Discrimination Cases

Talbert Trading Company vs. Massachusetts Commission Against Discrimination. No. 92-P-1831. Worcester. January 10, 1994. July 22, 1994. Present: Kass, Porada, & Greenberg, JJ. Anti-Discrimination Law, Employee, Handicap. Employment, Discrimination, Termination. Handicapped Persons. Damages, Under anti-discrimination law, Emotional distress, Loss of earning capacity. On the record of a handicap discrimination case before it, the Massachusetts Commission Against Discrimination properly concluded that an employee’s heart condition qualified him under G. L. c. 15IB, § 1 (17), as a handicapped person, protected by the statute from discharge by his employer solely on account of his heart condition. [59-61] Ample evidence in the record of a handicap discrimination proceeding supported the finding of the Massachusetts Commission Against Discrimination that an employee with a known heart condition was perceived by his employer as handicapped. [61] On the record of a handicap discrimination case before the Massachusetts Commission Against Discrimination, in which the complainant established a prima facie case that he was fired from his employment because of his handicap (a heart condition), the commission was warranted in concluding that the employer’s articulated reasons for the discharge were a pretext and that, but for his handicap, the employee would not have been discharged. [62-63] The record of a handicap discrimination claim before the Massachusetts Commission Against Discrimination supported the commission’s award of damages for emotional distress [64-65], lost wages [65], and lost potential pension benefits [65]. Civil action commenced in the Superior Court Department on October 10, 1991. The case was heard by John C. Cratsley, J. Richard T. Tucker for the plaintiff. Eugenia M. Guastaferri for the defendant. Greenberg, J. From November, 1979, until his dismissal in March, 1985, Arthur Caddell (the employee) was employed by Talbert Trading Company (the employer). On Friday, March 22, 1985, the employee experienced chest pains while at work. As he suffered from a preexisting heart condition, he became apprehensive and consulted with his cardiologist during the ensuing weekend. He was admitted to the hospital for observation on Sunday, March 24, 1985. Upon his return to work on the following Friday, he learned that, earlier in the week, a decision had been made by the employer to terminate his employment. On April 1, 1985, the employee filed a complaint with the Massachusetts Commission Against Discrimination (the commission) alleging that the employer had discriminated against him on the basis of a “handicap,” in violation of G. L. c. 151B, § 4(16). After an investigation, the commission found probable cause to credit the employee’s allegations, and a hearing was held before a hearing commissioner. The hearing commissioner found that in terminating the employee the employer had discriminated against the employee on the basis of his heart condition, which the commissioner found qualified as a handicap. He also determined that, by not permitting him a four-day absence, the employer did not reasonably accommodate the employee’s handicap. The employee was awarded a total of $18,450.40 in damages. That amount included $10,000 for emotional distress resulting from the discharge, $5,000 in back pay, and $3,450.40 in lost pension benefits, plus interest at the statutory rate of twelve percent per year. The employer appealed to the full commission, which affirmed the decision of the hearing commissioner, concluding that his decision was supported by substantial evidence and was a correct application of the law, and to the Superior Court, see G. L. c. 30A, § 14, arguing that the decision was not supported by substantial evidence. The judge affirmed the commission’s decision. From the ensuing judgment, incorporating the commission’s order, the employer appeals. We summarize the facts as they were found by the hearing commissioner. For six years, the employee, who was fifty-one years of age at the time of his discharge, was employed as a press operator in the baling department by the employer, an exporter of second-hand clothing to third-world countries. As a baler, the employee packed clothing into large (five to seven hundred pounds) bundles. At the time of his hiring, he had disclosed that he suffered from a heart condition. During the entire time he was employed, however, that condition never affected his ability to do his job. His attendance at work was exemplary. In March of 1985, there were about 150 persons employed in the employer’s Worcester facility. On an annual basis, the employer experienced a 300% turnover rate of employees. To avoid disruption of the workplace because of this circumstance, and given the history of employees leaving the company without warning, the employer posted a notice above the company’s time clock that stated: “NOTICE TO ALL EMPLOYEES IF FOR SOME LEGITIMATE REASON, YOU ARE UNABLE TO COME TO WORK, WE EXPECT YOU TO CALL AND LET US KNOW — PROMPTLY IN THE MORNING.” Prospective employees were also told, at the time of hiring, that they were required to call the company on any day when illness prevented attendance at work. We return to the employee’s case. When he experienced chest pains on Friday morning of March 22, this was not a novel experience; he continued to operate his baling press until day’s end. On Monday, March 25, the employee’s ex-wife, who was also employed by the company, called his supervisor, and informed him that the employee had been admitted the day before to the hospital for observation. The supervisor was not left with the impression that the employee might be out for an extended period of time, or that the employee actually had suffered a heart attack. He told the employee’s wife to “keep [him] informed of the situation.” On the third day of the employee’s absence from work, Wednesday, March 27, a decision was made by the employer to replace him, purportedly because he had violated company policy by not making a daily telephone report. Someone in the higher echelon of the company (not his supervisor) decided to replace him in the event he failed to return to work the following day. At trial, the employer claimed (without much information to substantiate the claim) that the employee’s position had to be filled immediately because the absence of a baler would disrupt its entire operation. As it turned out, the employee showed up for work on Friday, March 29, ready to resume work without any restrictions, but he was told that he no longer had a job. 1. Application of G. L. c. 151B, § 4(16). General Laws c. 151B, § 4(16), as inserted by St. 1983, c. 533, § 4, provides in pertinent part: “It shall be an unlawful practice . . . [f]or any employer ... to dismiss from employment or refuse to . . . rehire ... 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 . . . would impose an undue hardship to the employer’s business.” To prove a case of handicap discrimination under the statute, the employee has the burden of persuading the fact finder that the employee (1) is a handicapped person; (2) is otherwise “capable of performing the essential functions of the position”; and (3) is being excluded from the position solely by reason of the handicap. Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 383 (1993). Conway v. Boston Edison Co., 745 F. Supp. 773, 781-782 (D. Mass. 1990). a. Heart disease as handicap. Although the employer does not raise it, there is an initial hurdle for the employee: to our knowledge, no Massachusetts court has passed on the issue whether a person with heart disease qualifies for the special protections of G. L. c. 151B, § 4(16). General Laws c. 15IB, § 4(16), is patterned after the Federal Rehabilitation Act of 1973, 29 U.S.C. § 791 (1988). Numerous Federal decisions that have construed the equivalent Federal law have held that persons with heart conditions similar to the employee’s in this case are regarded as handicapped. See Bey v. Bolger, 540 F. Supp. 910, 927 (E.D. Pa. 1982); Bento v. I.T.O. Corp. of R.I., 599 F. Supp. 731, 741 (D. R.I. 1984); Johnson v. Sullivan, 764 F. Supp. 1053, 1065 (D. Md. 1991). The United States Department of Health and Human Services includes heart disease among those conditions covered by the Rehabilitation Act. See School Bd. of Nassau County v. Arline, 480 U.S. 273, 280 n.5 (1987). General Laws c. 151B, § 1(17), as inserted by St. 1983, c. 533, § 2, defines the term “handicapped person” as “any person who has a physical or mental impairment which substantially limits one or more of such person’s major life activities, has a record of such impairment, or is regarded as having such impairment.” Guidelines promulgated by the commission in 1986 “explain the term [handicapped person] to include, for example, . . . individuals who are obese or have high blood pressure and thus may be ‘regarded as having an impairment’ that the employer believes may drive up insurance rates.” Heins, Massachusetts Civil Rights Law, 76 Mass. L. Rev. 26, 30 (1991). Although the hearing commissioner did not discuss in what manner the employee’s heart disease “substantially limits one or more [of his] major life activities,” the commission could, in the exercise of its administrative functions, promulgate, as it did, guidelines that make such impairment a presumption in the case of a person who suffers from heart disease. Under the circumstances contained in this record, the commission properly concluded that the employee’s heart condition qualified him under G. L. c. 151B, § 1(17), as a handicapped person. We conclude that persons suffering from heart disease or other cardiac conditions known to their employers at the time of hiring and who are otherwise able to perform their work, are protected by the statute from discharge solely on account of their heart condition. b. Employer’s perception of handicap. The employer challenges the finding that the employee was perceived or regarded by the employer to be handicapped, which finding, it argues, “was seized upon by the Superior Court [judge] to base his finding that [the employee] had established a prima facie case.” While the record in this case does not indicate that the employee suffered limitations of any major life activities other than the one incident which led to his firing, there was ample evidence to suggest that he had a known history of a heart condition and that he was regarded by his employer as someone with a heart condition at the time of the hiring. Testimony that he suffered a heart condition since 1969, was under a doctor’s care, took medication for his condition, and submitted a note from his doctor to his employer advising of his heart trouble was uncontested at the hearing before the hearing commissioner. The conclusion that the employee’s impairment and the employer’s perception of his handicap were the reasons for his termination is supported by substantial evidence. 2. Claimed failure by employee to explain absence. The employer’s principal argument is that it did not fire the employee because of his heart condition; rather, it merely filled his position when he failed to return to work without informing his supervisor about his absence in advance of each day. If the employee’s position were not filled, its argument goes, operations in the baling department would be disrupted. The hearing commissioner found highly implausible the employer’s assertion that the employee had abandoned his job because he failed to call in sick each day. The employee’s testimony that, in the past, he had not been required to call in sick every day was not contradicted, and the written policy — the notice posted above the time clock — did not contain such a stringent requirement. Once a complainant establishes a prima facie case of discrimination, the burden of production shifts to the employer to articulate a legitimate nondiscriminatory reason for its action under the analytical framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The employer must produce credible evidence showing a legitimate rationale for terminating the employee. Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 134-135 (1976). McKenzie v. Brigham & Women’s Hosp., 405 Mass. 432, 435 (1989). To satisfy the shifted burden of production, an employer’s reason must be “clear and reasonably specific,” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 258 (1981), and supported by specific facts that would justify a judgment for the employer. Id. at 255 n.9. Here, the hearing commissioner found, and we agree, that there was no evidence that the employee’s brief absence jeopardized the employer’s operation. Despite his heart condition, the employee’s longevity and attendance at work were impressive, particularly in light of the over-all high turnover rate. Both of these factors support the hearing commissioner’s finding that the employer’s articulated reasons for the discharge were a pretext. As to establishing pretext, our cases have held that employees have had to prove, first, that the reason asserted by the employer was not the true reason and, second, that the employer would not have taken the contested action “but for” the unlawful discrimination. Fontaine v. Ebtec Corp., 415 Mass. 309, 315-316 n.8 (1993). See Brunner v. Stone & Webster Engr. Corp., 413 Mass. 698, 699 (1992). The employer’s nondiscriminatory reason for the employee’s discharge was belied by evidence justifying the hearing commissioner’s determination that the particular reason given was not the “real reason” for the decision to discharge the employee. Radvilas v. Stop & Shop, Inc., 18 Mass. App. Ct. 431, 439 (1984). An affirmative answer to the second question — whether but for his handicap the employee would not have been discharged — follows from the determination that the given reason for the termination was a pretext. 3. Reasonable efforts to accommodate employee. The first paragraph of G. L. c. 15IB, § 4(16), contains a requirement that employers make reasonable efforts to accommodate the particular needs of “qualified” handicapped individuals, i.e., those who are able to perform their jobs if employers make some effort to adjust the working situation. Here, the hearing commissioner found that the employer’s failure to hold the employee’s job open during the four days of his absence and grant him sick leave would not have imposed any hardship upon, the employer. In certain cases, sick leave has been held a reasonable accommodation under § 401 of the Federal Rehabilitation Act, the Federal analog to G. L. c. 151B, § 4(16). See, e.g., Kimbro v. Atlantic Richfield Co., 889 F.2d 869 (9th Cir. 1989), cert. denied, 457 U.S. 363 (1990) (failure of employer to accommodate employee’s migraine condition); McElrath v. Kemp, 714 F. Supp. 23 (D. D.C. 1989) (public employer required to grant leave without pay to allow employee to pursue treatment for alcoholism). That principle is not implicated in the instant case. The employee did not formally request that he be permitted to use sick leave before his hospitalization or ask the company to waive its supposed' “call in” requirement. Upon his return to work, his condition had stabilized. Nor did the employee request that any other accommodation be made before he received his final termination notice. Consequently, while the finding that the termination of the employee amounted to illegal discrimination may stand, the question whether the employer failed to make reasonable accommodation to the employee’s physical condition and, thus, violated G. L. c. 15IB, § 4(16), forbidding discrimination on that score, is not raised by this case. 4. Damages. The employer challenges certain aspects of the commission’s award of damages. First, the employer argues that the award of damages for emotional distress was improper because there was no expert testimony offered to substantiate that claim. But, as the commission points out, it may award damages for emotional distress based on evidence other than expert testimony. College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. 156, 169 (1987). Buckley Nursing Home v. Massachusetts Commn. Against Discrimination, 20 Mass. App. Ct. 172, 182 (1985) (“the standards governing an award of damages for emotional distress in proceedings under G. L. c. 15IB are not so stringent as those applicable to actions of tort for the intentional infliction of emotional distress”). See also Bournewood Hosp., Inc. v. Massachusetts Commn. Against Discrimination, 371 Mass. 303, 317 (1976) (a mere finding of retaliation permits an inference of emotional distress). “It necessarily follows that in c. 15IB cases an award of emotional distress damages can be sustained even in the absence of physical injury or psychiatric consultation.” Buck ley Nursing Home v. Massachusetts Commn. Against Discrimination, 20 Mass. App. Ct. at 182. The hearing commissioner’s finding that the employee suffered emotional trauma as the direct result of losing his job was supported by substantial evidence in the form of compelling testimony by the employee. The employee testified that he became depressed and disoriented and had physical symptoms never experienced before. He also indicated that he sought counselling as a result of his “nervous condition.” The employer did not refute the employee’s stated reasons as to the difficulties he underwent trying to return to work. Moreover, there was support for the finding that the employee was so affected by his termination as to render him emotionally and physically incapable of seeking other employment. Based on evidence in the record, the hearing commissioner determined that the employee had received worker’s compensation benefits, and also that he would have continued to work for the employer but for his unlawful termination and would have earned $20,000 as of the date of the hearing. This represented a loss to the employee. The hearing commissioner deducted from lost earnings the amount of worker’s compensation the employee had received. The employer also complains that potential pension benefits were factored into the damage calculation. We agree with the hearing commissioner and the Superior Court judge that the employee is entitled to those damages: they represent a tangible loss to him and a benefit that would have inured to him but for the unlawful termination by the employer. Based upon our review of the entire record, we conclude that the hearing commissioner’s findings and decision, as approved by the full commission and affirmed by the Superior Court, were supported by substantial evidence and that there was no error of law. Judgment affirmed. For an historical perspective on Massachusetts protections against handicapped discrimination, see Note, Employment Discrimination Against the Handicapped: An Analysis of Statutory and Constitutional Protections in Massachusetts, 21 New Eng. L. Rev. 305 (1986). The employee’s complaint also alleged discrimination based upon race. As to the race discrimination claim, the hearing commissioner found that there was no probable cause. General Laws c. 151B, § 6, incorporates the standard set forth in G. L. c. 30A as the standard for review of commission decisions. That standard requires that the reviewing court defer to the facts found by the commission where there is substantial evidence to support the findings and where there is no error of law. Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 132-133 (1976). Springfield Bd. of Police Commrs. v. Massachusetts Commn. Against Discrimination, 375 Mass. 7

