Discrimination Cases

FOEHR v REPUBLIC AUTOMOTIVE PARTS, INC Docket No. 147787. Submitted March 23, 1995, at Detroit. Decided May 30, 1995; approved for publication August 17, 1995, at 9:00 A.M. Donald L. Foehr brought a wrongful discharge action in the Macomb Circuit Court against Republic Automotive Parts, Inc., alleging that termination of employment was contrary to a legitimate expectation of termination for just cause only and constituted impermissible age discrimination under the Civil Rights Act, MCL 37.2202(l)(a); MSA 3.548(202)(l)(a). The court, George E. Montgomery, J., summarily dismissed the age discrimination claim, but entered judgment on a jury verdict awarding past and future damages for the claim of employment terminable for just cause only. The defendant appealed, and the plaintiff cross appealed. The Court of Appeals held: 1. The trial court did not err in denying the defendant’s motion for judgment notwithstanding the verdict. The plaintiff presented sufficient evidence, based on a legitimate expectations theory, that, as a corporate officer, he was subject to the policies expressed in the defendant’s employment policy manual and that the manual created employment that was terminable for just cause only. The policy manual also supported the plaintiff’s theory that, even if he was removed as an officer of the corporation, he had a legitimate expectation that he would be placed in another position for which he was qualified if any were available. 2. The trial court did not err in denying the defendant’s motion for a new trial with regard to future damages. The adequacy of the plaintiff’s efforts at mitigating damages by obtaining other employment after discharge and testimony about bonuses and raises the plaintiff would have received had he remained employed by the defendant were properly considered by the jury in deciding future damages. 3. The trial court did not err in instructing the jury about the plaintiff’s legitimate expectation of employment terminable for just cause only, in reading SJI2d 110.05 and 110.07 to the jury, in refusing to instruct the jury about Delaware law in the absence of reasonable notice thereof to the plaintiff, and in reading SJI2d 53.03 to the jury regarding the reduction of future damages to present value. 4. The trial court did not abuse its discretion in not allowing the defendant to present evidence of its revised employment policy manual and its corporate bylaws. The revisions were made after the plaintiffs discharge, rendering them irrelevant to the plaintiff’s claim, and cannot constitute effective unilateral policy changes in the absence of reasonable notice to the plaintiff, good faith, and economic necessity. The bylaws were of questionable relevance and were not made available to the plaintiff until after discovery had closed despite a request for them during discovery. The trial court did not abuse its discretion in excluding as irrelevant and cumulative the testimony of one witness and in allowing the testimony of another witness as rebuttal concerning mitigation of damages. 5. The trial court erred in granting summary disposition of the claim of age discrimination. The plaintiff presented a prima facie case of age discrimination by showing that he was qualified for the position from which he was discharged and that there was a pattern of discharging older employees and replacing them with younger ones. Because the plaintiff claimed damages for discrimination that were not reflected in the verdict, the case must be remanded for further proceedings regarding the age discrimination claim. Affirmed in part, reversed in part, and remanded. Stark & Gordon, P.C. (by Deborah L. Gordon) (Bendure & Thomas, by Mark R. Bendure, of Counsel), for the plaintiff. Vandeveer Garzia, P.C. (by Robert D. Brignall, C.F. Boyle, Jr., and Hal O. Carroll), for the defendant. Before: Connor, P.J., and Wahls and Hoekstra, JJ. Per Curiam. In this wrongful discharge action, the jury found for plaintiff. He was awarded past damages of $262,413 and future damages of $692,603. Defendant appeals as of right from the final judgment. Plaintiff has also filed a cross appeal. We affirm the jury’s verdict, but reverse the trial court’s decision to grant defendant summary disposition of plaintiffs claim of age discrimination. Defendant first claims error in the trial court’s decision to deny its motion for judgment notwithstanding the verdict. We disagree. Plaintiff presented sufficient evidence, based upon a legitimate expectations theory, that he was subject to the policies expressed in defendant’s employment policy manual and that the manual created an employment contract that was terminable for just cause only. There was evidence that the policy manual applied to all employees who received a wage or salary from defendant. Officers of the corporation were not excluded. Therefore, it was a jury question whether the policy manual applied to plaintiff and whether it created a legitimate expectation that the employer would discharge employees for just cause only. Rood v General Dynamics Corp, 444 Mich 107, 117-118, 140-141; 507 NW2d 591 (1993); Rice v ISI Mfg, Inc, 207 Mich App 634, 636; 525 NW2d 533 (1994). The policy manual also supported plaintiffs theory that, even if he was removed as an officer of the corporation, he had a legitimate expectation that he would be placed in another position in the company unless a position for which he was qualified was not available. It had been defendant’s practice over the years when jobs were eliminated to permit displaced employees to accept new assignments within the corporation. Accordingly, even though his term as a corporate officer was subject to an annual vote by the board, his wrongful discharge action was adequately supported by the evidence and the trial court did not err in submitting his case to the jury. Rood, supra; Barnell v Taubman Co, Inc, 203 Mich App 110, 116; 512 NW2d 13 (1993), lv gtd 447 Mich 990 (1994). Furthermore, we do not agree with defendant that plaintiff’s employment involved nothing more than a satisfaction contract. Mitchell v General Motors Acceptance Corp, 176 Mich App 23, 32; 439 NW2d 261 (1989). When the language of defendant’s policy manual is read in a light most favorable to plaintiff, he had a reasonable, legitimate expectation that he would not have his employment terminated except for just cause. What constituted just cause was not left to defendant to decide. Compare Thomas v John Deere Corp, 205 Mich App 91, 94-95; 517 NW2d 265 (1994). Plaintiff was not required to produce evidence of mutual assent to have his case reach the jury. He premised his wrongful discharge action on a public policy theory rather than a contract theory. Rood, supra, pp 117-119; Barnell, supra, pp 116, 119. The jury’s verdict was not against the great weight of the evidence. Bosak v Hutchinson, 422 Mich 712, 737; 375 NW2d 333 (1985). First, as we have previously discussed, the jury could have found that plaintiff was entitled to continued employment even if defendant’s new chief executive officer wanted to bring in his own people to serve as officers. Second, the jury could have found that defendant’s reasons for terminating plaintiff’s employment were a pretext. The decision was apparently made with little or no regard for plaintiff’s demonstrably excellent record, and plaintiff testified that he was told that his performance was not a reason for his termination. The trial court did not err in denying the motion for a new trial with regard to future damages. Plaintiff presented evidence that he mitigated his damages, but was not able to either find a comparable permanent position or earn the same pay when working as an independent financial consultant. Renny v Port Huron Hosp, 427 Mich 415, 438-439; 398 NW2d 327 (1986); Kocenda v Arch diocese of Detroit, 204 Mich App 659, 665; 516 NW2d 132 (1994). It was also for the jury to decide if plaintiff was subsequently fired from another job for incompetence. The jury’s award was supported by the evidence. Rice, supra, p 638. Testimony about possible bonuses or raises that plaintiff might have received in the future was not speculative and was properly admitted. The evidence was based upon defendant’s past practices of awarding bonuses and merit increases. Moreover, plaintiff was also entitled to have the jury consider an award of future damages beyond one year. As discussed previously, the jury heard evidence that plaintiff could have reasonably expected to remain employed with defendant beyond one year even if he was removed from his position as a corporate officer. Rice, supra. We also find no error with the jury instructions given in this case. First, no error can be predicated upon the Supreme Court’s decision in Rowe v Montgomery Ward & Co, Inc, 437 Mich 627; 473 NW2d 268 (1991). That decision involves oral contracts for job security. Plaintiff’s theory was primarily dependent upon the policy manual and defendant’s practices. The instructions were consistent with substantial justice and do not warrant reversal. McLemore v Detroit Receiving Hosp, 196 Mich App 391, 399; 493 NW2d 441 (1992). The trial court instructed the jury consistent with SJI2d 110.05 and 110.07. Defendant has not delineated any error in regard to these instructions. Nor has defendant demonstrated why the court’s decision not to give defendant’s proposed instructions was error. Defendant has failed to provide this Court with a copy of the transcript of the closing arguments. Consequently, we are unable to determine that the standard jury instrucr tions were inadequate to address the theories in this case. Admiral Ins Co v Columbia Casualty Ins Co, 194 Mich App 300, 305; 486 NW2d 351 (1992). We find no error requiring reversal regarding the instructions addressing employment terminable at will and satisfaction contracts. Although the trial court relied upon a "reasonableness” standard for satisfaction contracts, when "good faith” is the test, the difference in these terms is insignificant and does not require reversal. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 622-623; 292 NW2d 880 (1980); Schmand v Jandorf, 175 Mich 88, 95-96; 140 NW 996 (1913); McLemore, supra, pp 400-401; SJI2d 110.11. The verdict form used did not foreclose the jury from considering the defense theories that plaintiff’s employment was at-will or pursuant to a satisfaction contract. The form was not intended to take the place of the jury instructions and it simply required the jury to indicate if plaintiff had met his burden. The court properly refused to instruct regarding Delaware law because that subject was not raised until the parties were discussing the proposed jury instructions. Pursuant to MCL 600.2114a; MSA 27A.2114(1), the trial court had the authority to refuse to instruct regarding Delaware law because reasonable notice was not provided to plaintiff. Furthermore, defendant’s proposed instruction would have offered little help, if any, to the jury. The trial court properly relied on SJI2d 53.03 to reduce the future damages to present value. This Court has applied SJI2d 53.03 to employment claims, including wrongful discharge actions. Howard v Canteen Corp, 192 Mich App 427, 441; 481 NW2d 718 (1992); Goins v Ford Motor Co, 131 Mich App 185, 201; 347 NW2d 184 (1983). The use of the five percent rate also did not deny defendant due process. Verbison v Auto Club Ins Ass’n, 201 Mich App 635, 638; 506 NW2d 920 (1993); Klco v Dynamic Training Corp, 192 Mich App 39, 42; 480 NW2d 596 (1991). Defendant contends that the trial court abused its discretion in various evidentiary rulings made. We review the trial court’s decision to admit evidence for an abuse of discretion. Wolff v Automobile Club of Michigan, 194 Mich App 6, 14; 486 NW2d 75 (1992). Defendant first argues that the trial court erred in excluding evidence of its revised personnel manual. The manual was revised after plaintiff’s employment was terminated. Nonetheless, defendant maintains that the evidence was relevant with regard to the issue of damages because, in light of the revised policies, plaintiff did not have a legitimate expectation of continued future employment. We disagree. In order for an employer’s unilateral policy changes to become legally effective, reasonable notice must be provided to the affected employees. In re Certified Question, 432 Mich 438, 457; 443 NW2d 112 (1989). In this instance the employment relationship between the parties had terminated before the adoption of the revised manual. Therefore, plaintiff did not have notice of the change, nor did he accept the revised terms. Id., pp 446-447, 450. Furthermore, there was no showing by defendant that the policy changes were made in good faith or were economically necessary. Cf. Neubacher v Globe Furniture Rentals, Inc, 205 Mich App 418; 522 NW2d 335 (1994). The trial court did not abuse its discretion in refusing to admit this evidence. The evidence was not relevant to plaintiff’s claim for future damages. An employer cannot be permitted to rely on posttermination changes in its policies without good reason, such as economic necessity. Id. Otherwise, an employer could change its policies specifically to avoid having to pay future damages. The trial court also did not abuse its discretion in refusing to admit into evidence defendant’s corporate bylaws. Defendant waited until after discovery was closed to produce the bylaws although they were requested during discovery. Defendant properly was barred from using the bylaws at trial in order to support a new theory of which plaintiff was previously unaware. Barlow v John Crane-Houdaille, Inc, 191 Mich App 244, 251; 477 NW2d 133 (1991). Finally, the actual bylaws were of questionable relevance because they pertained only to the removal of officers, which plaintiff did not dispute. Moreover, other evidence regarding the content of the bylaws was admitted at trial. The trial court did not abuse its discretion in excluding the testimony of Thomas Orsi. Wolff, supra, p 14. His testimony was both irrelevant and cumulative. Defendant also cites as error the trial court’s decision to allow William Wright to testify on rebuttal. We find no abuse of discretion. Winiemko v Valenti, 203 Mich App 411, 418; 513 NW2d 181 (1994). Wright’s testimony was clearly within the area of rebuttal evidence because it was offered to address the affirmative defense of whether plaintiff had mitigated his damages. Rasheed v Chrysler Corp, 445 Mich 109, 120-123; 517 NW2d 19 (1994); Sullivan Industries, Inc v Double Seal Glass Co, Inc, 192 Mich App 333, 348; 480 NW2d 623 (1991). Furthermore, plaintiff relied upon defense counsel’s statements that Wright would be called by defendant. We therefore find no abuse of discretion by the trial court in allowing Wright to testify on rebuttal. Plaintiff’s only issue in his cross appeal concerns summary disposition of his age discrimination claim pursuant to MCL 37.2202(l)(a); MSA 3.548(202)(l)(a). The trial court addressed the motion under both MCR 2.116(C)(8) and (10). However, because the court went beyond the pleadings in deciding the motion, the motion appears to have been granted under MCR 2.116(0(10), no genuine issue of material fact. Kreager v State Farm Mutual Automobile Ins Co, 197 Mich App 577, 579; 496 NW2d 346 (1992). The trial court correctly determined that plaintiff was required to show that age was a significant factor in the firing decision, not a determining factor, to establish a prima facie case of age discrimination. Matras v Amoco Oil Co, 424 Mich 675, 684; 385 NW2d 586 (1986). Defendant did not terminate plaintiff’s employment for economic reasons. Plaintiff, therefore, did not have to meet the higher burden of proof. Id.; Wolff, supra, p 11. We agree with plaintiff that the trial court erred in ruling that he did not present a prima facie case of intentional age discrimination. Plaintiff was qualified for the position. He produced evidence that showed there was a pattern of discharges of older employees. Those positions were then filled by younger employees. Most of the individuals who remained employees of defendant were in their thirties or forties. Plaintiff was fifty-five years old when his employment was terminated. His position was subsequently filled by a man who was forty-four years old. Thus, he established a prima facie case of age discrimination. Lytle v Malady, 209 Mich App 179, 185; 530 NW2d 135 (1995); Barnell, supra, p 120. Furthermore, whether defendant’s legitimate, nondiscriminatory reasons for the discharge were a pretext was a question of fact. Because plaintiff claimed additional damages for his discrimination claim that were not reflected in the wrongful discharge verdict, we remand this matter for further proceedings regarding the discrimination claim. See Phillips v Butterball Farms Co, Inc (After Second Remand), 448 Mich 239, 250, n 30; 531 NW2d 144 (1995); Howard, supra, p 435. Affirmed with respect to the jury’s verdict concerning wrongful discharge, but reversed and remanded for further proceedings with respect to the trial court’s decision to grant summary disposition of plaintiffs age discrimination claim. We do not retain jurisdiction.

PLIETH v ST RAYMOND CHURCH Docket No. 166008. Submitted January 18, 1995, at Lansing. Decided May 12, 1995, at 9:55 a.m. Leave to appeal sought. Frederick and Margaret Plieth brought an action in the Wayne Circuit Court against St. Raymond Church, the Archdiocese of Detroit, and Reverend Ralph L. Quane, seeking damages resulting from Frederick’s discharge from employment on the basis of age discrimination in violation of the Civil Rights Act. The court, Diane M. Hathaway, J., denied the plaintiffs’ motion for summary disposition and granted summary disposition for the defendants. The plaintiffs appealed. The Court of Appeals held: 1. The defendants’ consideration of Frederick’s eligibility for' pension and medical benefits did not automatically constitute an improper' consideration of age. The plaintiffs did not show that Father Quane supposed a correlation between Frederick’s age and pension status and acted accordingly. The mere fact that Frederick was eligible for a pension is not enough for the Court of Appeals to infer age discrimination. Where an employer’s decision is wholly motivated by factors other than age, even if the motivating factor is correlated with age, there is no disparate treatment under the Civil Rights Act. 2. Because the evidence showed that the parish’s financial condition was the impetus for the layoff, the plaintiffs were required to present evidence that age was a determining factor in the decision to discharge Frederick. The plaintiffs did not make such a showing. The plaintiffs failed to present a prima facie case. Affirmed. References Am Jur 2d, Civil Rights §§ 226, 233; Job Discrimination §§ 168-172. Validity and construction of labor legislation prohibiting discrimination on account of age. 29 ALR3d 1407. Application of state law to age discrimination in employment. 96 ALR3d 195. Proving that discharge was because of age, for purpose of Age Discrimination in Employment Act (29 USCS §§ 621, et seq.) 58 ALR Fed 94. Civil Rights — Age Discrimination — Employment. There is no disparate treatment based on age where an employer’s decision to discharge an employee is wholly motivated by factors other than age, even if the motivating factors are correlated with age, such as the employee’s pension status or seniority (MCL 37.2202; MSA 3.548[202]). Chambers Steiner (by Angela J. Nicita), for the plaintiffs. Bodman, Longley & Dahling (by Joseph A. Sullivan, Karen L. Piper, and Lisa M. Panourgias), for the defendants. Before: Cavanagh, P.J., and Holbrook, Jr., and Markey, JJ. Per Curiam. Plaintiff* filed suit against defendants alleging age discrimination in violation of the Civil Rights Act, MCL 37.2202(l)(a); MSA 3.548(202)(l)(a). Plaintiff appeals as of right the trial court’s order granting defendants’ motion for summary disposition and denying plaintiff’s motion for summary disposition, both pursuant to MCR 2.116(0(10). We affirm. St. Raymond Church is a Roman Catholic parish located in the City of Detroit. The parish is under the jurisdiction of the Archdiocese of Detroit. In August 1991, the Reverend Ralph L. Quane became the pastor of St. Raymond. At that time, the parish was experiencing financial difficulties. The parish relies heavily on Sunday collections to cover its operating expenses. Between August 1991 and January 1992 the number of families in the parish declined from approximately 1,500 to approximately 1,250._ In December 1991, the archdiocese completed an audit of the parish. A separate financial study and organizational analysis was completed by the Plante & Moran accounting firm in January 1992. These audits revealed that the parish’s debts exceeded $200,000. Plante & Moran recommended that the parish reorganize its staff and consolidate responsibilities. At the beginning of 1992, the parish employed three maintenance workers: plaintiff, age sixty-two; Dennis Quigley, age thirty-three; and Frank Pfeiffer, age sixty-three. Plaintiff had worked at St. Raymond since 1969. Quigley was hired in 1978 and Pfeiffer was hired in 1985. Among other changes, Father Quane decided to consolidate the parish’s maintenance duties into two positions. On May 15, 1992, Father Quane notified plaintiff and four other employees that their positions were being eliminated. On July 24, 1992, plaintiff filed a complaint alleging age discrimination against St. Raymond Church, the Archdiocese of Detroit, and Father Quane. Both parties subsequently sought summary disposition pursuant to MCR 2.116(0(10). The trial court determined that plaintiff has failed to establish a prima facie case of age discrimination and that, even if plaintiff had established a prima facie case, defendants had articulated legitimate, nondiscriminatory reasons for discharging plaintiff. Therefore, on June 7, 1993, the trial court denied plaintiff’s motion for summary disposition and granted defendants’ motion for summary disposition._ Plaintiff appealed. On appeal, plaintiff argues that the trial court erred in denying his motion for summary disposition and in granting defendants’ motion. On appeal, an order granting or denying summary disposition is reviewed de novo. A motion for summary disposition may be granted pursuant to MCR 2.116(0(10) when, 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. Giving the benefit of reasonable doubt to the nonmovant, the trial court must determine whether a record might be developed that would leave open an issue upon which reasonable minds might differ. Michigan Mutual Ins Co v Dowell, 204 Mich App 81, 85-86; 514 NW2d 185 (1994). Plaintiff’s claim of age discrimination is based upon the Civil Rights Act, which provides in relevant part: (1) An employer shall not do any of the following: (a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of ... age. [MCL 37.2202; MSA 3.548(202).] The burden of proof in an age discrimination case is allocated as follows: (1) the plaintiff has the burden of proving a prima facie case of discrimination by a preponderance of the evidence; (2) if the plaintiff is successful in proving a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions; and (3) the plaintiff then has the burden of proving by a preponderance of the evidence that the legitimate reason offered by the defendant was merely a pretext. Barnell v Taubman Co, Inc, 203 Mich App 110, 120; 512 NW2d 13 (1993). To establish a prima facie case of age discrimination under the disparate treatment theory, plaintiff must show that he was a member of a protected class and that he was treated differently than persons of a different class for the same or similar conduct. Id. at 120-121. Age need not be the only reason or main reason for the discharge, but it must be one of the reasons that made a difference in determining whether to discharge a person. Id. at 121. Therefore, the question is whether age was a determining factor in plaintiff’s discharge. Plaintiff contends that the trial court failed to give proper weight to Father Quane’s deposition testimony. During his deposition, Father Quane stated that before terminating any employees, he had looked into the employees’ benefits and found that, unlike Quigley and Pfeiffer, plaintiff would be able to retain his pension and medical benefits. At one point, Father Quane stated that he partly based his decision on the fact that plaintiff would continue to receive benefits and the other two maintenance workers would not. For purposes of this appeal, we will take the facts in the light most favorable to plaintiff and assume that plaintiff’s eligibility for a pension and medical benefits did influence Father Quane’s choice of which employee to lay off. Therefore, the issue presented is whether consideration of an employee’s eligibility for benefits automatically constitutes an improper consideration of age. We conclude that it does not. Michigan courts have considered federal law when reviewing claims of age discrimination based on state law. Featherly v Teledyne, Industries, Inc, 194 Mich App 352, 357-358; 486 NW2d 361 (1992). The United States Supreme Court has held that an employer does not violate the Age Discrimination in Employment Act of 1967 (adea), 29 USC 621 et seq., by acting on the basis of a factor, such as the employee’s pension status or seniority, that is empirically correlated with age. Hazen Paper Co v Biggins, 507 US —; 113 S Ct 1701; 123 L Ed 2d 338, 345-346 (1993). In Hazen, the employee charged that the employer had deliberately fired him a few weeks before his pension benefits vested. The Court concluded that there is no disparate treatment under the adea when the factor motivating the employer is something other than the employee’s age. 123 L Ed 2d 345, 346. The Court explained: It is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with old age. . . . When the employer’s decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age, as pension status typically is. [123 L Ed 2d 347. Emphasis in original.] As with the adea, the Civil Rights Act is aimed at the prejudices and biases borne against persons because of their membership in a certain class. The act seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases. Radtke v Everett, 442 Mich 368, 379; 501 NW2d 155 (1993). Plaintiff has presented no evidence that Father Quane supposed a correlation between plaintiff’s age and pension status and acted accordingly. See Hazen, supra, 123 L Ed 2d 348. The mere fact that plaintiff was eligible for a pension is not enough for this Court to infer age discrimination. See Gaworski v ITT Commercial Finance Corp, 17 F3d 1104, 1120 (CA 8), cert den — US —; 115 S Ct 355; 130 L Ed 2d 310 (1994). Even if our analysis regarding age discrimination and pension status had reached a different result, plaintiff still would not have met his burden of proof. Plaintiff does not challenge defendants’ assertion that the parish’s financial condition was the impetus for the layoffs. When an employer lays off employees for economic reasons, the employee bears a greater burden of proof in establishing discrimination. In such a case, the employee must present evidence that age was a determining factor in the decision to discharge him. Matras v Amoco Oil Co, 424 Mich 675, 684; 385 NW2d 586 (1986); Reisman v Regents of Wayne State Univ, 188 Mich App 526, 540; 470 NW2d 678 (1991). At best, plaintiff has offered evidence that his pension eligibility played some part in Father Quane’s decision to terminate him rather than the other two maintenance workers. Plaintiff has made no showing that his pension eligibility — and therefore, in plaintiff’s argument, his age — was a determining factor in that decision. We conclude that plaintiff has not met his burden of proving a prima facie case of age discrimination by" a preponderance of the evidence. Therefore, the trial court did not err in denying plaintiffs motion for summary disposition and in granting defendants’ motion for summary disposition. Affirmed. Margaret Plieth, Frederick Plieth’s wife, joins him as plaintiff. Because her loss of consortium claim is derivative and dependent on Mr. Plieth’s claim, and to avoid confusion, we will refer only to plaintiff Frederick Plieth. The other four employees were Camille J. Biernacki, religious education secretary, age forty; Catherine N. Fisette, director of religious education, age thirty-one; Catherine R. Garofalo, school librarian, age sixty-three; and Dorcas Kolodziej, school secretary, age sixty-eight. Plaintiff’s eligibility for a pension was based on his having worked a sufficient number of years at a sufficient number of hours per week and on his having reached retirement age. Father Quane maintains that two factors also mentioned during the deposition controlled his decision. First, he wished to retain employees who worked mainly in the school over other employees. Although there was some overlap, Quigley and Pfeiffer worked primarily in the school and plaintiff worked primarily in the church and rectory. Second, Father Quane believed that, compared to Quigley and Pfeiffer, plaintiff was an inferior worker.

