Discrimination Cases

ROBERSON v OCCUPATIONAL HEALTH CENTERS OF AMERICA, INC Docket No. 186020. Submitted October 9, 1996, at Detroit. Decided December 3, 1996, at 9:00 A.M. Annette Roberson brought an action in the Wayne Circuit Court against Occupational Health Centers of America, Inc., and one of its managers, alleging that the defendants’ termination of the plaintiff’s employment violated the Whistleblowers’ Protection Act, MCL 15.361 et seq.) MSA 17.428(1) eí seq., and the Civil Rights Act, MCL 37.2101 et seq.) MSA 3.548(101) et seq. The court, J. Phillip Jourdan, X, granted summary disposition for the defendants. The plaintiff appealed. The Court of Appeals held: 1. To establish a prima facie case under the Whistleblowers’ Protection Act, a plaintiff must demonstrate that the plaintiff was engaged in a protected activity as defined by the act, the plaintiff was subsequently discharged, and there existed a causal connection between the protected activity and the discharge. In this case, the plaintiff failed to show that the defendants received notice of her filing with state authorities of a complaint of occupational health and safety violations at the defendants’ Dearborn office and therefore failed to demonstrate the existence of1 a causal connection between her claimed reporting of occupational health and safety violations and her discharge from employment. The trial court correctly ruled that the plaintiff failed to establish a prima facie case under the Whistleblowers’ Protection Act. 2. The plaintiff’s claim pursuant to the Civil Rights Act of racial discrimination under the disparate impact theory required a showing that a facially neutral employment practice burdened a protected class of persons more harshly than others. Although the plaintiff presented evidence to support her claim that the Dearborn office was in worse condition than the defendants’ other offices and that the majority of the employees assigned to the Dearborn office was African-American, the plaintiff failed to present any evidence suggesting that the majority of white employees was assigned to other offices, that the employees in the other offices were predominantly white, or that African-Americans were more likely to be assigned to the Dearborn office. The trial court correctiy determined that the plaintiff failed to establish a prima facie case of racial discrimination under the Civil Rights Act. Affirmed. 1. Master and Servant — Whistleblowers’ Protection Act — Retaliatory Discharge — Prima Facie Case — Appeal. In order to establish a prima facie case of retaliatory discharge under the Whistleblowers’ Protection Act, a plaintiff must establish that the plaintiff was engaged in a protected activity as defined by the act, that the plaintiff was subsequently discharged, and that a causal connection existed between the protected activity and the discharge; the determination whether the evidence establishes a prima facie case as a matter of law is reviewed de novo on appeal (MCL 15.362; MSA 17.428[2]). 2. Civil Rights — Employment Discrimination — Disparate Impact. A prima facie case under the Civil Rights Act of employment discrimination under the disparate impact theory requires a showing that a facially neutral employment practice burdened a protected class of persons more harshly than others (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). Law Offices of Thomas E. Marshall (by Thomas E. Marshall and Nancy Brewer), for the plaintiff. DeWitt, Balke & Vincent, P.L.C. (by Charles C. DeWitt, Jr., and Cathleen C. Jansen), for the defendants. Before: Michael J. Kelly, P.J., and Hood and H. D. SOET JJ. Circuit judge, sitting on the Court of Appeals by assignment. Per Curiam. Plaintiff appeals as of right from an order granting summary disposition to defendants in this wrongful discharge case. Her claims were based on violations of the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seq.; MSA 17.428(1) et seq., and the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. We affirm. Plaintiff, an African-American woman, was hired by defendant Occupational Health Centers of America, Inc., (OHCA) on November 22, 1993, and worked primarily in its Dearborn office. Plaintiff and other employees of that office complained to defendant Tom James and other OHCA managers regarding physical conditions of the office, including rodent and insect infestation, leaky ceilings, sewer backups, exposed wiring, and electrical short circuits. On a Michigan Department of Public Health (dph) form dated both November 29, 1993, and December 9, 1993, plaintiff complained about the conditions in the Dearborn office. Plaintiffs employment with OHCA was terminated on January 12, 1994. Plaintiff brought a two-count action, and defendants moved for summary disposition of both claims pursuant to MCR 2.116(C)(10). Defendants claimed that plaintiff was terminated because of her tardiness and absenteeism. Defendants’ motion was granted. We review a trial court’s decision regarding a summary disposition motion de novo. Ladd v Ford Consumer Finance Co, Inc, 217 Mich App 119, 124; 550 NW2d 826 (1996). A motion brought under MCR 2.116(C)(10) tests the factual basis of a claim and when “[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law,” summary disposition is proper. MCR 2.116(C)(10); Ladd, supra. The moving party must specifically identify those issues for which it believes there is no genuine disputed fact, and, in opposing the motion, the nonmoving party may not rely on mere allegations or denials in its pleadings, but must set forth specific facts through affidavits or other permitted evidence to demonstrate that there exists a genuine issue for trial. MCR 2.116(G)(4). The trial court must consider all affidavits, pleadings, depositions, admissions, and other documentary evidence filed or submitted by the parties in deciding the motion. MCR 2.116(G)(5). The evidence must be considered in a light most favorable to the nonmoving party. Ladd, supra at 125. Plaintiff argues that the trial court erred in finding that she failed to create a genuine factual dispute with respect to a prima facie claim under the wpa. We disagree. We review whether a plaintiff set forth evidence to establish a prima facie case under the wpa de novo. Terzano v Wayne Co, 216 Mich App 522, 526; 549 NW2d 606 (1996). The wpa protects an employee from discharge, threats, or other discrimination regarding her employment because she “reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule . . . .” MCL 15.362; MSA 17.428(2). To establish a prima facie case, a plaintiff must demonstrate that (1) the plaintiff was engaged in a protected activity as defined by the act, (2) the plaintiff was subsequently discharged, and (3) there existed a causal, connection between the protected activity and the discharge. Id. It is clear that by filing a complaint with the DPH, plaintiff was engaged in protected activity. The parties do not dispute that plaintiff was discharged following her filing of the complaint. Plaintiff asserts that the trial court erred in concluding that she failed to demonstrate the existence of a causal connection between the filing of the complaint and her discharge. “[A]n employer is entitled to objective notice of a report or a threat to report by the whistleblower.” Kaufman & Payton, PC v Nikkila, 200 Mich App 250, 257; 503 NW2d 728 (1993). Plaintiff argues that she provided evidence that she had told a manager that she was about to report the conditions of the building to the Occupational Safety and Health Administration (OSHA) and was terminated as a result. We find that plaintiff failed to provide evidence to demonstrate a question of fact regarding this issue. The following exchange took place during plaintiff’s deposition: Q. Did you tell anybody at ohc that you had filed this complaint? A. Kathy [a manager] knew. Q. You say, “Kathy knew” How do you know that Kathy knew? A. I told her I was going to do it if they didn’t get the mice out of here. Q. Well, now, what exactly is it that you tell [sic] Kathy? A. I said — the only thing I said' — we were on the phone and I said, “Well, Kathy, if they don’t do something about these mice, I’m going to have to go to OSHA about this.” Plaintiff was again questioned on this topic: Q. You told — you had a conversation with Kathy in which you indicated, “You know, if this doesn’t get fixed or solved, I’m going to file this complaint.” A. No. That’s not what I said. What I said was, “I’m going to call OSHA.” The trial court discounted plaintiff’s later statement as her paraphrasing what she said to Kathy. As noted by the trial court, plaintiff was earlier asked specifically what she had told Kathy, and she responded in specific terms. With the exception of her statement to Kathy, plaintiff testified that she told no one that she had filed a complaint with osha. We find plaintiffs statement to Kathy to fall short of giving her employer notice of a report or a threat to report the deplorable conditions of the building. Plaintiff further asserts that the week before her termination, OSHA inspectors came to the office and that she had received a letter from OSHA that indicated that they had been to the building. Therefore, she argues, defendants had notice that she had filed a complaint. Again, plaintiff has provided insufficient evidence to create an issue of fact. Plaintiff testified at her deposition that a man from osha was at the office the week before she was terminated. Defendants’ counsel asked her what the inspector’s name was, and plaintiff responded: “Oh, I don’t know. He went straight to the office. And what happened was Gladys came in the office to tell me the osha people were there. And I said, ‘Well, that’s fine.’ ” Plaintiff also testified that she saw the man “when he flashed his badge. He had a badge.” We first note that plaintiff did not indicate that she read the man’s badge or otherwise personally confirmed that he was an osha inspector. Additionally, Gladys’ alleged statement to plaintiff that representatives of osha were on the premises directly contradicts documentary evidence provided by defendants. These statements are the only evidence provided to establish that an inspector was at the office before plaintiff was terminated. Plaintiff further testified that she received (1) confirmation from osha that they had received her complaint and (2) a letter indicating that they had been to the building. Then, apparently the week following her termination, OSHA mailed plaintiff a letter informing her that they had investigated her claim. Plaintiff may not rest on these mere conclusions and allegations, but was required to provide documentary evidence in support of these claims. MCR 2.116(G)(4). This she did not do. Plaintiff did not provide the court with the “little white” card she purportedly received from osha confirming its receipt of her complaint. However, she did submit a letter, dated January 11, 1994, sent to OHCA from the dph, informing OHCA that a report alleging hazardous working conditions had been received by the dph. The letter asked that OHCA investigate the allegations and advise the DPH of the findings and when corrective actions would be taken. The dph also informed OHCA that if it did not receive a response by the stated date, an “investigation may be scheduled.” Defendants provided evidence that this letter was received by OHCA on January 13, 1994, the day following plaintiffs termination. This letter does not support plaintiffs assertion that an inspector visited the site before her termination. Defendants submitted to the trial court a December 29, 1993, letter sent to plaintiff from the dph. This letter indicated that the dph had received plaintiffs complaint and that “[a]n investigation of these issues will be conducted by letter to the employer.” Other documentary evidence provided by defendants in the lower court included a second letter sent to plaintiff from the dph, dated January 11, 1994, from the dph’s district office in Westland. Again, plaintiff was informed that her complaint had been received. This letter further stated: “In an effort to reduce our backlog, complaints meeting certain criteria are initially responded to by letter to the employer. We have determined that your complaint is in this category and have sent the enclosed letter to the employer.” And finally, defendants provided a copy of an inspection report from the Department of Labor, which reflected that the office was inspected on January 13, 1994, by a safety officer from the Department of Labor, who did not contact ohca before arriving for the inspection. Plaintiff has failed to come forth with any documentary evidence to demonstrate that, contrary to these documents, the office was visited by inspectors from the dph before her January 12, 1994, termination. After reviewing this evidence in a light most favorable to plaintiff, we conclude that she failed to establish a prima facie case under the wpa. She has not demonstrated the existence of a causal connection between her protected conduct and her discharge. Because there was no genuine issue of material fact and defendants were entitled to judgment as a matter of law, the trial court properly granted summary disposition for defendants under MCR 2.116(C)(10). Plaintiff next argues that the trial court erred in finding that there existed no genuine issue of material fact with respect to her disparate impact claim under the Civil Rights Act. We disagree. To establish a prima facie case of discrimination under the Civil Rights Act under the theory of disparate impact, plaintiff was required to show, in addition to the fact that she was a member of a protected class, that “a facially neutral employment practice burden[ed] a protected class of persons more harshly than others.” Reisman v Regents of Wayne State Univ, 188 Mich App 526, 538-539; 470 NW2d 678 (1991). Although she presented evidence to support her claim that the Dearborn office was in worse condition than other ohca offices and that the majority of the OHCA employees assigned to the Dearborn office was African-American, plaintiff failed to present any evidence suggesting that the majority of white employees was assigned to other offices, that the staff members in other OHCA offices were predominately white, or that African-Americans were more likely to be assigned to the Dearborn office. In fact, the evidence demonstrated that the majority of the staff in an OHCA office in Detroit, which plaintiff admitted was in good condition, was African-Americans. Because plaintiff failed to present evidence that employees of different races were treated differently, she failed to establish a prima facie case of race discrimination under the disparate impact theory. Affirmed. We note that although plaintiff uses “disparate treatment” to refer to her argument, it appears that she has attempted to set forth a claim under the theory of “disparate impact.”

STEVENS v INLAND WATERS, INC Docket No. 177140. Submitted September 17, 1996, at Detroit. Decided November 22, 1996, at 9:20 A.M. Leave to appeal sought. Charles E. Stevens brought an action in the Wayne Circuit Court against Inland Waters, Inc., and Benjamin Rusch, alleging violation of the Michigan Handicappers’ Civil Rights Act (hcra) as a result of the termination of his employment as a security guard with Inland Waters by Rusch, the plaintiff’s supervisor, on the basis of the plaintiff’s smoking and addiction to nicotine. The court, Pamela R. Harwood, J., granted summary disposition for the defendants, finding that smoking and nicotine addiction is not a handicap within the meaning of the hcra. The plaintiff appealed. The Court of Appeals held: The trial court did not err in granting summary disposition for the defendants. 1. An individual’s condition must substantially limit at least one of the individual’s major life activities to fall within the hcra’s definition of a handicap. 2. Whether an impairment substantially limits a major life activity is determined in light of the nature and severity of the impairment, its duration or expected duration, and its permanent or expected permanent or long-term effect. 3. An impairment that interferes with an individual’s ability to do a particular job, but does not significantly decrease that individual’s ability to obtain satisfactory employment elsewhere, does not substantially limit the major life activity of working. 4. The plaintiff’s smoking and addiction to nicotine did not substantially limit his life’s major activities of caring for himself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, or working. The plaintiff did not provide evidence of any permanent or long-term effect of his alleged impairment. If the alleged impairment had any effect on the plaintiff’s ability to perform the job of a security guard at Inland Waters, it did not significantly decrease his ability to find satisfactory employment elsewhere. Affirmed. 1. Civil Rights — Handicappers’ Civil Rights Act — Words and Phrases — “Handicap” — “Major Life Activities.” An individual’s condition must substantially limit at least one of the individual’s major life activities to fall within the meaning of a “handicap” as defined by the Handicappers’ Civil Rights Act; “major life activities” are functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, or working (MCL 37.1103[e][i][A]; MSA 3.550[103][e][i][A]). 2. Civil Rights — Handicappers’ Civil Rights Act — Handicap — Major Life Activities. Whether an impairment substantially limits a major life activity and qualifies as a “handicap” under the Handicappers’ Civil Rights Act is determined in light of the nature and severity of the impairment, its duration or expected duration, and its permanent or expected permanent or long-term effect; an impairment that interferes with an individual’s ability to do a particular job, but does not significantly decrease the individual’s ability to obtain satisfactory employment elsewhere, does not substantially limit the mejor life activity of working (MCL 37.1103[e][i][A]; MSA 3.550[103][e][i][A]). Allen J. Counard, P.C. (by Charles A. Butler), for the plaintiff. Jaffe, Raitt, Heuer & Weiss, P.C. (by Thomas H. Williams), for the defendants. Before: Wahls, P.J.,. and Fitzgerald and L. P. Bor-RELLO JJ. Circuit judge, sitting on the Court of Appeals by assignment. Wahls, P.J. Plaintiff appeals as of right from the trial court’s grant of defendants’ motion for summary disposition in this case brought under the Michigan Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.\ MSA 3.550(101) et seq. The trial court granted defendants’ motion on the basis that smoking is not a handicap within the meaning of the hcra and specifically that “[nicotine] addiction is [not] synonymous with handicap.” We affirm. Plaintiff began working as a security guard with defendant Inland Waters, Inc., in September 1983. Defendant Benjamin Rusch became plaintiffs supervisor. Although plaintiff admitted that he knew that smoking was prohibited in the guardhouse, he disputed whether Inland Waters had a general policy against smoking by its employees. In October 1992, there were two incidents in which Rusch called plaintiff at work and asked plaintiff if he was smoking. Plaintiff answered in the affirmative both times. After the first incident, plaintiff received an “Employee Warning Report” stating that there was no smoking on company property. Plaintiff alleges that, the night after the second incident, Rusch told him that he wanted only nonsmoking guards at the company and that he wanted plaintiff to quit smoking entirely whether on or off the job. When plaintiff responded that he had a constitutional right to smoke, Rusch terminated plaintiff’s employment. Plaintiff argues that the trial court erred in granting defendants’ motion for summary disposition. We disagree. In reviewing a trial court’s decision regarding a motion for summary disposition brought pursuant to MCR 2.116(C)(10), this Court examines all relevant affidavits, depositions, admissions, and other documentary evidence and construes the evidence in favor of the nonmoving party. Sanchez v Lagoudakis (On Remand), 217 Mich App 535, 539; 552 NW2d 472 (1996). The Court then determines whether a genuine issue of material fact exists on which reasonable minds could differ. Id. We review de novo a trial court’s grant or denial of a motion for summary disposition. Id. Section 202(1)(b) of the hcra, MCL 37.1202(1)(b); MSA 3.550(202)(1)(b), provides that an 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.” Sanchez, supra, p 539. To establish a prima facie case of discrimination under the hcra, it must be shown that (1) the plaintiff is “handicapped” as defined in the hcra, (2) the handicap is unrelated to the plaintiff’s ability to perform the duties of a particular job, and (3) the plaintiff has been discriminated against in one of the ways set forth in the statute. Id. The HCRA defines a “handicap” for purposes of this statute as a “determinable physical or mental characteristic of an individual ... if the characteristic . . . substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s ability to perform the duties of a particular job or position or substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s qualifications for employment or promotion.” MCL 37.1103(e)(i)(A); MSA SASOClOSXeXiXA). The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Sanchez, supra, p 540. The first criterion in determining intent is the specific language of the statute. Id. Courts may not speculate about the probable intent of the Legislature beyond the words expressed in the statute. Id. If the plain and ordinary meaning of the language is clear, judicial construction is normally neither necessary nor permitted. Id. Under the plain language of the HCRA, to fall within the definition of a handicap, an individual’s condition must substantially limit at least one of his major life activities. Chmielewski v Xermac, Inc, 216 Mich App 707, 714; 550 NW2d 797 (1996). However, the statute does not further define the terms “substantially limits” or “major life activity.” Nevertheless, we may turn to two federal statutes for guidance in defining these terms. The purpose of the HCRA is similar to the purposes of the Americans with Disabilities Act (ada), 42 USC 12101 et seq., and the Rehabilitation Act of 1973, 29 USC 701 et seq. The purpose of the hcra is to ensure that all persons be accorded equal opportunities to obtain employment, housing, and the utilization of public accommodations, services, and facilities. Adkerson v MK-Ferguson Co, 191 Mich App 129, 137; 477 NW2d 465 (1991). This is echoed in the Rehabilitation Act’s stated desire “to empower individuals with disabilities to maximize employment, economic self-sufficiency, independence, and inclusion and integration into society, through . . . the guarantee of equal opportunity.” 29- USC 701(b)(1)(F). Similarly, the ADA was enacted to eliminate discrimination against people with disabilities and to create causes of. action for qualified people who have faced discrimination. In re Torrance P, 187 Wis App 2d 10, 16; 522 NW2d 243 (1994). In addition to the similarity of purpose, the hcra, the Rehabilitation Act, and the ADA share definitional similarities. Under the ADA, the term “disability” means “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” 42 USC 12102(2). Similarly, under the Rehabilitation Act, 29 USC 706(8)(b)(i), a handicapped individual is a person who “has a physical or mental impairment which substantially limits one or more of such person’s major life activities.” The hcra’s definition of “handicap,” the Rehabilitation Act’s definition of “handicap,” and the ada’s definition of “disability” all share the requirement that a handicap or disability must be a condition that “substantially limits” one or more of a person’s “major life activities.” See Sanchez v Lagoudakis, 440 Mich 496, 504, n 25; 486 NW2d 657 (1992) (stating that the ADA’s definition of “disability” is similar to the Rehabilitation Act’s definition of “handicap”). Because of the similarity in purpose and the similarity in definitions, we believe it is appropriate to look to the Rehabilitation Act and the ada for guidance in interpreting the terms “substantially limits” and “major life activities” under the HCRA. See In re Subpoena Duces Tecum to the Wayne Co Prosecutor, 191 Mich App 90, 94; 477 NW2d 412 (1991); see also Pulver v Dundee Cement Co, 445 Mich 68, 75; 515 NW2d 728 (1994). For purposes of both the ADA and the Rehabilitation Act, administrative regulations define “major life activities” as “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 CFR 1630.2(i); Dutcher v Ingalls Shipbuilding, 53 F3d 723, 726 (CA 5, 1995); Jasany v United States Postal Service, 755 F2d 1244, 1248 (CA 6, 1985). Whether an impairment substantially limits a major life activity is determined in light of (1) the nature and severity of the impairment, (2) its duration or expected duration, and (3) its permanent or expected permanent or long-term effect. 29 CFR 1630.2(j) (2)(i)-(iii); Dutcher, supra, p 726. An impairment that interferes with an individual’s ability to do a particular job, but does not significantly decrease that individual’s ability to obtain satisfactory employment elsewhere, does not substantially limit the major life activity of working. 29 CFR 1630.2(j)(3)(i); Dutcher, supra, p 727; Jasany, supra, p 1248; see E E Black, Ltd v Marshall, 497 F Supp 1088, 1099-1101 (D Hawaii, 1980). We adopt these definitions and holdings for purposes of interpreting the HCRA. Here, even if plaintiff’s addiction to nicotine affected his “ability to choose not to smoke” and limited his “body’s ability to be without discomfort when not smoking,” it did not substantially limit his life’s major activities. His smoking and addiction to nicotine did not interfere with caring for himself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, or working. Plaintiff has not provided evidence of any permanent or long-term effect of his alleged impairment. If this alleged impairment had any effect on his ability to perform the job of a security guard at Inland Waters, it did not significantly decrease his ability to find satisfactory employment elsewhere. Plaintiff’s argument that nicotine addiction is like alcoholism ignores the fact that alcoholism is included in the HCRA’s definition of a “handicap,” whereas nicotine addiction is not. MCL 37.1103(f)(ii); MSA 3.550(103)(f)(ii). Similarly, plaintiff has provided no support for his assertion that Governor John Engler vetoed a bill prohibiting discrimination against people for using tobacco outside the work environment because of a belief that discrimination against smokers was already prohibited by the hcra. Indeed, plaintiffs argument that the Legislature was ignorant of the legal effect of the hcra contradicts the well-established presumption that, when enacting a law, a Legislature has knowledge of existing laws regarding that subject. Lumley v Univ of Michigan Bd of Regents, 215 Mich App 125, 129-130; 544 NW2d 692 (1996). As was the case in Chmielewski, supra, p 715, plaintiffs claimed “handicap” is shared by countless other individuals in the workplace and in society as a whole. To automatically label this condition as one that substantially impairs a major life activity is inconsistent with the hcra and would do a gross disservice to the truly handicapped. Id. Accordingly, the trial court did not err in granting defendants’ motion for summary disposition. Id; Dutcher, supra, pp 726-727; Jasany, supra, pp 1248-1250. Affirmed. The definition of handicap also includes a history of such determinable physical or mental characteristic and being regarded as having such a determinable physical or mental characteristic. MCL 37.1103(e) (ii) and (in); MSA 3.550(103)(e)(ii) and (in). Like the hcra’s definition, the definition of a handicapped person or a person with a disability under the ada and the Rehabilitation Act also includes a person with a record of such an impairment or that is regarded as having such an impairment. 42 USC 12102(2)(B) and (C); 29 USC 706(8)(B)(ii) and (iii).