Ronald B. Wheatley vs. American Telephone & Telegraph Company & another. Suffolk. February 7, 1994. July 19, 1994. Present: Wilkins, Abrams, O’Connor, & Greaney, JJ. Practice, Civil, Summary judgment. Anti-Discrimination Law, Age, Termination of employment. Limitations, Statute of. Discussion of Federal case law construing the Federal anti-discrimination statutes to which this court looks in interpreting G. L. c. 151B. [397-398] In an action alleging employment discrimination by reason of age in violation of G. L. c. 15IB, § 4, the plaintiffs affidavit and accompanying materials demonstrated a genuine issue of material fact whether the plaintiff received unequivocal notice of his termination within the six months prior to the filing of his complaint, such as would trigger the commencement of the limitations period for filing the claim. [397-398] In an age discrimination in employment action, the plaintiffs affidavit and accompanying materials demonstrated a genuine issue of material fact whether the plaintiff knew or should have known his duties would be reassigned to younger employees so as to start the running of the limitations period for filing his claim. [398-400] Civil action commenced in the Superior Court Department on August 16, 1991. The case was heard by Regina L. Quinlan, J., on a motion for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Frank J. Teague for the plaintiff. Thomas E. Shirley for the defendants. Mare Rosen. Abrams, J. The plaintiff, Ronald B. Wheatley, filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) alleging that the defendants, American Telephone and Telegraph Company (AT&T) and Marc Rosen, terminated him because of his age in violation of G. L. c. 15IB, § 4 (1992 ed.). The plaintiff subsequently withdrew the complaint and commenced this age discrimination action in the Superior Court pursuant to G. L. c. 15IB, § 9 (1992 ed.). After concluding that the plaintiff failed to comply with the period of limitations set forth in G. L. c. 15IB, § 5, *the Superior Court judge allowed the defendants’ motion for summary judgment. The plaintiff appealed, contending that the Superior Court judge incorrectly determined that the period of limitations began to run, at the latest, on the date on which he received written notice that he would soon be terminated and that, even if the limitations period commenced on the notification date, AT&T’s assurance that it would assist him in finding alternative employment within the company and its failure to conspicuously post notice of employee rights under G. L. c. 15IB, § 7 (1992 ed.), tolled the limitations period. We transferred the appeal to this court on our own motion. We reverse. 1. The■ facts. Viewed in the light most favorable to the plaintiff, see Alioto v. Marnell, 402 Mass. 36, 37 (1988), the materials submitted on the summary judgment motion established the following facts. The plaintiff served as a regional attorney for AT&T from January, 1984, through December 30, 1990. Marc Rosen was the plaintiff’s immediate supervisor. The plaintiff’s primary responsibilities included reviewing and analyzing legislation introduced in the States of New York, Rhode Island, and Connecticut. On July 13, 1990, Rosen informed the plaintiff that his position would be eliminated. Rosen further informed the plaintiff that he would have a ninety-day “transition period” in which to find another position within the company and that company personnel would assist him in this effort. On September 10, 1990, the plaintiff received a letter from Richard Romano, Rosen’s supervisor, advising him that his position had been eliminated and that he would be terminated on November 30", 1990, if he were unable to secure another position within AT&T by that date. On December 30, 1990, the plaintiff was officially taken off the AT&T payroll. On April 24, 1991, the plaintiff filed a charge of age discrimination against AT&T with the MCAD pursuant to G. L. c. 151B. 2. The summary judgment standard. Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). However, “granting summary judgment is error when the party opposing the motion has alleged facts relating to the transaction on which suit has been brought which raise issues entitling him to a trial.” Community Nat’l Bank v. Dawes, 369 Mass. 550, 556 (1976). See also Mathers v. Midland-Ross Corp., 403 Mass. 688, 690 (1989); Attorney Gen. v. Bailey, 386 Mass. 367, 371, cert, denied, 459 U.S. 970 (1982). “[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 Mass. R. Civ. P. 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. . . . That showing having been made, the plaintiff [must] respond by ‘set [ting] forth specific facts showing that there is a genuine issue for trial.’ ” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991), quoting Mass. R. Civ. P. 56 (e). 3. AT&T’s motion for summary judgment. The defendant AT&T contends that we should look to Federal law to determine the correctness of the judge’s ruling on the motion for summary judgment. It is our practice to apply Federal case law construing the Federal anti-discrimination statutes in interpreting G. L. c. 15IB. See, e.g., Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 135-139 (1976). We turn therefore to the Federal cases. Some Federal courts treat a “discharge” notice that offers the possibility of other employment within the company as an equivocal termination notice which does not trigger the commencement of the limitations period for filing an employment discrimination claim. See McConnell v. General Tel. Co. of Cal., 814 F.2d 1311, 1317 (9th Cir. 1987), cert, denied, 484 U.S. 1059 (1988). See also Verschuuren v. Equitable Life Assurance Soc’y of U.S., 554 F. Supp. 1188, 1190 (S.D.N.Y. 1983). We agree with the reasoning of these cases. “The statutory period for complaining of a discriminatory termination does not begin to run until the employee has sufficient notice of that specific act.” McConnell, supra at 1317. Because AT&T held out the possibility of other employment within the company, the letter of September 10, 1990, did not trigger the six-month statute of limitations. The plaintiffs affidavit and the materials accompanying it establish a genuine issue whether the plaintiff received unequivocal notice of his termination within six months of the filing of his complaint. On this basis, the trial judge should have denied AT&T’s motion for summary judgment. Further, in age-based discriminatory discharge claims, some Federal courts have ruled that the limitations period does not start to run until the employee knows or should know that he or she has been or will be replaced by a person outside the protected age group. See Sturniolo v. Sheaffer, Eaton, Inc., 15 F.3d 1023, 1025-1026 (11th Cir. 1994); Rhodes v. Guiberson Oil Tools Div., 927 F.2d 876, 880-882 (5th Cir.), cert, denied, 502 U.S. 868 (1991); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307-309 (3d Cir. 1983), cert, dismissed, 465 U.S. 1091 (1984). The principle announced in these Federal cases is consistent with our own holdings. See Hendrickson v. Sears, 365 Mass. 83, 89 (1974) (“a cause of action accrues on the happening of an event likely to put the plaintiff on notice”). See also Puritan Medical Center, Inc. v. Cashman, 413 Mass. 167, 175 (1992); Murphy v. Smith, 411 Mass. 133, 136 (1991); Riley v. Presnell, 409 Mass. 239, 251 (1991) (O’Connor, J., dissenting). In his affidavit, the plaintiff alleges that he was never informed by AT&T that, following his termination, his duties would be reassigned to younger employees. In a memorandum dated January 9, 1991, ten days after the plaintiff’s discharge, an AT&T official stated that “[a] major portion of the work and responsibility [previously performed by the plaintiff had been] transferred to [two younger employees].” The plaintiff’s affidavit and the materials accompanying it establish a genuine issue whether the plaintiff knew or should have known that he had been or would be replaced by persons outside the protected age group within six months of the filing of his complaint. On this basis as well, the trial judge should have denied AT&T’s motion for summary judgment. AT&T relies on Delaware State College v. Ricks, 449 U.S. 250 (1980), as support for its claim that the plaintiff’s complaint is untimely. In Ricks, supra at 258-259, the United States Supreme Court held that the period of limitations for bringing a claim pursuant to Title VII of the Civil Rights Act of 1964 commences to run on the date in which the employee is notified of the unlawful employment decision, not on the date in which termination actually occurs. However, in Ricks, the termination notice (denial of tenure) was explicit and final. Further, the notice (denial of tenure) was the only claim of discrimination. The Supreme Court noted that the employer’s letter to Ricks provided “explicit notice that his employment would end upon [the ‘terminal’ contract’s] expiration.” Id. at 258. The Supreme Court con-eluded that “[w]here, as here, the only challenged employment practice occurs before the termination date, the limitations period necessarily commences to run before that date.” Id. at 259. Thus, on its facts, Ricks, supra, is inapplicable in this case. We conclude that the Superior Court judge erred in allowing the defendants’ motion for summary judgment and we remand this case to the Superior Court for further proceedings consistent with this opinion. So ordered. General Laws c. 15IB, § 4 (IB) (1992 ed.), provides, in part, that it shall be an unlawful practice “[f]or 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.” General Laws c. 15IB, § 9 (1992 ed.), provides, in part, that “[a]ny person claiming to be aggrieved by a practice made unlawful under this chapter or under [c. 151C], or by any other unlawful practice within the jurisdiction of the commission, may, at the expiration of ninety days after the filing of a complaint with the commission, or sooner if a commissioner assents in writing, 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 . . . .” General Laws c. 151B, § 5 (1992 ed.), provides, in part, that “[a]ny complaint filed pursuant to this section must be so filed within six months after the alleged act of discrimination.” General Laws c. 151B, § 7 (1992 ed.), provides that “[ejvery employer . . . subject to this chapter, shall post in a conspicuous place or places on his premises a notice to be prepared or approved by the commission, which shall set forth excerpts of this chapter and such other relevant information which the commission deems necessary to explain the chapter.” In a letter sent to the director of investigations for the Massachusetts Commission Against Discrimination on May 23, 1991, an AT&T staff attorney stated: “On July 13, 1990, Rosen . . . met with [the plaintiff] and informed him that [his] position . . . was being eliminated, and that he was being declared surplus. [The plaintiff] also was advised . . . that he would have ninety (90) days to locate another AT&T position, at the end of which time he would be separated from the payroll, and that Rosen and others would provide reassignment assistance during the transition period. ... On July 30, 1990, Victoria A. Knudson, one of the . . . staff managers responsible for assisting in the implementation of reductions-in-force, contacted [the plaintiff] about providing assistance in locating other positions in AT&T, and was advised by Wheatley that he was not mobile outside of Boston .... On September 11, 1990, Wheatley advised Knudson that he had received the Company’s force management plan package . . . and had no questions. ... On November 6, 1990, Wheatley advised Knudson that he was willing to broaden his search for a position.” Both in its July 13, 1990, conversation with the plaintiff and in its September 10, 1990, letter to the plaintiff, AT&T offered the plaintiff the possibility of other employment within the company. We note that McConnell v. General Tel. Co. of Cal., 814 F.2d 1311, 1317 (9th Cir. 1987), cert, denied, 484 U.S. 1059 (1988), also treats a “termination” notice that offers the possibility of other employment within the company as tolling the limitation period. See notes 6 and 7, supra. Because we conclude that the trial judge erred in allowing AT&T’s motion for summary judgment, we need not discuss the issue of tolling. We comment, however, that a reasonable person who has been informed that his or her employment would be terminated on a specified date if he or she did not obtain another position within the organization by that date might not file an employment discrimination claim during this “transition period” because “[t]he filing of such a charge may prejudice any pending reconsideration of the [termination] decision.” Delaware State College v. Ricks, 449 U.S. 250, 266 n.2 (1980) (Stevens, J., dissenting). Because we conclude that the trial judge erred in allowing AT&T’s motion for summary judgment, we need not reach or decide the issue whether AT&T’s failure conspicuously to post notice of employee rights under G. L. c. 151B, § 7 (1992 ed.), tolled the limitations period. How- . ever, with respect to AT&T’s argument that we should presume that the plaintiff knew his rights under G. L. c. 151B because he was a lawyer who monitored changes in the New York counterpart to G. L. c. 151B, we note that “[t]he issue of a party’s . . . knowledge . . . often cannot be resolved adequately from a consideration of the limited materials which accompany a summary judgment motion.” Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass. 81, 86 (1984). See Noyes v. Quincy Mut. Fire Ins. Co., 7 Mass. App. Ct. 723, 725-727 (1979).

Victoria Dalis vs. Buyer Advertising, Inc. Middlesex. March 8, 1994. July 11, 1994. Present: Liacos, C.J., Abrams, Nolan, O’Connor, & Greaney, JJ. Practice, Civil, Jury trial. Jurisdiction, Equitable. Common Law. Constitutional Law, Trial by jury, Sex discrimination. Jury and Jurors. Anti-Discrimination Law, Sex, Employee. Employment, Discrimination. Civil Rights, Termination of employment. Discussion of the right to trial by jury as provided in art. 15 of the Declaration of Rights of the Massachusetts Constitution. [221-222] A plaintiff was entitled to a jury trial on her claims alleging gender discrimination in employment (G. L. c. 151B, § 4) [222-226], wage discrimination based on gender (G. L. c. 149, §§ 105A-105C) .[226], violation of the maternity leave act (G. L. c. 149, § 105D) [227], and violation of the equal rights act (G. L. c. 93, § 102) [227-228], to the extent those claims were not solely for equitable relief, under the provisions of art. 15 of the Declaration of Rights that guarantee trial by jury in “controversies concerning property.” Civil action commenced in the Superior Court Department on July 1, 1992. A motion in limine to strike the plaintiff’s demand for a jury trial was considered by Robert H. Bohn, J. An application for leave to prosecute an interlocutory appeal was allowed by Elizabeth A. Porada, J., in the Appeals Court, and the appeal was reported to a panel of that court. The Supreme Judicial Court granted a request for direct appellate review. Duncan <S'. Payne (Arthur P. Menard with him) for the defendant. Gerald T. Anglin (Catherine Sheedy-McGonagle with him) for the plaintiff. Anne L. Josephson, Sarah Wunsch & Alice Zaft, for Civil Liberties Union of Massachusetts & another, amici curiae, submitted a brief. Barbara C. Johnson, pro se, amicus curiae, submitted a brief. Abrams, J. At issue is whether the plaintiff is entitled, as a matter of State constitutional right, to a trial by jury in an action alleging discrimination based on gender. The plaintiff, Victoria Dalis, claims that she was discharged from her employment because she was pregnant. She filed a complaint against her employer, Buyer Advertising, Inc. (defendant), alleging violations of G. L. c. 93, § 102 (1992 ed.) (equal rights act); G. L. c. 149, §§ 105A-105C (1992 ed.) (wage discrimination based on gender); G. L. c. 149, § 105D (1992- ed.) (maternity leave act); and G. L. c. 151B, § 4 (1) (1992 ed.) (gender discrimination in employment). In her complaint, the plaintiff moved for a jury trial. The defendant moved to strike the jury demand, claiming that Dalis was not entitled to a trial by jury under any of the cited statutes. A judge in the Superior Court denied the defendant’s motion. The defendant appealed to a single justice of the Appeals Court. Citing inconsistent decisions in the Superior Court, the single justice reported the matter to a panel of the Appeals Court. We allowed the defendant’s application for direct appellate review. We conclude that the plaintiff is entitled to a trial by jury on most of her claims under art. 15 of the Massachusetts Declaration of Rights. Therefore, we affirm the denial of the defendant’s motion. The plaintiff’s claim under art. 15 of the Declaration of Rights. Article 15 “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). Article 15 does not preserve “the minor details or unessential formalities of the trial by jury as it then existed .either in England or here.” Bothwell v. Boston Elevated Ry., 215 Mass. 467, 473 (1913). The article must be construed with “flexibility in its adaptation of details to the changing needs of society without in any degree impairing its essential character.” Id. at 477. The language of art. 15 sweeps broadly: “In all controversics concerning property, and in all suits between two or more persons, ... the parties have a right to a trial by jury . . .” (emphasis added). The exception is narrowly defined: “[Ejxcept in cases in which it has heretofore been otherways used and practised.” Thus, according to the language of art. 15, the “sacred” method for resolving all manner of cases and controversies was trial by jury unless the case was one in which a court of equity in either England or Massachusetts would have exercised jurisdiction in 1780. See Parker v. Simpson, 180 Mass. 334, 355 (1902); Stockbridge v. Mixer, 215 Mass. 415, 418 (1913); In re Acushnet River & New Bedford Harbor, 712 F. Supp. 994, 1009-1010 (D. Mass. 1989). The jury system, as the “sacred” method for resolving factual disputes, is the most important means by which laypersons can participate in and understand the legal system. Commonwealth v. Canon, 373 Mass. 494, 516 (1977), cert. denied, 435 U.S. 933 (1978). It brings the “rules of law to the touchstone of contemporary common sense.” Id., quoting 1 W. Holdsworth, A History of English Law 348-349 (3d ed. 1922). “Jurors bring to a case their common sense and community values; their ‘very inexperience is an asset because it secures a fresh perception of each trial, avoiding the stereotypes said to infect the judicial eye.’ ” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 355 (1979) (Rehnquist, J., dissenting), quoting H. Kalven & H. Zeisel, The American Jury 8 (1966). The plaintiffs sex discrimination claim falls squarely within the language of art. 15. It is a suit between two persons which clearly sets forth a controversy concerning property. Parker v. Simpson, supra at 345. Next, we must determine whether the exception in art. 15 is applicable. We examine whether the plaintiffs claim is analogous, in either subject matter or remedy sought, to cases within the court’s equity jurisdiction, as it existed at the time of the adoption of the Constitution. See Parker v. Simpson, supra at 355. See also Powers v. Raymond, 137 Mass. 483, 485-486 (1884); Commonwealth v. Mongardi, 26 Mass. App. Ct. 5, 8 (1988). The plaintiff does not seek primarily equitable relief. Nor is the nature of her claim analogous to any case which was traditionally heard in a court of equity. Thus, the plaintiff has a right to a jury trial. See Gallagher v. Wilton Enters., Inc., 962 F.2d 120, 124 (1st Cir. 1992). Compare Department of Revenue v. Jarvenpaa, supra at 185-186 (plaintiffs not entitled to a jury trial because traditionally paternity and child support claims were not tried before a jury). The plaintiffs sex discrimination claim is analogous to common law actions sounding in both tort and contract. See Conway v. Electro Switch Corp., 402 Mass. 385, 388 (1988); Gallagher v. Wilton Enters., Inc., supra at 122-123 (“Courts have routinely held that discrimination suits in general, and employment discrimination suits in particular, are analogous to either of two common law causes of action [tort and contract]”). See also Beesley v. Hartford Fire Ins. Co., 717 F. Supp. 781, S.C., 723 F. Supp. 635, 652 (N.D. Ala. 1989) (Seventh Amendment guarantees a jury trial for plaintiffs in Title VII sex discrimination suits for lost wages). The United States Supreme Court has commented that “[a]n action to redress racial [or gender] discrimination may also be likened to an action for defamation or intentional infliction of mental distress.” Curtis v. Loether, 415 U.S. 189, 195-196 n.10 (1974). Under G. L. c. 15IB, § 9 (1992 ed.), the plaintiff may seek both legal and equitable remedies for violations of G. L. c. 15IB, § 4. If the plaintiff prevails, she may recover monetary damages for her economic losses as well as for mental anguish. See College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 169 (1987). In egregious cases, the statute also provides the legal remedy of punitive damages. See G. L. c. 15IB, § 9. The statute clearly affords the plaintiff the “legal remedy of compensatory damages.” Conway v. Electro Switch Corp., 402 Mass. 385, 387 (1988). The defendant concedes that the plaintiff’s sex discrimination claim is analogous to actions at common law, but argues that, absent clear legislative direction, the court should not imply a right to a jury trial. The issue is not whether we should imply a right to a jury trial but whether art. 15 preserves and protects the right to a jury trial on the plaintiff’s claims. Our long-standing rule is that the boundaries of equity jurisdiction “ought not to be widened by judicial decision . . . [because] the constitutional right of trial by jury would thereby become correspondingly narrowed.” Parkway, Inc. v. United States Fire Ins. Co., 314 Mass. 647, 651 (1943). The defendant relies on Nei v. Burley, 388 Mass. 307 (1983), to support its position that there is no constitutional right to a trial by jury on the plaintiff’s claims. We do not agree. In Nei, we said that the court should be “hesitant to imply a right to a jury trial for the sui generis causes of action for unfair or deceptive practices in the absence of legislative direction.” Id. at 314. General Laws c. 93A (consumer protection statute) entitles plaintiffs to relief where traditional legal remedies were considered inadequate by the Legislature. Unlike a traditional common law action for fraud, consumers suing under c. 93A need not prove actual reliance on a false representation, or that the defendant knew that the representation was false. Slaney v. Westwood Auto, Inc., 366 Mass. 688, 703 (1975). An “ ‘unfair or deceptive act or practice’ goes far beyond the scope of the common law action for fraud and deceit.” Id. We determined that any analogies between “unfair and deceptive practices” and common law claims for fraud and deceit were inappropriate. Nei v. Burley, supra at 313. Thus, we concluded that a plaintiff alleging a violation of G. L. c. 93A is not constitutionally entitled to a trial by jury. The outcome in Nei turned on the “equitable nature of the relief’ sought under c. 93A. Nei, supra at 315. By contrast, the nature of the plaintiffs claim is more analogous to actions at common law, and the relief sought by the plaintiff is predominantly legal. Nei is distinguishable on that basis. Under the broad language of art. 15, the plaintiffs right to a jury trial is protected. The exception set forth in art. 15 does not apply because the plaintiffs rights and remedies are similar to those traditionally treated as actions at law. Under art. 15, the plaintiff is constitutionally entitled to a trial by jury for her claim of employment discrimination based on sex. The judge correctly denied the defendant’s motion to strike the plaintiffs demand for a jury trial. General Laws c. 149, §§ 105A-105C Our analysis of the plaintiffs right to a jury trial under this statute is the same as under G. L. c. 15IB. The relevant inquiry is whether a claim of wage discrimination based on gender is analogous to cases which were traditionally treated as legal actions. Wage discrimination based on gender, like employment discrimination based on gender, has historical connections to common law tort and contract claims. See ante at 223. The statute permits plaintiffs to recover unpaid wages, and an additional equal amount of liquidated damages. Compensatory and punitive damages are legal remedies. Thus, both the nature of the action and the relief sought are legal. See Santiago-Negron v. Castro-Davila, 865 F.2d 431, 437, 441 (1st Cir. 1989) (back pay considered factor of compensatory damages which involves common law right to trial by jury). For the same reasons as stated ante at 223, we conclude that the plaintiff is entitled to a jury trial on her claim of wage discrimination based on gender. General Laws c. 149, § 105D. Again, we begin the analysis by exploring whether the rights afforded by this statute have an analogue in the class of cases which are essentially legal in nature, with roots in both tort and contracts. See supra at 223. An employee seeking relief under G. L. c. 149, § 105D, is entitled to both injunctive relief and money damages. The fact that the plaintiff is entitled to both legal and equitable relief may not compromise her constitutional right to a trial by jury. Stockbridge v. Mixer, 215 Mass. 415, 418 (1913). We agree with the Supreme Court that where there are legal and equitable claims present in the same case, the trial court will “have to use its discretion in deciding whether the legal or equitable cause should be tried first. Because the right to jury trial is a constitutional one, however, while no similar requirement protects trials by the court, that discretion is very narrowly limited and must, wherever possible, be exercised to preserve jury trial” (footnote omitted). Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510 (1959). Under State law, as in the Federal system, “only [in] the most imperative circumstances . . . can the right to a jury trial of legal issues be lost through prior determination of equitable claims.” Id. at 510-511. General Laws c. 93, § 102. The defendant contends that the only remedy available under G. L. c. 93, § 102, is “injunctive and other appropriate equitable relief.” Relying on our decision in Commonwealth v. Guilfoyle, 402 Mass. 130, 135-136 (1988), the defendant argues that the plaintiff is not entitled to a jury trial. We do not agree. In Guilfoyle, we concluded that there was no constitutional right to a jury trial for claims brought under the Massachusetts Civil Rights Act. Guilfoyle, supra at 135-136. Guilfoyle does not stand for the broad proposition that a jury trial does not attach to new causes of action. Our decision in Guilfoyle is grounded on the reasoning that art. 15 does not guarantee a right to a trial by jury in the class of cases traditionally reserved for the courts of equity. Guilfoyle, supra at 135. General Laws c. 93, § 102, guarantees equality in the making and enforcing of contracts. Article 15 preserves the right to a jury trial for traditional contract claims. Because a claim under G. L. c. 93, § 102, does not fall within the narrow class of cases reserved for courts of equity, the plaintiff is entitled to a trial by jury. See Parker v. Simpson, 180 Mass. 334, 355 (1902). As in the Federal system, to the extent that there are some equitable claims in addition to the legal claims, the judge has discretion to determine the order of trial between the legal claims and the request for some equitable relief. However the judge must recognize that judicial discretion is “narrowly limited” by the plaintiff’s State constitutional right to a trial by jury. The order of the Superior Court judge denying the defendant’s motion to strike the plaintiff’s demand for trial by jury is affirmed. This matter is remanded to the Superior Court for further proceedings. So ordered. We acknowledge the amicus briefs submitted by Barbara C. Johnson, The Civil Liberties Union of Massachusetts, and The Women’s Bar Association of Massachusetts. “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 practised, 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.” The plaintiff's complaint requests compensatory damages, exemplary damages, interests and costs, attorney’s fees, and reinstatement. The Seventh Amendment to the Constitution of the United States does not apply to a State civil trial. See Galvin v. Welsh Mfg. Co., 382 Mass. 340, 345 (1981). However, the court’s analysis of Title VII claims under the Seventh Amendment is similar to our analysis under art. 15. The Federal equal rights statute, 42 U.S.C. § 1981, also has been interpreted to confer a right to a jury trial. See Laskaris v. Thornburgh, 733 F.2d 260, 263 (3d Cir.), cert, denied, 469 U.S. 886 (1984) (“A party seeking compensatory and punitive damages or other legal relief under 42 U.S.C. § 1981 has a right to a jury trial”). See also Curtis v. Loether, 415 U.S. 189 (1974) (Seventh Amendment guarantees the right to a jury trial in suits alleging fair housing violations under 42 U.S.C. § 3612). Because the result we reach is consistent with the result reached in Federal courts, the right to a jury trial is not affected by the forum selected. In analyzing claims for a trial by jury under the Seventh Amendment, the Supreme Court has said that the Seventh Amendment requires a trial by jury if the complaint invokes rights and remedies traditionally resolved in an action at law rather than equity or admiralty. See Pernell v. Southall Realty, 416 U.S. 363, 375 (1974). Although we are not bound by these decisions in considering appropriate resolution of the plaintiffs claims, we consider the reasoning of the United States Supreme Court cases to be analogous to our case law. General Laws c. 151B, § 4 (1) (1992 ed.), provides: “It shall be an unlawful practice: 1. For an employer, by himself or his agent, because of the race, color, religious creed, national origin, sex, sexual orientation, which shall not include persons whose sexual orientation involves minor children as the sex object, or ancestry 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.” General Laws c. 151B, § 9 (1992 ed.), states, in relevant part: “Any person claiming to be aggrieved by a practice made unlawful under this chapter . . . may . . . bring a civil action for damages or injunctive relief or both in the superior or probate court . . . .” Though a plaintiff has no constitutional right to a trial by jury, the presiding judge may commit the resolution of a G. L. c. 93A claim to a jury as a matter of discretion. Travis v. McDonald, 397 Mass. 230, 234 (1986). General Laws c. 149, § 105A (1992 ed.), prohibits discrimination in the payment of wages based on sex. The statute provides the following remedy: “Any employer who violates any provision of this section shall be liable to the employee or employees affected in the amount of their unpaid wages, and in an additional equal amount of their unpaid wages, and in an additional equal amount of liquidated damages.” General Laws c. 149, § 105D (1992 ed.), requires that employers grant an employee up to eight weeks, with or without pay, for maternity leave. The statute provides in relevant part: “A female employee . . . shall be restored to her previous, or a similar position with the same status, pay, length of service credit and seniority, wherever applicable, as of the date of her leave. . . . Such maternity leave shall not affect. . . any other advantages or rights of her employment incident to her employment position.” “General Laws c. 93, § 102 (a) (1992 ed.), guarantees: “All persons within the Commonwealth, regardless of sex, race, color, creed or national origin, shall have, except as is otherwise provided or permitted by law, the same rights enjoyed by white male citizens, to make and enforce contracts, to inherit, purchase, to lease, sell, hold and convey real and personal property . . . and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” General Laws c. 93, § 102 (6) (1992 ed.), states in relevant part: “A person whose rights under the provisions of subsection (a) have been violated may commence a civil action for injunctive and other appropriate equitable relief, including the award of compensatory and exemplary damages. . . .” To the extent that the plaintiff seeks injunctive relief, that, of course, is a claim for equitable relief not subject to a trial by