WRIGHT v RESTAURANT CONCEPT MANAGEMENT, INC Docket No. 165676. Submitted February 9, 1995, at Lansing. Decided April 21, 1995, at 10:05 a.m. Michael Wright brought an action in the Genesee Circuit Court against Thomas M. Charters and Restaurant Concept Management, Inc. (rcmi), alleging that he was wrongfully discharged from his employment as a restaurant manager in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., because he refused to comply with the defendants’ directive to fire all the bláck employees. The court, Donald R. Freeman, J., granted summary disposition for the defendants, ruling that the plaintiffs failure to disclose a prior criminal conviction on his employment application, which failure was discovered by the defendants after they had discharged the plaintiff, provided just cause for termination and a defense to the action. The plaintiff appealed the grant of summary disposition for RCMI. The Court of Appeals held: An employee discharged in violation of the Civil Rights Act is not barred from relief under the act when, after discharge, the employer discovers evidence of wrongdoing that would have led to the employee’s termination on lawful and legitimate grounds. Evidence of wrongdoing, however, may be considered in granting relief to the employee. Reversed and remanded for trial. Civil Rights — Civil Rights Act — Wrongful Discharge — Employee Misconduct Discovered After Termination. Relief under the Civil Rights Act for wrongful discharge is not foreclosed” by reason of the employer’s discovery after discharge of wrongdoing that would have led to the employee’s termination on lawful and legitimate grounds; evidence of such wrongdoing, however, is relevant in fashioning any relief to be granted in an action for wrongful discharge (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). _ ' References Am Jur 2d, Job Discrimination § 1068. See ALR Index under Civil Rights and Discrimination; Discharge from Employment or Office. Blum, Konheim, Elkin & Blum (by Loren D. Blum), for the plaintiff. Charters, Heck & O’Donnell, P.C. (by Michael A. Heck), for the defendants. Before: Fitzgerald, P.J., and Taylor and Mark-man, JJ. Markman, J. Plaintiff appeals that portion of the circuit court’s order granting summary disposition in favor of defendant Restaurant Concept Management, Inc. (rcmi). We reverse. On August 16, 1991, plaintiff filed in the Gene-see Circuit Court a complaint alleging that he had been hired by defendants Thomas M. Charters and rcmi as a store manager "for the sole purpose of firing as many black employees that he could.” Plaintiff further alleged "[t]hat after two black employees were terminated, plaintiff refused the defendant’s instructions to wrongfully terminate the remaining black employees,” and that, as a consequence, plaintiff’s employment was terminated, in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and public policy. Defendants moved for summary disposition on August 31, 1992. Defendants alleged that plaintiff, in applying for employment with defendants in 1990, had indicated that he had never been convicted of a crime other than a traffic offense although, in fact, he had been convicted of felonious assault in 1988. When the police attempted to arrest plaintiff for that offense, he engaged them in a six-hour standoff. Defendants discovered the misrepresentation on plaintiff’s employment application only after plaintiff had been terminated. Terry Pellman, who had hired and terminated plaintiff on behalf of defendants, submitted an affidavit on August 31, 1992, indicating that Pellman had relied on plaintiffs claimed lack of a criminal record in hiring plaintiff. Pellman further indicated that he immediately would have terminated plaintiff if he had discovered plaintiffs misrepresentation during plaintiffs employment, particularly in light of the six-hour standoff with police. Plaintiff asserted in his answer to the motion that when he filled out his application for employment with defendants he believed that he had never been convicted of a crime other than a traffic offense because the dangerous weapon involved in his assault conviction was a recklessly driven automobile. The trial court granted defendants’ motion for summary disposition, dismissing all of plaintiffs claims against the defendants. The plaintiff appeals only that portion of the order granting summary disposition and dismissing plaintiffs claims against rcmi. With respect to plaintiffs claims against rcmi, the trial court reasoned that his criminal history and related misrepresentation clearly established just cause for his termination by defendants, and that as a result, plaintiff could obtain no relief in this action. A motion for summary disposition under MCR 2.116(0(10) tests whether there is factual support for a claim. When deciding a motion for summary disposition, a court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it. On appeal, a trial court’s grant of summary disposition will be reviewed de novo, and this Court must determine whether the plaintiff was entitled to judgment as a matter of law. Allen v Keating, 205 Mich App 560, 562; 517 NW2d 830 (1994). In granting summary disposition in favor of defendants, the trial court relied heavily on Johnson v Honeywell Information Systems, Inc, 955 F2d 409 (CA 6, 1992). In Johnson, the Sixth Circuit Court of Appeals held that under Michigan law "an employer may rely upon an employee’s false representations made at the time of employment, of which the employer was unaware, and which were not the grounds for the employee’s discharge, as a just cause defense to the employee’s wrongful discharge and state civil rights claims.” Id. at 410-411. The employee’s résumé fraud was held to entitle the employer to judgment as a matter of law with regard to the employee’s claim of violations of the Civil Rights Act. Id. at 413-415. The trial court further relied on Bradley v Philip Morris, Inc, 194 Mich App 44; 486 NW2d 48 (1992), affirmed after remand 444 Mich 634; 513 NW2d 797 (1994). In Bradley, former employees sued an employer for wrongful discharge. This Court found that the trial court had erred in excluding from trial "any evidence of previous [employee] misconduct that was discovered after [the plaintiffs’] employment was terminated.” 194 Mich App 48. This Court reasoned: Evidence of employee misconduct occurring before termination is admissible as substantive evidence even if the former employer did not know of the misconduct until after the termination. Just cause for termination may include facts and circumstances existing at termination but not known to the employer. See 53 Am Jur 2d, Master and Servant, § 46, pp 120-121; Leahey v Federal Express Corp, 685 F Supp 127 (ED Va, 1988); Summers v State Farm Mutual Automobile Ins Co, 864 F2d 700, 708 (CA 10, 1988); and Pugh v See’s Candies, Inc, 203 Cal App 3d 743; 250 Cal Rptr 195 (1988). Moreover, this type of evidence is relevant to the issue of damages. Having reviewed the record, we conclude that the trial court abused its discretion in excluding this type of evidence and in not permitting defendants’ attorney to make a corresponding argument to the jury. [194 Mich App 48.] However, Bradley did not address the implications of such evidence for a claim brought under the Civil Rights Act. The United States Supreme Court recently decided a similar issue involving the Age Discrimination in Employment Act (adea), 29 USC 621 et seq., in McKennon v Nashville Banner Publishing Co, 531 US —; 115 S Ct 879; 130 L Ed 2d 852 (1995). In McKennon, the Court unanimously held that an employee discharged in violation of the adea is not barred from all relief when, after his discharge, the employer discovers evidence of wrongdoing that would have led to the employee’s termination on lawful and legitimate grounds. The Court found that "a violation of the adea cannot be so altogether disregarded.” 115 S Ct 884. The Court reasoned in part: Deterrence is one object of [statutes establishing private causes of action for invidious employment discrimination]. Compensation for injuries caused by the prohibited discrimination is another. . . . The private litigant who seeks redress for his or her injuries vindicates both the deterrence and the compensation objectives of the adea. ... It would not accord with this scheme if after-acquired evidence of wrongdoing that would have resulted in termination operates, in every instance, to bar all relief for an earlier violation of the Act. Our inquiry is not at an end, however, for even though the employer has violated the Act, we must consider how the after-acquired evidence of the employee’s wrongdoing bears on the specific remedy to be ordered. . . . We have rejected the unclean hands defense "where a private suit serves important public purposes.” . . . That does not mean, however, the employee’s own misconduct is irrelevant to all the remedies otherwise available under the statute. [115 S Ct 884-886. Citations omitted.] During oral argument, in light of the recent decision in McKennon, rcmi expressly abandoned its argument that plaintiffs résumé fraud, although discovered after his termination, barred all relief under the Civil Rights Act. Although the defendant no longer raises this issue, we find it appropriate to apply the United States Supreme Court’s prohibition of an absolute bar to relief in this case. An employer should not be absolutely insulated from liability for violations of state civil rights laws because of the fortuitous discovery, after the employee’s termination, of employee wrongdoing sufficient to have caused his termination. Although, as this Court has recognized, there may be differences between the Civil Rights Act and the adea, Riethmiller v Blue Cross & Blue Shield of Michigan, 151 Mich App 188, 198-199; 390 NW2d 227 (1986) (discussing the difference in the language used in the respective remedy provisions), we find nothing at all in the language of the former that would preclude application of the Supreme Court’s logic to this action. Moreover, we find the Supreme Court’s reasoning persuasive, and further find its objectives consistent with the purpose of the Civil Rights Act. As the Michigan Supreme Court has stated: The Civil Rights Act is "aimed at 'the prejudices and biases’ borne against persons because of their membership in a certain class, and seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases.” Miller v C A Muer Corp, 420 Mich 355, 363; 362 NW2d 650 (1984) (citations omitted). [Radtke v Everett, 442 Mich 368, 379; 501 NW2d 155 (1993).] The Supreme Court further noted in Rasheed v Chrysler Corp, 445 Mich 109, 125-126; 517 NW2d 19 (1994): Over the years, various legislatures and the courts have added certain restrictions to the contractual relationship between employer and employee in cases where ordinary contract law did not adequately protect important rights of the parties. Examples are the law on discriminatory discharge, which has been the topic of numerous regulations, guidelines on the right of labor to organize, and even rules concerning compensation for work-related injuries. The Supreme Court included "the Michigan Fair Employment Practices Act, MCL 423.301 et seq.; MSA 17.458(1) et seq. (since repealed and replaced by the Michigan Civil Rights Act)” as one example of "numerous regulations.” Id. at 125, n 22. Unlike in Bradley, where an alleged violation of civil rights was not at issue and contract law may well have served to adequately protect the employee, a claim of violation of civil rights should not be barred solely because of employee wrongdoing that could not possibly have been the reason for the employee’s discharge. Although such wrongdoing, to the extent it exists, does not constitute an absolute bar to all relief, this does not mean that the relief afforded the employee should be unaffected by the wrongdoing or that the wrongdoing should be ignored. In McKennon, the Court further observed: [A]s a general rule in cases of this type, neither reinstatement nor front pay is an appropriate remedy. It would be both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, in any event and upon lawful grounds. The proper measure of backpay presents a more difficult problem. . . . Once an employer learns about employee wrongdoing that would lead to a legitimate discharge, we cannot require the employer to ignore the information, even if it is acquired during the course of discovery in a suit against the employer and even if the information might have gone undiscovered absent the suit. The beginning point in the trial court’s formulation of a remedy should be calculation of backpay from the date of the unlawful discharge to the date the new information was discovered. [115 S Ct 886.] Although the plaintiff in this action is not barred from all relief as a matter of law, any wrongdoing on his part may be reflected in the relief awarded to him. As the Supreme Court articulated: The proper boundaries of remedial relief in the general class of the cases where, after termination, it is discovered that the employee has engaged in wrongdoing must be addressed by the judicial system in the ordinary course of further decisions, for the factual permutations and the equitable considerations they raise will vary from case to case. [115 S Ct 886.] To the extent rcmi is liable for plaintiff’s claims under the Civil Rights Act and to the extent rcmi has established wrongdoing by the plaintiff that would have led to his lawful termination in any event once discovered by the defendant, evidence of the wrongdoing should be considered in granting relief based on the "factual permutations and the equitable considerations” raised and in light of the remedies available under the Civil Rights Act. This approach precludes the exoneration of either wrongdoer while preserving the statutory goal of deterring discrimination. Reversed and remanded for a trial on the merits. We do not retain jurisdiction._ While the effect of any such wrongdoing by the employee will vary with the facts and circumstances of the case, we agree with the general guidance provided by the United States Supreme Court with respect to certain remedies. To the extent that future damages or reinstatement would otherwise be available to plaintiff, we agree that as a general rule in cases of this type, neither reinstatement nor front pay is an appropriate remedy. McKennon, 115 S Ct 886; see also Rasheed, supra at 144, n 8 (separate opinion by Justice Levin). We further find the Court’s general calculations of backpay appropriate, more particularly, from the date of unlawful discharge to the date the new information was discovered. McKennon, 115 S Ct 886.

PORTH v ROMAN CATHOLIC DIOCESE OF KALAMAZOO Docket No. 165804. Submitted November 1, 1994, at Grand Rapids. Decided April 3, 1995, at 10:20 a.m. Judith Porth brought an action in the Kalamazoo Circuit Court against the Roman Catholic Diocese of Kalamazoo and others, alleging that the defendants’ refusal to renew her teaching contract as a fourth and fifth grade teacher at the defendants’ St. Mary’s Parish School in Paw Paw, on the basis that she is not a Catholic, constituted employment discrimination based upon religion in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. The court, Donald M. Goodwillie, J., granted summary disposition for the defendants on the basis of the Free Exercise Clause of the First Amendment of the United States Constitution. The plaintiff appealed. The Court of Appeals held: 1. By operation of the Supremacy Clause, US Const, art VI, § 2, the Religious Freedom Restoration Act of 1993, 42 USC 2000bb et seq., bars application of the Civil Rights Act to the defendants’ conduct. The state does not possess a compelling state interest in regulating the religious discrimination at issue and the burden of such regulation is substantial. 2. Although the Civil Rights Act applies to church-operated schools, under the facts of this case the Religious Freedom Restoration Act of 1993 is controlling. Pursuant to the federal act, government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. Application of a strict scrutiny test in this case mandates the conclusion that the state does not possess a compelling interest in prohibiting religious discrimination in the employment of teachers in church-operated schools. Affirmed. References Am Jur 2d, Civil Rights § 203; Constitutional Law § 473. See ALR Index under Constitutional Law; Religion and Religious Societies. Murphy, P.J., concurring, stated that strict scrutiny is the proper standard of review of the plaintiffs free exercise of religion claim and it is not necessary to consider the application of the Religious Freedom Restoration Act of 1993 to the present case. Section 202(1)(a) of the Civil Rights Act, MCL 37.2202(1)(a); MSA 3.548(202)(1)(a), cannot withstand strict scrutiny in this case because it is not the least drastic means to achieve the state’s interest in prohibiting discrimination. Section 202(1)(a), as applied to the defendants here, would be unconstitutional because it violates the defendants’ First Amendment right to the free exercise of religion. 1. Constitutional Law — Fundamental Freedoms — Religious Liberty — Compelling Interest Test. The courts have a firmly rooted tradition of applying a compelling interest test to the regulation of religious liberty, a fundamental freedom. 2. Constitutional Law — Religious Liberty — Compelling Governmental Interest. Government may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability, unless it demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest (42 USC 2000bb-l). 3. Constitutional Law — Religious Liberty — Employment Discrimination — Church-Operated Schools. Michigan does not possess a compelling interest in prohibiting religious discrimination in the. employment of teachers in church-operated schools; such state regulation would substantially burden the mission and function of religious schools. Deming, Hughey, Lewis, Allen & Chapman, P.C. (by Ross E. Chapman and Richard M. Hughey, Jr.), for the plaintiff. Foster, Swift, Collins & Smith, P.C. (by William R. Schulz), for the defendants. Before: Murphy, P.J., and Griffin and W. A. Crane, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Griffin, J. In this case of admitted employment discrimination based upon religion, we are called upon to address a conflict between the free exercise of religion and the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. We resolve this conflict in favor of religious liberty. We hold that the Religipus Freedom Restoration Act of 1993, 42 USC 2Ó00bb et seq., bars application of Michigan’s Civil Rights Act to defendants’ conduct. I Plaintiff is a Protestant and the former fourth/fifth grade teacher at defendants’ St. Mary’s Parish School in Paw Paw. In April 1991, defendants advised plaintiff that her contract to teach would not be renewed for the 1991-92 school year because she was not a Catholic. The nonrenewal occurred consistent with a new policy of the school to employ only Catholics as teachers. Plaintiff contends that her primary obligation as a teacher at St. Mary’s was to teach the secular subjects of reading, English, mathematics, science, and social studies. However, plaintiff acknowledges that as a fourth/fifth grade teacher, she led her class in daily prayer, assisted students in preparing for Friday mass, selected the child readers for mass, attended mass, and utilized the Bible in her classroom. Plaintiff filed the present action alleging that defendants’ refusal to renew her teaching contract constituted employment discrimination based upon religion in violation of Michigan’s Civil Rights Act. The circuit court granted defendants’ motion for summary disposition pursuant to MCR 2.116(C) (10), finding no genuine issue of material fact and that defendants were entitled to judgment as a matter of law. The lower court’s ruling was based upon the Free Exercise Clause of the United States Constitution, US Const, Am I. The lower court also found plaintiffs claim barred by the "ministerial exception” to the civil rights law. See Assemany v Archdiocese of Detroit, 173 Mich App 752; 434 NW2d 233 (1988); Rayburn v General Conference of Seventh-Day Adventists, 772 F2d 1164, 1169 (CA 4, 1985), cert den 478 US 1020 (1986). We affirm on the ground that the state does not possess a compelling interest in regulating the religious discrimination at issue. II Plaintiff does not bring the present action under the federal Civil Rights Act of 1964, 42 USC 2000e et seq. It is clear that by operation of the express exemption for religious schools, plaintiff would not have a cause of action under the federal Civil Rights Act of 1964. Specifically, § 703(e) of the Civil Rights Act of 1964, 42 USC 2000e-2(e)(2), provides: [I]t shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society. Michigan’s Civil Rights Act does not contain a similar exemption for religious schools. The Michigan act broadly provides the following: (1) An employer shall not do any of the following: (a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status. [MCL 37.2202; MSA 3.548(202).] Plaintiff argues that in the absence of an exemption, the Michigan Civil Rights Act applies to church-operated schools. We agree with plaintiffs argument of statutory construction but hold that under the present facts, the federal Religious Freedom Restoration Act of 1993 is controlling. III The First Amendment of the United States Constitution, which is applicable to the states pursuant to the Fourteenth Amendment, US Const, Am XIV, Cantwell v Connecticut, 310 US 296; 60 S Ct 900; 84 L Ed 1213 (1940), provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Our Michigan Constitution also contains a Free Exercise Clause, Const 1963, art 1, § 4. See, generally, Alexander v Bartlett, 14 Mich App 177, 181; 165 NW2d 445 (1968). Recently, the Michigan Supreme Court held that state-mandated teacher certification requirements violate the Free Exercise Clause when applied to families who practice home schooling for religious reasons. People v DeJonge (After Remand), 442 Mich 266; 501 NW2d 127 (1993). We find the DeJonge plurality opinion by Justice Riley to be persuasive and hereby adopt its analysis as our own. The First Amendment guarantee of religious liberty is one of our most fundamental freedoms. As noted by Justice Riley, no other right was more precious to our founding fathers than the right to religious freedom: The Founding Fathers then reserved special protection for religious liberty as a fundamental freedom in the First Amendment of the constitution. This fortification of the right to the free exercise of religion was heralded as one of the Bill of Rights’ most important achievements. Indeed, Jefferson proclaimed that "[n]o provision in our constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority.” [DeJonge, supra at 278.] Because religious liberty is a fundamental freedom, our courts have a firmly rooted tradition of applying a compelling interest test to its regulation. In this regard, we concur with the barrage of criticisms of Employment Div, Dep’t of Human Resources v Smith, 494 US 872; 110 S Ct 1595; 108 L Ed 2d 876 (1990). In DeJonge, supra at 279, n 27, our Michigan Supreme Court noted a portion of these criticisms: We are not unaware of the criticism generated in reaction to Smith, which held that the First Amendment does not bar the "application of a neutral, generally applicable law to religiously motivated” conduct unless the Free Exercise Clause is in "conjunction with other constitutional protections . . . .” Smith, supra at 881. See, e.g., Smith, The rise and fall of religious freedom in constitutional discourse, 140 U Penn L R 149, 231, 232, 233 (1991)(referring to Smith, supra, as "the virtual abandonment of the Free Exercise Clause,” "reach[ing] a low point in modern constitutional protection under the Free Exercise Clause,” "leav[ing] the Free Exercise Clause without independent constitutional content and thus, for practical purposes, largely meaningless”); McConnell, Religious freedom at a crossroads, 59 U Chicago L R 115, 140 (1992) ("Smith converts a constitutionally explicit liberty into a nondiscrimination requirement, in violation of the most straightforward interpretation of the First Amendment text”); Laycock, Summary and synthesis: The crisis in religious liberty, 60 Geo Wash L R 841 (1992)(summa-rizing a symposium of ten articles and finding that "[n]o one in this symposium takes seriously the possibility that Employment Div v Smith might be defensible”). Nevertheless, this Court must follow the interpretation of the Free Exercise Clause in the prevailing opinions of the United States Supreme Court, "even though we may be in accord with the dissenting opinions in those cases.” People v Lechner, 307 Mich 358, 360-361; 11 NW2d 918 (1943). Recently, these concerns led Congress to enact the Religious Freedom Restoration Act of 1993, 42 USC 2000bb et seq. At the present time, the federal act grants rights of religious liberty that are greater than those afforded by the federal constitution. Specifically, the Religious Freedom Restoration Act of 1993 restores, as a matter of federal law, the compelling interest test that was diluted by Smith. The act, which is applicable to the states pursuant to 42 USC 2000bb-2(1), provides, in pertinent part, the following: (a) In general. Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section. (b) Exception. Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. [42 USC 2000bb-1.] We also note that the Michigan Supreme Court in DeJonge, supra at 279-280, n 27, emphasized our duty to apply independently to free exercise claims our state constitutional guarantee: On the other hand, we may certainly interpret the Michigan Constitution as affording additional protection to the free exercise of religion. However, because the ruling of Smith, supra at 881, commands that strict scrutiny be applied in the case at issue, we do not undertake to determine at this time the extent of the Michigan Constitution’s protection of the free exercise of religion generally. We do hold, however, that the Michigan Constitution mandates that strict scrutiny as articulated in this opinion be applied in the instant case. Alexander v Bartlett, 14 Mich App 177, 181; 165 NW2d 445 (1968)(art 1, § 4 of the Michigan Constitution " 'guarantees to every person the liberty to worship God according to the dictates of his own conscience’ ”). With varied results, Michigan courts have always applied a strict scrutiny test to state regulation of religious freedom. See, e.g., Sheridan Road Baptist Church v Dep’t of Ed, 426 Mich 462; 396 NW2d 373 (1986), cert den 481 US 1050 (1987), Dep’t of Social Services v Emmanuel Baptist Preschool, 434 Mich 380; 455 NW2d 1 (1990), DeJonge, supra, Fisher v Fisher, 118 Mich App 227, 231-232; 324 NW2d 582 (1982), and McLeod v Providence Christian School, 160 Mich App 333; 408 NW2d 146 (1987). Further, the educational value of religion is expressly recognized in our state constitution: "Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Const 1963, art 8, § 1. In light of this background, we view the concurring opinion in Smith by Justice O’Connor as more consistent with Michigan’s constitutional jurisprudence than the majority opinion in Smith. Nevertheless, in the present case it is not necessary for us to decide the breadth of our state constitutional guarantee because the Religious Freedom Restoration Act of 1993 clearly grants rights that are at least as great as those afforded by our state constitution. Additionally, defendants have not relied upon our state constitution either in the lower court or on appeal. IV After applying a strict scrutiny test, we conclude that the state does not possess a compelling interest in prohibiting religious discrimination in the employment of teachers in church-operated schools. In previous parochial-school cases, the United States Supreme Court has "recognized the critical and unique role of the teacher in fulfilling the mission of a church-operated school.” NLRB v Catholic Bishop of Chicago, 440 US 490, 501; 99 S Ct 1313; 59 L Ed 2d 533 (1979). Further, in holding that religious schools are not subject to the National Labor Relations Act, 29 USC 151 et seq., the United States Supreme Court has emphasized that religion pervades all aspects of a church-operated school: What was said of the schools in Lemon v Kurtzman, 403 US 602, 617 [91 S Ct 2105; 29 L Ed 2d 745] (1971), is true of the schools in this case: "Religious authority necessarily pervades the school system.” The key role played by teachers in such a school system has been the predicate for our conclusions that governmental aid channeled through teachers creates an impermissible risk of excessive governmental entanglement in the affairs of the church-operated schools. For example, in Lemon, supra, at 617, ... we wrote: "In terms of potential for involving some aspect of faith or morals in secular subjects, a textbook’s content is ascertainable, but a teacher’s handling of a subject is not. We cannot ignore the danger that a teacher under religious control and discipline poses to the separation of the religious from the purely secular aspects of pre-college education. The conflict of functions inheres in the situation.” Only recently we again noted the importance of the teacher’s function in a church school: "Whether the subject is 'remedial reading,’ 'advanced reading,’ or simply 'reading,’ a teacher remains a teacher, and the danger that religious doctrine will become intertwined with secular instruction persists.” Meek v Pittenger, 421 US 349, 370 [95 S Ct 1753; 44 L Ed 2d 217] (1975). Cf. Wolman v Walter, 433 US 229, 244 [97 S Ct 2593; 53 L Ed 2d 714] (1977). Good intentions by government — or third parties — can surely no more avoid entanglement with the religious mission of the school in the setting of mandatory collective bargaining than in the well-motivated legislative efforts consented to by the church-operated schools which we found unacceptable in Lemon, Meek, and Wolman. [NLRB, supra at 501-502.] The facts of the present case support the above observations concerning the pervasive religious authority in teaching, even secular subjects, at church-operated schools. The various religious duties that plaintiff admits performing include leading her students in prayer, preparing her students for mass, selecting child readers for mass, attending mass, and utilizing the Bible in the classroom. We find these teaching responsibilities to be inexorably intertwined with the primary function of defendants’ school, which is the education of its students consistent with the Catholic faith. Imposition of religious discrimination laws to teaching positions in religious schools would detrimentally affect the operation of such schools. The state simply has no interest, and certainly no compelling interest, in requiring church-operated schools to employ teachers of other faiths or of no faith. Such state regulation would substantially burden the mission and function of religious schools. This burden was recognized and exempted by the United States Congress, but not by the Michigan Legislature. In the present case, the burden of state regulation is substantial while the state’s interest is less than compelling. Accordingly, we hold that by operation of the Supremacy Clause of the United States Constitution, US Const, art VI, § 2, the Religious Freedom Restoration Act of 1993 bars application of the Michigan Civil Rights Act to defendants’ conduct. Affirmed. W. A. Crane, J., concurred. We question, but do not decide, the applicability of the "ministerial exception.” For purposes of defendants’ motion for summary disposition, we accept plaintiffs factual assertion that her primary duties were secular in nature. The Religious Freedom Restoration Act of 1993 was enacted while the present appeal was pending. The act directs that it be applied retroactively. 42 USC 2000bb-3(a). Murphy, P.J. (concurring). I agree that summary disposition was appropriately granted to defendants, but write separately to explain how my analysis differs from that utilized by the majority. The majority holding is based on the Religious Freedom Restoration Act of 1993 (rfra), 42 USC 2000bb et seq., enacted after this appeal was filed and never argued by the parties. Although the constitutionality of the rfra is not before us today, I question Congress’ authority to legislate the standard of judicial review applicable to a free exercise of religion claim. Unlike the majority, I find it unnecessary to consider the rfra’s application to the present case because I would hold that strict scrutiny is the proper standard of review of plaintiffs free exercise claim as established by the United States Supreme Court and the Michigan Supreme Court.

