiff because he had taken company product without authorization in violation of the company’s widely publicized rules. The defendant immediately initiated a thorough investigation into the incident, and did not accept the plaintiff’s explanation because, if indeed he was not aware, he should have been aware of the rules against removal of product without authority. It was reasonable in these circumstances for the defendant to conclude that the plaintiff was aware of the clarification memorandum and authorization form policy, but deliberately failed to adhere to them. In addition, the defendant reasonably could have suspected that the plaintiff lied about the circumstances surrounding his removal of the product. Accordingly, the defendant has satisfied its burden of advancing a legitimate, nondiscriminatory reason for terminating the plaintiff, and supporting that reason with credible evidence. We then turn to the issue whether the summary judgment record demonstrates that the defendant has shown that the plaintiff will be unable to prove at trial that the stated reason for terminating him was a pretext. The most probative means of establishing that the plaintiff’s termination was a pretext for racial discrimination is to demonstrate that similarly situated white employees were treated differently. Smith College v. Massachusetts Comm’n Against Discrimination, 376 Mass. 221, 228 (1978) (fact of discriminatory motive “can be inferred from differences in the treatment of [employees of different races]”). We have not previously considered what.evidence a plaintiff must produce to show that two individuals are similarly situated for purposes of proving differential treatment, and thus discrimination, in violation of G. L. c. 15IB. We adopt the approach taken by Federal courts under Title VII that in order to establish that the defendant’s stated reasons for terminating him were a pretext, the plaintiff must “identify and relate specific instances where persons similarly situated ‘in all relevant aspects’ were treated differently.” Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989), quoting Smith v. Monsanto Chem. Co., 770 F.2d 719, 723 (8th Cir. 1985), cert. denied, 475 U.S. 1050 (1986). The plaintiff must identify other employees to whom he is similarly situated “in terms of performance, qualifications and conduct, ‘without such differentiating or mitigating circumstances that would distinguish’ their situations.” Smith v. Stratus Computer, Inc., 40 F.3d 11, 17 (1st Cir. 1994), cert. denied, 514 U.S. 1108 (1995), quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992). Although the offenses of two employees need not be identical, the offenses must be of comparable seriousness. McDonnell Douglas Corp., supra at 804. Employees are not similarly situated where one is disciplined pursuant to one policy and then seeks to be compared to coworkers who were not subject to that policy or were subject to a previous policy. See Hooker v. Tufts Univ., 581 F. Supp. 104, 114 (D. Mass. 1983). The plaintiff submitted evidence that other individuals employed at the Middleborough facility, all of whom were white and were comparable to him in terms of positions and pay, committed violations of the compa

HARRISON v OLDE FINANCIAL CORPORATION Docket No. 183996. Submitted September 3, 1996, at Detroit. Decided October 3, 1997, at 9:15 A.M. Diane Harrison, an African-American, brought an action in the Wayne Circuit Court against Olde Financial Corporation and others, alleging racial discrimination in employment. The court, Richard P. Hathaway, J., granted summary disposition in favor of the defendants, finding that the plaintiff had stated a prima facie case of discrimination under the burden of proof analysis and construct established in McDonnell Douglas Corp v Green, 411 US'792 (1973), that the defendants had articulated nondiscriminatory reasons for their actions, and that the plaintiff failed to establish a genuine issue of material fact concerning whether the defendants’ reasons were merely pretexts for discrimination. The plaintiff appealed. The Court of Appeals held-. 1. The court and the parties applied an incorrect legal analysis. The matter must be remanded for application of the correct analysis. 2. The court correctly found that the plaintiff had stated a prima facie case under McDonnell Douglas, that the defendants had articulated nondiscriminatory reasons for their action, and that the plaintiff failed to establish a genuine issue of material fact concerning whether the defendants’ reasons were merely pretexts for discrimination. However, the McDonnell Douglas burden-shifting analysis is appropriate in cases without direct evidence of discrimination; it does not apply when, as in this case, the plaintiff presents direct evidence of discriminatory animus. 3. The plaintiff’s deposition testimony that the defendants’ employees made derogatory remarks about her race presents direct evidence of discrimination and raises a question of mixed motives in which the decision not to hire the plaintiff could have been based on several factors, legitimate ones as well as legally impermissible ones. 4. In a typical single-plaintiff, mixed-motive employment discrimination 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. Whatever the nature of the challenged employment action, the plaintiff must establish evidence of the plaintiff’s qualification or eligibility and direct proof that the discriminatory animus was causally related to the decisionmaker’s action. The employer may not avoid trial by merely articulating a nondiscriminatory reason for its action and the case ordinarily must be submitted to the factfinder for a determination whether the plaintiff’s claims are true. However, and alternatively, in addition to challenging the credibility of the plaintiff’s claims, the employer may also assume the burden of persuading the factfinder that, even if the plaintiff’s allegations are true, the employer would have made the same decision without consideration of discriminatory factors. 5. The trial court abused its discretion in denying the plaintiff’s motion to compel discovery of certain information that the plaintiff requested from the defendants that was not produced for an in camera inspection or made part of the record. The order denying the motion must be reversed and the matter must be remanded for a determination, based on record evidence, whether the requested information is relevant and, if so, whether the plaintiff’s discovery of the information properly may be limited. Reversed and remanded. 1. Civil Rights — Discriminatory Intent — Direct Evidence. Direct evidence and the burden-shifting analysis established in McDonnell Douglas Corp v Green, 411 US 792 (1973), are different evidentiary paths by which to resolve the ultimate issue of a defendant’s discriminatory intent in an action alleging discrimination; the McDonnell Douglas evidentiary framework does not apply when the plaintiff presents direct evidence of discriminatory animus; “direct evidence” is evidence that, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor. 2. Civil Rights — Employment Discrimination — Mixed Motives — Direct Evidence. The following principles of proof apply to a single-plaintiff, mixed-motive employment discrimination case arising under the Michigan Civil Rights Act: first, 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 and direct proof that the discriminatory animus was causally related to the decisionmaker’s action; the case ordinarily must be submitted to the factfinder to determine whether the plaintiff’s claims are true, and the employer may not avoid trial by merely articulating a nondiscriminatory reason for its action; in the alternative, in addition to challenging the credibility of the plaintiff’s claims of discrimination in a case involving direct evidence of discriminatory action, the employer may also assume the burden of persuading the factfinder that, even if the plaintiff’s allegations are true, the employer would have made the same decision without consideration of discriminatory factors (MCL 37.2101 et seq:, MSA 3.548[101] et seq.). Law Offices of Thomas E. Marshall (by Thomas E. Marshall and Nancy Brewer), for the plaintiff. Dickinson, Wright, Moon, Van Dusen & Freeman (by Francis R. Ortiz and Andrew S. Doctoroff), for the defendants. Before: Young, P.J., and Taylor and R. C. Livo, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Young, P.J. In this action alleging racial discrimination in employment, plaintiff Diane Harrison appeals as of right an order granting summary disposition under MCR 2.116(C)(10) to defendants Olde Financial Corporation, Olde Discount Corporation, and Deanna Hatmaker. We reverse and remand. i BACKGROUND Plaintiff is an African-American. In 1994, defendant retained plaintiff through an agency to work as a temporary legal secretary. Bruce Campbell, defendant’s corporate counsel, subsequently invited plaintiff to apply for a permanent secretarial position with defendant. Two staff attorneys later interviewed her. Plaintiff testified in her deposition that, at some point during her temporary employment with defendant, she overheard one of the two staff attorneys, Karen Brink, say to the other that, although plaintiff was a good secretary, she was “the wrong color.” Although defendant asserted that the two attorneys who interviewed plaintiff reportedly were dissatisfied with plaintiffs job performance, Brink nonetheless recommended that Campbell give plaintiff a second interview. Campbell and Deanna Hatmaker, defendant’s personnel director, thereafter interviewed plaintiff. Plaintiff testified that as plaintiff was leaving that interview, she overheard Hatmaker tell Campbell that he should not permit plaintiff to address him by his first name because plaintiff was black. Defendant offered the job to an applicant with higher qualifications than those of plaintiff. However, this applicant declined the offer because the salary associated with the position was too low. Defendant ultimately reorganized the secretarial position plaintiff had applied for and hired two nonminority women who allegedly were less qualified than plaintiff for the two new clerical legal support positions that encompassed the duties of the original legal secretarial position. Plaintiff ceased working for defendant in April 1994 and immediately filed suit. The trial court granted defendant’s motion for summary disposition, ruling that defendant had legitimate, nondiscriminatory business reasons for declining to hire plaintiff. On appeal, plaintiff asserts that the circuit court erred in granting summary disposition to defendant. We agree, but for entirely different reasons than urged by plaintiff. Instead, we conclude that the circuit court and the parties applied an incorrect legal analysis. This Court reviews a trial court’s determination regarding motions for summary disposition de novo. Stehlik v Johnson (On Rehearing), 206 Mich App 83, 85; 520 NW2d 633 (1994). A motion for summary disposition under MCR 2.116(C)(10) tests whether factual support exists for the claim. The trial court considers the affidavits, pleadings, depositions, admissions, and other admissible documentary evidence within the action. Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). The court’s task is to review the record evidence, and all reasonable inferences therefrom, and determine whether a genuine issue of material fact exists to warrant a trial. Id. In reviewing a trial court’s summary disposition decision, this Court makes all legitimate inferences in favor of the nonmoving party. Id. at 162. n PROOF OF EMPLOYMENT DISCRIMINATION Plaintiff alleges that defendant engaged in disparate treatment in violation of the Michigan Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., by refusing to hire her because of race. This constitutes a claim of intentional discrimination, which may be proved by alternate methods. Meagher v Wayne State Univ, 222 Mich App 700, 708-710; 565 NW2d 401 (1997). Intentional discrimination may be established by direct or indirect evidence. Id. at 710. In analyzing discrimination claims arising under the Michigan Civil Rights Act, Michigan courts have often resorted to federal precedent for guidance. Id. Indeed, the parties in this case have used, and the circuit court applied, the federal burden of proof analysis and construct established in McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973). Because most employment discrimination cases involve only circumstantial evidence of discrimination, the McDonnell Douglas burden of proof model was tailored for such cases. See Pierce v Com monwealth Life Ins Co, 40 F3d 796, 801, n 6 (CA 6, 1994). Consequently, as explained in Meagher, the McDonnell Douglas method of establishing a prima facie case of intentional discrimination relies upon a “presumptive approach.” Meagher, swpra at 710. The Supreme Court in Texas Dep’t of Community Affairs v Burdine, 450 US 248, 253-254; 101 S Ct 1089; 67 L Ed 2d 207 (1981), stated: The [McDonnell Douglas] prima facie case serves an important function . . . : it eliminates the most common nondiscriminatory reasons for the plaintiff’s rejection. As the Court explained in Furnco Construction Corp v Waters, 438 US 567, 577[;] 57 L Ed 2d 597[;] 98 S Ct 2943 (1978), the prima facie case “raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” [Some citations omitted.] Under the McDonnell Douglas approach that Michigan has adopted in various forms, the court must first determine if the plaintiff has stated a prima facie case of discrimination. Meagher, supra at 710-711. “Prima facie case” in the McDonnell Douglas context means only that the plaintiff has provided enough evidence to create a rebuttable presumption of discrimination. Dixon v W W Grainger, Inc, 168 Mich App 107, 115; 423 NW2d 580 (1987). It does not mean that the plaintiff has provided sufficient evidence to allow the case to go to a jury. Id. If the court concludes that the plaintiff has established a prima facie case of discrimination, the court then examines whether the defendant has articulated a legitimate, nondiscriminatory reason for its action. Meagher, supra at 711. If that articulation is made, the court next considers whether the plaintiff has proved by a preponderance of the evidence that the reason offered by the defendant was a mere pretext for discrimination. Id. at 711-712. As noted, the circuit court relied upon the McDonnell Douglas model in resolving defendant’s motion. We conclude that the circuit court correctly found that plaintiff had stated a prima facie case of discrimination under McDonnell Douglas, that defendant had articulated nondiscriminatory reasons for its action, and that plaintiff failed to establish a genuine issue of material fact concerning whether defendant’s reasons were merely pretexts for discrimination. Nevertheless, while the McDonnell Douglas burden-shifting analysis is appropriate in cases without direct evidence of discrimination, this case presents a different situation. Federal case law holds, and we agree, that the McDonnell Douglas evidentiary framework does not apply when a plaintiff presents direct evidence of discriminatory animus. Kresnak v Muskegon Heights, 956 F Supp 1327 (WD Mich,. 1997); see also Matras v Amoco Oil Co, 424 Mich 675, 683-684; 385 NW2d 586 (1986). “Direct evidence and the McDonnell Douglas formulation are simply different evidentiary paths by which to resolve the ultimate issue of [the] defendant’s discriminatory intent.” Blalock v Metals Trades, Inc, 775 F2d 703, 707 (CA 6, 1985). “Direct evidence” has been defined in the Sixth Circuit Court of Appeals as evidence that, if believed, “ 1 “requires the conclusion that unlawful discrimination was at least a motivating factor.” ’ ” Kresnak, supra at 1335 (citations omitted). For example, racial slurs by a decisionmaker constitute direct evidence of racial discrimination that is “ ‘sufficient to get the plaintiff’s case to the jury.’ ” Id. (citation omitted). Thus, when direct evidence of discrimination is involved, we believe that federal case law provides appropriate guidance for analyzing discrimination claims arising under the Michigan Civil Rights Act. In the instant case, plaintiff testified in her deposition that defendant’s employees made derogatory comments about her race. Because of plaintiff’s direct evidence of discrimination, this case presents a question of mixed motives, one in which defendant’s decision not to hire plaintiff could have been based on several factors, legitimate ones as well as legally impermissible ones. In federal cases involving mixed or dual motives, once the plaintiff has met the initial burden of proving that the illegal conduct (in this case, race discrimination) was more likely than not a “substantial” or “motivating” factor in the defendant’s decision, the defendant has the opportunity to show by a preponderance of the evidence that it would have reached the same decision without consideration of the protected characteristic. See Mt Healthy Bd of Ed v Doyle, 429 US 274, 287; 97 S Ct 568; 50 L Ed 2d 471 (1977) (involving a First Amendment claim arising under 42 USC 1983); see also East Texas Motor Freight System, Inc v Rodriguez, 431 US 395, 403, n 9; 97 S Ct 1891; 52 L Ed 2d 453 (1977). The Mt Healthy analysis was subsequently extended to cases arising under title VII of the Civil Rights Act of 1964, 42 USC 2000e et seq. Price Waterhouse v Hopkins, 490 US 228; 109 S Ct 1775; 104 L Ed 2d 268 (1989). In such cases, if the employer can show that the same decision would have been reached even in the absence of discrimination, no liability arises. See Haskins v United States Dep’t of the Army, 808 F2d 1192, 1197-1198 (CA 6, 1987). Federal courts applying this analysis consider whether a discriminatory factor played a motivating part in the decision by examining the considerations “ ‘at the moment of the decision.’ ” See Cesaro v Lakeville Community School Dist, 953 F2d 252, 254 (CA 6, 1992), quoting Price Waterhouse, supra at 250. The Supreme Court in Price Waterhouse, id. at 242, detailed the logic supporting this additional burden shifting in mixed-motive cases involving gender discrimination: To say that an employer may not take gender into account is not, however, the end of the matter, for that describes only one aspect of Title VII. The other important aspect of the statute is its preservation of an employer’s remaining freedom of choice. We conclude that the preservation of this freedom means that an employer shall not be liable if it can prove that, even if it had not taken gender into account, it would have come to the same decision regarding a particular person. The statute’s maintenance of employer prerogatives is evident from the statute itself and from its history, both in Congress and in this Court. We believe that the Supreme Court’s analysis in Price Waterhouse is equally applicable to cases arising under the Michigan Civil Rights Act, which was patterned on title VII. McCalla v Ellis 180 Mich App 372, 377-378; 446 NW2d 904 (1989). To summarize, we 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 plaintiffs 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 the factfinder for a determination whether the plaintiff’s claims are true. However, and alternatively, in addition to challenging the credibility of the plaintiff’s claims of discrimination, in a case involving direct evidence of discriminatory action, the employer may also assume the burden of persuading the factfinder that, even if the plaintiff’s allegations are true, the employer would have made the same decision without consideration of discriminatory factors. In other words, the employer may assume the burden of persuading the factfinder that consideration of the plaintiff’s protected characteristics was not “a determining factor” in its employment action. See Matras, supra at 684; Meagher, supra at 710. We believe that the federal approach in dealing with direct evidence of employment discrimination and employer mixed motives is superior to the McDonnell Douglas formula, which Michigan courts have traditionally attempted to apply in these cases. Turning to the trial court’s decision in the present case, in light of plaintiff’s direct evidence of discriminatory animus, we conclude that the trial court erred in applying the three-part framework outlined in McDonnell Douglas and in granting summary disposition to defendant on that basis. Consequently, we remand this case to the trial court for further proceedings. On remand, the trial court is directed to reconsider defendant’s motion in a manner consistent with this opinion. in PLAINTIFF’S DISCOVERY REQUEST Plaintiff next argues that the circuit court abused its discretion in denying her motion to compel discovery of certain statistics regarding the racial or ethnic composition of defendant’s work force. We agree. This Court reviews a trial court’s decision to grant or deny discovery for an abuse of discretion. SCD Chemical Distributors, Inc v Medley, 203 Mich App 374, 382; 512 NW2d 86 (1994). MCR 2.302(B)(1) provides that parties may obtain relevant, nonprivileged information, even if such information is inadmissible at trial, provided that the information sought appears reasonably calculated to lead to the discovery of admissible evidence. A court abuses its discretion when it denies discovery of relevant information. Michigan Millers Mut Ins Co v Bronson Plating Co, 197 Mich App 482, 495; 496 NW2d 373 (1992), aff’d on other grounds 445 Mich 558 (1994). Plaintiff asked defendant to produce “eeo-1” reports prepared since 1990 that pertained to defendant’s Detroit office. Eeo-1 reports are federally required reports in which federal contractors must disclose by employment class

SMITH v UNION CHARTER TOWNSHIP (ON REHEARING) Docket No. 187677. Submitted November 5, 1996, at Lansing. Decided September 16, 1997. Submitted on rehearing October 28, 1997. Decided on rehearing January 16, 1998, at 9:10 A.M. Walter E. Smith, Jr., brought an action in the Isabella Circuit Court against Union Charter Township and others, alleging, in part, racial discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq., with respect to the defendants’ failure or refusal to hire the plaintiff as township manager/utility manager. In seeking applicants for the job, the defendants had advertised that a professional engineering degree or engineer in training status was required. During discovery, the defendants learned that the plaintiff had submitted a resumé that falsely stated that he was a college graduate with experience in managing a public utility. The defendants moved for summary disposition of the civil rights claim. The court, James E. Wilson, X, granted the motion. The Court of Appeals, Smolenski, P.J., and Markman and T. G. Power, JX, in an unpublished opinion per curiam and a concurring opinion by T. G. Power, X, issued September 16,1997 (Docket No. 187677), reversed and remanded, holding that the trial court erred in concluding that the position required a professional engineering degree, an equivalent degree, or engineer in training status and erred in concluding that the plaintiffs resumé fraud precluded him from maintaining the civil rights claim. The Court of Appeals subsequently granted the defendants’ motion for a rehearing. On rehearing, the Court of Appeals held-. Wrongdoing by a job applicant, such as resumé fraud, that is discovered by an employer after rejecting the applicant and that would have led to the employee’s rejection on lawful and legitimate grounds does not bar the applicant from relief under the Civil Rights Act for wrongful failure or refusal to hire. Where the resumé fraud relates to core qualifications for the position, it can be presumed that the employer would have quickly discovered the applicant’s lack of qualifications such that the applicant, if successful with regard to the civil rights claim, would be entitled to damages limited to backpay from the date of failure or refusal to hire to the date of discovery of the wrongdoing. Order of partial summary disposition vacated; case remanded for further proceedings. Civil Rights — Employment Discrimination — Wrongful Failure or Refusal to Hire — Subsequently Discovered Wrongdoing by Applicant. Wrongdoing