Patsy Allmon, Employee, Plaintiff v. Alcatel, Inc., Employer; Cigna Insurance Company, Carrier; Defendants No. COA94-1244 (Filed 5 November 1996) 1. Workers’ Compensation § 292 (NCI4th)— federal discrimination claim — settlement proceeds not wages — termination of workers’ compensation benefits error The Industrial Commission erred in holding that the settlement proceeds from plaintiffs federal handicap discrimination claim against defendant employer constituted “wages” and she therefore was not entitled to temporary total disability benefits, since the federal discrimination claim and the worker’s compensation claim were based on two separate and distinct injuries, and recovery for both would not give plaintiff double recovery for a single action. Am Jur 2d, Americans with Disabilities Act: Analysis and Implications §§ I, 257; Job Discrimination § 174; Workers’ Compensation §§ 381-384. 2. Workers’ Compensation § 301 (NCI4th)— refusal to pay benefits — assessment of penalty — appropriate time period The Industrial Commission erred in assessing a penalty against defendant under N.C.G.S. § 97-18(e) only for the period running from the date of the Commission’s first order to reinstate benefits to the date of the Commission’s approval of defendant’s Form 24 request, rather than from the date defendant unilaterally terminated plaintiff’s benefits until the date of plaintiff’s reinstatement, since the statute requires payment of the penalty from the date the benefits are due but not paid, and the Form 24 was effectively vacated by the Claims Examiner two months after its initial approval. Am Jur 2d, Workers’ Compensation § 477. Tort liability of worker’s compensation insurer for wrongful delay or refusal to make payments due. 8 ALR4th 902. On appeal from the opinion and award entered on 11 July 1994 by the North Carolina Industrial Commission. Heard in the Court of Appeals 24 August 1995. Monroe, Wyne & Lennon, P.A., by George W. Lennon, for plaintiff appellant. Cranfill, Sumner & Hartzog, L.L.P., by Patrick H. Flanagan, for defendant appellees. COZORT, Judge. In this case, plaintiff suffered a back injury compensable under the North Carolina Workers’ Compensation Act. Defendant resisted payment of workers’ compensation benefits due plaintiff, by cutting off benefits despite contrary direction by the Industrial Commission. During the pendency of this workers’ compensation dispute, plaintiff filed a separate federal claim alleging handicap discrimination. The federal discrimination claim was settled out of court in 1990, for a monetary remedy and reinstatement of plaintiff to her former position. The settlement reserved plaintiff’s rights to her workers’ compensation claims. Plaintiff requested a hearing with the Industrial Commission alleging she was due additional compensation because of defendant’s cessation of benefits; plaintiff also alleged that a penalty should be assessed against defendant for untimely payment of benefits. The Commission held that the settlement of the federal discrimination claim constituted “wages.” The Commission denied plaintiff’s claim for benefits. We find the Commission erred in classifying the settlement proceeds as “wages,” and we reverse. The facts and procedural history follow. The plaintiff, Patsy Alimón, suffered an injury on 26 July 1980 and an injury on 10 November 1980. The first injury occurred when plaintiff was hit by boxes falling from a forklift. The second injury, and the source of the present compensation controversy, resulted when a coworker tripped and hit plaintiff, knocking her down against a pallet. The second accident caused plaintiff severe injury, forcing her to undergo multiple surgical operations, including several spinal fusions. On 11 March 1987, plaintiff was released by her orthopedic surgeon, with a twenty-percent permanent impairment rating of the back. Due to plaintiffs impaired condition, she was medically restricted from jobs involving certain kinds of lifting. Plaintiff sought to return to work; however, she was told by defendant-employer, on or about 29 May 1987, that no jobs were available meeting her medical requirements. On 28 September 1987, defendant terminated plaintiffs temporary total disability benefits without the necessary Form 24 approval by the Industrial Commission (Commission). On 10 November 1987, the Commission ordered defendant to reinstate benefits, retroactive to the 28 September 1987 date of defendant’s unilateral suspension of benefits. On 18 November 1987, the Commission repeated its order. Defendant complied with neither order. Defendant submitted a Form 24 to the Commission on or about 11 April 1988, which was approved, and which operated to terminate defendant’s obligation to pay plaintiff temporary total disability. On 20 June 1988, the Commission’s Chief Claims Examiner (“Examiner”) ordered defendant to reinstate benefits withheld from plaintiff for the period during which defendant had no Form 24 Commission approval. The Examiner also vacated approval of the Form 24, nullifying its effect and reinstating plaintiff’s temporary total disability payments. The effective retroactive date for benefit reinstatement was not explicitly set forth in the Examiner’s order. However, the order directed defendant to pay benefits prospectively from the date of the order, until otherwise notified by the Commission. The record indicates no retroactive or prospective benefits were ever paid by defendant pursuant to the Examiner’s 20 June 1988 order. Plaintiff filed charges of federal handicap discrimination with the United States Department of Labor in September 1989. On 2 May 1990, plaintiff and defendant settled the federal claims through an agreement entitled “General Release and Settlement Agreement” (Agreement). This Agreement provided plaintiff with $51,235.20 in settlement proceeds and reinstatement to her former position with defendant. Plaintiff was reinstated on 4 May 1990. In the Agreement’s recitals, defendant states it “has agreed to this settlement solely to avoid future expense and inconvenience.” As well, defendant promised to pay plaintiff $51,235.20, “representing back pay from September 28, 1987 until May 4,1990 ....” Section two of the recitals, entitled “Reservation of Workers’ Compensation Claim,” states that the Agreement “does not constitute a waiver of any rights . . . which are compensable under applicable workers’ compensation laws.” Plaintiff, in recital section four, agreed specifically to withdraw her federal claim and to request termination of the Department of Labor’s discrimination investigation. On 17 March 1992, plaintiff filed a “Request That [a workers’ compensation] Claim Be Assigned For Hearing” (Request). Subsequently, a hearing was held before Industrial Commission Deputy Commissioner Charles Markham on 27 March 1992. Plaintiff’s claim before the Deputy Commissioner included, inter alia, a renewed request for temporary total disability running from defendant’s unilateral cessation of benefits on 28 September 1987 to 4 May 1990 (the date of plaintiff’s reinstatement pursuant to the settlement agreement); and, a penalty of ten percent for untimely payment of the aforementioned temporary total disability benefits per N.C. Gen. Stat. § 9748(e) (1991). Deputy Commissioner Markham entered an opinion and award denying plaintiff’s claim for additional disability compensation. On appeal, the Full Commission denied plaintiff’s claim for additional benefits. As part of its opinion and award filed 11 July 1994, the Full Commission reached two conclusions of law relevant to this appeal. First, the Full Commission declared that settlement proceeds from the discrimination claim were “wages” as a matter of law. The Full Commission then denied plaintiff’s request for temporary total disability benefits, holding that the effect of the May 4, 1990 agreement is that plaintiff was not disabled during [the 28 September 1984 to 4 May 1990 period] cited [in the Agreement] within the meaning of the Workers’ Compensation Act, because the lump sum payment replaced “wages” she would have been earning .... The Commission determined that a ten-percent penalty was due plaintiff, pursuant to N.C. Gen. Stat. § 97-18(e), but only for the period between 10 November 1987 (the date of the Commission’s first directive to defendant to pay benefits) until the date of the Form 24 approval on 26 April 1988. We disagree with the Commission’s conclusion that the settlement proceeds are “wages” as a matter of law. We also disagree with the peripd set by the Commission for assessment of the § 97-18(e) penalty. While the scope of this Court’s review of Commission findings is limited to a competent evidence standard, conclusions of law are entirely reviewable for error. Grant v. Burlington Industries, Inc., 77 N.C. App. 241, 247, 335 S.E.2d 327, 332 (1985). Defendant characterizes plaintiff’s discrimination claim as arising out of the same injury and set of facts as the claim for workers’ compensation. Allowing both, defendant claims, is tantamount to handing plaintiff a “double recovery” for a single injury, an action expressly prohibited by the workers’ compensation statute and case law. In Foster v. Western-Electric Co., 320 N.C. 113, 357 S.E.2d 670 (1987), our Supreme Court stated that the Workers’ Compensation Act “disfavors duplicative payments for the same disability.” Id. at 117, 357 S.E.2d at 673. For reasons which follow, we find Foster does not control the instant situation. As opposed to the plaintiff in Foster, the instant plaintiff has alleged two distinct, separately remedial injuries. Plaintiff’s first claim is based on the physical injury which led to the workers’ compensation claim. The second injury claimed by plaintiff arose from defendant’s alleged handicap discrimination. The Foster plaintiff sought two recoveries from a single injury: money from private disability income insurance paid for by the employer, and workers’ compensation. Foster, 320 N.C. at 114, 117 n.1, 357 S.E.2d at 671, 673 n.1. The Foster Court found that the private disability payout “function[ed] as a wage replacement program tantamount to workers’ compensation.” Id. at 117, 357 S.E.2d at 673. Since the private plan operated “in lieu” of workers’ compensation, payment under both was a double recovery and was barred by statute. Id.; and see N.C. Gen. Stat. § 97-31 (1991) (workers’ compensation “shall be paid for disability . . . and shall be in lieu of all other compensation.”) In Estes v. N.C. State University, 102 N.C. App. 52, 58, 401 S.E.2d 384, 387-88 (1991), an employer-defendant argued it was entitled to a credit against an award of temporary total disability benefits paid to its employee because the employer had also paid its disabled employee sick leave and vacation benefits. See also N.C. Gen. Stat. § 97-42 (1991) (credits allowed only when payments to employee were not due and payable under the Act when made by employer). The Estes Court determined that sick leave was often utilized for noninjury related purposes, such as a “family illness or death in the family.” Estes, 102 N.C. App. at 58, 401 S.E.2d at 387. The varying objectives of workers’ compensation and sick leave led the Estes Court to determine that “using sick leave is not tantamount ... to receiving workers’ compensation benefits.” Id. at 59, 401 S.E.2d at 387-88. Since the sick leave benefits had “nothing to do” with the Workers’ Compensation Act, they were “not analogous to payments under a disability and sickness plan.” Id. at 59, 401 S.E.2d at 388. Thus, the benefits were not duplicative, and no set-off was due. Id. The analysis of the Estes Court is instructive here, in that we do not find plaintiff’s recovery for discrimination “analogous to payments under a disability and sickness plan.” Id. The concepts of “workplace disability” and “handicap discrimination” are innately different, and the remedies for either necessarily distinct. The nature of the injuries are different: one is essentially physical, the other primarily based on prejudice or bias. See, e.g., Barber v. Minges, 223 N.C. 213, 216, 25 S.E.2d 837, 839 (1943) (purpose of the Act is to compel industry to take care of its injured workers); Teamsters v. United States, 431 U.S. 324, 358, 52 L.Ed.2d 396, 429 (1977) (Title VII addresses employment decisions based on illegal discriminatory criteria). The Workers’ Compensation Act and the federal civil rights laws address different ills and make up entirely separate bodies of law. The purpose of workers’ compensation is to provide an employee with “swift and sure compensation” for harm resulting from workplace injury. Rorie v. Holly Farms, 306 N.C. 706, 709, 295 S.E.2d 458, 460 (1982). On the other hand, civil rights laws have a more global goal: “to abolish the smallness of mind that clings to pernicious stereotypes founded not on fact but upon historical misconceptions and fear.” Freeman v. Kevinator, Inc., 469 F.Supp. 999, 1000 (E.D. Mich. 1979). Thus, federal laws against discrimination remedy injuries that often carry far-reaching social, political and economic implications. See, e.g., Memphis Community School District v. Stachura, 477 U.S. 299, 91 L.Ed.2d 249 (1986). Because Congress considers policy against discrimination to be of the highest priority, it has given the courts broad remedial power in the area of federal civil rights. Alexander v. Gardner-Denver Company, 415 U.S. 36, 44-46, 39 L.Ed.2d 147, 156-57 (1974). It appears manifest that Congress did not intend to force a worker to choose between remedies under workers’ compensation and those available under federal civil rights laws. Id. at 48, 39 L.Ed.2d at 158 (legislative history of the civil rights acts evinces “a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes.”) Another critical distinction betwéen plaintiff’s workplace injury and the discrimination-based injury is the distinct causal origin of both. Plaintiff’s back was injured first. Later, plaintiff filed a claim alleging defendant had made a discriminatorily based employment decision not to rehire her. Thus, the timing of the injuries was not concurrent. It is uncontradicted that defendant’s alleged discrimination was based on, and arose after, plaintiff’s back-related injury. Simply put, the two injuries are not the same. The settlement of a claim for federal civil rights violations is not, nor was it intended to be, a substitute for workers’ compensation benefits. The Agreement clearly reserved all rights to remedies available to plaintiff under the Workers’ Compensation Act. No set-off or credit is due defendant. The separate but connected issue of the late payment fee is resolvable by a plain reading of the applicable statute, N.C. Gen. Stat. § 97-18(e). In pertinent part, the statute reads: If any installment of compensation payable in accordance with the terms of an agreement approved by the Commission is not paid within 14 days after it becomes due . . . there shall be added to such unpaid installment an amount equal to ten per cen-tum (10%) thereof. . . unless such nonpayment is excused by the Commission after a showing by the employer that owing to conditions over which he had no control such installment could not be paid within the period prescribed for the payment. (Emphasis added.) As we have already concluded that plaintiff’s right to temporary total disability was not foreclosed by settlement of her discrimination claim, defendant’s exposure to the ten-percent § 97-18(e) penalty is evident. Defendant unilaterally suspended payment of temporary total disability to plaintiff on 28 September 1987, without Commission approval or submission of a Form 24. On 10 November 1987, the Commission ordered defendant to reinstate benefits, and to pay such benefits retroactively to the date of their initial suspension on 28 September 1987. Despite repeated orders by the Commission, defendant did not reinstate the benefits due plaintiff. In fact, the record indicates that no reinstated benefits have ever been paid plaintiff. Moreover, defendant did not comply with the Commission’s administrative rules which require submission and approval of a Form 24 prior to benefit termination. Industrial Commission Rule 404 (1996); and see Kisiah v. W. R. Kisiah Plumbing, 124 N.C. App. 72, 476 S.E.2d 434 (1996). The Full Commission, in its opinion and award, assessed a § 97-18(e) penalty against defendant, but only for the period running from 10 November 1987 (the date of the Commission’s first order to reinstate benefits), to 26 April 1988 (the date of the Commission’s approval of defendant’s Form 24 request). Establishment of this time frame for imposition of the penalty is error for two reasons. First, the Full Commission has failed to provide for a penalty from the date it became due, which was 28 September 1987 (the date defendant unilaterally terminated plaintiff’s benefits). This failure violates § 97-18(e)’s mandate to pay the penalty from the date the benefits were due, but not paid. Second, the Full Commission erred by using the approval date of the Form 24 as the termination date for the penalty, as that Form 24 was effectively vacated by the Claims Examiner on 20 June 1988. Failure to award the penalty for the full time period would run afoul of the long-settled policy of interpreting the Workers’ Compensation Act liberally, and in favor of the employee. Dayal v. Provident Life and Accident Ins. Co., 71 N.C. App. 131, 132, 321 S.E.2d 452, 453 (1984). By the mandate of § 97-18(e), defendant is responsible for the penalty from 28 September 1987 through plaintiff’s reinstatement date at Alcatel of 4 May 1990. In summary the Full Commission’s decision as to temporary total disability benefits due is reversed. The case is remanded to the Commission for entry of benefits and penalty consistent with this opinion. Reversed and remanded. Judge McGEE concurs. Judge WALKER concurs in the result.

Edward R. MacCormack & another vs. Boston Edison Company. Norfolk. September 5, 1996. October 28, 1996. Present: Wilkins, C.J., Abrams, Lynch, Greanby, & Fried, JJ. Practice, Civil, Jury trial, Retroactivity of judicial holding, Judgment notwithstanding verdict, Disqualification of judge. Constitutional Law, Trial by jury, Retroactivity of judicial holding. Jury and Jurors. Anti-Discrimination Law, Age, Employment. Employment, Discrimination, Retaliation. Evidence, Relevancy and materiality. In an age discrimination case in which the plaintiff alleged that the employer had unlawfully retaliated against the plaintiff because of his age discrimination action, the trial judge incorrectly ruled that the plaintiff was not entitled to a trial by jury on that claim [656-658], however, the judge correctly concluded that the defendant was entitled to a judgment notwithstanding the verdict on that claim where the plaintiff did not present evidence that the employer took adverse action against him that was sufficient as a matter of law to make out a prima facie case of retaliation. [658-659, 662-664] At a trial of a civil action, the judge properly excluded as evidence a certain newspaper article where he ruled that, even if the article were not inadmissible, its prejudicial value outweighed any probative value it might have. [664-665] At a civil trial, the judge’s remarks to counsel after the conclusion of the trial with respect to his opinion of one of the defendant’s witnesses did not warrant the conclusion that the judge was unable to exercise impartial judgment in the case. [665-666] Civil action commenced in the Superior Court Department on September 13, 1991. The case was tried before Thomas E. Connolly, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Nancy S. Shilepsky {Katherine J. Michon with her) for the plaintiffs. James M. Paulson {Robert P. Morris with him) for the defendant. Janet MacCormack. Fried, J. The plaintiffs, Edward R. and Janet MacCormack, sought damages under G. L. c. 15IB, § 4 (1994 ed.), from his employer for discriminating against him because of his age and for retaliating against him for seeking such relief. A jury found for the defendant on the age discrimination claim and for the plaintiffs on his claim of retaliation. A Superior Court judge, treating the portion of the verdict relating to retaliation as merely advisory, ruled that the plaintiffs were not entitled to a jury trial, found for the defendant on the retaliation claim, and, in the alternative, assuming there was a right to a jury trial, granted judgment for the defendant notwithstanding the jury’s verdict on the ground that the evidence of unlawful retaliation was insufficient as a matter of law. The plaintiffs appealed. We transferred their appeal to this court on our own motion. The parties are entitled to a jury trial for retaliation claims and that ruling applies retroactively. The Superior Court judge was correct, however, that the evidence of unlawful retaliation was insufficient as a matter of law. I Edward R. MacCormack began working for the Boston Edison Company in May, 1976. In 1986, MacCormack became Boston Edison’s “Corporate Nuclear Security Specialist.” This responsibility required him to report directly to John F. Kehoe, Jr., who then served as Boston Edison’s corporate security officer. In October, 1990, MacCormack applied for the position of corporate security officer in anticipation of Kehoe’s upcoming retirement. MacCormack was interviewed for the opening, but John Connolly, a former Federal Bureau of Investigation (FBI) supervisor agent, was chosen for the position instead. When MacCormack asked why he had not been selected, he was told that Connolly had stronger relationships with law enforcement personnel throughout New England and that Connolly had more experience and training in the area of terrorism prevention. At the time Connolly’s appointment was announced in December of 1990 MacCormack was sixty years of age and Connolly was fifty years of age. Approximately four months later, in April, 1991, Mac-Cormack notified Boston Edison that he would be filing a claim of age discrimination as a result of this hiring decision. MacCormack’s first charge was filed on or about May, 1991. On September 13, 1991, MacCormack and his wife filed a claim in the Superior Court alleging that Boston Edison had practiced discrimination toward him on the basis of age and demanding a jury trial. In February, 1993, the MacCormacks filed a motion to amend their complaint to claim that Boston Edison had retaliated against MacCormack because of his age discrimination suit. Boston Edison’s motion to strike MacCormack’s jury demand on the unlawful retaliation claim was denied. It was later agreed that all claims would be tried to the jury, but the judge would reserve judgment as to whether the verdict on the unlawful retaliation claim would be binding or advisory. On January 18, 1994, the jury returned a verdict for Boston Edison on the age discrimination claims, but found for the plaintiffs on the unlawful retaliation claim, awarding the plaintiffs $50,000 in damages for emotional distress and $150,000 in punitive damages. Boston Edison moved to treat the jury verdict on the unlawful retaliation claim as advisory, and the judge agreed. The judge held that there is no right to a jury trial for retaliation claims. Concluding that no unlawful retaliation had taken place, the judge entered judgment for Boston Edison on that claim. The plaintiffs filed a timely notice of appeal on June 23, 1994. On July 11, 1994, this court issued its opinion in Dalis v. Buyer Advertising, Inc., 418 Mass. 220 (1994), which held that a plaintiff asserting a gender discrimination claim under G. L. c. 15IB, § 4, has a right to trial by jury under art. 15 of the Declaration of Rights of the Massachusetts Constitution. On July 14, the plaintiffs moved for reconsideration and relief from judgment on the basis that Dalis mandated a jury trial on their unlawful retaliation claim. Boston Edison opposed the motion and, in the alternative, moved for a judgment notwithstanding the verdict. The judge refused to apply Dalis retroactively, but amended his previous judgment to rule, in the alternative, that Boston Edison was entitled to a judgment notwithstanding the jury’s verdict. ii MacCormack’s claim of age discrimination was brought under G. L. c. 15 IB, § 4. In addition to prohibiting specific forms of discrimination, this statute also forbids retaliation stemming from such discrimination claims: an entity may not “discharge, expel or otherwise discriminate against any person because he has opposed any practices forbidden under this chapter or because he has filed a complaint, testified or assisted in any proceeding under section five.” G. L. c. 15 IB, § 4 (4). A Right to a jury trial. In Dalis we held that art. 15 applies to gender discrimination claims, as these fall within the language of that article guaranteeing trial by jury in, “controversies concerning property . . . between two or more persons.” Dalis v. Buyer Advertising, Inc., supra at 222-223. While the article excepts cases which, prior to its adoption, were addressed to the court’s equity jurisdiction, insofar as Dalis’s claim of gender discrimination sought damages it was analogous to common law causes of action under tort and contract. Id. at 222-224, citing Gallagher v. Wilton Enters., Inc., 962 F.2d 120, 122-123 (1st Cir. 1992). We now take the inevitable next step and hold that the right to a jury trial extends to all damage claims under G. L. c. 15IB, § 4, including claims for unlawful retaliation. General Laws c. 15IB, § 4 (4), retaliation claims arise directly out of a claimant’s original discrimination claim. It would be anomalous to grant a right to a jury trial for claims of unlawful gender, racial, or other such categorical discrimination, but to deny it in cases where it is said that bringing the charge itself led to prohibited discrimination. B Retroactive application of Dalis. Boston Edison argues that, if the Dalis case is held to apply to retaliation claims, its holding should not be applied retroactively to cover this case. The holding in Dalis itself was retroactive, in the sense that it entitled the plaintiff in that case to a jury trial. This does not end the inquiry, however, as decisions which apply retroactively to the case at hand have not always been applied retroactively to all parties in other cases similarly situated. See, e.g., Bouchard v. DeGagne, 386 Mass. 45, 48-49 (1975); McIntyre v. Associates Fin. Servs. Co. of Mass., 367 Mass. 708, 710-712 (1975). Both parties invoke the factors enumerated in McIntyre v. Associates Fin. Servs. Co. of Mass., supra, to decide this issue. The Appeals Court also used these factors in Dean v. Springfield, 38 Mass. App. Ct. 910 (1995), to give Dalis retroactive application. Although the McIntyre test plainly requires retroactivity here, we believe the issue of retroactivity may be resolved more simply. The McIntyre test was based on the Supreme Court’s discussion in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107 (1971). Subsequent to Chevron Oil, the Supreme Court has held that, when a rule of Federal law is applied retroactively in the case in which it is announced, it should apply retroactively to all parties similarly situated to eradicate “selective temporal barriers to the application of federal law” in civil cases. Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 97 (1993). See also Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 751-752 (1995). While we have cited McIntyre with approval in a number of cases addressing retroactivity, see Tamerlane Corp. v. Warwick Ins. Co., 412 Mass. 486, 490 (1992); Payton v. Abbott Labs, 386 Mass. 540, 565 n.12 (1982); Schrottman v. Barnicle, 386 Mass. 627, 631-632 (1982); Crowell v. McCaffrey, 377 Mass. 443, 452 (1979); Bouchard v. DeGagne, supra at 49, none of these cases concluded that we should limit the reach of a prior decision which had initial retroactivity when announced. Traditionally, exceptions to the general rule of retroactivity have arisen when judicial rulings have altered rights in Massachusetts contract and property law where issues of reliance might impose hardship on unsuspecting parties. Payton v. Abbott Labs, supra at 565. When the decision involves a matter of constitutional right, as it does here, considerations of constitutional principle with rare exceptions require retroactive application. A constitutional decision is not a legislative act but a determination of rights enacted by the Constitution, so that all persons with live claims are entitled to have those claims judged according to what we conclude the Constitution demands. This was the analysis put forward by Justice Harlan in Desist v. United States, 394 U.S. 244, 258-259 (1969) (Harlan, J., dissenting), to which the Supreme Court returned in Harper. It is an analysis which has equal force in adjudicating claims under our State Constitution. Different considerations are at work where the judicial process has run its course, a final judgment reached, and a defendant — almost invariably in a criminal case — seeks to obtain the benefit of a new rule thereafter on a motion for a new trial, see Reynoldsville Casket Co. v. Hyde, supra at 757-759, and Commonwealth v. Figueroa, 413 Mass. 193, 202-203 (1992), S.C., 422 Mass. 72 (1996), or when a defendant in a constitutional tort case claims that his conduct did not violate any constitutional norms at the time he acted. Reynoldsville Casket Co. v. Hyde, supra at 757-759. Harlow v. Fitzgerald, 457 U.S. 800, 818-819 (1982). Pasqualone v. Gately, 422 Mass. 398, 402 (1996). See generally Fallon & Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731 (1991). But those are not this case. Ill A The judge held that “the verdict [on retaliation] was unsupported by sufficient evidence,” and therefore Boston Edison was entitled to judgment notwithstanding the verdict pursuant to Mass. R. Civ. P. 50 (b), 365 Mass. 814 (1974). When we review the entry of a judgment notwithstanding the verdict, we must view the facts contained in the record in the light most favorable to the plaintiffs. See Tobin v. Norwood Country Club, Inc., 422 Mass. 126, 127 (1996); Stapleton v. Macchi, 401 Mass. 725, 728 (1988). We do not defer to the judge’s view of the evidence but examine the case anew, following the same standard the judge is obliged to apply. Anthony H. v. John G., 415 Mass. 196, 199 (1993). Miles v. Edward O. Tabor, M.D., Inc., 387 Mass. 783, 786 (1982). A jury’s verdict must be sustained if a plaintiff has presented any evidence from which the juiy could have made their findings, Young v. Atlantic Richfield Co., 400 Mass. 837, 841 (1987), cert, denied, 484 U.S. 1066 (1988); Service Publications, Inc. v. Goverman, 396 Mass. 567, 571-572 (1986), and we assume all the evidence offered by the plaintiffs in support of their case to be true and do not assess witness credibility or the weight of the evidence, but seek to determine whether there is truly “but one conclusion as to the verdict that reasonable men could have reached.” Corsetti v. Stone Co., 396 Mass. 1, 21 (1985). Margeson v. Town Taxi, Inc., 266 Mass. 192, 194 (1929). At the time MacCormack applied for the opening of corporate security officer, he reported directly to Kehoe who then held that position. MacCormack testified that the only other employees with direct reporting links to the corporate security officer were the officer’s secretary and William Kilroy, who served as the division manager over the claims investigative unit. On November 30, 1990, MacCormack was notified that he would not receive the position he sought and that Connolly would be the new corporate security director. MacCormack testified that before Kehoe’s retirement, his department was in the midst of planning a reorganization, which Connolly acted on following his appointment. Under Kehoe’s direction, MacCormack had helped develop plans for this reorganization. MacCormack testified that after he filed his first charge of discrimination in May, he was left “out in the cold” and was excluded from further participation in the reorganization process. On September 13, 1991, the MacCormacks filed their complaint in the Superior Court. In a proposed job description for division manager, dated November 5, 1991, three of the six “major responsibilities” included in the proposal were duties that had traditionally been contained within MacCormack’s job description. On June 23, 1992, MacCormack’s attorney deposed Connolly. The following day, MacCormack received a telephone call regarding a sexual harassment matter at the Pilgrim station. A few hours after initiating an investigation, MacCormack called Connolly’s secretary at which time he was informed that Connolly had already assigned the case to an investigator named Peter Dolan. Later that day, Connolly also assigned MacCormack to the case. MacCormack found this assignment to “assist” Dolan odd because MacCormack was responsible for claims at Pilgrim, he had never been asked to assist Dolan in the past, and Dolan was not normally assigned to cases at this facility because Dolan did not have free access to the Pilgrim facility. Connolly noted that prior to this case, he could not recall any criminal investigations at Pilgrim which he had assigned to individuals other than Mac-Cormack and Dolan could not recall a previous investigation at Pilgrim in which he had participated. In August, 1992, MacCormack filed his second charge of discrimination and retaliation. In October, the investigators within the corporate security department received a job level upgrade from a grade 42A to a grade 43A which was identical to MacCormack’s job grade, despite MacCormack’s observation that the investigators’ responsibilities had only changed “on paper,” the fact that a major portion of these responsibilities had not been implemented, and Connolly’s concession that MacCormack held more responsibilities than the investigators. In response, MacCormack requested that his own position be assigned a still higher grade. This was not done. In early January, 1993, the parties to this case received a notice of a pretrial conference. On January 18, 1993, Mac-Cormack attended a meeting at the Somerville service center investigative offices where Connolly introduced Frank Herzog, as the new division manager and announced that Mac-Cormack and two investigators would be reporting to Herzog. MacCormack and these two investigators were also told that they would be responsible for investigating pole knockdowns and motor vehicle accidents. Under Connolly’s reorganized structure, MacCormack’s reporting duties changed in regard to all his responsibilities apart from a nuclear security audit: he would now report to Herzog regarding the bulk of his work. Connolly also stated that Herzog would be responsible for managing security system upgrades at non-nuclear stations and their associated capital and expense budgets, responsibilities formerly held by MacCormack. MacCormack took these announcements to be a public demotion in front of his peers. During the presentation of the plaintiffs’ case, other evidence was presented in support of MacCormack’s claim of unlawful retaliation. Linda Baranowski, secretary to the corporate security director testified that in her view, under Kehoe’s administration, MacCormack had been “next in line” to the director. John Puma, Boston Edison’s Equal Employment Opportunity (EEO) officer testified that in 1988 he had filed a charge of age discrimination against the company following which he was summarily dismissed. The plaintiffs also presented a May, 1993, Boston Edison organizational chart which showed MacCormack reporting to Herzog who then reported to the corporate security director, in contrast to Boston Edison’s 1989 organizational chart which showed MacCormack reporting directly to the then corporate security officer. It was agreed that MacCormack’s job grade and pay level remained the same throughout all the recounted events. B The fatal defect in MacCormack’s claim is that he failed to prove that Boston Edison took any action against him at all which was substantial enough to count as the kind of material disadvantage that is a predicate for a finding of unlawful retaliation. See Lewis v. Gillette, Co., 22 F.3d 22, 24 (1st Cir. 1994) (“To succeed . . . plaintiff must establish the basic fact that he was subjected to an adverse employment action”). The judge correctly apprehended this point when he charged the jury that: “Mr. MacCormack must have been the victim of change in working conditions which materially disadvantaged him. If you find that Mr. MacCormack has not suffered an adverse employment action since initiating his legal proceeding over the promotion decision, then he cannot recover for alleged retaliation.” After they had begun their deliberations, the jury had some questions regarding the standard of law to apply to the retaliation claim. The judge reaffirmed the necessity of finding MacCormack had suffered a change in working conditions that materially disadvantaged him and went on to explain that there must also be a causal relationship so that “but for the filing and pursuing of his original discrimination claim the adverse reaction would not have been taken by the defendant, Boston Edison Company.” See Tate v. Department of Mental Health, 419 Mass. 356, 364 (1995) (must be “determinative factor”); Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 770 (1986); Southern Worcester County Regional Vocational Sch. Dist. v. Labor Relations Comm’n, 386 Mass. 414, 418 (1982), quoting Trustees of Forbes Library v. Labor Relations Comm’n, 384 Mass. 559, 563 (1981); Prader v. Leading Edge Prods., Inc., 39 Mass. App.

DONAJKOWSKI v ALPENA POWER COMPANY Docket Nos. 183174, 183475. Submitted July 11, 1996, at Lansing. Decided October 11, 1996, at 9:50 A.M. Leave to appeal sought. Christina Donajkowski, Beth McDonald, and Deedra Duranceau brought an action in the Alpena Circuit Court against then-employer, Alpena Power Company, alleging sexual discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and a violation of the Equal Pay Act, 29 USC 206(d)(1), relating to a wage freeze pursuant to the terms of a collective bargaining agreement between the defendant and Local 286, Utility Workers of America affecting only those in their job classification, all of whom were women. The court, Joseph P. Swallow, J., allowed the defendant to bring a third-party action against the union for contribution in the event that the defendant was found liable to the plaintiffs. The court summarily dismissed the plaintiffs’ action and the defendant’s third-party action, ruling that the plaintiffs’ discrimination claim under state law is preempted by the Labor Management Relations Act (lmra), 29 USC 185(a). The plaintiffs appealed and the union appealed the trial court’s allowance of the defendant’s third-party action against the union for contribution. The appeals were consolidated. The Court of Appeals held: 1. The trial court erred in determining that the plaintiffs’ discrimination claim under state law is preempted by the lmra. State law issues are preempted by the lmra only when the application of the state law requires the interpretation of the collective bargaining agreement. The resolution of the plaintiffs’ discrimination claim does not require interpretation of the collective bargaining agreement inasmuch as the Civil Rights Act confers nonnegotiable rights that are independent of any right established by contract and the issues raised by the plaintiffs concern primarily factual questions involving the employer’s conduct and motivation. 2. The trial court erred in determining that the plaintiffs were required to allege some type of unfair labor practice as a condition precedent to their discrimination claim. The right to be free from sexual discrimination is a right independent of the collective bargaining process, and the plaintiffs are under no obligation to allege a defect in that process in order to maintain their discrimination claim. 3. The trial court erred in granting summary disposition of the plaintiffs’ discrimination claim. The plaintiffs established a prima facie case of discrimination under the disparate treatment theory and the disparate impact theory. With respect to the disparate treatment theory, the plaintiffs established that they are members of a class deserving of protection under the Civil Rights Act (i.e., women), that for the same or similar conduct they were treated differently from men, and that the defendant had a discriminatory motive. With respect to the disparate impact theory, the plaintiffs showed that an issue of material fact existed regarding whether the defendant’s policy of limiting the pay of those in the plaintiffs’ job classification affected women more harshly than men. 4. The trial court properly allowed the defendant to bring a third-party action against the union for contribution. Michigan law provides for a general right to contribution in tort actions, MCL 600.2925a; MSA 27A.2925(1), and discrimination based on sex is a tort. To the extent that the union argues that the defendant is an intentional tortfeasor, the union is a joint intentional tortfeasor because liability, if any, by the defendant to the plaintiffs would be a result of the bargained-for contract to which the union was a party. Contribution among joint intentional tortfeasors is allowed under the contribution statute. Affirmed in part, reversed in part, and remanded for further proceedings. C. A. Nelson, J, dissenting, stated that the trial court properly granted summary disposition of the plaintiffs’ discrimination claim, albeit for the wrong reason. Although the plaintiffs established that they are members of a class protected by the Civil Rights Act, they nevertheless failed to demonstrate that they were discriminated against when compared to men. The evidence indicated that Donajkowsld. and McDonald were being paid substantially more than the maximum pay rate, that plaintiffs were not barred from moving from their job classification to higher classifications, that the defendant awarded pay increases to female employees other than the plaintiffs, and that the defendant’s failure to raise the plaintiffs’ wages was due to economic considerations, not discrimination. 1. Labor Relations — Labor Management Relations Act — Preemption op State Law Claims. A state law claim alleging discrimination by an employer against an employee covered by a collective bargaining agreement is not preempted by the Labor Management Relations Act if the state law at issue confers a nonnegotiable right independent of any right established by the collective bargaining agreement and the application of the state law does not require the interpretation of the collective bargaining agreement (29 USC 185[a]). 2. Labor Relations — Civil Rights — Unfair Labor Practices. An employee has a right under the Civil Rights Act not to be discriminated against by an employer on the basis of sex; because the right exists independent of any rights under an applicable collective bargaining agreement, the employee need not allege an unfair labor practice in bringing an action under the Civil Rights Act for discrimination by the employer (MCL 37.2101 et seq.] MSA 3.548[101] et seq.). 3. Contribution — Civil Rights — Sexual Discrimination. The general right provided by Michigan law to contribution in tort actions extends to a defendant in an action for discrimination based on sex (MCL 600.2925a; MSA 27A.2925[1]). 4. Contribution — Joint Intentional Tortfeasors. Contribution among joint intentional tortfeasors is allowed under the contribution statute (MCL 600.2925a; MSA 27A.2925[1]). Boyce, White & Werth (by Richard G. Boyce), for Christina Donajkowski, Beth McDonald, and Deedra Duranceau. The Fishman Group (by Steven J. Fishman and Niels Eric Hansen), for Alpena Power Company. Sachs, Waldman, O’Hare, Helveston, Hodges & Barnes, RC. (by Mary Ellen Gurewitz), for Local 286, Utility Workers of America. Before: Neff, P.J., and Fitzgerald and C. A. Nelson , JJ. Circuit judge, sitting on the Court of Appeals by assignment. Neff, P.J. In Docket No. 183174, plaintiffs appeal as of right from the trial court’s order awarding summary disposition to defendant and dismissing with prejudice plaintiffs’ gender discrimination action brought pursuant to the Civil Rights Act, MCL 37.2101 et seq.) MSA 3.548(101) et seq., and the Equal Pay Act, 29 USC 206(d)(1). In Docket No. 183475, Local 286, Utility Workers of America, AFL-CIO, appeals as of right from the same order, which also dismissed with prejudice defendant’s third-party complaint seeking contribution from the union in the event that defendant was found liable to plaintiffs. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion. I Plaintiff Christina Donajkowski began working for defendant on or about June 27, 1985, as a receptionist. In 1986, she became a meter reader and the first female member of the union. Plaintiff Beth McDonald commenced employment with defendant in an office position in June 1989 and transferred to meter reading on or about July 31, 1989. In the fall of 1989, Donajkowski, McDonald, and Tom Clearwood were full-time meter readers, and Ray Robb was employed in general labor. Donajkowski and Clearwood made $12.40 an hour, Robb made $11.93, and McDonald made $11.80. During the fall of 1989, defendant and the union negotiated a three-year collective bargaining agreement that created a new job classification known as “general labor/meter reader,” comprised of certain lower-skill jobs and having a wage range of $7.50 to $10.50 an hour. Donajkowski and McDonald, being members of the new classification, had their wages “frozen” at their existing pay rates even though they exceeded the maximum rate provided by the classification. The record indicates that both of these plaintiffs voted to ratify the agreement. Defendant stated that the new job classification was created to furnish more flexibility in its labor force and to help contain costs by establishing a market-sensitive “hire-in” wage rate. Plaintiff Deedra Duranceau hired in with defendant as a general laborer in the general labor/meter reader classification in March 1990 at $7.50 an hour and thereafter received step increases bringing her to the $10.50 an hour maximum rate for that classification. Consistent with the “wage freeze” policy for the new classification, defendant granted no pay increases for the general labor/meter reader employees, although the 1989 bargaining agreement provided for yearly 2½ percent pay increases for other workers. When defendant and the union could not agree on a new contract in the fall of 1992, defendant implemented the terms of its last offer and union members continued to work on that basis without a contract. These terms apparently included a yearly three percent pay increase for all bargaining unit employees except plaintiffs. Thus, the situation existing at the time of the September 8, 1994, hearing on defendant’s motion for summaiy disposition was that the general labor/meter reader classification was comprised solely of plaintiffs, whose wages remained frozen in contrast to other union members. Female employees who were not union members also received wage increases during this period. After the union was dismissed as a party-plaintiff pursuant to stipulation, defendant filed a third-party complaint seeking contribution from the union in the event defendant was found liable to plaintiffs. Plaintiffs and the union now challenge the trial court’s award of summary disposition to defendant. n We first examine plaintiffs’ appellate claims. We conclude that reversal is required. A 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. 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). B We first address that aspect of the trial court’s ruling that dealt with plaintiffs’ claim based on the collective bargaining agreement. We find this ruling to have been in error. 1 The trial court determined that plaintiffs’ discrimination claims challenged the validity of the bargained-for contract and that they could not be brought in state court because the issues raised were preempted by federal law. In Betty v Brooks & Perkins, 446 Mich 270; 521 NW2d 518 (1994), our Supreme Court examined whether the plaintiff’s state law discrimination claim was preempted by the Labor Management Relations Act (LMRA), 29 USC 185(a). The Court, construing United States Supreme Court precedent, determined that state law issues are preempted by the lmra only when the application of the state law requires the interpretation of the collective bargaining agreement. Id. at 276-280. An important factor in determining whether contractual interpretation is involved is whether the state law at issue confers nonnegotiable rights on employers or employees independent of any right established by the contract. Id. Also, when the state court action involves primarily factual determinations, such as the conduct and motivation of the employer, the issues raised do not involve interpretation of the contract. Id. at 280. The Court specifically noted the unique nature of state discrimination claims, which generally require a primarily factual inquiry. Id. at 281-282. Here, we conclude that plaintiffs’ state law discrimination claims are not preempted by the lmra. First, the issues raised by plaintiffs involve rights that may not be waived by contract, i.e., the right to be free from sexual discrimination. Id. at 284. Further, the issues raised by plaintiffs do not require interpretation of the contract, but raise primarily factual questions. Plaintiffs claim that defendant intentionally discriminated against them, as evidenced by defendant’s conduct and statements, and claim that even if its conduct does not demonstrate discrimination, women were treated more harshly than men as a result of defendant’s implementation of the new, otherwise facially valid, classification. Because neither claim requires interpretation of the contract, but an investigation into defendant’s conduct and motives, we conclude that the trial court erred in determining that plaintiffs’ claims were barred by the LMRA. 2 The trial court also held that plaintiffs were required to allege some type of unfair labor practice as a condition precedent to a state law sexual discrimination claim. We find this ruling to have been in error. As noted above, the right to be free from sexual discrimination is a right independent of the collective bargaining process. Id. at 284. Accordingly, plaintiffs were under no obligation to allege a defect in that process, and the trial court erred to the extent it relied on the absence of such an allegation in granting summary disposition to defendant. c Next, we address the merits of plaintiffs’ claims. A discrimination claim can be based on two theories: (1) disparate treatment and (2) disparate impact. Lytle v Malady, 209 Mich App 179, 184; 530 NW2d 135 (1995). In order to prove disparate treatment, plaintiffs must prove either a pattern of intentional discrimination against a protected class or against themselves individually. Id. at 184-185. Disparate impact requires a showing that an otherwise facially neutral policy has a discriminatory effect. Id. i From our reading of the pleadings, we conclude that plaintiffs pursued both theories below. First, we conclude that the trial court erred in granting summary disposition with regard to plaintiffs’ disparate treatment theory. To avoid summary disposition under that theory, plaintiffs were required to establish a genuine issue of material fact regarding whether a prima facie case of discrimination existed, i.e., that they are members of a class deserving of protection under the statute and that, for the same or similar conduct, they were treated differently from men. Schultes v Naylor, 195 Mich App 640, 645; 491 NW2d 240 (1992). Further, plaintiffs must present evidence that defendant had a discriminatory motive. See Dep’t of Civil Rights ex rel Peterson v Brighton Area Schools, 171 Mich App 428, 439; 431 NW2d 65 (1988). As females, plaintiffs have satisfied the requirement that they be members of a statutorily protected class. The question becomes then, whether, when viewed in a light most favorable to plaintiffs, they could show at trial that they were treated differently from men performing the same or similar work. The facts in favor of granting summary disposition are that Donajkowski and McDonald are being paid substantially more than the maximum pay rate provided by the labor contract, that plaintiffs are not barred from moving out of their classification into higher-level jobs, and that defendant awarded pay increases to female employees other than plaintiffs. Evidence also existed, however, that before the existing contract classification was created, one of defendant’s officials stated that he wanted housewives to read meters. Indeed, at the time of this case, only women were full-time meter readers. Further, in the course of contract talks in 1992, the president of the union allegedly offered a two percent pay increase for all employees instead of a four percent increase for all employees except for the meter readers. This proposal was rejected by defendant. Also, after the 1989 contract in which the meter readers’ wages were frozen, a company official told the union president that the three women (the meter readers) were treated badly as a result of the contract. We find this latter piece of evidence particularly important. In contrast to this Court’s statement in Lytle, supra at 185, here, defendant was “so blatant as to announce its illegal motives.” Viewed in a light most favorable to plaintiffs, we conclude that this evidence is sufficient to allow a jury to conclude that plaintiffs, because of their status as women, were treated differently from their male counterparts. The evidence indicated that the intent was that the meter reader job be assigned to women and that that job classification was the only one to be singled out for a wage freeze. 2 To avoid summary disposition under the disparate impact theory, plaintiffs were required to create an issue of fact with regard to whether defendant’s policy of limiting the pay for meter readers affected women more harshly than it did men. See Brighton Area Schools, supra at 440. Under this theory, plaintiffs need not prove that defendant intended to discriminate. Id. We conclude that sufficient evidence existed to allow plaintiffs to create an issue of material fact under a disparate impact theory. Although the classification itself does not seem to be discriminatory, we conclude that under defendant’s implementation of that classification, women were treated more harshly than men. The evidence demonstrated that around the time the pay freeze was put into effect, all the men transferred out of the meter reader classification so that only women were left in that position. While some evidence exists suggesting that the enforcement of the wage freeze may have been nondiscriminatory, we find it important that in the three-year period relevant to this appeal, the meter reader classification consisted only of women, but before the implementation of the freeze, mainly men occupied the position of meter reader. Because conflicting evidence existed, summary disposition was improperly granted. Accordingly, we conclude that reversal is also required to the extent the trial court dismissed plaintiffs’ claims on a disparate impact theoiy. m We next address the union’s claim on appeal that the trial court improperly allowed defendant to implead the union to obtain contribution in plaintiffs’ cause of action. We conclude that the trial court properly allowed defendant’s contribution action. a The union first argues that federal law should govern this case and that, under federal law, contribution actions in civil rights claims such as this are not permitted. While we recognize the validity of the federal precedent on which the union relies, we conclude that it does not apply with equal force in Michigan. In Northwest Airlines, Inc v Transport Workers Union of America, 451 US 77; 101 S Ct 1571; 67 L Ed 2d 750 (1981), the Supreme Court determined that contribution claims could not be had in federal discrimination causes of action. The Court in Northwest Airlines based its decision on two grounds. First, the Court determined that no right to contribution existed in title VII or the Equal Pay Act. Id. at 91-95. In this context, the Court stated that employers are not members of a class to be protected under either of these two statutes. Id. at 92. As a separate issue, the Court also addressed whether a general right to contribution existed at federal common law, suggesting that, even though such a right did not exist under the statutes, if a common-law right existed, contribution co

FITZPATRICK v SIMMONS AIRLINES, INC Docket No. 179123. Submitted April 9, 1996, at Grand Rapids. Decided September 13, 1996, at 9:00 a.m. Leave to appeal sought. David Fitzpatrick brought an action in the Musekgon Circuit Court against Simmons Airlines, Inc., and Donald Curry, alleging that the termination of his employment with Simmons was because of his failure to comply with height and weight standards and thus was actionable under § 202 of the Civil Rights Act, MCL 37.2202; MSA 3.548(202). The court, R. Max Daniels, J., granted summary disposition for the defendants on the basis that the plaintiff’s claim was preempted by § 1305(a)(1) of the Airline Deregulation Act (ada), 49 USC 1305(a)(1), which provided that no state “shall enact or enforce any law . . . relating to rates, routes, or services of any air carrier.” The plaintiff appealed. The Court of Appeals held: The phrase “relating to” as used in the ada expresses a broad preemptive purpose. Accordingly, any law that restricts an airline’s selection of employees on the basis of physical characteristics is one that relates to the services rendered by the airline and is preempted by § 1305(a)(1). Because the plaintiff’s state claim is preempted by operation of the federal statute, the trial court properly granted summary disposition for the defendants. Affirmed. Civil Rights — Employment Discrimination — Airline Deregulation Act — Preemption. An action brought pursuant to the Civil Rights Act that alleges employment discrimination by an airline on the basis of physical characteristics is preempted by the federal Airline Deregulation Act (49 USC 1305[a][l], see now 49 USC 41713[b][l]; MCL 37.2202; MSA 3.548[202]). Randall D. Fielstra, EG. (by Randall D. Fielstrd), for the plaintiff. Dickinson, Wright, Moon, Van Dusen & Freeman (by Richard A. Glaser and Lisa A. DeFerrari), and Winston & Strawn (by Columbus R. Gangemi, Jr.), for the defendants. Before: Gribbs, P.J., and Hoekstra and C. H. Stark* JJ. Per Curiam. Plaintiff, David Fitzpatrick, appeals as of right an order of the Muskegon Circuit Court granting summary disposition in favor of defendants Simmons Airlines, Inc., and Donald E. Curry. We affirm. In 1992, plaintiff was employed as a temporary employee to do baggage handling and general aircraft maintenance by Simmons, a division of American Airlines, in conjunction with their American Eagle terminal at the Muskegon County Airport. Curry, also an employee of Simmons, was plaintiff’s supervisor. Plaintiff’s employment was terminated in 1993, allegedly because of his failure to comply with height and weight standards promulgated and published by Simmons. Plaintiff then filed the instant action pursuant to Michigan’s Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., alleging that defendants had unlawfully discharged him from his employment because he was overweight according to the height and weight standards utilized by Simmons. Defendants moved for summary disposition, arguing that plaintiff’s claim was preempted by § 1305(a)(1) of the Airline Deregulation Act (ADA), 49 USC 1305(a)(1). Following a hearing, the trial court granted defendants’ motion for summary disposition. Plaintiff argues that the trial court erred in concluding that plaintiffs state law claims under the Civil Rights Act were preempted by the ADA. We disagree. The ADA provides that no state “shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier.” 49 USC 1305(a)(1). MCL 37.2202; MSA 3.548(202) prohibits discrimination against an employee for employment based upon, among other things, an employee’s height or weight. Whether state law claims under the Civil Rights Act are preempted by the ADA is an issue of first impression in Michigan; however, similar issues have been raised before the United States Supreme Court and other state and federal courts. We have found several of those cases instructive in reaching our decision. First, in determining whether preemption applies, we must look to see if preemption is either expressed or implied in the statute at issue. Morales v Trans World Airlines, Inc, 504 US 374; 112 S Ct 2031; 119 L Ed 2d 157 (1992). Here, the ADA clearly and expressly preempts a state from enacting any law relating to services of any air carrier. The question then becomes whether Michigan’s Civil Rights Act is a law relating to services of an air carrier. We hold that it is. In Morales, supra, the United States Supreme Court concluded that the words “relating to” as used in the ADA expressed a broad preemptive purpose. Id. at 383. The Supreme Court concluded that state enforcement actions having “a connection with” or “reference to” airline services were “related to” the ADA for purposes of preemption. Id. at 384. The Supreme Court rejected the petitioner’s attempt to limit the preemptive scope of the ADA to laws specifically addressed to the airline industry, finding instead that a state law may be preempted even if the law is not specifically designed to address the area of preemption or if the effect is only indirect. Id. at 386. Given the broad language used by the Morales Court in interpreting the phrase “relating to,” this Court concludes that the provision of Michigan’s Civil Rights Act protecting employees from discrimination on the basis of height or weight is “related to” the services of an air carrier such that plaintiff’s state law claims are preempted. In Belgard v United Airlines, 857 P2d 467 (1992), the Colorado Court of Appeals concluded that the plaintiffs, employees of United Airlines who had been denied employment as pilots because they had undergone eye surgery, could not pursue their state law claims under Colorado’s handicap discrimination law because the law, if applied to an airline, had a connection with or reference to the airline’s services. In reaching that conclusion, the Belgard court concluded: [A]ny law or regulation that restricts an airline’s selection of employees, based upon their physical characteristics, must necessarily have a connection with and reference to, and therefore must be one “relating to,” the services to be rendered by the airline. [Id. at 471.] We agree with the conclusion reached by the Belgard court, and, because the Civil Rights Act at issue here as applied to Simmons would restrict its ability to select employees, we find the trial court’s grant of summary disposition to be proper. Affirmed. Circuit judge, sitting on the Court of Appeals by assignment. This subsection was reenacted in 1994 without substantive change as 49 USC 41713(b)(1). See American Airlines, Inc v Wolens, 513 US_; 115 S Ct 817; 130 L Ed 2d 715, 722, n 1 (1995). 49 USC 41713(b)(1) now reads: “[A] State . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier.” Neither party on appeal argues that the Civil Rights Act relates to either rates or routes.