ZOPPI v CHRYSLER CORPORATION Docket No. 142058. Submitted February 3, 1994, at Detroit. Decided July 6, 1994, at 9:00 a.m. Richard Zoppi brought an action in the Wayne Circuit Court against Chrysler Corporation, alleging reverse age discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., after the defendant denied the plaintiffs application for early retirement under its selective special early retirement program. The program required, in part, that an applicant be fifty-five years or older. The plaintiff was forty-nine years old. The court, Kaye Tertzag, J., granted the defendant’s motion for summary disposition. The plaintiff appealed. The Court of Appeals held: The plaintiff cannot establish an age discrimination case where the defendant denied him special early retirement because he was too young. The Civil Rights Act is intended to deter discrimination against older workers who still are capable. The plaintiff is not a member of a protected class under the act. The defendant’s early retirement program is valid as a bona fide retirement policy under MCL 37.2202(2); MSA 3.548(202)(2) because it exists and pays benefits. Affirmed. 1. Civil Rights — Civil Rights Act — Age Discrimination — Prima Facie Case. A plaintiff must establish membership in a protected class and subjection to adverse employment action because of age to establish a prima facie case of age discrimination (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 2. Civil Rights — Civil Rights Act — Age Discrimination. The Civil Rights Act was conceived to deter discrimination against older workers who still are capable (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). References Am Jur 2d, Civil Rights §§ 229, 237, 238. Application of state law to age discrimination in employment. 96 ALR3d 195. "Bona fide employee benefit plan” exception to general prohibition of age discrimination in employment (29 USCS sec. 623 (f) (2)). 70 ALR Fed 110. 3. Civil Rights — Civil Rights Act — Age Discrimination. The determination whether a plaintiff is a member of a protected class for age discrimination claims is not based on the age of the plaintiff per se; also to be considered is the age of the person or persons who benefit from a defendant’s discriminatory actions (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 4. Civil Rights — Civil Rights Act — Bona Fide Retirement Policies. A retirement policy that exists and pays benefits is bona fide and therefore exempt from the provisions of the Civil Rights Act (MCL 37.2202[2]; MSA 3.548[202][2]). James Schuster, for the plaintiff. Gregory S. Muzingo and Kim R. Kolb, and Patterson, Phifer & Phillips (by Randolph D. Phifer), for the defendant. Before: Wahls, P.J., and Reilly and R. M. Daniels, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Per Curiam. Plaintiff appeals as of right from the trial court’s order granting defendant’s motion for summary disposition of his age discrimination claim. We affirm. Plaintiff’s claim arose from defendant’s denial of his application for early retirement under its "selective special early retirement program” that was offered for a limited time. In order to qualify for the program, an employee was required (1) to have been on the active payroll on or after August 1, 1987; (2) to be age fifty-five or older; (3) to be a participant in the pension plan; (4) to be selected by management to participate; and (5) to voluntarily agree to participate. Plaintiff did not qualify because he was forty-nine years old. Consequently, he filed an age discrimination claim pursuant to the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., alleging that defendant discriminated against him by refusing his application on the basis of his age. The trial court granted defendant’s motion pursuant to MCR 2.116(0(10), finding that the plan was a "bona fide retirement plan” and therefore exempt from the act. The relevant provision of the Civil Rights Act regarding employment, MCL 37.2202; MSA 3.548(202), provided in part at the time of this action: (1) An employer shall not: (a) Fail or refuse to hire, or recruit, or discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of . . . age .... (b) Limit, segregate, or classify an employee or applicant for employment in a way which deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of. . . age . . . .[] Notwithstanding the above prohibition, subsection 2 of § 202 exempted bona fide retirement policies: This section shall not be construed to prohibit the establishment or implementation of a bona fide retirement policy or system that is not a subterfuge to evade the purpose of this section. This case presents a unique situation: plaintiff is claiming defendant discriminated against him on the basis of age because he was too young to qualify for defendant’s early retirement program, or essentially a reverse age discrimination claim. However, as we shall discuss, we hold that the Civil Rights Act does not protect plaintiff in this situation. To establish a prima facie case of age discrimination, a plaintiff must establish that he was a member of a protected class and that he was subjected to adverse employment action because of his age. Barnell v Taubman Co, Inc, 203 Mich App 110, 120-121; 512 NW2d 13 (1993); Featherly v Teledyne Industries, Inc, 194 Mich App 352; 486 NW2d 361 (1992). Obviously, whether a person is a member of a protected class for racial, sexual, or religious discrimination is easily identified by a person’s race, sex, or religion. However, whether a plaintiff is a member of the protected class for age discrimination is not so easily identified because the determination is not based on the age of the plaintiff per se; also to be considered is the age of the person or people who benefit from a defendant’s discriminatory actions. In this case, plaintiff has not been denied a benefit by reason of advanced age, but, rather, because he was too young to qualify. The Civil Rights Act was conceived to deter discrimination against older workers who still are capable. Klammer v Dep’t of Transportation, 141 Mich App 253, 259; 367 NW2d 78 (1985). Therefore, we believe that plaintiff is not a member of the protected class in a reverse age discrimination case under the Civil Rights Act in light of its intended purpose. We further find support for our position in two federal cases involving similar claims under the federal Age Discrimination in Employment Act (adea), 29 USC 621 et seq. Hamilton v Caterpillar Inc, 966 F2d 1226 (CA 7, 1992), and Wehrly v American Motors Sales Corp, 678 F Supp 1366 (ND Ind, 1988). In rejecting the plaintiff’s reverse age discrimination claim, the Seventh Circuit Court astutely observed: There is no evidence in the legislative history that Congress had any concern for the plight of workers arbitrarily denied opportunities and benefits because they are too young. Age discrimination is thus somewhat like handicap discrimination: Congress was concerned that older people were being cast aside on the basis of inaccurate stereotypes about their abilities. The young, like the non-handicapped, cannot argue that they are similarly victimized. [Hamilton, supra, p 1228.] Accordingly, this Court holds that plaintiff cannot establish an age discrimination case where his employer denied him special early retirement because he was too young. Assuming arguendo that plaintiff could establish a case of age discrimination, we also find that defendant’s early retirement program was valid as a bona fide retirement policy under MCL 37.2202(2); MSA 3.548(202)(2). To date, only one decision has discussed this exemption. In Klammer, supra, this Court upheld the mandatory retirement age for state employees against an age discrimination claim under the Civil Rights Act. Although the central issue was “whether the passage of Elliott-Larsen in 1977 impliedly repealed the compulsory retirement provision of MCL 38.19(3); MSA 3.981(19X3),” id., p 258, this Court noted the exemption and asserted: Generally, retirement under a plan which is not a subterfuge, is applied uniformly and is funded, is not considered discrimination and is socially beneficial. . . . . . . The language of Elliott-Larsen, however, clearly excepts retirement policies and systems which apply uniformly and contain provisions for pension or other economic systems to protect the worker economically on retirement. [Id., p 259.] Admittedly, defendant’s plan is not applied uniformly because workers must be invited to participate and, thus, people of the same age group are treated dissimilarly. However, we are not bound by the above definition because whether the mandatory retirement policy was bona fide was not an issue in Klammer, and therefore the statements were dicta. Because we believe the definition is overly restrictive, we decline to follow it. Instead, we are persuaded to utilize the definition articulated by the United States Supreme Court regarding the adea’s "bona fide” retirement policy exemption, 29 USC 623(f)(2). A retirement policy is bona fide if it "exists and pays benefits.” Public Employees Retirement System of Ohio v Betts, 492 US 158, 166; 109 S Ct 2854; 106 L Ed 2d 134 (1989); United Air Lines, Inc v McMann, 434 US 192, 194; 98 S Ct 444; 54 L Ed 2d 402 (1977). Because it is undisputed that defendant’s policy exists and pays benefits, it is exempted under MCL 37.2202(2); MSA 3.548(202)(2). Accordingly, the trial court did not err in granting summary disposition in favor of defendant. Affirmed. The act was amended in 1991. 1991 PA 11. The amendment restructured the language of subsection 1(a) to clarify that failure or refusal to discharge an employee is not actionable. Plaintiff’s reliance on two cases to support his argument that he falls within the protected class is misplaced. In Ewers v Stroh Brewery Co, 178 Mich App 371; 443 NW2d 504 (1989), a forty-year-old employee was among eighty-seven employees discharged because of a reorganization and reduction in the work force. This Court held that summary disposition was precluded where the plaintiff showed that his position was filled by younger workers with less experience. The plaintiff fell within the protected class not merely on the basis of his age, but also because he was replaced by younger workers. Cheeseman v American Multi-Cinema, Inc, 108 Mich App 428; 310 NW2d 408 (1981), involved a claim brought by minors, who were denied admission into a movie theatre, under the public accommodation section of the Civil Rights Act, MCL 37.2302; MSA 3.548(302).

MERILLAT v MICHIGAN STATE UNIVERSITY Docket No. 143849. Submitted March 8, 1994, at Lansing. Decided May 19, 1994; approved for publication October 11, 1994, at 9:10 a.m. Vicki J. Merillat brought an action in the Ingham Circuit Court against Michigan State University and Bruce L. Benson, director of the university’s Department of Public Safety (dps), seeking both damages for her discharge as a dps dispatcher and reinstatement to that position with back pay and seniority. The plaintiff alleged that, following her romantic involvement with a dps supervisor, she was ordered by defendant Benson to undergo physical and psychological examinations to determine her fitness as a dispatcher, that she submitted to the physical examination, that she twice presented herself for a psychological examination, that a psychological examination was not administered because she refused to complete a questionnaire and execute a written release, that she was suspended without pay until she attended another psychological examination and signed all the required releases and waivers, and that she was terminated for insubordination when she failed to execute the requested releases and waivers. The plaintiff further alleged that she was ordered to take the psychological examination because the defendants believed her to be mentally or emotionally impaired, that that perceived handicap was unrelated to her ability to perform her duties as a dispatcher, and that any findings of the ordered psychological examination would have been unrelated to her job performance. The plaintiff claimed that the defendants’ conduct constituted prohibited discrimination under both the Handicappers’ Civil Rights Act and the Civil Rights Act. The trial court, Thomas L. Brown, J., granted summary disposition for the defendants, finding that the plaintiff’s discharge was for insubordination because she refused to submit to the psychological examination and not because of any perceived handicap and that she failed to show that she was treated any differently than any other employee who refused to submit to psychological evaluation. The plaintiff appealed. The Court of Appeals held: 1. A motion for summary disposition under MCR 2.116(C)(8) for failure to state a claim tests the legal sufficiency of the claim and is decided by reference to the pleadings alone. 2. The plaintiff alleged that the defendants perceived her to have a handicap, that the perceived handicap was unrelated to her ability to perform her duties as a dispatcher, and that the ordered psychological examination was unrelated to her job performance. Those allegations were sufficient to constitute a prima facie showing of prohibited discrimination under § 202(1) (e) of the Handicappers’ Civil Rights Act, MCL 37.1202(l)(e); MSA 3.550(202)(l)(e). Accordingly, trial court erred in granting summary disposition for the defendants with respect to the plaintiff’s claim under the Handicappers’ Civil Rights Act. 3. Although the plaintiff alleged that she was a member of protected classes, she being white, female, and unmarried, and that no dps employee who was African-American or male had been terminated for insubordination, she failed to allege that any other person had refused to undergo psychological evaluation in defiance of an order of the defendants. Accordingly, the plaintiff failed to show disparate treatment, and the trial court properly granted summary disposition for the defendants with respect to the plaintiff’s counts under the Civil Rights Act. Affirmed in part, reversed in part, and remanded. Abood, Abood & Rheaume, P.C. (by Michael J. Otis), for the plaintiff. Michael J. Kiley, for the defendants. Before: Hood, P.J., and Neff and T. E. Jackson, JJ. Recorder’s Court judge, sitting on the Court of Appeals by assignment. Per Curiam. This case involves a claim of unlawful discrimination, and stems from defendants’ decision to terminate plaintiff from its employ. The trial court granted summary disposition in favor of defendants pursuant to MCR 2.116(C)(8); plaintiff appeals as of right. We affirm in part and reverse in part. Plaintiff, a white female, was employed by defendant Michigan State University as a dispatcher in the Department of Public Safety (dps) from 1984 until 1990. During the course of her employment, plaintiff became romantically involved with a married dps supervisor, who was African-American. The African-American supervisor’s wife, who also worked in the dps, was white. At least two internal investigations were conducted within the dps in order to ascertain whether plaintiff and the supervisor indeed were engaged in an amorous relationship; these investigations were inconclusive. In March of 1990, the director of the dps, defendant Bruce Benson, ordered plaintiff to undergo a physical and psychological examination to determine her fitness for continued duty as a dispatcher. A subsequent physical examination failed to disclose any condition that would prevent plaintiff from performing her duties as a dispatcher. Plaintiff twice made herself available for the psychological evaluation; however, the examination was not conducted, because plaintiff would not agree to complete an accompanying questionnaire and execute a written release. On August 24, 1990, upon returning to the dps, plaintiff was informed that she was suspended without pay until such time as she attended another evaluation and signed all releases and waivers requested by the doctor. Plaintiff failed to do so and was terminated for insubordination on September 7, 1990. In a three-count amended complaint, plaintiff alleged that defendants’ conduct was discriminatory pursuant to the Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq., and the Civil Rights Act (cra), MCL 37.2101 et seq.; MSA 3.548(101) et seq. More specifically, plaintiff claimed that defendants’ conduct was contrary to the provisions of the hcra because the defendants were motivated by a perceived risk of future harm due to unknown handicaps. Plaintiff additionally claimed that defendants had violated the cra, because the disciplinary action imposed against her was more severe because of the fact that she was single, white, and female. In their amended answer, defendants admitted that investigations were conducted into plaintiff’s relationship with certain co-workers. These investigations were initiated by Benson and were predicated on his belief that plaintiff "suffered from some form of psychological and/or emotional problem(s) which was affecting her work performance.” Benson’s belief stemmed from his personal observations of plaintiff, statements made by plaintiff, and statements made by co-workers about plaintiff. Defendants admitted that Benson had no "evidence” that plaintiff was unable to perform her duties as a dispatcher. The trial court granted defendants’ subsequent motion for summary disposition pursuant to MCR 2.116(C)(8). The court reasoned that because plaintiff refused the psychological examination(s), defendants never ascertained whether she was in fact handicapped. Thus, according to the trial court, defendants did not terminate plaintiff on the basis of a handicap but, rather, because she had refused to undergo the psychological evaluation. The trial court further stated that plaintiff could not rely on the provisions of the hcra, because she failed to assert a handicap. Additionally, the trial court determined that plaintiff had not stated a cognizable claim under the cra, because she had failed to show that defendants acted differently toward her than it would have toward any other employee who, like plaintiff, had refused to undergo an ordered psychological evaluation. Finally, the trial court stated that plaintiff had failed to allege intentional discrimination by a showing of defendants’ predisposition to discriminate against members of a certain class. A motion for summary disposition under MCR 2.116(C)(8) for failure to state a claim tests the legal sufficiency of a claim and is decided only by reference to the pleadings. Dockweiler v Wentzell, 169 Mich App 368, 371-372; 425 NW2d 468 (1988). Unless the claim is so clearly unenforceable as a matter of law that no factual development could justify recovery, the motion should be denied. Id. This Court will review a summary disposition determination de novo. Borman v State Farm Fire & Casualty Co, 198 Mich App 675, 678; 499 NW2d 419 (1993). Generally, in order to establish a prima facie case of discrimination under the hcra, it must be alleged that (1) the plaintiff is "handicapped” as defined in the hcra, (2) the handicap is unrelated to the plaintiffs ability to perform the duties of a particular job, and (3) the plaintiff has been discriminated against in one of the ways set forth in the statute. See Ashworth v Jefferson Screw Products, Inc, 176 Mich App 737; 440 NW2d 101 (1989). As amended, § 103(e) of the hcra, MCL 37.1103(e); MSA 3.550(103)(e), sets forth the following definition: "[Hjandicap” means 1 or more of the following: (i) A determinable physical or mental characteristic of an individual, which may result from disease, injury, congenital condition of birth, or functional disorder, if the characteristic: (A) For purposes of article 2, substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s ability to perform the duties of a particular job or position or substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s qualifications for employment or promotion. (iii) Being regarded as having a determinable physical or mental characteristic described in sub-paragraph (i). [Emphasis added.] Clearly, when the act, in describing prohibited behavior, speaks of discrimination by an employer against an individual because of a handicap, this includes an individual who, while not handicapped, is regarded as having a handicap. Sanchez v Lagoudakis, 440 Mich 496, 506; 486 NW2d 657 (1992). In her complaint, plaintiff alleged that defendants ordered her to undergo the subject physical and psychological examinations because of a perceived handicap. Plaintiff further claimed that defendants had no evidence to suggest that she was unable to perform her duties as a dispatcher because of a physical or psychological problem. To the contrary, plaintiff alleged that until the time of her dismissal, she had demonstrated her ability to successfully perform her duties as a dispatcher. Finally, plaintiff contended that these examinations were irrelevant, because they had no bearing on whether she could discharge her duties as a dispatcher in a satisfactory manner. Plaintiff’s complaint specifically alleged that defendants perceived her to be mentally or emotionally impaired. Defendants’ perception of plaintiff as mentally unstable falls within the amended statutory definition of "handicap.” Sanchez, supra; hcra § 103(e)(iii). Hence, plaintiff’s pleadings satisfied the first element of a prima facie case under the hcra. Ashworth, supra. Next, plaintiff alleged that the perceived handicap was unrelated to the performance of her duties as a dispatcher. Plaintiff added that, until her dismissal, she had demonstrated her ability to satisfactorily perform her duties as a dispatcher. This satisfies the second element of a prima facie case under the hcra. Id. Finally, §202(l)(e), MCL 37.1202(l)(e); MSA 3.550(202)(l)(e), precludes an employer from discharging or taking other discriminatory action against an individual on the basis of physical or mental examinations that are not directly related to the requirements of the specific job. Plaintiffs complaint alleged that her dismissal was based on a failure to undergo a psychological examination that was not related to the requirements of the dispatcher position in question. Defendants contend that plaintiff was not dismissed on the basis of results obtained following a psychological examination, but rather because she refused to undergo the evaluation. Again, the language of §202(l)(e) prevents an employer from discharging an employee "on the basis of” physical or mental examinations that are not directly related to the requirements of a specific job. Had plaintiff taken and "failed” the psychological examination, she clearly would have been able to assert a cause of action under the hcra if defendants had discharged her on that basis and the exam was unrelated to the requirements of her job. However, in this case, plaintiff did not "fail” the ordered psychological examination. A liberal construction of the provisions of the hcra will not allow us to permit a plaintiff that has been discharged after "failing” an alleged irrelevant physical or psychological examination to assert a cause of action, yet preclude that same plaintiff from doing so upon being discharged for refusing to submit to the same. At issue here is the basis upon which defendants’ decision to terminate plaintiff was predicated. Plaintiff asserted that defendants’ decision to terminate her was based on her failure to undergo a psychological evaluation that was wholly unrelated to the performance of her job. This allegation, which set forth a specified act of discrimination under the statute, was sufficient to satisfy the third element of plaintiff’s prima facie case. Section 202(l)(e); Ashworth, supra. Plaintiff’s pleadings set forth a prima facie case of discrimination under the hcra. Id.; Sanchez, supra. Accordingly, the trial court erred in granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(8), because her claim under the hcra was not clearly unenforceable as a matter of law. Wentzell, supra. Next, plaintiff alleges in counts n and hi of her complaint that defendants violated the cra by taking disciplinary action against her that was more severe than the actions taken against the African-American supervisor and his wife. Plaintiff further alleges that at no time in the past has insubordination been a basis for termination against any African-American employee of the dps. Plaintiff claims that defendant discriminated against her on the basis of her race, marital status, and sex. To make a prima facie case of discrimination under the theory of disparate treatment, it must be shown that a plaintiff was a member of the class entitled to protection and was treated differently from members of a different class for the same or similar conduct. Dixon v W W Grainger, Inc, 168 Mich App 107, 114; 423 NW2d 580 (1987). Here, plaintiff did allege that she was a member of protected classes — namely, that she was white, unmarried, and female. Thus, plaintiff’s allegations satisfied the first prong of the theory of disparate treatment. Plaintiff further alleged that insubordination had never been a cause for termination against any employee of the dps who happened to be African-American or male. However, plaintiff did not allege facts to show that any person or persons in these three groups had ever failed to undergo an ordered physical or psychological evaluation. Moreover, plaintiff failed to allege facts to indicate that defendants ever had reason to order any person from one of these three groups to undergo a psychological evaluation. Thus, plaintiff has not shown that she was treated differently from members of a different class for the same or similar conduct. Therefore, the trial court did not err in granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(8), because plaintiff failed to establish a prima facie case of discrimination under the cra. Dixon, supra. Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