Robert S. Whalen vs. NYNEX Information Resources Company. Suffolk. November 9, 1994. March 28, 1995. Present: Liacos, C.J., Abrams, Nolan, O’Connor, & Greanby, JJ. Constitutional Law, Trial by jury. Practice, Civil, Jury trial. Jury and Jurors. Employment, Discrimination. Anti-Discrimination Law, Employment, Handicap, Prima facie case, Burden of proof. Words, “Qualified handicapped person.” A plaintiff was entitled to a jury trial under the provisions of art. 15 of the Declaration of Rights of the Massachusetts Constitution on his claim filed pursuant to G. L. c. 151B, § 4 (16), alleging employment discrimination based on handicap. [794-795] In an action alleging handicap discrimination in employment in violation of G. L. c. 151B, § 4 (16), the plaintiff did not offer sufficient evidence that he was a qualified handicapped person and the judge properly dismissed the complaint. [795-797] Error in a judge’s striking the plaintiff’s demand for a jury trial in a complaint alleging employment discrimination based on handicap was not prejudicial where the plaintiff failed to establish a prima facie case of handicap discrimination. [797] Civil action commenced in the Superior Court Department on November 9, 1987. The case was heard by Thomas E. Connolly, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Frederick T. Golder for the plaintiff. Lisa M. Birkdale for the defendant. Nolan, J. The plaintiff appealed from a judgment of a Superior Court judge dismissing his complaint and entering judgment for the defendant on the plaintiffs claim of handicap discrimination in employment. The plaintiff claims on appeal that the judge erred by granting the defendant’s motian to strike his demand for a trial by jury. The plaintiff argues also that the judge erred in concluding that he failed to establish a prima facie case of handicap discrimination. The plaintiff commenced this action in the Superior Court alleging that the defendant had refused to hire him for the position of premise sales representative on the basis of his handicap. The judge granted summary judgment for the defendant on two of the plaintiffs three counts, allowing the plaintiffs claim under G. L. c. 15IB, § 4 (16) (1992 ed.), to remain. The judge also granted the defendant’s motion to strike the plaintiffs demand for a jury trial. After a two-day bench trial, the judge determined that the plaintiff had failed to establish a prima facie case of employment discrimination on the basis of a handicap and entered judgment for the defendant. The plaintiff then filed a timely notice of appeal in the Appeals Court. The Appeals Court affirmed the decision of the Superior Court after concluding that the plaintiff did not have a right to a trial by jury for a handicap discrimination claim filed pursuant to G. L. c. 151B. 36 Mass. App. Ct. 148 (1994). We granted the plaintiffs application for further appellate review. Although we conclude that a trial by jury is a matter of State constitutional right in cases of employment discrimination on the basis of a handicap, the judge’s error in striking the plaintiff’s claim for a trial by jury was not prejudicial because the plaintiff failed to produce sufficient evidence to establish a prima facie case of handicap discrimination pursuant to G. L. c. 151B. 1. Right to a trial by jury. The issue whether a plaintiff is entitled to a trial by jury on a claim of handicap discrimination in employment is an issue of first impression in the Commonwealth. We have stated that art. 15 of the Massachusetts Declaration of Rights “preserves the ‘common law trial by jury in its indispensable characteristics as established and known at the time the Constitution was adopted’ in 1780.” Department of Revenue v. Jarvenpaa, 404 Mass. 177, 185-186 (1989), quoting Opinion of the Justices, 237 Mass. 591, 596 (1921). In addition, we have concluded that “the Legislature may grant a right to a trial by jury to one who is aggrieved by a violation of a statute.” Nei v. Burley, 388 Mass. 307, 312 (1983). In Dalis v. Buyer Advertising, Inc., 418 Mass. 220, 226 (1994), an opinion released after the opinion of the Appeals Court in this case, we held that art. 15 protects a plaintiff’s right to a trial by jury on a claim of employment discrimination based on sex. As in Dalis, a plaintiff’s handicap discrimination claim filed pursuant to G. L. c. 15IB, § 4 (16), is “analogous to common law actions sounding in both tort and contract.” Dalis v. Buyer Advertising, Inc., supra at 223. We conclude, therefore, that the plaintiff is constitutionally entitled to a trial by jury for his claim of employment discrimination based on his handicap. See art. 15; G. L. c. 15IB, § 4 (16). 2. Prima facie case of handicap discrimination. The plaintiff claims that the judge erred in concluding that he failed to establish a prima facie case of handicap discrimination. We disagree. We have recognized a distinction between employment discrimination cases where the plaintiff alleges “disparate treatment” and those cases involving a claim of “disparate impact.” See Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 384 (1993), citing Smith College v. Massachusetts Comm’n Against Discrimination, 376 Mass. 221, 227 (1978). In a “disparate treatment” case, “proof of the employer’s discriminatory motive is critical.” Cox v. New England Tel. & Tel. Co., supra at 384-385. We have adopted, therefore, a framework of shifting burdens of persuasion and production of evidence that is “intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 255 n.8 (1981). See Cox v. New England Tel. & Tel. Co., supra. This framework of shifting burdens, however, does not apply in a “disparate impact” case because “discriminatory motive is not an essential part of the proof.” Smith College v. Massachusetts Commission Against Discrimination, supra. The present case is one of alleged “disparate treatment.” In an employment discrimination case involving “disparate treatment,” the plaintiff has the initial burden of establishing a prima facie case. See Blare v. Husky Injection Molding Sys. Boston, Inc., ante 437, 441 (1995); Tate v. Department of Mental Health, ante 356, 361 (1995). To establish a prima facie case of “disparate treatment” on the basis of a handicap, a plaintiff must produce some evidence that: (1) he is handicapped; (2) he is a qualified handicapped person and he applied for a position for which the employer was seeking applicants; (3) the employer rejected the plaintiff for the position in spite of his qualifications; (4) after the employer rejected the plaintiff, the position remained open and the employer continued to seek applicants. See Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 441, 445; Tate v. Department of Mental Health, supra. See also Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 135 & n.5 (1976). The plaintiff does not have to prove each of the four elements to establish a prima facie case in order to avoid a directed verdict. See PJ. Liacos, Massachusetts Evidence § 5.6.1 (6th ed. 1994); 9 J. Wigmore, Evidence § 2494 (Chadbourn rev. ed. 1981). Rather, the plaintiff must produce evidence that, if believed, would be sufficient to establish facts that would entitle him to judgment. See P.J. Liacos, supra at 220 (stating that evidence must be such that “jury could reasonably find either way” as to existence of fact); 9 J. Wigmore, supra. A “qualified handicapped person” is one who “is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with reasonable accommodation to his handicap.” G. L. c. 151B, § 1 (16). See Cox v. New England Tel. & Tel. Co., supra at 381-384. The issue on further appellate review is whether the plaintiff offered sufficient evidence that he was a. qualified handicapped person. If he did, the case should be remanded for a jury trial. If he did not, despite the judge’s erroneous ruling on the jury trial issue, there is no need to remand this matter to the Superior Court for trial. We conclude that the evidence was insufficient on the issue whether the plaintiff was a qualified handicapped person. The defendant used a three-part testing process to screen applicants for the position of premise sales representative. The defendant considered hiring only those applicants who had passed all three tests. The third test replicates situations that confront premise sales representatives. The test measures skills such as oral communication skills, factfinding, quality of reasoning, and problem-solving ability. The evidence was that the test was a valid predictor of success on the job. The plaintiff failed the third test. Thus, the plaintiff’s evidence on the issue of qualified handicapped person was insufficient to submit the case to the jury. The judge’s error in striking the plaintiff’s demand for a jury trial was not prejudicial because the evidence was insufficient to establish a prima facie case of handicap discrimination. Judgment affirmed. The plaintiff had suffered an injury to his brain stem in an automobile accident in 1975. In 1986, the plaintiff applied for a sales representative position with the defendant. When the defendant declined to offer the plaintiff a job, the plaintiff filed a complaint in the Superior Court alleging that the defendant had discriminated against him on the basis of his handicap in violation of G. L. c. 151B, § 4 (1992 ed.), art. 114 of the Amendments to the Massachusetts Constitution, and G. L. c. 12, § 111 (1992 ed.). The plaintiff also filed a handicap discrimination claim with the Massachusetts Commission Against Discrimination. In his complaint filed in the Superior Court, the plaintiff made a demand for a trial by jury and sought, inter alla, compensatory damages, punitive damages, interest and costs, and reasonable attorney’s fees. General Laws c. 151B, § 4 (1992 ed.), states: “It shall be an unlawful practice:. . . 16. For any employer, personally or through an agent, to dismiss from employment or refuse to hire, rehire or advance in employment or otherwise discriminate against, because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer’s business.” Article 15 of the Massachusetts Declaration of Rights provides: “In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practiced, the parties have a right to a trial by jury; and this method of procedure shall be held sacred, unless, in causes arising on the high seas, and such as relate to mariners’ wages, the legislature shall hereafter find it necessary to alter it.” In Dalis v. Buyer Advertising, Inc., 418 Mass. 220 (1994), the plaintiff claimed that her employer had discharged her because she had become pregnant. The plaintiff filed suit under G. L. c. 151B, § 4 (1) (1992 ed.), claiming that her employer had discriminated against her on the basis of sex. On appeal from a Superior Court judge’s denial of the defendant’s motion to strike the plaintiff’s jury demand, we held that the plaintiff had a right to a jury trial on her G. L. c. 151B claim. See id. at 226. We decided first that the plaintiff’s sex discrimination claim “[fell] squarely within the language of art. 15” because it was a “suit between two persons which clearly set[] forth a controversy concerning property.” Id. at 223. We then concluded that the plaintiffs claim was not within the court’s equity jurisdiction, as it existed at the time of the adoption of the State Constitution, in either subject matter or remedy sought. See id., citing Parker v. Simpson, 180 Mass. 334, 355 (1902). Instead, we determined that “the plaintiffs sex discrimination claim [was] analogous to common law actions sounding in both tort and contract.” Dalis v. Buyer Advertising, Inc., supra at 223, citing Gallagher v. Wilton Enters., Inc., 962 F.2d 120, 122-123 (1st Cir. 1992) (stating that employment discrimination suits are comparable to common law tort and contract actions). In the sales assessment process, the applicant participates in two separate role-playing exercises with three sales assessment staff members and the sales assessment staff director. The entire process takes approximately five and one-half hours. Each of the evaluators then rates the applicant on his performance based on eleven different criteria. The evaluator’s results are combined and collectively result in one of three ratings: (1) more than acceptable; (2) acceptable, and; (3) not acceptable. Although the plaintiff had passed the first two tests, he received a rating of “not acceptable” on the third test. There was no evidence challenging the validity of the test. Nor was there any evidence that the test was in any way discriminatory.

DZIERBOWICZ v AMERICAN SEATING COMPANY Docket No. 160829. Submitted December 15, 1994, at Grand Rapids. Decided March 6, 1995, at 9:10 a.m. Leave to appeal sought. Barbara P. Dzierbowicz brought an action in the Kent Circuit Court against American Seating Company, alleging that she was discharged from her employment by the defendant because of her medical condition and the resulting expenses and inconveniences that condition entailed in violation of the Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq. The defendant responded that the plaintiff was discharged because of a general cutback in its labor force and because of technological changes that left no openings for which the plaintiff was qualified. The court, Robert A. Benson, J. premising its ruling on the assumption that the plaintiff’s allegations were sufficient to meet her burden of establishing a prima facie case of discriminatory discharge, granted summary disposition for the defendant on the basis that the defendant’s pleadings established that the discharge was for a proper business purpose and that the plaintiff had failed to establish that the business purpose given by the defendant was a mere pretext. The plaintiff appealed. The Court of Appeals held: Once an employee has pleaded a prima facie case of employer handicapper discrimination in an action for wrongful discharge, the employer has the burden of establishing that the discharge of the employee was undertaken for a valid business purpose rather than as .a result of handicapper discrimination. If the employer’s pleadings sufficiently establish a valid business purpose for the discharge, the employee has the burden of showing that the business purpose was a mere pretext for discrimination. Here the defendant’s pleadings clearly established a valid business purpose for the plaintiff’s discharge that was not related to her handicap: cutbacks in staff levels and technological changes that left the plaintiff unqualified for any available job. The plaintiffs allegation that the defendant was aware that her medical condition would result in future medical expenses and medically related absences from work was insufficient to establish that the reason given by the defendant was a mere pretext for discrimination. References Am Jur 2d, Wrongful Discharge § 237. Modern status of rule that employer may discharge at-will employee for any reason. 12 ALR4th 544. Affirmed. C.O. Grathwohl, J., dissenting, stated that the pleadings raise a question of fact whether the plaintiffs discharge was motivated by her handicap and the resulting expenses and inconveniences that would occur as a result of her medical treatment and that such a question of fact was one that should be decided by a trier of fact, not one that should be disposed of summarily. Civil Rights — Handicappers —• Discharge prom Employment — Pleadings — Burdens of Proof. A discharged employee in an action alleging wrongful discharge as a result of handicapper discrimination has the burden of establishing that the discharge was the result of handicapper discrimination; once the employee has pleaded a prima facie case of handicapper discrimination, the employer has the burden of establishing that the employee was discharged for a valid business purpose that is not related to handicapper discrimination; if the employer sufficiently establishes a valid business purpose for the discharge, the employee then has the burden of establishing that the claimed business purpose wafe a mere pretext for handicapper discrimination (MCL 37.1202[1] [b]; MSA 3.550[202][1][b]). Meana, Spruit & Bedevia, P.C. (by Noreen K. Myers), for the plaintiff. Miller, Johnson, Snell & Cummiskey (by James S. Brady and Charles C. Hawk), for the defendant. Before: Mackenzie, P.J., and J. W. Fitzgerald and C. O. Grathwohl, JJ. Former Supreme Court justice, sitting on the Court of Appeals by assignment pursuant to Administrative Order No. 1994-7. Circuit judge, sitting on the Court of Appeals by assignment. MacKenzie, P.J. Plaintiff, who was temporarily laid off by and then terminated from employment with defendant, brought this suit alleging that her discharge was in violation of the Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq. She appeals as of right from the circuit court’s grant of summary disposition for defendant pursuant to MCR 2.116(0(10). We affirm. Plaintiff has rheumatoid arthritis that resulted in her having had several surgeries and having taken medical leaves. Her theory was that defendant fired her to avoid additional insurance and medical costs. Defendant responded that plaintiff was laid off and then terminated because of a cutback in its labor force. A motion for summary disposition under MCR 2.116(0(10) tests whether there is factual support for a claim. When deciding a motion for summary disposition, a court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it. Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993). In order to establish a prima facie case of handicap discrimination, a plaintiff must establish: (1) the plaintiff is "handicapped” as defined in the act; (2) the handicap is unrelated to the plaintiff’s ability to perform the duties of a particular job; (3) the plaintiff has been discriminated against in one of the ways set forth in § 202 of the hcra, MCL 37.1202; MSA 3.550(202). Doman v Grosse Pointe Farms, 170 Mich App 536, 541; 428 NW2d 708 (1988). In this case, the relevant section is § 202(1)(b), which prohibits the discharge of an employee because of a handicap. Once a plaintiff succeeds in establishing a prima facie case, the burden shifts to the employer to show legitimate, nondiscriminatory reasons for its action. Crittenden v Chrysler Corp, 178 Mich App 324, 331; 443 NW2d 412 (1989). If the employer rebuts the plaintiffs prima facie case, the burden shifts back to the plaintiff, who then has to show that the employer’s reasons constituted a pretext for discrimination. Id. See also Clark v Uniroyal Corp, 119 Mich App 820, 826; 327 NW2d 372 (1982); McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973). In this case, plaintiff alleged that she was handicapped because of her rheumatoid arthritis and surgical joint replacements, that her handicap was unrelated to her ability to perform her job duties, and that she was discharged because defendant knew she would need further surgeries. The trial court assumed, for purposes of the motion for summary disposition under MCR 2.116(0(10), that these allegations were sufficient for plaintiff to meet her burden of establishing a prima facie case of handicap discrimination. The burden of going forward then shifted to defendant to show legitimate, nondiscriminatory reasons for plaintiffs layoff and subsequent termination. Clark, supra at 826. Defendant rebutted plaintiffs allegations by statistical evidence that it had reduced its workforce from 2,000 employees in 1978 to 750 at the time of the motion for summary disposition. Between 1981 and 1991, the year in which plaintiff was terminated, factory clerk positions (plaintiffs job) were reduced from sixteen to three. The affidavit of defendant’s director of human resources further stated that plaintiffs position was one of those consolidated or absorbed by other positions because of computerization and technological changes and that plaintiff was not qualified for any positions for which defendant had openings. This evidence was sufficient to meet defendant’s burden of producing evidence that a valid purpose existed regarding why plaintiff was terminated. The burden then shifted back to plaintiff to show that defendant’s business reasons for her termination were merely a pretext. Plaintiff’s allegations that because the company knew she may have required additional surgeries in the future and more time off for medical leave were insufficient to rebut the evidence presented by defendant. Both plaintiff’s immediate supervisor and the director of human resources stated that neither plaintiff’s medical condition nor her insurance costs played a part in the decision to terminate her. We agree with the trial court’s ultimate decision that plaintiff failed to present material facts indicating that the business reasons offered by defendant for her termination were merely a pretext. Additionally, we agree with the trial court that summary disposition was appropriate regarding plaintiff’s other allegations of discrimination pertaining to her position and other openings within the company. Because mere speculation and inferences will not sustain an argument of intentional discrimination, Clark, supra at 826, plaintiff has not presented any material issue of fact to show that the business reasons proffered by defendant were merely a pretext. After our de novo review of the issues raised by plaintiff on appeal, we find summary disposition was properly granted. Wieringa v Blue Care Network, 207 Mich App 143, 145; 523 NW2d 872 (1994). Affirmed. J. W. Fitzgerald, J., concurred. C. O. Grathwohl, J. (dissenting). I dissent. It is disingenuous to believe an employer will admit that a handicapped employee was discharged in violation of the Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq. The majority accepts the self-serving affidavits that plaintiffs future surgical expenses for rheumatoid arthritis and joint replacements played no part in the decision to terminate her. Defendant set forth the reason for its termination of plaintiff in a December 17, 1991, document filed with the Michigan Employment Security Commission: Resulting from divisional operations consolidation and subsequent work force reduction, this claimant’s functional responsibilities were eliminated along with other employee positions within this organization’s operations. Plaintiff alleged that she would show that defendant had recalled 130 employees in 1991 and, further, that it had been necessary for defendant to hire a Kelly temporary employee to replace her during her sick leave. A review of plaintiffs work performance evaluations shows her to be a competent, dependable employee. In Crittendon v Chrysler Corp, 178 Mich App 324; 443 NW2d 412 (1989), this Court held that summary disposition is inappropriate if the plaintiff might develop a record with respect to an issue on which reasonable minds could differ. Reasonable minds could differ regarding defendant’s motive in discharging the plaintiff, depending on the weight the jury gives to the testimony that plaintiff told her supervisors that she required additional surgeries and they had reports to the effect from her surgeon. In addition, the plaintiff testified that she was ostracized from the "team” after her last return from medical leave. The trier of fact should determine if defendant had a legitimate business reason to discharge plaintiff or if the business reasons were merely a pretext. I would reverse and remand for trial.