by a job applicant, such as resumé fraud, that is discovered by an employer after rejecting the applicant and that would have led to the employee’s rejection on lawful and legitimate grounds does not bar the applicant from relief under the Civil Rights Act if the failure or refusal to hire was unlawful under the act (MCL 37.2202; MSA 3.548[202]). Constance Y Ross, for the plaintiff. Foster, Swift, Collins & Smith, P.C. (by Kevin McGraw and Stephen J. Rhodes), for the defendants. Before: Smolensk, P.J., and Markman and T. G. Power, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Per Curiam. Plaintiff appeals as of right an order granting partial summary disposition to defendants pursuant to MCR 2.116(C)(10). In our initial opinion, Smith v Union Charter Twp, unpublished opinion per curiam of the Court of Appeals, issued September 16, 1997 (Docket No. 187677), we reversed and remanded. Defendants moved for rehearing. We hereby grant defendants’ motion for rehearing and vacate our initial opinion. We now vacate and remand. Defendant Union Charter Township advertised for candidates for an employment position entitled “Township Manager/Utility Manager,” which position required, in part, “PE [Professional Engineering Degree] or EIT [Engineer in Training status] with business management background or equivalent, plus local government experience. Responsible for management of water and sewer utilities . . . .” Plaintiff, a black male, submitted a resumé indicating that he had both a “B.S., Business Administration,” and an associate of arts degree. Plaintiff’s resumé listed three employers and indicated that he had management experience. With respect to one employer, plaintiff’s resumé indicated that he had experience in the public sector supervising civil engineering projects, including the construction, maintenance, and repair of water and sewage lines. Plaintiff and Wayne Zdrojkowski, a white male, emerged as finalists for the position. Defendant township offered the position to Zdrojkowski, who ultimately refused the offer. Defendant township did not offer the position to plaintiff and, instead, continued searching for candidates to fill the position. Plaintiff filed suit against defendant township and certain township officials, alleging, in relevant part, a claim of racial discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. During discovery, defendants learned that plaintiff had falsified parts of his resumé. Specifically, defendants discovered that plaintiff had only a general equivalency diploma (GED) with no college credits, and that he had little or no experience in designing, managing, operating, constructing, or maintaining a public utility. Defendants moved for summary disposition, which motion the trial court granted. First, the court noted that the employment advertisement plaintiff had answered required a “PE or EIT ... or equivalent,” and that “the equivalent refers to an equivalent degree in PE or EIT.” The court indicated that it had reviewed plaintiff’s resumé, and found as fact that plaintiff was not qualified for the employment position. The court made clear that this ground for its grant of summary disposition did not turn on plaintiff’s resumé fraud. Second, and alternatively, the court, noting that there was no Michigan law on this particular issue, found as a matter of law that plaintiff could not maintain his cause of action because of his resumé fraud. This Court reviews decisions on motions for summary disposition de novo to determine if the moving party was entitled to judgment as a matter of law. Stehlik v Johnson (On Rehearing), 206 Mich App 83, 85; 520 NW2d 633 (1994). MCR 2.116(C)(10) permits summary disposition when, except for the amount of damages, there is no genuine issue concerning any material fact and the moving party is entitled to [judgment] as a matter of law. A court reviewing such a motion must consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the opposing party and grant the benefit of any reasonable doubt to the opposing party. [Id.] Under the Civil Rights Act, an employer is prohibited from failing or refusing to hire an individual because of race. MCL 37.2202; MSA 3.548(202). The parties agree that Carden v General Motors Corp, 156 Mich App 202, 210; 401 NW2d 273 (1986), sets forth the applicable elements of a prima facie case of racial discrimination in the context of a refusal to hire: The Plaintiff has the burden of proving the following: (1) That he belonged to a racial minority; (2) That he applied and was qualified for a job for which the employer was seeking applicants; (3) That, despite his qualifications, he was rejected. See also Matras v Amoco Oil Co, 424 Mich 675, 683-684; 385 NW2d 586 (1986). This Court recently held that an employee discharged in violation of the Civil Rights Act is not barred from all relief when, after his discharge, the employer discovers evidence of wrongdoing that would have led to the employee’s termination on lawful and legitimate grounds. Wright v Restaurant Concept Management, Inc, 210 Mich App 105, 109-110; 532 NW2d 889 (1995) (citing McKennon v Nashville Banner Publishing Co, 513 US 352; 115 S Ct 879; 130 L Ed 2d 852; [1995]), see also Horn v Dep’t of Corrections, 216 Mich App 58; 548 NW2d 660 (1996). “An employer should not be absolutely insulated from liability for violations of state civil rights laws because of the fortuitous discovery, after the employee’s termination, of employee wrongdoing sufficient to have caused his termination.” Wright, supra at 110. Rather, any wrongdoing on the employee’s part may be reflected in the relief awarded. Id. at 111-112. Where evidence of employee misconduct is subsequently discovered in a discriminatory discharge case, reinstatement and front pay are generally not appropriate remedies. McKennon, supra; Wright, supra at 111-113. With respect to an award of backpay in such cases, “[t]he beginning point in the trial court’s formulation of a remedy should be calculation of backpay from the date of the unlawful discharge to the date the new information was discovered.” McKennon, supra; Wright, supra at 112. However, the relief ultimately accorded in such cases depends on the “ ‘factual permutations and the equitable considerations’ raised and in light of the remedies available under the Civil Rights Act.” Wright, supra at 112-113 (quoting McKennon, supra). “This approach precludes the exoneration of either wrongdoer while preserving the statutory goal of deterring discrimination.” Id. at 113. Unlike McKennon, Wright, and Horn, which involved wrongful termination, the present case involves an alleged wrongful failure to hire. The applicability of the after-acquired evidence rule to the present case is a legal question that is reviewed de novo. Horn, supra at 66. We find nothing in the logic of either the Supreme Court’s opinion in McKennon or this Court’s opinion in Wright that would preclude application of those cases to failure to hire cases. See Wright, supra at 110. However, one important distinction between wrongful discharge and failure to hire cases that bears on the appropriate remedy is the employer’s ability to observe the plaintiff working. In wrongful discharge cases, the employer has had the opportunity and incentive to monitor whether the plaintiff is qualified for the position during the time the plaintiff has worked for the employer. Accordingly, in awarding damages, it is appropriate that the starting point in calculating backpay be from the date of the discharge through the date the employer actually discovers the resumé fraud. However, in failure to hire cases, the employer has had no similar opportunity to observe the plaintiff working and thereby to discover resumé fraud relating to the plaintiff’s qualifications for the position. Accordingly, in applying the remedy guidelines set forth in these cases to the failure to hire context, we believe that the starting point should be calculation of backpay from the date of the unlawful employment action to the date that the defendant would reasonably have discovered the plaintiffs misrepresentations if he had been hired. Where the resumé fraud relates to core qualifications for the position, for example, it can be presumed that the employer would have quickly discovered the plaintiffs lack of qualifications and, therefore, the resumé fraud if the plaintiff had started working for the employer. Here, plaintiff is seeking recovery for alleged discrimination in violation of the Civil Rights Act despite his resumé fraud. The position at issue, Township Manager/Utility Manager, required specific technical expertise and experience. The specific false representations on plaintiffs resumé indicated that he was qualified for the position in question, when, in fact, he was not. Because these false representations of expertise and experience involved core qualifications for the position, we are convinced that plaintiffs lack of such expertise would quickly have become apparent to defendants if plaintiff had attempted to perform the job. Accordingly, here, if plaintiff were to prevail in his civil rights action against defendants, he would be entitled to extremely limited damages because defendants would soon have discovered his lack of qualifications and, therefore, his resumé fraud had they hired him. For these reasons, we vacate the trial court order granting defendants’ motion for partial summaiy disposition and remand for further proceedings consistent with this opinion. Defendants contend that plaintiffs claim of appeal was not timely. A challenge to subject-matter jurisdiction may be raised at any time. Smith v Smith, 218 Mich App 727, 729-730; 555 NW2d 271 (1996). Whether a court has subject-matter jurisdiction is a question of law that is reviewed de novo. Id. at 729. Here, we conclude that plaintiff’s claim of appeal was timely. Although the order denying plaintiffs motion for reconsideration was signed on June 15, 1995, there was no “entry,” as that term is defined in MCR 7.202(3), of this order until it was placed into the file and records of the lower court, which occurred on June 23, 1995, as evidenced by the date stamp on the order. Cf. MCR 2.001 and 2.602(A). Plaintiffs claim of appeal was then filed on July 13, 1995, i.e., within twenty-one days after the entry of the order denying plaintiffs motion for reconsideration. See MCR 7.204. While we grant defendants’ motion for rehearing, we feel obligated nonetheless to note that defendants’ counsel’s (inaccurate, in our judgment) characterization of an article in Michigan Lawyers Weekly in support of their position has not reflected well upon their cause and is highly inappropriate as a “legal argument” before this Court. Defendants contend that even if a question of fact remains concerning the exact nature of the qualifications for the manager’s position, plaintiff still cannot satisfy the qualifications requirement where plaintiff is “indisputably unqualified to manager either the Township or its utilities” because he possesses only a ged with no college credits and lacks “any work experience that would even make him close to being qualified.” The trial court did not have the benefit of either Wright, supra, or McKennon, supra, at the time it decided defendants’ motion for summary disposition. See also Blong v West, 886 F Supp 1576 (D Kan, 1995), aff'd 86 F3d 1166 (CA 10, 1996) (indicating that the Supreme Court’s opinion in McKennon would apply in a gender discrimination case consisting of an alleged wrongftd failure to hire); Perkins v Brigham & Women’s Hosp, 78 F3d 747, 751 (CA 1, 1996) (“[A]n employer cannot avoid liability in a discrimination case by exploiting' a weakness in an employee’s credentials . . . that was not known to the employer at the time of the adverse employment action [and that, therefore, could not have figured in the decisional calculus].”) Under MCL 37.2802; MSA 3.548(802), courts have discretion to award costs, including attorney fees, in civil rights actions. We presume that courts will exercise their discretion appropriately in considering in their decisions the extent of damages awarded to the plaintiff.