RASHEED v CHRYSLER CORPORATION Docket Nos. 95122, 95774. Argued November 3, 1993 (Calendar No. 10). Decided May 17, 1994. Muhammad Rasheed brought an action in the Wayne Circuit Court under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., against Chrysler Corporation and James Senart, his supervisor at Chrysler, alleging wrongful discharge. Before trial, the court, Richard P. Hathaway, J., ruled that any damages would be limited to the thirteen-month period of unemployment preceding the plaintiff’s rejection of an offer by Chrysler to reinstate him to his former position with full seniority, but without backpay. Following trial, the court granted a directed verdict for the defendants on all but the plaintiff’s claim of religious discrimination, entering judgment on a jury verdict of that claim for the plaintiff. In a subsequent hearing, conducted without a jury, the court ordered Chrysler to reinstate the plaintiff as a newly hired employee with no seniority. The Court of Appeals, Fitzgerald, P.J., and Hood, J. (J. C. Kingsley, J., dissenting in part), affirmed (Docket No. 129620). Both parties appeal. In an opinion by Justice Riley, joined by Chief Justice Cavanagh, and Justices Brickley, Boyle, Griffin, and Mallett, the Supreme Court held: Because the trial court made its decision regarding the appropriate remedy before all factual issues were decided, remand is required to resolve the issue of the reasonableness of the plaintiff’s rejection and a reassessment of the appropriate remedy. The trial court properly denied the defendants’ motion for a directed verdict on the claim of intentional discrimination because factual questions remained. 1. Trial courts have wide discretion to fashion appropriate remedies in wrongful discharge cases. A discharged employee has a duty to mitigate damages. Failure to do so, whether by failing to seek other suitable employment or by rejecting an unconditional reinstatement offer, is an affirmative defense to be established by the employer. Whether an employee acted reasonably in not seeking or accepting particular employment is to be decided by the trier of fact. 2. Reinstatement offers that are clear on their face may be construed by the courts as a matter of law. Where an offer properly may be characterized as ambiguous, construction is permitted. Where it becomes necessary to consider the parties’ intent, the inquiry is a question of fact. While conditionality may be decided as a matter of law under appropriate circumstances, reasonableness is a question of fact that must be decided independently. An unconditional offer of reinstatement may be used as proof of an unreasonable rejection in satisfaction of the employer’s burden. However, if there are any differences between the offer and the previous employment, with the exception of backpay, rejection based in part on the difference precludes a peremptory ruling by the court, and reasonableness in light of the particular circumstances must be determined. 3. Once it is established that a reinstatement offer is unconditional, a rebuttable presumption arises that its rejection is unreasonable. To rebut, the employee must offer reasonable grounds for rejection that are based on the employment as contemplated by the offer rather than for purely personal reasons. Failure by the claimant to provide a legitimate basis for a rejection forfeits the right to front pay. In this case, the issue of the reasonableness of the plaintiff’s rejection was improperly removed from the jury. The trial court erred as a matter of law in deciding the continued backpay issue before the factfinder decided the defendants’ ultimate liability for the alleged discriminatory discharge, requiring reversal of the Court of Appeals decision and remand to the trial court for reconsideration of the issue of reasonableness and the appropriate remedy. 4. A claimant asserting an intentional discrimination claim must establish as part of a prima facie case a discriminatory predisposition of the employer and an act in furtherance of this predisposition. In this case, the decision to terminate the plaintiff was made entirely on the basis of the supervisor’s report, and the court properly allowed the plaintiff to offer proof that the reason asserted was a mere pretext. In unique circumstances, ordinarily neutral mechanisms for termination may qualify as discriminatory employment practices. The facts of this case constitute such unique circumstances. Reasonable jurors could have reached different conclusions regarding whether the labor relations manager was aware of the alleged discrimination and acted in furtherance of it. Reversed and remanded. Justice Levin, writing separately, stated that federal case law does not support the proposition that Michigan courts have broad discretion to fashion appropriate remedies in wrongful discharge cases. Federal cases construing title VII of 42 USC 2000e-5(g) are not persuasive where a damage remedy has been sought under the Michigan Civil Rights Act. Nor do those cases grant federal courts the power to deny a plaintiff found to be a victim of an unlawful employment practice a remedy that would make the victim whole. In wrongful discharge cases, separate determinations of the conditionality of a reinstatement offer and of the reasonableness of a rejection need not be made. In deciding whether a prevailing plaintiff may recover damages for a period following the rejection of an offer of reinstatement, the trier of fact need only determine whether the plaintiff failed to mitigate damages, as is required in other wrongful discharge cases in Michigan and in the federal system where the alleged failure to mitigate concerns the plaintiff’s rejection of an offer of employment by the original employer that differs from the original job or when the plaintiff reasonably refuses to accept an offer of employment from another company. The issue of the conditionality of a reinstatement offer does not become a matter of law to be decided by the court simply because the employer has offered to reinstate the discharged employee. Assuming that whether an offer of reinstatement was conditional and whether the plaintiff acted reasonably in rejecting such an offer are proper are separate inquiries, each inquiry presents a question of fact for the trier of fact, and neither may be resolved by the court as a matter of law unless reasonable minds could not draw different conclusions concerning conditionality or reasonableness. MCL 37.2803; MSA 3.548(803) provides that the Civil Rights Act is not to be construed to diminish the right of a person to direct or immediate legal or equitable remedies in the courts, simply repeating the language of Const 1963, art 5, § 29, providing for the establishment of a Civil Rights Commission, with powers provided by law to carry out its purposes, and proscribing any construction that would diminish the right of any party to direct and immediate legal or equitable remedies in the courts. Section 803 says nothing at all about what those legal or equitable remedies might be. Section 801 does not provide that the courts of this state may provide an equitable remedy such as injunctive relief or a damage remedy, as the court thinks best in the exercise of its discretion. Rather, it provides that a person alleging a violation of the Civil Rights Act may bring a civil action for appropriate injunctive relief, or damages, or both. The discretion whether to seek an equitable remedy, such as injunctive relief as well as damages, is confided by the constitution and the Legislature, consistent with art 5, § 29, to the person alleging a violation of the Civil Rights Act. The majority has an extravagant view of judicial power in concluding that it may arrogate to the trial courts of this state the power — so clearly confided by the constitution and the Legislature to the victim of a civil rights violation — whether to seek an equitable remedy as an alternative to a legal remedy. While a fair degree of discretion on the part of the trial court might be necessary to make whole a victim of discrimination who seeks an equitable (injunctive) remedy, that does not mean that, where the victim seeks a legal (damage) remedy in the exercise of the choice confided to the victim by the constitution and the Civil Rights Act, the Supreme Court is empowered to confide to the courts of this state a degree of discretion, in the name of making the victim of discrimination whole, to deny the victim of the choice of a legal (damage) remedy. United States Courts of Appeals, construing the federal statute, have not found it necessary to create a bifurcated or trifurcated procedure. The majority simply prefers to confide to trial courts, and to remove from jury consideration, questions that it is more comfortable having a judge decide. This is judicial legislation, an arrogation of power to the courts in an area in which the majority does not trust the jury. There is ample power under the traditional approach that permits a trial court to remove from jury consideration any issue of fact that, in the judgment of the trial court, all reasonable persons must reach but one result. 196 Mich App 196; 493 NW2d 104 (1992) reversed. Durant & Durant, P.C. (by Richard Durant), for the plaintiff. Dickinson, Wright, Moon, Van Dusen & Freeman (by John Corbett O’Meara, Robert W. Powell, Noel D. Massie, and Eric J. Pelton) for the defendants. Amicus Curiae: Clark, Klein & Beaumont (by Dwight H. Vincent and J. Walker Henry) for Michigan Manufacturers Association. Riley, J. Today the Court is called upon to consider a host of issues surrounding a claim for discriminatory termination of employment brought under the Michigan Civil Rights Act. Resolution of these issues requires us to explore the legal and procedural parameters of a discriminatory termination claim involving subsequent offers of reinstatement as they relate to the theory of damage mitigation. We conclude that because the trial court made its decision regarding the appropriate remedy before all factual issues were decided, we remand for resolution of the reasonableness of rejection issue and a reassessment of the appropriate remedy. We also find that because defendants waived the statute of limitations defense, it is unnecessary to deal with plaintiff’s continuing violations claim. Finally, we affirm the trial court’s denial of defendants’ motion for a directed verdict on the intentional discrimination claim. I Plaintiff began his employment with Chrysler in 1967 at the Huber facility in Detroit. In 1978, plaintiff converted to the Muslim faith. Three years later, plaintiff was transferred to Chrysler’s Trenton engine plant where, according to plaintiff, he was subjected to religious and racial harassment from the first day when guards at the plant allegedly attempted to stop him from taking an Islamic newspaper into the facility because it was "subversive,” being called "Ayatollah Cockamania” by his supervisor and alleged major antagonist James Senart, the purposeful placing of pork near his work station during the holy month of Ramadan, numerous remarks about how Muslims should stay in Detroit, attempts to incite anti-Muslim sentiments from the other employees, refusal to replace plaintiff’s broken tools while other employees got new tools, several suspensions with racial and religious overtones, and for other similar acts. Plaintiff reported these incidents to union officials and Chrysler managerial employees on numerous occasions. Although the record contains evidence of several meetings between Chrysler management and plaintiff or his union representatives regarding these alleged occurrences, no legal action was taken by plaintiff before his termination. According to plaintiff, the anti-Muslim atmosphere culminated on July 12, 1984, in a setup orchestrated by Senart and intended to get plaintiff fired from his employment. Senart was allegedly baiting plaintiff, and other employees were improperly removing a storage bin, called a head divider, from plaintiff’s work area. When plaintiff retrieved the head divider, Senart allegedly rebuked him for taking it away from another work station. According to defendants, plaintiff kicked the head divider and threw two engine heads onto the ground with such damaging force that they could not be repaired. Senart wrote up a report on the incident, alleging that plaintiff purposefully destroyed company property, which is a ground for immediate discharge. Shortly thereafter, plaintiff was escorted out of the plant by security guards and placed on disciplinary leave. Charles Fern, the labor relations manager at the Trenton plant, reviewed Senart’s report and attempted to interview plaintiff’s co-workers. Fern inspected the two engine heads that were indeed damaged, and he looked at two grooves in the floor of plaintiff’s work area that were allegedly caused by plaintiff’s act of hurling the engine heads to the ground. Fern also spoke to union representatives and other supervisors. As a result of his investigation, Fern concluded that plaintiff had destroyed company property, and the disciplinary leave was upgraded to termination of employment. Plaintiff filed the instant action in Wayne Circuit Court against Chrysler and Senart for wrongful discharge based on racial and religious discrimination, for intentional infliction of emotional distress, and for fraud or misrepresentation on the part of Senart. Before trial, the court ruled that any damages awarded to plaintiff would be limited to the thirteen-month period of his unemployment preceding his rejection of Chrysler’s reinstatement offer. At trial, the court granted defendants’ motion for a directed verdict on all but the religious discrimination claim. The jury returned a verdict in favor of plaintiff on the religious discrimination claim and awarded him $51,300 for lost wages and $10,000 for embarrassment or humiliation. In a subsequent hearing conducted without a jury, the court exercised its equitable powers to order Chrysler to reinstate plaintiff as newly hired, with no seniority, within sixty days of the decision. Defendants appealed the court’s decision not to grant the motion for a directed verdict on the religious discrimination claim, as well as the order requiring plaintiff’s reinstatement as a newly hired employee. Plaintiff cross appealed the court’s refusal to permit recovery for acts occurring before the three-year period of limitation running from the date of termination and for the decision not to reinstate plaintiff with full seniority rights and backpay. A majority of the Court of Appeals upheld the trial court’s decision not to grant defendants’ motion regarding the religious discrimination claim, and it upheld the trial court’s "equitable power” to fashion the remedy of reinstatement, albeit without any seniority rights. 196 Mich App 196, 200; 493 NW2d 104 (1992). The majority also upheld the ruling of the limitation of backpay to the thirteen-month period before plaintiff’s refusal to accept Chrysler’s reinstatement offer. Finally, the majority concluded that plaintiff failed to establish all of the elements necessary to invoke the "continuing violation” theory, which would have permitted plaintiff to recover for alleged acts that occurred more than three years before the filing of the complaint. The dissenting judge, relying heavily on federal precedent, would have reversed the trial court’s decision to reinstate plaintiff for what he considered to be an unreasonable refusal to accept Chrysler’s "unconditional” offer of reinstatement. Id. at 210. This Court granted both parties’ application for leave to appeal. II A One year and three months after his termination, Chrysler offered to reinstate plaintiff to his former position with full seniority, but without backpay. The offer provided in its entirety: In full settlement of this case, M. Rasheed will be offered reinstatement in accordance with his seniority provided he can meet normal requirements. Upon his return to work his discharge shall be reduced to a disciplinary layoff without back pay for the period during which he was away from the plant. This action of the Appeal Board shall form no basis or precedent for a decision or settlement in any other case. On the basis of this offer, defendants moved for partial summary disposition to prevent plaintiff from recovering continued backpay for a failure to accept what they asserted was an "unconditional” offer, as well as to prevent plaintiff’s reinstatement. Plaintiff asserted that the offer was conditional because it did not include backpay and because it offered to convert the termination into a disciplinary layoff rather than remove the blemish from his employment record. At the hearing on the motion itself, the trial court concluded as follows: It is hereby ordered, adjudged and decreed that Defendant’s Motion is granted as it concerns limiting backpay that Plaintiff can seek, to that period covering July 19, 1984, up to and including August 26, 1985. It is further ordered, adjudged and decreed that Defendant’s Motion as it concerns the preclusion of reinstatement for Plaintiff is denied, and Plaintiff will be allowed to present proofs concerning the equitable issue of reinstatement to the trier of fact. It is further ordered, adjudged and decreed that notwithstanding any ruling on reinstatement of the submission of proofs, Plaintiff’s backpay is limited to the aforementioned July 19, 1984 to August 26, 1985 period. It is unclear from this ruling what was the basis for the trial court’s conclusion that plaintiff rejected an unconditional offer so that he was not entitled to continued backpay, but that the issue of reinstatement was a question to be decided by the finder of fact. In addressing this issue, we turn first to a discussion of the relevant case law. B The law concerning backpay and other remedies in the employment discrimination context has its roots in provisions of the federal Civil Rights Act of 1964, which amended the Civil Rights Act of 1957. The avowed purpose of the new provisions was to "provide the spur or catalyst which causes employers ... to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country’s history.” United States v N L Industries, Inc, 479 F2d 354, 379 (CA 8, 1973), quoted in Albemarle Paper Co v Moody, 422 US 405, 417-418; 95 S Ct 2362; 45 L Ed 2d 280 (1975). Modeled after a provision in the National Labor Relations Act, the backpay provision was intended to "make whole” anyone suffering from the effects of employment discrimination. Albemarle, supra at 418-419. Almost a decade later, however, the United States Supreme Court recognized a corollary to the backpay provision on the basis of interim earnings language found in 42 USC 2000e-5(g). In the landmark decision Ford Motor Co v EEOC, 458 US 219; 102 S Ct 3057; 73 L Ed 2d 721 (1982), the Supreme Court specifically imposed on a discharged employee the duty to mitigate damages under title VII of the federal Civil Rights Act of 1964 by accepting unconditional offers of reinstatement even when the offers do not include backpay. The majority held: An unemployed or underemployed claimant, like all other Title VII claimants, is subject to the statutory duty to minimize damages set out in § 706(g). This duty, rooted in an ancient principle of law, requires the claimant to use reasonable diligence in finding other suitable employment. Although the unemployed or underemployed claimant need not go into another line of work, accept a demotion, or take a demeaning position, he forfeits his right to backpay if he refuses a job substantially equivalent to the one he was denied. Consequently, an employer charged with unlawful discrimination often can toll the accrual of back-pay liabil