LYTLE v MALADY Docket No. 157627. Submitted July 7, 1994, at Grand Rapids. Decided March 6, 1995, at 9:30 a.m. Leave to appeal sought. Nancy Lytle brought an action in the Muskegon Circuit Court against Michael Malady and Howmet Corporation after she was discharged from employment at Howmet, where Malady was her supervisor. Against Howmet, Lytle alleged unlawful age and gender discrimination under the Civil Rights Act and breach of an employment contract providing for termination for just cause only. Against Malady, Lytle alleged tortious interference with her contractual relationship with Howmet. The court, R. Max Daniels, J., granted summary disposition for Malady and Howmet. Lytle appealed. The Court of Appeals held: 1. Where, as here, an employee is discharged as a result of an economically motivated reduction in force by an employer, a prima facie case and rebuttable presumption of age discrimination under the disparate-treatment theory is established upon a showing that the employee was within the protected class, that the employee was qualified to assume another position with the employer at the time of discharge, and that age was a determining factor in the decision to discharge the employee. To rebut the presumption of disparate treatment, the employer must articulate some legitimate, nondiscriminatory reason for the discharge. Once the employer offers a nondiscriminatory reason, the employee must show that the employer’s proffered reason is a mere pretext and that discrimination was more likely the employer’s true motivation in discharging the employee. In this case, genuine issues of material fact remain with respect to whether Lytle has established a presumption of age discrimination and has shown that Howmet’s proffered reasons for her discharge were a mere pretext for discrimination. The trial court therefore erred in summarily dismissing the age discrimination claim. References Am Jur 2d, Wrongful Discharge §§ 1, 93, 102, 103, 120-122, 163, 164, 237. Modern status of rule that employer may discharge at-will employee for any reason. 12 ALR4th 544. Right to discharge allegedly "at-will” employee as affected by employer’s promulgation of employment policies as to discharge. 33 ALR4th 120. Liability of corporate director, officer, or employee for tortious interference with corporation’s contract with another. 72 ALR4th 492. 2. A prima facie case and rebuttable presumption of gender discrimination is established by a female in connection with the termination of her employment as part of an economically motivated reduction in force by the employer upon a showing by the employee that she was a member of a class entitled to protection under the Civil Rights Act, that she was qualified and applied for a position available at the employer, and that she was rejected under circumstances giving rise to an inference of illegal discrimination. The presumption may be rebutted by the employer if it articulates a legitimate, nondiscriminatory reason for the discharge. If the employer offers a nondiscriminatory reason, the employee must show that the proffered reason is a mere pretext for discrimination. In this case, there are genuine issues of material fact concerning whether Lytle has established a presumption of gender discrimination and has shown that Howmet’s proffered reasons for her discharge were a mere pretext for discrimination. The trial court therefore erred in summarily dismissing the gender discrimination claim. 3. Lytle’s allegations give rise to a genuine issue of material fact with regard to whether policy statements in Howmet’s employee handbook and oral assurances of job security created a legitimate expectation of just-cause employment. Bona fide economic reasons are just cause for discharge. However, an employer may not use economic necessity as a pretext for unlawful discrimination. Where, as in this case, the parties dispute the genuineness of the claimed economic necessity, the question of just cause is one for the trier of fact. The trial court erred in summarily dismissing the claim of breach of a just-cause employment contract. 4. Lytle’s allegations do not sufficiently establish that Malady tortiously interfered with her contractual relationship with Howmet in the absence of any claims that Malady acted outside the scope of his authority and that he acted for personal benefit rather than for the benefit of his employer. The trial court did not err in summarily dismissing the claim of tortious interference with a contractual relationship. Affirmed in part, reversed in part, and remanded. 1. Civil Rights — Employment Discrimination — Age — WorkForce Reductions. An employee discharged as part of an economically motivated reduction in force by the employer establishes a prima facie case and rebuttable presumption of unlawful age discrimination under the Civil Rights Act upon a showing that the employee was within the protected class, that the employee was qualified to assume another position with the employer at the time of discharge, and that age was a determining factor in the decision to discharge the employee; the employer can rebut the presumption by articulating some legitimate, nondiscriminatory reason for discharge; if the employer articulates a nondiscriminatory reason, the employee must then show that the proffered reason is a mere pretext for discrimination (MCL 37.2202[1][a]; MSA 3.548[202][1][a]). 2. Civil Rights — Employment Discrimination — Gender — WorkForce Reductions. An employee discharged as part of an economically motivated reduction in force by the employer establishes a prima facie case and rebuttable presumption of unlawful gender discrimination under the Civil Rights Act upon a showing that the employee was a member of a class entitled to protection under the act, that the employee was qualified and applied for a position available at the employer, and that the employee was rejected under circumstances giving rise to an inference of illegal discrimination; the employer can rebut the presumption by articulating some legitimate, nondiscriminatory reason for discharge; if the employer articulates a nondiscriminatory reason, the employee must then show that the proffered reason is a mere pretext for discrimination (MCL 37.2202[l][a]; MSA 3.548[202][l][a]). 3. Master and Servant — Employment Contracts. Employment contracts for an indefinite period are presumed to be terminable at the will of either party for any reason or for no reason; this presumption may be rebutted where the employee establishes the existence of an explicit or implied-in-fact promise of employment terminable for just cause only or presents evidence of employer policies or procedures creating a legitimate expectation of employment terminable for just cause only. 4. Master and Servant — Employment Contracts. An employer’s written policy statements that create legitimate expectations in employees of employment terminable for just cause only may be unilaterally modified by an employer upon reasonable notice of the change to affected employees. 5. Torts — Tortious Interference with Contracts — Employment Contracts. An employee claiming tortious interference by a supervisor with the employee’s contractual relationship with the employer must show that the supervisor acted beyond the scope of the supervisor’s authority and acted for personal benefit rather than in the interest of the employer. Bott & Spencer, P.C. (by Timothy J. Bott), for the plaintiff. Varnum, Riddering, Schmidt & Howlett (by Joseph J. Vogan), for the defendants. Before: Holbrook, Jr., P.J., and Murphy and J. C. Kingsley, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Holbrook, Jr., P.J. In this wrongful discharge case, plaintiff’s complaint alleged three counts against defendant Howmet Corporation: age discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., gender discrimination under the Civil Rights Act, and breach of a contract providing for termination for just cause only. The complaint also alleged tortious interference with contractual relations against defendant Michael Malady. Following some discovery, defendants moved separately for summary disposition, which was granted by the .trial court on all counts. Plaintiff appeals as of right, and we affirm in part, reverse in part, and remand. I In 1973, Howmet, a manufacturer of aircraft engine parts, hired plaintiff as a general clerk. Following a succession of positive performance appraisals and promotions, she was promoted in 1979 by her supervisor, John Ozar, to employment manager of the human resources department of Howmet’s Whitehall division. When defendant Malady became plaintiffs supervisor in 1987, a personality conflict arose, and in 1989, on Malady’s recommendation, she was demoted to human resources specialist. A younger, allegedly less qualified man was promoted to replace her. As a result of declines in military spending and a downturn in the commercial airline industry, Howmet instituted a series of reductions in its work force between 1988 and 1991. In August 1991, William Roof, director of the Whitehall human resources department, was directed to cut his 1992 department budget by fifteen percent (approximately $439,000). In November 1991, Roof eliminated four positions in the human resources department, including plaintiffs position as human resources specialist, and reassigned her job duties to other persons within the department. Roof decided to eliminate plaintiff’s position because her main responsibilities involved the hourly workers who bore the brunt of the downsizing. Plaintiffs "termination evaluation” indicated that Howmet would rehire plaintiff in the event a nonsupervisory, administrative position became open. II A motion for summary disposition under MCR 2.116(0(10) tests the factual sufficiency of a claim. In reviewing a grant of summary disposition, we must independently determine, giving the benefit of doubt to the nonmovant, whether the movant would have been entitled to judgment as a matter of law. Adkins v Thomas Solvent Co, 440 Mich 293, 302; 487 NW2d 715 (1992); Featherly v Teledyne Industries, Inc, 194 Mich App 352, 357; 486 NW2d 361 (1992). This Court reviews a summary disposition determination de novo as a question of law. Borman v State Farm Fire & Casualty Co, 198 Mich App 675, 678; 499 NW2d 419 (1993), aff'd 446 Mich 482; 521 NW2d 266 (1994). III Plaintiff asserts that the trial court erred in finding that no genuine issue of material fact existed with respect to plaintiff’s prima facie case of age discrimination and in granting Howmet summary disposition pursuant to MCR 2.116(C) (10). We agree and reverse. A Plaintiff’s claim of age discrimination is based upon the Civil Rights Act, which provides in pertinent part: (1) An employer shall not do any of the following: (a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of ... age ... . [MCL 37.2202; MSA 3.548(202).] This Court has held that federal precedent, while not binding, is persuasive authority in interpreting and applying the Civil Rights Act. Featherly, supra at 357-358; Slayton v Michigan Host, Inc, 144 Mich App 535, 548, n 7; 376 NW2d 664 (1985). B An age discrimination claim can be based on two theories: (1) disparate treátment, which requires a showing of either a pattern of intentional discrimination against protected employees, e.g., employees aged forty to seventy years, or against an individual plaintiff; or (2) disparate impact, which requires a showing that an otherwise facially neutral employment policy has a discriminatory effect on members of a protected class. See Farmington Ed Ass’n v Farmington School Dist, 133 Mich App 566; 351 NW2d 242 (1984). In this case, plaintiff has presented competent evidence only of a disparate treatment claim. A plaintiff can establish a claim of disparate treatment with sufficient direct or indirect evidence of intentional discrimination. Direct evidence of disparate treatment would be evidence that, if believed, would prove the existence of the employer’s illegal motive without benefit of presumption or inference. Matras v Amoco Oil Co, 424 Mich 675, 683; 385 NW2d 586 (1986). That is not the usual case, however, because an employer is rarely so blatant as to announce its illegal motives. Instead, the usual case must be proven by indirect (circumstantial or statistical) evidence. In light of this reality, courts have created special rules of proof in order "to sharpen the inquiry into the elusive factual question of intentional discrimination.” Texas Dep’t of Community Affairs v Burdine, 450 US 248, 255, n 8; 101 S Ct 1089; 67 L Ed 2d 207 (1981). A prima facie case of age discrimination varies with differing factual situations. Matras, supra at 684. Where, as here, a plaintiff is discharged as a result of an employer’s economically motivated reduction in force (rif), a prima facie case of disparate treatment requires an initial showing, by a preponderance of the evidence, that (1) the plaintiff was within the protected class and was discharged or demoted, (2) the plaintiff was qualified to assume another position at the time of discharge or demotion, and (3) age was "a determining factor” in the employer’s decision to discharge or demote the plaintiff. Matras, supra; McDonnell Douglas Corp v Green, 411 US 792, 802; 93 S Ct 1817; 36 L Ed 2d 668 (1973). Because plaintiff has presented no direct evidence of age discrimination by Howmet, she must attempt to create through indirect evidence a rebuttable presumption of discrimination. In a rip case, it is insufficient for a plaintiff to show merely that the employer retained a younger employee while discharging an older employee. Matras, supra at 684; Featherly, supra at 359. Once established, a prima facie case creates a rebuttable presumption of disparate treatment. Burdine, supra at 252-253. At this point, the burden of production shifts to the defendant — as opposed to the burden of persuasion that never shifts —to rebut the presumption of disparate treatment by articulating (not proving) "some legitimate, nondiscriminatory reason” for the adverse employment decision against the plaintiff. Id. at 253-258. The defendant’s explanation must be clear and reasonably specific to afford the plaintiff "a full and fair opportunity” to demonstrate pretext. Id. at 256. If the defendant carries its burden of production, the presumption of discrimination is dispelled, and the factual inquiry proceeds to a new level of specificity. Id. at 255. See also St Mary’s Honor Center v Hicks, 506 US —; 113 S Ct 2742; 125 L Ed 2d 407, 422 (1993). The plaintiff’s burdens of production and persuasion merge, requiring her to prove by a preponderance of the evidence not only that the defendant’s proffered reasons are a mere pretext but also that illegal discrimination was more likely the defendant’s true motivation in discharging or demoting the plaintiff. Id., Fuentes v Perskie, 32 F3d 759, 764 (CA 3, 1994); Bodenheimer v PPG Industries, Inc, 5 F3d 955, 957 (CA 5, 1993). At this juncture, we note that there is a crucial distinction between a plaintiff’s prima facie case for purposes of surviving a summary disposition motion and a prima facie case sufficient to persuade a trier of fact at trial with regard to the ultimate question whether a defendant intentionally discriminated against the plaintiff. While the latter requires a plaintiff to prove her case to the trier of fact by a preponderance of the evidence, the former does not require her to go so far. Meeka v D & F Corp, 158 Mich App 688, 694; 405 NW2d 125 (1987); Fuentes, supra at 763-764. Neither a trial court nor this Court on appellate review of a summary disposition determination need conduct a minitrial to determine whether the plaintiff has met her burden of presenting a prima facie case by a preponderance of the evidence. Instead, for the plaintiff to survive a summary disposition motion, she need only tender specific factual evidence that could lead a reasonable jury to conclude that the defendant’s proffered reasons are a pretext for age discrimination. Bodenheimer, supra at 958; Hicks, supra, 125 L Ed 2d 416. Thus, the plaintiff must establish, either directly or indirectly, the existence of a genuine issue of material fact that the defendant’s proffered reasons are unworthy of credence, and that illegal age discrimination was more likely the defendant’s true motivation in discharging or demoting her. Id.; Featherly, supra at 362-363. Cf. Bouwman v Chrysler Corp, 114 Mich App 670, 678-679; 319 NW2d 621 (1982) (directed verdict). C Two issues are presented on appeal, both arising naturally from the McDonnell Douglas burden-shifting analysis: whether plaintiff created a genuine issue of material fact with regard to the existence of a prima facie case of discrimination by indirect evidence; and, if so, whether plaintiff created a genuine issue of material fact concerning whether Howmet’s proffered reasons were a mere pretext for age discrimination. 1 In this case, plaintiff’s prima facie case is based solely on circumstantial evidence. She alleges that in January 1989, defendant Malady demoted her from employment manager to human resources specialist, while simultaneously promoting Walter Boczkaja to employment manager. Boczkaja was younger, had less seniority with Howmet, less experience in the area of human resources, and had been trained by plaintiff during her tenure as employment manager. Plaintiff also alleges that, approximately six weeks before she was discharged in 1991 at age forty-four, Howmet hired Andrea Achterhoff, age thirty-one, as human resources specialist for its Operhall Research Center (orc), a division separate from the Whitehall division where plaintiff had worked. Plaintiff also alleges that, as part of an effort by Howmet to implement a new manufacturing approach, Jeff Billingsley, a training and development manager, was transferred from the corporate human resources department to Whitehall’s human resources department. Both Achterhoff and Billingsley were younger than plaintiff, had less seniority, and, according to plaintiff, performed duties that she could have assumed considering her nineteen years of experience at Howmet. We find plaintiff’s allegations, although meager, to be sufficient to create a genuine issue of material fact that age was a determining factor in her discharge. Because this is a rif case, Howmet’s decision to discharge qualified, older employees is not inherently suspicious but rather readily explainable in terms of its economic situation. Standing alone, the fact of such discharges does not warrant shifting the burden of production to How-met to justify its decision. Featherly, supra at 355. Here, however, we find that Howmet’s retaining and hiring of younger, less senior, and allegedly less qualified employees, while discharging plaintiff, "exude[s] that faint aroma of impropriety” sufficient to create a rebuttable presumption of disparate treatment. Thornbrough v Columbus & Greenville R Co, 760 F2d 633, 644 (CA 5, 1985). 2 In rebuttal, Howmet asserts that the elimination of plaintiff’s position as human resources specialist was justified because of a projected downturn in sales and a concomitant reduction in the hourly work force for which plaintiff was primarily responsible. Howmet further asserts that plaintiff was not replaced but that her duties were reassigned to various other employees. Howmet further claims that the hiring of Achterhoff for the position of human resources representative at orc was irrelevant to plaintiff’s discharge because orc is a separate division with a separate budget over which plaintiff’s supervisors had no control. In any event, Howmet asserts that Achterhoff was qualified for the

PAULITCH v DETROIT EDISON COMPANY Docket No. 151032. Submitted October 11, 1994, at Detroit. Decided February 21, 1995, at 9:25 a.m. Adolph J. Paulitch brought an action in the Wayne Circuit Court against the Detroit Edison Company, alleging that the defendant engaged in age discrimination in violation of the Civil Rights Act in failing to promote him to a position for which he had applied. The jury awarded the plaintiff damages and the court, Paul S. Teranes, J., entered a judgment consistent with the verdict. The defendant appealed. The plaintiff cross appealed, claiming the trial court erred in declining to award prejudgment interest with regard to that portion of the award pertaining to future damages. The Court of Appeals held: 1. The plaintiff established a prima facie case of age discrimination. The plaintiff proved by a preponderance of the evidence that the defendant’s purported reason for not promoting the plaintiff was a mere pretext. 2. The verdict was supported by adequate evidence and was not against the great weight of the evidence. 3. The trial court properly denied the defendant’s motions for remittitur or a new trial. 4. The defendant failed to carry its burden of proof regarding the plaintiff’s alleged failure to mitigate- damages. The award for future lost wages was proper. The trial court properly denied the defendant’s motions for a new trial or judgment notwithstanding the verdict. 5. The plaintiff is entitled to prejudgment interest on his award of future damages from the date of the filing of the complaint. The trial court’s denial of the plaintiff’s motion for prejudgment interest must be reversed. The reference to "future damages” in MCL 600.6013; MSA 27A.6013, which states that "interest shall not be allowed on future damages from the date of filing the complaint to the date of entry of the judg_ment,” is not applicable to this case because "future damages,” as defined in MCL 600.6301; MSA 27A.6301, must result from a personal bodily injury and no such injury was involved in this matter. References Am Jur 2d, Interest and Usury § 60; Job Discrimination § 2953. See ALR Index under Interest on Money; Labor and Employment. Affirmed in part and reversed in part. 1. Civil Rights — Employment Discrimination — Mitigation of Damages. An offer of employment by a defendant-employer to a plaintiff-employee who has been a victim of employment discrimination must be free from conditions before the employee’s failure to accept the offer may be considered to be a failure to mitigate damages. 2. Judgments — Prejudgment Interest — Words and Phrases — Future Damages. The term "future damages” in the statute providing that interest shall not be allowed on future damages from the date of the filing of the complaint to the date of the entry of the judgment refers to damages arising from a personal bodily injury (MCL 600.6013, 600.6301; MSA 27A.6013, 27A.6301). Van Benschoten, Hurlburt, Tsiros & Allweil, P.C. (by Mandel I. Allweil), for the plaintiff. Frederic E. Champnella and Jane K. Souris, for the defendant. Before: Weaver, P.J., and Connor and J. F. Kowalski, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Connor, J. A jury awarded plaintiff $359,000 in damages after finding that defendant had discriminated against him on the basis of his age when it failed to promote him in violation of the Civil Rights Act, MCL 37.2202; MSA 3.548(202). Defendant appeals as of right, claiming insufficient evidence, among other things. Plaintiff cross appeals, claiming the trial court improperly declined to award prejudgment interest on future damages. We affirm in part and reverse in part. Plaintiff began working for defendant in 1964, as a substation operator. Over the years, plaintiff applied numerous times for the position of central system supervisor. In 1986, plaintiff, who was fifty years old at the time, interviewed for the position. He was not promoted to the position. Plaintiff testified at trial that, during the interview, he was told repeatedly that the job for which he was applying is a "young man’s job.” Plaintiff presented other evidence that defendant appeared to favor younger individuals for the position and showed that no one over the age of forty-five ever had been promoted to the position. Defendant first argues that the trial court erred in denying its motions for a directed verdict and judgment notwithstanding the verdict because there was insufficient evidence to support the jury’s findings. We disagree. After reviewing the record, we find that the elements for proving a claim of discrimination were met. Manning v Hazel Park, 202 Mich App 685, 696; 509 NW2d 874 (1993). Plaintiff showed that defendant was predisposed to discriminate on the basis of age and acted on that predisposition. Plaintiff was in a protected class at the time, between the ages of forty and seventy, and he testified that the chief system supervisor told him that plaintiff’s proximity to retirement was a factor in his decision not to promote plaintiff. Further, plaintiff testified that during his interviews in 1986, he was asked why a person his age would want such a stressful job. Accordingly, plaintiff established a prima facie case of age discrimination. McDonald v Union Camp Corp, 898 F2d 1155, 1160-1161 (CA 6, 1990). Defendant’s purported reason for not promoting plaintiff was that testing procedures indicated he was not as well qualified for the position as other applicants. However, our review of the record reveals that plaintiff carried his burden of proving by a preponderance of the evidence that this purported reason was a mere pretext. Manning, supra, 696. Not only were portions of the testing procedures strictly subjective, but one of the candidates selected for the system supervisor position scored below plaintiff on the test. This person, who was promoted in spite of his lower score, is ten years younger than plaintiff. Viewing the evidence in a light most favorable to plaintiff, we find the jury’s verdict is supported by adequate evidence. Price v Long Realty, Inc, 199 Mich App 461, 472; 502 NW2d 337 (1993). Defendant’s claim that the jury’s verdict is against the great weight of the evidence is also without merit. After reviewing the record, we find that evidence existed regarding plaintiff’s emotional damages, including his testimony that his relationships with his wife and friends suffered after he was passed over for the promotion. As such, the verdict is not against the overwhelming weight of the evidence. Heshelman v Lombardi, 183 Mich App 72, 76; 454 NW2d 603 (1990); Brunson v E & L Transport Co, 177 Mich App 95, 106; 441 NW2d 48 (1989). Similarly, we find that the trial court did not abuse its discretion in denying defendant’s motions for remittitur or a new trial. Palenkas v Beaumont Hosp, 432 Mich 527, 532; 443 NW2d 354 (1989). Because evidence of emotional damage was presented at trial, and the award was comparable to awards in similar cases, the trial court properly deferred to the jury and denied defendant’s motions. Id.; Brunson, supra, 106. Defendant’s claim that plaintiff failed to mitigate his damages is unpersuasive. Defendant argues that if plaintiff had not withdrawn from consideration in 1989, he would have been offered the position of central system supervisor at that time. Consequently, defendant contends, plaintiffs claim for past lost wages was barred from the date of the withdrawal. We disagree. Because plaintiff actually was never offered the job of central system supervisor, plaintiff was not in a position to refuse the job. Rather, the evidence showed that plaintiff withdrew his name from consideration to avoid the embarrassment of being denied the promotion again. We find defendant has failed to carry its burden of proof regarding plaintiffs alleged failure to mitigate damages. Brooks v Rose, 191 Mich App 565, 570; 478 NW2d 731 (1991). Under these circumstances, it was reasonable for plaintiff to believe that, if defendant intended to offer him the supervisor position in 1989, it would have done so, rather than simply accepting his withdrawal from consideration. Hughes v Park Place Motor Inn, Inc, 180 Mich App 213, 220; 446 NW2d 885 (1989). Defendant’s final claim, that plaintiff should not have been awarded future lost wages, is also without merit. Defendant contends that it made plaintiff an unconditional job offer a few days before the trial began. Contrary to defendant’s argument, however, the job offer extended to plaintiff was not unconditional and plaintiff did not reject it. Rather, the offer was made on the eve of trial and remained open for only ten days. When plaintiff failed to act within that period, defendant withdrew the offer. An offer of employment by a defendant-employer to an employee who was a victim of discrimination must be free from conditions. Dep’t of Civil Rights ex rel Cornell v Edward W Sparrow Hosp Ass’n, 423 Mich 548, 568; 377 NW2d 755 (1985). Because the offer was rescinded by defendant, the jury could find that the offer was conditional. Plaintiff did not fail to mitigate his damages, and the trial court properly denied defendant’s motions for a new trial or judgment notwithstanding the verdict. Rasheed v Chrysler Motors Corp, 196 Mich App 196, 206; 493 NW2d 104 (1992). Plaintiffs cross appeal appeárs to present a conflict in the interpretation of MCL 600.6013; MSA 27A.6013. Strict construction of the statute directs that plaintiff is entitled to prejudgment interest on his award of future damages. Consequently, we reverse the trial court’s denial of plaintiff’s motion for prejudgment interest. Section 6013 of the Revised Judicature Act stated, in part, at all times relevant to this appeal: Interest shall be allowed on a money judgment recovered in a civil action, as provided in this section, except that for complaints filed on or after October 1, 1986, interest shall not be allowed on future damages from the date of filing the complaint to the date of entry of the judgment. As used in this subsection, "future damages” means that term as defined in section 6301. [MCL 600.6013; MSA 27A.6013.] Plaintiff argues that the reference to future damages is not applicable to this case because future damages, as defined in § 6301, must result from a personal bodily injury. MCL 600.6301; MSA 27A.6301. Because this case involved a civil rights violation, plaintiff contends he is entitled to prejudgment interest on the money judgment from the date of the filing of the complaint, as provided by § 6013. We agree. Panels of this Court appear to have split on this issue. In Goins v Ford Motor Co, 131 Mich App 185, 203; 347 NW2d 184 (1983), this Court ruled that the type of damages awarded by a jury was not dispositive with regard to the question of interest. This Court adopted the Goins reasoning in Om-El Export Co, Inc v Newcor, Inc, 154 Mich App 471, 480-481; 398 NW2d 440 (1986). The Goins Court reasoned that prejudgment interest should be applied to the entire award because the statute, MCL 600.6013; MSA 27A.6013, did not distinguish between past and future damages. In another case, however, this Court held that the plaintiff was not entitled to prejudgment interest pursuant to MCL 600.6013; MSA 27A.6013 from the time the complaint was filed with regard to service fees payable after the complaint was filed. Central Michigan Univ Faculty Ass’n v Stengren, 142 Mich App 455, 461; 370 NW2d 383 (1985). And in Bruno v Detroit Institute of Technology, 51 Mich App 593, 600, n 1; 215 NW2d 745 (1974), this Court held that if future damages are not reduced to their present value at the time of the complaint, then an award of prejudgment interest on future damages would grant the plaintiff a double benefit. In the instant case, the jury did not receive an instruction regarding present value of future damages, and the judgment , contained no reduction. The definition of future damages is set forth in MCL 600.6301(a); MSA 27A.6301(a): "Future damages” means damages arising from personal injury which the trier of fact finds will accrue after the damage findings are made and includes damages for medical treatment, care and custody, loss of earning, loss of earning capacity, loss of bodily function, and pain and suffering. We find there can be no interpretation of this plain language other than that a plaintiff is entitied to prejudgment interest when the suit does not result from a personal bodily injury. Affirmed in part and reversed in part. The exception regarding future damages was added to § 6013 in 1986, 1986 PA 178. We are sympathetic to defendant’s position for the following reasons. First, this Court has repeatedly held that the purpose of prejudgment interest is to compensate the prevailing party for the delay in recovering money damages. Farmers Ins Group v Lynch, 186 Mich App 537, 538; 465 NW2d 21 (1990); Dep’t of Treasury v Central Wayne Co Sanitation Authority, 186 Mich App 58, 61; 463 NW2d 120 (1990); McDaniel v Macomb Co Bd of Road Comm’rs, 169 Mich App 474, 477; 426 NW2d 747 (1988). There is no delay in paying plaintiff money to which he became entitled only as a result of the jury ..verdict. Second, although the amended Revised Judicature Act did define future damages as only applying to personal bodily injury, MCL 600.6301; MSA 27A.6301, the Legislature distinguished between prejudgment interest on future damages and other damages. However, we believe that any modifications of this system should originate with the Legislature, not the courts.

