Discrimination Cases

Ruth V. Kolodziej vs. Warren Smith & another. Hampden. May 5, 1997. - July 21, 1997. Present (Sitting at Springfield): Wilkins, CJ., Abrams, Lynch, O’Connor, Greaney, Fried, & Marshall, JJ. Civil Rights, Availability of remedy, Termination of employment. Constitutional Law, Freedom of religion. Employment, Termination, Discrimination. In an action alleging religious discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (1988), judgment was correctly entered for the defendants, where the jury found that the employment policy in question did not conflict with the plaintiff’s bona fide personal religious beliefs and that the defendants did not discharge or otherwise discriminate against the plaintiff because she refused to comply with a requirement that was contrary to her bona fide personal religious beliefs. [521-522] Civil action commenced in the Superior Court Department on August 17, 1988. After review by this court, 412 Mass. 215 (1992), the case was tried before James P. Dohoney, J. The Supreme Judicial Court granted an application for direct appellate review. Wendy Sibbison for the plaintiff. Douglas R. Dagarin (Robert G. Caprera with him) for the defendants. The following submitted briefs for amici curiae: Steven W. Kasten, Down F. Ezickson, Sally J. Greenberg, Ruth L. Lanser, Steven Freeman & Harlan A. Loeb, of New York, for the Anti-Defamation League. Robert J. Barth, of Illinois, & Robert G. Caprera, for the Institute in Basic Life Principles, Inc. Electro-Term, Inc. O’Connor, J. This case is before us for the second time. The plaintiff brought an action against the defendants, Electro-Term, Inc., and its president, Warren Smith, after she was punished for refusing to attend a company-mandated seminar. The defendants were granted directed verdicts and Kolodziej appealed. This court affirmed the judgment for the defendants, Kolodziej v. Smith, 412 Mass. 215 (1992) (Kolodziej I), but, in light of a then recent decision by the United States Supreme Court, Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820, 825 (1990), holding that State courts may adjudicate claims brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (1988) (Title VII), we remanded the case to give Kolodziej an opportunity to amend her complaint to include that Federal claim. Kolodziej I, supra at 222-223. Kolodziej’s amended complaint, which was based on the same underlying facts as her initial complaint, alleged religious discrimination in violation of Title VII. The case was tried to a jury in the Superior Court. Ten written questions, agreed on by the parties, were submitted to the jury. The first four questions and the jury’s answers were as follows: “1. Did the Defendants require Plaintiff to attend a ‘devotional service’? A. Yes X No_. “2. Did the attendance at the seminar conflict with the Plaintiff’s bona fide personal religious beliefs? A. Yes_ NoX. “If the answers to both question no. 1 and question no. 2 are ‘NO’, please date and sign the form. If the answer to either question no. 1 or question no. 2 is ‘YES’, please continue. “3. Did the Plaintiff give notice to the Defendants that attendance at the seminar conflicted with her bona fide personal religious beliefs? “If the answer is ‘NO’, please date and sign this form. If the answer is ‘YES’, please continue. A. Yes X No_. “4. Did the Defendants discharge or otherwise discriminate against the Plaintiff because she refused to comply with a requirement that was contrary to her bona fide personal religious beliefs? A. Yes_No X. “If the answer is ‘NO’, please date and sign this form. If the answer is ‘YES’, please continue.” In light of the jury’s answer to question 4, the jury did not answer questions 5 through 10. Judgment for the defendants was entered in the Superior Court. Kolodziej appealed and we granted her application for direct appellate review. We now affirm that judgment. In Kolodziej I, supra at 217, we stated: “The jury would have been warranted in finding the following facts. Electro-Term, Inc., manufactures and sells electrical connectors. Begun in 1976 by the defendant Smith, the company considers itself a ‘Christian company.’ It espouses Christian principles and offers a weekly Bible reading session to employees at which attendance is voluntary. In 1988, when the plaintiff’s legal action was commenced, Electro-Term, Inc., employed approximately forty-one people. The plaintiff, a Roman Catholic, was initially hired as a temporary employee by the company in August, 1987. In October, 1987, she was hired permanently and promoted to the position of controller, a management position. At all times she was an employee at will. “Smith considered it very beneficial for the company’s employees annually to attend a week-long seminar put on by the Institute in Basic Life Principles entitled ‘Institute in Basic Youth Conflicts.’ Attendance was mandatory for management level employees. The seminar offered instruction in several areas including the resolution of conflicts in interpersonal relationships, dealing with anger, and responding to authority. The seminar was nondenominational, but it used references to Scriptural texts to reinforce and illustrate its teachings.” At retrial, the jury would have been warranted in finding the same facts. In addition, at the retrial, the plaintiff, by her own testimony, presented the following evidence: Q.: “Mrs. Kolodziej, when you went to the seminar on July 13 and 14, how did the seminar open?” A.: “Started with a prayer.” Q.\ “How did it close?” A.: “Ended with a prayer.” Q.: “Were there any hymns sung during the course of the seminar?” A.: “Yes, there were.” Q.: “Do you remember any of them?” A.: “No, they’re not familiar to me.” Q.: “Were they familiar at the time?” A.: “Nothing I ever heard before.” As the trial judge observed in his memorandum of decision regarding the plaintiff’s motion to amend the judgment or in the alternative grant a new trial, the evidence was “very scanty” on the issue whether the seminar constituted a devotional service and was “basically limited to statements that there was an opening prayer and possibly a closing prayer and hymns. There [was] no evidence as to the extent, duration, or content of the prayer.” The judge concluded that Kolodziej had “failed... to show that any change in the evidence from the first trial [was] sufficient to make this seminar a devotional service.” The plaintiff testified at the second trial that certain aspects of the seminar’s second day of teaching offended her. Specifically, she objected to a portion of the seminar that day which employed an illustrated diagram portraying God’s “plan” for the family. In the diagram, God was depicted at the top with man below God and woman below man. Scriptural texts were referenced in support of this “plan.” The following day, Kolodziej informed Smith that she did not wish to continue to attend the seminar. Kolodziej testified, as did the defendant Smith, that at first Kolodziej told Smith that she could not understand how the seminar related to her work, and that she was needed at home to take care of her granddaughter and her ailing mother. Kolodziej also testified to having told Smith that the seminar’s contents were contrary to her religious belief. Smith informed Kolodziej that if she did not attend the seminar she could not be a manager in his company but could retain employment in a nonmanagerial position. Kolodziej refused further to attend the seminar, was immediately relieved of her management responsibilities and consequently walked off the job. Since the appeal before us concerns only a claim of religious discrimination under Title VII, our analysis is governed by Federal law. Title VII forbids an employer “to . . . discharge an individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . religion.” 42 U.S.C. § 2000e-2(a)(l). In order to establish a prima facie case of workplace religious discrimination under Title VII, a plaintiff must prove that (1) a bona fide religious belief of the employee conflicted with an employment policy; (2) the employee informed the employer of the conflict; and (3) the employee was penalized in some way because of the conflict. Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 65-66 (1986). The judge instructed the jury as follows: “Now, religious beliefs include moral or ethical beliefs as to what is right or wrong which are sincerely held with the strength of religious views.” The instruction comports with relevant law. See Welsh v. United States, 398 U.S. 333 (1970); United States v. Seeger, 380 U.S. 163 (1965). In response to the second and fourth written questions put to them, the jury found that attendance at the seminar did not conflict with the plaintiff’s bona fide personal religious beliefs and that the defendants did not discharge or otherwise discriminate against the plaintiff because she refused to comply with a requirement that was contrary to her bona fide personal religious beliefs. Thus, regardless of whether the jury were warranted in finding that the defendants required Kolodziej to attend a “devotional service,” a matter we need not decide, Kolodziej has failed to prove her case. See Ansonia Bd. of Educ. v. Philbrook, supra at 65-66. Judgment affirmed.

WILLIAM PAUL FEARRINGTON, Petitioner-Appellant v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Respondent-Appellee No. COA96-1296 (Filed 15 July 1997) 1. Appeal and Error § 203 (NCI4th)— notice of appeal — prior order — absence of jurisdiction — treatment as petition for certiorari Where the notice of appeal specified that the appeal is from an order of the Orange County Superior Court, the Court of Appeals was without jurisdiction to review a prior order entered in Wake County Superior Court. However, the purported appeal from the Wake County order will be treated as a petition for a writ of certiorari so that the merits of petitioner’s assignment of error to this order may be considered. Am Jur 2d, Appellate Review §§ 285 et seq. Right to perfect appeal, against party who has not appealed, by cross appeál filed after time for direct appeal had passed. 32 ALR3d 1290. 2. Administrative Law and Procedure § 37 (NCI4th)— attorney fees — validity of administrative rule — authority of ALJ An administrative law judge had no authority to make a “final decision” as to the validity of an administrative rule governing the award of attorney fees in cases before the State Personnel Commission. N.C.G.S. § 150B-33(b)(9).' Am Jur 2d, Administrative Law § 309. 3. Public Officers and Employees § 41 (NCI4th)— State Personnel Commission — attorney fees — promulgation of rules — statutory authority The State Personnel Commission’s promulgation of 25 N.C.A.C. I B .0414, which provides the circumstances under which the Commission may award attorney fees, is consistent with the Commission’s jurisdiction over state employee grievances and the statutory authority delegated to it pursuant to N.C.G.S. § 126-4(11). Am Jur 2d, Civil Service §§ 8 et seq. 4. Public Officers and Employees § 63 (NCI4th)— State Personnel Commission — denial of attorney fees The State Personnel Commission did not violate N.C.G.S. § 126-4(11) by applying its rale governing attorney fees to deny attorney fees to a petitioner who was reclassified and received back pay at UNC where the Commission neither found discrimination, ordered reinstatement, nor ordered back pay; UNC found that petitioner’s under-classification was not due to racial discrimination but resulted from administrative error; and petitioner dismissed his discrimination claim. Am Jur 2d, Civil Service §§ 8 et seq. Rights of state and municipal public employees in grievance proceedings. 46 ALR4th 912. 5. Administrative Law and Procedure § 65 (NCI4th)— State Personnel Commission — legal issues — de novo review The trial court properly reviewed petitioner’s appeal of a State Personnel Commission decision under the de novo standard of review where the issues presented on appeal were legal issues. Am Jur 2d, Administrative Law §§ 559, 582. 6. Administrative Law and Procedure § 76 (NCI4th)— administrative decision — time limitations — statutory amendment inapplicable The State Personnel Commission’s decision was not arbitrary or capricious because it was not filed within time limitations specified in the 1991 amendment to N.C.G.S. § 150B-44 where petitioner filed his case before the effective date of the amendment and the amendment did not apply to his case. Am Jur 2d, Administrative Law § 569. On writ of certiorari to review order entered 2 September 1993 by Judge Wiley F. Bowen in Wake County Superior Court, and appeal by petitioner from order entered 8 August 1996 by Judge F. Gordon Battle in. Orange County Superior Court. Heard in the Court of Appeals 22 May 1997. McSurely, Dorosin & Osment, by Alan McSurely, Mark Dorosin, and Ashley Osment, for petitioner-appellant. Attorney General Michael F. Easley, by Special Deputy Attorney General Thomas J. Ziko and Assistant Attorney General R. Bruce Thompson, II, for respondent-appellee. MARTIN, John C., Judge. Petitioner William Paul Fearrington, an employee of respondent University of North Carolina at Chapel Hill, filed a grievance through the University’s internal' grievance procedure alleging that he had been denied a reclassification because of his race. In the course of the grievance proceedings, the University discovered evidence that petitioner’s position had been under-classified and it retroactively reclassified and promoted him, resulting in retroactive pay of $9,804.91. Petitioner, however, continued to pursue his grievance and, after a report and recommendation by the University Staff Employee Grievance Committee, the Chancellor concluded that petitioner’s under-classification had not been the result of racial discrimination and denied the grievance. Petitioner filed a contested case with the Office of Administrative Hearings (OAH) in which he claimed he was “denied reclassification and other privileges because of his race” and, in addition, asserted a claim for attorneys’ fees pursuant to N.C. Gen. Stat. § 126-4(11), based on respondent University’s decision to retroactively reclassify him. Petitioner subsequently dismissed all of his claims against the University except for his claim for attorneys’ fees. By order entered 3 April 1992, an Administrative Law Judge (AU) determined that the administrative rule governing the award of attorneys’ fees in cases before the State Personnel Commission (Commission), 26 N.C.A.C. IB .0414, was void as applied in this case because it was “not within the statutory authority of the Commission to adopt.” On 28 August 1992, the AU entered an “Amendment To Order And Determination That Rule Is Void” to clarify that his 3 April 1992 order was a “final decision” appealable to the superior court. The AU then issued a “Recommended Decision” in which he recommended that the Commission award petitioner reasonable attorneys’ fees pursuant to N.C. Gen. Stat. § 126-4(11). Respondent University filed a petition for judicial review in Wake County Superior Court of the AU’s “final decision.” Upon review, Judge Bowen ruled that the AU did not have authority to enter a final decision determining that 25 N.C.A.C. IB .0414 is void and remanded the case to OAH “for the entry of a recommended decision to the State Personnel Commission pursuant to N.C. Gen. Stat. § 150B-34(a).” Petitioner filed notice of appeal from the trial court’s order, and in an unpublished opinion, No. 9310SC1281, this Court dismissed petitioner’s appeal as interlocutory. On 19 October 1994, the ALJ • entered an “Amendment to Recommended Decision” which recommended “that 25 N.C.A.C. IB .0414 as applied in this particular case is void because it is not within the statutory authority of the State Personnel Commission to adopt,” and that the petitioner be awarded reasonable attorneys’ fees pursuant to N.C. Gen. Stat. § 126-4(11). The Commission rejected the ALJ’s findings of fact and conclusions of law, holding that 25 N.C.A.C. IB .0414 is not void and that, pursuant to this rule, petitioner is not entitled to any attorneys’ fees. Petitioner filed a petition for review in Orange County Superior Court. In an order dated 8 August 1996, the trial court determined that the Commission did not hear new evidence; that the Commission stated specific reasons for not adopting the recommended decision; that 25 N.C.A.C. IB .0414 was not void as applied to this case; and that the Commission acted within its statutory authority when it denied petitioner’s request for attorneys’ fees. Petitioner appeals. I. WAKE COUNTY ORDER The notice of appeal specifies that the appeal is from the order of the Superior Court of Orange County entered 8 August 1996. However, by his first assignment of error, petitioner attempts to present for our review the propriety of the order of 2 September 1993 issued by the Superior Court of Wake County, from which an earlier appeal was dismissed by this Court as interlocutory. Fearrington v. University of North Carolina at Chapel Hill, No. 9310SC1281 (unpublished opinion filed 6 September 1994). N.C.R. App. P. 3(d) (1995) requires that the notice of appeal “designate the judgment or order from which appeal is taken . . . .” Because the notice of appeal completely omits any reference to the Wake County order, we are without jurisdiction to review it. Guilford Co. Dept. of Emergency Services v. Seaboard Chemical Corp., 114 N.C. App. 1, 441 S.E.2d 177, disc. review denied, 336 N.C. 604, 447 S.E.2d 390 (1994). The jurisdictional requirements of N.C.R. App. P. 3(d) may not be waived by this Court, even under the discretion granted by N.C.R. App. P. 2. Von Ramm v. Von Ramm, 99 N.C. App. 153, 392 S.E.2d 422 (1990). However, N.C.R. App. P. 21(a)(1) gives this Court the authority to treat the purported appeal as a petition for writ of certiorari to review the Wake County order, and we elect to do so and consider the merits of petitioner’s assignment of error. Anderson v. Hollifield, 345 N.C. 480, 480 S.E.2d 661 (1997). Petitioner contends that the Superior Court of Wake County erred when it determined that the AU had no authority to enter a final decision declaring 25 N.C.A.C. IB .0414 to be void. N.C. Gen. Stat. § 150B-33(b)(9), entitled “Powers of administrative law judge,” provides that an ALJ may determine that a rule as applied in a particular case is void, however, it does not authorize an ALJ to make a “final decision” with respect to the validity of agency rules. See N.C. Gen. Stat. § 150B-33(b)(9) (1995). Generally, an AU makes a recommended decision or order in a contested case except as provided in N.C. Gen. Stat. § 150B-36(c). N.C. Gen. Stat. § 150B-34(a) (1995). N.C. Gen. Stat. § 150B-36(c) provides: The following decisions made by administrative law judges in contested cases are final decisions: (1) A determination that the Office of Administrative Hearings lacks jurisdiction. (2) An order entered pursuant to the authority in G.S. 7A-759 (e). (3) An order entered pursuant to a written prehearing motion that either dismisses the contested case for failure of the petitioner to prosecute or grants the relief requested when a party does not comply with procedural requirements. (4) An order entered pursuant to a prehearing motion to dismiss the contested case in accordance with G.S. 1A-1, Rule 12(b) when the order disposes of all issues in the contested case. In the present case, the ALJ attempted to make a “final decision” regarding the validity of the rule governing the award of attorneys’ fees, which is not one of the issues upon which an AU can make a final decision pursuant to N.C. Gen. Stat. § 150B-36(c). Therefore, the AU had no authority to make a “final decision” in this case. The order of the Superior Court of Wake County so holding, and remanding this case to the OAH for entry of a recommended decision to the State Personnel Commission in accordance with N.C. Gen. Stat. § 150B-34(a) is affirmed. II. ORANGE COUNTY ORDER The issues presented by petitioner’s appeal from the order of the Orange County Superior Court upon judicial review of the final decision of the State Personnel Commission are (1) whether 25 N.C.A.C. IB .0414, the Commission’s rule regarding the award of attorneys’ fees, is void as applied in this case; (2) whether the Commission acted within its statutory authority when it adopted 25 N.C.A.C. IB .0414; and (3) whether the superior court’s ruling affirming the decision of the Commission is correct. The standard of appellate review of a superior court’s order regarding a decision of an administrative agency requires the appellate court to examine the superior court’s order for error of law, i.e., to determine whether the superior court employed the correct standard of review, and, if so, whether it did so correctly. ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 483 S.E.2d 388 (1997). The standard for the superior court’s review of the agency decision depends on the issues presented in the petition for review. Id. If [petitioner] argues the agency’s decision was based on an error of law, then “de novo” review is required. If, however, [petitioner] questions (1) whether the agency’s decision was supported by the evidence or (2) whether the decision was arbitrary or capricious, then the reviewing court must apply the “whole record” test. In re Appeal by McCrary, 112 N.C. App. 161, 165, 435 S.E.2d 359, 363 (1993) (citations omitted). “De novo" review requires a court to consider a question anew, as if not considered or decided by the agency, while the “whole record” test requires the reviewing court to examine all competent evidence, i.e., the “whole record,” in order to determine whether the agency decision is supported by substantial evidence. Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994). A. In his petition for judicial review of the final decision of the State Personnel Commission, petitioner contended that 25 N.C.A.C. IB .0414 is void, both generally and as applied to this case. These contentions required the superior court to employ “de novo” review. The superior court did so, ruling as a matter of law that the rule is not invalid. Petitioner assigns error, contending the superior court should have found the rule, 25 N.C.A.C. IB .0414, to be void. The State Personnel Commission is granted the authority to promulgate regulations regarding the award of attorneys’ fees under N.C. Gen. Stat. § 126-4(11), which provides: Subject to the approval of the Governor, the State Personnel Commission shall establish policies and rules governing each of the following: (11) In cases where the Commission finds discrimination or orders reinstatement or back pay whether (i) heard by the Commission or (ii) appealed for limited review after settlement or (iii) resolved at the agency level, the assessment of reasonable attorneys’ fees and witnesses’ fees against the State agency involved. Pursuant to N.C. Gen. Stat. § 126-4(11), the Commission promulgated 25 N.C.A.C. IB .0414 et seq., which provides that the Commission may award attorneys’ fees when: (1) the grievant is reinstated to the same or similar position from either a demotion or dismissal; (2) the grievant is awarded back pay from either a demotion or a dismissal, without regard to whether the grievant has been reinstated; (3) the grievant is determined, by the commission or by the agency’s internal grievance procedure, to have been discriminated against in violation of G.S. § 126-16; (4) the grievant is awarded back pay as the result of a successful grievance alleging a violation of G.S. § 126-7.1; (5) any combination of the above situations. N.C. Admin. Code tit. 25, r. 1B .0414. Petitioner argues that 25 N.C.A.C.1B .0414 is void on its face because it is inconsistent with N.C. Gen. Stat. § 126-4(11). The Commission concluded that it had been given statutory authority to adopt rules with respect to the award of attorneys’ fees, but that there was no statutory mandate requiring that it award such fees in all cases. Rather, the Commission concluded that a determination as to those circumstances appropriate for an award of attorneys’ fees was vested in the Commission. Pursuant to the authority granted it by N.C. Gen. Stat. § 126-4(11), the Commission established rules governing the assessment of attorneys’ fees in state employee grievance proceedings. The Commission’s determinations regarding its authority under N.C. Gen. Stat. § 126-4(11) are entitled to considerable weight. See Newsome v. State Board of Elections, 105 N.C. App. 499, 415 S.E.2d 201 (1992). The Commission has discretionary authority to enter an award of attorneys’ fees under N.C. Gen. Stat. § 126-4(11). See North Carolina Dept. of Correction v. Myers, 120 N.C. App. 437, 462 S.E.2d 824 (1995), affirmed, 344 N.C. 626, 476 S.E.2d 364 (1996). The Commission’s jurisdiction over the appeals of state employee grievances derives from Chapter 126, the State Personnel Act. Batten v. N.C. Department of Correction, 326 N.C. 338, 389 S.E.2d 35 (1990). The Commission has jurisdiction to review appeals involving government employees subject to the Personnel Act where an employee was: (1) discharged, suspended or demoted for disciplinary reasons without just cause, N.C. Gen. Stat. § 126-35 (1995); (2) denied employment, promotion, or training because of illegal discrimination or in retaliation for opposition to alleged illegal discrimination, N.C. Gen. Stat. §§ 126-36, 126-36.1 (1995); (3) demoted, laid off or terminated because of illegal discrimination or in retaliation for opposition to alleged illegal discrimination, N.C. Gen. Stat. § 126-36 (1995); (4) denied promotion because the agency failed to post notice of the job vacancy or denied state employee priority consideration in violation of N.C. Gen. Stat. §§ 126-7.1, 126-36.2 (1995); and (5) any other contested case arising under Chapter 126, N.C. Gen. Stat. § 126-37 (1995). The Commission’s promulgation of 25 N.C.A.C. 1B .0414 is consistent with the Commission’s jurisdiction over state employee grievances and the statutory authority delegated to it by the General Assembly. Petitioner also argues that 25 N.C.A.C. IB .0414 is void as applied in this case because it is inconsistent with the Commission’s authority, granted by N.C. Gen. Stat. § 126-4(11), to assess attorneys’ fees when back pay is awarded. However, in petitioner’s case, the Commission neither found discrimination, ordered reinstatement, nor ordered back pay, which are prerequisites for the assessment of reasonable attorneys’ fees pursuant to N.C. Gen. Stat. § 126-4(11). Rather, the University retroactively reclassified petitioner, who had been under-classified due to administrative error. The University found that petitioner’s under-classification had not been due to racial discrimination “or any other impermissible factor” and denied his grievance, and petitioner subsequently dismissed his claim that he had been discriminated against. Because petitioner’s case does not meet the criteria established by N.C. Gen. Stat. § 126-4(11) for the Commission to award attorneys’ fees, it properly determined that' petitioner is not entitled to attorneys’ fees in connection with the resolution of his grievance. B. Petitioner also alleged, in his petition for judicial review, that “the Commission’s findings, conclusions of law, and decision were arbitrary and capricious.” Such an allegation would ostensibly require that the trial court employ “whole record” review of the agency decision. However, careful review of the Petition for Review and the contentions contained therein discloses that the substantive issues presented to the superior court were legal issues, i.e., (1) whether the administrative rule is invalid, either as in excess of the Commission’s authority, or as applied to petitioner’s case, and (2) whether the Commission incorrectly interpreted N.C. Gen. Stat. § 126-4(11) in determining that petitioner is not entitled to an award of attorneys’ fees. Thus, petitioner’s argument, essentially, was that the conclusion of the Commission that “petitioner is not entitled to any attorney fees” was affected by error of law, and was properly reviewed “de novo" by the trial court. We conclude the trial court applied the correct standard of review and, in view of our holding in Part II. A. above, that the trial court did so correctly. Finally, petitioner argued in his brief that the Commission’s decision was arbitrary and capricious because it was not filed within the time limitations specified in the 1991 amendment to N.C. Gen. Stat. § 150B-44, requiring that agency decisions be rendered within specified time limitations. However, at oral argument, petitioner conceded that the 1991 amendment is applicable only to contested cases filed on or after 1 October 1991, and that petitioner filed his case before the effective date of the amendment. For the reasons stated, the 2 September 1993 order of the Superior Court of Wake County remanding this matter to the State Personnel Commission, and the 8 August 1996 order of the Superior Court of Orange County affirming the final decisi

HERWEYER v CLARK HIGHWAY SERVICES, INC Docket No. 103802. Argued April 8, 1997 (Calendar No. 3). Decided July 8, 1997. Jack Herweyer brought an action for wrongful termination in the Missaukee Circuit Court against Clark Highway Services, Inc., alleging breach of an employment contract, age and handicap discrimination, and retaliatory discharge for filing a worker’s compensation claim. The court, Charles D. Corwin, J., granted summary disposition for the defendant, citing the contract’s saving clause to provide a period of limitation to bring an action shorter than the applicable statutory period. The Court of Appeals, Sawyer, P.J., and Griffin, J. (Neff, J., dissenting), affirmed (Docket No. 171720). The plaintiff appeals. In a unanimous opinion by Justice Kelly, the Supreme Court held: When the period of limitation in an employment contract is unreasonably short, the applicable period is that established by statute. 1. A statutory period of limitation provides a defense that bars a plaintiffs cause of action because of an undue lapse of time since the cause of action arose. Parties may contract for a period of limitation shorter than the applicable statute of limitations, but that period must be reasonable. A limitation period is reasonable if the claimant has sufficient opportunity to investigate and file an action, the time is not so short as to work a practical abrogation of the right of action, and the action is not barred before the loss or damage can be ascertained. 2. Employer and employee often do not deal at arm’s length when negotiating contract terms. Where one party has less bargaining power than another, the contract might be, but is not necessarily, one of adhesion, and at the least deserves close judicial scrutiny. In this case, the plaintiff had little or no negotiating leverage. The saving clause is vague and ambiguous, and must be construed against the defendant. It does not call for an alternate limitation period. Instead, it uses the terminology “as far as legally possible.” A legal period has already been determined by the Legislature. The defendant has not stated a convincing argument why the objective indicator should be abandoned and nonspecific contractual periods of limitation authorized. By enacting a statute of limitation, the Legislature determines the reasonable maximum period a plaintiff can take to file a claim. Courts should defer to the statutory period unless the period in the parties’ contract is specific and reasonable. A contractual saving clause providing for enforcement “as far as legally possible” cannot be construed to allow imposition of uncertain, varying periods of limitation case by case. Reversed and remanded. 212 Mich App 105; 537 NW2d 225 (1995) reversed. Bott & Spencer, P.C. (by Timothy J. Botf), for the plaintiff-appellant. Warner, Norcross & Judd (by Douglas E. Wagner, Robert J. Chovanec, and Melvin G. Moseley, Jr.), for the defendant-appellee. Amici Curiae: David A. Kotzian, Kenneth Watkins, and Jan C. Leventer for Wolverine Bar Association. Stark & Gordon (by Sheldon J. Stark and Carol A. Laughbaum) for Michigan Trial Lawyers Association, American Civil Liberties Union of Michigan, Michigan State AFL-CIO, and International Union UAW. Amberg, McNenly, Zuschlag, Firestone & Lee, P.C. (by Joseph H. Firestone), for Michigan Education Association. Kelly, J. In this wrongful termination case, the single issue is what limitation period for filing suit is appropriate where the period written into the employment contract is unreasonably short. Defendant, Clark Highway Services, Inc., asks that we interpret a saving clause in the contract to allow the courts to establish the period. The interpretation would require legal action be brought by a date earlier than that set by the applicable statute of limitations as long as it is reasonable. We hold that, when the period of limitation in an employment contract is unreasonably short, the applicable period is that established by statute. i The pertinent facts of this case are not in dispute. Plaintiff, Jack Herweyer, was hired by defendant in June, 1987, to operate a truck that paints the center and edge lines on state highways. Because the work is seasonal, plaintiff’s employment ran from May to November. In May, 1989, defendant asked plaintiff to sign an employment contract. The agreement stated in pertinent part: I will not commence any action or suit relating to my employment with the Company (or termination of the employment) more than six (6) months after the termination of my employment, and I agree to waive any statute of limitations to the contrary. I understand that this means that even if the law would give me the right to wait a longer time to make a claim, I am waiving that right, and that any claims not brought within six (6) months after my employment will be barred. I agree to the above terms of employment. I agree that if any of the above commitments by me is ever found to be legally unenforceable as written, the particular agreement concerned shall be limited to allow its enforcement as far as legally possible. Plaintiff signed the agreement. On November 7, 1989, he was injured while in the course of his employment. Nevertheless, he continued working until November 13, 1989, the last day of the season. After treating plaintiff for his injury, plaintiff’s doctor placed a fifty-pound lifting restriction on his work. In January, 1990, he increased the restriction to seventy pounds. Nonetheless, defendant did not ask plaintiff to work again the following season. In May, 1990, when plaintiff contacted defendant, he learned that he had no job. In December, 1992, plaintiff filed suit alleging breach of the written employment contract, age discrimination, handicap discrimination and retaliatory discharge for filing of a worker’s compensation claim. Defendant moved for summary disposition under MCR 2.116(C)(10), arguing that the action was barred by the six-month period of limitation contained in the employment contract. Plaintiff responded that the six-month period was unenforceable as unreasonably short, given the applicable statute of limitation governing the claims. The trial court granted defendant’s motion for summary disposition. It expressed reservations about enforcing the six-month period of limitation. Nevertheless, it concluded that, even if the six-month period were unreasonable, plaintiff was not entitled to file suit as late as thirty-one months after the alleged breach. The court found that the contract’s saving clause should be interpreted to mean that suit must be filed within a minimally reasonable time. A reasonable time in this case was a period shorter than the thirty-one months that plaintiff waited to file. Without determining what period would have been minimally reasonable, the trial court concluded that the action was time-barred. The Court of Appeals affirmed. 212 Mich App 105, 108; 537 NW2d 225 (1995). It stated: The savings clause in the contract can be read as providing that the period of limitation shall be the minimum reasonable time in excess of six months. Furthermore, like the trial court, we agree that thirty-one months is in excess of the minimum reasonable time. While we do not draw a bright line with respect to what the minimum reasonable time is, we are not persuaded that plaintiff required thirty-one months in which to investigate and file the action, nor would a period of less than thirty-one months operate as a practical abrogation of the right to sue and certainly did not bar the bringing of the action before the loss or damage could be ascertained. See Camelot [Excavating Co, Inc v St Paul Fire & Marine Ins Co, 410 Mich 118, 127; 301 NW2d 275 (1981)]. Therefore, whatever the minimum reasonable time is, it is less than thirty-one months. Accordingly, the action was barred by the provisions of the contract at the time plaintiff brought the action. Thus, the trial court properly granted summary disposition in favor of defendant. The Court also rejected plaintiff’s argument that allowing employers to shorten the statutory period of limitation for employment actions is contrary to public policy. Although the argument may have merit, we do not address it because of the constraints in our order granting leave to appeal. Also, we express no opinion regarding the reasonableness of any shortened period agreed to by the parties. We granted plaintiff’s application in order to determine whether the contract’s saving provision can be read to require any claims to be brought within the minimum reasonable period. n A statutory period of limitation provides a defense that bars a plaintiff’s cause of action because of an undue lapse of time since the cause of action arose. 51 Am Jur 2d, Limitation of Actions, § 2, p 592. There are several policy reasons underlying the adoption of statutes of limitation. They protect defendants’ rights by eliminating stale claims, shielding defendants from protracted fear of litigation, and ensuring that they have a fair chance of defending themselves. Chase v Sabin, 445 Mich 190, 199; 516 NW2d 60 (1994); Bigelow v Walraven, 392 Mich 566, 576; 221 NW2d 328 (1974). Statutes of limitation are also constructed to give plaintiffs a reasonable opportunity to bring suit. Chase, supra. This Court has discussed the use of contracts to shorten the period of limitation. Camelot, supra. In Camelot, a general plumbing contractor, Priestley, contracted with an insurance company, St. Paul, for a labor and materials payment bond. Id. at 125. Priestly entered into a subcontract with Camelot Excavating Company for excavation work. Camelot completed its work under the contract. In April, 1974, Priestly abandoned the project without paying monies it owed to Camelot. Id. In August, 1976, Camelot sued St. Paul on the bond. St. Paul asserted in defense that the suit was barred by a one-year limitation clause contained in the bond. Id. at 126. We held that parties may contract for a period of limitation shorter than the applicable statute of limitation. Id. at 125. The limitation period must be reasonable. Id. at 126. It is reasonable if (1) the claimant has sufficient opportunity to investigate and file an action, (2) the time is not so short as to work a practical abrogation of the right of action, and (3) the action is not barred before the loss or damage can be ascertained. Id. at 127. Courts have held that limitation periods written into certain insurance, shipping, and bond contracts were valid although they shortened legislatively prescribed limitation periods. See, generally, anno: Validity of contractual time period, shorter than statute of limitations, for bringing action, 6 ALR3d 1197. In Camelot, Justice Levin expressed concerns about the development of a rule authorizing contractually shortened periods of limitation. Camelot, supra at 141 (Levin, J., concurring). He reasoned: The rationale of the rule allowing parties to contractually shorten statutory periods of limitation is that the shortened period is a bargained-for term of the contract. Allowing such bargained-for terms may in some cases be a useful and proper means of allowing parties to structure their business dealings. In the case of an adhesion contract, however, where the party ostensibly agreeing to the shortened period has no real alternative, this rationale is inapplicable. We share Justice Levin’s concerns. Employment contracts differ from bond contracts. An employer and employee often do not deal at arm’s length when negotiating contract terms. An employee in the position of plaintiff has only two options: (1) sign the employment contract as drafted by the employer or (2) lose the job. Therefore, unlike in Camelot where two businesses negotiated the contract’s terms essentially on equal footing, here plaintiff had little or no negotiating leverage. Where one party has less bargaining power than another, the contract agreed upon might be, but is not necessarily, one of adhesion, and at the least deserves close judicial scrutiny. In this case, neither the trial court nor the Court of Appeals upheld the six-month period of limitation in the contract. Defendant argues, notwithstanding, that both courts properly interpreted the saving clause as requiring that plaintiff’s claims must be brought within the minimum reasonable time in excess of six months. We find the interpretation unworkable. A The saving clause is vague and ambiguous. It does not call for an alternate limitation period of two, three, four, or five years. Instead, it uses the terminology “as far as legally possible.” The Court of Appeals found that the term could be interpreted to mean suit should be brought in the minimum reasonable time beyond the six-month limitation period. However, it could as easily be read to mean that, if the contractual period of limitation is found unreasonable, the statutory period governs. A legal period has already been determined by the Legislature. As the contract period under consideration is ambiguous, it must be construed against the drafter, the defendant. Lichnovsky v Ziebart Int’l Corp, 414 Mich 228, 239; 324 NW2d 732 (1982). B For reasons of policy, courts should not determine periods of limitation on a case-by-case basis. We agree with the observation in the Court of Appeals dissent that claimants are entitled to certainty in their legal dealings. Statutes of limitation embody the important public policy considerations of stimulating business activity, punishing negligence, and giving security and stability to human affairs in general. 51 Am Jur 2d, Limitation of Actions, § 18, p 603, citing Kyle v Green Acres at Verona, Inc, 44 NJ 100; 207 A2d 513 (1965). A statutory limitation period provides peace of mind to a potential defendant. A defendant can be certain that, once the period expires, extensive defense of a new lawsuit will be unnecessary. A plaintiff, also, is entitled to certainty in legal dealings. Allowing courts to fashion arbitrary periods of limitation depending on the facts of each case sometimes would force claimants to file suit prematurely, lending further instability to employment relations. In many cases, suit would have to be brought before adequate investigation had been completed. The public policy considerations underlying limitation periods are not advanced, either, by encouraging uncertain periods of limitation. We agree with the Court of Appeals dissent that the applicable statutory limitation period is a straightforward and objective indicator of what period is reasonable. Lothian v Detroit, 414 Mich 160, 165; 324 NW2d 9 (1982). In the case before us, defendant has not stated a convincing argument why we should abandon the objective indicator and authorize nonspecific contractual periods of limitation. c Historically, courts have relied on the Legislature to establish limitation periods. As we stated over a century ago: Every suitor must have a reasonable time in which to commence an action to enforce his rights, and it is for the Legislature to provide a general rule applicable to all cases falling within a class, and not for the judiciary to declare what is or should be a reasonable time varying with the circumstances of each case as it arises. Important legal and property rights depend upon the rule within which such right must be asserted, or, failing to do it, will be lost; and the necessity of a fixed, certain, and definite rule established by legislative authority is manifest. [McKisson v Davenport, 83 Mich 211, 215; 47 NW 100 (1890).] Similarly, where the Legislature has not provided a statutory period of limitation governing a particular claim, this Court has not allowed lower courts to apply differing periods on a case-by-case basis. Instead, we have adopted the period of limitation of analogous statutes. See Hart v Detroit, 416 Mich 488; 331 NW2d 438 (1982). Federal decisions follow the same principle. Where no federal statute of limitation applies to a particular suit, the court does not assume that no time limit applies, nor does it determine a reasonable time. Rather, the most suitable statute or other established rule of timeliness is “borrowed.” DelCostello v Int’l Brotherhood of Teamsters, 462 US 151, 158; 103 S Ct 2281; 76 L Ed 2d 476 (1983). By enacting a statute of limitation, the Legislature determines the reasonable maximum period a plaintiff can take to file a claim. Nielsen v Barnett, 440 Mich 1, 8; 485 NW2d 666 (1992). Courts should defer to the statutory period unless the period in the parties’ contract is specific and reasonable. m In conclusion, a contractual saving clause providing for enforcement “as far as legally possible” cannot be construed to allow imposition of uncertain, varying periods of limitation case by case. As a consequence, the limitation period for each of plaintiff’s claims is the applicable statutory period. The decision of the Court of Appeals is reversed. We remand this case to the trial court for further proceedings. Mallett, C.J., and Brickley, Cavanagh, Boyle, Riley, and Weaver, JJ., concurred with Kelly, J. The period of limitation for plaintiffs breach of contract claim is six years. MCL 600.5807(8); MSA 27A.5807(8). For the rest of his claims, the period is three years. MCL 600.5805(8); MSA 27A.5805(8). The trial court was concerned that shortening the limitation period to six months might foster premature lawsuits because of a lack of investigation time. Also, plaintiff did not have a realistic choice in deciding to sign the agreement. If he did not sign, he would have risked discharge. The transaction was not at arm’s length. Finally, there are public policy reasons for prohibiting the shortening of the limitation periods in discrimination lawsuits. 453 Mich 915 (1996). The contract in Camelot provided as follows: “No suit or action shall be commenced hereunder by any claimant: Ms * * “After the expiration of one (1) year following the date on which principal ceased work on said contract, it being understood, however, that if any limitation embodied in this bond is prohibited by any law controlling the construction hereof such limitation shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law.” [Id. at 128.]