CHAMPION v NATIONWIDE SECURITY, INC Docket No. 149365. Submitted February 2, 1994, at Detroit. Decided May 16, 1994, at 9:15 a.m. Leave to appeal sought. Cheryl Champion brought an action in the Wayne Circuit Court against Nationwide Security, Inc., and Eddie L. Fountain, alleging that she was sexually harassed in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., while employed at Nationwide under the supervision of Fountain, who molested and raped her. The court, Richard P. Hathaway, J., granted summary disposition for Nationwide, ruling that Nationwide could not be held liable under the doctrine of respondeat superior because Fountain lacked plenary authority over hiring, firing, promoting, or disciplining employees and therefore was not Nationwide’s agent. Champion appealed. The Court of Appeals held: 1. For purposes of the Civil Rights Act, an individual is an agent of an employer if the individual serves in a supervisory position and exercises significant control over an employee’s firing, hiring, or conditions of employment. The trial court erred in that it granted summary disposition for Nationwide on the wrong basis. The court employed the wrong test for determining whether Fountain had been Nationwide’s agent. Under the right test, a question of fact existed whether Fountain had exercised significant control so as to be deemed Nationwide’s agent. 2. Nevertheless, Nationwide is entitled to summary disposition because Champion failed to establish discrimination because of sex under MCL 37.2103(i)(ii); MSA 3.548(103)(i)(ii), which defines such discrimination to include sexual harassment in the form of unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature when submission to or rejection of such conduct or communication by an individual is used as a factor in decisions affecting such individual’s employment. Champion did not establish that her submission to or rejection of sexual harassment by Fountain was used as a factor in a decision by Nationwide or Fountain that affected her employment. References Am Jur 2d, Job Discrimination §§ 40, 56, 63, 952, 953, 975. On-the-job sexual harassment as violation of state civil rights law. 18 ALR4th 328. Affirmed. 1. Civil Rights — Civil Rights Act — Employers — Supervisors. An individual may be considered an agent of an employer under the Civil Rights Act if the individual serves in a supervisory position and exercises significant control over an employee’s firing, hiring, or conditions of employment (MCL 37.2201[a]; MSA 3.548[201][a]). 2. Civil Rights — Civil Rights Act — Employment Discrimination — Sexual Harassment. An employer or its agent who makes submission to unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature a term or condition of an employee’s continued employment does not violate the provision of the Civil Rights Act that forbids such harassment until the employer, or its agent, makes a decision based in part on the employee’s response to the improper conduct or communication (MCL 37.2103[i][ii]; MSA 3.548[103][i][ii]). Chambers, Steiner, Mazur, Ornstein & Amlin, P.C. (by Michelle J. Harrrison), for Cheryl Champion. Plunkett & Cooney, P.C. (by Ernest R. Bazzana), for Nationwide Security, Inc. Before: Wahls, P.J., and Reilly and R. M. Daniels, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Reilly, J. Plaintiff appeals as of right a circuit court order granting defendant Nationwide Security, Inc.’s motion for summary disposition of plaintiff’s sexual harassment claim.* We affirm. Plaintiff’s claim was brought pursuant to the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq.; § 202(l)(a) of which prohibits an employer from discriminating against a person because of sex "with respect to employment, compensation, or a term, condition, or privilege of employment.” MCL 37.2202(l)(a); MSA 3.548(202) (l)(a). In this case, plaintiff, an employee of Nationwide, alleged that her supervisor, defendant Eddie L. Fountain, sexually harassed her, culminating in a rape. Plaintiff sought to impose liability on Nationwide on the basis of respondeat superior. Plaintiff argues that a question of fact existed with respect to whether Fountain’s authority over plaintiff was sufficient to impose liability on Nationwide. We agree. The trial court apparently granted Nationwide’s motion for summary disposition on the basis of Fountain’s lack of plenary authority over hiring, firing, promoting, or disciplining. The Civil Rights Act prohibits discriminatory conduct by employers and their agents. MCL 37.2201(a); MSA 3.548(201) (a). Nationwide’s vicarious liability requires that Fountain be liable under the act as "an agent.” In its brief in support of the motion for summary disposition, Nationwide argued that an "agent” under the act was a person who had responsibility for making personnel decisions. Asserting that Fountain lacked the requisite authority to be considered an agent under the act, Nationwide argued that it was entitled to judgment as a matter of law. The court’s statements at the hearing on the motion suggest that the court was persuaded by this argument. In deciding this issue, we have found little guidance in the published decisions of the courts of this state. In Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785, 799-800; 369 NW2d 223 (1985), this Court held that a person who has responsibility for making personnel decisions for the company is an agent within the statutory definition of an employer. However, that decision does not indicate that supervisors without such authority are not agents. In McCalla v Ellis, 180 Mich App 372; 446 NW2d 904 (1989), the employer did not contest that the supervisor was "an agent at least to the extent that he was in its employ as a supervisor with authority to make employment decisions.” The parties have not provided, and we are not aware of, any other Michigan case in which the requisite authority to be an agent under the act has been directly raised and addressed. Therefore, recognizing that we are not compelled to follow federal precedent interpreting title VII of the United States Civil Rights Act, 42 USC 2000e(b), which is analogous to § 201(a) at issue here, we nonetheless turn to the decisions of the federal courts for guidance. Radtke v Everett, 442 Mich 368, 381-382; 501 NW2d 155 (1993). In Kauffman v Allied Signal, Inc, 970 F2d 178, 186 (CA 6, 1992), the court rejected the argument that a supervisor must have complete authority over hiring, firing, promoting, or disciplining to be considered an agent under the act. In that case, the plaintiff alleged that she was sexually harassed by her supervisor. The district court granted the employer’s motion for summary judgment in part because the supervisor did not have the authority to hire, fire, promote, or discipline the plaintiff on his own. Id. at 181-182. In regard to the plaintiff’s quid pro quo sexual harassment claim, the Sixth Circuit Court of Appeals disagreed: [Plaintiff-Appellant] argues that an individual qualifies as an employer under Title VII if he or she serves in a supervisory position and exercises significant control over the employee’s firing, hiring, or conditions of employment. Appellant is correct in her statement that nowhere is it required that an employee must exercise complete control of plenary duties to qualify as an agent of the employer. Rather, all that is required is that the employee have "significant control” of those duties. [Id. at 186. Citations omitted.] In this case, the record indicates that Fountain may have possessed sufficient authority over plaintiff to be an "agent” under the act. The Account Supervisor’s Training Manual indicates that, as an account supervisor, Fountain was responsible for administering initial discipline and, on his recommendation, security officers like plaintiff may be suspended, transferred, or terminated. The account supervisor completes the officers’ performance evaluations, which "help in determining if and when an officer is prepared for promotion and/or possible reassignment to more critical and prestigious assignments.” According to the training manual, the account supervisor "plays a major role in monitoring personnel and in making recommendations in reference to officers that may be suitable for advancement,” and the account supervisor’s recommendation is "the cornerstone of an officer’s advancement.” This record indicates that there was a genuine issue of material fact with regard to whether Fountain had significant control over plaintiffs employment conditions. In summary, we conclude that the trial court erred in granting summary disposition to Nationwide on this issue. A question of fact existed regarding whether Fountain was given the necessary authority to be Nationwide’s agent, thus subjecting Nationwide to liability under the theory of respondeat superior. In its motion for summary disposition, Nationwide also argued that plaintiff had not alleged and could not show that submission to or rejection of Fountain’s conduct was used as a basis for employment decisions affecting plaintiff The trial court seemed to address this argument when it stated "as far as this Court is concerned, when one commits a rape upon another person, that is not a case of quid pro quo. That is, for all intents and purposes, is [sic] a rape.” Although the trial court’s decision to grant summary disposition to plaintiff does not appear to have been based on this issue, this Court will review issues that were not decided by the trial court if the question is one of law and all the facts necessary for its resolution have been presented. American Nat'l Fire Ins Co v Frankenmuth Mutual Ins Co, 199 Mich App 202, 210; 501 NW2d 237 (1993). According to plaintiff, the harassment began with Fountain’s flirtatious behavior days before the rape. Then, in a conversation hours before the attack, Fountain said he knew plaintiff had just had a baby, that he was attracted to her, and that he knew she was "ready now.” He stated that he was going to go home with her because he wanted to know if she had a boyfriend. She told him directly that under no circumstances was he going home with her. According to plaintiff, "And he said that as long as I worked for him that I would have nothing to worry about and that this was between me and him and that he would take care of me and that I would never have to worry about my job.” Later that evening, Fountain took plaintiff on security rounds of an unoccupied building, led her into a room, and raped her. Plaintiff did not return to work for Nationwide after the incident. On the basis of her report of the assault, Fountain was suspended. In enacting the Civil Rights Act, the Legislature provided specific standards for determining when sexual harassment is discrimination based on sex. Discrimination because of sex includes sexual harassment which means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature when: (i) Submission to such conduct or communication is made a term or condition either explicitly or implicitly to obtain employment.... (ii) Submission to or rejection of such conduct or communication by an individual is used as a factor in decisions affecting such individual’s employment .... (iff) Such conduct or communication has the purpose or effect of substantially interfering with an individual’s employment ... or creating an intimidating, hostile, or offensive employment . . . environment. [MCL 37.2103(0; MSA 3.548(103X0.] The conduct defined in the first two subsections is usually referred to as quid pro quo sexual harassment, while the third subsection is referred to as hostile work environment. Radtke, at 381, n 16. Plaintiff has relied on a quid pro quo theory of liability apparently based on subsection (ii). Plaintiff has not argued or presented the facts necessary for a hostile work environment claim against Nationwide. Furthermore, Fountain’s conduct does not fit within subsection (i) because there is no indication that the harassment was related to plaintiff’s obtaining employment. Therefore, our analysis is focused on whether the facts support a claim based on the Legislature’s definition of sexual harassment in subsection (ii). We conclude that they do not. By its terms, subsection (ii) requires that a decision be made affecting the employee’s employment, and that the employee’s response be "used” as a factor in the decision-making process. In this case, plaintiff has not shown that either Fountain or Nationwide used her submission to or rejection of Fountain’s conduct or communication as a factor in a decision affecting plaintiff’s employment. At most, Fountain indicated that plaintiff’s employment would be used or would be affected by her response to his advances. However, under the definition provided by the Legislature, until the employer, or its agent, makes a decision based in part on an employee’s response to improper conduct or communication, the conduct does not fall within subsection (ii). The promise or threat to make employment decisions based on the response may create a hostile employment environment under subsection (iii), but it is not included in the Legislature’s definition of harassment under subsection (ii). We agree with plaintiff that this case is analogous to McCalla, supra. However, we believe that case was wrongly decided. In McCalla, the plaintiff alleged that she was raped by her supervisor. This Court determined that there was sufficient evidence to uphold the jury’s verdict against the employer because "[bjased on the situation, plaintiff could reasonably assume this meant more sexual contact, which would be a factor in decisions affecting or interfering with her employment.” The decision in McCalla was based on the elements of a quid pro quo claim derived from the federal guidelines, which differ from the Michigan Civil Rights Act. McCalla adopted the elements as stated by the Eleventh Circuit Court of Appeals, which in turn was guided by the Equal Employment Opportunity Commission (eeoc) guidelines on sexual harassment in effect in 1981, 29 CFR 1604.11. Id. at 376-378; Henson v City of Dundee, 682 F2d 897, 909 (CA 11, 1982). The language of the Civil Rights Act closely parallels the language of the eeoc guidelines. Radtke at 381. However, in one respect, the Legislature’s definition of sexual harassment is much more restrictive than the eeoc guidelines. Implicit or explicit promises or threats to consider an employee’s response to improper conduct may satisfy the standards of the eeoc guidelines, but do not come within the Legislature’s definition of sexual harassment that constitutes discrimination because of sex. Under the guidelines, sexual harassment occurs when submission to the improper conduct is "made either explicitly or implicitly a term or condition of an individual’s employment . ...” 29 CFR 1604.11(a). However, the parallel provision in the Civil Rights Act, subsection (i), is limited to when submission "is made a term or condition to obtain employment . . . .” MCL 37.2103(i)(i); MSA 3.548(103)(i)(i). Accordingly, when an employer, including an agent, explicitly or implicitly (such as by making promises or threats) makes submission to improper conduct a term or condition of employment after the employment has commenced, the conduct falls within the federal guidelines, but outside the definition in the Michigan Civil Rights Act. Plaintiffs allegation that she was constructively discharged does not change the analysis. We agree with McCalla that in certain circumstances an employee’s resignation to escape discrimination may be deemed a constructive discharge. See id. at 378; Jenkins, supra. However, a constructive discharge cannot be considered a decision in which submission to or rejection of the improper conduct or communication is used as a factor. MCL 37.2102(i)(ii); MSA 3.548(102)(i)(ii). The only reasonable interpretation of subsection (ii) requires a decision by the employer or an agent, not the employee. Therefore, we conclude that plaintiff has not demonstrated a genuine issue of material fact and that Nationwide was entitled to judgment as a matter of law. Where the trial court reached the right result for the wrong reason, this Court will not reverse. Bonner v Chicago Title Ins Co, 194 Mich App 462, 472; 487 NW2d 807 (1992). Affirmed. The order also dismissed the sexual harassment claim against defendant Fountain and the negligence claim against Nationwide. Plaintiff does not appeal these rulings. According to the Supreme Court’s opinion in Radtke, on rare occasions, a single incident may create a hostile work environment. Id. at 395. However, an employer may avoid liability for a hostile work environment claim if it adequately investigated and took prompt and appropriate remedial action upon notice of the alleged hostile work environment. This is true even if a supervisor is accused of the harassment. Id. at 396. In this case, the undisputed facts indicate that Fountain was immediately suspended following plaintiff’s report of the assault.

Judith Rideout & another vs. Crum & Forster Commercial Insurance & others. Suffolk. April 4, 1994. May 11, 1994. Present: Lucos, C.J., Abrams, Nolan, Lynch, & Greaney, JJ. Insurance, General liability insurance, Coverage, Construction of policy. Employment, Discrimination, Termination. Anti-Discrimination Law, Termination of employment, Sex. Words, “Occurrence.” Plaintiffs who obtained a final judgment against their former employer in an action to enforce orders of a commissioner of the Massachusetts Commission Against Discrimination awarding damages for sex discrimination could not prevail on their claims for declaratory relief and to reach and apply the proceeds of the employer’s insurance policies, where the policies excluded coverage for injuries “expected or intended from the standpoint of the insured,” and where the intentional acts of discrimination and retaliation found by the commissioner implied that the employer intended the harm that resulted, thus the policies did not provide coverage for the employees’ injuries. [760-764] Civil action commenced in the Superior Court Department on April 24, 1990. The case was heard by Elbert Tuttle, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Martin J. Alperen for the plaintiffs. J. Kenneth Griffin for the defendants. Scott Harshbarger, Attorney General, & George P. Napolitano, Special Assistant Attorney General, for Massachusetts Commission Against Discrimination, amicus curiae, submitted a brief. Marilyn Thomas. United States Fire Insurance Company and North River Insurance Company. Nolan, J. The plaintiffs, Judith Rideout and Marilyn Thomas, appeal from a Superior Court judge’s dismissal of their action to reach and apply insurance proceeds pursuant to G. L. c. 214, § 3 (1992 ed.), and for declaratory relief pursuant to G. L. c. 231A (1992 ed.), against the defendant insurance companies. The Massáchusetts Commission Against Discrimination (MCAD) found that the plaintiffs’ former employer, Hub Manufacturing Company, Inc. (Hub), had unlawfully discriminated against them on the basis of their sex and had ordered Hub to pay damages. Then, in an enforcement action brought in the Superior Court, the plaintiffs obtained a final judgment against Hub. The plaintiffs then brought this action to collect the amount of the enforcement judgment from the defendants, which insured Hub during the time of the discriminatory acts. Concluding that the relevant insurance policies of the defendants failed to cover the plaintiffs’ claims, the judge allowed the defendants’ motion for summary judgment. The plaintiffs appealed. We transferred this case to this court on our own motion. We affirm. On May 12, 1981, the plaintiffs filed complaints against Hub with the MCAD alleging that Hub discriminated against them in the terms and conditions of their employment. More specifically, the plaintiffs alleged that Hub discriminated against them, in violation of G. L. c. 151B and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., by denying them equal pay, the opportunity to work overtime, and promotions on account of their gender. Shortly thereafter, Hub laid off the plaintiffs as part of a general short-term layoff. When they were not recalled, the plaintiffs amended their complaints on September 17, 1981, to include charges of retaliation. The cases were consolidated for public hearing by agreement of the parties. A public hearing was conducted at the MCAD offices on October 22, November 7 and 8, 1985. On March 15, 1988, a MCAD hearing commissioner found that Hub had unlawfully discriminated and retaliated against the plaintiffs and ordered Hub to pay the plaintiffs damages. The pertinent findings of the commissioner are as follows. In 1980, Hub, which was primarily involved in the business of manufacturing swimming pools, hired the plaintiffs as general floor workers and sealers. At all times relevant, Archie Taylor supervised Hub’s day-to-day business operations and was responsible for personnel matters, including job assignments, hiring, and firing. At Hub, there was a disparity between pay rates and pay increases of men and women employees who performed the same work. The pay disparity had no correlation with the seniority of the employees. Taylor denied the plaintiffs the opportunity to work overtime because of their gender, stating that men needed the overtime work to support their families. Taylor failed to transfer the plaintiffs to higher paying positions because of their gender, stating that “[n]o woman has ever worked in this department and never will ... I only hire men, and women would distract them.” After the plaintiffs requested transfers and filed complaints with the MCAD, Taylor retaliated against the plaintiffs by reassigning them to the most menial, repetitive, and isolated tasks within the company. The reassignments caused the plaintiffs to feel angry, frustrated, humiliated, and embarrassed throughout the remainder of their employment. The plaintiffs were then laid off during the summer of 1981 at the time of the general layoff. On laying off the plaintiffs, Taylor stated that the plaintiffs “under no circumstances would ever be hired back because they are a couple of troublemakers.” Taylor failed to recall the plaintiffs, although he rehired other laid-off employees, in retaliation for their filing the complaints. Based on these findings, the hearing commissioner held that the plaintiffs had proved that Hub disparately treated them on the basis of their sex in violation of G. L. c. 151B, § 4(1), and had retaliated against them in violation of G. L. c. 151B, § 4 (4). The commissioner then ordered Hub to pay damages to the plaintiffs for lost wages and emotional distress. The damages for emotional distress were awarded to compensate the plaintiffs for the emotional harm suffered due to Hub’s acts of retaliation. On March 7, 1986, without having paid the plaintiffs the amount of the MCAD order, Hub ceased operations and assigned its assets to creditors. In December, 1988, the plaintiffs sought to enforce the MCAD order against Hub and two successor corporations pursuant to G. L. c. 151B, § 6 (1992 ed.), in the Superior Court. On April 27, 1989, summary judgment was granted in favor of the two successor corporations. Hub defaulted and, on February 2, 1990, the plaintiffs obtained a final judgment against Hub. Pursuant to this judgment, the court ordered Hub to pay Rideout the sum of $45,519.50, interest in the sum of $47,674.02, and costs and to pay Thomas the sum of $45,306, interest in the sum of $47,450.48, and costs. The defendants insured Hub during the period that the acts of discrimination occurred. On March 30, 1990, the defendants denied coverage for the plaintiffs’ claims. On April 24, 1990, the plaintiffs instituted this action in the Superior Court. On cross motions for summary judgment, the Superior Court judge allowed the defendants’ motion for summary judgment, concluding that the policies in issue did not cover the plaintiffs’ claims. General Laws c. 214, § 3 (9), provides the Superior Court with jurisdiction over “[ajctions to reach and apply the obligation of an insurance company to a judgment debtor . . . under [a] policy insuring a judgment debtor against liability for loss or damage on account of bodily injury ... or on account of damage to property, in satisfaction of a judgment covered by such policy . . . .” An insurer may avail itself of any defense which it would have against the insured. Lombardi v. Lumbermens Mut. Casualty Co., 361 Mass. 310, 311 (1972). Where the policy provides no coverage, an insurer has no obligation to pay a judgment against its insured. Connolly v. Bolster, 187 Mass. 266, 270-271 (1905). The critical question is whether the final judgment against Hub is one covered by the defendants’ policies. All the policies in issue are policies for comprehensive general liability insurance containing identical coverage provisions. Section II of the policies extended liability coverage to Hub, providing that the defendants would pay on Hub’s behalf “all sums which the insured shall become legally obligated to pay as damages because of (A) bodily injury or (B) property damage to which this insurance applies, caused by an occurrence . . . .” Thus, the defendants’ obligation to indemnify the insured Hub is contingent on the plaintiffs having suffered bodily injury or property damage caused by an “occurrence.” The definitional section applicable to Section II defines “occurrence” as “an accident . . . which results in bodily injury or property damage neither expected or intended from the standpoint of the insured.” The basis of the plaintiffs’ claims against Hub were allegations of disparate treatment. The MCAD commissioner found that Hub discriminated against the plaintiffs in denying them equal pay, overtime opportunities, and promotions on the basis of their gender. Additionally, the MCAD found that Hub retaliated against the plaintiffs for filing their discrimination complaints. Based on these findings, the commissioner awarded the plaintiffs damages for lost wages and emotional distress. General Laws c. 175, § 47, Sixth, provides that “no company may insure any person against legal liability for causing injury, other than bodily injury, by his deliberate or intentional crime or wrongdoing.” Coverage is barred under this section only “if an intentionally committed, wrongful act was also done deliberately or intentionally, in the sense that the actor knew that the act was wrongful.” Andover Newton Theological Sch., Inc. v. Continental Casualty Co., 409 Mass. 350, 352 (1991). However, the policies must be determined to provide coverage before a court need determine whether the coverage is barred by § 47, Sixth. We now turn to whether the policies in question cover the plaintiffs’ claims. The defendants contend that the policies in question did not cover any of the damages awarded because the discriminatory acts of Hub do not constitute an occurrence, as that term is defined by the policies, because Hub intended or expected to deprive the plaintiffs of their wages and cause them emotional distress. The policies in issue defined “occurrence” as including an “accident . . . which results in bodily injury or property damage neither expected or intended from the standpoint of the insured” (emphasis added). We have stated that “[g]enerally, an injury ‘which ensues from the volitional act of an insured is still an ‘accident’ within the meaning of an insurance policy if the insured does not specifically intend to cause the resulting harm or is not substantially certain that such harm will occur.’ ” Worcester Ins. Co. v. Fells Acres Day Sch., Inc., 408 Mass. 393, 399 (1990), quoting Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass. 81, 84 (1984). However, “[t]he insured need not intend to cause the exact extent of the injury which results, in order for the exclusion to apply.” Newton v. Krasnigor, 404 Mass. 682, 685 (1989). The resulting harm “concerns the type of harm inflicted . . . and not the extent of the harm actually sustained.” Id. at 686. 1. Damages for lost wages resulting from discrimination. As noted above, the MCAD commissioner awarded the plaintiffs damages for lost wages, part of which were to compensate for Hub’s discrimination in terms of pay, overtime, and promotions. We now decide whether Hub intentionally caused or was substantially certain to cause the plaintiffs to lose wages. The plaintiffs argue that Hub negligently or recklessly discriminated against them. They further argue that, if we conclude that Hub intentionally discriminated against them, that there is no evidence that Hub intended the resulting harm. The plaintiffs’ first argument ignores the MCAD’s finding that Hub intentionally discriminated against them on the basis of their sex. The MCAD order, which is the basis of the final judgment that the plaintiffs are seeking to enforce, makes clear that Hub’s liability is based solely on its discriminatory disparate treatment, which entails a discriminatory intent. Brunner v. Stone & Webster Eng’g Corp., 413 Mass. 698, 699 (1992). The plaintiffs’ second argument also fails. The findings of the MCAD demonstrate that Hub discriminated against the plaintiffs knowing that the amount the plaintiffs received in wages would be adversely affected. We hold that Hub’s acts of discrimination against the plaintiffs, in denying equal pay, overtime work, and promotions, imply an intent to cause loss of wages. Hub’s discrimination resulting in lost wages to the plaintiffs was not a covered “occurrence,” as defined by the policies in question. 2. Damages for lost wages resulting from retaliation. The MCAD commissioner also awarded damages for lost wages resulting from Hub’s retaliation in permanently laying off the plaintiffs. The MCAD commissioner found that Hub intentionally failed to recall the plaintiffs after they were laid off in retaliation for filing complaints with the MCAD. As a matter of law, a retaliatory discharge implies an intent to cause loss of wages. The award for lost wages was not covered by the policies. 3. Damages for emotional distress resulting from retaliation. The MCAD also awarded damages to compensate the plaintiffs for the emotional harm they suffered due to Hub’s retaliation against them for filing their complaints. The MCAD found that Taylor became angry when the plaintiffs complained about the discrimination and that he immediately reassigned the plaintiffs to ignoble and isolated tasks in the company in order to retaliate. Furthermore, the MCAD found that these acts of retaliation caused the plaintiffs to feel angry, frustrated, humiliated, and embarrassed. In order for the emotional harm suffered by the plaintiffs resulting from the acts of retaliation of Hub to be deemed accidental, Hub must not have intended to cause the harm nor have been substantially certain that such harm would occur. The judge concluded that Hub either intended or was substantially certain that the plaintiffs would suffer emotional harm when it reassigned them to menial positions and failed to recall them. We agree. The MCAD’s findings make apparent that Hub at least knew with substantial certainty that the plaintiffs would suffer emotional harm when it retaliated against them for filing their complaints. 4. Conclusion. Because Hub, in discriminating against the plaintiffs because of their gender and retaliating against them because of their complaints, intended or was substantially certain that the plaintiffs would suffer the types of harm they did suffer, the plaintiffs’ claims do not constitute an “occurrence” under the policies in question. The plaintiffs’ arguments that coverage exists under other provisions of the policies are unpersuasive. The judgment of the Superior Court denying the plaintiffs’ motion for summary judgment and allowing the defendants’ motion for summary judgment is affirmed. Judgment affirmed. The defendants also contend that there is no coverage because the damages awarded are not because of bodily injury or property damage, as defined in the policies. Furthermore, they argue that the plaintiffs’ claims are barrred by the policies’ employee exclusion, which excludes from coverage bodily injury to an employee arising out of the course of employment. In addition, they argue that the judgment is not enforceable against them because they have been prejudiced by the late receipt of the plaintiffs’ claim and by Hub’s failure to cooperate. Because we decide in favor of the defendants on other grounds, we do not address these contentions. These arguments do not warrant extended discussion since they require an imaginative reading of the policies and a disregard of the facts and applicable law. The plaintiffs contend that certain language extending coverage to defamation and violations of the right to privacy provides coverage for their claims. It is entirely clear from the MCAD’s order that Hub’s liability is based solely on discrimination and not on defamation or invasion of privacy. Likewise, the plaintiffs’ argument that Hub negligently allowed its employee Taylor to discriminate against them fails to comport with the record. The MCAD order solely imposed liability against Hub derivatively for Taylor’s actions. Incredibly, the plaintiffs also argue that coverage is provided by certain policy language extending bodily injury coverage to intentional acts in reasonable defense of persons or property. Assuming that the plaintiffs were injured bodily and that Hub discriminated against the plaintiffs in order to protect male employees, liability for sex discrimination can never be held to be reasonable. Another argument wrongly assumes that coverage is bestowed if the claims are not barred by the policies’ employee exclusion. The plaintiffs’ other arguments are contingent on their claims being “occurrence[sj,” and need not be discussed.