Terri Beal vs. Board of Selectmen of Hingham. Plymouth. December 5, 1994. February 21, 1995. Present: Lucos, C.J., Wilkins, Abrams, Nolan, & Lynch, JJ. Practice, Civil, Complaint, Summary judgment. Anti-Discrimination Law, Handicap, Employment, Prima facie case, Sex. Civil Rights, Availability of remedy, Termination of employment. Constitutional Law, Equal protection of laws, Sex discrimination. A Superior Court judge did not abuse his discretion in allowing a civil defendant’s motion to dismiss under Mass. R. Civ. P. 12 (b) (6) and declining to rule on the defendant’s motion to dismiss under Mass. R. Civ. P. 4 (j)> which the defendant had waived. [538] In a civil action in which the plaintiff claimed handicap discrimination in violation of G. L. c. 151B, and the Rehabilitation Act of 1973, 29 U.S.C. § 794, the judge correctly granted summary judgment for the defendant employer where the plaintiff failed to demonstrate that she had a reasonable expectation of proving that she was a “qualified handicapped person,” that is, that she was capable of performing the essential functions of the job in question, police officer, or that she would be capable of so performing with a reasonable accommodation to her handicap. [539-543] In a civil action in which the plaintiff claimed gender discrimination in violation of G. L. c. 151B, and 42 U.S.C. § 2000e-2(a) (1), the judge correctly granted summary judgment for the defendant employer where the plaintiff did not demonstrate that she had a reasonable expectation of proving that she would be capable of performing the duties of the job in question, police officer, at an acceptable level. [543-545] In a civil action in which the plaintiff claimed that her employer had denied her constitutional right to equal protection under the law on the basis of her gender in violation of 42 U.S.C. § 1983, by denying her request for “light duty” and granting it to two other (male) employees, the judge correctly granted summary judgment for the defendant where the plaintiff did not either demonstrate that the employer acted with discriminatory intent or establish a prima facie case of sex discrimination. [545-547] Civil action commenced in the Superior Court Department on December 10, 1992. The case was heard by John J. O’Brien, J., on a motion for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Kevin P. Phillips for the plaintiff. Andrew J. Waugh (James A. Toomey with him) for the defendant. Nolan, J. The plaintiff appeals from the entry of summary judgment for the defendant, the board of selectmen of Hingham (board). We transferred the appeal to this court on our own motion, and now affirm. The following are the relevant facts viewed in the light most favorable to the plaintiff. See Alioto v. Marnell, 402 Mass. 36, 37 (1988). In 1986, the board appointed the plaintiff to the position of police officer. On July 26, 1988, the plaintiff was injured in a head-on collision while on duty. Following the accident, an ambulance transported the plaintiff to South Shore Hospital where she was treated for multiple injuries. As a result of the accident, the plaintiff suffered from severe injuries to her head, neck, and back. In addition, a neurologist treated the plaintiff for headaches and dizziness resulting from the collision. While convalescing from her injuries, the plaintiff was unable to continue working as a police officer. The plaintiff, therefore, received compensation benefits pursuant to G. L. c. 41, § 111F (1992 ed.), from July 26, 1988, until June, 1990. In May of 1990, a neurologist, hired by the defendant, examined the plaintiff and concluded that she was not suffering from any neurological disabilities which would prevent her from performing the regular duties of a police officer. Subsequently, the chief of police directed the plaintiff to report for duty by June 26, 1990, and he notified her that her paid injury leave would end on June 26, 1990. The plaintiff, however, refused to report for duty. Instead, she requested an ex parte temporary restraining order to prevent the town from discontinuing her § 111F benefits. A Probate Court judge granted the temporary restraining order on June 28, 1990. On July 9, 1990, however, the judge denied the plaintiff’s request for a preliminary injunction. On July 20, 1990, the plaintiff applied for accidental disability retirement claiming injuries to her neck, back, and head. When the Hingham retirement board denied the application, the plaintiff appealed. On December 1, 1992, an administrative magistrate of the Division of Administrative Law Appeals concluded that there were no orthopedic specialists on the medical panel that had examined the plaintiff. Deciding that the plaintiff had alleged disabilities which should have been examined by an orthopedic specialist, the administrative magistrate remanded the plaintiff’s claim to the retirement board with an order to convene a new medical panel comprised of orthopedic specialists. Earlier, on October 15, 1991, the plaintiff requested that she be permitted to return to work in a letter to the board. In support of her request to perform “light duty” work, the plaintiff presented two letters from her personal physicians. Although the physicians released the plaintiff to return to her duties as a police officer, they indicated that the plaintiff still suffered from various injuries. The board, however, refused to allow the plaintiff to return to her position as a police officer for two reasons: (1) the board claimed that she had abandoned her position and (2) refused her apparent request for “limited duty.” On October 30, 1991, the plaintiff informed the defendant that she wanted to return to “full” duty. In response, the board notified the plaintiff that a hearing would be conducted to determine whether to discipline, suspend, or terminate her. On May 2, 1992, the board discharged the plaintiff from employment as a police officer after conducting a hearing on December 2, 1991, January 8, and May 2, 1992. On July 30, 1992, the plaintiff filed an employment handicap and sex discrimination claim against the defendant with the Massachusetts Commission Against Discrimination (MCAD) pursuant to G. L. c. 151B, § 4 (1992 ed.). After the MCAD granted the plaintiff’s request to remove her claim to the Superior Court, the plaintiff filed a complaint in the Superior Court on December 10, 1992. The docket reflects return of service on June 26, 1993. Subsequently the board filed a motion to dismiss pursuant to Mass. R. Civ. P. 4 (j), as appearing in 402 Mass. 1401 (1988), and a motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). In response, the plaintiff filed a motion to enlarge the time for service pursuant to Mass. R. Civ. P. 6 (b) (2), 365 Mass. 747 (1965). The motion judge treated the board’s motion to dismiss under rule 12 (b) (6), as a motion for summary judgment pursuant to Mass. R. Civ. P. 56, 365 Mass. 824 (1974), and granted the board’s motion. 1. Failure to consider rule 4 (j) motion. The plaintiff argues that the motion judge abused his discretion when he granted the board’s motion to dismiss without first addressing the issue whether the plaintiff had complied with the time limits for service of the complaint on the board in accordance with rule 4 (j). We disagree. The board waived any objection to the timeliness of the plaintiff’s service of the complaint by failing to object to the court’s not addressing the issue. In addition, the plaintiff herself filed a motion to enlarge the time for service pursuant to rule 6 (b) (2), claiming that the failure to serve the complaint on the board in a timely manner was the result of excusable neglect. The plaintiff cannot now claim on appeal that the reason that she had offered previously did not constitute excusable neglect. 2. Summary judgment. The plaintiff argues next that the motion judge erred by granting the board’s motion for summary judgment pursuant to rule 56 on all counts of the plaintiff’s complaint. We disagree. “The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law. Mass. R. Civ. P. 56 (c). See Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 626 (1989); Leavitt v. Mizner, 404 Mass. 81, 88 (1989); Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). We may consider any ground supporting the judgment. Champagne v. Commissioner of Correction, 395 Mass. 382, 386 (1985).” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). See Judson v. Essex Agric. & Technical Inst., 418 Mass. 159, 162 (1994). “[A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in rule 56 (c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). A. Handicap discrimination. The plaintiff argues that the motion judge erred in granting the board’s motion for summary judgment because she had established a prima facie case of handicap discrimination pursuant to both G. L. c. 151B and the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1988 & Supp. V 1993). There was no error. General Laws c. 15IB, § 4 (16), provides in material part that it shall be unlawful practice “[fjor any employer ... to . . . refuse to hire, rehire or advance in employment or otherwise discriminate against, because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer’s business. . . . Physical or mental job qualification requirement with respect to hiring, promotion, demotion or dismissal from employment or any other change in employment status or responsibilities shall be functionally related to the specific job or jobs for which the individual is being considered and shall be consistent with the safe and lawful performance of the job.” In an employment discrimination case pursuant to G. L. c. 15IB, the plaintiff has the initial burden of establishing a prima facie case. See Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611, 614-615 (1983); Smith College v. Massachusetts Comm’n Against Discrimination, 376 Mass. 221, 229 (1978). Although we follow the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), we have noted that the facts necessary to establish a prima facie case of discrimination will vary depending on the circumstances of each case. See Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 135 n.5 (1976), citing McDonnell Douglas Corp. v. Green, supra at 802 n.13. In order to establish a prima facie case of unlawful employment discrimination on the basis of handicap pursuant to G. L. c. 15IB, a plaintiff must present some evidence that: (1) she is handicapped; (2) she is a qualified handicapped person and she applied for a position for which the employer was seeking applicants; (3) the employer terminated the plaintiff for the position in spite of her qualifications; (4) after the employer terminated the plaintiff, the position remained open and the employer continued to seek applicants. See McDonnell Douglas Corp. v. Green, supra at 802; Wheelock College v. Massachusetts Comm’n Against Discrimination, supra at 135 n.5; P.J. Liacos, Massachusetts Evidence § 5.6.1, at 219 (6th ed. 1994); 9 J. Wigmore, Evidence § 2494 (Chadbourn rev. ed. 1981). Thus, because of the developed summary judgment record in this case, the plaintiff must establish that she has a reasonable expectation of proving each element of a prima facie case of handicap discrimination. See Kourouvacilis v. General Motors Corp., supra at 716. We shall assume, without deciding, that when viewing the facts in the light most favorable to the plaintiff, the plaintiff’s injuries rendered her a handicapped person. Nevertheless, we think that the plaintiff has failed to demonstrate that she has a reasonable expectation of proving that she is a qualified handicapped person within the meaning of either G. L. c. 15IB or §. 504 of the Rehabilitation Act. A “qualified handicapped person” is one who “is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with reasonable accommodation-to his handicap.” G. L. c. 15IB, § 1 (16). See Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 381-384 (1993). An employer, however, may refuse to accommodate any handicap that necessitates the substantial modification of employment standards. See Southeastern Community College v. Davis, 442 U.S. 397, 410 (1979); Wynne v. Tufts Univ. Sch. of Medicine, 932 F.2d 19, 25 (1st Cir. 1991), on remand, 976 F.2d 791 (1992), cert. denied, 507 U.S. 1030 (1993), citing School Bd. of Nassau County v. Arline, 480 U.S. 273, 287-288 n.17 (1987). We think that the plaintiff has failed to demonstrate that she is capable of performing the essential functions required of a police officer, even with a reasonable accommodation to her handicap. One of the essential duties of a police officer is to protect the public at large. The character of the plaintiffs injuries prevents her from fulfilling this fundamental duty. One of the plaintiffs own physicians stated that the plaintiff suffers from chronic fatigue, sleep disorder, and that she is at risk for blackouts in high-stress situations. It is uncontested that the plaintiff suffered from a long-term disability, as another one of her physicians noted when he had recommended to the plaintiff that she not resume her duties as a police officer in her “injured state.” Thus, the plaintiffs susceptibility to blackouts in high-stress situations would place the public at risk if she were to resume serving as a police officer. In addition, the plaintiffs capacity for fulfilling the duties of a police officer would not be enhanced by any reasonable accommodation. Assuming, arguendo, that “light duty” at a “desk job” or as a dispatcher constitutes a reasonable accommodation, the plaintiffs injuries still would preclude her from performing the essential duties of a police officer. A police officer who works at a desk must be capable of responding in a professional manner to various crises that could occur in the station house. In addition, a police dispatcher must remain clear headed and calm in emergency situation's. The plaintiffs susceptibility to blackouts in stressful situations, however, not only would make her unreliable, but also would endanger the public. Because police officers are responsible for public safety, and the plaintiff’s handicap severely compromises her capability to ensure the general safety of the public, we think that there are no reasonable accommodations that would enable the plaintiff to perform the essential functions of a police officer. The plaintiff, therefore, has no reasonable expectation of demonstrating that she is a qualified handicapped person under either G. L. c. 15IB or § 504 of the Rehabilitation Act. We note also that the plaintiff herself claimed that she was unable physically to return to her position as a police officer when she filed for disability retirement and social security benefits. In addition, when the defendant ordered the plaintiff to return to her duties as a police officer in June, 1990, the plaintiff refused, requesting instead that the defendant assign her to “light duty.” Furthermore, the plaintiff stated that she regarded herself as permanently and totally disabled at a disciplinary hearing conducted by the board. Having claimed previously that she was unable to perform the duties of a police officer, the plaintiff cannot now successfully claim that she is capable of performing the essential functions of the job. See August v. Offices Unlimited, Inc., 981 F.2d 576, 584 (1st Cir. 1992) (concluding that plaintiff cannot establish that he is qualified handicapped person after claiming that he was totally disabled). Because we have concluded that the plaintiff has no reasonable expectation of demonstrating that she is a qualified handicapped person, we need not further address the issue whether the plaintiff’s request for “light duty” would be a reasonable accommodation, nor need we further address whether the plaintiff has satisfied the other required elements of a prima facie case. B. Gender discrimination. The plaintiff argues next that the motion judge erred in granting the defendant’s motion for summary judgment on the plaintiff’s gender discriminatian claims pursuant to G. L. c. 151B (1992 ed.) and 42 U.S.C. § 2000e-2(a)(l) (1988). There was no error. Once again, we note that the plaintiff has the initial burden of establishing a prima facie case of gender discrimination pursuant to G. L. c. 151B. See Sarni Original Dry Cleaners, Inc. v. Cooke, supra at 614-615; Smith College v. Massachusetts Comm’n Against Discrimination, supra at 229. In order to establish a prima facie case of gender discrimination resulting in the termination of employment, the plaintiff must establish that (1) she is a member of a protected group; (2) she was capable of performing the job at an acceptable level; (3) she was terminated; and (4) her employer sought a replacement with similar qualifications. See White v. University of Mass. at Boston, 410 Mass. 553, 557 (1991). See also Wheelock College v. Massachusetts Comm’n Against Discrimination, supra at 135 n.5, citing McDonnell Douglas Corp. v. Green, supra at 802 n.13 (stating that facts necessary to establish prima facie case of discrimination will vary depending on situation). Thus, to avoid a grant of summary judgment against her on the G. L. c. 151B claim, the plaintiff must establish that she has a reasonable expectation of proving each element of a prima facie case of gender discrimination. See Kourouvacilis v. General Motors Corp., supra at 716. As the only woman police officer on a police force at the time of her employment comprised of more than thirty individuals, we shall assume without deciding, that the plaintiff is a member of a protected group. In addition, it is undisputed that the board terminated the plaintiff from her position as a police officer. Nevertheless, it is clear, in light of our discussion in part A above, that the plaintiff has no reasonable expectation of demonstrating that she would be capable of performing her duties as a police officer at an acceptable level. We decline to address, therefore, whether the plaintiff established the remaining elements of the prima facie case of gender discrimination. As a result, we are content that the plaintiff has no reasonable expectation of demonstrating that she would be capable of performing her duties as a police officer at an acceptable level in accordance with 42 U.S.C. § 2000e-2 and G. L. c.. 151B. 3. Equal protection claim. The plaintiff argues that, because the board accommodated the “handicaps” of two male police officers by giving them “light duty” but denied her request for a similar reasonable accommodation pursuant to G. L. c. 151B, the board denied the plaintiff her constitutional right to equal protection under the law on the basis of her sex in violation of 42 U.S.C. § 1983 (1988). The plaintiff claims, therefore, that the motion judge erred in granting the board’s motion for summary judgment. We disagree. Discrimination