RUSHTON v MEIJER, INCORPORATED (ON REMAND) Docket No. 199684. Submitted December 9, 1996, at Lansing. Decided August 19, 1997, at 9:25 A.M. Leave to appeal sought. Christine M. Rushton brought an action in the Genesee Circuit Court against Meijer, Incorporated, alleging wrongful discharge, gender discrimination, and retaliation. The plaintiff had been employed by the defendant as a part-time floor detective. When the plaintiff was hired, she agreed to abide by the defendant’s policies and procedures and acknowledged receipt of an associate handbook, in which there was a provision that required that employees who were terminated follow the alternative dispute resolution (adr) procedure set forth in the handbook before seeking any judicial remedy. When the plaintiff was terminated from her employment, she invoked the adr procedure, indicating that she believed that she had been terminated without just cause, that she was the victim of gender discrimination, and that her termination had been in retaliation for her complaining about not being given a full-time job. Following an investigation, the plaintiff’s termination was upheld. Rather than pursue the next step in the adr procedure, which was binding arbitration, the plaintiff commenced her action in the circuit court. The defendant moved for summary disposition on the basis of the plaintiff’s failure to complete the alternative dispute resolution procedure. Following the plaintiff’s withdrawal of her retaliation claim, the court, Valdemar L. Washington, J., denied defendant’s motion for summary disposition of the wrongful discharge and gender discrimination claims. The defendant appealed by leave granted. The Court of Appeals, Fitzgerald, P.J., and Tailor and Holbrook, Jr., JJ., relying on the holding in Heurtebise v Reliable Business Computers, Inc, 207 Mich App 308 (1994), as controlling precedent for the proposition that private agreements to arbitrate civil rights claims are enforceable, reversed the order of the trial court that denied summary disposition with respect to both the wrongful discharge and the gender discrimination claims. Unpublished memorandum opinion of the Court of Appeals, issued March 1, 1995 (Docket No. 164272). The plaintiff sought leave to appeal to the Supreme Court, which remanded the matter to the Court of Appeals for reconsideration in light of Heurtebise v Relia ble Business Computers, Inc, 452 Mich 405 (1996). 453 Mich 943 (1996). On remand, the Court of Appeals held: 1. The Supreme Court in Heurtebise reversed the decision of the Court of Appeals in that case because the employee handbook contained language demonstrating that the employer did not intend to be bound by the provisions set forth in the handbook, in that the handbook stated that the policies contained therein did not create any employment or personal contract, that the employer retained the right to terminate any employee at any time for any reason, and that the employer retained the right to change any and all of the policies set forth in the handbook. 2. Unlike the employee handbook in Heurtebise, the defendant’s employee handbook in this case does not contain any language suggesting that the defendant does not intend to be bound by the provisions in the handbook or that the defendant does not consider that those policies result in employment that can be terminated only for just cause. Although the defendant’s handbook reserves to the defendant the right to modify or delete existing policies that are set forth in the handbook, it is clear that the defendant intended to be bound by the policies set forth in the handbook until such time that it exercises, with adequate notice to its employees, the reserved right to modify those policies. Because the defendant made no changes to the policies set forth in the handbook before the plaintiff instituted her action, both the plaintiff and the defendant are contractually bound by those provisions. 3. Because the provisions of the defendant’s employee handbook clearly require that a terminated employee pursuing a breach of contract claim first exhaust the nonjudicial remedies set forth in the ADR procedure, including the submission of the matter to binding arbitration, and because contractual provisions requiring the submission of claims of breach of contract to binding arbitration have been held to be valid and enforceable, the plaintiff’s failure to proceed with the remedies under the adr procedure of the employee handbook with respect to the wrongful discharge claim barred her pursuit of that claim in the circuit court. Accordingly, the trial court erred in failing to grant summary disposition for the defendant with respect to the wrongful discharge claim. 4. Section 803 of the Civil Rights Act, MCL 37.2803; MSA 3.548(803), expressly prohibits any requirement that a person asserting a right under that act first exhaust any nonjudicial remedies before seeking legal or equitable remedies in a court of this state. Accordingly, any provision in an employment contract that presumes to require that an employee who has a claim arising under the provisions of the Civil Rights Act first exhaust any nor\judicial remedies is contrary to public policy and unenforceable. Accordingly, the plaintiff was not required to proceed with the nonjudicial remedies set forth in the employee handbook rather than seeking a judicial remedy of her gender discrimination claim by the filing of a complaint in the circuit court, and the trial court properly refused to grant summary disposition for the defendant with respect to the claim of gender discrimination. 5. Because the plaintiffs employment as a store detective did not directly involve or affect interstate commerce, the federal arbitration act, 9 USC 1 et seq., is inapplicable to this matter, even though the defendant’s general business might involve interstate commerce. Affirmed in part, reversed in part, and remanded. Taylor, J., concurring in part and dissenting in part, stated that not only did the trial court err in refusing to grant summary disposition for the defendant with respect to the wrongful discharge claim, but also erred in refusing to grant summary disposition with respect to the gender discrimination claim because there is no binding authority to compel the conclusion that parties may not before a dispute arises contractually decide to submit any dispute that might arise under the Civil Rights Act to binding arbitration as the means of resolving the dispute. The provision of the Civil Rights Act upon which the majority primarily relies, MCL 37.2803; MSA 3.548(803), provides only that the Civil Rights Act does not diminish the right of a person to seek preexisting common-law and statutory legal and equitable rights in the courts of this state and is silent with respect to the question whether parties can contractually adopt binding arbitration as the means of resolving a dispute arising under the Civil Rights Act. In the face of that silence, a predispute agreement to arbitrate such disputes is consistent with state statutory law concerning arbitration and is valid and enforceable. 1. Contracts — Employment Contracts — Employee Handbooks — Intention to be Bound. An employer’s indication that it intends to be bound by the policies and procedures set forth in its employee handbook creates a valid employment contract binding both the employer and the employee to the provisions contained in the handbook even where the employer has reserved an unexercised right to amend or delete existing policies contained in the handbook. 2. Arbitration — Employment Contracts — Breach of Contract — Agreement to Arbitrate. An employer and an employee in an employment contract may validly agree that any dispute involving a breach of that contract be submitted to binding arbitration as the means of resolving the dispute. 3. Arbitration — Civil Rights Act — Employment Contracts — Agreement to Arbitrate — Public Policy. An agreement in an employment contract requiring any subsequent dispute involving a claim arising under the Civil Rights Act to be submitted to binding arbitration is contrary to the express provisions of that act and is unenforceable as a matter of public policy (MCL 37.2803; MSA 3.548[803]). Wascha & Waun, P.C. (by Thomas W. Waun), for the plaintiff. Jeffrey A. Rueble and Miller, Canfield, Paddock and Stone (by Charles S. Mishkind and Diane M. Soubly), for the defendant. Amici Curiae: Dickinson, Wright, Moon, Van Dusen & Freeman (by John Corbett O’Meara, Thomas G. Kienbaum, and Noel D. Massie), for American Society of Employers and others. ON REMAND Before: Fitzgerald, P.J., and Taylor and Holbrook, Jr., JJ. Holbrook, Jr., J. This case is on remand to us from the Michigan Supreme Court, 453 Mich 943 (1996), for reconsideration in light of Heurtebise v Reliable Business Computers, Inc, 452 Mich 405; 550 NW2d 243 (1996). We reverse in part and affirm in part. As we stated in our earlier opinion: Plaintiff worked as a part-time floor detective for defendant Meijer, Incorporated. When she was hired by Meijer, plaintiff signed an employment form agreeing to abide [by] defendant’s policies and procedures. Plaintiff acknowledged receipt of an associate handbook which included defendant’s termination appeal procedure. This document unambiguously provided that terminated employees were required to exhaust the alternate dispute resolution (adr) procedure. A separate document which plaintiff received indicated that exhaustion of the adr procedure is a condition precedent to litigation, regardless of whether the arbitrator’s final decision is upheld by a trial court. When defendant terminated plaintiff’s employment, she [plaintiff] invoked the adr procedure. She indicated that she believed she had been discharged without just cause, that she was the victim of gender discrimination, and that she had been retaliated against for complaining about not being given a full-time job. Following an investigation, plaintiff’s discharge was upheld at step one of the adr procedure. Plaintiff chose not to pursue the next step in the procedure, binding arbitration, and instead filed a lawsuit alleging wrongful discharge, gender discrimination, and retaliation. Defendant moved for summary or partial disposition, or for an order enforcing the adr award or procedure. At the hearing on defendant’s motion, plaintiff withdrew her retaliation claim. The court then denied defendant’s motion for summary disposition of the wrongful discharge and gender discrimination claims. [Rushton v Meijer, Inc, unpublished memorandum opinion of the Court of Appeals, issued March 1, 1995 (Docket No. 164272).] In our original opinion, we reversed the trial court’s denial of a defense motion for summary disposition of plaintiff’s wrongful discharge and gender discrimination claims because plaintiff had failed to exhaust the remedies available to her pursuant to the ADR procedure that defendant had established to resolve such claims. In reversing the trial court’s denial of defendant’s motion for summary disposition of plaintiff’s gender discrimination claim, we relied on Heurtebise v Reliable Business Computers, Inc, 207 Mich App 308; 523 NW2d 904 (1994), as controlling precedent for the proposition that private agreements to arbitrate civil rights claims are enforceable. i The Michigan Supreme Court reversed this Court’s decision in Heurtebise, because the employee handbook contained language demonstrating that the employer did not intend to be bound by its provisions. 