Susan Handrahan vs. Red Roof Inns, Inc. No. 96-P-126. Middlesex. February 10, 1997. June 23, 1997. Present: Brown, Kaplan, & Perretta, JJ. Anti-Discrimination Law, Handicap, Burden of proof. Prima facie case, Employment, Damages. Practice, Civil, Instructions to jury. Evidence, Expert opinion. Damages, Punitive. In an action alleging handicap discrimination in employment in violation of G. L. c. 15IB, § 4, the plaintiff met her burden of establishing a prima facie case [16]; where the defendant articulated a legitimate nondiscriminatory reason for the plaintiff’s discharge, the plaintiff further carried her burden of proving that the asserted reason was a pretext [16-18], At the trial of an action alleging handicap discrimination in employment, the judge’s instructions on the issue of pretext, based on Blare v. Huskey Injection Molding Sys. Boston, Inc., 419 Mass. 437 (1995), contained no reversible error. [18-19] At the trial of an action alleging handicap discrimination in employment, the judge properly admitted expert testimony to assist the jury in assessing the amount of punitive damages [20-21], and there was no error in his excluding the use of the finding of lack of probable cause in the matter by the Massachusetts Commission Against Discrimination in the defendant’s opening statement, where the evidence was never proffered at trial [21-22], Evidence at the trial of a handicap discrimination case was sufficient to warrant the judge to submit the issue of punitive damages to the jury. [22] At the trial of a handicap discrimination in employment case, the issue of ■ “front pay” damages was correctly submitted to the jury [23-24] and there was no basis in the evidence for consideration of reinstatement as an alternative to front pay [24-25]: however, the front pay award was excessive, even after remittitur, as lacking support in the record, and the matter was remanded for recomputation of those damages [25]. Civil action commenced in the Superior Court Department on April 30, 1992. The case was tried before John C. Cratsley, J. Douglas W. Stoddart for the plaintiff. Scott C. Moriearty (Laurie Rubin with him) for the defendant. Stephen S. Ostrach, for New England Legal Foundation, amicus curiae, submitted a brief. Brown, J. On April 30, 1992, the plaintiff, Susan Handrahan, filed this action in Superior Court alleging that the defendant, Red Roof Inns, Inc. (Red Roof), discriminated against her on the basis of her handicap. See G. L. c. 151B, § 4. Following a jury trial, a jury awarded the plaintiff $1,705,000 in damages; that amount was comprised of $55,000 in back pay, $600,000 in front pay, $50,000 for emotional distress, and $1,000,000 in punitive damages. The defendant then filed motions for judgment notwithstanding the verdict (n.o.v.), new trial, and remittitur. The judge denied the defendant’s motions for judgment n.o.v. and new trial but allowed its motion for remittitur, reducing the front pay award by $112,200 and the punitive damage award by $900,000. Judgment was subsequently entered for the plaintiff in the amount of $732,700. Both parties appeal from the judgment. We first consider the defendant’s contention that the trial judge erred in denying its motion for judgment n.o.v. The defendant asserts that there was insufficient evidence to support the jury’s finding of discrimination under G. L. c. 151B, § 4(16). In bringing a claim for handicap discrimination under this section, the plaintiff bears the initial burden of establishing a prima facie case. Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 447 (1996). Once the plaintiff has established a prima facie case, the burden shifts to the employer to articulate a legitimate reason for its actions. Ibid. Thereafter, the burden shifts back to the employee to show that the employer’s asserted reason was not the true reason, but rather a pretext. Ibid. “[I]f the fact finder concludes that the plaintiff has proved that the employer’s reasons are a pretext,[] then the plaintiff prevails.” Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 446 (1995). From the evidence presented at trial, the jury could have found the following facts. The plaintiff, an epileptic, began working for the defendant as a housekeeper in 1983. At that time, she did not disclose her epilepsy to the defendant because she feared that she might be fired. From December, 1983, through December, 1990, the plaintiff received favorable performance evaluations and, on several occasions, was generally noted as being a good employee. The plaintiff, however, was often criticized for her inability to clean her assigned rooms in a timely manner. On the morning of April 10, 1991, the plaintiff suffered an epileptic seizure while at her brother’s home. Since the plaintiff was scheduled to work that day, her sister-in-law called the defendant and spoke with one of its female employees. She told the woman that the plaintiff had had a “grand mal seizure,” and requested that she relay this information to the plaintiff’s boss. The woman agreed to do so. When the plaintiff returned to work the next day, her boss, Brian Thompson, requested a note from her doctor. The plaintiff subsequently obtained a doctor’s note indicating that she could return to work. The note, which contained the heading “Neurological Services,” made no mention of the plaintiff having had a seizure. On April 16, 1991, the plaintiff told Thompson that she needed to leave work early because her medication had made her tired. On April 11, 1991, Annie M. Cowles, a former coworker of the plaintiff, filed a complaint against the defendant with the Massachusetts Commission Against Discrimination. In her complaint, Cowles alleged that the defendant discriminated against her on the basis of her epilepsy. On May 27, 1991, the plaintiff received a disciplinary warning for failing to complete her room assignments. Three days later, the plaintiff received a second warning for not completing her rooms in the allotted time frame. At that time, the plaintiff was warned that if she fell behind again she would be terminated. On June 4, 1991, the plaintiff was fired after she failed, once again, to finish cleaning her assigned rooms within the allotted time. 1. Evidence of discrimination. a. Prima facie case. Contrary to the defendant’s contention, we think that the plaintiff met her initial burden of establishing a prima facie case. “To establish the prima facie case of unlawful employment discrimination on the basis of handicap pursuant to G. L. c. 151B, a plaintiff who has been terminated from employment must show that: (1) [s]he suffers from a handicap; (2) [s]he is a ‘qualified handicapped person’; and (3) [s]he was fired solely because of [her] handicap.” Labonte v. Hutchins & Wheeler, 424 Mass. 813, 821 (1997), and cases cited. Here, the plaintiff introduced sufficient evidence on each of the required elements. b. Defendant’s articulated reason. It is undisputed that the defendant articulated a legitimate nondiscriminatory reason for its actions. It was the defendant’s contention at trial that it terminated the plaintiff because she routinely failed to clean her assigned rooms within the allotted time. According to the defendant, each housekeeper was expected to comply with a thirty minute per room requirement (“thirty-minute rule”). The defendant contended that, in an effort to become more competitive, it began to enforce strictly its thirty-minute rule. The defendant stated that, after implementing this stringent enforcement policy, the plaintiff continued to have difficulty completing her room assignments. The defendant introduced evidence that the plaintiff was given two warnings, and was not terminated until she failed for a third time to comply with the thirty-minute rule. c. Evidence of pretext. Although the evidence is slim, the jury reasonably could have found the defendant’s asserted reason to be a pretext. Based on the evidence, the jury could have disbelieved the defendant’s claim that the thirty-minute rule was an established company policy. The plaintiff indicated that the first time she learned of the thirty-minute rule was May 30, 1991, the date she received her second disciplinary warning. Although some of the plaintiff’s evaluations refer to a company standard, none mentions a thirty minute per room requirement. Moreover, the housekeeping handbook contains no mention of the thirty-minute rule. In fact, Thompson, during cross-examination, acknowledged that the thirty-minute rule was not “per se” in the handbook. There was also conflicting evidence as to when the thirty-minute rule was implemented. According to Thompson, the thirty-minute rule was already in place when he returned to Framingham in February, 1990. However, Patricia V. Freeman, the head housekeeper at that time, indicated that the thirty-minute rule was not implemented until some time after Thompson arrived. The timing of the enforcement of the thirty-minute rule as to this plaintiff is also suspect and could support an inference that the defendant’s real motive was discrimination. The defendant asserts that the plaintiff’s difficulties in timely completing her room assignments were long-standing. Yet despite this recurring criticism, her reviews throughout her employment with Red Roof were generally good. Moreover, prior to her disclosure of her handicap, she never received a warning for failing to complete her assignments, nor was she ever disciplined on that basis. The defendant’s explanation that the sudden stepped-up enforcement of the thirty-minute rule in May, 1991, was motivated by economic concerns also could have been rejected by the jury. Thompson testified that toward the beginning of 1991, the company began to focus on controlling costs, and that in January or February of that year, there was emphasis placed on lowering the number of minutes spent cleaning each room. However, when asked whether there was an increased focus on enforcement of the thirty-minute rule during this time period, 1990 to 1991, Gregg Weisz, another employee of the defendant, testified that he could not recall such an increase. The defendant contends that Weisz’s testimony did not contradict that of Thompson’s because Weisz at that time worked at a Red Roof Inn in Salem, New Hampshire. However, there was evidence that both the Framingham and Salem locations were controlled by the same regional director, Mark G. Workman. Therefore, the jury could have concluded that, if there were such a shift in direction, Weisz would have been aware of it. Based on this somewhat equivocal evidence, the jury could have disbelieved some or all of the testimony of the defendant’s agents that their real motivation in strictly enforcing the thirty-minute rule was to contain costs. See Finney v. Madico, Inc., 42 Mass. App. Ct. 46, 51 (1997). On the foregoing evidence, the jury could reasonably have concluded that the thirty-minute rule was not a well-established company policy, as the defendant contended, but rather a new rule implemented and enforced only after the defendant learned of the plaintiff’s handicap. Accordingly, the trial judge correctly denied the defendant’s motions for a directed verdict and for judgment n.o.v. 2. Jury instructions. The trial judge instructed the jury that “once the plaintiff has established a prima facie case and shows that the employer’s articulated reasons are pretext . . . the plaintiff is entitled to recover for illegal discrimination under Chapter 151B.” The defendant argues that the judge erred in not instructing the jury that the plaintiff must prove not only that the employer’s asserted reasons are a pretext, but also that they are a pretext for discrimination. See note 6, supra. Essentially, the defendant asks this court to depart from the teachings of Blare v. Husky Injection Molding Sys. Boston, Inc., supra, wherein, in dicta, at 446, the court said: “Combined with establishment of a prima facie case by a preponderance of the evidence, a showing of pretext eliminates any legitimate explanation for the adverse hiring decision and warrants a determination that the plaintiff was the victim of unlawful discrimination. The plaintiff need not conclusively exclude all other possible explanations for the decision and prove intent beyond a reasonable doubt.” Acknowledging that the Blare case was an appeal from a grant of summary judgment, we nonetheless believe that we are constrained, even in the face of thin evidence of pretext, to follow the language of Blare. As the judge’s instructions flowed from and were consistent with the teaching of Blare, we cannot rightly say the judge committed reversible error in this regard. 3. Evidentiary rulings. a. Admission of expert testimony. To assist the jury in assessing the amount of punitive damages, the plaintiff, over the defendant’s objection, was permitted to introduce expert testimony concerning the value of Red Roof. Michael Bradley, an “expert” in the hotel industry, testified that the $620,000,000 which a buyer paid to acquire Red Roof in 1993 was probably a fair price. The defendant does not challenge Bradley’s qualifications as an expert. Instead, the defendant maintains that the plaintiff failed to provide an adequate foundation for his testimony. Specifically, the defendant contends that — since Bradley was not involved in the actual purchase and was not privy to the specifics of the transaction — there was no basis for him to evaluate Red Roof’s worth. We agree with the trial judge that the defendant’s objection went to the weight and not the admissibility of the evidence Although Bradley’s testimony with regard to the purchase price was based exclusively on published reports, the plaintiff did not object to its admission. Once the $620,000,000 figure came in without objection, we think that there was a reasonable basis for Bradley to assess whether the buyer paid a fair price for its acquisition. Therefore, we find no abuse of discretion. See Giannasca v. Everett Aluminum, Inc., 13 Mass. App. Ct. 2Q8, 211 (1982) (“The admission of expert testimony rests in large part in the sound discretion of the trial judge”). b. Exclusion of agency finding. The defendant next argues that the trial judge erred in excluding from evidence the Massachusetts Commission Against Discrimination’s (MCAD) finding of lack of probable cause. See and compare Tate v. Department of Mental Health, 419 Mass. 356, 364 (1995) (MCAD finding considered on summary judgment). Specifically, the defendant maintains that it was error for the judge to exclude the MCAD finding because it was “relevant to the supposed ‘egregiousness’ or ‘recklessness’ of Red Roof’s conduct” and thus, could have made a difference in the jury’s assessment of punitive damages. The defendant, however, did not articulate this contention below. On the plaintiff’s pretrial motion in limine the defendant argued that the MCAD finding should have been admitted because it was relevant to whether the plaintiff could prove her claim of discrimination by a preponderance of evidence. Although the defendant referred to punitive damages during a colloquy between defense counsel and the judge, the defendant’s remarks were addressed to the judge and centered on whether he should permit the jury, in light of the MCAD finding, to consider punitive damages at all. “Having stated specifically the basis of [its] objection, the defendant], in fairness, ought not to be permitted to urge other groúnds in this court.” Kagan v. Levenson, 334 Mass. 100, 107 (1956). Moreover, the judge’s ruling merely prohibited the use of the MCAD finding in the defendant’s opening. See note 16, supra. As such, it was preliminary in nature. The docket fails to disclose the final resolution of the motion in limine, and merely indicates that the motion was “allowed as to any mention in the defendant’s opening.” It does not appear from the record on appeal that the disputed evidence was ever proffered. The defendant also argues that the trial judge erred in permitting the plaintiff to introduce evidence that it contested her unemployment compensation claim. However, the defendant did not object below, and has waived the issue for review. See Freyermuth v. Lufty, 376 Mass. 612, 616 (1978). 4. Damages. a. Punitive damages. The jury awarded the plaintiff $1,000,000 in punitive damages. Thereafter, the trial judge, concluding that the amount was excessive, reduced the award to $100,000. On appeal, the defendant maintains that the trial judge erred in allowing the jury to consider punitive damages because there was no evidence to suggest that its conduct was intentional or reckless. We disagree. There was evidence presented at trial from which the jury could have concluded that, upon learning of the plaintiff’s condition, the defendant endeavored to bring about the plaintiff’s termination. Although the evidence of discrimination was less than overwhelming, we agree with the trial judge that it was sufficient to warrant submitting the issue of punitive damages to the jury. See Bain v. Springfield, 424 Mass. 758, 767 (1997) (punitive damages are appropriate “where a defendant’s conduct warrants condemnation and deterrence”). b. Front pay. The jury awarded the plaintiff $600,000 in front pay. Thereafter, the trial judge, concluding that the amount was excessive, reduced the award to $487,800. Although the judge found that the jury might have credited the plaintiff’s testimony that she intended to work for the defendant for the rest of her life, and that the front pay reflected the jury’s calculation of the plaintiff’s salary and benefits over a thirty-year period, he concluded that the jury had failed to take mitigation into account. Noting that the plaintiff had been able to secure seasonal employment at a country club, the judge determined that the plaintiff would be able to mitigate her damages by obtaining part-time employment. The judge then recalculated the award to reflect the likelihood that tihe plaintiff would be able to obtain, at least, seventeen weeks of full-time employment per year. Accordingly the judge reduced the award by $112,200, the judge’s estimate of the plaintiff’s part-time wages over a thirty-year period. The defendant raises several contentions regarding the front-pay award. First, the defendant argues that the trial judge erred in not considering whether reinstatement was a viable option. Under Massachusetts law, “a plaintiff’s rejection of an objectively reasonable offer of reinstatement terminates an employee’s eligibility for an award of damages based upon lost pay accruing after such a rejection.” Conway v. Electro Switch Corp., 402 Mass. 385, 389-390 (1988). Here, however, there was no evidence that the defendant offered to reinstate the plaintiff. A plaintiff is not required “to make a request for reinstatement as a prerequisite to a claim for front pay.” Id. at 390. Thus, the defendant’s contention is without merit. In addition, the defendant argues that, since front pay is equitable in nature, the trial judge, not the jury, should have determined whether the plaintiff was entitled to receive front pay. We disagree. The award of front pay in cases brought under c. 15IB is compensatory in nature. Id. at 387-388. Although we think that the issue of front pay was properly before the jury, we agree with the defendant that the front pay award, even as remitted, is excessive, and lacks adequate support in the record. Cf. doCanto v. Ametek, Inc., 367 Mass. 776, 787 (1975). “[D]amages may not be determined by speculation or guess, must be causally related to the defendant’s, wrongdoing, and the plaintiff should not be made more than whole.” Conway v. Electro Switch Corp., supra at 388 (citations omitted). Here, as noted by the trial judge, there is no evidence to suggest that the plaintiff will be unable to obtain comparable full-time employment in the future. In fa

Patricia J. Hallgren vs. Integrated Financial Corporation & another. No. 96-P-103. Middlesex. December 16, 1996. - May 22, 1997. Present: Dreben, Gillerman, & Greenberg, JJ. Anti-Discrimination Law, Handicap. Employment, Discrimination. A temporary disability of short duration is not a handicap within the meaning of G. L. c. 151B, § 1. [687-689] Civil action commenced in the Superior Court Department on July 18, 1995. The case was heard by Herman J. Smith, Jr., J., on a motion for summary judgment. Paul A. Manoff for the plaintiff. Douglas F. Seaver for the defendants. Jonathan E. Price, an officer of the defendant corporation. Dreben, J. The only issue on appeal is whether a temporary disability — a knee injury — from which the plaintiff fully recovered in a month and from which she has no residual disability, is a handicap within the meaning G. L. c. 151B, § l. In this action, brought by the plaintiff alleging that her termination was discrimination on the basis of her handicap, a judge of the Superior Court allowed the defendant’s motion for summary judgment, holding that “[s]uch a temporary injury does not amount to a handicap or make the plaintiff a handicapped individual.” We affirm. General Laws c. 151B, § 4(16), as inserted by St. 1983, c. 533, § 6, provides in relevant part that it shall be an unlawful practice: “[f]or any employer . . . to . . . refuse to hire, rehire or advance in employment or otherwise discriminate against, because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation . . . .” The defendant argues that the plaintiff did not have a “handicap” within the meaning of c. 15 IB. As defined in § 1(17), as appearing in St. 1989, c. 722, § 11: “The term ‘handicap’ means (a) a physical or mental impairment which substantially limits one or more major life activities of a person; (b) a record of having such impairment; or (c) being regarded as having such impairment . . . .” While there is no Massachusetts case law discussing temporary handicaps, there is considerable authority construing the analogous Federal statutes. “Because of the similarity between the Federal and State statutes, the Federal cases are most helpful in the resolution of cases involving G. L. c. 15 IB, which prohibits employment discrimination against qualified handicapped persons.” Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 384 (1993). See LaBonte v. Hutchins & Wheeler, 424 Mass. 813, 816 n.5 (1997). Indeed, the Federal definition of “disability,” set forth in the margin, is almost word for word the definition of “handicap” under c. 15IB, § 1(17). The regulations under the Americans with Disabilities Act (ADA) make clear that not every impairment renders an individual disabled. “The determination of whether an individual has a disability is . . . based on . . . the effect of [the] impairment on the life of the individual.” 29 C.F.R. § 1630.2(j), app. at 339 (1996). “[Temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities. Such impairments may include, but are not limited to, broken limbs, sprained joints, concussions, appendicitis, and influenza.” Ibid. The Federal cases are in accord that temporary disabilities not resulting in permanent injuries are not disabilities under the legislation. See, e.g., Evans v. Dallas, 861 F.2d 846, 852-853 (5th Cir. 1988) (knee injury of noncontinuing nature not handicap within Rehabilitation Act); McDonald v. Pennsylvania, 62 F.3d 92, 96 (3d Cir. 1995) (two-month recuperation from surgery does not qualify under Rehabilitation Act or ADA); Sanders v. Arneson Prod., Inc., 91 F.3d 1351, 1354 (9th Cir. 1996), cert, denied, 117 S. Ct. 1247 (1997) (three and one-half month psychological impairment not a disability within ADA); Stevens v. Stubbs, 576 F. Supp. 1409, 1414 (N.D. Ga. 1983) (sporadic transitory illness not covered under Rehabilitation Act); Paegle v. Department of Interior, 813 F. Supp. 61, 64-65 (D.D.C. 1993) (temporary back injury of approximately eight months not handicap for purposes of Rehabilitation Act); Blanton v. Winston Printing Co., 868 F. Supp. 804, 807-808 (M.D.N.C. 1994) (two and one-half month knee injury not disability under ADA); Rakestraw v. Carpenter Co., 898 F. Supp. 386, 390 (N.D. Miss. 1995) (back injury totally cured by surgery one year and ten months after injury is not disability within ADA). See Katz v. City Metal Co., 87 F.3d 26, 32 (1st Cir. 1996) (jury question whether plaintiffs heart attack resulted in a continuing limitation of one or more of his major life activities). The plaintiff argues that the Massachusetts Commission Against Discrimination has taken a contrary position. This is by no means clear as the commission has cited to the Federal regulations providing that the duration of the impairment is a factor that may properly be considered, and has held that brief periods of incapacity do not qualify as a handicap under G. L. c. 15IB. Mueller v. Corenco Corp., 13 M.D.L.R. 1146, 1157, S.C., 13 M.D.L.R. 1979 (1991). We have not been cited to any case, nor have we found one, where the commission has found coverage for an injury which is of as short duration as is the plaintiff’s in this case. But see Minicucci v. Charles Hotel, 9 M.D.L.R. 1217, 1219 (1987). In any event we are not persuaded that there is any reason to deviate from the construction given to the similar Federal statutes. See Cox v. New England Tel. & Tel. Co., 414 Mass. at 382; Tate v. Department of Mental Health, 419 Mass. 356, 361 (1995). Judgment affirmed. In her opposition to the defendant’s motion for summary judgment, the plaintiff did not contest the temporary nature of her impairment. On appeal, at oral argument, her counsel acknowledged that her injury had been temporary with no residual disability. The plaintiffs opposition to the defendant’s motion in the trial court was' based entirely on her argument that her temporary condition was a handicap within the meaning of c. 151B. No argument was made in the trial court or here as to the possible application of G. L. c. 152, § 75B. The Federal statutes are the Federal Rehabilitation Act, 29 U.S.C. §§ 701-796 (1994), applicable to Federal agencies and Federal contractors, including programs receiving Federal financial assistance, and the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (1994), which applies more generally. The standards to be applied where there is a complaint alleging employment discrimination are the same under both acts. See 42 U.S.C. § 12117(b) (1994); 29 U.S.C. § 794(d) (1994). See also 29 C.F.R. § 1630.1 (b) and (c) (1996). As defined in 42 U.S.C. § 12102(2) (1994) (The Americans with Disabilities Act [ADA]): “The term ‘disability’ means, with respect to an individual — (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” The Federal Rehabilitation Act’s definition is almost identical. See 29 U.S.C. § 706(8)(B) (1994). The case law applicable to the term “disability” of the earlier act (Rehabilitation Act) is applicable to the ADA. See McDonald v. Pennsylvania 62 F.3d 92, 95 (3d Cir. 1995). “The use of the term ‘disabilities’ instead of the term ‘handicaps’ reflects ... the preference of persons with disabilities to use that term rather than ‘handicapped’ as used in previous laws . . . .” 29 C.F.R. § 1630(l)(a), app. at 337 (1996), quoting from H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 3, at 26-27 (1990).