Donald Blare vs. Husky Injection Molding Systems Boston, Inc., & others. Worcester. November 7, 1994. February 9, 1995. Present: Ljacos, C.J., Wilkins, Abrams, Nolan, Lynch, O’Connor, & Greaney, JJ. Practice, Civil, Summary judgment. Anti-Discrimination Law, Termination of employment, Age, Prima facie case, Burden of proof. Employment, Discrimination, Termination. Discussion of the three-stage order of proof in discrimination cases as set forth by the United States Supreme Court under the Federal antidiscrimination provisions of Title VII, which this court has looked to in considering employment discrimination cases brought under G. L. c. 151B. [440-443] This, court stated that, in employment discrimination cases brought under G. L. c. 15IB, the three-stage order of proof to be followed is as set forth in Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 134-136 (1976), and not as set forth in St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993), which governs Federal antidiscrimination claims. [444-446] The record on summary judgment of an employment discrimination claim under G. L. c. 151B was sufficient to raise a genuine issue of material fact as to whether the defendants discriminated against the plaintiff on the basis of age, where the plaintiff had established a prima facie case, the defendants had produced a nondiscriminatory reason for its action, and the plaintiff then produced evidence sufficient to support a jury verdict that it was more likely than not that the articulated reason was a pretext: proof of direct discrimination was not required. [446-447] Civil action commenced in the Superior Court Department on December 24, 1992. The case was heard by Charles J. Hely, J., on a motion for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Harvey A. Schwartz for the plaintiff. Rosemary J. Nevins for the defendants. John A. Gauvin and Allan Robinson. Abrams, J. At issue is whether the Superior Court judge applied the appropriate standard in allowing the defendants’ motions for summary judgment in a case alleging age discrimination under G. L. c. 151B (1992 ed.), and G. L. c. 93, § 103 (1992 ed.). For the reasons stated in this opinion, we conclude that the defendants’ motions for summary judgment should not have been allowed. We reverse and remand for further proceedings. 1. Facts. Reviewing the materials submitted for the summary judgment motion in the light most favorable to the nonmoving party (Blare), Wheatley v. American Tel. & Tel. Co., 418 Mass. 394, 396 (1994); White v. University of Mass. at Boston, 410 Mass. 553, 557 (1991), we recite the following facts. The plaintiff was employed by Husky as a machine operator from 1984 until April, 1992. At the time he was terminated, plaintiff was fifty-seven years old. From 1984 until 1992, the plaintiffs file was free of disciplinary notices. The plaintiff does not dispute that his supervisor submitted formal disciplinary notices against him during the four months preceding his termination (January 1, 1992, until April, 1992). Rather, the plaintiff presented evidence that workers not within the protected age category who had similar disciplinary records were not terminated. To further support his contention that age, and not the disciplinary notices, were the basis of his termination, the plaintiff alleged that his supervisor asked on at least one occasion, “Are you getting too [sic] old that you can’t handle two machines?” The plaintiff’s affidavit further alleged that the supervisor told him that few people retired from Husky. On April 27, 1992, the plaintiff was terminated and younger employees assumed his duties. The defendants filed motions for summary judgment on the ground that in admitting the notices the plaintiff failed to present evidence tending to show that Husky’s explanation that its decision based on the notices was a pretext. The judge ordered summary judgment be entered for the employer on the ground that the record was devoid of evidence “to dispute the basic accuracy of the four documented disciplinary incidents of quality errors and low productivity in the three months between January 20 and the April 27 termination.” We allowed the plaintiff’s application for direct appellate review. We now reverse and remand for further proceedings. 2. Summary judgment standard. Summary judgment is a disfavored remedy in the context of discrimination cases based on disparate treatment. Brunner v. Stone & Webster Eng’g Corp., 413 Mass. 698, 705 (1992) (“where motive, intent, or other state of mind questions are at issue, summary judgment is often inappropriate”), quoting Flesner v. Technical Communication Corp., 410 Mass. 805, 809 (1991), because the ultimate issue of discriminatory intent is a factual question, Anderson v. Bessemer City, 470 U.S. 564, 572-573 (1985) (issue of intent in Federal discrimination cases is a question of fact). The ultimate question of the defendants’ state of mind is elusive and rarely is established by other than circumstantial evidence, Wheelock College v. Massa chusetts Comm’n Against Discrimination, 371 Mass. 130, 137 (1976), which requires the jury to weigh the credibility of conflicting explanations of the adverse hiring decision. However, summary judgment is not always inappropriate in discrimination cases. Where a defendant’s motion for summary judgment demonstrates that the plaintiffs evidence of intent, motive, or state of mind is insufficient to support a judgment in plaintiffs favor, we have upheld summary judgment in favor of defendants. See Brunner, supra at 705 (summary judgment for defendant where plaintiff failed to offer evidence sufficient to carry burden of persuasion on employer’s discriminatory motive); McKenzie v. Brigham & Women’s Hosp., 405 Mass. 432, 437-438 (1989) (summary judgment for defendant where plaintiff offered no admissible evidence that would carry burden of persuasion on intent at trial); Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 770 (1986) (summary judgment for defendant where plaintiff did not offer evidence sufficient to carry burden of persuasion on employer’s discriminatory motive at trial). 3. Three-stage order of proof in discrimination cases. General Laws c. 15IB, § 4 (1992 ed.), provides in relevant part: “It shall be an unlawful practice: ... 1B. For an employer in the private sector, by himself or his agent, because of the age of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual, or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.” Section 1 (8) of G. L. c. 151B (1992 ed.) provides that “[t]he term ‘age’ unless a different meaning clearly appears from the context, includes any duration of time since an individual’s birth of greater than forty years.” In applying Massachusetts’ antidiscrimination statute, it has been our practice to follow the three-stage order of proof set forth by the United States Supreme Court under the Federal antidiscrimination provisions of Title VII. See Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 134-136 (1976), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); White v. University of Mass. at Boston, 410 Mass. 553, 557 (1991). Our holding in College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 163 (1987), stated that in interpreting G. L. c. 151B, “we may look to the interpretations of . . . the . . . Federal statute; we are not, however, bound by interpretations of the Federal statute in construing our own State statute.” See also Lynn Teachers Union, Local 1037 v. Massachusetts Comm’n Against Discrimination, 406 Mass. 515, 521-522 n.7 (1990). Because the trial judge ruled that the plaintiff failed to “dispute the basic accuracy” of the disciplinary notices, the issue in this case is what evidence the plaintiff is required to produce at the third stage in the order of proof in discrimination cases to clear the summary judgment hurdle. It is useful to review each stage in the order of proof before reaching this issue. In the first stage, the plaintiff has the burden to show by a preponderance of the evidence a prima facie case of discrimination. Since our decision in Wheelock College, supra, a plaintiff carries the burden of a prima facie case of discrimination with evidence that: (1) he is a member of a class protected by G. L. c. 15IB; (2) he performed his job at an acceptable level; (3) he was terminated; and (4) his employer sought to fill the plaintiff’s position by hiring another individual with qualifications similar to the plaintiffs. See also White, supra at 557. We noted in Wheelock College, supra at 135 n.5, that the elements of the plaintiffs initial burden may vary depending on the specific facts of a case. The prima facie case “eliminates the most common nondiscriminatory reasons for the plaintiffs rejection,” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981), thereby creating a presumption of discrimination. In the second stage, the employer can rebut the presumption created by the prima facie case by articulating a legitimate, nondiscriminatory reason for its hiring decision. Wheelock College, supra at 136, quoting McDonnell Doug las Corp., supra. “[A]n employer must not only give a lawful reason or reasons for its employment decision but also must produce credible evidence to show that the reason or reasons advanced were the real reasons.” Wheelock College, supra at 138. This burden of production is not onerous. If the defendant fails to meet its burden, however, then the presumption created by the preponderance of evidence supporting a prima facie case entitles plaintiff to judgment. Once the defendant articulates a nondiscriminatory reason for the challenged hiring action, the proceedings have reached the third stage in the order of proof. What the plaintiff must prove in the third stage of the order of proof has been controversial in Federal courts. Prior to the Supreme Court’s recent decision in St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993), the Federal circuit courts of appeals were divided into “pretext plus” and “pretext only” jurisdictions. Those in favor of the pretext plus position argue that the presumption of intentional discrimination created by the plaintiff’s prima facie case “bursts” when the defendant satisfies its second-stage burden of production, and requires a plaintiff in the third stage to prove that intentional discrimination was the basis of the hiring decision. The pretext only rule is similar to the pretext plus position in that the presumption created by a prima facie case drops from the case if the defendant satisfies its burden of production, but differs in the third stage in that a plaintiff who has established a prima facie case and persuaded the trier of fact that the employer’s articulated justification is not true but a pretext, is entitled to judgment. Massachusetts is a pretext only jurisdiction. See Wheelock College, supra at 138 (“if the employee has proved a prima facie case . . . and the employer gives an explanation for a hiring decision which has no reasonable support in the evidence or is wholly disbelieved (and hence is transparently a pretext), the employee should prevail”); Brunner v. Stone & Webster Eng’g Corp., 413 Mass. 698, 700 (1992) (“[i]f a plaintiff establishes a prima facie case, but the defendant [employer] answers it by advancing lawful grounds for the action taken and produces evidence of underlying facts in support thereof, the plaintiff, in order to prevail, must persuade the fact finder by a fair preponderance of the evidence that the defendant’s asserted reasons were not the real reasons for the action”). In St. Mary’s Honor Center v. Hicks, supra, the Supreme Court addressed the split between Federal circuit courts as to the third stage. A majority of the Supreme Court held that a plaintiff who reaches the third stage is not entitled to an inference of discrimination on a showing of pretext, but rather must prove that the hiring action was actually motivated by discrimination: “Title VII does not award damages against employers who cannot prove a nondiscriminatory reason for adverse employment action, but only against employers who are proven to have taken adverse employment action by reason of [a protected category]. That the employer’s proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff’s proffered reason . . . is correct.” Hicks, supra at 523-524. The dissent reasoned that a showing of pretext entitles the plaintiff to a determination of discrimination. Otherwise, “under the majority’s scheme, a victim of discrimination lacking direct evidence will now be saddled with the tremendous disadvantage of having to confront, not the defined task of proving the employer’s stated reasons to be false, but the amorphous requirement of disproving all possible nondiscriminatory reasons that a factfinder might find lurking in the record.” Hicks, supra at 534-535 (Sauter, J., dissenting). We think the better policy is to remain with our own precedent that, once a plaintiff has established a prima facie case and further shows either that the employer’s articulated reasons are a pretext or by direct evidence that the actual motivation was discrimination, the plaintiff is entitled to recovery for illegal discrimination under G. L. c. 151B. Wheelock College, supra at 138. Brunner, supra at 700. With respect to summary judgment, it follows that, if a plaintiff has produced evidence sufficient to support a prima facie case of discrimination, and has further offered evidence sufficient to support a determination either that the employer’s reason was a pretext or that the actual reason for the adverse hiring decision was discrimination, summary judgment for a defendant is inappropriate. The ultimate issue of discrimination, raised by the plaintiff’s and defendants’ conflicting evidence as to the defendants’ motive, is not for a court to decide on the basis of affidavits, but is for the fact finder after weighing the circumstantial evidence and assessing the credibility of the witnesses.. The plaintiff bears the burden of persuasion on the ultimate issue of discrimination. Trustees of Forbes Library v. Labor Relations Comm’n, 384 Mass. 559, 566 (1981). Although the three-stage order of proof “lightens the employee’s burden” by requiring the employer to provide information at the second stage which “narrows the field of possible lawful reasons” for its decision, it does not go so far as to shift the burden of persuasion to the defendants. Id. “Thus, if the evidence is in balance, the employer must prevail.” Id. Because “smoking gun” evidence is rare, Wheelock College, supra at 137, the plaintiff may, and more often than not must, carry his burden of persuasion with circumstantial evidence that convinces the fact finder that the proffered explanation is not credible. The plaintiff prevails on a showing of pretext because “we know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting. Thus, when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer’s actions, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration . . .” (emphasis in original). Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978). See Wheelock College, supra at 138. Combined with establishment of a prima facie case by a preponderance of the evidence, a showing of pretext eliminates any legitimate explanation for the adverse hiring decision and warrants a determination that the plaintiff was the victim of unlawful discrimination. The plaintiff need not conclusively exclude all other possible explanations for the decision and prove intent beyond a reasonable doubt. At the third stage in our order of proof, if the fact finder concludes that the plaintiff has proved that the employer’s reasons are a pretext, then the plaintiff prevails. If the fact finder concludes that the plaintiff did not prove pretext then the defendant prevails. Direct proof of discrimination is not required. 4. Sufficiency of the evidence. The record is sufficient to support a prima facie case. Donald Blare was born on October 26, 1934, and was fifty-seven years old at the time he was terminated from Husky. The periodic reviews in the plaintiff’s file for the seven years preceding his first written warning indicate that he consistently and conscientiously performed his job. Finally, after the plaintiff was terminated Husky delegated his duties to various other employees who were not within the protected age category. In addition, the employer met its burden of production by articulating that its legitimate, nondiscriminatory reason for terminating Blare’s employment was poor performance as documented by the written notices for quality and attendance infractions against Blare. Husky satisfied its burden by producing Blare’s disciplinary file as its nondiscriminatory reason for its decision to terminate Blare. Blare then had to produce evidence sufficient to support a jury verdict that it was more likely than not that the articulated reason was pretext for actual discrimination. “[Ajbsent direct proof of [age] discrimination, evidence which may be relevant to the plaintiff’s showing of pretext may include application of a certain criterion to employees [not within the protected category]; the employer’s general practice and policies concerning employment of [those within the protected category]; and the employer’s treatment of the plaintiff during [his] employment.” Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 767 (1986). We think that, in addition to the plaintiffs prima facie evidence, the three remarks made by Blare’s supervisor regarding the ability of Blare to work considering his age, and the evidence that other workers not in the protected category who committed similar errors were not terminated was sufficient to raise a genuine issue of material fact as to whether the defendants discriminated against the plaintiff on the basis of his age. Therefore, summary judgment in favor of the defendants was error. We reverse and remand the case for further proceedings. So ordered. The plaintiff filed a complaint with the Massachusetts Commission Against Discrimination alleging age discrimination in his termination by the defendants. The plaintiff withdrew the complaint and thereafter he filed this complaint in the Superior Court. General Laws c. 151B, § 9 (1992 ed.), provides, in relevant part: “Any person claiming to be aggrieved by a practice made unlawful under this chapter . . . may, at the expiration of ninety days after the filing of a complaint with the commission, . . . but not later than three years after the alleged unlawful practice occurred, bring a civil action for damages or injunctive relief or both in the superior . . . court for the county in which the alleged unlawful practice occurred .... The petitioner shall notify the commission of the filing of the action, and any complaint before the commission shall then be dismissed without prejudice, and the petitioner shall be barred from subsequently bringing a complaint on the same matter before the commission.” This is a disparate treatment case not a disparate impact case. See, e.g., Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 384-385 (1993); Wheelock College, supra. Compare, e.g., Coons, Proving Disparate Treatment After St. Mary’s Honor Center v. Hicks: Is Anything Left

Barbara Tate vs. Department of Mental Health & others. Suffolk. October 3, 1994. January 24, 1995. Present: Liacos, C.J., Wilkins, Nolan, Lynch, & Greaney, JJ. Practice, Civil, Summary judgment, Burden of proof. Federal Rehabilitation Act. Handicapped Persons. Employment, Discrimination, Termination. Anti-Discrimination Law, Prima facie case, Burden of proof, Termination of employment, Handicap. In a claim of handicap employment discrimination brought under the Federal Rehabilitation Act of 1973, 29 U.S.C. § 794 (a), and the Massachusetts employment discrimination statute, G. L. c. 15IB, the judge correctly ordered summary judgment for the employer where the plaintiff did not establish a prima facie case by producing evidence that she was dismissed because of her handicap and, in any event, did not produce any evidence to support a claim that the employer’s stated nondiscriminatory reason for the plaintiff’s dismissal, viz., insubordination, was a pretext [360-364]; nor did the plaintiff sustain her burden of proof to establish she was terminated in retaliation for complaining about the employer’s failure reasonably to accommodate her handicap [364-365], A Superior Court judge correctly ruled that an employment discrimination claim based on an allegation of a violation of art. 114 of the Amendments to the Massachusetts Constitution was barred where an adequate remedy was provided under the general antidiscrimination statute, G. L. c. 151B. [365] Civil action commenced in the Superior Court Department on March 4, 1987. The case was heard by Charles M. Grabau, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Paul H. Merry for the plaintiff. Catherine C. Ziehl, Assistant Attorney General, for Department of Mental Health & another. Kay H. Hodge for North Suffolk Mental Health Association, Inc. North Suffolk Mental Health Association, Inc., and Massachusetts Commission for the Deaf and Hard of Hearing. Lynch, J. The plaintiff brought an action alleging handicap discrimination and retaliatory discharge pursuant to § 504 of the Federal Rehabilitation Act of 1973, 29 U.S.C. § 794 (1982 & Supp. IV 1986); the Massachusetts employment discrimination statute, G. L. c. 15IB (1992 ed.); the Massachusetts Civil Rights Act, G. L. c. 12, § 111 (1992 ed.); and art. 114 of the Amendments to the Massachusetts Constitution. The allowance of summary judgments in favor of the Department of Mental Health (department), the Massachusetts Commission for the Deaf and Hard of Hearing (commission), and North Suffolk Mental Health Association, Inc. (Association), is the basis for the plaintiff’s appeal. We transferred the case here on our own motion. We affirm. The following facts are undisputed for the purpose of summary judgment. The plaintiff, who has been deaf since birth, is a licensed independent clinical social worker. From 1979 until March of 1985, she was employed by the Vinfen Corporation (Vinfen) as a social worker and eventually as the program director of the deaf outpatient mental health services program (program). Vinfen is a private company which operated this clinical program under a contract with the department. In early 1985, Vinfen terminated the contract prior to its expiration. The department then approached the Association and requested that it assume Vinfen’s role of operating the program. On March 27, 1985, the department executed a contract with the Association to provide clinical services to deaf and hearing-impaired clients through the Association’s Freedom Trail Clinic (clinic). In March, 1985, the Association offered the plaintiff the position of social work supervisor. Her responsibilities would include hiring and supervising a sign-language interpreter and a social worker for deaf clients, and providing direct clinical services for these clients. In this position, the plaintiff was under the supervision of the clinic unit chief, Dr. Robert Abernethy, III. Before she accepted this position, the plaintiff had several discussions with James Cassetta, the assistant executive director (director) of the Association, concerning . her dissatisfaction with her job description and her lines of supervision. The plaintiff submitted her own proposed job description to the director. He told the plaintiff that her “proposal was unacceptable and that the Association would not hire her unless she accepted its job description and lines of supervision.” Additionally, as an employee of the Association, the plaintiff would be required to submit to all of the Association’s policies and procedures. She agreed to these provisions and accepted the position. She commenced work on April 9, 1985. On April 16, 1985, the plaintiff sent a memorandum to the director expressing her concerns about the clinic’s administrative structure, policies, and procedure. In addition, she asked to renegotiate her job title. The plaintiff’s complaints concerning the structure and policies of the program continued over the next several weeks. During June and July the plaintiff made additional complaints to the director. She insisted on changing her title to “program director” and refused to recognize, the unit chief as her supervisor. On July 31, 1985, the director sent a memorandum to the plaintiff addressing these issues, which the plaintiff had been raising since the beginning of her employment. The director stated that these administrative policies and the clinic’s services would not be altered until after the program had been in operation for six months. The director strongly urged the plaintiff to postpone discussion about these organizational issues and to focus on her responsibilities of the recruitment of staff and delivery of services to the clients. In the beginning of August, the plaintiff sent a memorandum, to Barbara Ferguson, the clinic’s administrative coordinator. In this memorandum she directed the administrative coordinator to “suspend” her duty to supervise the secretary’s work at the clinic. She further stated that the secretary was to work exclusively for the program. In addition, on August 14, 1985, the plaintiff sent another memorandum to the director stating that the administrative coordinator did not have the authority to supervise or to delegate work to any member of the deaf services staff, including the secretary. The plaintiff further argued that keeping the original staffing pattern, which dated back to the prior contractor, Vinfen, served the original intent of the program. On August 30, 1985, the unit chief sent a memorandum to the plaintiff concerning her persistent resistance to the Association’s authority and structure. In this memorandum, the unit chief stated that the plaintiff would be terminated if she did not explicitly agree to accept the Association’s managerial prerogatives. Specifically, the memorandum warned the plaintiff that she must “accept the fact that the Association, not you personally, has the right to manage the [p]rogram .... Your response on the secretarial issue reveals either an unwillingness or an inability to meet these obligations.” The unit chief requested that she sign the memorandum to signify her understanding of her obligations. The plaintiff refused to sign the memorandum after receiving advice from the Massachusetts State Association for the Deaf. On September 18, 1985, the Association sent a letter to the plaintiff terminating her employment, effective October 18, 1985. After receiving this letter, the plaintiff informed the unit chief, “You can’t fire me,” and stated that she would not terminate her relationships with her clients. In light of the plaintiffs response, on September 19, 1985, the Association made the plaintiffs termination effective immediately. After her dismissal, the plaintiff filed complaints with the Massachusetts Commission Against Discrimination (MCAD) and with the Office of Civil Rights (OCR) of the United States Department of Health and Human Services alleging employment discrimination. On July 15, 1986, MCAD issued a finding of lack of probable cause, concluding that the Association had not discriminated against the plaintiff on the basis of her handicap, but that she had been terminated for her refusal to comply with “[m]anagement prerogatives.” On March 3, 1987, the OCR also issued a similar finding of lack of probable cause. The party moving for summary judgment assumes the burden of affirmatively demonstrating that there is no genuine issue of material fact on every relevant issue, even if he would have no burden on an issue if the case were to go to trial. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989), citing Attorney Gen. v. Bailey, 386 Mass. 367, 371, cert. denied sub nom. Bailey v. Bellotti, 459 U.S. 970 (1982). The materials presented by the moving party need not negate or disprove an essential element of the claim of the party on whom the burden of proof at trial will rest, but they must demonstrate that there is no reasonable expectation that proof of the elements will be forthcoming at trial. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711-716 (1991). The moving party must clearly show that there is an absence of evidence to support the nonmoving party’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). We first look to the plaintiff’s claim that the defendants discriminated against her on the basis of her handicap in violation of the Federal Rehabilitation Act of 1973 and in violation of G. L. c. 15IB. The Federal Rehabilitation Act states: “No otherwise qualified individual with handicaps in the United States . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794(a) (1982 & Supp. IV 1986). Similarly, G. L. c. 151B, § 4 (16), provides in material part that it shall be an unlawful practice “[f]or any employer ... to dismiss from employment ... or otherwise discriminate against, because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation . . . .” To prove a claim of employment discrimination in violation of the Federal statute, a plaintiff must demonstrate that he or she: (1) is a handicapped person; (2) is otherwise qualified for the position sought; (3) is being excluded from that position solely by reason of his or her handicap; and also must prove (4) that the position is part of a program receiving Federal financial assistance. Doe v. New York Univ., 666 F.2d 761, 774-775 (2d Cir. 1981). After establishing the requisite prima facie case, the burden then shifts to the employer to rebut the employee’s case by presenting a legitimate nondiscriminatory reason for her discharge. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Hall v. United States Postal Serv., 857 F.2d 1073, 1078 (6th Cir. 1988). If the plaintiff establishes the prima facie case, but the defendant answers it by advancing lawful grounds for the action and produces evidence of underlying facts in support of its justification, the plaintiff, in order to prevail, must persuade the fact finder by a fair preponderance of the evidence that the defendant’s asserted reason was not the real reason for the action. See McDonnell Douglas Corp. v. Green, supra at 802-805. In construing the Commonwealth’s employment discrimination statute, we have looked to the considerable case law applying the analogous Federal statute for guidance. See Cox v. New England Tel. & Tel. Co. 414 Mass. 375, 382 (1993); White v. University of Mass. at Boston, 410 Mass. 553, 557 (1991) (analysis of discrimination claim essentially same under State and Federal statutes). For employment discrimination cases involving an allegation of disparate treatment of an employee, we have adopted this framework of shifting burdens of production of evidence which was articulated in McDonnell Douglas Corp. v. Green, supra. See McKenzie v. Brigham & Women’s Hosp., 405 Mass. 432, 435 (1989); Smith College v. Massachusetts Comm’n Against Discrimination, 376 Mass. 221, 229-230 (1978); Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 136-139 (1976). In this case, the only element of the plaintiff’s prima facie case which is in dispute is whether the plaintiff was terminoted solely on the basis of her handicap. Although the plaintiff argues on appeal that there is a factual issue whether the Association reasonably accommodated her handicap, this issue is only considered when a handicapped person is not able to perform the essential functions of the job. See Cox v. New England Tel. & Tel. Co., supra at 383. There is no dispute that the plaintiff was qualified to perform the essential functions of her position; therefore, whether the Association accommodated her handicap is irrelevant. See Hall v. United States Postal Serv., supra at 1078 (“otherwise qualified” inquiry requires consideration of employer’s reasonable accommodation). The Association argues that the plaintiff was terminated for insubordination. Although the cause of an employee’s termination would ordinarily raise a question of fact, in this case the plaintiff is faced with twin hurdles to her recovery that she has failed to overcome. First, she must establish a prima facie case of employment discrimination by producing evidence that she was dismissed because of her handicap. Once that hurdle is surmounted, the Association’s only burden is to produce evidence of nondiscriminatory reasons for the termination. Once the employer has proposed such a reason for the termination and has presented facts to support the action, the presumption of discrimination is dispelled. The employer does not have to persuade the trier of fact that it was correct in its belief. See Trustees of Forbes Library v. Labor Relations Comm’n, 384 Mass. 559, 566 (1981). Nor does the employer have to show that the employee’s acts of insubordination would have caused it to terminate an employee who was not handicapped. Id. The burden of persuasion remains with the employee at all times. The employee must prove by a preponderance of the evidence that the asserted lawful reason was not the real reason for the termination. See McKenzie v. Brigham & Women’s Hosp., supra; School Comm. of Braintree v. Massachusetts Comm’n Against Discrimination, 377 Mass. 424, 429-430 (1979); Smith College v. Massachusetts Comm’n Against Discrimination, supra at 230; Wheelock College v. Massachusetts Comm’n Against Discrimination, supra at 136-137. The employer’s reasons for its decision to terminate “may be unsound or even absurd, but if they are not discriminatory and if the plaintiff does not prove they are pretexts, the plaintiff cannot prevail.” Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 766 (1986). See McKenzie v. Brigham & Women’s Hosp., supra at 434. In ruling on the defendants’ motions for summary judgment, the judge had before him an affidavit from the director of the Association, which clearly supported the Association’s charge of insubordination. The affidavit states that the plaintiff refused to accept the authority of the Association to control her work. The plaintiff never contested that charge. It is clear from this affidavit and from the memoranda and correspondence in the record that the Association had a legitimate nondiscriminatory reason to terminate the plaintiff, i.e., her constant refusal to accept the most basic tenet of employment: the employer has the right to direct the employee in her work. The determinative issue then is whether the plaintiff will be able to satisfy her burden of proving that this stated reason was a pretext. See Brunner v. Stone & Webster Eng’g Corp., 413 Mass. 698, 703 (1992). The plaintiff never contested the charge that she was insubordinate. Instead of rebutting this allegation, the plaintiff’s affidavit recounts her constant attempts to change the managerial structure implemented by the Association and focused on the areas in which she felt the Association was not accommodating her needs. The plaintiff admits that, from the outset of her employment, she relayed to the director her concerns about the structure of the program, the allocation of funding and positions, and the communications skills of the staff members. The plaintiff’s deposition testimony also does not offer any support for her contention that the Association’s claim that she was insubordinate is a pretext. At her deposition, the plaintiff stated: “[The clinic unit chief] is not really considered ... to be my supervisor.” The plaintiff further said that, while she worked at the Association, she did not have a supervisor and stated: “I am responsible for myself. I was a clinical program director, that’s why I’m responsible.” These statements are contrary to the conditions that the plaintiff agreed to when she accepted employment with the Association and do not offer any support for the plaintiff’s claim that the charge of insubordination is a pretext. Additionally, the record contains several written communications between the plaintiff and her supervisors which reveal her refusal to abide by the Association’s directives and her supervisors’ instructions to perform her work in accordance with its directions or face termination. Further, although it is not determinative of whether the plaintiff will be able to satisfy her burden of proof, it is important to note that both the MCAD and the OCR issued findings of lack of probable cause with respect to the plaintiff’s claim that the Association discriminated against her on the basis of her handicap. The depositions, affidavits, and written memoranda demonstrate that the plaintiff will be unable to prevail at trial and, therefore, the judge properly granted summary judgment on the plaintiff’s claims under the Federal Rehabilitation Act and under G. L. c. 15IB. See Brunner v. Stone & Webster Eng’g Corp., supra at 703. The judge also was justified in his ruling that the plaintiff would not be able to sustain her burden of proof on her claim that she was terminated in retaliation for complaining about the Association’s failure reasonably to accommodate her handicap. To succeed on such a claim the plaintiff must prove that she reasonably and in good faith believed that the Association was engaged in wrongful discrimination, that she acted reasonably in response to her belief, and that the Association’s desire to retaliate against her was a determinative factor in its decision to terminate her employment. Ryan v. Raytheon Data Sys. Co., 601 F. Supp. 243, 247 (D. Mass. 1984). As we discussed above, the plaintiff did not present any evidence to show that the Association terminated her for any reason other than her insubordination. Her insubordination was demonstrated by her own deposition testimony, affidavit, and memoranda, as well as the substantially uncontested affidavits of the Association. Without presenting any support for her allegation that the real basis for her termination was her handicap, the plaintiff failed to satisfy her burden of proving that she was reasonable in her belief that the Association was engaged in unlawful discrimination and that its desire to retaliate against her was a determinative factor in her discharge, summary judgment on this claim was appropriate. With respect to the plaintiff’s claim under art. 114, we conclude that the judge was correct in his ruling that this claim is barred. Claims of employment discrimination can be vindicated under the general antidiscrimination statute, G. L. c. 15IB. In Layne v. Superintendent, Mass. Correctional Inst., Cedar Junction, 406 Mass. 156, 159 (1989), we held that, if a violation of art. 114 rights can be redressed within the ambi

Public employees' collective bargaining - Ohio public employer commits unfair labor practice in violation of R.C. 4117.11(A)(5) when it unilaterally terminates bargaining with an incumbent union, when .