452 Mich 414. As the Supreme Court noted, the handbook in Heurtebise contained clauses stating: (1) the policies in the handbook do not create any employment or personal contract, express or implied; (2) the employer had the right to terminate employees’ employment at any time, without notice, for any reason; and (3) the employer reserved the right to make modifications to any or all of the policies in the handbook. Thus, the instrument in Heurtebise expressly disclaiming contract status, yielding the employee no benefit above the minimal required status even to be an employee — namely, at-will status— and having provisions that could be changed unilaterally by the employer was, as might be expected, determined not to be a contract by the Supreme Court. It is in light of this holding that we are directed to reexamine the Meijer employee handbook. The dissimilarities are marked. Unlike the Heurtebise handbook, the Meijer handbook does not contain language stating that Meijer does not intend to be bound by its provisions. Further, it does not indicate that Meijer considers the policies not to create a contract and, finally, rather than an at-will termination policy, this instrument has consideration running to the employee in the form of an express promise of termination from employment only for just cause. Were this the extent of the provisions of the Meijer handbook, we could easily discern its determinative distinctions from the Heurtebise booklet and find it to be a contract binding on both parties. There is, however, reservation language in the Meijer handbook stating that the existing policies may be “modified or deleted” by the employer. This reservation clause, plaintiff argues, would allow all or part of the contractual provisions to be deleted and means that the instrument here at issue, just as the one in Heurtebise, is no contract at all. This argument has some allure, but on serious scrutiny, the problem plaintiff points to is illusory in the factual circumstances found here. It must be recalled that this instrument is an agreement to control an ongoing course of conduct between the employer and its employees. By its clear terms, they are both bound by it unless and until the employer chooses to change it. Even then, the employer cannot retroactively escape from its requirements. Any change can only take effect prospectively. See In re Certified Question, 432 Mich 438, 441; 443 NW2d 112 (1989). Accordingly, because the alleged improper acts by the employer at issue here came before any change was made in the agreement by the employer (in fact, as far as we know, even now no changes have been instituted by the employer), both parties are bound. In particular, the parties are bound to utilize the exclusive ADR procedure for handling their contract dispute. While the reservation language in the handbook will allow Meijer, for example, to change its policy of being a just-cause employer to become an at-will employer, the change would be effective only from the time of the implementation of the change (and after reasonable employee notification). Until such a change is made (which might cause the new arrangement to run afoul of the Heurtebise holding), Meijer is bound by the handbook in its dealing with its employees. Indeed, any other conclusion would mean that an employer could never change its employment agreements with its employees. Once a just-cause employer would mean always a just-cause employer. No employer would be likely to choose voluntarily to be so bound, and, thus, plaintiffs position, if adopted, would have the unfortunate and surely undesirable consequence of discouraging the practice of granting employees just-cause termination protection. Moreover, if an employer should cavalierly eliminate provisions that restrict its options in dealing with its employees, arbitrability could be jeopardized under Heurtebise, and valued employees, the retention of whom no doubt prompted the adoption of the just-cause policy in the first place, might choose to leave the employer. Rood v General Dynamics Corp, 444 Mich 107, 137-141; 507 NW2d 591 (1993). This economic regulation of the employment marketplace will undoubtedly cause an employer to exercise caution before making any change in the employment relationship, just as conditions of the employment market no doubt were factors considered in the granting of just-cause termination status in this case. Therefore, because the Meijer and Heurtebise handbooks are distinguishable, this plaintiff was bound by the handbook with regard to any contractual claim. The fact that Meijer could later change the agreement does not vitiate the fact that, as things currently stand, these parties are contractually bound. Accordingly, Meijer can, consistent with prior case law, require employees to arbitrate contract disputes regarding adverse employment decisions. See, e.g., Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 624; 292 NW2d 880 (1989). Because plaintiff failed to pursue her breach of contract claim utilizing the required ADR procedure, she is barred from pursuing such a claim in the circuit court. Renny v Port Huron Hosp, 427 Mich 415, 429-430; 398 NW2d 327 (1986); Zeniuk v RKA, Inc, 189 Mich App 33, 35, 37-38; 472 NW2d 23 (1991). Accordingly, we reverse the trial court’s order denying defendant’s motion for summary disposition of this claim. H With regard to plaintiff’s gender discrimination claim, we conclude, in light of Heurtebise, that summary disposition was properly denied by the trial court. To this end, we agree with and adopt as our own the reasoning of Justice Cavanagh in parts m through VI of his opinion in Heurtebise, which addressed, albeit in dicta, the issue “whether private employers can require employees, as a condition of employment, to waive prospectively their right to pursue civil rights claims in a judicial forum.” 452 Mich 414. As noted by Justice Cavanagh in Heurtebise, “[u]nlike federal law, Michigan has an unwavering history of faithfully defending an aggrieved individual’s right to a judicial forum to remedy unlawful discrimination.” 452 Mich 414. This unwavering history is currently reflected in the judicial remedies clause of Const 1963, art 5, § 29, as well as its legislative counterpart, MCL 37.2803; MSA 3.548(803). Article 5, § 29 of our state constitution establishes a civil rights commission with certain powers and responsibilities, and incorporates a judicial remedies clause: “Nothing contained in this section shall be construed to diminish the right of any party to direct and immediate legal or equitable remedies in the courts of this state.” Similarly, our Legislature in § 803 of the Civil Rights Act has reinforced and broadened the constitutional right of Michigan’s citizens to immediate and direct judicial review of a civil rights claim: “This [civil rights] act shall not be construed to diminish the right of a person to direct or immediate legal or equitable remedies in the courts of this state.” Justice Cavanagh aptly concluded that § 803 “expressly prohibits an exhaustion of administrative remedies requirement.” 452 Mich 420. 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: A contract which is contrary to public policy is illegal and void. Federoff v Ewing, 386 Mich 474, 481; 192 NW2d 242 (1971). Public policy has been described as “the community common sense and common conscience, extended and applied throughout the State to matters of public morals, public health, public safety, public welfare, and the like.” Skutt v Grand Rapids, 275 Mich 258, 264; 266 NW 344 (1936). It is expressed in the constitution, statutes, judicial decisions, or customs and conventions of the people, and it concerns the primary principles of equity and justice. Id. [Badon v General Motors Corp, 188 Mich App 430, 439; 470 NW2d 436 (1991).] Contrary to defendant Meijer’s argument, we do not find the parties’ employment contract to be governed by the federal arbitration act (faa), 9 USC 1 et seq. In Bernhardt v Polygraphic Co of America, Inc, 350 US 198, 200-201; 76 S Ct 273; 100 L Ed 199 (1956), Bernhardt, a New York resident, was hired by Polygraphic, a New York corporation, to be the superintendent of its lithographic plant in Vermont. Under the terms of the part

TOWN v MICHIGAN BELL TELEPHONE COMPANY McCONNELL v ROLLINS BURDICK HUNTER OF MICHIGAN, INCORPORATED Docket Nos. 102845, 103476. Argued January 15, 1997 (Calendar Nos. 10-11). Decided July 31, 1997. Rehearing denied in Town, 456 Mich 1202. Veronica Town brought an action in the Wayne Circuit Court against Michigan Bell Telephone Company, alleging constructive discharge and age and sex discrimination. The plaintiff had declined to accept a transfer when her position was consolidated, and, instead, resigned and accepted early retirement. The court, James E. Mies, J., directed a verdict for the defendant. The Court of Appeals, Michael J. Kelly and W. J. Caprathe, JJ. (White, P.J., dissenting), in an unpublished opinion per curiam, affirmed, concluding that although the plaintiff had been constructively discharged, she had not proven that age was a determining factor (Docket No. 144980). The plaintiff appeals. Ted McConnell brought an action in the Wayne Circuit Court against Rollins Burdick Hunter of Michigan, Incorporated, and Miller, Mason & Dickenson, Inc., alleging breach of employment contract, promissory estoppel, and age discrimination after being discharged from his employment. The court, William J. Giovan, X, granted summary disposition for the defendant. The Court of Appeals, Marilyn Kelly, P.J., and Shepherd and L. P. Borrello, JX, affirmed in an unpublished opinion per curiam (Docket No. 146449). On rehearing, the Court, Marilyn Kelly, P.J., and L. P. Borrello, X (Shepherd, X, not participating), affirmed in an unpublished opinion per curiam, but remanded the case for trial of the plaintiff’s age-discrimination claim (Docket No. 146449). The defendants appeal. In an opinion by Justice Brickley, joined by Justices Boyle and Weaver, and an opinion by Justice Riley, the Supreme Court held: The plaintiffs failed to present sufficient evidence that discrimination was a determining factor in their employers’ decisions to terminate their employment. 1. A claim of age discrimination may be shown by the use of direct or indirect evidence. Alternatively, in evaluating age-and sex-discrimination claims, courts have used the prima facie test articulated in McDonnell Douglas Corp v Green, 411 US 792 (1973), requiring a showing that the employee was a member of a protected class, was subject to an adverse employment action, and was qualified for the position, and that others, similarly situated and outside the protected class, were unaffected by the employer’s adverse conduct. The purpose of the prima facie test is to remove the most common nondiscriminatory reasons for the employer’s action, such as poor employee performance, and to force the employer to articulate a nondiscriminatory reason for the discharge. Once the employer produces evidence of a nondiscriminatory reason for the discharge, even if that reason later turns out to be incredible, the presumption of discrimination evaporates. 2. After the employer has met its burden of production, the employee must proceed without the benefit of the earlier presumptions. However, elimination of the presumption does not imply that the trier of fact no longer may consider evidence previously introduced to establish a prima facie case. To prevail, the employee must submit admissible evidence that the employer’s nondiscriminatory reason was not the true reason for the discharge and that the plaintiff’s age was a motivating factor in the employer’s decision, i.e., the employee must prove that the employer’s explanation was a pretext for discrimination. The proofs offered in support of the prima facie case may be sufficient to create a triable issue of fact that the employer’s stated reason is a pretext, as long as the evidence would enable a reasonable factfinder to infer that the employer’s decision had a discriminatory basis. When viewed in the light most favorable to the plaintiff, the evidence must create a material issue of fact on which reasonable minds could conclude that the employer’s stated reason is a pretext for discrimination for summary judgment to be precluded. That there may be a triable question of falsity does not necessarily mean that there is a triable question of discrimination. 3. In McConnell, the plaintiff did not submit evidence of pretext sufficient to enable a reasonable factfinder to infer that the employer’s decision had a discriminatory basis. In Town, the plaintiff failed to introduce sufficient evidence for a reasonable jury to conclude that age or sex discrimination was a determining factor in Michigan Bell’s decision to transfer her. Town, affirmed. McConnell, reversed. Justice Brickley, joined by Justices Boyle and Weaver, would further hold that under McDonnell Douglas an employee who was performing a job at a level that met the employer’s legitimate expectations is qualified for the job. In McConnell, rather than evaluating the plaintiffs case at the prima facie stage, it may be presumed that the plaintiff established a prima facie case. The purpose of the prima facie case is to force the defendant to provide a nondiscriminatory explanation for the adverse employment action. That purpose was served. However, under the circumstances, the plaintiff did not submit evidence of pretext sufficient to enable a reasonable factfinder to infer that the employer’s decision had a discriminatory basis. In Town, the defendant presented sufficient evidence to sustain its burden of production and dissolve the plaintiff’s prima facie case. The comparison was not between an unqualified employee and a qualified employee, but instead between two qualified employees. The plaintiff’s proofs, at most, merely raise questions about the defendant’s business judgment. The plaintiff did not create an issue of fact regarding whether the defendant’s nondiscriminatory explanation for the plaintiff’s transfer was a pretext, much less a pretext for discrimination. Further, the plaintiff never overcame the defendant’s allegation that she had taken too long to develop her staff and had not spent adequate time visiting customers at their places of business. Justice Riley, concurring, would further hold that employers should be given wide discretion in setting job standards and requirements and in deciding whether employees meet those standards. The job standards and requirements, however, are to be reasonable and consistently applied. Qualification obviously depends on the nature of business at any given time. To ignore the shifting nature of qualification from time to time would make the qualification requirement meaningless and would encourage the harassment of small businesses having informal personnel practices, with unfounded suits. Therefore, when evaluating its employees, employers are to evaluate them on the basis of their merits, in conjunction with the nature of their businesses at the time of the evaluation, and not on the basis of any discriminatory criterion. In McConnell, reviewing the plaintiff’s proofs and drawing any reasonable inferences in his favor, it may be concluded that he presented evidence establishing a question of fact regarding whether he was minimally qualified. He established a prima facie case of age discrimination. However, there is no evidence that the employer’s proffered explanation is unworthy of credence. The record amply demonstrates that the plaintiff had a full and fair opportunity to prove age discrimination. Justice Cavanagh, joined by Chief Justice Malleit, and by Justice Kelly in Town only, concurring in part and dissenting in part, stated that in McConnell, the defendant’s reason for firing the plaintiff was that he was not performing well, not that he was unqualified. The same-actor inference should not be used by the defendant as a shield from liability, but as mere evidence in support of the defendant’s claim. Inference of nonbias is an evidentiary matter for the finder of fact, and should not provide a basis for decision as a matter of law. In Town, the plaintiff presented sufficient evidence to permit reasonable minds to conclude that a motivating factor in involuntarily transferring her was age, as evidenced by the jury verdict in her favor. It was up to the jury to decide whether the defendant discriminated against plaintiff. The majority has improperly assumed the role of the jury by concluding that the defendant, as a matter of law, did not discriminate against plaintiff. Sommers, Schwartz, Silver & Schwartz, P.C. (by Donald J. Gasiorek and Patrick Burkett), for plaintiff Town. Pitt, Dowty & McGehee, P.C. (by Michael L. Pitt), for plaintiffs McConnell. Dickinson, Wright, Moon, Van Dusen & Freeman (by Thomas G. Kienbaum, Robert W. Powell, and Jennifer A. Zinn) for the defendant-appellee in Town. Dickinson, Wright, Moon, Van Dusen & Freeman (by Elizabeth Hardy and Julia Turner Baumhart) for the defendants-appellants in McConnell. Amicus Curiae: Clark, Hill, P.L.C. (by Duane L. Tamacki and J. Walker Henry), for Michigan Manufacturers Association. Brickley, J. The issue presented in these consolidated cases is whether the plaintiffs, McConnell and Town, have presented sufficient evidence of age or sex discrimination to surmount a motion for summary disposition and a motion for a directed verdict, respectively. We conclude in both cases that the plaintiffs failed to present sufficient evidence that discrimination had been a determining factor in their employers’ decisions. i McCONNELL v. ROLLINS BURDICK HUNTER In July of 1988, Ted McConnell accepted a job as a sales representative with Rollins Burdick Hunter (rbh). Rbh sold health insurance and provided insurance-related consulting services. At the time that he was hired, McConnell was fifty-five years old. In January of 1989, the plaintiff was informed that he needed to improve his sales production. The plaintiff’s next review was in September of 1989. Because the plaintiff’s sales revenue had not significantly improved by that time, he was informed that if his revenue did not increase that “there will have to be some adjustment made.” The plaintiff was unable to improve his production. Rbh discharged McConnell in January of 1990. At that time, the plaintiff was fifty-seven years old. The plaintiff brought suit against defendants RBH and Miller, Mason, and Dickenson, Inc., alleging breach of employment contract, promissory estoppel, and age discrimination. The trial court granted summary disposition for the defendants on each of the plaintiff’s claims. On appeal, the Court of Appeals initially affirmed the decision of the trial court. The plaintiff then moved for a rehearing on the age discrimination claim which was granted. On rehearing, the Court affirmed, but remanded the case for trial of the plaintiff’s age discrimination claim in an unpublished opinion per curiam. The defendants appealed that decision in this Court. We granted leave and consolidated this case with Town v Michigan Bell. TOWN v MICHIGAN BELL TELEPHONE COMPANY In 1980, Veronica Town sought a departmental transfer from her position of product-line manager with the Michigan Bell Telephone Company. She was interviewed by the assessment center and was offered á position. She turned it down, however, when she learned of the assessment center’s schedule, which consisted of a four-day work week, with twelve-hour shifts. This schedule was unacceptable to her because she needed to be home in the evenings to care for her husband, who was suffering from severe health problems. Instead, the plaintiff accepted a position as manager of market administrators. After one year, the plaintiff’s supervisor notified her that she was being transferred to the assessment center because her position was being consolidated with that of another manager. The person who held the other position was leaving the company. A thirty-five-year-old male, James Aveck, assumed the consolidated position. Still under the impression that the assessment center’s schedule was incompatible with her husband’s needs, the plaintiff resigned and accepted early retirement. The plaintiff was forty-nine years old at the time she resigned. The plaintiff filed suit against Michigan Bell in 1983, alleging constructive discharge and age and sex discrimination. After removal to federal court, reinstatement in state circuit court, summary disposition motions, and mediation, the case was tried by a jury in April, 1991. At the close of the plaintiff’s proofs, the defendant moved for a directed verdict, which was taken under advisement by the trial court. After the jury returned a verdict for the plaintiff, defendant renewed its motion for directed verdict, which the trial court granted. The Court of Appeals affirmed the trial court’s directed verdict. Although it concluded that the plaintiff had been constructively discharged, it agreed with the trial court that the plaintiff had not proven that age was a determining factor in the defendant’s decision. One judge dissented, arguing that the plaintiff had presented adequate evidence of discrimination by discrediting the defendant’s explanation of its decision. Citing St Mary’s Honor Center v Hicks, the dissenting judge argued that, once the employer’s explanation was discredited, the jury could, but was not required to, find that the real explanation for the employer’s decision was discriminatory. We granted leave to appeal and consolidated this case with McConnell v Rollins Burdick Hunter. n A claim of age discrimination may be shown under ordinary principles of proof by the use of direct or indirect evidence. Alternatively, many courts, including this one, have used the prima facie test articulated by the United States Supreme Court in McDonnell Douglas Corp v Green as a framework for evaluating age-discrimination claims. Originally applied to cases of race discrimination, the test has been modified to accommodate cases of age and sex discrimination. The modified McDonnell Douglas prima facie approach requires an employee to show that the employee was (1) a member of a protected class, (2) subject to an adverse employment action, (3) qualified for the position, and that (4) others, similarly situated and outside the protected class, were unaffected by the employer’s adverse conduct. The purpose of the prima facie test is to 1) remove the most common nondiscriminatory reasons for the employer’s action, such as poor employee performance, and 2) to force the employer to articulate a nondiscriminatory reason for the discharge. Once the employer produces evidence of a nondiscriminatory reason for the discharge, even if that reason later turns out to be incredible, the presumption of discrimination evaporates. After the employer has met its burden of production, the employee must proceed without the benefit of the earlier presumptions. However, elimination of the presumption does “not imply that the trier of fact no longer may consider evidence previously introduced by the plaintiff to establish a prima facie case.” As the United States Supreme Court explained: A satisfactory explanation by the defendant destroys the legally mandatory inference of discrimination arising from the plaintiff’s initial evidence. Nonetheless, this evidence and inferences properly drawn therefrom may be considered by the trier of fact on the issue of whether the defendant’s explanation is pretextaal. Indeed, there may be some cases where the plaintiff’s initial evidence, combined with the effective cross-examination of the defendant, will suffice to discredit the defendant’s explanation. [] Therefore, “the evidence and inferences that properly can be drawn from the evidence presented during the plaintiff’s prima facie case may be considered in determining whether the defendant’s explanation is pretextual.” Once the presumption drops out of the case, the plaintiff retains the ultimate burden of proving discrimination. Plaintiff has the opportunity to come forward with evidence, including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that the discrimination was defendant’s true motive in making the adverse employment decision. To prevail, the employee must submit admissible evidence to prove that the employer’s nondiscriminatory reason was not the true reason for the discharge and that the plaintiff’s age was a motivating factor in the employer’s decision. Thus, the employee must prove that the employer’s explanation was a pretext for discrimination. The proofs offered in support of the prima facie case may be sufficient to create a triable issue of fact that the employer’s stated reason is a pretext, as long as the evidence would enable a reasonable factfinder to infer that the employer’s decision had a discriminatory basis. “The strength of the prima facie case and the significance of the disbelieved pretext will vary from case to case depending on the circumstances. In short, everything depends on the individual facts.” Ultimately, the plaintiff will have the burden of producing evidence, whether direct or circumstantial, that proves that discrimination was a determining factor in the employer’s decision. Although the majority decision in Hicks appeared to be unambiguous, “many readers have found it to be otherwise.” The effect of Hicks on employer-brought summary judgment motions has been a matter of particular debate. Some employers have argued that, in order to defeat an employer’s motion for summary judgment, Hicks requires plaintiffs to offer substantial evidence both that the employer’s articulated reason was false and that the employer’s true reason was discriminatory — i.e., a “pretext-plus” standard. Some plaintiffs, on the other hand, have argued that once a prima facie case of discrimination is put forward, summary judgment for the employer never is appropriate, even if no evidence is put forward to refute the employer’s articulated nondiscriminatory reason, because the factfinder’s disbelief alone should be enough to permit a finding of pretext.[] We decline to adopt either extreme, and, instead, favor an intermediate position, which is the predominant view among the federal circuits. We would hold that when viewed in the light most favorable to the plaintiff, the evidence must create a material issue of fact on which reasonable minds could conclude that the employer’s stated reason is a pretext for discrimination for summary judgment to be precluded. Thus, plaintiff will not always present a triable issue of fact merely by rebutting the employer’s stated reason(s); “put differently, that there may be a triable question of falsity does not necessarily mean that there is a triable question of discrimination.” Furthermore, we note that in accordance with nine other federal circuits, “evidence sufficient to discredit a defendant’s proffered nondiscriminatory reasons for its actions, taken together with the plaintiff’s prima facie case, [may be] sufficient to support (but not require) a finding of discrimination.’’ “Where . . . either direct or circumstantial evidence from which a fact-finder could rationally conclude that the employer’s stated reason is a pretext for discrimination, summary judgment normally should be denied.” m In light of these principles, we turn to McConnell’s case. Defendants RBH and MMD argue that the plaintiff was not qualified to perform his job, and is therefore unable to satisfy the qualification element of the prima facie case. An employee is qualified if he was performing his job at a level that met the employer’s legitimate expectations. By all accounts, the plaintiff’s performance was less than stellar. Indeed, the plaintiff failed to generate enough revenue to pay his own salary. In his first full year, 1989, the plaintiff generated $70,505.11 in revenue while drawing a salary of $84,351.25 during the same period. He was terminated at the end of that year. Rather than evaluate plaintiff’s case at the prima facie stage, h

LYTLE v MALADY Docket No. 102515. Argued January 16, 1997 (Calendar No. 16). Decided July 31, 1997. Rehearing granted post, 1202. Nancy Lytle brought an action in the Muskegon Circuit Court against Michael Malady, her supervisor, and Howmet Corporation, her employer, after she was discharged from her employment, alleging breach of a contract providing for termination of employment for just cause only, and age and sex discrimination. Howmet asserted that the discharge was the result of a company-wide reduction in its work force. The court, R. Max Daniels, J., granted summary disposition for the defendants on all counts. The Court of Appeals, D. E. Holbrook, Jr., EJ., and Murphy and J. C. Kingsley, JJ., reversed (Docket No. 157627). The defendants appeal. In an opinion by Justice Riley, joined by Chief Justice Mallett, an opinion by Justice Cavanagh, joined by Justice Kelly, an opinion by Justice Boyle, joined by Justice Weaver, and an opinion by Justice Brickley, the Supreme Court held: Even when an employer’s decision to reduce its work force is determined to be bona fide, an employee still may establish a genuine issue of material fact that the employer’s justification for the discharge was not the true reason for its decision. In order to establish a genuine issue of material fact when an employer contends that its decision to discharge the employee was based on a work-force reduction, a discharged employee may not rely merely on unsubstantiated allegations or denials in the pleadings, but, rather, must come forward with admissible evidence, affidavits, or other evidentiary materials, demonstrating the existence of a factual dispute that the employer’s articulated reason was merely a pretext to discrimination. 1. Employment contracts for an indefinite duration are presumed to be terminable at the will of either party. To overcome the presumption, any verbal assurances or statement of policy and procedure regarding job security must be clear and unequivocal. A just-cause policy may be changed unilaterally to one of employment at will by giving reasonable notice to all affected employees. In this case, the method of notification instituted was not reasonably calculated to uniformly assure awareness of the change from termination only for just cause to employment at will for all the affected employees. Thus, the plaintiff’s legitimate expectation of just-cause employment was left undisturbed. 2. A reduction in work force for economic reasons constitutes termination for just cause; however, layoffs that are conducted must be bona fide, i.e., necessitated by business conditions. To establish a genuine issue of material fact that the employer’s decision was not bona fide, the employee may not rely merely on unsubstantiated allegations or denials in the pleadings, but, rather, must come forward with admissible evidence, affidavits, or other evidentiary materials, demonstrating the existence of a factual dispute. 3. The plaintiff’s relief, if any, rests in the Civil Rights Act. Under the act, to survive a motion for summary judgment, once an employer articulates a legitimate, nondiseriminatory reason for laying off a plaintiff, the plaintiff must introduce sufficient evidence to support two findings: that the employer’s articulated reason for laying off the plaintiff is a pretext, and that the true reason is discriminatory. Under some circumstances, a plaintiff may not need to introduce additional evidence because the plaintiff’s prima facie case may establish that the employer’s articulated reason for its adverse employment action is a pretext and, in so establishing, the plaintiff may have created a question of fact regarding whether the true reason is discriminatory. A plaintiff will not always present a triable question of pretext simply by disputing the employer’s stated reasons. Simply disproving the employer’s articulated reason will suffice if, and only if, disproving the employer’s reason also proves discrimination. In other instances, simply disproving an employer’s articulated reason will not establish discrimination, and the plaintiff would then have to introduce additional evidence. In all actions involving claims of discrimination, there must be evidence upon which reasonable minds could conclude that discrimination was the true motive for the employer’s adverse conduct against the plaintiff. That there may be a triable question of falsity does not necessarily mean that there is a triable question of discrimination. 4. The plaintiff need not show that age was the determining factor in the defendant’s decision to discharge her; rather, she need only prove that it was a determining factor. Despite the defendant’s claim that it based its decision on economic necessity, the plaintiff produced evidence that would permit reasonable persons to conclude that age more likely than not was a determining factor in the adverse employment action the defendant took against the plaintiff. This evidence suggests that the defendant’s reason for discharging the plaintiff was only a pretext for favoring the younger hirees over the older plaintiff. 5. Viewing the evidence in a light most favorable to the plaintiff and drawing every reasonable inference in her best regard, the plaintiff created a genuine issue of material fact whether the defendant considered her sex in its decision to discharge her. Justice Cavanagh, joined by Justice Kelly, concurring in part and dissenting in part, stated that it is premature to decide whether defendants’ alleged reduction in work force was bona fide because it is clear that discovery in this matter was not complete. Thus, remand to the trial court is required for the completion of discovery and to afford the plaintiff an equal opportunity to present further evidence. In order for a defendant to show that it discharged a plaintiff for bona fide economic reasons, it must demonstrate that adverse business conditions existed and that the elimination of the plaintiff’s position was necessitated by those conditions. Where a plaintiff’s proofs show that the elimination of the position was not motivated by the alleged reduction in work force, but rather by some other illegal reason, summary disposition should be precluded. Justice Boyle, joined by Justice Weaver, concurring in part and dissenting in part, stated that the plaintiff is not entitled to assert a legitimate expectation of just-cause employment where the handbook on which she relies disclaims any intent on the part of the employer to bind itself to the contents of the handbook. In conjunction with the disclaimer of contractual obligation, the policy language is insufficient to overcome the presumption of at-will termination. If the disclaimer were found to be inapplicable because it does not expressly mention plaintiff’s department, then the entire handbook must be found inapplicable. Because the plaintiff did not present evidence sufficient to raise a triable issue of fact that her position would not have been eliminated but for her age, summary disposition for the defendant was appropriate. Justice Brickley, concurring in part and dissenting in part, stated that summary disposition of the wrongful-termination claim was properly awarded to the defendant. Justice Weaver joined Justice Brickley to further state that the lead opinion’s finding with respect to the discrimination claims misapplies the governing law regarding the discrimination claims, and oversimplifies the facts of a complex case. Essentially, it allows a plaintiff to overcome summary disposition if the plaintiff can identify anyone who has less seniority, receives greater compensation, and does not share in the plaintiff’s characteristics. Apparently, it is now irrelevant if the retained person’s job was different than that held by the plaintiff or if that person was qualified for the job. The lead opinion second-guesses the employer’s decisions on the basis of its assumptions concerning which employee was more qualified. Affirmed in part and reversed in part. 209 Mich App 179; 530 NW2d 135 (1995) affirmed in part and reversed in part. Bott & Spencer, P.C. (by Timothy J. Bott), for the plaintiff. Vamum, Riddering, Schmidt & Howlett (by Joseph J. Yogan and Paul M. Kara) for the defendants. Riley, J. In the matter now before us, this Court is asked to clarify the evidentiary threshold a discharged employee must satisfy in order to create a genuine issue of material fact when an employer asserts that its decision to discharge an employee was precipitated by business conditions. We are also asked to decide whether a discharged employee may challenge an employer’s decision to reduce its work force charging discrimination, even when the reduction in work force (rif) decision has been deemed bona fide. We hold that even when an employer’s rif decision is concluded to be bona fide, an employee may still establish a genuine issue of material fact that the employer’s justification for discharging him was not the true reason for its decision to discharge. We also hold that in order for a discharged employee to establish a genuine issue of material fact when an employer contends that its decision to discharge the employee was based on a work-force reduction, the employee may not merely rely on unsubstantiated allegations or denials in the pleadings. Rather, he must come forward with admissible evidence, affidavits, or other evidentiary materials, demonstrating the existence of a factual dispute that the employer’s articulated reason was merely a pretext to discrimination. In the instant case, we conclude that defendant’s policy statement could have reasonably created a legitimate expectation of just-cause employment. We also conclude that defendant did have just cause to reduce its work force as a matter of law, but not with respect to this plaintiff. Rather, we hold that plaintiff did sufficiently establish a genuine issue of material fact regarding whether age was a determining factor in defendant’s decision to discharge her. We also conclude that plaintiff presented evidence sufficient to establish a genuine issue of material fact regarding whether defendant considered her sex in its decision to discharge her. We affirm the decision of the Court of Appeals finding that plaintiff could have reasonably had a legitimate expectation of just-cause employment. We also affirm its ruling that plaintiff raised a genuine issue of fact with respect to whether defendant discriminated against her on the basis of her age, as well as its decision concluding that plaintiff raised a genuine issue of material fact regarding her claim of sex discrimination. FACTS AND PROCEEDINGS On January 29, 1973, plaintiff Nancy Lytle was hired by defendant Howmet Turbine Components Corporation as a general clerk in its human resources department, which at that time served all divisions making up the Whitehall operation. Plaintiff received a manual containing a statement of defendant’s policies and procedures regarding employment. In the section containing defendant’s policy regarding the relationship it sought with each of its employees, defendant expressed that a probationary period existed that afforded it time to decide whether it was in its interest as well as the employee’s interest to continue the relationship following the probationary period. In that same section, the manual also stated that “[n]o employee will be terminated without proper cause or reason and not until management has made a careful review of all facts.” The last two paragraphs of the manual stated: The contents of this booklet are not intended to establish, and should not be interpreted to constitute any contract between the Misco Whitehall Division, Product Support Operations, Reactive Metal Operations or the Technical Center of Howmet Turbine Components Corporation and any employee, or group of employees. For over twenty years we have concentrated on the production of the finest investment castings, with the development of policies and principles which aim at the attainment of pride in every day’s work for every employee, plus the satisfaction of finding opportunities for individual growth and security. [Emphasis added.] In 1981, defendant placed a disclaimer in its policy manual: “[T]he Company reserves the right to terminate employees without assigning cause; therefore, the employee serves at the will of the employer.” Direct notification of the disclaimer was provided only to new employees, but plaintiff was involved in placing the disclaimer in new employee manuals. At the time of plaintiffs hiring, John Ozar was the human resources director, serving as her immediate supervisor. Under Ozar’s supervision, plaintiff received exemplary performance evaluations and was rewarded with a succession of promotions. In 1979, plaintiff spoke with Ozar about resigning and seeking employment elsewhere. Ozar assured plaintiff that her employment with defendant was secure and that she could expect advancement. Soon after that conversation, plaintiff was promoted to employment manager of the entire human resources department. Additionally, about the same time, Ozar hired Walter Boczkaja. Boczkaja became plaintiffs subordinate trainee. For approximately two years, Boczkaja trained under plaintiff, receiving promotions to various positions within the personnel department, and continued to be one of plaintiffs subordinates until 1989. During the 1984-85 fiscal year, Ozar retired and was replaced by William Roof. In March 1987, Roof determined a need to decentralize the human resources department. He planned for each of the Whitehall divisions to have its own human resources representative. Roof hired defendant Michael Malady to head the Whitehall Machined Products Division and to serve as plaintiffs supervisor. Plaintiff was reassigned to serve as human resources representative for defendant’s Ti-Ingot Division. A personality conflict between Malady and plaintiff soon developed. In June 1987, Malady requested all female employees under his supervision to wear dresses to a company picnic. Plaintiff wore slacks. Shortly thereafter, in September 1987, Malady submitted an unfavorable evaluation of plaintiffs job performance. In January 1989, on Malady’s recommendation and with Roof’s approval, plaintiff’s job title was changed from human resources representative to human resources specialist. Plaintiff’s duties, as well as her salary, remained the same. Malady suggests that the change was necessary to reduce the number of direct reports he had to address, in addition to “centraliz[ing] the total employment function under one person instead of having it split with two different people doing part of it.” He also asserts that he had “some performance concerns . . . with [plaintiff’s] supervisory abilities],” as reflected in his latest performance evaluation. Plaintiff held her new position from January 1989, until her discharge on November 1, 1991. Plaintiff contends defendant’s policy manual created an expectation that her employment would not be terminated unless there was sufficient cause to do so. Also, she claims that she relied on verbal assurances by Ozar that her employment with defendant was secure. Defendant argues that plaintiff was terminated pursuant to a company-wide reduction in work force. Defendant asserts that as a result of declines in military spending and a downturn in the commercial airline industry between 1988 and 1991, it was forced to institute a series of reductions in its work force. Defendant suggests that it initially sought to cut costs in the 1992 budget without terminating any employees. In an August 21, 1991, intracompany memorandum to all the personnel support departments, Dr. Thomas Wright, vice president in charge of the Whitehall operations, directed all department supervisors to cut their respective 1992 budgets by fifteen percent. At the same time reductions were being sought, defendant was embarking on a plan that would use work cells as the primary facility structure, where employees would be working in teams instead of in the traditional hierarchical order. Notwithstanding the fact that he had to eliminate fifteen percent of his projected 1992 budget, Roof was told by the Operhall management to somehow compile a list of employees from the human resources department to head an independent department. From that list someone was to be selected to oversee the development of the work-cell plan. After reviewing the qualifications of those listed, Operhall management identified Malady and Boczkaja as the two most promising candidates. Malady was not available and Boczkaja, who was interviewed by Operhall management, later decided to stay on in his current position. Then Roof went to the private sector and found Andrea Achterhoff. She was thirty-one years old and had previous experience as a production supervisor, personnel manager, and human resources manager. Plaintiff never was interviewed for the position. By November 1, 1991, in an effort to comply with Wright’s mandate, Roof had eliminated approximately $300,000. Roof needed to cut $439,950 in costs in order to meet Wright’s directive of a fifteen-percent reduction in expenditures for the human resources department’s 1992 operating budget. Roof eliminated four positions in the human resources department, which included two plant medical staff, the employee assistance program assistant, and plaintiff’s position as human resources specialist. Roof contended that in terminating these four individuals, he focused on “functions” rather than “individuals or relative qualifications.” He suggested that the decision was based on who was absolutely critical and what they could get by without. Roof claimed that he terminated plaintiff because the primary function of her position involved hourly employees, where a substantial portion of the reduction in work force had already occurred, and the fact that little, if any, hiring was forecasted in the near future. The same day plaintiff was discharged, defendant hired Jeff Billingsley to work in the training program for the work-cell project. As far as plaintiff understood, Billingsley “worked for the corporate office” and was merely assigned to take an office where plaintiff previously worked so that he would have a place to work. Moreover, plaintiff admitted that she had no idea how Whitehall’s operation budget and personnel were allocated among all the Pechiney subsidiaries. On November 22, 1991, Boczkaja completed a final performance evaluation on plaintiff, which Malady accepted, indicating that she would be rehired in the event a nonsupervisory, administrative position became available. When plaintiff was finally discharged, her duties were assigned to other persons within the human resources department. On January 7, 1992, plaintiff filed a complaint in the Muskegon Circuit Court against defendant How-met, alleging: (I) breach of a contract providing for termination for just cause only, (II) age discrimination, and (III) sex discrimination. Following some discovery, defendants Howmet and Malady moved separately for summary disposition pursuant to MCR 2.116(C)(10), which the circuit court granted on all counts. The Court of Appeals reversed, and this Court granted defendant’s application for leave to appeal. A motion for summary disposition under MCR 2.116(C)(10) tests whether there is factual support for a claim or defense. Adkins v Thomas Solvent Co, 440 Mich 293, 302; 487 NW2d 715 (1992); General Motors Corp v Detroit, 372 Mich 234, 239-240; 126 NW2d 108 (1964). The affidavits, pleadings, depositions, admissions, and other material supporting and opposing the motion must be considered, so that it may be decided whether “ ‘it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome.’ ” Stevens v McLouth Steel Products Corp, 433 Mich 365, 370; 446 NW2d 95 (1989), quot

Employment relations—Age discrimination by employer—At-will employee discharged allegedly on the basis of her age is entitled to maintain common-law tort action against employer for wrongful discharge in violation of public policy.