Robert C. Powers vs. H.B. Smith Company, Inc., & another. No. 96-P-625. Hampden. February 10, 1997. - May 20, 1997. Present: Brown, Kaplan, & Perretta, JJ. Practice, Civil, Default, Relief from judgment, New trial, Judgment notwithstanding verdict, Attorney’s fees. Anti-Discrimination Law, Age, Termination of employment, Prima facie case, Burden of proof, Attorney’s fees, Damages. Employment, Discrimination, Termination. Evidence, Relevancy and materiality. Damages, Under anti-discrimination law, Emotional distress. In a civil action, a Superior Court judge did not abuse his discretion in granting the plaintiff’s motion pursuant to Mass. R. Civ. P. 60(b)(6) to vacate a default judgment entered against the plaintiff for failure to appear at a pretrial conference. [660] In an action brought under G. L. c. 15IB, alleging age discrimination in employment, in which the plaintiff established a prima facie case and the defendant articulated a legitimate nondiscriminatory reason for its conduct, the evidence was sufficient for the jury reasonably to conclude that the defendant’s asserted reason was a pretext. [660-662] At the trial of an age discrimination case, the judge properly excluded certain evidence as irrelevant. [662-663] The defendant in a civil action was not entitled to contend on appeal that the trial judge improperly excluded certain evidence, where the judge’s ruling was not final and the defendant never thereafter demonstrated the evidence was relevant. [663-664] This court declined to consider an argument on appeal that was inadequate and which did not rise to the level of acceptable appellate argument within the meaning of Mass. R.A.P. 16(a)(4). [664-665] In an age discrimination case, the judge’s award of damages on remittitur was not excessive and there was sufficient evidence of emotional distress to support the award of damages thereon. [665-666] In a civil action the judge did not abuse his discretion in denying the defendant’s motion for a new trial; [666] or in denying the defendant’s motion for judgment n.o.v. where the defendant had failed to renew its motion for a directed verdict at the close of all the evidence [666]. Where the plaintiff in an age discrimination action had not first filed a complaint against one defendant with the Massachusetts Commission Against Discrimination, the judge did not err in allowing that defendant’s motion for summary judgment. [666-667] In an age discrimination in employment case, the plaintiff was entitled to an award of attorney’s fees under G. L. c. 15IB, § 9, where the judge did not make any finding that special circumstances would render such an award unjust. [667] Civil action commenced in the Superior Court Department on February 3, 1992. Motions for summary judgment were heard by Constance M. Sweeney, J.; the case was tried before William H. Welch, J., and posttrial motions were heard by him. Peter J. Stasz for H.B. Smith Company, Inc. Rosemary J. Cooper for the plaintiff. Timothy J. Ryan for Mestek, Inc. Mestek, Inc. The plaintiff does not challenge the judgment entered for his supervisor, Donald F. Schmidt. Brown, J. This case, that seemingly neither party wanted to win, causes us to navigate around numerous procedural tangles and wade through several critical missteps. As will be seen, after this curious journey, all we are left with is the uncomfortable sense that the ultimate result is not “inconsistent with substantial justice.” Mass.R.Civ.P. 61, 365 Mass. 829 (1974). After being discharged from his position as a quality control inspector with H.B. Smith Company, Inc. (Smith), the plaintiff, Robert C. Powers, filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) alleging age discrimination. On February 3, 1994, the plaintiff, with the MCAD’s assent, filed this action in Superior Court. In the complaint, the plaintiff, for the first time, named Mestek, Inc. (Mestek), as a defendant. Prior to trial, Mestek moved for summary judgment contending that, since it was not named in the MCAD complaint, the plaintiff’s claim against it was barred. The motion judge agreed and entered judgment for Mestek. Returning a verdict on special questions, a Superior Court jury found the plaintiff was discharged “by reason of age discrimination” and awarded him $750,000 in damages. The defendant then filed a motion for a new trial. The trial judge denied Smith’s motion, but reduced the damage award to $350,000. Both parties appeal from the ensuing judgment. The defendant argues that: (a) it was error to allow the plaintiffs motion for relief from a default judgment; (b) the plaintiff failed to establish a prima facie case of age discrimination and the jury’s verdict was against the weight of the evidence; (c) certain evidence was improperly admitted or excluded; (d) the damages were excessive; and (e) the trial judge abused his discretion in denying its posttrial motions. The plaintiff, in turn, contends that the trial judge erred in denying his request for attorney’s fees. The plaintiff also argues that summary judgment was improperly entered for Mestek. Based on the evidence presented at trial, the jury would have been warranted in finding the following facts. Smith is a manufacturer of boilers. The plaintiff began working for Smith in January, 1982, as a quality control inspector. The plaintiffs duties included the processing of returned parts. When defective parts were returned, the plaintiff would check to see if they were still under warranty and then arrange for the parts to be returned to the vendors. The plaintiff also inspected parts purchased from vendors to ensure that they met company specifications. In 1986 or 1987, Smith opened a new plant approximately five miles away from its main facility and moved the assembly line for residential boilers to the new plant. Prior to that time, the assembly work had been performed at the main plant. Initially, the plaintiff assisted in monitoring the new assembly line, as Smith had not yet hired an inspector for the new facility. Marianne Fortier was later hired as quality control inspector for the new plant. The plaintiff, however, filled in for Fortier when she was on vacation, performing Fortier’s duties with the exception of the “100th boiler test.” The plaintiff had not been trained to perform that test. The plaintiff also performed several quality control functions that Fortier had not. Sometime prior to 1990, Smith began to experience financial difficulty. In February, 1990, Mestek made a tender offer for approximately forty-eight percent of Smith’s shares. Thereafter, a Mestek official, John Kaddaras, at the behest of .Smith’s board of directors, conducted an analysis of Smith’s organizational structure. The board had concluded that “major restructuring” was necessary in order for Smith to stay afloat. Another Mestek official (Walter Markowski) met with Smith employees, including the plaintiff. At that time, there were three inspectors in the quality control division: the plaintiff, Fortier, and Ray Deso. Markowski recommended that the number of quality control inspectors be reduced from three to one. Markowski conveyed his opinion to Kaddaras that Fortier possessed the most “technical ability.” A few days later, Kaddoras spoke with Donald F. Schmidt, the plaintiff’s supervisor, who, when asked, opined that Fortier was the “most capable” of the three. At the time of the layoffs, Schmidt and Fortier were romantically involved. Kadd-aras recommended that Fortier be retained, and the plaintiff and Deso were subsequently laid off. 1. Defendant’s appeal. a. Rule 60(b) motion. Before moving on to the other issues in this case, we pause briefly to dispose of Smith’s claim that the judge abused his discretion in vacating the default judgment entered earlier against the plaintiff for failure to appear at a pretrial conference. See in this regard Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 433-434 (1979). Upon review of the record, we conclude that the judge, pursuant to Mass.R.Civ.P. 60(b)(6), 365 Mass. 829 (1974), reasonably could have found extraordinary circumstances warranting relief from the judgment. See Parrell v. Keenan, 389 Mass. 809, 814-815 (1983). See generally 11 Wright, Miller & Kane, Federal Practice and Procedure § 2864 (2d ed. 1995). b. Age discrimination claim. The alleged discriminatory act arises in the context of a reduction in force decision by the plaintiff’s employer. In analyzing claims of discrimination brought under the Massachusetts antidiscrimination statute (G. L. c. 15 IB, § 4) we look to the familiar three-stage order of proof paradigm articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973). See Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 134-136 & n.5 (1976). In stage one, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 447 (1996). In stage two, the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for its actions. Ibid. Finally, in stage three, the burden shifts back to the plaintiff to show that the employer’s articulated reason is not the true reason, but rather a pretext. Ibid. As “Massachusetts is a pretext only jurisdiction” (Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 443 [1995]), if successful in stage three, “the plaintiff is entitled to recovery for illegal discrimination under G. L. c. 15 IB.” Id. at 444-445. Contrary to Smith’s contention, our review of the record indicates that the plaintiff met his initial burden of establishing a prima facie case of age discrimination. The plaintiff showed that: (1) he is a member of a class protected by G. L. c. 15 IB (he was over the age of 40); (2) he was qualified for the position of quality control inspector; (3) he was terminated; and (4) a similarly or less qualified younger person was retained. See Tardanico, supra at 447 n.4; LeBlanc v. Great American Ins. Co., 6 F.3d 836, 842 (1st Cir. 1993). See also Finney v. Madico, Inc., ante 46, 50 (1997). “The exact prima facie proof required can vary depending on the factual situation.” Harrison v. Boston Financial Data Servs., Inc., 37 Mass. App. Ct. 133, 137 (1994). See Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 441. It is uncontroverted that Smith articulated a legitimate nondiscriminatory reason for its conduct. According to Smith, the plaintiff was laid off as a result of corporate restructuring. Based on Mestek’s recommendations, Smith decided to reduce the number of quality control inspectors from three to one. Smith stated that after comparing the qualifications and duties of Fortier and the plaintiff, it concluded that Fortier possessed better qualifications. See and compare Finney v. Madico, Inc., supra at 50-51. Thus, the pivotal phase is stage three. On appeal, Smith maintains that there was no reasonable basis for the jury to conclude that its asserted reason was a pretext. We disagree. At trial, Smith emphasized the fact that the plaintiff was unable to perform the “100th boiler test.” However, Richard A. Lemelin, a former employee of Smith, testified that depending on the number of boilers produced, only one or two were tested a week and that each test took approximately one or two hours. Moreover, Lemelin indicated that the test was not that difficult to perform and that no outside training was required. It was Lemelin who trained Fortier to perform the test. In addition, Schmidt, the plaintiffs supervisor, indicated that the only job that the plaintiff had not performed was the “100th boiler test,” and that Fortier had not performed some of the plaintiffs duties. Moreover, given the romantic relationship between Schmidt and Fortier, a finder of fact would be entitled to discredit some or all of Schmidt’s testimony. In these circumstances, the juty reasonably could have concluded that Smith’s asserted reason was a pretext, and “not the real reason[] for the action.” Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass, at 443, quoting from Brunner v. Stone & Webster Engr. Corp., 413 Mass. 698, 700 (1992). c. Evidentiary rulings. At trial, the plaintiff, without objection, introduced in evidence two written evaluations of his work performance. Later, Smith sought to introduce a written assessment of Fortier’s work. The plaintiff objected, claiming that Fortier’s evaluation was irrelevant. In its offer of proof, Smith argued that, since the qualifications of both the plaintiff and Fortier were at issue, the evaluations were relevant. The judge then asked the Smith representative whether he considered that evaluation in making his decision. He indicated that he had not. The judge then excluded the evidence. On appeal, Smith maintains that it was error for the judge to exclude the evaluation because (a) it was relevant, and (b) in its absence, the jury could not properly evaluate the defendant’s decision to retain Fortier over the plaintiff. “The decision whether evidence is relevant remains within the sound discretion of the trial judge.” McLaughlin v. Vinios, 39 Mass. App. Ct. 5, 8 (1995). “A trial judge will not be reversed on review except for palpable error.” Ibid. Here, given that the defendant appears to have conceded that the evaluation played no role in its decision, we find no abuse of discretion. Moreover, even if the evaluations were relevant, we discern no prejudice to Smith’s case, as evidence of the quality of Fortier’s work was introduced during Schmidt’s testimony. See Pina v. McGill Dev. Corp., 388 Mass. 159, 164 (1983) (no prejudice found where excluded evidence was merely cumulative of other evidence pointing to the same fact). The defendant further argues that the judge erred in failing to admit in evidence two disciplinary letters concerning the plaintiff. The record indicates, however, that the judge’s ruling was not final. The judge clearly indicated that he would admit at least one of the letters if Smith could demonstrate that it had relied on the letter in making its determination. Smith did not mention the matter again during the course of the trial. “Such an omission fatally ‘dispose[s] of [an] exception to a ruling which expressly was not final and which related to the order of proof, a matter [well within] the discretion of the trial judge.’ ” Cooke v. Walter Kidde & Co., 8 Mass. App. Ct. 902, 904 (1979), quoting from Donahue v. Kenney, 330 Mass. 9, 12 (1953). Thus, the defendant cannot now contend that the letters were improperly excluded. The defendant also argues that the judge erred in permitting evidence of a romantic relationship between Fortier and Schmidt. However, the defendant’s argument with respect to this matter — consisting of five sentences — is inadequate, and provides us little assistance in evaluating the merits of the claim: The defendant fails to cite any authority in support of its contention and, taken all in all, the defendant’s treatment of the issue does not rise to the level of acceptable appellate argument within the meaning of Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). d. Damages-Remittitur. Smith claims that the damage award, despite the remittitur, is excessive. Compare Labonte v. Hutchins & Wheeler, 424 Mass. 813, 823-826 (1997); Davis v. Walent, 16 Mass. App. Ct. 83, 96 (1983). “The field of discretion of the trial judge in these matters is very broad. Only in rare instances can it be ruled that there has been an abuse of discretion amounting to an error of law” (citations omitted). Davis v. Walent, supra at 96-97. Smith first argues that to the extent the damages award represents compensation for front pay, they are excessive. Specifically, Smith contends that, since Fortier testified that she was laid off in 1992, the plaintiff is not entitled to compensation beyond that date. However, the precise circumstances attending Fortier’s termination are not clear from the record. What is clear is that the plaintiff had intended to work for Smith until age sixty-five. Therefore, even if Smith’s assertion is correct, absent a showing that the plaintiff would not have been able to transfer to another position (or branch of the company), there is no basis for disturbing the judge’s ruling. Contrary to Smith’s contention, there was sufficient evidence of emotional distress. The plaintiff, who at that time was a member of Alcoholics Anonymous (AA), testified that he attended more AA meetings as a result of his layoff. Although he did not seek independent counseling as a result of his termination, the plaintiff indicated that he availed himself of the counseling services provided by A A. “[I]n c. 15 IB cases an award of emotional distress damages can be sustained even in the absence of . . . psychiatric consultation” (citations omitted). Labonte v. Hutchins & Wheeler, 424 Mass. at 824. We conclude there is not sufficient record support to find an abuse of discretion. See Bartley v. Phillips, 317 Mass. 35, 43-44 (1944). e. Posttrial motions. With regard to the defendant’s several posttrial motions we are obliged at the outset to point out that the defendant’s failure to renew its motion for a directed verdict at the close of all the evidence is a critical misstep. See, e.g., Martin y. Hall,369 Mass. 884-885 (1976). But see Mass.R.Civ.P. 61, 365 Mass. 829 (1974). We address each motion in turn. As grounds for a motion for a new trial, Smith attacks, among other things, the plaintiffs prima facie case, the damages award, and the weight of the evidence. The standard that a trial judge is to apply on a motion for a new trial in a civil case is too well known to be restated. See, e.g., W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass. App. Ct. 744, 748 (1993), and cases cited therein. See also Bartley v. Phillips, 317 Mass, at 42. In light of the above discussion, we do not think the judge abused his discretion in denying Smith’s motion for a new trial. In addition, the judge stated in his memorandum and order denying the motion that “there were inconsistencies in some of the evidence” rebutting the plaintiffs prima facie case. As to the defendant’s claim that the damages were excessive, as has already been mentioned above, the judge, pursuant to Mass.R.Civ.P. 59(a), 365 Mass. 827 (1974), ordered, we think properly so, that $400,000 of the verdict be remitted. Compare Davis v. Walent, 16 Mass. App. Ct. at 96. We likewise reject Smith’s collateral contention that the excessive nature of the verdict demonstrates that it was the result of juror prejudice or bias. Smith’s argument consists entirely of conjecture and is not supported by the record. The judge did not abuse his discretion or commit an error of law by denying Smith’s Mass.R.Civ.P. 50(b), 365 Mass. 814 (1974), motion for judgment n.o.v., for the reason, if no other, that Smith failed to renew its motion for a directed verdict at the close of all the evidence. See Michnik-Zilberman v. Gordon’s Liquor, Inc., 390 Mass. 6, 9 (1993). 2. Plaintiff’s cross appeal. a. Summary judgment. The plaintiff contends that the motion judge erred in allowing Mestek’s motion for summary judgment. The motion judge concluded that, since the plaintiff did not name Mestek in his MCAD complaint, his claim against Mestek was barred. There was no error. “Resort to judicial process is not available to a party claiming age discrimination . . . unless that party has first lodged a complaint of unlawful discrimination with the MCAD within six months of the occurrence of the discriminatory event.” Tar-danico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. at 444. See Charland v. Muzi Motors, Inc., 417 Mass. 580, 583 (1994). At the time the plaintiff filed his complaint with the MCAD, he was aware of Mestek’s involvement in his layoff. The plaintiff could have moved to amend his MCAD complaint, but failed to do

DeFLAVIIS v LORD & TAYLOR, INC Docket No. 186156. Submitted March 4, 1997, at Detroit. Decided May 13, 1997, at 9:10 A.M. Gabriel and Maria DeFlaviis brought an action in the Wayne Circuit Court against Lord & Taylor, Inc., alleging claims of defamation and unlawful retaliation based on the Civil Rights Act following the defendant’s termination of Gabriel’s employment. The court, Richard P. Hathaway, X, granted summary disposition for the defendant. The plaintiffs appealed. The Court of Appeals held: 1. Section 701 of the Civil Rights Act, MCL 37.2701; MSA 3.548(701), allows Gabriel, a former employee, to bring an action alleging unlawful retaliation as a result of Lord & Taylor’s postemployment actions allegedly taken in retaliation for Gabriel’s having filed an action against Lord & Taylor in the federal courts alleging age discrimination in violation of the Civil Rights Act. 2. The plaintiffs presented a prima facie case of unlawful retaliation. Summary disposition of the plaintiffs’ unlawful retaliation claim was improper. 3. The plaintiffs presented evidence indicating that the defendant took an adverse employment action against Gabriel that resulted in Gabriel’s loss of an opportunity to work for another employer. Summary disposition of this claim was improper. 4. The plaintiffs presented sufficient evidence to create an issue of material fact with regard to their defamation claim. Summary disposition of the defamation claim was improper. Reversed and remanded. 1. Civil Rights — Unlawful Retaliation — Master and Servant. A plaintiff seeking to establish a prima facie case of unlawful employment-related retaliation under the Civil Rights Act must show that the plaintiff engaged in a protected activity, that this was known by the defendant, that the defendant took an employment action adverse to the plaintiff, and that there was a causal connection between the protected activity and the adverse employment action (MCL 37.2701; MSA 3.548[701]). 2. Civil Rights — Master and Servant — Postemployment Discrimination. A former employee may bring an action under the Civil Rights Act against a former employer for postemployment actions of the employer allegedly taken in retaliation for the employee’s having engaged in activity protected under the Civil Rights Act such as the filing of an action under the Civil Rights Act alleging age discrimination in employment by the employer (MCL 37.2701; MSA 3.548[701]). 3. Torts — Defamation — Elements. The elements of a defamation claim are: a false and defamatory statement concerning the plaintiff, an unprivileged communication to a third party, fault amounting to at least negligence on the part of the publisher, and either actionability of the statement irrespective of special harm or the existence of special harm caused by publication. Reosti, James & Sirlin, RC. (by Ronald Reosti), and Neal Bush, for the plaintiff. Moffett & Dillon, PC. (by Stephen T. Moffett and Christine Marakas Battle), for the defendant. Before: Doctoroff, P.J., and Michael J. Kelly and Young, JJ. Per Curiam. Plaintiff appeals as of right from the trial court’s order awarding summary disposition to defendant with regard to plaintiff’s unlawful retaliation action brought pursuant to the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and plaintiff’s defamation action. We reverse and remand. Briefly, in 1990, plaintiff was terminated from his position as regional alterations director for defendant, Lord & Taylor, Inc. According to plaintiff, defendant’s stated reason for the termination was that plaintiff had provided free alterations to company executives. Subsequently, plaintiff filed a lawsuit against defendant in the United States District Court, Eastern District of Michigan, alleging, among other things, age discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. Summary disposition was granted in favor of defendant in that case in an unpublished opinion issued February 24, 1992 (Docket No. 91-CV-60024-AA). In May 1992, plaintiff interviewed with Scott Cullen, operations manager for Neiman Marcus, for the position of alterations manager at the Troy Neiman Marcus store. Plaintiff claimed that during the interview he explained the circumstances surrounding his discharge from Lord & Taylor and that Cullen told him that the discharge would have no effect on the hiring decision made by Neiman Marcus. Thereafter, in the summer of 1992, Gary Manson, director of security for Neiman Marcus, called Craig Cunningham, who was vice president of loss prevention for Lord & Taylor, and requested information regarding plaintiffs discharge. Manson indicated that Cunningham told him that plaintiff was terminated for cause for giving away alterations and for bringing in outside work and having it performed by defendant’s tailors, and that plaintiff had personally benefited from the work performed. Manson stated in an affidavit that he decided not to hire plaintiff because of the discrepancies between plaintiff’s explanation and Cunningham’s explanation of the reasons for plaintiff’s discharge. On the other hand, Cunningham claimed that he provided Manson no information regarding the circumstances surrounding plaintiffs discharge. Subsequently, plaintiff filed the instant lawsuit claiming that the alleged negative reference given by Cunningham to Manson was in retaliation for the age discrimination lawsuit plaintiff previously had filed against defendant in the federal court. Plaintiff also claimed that the remarks made by Cunningham to Manson were defamatory in nature. Subsequently, defendant moved for and was granted summary disposition. On appeal, plaintiff contends that the trial court erred in granting defendant summary disposition. Summary disposition was granted in favor of defendant pursuant to MCR 2.116(C)(10) on the basis that plaintiff had failed to present credible evidence “to establish the existence of the disputed material facts.” This Court reviews de novo the trial court’s order under MCR 2.116(C)(10). Michigan Mutual Ins Co v Dowell, 204 Mich App 81, 85-86; 514 NW2d 185 (1994). When conducting this review, we examine the entire record in a light most favorable to the nonmoving party to determine whether a record could be developed that would leave open an issue on which reasonable minds could differ. Id. Giving the nonmoving party the benefit of reasonable doubt, “[t]he trial court must review the record evidence, make all reasonable inferences therefrom, and determine whether a genuine issue of material fact exists . . . .” Bertrand v Alan Ford, Inc, 449 Mich 606, 617-618; 537 NW2d 185 (1995). Summary disposition is proper where no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Id. However, a court may not weigh the evidence before it or make findings of fact; if the evidence before it is conflicting, summary disposition is improper. Barnell v Taubman Co, Inc, 203 Mich App 110, 115; 512 NW2d 13 (1993). We first address the merits of the trial court’s ruling regarding plaintiff’s claim of unlawful retaliation based on the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. We find the trial court improperly granted summary disposition of this claim. Section 701 of the Civil Rights Act, MCL 37.2701; MSA 3.548(701) reads in relevant part as follows: Two or more persons shall not conspire to, or a person shall not: (a) Retaliate or discriminate against a person because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act. To establish a prima facie case of unlawful retaliation under the Civil Rights Act, a plaintiff must show (1) that he engaged in a protected activity; (2) that this was known by the defendant; (3) that the defendant took an employment action adverse to the plaintiff; and (4) that there was a causal connection between the protected activity and the adverse employment action. Polk v Yellow Freight System, Inc, 876 F2d 527, 531 (CA 6, 1989); see also Booker v Brown & Williamson Tobacco Co, Inc, 879 F2d 1304, 1310 (CA 6, 1989); Kroll v Disney Store, Inc, 899 F Supp 344, 348 (ED Mich, 1995). Before considering plaintiff’s contention that he established a prima facie case of retaliation, we must first determine whether the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) el seq., protects the activities of former employees like plaintiff. Plaintiff claims that former employees may sue for retaliation under the Civil Rights Act. Conversely, defendant asserts that Cunningham’s alleged negative reference to Manson could not have been unlawful retaliation under the Civil Rights Act because plaintiff was no longer employed by defendant at the time of the negative reference. Whether a former -employee may bring an action for unlawful retaliation under the Civil Rights Act is a question of first impression in Michigan. However, the United States Supreme Court, in Robinson v Shell Oil Co, 519 US_; 117 S Ct 843; 136 L Ed 2d 808 (1997), recently held that § 704(a) of title VII of the Civil Rights Act of 1964 protects former employees from retaliation by a former employer. While this Court is not bound by federal precedent based on title VII, those precedents analogous to questions presented under the Civil Rights Act are highly persuasive and will be considered by this Court. McCalla v Ellis, 180 Mich App 372, 377-378; 446 NW2d 904 (1989). Section 704(a) of title VII makes it unlawful “for an employer to discriminate against any of his employees or applicants for employment” who have either availed themselves of the protections of title VII or assisted others in doing so. 78 Stat 257, as amended, 42 USC 2000e-3(a). The Robinson Court determined that the term “employees” as used in § 704(a) included former employees so that the petitioner could bring suit against his former employer for post-employment actions allegedly taken in retaliation for the petitioner’s having filed a charge with the Equal Employment Opportunity Commission (eeoc): Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and “the statutory scheme is coherent and consistent.” The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole. In this case, consideration of those factors leads us to conclude that the term “employees,” as used in § 704(a), is ambiguous as to whether it excludes former employees. At first blush, the term “employees” in § 704(a) would seem to refer to those having an existing employment relationship with the employer in question. This initial impression, however, does not withstand scrutiny in the context of § 704(a). First, there is no temporal qualifier in the statute such as would make plain that § 704(a) protects only persons still employed at the time of the retaliation. That the statute could have expressly included the phrase “former employees” does not aid our inquiry. Congress also could have used the phrase “current employees.” But nowhere in Title VII is either phrase used — even where the specific context otherwise makes clear an intent to cover current or former employees. . . . Second, Title VII’s definition of “employee” likewise lacks any temporal qualifier and is consistent with either current or past employment. . . . Third, a number of other provisions in Title VII use the term “employees” to mean something more inclusive or different than “current employees.” For example, §§ 706(g)(1) and 717(b) both authorize affirmative remedial action . . . “which may include . . . reinstatement or hiring of employees.” 42 USC §§ 2000e-5(g)(l) and 2000e-16(b). As petitioner notes, because one does not “reinstate]” current employees, that language necessarily refers to former employees. Likewise, one may hire individuals to be employees, but one does not typically hire persons who already are employees. * * * Of course, there are sections of Title VII where, in context, use of the term “employee” refers unambiguously to a current employee, for example those sections addressing salary or promotions. . . . Once it is established that the term “employees” includes former employees in some sections, but not in others, the term standing alone is necessarily ambiguous and each section must be analyzed to determine whether the context gives the term a further meaning that would resolve the issue in dispute. Finding that the term “employees” in § 704(a) is ambiguous, we are left to resolve that ambiguity. The broader context provided by other sections of the statute provides considerable assistance in this regard. As noted above, several sections of the statute plainly contemplate that former employees will make use of the remedial mechanisms of Title VII. Indeed, § 703(a) expressly includes discriminatory “discharge” as one of the unlawful employment practices against which Title VII is directed. 42 USC § 2000e-2(a). Insofar as § 704(a) expressly protects employees from retaliation for filing a “charge” under Title VII, and a charge under § 703(a) alleging unlawful discharge would necessarily be brought by a former employee, it is far more consistent to include former employees within the scope of “employees” protected by § 704(a). In further support of this view, petitioner argues that the word “employees” includes former employees because to hold otherwise would effectively vitiate much of the protection afforded by § 704(a). . . . * * * We hold that the term “employees,” as used in § 704(a) of Title VII, is ambiguous as to whether it includes former employees. It being more consistent with the broader context of Title VII and the primary purpose of § 704(a), we hold that former employees are included within § 704(a)’s coverage. [Robinson, supra, 136 L Ed 2d 813-817 (citations omitted).] While we note that § 704(a) of title VII refers to discrimination against “employees” and the analagous provision of the Civil Rights Act, MCL 37.2701; MSA 3.548(701) (hereinafter referred to as § 701), refers to retaliation or discrimination against a “person,” indicating that perhaps § 701 provides broader protection than § 704(a) of title VII, we find persuasive and adopt the reasoning set forth in Robinson and hold that § 701 of the Civil Rights Act protects former as well as current employees. Section 701 “clearly tracks” § 704(a) of title VII, Booker, supra, p 1312, and we believe that it should be construed in the same manner. Moreover, such an interpretation furthers the overall purpose of the Civil Rights Act, to prevent discrimination directed against a person because of that person’s membership in a certain class and to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases, Radtke v Everett, 442 Mich 368, 379; 501 NW2d 155 (1993); Noecker v Dep’t of Corrections, 203 Mich App 43, 46; 512 NW2d 44 (1993), and furthers the specific purpose of § 701, to protect access to the machinery available to seek redress for civil rights violations and to protect operation of that machinery once it has been engaged, Booker, supra. Having established that plaintiff, a former employee, is entitled to bring an action for unlawful retaliation under § 701 of the Civil Rights Act, we now find that plaintiff established a genuine issue of material fact regarding the existence of a prima facie case of unlawful retaliation, and summary disposition pursuant to MCR 2.116(C)(10) was therefore improper. Plaintiff, by filing the age discrimination action against defendant, was engaged in an activity protected under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. Moreover, defendant, a party to the age discrimination lawsuit, obviously knew that plaintiff had filed the age discrimination action. Next, plaintiff presented evidence to indicate that defendant took an adverse employment action against plaintiff that resulted in plaintiff losing the opportunity to work for Neiman Marcus. Gary Manson, Neiman Marcus’ director of security, testified during his deposition that Craig Cunningham, defendant’s vice president of loss prevention, informed him that plaintiff had been terminated for giving away alterations and for bringing in outside work, having it performed by defendant’s tailors, and personally benefiting from the work performed. In his affidavit, Manson averred that he decided not to hire plaintiff because of the discrepancies between plaintiffs version of the reasons he was fired and Cunningham’s version of the reasons plaintiff was fired. Cunningham, on the other hand, stated in his affidavit that he did not provide Manson with any information regarding the discharge and that it would be a violation of store policy to reveal the reasons for an employee’s discharge. Where, as here, the evidence is conflicting with regard to an element of plaintiff’s prima facie case, summary disposition is improper. Bamell, supra, p 115. Lastly, we believe that plaintiff presented some evidence that there was a causal connection between the protected activity, the age discrimination lawsuit, and the adverse employment action, Cunningham’s negative reference to Manson resulting in plaintiff losing the opportunity to work for Neiman Marcus. The age discrimination lawsuit was pending at the time Cunningham made his disparaging remarks to Manson. While plaintiff admitted that he performed alterations for defendant’s executives free of charge, he denied bringing in outside work and personally profiting from the performance of that work, and defendant presented no evidence to indicate that plaintiff had done so. Moreover, evidence was presented that indicated that Cunningham’s remarks were made in violation of store policy, an indication that perhaps there was a retaliatory motive behind the remarks. We believe it could be inferred from the evidence presented that Cunningham made the complained-of remarks in order to retaliate against plaintiff for his age discrimination lawsuit. If that was the purpose of the remarks, they had the desired effect. Manson acknowledged in his affidavit that he decided not to hire plaintiff after hearing Cunningham’s version of the reasons plaintiff was fired. Notes prepared by Manson immediately after his telephone conversation with Cunningham indicate that plaintiff was “rejected for hire” by Neiman Marcus as a result of the information supplied to Manson by Cunningham. In conclusion, we believe that plaintiff presented a prima facie case of unlawful retaliation. The trial court therefore erred in granting summary disposition in favor of defendant with regard to this claim. Next, we address the merits of plaintiffs’ defamation claim. We conclude that the trial court also erred in granting summary disposition of this claim. The elements of a defamation claim are (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged communication to a third party, (3) fault amounting to at least negligence on the part of the publisher, and (4) either actionability of the state-merit irrespective of special harm or the existence of special harm caused by publication. Northland Wheels Roller Skating Center, Inc v Detroit Free Press, Inc, 213 Mich App 317, 323; 539 NW2d 774 (1995). Plaintiff contends that defendant defamed him when Cunningham told Manson that plaintiff had been terminated for cause for giving away alterations and that plaintiff had “personally benefited from the work.” Specifically, plaintiff points to the following portion of Manson’s deposition testimony: Mr. Cunning