Robert Agin vs. Federal White Cement, Inc., & another. Hampden. January 4, 1994. May 5, 1994. Present: Lucos, C.J., Wilkins, Abrams, Nolan, Lynch, & Greaney, JJ. Anti-Discrimination Law, Termination of employment. Employment, Discrimination. Civil Rights, Termination of employment. Practice, Civil, Report. In an employment age discrimination case in which the plaintiff alleged in separate counts violations of 29 U.S.C. § 621, G. L. c. 151B, and G. L. c. 93, §§ 102 and 103, the matter was remanded to the Superior Court for further proceedings in light of this court’s holding in Charland v. Muzi Motors, Inc., ante 580 (1994), that if a remedy under G. L. c. 151B is available, a plaintiff may not pursue a remedy under G. L. c. 93, § 103. [670-673] Civil action commenced in the Superior Court Department on October 1, 1991. A motion for summary judgment was heard by John F. Moriarty, J., and the matter was reported by him to the Appeals Court. The Supreme Judicial Court granted a request for direct appellate review. David G. Cohen (John J. Egan & Maurice M. Cahillane with him) for the plaintiff. Thomas J. Curley, Jr., for the defendants. The following submitted briefs for amici curiae: Scott Harshbarger, Attorney General, Richard W. Cole & John A. Capin, Assistant Attorneys General, for the Attorney General. Judith Olans Brown & Alan Jay Rom for Boston Bar Association. Patrick W. Hanifin & Charla T.-McMillian for Massachusetts Business Roundtable. Betsy L. Ehrenberg, Ruth A. Bourquin, Harold L. Lichten, Ellen J. Messing & Dahlia C. Rudavsky for Massachusetts Chapter of the National Employment Lawyers Association. John W. Welch, Kenneth R. Barba & Wendy A. Wodarski for Barry W. Soden. Federal White Cement, Ltd. Lynch, J. This case was reported by a Superior Court judge to the Appeals Court. We granted the plaintiffs request for direct appellate review. The plaintiff claims that he was discharged from his job due to his age. His complaint contains three counts alleging violation of 29 U.S.C § 621 (1988 & Supp. IV 1992) (count I), G. L. c. 151B (1992 ed.) (count II), and, G. L. c. 93, §§ 102 and 103 (1992 ed.) (count III). The defendants filed separate motions to dismiss all three counts. The motions were denied with respect to counts I and II, but allowed as to count III. The defendants also filed a joint motion for summary judgment which was heard by another Superior Court judge who was unaware of the decision issued on the motions to dismiss. That judge denied summary judgment as to counts I and II, but granted it as to count III. The judge reasoned: “Although the new statute [c. 93, § 103] encompasses a broad range of civil rights, it does not specifically include a right to be free of discrimination by employers in their employment practices by reason of handicap or age. That is undoubtedly because the subject of discriminatory employment practices is already covered by very comprehensive legislation in Chapter 151B of the General Laws, and because another statute attempting to provide another civil remedy for the same wrongs would be highly disruptive of the procedures that are already in place. I am therefore of the opinion that the omission was deliberate on the part of the legislature and that § 103 is not applicable to the type of discrimination of which the plaintiff complains in this case.” The judge reported his decision granting summary judgment in favor of the defendants because reversal of the plaintiff’s decision on appeal following a trial on the merits of his other counts could result in a second trial on the same facts, and because lower courts have arrived at inconsistent interpretations of G. L. c. 93, § 103. In his complaint, the plaintiff alleges that he began working as a salesman for the defendant Federal White Cement, Inc., in 1979, and remained there until he was involuntarily retired as of December 31, 1990, by the defendants. The plaintiff was over forty years of age when he was discharged. Federal White Cement, Inc., is a Delaware corporation and a wholly-owned subsidiary of the defendant Federal White Cement, Ltd., a Canadian corporation. Both corporations share the same officers. At his deposition, the plaintiff testified that the president had told him that he wanted “continuity of personnel,” “a smooth transition from one person to another,” and that the plaintiff had “reached a point where [he] should relax and take it easy.” On January 17, 1991, the plaintiff commenced an action with the Equal Employment Opportunity Commission. By affidavit, he averred that he contacted the Massachusetts Commission Against Discrimination (MCAD) before commencing this action but was told that he could not file a complaint because his employer did not have enough employees in this State. We agree with the Superior Court judge that the validity of the plaintiff’s claims under counts I and II depend on unresolved factual matters, and therefore, we offer no opinion in regard to them. This is also true in regard to count III. We held in Charland v. Muzi Motors, Inc., ante 580 (1994), that, if a remedy under G. L. c. 151B is available to a plaintiff, he may not pursue a remedy under G. L. c. 93, § 103. Accordingly, should a judge decide that G. L. c. 151B is or was available to the plaintiff, the plaintiff would have no viable c. 93, § 103, claim under the teaching of Charland. Since there has never been a hearing on the jurisdictional aspects of G. L. c. 151B, it would be premature for us to decide the issue reported. See Cusic v. Commonwealth, 412 Mass. 291, 294 (1992) (discharging report involving abstract question of law which may involve matters of law and policy); W.R. Grace & Co. v. Maryland Casualty Co., 33 Mass. App. Ct. 358, 372 (1992) (declining to answer speculative and premature question). Although there have been circumstances in which we have been willing to express our views on matters not strictly before us, where matters of public policy are raised, we have stated a preference for passing on the issues in light of a fully developed trial record rather than in the abstract. Heck v. Commonwealth, 397 Mass. 336, 339 (1986). Doe v. Doe, 378 Mass. 202, 203 (1979). Accordingly, we discharge the report and remand to the Superior Court for further proceedings not inconsistent with this opinion. So ordered. We note with appreciation the amicus briefs submitted by: the Attorney General; Boston Bar Association; Massachusetts Business Roundtable; Massachusetts Chapter of the National Employment Lawyers Association; and Barry W. Soden. General Laws c. 93, § 103 (a) (1992 ed.), provides: “Any person within the commonwealth, regardless of handicap or age as defined in chapter one hundred and fifty-one B, shall, with reasonable accommodation, have the same rights as other persons to make and enforce contracts, inherit, purchase, lease, sell, hold and convey real and personal property, sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property, including, but not limited to, the rights secured under Article CXIV of the Amendments to the Constitution.” The judge concluded that the plaintiff could not pursue remedies under both G. L. c. 151B (1992 ed.) and G. L. c. 93, § 103, for alleged employment discrimination due to age. She noted, however, that a remedy would be available under § 103 for employment discrimination due to age to a plaintiff whose unique circumstances did not meet the criteria delineated in c. 151B. “A judge may report an interlocutory ruling which the judge believes ‘so affects the merits of the controversy that the matter ought to be determined by the appeals court before any further proceedings in the trial court.’ ” Morrison v. Lennett, 415 Mass. 857, 859 (1993), quoting G. L. c. 231, § 11, second par. (1990 ed.). In his report, the judge stated that the plaintiff was born on May 5, 1923. Under G. L. c. 151B, § 1 (5), “ ‘employer’ does not include . . . any employer with fewer than six persons in his employ.” We note that the six-month deadline to file a claim under G. L. c. 151B is “in effect a statute of limitations subject to equitable tolling.” Christo v. Edward G. Boyle Ins. Agency, Inc., 402 Mass. 815, 817 (1988). Where MCAD employees have discouraged a claimant from filing a timely complaint with the MCAD, it may be appropriate to toll the six-month filing period. Id. Whether it is appropriate to toll the filing period in this case is a matter yet to be resolved by the Superior Court.

Ohio Civil Rights Commission—Common pleas court has jurisdiction to modify order of commission—Proper measure of damages in employment discrimination case—Where amount of backpay that would have been received by victim of employment discrimination is unclear, ambiguities are resolved against discriminating employer—Unemployment compensation benefits are not deducted from a back pay award made pursuant to R.C. 4112.05(G).

SEABROOK v MICHIGAN NATIONAL CORPORATION Docket No. 143793. Submitted February 10, 1994, at Lansing. Decided April 22, 1994; approved for publication July 25, 1994, at 9:20 A.M. Tricia Seabrook brought an action in the Ingham Circuit Court against Michigan National Corporation, alleging violation of various statutory rights, civil conspiracy, invasion of privacy, tortious interference with a business relationship, and breach of an implied contract in connection with the termination of her employment as a vice president of Michigan National Bank, a subsidiary of the defendant. The court, Peter D. Houk, J., granted summary disposition for the defendant, finding that the record failed to support the plaintiffs assertion that she was an employee of the defendant. The plaintiff appealed. The Court of Appeals held: Because federal banking regulations prohibit a bank holding company from acting as a principal in dealings with third parties so as to benefit a subsidiary bank, and because it is clear that the plaintiff dealt with third parties to the benefit of Michigan National Bank, the plaintiff, as a matter of law, was an employee of the bank rather than the defendant, a conclusion that is also supported overwhelmingly by the facts on the record. Accordingly, the court properly concluded that there was no basis for the plaintiffs claims against the defendant. Affirmed. Frederick V. Greene, for the plaintiff. Thomas J. Guyer, for the defendant. Before: Griffin, P.J., and Cavanagh and H. A. Koselka, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Per Curiam. Plaintiff appeals as of right from the trial court’s order granting defendant’s motion for summary disposition in this wrongful discharge case. We affirm. Plaintiff, Tricia Seabrook, was hired by Michigan National Bank (mnb) in 1978. In 1986, she became a senior sales representative in the cash management division, and in 1987 she was appointed second vice president of mnb. Her job responsibilities included selling a bank service to other companies. In July 1988, plaintiff resigned from her position with mnb. On September 28, 1989, she filed suit against mnb for wrongful discharge and negligent evaluation. The action was dismissed with prejudice. On October 19, 1990, plaintiff filed a second wrongful discharge suit against mnb, which was also dismissed. On March 15, 1991, plaintiff filed the instant action against defendant, Michigan National Corporation (mnc), alleging violations of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and the Michigan Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq., civil conspiracy, invasion of privacy, tortious interference with a business relationship, and breach of an implied contract. Defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and (10), asserting that plaintiffs employer was mnb and, therefore, that she had no claims against defendant mnc. The court granted the motion. This appeal followed. The only issue properly before this Court is whether the trial court erred in determining that there was no genuine issue of material fact with respect to whether defendant was plaintiff’s employer. In reviewing a grant of summary disposition, we must give the benefit of reasonable doubt to the nonmovant and determine independently whether a record might be developed that would leave open an issue upon which reasonable minds could differ. Farm Bureau Mutual Ins Co v Stark, 437 Mich 175, 184-185; 468 NW2d 498 (1991). It is not disputed that defendant is a bank holding company that is regulated by Federal Reserve Regulation Y. 12 CFR 225.1 et seq. That regulation permits a holding company to perform certain personnel and accounting services for its subsidiaries, but prohibits it from acting as a principal in dealing with third parties. In other words, defendant cannot enter into contracts with third parties to benefit mnb. In this case, plaintiff was clearly acting as an agent for mnb in dealing with third parties. If plaintiff was an employee of defendant, she would have been prohibited by Regulation Y from entering into contracts with third parties. Thus, as a matter of law, plaintiff must have been an employee of mnb and not of mnc. The factual evidence also overwhelmingly supports the conclusion that plaintiff was an employee of mnb and not an employee of defendant mnc. Plaintiff initially filed suit against mnb, alleging it was her employer. Her letterhead and business card indicated that she worked for the cash management division of mnb. Mnc was named on plaintiff’s pay stubs and W-2 forms merely in its capacity as paying agent for mnb. This case is thus distinguishable from Ambro v American Nat’l Bank & Trust Co of Mich, 152 Mich App 613; 394 NW2d 46 (1986), where there was a genuine issue of fact concerning whether the plaintiff was an employee of the holding company. Id. at 621. Giving the benefit of reasonable doubt to plaintiff, there is no foundation for her asserting this claim against defendant, and summary disposition was properly granted. Affirmed.