Kathleen Pielech & another vs. Massasoit Greyhound, Inc. Bristol. November 7, 1995. August 20, 1996. Present: Liaoos, C.J., Wilkins, Abrams, Lynch, O’Connor, Grbanby, & Fried, JJ. Statute, Construction. Employment, Discrimination. Anti-Discrimination Law, Employment. Constitutional Law, Freedom of religion. Jurisdiction, Ecclesiastical controversy. This court concluded that G. L. c. 15 IB, § 4 (1A), prohibiting employment discrimination based on religion, violates the establishment clause of the First Amendment to the United States Constitution by preferring organized religious belief over other sincerely held beliefs, by promoting excessive government entanglement with religion, and by effectively compelling the courts to ascertain the requirements of the religion at issue. [538-542] Abrams, J., dissenting, with whom Liacos, C.J., & Grbanby, J., joined. Civil achon commenced in the Superior Court Department on June 15, 1993. The case was heard by John J. O’Brien, J., on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Howard A. Brick for the Anti-Defamation League. Joel A, Kozol (William I. Cowin with him) for the defendant. Harvey A. Schwartz, for Kathleen Pielech & another, submitted a brief. The following submitted briefs for amici curiae: Nancy J. Gannon, of Wisconsin, for the Catholic League For Religious and Civil Rights. Howard A. Brick, Sally J. Greenberg & Carl E. Axelrod, & Ruth L. Lanser, Steven Freeman & Debbie N. Kaminer of New York, for the Anti-Defamation League. Scott Harshbarger, Attorney General & Freda K. Fishman, Assistant Attorney General, for the Attorney General. Toni G. Wolfman, Michael A. Albert, & Sarah R. Wunsch for Civil Liberties Union of Massachusetts. Wilson D. Rogers, Jr., Frederic J. Torphy, James F. Cos-grove, & John J. Egan, for the Roman Catholic Archbishop of Boston & others. Patricia Reed. We acknowledge the filing of amicus briefs by the Attorney General, the Roman Catholic Archbishop of Boston together with the Roman Catholic Bishops of Fall River and Worcester and the administrator of the Roman Catholic Diocese of Springfield, Catholic League for Religious and Civil Rights, the Anti-Defamation League, and Civil Liberties Union of Massachusetts. O’Connor, J. The plaintiffs, former at-will employees of the defendant corporation, seek damages based on their assertion that the defendant required them, as a condition of their continued employment, to work on Christmas Day in contravention of their “creed or religion as required by that creed or religion” in violation of G. L. c. 15 IB, § 4 (1A) (1994 ed.). The plaintiffs also claim entitlement to relief under G. L. c. 93, § 102 (1994 ed.) (Massachusetts Equal Rights Act). The plaintiffs moved for summary judgment and the defendant filed a cross motion for summary judgment as to liability. A Superior Court judge allowed the defendant’s motion and denied that of the plaintiffs. The plaintiffs appealed, and we granted their application for direct appellate review. We affirm the judgment for the defendant, although our reasoning differs from that of the Superior Court judge. The following undisputed facts are established by the summary judgment materials: The plaintiffs were employed by the defendant as part-time parimutuel clerks at the Raynham-Taunton Greyhound Track. On December 18, 1992, the defendant posted a notice informing all regularly scheduled employees that they would be required to work on Christmas night, Friday, December 25, 1992. The plaintiffs were regularly scheduled to work on Fridays, but requested Christmas off to observe the holiday. The defendant denied their requests. The plaintiffs failed to appear for work on December 25. The parties differ as to whether they were “terminated” or “suspended.” In any event, they suffered “adverse action” for purposes of c. 15 IB, § 4 (1A). In addition, the plaintiffs submitted affidavits that at the relevant time they were devout members of the Roman Catholic Church and that, as such, their religious beliefs prohibited them from working on Christmas. The question whether abstinence from work on Christmas was required by Roman Catholic dogma was also the subject of affidavits given by two Roman Catholic priests, one of which was submitted by the plaintiffs and the other of which was submitted by the defendant. The affidavit submitted by the defendant essentially stated that Roman Catholics are obligated to attend one mass celebrated between 4 p.m. on December 24 and 1 p.m. on December 25, and that the church neither prohibits its members from working on Christmas nor requires them to worship on Christmas night. The priest’s affidavit submitted by the plaintiffs said that “[o]n Sundays and other holy days of obligation the faithful are... to abstain from those labors and business concerns which impede the worship to be rendered to God, the joy which is proper to the Lord’s Day, or the proper relaxation of mind and body.” That affidavit also cited the following statement from The Catholic Encyclopedia as authoritative: “Church law forbids servile work on Sundays and holy days of obligation, but exceptions are made for those functions that are necessary for the well-being of society, or for those who must support their family or to maintain their livelihood.” “Based on the authorities provided by the parties, [the motion judge] rule[d]” as follows: “Catholic dogma does not require worshippers to abstain from working on Holy days. The only requirement the church absolutely imposes upon its followers is to attend mass. Plaintiffs were not denied the opportunity to attend mass, and therefore, plaintiffs cannot establish that they were forced to forgo a practice required by their religion. The fact that plaintiffs wished to further observe the Christmas holiday does not constitute a religious requirement. See Lewis v. Area II Homecare for Senior Citizens, Inc., [397 Mass. 761, 772 (1986)]. As plaintiffs’ claim for violation of G. L. c. 15IB, [§] 4 (1A) fails, so too must their claims premised on G. L. c. 93, [§] 102.” (Emphasis in original.) General Laws c. 15IB, § 4 (1A), provides in pertinent part the following: “It shall be unlawful discriminatory practice for an employér to impose upon an individual as a condition of obtaining or retaining employment any terms or conditions, compliance with which would require such individual to violate, or [forgo] the practice of, his creed or religion as required by that creed or religion including but not limited to the observance of any particular day or days or any portion thereof as a sabbath or holy day and the employer shall make reasonable accommodation to the religious needs of such individual. . . . The employee shall have the burden of proof as to the required practice of his creed or religion.” This court construed G. L. c. 15IB, § 4 (1A), in Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 771 (1986). We held, “The statute does not deal with the full panoply of religious beliefs, practices, preferences, and ideals. . . . The application of the statute is much more narrow. It prohibits an employer from requiring an employee, as a condition of employment, to violate or forgo the practice of her religion as required by that religion. It follows that the threshold showing an employee must make is whether the activity sought to be protected is a religious practice and is required by the religion.” (Emphasis in original.) Id. at 771-772. Later, in Kolodziej v. Smith, 412 Mass. 215 (1992), in which the plaintiff sought damages and other relief “on the ground that the defendants made her retention of employment conditional on her forgoing the practice of her ‘creed or religion as required by that creed or religion’ in violation of G. L. c. 15 IB, § 4 (1A),” id. at 216, we held that the judge in the Superior Court had correctly directed verdicts for the defendants on that claim. We reasoned as follows: “In Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 771 (1986), we observed that this ‘statute does not deal with the full panoply of religious beliefs, practices, preferences, and ideals,’ but focuses instead on required religious practices. The plaintiff produced no evidence that the defendants’ condition for her continuing as controller, attendance at the seminar, required her to miss any religious service or to compromise her faith. There was no evidence that Roman Catholic dogma forbade her attendance at the seminar.” (Emphasis in original.) Id. at 221. The plaintiffs’ brief in the present case states that “[t]his appeal presents a direct challenge to this Court’s recent interpretations of c. 15 IB, § 4 (1A), which hold that the only religious beliefs protected by the employment discrimination statute are those that are required by the dogma of an established religion. This interpretation of the statute denies protection to employees whose sincere religious beliefs differ from the established dogma of their religion or are not accepted as dogma by any religion. Such an interpretation violates the Establishment Clause of the First Amendment to the United States Constitution and Article 2 of the Declaration of Rights.” The plaintiffs’ contention that, in Lewis v. Area II Homecare for Senior Citizens, Inc., supra, and Kolodziejv. Smith, supra, this court misconstrued c. 15IB, § 4 (1A), is based entirely on their argument that, so construed, the statute is unconstitutional. The plaintiffs then conclude as follows: “To salvage the constitutionality of the statute it must be applied broadly to protect holders of all religious beliefs, not just those who follow the dogma of an established religion. Applied in that manner, since the plaintiffs have proven that the dictates of their own consciences and their religious beliefs founded on those dictates prohibited them from working on what to them was the most holy day of the year, and since their employer fired them for refusing to violate their religious beliefs, they were entitled to summary judgment as to liability.” No question concerning the constitutionality of c. 15IB, § 4 (1A), was raised in Lewis or Kolodziej. That question is presented to this court for the first time in this case. As we shall explain later in this opinion, we agree that G. L. c. 15 IB, § 4(1 A), as construed by this court in those cases, and as we construe it in this case, is unconstitutional. We do not agree with the plaintiffs, however, that the appropriate remedy is for us to interpret the statute as “protecting] holders of all religious beliefs, not just those who follow the dogma of an established religion.” Instead, we conclude that the plaintiffs’ reliance on that statute, unconstitutional as it is, is unwarranted. “[Statutes are to be construed so as to avoid an unconstitutional result or the likelihood thereof,” Adamowicz v. Ipswich, 395 Mass. 757, 763-764 (1985), but only “if reasonable principles of interpretation permit it.” School Comm, of Greenfield v. Greenfield Educ. Ass’n, 385 Mass. 70, 79 (1982). “We must construe the statutes as they are written.” Brennan v. Election Comm’rs of Boston, 310 Mass. 784, 789 (1942). “The scope of the authority of this court to interpret and apply statutes is limited by its constitutional role as a judicial, rather than a legislative, body. See art. 30 of the Massachusetts Declaration of Rights. In construing a legislative enactment, it is our duty to ascertain and implement the intent of the Legislature. . . . We cannot interpret a statute so as to avoid injustice or hardship if its language is clear and unambiguous and requires a different construction. Milton v. Metropolitan Dist. Comm’n, 342 Mass. 222, 227 (1961).” Rosenbloom v. Kokofsky, 373 Mass. 778, 780-781 (1977). “As Justice Qua stated in Commonwealth v. Isenstadt, 318 Mass. 543, 548 (1945), this court is under a duty ‘to avoid judicial legislation in the guise of new constructions to meet real or supposed new popular viewpoints, preserving always to the Legislature alone its proper prerogative of adjusting the statutes to changed conditions.’ ” Commonwealth v. A Juvenile, 368 Mass. 580, 595 (1975). “Statutory language is the principal source of insight into [legislative purpose. Hoffman v. Howmedica, Inc., 373 Mass. 32, 37 (1977).” Commonwealth v. Lightfoot, 391 Mass. 718, 720 (1984). General Laws c. 15 IB, § 4 (1A), declares unlawful an employer’s imposition on an employee of “terms or conditions, compliance with which would require such individual to violate, or [forgo] the practice of, his creed or religion as required by that creed or religion” (emphasis added). In order to construe 15 IB, § 4 (1A), as protecting “holders of all religious beliefs, not just those who follow the dogma of an established religion,” as urged by the plaintiffs, we would be required to ignore, that is, treat as surplusage, the words “as required by that creed or religion.” It is unlikely that the Legislature intended such a result. See Bolster v. Commissioner of Corps. & Taxation, 319 Mass. 81, 84-85 (1946) (“None of the words of a statute is to be regarded as superfluous . . .”). The effect of the quoted statutory language is to limit the application of the statute to persons whose practices and beliefs mirror those required by the dogma of established religions. To construe the statute as not containing such limitation “would be to engage in a judicial enlargement of the clear statutory language beyond the limit of our judicial function. We have traditionally and consistently declined to trespass on legislative territory in deference to the time tested wisdom of the separation of powers as expressed in art. xxx of the Declaration of Rights of the Constitution of Massachusetts even when it appeared that a highly desirable and just result might thus be achieved. King v. Viscoloid Co., 219 Mass. 420, 424-425 [1914]. Simon v. Schwachman, 301 Mass. 573, 581-582 [1938]. We will not do so now.” Dalli v. Board of Educ., 358 Mass. 753, 759 (1971) (declining to construe language in vaccination statute exempting persons subscribing to “the tenets and practice of a recognized church or religious denomination” to include others whose sincerely held religious beliefs nevertheless conflict with vaccination). We come now to our discussion of the constitutionality of G. L. c. 151B, § 4 (1A). The First Amendment to the United States Constitution, which applies to the States through the Fourteenth Amendment, Everson v. Board of Educ. of Ewing, 330 U.S. 1, 15-16 (1947); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), provides in pertinent part that “Congress shall make no law respecting an establishment of religion.” A statute that prefers one or more religions over another violates the establishment clause. School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 381 (1985). Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 710 (1985). Larson v. Valente, 456 U.S. 228, 245 (1982). Also, “in order for a belief to be a protected religious belief, it is not necessary that it be shared by an organized sect or church.” Kolodziej v. Smith, supra at 220. “If [religious] beliefs be sincerely held they are entitled to the same protection as those more widely held by others.” Dalli v. Board of Educ., supra at 758. Thus, G. L. c. 15IB, § 4 (1A), which distinguishes between (1) an individual’s sincerely held religious belief that is shared with others belonging to an organized church or sect and (2) a belief that is not similarly shared, violates the establishment clause. General Laws c. 15IB, § 4 (1A), also offends the establishment clause by promoting excessive governmental entanglement with religion. Courts avoid such entanglement by abstaining from the resolution of controversies regarding religious matters. Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 718 (1976). Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 450 (1969). See Redmond v. GAF Corp., 574 F.2d 897, 900 (7th Cir. 1978) (stating, in interpreting Title VII provisions prohibiting employment discrimination based on religion, that “to restrict the act to [protecting only] those practices which are mandated or prohibited by a tenet of the [plaintiff’s] religion . . . would frequently require the courts to decide whether a particular practice is or is not required by the tenets of the religion. We find such a judicial determination to be irreconcilable with the warning issued by the Supreme Court in Fowler v. Rhode Island, [345 U.S. 67, 70 (1953),] ‘[I]t is no business of courts to say . . . what is a religious practice or activity . . .’ ”). This doctrine is directly related to the establishment clause’s essential purpose, which is to assure that government maintains “a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.” Walz v. Tax Comm’n of the City of N. Y., 397 U.S. 664, 669 (1970). See Alberts v. Devine, 395 Mass. 59, 72, cert, denied sub nom. Carroll v. Alberts, 474 U.S. 1013 (1985) (“First Amendment prohibits civil courts from intervening in disputes concerning religious doctrine, discipline, faith, or internal organization”); Wheeler v. Roman Catholic Archdiocese, 378 Mass. 58, 63-64, cert, denied, 444 U.S. 899 (1979) (dismissing complaint seeking imposition of trust on church property because statements in earlier cases “suggesting generally that the courts should be less reluctant to intervene in cases [touching religious matters] involving property rights or personal rights were written before the teachings of more recent relevant Supreme Court opinions, particularly Serbian E. Orthodox Diocese, were available,” and because “sound policy dictates that the denominations, and not the courts, interpret their own body of church polity”), cert, denied, 444 U.S. 899 (1979); United Kosher Butchers Ass’n v. Associated Synagogues of Greater Boston, Inc., 349 Mass. 595, 598 (1965) (courts will not interfere in a controversy which is exclusively or primarily of an ecclesiastical nature); Moustakis v. Hellenic Orthodox Soc’y, 261 Mass. 462, 466 (1928) (“It is not the province of civil courts to enter the domain of religious denominations for the purpose of deciding controversies touching matters exclusively ecclesiastical”). General Laws c. 15 IB, § 4 (1A), effectively compels courts, in cases where the dogma of an established church or religion is disputed, to ascertain the requirements of the religion at issue. This may occur in connection with a trial with or without a jury or, as here, in connection with rulings on motions for summary judgment. We conclude that G. L. c. 15IB, § 4 (1A), construed as we have concluded it must be construed, would require our courts in this case to determine what actions and beliefs are required of adherents to the Roman Catholic faith. These are not proper matters for the courts to decide. For this reason, in addition to its preference of religious beliefs and practices that are shared by organized churches over those not so shared, we conclude that § 4 (1A) violates the establishment clause of the First Amendment. The plaintiffs’ claims grounded on G. L. c. 15 IB, § 4 (1A), therefore, must fail. The plaintiffs rely on G. L. c. 93, § 102, the Massachusetts Equal Rights Act, as well as on G. L. c. 15IB, § 4 (1A). In their brief, the plaintiffs do little more than assert in conclusory fashion that the judge in the Superior Court should have analyzed their c. 93, § 102, claim “under the more strict requirements of art. 2 [of the Massachusetts Declaration of Rights].” The plaintiffs’ treatment of that issue is insufficient appellate argument. Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975). Judgment affirmed. We need not consider or discuss the plaintiffs’ assertion that c. 15 IB, § 4 (1A), as we construe it, also violates art. 2 of the Massa

HARVILLE v STATE PLUMBING AND HEATING, INC Docket No. 175256. Submitted March 19, 1996, at Detroit. Decided August 16, 1996, at 9:10 A.M. Leave to appeal sought. Darren L. and Rena Harville brought an action in the Wayne Circuit Court against State Plumbing and Heating, Inc., alleging that the defendant, Mr. Harville’s employer, had discriminated against him on the basis of race in imposing disciplinary punishment and eventually terminating his employment. The court, Susan Bielke Neil-son, J., entered a judgment on a jury verdict in favor of the defendant. The plaintiffs appealed. The Court of Appeals held: 1. In claiming discriminatory effect, but not discriminatory intent, with respect to an alleged jury selection process in the trial court that systematically and substantially results in jury panels on which blacks number proportionally less than they do in the general population of Wayne County, the plaintiffs have failed to show a violation of equal protection, Const 1963, art 1, § 2. The state Equal Protection Clause and the federal Equal Protection Clause, US Const, Am XIV, § 1, are coextensive even though the state provision, in addition to language it shares with the federal provision to the effect that no person shall be denied the equal protection of the laws, also provides that no person shall be denied the enjoyment of civil or political rights or be discriminated against in the exercise thereof because of religion, race, color, or national origin. Because proof of discriminatory intent or purpose behind state action is required to show a violation of the federal Equal Protection Clause, similar proof is required to show a violation of the state Equal Protection Clause. 2. The trial court did not abuse its discretion in ruling that counsel for the defendant did not improperly use peremptory challenges to remove all the black jurors from the panel. A race-neutral rationale for excusing the black jurors was articulated, and the plaintiffs failed to carry the burden of proving purposeful discrimination. 3. The trial court did not abuse its discretion in refusing to disqualify for cause a juror that the defense claimed was biased. A review of the record does not indicate that the juror was biased or that the defendant demonstrated a desire to excuse another, subsequently summoned juror who was objectionable. 4. The trial court did not abuse its discretion in allowing evidence relating to the resolution of a grievance by Mr. Harville against the defendant after it had granted the plaintiffs’ motion in limine to preclude evidence relating to the grievance. The plaintiffs cannot now complain because it was their counsel who introduced evidence indicative of a grievance when cross-examining a witness and the plaintiffs’ counsel agreed with the trial court that the jury needed to be told of the outcome of the grievance. Affirmed. 1. Constitutional Law — Equal Protection — Discriminatory Intent. The Equal Protection Clauses of the federal constitution and the state constitution are coextensive; proof of discriminatory intent or purpose behind state action is required to show a violation of either provision; proof of discriminatory effect, alone, is insufficient to establish a violation of either provision (US Const, Am XIV, § 1; Const 1963, art 1, § 2). 2. Constitutional Law — Equal Protection — Discriminatory Purpose. Discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one group than another. 3. Constitutional Law — Equal Protection — Discriminatory Purpose. Discriminatory purpose implies more than intent as volition or intent as awareness of consequences; it implies that a decisionmaker selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group. 4. Jury — Peremptory Challenges — Race-Based Exclusions — Appeal. Evaluation by a trial court of a claim by a civil litigant that the opposing party improperly used its peremptory challenges to remove prospective jurors on the basis of race involves a three-step process: the complaining litigant must make a prima facie showing of discrimination; the party exercising the peremptory challenges must articulate a race-neutral rationale for striking the jurors; and the court must determine whether the complaining litigant carried the burden of proving purposeful discrimination; an appellate court reviews a trial court’s ruling with regard to this issue for abuse of discretion, giving great deference to the trial court’s findings. 5. Jury — Challenges for Cause — Appeal. A trial court commits error requiring reversal in failing to exclude a juror challenged for cause where the record reveals that the court improperly denied a challenge for cause, the aggrieved party had exhausted all peremptory challenges, the party demonstrated a desire to excuse another, subsequently summoned juror, and the juror whom the party wished later to excuse was objectionable. Kelman, Loria, Downing, Schneider & Simpson (by Janet M. Tooley), for the plaintiffs. Thomas E. Marshall and Andrew J. Bean, for the defendant. Before: Bandstra, P.J., and Markman and M. D. Schwartz JJ. Circuit judge, sitting on the Court of Appeals by assignment. Markman, J. Plaintiffs appeal as of right an order of judgment for defendant in this race discrimination action. We affirm. In their complaint, plaintiffs alleged that defendant discriminated against plaintiff Darren L. Harville, a black employee of defendant, on the basis of race by punishing him for conduct for which white employees were not punished, and by terminating his employment. After a four-day trial, the jury found that defendant did not discriminate against plaintiff on the basis of his race in discharging him or laying him off. The trial court entered judgment in accordance with this verdict. Plaintiffs’ claims on appeal relate to the composition of the jury. Their first claim is that the jury was the product of a jury selection process that systematically and substantially underrepresented the black population of Wayne County. Specifically, they claim that the process resulted in juries that underrepresented black Wayne County residents because (1) Detroit residents who serve on city-wide juries are excused from serving on another jury panel for one year, (2) persons who were sent a 1993 jury questionnaire were not sent a 1994 questionnaire, and a lower percentage of Detroit residents than non-Detroit residents return jury questionnaires, and (3) a lower percentage of Detroit residents than non-Detroit residents appear for jury duty. They claim that the allegedly disparate effect of the jury selection process on black Wayne County residents violated Const 1963, art 1, § 2, Michigan’s equal protection provision. Because plaintiffs do not contend that the process was intentionally discriminatory, this appeal squarely raises the issue whether discriminatory effect alone violates art 1, § 2. Plaintiffs raised this issue during the impaneling of the jury and again in posttrial motions. The trial court had a jury administrator, Gary Wolfe, testify regarding the jury selection process on both occasions. The court, although not deciding whether disparate effect alone could constitute a violation of art 1, § 2, concluded that the jury at issue was selected pursuant to a “random selection process” that was not “constitutionally violative.” We begin our analysis by considering cases interpreting the federal Equal Protection Clause, US Const, Am XTV, § 1. As discussed more fully below, the Michigan Supreme Court has held that art 1, § 2 is coextensive with the federal Equal Protection Clause and, thus, understanding the latter is instructive in understanding the former. United States Supreme Court precedents consistently indicate that the United States Constitution’s Equal Protection Clause reaches only intentional or purposeful discrimination. Washington v Davis, 426 US 229; 96 S Ct 2040; 48 L Ed 2d 597 (1976), involved the alleged racially discriminatory effect of a written personnel test used by a police department. The Court of Appeals had focused on the disparate effect of the test rather than a possible discriminatory purpose. Id. at 238. The Washington Court held at 239: The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race. It is also true that the Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups. But our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact. [Citation omitted; emphasis in original.] It further discussed adherence to “the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose.” Id. at 240. The Washington Court continued at 242: Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another. . . . Nevertheless, we have not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another. Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. Standing alone, it does not trigger the rule . . . that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations. [Citation omitted.] In Village of Arlington Heights v Metropolitan Housing Development Corp, 429 US 252, 265; 97 S Ct 555; 50 L Ed 2d 450 (1977), which involved a race discrimination claim arising out of the denial of a rezoning application, the Court held that “[pjroof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” Later, in City of Mobile, Alabama v Bolden, 446 US 55; 100 S Ct 1490; 64 L Ed 2d 47 (1980), involving a challenge to the city’s at-large electoral system for city commissioners as racially discriminatory, a majority of the Court confirmed the necessity of demonstrating discriminatory intent to establish an equal protection violation. The four-justice plurality opinion stated: A plaintiff must prove that the disputed plan was “conceived or operated as [a] purposeful devic[e] to further racial. . . discrimination.” This burden of proof is simply one aspect of the basic principle that only if there is purposeful discrimination can there be a violation of the Equal Protection Clause of the Fourteenth Amendment. [Citations omitted.] The ultimate question remains whether a discriminatory intent has been proved in a given case. [Id. at 66, 74.] In an opinion dissenting on other grounds, Justice White stated at 94-95 that the Court recognized in Washington, supra (in which he wrote the opinion of the Court), that “the Equal Protection Clause forbids only purposeful discrimination.” Recently, in Purkett v Elem, 514 US_; 115 S Ct 1769; 131 L Ed 2d 834 (1995), involving the allegedly racially discriminatory use of a peremptory challenge, the Court reiterated that the relevant inquiry under the Equal Protection Clause was whether there had been “discriminatory intent” or “purposeful” discrimination. 131 L Ed 2d 839. The Court has defined “discriminatory purpose” and articulated the role of disparate effect evidence in equal protection cases. In Personnel Administrator of Massachusetts v Feeney, 442 US 256; 99 S Ct 2282; 60 L Ed 2d 870 (1979), the Court considered a claim that a veterans preference in state employment resulted in sex discrimination. It stated that Washington and Arlington Heights “signaled no departure from the settled rule that the Fourteenth Amendment guarantees equal laws, not equal results.” 442 US 273. It held at 279: “Discriminatory purpose,” however, implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part “because of,” not merely “in spite of,” its adverse effects upon an identifiable group. Hernandez v New York, 500 US 352; 111 S Ct 1859; 114 L Ed 2d 395 (1991), involved a claim that a prosecutor used peremptory challenges to exclude Latino jurors because of uncertainty whether they would accept an interpreter’s translation of Spanish-speaking witnesses. A majority of the Court reiterated that disparate effect, alone, is insufficient to establish an equal protection violation. The four-justice plurality opinion stated at 362: [Disparate impact should be given appropriate weight in determining whether the prosecutor acted with a forbidden intent, but it will not be conclusive in the preliminary race-neutrality step of the Batson [v Kentucky, 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986)] inquiry. An argument relating to the impact of a classification does not alone show its purpose. Equal protection analysis turns on the intended consequences of government classification. Unless the government actor adopted a criterion with the intent of causing the impact asserted, that impact itself does not violate the principle of race neutrality. [Citation omitted.] Justices O’Connor and Scalia concurred in a separate opinion, in which they stated at 372-373: An unwavering line of cases from this Court holds that a violation of the Equal Protection Clause requires state action motivated by discriminatory intent; the disproportionate effects of state action are not sufficient to establish such a violation. This clear precedent indicates that plaintiffs’ present claim, alleging only disparate effect, not discriminatory intent, would fail to state a violation had it been raised under the federal Equal Protection Clause. Plaintiffs nonetheless assert that their disparate effect claim states a violation of the Michigan Constitution’s equal protection provision, Const 1963, art 1, § 2. Michigan’s equal protection provision includes language not contained in the federal Equal Protection Clause. The federal provision states, “nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws.” In contrast, Const 1963, art 1, § 2 states: No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. Despite the differences in their language, the Michigan Supreme Court has found Michigan’s equal protection provision coextensive with the federal constitution’s Equal Protection Clause. Most recently, in Frame v Nehls, 452 Mich 171; 550 NW2d 739 (1996), a grandparent visitation action, the Court stated that “[t]he Michigan and federal Equal Protection Clauses offer similar protection.” Id. at 183. In Doe v Dep’t of Social Services, 439 Mich 650; 487 NW2d 166 (1992), the Court considered art 1, § 2 in the context of a challenge to legislation that prohibited the use of public funds for abortions. The Court found that “a review of the jurisprudence and constitutional history of this state suggests . . . that our equal protection clause was intended to duplicate the federal clause and to offer similar protection.” Doe at 670-671. It stated that the language of our Equal Protection Clause is “essentially the same” as that in the Fourteenth Amendment. Id. at 671-672. It noted that the Michigan Constitution has a second clause unlike the federal constitution, but stated at 672: [T]hat a separate clause to provide explicit protection for civil rights was adopted in the midst of the civil rights movement, does not, in and of itself, suggest any purpose on the part of the delegates to broaden the scope of the preceding Equal Protection Clause. The Court further stated at 673-674: Rather, we draw from a reading of the convention record the firm conclusion that the delegates intended to affirm and incorporate the basic notions of equal protection that prevailed at the time. Under these cases, plaintiffs are held to the same burden under art 1, § 2 as under the Fourteenth Amendment; i.e., they must demonstrate intentional or purposeful discrimination. Because plaintiffs do not allege any intentional discrimination in the jury selection procedure, their equal protection claim must fail. Further, the Michigan Supreme Court specifically addressed the issue of disparate effect evidence in equal protection cases in People v Ford, 417 Mich 66; 331 NW2d 878 (1982). In Ford, the defendant challenged his being charged with the felony of larceny in a building when the evidence also supported a misdemeanor general larceny charge. The defendant provided the court with statistical information comparing the racial breakdown of arrests for larceny-theft (twice as many whites as blacks) and the racial breakdown of Michigan’s prison composition (over fifty percent black). Id. at 102. The Ford Court stated that the defendant asked it “to take a quantum leap in equal protection analysis based on unproven assumptions and non-sequitur statistical inferences.” Id. at 103. It held at 103: In the absence of a purpose to cause racial discrimination, governmental action that has a disproportionate effect on a racial minority is not unconstitutional. Such an effect may permit an inference of an unlawful purpose, but, standing alone, it is not conclusive on the question whether governmental activity is racially discriminatory. [Emphasis in original.] The Court concluded that the prosecutor’s exercise of discretion in the cases before it did not per se violate the Equal Protection Clause under either the federal or the Michigan Constitution. Id. at 105. Ford, accordingly, also indicates that plaintiffs’ equal protection claim fails. Contrary to these precedents, a panel of this Court found that the disparate effect of an ordinance restricting use of city parks to city residents, without reference to discriminatory intent, was sufficient to constitute a violation of art 1, § 2 in Detroit Branch, NAACP v Dearborn, 173 Mich App 602; 434 NW2d 444 (1988). The NAACP Court almost exclusively relied on Berry v Benton Harbor School Dist, 467 F Supp 721 (WD Mich, 1978), for its conclusion that art 1, § 2 was intended to provide greater protection than that afforded by the Fourteenth Amendment and that discriminatory intent or purpose need not be proved in cases under art 1, § 2. NAACP at 615. Berry was a school desegregation action. The Berry Court held at 730: It is plainly evident that Article I, section 2, and Article VIII, section 2 [requiring provision for education without discrimination with regard to religion, creed, race, color or national origin] of the Michigan Constitution go beyond the limits of the Fourteenth Amendment by prohibiting all racial segregation, without regard to whether it was caused by a segregative purpose. The Berry Court stated that its holding was based on the plain wording of the provisions at issue, which prohibited “discrimination” — a word not found in the Fourteenth Amendment. Id. It noted that art 1, § 2 tracks the Fourteenth Amendment in part but adds an antidiscrimination clause. Id. It concluded at 730-731: This clearly indicates that discrimination and equal protection of the laws are two different concepts under the Mi

HEURTEBISE v RELIABLE BUSINESS COMPUTERS, INC Docket No. 102019. Argued April 10, 1996 (Calendar No. 5). Decided July 16, 1996. Rehearing denied 453 Mich 1204. Theresa Heurtebise brought an action in the Wayne Circuit Court against Rehable Business Computers, Inc., alleging unlawful termination of her employment because of gender discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. The court, Cynthia D. Stephens, J., denied the defendant’s motion to compel arbitration and to stay the proceedings, finding that the arbitration agreement signed by the plaintiff was against public policy. The Court of Appeals, Neff, P.J., and McDonald and M. Warshawsky, JJ., reversed in an opinion per curiam, finding no public policy prohibition against the enforcement of a valid arbitration agreement that provides for meaningful arbitration in matters involving civil rights questions, and determined that arbitration does not impair the remedies afforded under the statute (Docket No. 152041). The plaintiff appeals. In separate opinions, the Supreme Court unanimously held: An arbitration provision is unenforceable if it is not a binding contract. The opening statement of the defendant’s handbook demonstrates that the defendant did not intend to be bound to any provision contained in the handbook. Consequently, the handbook did not create an enforceable arbitration agreement with respect to this dispute. Thus, the defendant was not entitled to summary disposition. Justice Cavanagh, joined by Justices Levin and Mallett, additionally stated that the Michigan Constitution and longstanding public policy preclude private employers from requiring their employees, as a condition of employment, to waive prospectively the right to pursue civil rights claims in a judicial forum. Rights secured by the Michigan Civil Rights Act are nonnegotiable state rights that apply to all employees and cannot be waived or conditioned. The Michigan Constitution expressly prohibits exhaustion of administrative remedies for civil rights claims. In addition, the Legislature has underscored this policy by expressly prohibiting an exhaustion of administrative remedies requirement. In creating the Civil Rights Commission, Const 1963, art 5, § 29 did not diminish the right of any party to direct and immediate legal or equitable remedies in the courts, and it was intended that the role of the judiciary in enforcing civil rights was to remain supreme. As the scope of equal protection expanded, the private right to judicial remedies, whether expressly provided by statute or inferred by the judiciary, was always included. The Legislature has done nothing to impair or restrict an aggrieved person’s access to judicial remedies, nor could it. The judicial remedies provision of Const 1963, art 5, § 29, along with the tone of the constitutional debates that produced the provision, reveal that an aggrieved person’s direct access to a judicial forum is so interwoven with the enforcement of substantive civil rights in Michigan that they cannot be separated without potentially harming substantive civil rights. Public policy favoring arbitration can be outweighed by contrary constitutional or legislative intent. Reversed and remanded. 207 ¡Mich App 308; 523 NW2d 904 (1994) reversed. Goodman, Eden, Millender & Bedrosian (by Christopher R. Holliday and Julia Sherwin) for the plaintiff. Shapack, McCullough & Ranter, RC. (by Alan M. Ranter, Michael R. Shpiece, and Michael L. Getter), and Walton & Stafford, P.C. (by Jonathan T. Walton, Jr., and Laura S. Stafford), for the defendant. Amici Curiae: Frank J. Relley, Attorney General, Thomas L. Casey, Solicitor General, and Rebekah F. Visconti, Assistant Attorney General, for Michigan Civil Rights Commission and Michigan Department of Civil Rights. Stewart R. Hakola and Gayle C. Rosen for the Michigan Protection & Advocacy Service. Sachs, Waldman, O’Hare, Helveston, Bogas & McIntosh, P.C. (by Mary Ratherine Norton and Elizabeth A. Cabot), for Michigan State AFL-CIO, International Union UAW, National Employment Lawyers Association, and Michigan Employment Lawyers Association. Jeanne M. VanderHeide and Jeanne Mirer for National Lawyers Guild, Detroit Chapter. Stark & Gordon (by Sheldon J. Stark and Carol A. Laughbaum) for the Association of Trial Lawyers of America, Michigan Trial Lawyers Association, American Civil Liberties Union of Michigan, and Wolverine Bar Association. Clark, Hill, P.L.C. (by Duane L. Tamacki, J. Walker Henry, and Patricia S. Bordman), for Michigan Manufacturers Association. Amberg, McNenly, Zuschlag, Firestone & Lee, PC. (by Joseph H. Firestone), for Michigan Education Association. Vercruysse, Metz & Murray (by Diane M. Soubly and David B. Calzone) for American Society of Employers, American Automobile Manufacturers Association, Greater Detroit Chamber of Commerce, and Michigan Chamber of Commerce. Cavanagh, J. We are asked in this case to address whether the instant parties have created a binding arbitration agreement with respect to employment discrimination claims accruing subsequent to such an agreement. If yes, then we would need to address whether such agreements between employers and employees, entered into as a condition of employment, violate public policy in Michigan. We hold that no binding agreement was created in this case. Consequently, a majority of this Court declines to address the second issue. However, I would further hold that the public policy against discrimination in Michigan precludes enforcement of prospective waivers in employment contracts of a judicial forum for civil rights claims. Before turning to the matter at hand, we thank all the amici curiae who filed briefs for assisting us in resolving the issues. i This case is at the summary disposition stage. In November 1991, the plaintiff, Theresa Heurtebise, filed suit against the defendant, Reliable Business Computers, alleging that she had been unlawfully terminated from her employment in violation of the Michigan Civil Rights Act. MCL 37.2101 et seq.\ MSA 3.548(101) et seq. The plaintiff alleged that she had been hired in May 1989 to perfomi computer software support work. She further alleged that she and a coworker, who was male, often took lunches that lasted longer than the company’s established one-hour period, while working together on a project. Additionally, she alleged that on July 20, 1990, the plaintiff and this male co-worker returned from a working lunch that had lasted longer than one hour. The plaintiff alleged that she was terminated, while her male co-worker was not. The plaintiff argued that this was unlawful gender discrimination and sought money damages. In response, the defendant brought a motion to dismiss, pursuant to MCR 2.116(C)(4) (lack of subject matter jurisdiction), or, alternatively, to compel arbitration and to stay proceedings, pursuant to MCR 3.602. The defendant relied on a written acknowledgment signed by the plaintiff and dated May 25, 1989, which stated that she had received the defendant’s employee handbook and that she had agreed to be bound by its terms and policies. The handbook provided an internal review mechanism for disputes with respect to dismissals. In addition, it provided that all disputes involving money damages would go to final and binding arbitration. The trial court denied the defendant’s alternative motions. It refused to enforce the arbitration agreement on the grounds that it was against public policy and that other clauses in the handbook made the arbitration provision ambiguous. The Court of Appeals reversed. 207 Mich App 308; 523 NW2d 904 (1994). It reasoned: The trial court appears to have denied defendant’s motion in part because it found there was no “meeting of the minds” between plaintiff and defendant with regard to the arbitration clause. The record does not support such a finding. Before beginning employment, plaintiff signed an acknowledgment form that stated that she agreed to conform to the various procedures, rules, and regulations of the company as set forth in the handbook. Moreover, even were the record devoid of plaintiff’s express acceptance of the handbook’s provisions, it is well established under Michigan law that mutual assent to a term of employment is not required. In re Certified Question, 432 Mich 438; 443 NW2d 112 (1989); Carlson v Hutzel Corp of Michigan, 183 Mich App 508; 455 NW2d 335 (1990); Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980).11 Plaintiff’s argument that the handbook specifically states that it does not create an enforceable contract is misguided. The provision plaintiff relies on addresses the at-will nature of plaintiff’s employment, not the handbook in its entirety. Finally, we find no “public policy” prohibition against the enforcement of a valid arbitration agreement that provides for meaningful arbitration in matters involving civil rights questions. See Gilmer v Interstate/Johnson Lane Corp, 500 US 20; 111 S Ct 1647; 114 L Ed 2d 26 (1991). To the contrary, arbitration has long been a favorable method of dispute resolution. Detroit v AW Kutsche & Co, 309 Mich 700; 16 NW2d 128 (1944). Thus, arbitration clauses are to be liberally construed with any doubts to be resolved in favor of arbitration. Chippewa Valley Schools v Hill, 62 Mich App 116; 233 NW2d 208 (1975). Contrary to plaintiff’s suggestion, arbitration of plaintiff’s claims will not result in the loss of her rights under the Civil Eights Act, but, instead, merely constitutes enforcement of an agreement to have those rights determined in a different forum. Arbitration does not impair the remedies afforded under the statute. [207 Mich App 310-311.] We granted leave to the plaintiffs appeal. 450 Mich 963 (1995). We note that the entire handbook was not presented to the trial court or to the Court of Appeals. After oral argument, we granted the plaintiffs motion to expand the record to include the entire handbook. It is seventy-one pages long and covers a broad scope of subjects.* The expanded record reveals that the handbook included an anti-discrimination policy statement. In the introduction on page 2, the handbook further reserved in the defendant the right to modify any policy contained in the handbook “at its sole discretion.” n We turn first to whether the parties are bound by a valid arbitration agreement. It is undisputed that an arbitration provision is unenforceable if it is not a binding contract. The opening statement in the handbook provides: This document is intended to establish and clarity certain employment policies, practices, rules and regulations (hereinafter collectively referred to as “Policies”) of Reliable Business Computers, Inc., (hereinafter referred to as the “company”). Except as may otherwise be provided, the Policies will apply to all company employees, and it is each employee’s responsibility to assure that his/her own conduct is in conformity with those Policies. It is important to recognize and clarify that the Policies specified herein do not create any employment or personal contract, express or implied, nor is it intended nor expected that the information provided in this document will provide sufficient detail to answer any and all questions which may arise. Notwithstanding any of the specific policies herein, each EMPLOYEE HAS THE ABSOLUTE RIGHT TO TERMINATE HIS/HER OWN EMPLOYMENT AT ANY TIME, WITHOUT NOTICE, AND FOR ANY REASON WHATSOEVER, AND THE COMPANY HAS THE SAME RIGHT. From time to time, the company specifically reserves the right, and may make modifications to any or all of the Policies herein, at its sole discretion, and as future conditions may warrant. In the event employees have any questions relative to any of the Policies, they are urged to contact their supervisor for clarification purposes. New employees will receive a copy of this document at the time of formal hire. Upon receipt, all employees will sign the Employee Acknowledgement, acknowledging receipt of this document. [Emphasis added.] This demonstrates that the defendant did not intend to be bound to any provision contained in the handbook. Consequently, we hold that the handbook has not created an enforceable arbitration agreement with respect to this dispute. We note that the above opening statement was not part of the record before the Court of Appeals. Had the Court of Appeals been able to examine the entire handbook, we are confident that it would have reached the same conclusion. We hold that the defendant was not entitled to summary disposition. in Although a majority of this Court saves the public policy issue for another day, because the Court of Appeals addressed it, I believe that we should decide it as well. Therefore, I turn now to the issue whether private employers can require employees, as a condition of employment, to waive prospectively their right to pursue civil rights claims in a judicial forum. As I will demonstrate, Michigan has a long history of stalwartly defending individuals from invidious discrimination in their pursuit of basic civil liberties, such as equal opportunity in the pursuit of employment. Unlike federal law, Michigan also has an unwavering history of faithfully defending an aggrieved individual’s right to a judicial forum to remedy unlawful discrimination. The defendant relies on federal title VII and age discrimination (adea) case law. However, it is axiomatic that even under federal law, “an employee may not prospectively waive his or her rights under either Title VII or the ADEA.” Adams v Philip Morris, Inc, 67 F3d 580, 584 (CA 6, 1995). Likewise, we have held that the rights secured by the Michigan Civil Rights Act are “nonnegotiable state rights.” Betty v Brooks & Perkins, 446 Mich 270, 282; 521 NW2d 518 (1994). “These are rights that apply to all employees, whether or not they belong to a union. Such rights cannot be waived or conditioned on success at the bargaining table.” Id. The defendant and its amici curiae would have us believe that the only interest at stake in enforcing a prospective arbitration agreement is the parties’ choice of forum in which an aggrieved party may pursue statutory remedies. We should decide whether a prospective waiver of an aggrieved individual’s right to a judicial forum, which is required of the employee as a condition of employment, comports with Michigan public policy as reflected in our constitution, civil rights statute, and case law. The issue before us would be one of first impression. There are several layers of considerations that I will address. First, I will briefly review the prevailing precedent with respect to federal discrimination claims. Second, I will consider whether Michigan civil rights law is substantially similar to federal anti-discrimination law or whether it is materially different with respect to an aggrieved individual’s access to a judicial forum. I will then trace the role of an aggrieved individual’s access to a judicial forum in the development of Michigan civil rights law to determine whether Michigan public policy precludes the enforcement of prospective arbitration agreements in employment contracts with respect to statutory civil rights claims. FEDERAL DISCRIMINATION CLAIMS The Court of Appeals relied on Gilmer, supra, in holding that public policy did not prevent the enforcement of a valid prospective arbitration agreement. 207 Mich App 311. In 1991, the Gilmer Court held that a broadly worded arbitration clause in a securities registration form, which is often referred to as a stockbroker U-4 form, covered an adea claim. In doing so, the Court found that the Federal Arbitration Act (faa) applied and that it evidenced a “ ‘liberal federal policy favoring arbitration agreements.’ ” Id. at 25 (citation omitted). However, the faa expressly excludes from coverage “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 USC l. Referencing this clause, Gilmer expressly did not decide what the result would be if the arbitration clause had been contained in an employment contract. Id. at 25, n 2. Gilmer also distinguished a trilogy of cases that had arisen in the collective bargaining setting: Alexander v Gardner-Denver Co, 415 US 36; 94 S Ct 1011; 39 L Ed 2d 147 (1974) (title VII claim), Barrentine v Arkansas-Best Freight System, Inc, 450 US 728; 101 S Ct 1437; 67 L Ed 2d 641 (1981) (right to minimum wage claim under the Fair Labor Standards Act), and McDonald v West Branch, 466 US 284; 104 S Ct 1799; 80 L Ed 2d 302 (1984) (42 USC 1983 claim). Following Gilmer, there has been a lot of appellate activity involving the applicability of prospective arbitration agreements to federal discrimination claims. Although there remain many unanswered questions in Gilmer’s wake, two general rules have emerged. First, an arbitration clause in a collective bargaining agreement does not extend to federal statutory claims of discrimination. E.g., Pike v Burlington Northern R Co, 273 Mont 390, __; 903 P2d 1352, 1357 (1995). One overriding rationale for this rule is that civil rights are individual personal rights, while union bargaining representatives act for the benefit of the group. The apparent “tension between collective representation and individual statutory rights” led the Court in the Alexander line of cases to protect the rights of the individual employee by not enforcing arbitration agreements in collective bargaining agreements with respect to claims of unlawful discrimination. Gilmer, 500 US 35. The second rule is that an arbitration clause in a stockbroker U-4 form does extend to title VII claims, in addition to adea claims. Bender v AG Edwards & Sons, Inc, 971 F2d 698 (CA 11, 1992); Alford v Dean Witter Reynolds, Inc (On Remand), 939 F2d 229 (CA 5, 1991). The defendant cites numerous cases for the proposition that prospective arbitration agreements in individual employment contracts have been enforced with respect to federal and state discrimination claims. However, those cited cases arose under the faa or were not ordinary employment contracts. I have found other cases that have distinguished the contract at issue, such as a stockbroker u-4 form, as not being an employment contract. Willis v Dean Witter Reynolds, Inc, 948 F2d 305, 312 (CA 6, 1991); Alford, 939 F2d 230, n * (“[cjourts should be mindful of this potential issue in future cases”). On the basis of the fact that the Gilmer Court expressly distinguished employment contracts, id. at 25, n 2, and because many subsequent cases have continued that distinction, I would find that the cases upholding prospective arbitration agreements in stockbroker u-4 forms, including Gilmer, are not on point in the case at hand because they did not concern ordinary employment contracts. Hence, I would find that there remains a conflict among courts regarding whether arbitration agreements in individually negotiated employment contracts are enforceable under the FAA with respect to claims of unlawful discrimination. In any event, the defendant has not argued that the instant case is controlled by the FAA. Therefore, even if prospective arbitration agreements in individually negotiated employment contracts are enforceable with respect to federal and other state discrimination claims when the FAA does apply, such cases would not necessarily apply here. TITLE VH AND ADEA DISTINGUISHED FROM THE MICHIGAN CIVIL RIGHTS ACT Even though we often look to title VII precedent in interpreting our own civil rights statute, we decline to do so when the Michigan statute provides greater protection to victims of discriminatory actions than title VII provides. Title VII requires claimants to exhaust administrative remedies with the Equal Employment Opportunity Commission (eeoc) before pursuing judicial relief. Likewise, the ADEA requires an aggrieved individual to seek relief first with the E

School Committee of Brockton vs. Massachusetts Commission Against Discrimination & another. Plymouth. May 9, 1996. June 19, 1996. Present: Liacos, C.J., Wilkins, Abrams, Greaney, & Fried, JJ. Anti-Discrimination Law, Sex, Maternity leave, Attorney’s fees. Massachusetts Commission Against Discrimination. Limitations, Statute of. Laches. Administrative Law, Substantial evidence, Findings, Evidence, Class action. Contribution. Substantial evidence supported the conclusion of the Massachusetts Commission Against Discrimination, accepting the decision of a hearing commissioner, that a teachers’ union’s complaint was timely filed within six months of a school committee’s communication in April, 1979, of its final, unconditional decision to deny sick leave benefits for teachers’ pregnancy-related disabilities, requested from 1973 through 1978. [10-11] Where there was no basis for assigning responsibility to the complainants for delay in the pendency of a proceeding before the Massachusetts Commission Against Discrimination, there was no basis for the party complained against to request dismissal of the complaint for loches. [11-13] Where, in a proceeding before the Massachusetts Commission Against Discrimination brought by teachers and their union against a school committee, the committee had no right to seek contribution from the union where there was no showing that the union participated in the alleged discriminatory acts. [13-14] Substantial evidence supported the conclusion of the Massachusetts Commission Against Discrimination, accepting the decision of a hearing commissioner, that a teachers’ union was the appropriate class representative of the teachers for any prospective relief against the school committee. [14-15] In a proceeding before the Massachusetts Commission Against Discrimination, substantial evidence in the form of uncontradicted letters of attending physicians supported the assessment of damages against a school committee for its discriminatory acts from 1973 through 1978 denying pregnant teachers sick leave benefits during the teachers’ pregnancy-induced periods of disability. [15-16] The Massachusetts Commission Against Discrimination correctly gave retroactive effect to the amendment to G. L. c. 151B, § 5, set forth in St. 1989, c. 722, § 27, to award attorney’s fees to complainants whose case was pending at the time the amendment was enacted. [16] Civil action commenced in the Superior Court Department on January 8, 1991. The case was reported to the Appeals Court by Cortland A. Mathers, J., on a statement of agreed facts. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Regina Williams Tate for School Committee of Brockton. Mark G. Kaplan (Sheilah F. McCarthy with him) for Brock-ton Education Association. Jerrold S. Levinsky for Massachusetts Commission Against Discrimination. Brockton Education Association. Greaney, J. We transferred this case to this court on our own motion to consider arguments made by the school committee of Brockton (school committee) alleging error in a decision of the Massachusetts Commission Against Discrimination (commission). The commission accepted the decision of a hearing commissioner, which found that the school committee had engaged in unlawftd sex discrimination in violation of G. L. c. 151B, § 4 (1) (1994 ed.), by denying accrued sick leave benefits to teachers disabled by pregnancy, and awarded damages and interest to the harmed teachers. The commission itself awarded attorney’s fees to the teachers. We afiirm the commission’s decision. The background of the case is as follows. On August 17, 1979, the Brockton Education Association (union) filed a class action complaint with the commission against the school committee. The complaint was filed on behalf of teachers in the Brockton public schools who, from January, 1973, to December, 1978, had requested and been denied the use of accrued sick leave for pregnancy-related disabilities. The complaint stemmed from this court’s decision on February 28, 1979, in School Comm. of Brockton v. Massachusetts Comm’n Against Discrimination, 377 Mass. 392 (1979) (Brockton decision), which upheld a commission decision that the school committee had violated G. L. c. 15IB, § 4, by discriminating on the basis of sex against Cynthia Zettlemoyer, a Brockton public school teacher, when it denied her January, 1973, request to use her accrued sick leave during her pregnancy-related disability. On 114 occasions while the Zettlemoyer complaint was pending, public school teachers in Brockton requested to apply their accrued sick leave to the period of their pregnancy-related disabilities. The requests were denied. Each teacher’s request was presented to the school committee by the Brock-ton school superintendent, along with the superintendent’s recommendation for handling the request. During 1973, 1974, and the first five months of 1975, the superintendent’s recommendations to the school committee were phrased in different ways, but some referred to a test case on the issue of allowing sick leave for maternity-related disabilities, and indicated that the teachers’ ultimate eligibility for sick leave benefits would depend on the outcome of the test case. In some cases which arose as early as February 16, 1975, and in all cases which arose on and after May 20, 1975, the superintendent’s recommendation to the school committee was to grant any application for maternity leave “without pay and without sick leave pending a court decision.” During 1973, 1974, and the first ten and one-half months of 1975, the school committee responded to pregnant teachers’ requests for sick leave benefits with letters which were worded in different ways, some of which stated that the teacher’s ultimate eligibility for the requested benefits would depend on the outcome of a court case on the issue. In some cases which arose as early as January 22, 1975, and in all cases which arose after October 15, 1975, the school committee responded to the teachers’ requests with a form letter stating that “[s]ince the question of sick leave for maternity has yet to be resolved in a test case, it is not possible to grant your request for this.” It is undisputed that the test case referred to in all of these statements and letters was the Brock-ton decision. Shortly after our decision in the Brockton decision, the union requested payment from the school committee of accrued sick leave benefits for the pregnant teachers who had requested, but been denied, benefits during the pendency of the Zettlemoyer complaint. In a letter sent on April 25, 1979, the school committee denied the union’s request, stating that it would not grant retroactive benefits under the Brockton decision, unless the teacher claiming benefits had filed a complaint with the commission on the denial of her request. The union proceeded to file the present class action complaint. The school committee recognizes that teachers in the same position as Zettlemoyer have suffered discrimination, a conclusion established by the Brockton decision. The school committee, however, makes a variety of arguments, which we next discuss, on why the commission’s decision nevertheless should be set aside. 1. Statute of limitations. General Laws c. 151B, § 5 (1994 ed.), requires that a charge of discrimination be filed with the commission within six months of the occurrence of the discriminatory act. The school committee asserts that the discriminatory acts against the class members occurred between 1973 and 1978, when the teachers initially were denied accrued sick leave for pregnancy-related disabilities. The school committee concludes that, since the complaint was not filed within six months of these initial denials, it is barred by § 5. The commission upheld the hearing commissioner’s findings that the denial notifications received by the teachers between 1973 and 1978 were conditional denials, with the final decision on benefits reserved until after the conclusion of the Brockton decision; that the school committee did not make a final, unconditional decision to deny benefits until it sent its April 25, 1979, letter to the union; and, accordingly, that the statute of limitations began to run on April 25, 1979, less than six months before the union filed its complaint. The commission accepts facts found by the hearing commissioner if they are supported by substantial evidence, 804 Code Mass. Regs. § 1.16(8) (1986), and a reviewing court gives similar acceptance to the commission’s determinations. Lynn Teachers Union, Local 1037 v. Massachusetts Comm’n Against Discrimination, 406 Mass. 515, 517 n.l (1990). “Substantial evidence” is defined as “such evidence as a reasonable mind might accept as adequate to support a conclusion.” G. L. c. 30A, § 1 (6) (1994 ed.). There was substantial evidence before the hearing commissioner that the school committee’s initial letters denying the teachers’ requests to use accrued sick leave were tentative and conditional in nature and, reasonably interpreted, that the letters expressed an intent not to make a final determination on benefits until the Brockton decision had been decided. For example, many of the letters sent by the school committee to teachers before October, 1975, and all the letters sent afterwards, expressly made reference to a test case on using accrued sick leave for pregnancy-related disability, and suggested that a final decision as to eligibility for benefits would rest on the outcome of that case. The recommendations of the superintendent to the school committee followed a similar Une. Based on this and other evidence, the commission properly accepted the hearing commissioner’s findings that the statute of limitations began to run on April 25, 1979, when the school committee communicated its final, unconditional decision to deny the requested benefits. See Wheatley v. American Tel & Tel Co., 418 Mass. 394, 398 (1994) (“The statutory period for complaining of a discriminatory termination does not begin to run until the employee has sufficient notice of that specific act” [citation omitted]). The union’s complaint, therefore, was seasonably filed. 2. Laches. The school committee argues that delay in the resolution of the complaint, occasioned by the union’s and the teachers’ delay in filing the charge, and the commission’s delay in processing the charge, requires dismissal of the complaint on the basis of the doctrine of loches. We reject this argument. This case was pending before the commission for over eleven years before a final decision was reached. The delay is regrettable, but we see no basis for assigning any blame for the delay to the union or the teachers seeking benefits. Rather, the delay appears to be attributable, in part, to the school committee’s choosing to litigate every important facet of the case. The school committee, of course, had a right to do so, but delay caused by the school committee’s intense litigation tactics should not be held against the union and the teachers. The backlog of cases pending at the commission, and the commission’s lack of resources, also appear to have contributed to the delay. That situation, while unfortunate, also cannot bar the union’s and the teachers’ claims. Delay which is not caused by the party bringing an action before the commission cannot furnish a basis for the application of loches. 3. Remaining issues, (a) The investigating commissioner denied the school committee’s motion to join the union as a party-respondent because the commission has no rule allowing for third-party practice. The school committee argues that the commission’s lack of a formal third-party practice rule deprived it of due process by preventing it from bringing a claim for contribution against the union. Under G. L. c. 23IB, §§ 1 and 2 (1994 ed.), the commission has recognized a right of contribution against a union which is found to be jointly liable, along with an employer, for discrimination. Without expressly addressing the issue of a third-party practice rule, the hearing commissioner concluded that the school committee had no right to seek contribution from the union because there was “no showing that the union participated in the discriminatory acts.” The hearing commissioner’s findings of fact on which this conclusion is based are supported by substantial evidence which demonstrates that the union had consistently acted on behalf of, and in favor of, the teachers. Accordingly, the school committee’s motion was correctly denied without regard to the commission’s lack of a formal third-party practice rule. (b) The school committee argues that the union was not a proper class representative of the teachers, that class certification therefore should have been withdrawn, and, once withdrawn, that the school committee’s motion to dismiss the complaint should have been allowed. There is substantial evidence to support the hearing commissioner’s findings (which led her to confirm the union as a class representative for any prospective relief) that (1) there was no conflict in the union representing the class vis-a-vis the rest of its membership; (2) the union can, and has, satisfactorily represented the interests of the class; and (3) the union is an ideal representative of the class for any award of prospective relief. There is no indication (beyond the school committee’s speculation) that a conflict existed between the affected teachers and the union membership at large. See Social Servs. Union, Local 535 v. County of Santa Clara, 609 F.2d 944, 948 (9th Cir. 1979) (finding assumption that male union members would suffer pecuniary injury if the pay of female employees was raised to be purely speculative). The hearing commissioner appropriately found that the same findings of fact, which supported her affirmation of the dismissal of the motion to join the union as a party-respondent, supported a finding that the union was a proper class representative. See note 11, supra. Accordingly, the school committee’s motion to dismiss was properly denied. (c) The hearing commissioner assessed damages for a majority of the individual teachers predominantly by relying on letters from the physicians who cared for the women during their pregnancies, which indicated the period of disability attributable to each pregnancy. The letters were hearsay which the school committee maintained should not have been admitted or given probative weight by the hearing commissioner. The argument lacks merit: The letters provided substantial evidence upon which , the hearing commissioner could determine length of disability to be used for assessing and awarding damages. In administrative proceedings, hearsay evidence can be received and may constitute substantial evidence if it contains sufficient indicia of reliability and probative value. Embers of Salisbury, Inc. v. Alcoholic Beverages Control Comm’n, 401 Mass. 526, 530 (1988). The commission, and not the court, is the sole judge of the credibility and weight of the evidence before it. Id. at 529. A court will overturn the commission’s findings only if the court concludes, as matter of law, that the commission’s reliance on evidence was unreasonable. The physicians’ letters contained sufficient indicia of reliability and probative value to constitute substantial evidence. The hearing commissioner reasonably could have found that the letters were reliable and probative because: (1) each was prepared by a physician who had treated the teacher in question personally, see Richardson v. Perales, 402 U.S. 389, 403 (1971); (2) there was an unquestionably high degree of consistency among the different physicians’ letters in assessing the length of disability suffered by teachers with the same disability, cf. id. at 404; (3) the school committee did not take advantage of its right to subpoena and cross-examine any of the physicians, see id. at 404-405; (4) the question of how long any teacher was disabled as a result of pregnancy does not require a great deal of substantiating detail; and (5) the school committee did not present any evidence to contradict the periods of disability stated in the letters. See Murphy v. Superintendent, Mass. Correctional Inst., Cedar Junction, 396 Mass. 830, 834 (1986). Finally, it is not a problem that the letters were written in contemplation of litigation. The hearing commissioner did not find any basis to believe the physicians would lie in the letters and, as has been stated, the school committee had the opportunity to examine the physicians and test their credibility. (d) While the case was pending before the full commission, G. L. c. 151B, § 5, was amended by St. 1989, c. 722, § 27, to allow a complainant who prevails before the commission to be awarded attorney’s fees. Contrary to the school committee’s argument, the commission correctly gave retroactive effect to the attorney’s fees amendment. In Fontaine v. Ebtec Corp., 415 Mass. 309, 320 (1993), we noted that St. 1989, c. 722, § 27, simply entitled complainants who pursued their cases before the commission to a remedy commensurate with the remedy to which they would have been entitled if they had filed suit and prevailed in a State or Federal court. Because the amendment merely was providing complainants with an adequate alternative forum for remedying discrimination, we stated it was appropriate for the commission to give it retrospective application. Id. Based on Fontaine, the commission’s decision to grant attorney’s fees in this case was correct. The decision of the commission is affirmed. So ordered. The complaint at issue first had been presented to an investigating commissioner. At all relevant times, the union was the exclusive collective bargaining representative for all teachers and other nonexempt professional employees in the Brockton public schools. The class did not include four teachers who had filed individual complaints of discrimination, or grievances, concerning the disposition of their requests. Some teachers made the request for two separate pregnancies. For example, minutes from the school committee meeting held in September, 1974, stated that the superintendent recommended that “no award for sick leave payments should be made in view of the fact that there are test cases before the courts, but [a teacher requesting leave] would not be prohibited from seeking it should there be a clarification of maternity sick leave benefits by the courts in the future. ... [A teacher’s request for sick leave benefits should] be denied without prejudice.” During the pendency of the Zettlemoyer complaint, the union and the school committee negotiated collective bargaining agreements. The collective bargaining agreement in effect during this period stated: “[M]atemity leave of up to three (3) years will be granted without pay or increment.” The union did not propose changing this provision to allow teachers to use their sick leave benefits for pregnancy-related disability until 1979, even though the Massachusetts Teachers Association had advised its local affiliates to do so as early as 1975. The principle expressed in Federal case law that “[t]he proper focus [for determining when a statute of limitations period commences] is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful,” Delaware State College v. Ricks, 449 U.S. 250, 258 (1980), does not conflict with this conclusion. See Wheat ley v. American Tel. & Tel. Co., 418 Mass. 394, 397 (1994) (“It is our practice to apply Federal case law construing the Federal anti-discrimination statutes in interpreting G. L. c. 15 IB”). The commission upheld the commissioner’s finding that the statute of limitations began to run on April 25, 1979, because substantial evidence indicated that the teachers did not receive final notice of the school committee’s decision to deny sick leave ben

CHMIELEWSKI v XERMAC, INC Docket No. 162968. Submitted October 17, 1995, at Lansing. Decided May 21, 1996, at 9:05 A.M. Leave to appeal sought. Gary P. Chmielewski brought an action in the Oakland Circuit Court against Xermac, Inc., alleging violation of the Michigan Handicappers’ Civil Rights Act, MCL 37.1101 et seq.-, MSA 3.550(101) et seq., and breach of an employment contract. The plaintiff’s employment was terminated by the defendant after he had undergone a liver transplant for cirrhosis of the liver caused by alcoholism and had returned to work. The court, Francis X. O’Brien, J., dismissed the wrongful discharge claim. The jury returned a verdict for the defendant with regard to the discrimination claim, and the trial court entered a judgment consistent with the jury verdict. The plaintiff appealed. The Court of Appeals held: 1. The trial court did not err in admitting evidence of the plaintiff’s alcoholism. Because evidence of alcohol use is a consideration in determining whether the plaintiff fell within the statutory definition of handicapped, evidence of the plaintiff’s alcohol use was relevant and more probative than prejudicial. The evidence was also relevant and more probative than prejudicial with regard to the issue of damages. 2. The trial court did not abuse its discretion in admitting evidence of the defendant’s financial condition. Evidence that the decision to terminate the plaintiff’s employment was motivated by economic considerations directly controverted the element of a prima facie case of handicap discrimination that the employer must have discharged the plaintiff because of a handicap. Therefore, the claim that the plaintiff’s employment was terminated for economic reasons did not constitute an affirmative defense that was waived when it was not raised in a responsive pleading or in a motion for summary disposition made before the filing of a responsive pleading. 3. The trial court properly instructed the jury. An instruction requested by the plaintiff did not accurately state the law and was properly refused. The act provides that, to fall within the definition of a handicap, an individual’s condition, whether being treated or not, must substantially impair the person’s major life activities. The instruction requested by the plaintiff, which leaps to the conclusion that if a condition requires medication it constitutes a substantial impairment per se, is unreasonable and incompatible with the purpose of the act. Affirmed. Fitzgerald, J., dissenting in part, stated that the trial court should have granted the plaintiff’s request that the jury be instructed that a condition that limits a life activity is a handicap even if the condition is controlled with medication or medical care. The instruction sought by the plaintiff did not leap to the conclusion that a condition that requires medication constitutes a substantial impairment per se. Rather, the instruction provided that an individual who suffers a determinable physical characteristic that is brought under control by medication may still suffer a substantial limitation of major life activity to the extent that the condition, even though controlled, affects the individual’s employability. The proposed instruction was applicable and accurate under the facts of this case and may have enhanced the ability of the jurors to decide the case intelligently, fairly, and impartially. The trial court abused its discretion in refusing the requested instruction. The failure to give the instruction resulted in substantial injustice. The case should be reversed and remanded for a new trial. 1. Civil Rights — Handicappers’ Civil Rights Act — Employment Discrimination — Alcoholism. The Michigan Handicappers’ Civil Rights Act expressly excludes alcoholism, and determinable physical or mental characteristics caused by the use of alcohol, as a handicap with respect to employment discrimination when the condition prevents the employee'from performing the duties of the job (MCL 37.1103[f][ii]; MSA 3.560[103] [f] [ii]). 