Alan J. Labonte vs. Hutchins & Wheeler. Suffolk. October 7, 1996. May 5, 1997. Present: Wilkins, C.J., Abrams, O’Connor, & Fried, JJ. Anti-Discrimination Law, Handicap, Termination of employment. Estoppel. Employment, Discrimination, Termination. Damages, Emotional distress, Punitive. Words, “Qualified handicapped person.” In an action asserting a claim based on handicap discrimination in employment, the plaintiff was not estopped from pursuing that claim because he applied for and received disability benefits after being terminated from his employment, where the plaintiff never claimed to have been totally disabled during the time he was seeking a reasonable accommodation and where he demonstrated that he was quite able to perform his duties had he been given a reasonable accommodation. [816-820] In a handicap discrimination case, the evidence presented supported the conclusion that the plaintiff was a qualified handicapped person, able to perform the essential functions of his job provided his employer made a reasonable accommodation for him, and the evidence was sufficient to warrant the denial of the employer’s motion for judgment notwithstanding the verdict. [820-823] In a handicap discrimination case, the jury reasonably could have concluded that the evidence of depression the plaintiff suffered as a result of his termination from employment was sufficient to warrant an award of damages for emotional distress [823-824]; however, the award was excessive based on the evidence presented and the matter was remanded for a hearing on the amount of a remittitur [824-826], A handicap discrimination case was remanded for reconsideration of the punitive damages award in light of BMW of N. Am. v. Gore, 517 U.S. 559 (1996), decided after the trial and the hearing on the motion for new trial. [826-827] Civil action commenced in the Superior Court Department on September 11, 1992. The case was tried before Catherine A. White, J. The Supreme Judicial Court granted an application for direct appellate review. Richard W. Renehan (Joshua M. Davis with him) for the defendant. David Rapaport (Jerry E. Benezra with him) for the plaintiff. Tames G. Wheeler and others, copartners doing business under the law firm name and style of Hutchins & Wheeler. We shall refer to a single defendant (law firm). Abrams, J. The defendant, the law firm of Hutchins & Wheeler (law firm), appeals from a jury verdict in favor of the plaintiff, Alan J. Labonte, based on handicap discrimination. See G. L. c. 15 IB, § 4. The law firm argues that: (1) the plaintiff is estopped from pursuing his claim because he sought disability benefits; (2) the evidence was insufficient to withstand a motion for directed verdict; and (3) the judge erred in denying its motion for remittitur or a new trial based on excessive damages. We allowed the law firm’s application for direct appellate review. We affirm the determination of liability. We remand the case to the Superior Court for further proceedings on the issue of damages. 1. Facts. In June, 1990, the plaintiff, Alan J. Labonte, was hired as the executive director of the law firm. When hired, he was informed that his job would have a “continuously high” stress level. He was told that he would be required to perform many functions, although the exact functions never were incorporated explicitly into a written job description. At the job interview the law firm implied that the hours would be long. The plaintiff was to receive $115,000 per year for his services. The plaintiff, a Greenfield resident, took up residence in an apartment near the law firm. His family remained in Greenfield. The plaintiff stayed in Boston during the week and traveled to Greenfield on weekends to be with his family. After a year, the plaintiff bought a home in the Boston area so that his family could be with him. Various partners of the law firm knew of and assisted with the mechanics of the purchase of the home and none dissuaded him from making the purchase or gave any indication that his job was in jeopardy. During the first year, the plaintiff created a timekeeping system that saved the law firm $13,000 per month, arranged for a better life insurance package for the attorneys, rearranged leasing agreements to save rental payments of $43,000, lowered client disbursement costs by $200,000, and devised a system to cut overtime expenses to save $40,000. In June, 1991, the plaintiff received an evaluation stating that the partners were “very satisfied” with the work that he was doing. The plaintiff received a raise of $4,600 a year. Approximately one year after starting at the law firm, the plaintiff developed a limp. A partner at the law firm suggested that he visit a doctor who was a client of the law firm. The plaintiff did so. The plaintiff learned that he had multiple sclerosis. He was referred to a neurologist, who specialized in the disease. After learning that the plaintiff had multiple sclerosis, the partners on the management committee began to shun him. Despite a request to do so by the plaintiff, the partners never communicated with the specialist to determine what measures could be taken to accommodate the plaintiff in light of his condition. The only effort made was to meet over lunch on one occasion with the plaintiff’s referring doctor. The doctor told them to limit the amount of walking that the plaintiff would be required to do. He also stated that the plaintiff might need to rest during the day. The plaintiff continued to work long hours, including taking on additional tasks assigned by the partners such as leading a search committee for a replacement for an employee who had left. The partners at the law firm made no effort to move the plaintiff’s office or to limit his need for walking. On one occasion, one partner did tell the plaintiff that he should go home if he was tired so that he would not wear himself out and then be ineffective. The partners continued to maintain a heavy work load for the plaintiff, and also pressured him to cancel a personal trip to Florida that he had planned in December, 1991. In January, 1992, the plaintiff was terminated by the law firm. With the exception of the one lunch meeting with the referring doctor, the partners never met with any of the plaintiff’s doctors or the plaintiff himself prior to his termination to discuss whether reasonable accommodation to assist the plaintiff was possible. The reason given for his termination was poor work performance due to his disability. The law firm claimed that the plaintiff’s thinking was not as “crisp” as it needed to be. After being terminated, the plaintiff applied for and received disability benefits from a law firm insurance policy, stating that he was “unable to work long hours in a stressful job; [and] need[ed a] flexible work schedule.” As a result of being terminated, the plaintiff became very depressed and sought therapy. Soon after his termination, he began consulting for a hospital in the greater Boston area. By the fall of 1993, the plaintiff was enrolled in a doctoral program at Boston University, taking classes and teaching. 2. Estoppel. The law firm claims that the plaintiff is estopped from pursuing this discrimination claim because he sought disability benefits after being terminated by the law firm. The law firm asserts that a plaintiff claiming disability benefits admits that he is totally disabled and is unable to perform his job. Therefore, the plaintiff is not a “qualified handicapped person.” A majority of courts have rejected a defendant’s claim that seeking benefits automatically disqualifies a plaintiff from pursuing a handicap discrimination claim. Courts are wary of allowing plaintiffs to play “fast and loose with the courts” by claiming to be too disabled to perform the functions of a job and also claiming that they were terminated from their positions despite being able to perform those same functions. See McNemar v. Disney Store, Inc., 91 F.3d 610, 618 (3d Cir. 1996), cert denied, 117 S. Ct. 958 (1997). However, if the evidence creates a disputed issue of fact whether the handicapped person can perform the essential functions of the job, then estoppel is not appropriate. See Pegues v. Emerson Elec. Co., 913 F. Supp. 976, 980-981 (N.D. Miss. 1996) (application for disability benefits does not “necessarily foreclose” a claim of handicap discrimination); Parisi v. Jenkins, 236 Ill. App. 3d 42 (1992); Department of Transp. v. Grawe, 113 Ill. App. 3d 336 (1983); Jishi v. General Motors Corp., 207 Mich. App. 429 (1994); Paschke v. Retool Indus., 445 Mich. 502 (1994) . Only one court has explicitly adopted a strict rule maintaining that a person filing for disability benefits is estopped from pursuing any claim for discrimination, solely because that person sought and received disability benefits. See Garcia-Paz v. Swift Textiles, Inc., 873 F. Supp. 547, 557 (D. Kan. 1995). Other “courts [applying estoppel] did not find it dispositive that the plaintiff had made representations of disability in order to receive benefits. Rather, some of the courts considered such representations as factors to be weighed in determining whether a fact question existed.” Morton v. GTE North, Inc., 922 F. Supp. 1169, 1182 (N.D. Tex. 1996) (rejecting the notion that cases other than Garcia-Paz, supra, apply estoppel based solely on a claim for disability benefits). Relying on Beal v. Selectmen of Hingham, 419 Mass. 535 (1995) , and August v. Offices Unlimited, Inc., 981 F.2d 576 (1st Cir. 1992), the law firm asserts that the plaintiff should be estopped from pursuing this action. We do not agree. In Beal, a police officer was on paid disability leave for two years after suffering severe injuries sustained in a head-on automobile collision while on duty. When ordered to return to duty, the officer claimed that she was “permanently and totally disabled.” Beal, supra at 543. The officer was terminated and thereafter claimed handicap discrimination. Id. at 537. We concluded that her declaration of total disability on being asked to return to work was proof that she could not have performed the essential functions of the position. Id. at 539-543. We also noted that a police officer’s job, even a desk job, necessitated the ability to react quickly in emergency situations and that the plaintiff’s propensity to blackouts in stressful situations made her unable to perform the essential functions of the job. Id. at 542-543. These factors together eliminated any dispute as to whether the plaintiff could perform the essential functions of the job. Similarly, in August, the plaintiff, a salesman, had taken a continuous leave of absence due to clinical depression. His six-week leave began on March 27, 1989, and was later extended an additional two weeks to end on May 22, 1989. At a May 11 meeting, August expressed his concern over his ability to perform on a full-time basis and was told that a part-time schedule was inappropriate. Unsure of his ability to return to work, the plaintiff filed for disability benefits on May 12, 1989. August, supra at 578-579. On May 25, 1989, August was terminated because “it [was] certainly unclear when and if [August would] be able to return to work.” Id. at 579. He sought and received disability benefits for the rest of the year and renewed his claim in December, 1989; February, 1990; April, 1990; and June, 1990, on the basis that he was totally and continuously disabled. The application for benefits included a statement from the plaintiff’s doctor that the plaintiff had been “totally disabled” since March, 1989. August brought suit claiming handicap discrimination. The court denied August relief because it stated that his declaration that he was “totally disabled” was an admission that he was unable to perform the essential functions of the job, even given reasonable accommodation. Id. at 581-583. He failed to provide evidence that he could perform the essential functions of the job given reasonable accommodation. Id. Thus, when the request for accommodations was made, August already had admitted to being “totally disabled” and not a qualified handicapped person. The plaintiff points to D’Aprile v. Fleet Servs. Corp., 92 F.3d 1 (1st Cir. 1996), as the analysis we should follow because it is the closest to his case. We agree. D’Aprile, a senior systems support analyst with multiple sclerosis, worked for two months on a flexible part-time schedule, using her vacation time to create a de facto accommodation. The plaintiff performed the essential functions of her job at a high level when allowed to use this schedule. When her vacation time elapsed, the employer denied her the opportunity to maintain the flexible schedule. She was terminated because she could not work a full-time weekly schedule and immediately filed for disability benefits. The employer argued that, based on the authority of August, the filing for disability benefits precluded the plaintiff from suing on the basis of handicap discrimination. The court disagreed. The court noted that D’Aprile never claimed to be totally disabled during the time in which she requested her accommodation. D’Aprile, supra at 4. Her application for disability benefits came only after her requests for accommodation were ignored. Unlike August, who had claimed “total disability” while seeking accommodation, D’Aprile did not seek disability benefits until after she had been terminated. Therefore, the court reasoned that, because “D’Aprile never claimed to have been totally disabled during the time she requested her accommodation, and demonstrated her ability to work with the accommodation she requested,” the mere fact that she sought disability benefits did not preclude her from bringing a claim of handicap discrimination. Id. at 5. The law firm asserts that “neither [the plaintiff] nor his doctors ever qualified their numerous statements to [the insurer].” This assertion is incorrect. On the form on which the plaintiff filed his claim for benefits, he stated that he was in need of a flexible work schedule. This request for accommodation, never considered by the law firm, was evidence that the plaintiff was not claiming to be totally disabled. See Ward v. Westvaco Corp., 859 F. Supp. 608, 615 (D. Mass. 1994) (plaintiff’s statement on an application for disability benefits indicating that accommodation was necessary made estoppel inappropriate). Further, unlike August where no disputed factual issue existed as to whether the plaintiff was a “qualified handicapped person” based on a claim of total disability, the case at bar presented a contestable claim based on disputed issues of fact. In sum, there was evidence to show that the plaintiff was capable of working a fifty-five hour week when allowed to utilize a flexible schedule and when his expected amount of walking was limited. He did so at Boston University after being terminated by the law firm. The person who filled his job at the law firm before and after the plaintiff devoted less time to the functions of the position of executive director than the plaintiff devotes to his current position. There was evidence that the plaintiff could have handled the time requirements necessary to perform the essential functions. The plaintiff’s evidence was that he was disabled to perform the job without reasonable accommodation, but quite able to perform the job given some reasonable accommodation. The plaintiff sought an office near the elevators and flexible working hours. In these circumstances, estoppel is inappropriate. See, e.g., D’Aprile, supra at 4-5; Mohamed v. Marriott Int’l, Inc., 944 F. Supp. 277 (S.D.N.Y. 1996). We conclude that the judge did not err in denying the law firm’s claim that the plaintiff was estopped from pursuing a claim under G. L. c. 151B, § 4, by filing for disability benefits. 3. Sufficiency of evidence. The jury concluded that the law firm terminated the plaintiff, a qualified handicapped person, solely because of his handicap. We start with the proposition that taking the question out of the jury’s hands is disfavored in the context of discrimination cases based on disparate treatment because the ultimate issue is often that of intent, and is a factual question. Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437 (1995), citing Brunner v. Stone & Webster Eng’g Corp., 413 Mass. 698, 705 (1992). See Flesner v. Technical Communication Corp., 410 Mass. 805, 809 (1991) (“where motive, intent, or other state of mind questions are at issue, summary judgment is often inappropriate”). Noting this preference for submitting the question to the jury, when we review the entry of a judgment notwithstanding the verdict, we view the evidence in the light most favorable to the plaintiff and disregard evidence favorable to the law firm. Cimino v. Milford Keg, Inc., 385 Mass. 323, 326 (1982); Poirier v. Plymouth, 374 Mass. 206, 212 (1978). A jury verdict must be sustained if a plaintiff has presented any evidence from which the jury reasonably could have arrived at that verdict. 4. Three-stage order of proof in discrimination cases. General Laws c. 151B, § 4, provides in relevant part: “It shall be an unlawful practice . . . [f]or any employer, personally or through an agent, to dismiss from employment ... or otherwise discriminate against, because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer’s business.” In disparate treatment cases, there is a three-stage order of proof, Blare, supra at 440-445, adopted from the approach taken by the Federal courts based on an analogous statute. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). In the first stage, the burden is placed on the plaintiff to show by a preponderance of the evidence a prima facie case of discrimination. Blare, supra at 440-445. Massachusetts has adopted a flexible approach to this framework, acknowledging that “the facts necessary to establish prima facie case of discrimination will vary depending on [the] situation.” Beal v. Selectmen of Hingham, 419 Mass. 535, 544 (1995). To establish the prima facie case of unlawful employment discrimination on the basis of handicap pursuant to G. L. c. 151B, a plaintiff who has been terminated from employment must show that: (1) he suffers from a handicap; (2) he is a “qualified handicapped person”; and (3) he was fired solely because of his handicap. Garrity v. United Airlines, Inc., 421 Mass. 55, 60 (1995); Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 383 (1993). Once a prima facie case is made, the burden shifts to the law firm to offer a legitimate nondiscriminatory reason for its action. A plaintiff could still prevail by showing that the reason given by the employer is merely a pretext for discrimination. The law firm consolidates the steps by offering that its reason for termination was that the plaintiff’s disability made him unable to perform the essential functions of the job. A “qualified handicapped person” is someone who can perform the “essential functions” of the job in question, provided that the employer makes “reasonable accommodation” for that employee. See School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 n.17 (1987); Garrity, supra at 61-62. The law firm argues that the plaintiff is not a “qualified handicapped person.” While the law firm presented some evidence to the contrary, the evidence and the inferences in the light most favorable to the plaintiff support the conclusion that the plaintiff could perform the essential functions of the job with reasonable accommodation. No official job description for the position of executive director was offered in evidence. The la

MEAGHER v WAYNE STATE UNIVERSITY Docket Nos. 177139, 183282. Submitted September 3, 1996, at Detroit. Decided April 15, 1997, at 9:00 A.M. Leave to appeal sought. Suzanne Meagher brought an action in the Wayne Circuit Court against Wayne State University and several university employees, individually and as agents of the university, alleging age discrimination under the Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq., and violation of due process under 42 USC 1983, after her employment as a research assistant supervising graduate students was terminated and a younger person was hired to replace her. The court, William Leo Cahalan, J., denied a motion by the defendants for summary disposition of the due process claim. Judge Robert L. Ziolkowski succeeded Judge Cahalan and granted the defendants summary disposition of the due process claim, ruling that the written contract of employment' had provided for employment that was terminable at will, and directed a jury verdict of no cause of action on the age discrimination claim, ruling that age had not been a factor in the decision to terminate employment. The court also awarded the defendants costs and attorney fees pursuant to MCL 600.2591(3)(a); MSA 27A.2591(3)(a), finding that the plaintiff’s due process claim and the claim against three individual defendants had been frivolous. The plaintiff filed two appeals, and the defendants cross appealed. The appeals were consolidated. The Court of Appeals held,-. 1. The trial court did not err in directing a verdict of no cause of action with respect to the age discrimination claim. Although the plaintiff established a prima facie case of age discrimination by presenting evidence of membership in the protected .class, discharge, qualification for the position, and replacement by a younger person, the plaintiff failed to prove by a preponderance of the evidence that the legitimate nondiscriminatoiy reasons for termination (poor supervision of a graduate student and poor handling of a research case) offered by the defendants were a mere pretext. The plaintiff failed to establish a prima facie case of disparate treatment because she did not show sufficiently that she was treated differently from employees of a different class for the same or similar conduct. With regard to the plaintiff’s claim on appeal that the trial court improperly used the reduction in force standard to determine whether the plaintiff had been discharged on the basis of her age, the trial court granted a directed verdict because it found no evidence that age was a factor in the decision to discharge, not because the plaintiff failed to make the additional proofs required in a case involving a reduction in work force. 2. The original judge’s denial of the defendants’ motion for summary disposition of the due process claim was not dispositive of the issue because the successor judge, under MCR 2.604, had the power to modify any order entered before the final judgment. The successor judge correctly granted summary disposition of the due process claim on the ground that employment had been terminable at will under the terms of the written employment contract. A public employee does not have a property right in continued employment where, as here, the position is held at the will of the employee’s superiors and the employee has not been promised termination only for cause. 3. The plaintiff failed to preserve for appellate review the claim that certain records were improperly admitted into evidence under the hearsay exception for business records by not objecting at trial on the ground asserted on appeal. 4. The plaintiff’s claim that the chief judge of the circuit court abused his discretion in upholding the trial judge’s denial of the plaintiff’s motion for disqualification of the trial judge cannot be considered because the plaintiff failed to provide a transcript of the chief judge’s ruling. No error is apparent from the record of the trial judge’s ruling on the motion, and disqualification for due process is not supported by evidence of a probability of actual bias that was too high to be tolerable under the Due Process Clause'of the constitution. 5. The record does not support the plaintiff’s claim that the trial judge was biased against her. 6. The trial court did not clearly, err in finding that the plaintiff’s due process claim and claim against three individual defendants were devoid of arguable legal merit so as to justify an award of costs and attorney fees to the defendants under MCL 600.2591(3)(a); MSA 27A.2591(3)(a). The trial court’s finding with respect to the due process claim is not clearly erroneous in light of the plaintiff’s written contract of employment providing for termination at will, and the finding with respect to the individual defendants is not clearly erroneous in the absence of a showing by the plaintiff of any factual or legal basis for the claims against those defendants. 7. The trial court did not have to await the 'outcome of the plaintiffs appeal of the grant of a directed verdict before granting the defendants’ motion for costs and attorney fees. The defendants won on the entire record at trial and therefore were the prevailing party for purposes of MCL 600.2591; MSA 27A.2591. 8. The plaintiff’s appeal with regard to the due process claim was vexatious within the meaning of MCR 7.216(C)(1)(b) because the plaintiff’s appellate brief violated court rules in exceeding the fifty-page limit on briefs and grossly disregarded the requirement of a fair presentation of the claim to this Court. The case must be remanded for an award to the defendants under MCR 7.216(C)(2) of their actual damages- and expenses, including reasonable attorney fees incurred in defending against the plaintiff’s appeal of the dismissal of the due process claim. Affirmed and remanded. 1. Motions and Orders — Directed Verdicts — Appeal. A grant or denial of a motion for a directed verdict is reviewed de novo on appeal; the evidence is considered in the light most favorable to the nonmoving party; a directed verdict is appropriate only when no factual question exists upon which reasonable minds may differ. 2. Civil Rights Employment Discrimination — Age — Intentional Discrimination — Disparate Treatment. Intentional discrimination and disparate treatment in employment involve the same theory of discrimination but different methods of proof (MCL 37.2202[l][a]; MSA 3.548[202][l][a]). 3. Civil Rights — Employment Discrimination — Age — Discharge. A prima facie case and rebuttable presumption of age discrimination with respect to termination of employment is established by a plaintiff who shows that the plaintiff is a member of the protected class, was discharged, was qualified for the position, and was replaced by a younger person; once a prima facie case is made, the defendant must produce evidence of a legitimate, nondiscriminatory reason for termination; if the' defendant produces such evidence, the plaintiff must prove by a preponderance of the evidence that the reason offered by the defendant is a mere pretext (MCL 37.2202[l][a]; MSA 3.548[202][l][a]). 