Cyril Charland vs. Muzi Motors, Inc., & another., Norfolk. January 4, 1994. April 21, 1994. Present: Liacos, C.J., Wilkins, Abrams, Nolan, Lynch, & Greaney, JJ. Massachusetts Commission Against Discrimination. Statute, Construction. Anti-Discrimination Law, Termination of employment. Employment, Discrimination. Civil Rights, Termination of employment. General Laws c. 15IB provides the exclusive remedy for employment discrimination claims not otherwise based on preexisting common law tort principles or constitutional protections, and no independent or alternative claim for alleged employment discrimination may be maintained under G. L. c. 93, §§ 102 and 103 (equal rights act). [582-586] Civil action commenced in the Superior Court Department on February 17, 1993. The case was heard by Patrick F. Brady, J., on a motion to dismiss. The Supreme Judicial Court granted a request for direct appellate review. Paul A. Manoff for the plaintiff. Charles A. Hawkins, of Georgia, for the defendants. Judith Olans Brown & Alan Jay Rom, for Boston Bar Association, amicus curiae, submitted a brief. Scott Harshbarger, Attorney General, Richard W. Cole & John A. Capin, Assistant Attorneys General, for the Attorney General, amicus curiae, submitted a brief. Edward Connors. The plaintiff notes that, on the amended complaint, Connors’s name was incorrectly spelled “Corner.” We note with appreciation the amicus briefs submitted by the Attorney General and the Boston Bar Association. Lynch, J. This case requires the court to interpret the relationship between G. L. c. 151B (1992 ed.) and G. L. c. 93, §§ 102 and 103 (1992 ed.) (equal rights act). The plaintiff alleges that, on March 22, 1991, he was terminated by the defendant Muzi Motors, Inc., because of his age or national origin in violation of the equal rights act. He concedes that he did not proceed under G. L. c. 151 B, because he failed to file a complaint with the Massachusetts Commission Against Discrimination (MCAD) within the six-month period required by G. L. c. 151 B, § 5. A judge in the Superior Court, reasoning that the equal rights act does not provide a remedy for discriminatory discharge, allowed the defendants’ motion to dismiss. We granted the plaintiffs application for direct appellate review and now affirm. We hold that, where G. L. c. 151B is applicable, employees alleging discriminatory conduct by their employer must comply with the administrative requirements of c. 151B and failure to do so precludes actions by employees based on the equal rights act. Therefore, the plaintiffs failure to invoke the protection of G. L. c. 151B required the dismissal of his complaint. 1. Exclusivity provision of G. L. c. 151B. The plaintiff contends that the equal rights act provides alternative remedies for employment discrimination in concert with c. 151B. We do not agree. We base our decision on the language of c. 151B, legislative intent, and our precedents interpreting its scope. Chapter 151B creates an administrative procedure for the enforcement of antidiscrimination statutes of the Commonwealth. See Black v. School Comm. of Malden, 365 Mass. 197, 202 (1974), S.C., 369 Mass. 657 (1976). As this court has stated, “the clear purpose of G. L. c. 15IB is to implement the right to equal treatment guaranteed to all citizens by the constitutions of the United States and the Commonwealth.” Katz v. Massachusetts Comm’n Against Discrimination, 365 Mass. 357, 366 (1974). “As a starting point for our analysis we assume, as we must, that the Legislature was aware of the existing statutes in enacting [the equal rights act], Mathewson v. Contribu tory Retirement Appeal Bd., 335 Mass. 610, 614 (1957), and that if possible a statute is to be interpreted in harmony with prior enactments to give rise to a consistent body of law. Everett v. Revere, 344 Mass. 585, 589 (1962).” Hadley v. Amherst, 372 Mass. 46, 51 (1977). The Legislature is “ ‘presumed to understand and intend all consequences’ of its acts.” Boston Water & Sewer Comm’n v. Metropolitan Dist. Comm’n, 408 Mass. 572, 578 (1990), quoting Rambert v. Commonwealth, 389 Mass. 771, 774 (1983). Chapter 151B provides a detailed framework to protect the citizens of the Commonwealth against employment discrimination. It defines terms and prohibited practices and establishes procedures for the filing, investigation, and disposition of complaints. One court has explained: “An antidiscrimination statute such as Chapter 151B reflects the legislature’s balancing of competing interests. Employees are protected against certain types of discharge. Employers are protected from unnecessary litigation by a relatively short statute of limitations, see ch. 151B § 5 (six months), and a mandatory conciliation process . . . .” Crews v. Memorex Corp., 588 F. Supp. 27, 29 (D. Mass. 1984). Chapter. 151B provides “two largely independent avenues for redress of violations of the antidiscrimination laws of the Commonwealth, one through the MCAD . . . and the other in the courts.” Christo v. Edward G. Boyle Ins. Agency, Inc., 402 Mass. 815, 817 (1988). However, under G. L. c. 151B, § 9, a person claiming discrimination “may maintain a civil action only if she has previously filed a timely complaint with the [MCAD] and ninety days have passed (or a commissioner has assented to an earlier filing).” Id. at 816. “Resort to the courts is not available for a complaint of discrimination within the jurisdiction of the MCAD unless the person claiming to have been the object of unlawful discrimination first makes a timely complaint to that agency.” Cherella v. Phoenix Technologies Ltd., 32 Mass. App. Ct. 919, 919 (1992), citing Melley v. Gillette Corp., 19 Mass. App. Ct. 511, 512-513 (1985), S.C., 397 Mass. 1004 (1986). Sereni v. Star Sportswear Mfg. Corp., 24 Mass. App. Ct. 428, 430 (1987). In Brunson v. Wall, 405 Mass. 446, 452 (1989), we concluded that G. L. c. 151B did not provide an employee with the option to proceed with a de nova judicial hearing under § 9 after a final decision of the MCAD pursuant to § 6. “By providing for judicial review of MCAD decisions, and by foreclosing agency action once a party has sought a judicial remedy pursuant to § 9, the Legislature signaled its intent that the parties would be bound by an MCAD decision, subject only to judicial review.” Id. In view of the carefully crafted procedures of c. 151B, it is unlikely that, in adopting the equal rights act, the Legislature intended to create a parallel and competing alternative to dealing with the problem of employment discrimination in the Commonwealth. The statutory language supports this conclusion. Section 9 of G. L. c. 151B provides in part: “as to acts declared unlawful by section four, the procedure provided in this chapter shall, while pending, be exclusive; and the final determination therein shall exclude any other action, civil or criminal, based on the same grievance of the individual concerned. “Any person claiming to be aggrieved by a practice made unlawful under this chapter ... or by any other unlawful practice within the jurisdiction of the commission, may, at the expiration of ninety days after the filing of a complaint with the commission, or sooner if a commissioner assents in writing . . . bring a civil action for damages or injunctive relief or both in the superior or probate court . . . .” The suggestion that the phrase “while pending” of § 9 means that c. 151B is the exclusive remedy solely for actions filed with the MCAD is incorrect. This interpretation ignores the legislative intent to subject all discrimination claims to some administrative scrutiny. In essence the words “while pending” are an acknowledgment that a complaining employee must first file his claim with the MCAD, and that the pending claim may be decided administratively with judicial review of the final administrative decision. If the employee opts for judicial determination of his claim, he may do so only ninety days after filing the claim (or sooner with permission) in which case the administrative process terminates, and the claim is no longer pending before the MCAD. Thus the election to pursue a claim of discrimination in court applies only after the first step of filing with the MCAD. Our appellate decisions have consistently applied this view of the exclusivity of c. 151B remedies. In an opinion whose analysis and conclusion we have adopted, the Appeals Court decided that a new common law remedy for employment discrimination should not be created where G. L. c. 151B applies. See Melley v. Gillette Corp., 397 Mass. 1004 (1986). The Appeals Court reasoned that, “where, as here, there is a comprehensive remedial statute, the creation of a new common law action based on the public policy expressed in that statute would interfere with that remedial scheme. Not only would the legislative preference for an administrative solution be circumvented, but serious problems would be posed as to the extent of the remedy provided.” Melley v. Gillette Corp., 19 Mass. App. Ct. 511, 513 (1985). More recently, the Appeals Court examined the relationship between G. L. c. 151B and G. L. c. 12, §§ 11H and 11I (1992 ed.). In Mouradian v. General Elec. Co., 23 Mass. App. Ct. 538 (1987), a plaintiff alleged that he was wrongfully terminated because of age discrimination in violation of c. 151B, § 4 (1B), and c. 12, §§ 11H and 11I. The plaintiff had filed a complaint with the MCAD that was dismissed because it was not filed within the relevant limitations periads prescribed by c. 151B. The Mouradian court, id. at 543, opined: “There may be a case in which the termination of an at-will employee could give rise to a tenable complaint seeking relief under G. L. c. 12, §§ 11H and 11I. This is not such a case, as the only ‘right [ ] secured by the . . . laws of the commonwealth’ (the operative words of c. 12, § 11H, in this instance) is the right which could have been enforced under the procedures established by c. 151B. In the circumstances, G. L. c. 12, §§ 11H and 11I, do not create an independent right to vindicate an alleged wrong which might have been the subject of investigation and possible vindication under G. L. c. 151B, were it not for [the plaintilFs] delay.” The decisions in O’Connell v. Chasdi, 400 Mass. 686 (1987), and Comey v. Hill, 387 Mass. 11 (1982), are not to the contrary. In O’Connell v. Chasdi, supra at 693, where c. 151B was inapplicable, the court decided that its exclusivity provisions do not preclude an independent claim of a violation of an employee’s equal protection rights under art. 1 of the Declaration of Rights, as amended by art. 106 of the Amendments. In Comey v. Hill, supra at 20, we ruled that an employee was not foreclosed by c. 15IB from raising a tort claim under common law principles established prior to adoption of c. 151B. We therefore conclude that, where applicable, G. L. c. 151B provides the exclusive remedy for employment discrimination not based on preexisting tort law or constitutional protections, and that the plaintiffs failure to adhere to the requirements of G. L. c. 151B required the dismissal of his complaint. Judgment affirmed. General Laws c. 151B, §§ 4 (1), 4 (1B), & 4 (5) (1992 ed.), provide: “It shall be an unlawful practice: “1. For an employer, by himself or his agent, because of the race, color, religious creed, national origin, sex, sexual orientation ... or ancestry 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. “1B. For an employer in the private sector, by himself or his agent, because of the age of an 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. “5. For any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden or to attempt to do so.” General Laws c. 93, § 102 (a) (1992 ed.), provides: “All persons within the commonwealth, regardless of sex, race, color, creed or national origin, shall have, except as is otherwise provided or permitted by law, the same rights enjoyed by white male citizens, to make and enforce contracts, to inherit, purchase, to lease, sell, hold and convey real and personal property, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind and to no other.” General Laws c. 93, § 103 (a) (1992 ed.), provides: “Any person within the commonwealth, regardless of handicap or age as defined in chapter one hundred and fifty-one B, shall, with reasonable accommodation, have the same rights as other persons to make and enforce contracts, inherit, purchase, lease, sell, hold and convey real and personal property, sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property, including, but not limited to, the rights secured under Article CXIV of the Amendments to the Constitution.” The judge based his decision on Patterson v. McLean Credit Union, 491 U.S. 164 (1989), where the Supreme Court determined that, under 42 U.S.C. § 1981 (1988), the phrase “to make and enforce contract's” did not apply to conduct which occurred after the formation of a contract and which did not interfere with the right to enforce established contract obligations. Id. at 176-177, 179-180. Given the Patterson decision, the Superior Court judge determined that G. L. c. 93, §§ 102 and 103 do not provide a remedy for a discriminatory discharge. The judge further reasoned that, if the Legislature had “intended to overrule Patterson,” it would not have used the identical words that the Patterson court had interpreted.

Robert S. Whalen vs. NYNEX Information Services, Inc. No. 92-P-1111. Suffolk. November 9, 1993. ebruary 28, 1994. Present: Jacobs, Gillbrman, & Porada, JJ. Further appellate review granted, 418 Mass. 1104 (1994). Constitutional Law, Trial by jury. Practice, Civil, Jury trial. Employment, Discrimination. Anti-Discrimination Law, Employment. There is no right to a trial by jury on a claim alleging handicap discrimination in violation of G. L. c. 151B. [149-153] Civil action commenced in the Superior Court Department on November 9, 1987. The case was heard by Thomas E. Connolly, J. Frederick T. Golder for the plaintiff. Lisa M. Birkdale for the defendant. Gillbrman, J. After a two-day bench trial, the judge ordered judgment for the defendant on the plaintiff’s claim of handicap discrimination in violation G. L. c. 15IB. The judge’s comprehensive findings of fact and rulings of law were carefully drafted, and disposed of the issues presented for adjudication on the merits. In brief, the judge concluded that the plaintiff, having failed to prove that he was qualified for the available position, had not established that he was a qualified handicapped person within the meaning of G. L. c. 15IB, § 4, (16); that the defendant had presented a legitimate, nondiscriminatory reason for the refusal to hire the plaintiff, namely, the plaintiff’s failure to satisfy the job requirements; that the plaintiff had failed to prove that the stated reason for the refusal to hire was merely a pretext for discrimination, and that no discriminatory animus existed against the plaintiff. See generally Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 135 note 5 (1976), and Johansen v. NCR Comten, Inc., 30 Mass. App. Ct. 294, 296-297 (1991), where the cases are collected. Indeed, the judge found that the four persons who evaluated the plaintiff had “no knowledge that Whalen may have had any handicap,” that the plaintiff told no one at the defendant’s Salem employment office that he had suffered a brain injury until after he was told he would not be hired; and that, after his rejection, the plaintiff told the receptionist at the Salem office that he was fully recovered from his previous injury. These findings and conclusions were amply supported by the testimony. But all that is of no material consequence to this appeal, for here the central and only important issue is whether there was error in allowing the defendant’s motion to strike the plaintiffs demand for a trial by jury. We hold that there was no error. In spite of the fact that G. L. c. 15IB was inserted almost fifty years ago, see St. 1946, c. 368, § 4 (then entitled “Unlawful Discrimination Against Race, Color, Religious Creed, National Origin or Ancestry”),* * 4*6*no Massachusetts appellate decision, it seems, has considered the question presented by this case: whether the right to trial by jury is preserved for those claiming violations of the statute (other than claims of age discrimination — see note 3, supra). Article 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 Rev. v. Jarvenpaa, 404 Mass. 177, 185-186 (1989), quoting from Opinion of the Justices, 237 Mass. 591, 596 (1921). See also Commonwealth v. Knowlton, 2 Mass. 530, 534-535 (1807). Oftentimes, because “new forms of actions and proceedings” are created by the Legislature, it may become necessary to consider whether “analogous civil proceedings existed at common law which required a jury trial.” Commonwealth v. Mongardi, 26 Mass. App. Ct. 5, 8 (1988). But the fact that the claims asserted may be, in some measure, analogously connected to actions known at common law is not necessarily enough to establish the right to trial by jury. Nei v. Burley, 388 Mass. 307, 314 (1983). This is particularly so since here, as in Nei v. Burley (deciding that there is no right to trial by jury for actions cognizable under G. L. c. 93A), the Legislature “has created new substantive rights in which conduct heretofore lawful under common law and statutory law is now unlawful.” Id. at 315. See also Department of Rev. v. Jarvenpaa, supra at 188 (“If a wholly new cause of action is created, a jury trial right does not attach to that claim”). So too, where the cause of action is for the violation of civil rights, a claim unknown to the common law, Commonwealth v. Guilfoyle, 402 Mass. 130, 135 (1988) (citing Batchelder v. Allied Stores Corp., 393 Mass. 819, 821 [1985]), it is clear that art. 15 is inapplicable. Id. at 135-136. In enacting the provisions of c. 15IB with regard to employment discrimination, the Legislature did indeed create a “wholly new cause of action.” Competition was the cornerstone of the economic theory of the common law, for “it is through that competition, that the best interests of trade and industry are promoted.” Commonwealth v. Hunt, 4 Met. 111 134 (1842). Essential to the magical and wondrous workings of competition was the right of the employer to the “free flow of labor,” — a right “to which every member of the community is entitled for the purpose of carrying on the business in which he or it has chosen to embark.” Haverhill Strand Theatre, Inc. v. Gillen, 229 Mass. 413, 418 (1918). The free flow of labor required that employers have the “right ... at all times to hire in the labor market, and to retain in their employment, such workmen as they might choose, unhampered by the interference of the union acting as a body through the instrumentality of a strike, or of a boycott, or of a black list .... [That right] is a primary right which has never been abrogated but remains unimpaired by our decisions.” Folsom Engraving Co. v. McNeil, 235 Mass. 269, 277 (1920). See also Boylston Hous. Corp. v. O’Toole, 321 Mass. 538, 549 (1947). The Federal version of these ideas was not substantially different. See Lochner v. New York, 198 U.S. 45, 53 (1905) (liberty interest of the Fourteenth Amendment to the Federal Constitution protects “the right of contract between the employer and employees concerning the number of hours in which the latter may labor in the bakery of the employer,” and State statute which limits those hours is repugnant to the Federal Constitution). It is surely an understatement to say that the common law in 1780, when the Massachusetts Constitution was adopted, did not recognize the right of an individual to be considered for employment free of discrimination on account of his or her handicap. Compare Melley v. Gillette Corp., 19 Mass. App. Ct. 511, 513 (1985), S.C., 397 Mass. 1004 (1986) (no common law remedy for discharge on account of age). It was not until the adoption of art. 114 of the Amendments to the Massachusetts Constitution in 1980 that a right to be free of handicap discrimination (to the extent therein provided) was established in our fundamental law. See also G. L. c. 93, § 103 (prohibiting discrimination in contract and property transactions on the basis of handicap). Finally, we emphasize, as did the court in Nei v. Burley, 388 Mass. at 315, the silence of the Legislature on the point at issue, see note 3, supra, and if “this conclusion does not reflect the mind of the Legislature, it is free to change the law and to grant a right to a trial by jury.” Ibid. While we conclude that there is no right to trial by jury regarding a handicap discrimination claim arising under c. 151B, nothing prevents a judge from submitting such a case to a jury, and it is not reversible error if he does so. Compare Service Publications, Inc. v. Goverman, 396 Mass. 567, 577-578 (1986) (permitting jury trials in c. 93A cases where there is no right to trial by jury). Judgment affirmed. The complaint filed by the plaintiff alleged handicap discrimination in violation of G. L. c. 15IB (Count I), art. 114 of the Amendments to the Massachusetts Constitution (Count II), and G. L. c. 12, § 111 (Count III). The plaintiff also filed a jury claim “on all issues and claims triable by jury.” Counts II and III were dismissed, and following a hearing, the judge allowed the defendant’s motion to strike the plaintiff’s jury claim. The complaint also alleged that a charge of discrimination had been filed with the Massachusetts Commission Against Discrimination. See G. L. c. 151B, § 5. General Laws c. 151B, § 4, (16) (1986 ed.), makes it unlawful for an employer to “refuse to hire . . . 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. . . .” As in Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 381-382 (1993), the judge made no finding as to whether the plaintiff was a handicapped person; he focused on whether the plaintiff was qualified to perform the job. But unlike Cox, this is a disparate treatment case, not a disparate impact case, and the burden-shifting principles announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), apply. See Cox at 384-385. The provisions with regard to handicap discrimination were added by St. 1983, c. 533, § 6. In 1990, the Legislature amended § 9 of c. 151B by adding the right to trial by jury in age discrimination cases. See St. 1990, c. 395. In any event, it is clear that (i) the Legislature has not acted to create a right to trial by jury regarding handicap discrimination, and (ii) the Legislature appears to understand that but for enabling legislation, such as St. 1990, c. 395, no right to trial by jury adheres to c. 151B. See Nei v. Burley 388 Mass. 307, 315 (1983). We shall assume that whether the plaintiff was a “qualified handicapped person” presents questions of fact that could appropriately be decided by a jury. Article 15 provides, in part, “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 practised, the parties have a right to a trial by jury. . . .” Compare Chief Justice Holmes, dissenting in Plant v. Woods, 176 Mass. 492, 505 (1900): “While I think the strike a lawful instrument in the universal struggle of life, I think it pure phantasy to suppose that there is a body of capital of which labor as a whole secures a larger share by that means .... Organization and strikes may get a larger share for the members of an organization, but, if they do, they get it at the expense of the less organized and less powerful portion of the laboring mass. They do not create something out of nothing. It is only by divesting our minds of questions of ownership and other machinery of distribution, and by looking solely at the question of consumption, — asking ourselves what is the annual product, who consumes it, and what changes would or could we make, — that we can keep in the work of realities.” An employee “under contract for service” could recover for unjustifiable interference with his employment contract “as for an injury to any other vested property right.” Citizens Loan Assn. v. Boston & Me. R.R., 196 Mass. 528, 530 (1907). Lochner, and related cases, were subsequently repudiated. See Lincoln Fed. Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525, 535 (1949). Contrast Gallagher v. Wilton Enterprises, Inc., 962 F.2d 120 (1st Cir. 1992), holding that a right to trial by jury is available in the Federal court for claims under c. 151B. However, Gallagher, a diversity case, was decided under the Seventh Amendment to the Federal Constitution where the analysis proceeds along different lines. See Gallagher at 122 (the court looks first to State law to determine the elements of the cause of action, and the remedy sought, and then to Federal law for the characterization of the action and the remedies as either legal or equitable. The right to trial by jury then attaches to legal, but not to equitable claims). See also Simler v. Conner, 372 U.S. 221, 222-223 (1963); Pandazides v. Virginia Bd. of Educ., 13 F.3d 823 (4th Cir. 1994). Article 114 of the Amendments provides, “No otherwise qualified handicapped individual shall, solely by reason of his handicap, be excluded from the participation in, denied the benefits of, or be subject to discrimination under any program or activity within the commonwealth.” Further support for our conclusion is found in the complex legislative scheme, expressed in c. 15IB, to protect the rights covered by that chapter. That scheme, as we noted in the Melley case, supra at 512, provides for administrative remedies as well as judicial remedies, and the litigant must first follow the administrative route — a remedy unknown to the common law. Compare Commonwealth v. Mongardi, 26 Mass. App. Ct. at 8 (“The procedure specified in c. 90C for the handling of civil motor vehicle infractions is essentially sui generis, and does not express a civil claim, right or remedy which was recognized at common law as requiring a jury trial”), and, with regard to G. L. c. 268A, Zora v. State Ethics Commn., 415 Mass. 640, 652-653 (1993).