2. Pleading — Affirmative Defenses. An affirmative defense is a defense that does not controvert the establishment of a prima facie case but that otherwise denies relief to the plaintiff. 3. Civil Rights — Handicap Discrimination — Employment Discrimination — Prima Facie Case. The plaintiff in a handicap discrimination case who alleges wrongful discharge from employment has the burden of proving as an element of the prima facie case that the employer discharged the plaintiff because of a handicap; evidence that the decision to terminate the plaintiff’s employment was motivated by economic considerations directly controverts this element and therefore does not constitute an affirmative defense. 4. Civil Rights — Handicappers’ Civil Rights Act — Words and Phrases — “Handicap.” To fall within the definition of a handicap in the Michigan Handicappers’ Civil Rights Act, an individual’s condition, whether being treated or not, must substantially impair the person’s major life activities; the concept of an impairment implies a characteristic that is not commonplace and that poses for the particular individual a more general disadvantage in the search for satisfactory employment (MCL 37.1103[e][i][A]; MSA 3.650[103][e][i][A]). Muth & Fett, P.C. (by James K. Fett), for the plaintiff. Kerr, Russell & Weber (by Daniel G. Beyer), for the defendant. Before: Mackenzie, P.J., and Fitzgerald and J. P. O’Brien, JJ. Recorder’s Court judge, sitting on the Court of Appeals by assignment. Mackenzie, P.J. Plaintiff appeals as of right a jury verdict for defendant in this handicap discrimination case. We affirm. Plaintiff worked as a salesperson for defendant from November 1985 until June 29, 1990. He underwent a liver transplant in June 1989 for cirrhosis of the liver caused by alcoholism and was off work for approximately six weeks before being released to return to work by his physician. His employment was terminated approximately seven months later, allegedly because of his failure to meet sales quotas. In October 1990, plaintiff instituted this action against defendant for violation of the Michigan Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) el seq., claiming that defendant terminated him because of the high health insurance costs attributable to his condition. A claim of breach of an employment contract was subsequently added to the complaint. Defendant moved for summary disposition of both counts. The trial court denied defendant’s motion in part and granted it in part, dismissing plaintiff’s wrongful discharge claim but finding a material issue of fact remained regarding the discrimination claim. At trial, plaintiff argued that the carrying of a transplanted liver and the side effects thereof, without the use of medication, constituted a handicap. Defendant argued that plaintiff was not handicapped because (1) with medication, he does not have a determinable physical characteristic that substantially limits a major life activity, and (2) he is an alcoholic. A jury returned a verdict for defendant with regard to the discrimination claim. Plaintiff first claims that the trial court erred in admitting at trial evidence of his alcoholism. We disagree. Evidence that tends to make the existence of a fact at issue more probable or less probable is relevant and, therefore, admissible. MRE 401, 402. However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. MRE 403; McDonald v Stroh Brewery Co, 191 Mich App 601, 605; 478 NW2d 669 (1991). The fact that evidence is damaging and harms the opposing party does not indicate that it is unfairly prejudicial. Sclafani v Peter S Cusimano, Inc, 130 Mich App 728, 735; 344 NW2d 347 (1983). Further, error requiring reversal may not be predicated upon a ruling that admits evidence unless a substantial right was affected. MRE 103(a); Temple v Kelel Distributing Co, Inc, 183 Mich App 326, 329; 454 NW2d 610 (1990). The HCRA expressly excludes alcoholism, and determinable physical or mental characteristics caused by the use of alcohol, as a handicap with respect to employment discrimination when the condition prevents the employee from performing his job duties. MCL 37.1103(f)(ii); MSA 3.550(103)(f)(ii); Gazette v Pontiac, 212 Mich App 162, 168-169; 536 NW2d 854 (1995). Plaintiff contends that this restriction is not applicable to the present, case because defendant conceded that alcoholism did not affect his job performance. However, defense counsel argued during closing arguments that plaintiff’s poor work performance when he returned from his leave of absence resulted from plaintiff’s failure to fully recover from the injuries caused by his alcoholism. In its instructions, the trial court cautioned the jury regarding the manner in which the evidence of plaintiff’s alcoholism should be used in determining whether plaintiff could be considered handicapped: Now, ladies and gentlemen, if the history of the physical characteristic was caused by the use of alcoholic liquor but the physical characteristic did not prevent the Plaintiff from performing his job, then you are to disregard the fact that use of alcohol caused the physical characteristic. On the other hand, if you find that the Plaintiff has a determinable physical characteristic caused by the use of alcoholic liquor and that characteristic prevented the Plaintiff from performing the duties of his job, then the Plaintiff is not handicapped under the law. A person, ladies and gentlemen, cannot have a history of [a] determinable physical characteristic to be construed as a handicap if the physical characteristic was caused by the use of an alcoholic liquor which prevented the person from performing the duties of his job. Because evidence of alcohol use is a consideration in determining whether the plaintiff fell within the definition of handicapped, evidence of plaintiff’s alcohol use was relevant and more probative than prejudicial. Thus, the court did not abuse its discretion in admitting the evidence of plaintiff’s alcohol use. Further, the evidence was relevant and was more probative than prejudicial with regard to the issue of damages. According to the testimony of plaintiff’s physician, serious risks exist for patients who continue to consume alcohol after a liver transplant. Consequently, plaintiff’s alcohol use could affect his life expectancy and, therefore, defendant’s liability for damages. Plaintiff next contends that the trial court erred in admitting evidence of defendant’s financial condition because defendant did not raise economic necessity as a defense. Under MCR 2.111(F)(3), affirmative defenses must be raised in the responsive pleading or in a motion for summary disposition made before the filing of a responsive pleading, and the failure to do so constitutes a waiver of the defense. Stanke v State Farm Mutual Automobile Ins Co, 200 Mich App 307, 311; 503 NW2d 758 (1993). An affirmative defense is a defense that does not controvert the establishment of a prima facie case, but that otherwise denies relief to the plaintiff. Id. at 312. In a handicap discrimination case, the plaintiff has the burden of proving as an element of the prima facie case that the employer discharged the plaintiff because of the handicap. Dzierbowicz v American Seating Co, 209 Mich App 130, 132; 530 NW2d 158 (1995), rev’d on other grounds 450 Mich 966 (1996). Evidence that the decision to terminate the plaintiff was motivated by economic considerations directly controverted this element of the prima facie case and, therefore, by definition did not constitute an affirmative defense. Stanke, supra. Accordingly, the trial court did not abuse its discretion in admitting evidence of defendant’s financial condition. Last, plaintiff contends that reversal is required because of instructional error. Again, we disagree. Subsection 103(e)(i)(A) of the hcra, MCL 37.1103(e)(i)(A); MSA 3.550(103)(e)(i)(A), defines a handicap as (i) A determinable physical or mental characteristic of an individual, which may result from disease, injury, congenital condition of birth, or functional disorder, if the characteristic: (A) . . . 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. [Emphasis added.] On the basis of this language, plaintiff contends that he was entitled to a supplemental jury instruction defining a handicapped person as one who has a determinable physical characteristic which substantially limits one or more life activities . . . even if the determinable characteristic is controlled with medication or medical care. [Emphasis added.] When a party requests an instruction that is not covered by the standard jury instructions, the trial court may, in its discretion, give additional, concise, understandable, conversational, and nonargumentative instructions, provided they are applicable and accurately state the law. MCR 2.516(D)(4); Wengel v Herfert, 189 Mich App 427, 431; 473 NW2d 741 (1991). The requested instruction does not accurately state the law, and thus was properly refused. The alleged handicap at issue in this case is characterized by plaintiff as carrying a transplanted organ. However, it is undisputed that plaintiffs status as an organ donee in no way affected his major life activities or his ability to perform his job duties, as long as plaintiff took antirejection medication. Viewed in this context, plaintiffs condition is akin to that of a person whose high blood pressure or allergies are controlled by medication, or who receives hormone replacement therapy, or whose poor eyesight requires corrective lenses. In each instance, the chronic “handicapping” condition is ameliorated by medical means with relative ease. Under the plain language of subsection 103(e)(i)(A) of the HCRA, to fall within the definition of a handicap, an individual’s condition-whether being treated or not-must substantially impair the person’s major life activities. The instruction requested by plaintiff does not state that proposition. Instead, it leaps to the conclusion that if a condition requires medication, then it constitutes a substantial impairment per se. We find that conclusion to be unreasonable and incompatible with the purpose of the hcra. As stated in Forrisi v Bowen, 794 F2d 931, 934 (CA 4, 1986): It would debase this high purpose [of protecting the disabled from discrimination in employment] if the statutory protections available to those truly handicapped could be claimed by anyone whose disability was minor and whose relative severity of impairment was widely shared. Indeed, the very concept of an impairment implies a characteristic that is not commonplace and that poses for the particular individual a more general disadvantage in his or her search for satisfactory employment. In the final analysis, plaintiffs claimed handicap is that he must take medication to control a chronic condition. This “handicap” is shared by countless other individuals in the workplace and in society as a whole. To automatically label the condition as one that substantially impairs major life activities, as the requested instruction would do, is inconsistent with the HCRA and, as pointed out by the Forrisi court, does a gross disservice to the truly handicapped. Accordingly, we hold that the instruction was inconsistent with the HCRA and that it was properly withheld from the jury. Affirmed. J. P. O’Brien, J., concurred. Accord Joyce v Suffolk Co, 911 F Supp 92 (ED NY, 1966) (employee not handicapped; poor eyesight corrected by eyeglasses and high blood pressure controlled with medication are not physical impairments that substantially limit major life activities); Walker v Aberdeen-Monroe Co Hosp, 838 F Supp 285 (ND Miss, 1993) (employee not handicapped; sarcoidosis and poor vision controlled with medication do not substantially limit employee’s m^jor life activities); Cadelli v Fort Smith School Dist, 852 F Supp 789 (WD Ark, 1993) (employees not handicapped; anxiety panic disorder and high blood pressure treated with medication do not substantially limit employee’s ability to work); Davis v Frank, 1992 US Dist LEXIS 10402; 59 Empl Prac Dec (CCH) p 41,744 (employee not handicapped; high blood pressure and “nervousness” controlled with medication pose no restriction on worker’s life activities). Fitzgerald, J. (concurring in part and dissenting in part). I respectfully dissent from the majority’s conclusion that the trial court did not err in denying plaintiff’s request that the jury be instructed that a condition that limits a life activity is a handicap even if the condition is controlled with medication or medical care. The determination whether an instruction is accurate and applicable based on the characteristics of a case is within the sound discretion of the trial court. Williams v Coleman, 194 Mich App 606, 623; 488 NW2d 464 (1992). When a party requests an instruction that is not covered by the standard jury instructions, the trial court may, at its discretion, give additional, concise, understandable, conversational, and nonargumentative instructions, provided they are applicable and accurately state the law. MCR 2.516(D)(4); Wengel v Herfert, 189 Mich App 427, 431; 473 NW2d 741 (1991). A supplemental instruction need not be given if the instruction would neither add anything to an otherwise balanced and fair jury charge nor enhance the ability of the jurors to decide the case intelligently, fairly, and impartially. Houston v Grand Trunk W R Co, 159 Mich App 602, 608; 407 NW2d 52 (1987). The failure to give a properly requested, applicable, and accurate instruction does not require reversal unless failure to vacate the jury verdict would be inconsistent with substantial justice. Johnson v Corbet, 23 Mich 304, 326; 377 NW2d 713 (1985). Before its amendment in 1990, the Michigan Handicappers’ Civil Rights Act (hcra) defines the term handicap as a determinable physical or mental characteristic of an individual or a history of the characteristic which may result from disease, injury, congenital condition of birth, or functional disorder which characteristic: (i) .. . is unrelated to the individual’s ability to perform the duties of a particular job or position, or is unrelated to the individual’s qualifications for employment or promotion. [MCL 37.1103(b)(i); MSA 3.550(103)(b)(i).] The Legislature amended the definitional language in 1990 to define a handicap as (i) A determinable physical or mental characteristic of an individual, which may result from disease, injury, congenital condition of birth, or functional disorder, if the characteristic: (A) .. . 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. [MCL 37.1103(e)(i)(A); MSA 3.550(103)(eXi)(A).] Under both of these definitions, a condition related to an individual’s ability to perform the duties of a job is not a handicap within the meaning of the hcra. Koester v Novi, 213 Mich App 653, 661-662; 540 NW2d 765 (1995). Here, plaintiff’s physician testified that as long as plaintiff continued to take antirejection medication, plaintiff did not suffer any limitations on his major life activities or his ability to perform his job duties. Given this testimony, plaintiff, relying on Hines v Grand Trunk W R Co, 151 Mich App 585, 595-596; 391 NW2d 750 (1985), requested a supplemental jury instruction as follows: A person that has a determinable physical characteristic which substantially limits one or more life activities is handicapped even if the determinable physical condition— physical characteristic is controlled with medication or medical care. The trial court refused to give the instruction on the ground tha

QUINTO v CROSS AND PETERS COMPANY Docket No. 99057. Argued October 12, 1995 (Calendar No. 10). Decided May 14, 1996. Elena Quinto brought a civil rights action in the Wayne Circuit Court against Cross and Peters Company, her employer, alleging that her supervisor demeaned and humiliated her, made discriminatory decisions, and created a hostile work environment on the basis of her age, sex, and national origin. The court, Lucile A. Watts, J., granted summary disposition for the defendant, finding that the plaintiff failed to sufficiently document a prima facie case of hostile work environment. The Court of Appeals, Corrigan, P.J., and Gribbs and G. E. Montgomery, JJ., affirmed in an unpublished memorandum opinion (Docket No. 151198). The plaintiff appeals. In an opinion by Justice Boyle, joined by Chief Justice Brickley, and Justices Cavanagh, Riley, and Mallett, the Supreme Court held: The plaintiff failed to sufficiently support a prima facie case of hostile work environment with documentary evidence. To survive summary disposition, the plaintiff was required to present documentary evidence to the trial court that a genuine issue existed whether a reasonable person, in the totality of the circumstances, would find the supervisor’s comments to her sufficiently severe or pervasive to create a hostile work environment. The plaintiff’s affidavit did not satisfy her burden under MCR 2.116(C)(10) as the opposing party to respond with specific facts. Rather, the affidavit contained mere conelusory allegations and was devoid of detail that would permit the conclusion that there was such conduct or communication of a type or severity that a reasonable person could find that a hostile work environment existed. Affirmed. Justice Levin, dissenting, stated that the defendant’s motion for summary disposition under MCR 2.116(C)(10) did not specifically identify the issues it asserted raised no genuine issue of material fact, nor was it based on the absence of a genuine issue of material fact under subrule (C)(10). The plaintiff thus was not obliged under MCR 2.116(G)(4) to file an affidavit setting forth specific facts showing that there was a genuine issue for trial. She could properly rest on the allegations in her amended complaint without further elaboration or affidavit because a motion under subrule (C)(10) had not been filed, and the defendant’s unsworn brief did not constitute an amended or supplemental motion. Summary disposition was improvidently granted because, if all the facts alleged by the plaintiff are accepted as true, as MCR 2.116(0)(10) mandates, a genuine issue remains. The circuit court erred in relying on deposition testimony because the plaintiff’s account of factual events must be accepted as true. It is not the function of the circuit judge to weigh credibility. While one or two incidences of name-calling may not be actionable, insults that amount to ridicule and that cause intimidation are. Further, the plaintiff was not required to show before trial, to any degree of certainty, that her claim ultimately would be successful. Rather, the test is whether the kind of record that might be developed, giving the benefit of reasonable doubt to the opposing party, would leave open an issue upon which reasonable minds might differ. Although worded without complete specificity, her complaint and affidavits clearly meet this threshold. Summary disposition may not be granted where the credibility of a witness or deponent is crucial. The defendant failed to properly put in issue whether there is a genuine issue of material fact. Neither the court nor the plaintiff was on notice of the need to respond to the motion under subrule (C)(10) with regard to the hostile work environment claim. Justice Weaver took no part in the decision of this case. Bendure & Thomas (by Mark R. Bendure and Sidney A. Klingler) for the plaintiff. Musilli, Baumgardner, Wagner & Parnell, PC. (by Ralph Musilli), for the defendant. Boyle, J. In this case, the trial court dismissed plaintiffs claim pursuant to the Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq., on defendant’s motion for summary disposition. We hold that the trial court properly found that plaintiff had failed to sufficiently support a prima facie case of hostile work environment with documentary evidence and therefore affirm the decision of the Court of Appeals, which upheld the findings of the trial court. FACTS Plaintiff Elena Quinto was employed by defendant Cross and Peters Company, the maker of Better Made Potato Chips, for eighteen years. Plaintiffs first amended complaint sought judgment against Cross and Peters and John Kujawski, alleging that during four years at Cross and Peters, Kujawski, her supervisor, “demeaned and humiliated” and made “discriminatory decisions” concerning her that created a hostile work environment on the basis of her age, sex, and national origin. The complaint further alleged that, on one occasion, after a co-worker made obscene gestures, Kujawski asked her what happened “in a demeaning manner” and pushed her. Plaintiff was sixty years old and held the position of potato chip inspector when she left defendant’s employ. Plaintiff filed a two-count complaint against Cross and Peters and Kujawski. In her first count, she alleged an assault and battery by Kujawski. The second count alleged that defendant created a hostile work environment by demeaning and humiliating her in violation of the Civil Rights Act, MCL 37.2101 et seq.\ MSA 3.548(101) et seq. Summary disposition was requested on behalf of both Cross and Peters and Kujawski on both counts. The trial judge stated that the two dispositive questions were whether plaintiff’s intentional tort claim was barred by the exclusive remedy provision of the Worker’s Disability Compensation Act, MCL 418.131; MSA 17.237(131), and whether plaintiff had established a prima facie case of age, sex; or national origin discrimination. The trial court ultimately held that no intentional tort existed to take count I, plaintiffs assault and battery claim against defendant Cross and Peters, outside the worker’s compensation act because “[t]he evidence . . . does not establish that Defendant, Cross and Peters, her employer, had actual knowledge that any injury was certain to occur . . . Summary disposition was denied with respect to Kujawski. Regarding count n, the discrimination claim, the trial court found that, accepting plaintiff’s allegations of harassment as true, there were no specific facts in plaintiff’s affidavit sufficiently severe or pervasive to create a question of fact regarding Cross and Peters’ creation of a hostile work environment. The Court of Appeals affirmed the lower court in an unpublished memorandum opinion. Plaintiff appealed to this Court. We granted leave, limited to the issue whether the trial court erred in granting summary disposition on plaintiff’s claim of discrimination under the Civil Rights Act with regard to Cross and Peters. 448 Mich 868 (1995). i MCR 2.116 is modeled in part on Rule 56(e) of the Federal Rules of Civil Procedure. As pointed out by Justice Brennan in Celotex v Catrett, 477 US 317; 106 S Ct 2548; 91 L Ed 2d 265 (1986), the initial burden of production is on the moving party, and the moving party may satisfy the burden in one of two ways. First, the moving party may submit affirmative evidence that negates an essential element of the nonmoving party’s claim. Second,, the moving party may demonstrate to the court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim. If the nonmoving party cannot muster sufficient evidence to make out its claim, a trial would be useless and the moving party is entitled to summary judgment as a matter of law. [477 US 331 (citations omitted).] In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), a trial court considers affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10), (G)(4). In presenting a motion for summary disposition, the moving party has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary evidence. Neubacher v Globe Furniture Rentals, 205 Mich App 418, 420; 522 NW2d 335 (1994). The burden then shifts to the opposing party to establish that a genuine issue of disputed fact exists. Id. Where the burden of proof at trial on a dis-positive issue rests on a nonmoving party, the non-moving party may not rely on mere allegations or denials in pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists. McCart v J Walter Thompson, 437 Mich 109, 115; 469 NW2d 284 (1991). If the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly granted. McCormic v Auto Club Ins Ass’n, 202 Mich App 233, 237; 507 NW2d 741 (1993). Plaintiff alleged that her supervisor, John Kujawski, created a hostile work environment contrary to the Civil Rights Act, MCL 37.2101 et seq.] MSA 3.548(101) et seq., by “continually” demeaning her in front of coemployees. Although the main thrust of defendant’s initial motion was the exclusive remedy issue, defendant also briefly addressed the hostile work environment claim. Plaintiff’s brief in reply responded to defendant’s claim that summary disposition should be granted in respect to the discrimination claim. Defendant’s responsive brief asserted that plaintiff had failed to provide specific facts to support allegations of discriminatory treatment. It referenced exhibits, attached deposition testimony and other evidence that refutes Plaintiff’s claims of alleged discrimination by Defendant Kujawsld resulting in the creation of a hostile working environment. Plaintiff has come forth with no evidence to establish a genuine issue of factual dispute; therefore, Defendant’s motion for Summary Disposition should be granted. Whatever the procedural peculiarities of the prior pleading and responses, it is clear that at the time of hearing on November 1, 1991, the parties knew that the civil rights claim was in issue. After the hearing and before the decision, plaintiff filed a reply brief and an affidavit in support, disputing the credibility of the deposition testimony regarding whether Ms. Quinto had been pushed by her supervisor. The affidavit also contained allegations regarding plaintiffs discrimination claim, stating in pertinent part: 9. . . . [M]y supervisor, John Kujawski, had continually harassed me by demeaning and humiliating me in front of fellow employees. 10. His conduct included comments regarding my age, my sex, my national origin and my ability to speak English. 11. That all of these incidents took place while I was at work. 12. That I reported these incidents to my superiors at work. Thus, the narrow issue before us is whether the affidavit raised a genuine issue of material fact sufficient to permit a reasonable jury to find a hostile work environment. The trial court concluded that plaintiff failed to present specific facts to support a prima facie case of discrimination. In particular, it found that plaintiffs allegations, taken as true, did not “rise to the level of severity necessary to sustain an actionable claim of hostile environment discrimination” against Cross and Peters. The Court of Appeals agreed. A We have not had occasion to address whether a claim of discrimination based on hostile environment, when the allegations of discrimination involve conduct or communication that is not “of a sexual nature,” is encompassed by the Civil Rights Act. MCL 37.2103(i)(iii); MSA 3.548(103)(i)(iii); Radtke v Everett, 442 Mich 368; 501 NW2d 155 (1993). Nor do we decide that issue today. Rather, we assume without deciding that plaintiff is within the class protected and that a hostile environment claim may be maintained on conduct involving a plaintiffs gender, age, or national origin. In Radtke, supra at 382-383, we set forth the five elements necessary to establish a prima facie case of discrimination based on hostile work environment: (1) the employee belonged to a protected group; (2) the employee was subjected to communication or conduct on the basis of [her protected status]; (3) the employee was subjected to unwelcome . . . conduct or communication [involving her protected status]; (4) the unwelcome . . . conduct was intended to or in fact did substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment; and (5) respondeat superior. MCL 37.2103(h); 37.2202(l)(a); MSA 3.548(103)(h); 3.548(202)(l)(a). Our review centers on the third and fourth elements — whether Kujawski’s actions involved conduct or communication involving her protected status, and whether the conduct toward plaintiff was intended to, or in fact did, substantially interfere with her employment or created an intimidating, hostile, or offensive work environment. Under Radtke, whether a hostile work environment was created by the unwelcome conduct “shall be determined by whether a reasonable person, in the totality of circumstances, would have perceived the conduct at issue as substantially interfering with the plaintiff’s employment or having the purpose or effect of creating an intimidating, hostile, or offensive employment environment.” 