4. Master and Servant — Public Employment — Property Interest — Due Process. A public employee does not have a property interest in continued employment, and therefore does not have a cognizable claim under 42 USC 1983 upon termination of employment for deprivation of property without due process, where the position is held at the will of the employee’s superiors and the employee has not been promised termination only for just cause. 5. Costs — Attorney Fees — Frivolous Claims. A claim is frivolous and a trial court may tax costs on the claimant to reimburse the prevailing party for costs incurred in litigation where the claimant’s primary purpose in initiating the action or asserting a defense was to harass, embarrass, or injure the prevailing party, the claimant had no reasonable basis to believe that the underlying facts were true, or the claimant’s position was devoid of arguable legal merit; a trial court need not await the outcome of a claimant’s appeal before awarding costs and attorney fees to a prevailing party (MCL 600.2591[3][a]; MSA 27A.2591[3][a]). Mary Anne M. Helveston, for the plaintiff. . Einheuser and Associates (by Michael Einheuser and Jonathan A. Green), for the defendants. Before: Young, P.J., and Taylor and R. C. Livo, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Taylor, J. This case arises out of the termination of plaintiffs employment at Wayne State University in 1991. In Docket No. 177139, plaintiff appeals as of right from a judgment of no cause of action resulting from a directed verdict, granted after a jury heard nine days of proofs, on her age discrimination claim, and the trial court’s pretrial grant of summary disposition of her due process claim under 42 USC 1983. Defendants have filed a cross appeal, but limit their arguments to plaintiff’s issues. In Docket No. 183282, plaintiff appeals as of right from the trial court’s post-trial order awarding costs and attorney fees pursuant to MCL 600.2591; MSA 27A.2591. We affirm and remand for imposition of sanctions pursuant to MCR 7.216(C) (vexatious appeal). i Plaintiff commenced this action on July 1, 1992, seeking damages and reinstatement to her former position as a research assistant for the Parents and Children Together (pact) Project in the Department of Sociology of the College of Liberal Arts at Wayne State University. Pact is funded pursuant to a contract between the university and the former Department of Social Services (dss). Pact studies families (e.g., the characteristics of families having children in foster care) and provides services to families referred by the dss. Pact’s goal was to return children to families, although, in some cases, the children stayed in the family home rather than in foster care when the family was referred by the dss to pact. Graduate students are hired by pact to serve as caseworkers for its in-home project for those families referred by the dss to pact. In addition to providing services, the graduate students were required to file regular reports on their assigned families. Mary Jane Van Meter was the principal investigator for pact at the time of plaintiff’s discharge. Van Meter was ultimately responsible for everything that happened in pact. Although Van Meter - supervised the pact research, there were several levels of supervision between Van Meter and the graduate students who were employed by PACT as caseworkers. As a research assistant in pact, plaintiff was one of the direct súpervisors of the graduate students. Plaintiff started working at PACT in 1977. For each of her fourteen years of employment, plaintiff executed written contracts setting forth the terms of her appointment as a research assistant. The contract language was modified over the years as new contracts were executed. The last contract executed by plaintiff specified: [R]enewal is to begin on.October 1, 1990. This is a non-tenure track assignment and carries no presumption of cpn.tinuing tenure. This renewal is subject to the pleasure of. the President or his/her designee and contingent on the availability of funding... . The terms of this agreement may not be modified or altered by any oral statements or representations. This agreement may only be modified in writing, signed by a University official as authorized by Executive Order 85-1. . . . The continuation of the assignment is dependent upon your satisfactory performance and upon continuation of funding. Plaintiff was discharged by Van Meter in May of 1991. Van Meter, who indicated that she was older than plaintiff, cited plaintiffs inadequate handling of a case in the in-home project (hereafter referred to as the Doe case) as grounds for the termination. The Doe case was being serviced by a graduate student subject to plaintiffs direct supervision. The Doe case was referred by the dss to pact on February 28, 1991. A graduate student was then assigned to provide in-home services for the family, which had one child residing outside the home as a temporary ward of the court and other children residing in the home with the mother. Among the stated goals set forth in the referral document was one to “improve mother’s parenting skills and discipline technique. Help entire family deal with issues around sexual abuse. Help to become more - secure when returning home transition.” It was undisputed that the graduate student assigned to the Doe case was experiencing personal difficulties during May of 1991, which, according to plaintiff’s own trial testimony, could probably be described as burnout. There was also trial evidence presented by the defense that information was acquired during pact’s handling of the case that should have been reported to the dss so that an investigation could be made by the DSS regarding whether children in the home were at risk for sexual abuse. On May 16, 1991, Van Meter was confronted by the mother in the Doe case about one of her daughters running away and Van Meter discussed this matter with the plaintiff. On May 21, 1991, Van Meter informed plaintiff that her employment was being terminated. After plaintiff was discharged, other supervisors of PACT shared plaintiff’s former responsibilities. Plaintiff, who was forty-eight years old, was temporarily replaced with an individual of similar age. Finally, after posting and rewriting the qualifications for the position to require that the applicant have a master’s degree in social work, a person significantly younger than the plaintiff was hired to permanently replace plaintiff. Plaintiff’s amended complaint alleged age discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and' denial of due process under 42 USC 1983. The complaint named Wayne State University and four individual defendants: David Adamany in his individual capacity and as president of Wayne State University; John Oliver in his individual capacity and as dean of the College of Liberal Arts; David Britt in his individual' capacity and as the chairperson of the Department of Sociology; and Van Meter in her individual capacity and as an associate professor of sociology and principal investigator for PACT. In ruling on pretrial motions, the court determined that the due process claim should be dismissed because plaintiff’s employment was terminable at will. The case proceeded to trial solely on plaintiff’s age discrimination claim. n Defendants moved for a directed verdict at the close of plaintiff’s proofs. The court took the matter under advisement. After the close of defendants’ proofs, the court granted a directed verdict in favor of defendants because there was no evidence that age was a factor in the decision to terminate plaintiff’s employment. Plaintiff first contends that the trial court erred in granting a directed verdict on her age discrimination claim. Plaintiff asserts that the trial court applied the wrong standard when directing a verdict against her by utilizing a “reduction in force” standard. We find no error. At the outset, we note some conflict in the case law regarding the standard of review that we are to apply. One line of authority holds that we should review a trial court’s granting of a directed verdict under the deferential “abuse of discretion” standard. See, e.g., Rasmussen v Louisville Ladder Co, Inc, 211 Mich App 541, 545; 536 NW2d 221 (1995); Michigan Microtech, Inc v Federated Publications, Inc, 187 Mich App 178, 186-187; 466 NW2d 717 (1991). Another line of authority holds that we should utilize the same test as the trial court, which implies review de novo. See, e.g., Matras v Amoco Oil Co, 424 Mich 675, 681-682; 385 NW2d 586 (1986); Haberkorn v Chrysler Corp, 210 Mich App 354, 364; 533 NW2d 373 (1995); Dep’t of Transportation v McNabb, 204 Mich App 674, 676; 516 NW2d 83 (1994); Berryman v K mart Corp, 193 Mich App 88, 91; 483 NW2d 642 (1992). Because we have found no Michigan Supreme Court opinion holding that a directed verdict is reviewed for an abuse of discretion, and because Matras, supra, indicates that an appellate court is to apply the same test that the trial court applies, we review the trial court’s decision de novo and reject the cases that hold that we. should review the trial court’s decision for an abuse of discretion.. When evaluating a motion for a directed verdict, a court must consider the evidence in the light most favorable to the nonmoving party, making all reasonable inferences in favor of the nonmoving party. Locke v Pachtman, 446 Mich 216, 223; 521 NW2d 786 (1994). Directed verdicts are appropriate only when no factual question exists upon which reasonable minds may differ. Brisboy v Fibreboard Corp, 429 Mich 540, 549; 418 NW2d 650 (1988). Plaintiff’s age discrimination claim is based upon that portion of the Civil Rights Act that provides that an “employer” shall not [f]ail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of . . . age. [MCL 37.2202(1)(a); MSA 3.548(202)(1)(a).] A plaintiff may attempt to prove age discrimination using different methods. Wolff v Automobile Club of Michigan, 194 Mich App 6, 11; 486 NW2d 75 (1992). As explained in Reisman v Regents of Wayne State Univ, 188 Mich App 526, 538-539; 470 NW2d 678 (1991): To prove intentional discrimination, the plaintiff must show that he was a member of the affected class, that he • was discharged, and that the person who discharged him was predisposed to discriminate against persons in the affected class and actually acted on that disposition in dis-' charging him. To prove disparate treatment, the plaintiff must show that the plaintiff was a member of the class entitled to protection under the act and that he was treated differently than persons of a different class for the same or similar conduct. A prima facie case of discrimination can also be made by showing a disparate effect. This theory requires a showing that a facially neutral employment practice burdens a protected class of persons more harshly than others. [Citations omitted.] This quote from Reisman seems to suggest that intentional discrimination is different from disparate treatment. That is not the case. As noted in Lytle v Malady, 209 Mich App 179, 185, n 1; 530 NW2d 135 (1995), lv gtd 451 Mich 920 (1996), many decisions have confused these two theories of discrimination with the differing methods of proving each theory. Intentional discrimination is not a separate theory, but rather another name for the disparate treatment theory. Id. Or, as stated in Brewster v Martin Marietta Aluminum Sales, Inc, 145 Mich App 641, 654; 378 NW2d 558 (1985), an alternative method of proving disparate treatment has been labeled as “intentional discrimination.” This is confirmed by the fact that the jury instruction for disparate treatment provides “the discrimination must have been intentional.” SJI2d 105.02. The general rule in an age discrimination case is that, to survive a motion for a directed verdict, the plaintiff must present evidence that, when viewed in a light most favorable to the plaintiff, would permit a reasonable jury to find that the plaintiff was discharged because of age. Matras, supra at 682. When it is asserted that the plaintiff was discharged because of age, the individual’s age need not be the only reason or main reason for discharge but must be one of the reasons that made a difference in determining whether to discharge the person. SJI2d 105.04. The question is whether age was a determining factor in the discharge. Barnell v Taubman Co, Inc, 203 Mich App 110, 121; 512 NW2d 13 (1993). Although the inquiry is always the same, i.e., was the discharge “because of age,” different approaches may be used to meet this burden of pro

ALLEN v COMPREHENSIVE HEALTH SERVICES Docket No. 187357. Submitted November 6, 1996, at Detroit. Decided March 25, 1997, at 9:05 A.M. Leave to appeal sought. Robert Allen brought an action in the Wayne Circuit Court against Comprehensive Health Services pursuant to the Civil Rights Act, alleging that he had been denied opportunities for advancement, increased responsibilities, and greater earning capacity as a result of the defendant’s discrimination against him on the bases of race and gender. The complaint did not allege and discovery did not uncover any direct evidence of discriminatory intent on the part of the defendant. Following discovery, the court, Michael J. Callahan, J., granted summary disposition for the defendant on the basis that there was no genuine issue of disputed fact. The plaintiff appealed the court’s order as it pertained to the claim of gender discrimination. The Court of Appeals held: 1. A prima facie claim by a male employee bringing a gender discrimination claim against his employer under § 202(1) of the Civil Rights Act, MCL 37.2202(1); MSA 3.548(202)(1), for discrimination with respect to a promotion decision where there is no direct evidence of the employer’s discriminatory intent requires a showing that there are background circumstances supporting the suspicion that the employer is that unusual employer who discriminates against males, that the plaintiff applied and was qualified for an available promotion, that the plaintiff was not promoted, and that a female employee of similar qualifications was promoted. Under such a showing, there arises a rebuttable presumption of discriminatory intent by the employer. Absent such a showing, a male employee may not proceed with a gender discrimination claim in the absence of direct evidence of the employer’s discriminatory intent. 2. The plaintiff failed to come forward with any evidence to suggest that the defendant is that unusual employer who discriminates against males. For that reason alone, the trial court properly held that the plaintiff had failed to establish a prima facie claim of gender discrimination. Further, the plaintiff failed to show that any promotion for which he was qualified was given to a woman. Accordingly, the trial court did not err in granting summary disposition for the defendant. Affirmed. Civil Rights — Gender Discrimination — Employment Discrimination — Discrimination Against Males — Promotions — Prima Facie Case. A prima facie claim by a male employee bringing a gender discrimination claim against the employer under the Civil Rights Act for discrimination with respect to a promotion decision where there is no direct evidence of the employer’s discriminatory intent requires a showing that there are background circumstances supporting the suspicion that the employer is that unusual employer who discriminates against males, that the plaintiff applied and was qualified for an available promotion, that the plaintiff was not promoted, and that a female employee of similar qualifications was promoted; under such a showing, there arises a rebuttable presumption of discriminatory intent by the employer; absent such a showing, a male employee may not proceed with a gender discrimination claim in the absence of direct evidence of the employer’s discriminatory intent (MCL 37.2202[1]; MSA 3.548[202][1]). Robert Van Cleef, P.C. (by Robert Van Cleef), for the plaintiff. Dara M. Hom-Taylor, for the defendant. Before: Bandstra, P.J., and Neff and M. E. Dodge , JJ. Circuit judge, sitting on the Court of Appeals by assignment. Bandstra, P.J. Plaintiff appeals as of right from an order granting summary disposition pursuant to MCR 2.116(C)(10) (no genuine issue of material fact) in favor of defendant in this gender discrimination case. We affirm. Defendant hired plaintiff as a part-time data entry clerk in 1988. Following his annual reviews in 1989 and 1990, plaintiff was rated as competent or highly competent and provided salary increases. In June of 1990, plaintiff was promoted to information control clerk. Further reviews of plaintiffs job performance in 1990, 1991, and 1992 resulted in additional pay increases. In 1993, plaintiff filed an internal complaint alleging that defendant discriminated against him by rating him below individuals whom he had outperformed on the job. Although defendant did not concede that plaintiffs allegations had any merit, his position was reclassified to a higher salary level and a different title, data entry coordinator. Plaintiff was not satisfied with this response or other efforts to resolve the dispute. He filed this action alleging that he had been discriminated against in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) el seq. Specifically, plaintiff complained that he had been denied opportunities for advancement, increased responsibilities, and a greater earning capacity. The complaint and ensuing discovery did not allege or uncover any direct evidence of discriminatory intent on the part of defendant. Following discovery, defendant moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that plaintiff had failed to come forward with sufficient evidence to proceed with his claim under the Civil Rights Act. The trial court agreed and dismissed plaintiffs complaint. This appeal raises two issues. First, in the absence of direct evidence of discriminatory intent, what must plaintiff show to establish a prima facie case of reverse discrimination in violation of the Civil Rights Act? Second, did plaintiff come forward with sufficient evidence to establish a prima facie case? ELEMENTS OF a “REVERSE DISCRIMINATION” CLAIM UNDER THE CIVIL RIGHTS ACT Under § 202(1) of the Civil Rights Act, MCL 37.2202(1); MSA 3.548(202)(1), an employer may not: (a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status. (b) Limit, segregate, or classify an employee or applicant for employment in a way that deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, height, weight, or marital status. (c) Segregate, classify, or otherwise discriminate against a person on the basis of sex with respect to a term, condition, or privilege of employment, including, but not limited to, a benefit plan or system. On appeal, defendant argues, as it did below, that because this is a “reverse discrimination” case, plaintiffs burden of proof is different from that applicable to a claim under the Civil Rights Act brought by a member of a protected class. This is a question of first impression in Michigan. Because title VII of the United States Civil Rights Act provides protection and a cause of action in language similar to the Civil Rights Act, we turn to federal precedents for guidance. Radtke v Everett, 442 Mich 368, 381-382; 501 NW2d 155 (1993). In McDonnell Douglas Corp v Green, 411 US 792, 802; 93 S Ct 1817; 36 L Ed 2d 668 (1973), the Supreme Court stated the burden of proof that must be shouldered by a person alleging race discrimination in a hiring decision to establish a prima facie title VII case: The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. These elements give rise to a presumption that the adverse action by an employer resulted from an illegal discriminatory intent, a presumption that the employer may rebut by “articulating] some legitimate, nondiscriminatory reason for” the adverse action. Id. In response, a plaintiff may show that the employer’s articulated reason is, in fact, a “pretext.” Id. at 804. Recognizing that “[t]he facts necessarily will vary in Title VII cases,” the McDonnell Douglas Court noted that its specification of the prima facie burden of proof “is not necessarily applicable in every respect to differing factual situations.” Id. at 802, n 13. The District of Columbia Circuit Court of Appeals accepted this invitation to modify the McDonnell Douglas test for purposes of a “reverse discrimination” claim in Parker v Baltimore & O R Co, 209 US App DC 215; 652 F2d 1012 (1981). The court noted that the McDonnell Douglas test allows a plaintiff “to establish a prima facie case without direct evidence of discriminatory motive” but reasoned that this does not constitute “an arbitrary lightening of the plaintiffs burden.” Id. at 219-220. Instead, the McDonnell Douglas test is “a procedural embodiment of the recognition that our nation has not yet freed itself from a legacy of hostile discrimination.” Id. at 220. The Supreme Court has explained this standard “as a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination. A prima facie case under McDonnell Douglas 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.” [Id., quoting Furnco Constr Corp v Waters, 438 US 567, 577; 98 S Ct 2943; 57 L Ed 2d 957 (1978).] The Parker court further reasoned that, accordingly, the McDonnell Douglas test had to be modified for use in a reverse discrimination case: The original McDonnell Douglas standard required the plaintiff to show “that he belongs to a racial minority.” Membership in a socially disfavored group was the assumption on which the entire McDonnell Douglas analysis was predicated, for only in that context can it be stated as a general rule that the “light of common experience” would lead a factfinder to infer discriminatory motive from the unexplained hiring of an outsider rather than a group member. Whites are also a protected group under Title VII, but it defies common sense to suggest that the promotion of a black employee justifies an inference of prejudice against white co-workers in our present society. [Id. ] The Parker court held that majority plaintiffs can rely on the McDonnell Douglas criteria to prove a prima facie case of intentionally disparate treatment only “when background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.” Id. The Parker analysis has been followed by appellate courts in at least three other federal circuits. Reynolds v School Dist No 1, Denver, Colorado, 69 F3d 1523, 1534 (CA 10, 1995); Pierce v Commonwealth Life Ins Co, 40 F3d 796, 801 (CA 6, 1994); Notari v Denver Water Dep’t, 971 F2d 585, 588-589 (CA 10, 1992); Boger v Wayne Co, 950 F2d 316, 324-325 (CA 6, 1991); Murray v Thistledown Racing Club, Inc, 770 F2d 63, 66-68 (CA 6, 1985); Christensen v Equitable Life Assurance Society of the United States, 767 F2d 340, 343 (CA 7, 1985); Jasany v United States Postal Service, 755 F2d 1244, 1252 (CA 6, 1985). With these courts, we conclude that Parker appropriately modified the McDonnell Douglas test for application to a reverse discrimination claim brought under title VII. Further, recognizing that these precedents are not binding upon us in interpreting Michigan’s Civil Rights Act, we nonetheless are convinced by the Parker analysis and adopt its approach for purposes of this statute as well. See Sumner v Goodyear Tire & Rubber Co, 427 Mich 505, 525; 398 NW2d 368 (1986). Accordingly, we hold that a reverse discrimination plaintiff who has no direct evidence of discriminatory intent may establish a prima facie claim of gender discrimination under the Civil Rights Act with respect to a promotion decision by showing (i) background circumstances supporting the suspicion that the defendant is that unusual employer who discriminates against men; (ii) that the plaintiff applied and was qualified for an available promotion; (iii) that, despite plaintiffs qualifications, he was not promoted; and (iv) that a female employee of similar qualifications was promoted. Upon this showing, a “presumption” of discriminatory intent is established for possible rebuttal by the employer. Absent this showing, a reverse discrimination plaintiff who has no direct evidence of discriminatory intent cannot proceed. SUFFICIENCY OF PLAINTIFF’S EVIDENCE On appeal, an order granting or denying summary disposition is reviewed de novo. Pinckney Community Schools v Continental Casualty Co, 213 Mich App 521, 525; 540 NW2d 748 (1995). The party opposing a motion for summary disposition under MCR 2.116(C)(10) has the burden of establishing, by evidentiary materials, that a genuine issue of disputed fact exists. Skinner v Square D Co, 445 Mich 153, 160; 516 NW2d 475 (1994). The opposing party may not rest upon mere allegations or denials in the pleadings but must, by affidavit or other documentary evidence, set forth specific facts showing that there is a genuine issue for trial. MCR 2.116(G)(4); Johnson v Wayne Co, 213 Mich App 143, 149; 540 NW2d 66 (1995). With these principles in mind, we conclude that plaintiff failed to establish a prima facie case of gender discrimination as outlined above. With respect to the first element, plaintiff came forward with absolutely no evidence to suggest that defendant is “that unusual employer who discriminates against men.” For that reason alone, we conclude that the summary disposition granted to defendant was appropriate. In addition, we conclude that plaintiff has not shown that a promotion for which he was qualified was given to a female employee instead. Although plaintiff argues that he was denied certain promotions, he did receive other promotions and regular salary increases during his employment with defendant. With respect to promotional opportunities that he did not realize, plaintiff has come forward with no evidence suggesting that defendant incorrectly determined that he did not meet the stated minimum requirements or that defendant is wrong in contending that the positions plaintiff sought were, in fact, lateral transfers rather than promotions. Finally, plaintiff admitted at his deposition that none of the women he complained about have achieved promotional levels higher than his. In sum, we agree with the trial court that the available evidence indicates only that “personality disputes” between plaintiff and supervisory personnel are at issue here; plaintiff has not shown a prima facie case of gender discrimination in violation of the Civil Rights Act. We affirm. No taxable costs pursuant to MCR 7.219, a question of public policy being involved. Plaintiff’s complaint also alleged race discrimination, but he is not contesting the dismissal of this claim. In pertinent part, 42 USC 2000e-2(a)(1) provides: “It shall be an unlawful employment practice for an employer — ... to discriminate against any individual with respect to . . . compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex . . . .” McDonnell Douglas establishes an “inferential test” that can be employed by a plaintiff who has “no direct evidence of discrimination.” Pierce v Commonwealth Life Ins Co, 40 F3d 796, 801, n 6 (CA 6, 1994). See, also, Int’l Brotherhood of Teamsters v United States, 431 US 324, 335, n 15; 97 S Ct 1843; 52 L Ed 2d 396 (1977). A plaintiff need not establish the McDonnell Douglas presumption if there is “direct proof of discriminatory intent.” Notari v Denver Water Dep’t, 971 F2d 585, 589 (CA 10, 1992). Apparently, only the Court of Appeals for the Eleventh Circuit has rejected the Parker approach. See Wilson v Bailey, 934 F2d 301, 304 (CA 11, 1991) (without analysis, allowing any plaintiff who “belongs to a class” to bring a reverse discrimination claim). In addition to restating the first of the McDonnell Douglas elements on the basis of Parker and its progeny, we have modified the elements as needed to fit this case involving an allegedly gender-based failure to promote. See McDonnell Douglas, supra at 802, n 13. Our restatement of the fourth element is similar to that used in Bundy v Jackson, 205 US App DC 444, 461; 641 F2d 934 (1981). For cases in which plaintiffs did establish this first element of their reverse discrimination cases, see, e.g., Reynolds, supra at 1535 (the plaintiff was the only white employee in an otherwise all-Hispanic department and Hispanic supervisors made most employment decisions); Bishopp v District of Columbia, 252 US App DC 156, 163-164; 788 F2d 781 (1986) (the defendant promoted less qualified minority employee; use of subjective, rather than objective criteria; internal and external pressure to favor minorities); Lanphear v Prokop, 227 US App DC 89, 93; 703 F2d 1311 (1983) (qualified white passed over for black whose qualifications were not fully checked; pressure to increase minority percentages). We offer no opinion whether the evidence found sufficient in these title VII cases would also be sufficient for a claim brought under the Civil Rights Act but cite them to illustrate the kind of evidence plaintiff might have brought forward, had it been available, to satisfy the first element of his prima facie case. The trial court did not apply the same analysis we employ in deciding the motion for summary disposition and, in fact, apparently specifically rejected use of the Parker approach. Nonetheless, we will not reverse an order of summary disposition properly granted albeit for wrong, or incomplete, reasons. Holland Home v Grand Rapids, 219 Mich App 384, 400; 557 NW2d 118 (1996). At the hearing on the motion for summary disposition, plaintiffs counsel stipulated that this is a “lack of promotion or advancement case . . . based upon reverse discrimination.” On appeal, plaintiff argues that summary disposition was improperly granted on the basis of his allegations that female employees were treated differently with regard to defendant’s policies concerning smoking, the use of televisions and radios at work, use of work telephones, and entertaining visitors on the job. We do not consider these matters to be preserved for appeal, but, even if they were, conclude they were not sufficiently proved to resist summary disposition. Plaintiff came forward with no objective evidence to support these contentions, which are nothing more than plaintiffs own personal feelings about his mistreatment. See Johnson, supra. Further, assuming that fellow employees broke the employer’s rules in these regards, plaintiff claims he never did so and thus can only argue hypothetically that his violation of the rules would have resulted in disparate treatment. Plaintiff also argues that, although he was more productive than his fellow workers, they received better reviews and higher salaries. However, again, this is nothing more than plaintiff’s opinion of relative productivity, and it is apparently based on his improper review of work performance evaluations of other employees.