JONATHAN DUNBAR WESTON v. CAROLINA MEDICORP, INC., and FORSYTH MEMORIAL HOSPITAL, INC., d/b/a FORSYTH MEMORIAL HOSPITAL No. 9321SC229 (Filed 18 January 1994) 1. Constitutional Law § 88 (NCI4th); Appeal and Error § 555 (NCI4th)— race discrimination alleged —relitigation precluded based on doctrine of the law of the case Even if the Civil Rights Act of 1991 did apply to plaintiff, he was prevented from relitigating the issue of race discrimination in his dismissal from the staff of defendant hospital based on the doctrine of the law of the case. Am Jur 2d, Appeal and Error §§ 744 et seq.; Civil Rights §§ 3, 4. Erroneous decision as law of the case on subsequent appellate review. 87 ALR2d 271. 2. Hospitals and Medical Facilities or Institutions § 39 (NCI4th) — rejection of “captain of the ship doctrine” —no applicability to defendant’s case —no relief from judgment There was no merit to plaintiff’s contention that the Court’s rejection of the “captain of the ship doctrine” in Harris v. Miller, 103 N.C.App. 312, entitled him to relief from judgment in his action alleging that defendants violated his right to due process and racially discriminated against him in revoking his staff privileges at defendant hospital, since defendant repeatedly engaged in conduct which led to a recommendation that, because plaintiff’s medical judgment was impaired, his staff privileges should be revoked so as to protect his patients from risk of harm. Am Jur 2d, Hospitals and Asylums §§ 8 et seq. Exclusion of or discrimination against physician or surgeon by hospital. 37 ALR3d 645. Appeal by plaintiff from order signed 28 August 1992 in For-syth County Superior Court by Judge W. Douglas Albright denying plaintiff’s motion to set aside the judgment. Heard in the Court of Appeals 8 December 1993. In April 1988, plaintiff was suspended from the medical staff of Forsyth Memorial Hospital for violating the hospital policy which requires a physician admitting a patient with HIV infection to identify the patient to other health care providers as being potentially infectious. In 1989, plaintiff was summarily suspended from the medical staff because of various incidents which raised questions concerning whether plaintiff should continue to be allowed staff privileges. Plaintiff appealed the summary suspension to the Executive Committee and to the hospital’s Board of Trustees. Both bodies affirmed the suspension pending a full investigation. After an investigation, the Executive Committee recommended that plaintiff’s staff privileges be revoked because the Executive Committee found that plaintiff’s medical judgment was impaired and that revocation of his staff privileges was necessary to protect patients from the risk of harm. The hospital’s Board of Trustees subsequently revoked plaintiff’s staff privileges. On 21 October 1988, plaintiff filed this action alleging that defendants violated his right to due process under the North Carolina Constitution and the Constitution of the United States by suspending and revoking his staff privileges and racially discriminated against him in violation of 42 U.S.C. § 1981, 42 U.S.C. § 1983, and the First and Fourteenth Amendments to the United States Constitution. The trial court entered judgment in favor of defendants, and, on appeal to this Court, we affirmed. Weston v. Carolina Medicorp, Inc., 102 N.C. App. 370, 402 S.E.2d 653 (1991). Our Supreme Court dismissed plaintiff’s appeal and denied his petition for discretionary review. Weston v. Carolina Medicorp, Inc., 330 N.C. 123, 409 S.E.2d 611 (1991). On 25 February 1992, plaintiff filed a motion to set aside the judgment and for a new trial pursuant to Rule 60(b)(6) of the North Carolina Rules of Civil Procedure. On 28 August 1992, the trial court entered an order denying plaintiff’s motion. Plaintiff appeals from that order to this Court. Kennedy, Kennedy, Kennedy & Kennedy, by Harvey L. Kennedy and Harold L. Kennedy, III, for plaintiff-appellant. Womble Carlyle Sandridge & Rice, by Anthony H. Brett, Dale E. Nimmo, and Joel M. Leander, for defendants-appellees. WELLS, Judge. Plaintiff argues in his first assignment of error that the trial court erred in denying his motion to set aside the judgment and award him a new trial pursuant to Rule 60(b)(6) of the North Carolina Rules of Civil Procedure. Plaintiff contends that the Civil Rights Act of 1991 (the Act) applies retroactively to his claim so as to entitle him to relief from judgment. We disagree. The Act was signed into law on 21 November 1991. Pub. L. No. 102-166, 105 Stat. 1071 (1991). In section 3 of the Act, Congress stated that one of the purposes of the Act was “to respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination.” Section 101 of the Act prohibits all racial discrimination in the making and enforcement of contracts, and, in response to Patterson v. McLean Credit Union, 491 U.S. 164, 105 L. Ed. 2d 132 (1989), section 101 of the Act provides that “make and enforce contracts” includes “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b) (1991). Even if the Act did apply retroactively to plaintiffs claim, plaintiff is prevented from relitigating the issue of race discrimination based on the doctrine of the law of the case. According to the doctrine of the law of the case, once an appellate court has ruled on a question, that decision becomes the law of the case and governs the question both in subsequent proceedings in a trial court and on subsequent appeal. Transportation, Inc. v. Strick Corp., 286 N.C. 235, 210 S.E.2d 181 (1974). See also NCNB v. Virginia Carolina Builders, 307 N.C. 563, 299 S.E.2d 629 (1983). When the trial court entered judgment against plaintiff, the trial court made the following finding of fact: “The actions taken by the Hospital in summarily suspending and revoking plaintiff’s staff privileges were not taken on account of his race. Dr. Weston’s race played no role in the proceedings.” On his first appeal to this Court, we held that “plaintiff’s assignments of error with regard to the findings of fact [were] . . . ineffective to challenge the sufficiency of the evidence to support the findings under the ‘any competent evidence standard’ of appellate review” and that “the trial court’s findings of fact [were] conclusive on this appeal.” Weston, supra. The prior decision of this Court is the law of the case and as such is binding upon this panel. Plaintiff therefore is foreclosed from relitigating the question of race discrimination in this or any other subsequent proceeding. Furthermore, under general rules of estoppel by judgment, plaintiff is similarly precluded from relitigating an issue adversely determined against him. Poindexter v. First Nat’l Bank, 247 N.C. 606, 101 S.E.2d 682 (1958). Plaintiff next argues that the trial court erred in denying his motion to set aside the judgment because there occurred a change in the law as announced by this Court in the case of Harris v. Miller, 103 N.C. App. 312, 407 S.E.2d 556, rev. granted, 329 N.C. 788, 408 S.E.2d 520 (1991). We disagree. In Harris, we rejected the “captain of the ship doctrine” which plaintiff contends was relied upon by the trial court in ruling against him. Plaintiff argues that our rejection of the “captain of the ship doctrine” in Harris entitles him to relief from judgment. In support of this argument, plaintiff makes the following statement in his brief: “In the present case, Dr. Weston had his staff privileges revoked mainly because of the actions of the anesthesiologist in overloading [a] myomectomy patient with fluid.” (Emphasis added). This statement is a gross distortion of the findings made by the trial court in the original judgment. Those findings reflect a history of repeated conduct on the part of Dr. Weston which, as we have noted earlier, required the Executive Committee to recommend that, because his medical judgment was impaired, his staff privileges be revoked so as to protect his patients from a risk of harm. Under these circumstances, the Harris rule has no application which would require the trial court to grant plaintiff’s motion. Our determination is that the trial court’s denial was not a discretionary ruling but one which was required by the doctrine of the law of the case and issue preclusion. The order of the trial court is Affirmed. Chief Judge ARNOLD and Judge EAGLES concur.

BARNELL v TAUBMAN COMPANY, INC Docket No. 135296. Submitted April 15, 1993, at Lansing. Decided December 20, 1993, at 10:00 A.M. Leave to appeal sought. Charles L. Barnell brought an action in the Oakland Circuit Court against the Taubman Company, Inc., alleging wrongful discharge, age discrimination, and promissory estoppel. Kay Barnell, Charles’ wife, brought a derivative claim of loss of consortium. The plaintiffs alleged that Charles Barnell was recruited by the defendant for a new position of vice president of financial services. They further alleged that during his interviews with the chief financial officer, the chief executive officer, and the chief of operations he was assured that his performance would be reviewed and he would be discharged only for failing to perform adequately. The defendant claimed that Charles Barnell’s employment was at will and that even if he was not aware of that policy at the time of his employment, he was made aware of it a few months later when a memorandum indicating that all employment was at will was circulated to all employees. The defendant further claimed that Charles Barnell had been discharged for cause. The court, Jessica R. Cooper, J., granted summary disposition for the defendant on the basis that there was no issue of material fact. The plaintiffs appealed. The Court of Appeals held: 1. The plaintiffs alleged that the defendant had made a specific promise that plaintiff Charles Barnell would be discharged only for good cause. Their pleadings were sufficient, if believed by a trier of fact, to establish a contractual basis to overcome the presumption that his employment was at will. 2. Because the plaintiffs alleged an express contractual agreement that the employment would be terminated only for good cause, the defendant could not change unilaterally the nature of the employment relationship. Inasmuch as plaintiff Charles did not sign the acknowledgment that accompanied the memorandum that the defendant circulated to its employees relative to the nature of their employment relationship, and there were no other acts of the parties evidencing his assent to a modification of his employment relationship, the memorandum could not modify the alleged express agreement upon which the plaintiffs’ claim of wrongful discharge was based. Accordingly, the trial court erred in granting summary disposition for the defendant with respect to the claim of wrongful discharge on the basis that the plaintiffs failed to allege facts sufficient to raise issues of material fact requiring resolution by a trier of fact. References Am Jur 2d, Master and Servant §§ 20, 32, 43, 46. See ALR Index under Discharge from Employment or Office; Labor and Employment. 3. Although the plaintiffs’ allegations with respect to the claim of age discrimination were sufficient to establish that Charles Barnell was replaced by a younger employee, their allegations failed to rebut the defendant’s allegation that his dismissal was because of a difference in management philosophies. Replacement by a younger person without some evidence that age was a determining factor in the dismissal is insufficient to establish a claim of age discrimination. Because the plaintiffs failed to plead that critical factor, the trial court properly granted summary disposition for the defendant with respect to the claim of age discrimination. 4. Plaintiff Charles Barnell’s leaving his prior position and moving from Grand Rapids to the Detroit area in order to take the job with the defendant was insufficient to establish the element of reliance needed to establish a claim of promissory estoppel. Although the trial court incorrectly stated that summary disposition for the defendant with respect to the claim of promissory estoppel should be granted on the basis that the claim was nothing more than a restatement of the claim of wrongful discharge, the granting of summary disposition was the correct result, albeit for the wrong reason. 5. The issue argued by the defendant relative to mitigation of damages is not properly before the Court of Appeals, no cross appeal having been filed. Affirmed in part, reversed in part, and remanded. Contracts — Employment — Discharge for Good Cause — Express Agreements — Unilateral Modification. An employer that by express agreement promises that an employee will be discharged only for good cause may not convert unilaterally that relationship to employment at will; such a change of the employment relationship requires the assent of the employee. Mary Anne M. Helveston, for the plaintiffs. Miro Miro & Weiner (by Thomas W. Cranmer and Bruce L. Segal), for the defendant. Before: White, P.J., and Cavanagh and Jansen, JJ. Jansen, J. This is a wrongful discharge and age discrimination case. Plaintiffs appeal as of right from an order of the Oakland Circuit Court of November 7, 1990, granting defendant summary disposition pursuant to MCR 2.116(0(10). We affirm in part, reverse in part, and remand for further proceedings. i Charles Barnell (hereinafter plaintiff) was employed by Rapistan, a division of Lear Siegler, Inc., from 1971 until 1985. In January 1984, he became vice president of finance at Rapistan. In the spring of 1985, an employment search agency contacted plaintiff and advised him that defendant Taubman Company was seeking to fill a new position of vice president of financial services. The position was designed to assist Gerald Poissant, defendant’s chief financial officer. Although plaintiff was not looking to change positions, he agreed to meet with Poissant. Plaintiff met with Poissant, and one of plaintiff’s initial inquiries concerned job security. Plaintiff stated that he was concerned about the stability of the Taubman organization and the security of the position of vice president of financial services, because it was a newly created position. Poissant told plaintiff that he need not be concerned with summary dismissal at the Taubman Company, that he would have the same type of job security that he had at Rapistan, that he would not be discharged without cause (although he was not certain of the exact words used. to convey this message), that the Taubman Company had a process of regular reviews, and that defendant had a performance evaluation system. Plaintiff next met with Robert Larson, defendant’s chief executive officer. Plaintiff related some of the same concerns to Larson. Larson assured plaintiff that there was a system for employee evaluation and that such a system would apply to him. Plaintiff last met with Robert Taubman, defendant’s chief of operations. Taubman assured plaintiff that employees were reviewed and only if they were not performing would they be discharged. Plaintiff accepted the position with the Taubman Company in August 1985. Defendant claims that the employment application sets forth the company’s policy that all employment is at will. However, plaintiff asserts that he never received or saw the document, and the document is not signed by plaintiff. Approximately eight months after plaintiff began working with defendant, in March 1986, defendant distributed to all employees, including plaintiff, a memorandum stating that all employment was strictly at will. Plaintiff did not sign the acknowledgment form that accompanied the memorandum, but he does not deny receiving the memorandum. During his tenure with defendant, plaintiff never received a formal evaluation. When he questioned Poissant about this, he was told not to worry and that he would be reviewed the next time. Plaintiff also received a letter from Larson in December 1985 telling him that he had been selected as a key manager to participate in an incentive compensation program, and he received a similar letter and bonus the following year. On February 10, 1987, plaintiffs employment was terminated without prior notice. When plaintiff inquired why, he was told that "things weren’t working out.” There is some indication that an employee whom plaintiff had supervised, Steve Eder, was very unhappy with plaintiff’s presence and was very critical of plaintiff. Apparently, Eder had applied for the same position as plaintiff, but obviously was not chosen for the job. Eder complained to Poissant regarding plaintiffs management style. Defendant claims that plaintiff was terminated primarily because of a difference in management philosophies. Several months after plaintiffs termination, defendant hired Cathleen Knight, a thirty-year-old, to assist Poissant in some of his duties. Plaintiff concedes that his actual position was not filled but that his responsibilities were reorganized. Plaintiff filed his cause of action alleging wrongful discharge, age discrimination, and promissory estoppel. Plaintiffs wife, Kay Barnell, filed a claim of loss of consortium, a derivative action. Defendant moved for summary disposition of all claims, arguing that plaintiff had failed to create a material factual dispute. The trial court agreed and granted summary disposition to defendant pursuant to MCR 2.116(0(10). ii A Plaintiff’s first issue on appeal relates to his wrongful discharge claim. Plaintiff argues that the trial court erred in granting summary disposition because there is a material factual dispute regarding the existence of a just-cause contract. A motion for summary disposition pursuant to MCR 2.116(C) (10) may be granted when, except with regard to the amount of damages, there is no genuine issue concerning any material fact and the moving party is entitled to judgment as a matter of law. Such a motion tests the factual basis of the claim. A court reviewing the motion must consider the pleadings, affidavits, depositions, admissions, and any other documentary evidence. Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993). The party opposing the motion has the burden of showing that a genuine issue of material fact exists. Giving the benefit of reasonable doubt to the nonmovant, the trial court determines whether a record might be developed that would leave open an issue upon which reasonable minds might differ. The court may not make factual findings or weigh credibility in deciding a motion for summary disposition. Featherly v Teledyne Industries, Inc, 194 Mich App 352, 357; 486 NW2d 361 (1992). This Court examines the facts of this case in a light most favorable to plaintiff. Radtke, supra. Accordingly, our review of a motion for summary disposition is de novo. B We must first determine whether the oral assurances given to plaintiff are sufficient to create an employment contract terminable only for just cause. Employment contracts for an indefinite duration are presumptively terminable at the will of either party. Lynas v Maxwell Farms, 279 Mich 684, 687; 273 NW 315 (1937). To overcome the presumption of employment at will, a party must present sufficient proof either of a contractual provision for employment for a definite term or of a provision forbidding discharge in the absence of just cause. Rowe v Montgomery Ward & Co, Inc, 437 Mich 627, 636; 473 NW2d 268 (1991). There are two alternative theories that may support a claim of wrongful discharge. The first theory is grounded in contract principles. The contract theory is shown by the existence of an express agreement, oral or written. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 598; 292 NW2d 880 (1980). The second theory is termed the legitimate expectations theory and is based on the employee’s legitimate expectations of continued employment absent just cause for termination arising out of the employer’s policies and procedures. Id. In the instant case, we are only concerned with whether plaintiff has proven the existence of an express agreement based mainly on the oral assurances given him during the preemployment stages. In Rowe, supra at 645, our Supreme Court made clear that "oral statements of job security must be clear and unequivocal to overcome the presumption of employment at will.” When analyzing oral statements for contractual implications, the meaning that reasonable persons might have given the language under the circumstances must be determined. Rowe, supra at 640. We believe, on the basis of the factors set forth in Rowe, that plaintiff has alleged sufficient objective evidence to permit a reasonable juror to find that a reasonable promisee would interpret the statements made by Poissant, Larson, and Taubman as a promise of termination only for just cause. Rood v General Dynamics Corp, 444 Mich 107, 119; 507 NW2d 591 (1993). Taken in a light most favorable to plaintiff, the evidence establishes that plaintiff engaged in preemployment negotiations regarding job security. Plaintiff was the vice president of finance at Rapistan before being contacted by an employment search agency. Although he was not looking for a new job, he agreed to meet with Poissant. At the meeting with Poissant, he specifically inquired about job security because the position was new, and he inquired about the stability of the Taubman Company. He made known to Poissant that he did not want to be in an environment of "summary dismissals,” as was the case with some employees at Rapistan, although his employment had not been terminated by Rapistan. Poissant assured plaintiff that the environment was not one where he needed to be concerned with summary dismissal. Poissant assured him that defendant offered the same kind of job security that he had at Rapistan, that he would not be dismissed without cause, and that defendant had a performance evaluation system or regular reviews. Poissant informed plaintiff that the performance evaluation system normally occurred once a year and that employees were rewarded or dismissed on the basis of their performance utilizing that system. Plaintiff expressed his same concerns to Larson, and Larson also assured plaintiff that there was a system of employee evaluation used for everyone in the company. Robert Taubman further assured plaintiff that employees were reviewed and only if they were not performing would they be discharged. Therefore, plaintiff specifically engaged in preemployment negotiations regarding job security and the parties discussed job security in the sense of requiring just cause for plaintiff’s termination. Rowe, supra at 643; Rood, supra at 120. Further, plaintiff was applying for the singular executive position of vice president of financial services. Such a position is similar to that in Toussaint and unlike the "one of many departmental salespersons” as in Rowe. Because plaintiff was leaving a well-paid, executive position at Rapistan, it is reasonable to conclude that job security would be important to him. Also, in the instant case, plaintiff was given few, if any, documents at the preemployment stage. Indeed, the only document referred to by both parties is the employment application form. However, the acknowledgment of his employment being at will is unsigned and plaintiff claims that he never received or saw the document. We find that the oral assurances assertedly made by Poissant, Larson, and Taubman in the preemployment negotiation stage were sufficient to create an express agreement for just-cause employment. Coupled with the fact of the uniqueness of the position and the lack of any handbooks, documents, or other material given to plaintiff suggesting employment at will, we find that plaintiff has alleged sufficient evidence from which reasonable minds could find that a reasonable promisee would interpret the statements as a promise forbidding termination absent just cause. c Having concluded that the oral statements formed an express agreement for just-cause employment, we must next determine if the employer could change unilaterally the nature of the employment relationship with the memorandum sent in March of 1986 providing for employment at will. Plaintiff does not deny receiving the memorandum, but, he did not sign an acknowledgment form. In In re Certified Question, 432 Mich 438, 441; 443 NW2d 112 (1989), our Supreme Court held that a company’s written policy statements, which created legitimate expectations in the employee that he would be discharged for just cause only, could be unilaterally modified provided that the employer gives the affected employees reasonable notice of the policy change. However, the instant case is not premised on the legitimate expectations theory of creation of an employment contract providing for discharge for cause only. Rather, this case involves an express agreement that discharge will be only for cause. In Rowe, supra at 650-651, the Supreme Court found the fact that the plaintiff did not sign the disclaimers that employment was at will to be not determinative, because the plaintiff did not have an express contract providing that discharge would be only for cause. The Court made clear that if a plaintiff has a prior express contract providing that discharge will be only for cause, then the plaintiff’s assent is required to modify the agreement. Rowe, supra at 651. Therefore, the fact that plaintiff did not sign the acknowledgment form in this case is determinative. By not signing the acknowledgment form, plaintiff evidenced an intent not to assent to the modification of the express agreement that discharge would be only for cause. Further, there are no other acts of the parties, including written and spoken words, that indicate that plaintiff assented to modify the express agreement. Farrell v Automobile Club of Michigan (On Remand), 187 Mich App 220, 228; 466 NW2d 298 (1991); Scholz v Montgomery Ward & Co, Inc, 437 Mich 83, 90-93; 468 NW2d 845 (1991). Accordingly, we hold that the trial court erred in granting defendant summary disposition with regard to the wrongful discharge claim. Plaintiff has alleged sufficient facts to give rise to a question for a trier of fact whether there was an express agreement that his employment would be terminated only for just cause. Further, because plaintiff did not assent to the modification of the express contract, the memorandum providing that all employment was at will did not change the nature of the employment contract. iii Plaintiff next argues that the trial court erred in granting summary disposition with regard to his age discrimination claim. Plaintiff’s claim of age discrimination is premised on the provisions of the Civil Rights Act, which prohibits discrimination on the basis of age. MCL 37.2202(1)(a); MSA 3.548(202)(1)(a). The burden of proof in an age discrimination case is allocated as follows: (1) the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination; (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. Featherly, supra at 358. A prima facie case of age discrimination can be made by proving either intentional discrimination or disparate treatment. Wolff v Automobile Club of Michigan, 194 Mich App 6, 11; 486 NW2d 75 (1992). To establish a prima facie case of age discrimination under the intentional discrimination theory, plaintiff must show that (1) he was a member of a protected class, (2) he was discharged, (3) he was qualified for the position, and (4) he was replaced by a younger person. Matras v Amoco Oil Co, 424 Mich 675, 683; 385 NW2d 586 (1986). In proving disparate treatment, 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. Wolff, supra at 11. Age need not be the only reason or main reason for discharge, but it must be one of the reasons that made a difference in determining whether to discharge a person. Therefore, the question is whether age

Michael Carr vs. Transgas, