Discrimination Cases

Richard A. Cunningham vs. Ardrox, Inc. No. 95-P-959. Essex. March 7, 1996. April 9, 1996. Present: Brown, Greenberg, & Flannery, JJ. Jurisdiction, Nonresident, Long-arm statute, Personal. In an action brought by a Massachusetts resident against his former employer, a nonresident defendant, asserting a claim of age discrimination under 29 U.S.C. §§ 621-634, the Age Discrimination in Employment Act, the judge correctly dismissed the case for want of personal jurisdiction under G. L. c. 223A, § 3 (if), where the plaintiff did not show that the defendant caused tortious injury in Massachusetts by its acts committed outside of Massachusetts. [280-283] Civil action commenced in the Superior Court Department on September 14, 1994. The case was heard by Thayer Fremont-Smith, J., on a motion to dismiss. The case was submitted on briefs. Paul A. Manoff for the plaintiff. Harrison A. Fitch & Joshua L. Simonds for the defendant. Brown, J. The plaintiff, a Massachusetts resident, brought this action against his former employer, a nonresident defendant, in Superior Court, asserting a claim of age discrimination under 29 U.S.C. §§ 621-634 (1994), the Age Discrimination in Employment Act. Concluding that the plaintiff had failed to satisfy the literal requirements of G. L. c. 223A, § 3(d), a judge dismissed the case pursuant to Mass.R.Civ.P. 12(b)(2), 365 Mass. 755 (1974), for want of personal jurisdiction. We affirm. The plaintiff bears the burden of establishing sufficient facts upon which to predicate personal jurisdiction over the defendant under the Commonwealth’s long-arm statute. Tatro v. Manor Care, Inc., 416 Mass. 763, 767 (1994). We accept as true the uncontroverted allegations of fact taken from the materials before the motion judge. See Heins v. Wilhelm Loh Wetzlar Optical Mach. GmbH & Co. KG, 26 Mass. App. Ct. 14, 16 (1988); Kleinerman v. Morse, 26 Mass. 819, 821 n.4 (1989). The defendant, a manufacturer and seller of chemical products with markets in the United States, Canada, and Europe, is a Delaware corporation with corporate headquarters located in California. The defendant has never had any facilities or owned property in Massachusetts, or received any mail in the Commonwealth. No board of directors or shareholders meetings have been held in Massachusetts. None of the defendant’s directors and officers resides in Massachusetts. The defendant advertises in a nationally circulated publication apparently distributed in Massachusetts. Massachusetts customers account for between one and five percent of the defendant’s sales. On July 13, 1987, the plaintiff was hired to be the plant manager at the defendant’s Salem, New Hampshire, facility. On February 28, 1990, the plaintiff became the area sales manager for the defendant’s electronic chemicals division. On June 3, 1991, he was transferred to the defendant’s Arlington, Tennessee, facility to be the plant manager. On September 27, 1992, the plaintiff became the defendant’s East Coast operations manager, working out of Chicago. In March, 1993, while living in Chicago, the plaintiff purchased a condominium in Newburyport, Massachusetts, with the intention of retiring there. The plaintiff informed the company president of his intention to return to Massachusetts “upon the completion of [his] employment with [the] defendant.” In March, 1994, the plaintiff told the president and one of the defendant’s vice-presidents that the plaintiff’s wife would be moving to Massachusetts to establish legal residence there. Six weeks latjer, the plaintiff was terminated. In determining whether a Massachusetts court may exercise personal jurisdiction over a nonresident defendant, we apply a two-step analysis: (1) whether the plaintiffs assertion of jurisdiction is authorized by the long-arm statute, and (2) whether the defendant has the requisite minimum contacts with this State so that the exercise of personal jurisdiction is consistent with due process requirements. See Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1, 5-6 (1979); Carlson Corp. v. University of Vt., 380 Mass. 102, 105 (1980). Jurisdiction is authorized only where the answer to both inquiries is yes. Good Hope Indus., Inc. v. Ryder Scott Co., supra at 6. Here, the plaintiff relies solely on G. L. c. 223A, § 3(d), as a basis of jurisdiction. To satisfy the first requirement of this statutory provision, the plaintiff must show that the defendant “cous[ed] tortious injury in [Massachusetts] by an act or omission [occurring] outside this [C]ommonwealth . . . .” G. L. c. 223A, § 3(d), as inserted by St. 1968, c. 760. See Keds Corp. v. Renee Intl. Trading Corp., 888 F.2d 215, 218 (1st Cir. 1989). The plaintiff argues that due to the tortious act of the defendant in wrongfully discharging him, he suffered foreseeable “economic injury” in Massachusetts (his declared domicil) sufficient to meet the literal requirements of § 3(d). We disagree. Initially, we note that it is unclear from the record before the judge exactly where the plaintiff was terminated and what the circumstances were. At the time of his termination, the plaintiff was an operations manager working and living in Chicago, Illinois. He was discharged by Nik Mallard, a resident of Great Britain. The plaintiff lists other possible witnesses to the termination as Mallard’s “senior” (a resident of Great Britain), two company vice presidents (residents of Georgia and Illinois), the president (a resident of North Carolina), and the personnel manager (a resident of California). In any event, it is undisputed that the defendant’s allegedly tortious acts were committed outside of Massachusetts. Without legal analysis, the plaintiff states that his domicil at the time of his termination was Massachusetts. As defined by the common law, a person’s domicil is usually the place where the person dwells and which forms the center of his life. See Dane v. Registrars of Voters of Concord, 374 Mass. 152, 161-162 (1978). One does not acquire a new domicil until he gives up the old one. See Levy v. Rent Control Bd. of Brookline, 29 Mass. App. Ct. 976, 977 (1990) (mere intention to change residence without physical move does not operate to change or create domicil). Domicil is a question of fact. See Teel v. Hamilton-Wenham Regional Sch. Dist., 13 Mass. App. Ct. 345, 349 (1982). Here, prior to his termination, the plaintiff was living in Chicago and, by his own admission, he intended to remain in that city an indeterminate time until his employment ended. But even if we assume that Massachusetts was his domicil when he was discharged, the plaintiff, who it is undisputed was injured outside Massachusetts, must show “tortious injury in this Commonwealth” in order to establish jurisdiction under § 3(d) of the long-arm statute. See Buckeye Assocs., Ltd. v. Fila Sports, Inc., 616 F. Supp. 1484, 1493 (D. Mass. 1985) (economic injury in Massachusetts may satisfy the requirement); Keds Corp. v. Renee Intl. Trading Corp., 888 F.2d at 218. While manifestations, effects, and consequences of an out-of-State injury may be experienced in Massachusetts, they do not constitute “injury in this commonwealth” within the meaning of § 3(d). See Crocker v. Hilton Intl. Barbados, Ltd., 976 F.2d 797, 800 (1st Cir. 1992), where, after the wife’s rape at a Barbados hotel, the plaintiffs “convalesced in Massachusetts and suffered most of the effects of the out-of-state injuries in Massachusetts.” Here, while the plaintiff may have suffered after his discharge financially and otherwise upon his move from Chicago to his retirement home in Massachusetts, this does not mean that he was “injured in” Massachusetts. See Walsh v. National Seating Co., 411 F. Supp. 564, 571 (D. Mass. 1976), in which the court rejected the contention of the plaintiff, a Massachusetts resident, that tortious injury occurred in Massachusetts because he received medical treatment and incurred his medical expenses here after a bus accident in Maine, endured pain and suffering here, and suffered impairment to his future earning capacity here. The court stated at 571, “While it is undoubtedly true that plaintiff and his wife suffered in Massachusetts this does not mean they were injured here” (emphasis original). As the plaintiff is unable to satisfy the literal requirements of § 3(d) on the facts alleged, the judge properly declined to exercise personal jurisdiction over the nonresident defendant. In light of our conclusion that the plaintiff failed to satisfy the first requirement of § 3(d), we need not discuss whether the defendant had sufficient contacts with Massachusetts to justify the exercise of personal jurisdiction over it. Nor is it necessary to address the other grounds of the judge’s decision. See Fay v. Federal Natl. Mort. Assn., 419 Mass. 782, 789 (1995); Rosenfeld v. Board of Health of Chilmark, 27 Mass. App. Ct. 621, 626 n.10 (1989). Judgment affirmed. The plaintiff! states in his affidavit (without specifying dates and locations) that he had “occasional business dealings in Massachusetts,” visiting vendors who scjld raw materials to the defendant. The plaintiff does not dispute the defendant’s assertion that after the plaintiff’s transfer to its Tennessee facility ip June, 1991, his employment duties were unrelated to the defendant’s Massachusetts customers. General Laws c. 223A, § 3(d), as amended by St. 1969, c. 623, provides in relevant part: “A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person’s ...(d) causing tortious injury in this commonwealth by an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this commonwealth . . . .” In his complaint, the plaintiff alleged that as a result of the loss of his employment, he “has incurred damages in the nature of lost earnings, and benefits.” In his appellate brief, while stating that he suffered economic injury in Massachusetts, the plaintiff fails to elaborate on the nature of these injuries.

CHAMPION v NATION WIDE SECURITY, INC Docket No. 100521. Argued November 8, 1995 (Calendar No. 6). Decided March 19, 1996. Rehearing denied 451 Mich 1240. Cheryl Champion brought an action in the Wayne Circuit Court against Nation Wide Security, Inc., and its agent, Eddie Lee Fountain, alleging that Nation Wide, through Mr. Fountain, had violated her civil rights by engaging in sexual harassment, i.e., raping her, and that this discrimination led to her constructive discharge. The court, Richard P. Hathaway, J., granted Nation Wide’s motion for summary disposition, reasoning that Mr. Fountain was not the plaintiff’s supervisor, and thus not an agent of his employer as required for recovery under the Civil Rights Act. The Court of Appeals, Wahls, P.J., and Reilly and R. M. Daniels, JJ., affirmed, but found that a question of fact existed regarding whether Fountain was given the necessary authority to be Nation Wide’s agent, thus subjecting Nation Wide to liability under the theory of respondeat superior. It upheld the lower court decision, however, concluding that the plaintiff had not shown that the defendants used her response to Fountain’s conduct as a factor in a decision affecting her employment, and specifically rejected her claim that her constructive discharge constituted a requisite employment decision (Docket No. 149365). The plaintiff appeals. In an opinion by Chief Justice Bkickley, joined by Justices Riley, Mallett, and Weaver, the Supreme Court held: An employer is strictly liable for quid pro quo sexual harassment where its supervisor rapes a subordinate through the exercise of managerial powers over the victim and causes the subordinate to be constructively discharged. 1. The Michigan Civil Rights Act outlaws quid pro quo sexual harassment. Under MCL 37.2103(i)(ii); MSA 3.548(103)(i)(ii), an employee must establish subjection to unwelcome sexual conduct and that the employer or the employer’s agent used the employee’s submission to or rejection of the proscribed conduct as a factor in a decision affecting employment. In this case, the supervisor’s decision to rape the victim constituted the requisite decision affecting employment and was taken in response to the plaintiff’s refusal to voluntarily submit to her supervisor’s sexual requests. The lack of consent is the gravamen of a sexual assault. 2. The law does not differentiate between active and constructive discharge. The decision to terminate in a constructive discharge case is imputed to the employer. Constructive discharge occurs only where an employer’s or its agent’s conduct is so severe that a reasonable person in the employee’s place would feel compelled to resign. Rape is conduct severe enough to compel a resignation. In this case, the discharge did not occur following the rape, but contemporaneously with it. The decision to use force was the equivalent of a decision to discharge because Fountain should have expected that it would lead to the plaintiff’s resignation. This decision affecting employment is actionable because the plaintiff’s refusal to comply with Fountain’s request for sexual favors led to his decision to use force. 3. When an employer gives its supervisors certain authority over other employees, it also must accept responsibility to remedy the harm caused by a supervisor’s unlawful exercise of that authority. In this case, Fountain used his supervisory power to put the plaintiff in the vulnerable position that led to her rape, and he would have been unable to rape her but for his exercise of supervisory authority. Strict liability is imposed on employers for quid pro quo sexual harassment committed by supervisory personnel. Quid pro quo harassment occurs only where an individual is in a position to offer tangible job benefits in exchange for sexual favors, or alternatively, to threaten job injury for a failure to submit. That individual is most often a person with supervisory powers. Justice Boyle, joined by Justices Levin and Cavanagh, concurring, stated that because facts that the Supreme Court could not anticipate may unfold upon further development of the lower court record or, unknown to the Supreme Court, already may have been developed, the trial court should not be directed to enter judgment in favor of the plaintiff. If the state of the record is such that judgment should be entered for the plaintiff, the directive to remand the case to the trial court for further proceedings consistent with the Supreme Court’s opinion will authorize the trial court to enter judgment. The trial court is in the best position to make the determination. Reversed. 