Josephine Mugnano-Bornstein vs. Robert Crowell & another. No. 96-P-204. Essex. January 9, 1997. - March 21, 1997. Present: Warner, C.J., Kaplan, & Ireland, JJ. Arbitration, Confirmation of award, Scope of arbitration, Waiver. Federal Arbitration Act. Contract, Arbitration, Employment. Employment, Sexual harassment. The broad language of a valid arbitration agreement in an employment contract (“any controversy arising out of or in connection with . . . employment or termination of employment”) put an employee on notice that she was agreeing to submit to arbitration any sexual harassment and gender discrimination claims against her employer, thereby waiving her statutory right to a jury trial on such claims. [351-353] Civil action commenced in the Superior Court Department on November 6, 1992. Motions to vacate a stay of proceedings and restore the case to the trial list, to confirm an arbitration award, and for sanctions were heard by Charles M. Graban, J. Christopher P. Litterio for the defendants. Joseph J. Machera (Dana A. Curhan with him) for the plaintiff. Shearson Lehman Hutton. Warner, C.J. The defendants, Robert Crowell and Shear-son Lehman Hutton, appeal from a Superior Court order denying their motion to confirm an arbitration award and allowing the plaintiffs motion to vacate the stay of judicial proceedings previously imposed and restore the case to the jury trial list. On November 20, 1989, the plaintiff, Josephine Mugnano-Bomstein, completed and signed an employment application containing an agreement to arbitrate any “controversy arising out of or in connection with [her] compensation, employment or termination of employment” with Shearson. She was subsequently hired as a wire operator and worked in that capacity until being fired for insubordination in November, 1990. The plaintiff commenced this action in the Superior Court on November 6, 1992, alleging sexual harassment and gender discrimination in violation of G. L. c. 93 and c. 15 IB, and common law claims for intentional infliction of emotional distress and defamation. In her complaint, she claimed that Crowell, her supervisor at Shearson, continually berated and harassed her after she became pregnant and experienced complications that caused her frequently to be absent from work. She further alleged that Crowell subjected her to additional harassment and humiliation in front of coworkers after she reported the situation to Shearson’s human resources office. Finally, she claimed that Shearson failed to take adequate steps to remedy the situation and also that it was vicariously liable for Crowell’s actions. The defendants responded to the plaintiff’s complaint by filing a motion to compel arbitration under the terms of the employment application and requesting a stay of the court proceedings pending arbitration. The judge allowed the motion, ruling that the agreement to arbitrate contained in the application for employment was enforceable. The plaintiff filed a petition requesting leave to take an interlocutory appeal, which was denied by a single justice of this court. On November 4 and 21, 1994, hearings were held before a three-member arbitration panel of the American Stock Exchange. By unanimous decision dated December 28, 1994, the plaintiffs claims were denied and the case was dismissed. Shearson, however, was ordered to pay the plaintiffs costs of arbitration. The plaintiff subsequently filed a motion in the Superior Court requesting that the previously imposed stay be vacated and the case restored to the jury trial list. The defendants opposed the motion and moved for confirmation of the arbitration award and dismissal of the case. Both parties filed memoranda supporting their positions. The judge denied the defendants’ motion, vacated the stay and restored the case to the trial fist. Citing Prudential Ins. Co. v. Lai, 42 F.3d 1299 (9th Cir. 1994), cert, denied, 516 U.S. 812 (1995), decided after the original order compelling arbitration, the judge ruled that “an employee must knowingly agree to arbitrate discrimination claims under G. L. c. 15IB in order to waive her right to trial,” and that the plaintiff “could not have known that she was waiving her statutory right to a trial on her sexual harassment and discrimination claims” when she signed the application for employment containing the arbitration agreement. On appeal, Crowell and Shearson maintain that the judge erred by refusing to confirm the arbitration award in the absence of a motion to vacate, modify or correct the award. They further argue that the judge’s reliance on Lai was misplaced, first, because the requirement of a knowing waiver of the statutory remedies afforded by Title VII and analogous State statutes has not been adopted in other jurisdictions and second, because the arbitration clause at issue here is far more specific than the agreement considered in Lai. The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 et seq. (1988), created a “body of federal substantive law of arbitra-bility, applicable to any arbitration agreement within [its] coverage.” Martin v. Norwood, 395 Mass. 159, 161-162 (1985), quoting from Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). Where an arbitration agreement falls within the purview of the FAA, the act governs the arbitrability of the dispute in State or Federal court. See Carpenter v. Pomerantz, 36 Mass. App. Ct. 627, 628 n.3 (1994), citing Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. at 24. Section 2 of the FAA “provides that a dispute is arbitrable if it falls within the scope of a written arbitration agreement that is otherwise valid and enforceable.” Carpenter v. Pomerantz, 36 Mass. App. Ct. at 628. Whether a particular agreement calls for arbitration is to be determined by applying general principles of contract law. See Mobil Oil Corp. v. Local 8-766, Oil, Chemical & Atomic Workers Intl. Union, 600 F.2d 322, 325 (1st Cir. 1979). “[A] party cannot be required to submit to arbitration any dispute which he has not agreed ... to submit.” Local 285, Serv. Employees Inti. Union, AFL-CIO v. Nonotuck Resource Assocs., Inc., 64 F.3d 735, 738 (1st Cir. 1995). “[(Questions of arbitrability, [however,] must be addressed with a healthy regard for the federal policy favoring arbitration” as an alternative over litigation. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. at 24. Moreover, under the FAA, any doubts regarding arbitrability should be resolved in favor of coverage “ ‘unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.’ ” Peerless Pressed Metal Corp. v. International Union of Elec., Radio and Mach. Workers, AFL-CIO, 451 F.2d 19, 20 (1st Cir. 1971), cert denied, 414 U.S. 1022 (1973), quoting from United Steelworkers of America v. Warrier & Gulf Nav. Co., 363 U.S. 574, 582-583 (1960). Commercial Union Ins. Co. v. Gilbane Bldg. Co., 992 F.2d 386, 388 (1st Cir. 1993). See Barnstead v. Ridder, 39 Mass. App. Ct. 934, 935 (1996). This policy obtains whether the issue being considered involves “the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.” Commercial Union Ins. Co. v. Gilbane Bldg. Co., supra, quoting from Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. at 25. Pursuant to the FAA, statutory claims may be the subject of an enforceable arbitration agreement. Gilmer v. Interstate/ Johnson Lane Corp., 500 U.S. 20, 26 (1991). In Gilmer, the Supreme Court decided that a claim under the Age Discrimination in Employment Act of 1967 (ADEA) was subject to compulsory arbitration pursuant to a valid arbitration agreement. Id. at 35. Several Federal Courts have agreed that employees may waive the remedies afforded under Title VII and analogous State anti-discrimination statutes pursuant to a valid arbitration agreement. See, e.g., Alford v. Dean Witter Reynolds, Inc., 939 F.2d 229 (5th Cir. 1991); Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305 (6th Cir. 1991); Mago v. Shearson Lehman Hutton, Inc., 956 F.2d 932 (9th Cir. 1992); Bender v. A.G. Edwards & Sons, Inc., 971 F.2d 698 (11th Cir. 1992). See also Scott v. Farm Family Life Ins. Co., 827 F. Supp. 76 (D. Mass. 1993). The plaintiff here concedes that the reasoning of Gilmer is generally applicable to claims brought pursuant to Title VII and G. L. c. 15IB. She urges us to adopt the reasoning of Prudential Ins. Co. v. Lai, however, and maintains that the arbitration agreement she signed cannot be characterized as a knowing waiver of the statutory right to a jury trial of her sexual harassment and gender discrimination claims because it is unclear as to whether such claims are subject to arbitration. The plaintiff agreed to arbitrate “any controversy arising out of or in connection with [her] employment or termination of employment . . . .” She argues that the clause is vague and ambiguous because it does not specifically refer to sexual harassment or gender discrimination claims. We are not persuaded. There can be no doubt that the plaintiff’s dispute with Crowell and Shearson arose out of her employment and subsequent termination from Shearson. In her complaint, she alleged that the defendants sexually harassed and discriminated against her, inflicted emotional distress upon her and defamed her in the workplace, all because she was frequently absent as a result of her pregnancy. Moreover, the fact that an arbitration agreement is comprehensive in scope does not render it invalid. Rather, where an arbitration clause is as broad as the one at issue here, “there is a strong presumption of arbitrability.” Carpenter v. Pomerantz, 36 Mass. App. Ct. at 630, citing AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 650 (1986). Even if we were to adopt the reasoning of Lai and impose a requirement that any waiver of the statutory remedies afforded to plaintiffs under G. L. c. 15IB must be made knowingly, we think the arbitration clause at issue here would pass muster. Unlike the clause considered in Lai, the agreement signed by the plaintiff specifically referred to employment disputes, thereby putting her on notice that she was agreeing to submit her sexual harassment and gender discrimination claims to arbitration. Moreover, although the Ninth Circuit invalidated the specific clause under consideration in Lai, it also cited Mago v. Shearson Lehman Hutton Inc., 956 F.2d at 934, in which an agreement providing for arbitration of “any controversy concerning compensation, employment or termination of employment” was found to be binding on a Title VII plaintiff, as an example of a valid agreement to arbitrate. Finally, we are not aware of any rule that requires an arbitration agreement to contain a list of the specific claims or causes of action which are subject to arbitration in order to be enforceable. Indeed, such a requirement would be unreasonable and impractical. The plaintiff also argues that the Supreme Judicial Court’s recent decision in Dalis v. Buyer Advertising, Inc., 418 Mass. 220 (1994), further supports her position. In Dalis, the court held that under art. 15 of the Massachusetts Declaration of Rights, a plaintiff asserting claims of employment discrimination based on gender under G. L. c. 15IB is constitutionally entitled to a jury trial. 418 Mass, at 226. The fact that one’s right to a jury trial is constitutionally preserved in certain types of civil cases, however, does not mean that that right cannot be waived. Chase Commercial Corp. v. Owen, 32 Mass. App. Ct. 248, 251-252 (1992). Indeed, courts have upheld contractual waivers of constitutionally guaranteed rights even broader than the one involved here. Ibid. See, e.g., D.H. Over-myer Co. v. Frick Co., 405 U.S. 174, 185-186 (1972) (upholding a contractual waiver of due process rights to prejudgment notice and hearing). We hold that the arbitration agreement contained in the plaintiff’s employment application is binding with respect to those claims asserted under G. L. c. 151B. Accordingly, we remand the case to the Superior Court for the entry of a judgment confirming the arbitration award and dismissing the complaint. So ordered. The Superior Court proceedings have been stayed pending this appeal. The entire clause provides: “I hereby agree that any controversy arising out of or in connection with my compensation, employment or termination of employment shall be submitted to arbitration before the National Association of Securities Dealers, Inc., the New York Stock Exchange, Inc., or the American Stock Exchange, Inc., and be resolved in accordance with the rules then in effect, of such entities. Judgment upon any award rendered by the arbitrators may be entered in any court having jurisdiction thereof. In the event I fail to abide by these terms, this section shall in no way limit or impair the Company’s other legal rights, including the right to enforce said provisions in a court of competent jurisdiction.” The plaintiff filed similar claims with the Massachusetts Commission Against Discrimination and the Federal Equal Employment Opportunity Commission on or about April 5, 1991. It does not appear that either agency took action on the complaints. Piior to the hearings, the plaintiff executed a Uniform Submission Agreement in which she agreed “to abide by and perform any award(s) rendered pursuant to this Submission Agreement and further agree[d] that a judgment and any interest due thereon, may be entered upon such award(s).” Prudential Ins. Co. v. Lai involved an agreement to arbitrate discrimination claims brought under California’s antidiscrimination laws, which are analogous to Title VII of the Civil Rights Act of 1964. 42 U.S.C. §§ 2000e et seq. (1994). 42 F.3d at 1303 n.l. Title VII created “an array of substantive protections and remedies” with respect to claims of employment discrimination. Kremer v. Chemical Constr. Corp., 456 U.S. 461, 463 (1982). In addition to providing State remedies for discriminatory employment practices, G. L. c. 151B, the Massachusetts antidiscrimination statute, and analogous State laws such as the ones at issue in Lai, are explicitly made part of Title VH’s enforcement scheme. Id. at 477-478. The Superior Court judge ruled that the arbitration clause at issue here is subject to the provisions of the FAA, and assumed, without deciding, that the Massachusetts Arbitration Act (MAA), G. L. c. 251, §§ 1-19, would also apply. Neither party has challenged this ruling, although the defendants correctly maintain that where the FAA and the MAA conflict, the FAA governs. See Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. at 24 (“Section 2 [of the FAA] is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state . . . policies to the contrary”). The FAA has the same application to claims asserted under c. 151B as it does to Title VII claims. See Prudential Ins. Co. v. Lai, 42 F.3d at 1303 n.l. On appeal, the plaintiffs sole challenge to the validity of the arbitration clause concerns the specificity with which it describes those claims that are subject to arbitration, a question that we discuss later in this opinion. The First Circuit has yet to extend the reasoning of Gilmer to employment discrimination claims brought under either Title VII or G. L. c. 15 IB. The clause considered in Lai did not even mention employment disputes or otherwise describe the types of disputes that would be subject to arbitration. 42 F.3d at 1305. Moreover, the plaintiffs in that case had signed “U-4 forms containing agreements ‘to arbitrate any dispute, claim or controversy that ... is required to be arbitrated under the rules, constitutions or bylaws of the organizations with which I register.’ ” Id. at 1301. The plaintiffs also claimed that they were told they were only applying to take an employment test, and were not given an adequate opportunity to read the forms. Ibid. No such evidence was offered in this case.

Leonid Lenny Melnychenko & others vs. 84 Lumber Company. Hampden. October 9, 1996. February 18, 1997. Present: Wilkins, C.J., Abrams, Lynch, O’Connor, Greaney, Fried, & Marshall, JJ. Employment, Sexual harassment, Discrimination, Termination, Retaliation. Anti-Discrimination Law, Sex, Employment. Practice, Civil, Findings by judge. Statute, Construction. A claim alleging sexual harassment, as defined in G. L. c. 151B, § 1, and prohibited by § 4(16A), is permissible without reference to the question of gender or sexual orientation of the alleged harasser. [288-290] O’Connor, J., dissenting, with whom Lynch, J., joined. The record of a claim brought against an employer alleging sexual harassment, as defined by G. L. c. 151B, § 1(18), and prohibited by G. L. c. 151B, § 4(16A), fully warranted the judge’s findings that the plaintiffs’ male supervisor had engaged in verbal and physical conduct of a sexual nature unreasonably interfering with the three male plaintiffs’ work performance by creating an intimidating, hostile, humiliating and sexually offensive work environment [286-288]; and the record supported the judge’s further conclusion that such conduct interfered with the plaintiffs’ right to be free from unreasonable, substantial, or serious interference with privacy, as stated in G. L. c. 214, § IB [290-291], O’Connor, J., dissenting with whom Lynch, J., joined. In a claim by a discharged employee seeking damages from the former employer for the employer’s alleged retaliatory conduct in violation of G. L. c. 151B, § 4(4), the judge’s findings supported his conclusion that retaliation was not a determinative factor in the plaintiff’s discharge [293-294]; and the plaintiff did not make any showing of harm from the employer’s actions allegedly in violation of G. L. c. 151B, § 4(4A) [293-295], Civxl action commenced in the Superior Court Department on June 14, 1991. The case was heard by Daniel A. Ford, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Jay M. Presser for the defendant. Charles V. Ryan (Timothy J. Ryan with him) for Leonid Lenny Melnychenko. Clifford Heaton, for Stephen LaRochelle, was present but did not argue. Mary Lisa Bonauto & Nan Evans for Gay & Lesbian Advocates & Defenders & others, amici curiae, submitted a brief. Scott Harshbarger, Attorney General, & Catherine Ziehl, Assistant Attorney General, for the Attorney General, amicus curiae, submitted a brief. Tames Quill and Stephen LaRochelle. At the commencement of trial, the plaintiffs voluntarily dismissed their action against individual defendants named in the complaint, Richard Raab and Eliasel Roque. Welkins, C.J. A judge in the Superior Court ruled that Richard Raab, an employee of the defendant corporation at its West Springfield store, engaged in “sexual harassment,” as defined in G. L. c. 151B, § 1 (18), and that it did not matter what Raab’s sexual orientation was or whether Raab intended to have a sexual relationship with any of the plaintiffs, all of whom are male. The principal issue in this case is whether same-sex sexual harassment is prohibited by G. L. c. 151B, § 4 (16A), regardless of the sexual orientation of the parties. We agree with the trial judge that such conduct falls within the statutory definition of sexual harassment, and is, therefore, prohibited by G. L. c. 151B, § 4 (16A). We also consider a cross appeal from that part of the judgment that denied relief from claimed retaliatory conduct of the defendant. 1. Chapter 15 IB of the General Laws states that it is an unlawful practice for an employer, as defined in G. L. c. 151B, § 1 (5), “to sexually harass any employee.” G. L. c. 151B, § 4 (16A). Sexual harassment as defined in G. L. c. 151B includes “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” which has “the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.” G.L. c. 151B, § 1 (18) (6). The judge ruled that Raab’s “revolting and positively outrageous” conduct had the purpose or effect of unreasonably interfering with all three plaintiffs’ work performance by creating an intimidating, hostile, humiliating, and sexually offensive work environment. The judge concluded that Raab engaged in “verbal and physical conduct” of a sexual nature and that his conduct was totally unwelcome by the plaintiffs. The judge’s subsidiary findings of fact, significant portions of which we set forth in the margin, fully warranted the judge’s ultimate findings. The defendant argues that the finding that the plaintiffs were sexually harassed was clearly erroneous. The defendant bases its argument on the facts that the plaintiffs continued to “socialize” with Raab and failed to complain of Raab’s conduct, despite complaining about other employment-related events. The judge found, however, that LaRochelle and Melnychenko did complain to the defendant’s area manager and that Quill was afraid of losing his job if he complained. The record does not lead us to the definite and firm conviction that the judge was mistaken in any of his findings. See Kendall v. Selvaggio, 413 Mass. 619, 620-621 (1992); Mass. R. Civ. P. 52 (a), as amended, 423 Mass. 1402 (1996). We come then to the question whether G. L. c. 151B, § 4 (16A), applies to same-sex sexual harassment, even where the perpetrator of the harassment may be a heterosexual. Relying heavily on Federal case law interpreting Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (1994), the defendant argues that sexual harassment is only actionable as a form of sex discrimination, and that, therefore, the only form of same-sex sexual harassment that is prohibited by G. L. c. 151B is sexual harassment perpetrated by a homosexual. The dissent, sounding the same tune, seems to assume that, if we were to follow Federal law in this case, the result would be different. That is not certain. The Federal authorities are hardly in accord on the issue of same-sex sexual harassment. In any event, we arrive at our own conclusions in construing our own statute. See Blare v. Husky Injec tion Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995); College Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 163-164 (1987); Massachusetts Elec. Co. v. Massachusetts Comm’n Against Discrimination, 375 Mass. 160, 167 (1978). It is particularly appropriate for us to reach our own conclusions where, as here, the relevant sections of G. L. c. 15IB differ significantly from Title VII of the Federal act. Of particular importance for the disposition of this issue is the fact that the Legislature specifically defined sexual harassment and, at the same time, codified the prohibition against it. Subsection 18, defining “sexual harassment,” was inserted in G. L. c. 151B, § 1, by St. 1986, c. 588, § 2. Subsection 16A, making an unlawful practice of sexual harassment, was inserted in G. L. c. 151B, § 4, by St. 1986, c. 588, § 3. There is no parallel Federal statutory language. It is under subsection 16A that the trial judge ruled that the defendant had engaged in an unlawful practice. Sexual harassment as defined in § 1 (18), and prohibited by § 4 (16A), is not limited to conduct of a supervisor aimed at a subordinate of the opposite sex, nor is it limited to same-sex conduct only where the harasser is a homosexual. Rather, any physical or verbal conduct of a sexual nature which is found to interfere unreasonably with an employee’s work performance through the creation of a humiliating or sexually offensive work environment can be sexual harassment under G. L. c. 151B. The judge found that Raab’s conduct fell within the statutory definition and correctly concluded that the plaintiffs were entitled to recover damages as a result. The dissent is correct in noting that c. 15 IB concerns unlawful discrimination. The Legislature, in language not found in the Federal act, has defined sexual harassment so as to be included within “[discrimination on the basis of sex . . . .” G. L. c. 151B, § 1 (18). Verbal or physical conduct of a sexual nature, even if it does not include “sexual advances” or “requests for sexual favors,” comes within the statutory definition of sexual harassment. Id. Thus, sexual harassment as defined in § 1 (18) is by legislative direction a form of sexual discrimination. Contrary to the dissent’s view, nowhere is discrimination because of a victim’s sex made an essential element of a sexual harassment claim in Massachusetts. The judge also ruled that Melnychenko and Quill had proved that the defendant had interfered with their right to be free from unreasonable, substantial, or serious interference with privacy, as stated in G. L. c. 214, § IB. To avoid duplicative damages the judge awarded only one dollar to each on this claim. He based his conclusion on the facts set forth in the latter half of paragraph 9 of his findings and quoted in note 4 above. The defendant argues only that it should not be liable because Raab’s conduct in making certain announcements in the workplace about Melnychenko’s and Quill’s sexual conduct was outside the scope of Raab’s employment. There is no merit to this contention. See College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 165-167 (1987). Raab’s misconduct occurred at the defendant’s place of business while he held a supervisory position. There was, moreover, evidence that the defendant received complaints about Raab’s treatment of LaRochelle and Melnychenko. 