I. CARY NAILING, Appellee, v. UNC-CH, Appellant No. 9315SC1299 (Filed 20 December 1994) 1. Public Officers and Employees § 63 (NCI4th)— appeal from dismissal — failure to file petition — no jurisdiction of OAH The Office of Administrative Hearings did not have subject matter jurisdiction over petitioner’s appeal from her dismissal as an employee of UNC-CH under N.C.G.S. § 126-35 for lack of “just cause” or under N.C.G.S. § 126-36 since petitioner did not file a timely petition for a contested case hearing and thus did not follow respondent’s grievance procedure regarding the appeal from her dismissal, nor did she file a petition within 30 days after receipt of notice of the decision or action which triggered the right of appeal to commence a contested case hearing. Further, petitioner’s amendment of her prehearing statement in her original pending contested case hearing for removal of disciplinary warnings to include the issue of her termination was not equivalent to the filing of a petition as required under Article 3 of Chapter 150B to commence a contested case hearing in the OAH. Am Jur 2d, Civil Service §§ 52 et seq. Termination of public employment: right to hearing under due process clause of Fifth or Fourteenth Amendment — Supreme Court cases. 48 L. Ed. 2d 996. 2. Public Officers and Employees § 63 (NCI4th)— warnings not removed from personnel file — right of employee to appeal — status as former employee irrelevant . Petitioner had the right to appeal respondent’s action of not removing all the warnings from the personnel file and the decision that another warning could be put in place of one that was removed to the OAH, and petitioner’s status as a “former” State employee did not render her petition moot. N.C.G.S. § 126-25. Am Jur 2d, Civil Service §§ 52 et seq. Rights of state and municipal public employees in grievance proceedings. 46 ALR4th 912. On writ of certiorari to review order entered 2 August 1993 by Judge George R. Greene in Orange County Superior Court. Heard in the Court of Appeals 15 September 1994. Prior to this action, Petitioner I. Cary Nailing was an employee of Respondent University of North Carolina at Chapel Hill. On 13 April 1992, while still employed by respondent, petitioner filed a petition for a contested case hearing in the Office of Administrative Hearings (the “OAH”) alleging that she had received from respondent “a series of disciplinary warnings which were unjust and retaliatory.” The parties filed prehearing statements, and a hearing in this action was scheduled for January 1993. Thereafter, respondent notified petitioner that she had been terminated effective 28 September 1992, and petitioner attempted to amend her prehearing statement to include her termination as an issue for review. On 20 April 1993, Administrative Law Judge Becton entered a final decision finding that petitioner could not appeal her dismissal by attempting to amend her prehearing statement and that petitioner had failed to follow the proper procedure for appealing her dismissal. Judge Becton also found that since petitioner had been dismissed from employment, the issues involved in the contested' case regarding the warnings were moot. Based on these findings, Judge Becton dismissed petitioner’s petition for a contested case hearing. On 19 May 1993, petitioner filed a petition for judicial review in Orange County Superior Court. Respondent filed a motion to dismiss petitioner’s petition based on lack of subject matter jurisdiction.' On 2 August 1993, Judge George R. Greene filed an order finding that “[t]here was a continuing sequence of actions in this Contested Case[,]” the last being “the firing of [petitioner.” Further, Judge Greene found that “no earlier acts which were timely and properly contested could be ‘moot’ and no later continuing acts could be untimely nor [sic] improperly contested.” Based on these findings, Judge Greene remanded the contested case to the OAH “for a full hearing on all of the issues in this case . . . .” On 24 September 1993, respondent filed a petition for writ of certiorari with this Court, and on 13 October 1993, this Court granted respondent’s petition. Alan McSurely for petitioner-appellee. Attorney General Michael F. Easley, by Assistant Attorney General Barbara A. Shaw, for respondent-appellant. ORR, Judge. The issues raised by this appeal are whether the trial court erred in remanding this case to the OAH for a hearing on (1) whether respondent’s termination of petitioner violated petitioner’s substantive and procedural rights, and (2) the issues regarding respondent’s warnings to petitioner. Because we find that OAH lacked subject matter jurisdiction over petitioner’s case regarding her dismissal, we conclude that as to this issue, the trial court erred. On the issue of respondent’s warnings, however, we conclude that the trial court properly remanded this action for a hearing on whether the warnings should be removed from petitioner’s file. Prior to this action, petitioner was employed by respondent as a Medical Laboratory Technologist III in the Department of Pediatrics in the Cytogenetics Laboratory of respondent’s medical school. On 22 February 1991, petitioner received an oral warning regarding her conduct and work performance. Thereafter, on 6 March 1991, petitioner received a written warning concerning her work performance, which petitioner alleged was a result of her contacting the Human Resources Department “to ask for guidance about how to deal with the Oral Warning.” Subsequently, pursuant to respondent’s internal grievance procedure, petitioner filed a grievance regarding these warnings with her supervisor. Petitioner’s grievance was reviewed by the head of the Cytogenetics Laboratory and denied. Petitioner appealed the denial of her grievance to the Office of the Associate Vice Chancellor for Human Resources pursuant to Step 2 of respondent’s internal grievance procedure, and it was denied again. Petitioner then filed an appeal with the Office of the Associate Vice Chancellor for Human Resources to be heard by a panel of three Staff Grievance Committee members consisting of one faculty member and two staff employees appointed by the Chair of the Committee in accordance with Step 3 of the grievance procedure. Subsequently, on 19 September 1991, while her appeal was pending at Step 3, petitioner received two more written warnings, one warning regarding petitioner’s work performance and the other warning regarding petitioner’s unexcused absences from work. Petitioner’s grievance regarding these two warnings was denied at Step 1 and 2, and petitioner appealed to Step 3. The two grievances were consolidated at Step 3, and a hearing was held on these four warnings. Following the hearing, by letter dated 11 March 1992, Chancellor Hardin notified petitioner of his decision that the 22 February 1991 oral warning would be withdrawn; however, “ [i]f the supervisor chooses, a Report of Oral Warning for performance (the weekend rotation) and conduct (leaving work without permission) may be substituted.” Further, Chancellor Hardin notified petitioner that he agreed with the panel’s finding that the written warning of 6 March 1991 “was issued in retaliation for the earlier grievance” and informed petitioner that this warning would be withdrawn from petitioner’s file. Chancellor Hardin also notified petitioner that the 19 September 1991 warnings would remain in petitioner’s file. On 13 April 1992, petitioner filed a petition for a contested case hearing in the OAH for “[u]njust [discipline and violation of UNC-CH Rules.” Administrative Law Judge Becton entered an order directing the parties to each file a prehearing statement containing their positions with regard to the following: 1. The issues to be resolved, and the statutes, rules, and legal precedent involved; 2. A brief statement of the facts and reasons supporting the party’s position on each matter in dispute; 3. A list of proposed witnesses; 4. Whether you wish to pursue discovery. If so, the length of time required; 5. Requested location of hearing(s); 6. Estimated length of hearing; 7. If you do not have an attorney, your home and business addresses and telephone numbers; 8. The date by which you will be ready to have a hearing in this case; and 9. Other special matters. During the pendency of this action, by letter dated 29 September 1992, the Director of Cytogenetic Laboratory informed petitioner that she was terminated from her employment with respondent as of 28 September 1992 “for personal conduct reasons[.]” The letter stated that the decision to terminate petitioner’s employment was based on petitioner’s conduct on 23 September 1992 and 24 September 1992 which the letter described as constituting “verbal abuse,” “physical intimidation,” and “insubordination.” Specifically, the letter described petitioner’s conduct upon which her termination was based as follows: In September 1992, petitioner switched a “rush” case that was assigned to petitioner to Ms. Parker, a technologist who was out on sick leave, and assigned a routine case of Ms. Parker’s to petitioner. Upon finding out that petitioner had switched these cases, on 23 September 1992, the Laboratory Lead Technologist and petitioner’s direct supervisor approached petitioner about the switch. At first petitioner told these two supervisors that she had “initially made the switch because [she] had mistakenly picked up the wrong tube of patient cells and had prepared slides on Ms[.] Parker’s case . . . rather than [petitioner’s] own case.” Petitioner then assigned herself back to the previous rush case, which had almost been completed, and assigned another rush case of petitioner’s to Ms. Parker. At that time, one of the supervisors informed petitioner that a technologist out on sick leave could not be assigned a “rush” case, and petitioner “became progressively more hostile, more angry, and verbally abusive.” Petitioner raised her “assignment clip board over [her] head in a threating [sic] manner and screamed abusively at both of [the supervisors].” Thereafter, one supervisor left and the other supervisor “chose to stay in the room and talk with [petitioner] until she was sure that [petitioner] understood exactly what [her] instructions were concerning the patient assignments.” This supervisor “made it clear to [petitioner] that [she was] to start the rush case that [petitioner] had just reassigned to Ms. Parker] and at a minimum screen the case that day . . . .” On 24 September 1992, petitioner came to work and approached Ms. Parker, who was back from her sick leave, and “requested that she switch cases with [petitioner], accepting responsibility for . . . the rush case which was under discussion the day before, while [petitioner] took one of Ms[.] Parker’s more routine cases.” Further, the letter stated: You have the right to appeal this action through the University’s Dispute Resolution and Staff Grievance Procedure. A copy of the procedure is attached for your reference. You may contact the Counseling Service Department for assistance in using this procedure or, if eligible, you may file a Step 4 Appeal with the State Personnel Commission. Step 4 of the Staff Grievance Procedure states, “[i]f the Step 3 decision is unsatisfactory to the employee, the employee may appeal to Step 4, the State Personnel Commission, if eligible, according to State Personnel Commission rules.” ■ Petitioner initiated a Step 2 grievance of her dismissal as allowed by respondent’s internal grievance procedures. By letter dated 16 November 1992, respondent notified petitioner of the decision to uphold her dismissal and of the filing deadline for a Step 3 appeal. Petitioner did not, however, file a Step 3 appeal or file a petition for a contested case hearing in the OAH regarding her dismissal. Instead, petitioner moved to amend her prehearing statement in the contested case that was pending before Judge Becton in the OAH involving the four warnings to include the issue of her termination for review by the OAH. On appeal, respondent first contends that the OAH lacks subject matter jurisdiction to review petitioner’s dismissal because petitioner failed to properly file a petition for a contested case hearing in the OAH with regards to her dismissal. Petitioner is a former employee of the University of North Carolina at Chapel Hill. The University of North Carolina is expressly exempt from the administrative hearings provisions of the North Carolina Administrative Procedure Act (the “NCAPA”), see N.C. Gen. Stat. § 150B-1(f); thus, “under the plain meaning of the NCAPA, [petitioner] can be entitled to an administrative hearing to appeal [her] grievance to the OAH only by virtue of another statute.” Empire Power Co. v. N.C. Dep’t of Env’t, Health and Natural Resources, Div. of Envtl. Management, 337 N.C. 569, 579, 447 S.E.2d 768, 774 (1994). Chapter 126 of the North Carolina General Statutes gives State employees the right to an administrative hearing in the OAH for actions arising under Chapter 126. Specifically, N.C. Gen. Stat. § 126-37(a) provides, “[a]ppeals involving a disciplinary action, alleged discrimination, and any other contested case arising under this Chapter shall be conducted in the Office of Administrative Hearings as provided in Article 3 of Chapter 150B . . . .” In the present case, the only provisions under Chapter 126 that could possibly provide petitioner with an avenue of appeal from her dismissal to the OAH are N.C. Gen. Stat. §§ 126-35, 126-36. At the time of this action, N.C. Gen. Stat. § 126-35 stated, “[n]o permanent employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause.” Under N.C. Gen. Stat. § 126-36, [a]ny State employee or former State employee who has reason to believe that employment, promotion, training, or transfer was denied him or that demotion, layoff or termination of employment was forced upon him in retaliation for opposition to alleged discrimination or because of his age, sex, race, color, national origin, religion, creed, political affiliation, or handicapped [handicapping] condition as defined by G.S. 168A-3 . . . shall have the right to appeal directly to the State Personnel Commission. In order for the OAH to have jurisdiction over petitioner’s appeal pursuant to N.C. Gen. Stat. §§ 126-35, -36 however, petitioner is required to follow the statutory requirements outlined in Chapter 126 for commencing a contested case. See Lewis v. North Carolina Dep’t of Human Resources, 92 N.C. App. 737, 739, 375 S.E.2d 712, 714 (1989) (“The right to appeal to an administrative agency is granted by statute, and compliance with statutory provisions is necessary to sustain the appeal.”). N.C. Gen. Stat. § 126-37(a) requires that appeals under Chapter 126 involving a contested case be conducted as provided in Article 3 of Chapter 150B. Article 3 of Chapter 150B provides: A contested case shall be commenced bv filing a petition with the Office of Administrative Hearings .... The party who files the petition shall serve a copy of the petition on all other parties .... A party who files a petition shall file a certificate of service together with the petition. A petition shall be signed by a party or a representative of the party and, if filed by a party other than an agency, shall state facts tending to establish that the agency named as the respondent has deprived the petitioner of property, has ordered the petitioner to pay a fine or civil penalty, or has otherwise substantially prejudiced the petitioner’s rights and that the agency: (1) Exceeded its authority or jurisdiction;' (2) Acted erroneously; (3) Failed to use proper procedure; (4) Acted arbitrarily or capriciously; or (5) Failed to act as required by law or rule. A local government employee, applicant for employment, or former employee to whom Chapter 126 of the General Statutes applies may commence a contested case under this Article in the same manner as any other, petitioner. N.C. Gen. Stat. § 150B-23 (emphasis added). Further, N.C. Gen. Stat. § 126-37(a) provides “that no grievance may be appealed unless the employee has complied with G.S. 126-34” which, at the time of this action, stated, [a]ny permanent State employee having a grievance arising out of or due to his employment and who does not allege discrimination because of his age, sex, race, color, national origin, religion, creed, handicapping condition as defined by G.S. 168A-3, or political affiliation shall first discuss his problem or grievance with his supervisor and follow the grievance procedure established by his department or agency. N.C. Gen. Stat. § 126-34; See Batten v. N.C. Dep’t of Correction, 326 N.C. 338, 343, 389 S.E.2d 35, 38-39 (1990). In addition to these require-merits under Chapter 126, a petition for a contested case must be filed with the OAH “as provided in G.S. 150B-23(a) no later than 30 days after receipt of notice of the decision or action which triggers the right of appeal.” N.C. Gen. Stat. § 126-38. In the present case, it is undisputed that petitioner did not follow respondent’s grievance procedure regarding the appeal from her dismissal. Pursuant to N.C. Gen. Stat. §§ 126-37(a), -34, the OAH would not, therefore, have subject matter jurisdiction over petitioner’s appeal from her dismissal under N.C. Gen. Stat. § 126-35 for lack of “just cause” that does not allege discrimination. Thus, we turn to the issue of whether the OAH had jurisdiction over petitioner’s case involving alleged discrimination for her alleged handicapping condition pursuant to N.C. Gen. Stat. § 126-36. Under N.C. Gen. Stat. § 126-36, petitioner has an automatic right to appeal her dismissal to the Commission without following respondent’s internal grievance procedure. Petitioner is still, however, bound to follow the other requirements of Chapter 126 of filing a petition within thirty days after receipt of notice of “the decision or action which triggers the right of appeal” to commence a contested case in the OAH. With regard to petitioner’s receipt of notice of her dismissal, Judge Becton found: On September 29, 1992, the [Respondent sent a letter to the [petitioner notifying her of her dismissal from employment, effective September 28,1992, as a result of unacceptable personal conduct. The [Respondent hand-delivered a copy of the September 29, 1992 letter of termination to the [petitioner on October 6, 1992. Petitioner did not, however, file a petition for a contested case hearing in the OAH regarding her dismissal within thirty days from either 29 September 1992 or 6 October 1992. Instead, in October 1992, petitioner filed a motion to amend her prehearing statement to add the issue of whether respondent violated her substantive and procedural rights by terminating her employment and to add N.C.G.S. § 126-35 to the portion of the prehearing statement entitled “Statutes, Rules and Legal Precedents Involved.” As already discussed, petitioner could not proceed under N.C. Gen. Stat. § 126-35 for a “just cause” violation without first following respondent’s internal grievance procedure. Thereafter, in January, 1993, petitioner filed her second motion to amend her prehearing statement to add the issue of whether petitioner’s termination violated her substantive and procedural rights “including the right not to be discriminated against because of a handicapping condition” and to add N.C. Gen. Stat. § 126-36 to the section of the prehearing statement entitled “Statutes, Rules and Legal Precedents Involved.” Assuming arguendo that petitioner could properly amend her prehearing statement, we do not find such amendment equivalent to the filing of a petition as required under Article 3 of Chapter 150B to commence a contested case hearing in the OAH. In addition, we also find that this amendment was filed after the statutory thirty days. Because Chapter 1