205 Mich App 263; 517 NW2d 777 (1994) reversed. Chambers, Steiner (by Angela J. Nicita, Louis G. Corey, and Michelle J. Harrison) for the plaintiff. Plunkett & Cooney, P.C. (by Ernest R. Bazzana), for defendant Nation Wide Security, Inc. Amici Curiae: Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Robert L. Willis, Jr., Assistant Attorney General, for the Michigan Civil Rights Commission and the Michigan Department of Civil Rights. Stark & Gordon (by Sheldon J. Stark, Carol A. Laughbaum, and Martha I. Seijas) for National Lawyers Guild, Paul J. Denenfeld for American Civil Liberties Union, James Schuster for Michigan Employment Lawyers Association, Jeffrey Meyers for Michigan Trial Lawyers Association, Julie Field for University of Michigan Women and the Law Clinic, and Elizabeth K. Bransdorfer for Women Lawyers Association of Michigan. Miller, Canfield, Paddock & Stone, P.L.C. (by Alison B. Marshall and Charles S. Mishkind), for Michigan Manufacturers Association and Employers’ Association. Brickley, C.J. In this case, we must decide whether an employer is liable for quid pro quo sexual harassment under MCL 37.2103(i); MSA 3.548(103)(i) where one of its employed supervisors rapes a subordinate and thereby causes her constructive discharge. We hold that an employer is liable for such rapes where they are accomplished through the use of the supervisor’s managerial powers. We believe that this result best effectuates the remedial purpose of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. The opinion of the Court of Appeals is reversed insofar as it denies relief under the act. Furthermore, because defendant has made sufficient admissions to establish liability under the rule we announce today, pursuant to MCR 7.316(A)(7), we order the trial court to render judgment in favor of plaintiff under MCR 2.116(30(2). i The incidents giving rise to plaintiff Cheryl Champion’s claim began shortly after she returned from a maternity leave to resume her position as a security guard with defendant, Nation Wide Security Services, Inc. At that time, the company assigned Ms. Champion to a new supervisor, Eddie Lee Fountain. There is no dispute that Mr. Fountain scheduled plaintiff’s work, trained her, and oversaw and evaluated her performance. He also played a role in disciplining her. During her first days back at work, Mr. Fountain made sexually suggestive remarks to Ms. Champion, including an admission that he was "flirtatious” and that he found her "attractive.” Other remarks and sexually suggestive conduct followed. One Saturday, less than a month after her return, Mr. Fountain unexpectedly contacted Ms. Champion, who was not previously scheduled to work until the following Monday. He asked her if she would be available to report for duty at Deaconess Hospital in Detroit. Ms. Champion agreed to the assignment and prepared to report for work. However, while getting ready, Ms. Champion accidentally burned her uniform trousers while pressing them. She .called Fountain to inform him of the accident, and he gave her permission to use regular black or navy blue trousers. Minutes later, however, he called back with the unusual request that she wear a black or blue dress instead. When Ms. Champion informed Mr. Fountain that she did not have a dress and that she was running late, he allowed her to wear her regular trousers. When Ms. Champion arrived at her post, she learned that Mr. Fountain had dismissed all other security personnel. Ms. Champion and Mr. Fountain were then the only two security guards at the hospital. After Ms. Champion reported to Mr. Fountain, he informed her that he had a state trooper check into her background to find out if she "had a clean medical background.” He then remarked that he thought she was "ready” because she had just had a baby. He also stated that he wanted to go home with her to find out if she had a boyfriend. Finally, Mr. Fountain suggested that her future job security and success were tied to his approval or disapproval. Mr. Fountain asserted that if Ms. Champion went along with him, she would have nothing to worry about as long as she worked for him. He said he would "take care of” her and that she would never have to "worry” about her job. At this point, Ms. Champion flatly rejected Mr. Fountain’s offer. Later that same day, the hospital closed and Mr. Fountain and Ms. Champion were the only two people on the premises. At that time, Mr. Fountain told Ms. Champion to accompany him on security rounds. His stated purpose was to train her. However, after Mr. Fountain had ordered Ms. Champion into a remote part of the building, he locked a door to an examination room and trapped her. He then demanded that she have sex with him. When she refused, he raped her. Ms. Champion immediately left work and returned home. She then reported the rape to police and was rushed by ambulance to the hospital. She never returned to Nation Wide after the attack. Ms. Champion filed the present action in the Wayne Circuit Court on February 14, 1991. Central to this appeal, she alleged that Nation Wide, through its agent, Mr. Fountain, had violated her civil rights by engaging in sexual harassment. She further alleged that this discrimination led to her constructive discharge. However, the trial court granted Nation Wide’s motion for summary disposition of Ms. Champion’s sexual harassment claim. The court reasoned that Mr. Fountain was not Ms. Champion’s supervisor and, thus, not an "agent” of his employer as required by the Civil Rights Act for recovery. While agreeing with the result, the Court of Appeals correctly reversed the trial court’s finding that Mr. Fountain was not Ms. Champion’s supervisor. Indeed, the Court of Appeals found that a "question of fact existed regarding whether Fountain was given the necessary authority to be Nation Wide’s agent, thus subjecting Nation Wide to liability under the theory of respondeat superior.” 205 Mich App 263, 267; 517 NW2d 777 (1994). However, the Court of Appeals upheld the lower court because it concluded that Ms. Champion had not shown that Nation Wide or Mr. Fountain used her response to Mr. Fountain’s conduct as a factor in a decision affecting her employment. Specifically, it rejected the plaintiff’s claim that her constructive discharge constituted the requisite employment decision. As this opinion makes clear, the Court’s reasoning was in error._ II Unlike its federal counterpart, the Michigan Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., contains a provision specifically designed to outlaw two forms of sexual harassment: hostile work environment sexual harassment and "quid pro quo sexual harassment.” Radtke v Everett, 442 Mich 368; 501 NW2d 155 (1993); see also Meritor Savings Bank, FSB v Vinson, 477 US 57, 64-65; 106 S Ct 2399; 91 L Ed 2d 49 (1986). This case involves quid pro quo harassment. The act clearly sets forth two separate theories under which a party may make out a claim for quid pro quo harassment: (i) Discrimination because of sex includes sexual harassment which means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature when: (i) Submission to such conduct or communication is made a term or condition either explicitly or implicitly to obtain employment, public accommodations or public services, education, or housing; (ii) Submission to or rejection of such conduct or communication by an individual is used as a factor in decisions affecting such individual’s employment, public accommodations or public services, education, or housing. [MCL 37.2103(i)(i), (ii); MSA 3.548(103)0)0), (ii).] A party pursuing a claim under the second subsection must establish two things: (1) that she was subject to any of the types of unwelcome sexual conduct or communication described in the statute, and (2) that her employer or the employer’s agent used her submission to or rejection of the proscribed conduct as a factor in a decision affecting her employment. See also Kauffman v Allied Signal, Inc, 970 F2d 178 (CA 6, 1992). It is this second requirement that forms the basis of dispute in the present case and we find that Ms. Champion has satisfied that requirement. It is this Court’s opinion that Mr. Fountain’s decision to rape Ms. Champion constituted the requisite "decision affecting . . . employment.” In addition, this was a decision taken in response to Ms. Champion’s refusal to voluntarily submit to Mr. Fountain’s sexual requests. Indeed, lack of consent is the gravamen of a sexual assault. In reaching our conclusion that plaintiff has satisfied all the requirements under MCL 37.2103(i)(ii); MSA 3.548(103)(i)(ii), we reject two theories that defendant' claims absolves it of liability. First, defendant asserts that, because it did not actively terminate plaintiff, it made no employment decision in response to her rejection of Mr. Fountain’s advances. Second, defendant claims that Mr. Fountain was not acting as its agent when he raped Ms. Champion because defendant did not authorize the rape. We deal with each of these arguments in turn. We find that the Court of Appeals acceptance of defendant’s first argument to be in error because it misinterprets the law of constructive discharge. It is well established that the law does not differentiate between employees who are actually discharged and those who are constructively discharged. In other words, once individuals establish their constructive discharge, they are treated as if their employer had actually fired them. Lopez v S B Thomas, Inc, 831 F2d 1184, 1188 (CA 2, 1987). The decision to terminate in a constructive discharge case, therefore, is imputed to the employer. The Court of Appeals, however, somehow attributes responsibility for the discharge to Ms. Champion. This result unjustly blames the victim, especially because a constructive discharge occurs only where an employer or its agent’s conduct is so severe that a reasonable person in the employee’s place would feel compelled to resign. Vagts v Perry Drug Stores, Inc, 204 Mich App 481, 487-488; 516 NW2d 102 (1994). Young v Southwestern Savings & Loan Ass’n, 509 F2d 140 (CA 5, 1975). Mr. Fountain’s rape of Ms. Champion was certainly conduct severe enough to compel her to resign. Indeed, we would hesitate to expect any rape victim to return to the setting in which her sexual assault occurred. However, the conclusion that Nation Wide’s agent constructively discharged Ms. Champion does not, by itself, establish a violation of MCL 37.2103(i)(ii); MSA 3.548(103)(i)(ii). The Court of Appeals correctly ruled that liability under the provision occurs only where the constructive discharge is a result of the plaintiff’s response to the sexual conduct. However, in ruling that the constructive discharge in this case did not result from Ms. Champion’s refusal to submit to Mr. Fountain’s sexual conduct, the Court of Appeals misapprehends the point when the constructive discharge occurred. The discharge did not occur following the rape, but contemporaneously with it. The decision to use force, in other words, was the equivalent of a decision to discharge because Mr. Fountain should have expected that it would lead to Ms. Champion’s resignation. This "decision affecting . . . employment” is actionable under MCL 37.2103(i)(ii); MSA 3.548(103)(i)(ii) because Ms. Champion’s refusal to comply with Mr. Fountain’s requests for sexual favors led to his decision to use force. Therefore, we reject defendant’s first argument against liability. We also reject defendant’s second argument. Defendant has suggested that the Civil Rights Act will not impose liability on defendant because it never authorized Mr. Fountain to rape Ms. Champion. Thus, the defense has asserted, even if Mr. Fountain acted as Nation Wide’s agent while performing his other supervisory duties, he did not act as its agent during the rape. This construction of agency principles is far too narrow. It fails to recognize that when an employer gives its supervisors certain authority over other employees, it must also accept responsibility to remedy the harm caused by the supervisors’ unlawful exercise of that authority. Henson v City of Dundee, 682 F2d 897, 909 (CA 11, 1982). From his scheduling decisions that allowed him to work alone with Ms. Champion to his ordering of her into a remote part of the building, Mr. Fountain used his supervisory power to put Ms. Champion in the vulnerable position that led to her rape. In fact, there is little doubt that Mr. Fountain would have been unable to rape Ms. Champion but for his exercise of supervisory authority. Therefore, we adopt the nearly unanimous view that imposes strict liability on employers for quid pro quo sexual harassment committed by supervisory personnel. The rationale supporting this rule recognizes that most employers are corporate entities that cannot function without delegating supervisory power. Allowing employers to hide behind a veil of individual employee action will do little, if anything, to eradicate discrimination in the workplace. Id. at 909. Indeed, immunizing an employer where it did not authorize the offending conduct would create an enormous loophole in the statute. Such a loophole would defeat the remedial purpose underlying this state’s civil rights statute and would lead to a construction that is inconsistent with the well-established rule that remedial statutes are to be liberally construed. Eide v Kelsey-Hayes Co, 431 Mich 26, 34; 427 NW2d 488 (1988); Reed v Michigan Metro Girl Scout Council, 201 Mich App 10; 506 NW2d 231 (1993); 3 Singer, Sutherland Statutory Construction (5th ed), § 60.01, pp 147-152. In fact, under defendant’s construction, an employer could avoid liability simply by showing that it did not authorize the sexually offensive conduct. Because employers rarely, if ever, authorize such conduct, employees would no longer have a remedy for quid pro quo sexual harassment. Furthermore, the party engaged in quid pro quo harassment is almost always, by definition, a supervisor. That is, quid pro quo. harassment occurs only where an individual is in a position to offer tangible job benefits in exchange for sexual favors or, alternatively, threaten job injury for a failure to submit. That individual is most often a person with supervisory powers. in Our ruling today does not extend unlimited liability to employers whose supervisors rape subordinates. However, we hold an employer strictly liable where the supervisor accomplishes the rape through the exercise of his supervisory power over the victim. The rule we fashion is fully consistent with the results reached by other courts addressing this issue and with the legislative intent that employers, not the victims of sexual harassment, bear the costs of remedying and eradicating discrimination. Riley, Mallett, and Weaver, JJ., concurred with Brickley, C.J. Defendant Fountain is not a party tó this appeal. Similarly, as soon as Nation Wide found out about the attack, Mr. Fountain was suspended from employment. He, too, has never returned to work for Nation Wide. The first prong of this test was obviously met since Champion did not encourage nor desire the sexual overtures made by Fountain. Q. He did what now? A. He loc

KATHLEEN DORSEY, Petitioner-Appellant v. UNC-WILMINGTON, Respondent-Appellee No. COA95-169 (Filed 19 March 1996) 1. Labor and Employment § 121 (NCI4th)— black job applicant — disparate treatment claim — absence of discrimination Substantial evidence in the whole record supported the Personnel Commission’s decision to reject petitioner’s “disparate treatment” claim where it tended to show that the candidate who was employed by respondent had more years of relevant work experience than petitioner, received better performance reviews and better recommendations, and two other candidates for the job would have been chosen over petitioner had respondent’s first choice not taken the job. Am Jur 2d, Job Discrimination §§ 1, 126, 304, 2409, 2707, 2733. Recovery of damages as remedy for wrongful discrimination under state or local civil rights provisions. 85 ALR3d 351. 2. Labor and Employment § 121 (NCI4th)— black job applicant — disparate impact analysis — absence of discrimination The trial court did not err in finding that the evidence supported the Personnel Commission’s determination that petitioner had not been discriminated against because of her race under “disparate impact” analysis, since the evidence simply did not show that any of respondent’s hiring practices caused minority applicants, and more specifically black applicants, to be excluded from jobs or promotions. Am Jur 2d, Job Discrimination §§ 2707, 2733. Recovery of damages as remedy for wrongful discrimination under state or local civil rights provisions. 85 ALR3d 351. 3. Attorney General § 6 (NCI4th)— dual role served by Attorney General’s office — no prejudice to petitioner There was no evidence to support petitioner’s claim that-because respondent was represented before the State Personnel Commission by a senior deputy attorney general, and an assistant attorney general served as legal advisor to the Commission, there was a potential for conflict of interest and bias sufficient to deprive her of an impartial decision-maker, delay the resolution of the claims, and deny her constitutional rights. Am Jur 2d, Parties § 141. What constitutes representation of conflicting interests subjecting attorney to disciplinary action. 