2." We turn now to Melnychenko’s appeal from the judge’s determination that the defendant is not liable to him for retaliatory conduct forbidden by G. L. c. 15 IB. To present the basis of the claim of retaliation, we set forth additional findings by the judge. In October, 1990, the plaintiff Quill left the defendant’s employment. Shortly thereafter, Quill told Melnychenko that he was going to file a complaint about Raab’s conduct and asked Melnychenko to provide Quill’s attorney with an affidavit concerning events at the defendant’s store. Not long after Melnychenko provided a supporting affidavit, the defendant’s general counsel “asked him to come to the defendant’s corporate headquarters in Pennsylvania and meet with the defendant’s general counsel and chief operating officer. The defendant’s officers expressed disappointment that Melnychenko had given Quill’s attorney an affidavit without telling them because it exposed the company to liability. They told Melnychenko not to speak with either Quill or his attorney. The officers also told Melnychenko “that they would not be able to protect him or to guarantee his physical safety” at the company’s West Springfield store and that he should, therefore, accept reassignment. Melnychenko agreed and reported to the defendant’s Orange Park, Florida, store about one week after the meeting in Pennsylvania. Approximately one month later, Melnychenko wrote a hostile letter to the company’s chief operating officer complaining that the company had not fulfilled certain promises to him. About the same time, the defendant’s. Florida area manager offered Melnychenko a temporary promotion to the position of merchandising manager because Melnychenko had been doing a good job at the Orange Park store. The area manager told Melnychenko that, when the temporary job was completed, he would be in line for a comanager’s job. Because there were no guarantees, Melnychenko refused the promotion. Thereafter, the area manager received reports that (a) Melnychenko had been telling other company employees that the general counsel was a liar and that the company had broken its promises to him and (b) Melnychenko was giving a bad impression to customers. The area manager reported these facts to the chief operating officer, who concluded that Melnychenko was never going to be content as long as he worked for the defendant and advised the area manager that Melnychenko’s employment would have to be terminated. The judge made a specific finding concerning Melnychenko’s termination: The defendant “has proven by clear and convincing evidence that Melnychenko was terminated, not in retaliation for his having given the affidavit to Quill’s attorney, but because he had become a disgruntled employee who was openly expressing his negative feelings about [the company] to both customers and fellow employees and therefore was no longer an asset to the company.” The defendant’s general counsel gave the area manager a written termination agreement and told him to offer Melnychenko $5,000 if he would sign it. That agreement provided that Melnychenko could “not counsel or assist in the prosecution of claims against [the company], whether those claims are on behalf of [Melnychenko] or others, unless [Melnychenko] is under a court order to do so.” The agreement also provided that, “if any inquiries are made concerning [Melnychenko’s] termination . . . [Melnychenko] . . . will respond by indicating . . . that [Melnychenko] . . . was treated fairly by [the company] . . . and that [Melnychenko] has every reason to believe [the company] thinks highly of [Melnychenko].” The area manager told Melnychenko that “he was being terminated because he was ‘bad mouthing’ the company, and was adversely affecting the morale of store employees. He gave the termination agreement to Melnychenko and offered him $5,000.00 to sign it. Melnychenko read the agreement, and said that he was not sure he could sign because he had already given an affidavit about things that had happened in the West Springfield store. He asked if he could bring the agreement home and show it to others for their advice. [The area manager] responded that he could not, and that he had to make his mind up then and there. Accordingly, Melnychenko refused to sign the agreement, and did not receive the $5,000.00. His employment with [the company] was terminated on that day.” Melnychenko, in presenting his claim of retaliatory conduct, relies on two definitions of unlawful practices in G. L. c. 15 IB, § 4. Under § 4 (4), it is unlawful for any employer “to discharge, expel or otherwise discriminate against any person because he has opposed any practices forbidden under this chapter or assisted in any proceeding under [§ 5].” Section 4 (4A) makes it an unlawful practice “[f]or any person to coerce, intimidate, threaten or interfere with another . . . person for having aided or encouraged any other person in the exercise or enjoyment of any . . . right granted or protected by this chapter.” In his ultimate findings and rulings the judge did not distinguish between the two subsections. Indeed, he did not cite § 4 (4). Melnychenko argues that the company violated § 4 (4) by firing him. He had the burden of proving that the company’s decision to fire him was based on its desire to retaliate against him for assisting Quill or for his complaining about Raab’s conduct. Tate v. Department of Mental Health, 419 Mass. 356, 364 (1995). The judge found that the defendant did not terminate Melnychenko either in retaliation for anything that he did, or to impede or interfere with Quill’s claim. He further found that “Melnychenko was fired because he was openly accusing [the company’s chief operating officer] of being a liar, he had written a highly inappropriate letter to [the chief operating officer], he was adversely affecting the morale of other store employees, and [the chief operating officer] understandably believed that, no matter what else [the company] did for him, Melnychenko was never going to be happy with [the company]. Accordingly, [the chief operating officer], with no input from [the company’s legal counsel], decided that Melnychenko had to be terminated.” Certainly, these findings present a nondiscriminatory reason for firing Melnychenko. Although there was evidence warranting the conclusion that the firing was retaliatory, that evidence did not compel such a finding. We, therefore, decline to overrule the judge’s conclusion that retaliation was not a determinative factor in Melnychenko’s discharge. Melnychenko argues further that the defendant violated § 4 (4A) by its treatment of him during and following the meeting in Pennsylvania. At that meeting, two officers of the company complained that Melnychenko had given an affidavit to Quill’s lawyer and told Melnychenko not to talk with Quill or his lawyer about this matter. They said that the company could not protect Melnychenko if he remained employed at the West Springfield store and that he should accept a transfer to another store. Later, in Florida; the company offered Melnychenko $5,000 to sign the termination agreement containing provisions barring Melnychenko from assisting in the prosecution of his own or anyone else’s claim against the company and mandating that he would represent, contrary to his opinion, that he had been well treated by the company. The judge concluded that the transfer to Florida, to which Melnychenko agreed, was done to remove him from an obviously unworkable situation and to rehabilitate Melnychenko’s career with the company. The judge stated: “I further find that [the general counsel’s] attempt to obtain Melnychenko’s signature on a termination agreement in exchange for $5,000.00 was merely a clumsy and poorly thought out effort to protect [the company] from liability. As misguided as the effort might have been, I do not attribute any sinister or file-gal motives to [the general counsel], and I conclude that it did not constitute a violation of G. L. c. 151B.” There was evidence that would have warranted a finding that the company attempted to “interfere” with Melnychenko for having aided Quill in the exercise of his rights protected by G. L. c. 151B. The company was unsuccessful, however, in its attempt to dissuade Melnychenko from helping Quill. Melnychenko did not sign the termination agreement which was certainly designed to interfere with the presentation and adjudication of unfair practices claims under G. L. c. 151B. The company’s instruction to Melnychenko not to speak with Quill or his attorney, and the attempt to obtain a termination agreement from Melnychenko, might have been acts designed “to coerce, intimidate, threaten, or interfere” with Melnychenko for having aided Quill. But these attempts by the defendant sought to control Melnychenko’s future conduct, and the portion of § 4 (4A) on which Melnychenko relies concerns retaliation for past assistance to a person, such as Quill, who is seeking to exercise a right under G. L. c. 151B. Melnychenko makes no showing that the defendant retaliated against him for his past assistance to Quill in a way that caused him more harm than is reflected in the damages already awarded to him. We need not, therefore, consider whether G. L. c. 151B applies to the company’s conduct in dealing with Melnychenko in Pennsylvania and Florida. 3. The judgment is affirmed. Counsel for Melnychenko and Quill are entitled to reasonable attorney’s fees and costs in connection with the defendant’s appeal. See G. L. c. 151B, § 9; Yorke Mgt. v. Castro, 406 Mass. 17, 20 (1989). LaRochelle’s brief is verbatim the same as the brief submitted by the other plaintiffs. The question of attorney’s fees and costs for LaRochelle shall be decided by a single justice of this court. Id. So ordered. We transferred the defendant’s appeal and the cross appeal to this court on our own motion. “9. Melnychenko, Quill and LaRochelle had each worked for 84 Lumber for approximately two weeks when Raab started to harass them. He grabbed all three of them by their genitals, and fondled their buttocks. He squeezed their chests, rubbed them in areas of the body commonly thought private, and touched them ‘everywhere.’ He exposed himself to Melnychenko and Quill on at least t

TRANKER v FIGGIE INTERNATIONAL, INC Docket No. 188152. Submitted December 11, 1996, at Grand Rapids. Decided January 3, 1997, at 9:10 A.M. Leave to appeal sought. Paul and Denise Tranker brought an action in the Van Bureau Circuit Court against Figgie International, Inc., alleging that the defendant violated the Michigan Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq., and an employment contract with Paul Tranker when it terminated Tranker’s employment. The court, William C. Buhl, J., granted summary disposition for the defendant, finding that the doctrine of judicial estoppel defeated the hcra claim and that the defendant did not violate the employment contract. The plaintiffs appealed. The Court of Appeals held: 1. The trial court did not err in applying the doctrine of judicial estoppel and finding that because Paul Tranker had successfully represented himself as being totally disabled to the Social Security Administration for purposes of receiving social security disability benefits, he could not be considered handicapped for purposes of his subsequent hcra claim. 2. The trial court did not err in finding that the employment policy relied upon by the plaintiffs did not alter Paul Tranker’s at-will employment to employment terminable for just cause only. The claim is essentially a duplication of the claim under the hcra and is precluded for the same reason. Affirmed. 1. Estoppel — Judicial Estoppel — Administrative Law. The doctrine of judicial estoppel is applied by the courts to estop a party who has successfully and unequivocally asserted a position in a prior administrative proceeding from asserting an inconsistent position in a subsequent proceeding. 2. Civil Rights — Handicappers’ Civil Rights Act — Total Disability — Judicial Estoppel. The doctrine of judicial estoppel precludes a party alleging employment discrimination under the Handicappers’ Civil Rights Act from alleging that the party has a physical or mental condition that is unrelated to the party’s ability to perform the duties of a particular job where the party has successfully represented to the Social Security Administration the inconsistent position that the party is totally and permanently disabled and unable to work and thus entitled to social security disability benefits (42 USC 423[d] [1] [A], [d] [2]; MCL 37.1103[e][i][A], 37.1202[l][b]; MSA 3.550[103][e][i][A], 3.550[202][l][b]). Plaszczak & Bauhof, PC. (by James F. Bauhof), for the plaintiffs. Miller, Canfield, Paddock and Stone, P.L.C. (by Ronald E. Baylor and Scott R. Sikkengd), for the defendant. Before: Hood, P.J., and Neff and M. A. Chrzanowski , JJ. Circuit judge, sitting on the Court of Appeals by assignment. Per Curiam. Plaintiffs filed this action against defendant, alleging that defendant violated Michigan’s Handicappers’ Civil Rights Act (hora), MCL 37.1101 et seq.; MSA 3.550(101) et seq., and an employment contract with plaintiff. The trial court granted defendant’s motion for summary disposition, finding that the doctrine of judicial estoppel defeated plaintiffs hcra claim and that defendant’s employment policy did not alter plaintiff’s at-will employment. Plaintiffs appeal as of right. We affirm. Plaintiff began working for defendant in 1970. In 1984, he was seriously injured in an automobile accident and was off work for six months. After the automobile accident plaintiff was, and he remains, physically compromised. He suffered a head injury, causing blindness in one eye, deafness in both ears requiring the use of a hearing aid, partial paralysis of his tongue causing a speech impediment, partial paralysis of his right hand, a ringing in his head, and a short-term memory deficit. Plaintiff also suffered a hip injury, requiring a hip replacement in 1991. When he returned to work following the accident, plaintiff resumed his former position, but after approximately eight to ten months, his position was changed to that of engineering liaison/expediter. This change in job responsibilities was made to accommodate plaintiffs physical limitations. On January 9, 1991, plaintiff went on medical leave because of complications resulting from the 1984 automobile accident. Plaintiff underwent brain surgery in February 1991 and hip replacement surgery in August 1991, and was off work for approximately one year. Plaintiff returned to work on half-day status on February 3, 1992, with some physical restrictions. He was restricted from climbing ladders, squatting, and working on his hands and knees. Most of the duties of plaintiffs position as engineering liaison/expediter were no longer available because of their reassignment to other employees and a reduction in the work force. The new job description involved primarily maintenance responsibilities. On February 14, 1992, approximately two weeks after plaintiff returned to work, he made a comment to his supervisor that his supervisor perceived as a threat. Plaintiff was informed the following day that he was suspended for threatening a supervisor. Through a letter dated March 24, 1992, defendant requested plaintiff to supply, by April 16, 1992, medical information demonstrating either an ability or an inability to work, or plaintiffs employment would be terminated effective that date. Plaintiffs counsel responded by a letter, stating an uncertainty regarding the specific information needed, but some medical records were enclosed. On April 16, 1992, defendant sent a letter to plaintiff indicating that because he had not provided a medical explanation regarding his conduct on February 14, 1992, defendant was terminating plaintiff’s employment, effective April 16, 1992. On August 14, 1991, plaintiff had applied for social security disability benefits. On his application, he had indicated that he claimed total disability as of February 11, 1991. Plaintiff testified in his deposition that he received these benefits. Defendant moved for summary disposition in the trial court, asserting that the doctrine of judicial estoppel should be applied to plaintiff’s claim under the hcra. It argued that because plaintiff successfully represented himself as being totally disabled to the Social Security Administration for purposes of receiving social security disability benefits, he could not be considered handicapped for purposes of the hcra. The trial court agreed. It also held that the employment policy relied upon by plaintiff for purposes of his argument that defendant breached the parties’ employment contract did not establish an employment contract terminable for just cause only. We first address the trial court’s application of the doctrine of judicial estoppel. Plaintiff claims that the trial court erred in applying this doctrine. We disagree. Defendant’s motion was brought pursuant to MCR 2.116(C)(8) and (C)(10). The trial court did not state under which subrule it granted defendant’s motion. Because it referred to evidence outside the pleadings, we assume that summary disposition was granted pursuant to MCR 2.116(C)(10). See MCR 2.116(G)(5). The trial court’s disposition of a motion for summary disposition is reviewed de novo. Sanchez v Lagoudakis (On Remand), 217 Mich App 535, 539; 552 NW2d 472 (1996). A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual basis of a claim. Ladd v Ford Consumer Finance Co, Inc, 217 Mich App 119, 124; 550 NW2d 826 (1996). When we review a trial court’s decision regarding a motion for summary disposition under MCR 2.116(C)(10), we consider all relevant affidavits, depositions, admissions, and other documentary evidence submitted by the parties, MCR 2.116(G)(5), in a light most favorable to the nonmoving party. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). We must then determine whether there exists a genuine issue of material fact on which reasonable minds could differ or whether the moving party is entitled to judgment as a matter of law. Id.; Sanchez, supra at 539. The HCRA provides that “[a]n employer shall not. . . [discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment, because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job or position.” MCL 37.1202(l)(b); MSA 3.550(202)(1)(b). To establish a prima facie case of discrimination under the HCRA, a plaintiff must demonstrate that (1) he is handicapped as defined by the HCRA, (2) the handicap is unrelated to his ability to perform the duties of a particular job, and (3) that he was discriminated against in one of the ways described in the statute. Sanchez, supra. “Handicap” is defined in the hcra, MCL 37.1103(e); MSA 3.550(103)(e), as, in part: (¿) A determinable physical or mental characteristic of an individual, which may result from disease, injury, congenital condition of birth, or functional disorder, if the characteristic: (A) . . . substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s ability to perform the duties of a particular job or position or substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s qualifications for employment or promotion. For purposes of the Social Security Act, “disability” is defined as “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 USC 423(d)(1)(A). Furthermore, the act provides: (A) An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. . . . (B) In determining whether an individual’s physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility under this section, the Commissioner of Social Security shall consider the combined effect of all of the individual’s impairments without regard to whether any such impairment, if considered separately, would be of such severity. ... [42 USC 423(d)(2).] Plaintiff admits receiving social security disability benefits, and defendant provided the trial court with a copy of plaintiffs application for benefits. The application, which is dated August 14, 1991, indicates that plaintiff became unable to work on February 11, 1991, because of his disabling condition and that he was still disabled when the application was completed. In his deposition, plaintiff stated that he continued to receive social security disability benefits. Thus, defendant argued, because plaintiff successfully represented that he was disabled, i.e., completely unable to work, the doctrine of judicial estoppel should be applied to preclude him from asserting the inconsistent position that he was handicapped, i.e., has a physical or mental condition that is unrelated to his ability to perform the duties of a particular job, for purposes of a discrimination suit under the hcra. We agree. The doctrine of judicial estoppel is applied by the courts to thwart the efforts of litigants who attempt to play “fast and loose” with the legal system. Paschke v Retool Industries, 445 Mich 502, 509; 519 NW2d 441 (1994), citing Bigelow, Estoppel (6th ed), p 783. Our Supreme Court has adopted the doctrine, as applied in the context of administrative proceedings, under the “prior success” model: “ ‘Under this doctrine, a party who has successfully and unequivocally asserted a position in a prior proceeding is estopped from asserting an inconsistent position in a subsequent proceeding.’ ” Paschke, supra at 509, quoting Lichon v American Universal Ins Co, 435 Mich 408, 416; 459 NW2d 288 (1990), citing Edwards v Aetna Life Ins Co, 690 F2d 595, 598 (CA 6, 1982). The particular question before us is one of first impression. In Paschke, the question presented was whether, in order to secure unemployment benefits under the Employment Security Act, MCL 421.1 et seq.; MSA 17.501 et seq., a representation before the Michigan Employment Security Commission (MESC) that one was willing and able to work could be used to preclude a subsequent claim of total disability under the Worker’s Disability Compensation Act, MCL 418.101 et seq.) MSA 17.237(101) et seq. The Supreme Court concluded that because there was no explicit prohibition of receiving both total disability payments and unemployment benefits during the same period and nothing to indicate that under the statutes the claim that one is ready and able to work is inherently inconsistent with a subsequent total disability claim during the same period, the plaintiff’s receipt of unemployment benefits did not preclude his claim for total disability payments. Paschke, supra at 513. The Supreme Court quoted Professor Larson: “At first glance the two positions may appear mutually exclusive; but the inconsistency disappears when the special meaning of disability in workmen’s compensation is remembered, involving, as we have seen, the possibility of some physical capacity for work which is thwarted by the inability to get a job for physical reasons. Thus, the injured claimant may honestly represent to the Employment Security office that he is able to do some work, and with equal honesty tell the Compensation Board later that he was totally disabled during the same period since, although he could have done some kinds of work, no one would give him a job because of his physical handicaps.” [Paschke, supra at 513-514, quoting 1C Larson, Workmen’s Compensation, § 57.65, p 10-492.50.] The conclusion of the Paschke Court regarding the relationship between unemployment compensation and disability benefits can be distinguished from the situation now before us. To receive social security disability benefits, plaintiff certified that he was “not only unable to do his previous work but [could not] engage in any other kind of substantial gainful work . . . .’’To maintain a claim under the HCRA, plaintiff was required to demonstrate that his physical or mental characteristics were “unrelated to [his] ability to perform the duties of a particular job or position . . . .” These two positions cannot be reconciled as those in Paschke could. As stated in Paschke: In a wage-loss system, in which disability is phrased in terms of a limitation of the worker’s earning capacity, rather than the degree of physical impairment, physical disability is only one factor of the equation. The fact that the mesc may have adjudged plaintiff able and available to perform some work for which he was qualified by training and experience simply does not foreclose the possibility that, during that same period and thereafter, plaintiff actually suffered a limitation of his earning capacity, even one rising to the level of total disability. [Id. at 515, n 11; citations omitted.] Here, however, the receipt of social security disability benefits and a successful claim under the HCRA would require inconsistent findings regarding the claimant’s physical impairment and ability to perform. A claimant simply may not, on the one hand, be completely unable to engage in gainful work, yet at the same time be physically or mentally limited in a way unrelated to the claimant’s ability to perform job duties. We find persuasive the reasoning of the Third Circuit Court of Appeals in McNemar v Disney Store, Inc, 91 F3d 610 (CA 3, 1996). The issue there was quite similar to the instant one. The plaintiff in McNemar was employed by the defendant. After he learned of his status as mv-positive, he took $2 from his cash register without documenting or repaying it. At a loss-prevention interview, the plaintiff admitted his actions, and he was immediately suspended. When he was told by his superior and the loss-prevention supervisor that they would call headquarters to determine whether the plaintiff would be discharged, the plaintiff broke down and told them that he was HIV-positive. The plaintiff was ultimately discharged according to the company’s policy regarding using store money for personal use. Id. at 613-615. After his discharge from his position with the Disney Store, the plaintiff sought and received state disability benefits, social security disability benefits, and an exemption from repayment of an educational loan. To obtain these benefits, the plaintiff and his physicians certified that he had been totally and permanently disabled from approximately five weeks before his discharge. Id. at 615. The plaintiff later filed a complaint against the defendant alleging a violation of the Americans with Disabilities Act (ada) 42 USC 12101 et seq., § 510 of the Employee Retirement Income Security Act, 29 USC 1140, and the New Jersey Law Against Discrimination, NJ Stat Ann 10:5-4.1. The Third Circuit Court of Appeals agreed with the district court’s application of judicial estoppel and concluded that the plaintiff’s representation to the Social Security Administration that he was totally and permanently disabled was clearly inconsistent with his position under the ada, 42 USC 12111(8), 12112(a), that he was “a qualified person with a disability who, with or without reasonable accommodation, can perform the essential functions of the job.” McNemar, supra at 618. We conclude that plaintiff’s representation to the Social Security Administration that he was totally and permanently disabled precludes his claim under the hcra. The trial court did not err in granting defendant’s motion for summary disposition. Next, plaintiff argues that the trial court erred in granting defendant summary disposition of plaintiff’s claim that defendant breached the parties’ employment contract by discriminating against plaintiff, an activity prohibited by defendant’s employment policy no. 105, which addresses equal employment opportunity and affirmative action. The trial court granted defendant’s motion on the basis that the policy relied upon by plaintiff did not alter plaintiff’s at-will employment. We find no error in the trial court’s decision. Generally, a contract of employment for an indefinite term is presumed to be terminable at will. Rood v General Dynamics Corp, 444 Mich 107, 116; 507 NW2d 591 (1993). To overcome the presumption of at-will employment, a party must present evidence of a contract provision for a definite term of employment or one prohibiting discharge absent just cause. Id. at 117. These provisions may be either explicit promises or promises implied in fact. Id. Moreover, “employer policies and procedures may also become a legally enforceable part of an employment relationship if such policies and procedures instill ‘legitimate expectations’ of job security in employees.” Id. at 117-118, quoting Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 615; 292 NW2d 880 (1980). Plaintiff claims that defendant’s policy regarding equal employment opportunity and affirmative action created an employment provision prohibiting plaintiff’s being discharged on the basis of his physical or mental handicap. The policy stated that it was defendant’s policy “to afford equal employment and advancement opportunity for all qualified individuals without distinction or discrimination because of . . . physical or mental handicap . . . .” Plaintiff’s claim arising from this policy is essentially a duplication of his claim under the HCRA. We conclude that for the same