BETTY v BROOKS & PERKINS Docket No. 96538. Argued April 5, 1994 (Calendar No. 5). Decided August 24, 1994. Carnell Betty, brought an action under the Michigan Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., in the Wayne Circuit Court against Brooks & Perkins, her employer, claiming race and sex discrimination. The plaintiff, a black woman, alleged that a similarly situated white male employee with less qualifications and lower seniority was awarded a shift preference for which both had applied. The court, William Leo Cahalan, J., granted summary disposition for the defendant, finding that the case was preempted by § 301 of the federal Labor Management Relations Act, 29 USC 185(a). The Court of Appeals, Jansen, P.J., and Griffin, J. (Michael J. Kelly, J., dissenting), reversed, finding that the question to be resolved was one of fact, regarding the motivation of the employer, and not one of law, regarding interpretation of a collective-bargaining agreement between the employer and the plaintiff’s union (Docket No. 121952). The defendant appeals. In an opinion by Justice Griffin, joined by Chief Justice Cavanagh, and Justices Levin, Brickley, and Mallett, the Supreme Court held: The plaintiff’s state law claim of race and sex discrimination in the workplace is independent of the collective-bargaining agreement between her union and her employer and, thus, is not preempted by federal law. 1. United States Supreme Court case law has held that § 301 of the Labor Management Relations Act expresses federal policy that federal courts should enforce collective-bargaining agreements on behalf of or against labor organizations by applying federal law. In general, a state-law claim alleging discrimination is not preempted by federal law if the claim is based on nonnegotiable state-law rights of employers and employees independent of any right established by a collective-bargaining agreement, or whether the claim is inextricably intertwined with consideration of the terms of the agreement. State law is preempted only if its application requires interpretation of a collective-bargaining agreement. 2. The essential elements of the state-law claim advanced by the plaintiff are that similarly situated people have been treated differently because of their race or sex. The claim turns on a factual determination regarding the employer’s conduct and motivation and can be resolved independent of the collective-bargaining agreement. The plaintiff is asserting nonnegotiable state rights secured by the Michigan Civil Rights Act that apply to all employees, whether or not they belong to a union, and cannot be waived or conditioned on success at the bargaining table. Because the duty owed under the act by the employer to the plaintiff does not stem from the collective-bargaining agreement, her claim is independent for purposes of § 301 preemption, parallel protection under the terms of the agreement notwithstanding. Justice Riley, concurring, stated that the plaintiff’s claim is not preempted under § 301. The dispositive inquiry under state law is not what the collective-bargaining agreement provides but what the motivation of the defendant was. Moreover, merely because the defendant might claim in defense that its conduct was compelled by some implied fairness gleaned from the collective-bargaining agreement as a whole would not preempt the claim in this case. This would only help answer the factual question whether defendant was motivated by discrimination, but would not require the court to determine the legality of the decision under the collective-bargaining agreement. The defendant’s burden is one of production only, rather than persuasion. After the plaintiff has set forth a prima facie case, Michigan courts place the burden of production on the defendant as a means of properly framing the dispositive issue, i.e., the motivation of the defendant, so that the plaintiff can then show that the purported defense was simply a pretext for discrimination. Justice Boyle, concurring in parts i and hi of the majority opinion, stated that the defendant essentially conceded that the collective-bargaining agreement did not entitle the white male employee to retake the test. Affirmed. 198 Mich App 28; 497 NW2d 512 (1993) affirmed. Rodrick K. Green for the plaintiff. Blake, Kirchner, Symonds, MacFarlane, Larson & Smith, P.C. (by Christopher G. Manolis), for the defendant. Amicus Curiae: Sachs, Waldman, O’Hare, Helveston, Hodges & Barnes, P.C. (by Theodore Sachs and Patricia J. Fabrizio), for Michigan State AFL-CIO. Griffin, J. We must decide whether plaintiff’s state-law claim of employer race and sex discrimination is preempted by §301 of the federal Labor Management Relations Act (lmra). Because her action, based upon the Michigan Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., is independent, and resolution does not require interpretation of the collective-bargaining agreement between plaintiff’s union and her employer, we conclude that the claim is not preempted by federal law. i Plaintiff Carnell Betty is a black female who began working for defendant Brooks & Perkins as a welder in 1979. She and Brian Krawczyk, a white male who worked as a welder in the same department, were members of the United Auto Workers Union Local No. 157, and were covered by a collective-bargaining agreement. As a quality control measure, pursued with approval of the union, defendant required a group of six welders, including plaintiff and Mr. Krawczyk, to attend classes for four weeks at Weld Tech Welding Education Center. A letter of understanding, signed by defendant and the union, provided that each of these employees was required to "successfully conclude [the course of] training to be considered as qualified to retain seniority within the Welder’s Classification.” On March 14, 1983, Mr. Krawczyk completed a segment of the course and took a welding test. His instructor advised defendant that Mr. Krawczyk had passed. However, after he had completed the course and returned to work, defendant was notified by Weld Tech that the earlier report was an error and that Mr. Krawczyk had actually failed a portion of the examination. As a result, Mr. Krawczyk lost his seniority within 'the classification and was laid off. In the meantime, plaintiff had also taken the welding course at Weld Tech and passed. At that point, she stood higher on the seniority list than Mr. Krawczyk. Mr. Krawczyk complained to the union, which in turn complained to defendant’s management that if he had been timely informed of his failure, he could have retaken the test before completion of the course. Management determined that the treatment was unfair, and on April 12, 1983, Mr. Krawczyk was allowed to return to Weld Tech and retake the test. This time he passed and his seniority was reinstated. Thereafter, on December 17, 1984, plaintiff and Mr. Krawczyk each applied for the same shift preference. According to defendant, the preference was awarded to Mr. Krawczyk in accordance with the collective-bargaining agreement because his seniority ranking was higher. Plaintiff complained to the union, which refused to file a grievance. Plaintiff then filed this discrimination suit, claiming that a similarly situated white male employee with less qualifications and lower seniority was awarded the shift preference. While the group required to take the Weld Tech course included both blacks and whites, plaintiff asserts that all of the whites passed the test except one, Brian Krawczyk, and that all of the blacks failed the test except one, plaintiff* Carnell Betty. She further contends that black employees who failed also retook the test and passed; however, they were placed at the bottom of the seniority list. At the close of discovery, defendant moved for summary disposition pursuant to MCR 2.116(C)(4), (8), and (10), and argued, inter alia, that plaintiff’s discrimination claim was preempted by § 301 of the lmra. The circuit court granted defendant’s motion on the narrow ground of § 301 preemption and found it unnecessary to address the other issues. On appeal, a divided panel of the Court of Appeals reversed. The panel majority opined that the "question to be resolved is a factual one regarding the motivation of defendant, and not the legal one of interpretation of the collective bargaining agreement,” citing Hall v Kelsey-Hayes Co, 184 Mich App 277, 280; 457 NW2d 143 (1990). See also Lingle v Norge Div of Magic Chef, Inc, 486 US 399, 419; 108 S Ct 1877; 100 L Ed 2d 410 (1988). We then granted defendant’s application for leave to appeal. 444 Mich 914 (1994). ii The authority of Congress to preempt state law is rooted in the Supremacy Clause of the United States Constitution. Gibbons v Ogden, 22 US (9 Wheat) 1; 6 L Ed 23 (1824). Whether a state claim is preempted by a federal statute "is, of course, a question of federal law.” Allis-Chalmers Corp v Lueck, 471 US 202, 214; 105 S Ct 1904; 85 L Ed 2d 206 (1985). "[W]here Federal questions are involved we are bound to follow the prevailing opinions of the United States supreme court.” Harper v Brennan, 311 Mich 489, 493; 18 NW2d 905 (1945). A Section 301 of the lmra provides: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. [29 USC 185(a).]_ In Textile Workers v Lincoln Mills, 353 US 448, 455; 77 S Ct 912; 1 L Ed 2d 972 (1957), the United States Supreme Court concluded that § 301 "does more than confer jurisdiction in the federal courts over labor organizations.” From the legislative history of § 301, the Court gleaned an expression of "federal policy that federal courts should enforce [collective-bargaining] agreements on behalf of or against labor organizations and that industrial peace can be best obtained only in that way.” Id. With this Congressional objective in mind, the Court concluded that "the substantive law to apply in suits under § 301(a) is federal law, which the courts must fashion from the policy of our national labor laws.” Id. at 456. The import of Lincoln Mills was demonstrated when the Court first addressed the preemptive effect of §301 in Local 174, Teamsters v Lucas Flour Co, 369 US 95; 82 S Ct 571; 7 L Ed 2d 593 (1962). At issue was whether a suit in state court seeking "damages for business losses caused by [a union] strike” could be decided by the application of state contract law. Id. at 97. Because resolution of the dispute turned on . the question whether the strike breached the collective-bargaining agreement, the Court held that "incompatible doctrines of local law must give way to principles of federal labor law.” Id. at 102. In broad terms, the Court declared: The dimensions of § 301 require the conclusion that substantive principles of federal labor law must be paramount in the area covered by the statute. Comprehensiveness is inherent in the process by which the law is to be formulated under - the mandate of Lincoln Mills, requiring issues raised in suits of a kind covered by § 301 to be decided according to the precepts of federal labor policy. More important, the subject matter of § 301(a) "is peculiarly one that calls for uniform law.” [Id. at 103.] While Lucas Flour made clear that a state action that alleges breach of a collective-bargaining agreement is preempted by § 301, the Court’s subsequent task of delineating the extent to which § 301 displaces state-law claims when breach of a collective-bargaining agreement is not specifically alleged has proved to be more difficult. In Allis-Chalmers Corp v Lueck, supra at 210, the Court observed that "[i]f the policies that animate § 301 are to be given their proper range, . . . the pre-emptive effect of § 301 must extend beyond suits alleging contract violations.” While acknowledging that some tort actions must be preempted to achieve the desired uniformity in the interpretation of labor contracts, the Court took pains to explain that the reach of § 301 preemption has limits: In extending the pre-emptive effect of § 301 beyond suits for breach of contract, it would be inconsistent with congressional intent ... to preempt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract. Therefore, state-law rights and obligations that do not exist independently of private agreements, and that as a result can be waived or altered by agreement of private parties, are pre-empted by those agreements. [Id. at 212-213.] In resolving the case then before it, the Lueck Court articulated this standard: Our analysis must focus ... on whether the [state] tort action . . . confers nonnegotiable state-law rights on employers or employees independent of any right established by contract, or, instead, whether evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor contract. If the state tort law purports to define the meaning of the contract relationship, that law is pre-empted, [Id. at 213. Emphasis added.][] In Lingle v Norge Div of Magic Chef, Inc, supra at 413, the Supreme Court again emphasized the limits of § 301 preemption. In a unanimous decision, the Court ruled that "application of state law is pre-empted by § 301 . . . only if such application requires the interpretation of a collective-bargaining agreement.” The Court observed that the plaintiff’s retaliatory discharge claim under Illinois law required a factual determination regarding "the conduct of the employee and the conduct and motivation of the employer.” Id. at 407. Because "this purely factual inquiry . . . does not turn on the meaning of any provision of a collective-bargaining agreement,” the Court concluded: [T]he state-law remedy in this case is "independent” of the collective-bargaining agreement in the sense of "independent” that matters for § 301 preemption purposes: resolution of the state-law claim does not require construing the collective-bargaining agreement. [Id. at 407.] It has been suggested that development of the scope of preemption under § 301 has been driven, in part, by an effort to make certain that " 'parties [are not allowed] to evade the requirements of § 301 by relabeling their contract claims as claims for tortious breach of contract.’ ” United Steelworkers of America v Rawson, 495 US 362, 369; 110 S Ct 1904; 109 L Ed 2d 362 (1990) (quoting Lueck, supra at 211). Guided by these general principles and parameters, we turn now to an analysis of the issue before us — whether resolution of plaintiff’s state civil rights claim requires interpretation of the collective-bargaining agreement. B We begin by focusing on the essential elements of the state-law claim advanced by plaintiff. She complains that a similarly situated, nonblack male employee with less qualifications and lower seniority received special treatment by defendant during the testing process, in violation of her rights protected by the Michigan Civil Rights Act. In order to establish a prima facie case of "[d]isparate treatment” race discrimination, a plaintiff "must show that [she] was a member of the class entitled to protection under the act and that, for the same or similar conduct, [she] was treated differently than one who was a member of a different race.” Schipani v Ford Motor Co, 102 Mich App 606, 617; 302 NW2d 307 (1981) (citing Pompey v General Motors Corp, 385 Mich 537; 189 NW2d 243 [1971]). Likewise, "the essence of a sex discrimination civil rights suit is that similarly situated people have been treated differently because of their sex.” Radtke v Everett, 442 Mich 368, 379; 501 NW2d 155 (1993). See also Marsh v Dep’t of Civil Service (After Remand), 173 Mich App 72; 433 NW2d 820 (1988). Plaintiff argues that resolution of her state discrimination claim turns on a factual determination regarding defendant’s conduct and motivation in allowing Mr. Krawczyk to retake the welding test and in reinstating his seniority. Contending that her claim can be resolved without interpreting the collective-bargaining agreement, plaintiff posits that it is "independent” of the agreement and not preempted by § 301. We agree. Highly instructive is a statement by the Lingle Court that acknowledges the unique character of a state discrimination claim:_ In the typical case a state tribunal could resolve either a discriminatory or retaliatory discharge claim without interpreting the "just cause” language of a collective-bargaining agreement. [Lingle, 486 US 413. Emphasis added.] Implicit is the recognition that claims under state statutes prohibiting discrimination often turn on issues of fact pertaining to the conduct or motive of the defendant, rather than on the interpretation of a collective-bargaining agreement. That is the case here. It is undisputed that Mr. Krawczyk had an earlier date of entry than plaintiff, and therefore more seniority within the welder’s classification at the point when the Weld Tech course began on February 28, 1983. The parties have registered no disagreement concerning the terms or meaning of the collective-bargaining agreement as it relates to seniority, shift preference, or lay off. Although defendant seeks to emphasize that Mr. Krawczyk was awarded the shift preference because of a higher seniority ranking, the critical issue is whether the decisions to allow Mr. Krawczyk to retake the test and then to reinstate his seniority were based on racial or gender considerations. Plaintiff’s argument that her claim is independent of the collective-bargaining agreement is strongly buttressed by the fact that she is asserting nonnegotiable state rights — secured by the Michigan Civil Rights Act. These are rights that apply to all employees, whether or not they belong to a union. Such rights cannot be waived or conditioned on success at the bargaining table. While acknowledging that this factor alone may not establish the independence of a state claim, the Lingle Court took note of the fact that "most state laws that are not pre-empted by § 301 will grant nonnegotiable rights that are shared by all state workers . . . .” Id. at 408, n 7. The jurisprudence of the United States Court of Appeals for the Sixth Circuit is in accord. In Smolarek v Chrysler Corp, 879 F2d 1326 (CA 6, 1989) (en banc), cert den Chrysler Corp v Smolarek, 493 US 992 (1989), an eight-judge majority ruled that the particular claims presented under Michigan’s Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq., were not preempted by § 301. Id. at 1335. Seven judges dissented in part. Speaking through Judge Kennedy, they reasoned that because no right of accommodation is conferred upon a handicapped employee by the hcra, the accommodation sought by the plaintiffs in Smolarek was negotiable, and that to that extent such a claim is preempted by § 301. However, even the dissenting judges recognized that interpretation of a collective-bargaining agreement is not required in the typical case alleging race, sex, or age discrimination. Judge Kennedy explained: In race, sex, and age cases, interpretation of the collective bargaining contract is unnecessary. . . . The right to be free of race, sex, or age discrimination is independent of any ancillary right contained in a collective bargaining agreement. Likewise, if an employee is terminated for a handicap unrelated to his ability to perform the functions of his job, interpretation of a collective bargaining agreement is unnecessary to his claim. The hcra has provided a nonnegotiable right to be free of this type of discrimination. [Id. at 1338 (Kennedy, J., dissenting in part).][] Relying on Lingle and Smolarek, supra, the United States Court of App

Emma Harrison vs. Boston Financial Data Services, Inc. No. 93-P-653. Norfolk. April 13, 1994. August 15, 1994. Present: Brown, Smith, & Fine, JJ. Practice, Civil, Summary judgment. Anti-Discrimination Law, Prima facie case, Employment, Race. Employment, Discrimination. On the record of an action alleging employment discrimination based on race, summary judgment was incorrectly entered in favor of the employer where the plaintiff had set forth sufficient facts to establish a prima facie case of unlawful discrimination, unmet by countervailing materials. [136-139] Civil action commenced in the Superior Court Department on August 5, 1991. The case was heard by Andrew G. Meyer, J., on a motion for summary judgment. Winston Kendall for the plaintiff. Colette Manoil for the defendant. Brown, J. This is an appeal from a grant of summary judgment for the defendant, Boston Financial Data Services, Inc. (BFDS). All the materials that were before the motion judge are also before us on appeal. Cf. Pilch v. Ware, 8 Mass. App. Ct. 779, 780 (1979). Contrast Cambridge Hous. Authy. v. Civil Serv. Commn., 7 Mass. App. Ct. 586, 588 (1979). On review of this record, we have little difficulty con-eluding that the judge erred in allowing the defendant’s motion for summary judgment. The plaintiff, Emma Harrison, an African-American woman, was employed as a “microfilmer” by BFDS in December, 1984, under a contract at will. According to her verified complaint, she intended to remain with BFDS on a long-term basis, and she anticipated promotions and salary increases. In January, 1986, after one year with the company, an evaluation by her supervisor rated her as effective (i.e., “good”) in the position, and her supervisor further indicated that she desired more challenging job tasks and should be allowed to perform other duties. The evaluation also indicated that she was interested in being promoted. In March, 1986, she was moved “laterally” to the position of “correspondence control clerk.” As of the summer of 1990, the plaintiff had received annual merit salary increases but had received no promotions. Nor had she received any in-house training (with the exception of a five-hour stress management workshop in February, 1989) since September, 1988. See note 13, infra. In July, 1990, Harrison took a short-term disability leave, until September, 1990. When Harrison returned to the company in September, she was informed verbally that her former position had been eliminated. While a new position of “accounts specialist” had been created that comprised many of her former duties, as well as some additional responsibilities, BFDS did not offer Harrison this position, nor even make her aware of its existence. She maintains that she was fully capable of performing the duties associated with the “new” position, an assertion for which no dispute appears in the materials before the trial judge. On October 15, 1990, BFDS hired a white female to fill the position of accounts specialist. While the record does not reflect the basis upon which the new person was hired or what her qualifications were, we note that 180 persons held the accounts specialist position at BFDS. On October 1, 1990, Harrison filed a complaint with the Massachusetts Commission Against Discrimination (MCAD), alleging discrimination based on race, color, and age (Harrison was fifty-four at the time her position was eliminated). Some time after the charge was filed with the MCAD, Harrison was offered a position as “mail opener” at a different facility of BFDS, a gesture that it fairly may be inferred was a veiled attempt to nullify her discrimination claim. That position carried essentially the same duties as her previous position, which the defendant had informed her had been abolished. She did not accept the offer. In August, 1991, Harrison filed a verified complaint alleging violations of State and Federal statutes: G. L. c. 151B, § 4; 42 U.S.C. § 1981 (1988); and 29 U.S.C. §§ 621 et seq. (1988), and requested a trial by jury. After discovery, BFDS’s motion for summary judgment, filed in September, 1992, was allowed in December, 1992. Summary judgment is appropriate where there is an absence of genuine dispute as to any material fact and the moving party is entitled to summary judgment as matter of law. Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). See Flesner v. Technical Communications Corp., 410 Mass. 805, 808-809 (1991), and cases cited. Our review of the grant of summary judgment in favor of the defendant requires us to assume the truth of all the facts set forth in all the materials the plaintiff properly presented to the Superior Court judge, as well as to give her the benefit of any favorable inferences that may be drawn from those materials. Welford v. Nobrega, 30 Mass. App. Ct. 92, 94 (1991), S.C., 411 Mass. 798 (1992). Following the McDonnell Douglas framework, Harrison’s verified complaint and materials in support of her opposition to summary judgment establish a prima facie case of unlawful discrimination: (1) she is a member of a protected class; (2) she was qualified for the position of correspondence control clerk (as well as its newly created successor position); (3) despite her qualifications, she was not considered for the successor position; and (4) her job having been eliminated, she was effectively replaced with a white woman who had her qualifications. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 135 & n.5 (1976). See also Radvilas v. Stop & Shop, Inc., 18 Mass. App. Ct. 431, 439-440 (1984). The exact prima facie proof required can vary depending on the factual situation. Wheelock College v. Massachusetts Commn. Against Discrimination, supra at 135 n.5. Radvilas v. Stop & Shop, Inc., supra at 439. BFDS argues that Harrison failed to make out a prima facie case of discrimination because she was not in fact terminated. Rather, BFDS asserts that Harrison took a disability leave with full knowledge that her job might not exist when she returned, thereby entitling the defendant to summary judgment as matter of law. We do not agree. In addition to the ample basis set out in her verified complaint, Harrison submitted deposition testimony and excerpts from the employee manual that describe the efforts (or lack thereof) of BFDS in dealing with issues of racial discrimination in an attempt to demonstrate that the reasons given for eliminating Harrison’s job and not hiring her for the new position were a pretext. Smith College v. Massachusetts Commn. Against Discrimination, 376 Mass. 221, 230 (1978). In addition, Harrison asserted that she was not provided with the training and educational opportunities routinely accorded white employees, nor was she made aware of BFDS’s policy of paying tuition costs for employees who sought to enhance their knowledge and skills in order to take advantage of promotion opportunities. The defendant never performed an evaluation of Harrison’s skills, let alone offered her the new position or even administered the requisite tests (which were minimal) for that position. Nor was she provided an opportunity to present her career aspirations. Inferentially, this treatment of the plaintiff contributed to the atmosphere of unlawful discrimination. Nothing has been made to appear by BFDS to counter either these materials or her assertions. Contrast Brunner v. Stone & Webster Engr. Corp., 413 Mass. 698, 703-705 (1992). BFDS claims that Harrison did not apply for any other job, and therefore could not have been impermissibly rejected based on race. While it is not clear whether Harrison ever actually applied for a promotion, that is not fatal to the plaintiffs prima facie case. Passing the issue raised by the hiring of the white female, we need to look no further than to the deposition testimony of Maureen DeVivo, who began in 1983 as a secretary to the manager of BFDS’s human resources department and has risen to the position of group manager of employee relations and benefits. DeVivo stated therein that BFDS had no formal program for soliciting (or accepting) applications for promotion or for promoting employees. She went on to say that there existed an informal, subjective mechanism for hiring and promoting employees outside the formal system of job postings. Such subjective conditions have been acknowledged as suspect by a number of courts, deserving of close scrutiny “because of their capacity for masking unlawful bias.” Sklenar v. Central Bd. of Educ. of Sch. Dist., 497 F. Supp. 1154, 1160 (E.D. Mich. 1980), quoting from Davis v. Calitano, 613 F.2d 957, 965 (D.C. Cir. 1980). Moreover, where, as here, the complainant-employee was not offered the so-called new position or even made aware that the particular job opening existed, a fact finder reasonably could infer that discriminatory practices prevented even awareness of the opportunity. See Rodgers v. Peninsular Steel Co., 542 F. Supp. 1215, 1299 (N.D. Ohio 1982). In conclusion, we think that the plaintiffs verified complaint sets forth sufficient facts to establish a prima facie case of unlawful discrimination and that she has shown by material described in Mass.R.Civ.P. 56(c), unmet by countervailing materials, sufficient information for a fact finder to find (1) that the plaintiff, a member of a racial minority group, had in fact been terminated (or denied promotion), and (2) that the reason proffered by the defendant for treating Harrison in such a manner was a pretext. See Talbert Trading Co. v. Massachusetts Commn. Against Discrimination, ante 56, 63 (1994), and cases cited. Judgment reversed. In this posture, for purposes of our review, we look at a trial judge’s decision to allow a motion for summary judgment, albeit useful, as a “nondispositive prelude.” “Here we must be mindful that in cases involving a state of mind, where credibility of witnesses may be important, summary judgment may be inappropriate.” Welford v. Nobrega, 30 Mass. App. Ct. 92, 99 (1991), S.C., 411 Mass. 798 (1992). See also Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991) (“where motive, intent, or other state of mind questions are at issue, summary judgment is often inappropriate”). Harrison received similar ratings in every successive year, except her last full year, when the evaluator’s comment was “meets requirements.” By way of explanation, the plaintiff averred in her verified complaint, and repeated in an affidavit, that when she “came to realize that [her] future with the defendant was bleak and that [she] would probably not be promoted . . . [she] became depressed and frustrated” and, as a result, experienced such intense “pain in my joints ... at work ... so as to incapacitate [her].” The defendant, however, points to evidence in the record contrary to the plaintiffs assertion that her short-term disability leave was work-related. The defendant is estopped from making an argument that the new accounts specialist position required a degree by the deposition testimony of its manager, Ms. DiVivo, who stated “[i]t didn’t require [a degree].” Deciding as we do, we do not reach the age discrimination claim. The judge stated, in allowing the motion, that “[although it appears that plaintilf has filed a claim with the Mass. Comm, against Discrimination pursuant to G. L. c. 15IB, § 4, it is not apparent that plaintiff has exhausted that remedy. See Sereni v. Star Sportswear Mfg. Corp., 24 Mass. App. Ct. 428, 429 (1987).” The plaintiff is correct in her contention that the judge’s invocation of the Serení case is misplaced. See G. L. c. 151B, § 9. The court in Serení did not impose an exhaustion requirement; rather, Serení stands for the proposition that a timely complaint must be filed with the MCAD before a plaintiff can proceed with an action in the Superior Court. See, e.g., Brunson v. Wall, 405 Mass. 446, 452 (1989). Harrison is not required to exhaust administrative remedies under the Federal statute. Melley v. Gillette Corp., 19 Mass. App. Ct. 511, 512-513 (1985), S.C., 397 Mass. 1004 (1986). See also Cherella v. Phoenix Technologies Ltd., 32 Mass. App. Ct. 919 (1992). The Supreme Court of the United States held in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), that a complainant could establish a prima facie case of racial discrimination by showing “(i) that [s]he belongs to a racial minority; (ii) that [s]he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite [her] qualifications, [s]he was rejected; and (iv) that, after [her] rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” “Only if the plaintiff files a verified complaint is the complaint treated as an affidavit for purposes of rule 56(e).” Godbout v. Cousens, 396 Mass. 254, 262 (1985). At oral argument, BFDS cited a “corporate restructuring” during plaintiffs absence as the basis for eliminating her job; however, it failed to address that issue adequately in its brief. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). This argument is presumably advanced as the defendant’s “legitimate nondiscriminatory reason” for the elimination of Harrison’s position to rebut a prima facie case of unlawful discrimination. Smith College v. Massachusetts Commn. Against Discrimination, 376 Mass. 221, 229 (1978). Harrison signed a “short-term disability leave agreement” which stated, “I further understand th fat] I am not guaranteed a position with the Company upon return from my leave.” For example, the record indicates that BFDS had no affirmative action plan, nor had it posted on its premises any notices which would inform African-American employees of the existence of a process or mechanism whereby they could register complaints concerning discriminatory treatment. The record also contrasts the experience of a white woman employee in terms of the training and education she received and promotional opportunities provided her by BFDS. As stated in its employment manual, it is BFDS’s policy to provide training to its employees designed to strengthen their performance.