17 ALR3d 835. Representation of conflicting interests as disqualifying attorney from acting in a civil case. 31 ALR3d 715. Appeal by petitioner from order entered 8 August 1994 by Judge W. Allen Cobb, Jr., in New Hanover County Superior Court. Heard in the Court of Appeals 13 November 1995. McSurely and Dorosin, by Alan McSurely and Mark Dorosin, for 'petitioner-appellant. Attorney General Michael F. Easley, by Assistant Attorney General Anne J. Brown, for respondent-appellee. MARTIN, John C., Judge. Petitioner, Kathleen Dorsey, appeals from an order of the superior court affirming the decision of the State Personnel Commission (“Commission”) to reject Ms. Dorsey’s claim that she had been discriminated against on the basis of her race in connection with an employment promotion decision by respondent, the University of North Carolina at Wilmington (“UNC-W”). The record shows that Ms. Dorsey, who is black, has been employed as a secretary in the Office of Legal Affairs and Compliance at UNC-W since 1983 and, in 1992, was secretary to the University’s general counsel. In early 1992, the Administrative Assistant to Chancellor James Leutze gave notice of her intent to resign. The vacancy in the position was announced to all UNC-W employees, fourteen of whom, including Ms. Dorsey, applied for the position. The position was classified at salary grade 63; Ms. Dorsey’s position was classified at salary grade 59. The applications were reviewed by the Chancellor’s staff and six candidates, including Ms. Dorsey, were selected for interviews after consultation with the director of UNC-W’s Human Resources Department. Four of the candidates were white and two were black. After reviewing the applications, personally interviewing each candidate, and considering staff recommendations, Chancellor Leutze chose Lynne Goodspeed, who is white, for the position. Ms. Dorsey alleged the decision had been racially discriminatory and followed UNC-W’s grievance procedures. After her grievance was denied, she filed a contested case petition with the Office of Administrative Hearings. After a hearing, the Administrative Law Judge made extensive findings of fact and concluded that Ms. Dorsey had established a prima facie case of discrimination, that UNC-W had rebutted the prima facie case by articulating legitimate nondiscriminatory reasons for not selecting her, and that Ms. Dorsey had not proven that the nondiscriminatory reason was merely a pretext for illegal discrimination. The Administrative Law Judge issued a recommended decision that the decision to promote Ms. Goodspeed be left undisturbed, but that UNC-W consider reclassifying Ms. Dorsey’s current position to pay grade 63. The State Personnel Commission adopted the Administrative Law Judge’s recommended findings of fact, with three minor amendments, and his recommended conclusions of law, with the exception of the conclusion of law pertaining to the salary reclassification of Ms. Dorsey’s current position, which it determined not to be supported by substantial evidence. The Commission affirmed UNC-W’s decision not to select Ms. Dorsey for the administrative assistant position. Ms. Dorsey petitioned for judicial review, pursuant to G.S. § 150B-45, of the order of the State Personnel Commission. Upon her motion and with consent of UNC-W, the superior court vacated the Commission’s decision on the grounds that the Commission had made its ruling without having before it the entire official record of the case and remanded the case to the Commission with instructions to “consider all exceptions properly filed in this matter after a review of the complete official record, and make a final administrative decision in accordance with applicable law.” Upon remand, the Commission again issued a decision and order affirming UNC-W’s decision not to select Ms. Dorsey. Ms. Dorsey petitioned for judicial review of the Commission’s order, alleging that the order was affected by error of law, was unsupported by substantial evidence, and was arbitrary and capricious. Upon review, the superior court determined that the Commission’s decision was not in violation of constitutional provisions; was not in excess of its statutory authority or jurisdiction; was not made upon unlawful procedure; was not affected by other error of law; was not arbitrary or capricious; and was supported by substantial evidence in view of the entire record. Ms. Dorsey now appeals to this Court. I. Chapter 150B of the North Carolina General Statutes, the North Carolina Administrative Procedure Act, governs trial and appellate court review of administrative agency decisions. Pursuant to G.S. § 150B-51(b), the superior court may reverse or modify an administrative agency decision if the substantial rights of the petitioners have been prejudiced because the agency’s findings, inferences, conclusions or decisions are: (1) In violation of constitutional provisions; (2) In excess of the statutory authority or jurisdiction of the agency; (3) Made upon unlawful procedure; (4) Affected by other error of law; (5) Unsupported by substantial evidence ... in view of the entire record as submitted; or (6) Arbitrary or capricious. Although G.S. § 150B-51(b) lists the grounds upon which a court may reverse or modify an administrative agency decision, the proper standard of review to be employed by the court depends upon the nature of the alleged error. Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994). If apeti-tioner asserts that the administrative agency decision was based on an error of law, then “de novo” review is required. Id. “ ‘De novo’ review requires a court to consider a question anew, as if not considered or decided by the agency.” Id. (citing Black’s Law Dictionary 435 (6th Ed. 1990)). “The court may ‘freely substitute its own judgment for that of the agency.’ ” Friends of Hatteras Island v. Coastal Resources Comm., 117 N.C. App. 556, 567, 452 S.E.2d. 337, 344 (1995) (quoting Brooks, Commissioner of Labor v. Grading Co., 303 N.C. 573, 580-81, 281 S.E.2d 24, 29 (1981)). On the other hand, if a petitioner asserts that the administrative agency decision was not supported by the evidence, or was arbitrary or capricious, then the court employs the “whole record” test. Amanini, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118. The “whole record” test requires the court to examine all competent evidence comprising the “whole record” in order to ascertain if substantial evidence therein supports the administrative agency decision. Id. “Substantial evidence is that which a reasonable mind would regard as adequately supporting a particular conclusion.” Walker v. N.C. Dept. of Human Resources, 100 N.C. App. 498, 503, 397 S.E.2d 350, 354 (1990), disc. review denied, 328 N.C. 98, 402 S.E.2d 430 (1991) (citing Joyce v. Winston-Salem State University, 91 N.C. App. 153, 370 S.E.2d 866, cert. denied, 323 N.C. 476, 373 S.E.2d 862 (1988)). The standard of review for an appellate court upon an appeal from an order of the superior court affirming or reversing an administrative agency decision is the same standard of review as that employed by the superior court. In re Appeal of Ramseur, 120 N.C. App. 521, 463 S.E.2d 254 (1995). II. By her first and third assignments of error, Ms. Dorsey disputes the superior court’s finding that the decision of the Commission to reject her claim of “disparate treatment” against UNC-W was supported by the record. Ms. Dorsey contends that this finding was in error because UNC-W (1) failed to produce a legitimate nondiscriminatory reason for rejecting her and hiring Ms. Goodspeed, and (2) relied only on “subjective and pretextual” qualifications in its hiring process. Her argument challenges the sufficiency of the record evidence, thus the applicable standard of review is the “whole record” test. When, as in the present case, an employee raises a claim of “disparate treatment” in an employment promotion decision, she is asserting that the employer specifically treated her less favorably than other employees. N.C. Dept. of Correction v. Hodge, 99 N.C. App. 602, 611, 394 S.E.2d 285, 290 (1990). According to “disparate treatment” analysis, once the complaining employee meets her initial burden of proving, by a preponderance of the evidence, a prima facie case of such “disparate treatment”, the employer then has the burden of articulating some legitimate, nondiscriminatory reason for the employee’s rejection. Id. The employer’s burden is satisfied if it simply produces evidence that it hired a better-qualified candidate. Id. However, the employee can ultimately prevail in her claim of “disparate treatment” if she can prove that the employer’s claim to have hired a better-qualified applicant is pretextual by showing that she was, in fact, better-qualified than the person chosen for the job. Id. at 613, 394 S.E.2d at 291. In the present case, the record contains substantial evidence that Ms. Goodspeed was, in fact, better-qualified for the position than was Ms. Dorsey. The advertised qualifications for the position, as contained in the notice for applications, were: Administrative Assistant I Serves as office manager responsible for supervision of clerical staff, budgeting, accounting, and purchasing functions. Performs chief executive level secretarial duties with high degree of accuracy and efficiency. Plans and coordinates meetings including travel and room accommodations, agenda, and record keeping. Requires proficiency in shorthand, effective written and oral communication skills, experience in maintaining a travel and appointment calendar (preferably using calendar software), and the ability to deal effectively and tactfully under pressure with many constituencies. Requires high school and four years progressively responsible secretarial or administrative office management experience. Secretarial science degree or CPS preferred. Word-Perfect and VAX administrative systems experience necessary. In making his final decision, Chancellor Leutze stated that the principal differentiating factors were to select that individual who would best: *match the position in terms of directly related job experience; *be able to handle a variety of situations and constituents with professionalism, calmness, and control; ♦exhibit appropriate interactional and communication skills necessary to represent me in contacts with senior administrative officers of the University as well as external constituents; and ♦be able to undertake management of the office and supervision of subordinate staff. Ms. Goodspeed had more than fourteen years job experience in executive assistant or equivalent positions, which was directly related to the position for which she applied. At the time of her selection, she had worked for approximately three years at UNC-W, during which time her performance was evaluated as exceptional. Her experience at UNC-W included a temporary assignment for approximately one year as a full-time secretary in the Chancellor’s office, where she worked primarily with the Chancellor’s administrative assistant, Andrea Williams, who was leaving. Ms. Goodspeed actually performed Ms. Williams’ duties during an extended period of time when Ms. Williams was absent from work. As a result, the Chancellor had a first-hand opportunity to observe Ms. Goodspeed’s secretarial abilities, professionalism, calmness and interactional and communicative skills, all of which he considered, according to his testimony, to be very good. Ms. Goodspeed also received highly favorable recommendations from Ms. Williams and from the Special Assistant to the Chancellor, Mark Lanier. In contrast, Ms. Dorsey had fewer years of work experience than Ms. Goodspeed and her experience was less relevant to the position for which she applied, i.e., she had not worked in equivalent employment to the position of administrative assistant. Her performance evaluations while at UNC-W, although good, were not as good as Ms. Goodspeed’s. Several persons for whom she had previously worked while at UNC-W advised the Chancellor that Ms. Dorsey was somewhat difficult to get along with and was sometimes tense and irritable. Indeed, Chancellor Leutze testified that had Ms. Goodspeed not been available to fill the administrative assistant position, two other candidates, both of whom had served in higher level administrative positions, would have been preferable to Ms. Dorsey. Accordingly, we agree with the superior court’s determination that substantial evidence in the whole record supports the Commission’s decision to reject Ms. Dorsey’s “disparate treatment” claim. III. In support of her second assignment of error, Ms. Dorsey argues that the superior court erred in finding the evidence supported the Commission’s determination that Ms. Dorsey had not been discriminated against because of her race under “disparate impact” analysis. The appropriate standard of review is again the “whole record” test. The elements of a “disparate impact” claim are prescribed by 42 U.S.C. § 2000e-2(k)(1)(A), which states: An unlawful employment practice based on disparate impact is established under this title only if... a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact.... In Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 994, 101 L.Ed.2d 827, 845 (1988), our U.S. Supreme Court held that: The plaintiff must begin by identifying the specific employment practice that is challenged .... Once the employment practice at issue has been identified, causation must be proved; that is, the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group. In the present case, Ms. Dorsey’s evidence simply did not show that any of UNC-W’s hiring practices caused minority applicants, and more specifically, black applicants, to be excluded from jobs or promotions. Indeed, there is substantial evidence in the record indicating a concerted effort by UNC-W to hire and promote minorities to secretarial and administrative positions, and that these efforts have, in fact, resulted in a substantial minority work force in these positions. Ms. Dorsey’s argument is overruled. IV. By her fourth assignment of error, Ms. Dorsey argues that the superior court erred in affirming the Commission’s decision when, according to her argument, the Commission failed to state specific reasons for not adopting the Administrative Law Judge’s recommended decision with respect to reclassifying her position for pay purposes. Although we find no merit in her argument, it is unnecessary to address it. Ms. Dorsey did not petition the superior court for review of the Commission’s decision on this ground. This Court will not decide issues which have not been presented in the trial court. See N.C.R. App. P. 10(b); White v. Pate, 308 N.C. 759, 304 S.E.2d 199 (1983). V. By her fifth and final assignment of error, Ms. Dorsey contends that the superior court erred by its failure to find a violation of her rights to justice without favor or delay under Article I, Section 18 of the North Carolina Constitution. She argues that because UNC-W was represented before the State Personnel Commission by a senior deputy attorney general, and an assistant attorney general served as legal advisor to the Commission, there was a potential for conflict of interest and bias sufficient to deprive her of an impartial decision-maker, delay the resolution of her claims, and deny her constitutional rights. Because this assignment of error raises a question of law, we review de novo the question of whether Ms. Dorsey’s constitutional rights were violated due to the alleged dual legal representation by members of the Attorney General’s office. Ramseur, 120 N.C. App. 521, 463 S.E.2d 254; Amanini, 114 N.C. App. 668, 443 S.E.2d 114. Under G.S. § 114-2(2), it is the duty of this State’s Attorney General “[t]o represent all State departments, agencies, institutions, commissions, bureaus or other organized activities of the State which receive support in whole or in part from the State.” Thus, both UNC-W, as a constituent member of the State’s university system, and the Commission, are entitled to legal representation and advice from the Attorney General’s Office. In similar circumstances, we have held that no per se violation of due process arises from such a combination of advisory function and advocacy function in the absence of a showing of actual bias or unfair prejudice. See Hope v. Charlotte-Mecklenburg Board of Education, 110 N.C. App. 599, 430 S.E.2d 472 (1993) (absent a showing of actual bias or unfair prejudice, rejected argument by petitioner, a dismissed teacher, that her right to due process was violated because the attorney advising the board of education and the attorney presenting the case for the superintendent seeking the teacher’s dismissal were members of the same law firm). Ms. Dorsey offered no evidence to show that the dual role served by the Attorney General’s Office resulted in actual bias or unfair prejudice to her or occasioned any delay in the disposition of her claims; therefore, we reject her argument. Affirmed. Chief Judge ARNOLD and Judge SMITH concur.