442 Mich 394. Consequently, to survive summary disposition, plaintiff had to present documentary evidence to the trial court that a genuine issue existed regarding whether a reasonable person would find that, in the totality of circumstances, Kujawski’s comments to plaintiff were sufficiently severe or pervasive to create a hostile work environment. B There is no serious claim that plaintiff was not on notice of the need to respond to the (C)(10) motion with regard to count H or that the motion was prematurely filed or prematurely granted. Despite plaintiffs burden to respond with “specific facts showing that there is a genuine issue for trial,” MCR 2.116(G)(4), plaintiff responded with conclusory allegations. At the stage where all that was before the court with respect to count n was the deposition testimony and the affidavit of the plaintiff, the only evidence of record supporting the plaintiffs claim of discrimination by Cross and Peters was inadequate under this standard. Had plaintiff testified in conclusory form at trial that her supervisor’s conduct was “continually” demeaning and humiliating regarding her age, sex, national origin, and ability to speak English, a reasonable jury could not have found from a preponderance of the evidence that the comments were of a type, severity, or duration to have created an objectively hostile work environment. Plaintiff’s affidavit disclosed no specific instances of ethnic, sexist, or “ageist” remarks hostile to a protected class from which an inference of a hostile work environment could be drawn. It did not describe with particularity when, where, or how plaintiff was harassed. Although, as the trial judge recognized, a single act by an employer may so poison the environment as to constitute discrimination, it does not follow that allegations of a push without evidence of conduct or communication violative of the act presents a claim to submit to a jury. Plaintiffs affidavit conclusorily states that Kujawski subjected her to harassing comments regarding her age, sex, national origin, and ability to speak English. As a consequence, the trial court properly found that plaintiff did not establish the existence of a genuine issue of material fact on an essential element of her claim. In conclusion, we hold that once defendant supported its motion for summary disposition under MCR 2.116(C)(10) with documentary evidence, plaintiff, as the opposing party, had the duty to rebut with documentary evidence defendant’s contention that no genuine issue of material fact existed. Plaintiff’s affidavit did not satisfy her burden as the opposing party; rather, it constituted mere conclusory allegations and was devoid of detail that would permit the conclusion that there was such conduct or communication of a type or severity that a reasonable person could find that a hostile work environment existed. The Court of Appeals properly affirmed the trial court’s grant of summary disposition in favor of defendant. Brickley, C.J., and Cavanagh, Riley, and Mallett, JJ., concurred with Boyle, J. Kujawski is now deceased. The only defendant before this Court is Cross and Peters. Issued February 17, 1994 (Docket No. 151198). Although writing in dissent, Justice Brennan did “not disagree with the Court’s legal analysis.” 477 US 329. On this point, his views harmonized with the majority. See 477 US 322-324. The deposition testimony of three co-workers and two upper-level employees indicated that defendant KryawsM treated plaintiff the same as everyone else, that he was a tough but fair boss, and that, if anything, it was plaintiff who was antagonistic and hypersensitive. The following deposition testimony from Senoia Waters, a co-worker, is relevant. Q. Did [plaintiff] have any problems with Mr. KujowsM [sic]? A. Not as I know of. Q. Was he [KujawsM] a tough guy to get along with at all? A. None of them are, no. Q. Was he an aggravating guy in any way? A. No. Q. Would he try and aggravate people? A. No. Q. Would John [Kujawsld] at any time get frustrated with [plaintiff]? A. Frustrated — you can get frustrated with all of us. Q. When he would get frustrated, would he — how would he respond? . . . Was he somebody who yelled? . . . A. No, he didn’t yell. When we were making him angry and not doing what we was supposed to do, he got frustrated with all of us, but it was never at the point where he would yell at you or none of that land of stuff, no. Co-worker Warner Scott stated: Q. Had he [Kryawsld] had any problems with Mrs. Quinto up to this point that you’re aware of? A. I’m sure he have [sic]. Q. Why do you say you’re sure he had? A. Because she’s just a bossy lady. She’s bossy. Q. Have you seen them argue before? A. No, not — I can’t say I have. A. She [plaintiff] always talk in — sometimes she talk in Italian and nobody understands her. She don’t talk English that well to me and she gets mad sometimes because you don’t understand that. Q. Was he [Kujawsld] ever tough with Mrs. Quinto? A. He was tough with all of us. Q. Was he ever sarcastic? Do you know what that means? A. Yeah, I know what it means. He wasn’t to me, no. Q. Was he to Mrs. Quinto? A. I don’t believe so. Q. Was he ever antagonistic with Mrs. Quinto? A. I don’t think so. Q. Was he a demanding boss? A. He’s demanding. Q. Did John Kujowski [sic] treat all the employees the same? A. Yes. Q. Was he fair? A. Very fair. Co-worker Rene Meservey stated: A. . . . She [plaintiff] had been in so many arguments with so many people. Q. . . . Was this kind of an argumentative lady or what, or was she the butt of everybody’s jokes? A. Yeah, or she would be afraid somebody was talking about her or picking on her or something like that, which especially — well, I can say, you know, a black person, because she was extremely prejudiced. Q. . . . [S]he had difficulty speaking English from what I understand. A. Yes. Q. Would anybody make fun of her or taunt her or anything like that? A. No, but I know she was always worried about that. ... It was just stuck in her head that people were talking about her. Why, I don’t know. That’s the type of woman she was, I guess

School Committee of Boston vs. Labor Relations Commission; Boston Public School Buildings Custodians’ Association, intervener. No. 94-P-1931. Suffolk. February 15, 1996. April 24, 1996. Present: Armstrong, Gillerman, & Ireland, JJ. Administrative Law, Judicial review. Labor Relations Commission. Labor, Unfair labor practice, Discharge for union activity. School and School Committee, Custodian, Termination of employment. Substantial evidence, including circumstantial evidence, supported the conclusion of the Labor Relations Commission that a union had made out a prima facie case that an employer had violated G. L. c. 150E, § 10 (a) (1) and (3), by laying off certain provisional and temporary employees in order to interfere with the employees’ right to vote in an election to determine whether they would be added to the bargaining unit. [330-332] On appeal from a decision of the Labor Relations Commission, the employer did not demonstrate that the commission was incorrect as matter of law in concluding that the employer failed to meet its burden of producing some evidence that its motive for laying off certain employees was nondiscriminatory. [332-336] Appeal from a decision of the Labor Relations Commission. Malcolm S. Medley, Special Assistant Corporation Counsel, for School Committee of Boston. John B. Cochran for Labor Relations Commission. Matthew E. Dwyer & John P. Sheridan, for Boston Public School Buildings Custodians’ Association, submitted a brief. The Labor Relations Commission is the appellee on appeal. However, the Boston Public School Buildings Custodians’ Association was the charging party before the commission; they appear in these appellate proceedings as an intervener, and they have filed a brief in support of the decision of the commission. Gillerman, J. On June 25, 1992, the school committee of the city of Boston (school committee) notified thirty-nine provisional and temporary custodians (custodians) that they were being laid off effective June 30, 1992. The Boston Public School Building Custodians’ Association (union) filed charges with the Labor Relations Commission (commission) that the school committee had violated G. L. c. 150E, § 10(a)(1), (3) and (5), by laying off the custodians in order to interfere with their right to vote in a scheduled add-on election which was to be ordered on July 3, 1992. After an investigation, the commission issued a complaint alleging that the school committee had violated § 10(a)(1) and (3). Thereafter, a hearing officer conducted evidentiary hearings and issued her recommended findings of fact. Subsequently, on the basis of the evidence at the hearings and the hearing officer’s recommended findings, the commission made its findings of fact and issued its opinion that the school committee had violated § 10(a)(1) and (3) “by laying off the thirty-nine temporary and provisional custodians in retaliation for engaging in concerted, protected activity . . . .” The school committee appealed the decision of the commission to this court. We review the commission’s findings of fact in accordance with the standards set out in the State Administrative Procedure Act. See G. L. 150A, § 6(e), (f), incorporating G. L. c. 30A. We must affirm the commission’s findings unless they are unsupported by substantial evidence. G. L. c. 30A, § 14(7). “Substantial evidence” is evidence that “a reasonable mind might accept as adequate to support a conclusion.” G. L. c. 30A, § 1(6), inserted by St. 1954, c. 681, § 1. See Trustees of Forbes Library v. Labor Relations Commn., 384 Mass. 559, 568 (1981). However, we are “free to examine the legal standards employed by the commission.” Ibid. We conclude that there was substantial evidence in the record to support the commission’s findings and that the commission employed the appropriate legal standards; thus, we affirm. The commission identified the elements that the union, in the first instance, must establish in order to make its required prima facie showing that the school committee unlawfully discriminated against the custodians, namely: (1) that the custodians were engaged in protected concerted activities; (2) that the school committee knew of these activities; (3) that the school committee took adverse action against the custodians; and (4) that the adverse action was motivated by the school committee’s desire to penalize or discourage the protected activity. If the union does make out its prima facie case including the employer’s unlawful motive, the school committee then has the responsibility to come forward with “a lawful reason for its decision and [to] produce supporting facts indicating that this reason was actually a motive in the decision.” Trustees of Forbes Library, supra at 566. The “supporting facts” must include “ ‘credible evidence . . . [which] show[s] that the reason or reasons advanced were the real reasons.’ ” Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass 437, 442 (1995), quoting from Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 138 (1976). If the reason given “has no reasonable support in the evidence or is wholly disbelieved (and hence is transparently a pretext), the employee should prevail.” Wheelock College, supra at 138. See Blare, supra at 442 (“If the defendant fails to meet its burden, . . . then the presumption created by the preponderance of evidence supporting a prima facie case entitles plaintiff to judgment”). If the school committee satisfies its responsibility, the union must then persuade the commission that the discharge would not have occurred but for the committee’s motive to interfere with the right of the custodians to vote in the forthcoming add-on election. The burden of persuasion before the commission always remains with the union (or employee). Trustees of Forbes Library, supra at 566. However, as the party challenging the commission’s decision on appeal, the school committee “has the burden of showing that the commission’s action was invalid.” Quincy City Hosp. v. Labor Relations Commn., 400 Mass. 745, 749 (1987). 1. The union’s prima facie case. The school committee first argues that the union failed to make out a prima facie case of unlawful discrimination. The first three elements of the union’s prima facie case are not in dispute: the employees were engaged in a protected activity — the attempt to participate in an election regarding a bargaining unit; the school committee knew of that activity; and the school committee, by terminating the custodians, obviously took action adverse to the interests of the custodians. See note 5, supra. From these undisputed facts, and from the additional facts described below, the commission drew the inference of the school committee’s unlawful discrimination. In August, 1991, the parties were unable to agree on the scope of the bargaining unit for custodians and the impending add-on election. On August 21, 1991, the union filed a charge of a prohibited practice with the commission, alleging that the school committee had refused to apply the provisions of the collective bargaining agreement to the custodians, and had refused to recognize the union as their bargaining agent. The commission responded that it would investigate the charges, but not until March 13, 1992. Meanwhile, between January and April, 1992, the union and the school committee met about six times to discuss the impact of a required reduction of $345,000 in the custodial budget for fiscal 1992. After the union rejected a proposal to lay off all the custodians for the remainder of the 1992 fiscal year, the parties signed a comprehensive settlement agreement dated April 23, 1992, regarding a custodial budget reduction of $345,000. In brief, the parties agreed that the reduction would be achieved by requiring all the custodians (permanent, temporary, and provisional) to accept two days furlough (no work-no pay). On March 30, 1992, while these discussions were on-going, the union filed a representation petition to “add-on” the provisional and temporary custodians to the existing custodial bargaining unit. The union then withdrew its previously filed prohibited practices charge on April 15, 1992. On May 13, 1992, the school committee and the union met to discuss the representation petition. While the school committee agreed that the thirty-nine custodians would be eligible to vote in the add-on election, they would not agree that later hired temporary custodians should be included in the bargaining unit. The meeting ended without any agreement and, on May 29, 1992, the hearing officer, as we have previously stated, notified the parties in writing that on July 3, 1992, she would order an add-on election. See note 3, supra. Regarding the period immediately prior to the discharge notice, the commission found that, “[a]t no time, from May 13, 1992, [when the parties last met and were unable to reach an agreement] until June 25, 1992 [when the school committee notified the custodians of the termination of their employment] did the school committee or its representative raise the possibility that the thirty-nine custodians who were the subject of the up-coming hearing and add-on election would be laid-off,” and that this was so even though the school committee was then working on the 1992 budget deficit, anticipating only level funding for fiscal year 1993. A representative of the school committee who attended the May 13 meeting explained that while he knew that consideration was being given to possible layoffs of custodians for fiscal year 1993 as part of the effort to meet the anticipated level funding for fiscal year 1993, he said nothing because he did not have any definite information about those plans. While the foregoing evidence demonstrated that the decision to discharge the custodians must have occurred sometime between May 13 and June 25, the commission found, there was “no evidence that any intervening event triggered the school committee’s action.” In that context, the fact that the termination notice of Juné 25 was only a few days before the add-on election was to be ordered (July 3), was an especially telling event, and the commission was justified in concluding, on the first phase of the case, that there was sufficient circumstantial evidence of the antiunion animus to sustain the union’s prima facie case and thereby warrant a presumption of unlawful discrimination. 2. The response of the school committee. The commission then considered the school committee’s proffered reason for the layoffs. The school committee asserted that the discharge of the custodians was motivated by budgetary decisions — a proffer of a facially lawful reason. It was the responsibility of the school committee then to “produce supporting facts indicating that . . . [the proffered] reason was actually a motive in the decision.” Trustees of Forbes Library, supra at 566. As noted above, the “supporting facts” must include “credible evidence” that the proffered reason was the real reason. Wheelock College, 371 Mass. at 138. Having in mind that the school committee has the burden in this court of showing that the commission’s decision was invalid, we look first to the school committee’s recitation of its evidence of “supporting facts” offered in substantiation of the proffered reason for the layoff. The school committee’s evidence showed that beginning in February, 1992, the school committee and the superintendent began the budgetary process for the 1993 fiscal year which would begin July 1, 1992. In fiscal year 1992, the school department had exceeded its budget by $16 million, requiring an additional appropriation, the two-day furlough plan, and other reductions in expenditures. The target fiscal year 1993 budget received from city administration was the same as that originally received for the 1992 fiscal year, $378.5 million, and the directive to the school committee was that the fiscal year 1993 budget should be consistent with that level of appropriations. As part of the effort to achieve that result, the school committee, in February, 1992, first projected a cut in custodial staff of sixty-two positions for fiscal year 1993; in April, the projected cut rose to eighty-five, and then to eighty-seven in June, 1992. In July, 1992, the projected cut fell to sixty-six. As noted earlier, the layoff notices for the thirty-nine custodians were sent June 25, 1992. No other custodians were laid off, nor was there any evidence that there were budget reductions in any other of the areas of custodial administration. From these facts, the school committee argues that “simple math” required the school committee to reduce its spending, and “[wjhile a reduction of up to eighty-seven custodians was projected, the school committee massaged the budget such that only provisional and temporary custodians were laid off.” In short, the school committee argues that it had sustained its stage two burden before the commission. The commission’s opinion acknowledged that the evidence just described established that the school committee faced a declining budget for custodial operations. The difficulty, the commission said, was the failure of the school committee to introduce evidence on “certain critical issues. . . [including] the identity of the decision-maker, the date or time frame in which the decision was made, the rationale for laying off only the custodians scheduled to vote in the upcoming elections when the . . . [draft budgets] documented the necessity of reductions in staff in other positions, and an explanation for the silence at the May 13th meeting concerning even the possibility of laying off any custodians, including all of the voters under consideration. Nor did the committee produce evidence demonstrating that layoffs or budget reductions occurred in other areas of the school system ... at the same time as the custodial layoffs.” (Emphasis in original.) From these observations the commission concluded that while such evidence from the school committee could have established a nexus between the prevailing economic conditions and the layoffs, the failure to present such evidence left the school committee only with the argument that the commission “should infer a causal relationship between the fiscal constraints and the layoff from the fact that the two events occurred in the same time period,” leaving the commission, in turn, with the speculation that the layoffs merely “happened to coincide with the exact scope of the bargaining unit at issue.” On that basis, the commission concluded that the school committee had failed to produce evidence rebutting the presumption of discrimination created by the union’s prima facie case. The school committee argues that by analyzing the evidence as it did, the commission misapplied the procedure mandated by Trustees of Forbes Library, supra at 566, namely, that the commission effectively, and erroneously, switched the burden of persuasion from the union to the school committee. It is most assuredly true that the school committee’s burden at stage two was limited to articulating nondiscriminatory layoffs. Nevertheless, “ ‘articulating’ a reason in cases of this kind requires the employer to produce not only evidence of the reason for its action but also underlying facts in support of that reason.” Wheelock College, 371 Mass. at 136. Part of that burden on the employer is to “produce supporting facts indicating that this reason was actually a motive in the decision.” Trustees of Forbes Library, 384 Mass. at 566. The commission decided that this is precisely where the school committee’s proof failed: it presented no direct evidence of the particular decision-making process — who the decision-maker was, and why or when the decision-maker made the layoff decision. See note 12, supra. Rather, the school committee depended entirely upon the argument that the commission should infer from circumstantial evidence that budgetary considerations were the motivation for the decision. Whether or not an inference — in this case, a decisive inference — is to be drawn depends on the connection between two facts “in light of common experience.” Liacos, Massachusetts Evidence § 5.8.6, at 243 (6th ed. 1994). Here the commission declined to draw the inference sought by the school committee. In substance the commission concluded that the school committee’s suggested reason of budgetary considerations, unaccompanied by evidence that it was in fact a reason for the decision, failed to satisfy the school committee’s burden at stage two of the established analysis. The commission concluded, in other words, that the school committee’s suggestions that the layoffs were the result of budgetary considerations, and that it was innocefttly coincidental that the layoffs affected only those custodians about to participate in a representation election, and occurred, without warning or discussion (contrary to recent practice) immediately before the election, was simply inadequate to rebut the union’s prima facie case. That is not a switching of the burden of persuasion, as the school committee argues; it is an experienced calculation of whether the school committee carried its stage two burden of producing credible evidence in support of its position. We must, in a case significantly devoid of direct evidence of the primary facts involved in this controversy, defer to the judgment of the commission because it is “presumably equipped or informed by experience to deal with a specialized field of knowledge, [and its] findings within that field carry the authority of an expertness which courts do not possess and therefore must respect.” School Comm. of E. Brookfield v. Labor Relations Commn., 16 Mass. App. Ct. 46, 52 (1983), quoting from Universal Camera Corp., v. National Labor Relations Bd., 340 U.S. 474, 488 (1951). See also Boston Police Superior Officers Fedn. v. Labor Relations Commn., 410 Mass. 890, 892 (1991) (“We generally accord considerable deference to the commission’s disposition of a charge”). We conclude, therefore, that the commission is not shown to have been incorrect as matter of law in concluding that the school committee failed to meet its burden of producing some evidence that its motivation for the layoffs was budgetary. The commission’s decision is affirmed. So ordered. Provisional and temporary custodians are not hired or appointed from a civil service list. The civil service law does draw distinctions between the two categories, but those differences have no relevance to this case. The purpose of the “add-on election” was to determine whether the temporary and provisional custodians wanted to be added to the custodial bargaining unit. The hearing officer to whom the charges had been assigned had notified the parties on May 29, 1992, that the add-on election would be ordered on July 3, 1992, unless the school committee presented evidence to the hearing officer that the custodians ought not to be added on to the existing bargaining unit. It does not appear from the record that such evidence was presented to the hearing officer by June 25, 1992, the date the custodians were notified of their discharge. Section 10(a)(1) makes it a “prohibited practice” in public employee labor relations to interfere, restrain, or coerce any employee in the exercise of any right guaranteed under G. L. c. 150E. Section 10(a)(3) makes it a “prohibited practice” to discriminate in regard to any term or condition of employment in order to encourage or discourage membership in any employee organization. The elements of a prima facie case in an unfair labor practices case ordinarily include evidence that (1) the employee generally had a good work record; (2) that the employee had engaged in protected activities; and (3) that these activities were visible to the employer. See Trustees of Forbes Library, supra at 565 n.4. The fourth element referred to in the commission’s opini