CAMERON v MONROE COUNTY PROBATE COURT Docket No. 159808. Submitted December 5, 1995, at Detroit. Decided December 28, 1995, at 9:25 a.m. Cjndy L. and Lawrence M. Cameron brought an action in the Monroe Circuit Court against the Monroe County Probate Court and James Seitz, J., in his capacity as a Monroe County Probate Court judge, seeking damages for marital-status employment discrimination and loss of consortium. The probate court then filed a third-party complaint against Monroe County, alleging that the county was the legal entity responsible for paying any judgment that might be rendered against the probate court. Mediation of the principal complaint resulted in a recommended award for the plaintiffs with respect to the probate court. The plaintiffs and the probate court accepted the recommendation and a judgment was entered against the probate court. The court, Robert J. Colombo, Jr., J., considered cross motions for summary disposition with regard to the third-party complaint and granted summary disposition for the county. The Monroe County Probate Court appealed. The Court of Appeals held: 1. Although the county is the funding unit for the probate court, payment of a judgment against the probate court is not within the statutory obligation of the county. The funding obligation of the local funding unit of the probate court extends only to the provision of those funds that are necessary to the probate court’s performance of its statutorily mandated functions. Payment of a money judgment is not a statutory function of the probate court. The state, not the county, is primarily responsible for the payment of any judgment against the probate court. 2. Cindy Cameron was an employee of the probate court, not the county. 3. The trial court properly found common-law indemnification to be inappropriate and inapplicable in this case. Affirmed. References Am Jur 2d, Municipal Corporations § 235. See ALR Index under Probate Courts and Proceedings. 1. Courts — Probate Courts — Employees. Employees of the probate court are not employees of the probate court’s funding unit. 2. Courts — Local Funding Units — Probate Courts — Funding Obligation. A probate court’s local funding unit’s obligation to pay funds beyond those appropriated for the court is limited to those funds that are necessary to enable the court to perform its statutorily mandated functions; the payment of a money judgment against the probate court is not a statutory function of the local funding unit. Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Gary P. Gordon, Leo H. Friedman, and Richard P. Gartner, Assistant Attorneys General, for the Monroe County Probate Court. Cummings, McClorey, Davis & Acho, P.C. (by Gail P. Massad), for Monroe County. Before: Michael J. Kelly, P.J., and Reilly and E. Sosnick, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Per Curiam. Defendant and third-party plaintiff, the Monroe County Probate Court, appeals as of right from the December 21, 1992, order issued by visiting Monroe Circuit Court Judge Robert J. Colombo, Jr., that granted summary disposition for third-party defendant Monroe County. Judge Colombo ruled that Monroe County was not responsible for paying a money judgment received by plaintiff Cindy Cameron against the Monroe County Probate Court._ i On May 16, 1991, the plaintiffs in the underlying lawsuit, Cindy and Lawrence Cameron, sued the Monroe County Probate Court and James Seitz in his capacity as a Monroe County Probate Court judge, alleging claims of marital-status discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and loss of consortium. The Monroe County Probate Court thereafter filed a third-party complaint against Monroe County, alleging that Monroe County was the legal entity responsible for paying any judgment that might be rendered against the probate court. Mediation of plaintiffs’ principal complaint resulted in a recommended award of $25,000 for the plaintiffs with respect to the Monroe County Probate Court. The plaintiffs and the Monroe County Probate Court accepted this mediation recommendation and, accordingly, a judgment for $25,000 was entered against the Monroe County Probate Court pursuant to MCR 2.403(M)(2). Cross motions for summary disposition were subsequently filed with respect to the third-party complaint. At a hearing on October 20, 1992, Judge Colombo issued a ruling from the bench granting Monroe County’s motion for summary disposition pursuant to MCR 2.116(C)(1), and denying the Monroe County Probate Court’s motion for summary disposition. Relying on Kell v Johnson, 186 Mich App 562; 465 NW2d 26 (1990), Judge Colombo ruled that, although Monroe County is the funding unit for the Monroe County Probate Court, payment of a judgment is not within the statutory obligation of the funding unit and, therefore, the state, not Monroe County, is primarily responsible for payment of any judgment entered against the probate court. We affirm. ii The parties are in disagreement over which party was Cindy Cameron’s employer, as well as the significance of the existence of an employer-employee relationship. Monroe County argues that, because Cindy Cameron’s underlying lawsuit was premised upon discrimination during the course of her employment, it may not be held liable for the judgment recovered by Cameron unless it was Cameron’s employer, which it maintains it was not. Monroe County insists that the Monroe County Probate Court was Cameron’s employer. In Judges of the 74th Judicial Dist v Bay Co, 385 Mich 710, 723; 190 NW2d 219 (1971), our Supreme Court held that district court employees are employees of the judicial district, not the city or county: Employees of the district court are employees of the judicial district, an administration unit of the state’s one district court, which in turn is a subdivision of Michigan’s one court of justice. They are not employees of the county, city or other district control unit, even though they are paid by the district control unit. Here, too, the Monroe County Probate Court is an administrative unit of the state’s one probate court, which in turn is a subdivision of Michigan’s one court of justice. Const 1963, art 6, § 1: The judicial power of the state is vested exclusively in one court of justice which shall be divided into one supreme court, one court of appeals, one trial court of general jurisdiction known as the circuit court, one probate court, and courts of limited jurisdiction that the legislature may establish by a two-thirds vote of the members elected to and serving in each house. [Emphasis added.] The decision in Judges of the 74th Judicial Dist, supra, leads to the conclusion that Cindy Cameron was an employee of the Monroe County Probate Court, and not Monroe County. This conclusion is supported by OAG, 1979-1980, No 5553, p 372 (September 5, 1979), which held that the probate court, not the county, is the "public employer” of probate court employees for purposes of collective bargaining. The Attorney General, representing the Monroe County Probate Court, now contends that the county was the employer. He relies on Nezdropa v Wayne Co, 152 Mich App 451; 394 NW2d 440 (1986), and Kain v Michigan, 109 Mich App 290; 311 NW2d 351 (1981), but most heavily on the recent case of Grand Traverse Co v Michigan, 450 Mich 457; 538 NW2d 1 (1995). He does not refer to his 1979 opinion, supra. We distinguish Kain because that case was resolved not on the basis that the city was the employer of the district court clerk but, rather, on the-basis that the city was statutorily liable for payment of worker’s compensation benefits because it was the district control unit for the judicial district. Indeed, that opinion expressly held that the clerk was not an employee of the city. Kain does not support the Attorney General’s argument. Nezdropa was also a worker’s compensation dispute and is applicable only in that context. Neither does the Attorney General’s reliance on MCL 600.9101 et seq.; MSA 27A.9101 et seq. support his argument. Section 9101(1) establishes a State Judicial Council and states that the council "is the employer of the employees of the judicial branch of state government who serve in the circuit, recorder’s district, or probate court and who are paid by the state, but is not the employer of judges.” Because both parties concede that Cindy Cameron was not a state-paid employee, she could not be considered an employee of the State Judicial Council under § 9101(1). The Attorney General on behalf of the Monroe County Probate Court contends that "only those employees of the State Judicial Council are considered employees of the State.” However, neither of the two statutes cited for this proposition, MCL 600.593; MSA 27A.593 and MCL 600.8273; MSA 27A.8273, supports such a claim. The cited statutes merely indicate that certain employees of the Wayne Circuit Court, the Detroit Recorder’s Court, and the 36th District Court are employees of the State Judicial Council. The statutes do not address the status of employees of other courts. The statutes merely define who is an employee of the "State Judicial Council.” Merely because someone is not an employee of that particular state entity does not mean that they may not otherwise be considered a state employee. In any event, the ultimate issue to be decided in this case is not which entity was Cindy Cameron’s employer, but, rather, which entity is legally responsible for payment of a money judgment rendered against the Monroe County Probate Court. hi As the Supreme Court observed in Grand Trav erse Co v Michigan, supra at 474, "the courts have always been regarded as part of state govern' ment.” In Kell v Johnson, supra, which was relied upon by Judge Colombo in this case, an employee of the 88th District Court sued the district court and its presiding judge in his official capacity for wrongful discharge. This Court, id. at 564-565, ruled that the case properly belonged in the Court of Claims because the state would be primarily responsible for payment of any judgment. The exclusive jurisdiction of the Court of Claims encompasses all claims against the state and its instrumentalities for money damages. By statute, the "district control unit” (i.e., the 88th Judicial District) is responsible for specific statutory operating costs. See MCL 600.8101 et seq.;.MSA 27A.8101 et seq. Because there is no statutory obligation for the district control unit to pay a judgment, we agree with the trial court that the state would be primarily responsible for a judgment, if any, which plaintiff may obtain against defendant district court or defendant district court judge in his official capacity. See Judges of the 74th Judicial Dist v Bay Co. Thus, we find no error in the trial court’s determination that plaintiff’s case should be transferred to the Court of Claims. [Citation omitted.] The appellant probate court attempts to distinguish Kell on two different grounds. First, it contends that the holding in Kell is dicta. It isn’t. A reading of Kell discloses that this Court’s statement, id. at 565, that "the state would be primarily responsible for a judgment” was essential to its conclusion that the case belonged in the Court of Claims. Therefore, the statement is not dicta. Roberts v Auto-Owners Ins Co, 422 Mich 594, 597-598; 374 NW2d 905 (1985). The Monroe County Probate Court also contends that Kell is distinguishable because "[u]nlike district courts, probate courts have no responsibility for statutory operating costs.” With respect to district courts, MCL 600.8104; MSA 27A.8104 establishes "district control units,” which are defined as either the county, city, or township, depending on where the district court is located, and the statute provides that "a district control unit shall be responsible for maintaining, financing, and operating the court only within its political subdivision.” A similar provision is not contained within the statutes governing the administration of the probate courts. MCL 600.801 et seq.; MSA 27A.801 et seq. However, the Legislature has explicitly allocated the burden of financing various aspects of the probate court to the local counties. See, e.g., MCL 600.817; MSA 27A.817 (county responsible for "all books, printed blanks and other stationary necessary for keeping the records in the office of the judge of probate, and all furniture, equipment, and supplies necessary for equipping and maintaining the office”); MCL 600.821(2); MSA 27A.821(2) (county responsible for payment of a portion of each probate judge’s salary); MCL 600.829(3); MSA 27A.829(3) (county responsible for compensation of visiting judges); MCL 600.833; MSA 27A.833 (county responsible for compensation of probate register); MCL 600.835; MSA 27A.835 (county responsible for payment of compensation and expenses of official court stenographers). Just as in Kell with respect to district courts, there is no statutory obligation for a county to assume responsibility for payment of a money judgment rendered against a probate court. In Grand Traverse Co, supra, our Supreme Court recognized that, while courts have always been regarded as part of state government, they have operated historically on local funds and resources, and that the principle of local funding of most expenses continues today as a fair way of apportioning public expenses, but that the Legislature has stopped short of placing the entire burden of court financing on local funding units. As discussed previously, however, in Employees & Judge of the Second Judicial Dist Court v Hillsdale Co, 423 Mich 705, 720-722; 378 NW2d 744 (1985), our Supreme Court limited the local funding unit’s obligation to pay funds beyond those appropriated to those funds that are necessary to enable the court to perform a statutory function. It follows, therefore, that the funding obligation of a local funding unit extends only to the provision of those funds that are "necessary to the performance [by the court] of its statutorily mandated function.” Id. at 722. Payment of a money judgment is not a statutory function of the probate court. Thus, because there is no statutory obligation for the county to pay a money judgment against the probate court, and because payment of a money judgment by the probate court is not a statutory function of the court, we believe the lower court did not err in ruling that the holding in Kell may properly be extended to the facts of this case so as to require the conclusion that the state is primarily responsible for the money judgment against the Monroe County Probate Court. We also agree with the trial court that common-law indemnification is inapplicable and inappropriate here. The right to common-law indemnification is based on the equitable principle that where the wrongful act of one party results in another being held liable, the latter party is entitled to restitution. Neither the county nor the probate court engaged in any wrongdoing, but was, at most, a passive participant in what occurred. Affirmed. This action was filed in the Monroe Circuit Court. Judge Colombo, a Wayne Circuit judge, was appointed to act as a visiting Monroe Circuit judge because all the other Monroe Circuit judges had disqualified themselves because of their association with defendant James Seitz, a former Monroe County Probate Court judge. Cindy Cameron was formerly employed as Judge Seitz’ judicial secretary. She resigned her position in 1990 when Judge Seitz became hostile toward her shortly after she announced her intention to marry plaintiff Lawrence Cameron. Judge Seitz was removed from his judicial office in 1993 for judicial misconduct involving, in part, his relationship with, and conduct toward, Cindy Cameron. See In re Seitz, 441 Mich 590, 604-611; 495 NW2d 559 (1993).

Freenezetter Ashford vs. Massachusetts Bay Transportation Authority & others. Suffolk. October 3, 1995. December 26, 1995. Present: Liacos, C.J., Abrams, Lynch, Greanby, & Fried, JJ. Practice, Civil, Interlocutory appeal, Injunctive relief. Appeals Court, Concurrent jurisdiction, Appeal from order of single justice, Direct appellate review by the Supreme Judicial Court. Supreme Judicial Court, Jurisdiction. Injunction. Discussion of the interlocutory review procedures set forth in G. L. c. 231, § 118. [565-568] This court dismissed the complaint of a litigant who did not follow the procedures set forth in G. L. c. 231, § 118, first and second pars., in Mass. R. A. P. 6 (a), or in G. L. c. 211 A, § 10, in seeking injunctive relief or in seeking review of the denial of her request for injunctive relief. [568] This court stated that henceforth sanctions may be imposed for a litigant’s or attorney’s improper appeal. [568-569] Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 28, 1994. The case was heard by O’Connor, J. Sanford A. Kowal for the plaintiff. Sandra DeSantis for Massachusetts Bay Transportation Authority & others. John McMahon, for Local Division 589, Amalgamated Transit Union & another, was present but did not argue. Local Division 589, Amalgamated Transit Union; Thomas McGary; Alice McLaughlin; and Richard Murphy. Abrams, J. The plaintiff, Freenezetter Ashford, appeals from the denial by a single justice of this court of her request for injunctive relief. Relying on G. L. c. 231, § 118, first and second pars. (1994 ed.), and G. L. c. 231, § 112 (1994 ed.), Ashford appealed to the Supreme Judicial Court for Suffolk County (single justice session) after a single justice of the Appeals Court denied her motion requesting that the Massachusetts Bay Transportation Authority (MBTA) be ordered to reinstate her as a bus driver. For the reasons stated below, we conclude that this appeal should be dismissed. 1. Facts. On December 14, 1992, Ashford was terminated from her job as a bus driver with the MBTA after the MBTA investigated an incident in which she allegedly assaulted another employee. According to the MBTA, Ashford was terminated for four violations of MBTA rules and for her unsatisfactory disciplinary record. Ashford filed a complaint in the Superior Court against the. MBTA, alleging racial discrimination and violations of 42 U.S.C. §§ 1981, 1983, 1985; Title VII of the Civil Rights Act of 1963; G. L. c. 151B (1994 ed.); G. L. c. 93, § 102 (1994 ed.); and Massachusetts common law. She also filed a complaint against Local Division 589, Amalgamated Transit Union, for violation of its duty of fair representation and for failure to take her grievance to arbitration. She also sought damages from three individuals involved in her discharge. In the Superior Court, Ashford moved for a preliminary injunction ordering the MBTA to reinstate her. She asserted that the loss of her job was an irreparable injury, because, due to the delay inherent in litigation, she could not be adequately compensated by any future damage award. Ashford therefore concluded that she had no adequate remedy at law. A Superior Court judge denied the motion, determining that Ashford had not proved a likelihood of success on the merits and that she had an adequate remedy at law. Ashford en- tered a complaint pursuant to G. L. c. 231, §§ 118 and 112, in this court seeking the grant of the preliminary injunction that had been denied in the Superior Court. The clerk correctly transferred the case to the Appeals Court, and a single justice of the Appeals Court denied Ashford’s request for relief. Ashford then appealed to a single justice of this court. That was error. 2. Procedure. It is settled that absent “special authorization,” Cappadona v. Riverside 400 Function Room, Inc., 372 Mass. 167, 169 (1977), “an appellate court will reject attempts to obtain piecemeal review of trial rulings that do not represent final dispositions on the merits.” R.J.A. v. K.A.V., 34 Mass. App. Ct. 369, 372 (1993). General Laws c. 231, § 118, provides such authorization in a narrow range of cases. The first and second paragraphs of § 118 describe two distinct interlocutory procedures. See Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615 (1980); Demoulas Super Mkts., Inc. v. Peter’s Mkt. Basket, Inc., 5 Mass. App. Ct. 750, 752 n.3. (1977). The first paragraph allows a litigant to petition the appropriate appellate court. The “appropriate appellate court” is the court — either this court or the Appeals Court — “in which any ultimate appeal of the completed case would have to be entered.” Foreign Auto Import, Inc. v. Renault Northeast, Inc., 367 Mass. 464, 470 (1975). The Appeals Court is the appropriate appellate court if it has concurrent jurisdiction with this court. G. L. c. 211 A, §§ 1, 10 (1994 ed.). Commonwealth v. Friend, 393 Mass. 310, 313 (1984). See Appeals Court Rule 2:01 (1995). Generally, the Appeals Court has concurrent jurisdiction over matters arising in Superior Court. G. L. c. 211 A, § 10. In a case like this, the petition referred to in § 118, first par., is a pleading (complaint) submitted to a single justice of the appropriate court requesting injunctive relief. Foreign Auto Import, supra at 469-470. The single justice “enjoys broad discretion to deny the petition, or to ‘modify, annul or suspend the execution of the [trial court’s] interlocutory order,’ ... or, finally, to report the request for relief to the appropriate appellate court.” Packaging Indus. Group, supra at 614, quoting Rollins Envtl. Servs., Inc. v. Superior Court, 368 Mass. 174, 181 (1975). Accord Gibbs Ford, Inc. v. United Truck Leasing Corp., 399 Mass. 8, 10 n.8 (1987). This authority includes the power to grant an injunction that has been denied in the Superior Court. See Edwin R. Sage Co. v. Foley, 12 Mass. App. Ct. 20, 22-25 (1981). An Appeals Court single justice’s grant of injunctive relief is immediately appealable to a panel of the Appeals Court. Nabhan v. Selectmen of Salisbury, 12 Mass. App. Ct. 264, 269 (1981). So too, the order of a single justice of this court granting injunctive relief is immediately appealable to this court. See Rollins Envtl. Servs., Inc. v. Superior Court, 368 Mass. 174, 181 (1975). The denial of injunctive relief is not reviewable “unless the single justice has reported his action to the full court or has allowed a petition requesting interlocutory appellate review.” Carista v. Berkshire Mut. Ins. Co., 394 Mass. 1009, 1009-1010 (1985), quoting Corbett v. Kargman, 369 Mass. 971, 971-972 (1976). Rollins Envtl. Servs., Inc., supra at 181. Nabhan, supra at 266. The second paragraph of G. L. c. 231, § 118,allows a litigant a direct appeal from the order of the trial judge granting or denying injunctive relief. See Packaging Indus. Group, supra at 613 (“We also conclude, as a matter of Massachusetts practice, that appeals pursuant to G. L. c. 231, § 118, second par., properly lie to the Appeals Court, or, in an appropriate case, to this court, rather than to a single justice of either court”); Gibbs Ford, supra at 10 n.8. See also Demoulas Super Mkts., supra at 751-752 & n.3 (“the procedure for taking an appeal [pursuant to § 118, second par.] ... is precisely the same as that for taking an appeal from a final judgment”). After an appeal under G. L. c. 231, §118, second par., is properly entered in the Appeals Court, the litigant has twenty days to petition this court for direct appellate review. See G. L. c. 211 A, § 10 (A); Mass. R. A. P. 11, as amended, 378 Mass. 938 (1979). Although the first and second paragraphs of G. L. c. 231, § 118, offer distinct avenues of relief, see Packaging Indus., supra at 615, a party taking an appeal from the denial of a request for injunctive relief pursuant to the second paragraph also may seek temporary relief, available at the discretion of the single justice, pursuant to the first paragraph. Id. at 614. Edwin R. Sage Co. v. Foley, supra at 22, 24. See Demoulas Super Mkts., supra at 754 (if relief from full court pursuant to § 118, second par., is proper, relief pursuant to § 118, first par., from single justice is an available alternative). Alternatively, a litigant may, pending appeal, seek temporary relief pursuant to Mass. R. A. P. 6 (a), as amended, 378 Mass. 930 (1979), which provides in pertinent part: “In civil cases, an application ... for an order suspending, modifying, restoring or granting an injunction during the pendency of an appeal . . . may be made to the appellate court or to a single justice . . . .” Ashford’s complaint pursuant to G. L. c. 231, § 118, first par., was heard and denied by a single justice of the Appeals Court. Absent a report, that decision may not be reviewed until the entire case is ripe for review. Nabhan, supra at 266. Ott v. Preferred Truck Leasing, Inc., 9 Mass. App. Ct. 875, 876 (1980). The single justice did not, however, dispose of Ashford’s appeal pursuant G. L. c. 231, § 118, second par., because that appeal lay directly to the Appeals Court. Ash-ford could have asked the single justice to expedite that appeal or to grant relief (pursuant to either G. L. c. 231, § 118, first par., or Mass. R. A. P. 6 [a]), pending that appeal. After entering her appeal in the Appeals Court, Ash-ford could have applied to this court for direct appellate review. G. L. c. 211 A, § 10. Mass. R. A. P. 11. Ashford followed none of these procedures. Instead, after the Appeals Court single justice denied her request for relief, Ashford appealed directly to a single justice of this court. Neither G., L. c. 231, § 118, nor our caselaw, permits a civil litigant to proceed from one single justice session to another in this manner. Therefore, neither Ashford’s complaint pursuant to G. L. c. 231, § 118, first par., nor her appeal pursuant to G. L. c. 231, § 118, second par., are properly before us. We take this opportunity to remind litigants and their attorneys that, “[bjecause of the delay and wastework which improper appeals necessarily entail, the perpetrator [either litigant or attorney] should expect not only dismissal of his appeal but also the possibility of double costs, penalty interest, or damages under the provisions of Mass. R. A. P. 25, as amended, 378 Mass. 925 (1979), [of G. L. c. 211 § 10,] of G. L. c. 211A, § 15, or of G. L. c. 231, §§ 6F or 6G.” Mancuso v. Mancuso, 10 Mass. App. Ct. 395, 402 (1980). Accord Pollack v. Kelly, 372 Mass. 469, 477 (1977) (imposing double costs); Matter of a Grand Jury Subpoena, 30 Mass. App. Ct. 462, 463 (1991), S.C., 411 Mass. 489 (1992). Because we have not reviewed procedure under G. L. c. 231, §118, recently, we do not impose sanctions in this case. Appeal dismissed. Initially, Ashford filed a complaint against the MBTA with the Massachusetts Commission Against Discrimination (MCAD). Pursuant to G. L. c. 151B, § 9 (1994 ed.), the MCAD dismissed the complaint at Ashford’s request. “[W]hen asked to grant a preliminary injunction, the judge initially evaluates in combination the moving party’s claim of injury and chance of success on the merits. If the judge is convinced that failure to issue the injunction would subject the moving party to a substantial risk of irreparable harm, the judge must then balance this risk against any similar risk of irreparable harm which granting the injunction would create for the opposing party. What matters as to each party is not the raw amount of irreparable harm the party might conceivably suffer, but rather the risk of such harm in light of the party’s chance of success on the merits. Only where the balance between these risks cuts in favor of the moving party may a preliminary injunction properly issue.” Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 617 (1980). Accord Planned Parenthood League of Mass., Inc. v. Operation Rescue, 406 Mass. 701, 710 (1990). At oral argument before this court, the focus was on the adequacy of Ashford’s remedy at law. Ashford’s reliance on G. L. c. 231, § 112 (1994 ed.), is misplaced. Section 112 sets forth the procedure for a report by the single justice. The single justice did not report this matter and thus § 112 is not applicable. Ashford did not seek relief pursuant to G. L. c. 211, § 3 (1994 ed.). General Laws c. 231, § 118, first par., provides, in pertinent part: “A party aggrieved by an interlocutory order of a trial court justice in the superior court . . . may file ... a petition in the appropriate appellate court seeking relief . . . .” Ashford’s assertion that Edwin R. Sage Co. v. Foley, 12 Mass. App. Ct. 20 (1981), stands for a contrary proposition is not correct. In Sage, unlike this case, the single justice authorized the litigant to pursue an interlocutory appeal. Id. at 21. General Laws c. 231, § 118, second par., provides, in pertinent part: “A party aggrieved by an interlocutory order of a trial court justice in the superior court . . . granting [or] refusing ... a preliminary injunction, . . . may appeal therefrom to the appeals court . . . .” In criminal cases, where the defendant has been convicted and sentenced, a motion to stay sentence may be heard by a single justice of this court after being denied by a single justice of the Appeals Court. Commonwealth v. Allen, 378 Mass. 489, 496-497 (1979).

Marilyn Jancey & others vs. School Committee of Everett. Middlesex. September 13, 1995. December 12, 1995. Present: Liacos, C.J., Wilkins, Lynch, & O’Connor, JJ. Massachusetts Equal Pay Act. Federal Equal Pay Act. Statute, Construction. School and School Committee, Compensation of personnel, Cafeteria worker, Custodian. Anti-Discrimination Law, Sex. Massachusetts Tort Claims Act. Words, “Comparable,” “Like,” “Equal work,” “Wages." Discussion of the purpose and legislative history of the Massachusetts equal pay act, G. L. c. 149, § 105A, and the meaning of the term “comparable” found therein. [486-487, 488-489] Discussion of the differences in analysis of the term “comparable” under the Massachusetts equal pay act, G. L. c. 149, § 105A, and the Federal equal pay act, 29 U.S.C. § 206 (d) (1). [487-488, 489] This court concluded that a two-part analysis is required under the Massachusetts equal pay act, G. L. c. 149, § 105A, for purposes of making a determination whether the work of two jobs is “comparable” such that equal pay is required: first, whether the substantive content, that is, the duties of the jobs have “important common characteristics” and, then, whether the two positions entail comparable skill, effort, responsibility and working conditions; an action asserting claims under the act was remanded for the application of this analysis to the facts of the case. [489-490] Discussion of cases and statutes construing the term “wages.” [490-492] This court concluded that the terms “wages” and “wage rates” used in the Massachusetts equal pay act, G. L. c. 149, § 105A, should be construed broadly to include fringe benefits or other remunerations paid to the workers in question, and on remand of an action asserting claims under that statute, the judge was to consider evidence of such benefits and remunerations. [493] This court concluded that, to establish a violation of the Massachusetts equal pay act, G. L. c. 149, § 105A, a plaintiff need not prove that the employer in question intended to discriminate against the plaintiff on the basis of sex. [493-495] General Laws c. 15IB was not the exclusive remedy for plaintiffs’ claims based on unequal pay where the antirepeal language of § 9 of that statute was applicable to allow claims under G. L. c. 149, § 105A, the Massachusetts equal pay act, in a case where no procedure under G. L. c. 15IB, § 5, was “pending” as to any acts declared unlawful under G. L. c. 151B, § 4. [495-499] The definitions of employer and employee appearing in G. L. c. 149, § 1, encompass employers and employees in the public sector as well as the private sector. [499-500] The Massachusetts tort claims act, G. L. c. 258, was not applicable to nontort claims of wage discrimination in violation of G. L. c. 149, § 150A, brought against a public employer. [500-501] Civil action commenced in the Superior Court Department on June 9, 1989. The case was heard by Gordon L. Doerfer, J. The Supreme Judicial Court granted an application for direct appellate review. Juliane Balliro {Frank Mondano with her) for the defendant. Ann M. Gilmore {Lee D. Goldstein with her) for the plaintiffs. Harold L. Lichten & Robert S. Mantell, for National Employment Lawyers Association, Massachusetts Chapter, amicus curiae, submitted a brief. Ida Corriere and others similarly situated. A motion for class certification was allowed in the Superior Court. Lynch, J. The plaintiffs, female cafeteria workers in the Everett public schools, filed a complaint against their employer, the school committee of Everett (school committee), alleging violations of the Massachusetts antidiscrimination law, G. L. c. 15IB (1994 ed.), the Massachusetts equal pay act, G. L. c. 149, § 105A (1994 ed.) (MEPA), the Federal equal pay act, 29 U.S.C. § 206 (d) (1) (1988) (FEPA), and State and Federal constitutional provisions. The plaintiffs amended their complaint in December, 1989, to add a claim under the Massachusetts equal rights act, G. L. c. 93, §§ 102-103 (1994 ed.). The case proceeded to trial solely on the MEPA claim. The trial was bifurcated and on the liability phase the judge ruled that the school committee had violated MEPA by paying the female cafeteria workers a lower wage than the male custodians. In reaching this conclusion he found that “the work of cafeteria workers and custodians required substantially comparable skills, efforts, responsibilities, and working conditions.” It followed, then, the judge decided, that “[t]he work of the women employed ... as cafeteria workers is therefore of comparable character to the work of the men employed as Everett School custodians.” On the remedy phase of the case the judge awarded the plaintiffs a total of $1,041,062.11. We granted the school committee’s application for direct appellate review and now vacate and remand for additional proceedings. We summarize the most pertinent findings as follows: 1. On average, Everett public school custodians were paid roughly twice what cafeteria workers were paid. 2. All the cafeteria workers have always been women and all the custodians have always been men. 3. No prior experience, training, or education was required for the positions of Everett school custodians or cafeteria workers. 4. Both cafeteria workers and custodians: (a) are occasionally exposed to extremes of heat and cold; (b) are occasionally exposed to various cleaning agents necessary to perform their cleaning and sanitizing functions; (c) are exposed to and occasionally suffer from lifting injuries, cuts, slips, and falls. 5. The skill required to perform the duties of Everett school cafeteria workers is comparable to the skill required to perform the duties of Everett school custodians. 6. The over-all effort of the cafeteria workers, including physical and mental exertion, is comparable to the over-all effort of the custodians. 7. The responsibility or importance of the duties of the cafeteria workers is comparable to the responsibility or importance of the duties of the custodians. 8. The working conditions of the cafeteria workers are comparable to the working conditions of the custodians. We begin our analysis with the language of G. L. c. 149, § 105A, which provides, in relevant part: “No employer shall discriminate in any way in the payment of wages as between the sexes, or pay any person in his employ salary or wage rates less than the rates paid to employees of the opposite sex for work of like or comparable character or work on like or comparable operations; provided, however, that variations in rates of pay shall not be prohibited when based upon a difference in seniority.” The judge found that the school committee paid the female cafeteria workers salary or wage rates less than the rates paid to the male custodians for work of like or comparable character. The school committee raises a number of challenges to the judge’s rulings on both liability and remedy. We address them below: 1. Comparable work standard. Because we conclude that the judge applied the wrong standard in deciding that the work of the two groups was of comparable character, we turn to that issue first. The word “comparable” is not defined in the statute; we look, therefore, at both its literal meaning and at the purpose and legislative history of the statute. See Massachusetts Hosp. Ass’n v. Department of Medical Sec., 412 Mass. 340, 346 (1992). Massachusetts was the first State to adopt legislation requiring equal pay for comparable work. St. 1945, c. 584, § 3, approved July 10, 1945. In its original form the statute required equal pay for “work of comparable character or work on comparable operations.” No exceptions were enumerated. The statute was enacted against the backdrop of regulations of the National War Labor Board in force during World War II. See County of Washington v. Gunther, 452 U.S. 161, 185 n.l (1981) (Rehnquist, J., dissenting). In 1947, the Legislature rewrote the statute and used the phrase “work of substantially the same character or work on substantially the same operations” (emphasis supplied). St. 1947, c. 565. The revision also provided numerous exceptions permitting disparities in wages between the sexes based on “difference in seniority, experience, training, skill or ability, or difference in duties or services performed whether regularly or occasionally or difference in availability for other operations, or any other reasonable differentiation except difference in sex.” Id. In 1951, the Legislature again rewrote the statute by reinstating the term “comparable” and adding the term “like” to provide equal pay for “work of like or comparable character or work on like or comparable operations.” St. 1951, c. 180. In addition, the Legislature eliminated all but one of the exceptions, retaining only the exception for a wage differential based on seniority. Id. The judge concluded that “work of like or comparable character” is a broader concept and a more inclusive term than “equal work.” He based this conclusion on the legislative history of MEPA, the legislative history of FEPA and on interpretations of the Oregon comparable work law, Or. Rev. Stat. § 652.220 (1987). The judge ruled that the test for determining whether the work of the cafeteria workers and the custodians was “of like or comparable character” was whether the work required comparable skill, effort, responsibility, and working conditions. These are the factors used in FEPA and other similar statutes. See 29 U.S.C. § 206 (d) (1) (“equal work on jobs, the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions”), and Me. Rev. Stat. Ann. tit. 26, § 628 (1988) (“comparable work on jobs which have comparable requirements relating to skill, effort and responsibility”). The judge then determined that, since the skill, effort, responsibility, and working conditions of the two positions were comparable, the over-all character of the work was comparable within the meaning of the statute. We conclude that the judge’s analysis was improper. While skill, effort, responsibility, and working conditions are relevant factors in determining whether two positions are comparable, the inquiry does not end there. The Federal law differs significantly from our statute by requiring that the rate of pay be for equal work. It is within the framework established by Federal law that FEPA requires that jobs be evaluated in terms of skill, effort, responsibility, and working conditions. In contrast MEPA does not specify a particular set of factors to be used in determining whether work is comparable rather than equal. Furthermore, the Federal statute contains several affirmative defenses or exceptions that take pay differentials outside of its ambit. In view of these differences, we do not follow slavishly the Federal approach, but rather we examine the meaning of the word “comparable” in light of our own history and experience. The legislative history of MEPA indicates that, in 1951, the Legislature struck the 1947 version of the statute and substituted the language “like or comparable” for the words “substantially the same.” In view of this legislative history and interpretations of the analogous Oregon statute we accept the judge’s reasoning that “comparable” is a more inclusive term than “equal.” As the Oregon Court of Appeals noted, “[wjork of ‘comparable character’ is broader than ‘equal work.’ ‘Comparable’ does not require equality but that two items have important common characteristics.” Bureau of Labor & Indus. v. Roseburg, 75 Or. App. 306, 309 n.2 (1985). The historical context into which MEPA was enacted is also relevant. The original statute, which contained the word “comparable,” was added in 1945 at a time when the National War Labor Board required equal pay for comparable work. As two recent commentators noted: “For the most part ... the sex-related wage claims considered by the War Labor Board involved an ‘equal pay for equal work’ doctrine, that is, equal payment for the same tasks on jobs presently or formerly performed by males. When comparisons of dissimilar jobs were requested, the Board generally presumed that the existing wage rates were correct and referred the cases to the disputing parties for negotiation, with the suggestion or order that a job evaluation system be instituted to consider the worth of the job on the basis of content, irrespective of the sex of any incumbent. Generally, however, the Board did not attempt to establish the relative worth of dissimilar jobs and, as the General Electric and Westinghouse decision [28 War Lab. Rep. 666 (1945)] indicates, it found the comparison task beyond its capabilities.” R.E. Williams & D.S. McDowell, The Legal Framework, Comparable Worth: Issues and Alternatives 197, 211 (E.R. Livernash, ed. 1980). Thus, the historical context provides little support for applying the term “comparable” to positions with dissimilar substantive content. See generally General Elec. Co. & Westinghouse Elec. Co., supra. Ignoring the content of the specific jobs and focusing only on skill, effort, responsibility, and working conditions of the positions only makes sense where the standard is “equal pay for equal work” as in FEPA. Under that standard, the term “equal work” supplies the requirement of similar job content. Under the more inclusive “comparable work” standard, on the other hand, jobs meeting the factors of the Federal statute could still differ significantly in job content. It is difficult to see how jobs could have “comparable character” within the meaning of the statute, if their substantive job content was not also comparable. Furthermore a standard which required equal pay for jobs which differ significantly in their substantive content would likely impose on employers an unfair burden and produce inconsistent and confusing results. We conclude, therefore, that in applying the broader “comparable” standard, the statute requires a two-part analysis. First, the judge must determine whether the substantive content of the jobs is comparable, that is, whether the duties of the jobs have “important common characteristics.” Bureau of Labor & Indus. v. Roseburg, supra. To ignore job content when applying the “comparable” standard is to attempt the impossible task of comparing disparate concepts. In other words two positions that are so dissimilar in their substantive content that a reasonable person would regard them as categorically separate are not “comparable.” It is only when a determination is made that the jobs are comparable in substantive content, that the second inquiry is appropriate — whether the two positions entail comparable skill, effort, responsibility, and working conditions. If the answer to both inquiries is “Yes,” then employees in the two positions must receive equal pay. 2. Wages. In determining that the cafeteria workers were paid a lower wage, the judge did not consider evidence regarding fringe benefits, including health insurance and other types of remuneration. Instead, his findings regarding the wage issue focus exclusively on the base hourly pay received by the employees. The school committee argues that the judge’s failure to consider other forms of remuneration, including insurance and other benefits and not just the base hourly pay, was error. We agree. The terms “wages” and “wage rate” are not defined in the statute. Neither are they defined in any interpretive regulation or other administrative materials. Therefore we look to other sources for determining how to construe the term in the context of a remedial statute such as MEPA. See Commissioner of Revenue v. AMIWoodbroke, Inc., 418 Mass. 92, 96-97 (1994); Concord Rod & Gun Club, Inc. v. Massachusetts Comm’n Against Discrimination, 402 Mass. 716, 721 (1988). “As the statute does not effectively define [the terms ‘wages’ and ‘wage rate’], we have said that the Legislature should be supposed to have adopted the common meaning of the word, as assisted by a consideration of the historical origins of the enactment.” Westinghouse Broadcasting Co. v. Commissioner of Revenue, 382 Mass. 354, 357 (1981), quoting First Data Corp. v. State Tax Comm’n, 371 Mass. 444, 447 (1976). Black’s Law Dictionary 1579 (6th ed. 1990) defines “wages:” “Every form of remuneration payable for a given period to an individual for personal services, including salaries, commissions, vacation pay, dismissal wages, bonuses and reasonable value of board, rent, housing, lodging, payments in kind, tips, and any other similar advantage received from the individual’s employer or directly with respect to work for him. . . . Term should be broadly defined and includes not only periodic monetary earnings but all compensation for services rendered without regard to manner in which such compensation is computed. . . .” (Citations omitted.) General Laws c. 151 A, § 1 (s) (A) (1994 ed.), adopts similar language for its definition of wages in the employment security context: “[E]very form of remuneration of an employee subject to this chapter for employment by an employer, whether paid directly or indirectly, including salaries, commissions and bonuses, and reasonable cash value of board, rent, housing, lodging, payment in kind and all remuneration paid in any medium other than cash [with exceptions].” We also look to the analogous Federal statute for guidance. See Tate v. Department of Mental Health, 419 Mass. 356, 361 (1995). FEPA states in relevant part: “No employer . . . shall discriminate . . . between employees on the basis of sex by paying wages to employees ... at a rate less than the rate at which he pays wages to employees of the opposite sex ... for equal work . . . .” Compare MEPA (“[n]o employer shall . . . pay any person . . . salary or wage rates less than the rates paid to employees of the opposite sex . . .”). Regulations promulgated pursuant to FEPA also reflect the Black’s Law Dictionary definition of “wages:” “Under [FEPA], the term ‘wages’ generally includes all payments made to [or on behalf of] an employee as remuneration for employment. The term includes all forms of compensation irrespective of the time of payment, whether paid periodically or deferred until a later date, and whether called wages, salary, profit sharing, expense account, monthly minimum, bonus, uniform cleaning allowance, hotel accommodations, use of company car, gasoline allowance, or some other name. Fringe benefits are deemed to be remuneration for employment” (emphasis added). 29 C.F.R § 1620.10 (1995). The United States District Court for the Southern District of Georgia recently construed these definitions in Bertotti v. Philbeck, Inc., 827 F. Supp. 1005 (S.D. Ga. 1993). The plaintiff in Bertotti was a female hotel restaurant worker whose monthly salary was less than those of two male coworkers. The defendant employer argued that the plaintiff did not receive a lower wage than the male workers because she received health insurance benefits and they did not. When added together, the value of her salary and health insurance benefits exceeded the total remuneration her uninsured male coworkers received. The court, looking at the definition of “wages” contained in 29 C.F.R. § 1620.10, determined that the plaintiff was paid a higher wage than her male coworkers. Id. at 1010. The court held that the plaintiff did not have a valid claim under FEPA and granted summary judgment for the employer. Id. Bertotti highlights one of the sound policy reasons for construing the terms “wages” and “wage rate” broadly. Such a construction protects both employers and employees. If we construe the term narrowly to exclude insurance and other benefits, some employees, such as the plaintiff in Bertotti, would have valid claims even though they were receiving total compensation equal to or greater than that of their coworkers of the opposite sex. Such a result would punish employers for deciding to allocate reso

Mary E. Garrity vs. United Airlines, Inc. Suffolk. May 2, 1995. August 2, 1995. Present: Liacos, C.J., Lynch, O’Connor, & Greaney, JJ. Federal Rehabilitation Act. Anti-Discrimination Law, Prima facie case, Burden of proof, Termination of employment, Handicap. Employment, Discrimination, Termination. Practice, Civil, Summary judgment. Words, “Otherwise qualified.” On a claim of employment discrimination on account of handicap, in violation of G. L. c. 15IB, the judge correctly entered summary judgment in favor of the defendant where the defendant demonstrated that the plaintiff could not reasonably expect to prove that, in spite of her handicap, she was otherwise qualified for the position she had held. [59-63] On a claim for breach of an employment contract providing that employment would be terminated only for cause, summary judgment was correctly entered for the defendant where the plaintiff could not reasonably expect to prove that her employment was terminated without cause. [63] Civil action commenced in the Superior Court Department on July 30, 1990. The case was heard by Patti B. Saris, J., on a motion for summary judgment. The Supreme Judicial Court on its own initiative transiferred the case from the Appeals Court. Susan F. Horwitz for the plaintiff. Jay M. Presser for the defendant. O’Connor, J. In her complaint, filed in the Superior Court, the plaintiff, Mary E. Garrity, alleges that the defendant, United Airlines, Inc. (United), fired her from her position as customer service representative. Garrity alleges in one count that the firing constituted handicap discrimination in violation of G. L. c. 15IB (1994 ed.), and in a second count she alleges that the firing was a violation of her employment contract. A judge allowed United’s motion for summary judgment as to both counts, and Garrity appealed. We transferred the case here on our own initiative. We affirm. In her memorandum of decision relative to the motion for summary judgment, the judge set forth the following facts, which are taken from the summary judgment materials, see Mass. R. Civ. P. 56, 365 Mass. 824 (1974), and appear to be undisputed. “Garrity began her employment with United in 1974 in a position covered by a collective bargaining agreement. In 1987 she took the position of Customer Service Representative (“CSR”). ... At the time of her initial employment in 1974, she signed an application which included ‘Terms and Conditions of Employment.’ Within that section, United states it agrees to employ plaintiff, and then it states, inter alia: ‘The employee shall devote his entire working time and his best efforts to the discharge of his duties and to the promotion of the interests of the employer, and shall comply with the company’s rules and regulations in effect from time to time.’ “United’s regulations state: ‘These regulations do not constitute a contract of employment and are subject to unilateral change by the company.’ Defendant unilaterally altered the regulations and provided plaintiff with copies. “Plaintiff received a copy of the company handbook in the internal company mail, did not sign it, and never read it during the course of her employment at United. She was not involved in any negotiations that went into the handbook which states: ‘This handbook does not constitute a contract of employment.’ “Neither the regulations nor the handbook specify any term of employment. The regulations do provide a grievance procedure. U “The events which led to Garrity’s termination occurred on January 27, 1990. At that time, Garrity was drinking on a daily basis. She was an alcoholic with a psychological addiction. As a result of her alcoholism, Garrity experienced many ‘black outs,’ but was able to hide her alcoholism from others. On that morning of January 27th, Garrity was assigned to work the international desk. As part of a promotion, she gave out packets containing chits to international passengers at the time of check-in: These chits could be exchanged on the flight for a free drink or headset. However, some of the passengers gave the chits back to Garrity. Rather than returning the chits to stock for later use, Garrity kept them for her personal use. Garrity thought she could take the chits because there was no company procedure for accounting for the chits if a customer returned them. Because of her addiction to alcohol, she was unable to resist the drink chits. “After her shift that morning, Garrity and another CSR, Karen Mathews (‘Mathews’), left for Hawaii. They were traveling to Honolulu via Chicago and Los Angeles. As United Airlines Employees they were traveling on pleasure passes which entitled them to travel at a reduced ratel Garrity took the chits with her and used them to purchase drinks on the flight. She became intoxicated and began drawing attention to herself and to the fact that she was a United Airlines employee. En route from Los Angeles to Honolulu, the flight attendants stopped serving her alcoholic beverages because of her behavior. “When Garrity arrived in Honolulu, she located a supervisor and filed a report that the flight attendants had failed to do a seat belt check upon the descent into Honolulu, resulting in a safety violation. The flight attendants also filed a report regarding Garrity’s behavior. They reported that Garrity demanded excessive service and attention. On one occasion, when a passenger wanted to take an empty seat in her row to smoke, she [Garrity] made a comment about ‘what a pain premiers [frequent fliers] are.’ She also went up to the bar and started complaining about how United ‘screws us.’ Garrity used airline jargon on these occasions, which indicated to the surrounding passengers that she was a United employee. “Garrity does not recall much of what happened on the Chicago-Los Angeles flight, and has no recollection of what occurred on the flight from Los Angeles to Honolulu. She believes that she blacked out, although she does not recall when she blacked out. On two prior occasions, one in the late 1970’s and the other in 1985, Garrity became intoxicated and misbehaved while traveling on pleasure passes which resulted in her pass privilege being suspended. However United did not rely on these prior incidents in its termination decision. <6 “Upon her return from Hawaii, Garrity met with her supervisor, Ellen Rizzo (‘Rizzo’) regarding the flight attendants’ reports. On February 5, 1990, the day after meeting with Rizzo, Garrity contacted United Employee Assistance Program (‘EAP’) seeking help for her alcohol problem. EAP referred her to Dr. Gofstein, who evaluated Garrity and diagnosed her as being an alcoholicé.[] “On February 22, 1990, a disciplinary hearing took place to decide disciplinary action based on Garrity’s failure to comply with United’s employee handbook, ‘Articles of Conduct . . . Your Responsibility’ in You and United, which [describes the following activities as misconduct]: “A. Page 48, # 5 — Unauthorized possession or removal of Company property or records or confidential information — or the property of employees, customers, or others with whom the Company does business. “B. Page 51, # 5 — Engaged in any conduct, whether on or off duty, which is or could be detrimental to the Company, or which could negatively affect the Company’s relationship with customers, travel agents, suppliers, employees or the public. “C. Page 52, # 13 — misconduct of employees and/or their eligibles while traveling on a pass or reduced fare. “Robert Thomas, the General Manager of Customer Services at Logan [Airport] presided at this hearing. Garrity’s attorney stated that Garrity had a drinking problem, that she had consulted with EAP and was receiving treatment for her alcoholism. “On February 23, 1990, Garrity was terminated from her employment for allegedly violating company policies by accepting ‘drink chits’ from customers, using those chits while flying on a United pass on Garrity’s off duty time and for becoming intoxicated while on these flights. Garrity filed an appeal through United’s grievance procedure which was heard by Gary Jefferson, Vice President of the Northeast Region, on March 13, 1990. Again in attendance was Garrity’s attorney Susan Horwitz, who was able to present Garrity’s position. However her termination was upheld. “On April 27, 1990 the appeal was heard by John Samolis, Vice President of Employee Relations and Mark S. Liberman, Vice President of Reservations. On May 11, 1990, United again upheld the termination.” In construing and applying the Commonwealth’s employment discrimination statute, G. L. c. 15IB, we are helped by case law construing the analogous Federal statute, § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1988). Tate v. Department of Mental Health, 419 Mass. 356, 361 (1995). Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 382-386 (1993). Appellate decisions in this jurisdiction and elsewhere have recognized a distinction between disparate “treatment” cases and cases involving disparate “impact.” Cox v. New England Tel. & Tel. Co., supra at 384-386. This is a disparate treatment case. “Typically, such cases involve alleged intentional discrimination resulting from racial, gender, or other social bias.” Id. at 385. To prove her claim of employment discrimination in violation of G. L. c. 15IB, a plaintiff in a case such as this must first establish a prima facie case by producing evidence that she is a handicapped person, that, in spite of her handicap she is qualified for the position from which she was fired, and that she was fired solely because of her handicap. Tate v. Department of Mental Health, supra at 361. See Cox v. New England Tel. & Tel. Co., supra at 383. Cf. Pushkin v. Regents of the Univ. of Colo., 658 F.2d 1372, 1385-1386 (10th Cir. 1981). Since this is an appeal from the allowance of the defendant’s motion for summary judgment, the question before us is whether the defendant, United, has demonstrated, by reference to material described in Mass. R. Civ. P. 56 (c), unmet by countervailing materials, that the plaintiff, Garrity, has no reasonable expectation of proving an essential element of her case. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). We conclude that United has made that demonstration. Based on the materials before her, the judge effectively concluded that Garrity could reasonably expect to prove that she was a handicapped person by reason of alcoholism and that she was fired solely because of that handicap. However, based on those materials, the judge also concluded that Garrity could not reasonably expect to prove that, in spite of her handicap, Garrity was qualified for the position of customer service representative. Because we agree with the judge on that matter (Garrity’s qualification for the position) we shall limit our discussion to that subject. The plaintiff in Little v. FBI, 1 F.3d 255 (4th Cir. 1993), had been a Federal Bureau of Investigation (FBI) agent for several years until the FBI terminated his employment following his being intoxicated one day while on duty. The termination notice to Little stated that he was terminated because of his “inability to conform to the FBI’s established standards that special agents must remain mentally and physically fit for duty at all times.” Id. at 257. Little sued and, pursuant to the FBI’s motion, a judge dismissed his claims, including his claim for violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 701-797b. The Court of Appeals affirmed. We set forth selected relevant statements in the court’s opinion: “At the heart of this appeal, the parties are sharply divided in their views of the reason for Little’s termination. The appellant alleged in his complaint and now asserts on appeal that his employment with the FBI was terminated because of his alcoholism. ... On the other hand, the appellee claims that Little was fired because he was intoxicated while on duty. In other words, the appellee maintains that Little was fired because of misconduct, not alcoholism. Indeed, in our view, the case turns on whether Little was terminated because of his alcoholism or because of his misconduct. Only if Little has alleged facts to support his claim that he was terminated because of his alcoholism has he stated a claim under the Rehabilitation Act. . . . [T]o be entitled to the protection of the Rehabilitation Act, the handicapped person must be ‘otherwise qualified.’ 20 U.S.C. § 794. It is settled that alcoholism is a handicapping condition within the meaning of the Act. Rodgers v. Lehman, 869 F.2d 253, 258 (4th Cir. 1989). “The phrase ‘otherwise qualified’ has been interpreted by the Supreme Court on several occasions. In Southeastern Community College v. Davis, 442 U.S. 397, 406 . . . (1979), the Supreme Court said that ‘[a]n otherwise qualified person is one who is able to meet all of a program’s requirements in spite of his handicap.’ In a more recent case, the Supreme Court revisited the issue and stated that ‘[i]n the employment context, an otherwise qualified person is one who can perform “the essential functions” of the job in question.’ [School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 n.17 (1987)]. Moreover, even if a handicapped employee is not able to perform the essential functions of this job, ‘the court must also consider whether any “reasonable accommodation” by the employer would enable the handicapped person to perform those functions.’ Id. at 287 n.17. . . . Finally, the employer must make reasonable accommodation for a handicapped employee unless reasonable accommodation would impose ‘undue hardship’ on the employer.” Little, supra at 257-258. The court in Little went on to discuss in some detail the agency regulations implementing the Rehabilitation Act, the provisions of the FBI’s Manual of Administrative Operations and Procedures, and several judicial opinions, and then said, “Based on the foregoing authority . . . and based on no lesser authority than common sense, it is clear that an employer subject to the Rehabilitation Act must be permitted to terminate its employee on account of egregious misconduct, irrespective of whether the employee is handicapped.” Id. at 258-259. The Little court concluded that the only permissible inference from the complaint was that Little was fired because of his conduct and not because of his handicap even though there was a causal connection between the two. In addition, the court concluded that, as a result, Little “was not ‘otherwise qualified’ to be an FBI special agent” and therefore fell “outside the protection of the Rehabilitation Act.” Id. at 259. “A disabled individual cannot be ‘otherwise qualified’ for a position if he commits misconduct which would disqualify an individual who did not fall under the protection of the statute. The Rehabilitation Act mandates nondiscrimination against disabled individuals; it does not waive basic prerequisites to service. . . . The Rehabilitation Act is designed to put individuals with disabilities on equal footing with non-disabled people in regards to the hiring, promotion, and discharge decisions of the federal government and its grantees. It is not designed to insulate them from disciplinary actions which would be taken against any employee regardless of his status.” Wilbur v. Brady, 780 F. Supp. 837, 840 (D.D.C. 1992). The courts’ reasoning with respect to the Rehabilitation Act in Little, supra, and Brady, supra, applies with equal force to the interpretation and application of G. L. c. 151B in the circumstances of the present case. Nothing in c. 151B suggests a legislative intent that a lower standard of qualifying conduct should apply to handicapped employees than applies to those without handicap. We follow the lead taken by the Court of Appeals for the Fourth Circuit, in Little v. FBI, when that court announced that a handicapped employee who engages in conduct significantly inimical to the interests of his employer and in violation of the employer’s rules is not an “otherwise qualified” person within the meaning of the Rehabilitation Act. We conclude that such a person is not a “qualified handicapped person” within the meaning of G. L. c. 151B and therefore is not entitled to the protection of that statute. We also are satisfied that the summary judgment material before the judge in this case clearly demonstrated Garrity’s conduct to be such that Garrity could not reasonably expect to prove that she was a “qualified handicapped person” entitled to c. 151B’s protection. Summary judgment on the count alleging handicap discrimination was properly entered. The other count in Garrity’s complaint is for breach of an alleged contract which provided that Garrity’s employment would be terminated only for cause. Based on our reasoning above, Garrity could not reasonably expect to prove that her employment was terminated without cause. United was entitled to summary judgment on both counts because United showed that Garrity has no reasonable expectation of proving that she was qualified for or entitled to continued employment. Judgment affirmed. In the statement of facts in her brief filed in this court, the plaintiff focuses on Dr. Gofstein’s observations as follows: “Dr. Gofstein explained during his deposition that the basis of this conclusion was that there was ‘a pattern of events that would occur where there would be some crisis, some difficulty in her life enabling the drinking, and it was clear that drinking and obsessing about drinking and preoccupation with drinking was very much a part of her behavior.’ Dr. Gofstein prepared a letter describing his evaluation of Garrity. In that letter, Dr. Gofstein explained that ‘[l]ike most alcoholics, Mary has lived a life of denial with regard to seeing alcohol as a problem. Because of her alcoholism she could no more be held responsible for use of drink chits than a cocaine addict could be expected to reject available cocaine, or a gambler to resist one last chance at restoring a financial loss.’ When questioned about this during his deposition Gofstein explained that there was ‘no question that Ms. Garrity was addicted to alcohol.’ He went on to explain that ‘addiction implies an irresistible compulsion . . .’ and that she was unable to resist the chits because she was addicted to alcohol. ‘It’s like putting the drink in her hand.’ ”

YORK v 50TH DISTRICT COURT Docket No. 161573. Submitted May 16, 1995, at Lansing. Decided July 25, 1995, at 9:10 a.m. Deanna York brought an action in the Oakland Circuit Court against the 50th District Court, the State of Michigan, and James K. Conway, claiming wrongful discharge and sex discrimination. The plaintiff alleged that when she transferred from her position as a clerk-typist for the 50th District Court to a position as a court reporter, Judge Richard E. Cunningham, in urging her to make the transfer, made promises of job security in the event that she ever ceased to be his court reporter; however, when Judge Cunningham retired in June 1988, Conway, the court administrator, first transferred her to another job and then discharged her in January 1989. The plaintiff further alleged that she had not been considered for the job of court warrant officer in July 1988 because she was a female, despite being qualified for that position, with more seniority and experience than the male employee who filled the position. The court, Denise Langford-Morris, J., granted summary disposition for the defendants. The plaintiff appealed. The Court of Appeals held: 1. There is no dispute that the plaintiff, as a court reporter, was an at-will employee. The plaintiff failed to allege any basis for a finding that she had a reasonable expectation of remaining permanently employed as a court reporter unless discharged for good cause shown. Indeed, implicit in the plaintiff’s allegation that Judge Cunningham had promised her other employment if she were no longer his court reporter is the suggestion that she had no reasonable expectation to believe that the position as a court reporter was other than at-will employment. 2. MCR 8.110(E)(3)(d) vests in the chief judge of a district court the power to hire and fire all court personnel other than another judge’s law clerk or secretary. Accordingly, any promise of Judge Cunningham of other permanent employment with the court was unenforceable to the extent that such employment would take place when he was no longer chief judge. Because the plaintiff’s claim of permanent employment arose after Judge Cunningham retired, the trial court properly granted summary disposition for the defendants on the basis of the failure to state a claim for which relief can be granted with respect to the claim of wrongful discharge. 3. Because the plaintiff failed to apply for the position of court warrant officer and failed to allege any facts in support of her allegation that she was qualified for the position, the court properly granted summary disposition with respect to the claim of sex discrimination on the basis that the plaintiff failed to raise a genuine issue of fact concerning whether she was denied employment on the basis of gender. Affirmed. Lindsay & Allen (by Stephen J. Allen), for the plaintiff. Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Gary P. Gordan and Pamela J. Stevenson, Assistant Attorneys General, for the defendants. Before: Fitzgerald, P.J., and Markman and M. F. Sapala, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Per Curiam. Plaintiff appeals as of right the order granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(8) and (10) in this case involving claims of wrongful discharge and sex discrimination under the Civil Rights Act, MCL 37.2202(l)(a); MSA 3.548(202)(l)(a). We affirm. Plaintiff was hired by the City of Pontiac as a clerk-typist in November 1968. She transferred to the position of clerk-typist for the 50th District Court in June 1972. Plaintiff transferred to the position of court reporter for Judge Richard E. Cunningham in February 1973. Plaintiff alleged that she transferred to the position of court reporter at the urging of Judge Cunningham, who allegedly made promises of job security in the event plaintiff ever ceased to be his court reporter. Judge Cunningham retired in June 1988. James K. Conway, the 50th District Court Administrator, transferred plaintiff from the position of court reporter to a different position. Plaintiff alleged that a new position, that of court warrant officer, was created in July 1988 and that, despite her qualifications for the position, she was not considered for the position because she is a female. Plaintiff alleged that the position was filled by a male employee with less seniority and less experience. In December 1988, plaintiff was notified that her employment would be terminated effective January 1, 1989. Plaintiff filed a two-count complaint on July 9, 1991, alleging wrongful discharge and sex discrimination. Defendants filed a motion for summary disposition, which the trial court granted in an order dated January 12,1993. Plaintiff first argues that the trial court erred in granting summary disposition of her wrongful discharge claim pursuant to MCR 2.116(C)(8). A motion for summary disposition pursuant to MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone. All factual allegations in support of the claim are accepted as true, as well as any reasonable inferences or conclusions that can be drawn from the facts. Marcelletti v Bathani, 198 Mich App 655, 658; 500 NW2d 124 (1993). However, a mere statement of a pleader’s conclusions, unsupported by allegations of fact, will not suffice to create a cause of action. ETT Ambulance Service Corp v Rockford Ambulance, Inc, 204 Mich App 392, 395; 516 NW2d 498 (1994). A motion for summary disposition pursuant to MCR 2.116(C)(8) should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery. Wade v Dep’t of Corrections, 439 Mich 158, 163; 483 NW2d 26 (1992). On appeal, summary disposition pursuant to MCR 2.116(C)(8) is reviewed de novo as a question of law. Mieras v DeBona, 204 Mich App 703, 706; 516 NW2d 154 (1994). Plaintiff contends that defendants failed to afford her procedural due process in terminating her property interest in her employment. However, there is no dispute that, as a court reporter, plaintiff was an at-will employee. Plaintiff has not made any allegations in support of a finding of just-cause employment in her position as a court reporter. To the contrary, plaintiff’s allegation that Judge Cunningham told her that she could have a different position if she ceased to be employed as his court reporter suggests that there was no express agreement that the position of court reporter would be a permanent just-cause position. Further, the promises that Judge Cunningham allegedly made to plaintiff are not enforceable because they exceeded his statutory authority. Thorin v Bloomfield Hills Bd of Ed, 203 Mich App 692, 700-701; 513 NW2d 230 (1994). See also MCL 600.8602; MSA 27A.8602 (each judge of the district court shall appoint his or her own recorder or reporter) and MCR 8.110(E)(3)(d) (a chief judge has administrative control over all court personnel with authority and responsibility to supervise, hire, discipline, or discharge such personnel, with the exception of a judge’s secretary and law clerk). At the time plaintiff alleges she should have been given a protected position, Judge Cunningham was no longer chief judge. The authority to hire therefore belonged to Judge Cunningham’s successor. Accordingly, the trial court properly granted summary disposition of the wrongful discharge claim pursuant to MCR 2.116(C)(8). Plaintiff also argues that the trial court erred in granting summary disposition of her sex discrimination claim pursuant to MCR 2.116(0(10). A motion for summary disposition pursuant to MCR 2.116(0(10) may be granted where, except with regard to the amount of damages, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Such a motion tests the factual basis of the claim. A court reviewing the motion must consider the pleadings, affidavits, depositions, admissions, and any other documentary evidence in favor of the nonmoving party and grant the benefit of any reasonable doubt to the opposing party. Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993). The opposing party may not rest upon mere allegations or denials in the pleadings but, by affidavit or other documentary evidence, must set forth specific facts showing that there is a genuine issue for trial. MCR 2.116(G)(4). The court may not make factual findings or weigh credibility in deciding a motion for summary disposition. Featherly v Teledyne Industries, Inc, 194 Mich App 352, 357; 486 NW2d 361 (1992). To avoid summary disposition of a claim of sex discrimination under the Civil Rights Act, a plaintiff must demonstrate the existence of a genuine issue of material fact regarding whether a prima facie case of discrimination exists. Coleman-Nichols v Tixon Corp, 203 Mich App 645, 651; 513 NW2d 441 (1994). A prima facie case of sex discrimination is established where it is proven that a plaintiff is a member of a protected class, was qualified for an available position, and applied for the position, but was rejected under circumstances giving rise to an inference of unlawful discrimination. Ginther v Ovid-Elsie Area Schools, 201 Mich App 30, 35; 506 NW2d 523 (1993). Where, in response to a prima facie case of discrimination, a defendant puts forth a legitimate nondiscriminatory reason for its actions, a plaintiff has the burden of showing that the proffered reason was merely a pretext. Coleman-Nichols, supra at 651. In this case, there is no dispute that plaintiff was a member of a protected class. However, plaintiff failed to apply for the position of court warrant officer and failed to allege any facts to support her allegation that she was qualified for the position. Hence, the trial court properly granted summary disposition pursuant to MCR 2.116(C)(10), because plaintiff failed to demonstrate that there was a genuine issue of material fact regarding whether she was discriminated against on the basis of her gender. Affirmed. This position was covered by a collective bargaining agreement. This position was not covered by a collective bargaining agreement.

HERWEYER v CLARK HIGHWAY SERVICES, INC Docket No. 171720. Submitted March 15, 1995, at Grand Rapids. Decided July 11, 1995, at 9:10 a.m. Leave to appeal sought. Jack Herweyer brought an action in the Missaukee Circuit Court against Clark Highway Services, Inc., alleging breach of an employment contract, discrimination, and retaliatory discharge. The court, Charles D. Corwin, J., granted summary disposition for the defendant, ruling that the action, which had been brought thirty-one months after the discharge, was not timely under the limitation provisions of the contract. The plaintiff appealed. The Court of Appeals held: 1. A contractual limitation period that is shorter than the applicable statutory period of limitation will be upheld if it is reasonable. A contractual period is reasonable where the claimant has a sufficient opportunity to investigate and file an action, the time is not so short as to be a practical abrogation of the right of action, and the action is not barred before loss or damages can be ascertained. In this case, where the contract provided a six-month limitation period and a saving clause stating that any term found to be legally unenforceable as written is to be limited in application so as to allow the enforcement of the term as far as legally possible, the trial court did not err in concluding that, even if the six-month period was unreasonable, the limitation period could be saved by reading it as providing for an unspecified minimum reasonable time that is less than thirty-one months. 2. The question whether it is against public policy to allow employers to shorten by contract limitation periods for actions brought by employees is best addressed by the Legislature, not the Court of Appeals. Affirmed. Neff, J., dissenting, stated that the six-month limitation period under the contract was unreasonable, that the saving clause was vague and ambiguous and should be stricken from the contract, that the statutory three-year period of limitation should apply, and that the case should be remanded for trial. Alternatively, the matter should be remanded for a hearing to determine whether thirty-one months was a reasonable contractual period of limitation. References Am Jur 2d, Limitation of Actions §§ 64, 65. See ALR Index under Contracts; Limitation of Actions. Limitation of Actions — Contracts — Statutes of Limitation. A contractual limitation period that is shorter than the applicable statutory period of limitation will be upheld if it is reasonable; a contractual period is reasonable where the claimant has a sufficient opportunity to investigate and file an action, the time is not so short as to be a practical abrogation of the right of action, and the action is not barred before loss or damages can be ascertained. Bott & Spencer, P.C. (by R. Dillon McCormick), for the plaintiff. Warner, Norcross & Judd (by Robert J. Chovanec, Douglas E. Wagner, and Rodrick W. Lewis), for the defendant. Before: Sawyer, P.J., and Griffin and Neff, JJ. Sawyer, P.J. Plaintiff appeals from an order of the circuit court granting summary disposition in favor of defendant on plaintiff’s claim for breach of contract, discrimination, and retaliatory discharge on the basis of the claim not having been timely brought under the provisions of that contract. We affirm. Plaintiff entered into an employment contract with defendant, which contract included provisions that any claims arising from the termination of employment must be brought within six months and that plaintiff specifically waived any applicable statute of limitations to the contrary. Plaintiff was discharged after filing a worker’s compensation claim. Thirty-one months later, plaintiff brought the instant action. Defendant moved to have the action dismissed on the basis of the contractual provision of bringing all claims within six months, and the trial court granted summary disposition. We first jointly consider two of plaintiffs arguments, namely that the trial court erred in granting summary disposition when the applicable statute of limitations had not run and whether the contractual provision of a six-month limitation was unreasonable and, therefore, the full statutory period should be applied. It is settled law in Michigan that the courts will uphold a contractual provision limiting the time to bring suit where that limitation is reasonable, even though the period specified is less than the applicable statute of limitations. Camelot Excavating Co, Inc v St Paul Fire & Marine Ins Co, 410 Mich 118, 126; 301 NW2d 275 (1981). The determination of such reasonableness is made by looking at whether the claimant had a sufficient opportunity to investigate and file an action, the time was not so short as to be a practical abrogation of the right of action, and the action was not barred before the loss or damages could he ascertained. Id. at 127. In the case at bar, the trial court expressed its reservation that the six-month limitation provided for in the contract may not be reasonable, but concluded that in any event a reasonable time would be less than the thirty-one months in which it took plaintiff to commence suit and, therefore, plaintiffs action was barred by the contractual provision. Plaintiff, in essence, argues that if the six-month period is unreasonable, then the statutory provision of a three-year period of limitation must be applied. In concluding that the contract can be read to provide for a reasonable period of limitation less than the three years provided by statute, but nonetheless more than the six months specifically provided in the contract, the trial court looked to a provision in the contract that stated that if any term was found to be legally unenforceable as written, the particular provision would be limited to allow its enforcement as far as legally possible. The trial court interpreted this provision to mean that even if the six-month period provided in the contract was unreasonable, that provision would then be read as providing for the minimum reasonable time. While the trial court did not specifically indicate what the minimum reasonable time was, it did determine that it was less than the thirty-one months that it took plaintiff to bring suit. We agree with the trial court’s interpretation of the contract. The savings clause in the contract can be read as providing that the period of limitation shall be the minimum reasonable time in excess of six months. Furthermore, like the trial court, we agree that thirty-one months is in excess of the minimum reasonable time. While we do not draw a bright line with respect to what the minimum reasonable time is, we are not persuaded that plaintiff required thirty-one months in which to investigate and file the action, nor would a period of less than thirty-one months operate as a practical abrogation of the right to sue and certainly did not bar the bringing of the action before the loss or damage could be ascertained. See Camelot, supra at 127. Therefore, whatever the minimum reasonable time is, it is less than thirty-one months. Accordingly, the action was barred by the provisions of the contract at the time plaintiff brought the action. Thus, the trial court properly granted summary disposition in favor of defendant. Plaintiff also argues that allowing employers to shorten the statute of limitations for employment actions is contrary to public policy. That may or may not be the case, but we believe it presents a public policy question best addressed by the Legislature, not this Court. The Legislature is in a superior position to consider the arguments, consider the ramifications of restricting the right to contract in this area, and determine what is in the public interest. If the Legislature deems such contractual provisions to be contrary to public policy, it may endeavor to enact the appropriate legislation. We, however, decline to impose by judicial fiat such restrictions on the right to contract. Affirmed. Defendant may tax costs. Griffin, J., concurred. Neff, J. (dissenting). The trial court and the majority here reached the conclusion that the six-month limitation period contained in the "application for employment” is unreasonable, and I agree with that conclusion. However, I cannot agree that a further provision in the application to the effect that if the six-month term is found to be unenforceable, then a "minimum reasonable time” is to be determined and enforced "as far as legally possible” can properly be read to support the conclusion that thirty-one months is unreasonably long. . i As a preliminary matter, I note that the language of the contract is vague and ambiguous. It seems obvious that the drafter (presumably defendant or its attorney) contemplated the probability that the six-month limitation period would be attacked in these circumstances and the possibility of a finding that it is unreasonable, as was found to be the case. In anticipation of this result the "minimum reasonable time” and "as far as legally possible” language were added, but without any effort to define these imprecise terms, leaving the parties, and ultimately the courts, with the task of interpretation case by case. This situation leads to an inexact limitation period and, inevitably, to the possibility of different limitation periods arising out of the same contract language. I find this potential to be untenable. Surely, parties are entitled to certainty in their legal dealings to a greater degree than this contract language allows, particularly with regard to the time limits that govern their mutual rights to seek redress against each other in the courts. Because it is ambiguous and might lead to unreasonable results, I would construe this language strictly against the drafter and strike it from the agreement. See DeMello v McNamara, 178 Mich App 618, 623; 444 NW2d 149 (1989). This would restore the parties to reliance on the applicable statutory limitation periods that have been established by the Legislature. This result would serve a number of important purposes. First, it would provide certainty to the determination of the time in which to bring suit. Second, as the legislative articulation of the limitation period, it is a simple, straightforward, and objective measure of what time period is "reasonable.” ii Next, I share the concerns expressed by the trial court with regard to the public policy arguments raised by plaintiff. Shortening the statute of limitations to six months will result in premature litigation because parties will be forced to rush to file suit before they have the opportunity to mitigate damages or fully investigate their claims. This is not in keeping with the purpose of a statute of limitations, that is, to protect defendants against stale or fraudulent claims. See Larson v Johns-Manville Sales Corp, 427 Mich 301, 310; 399 NW2d 1 (1986). In addition, an employee who must choose between signing an agreement such as the one in this case or risking termination does not deal at arm’s length with the employer. This is not a commercial setting where the parties could negotiate the terms of their agreement with regard to the limitation period or even one in which the employee was represented by a labor union that could have negotiated the terms and conditions of employment on his behalf. Where the parties are not on equal footing, the reduction in the limitation period for causes of action pursuant to remedial statutes should not be permitted lightly. hi Further, my review of the record reveals that there is nothing to establish whether the thirty-one-month time period between termination and filing was reasonable. If we assume that the language of the application permits a judicial determination of a limitation period more than six months but less than the period established by the Legislature, then defendant has the burden of showing that the elapsed time was unreasonable and plaintiff should have the opportunity to establish whether the time period in question was reasonable. The determination should, in any event, be measured by some'objective standard of reasonableness. It is not enough to say, as the trial court did, that while we agree that a six-month period is unreasonably short and therefore unenforceable, thirty-one months exceeds the fuzzy "minimum reasonable time,” but without articulating any reasons for that finding and without saying just how much time does fit within the "minimum reasonable time.” At the very least, we should remand this case to give plaintiff the opportunity to establish whether thirty-one months is reasonable within the context of this case. IV Finally, I note that the majority relies for its conclusion on Camelot Excavating Co, Inc v St Paul Fire & Marine Ins Co, 410 Mich 118; 301 NW2d 275 (1981). In my view, that case is distinguishable from this one and does not support the result for which it is cited as authority. The Camelot case involved a shortened statute of limitations in a construction bond. Two commercial entities, a general plumbing contractor and an insurance company, were the principal and the surety on the bond, which was a labor and material bond, the purpose of which was to protect the owner of the construction project against claims of those who furnished labor or materials to the contractor. The owner of the project was therefore a third-party beneficiary of the bond contract. There is nothing remotely similar in the fact situation of this case where the employer and an individual employee are parties to the application that shortens the limitation period solely for the benefit of the employer. Ultimátely, I agree with Justice Levin’s concurring opinion in Camelot, supra at 140-143, that the holding there is limited to the narrow circumstances of that case. Specifically, I agree with the following statement: The rationale of the rule allowing parties to contractually shorten statutory periods of limitation is that the shortened period is a bargained-for term of the contract. Allowing such bargained-for terms may in some cases be a useful and proper means of allowing parties to structure their business dealings. [Id. at 141.] Thus, to the extent this, rule is applicable in other settings, I would require that the parties to the contract, in contrast to the parties here, be more equal with regard to bargaining power. See, e.g., Rowry v Univ of Michigan, 441 Mich 1, 19, n 2; 490 NW2d 305 (1992), concurring opinion of Riley, J. (suggesting that public policy does not prohibit parties to a collectively bargained for agreement from shortening the period of limitation). By allowing this rule to apply in situations involving parties possessing unequal bargaining power, the majority will be allowing one of the contracting parties to unilaterally supplant the period of limitation mandated by the Legislature, a questionable practice from a public policy standpoint. Camelot, supra at 141. Accordingly, I would reverse and remand for trial or, in the alternative, for a hearing to determine if a thirty-one-month time period was reasonable on the basis of the facts of this case.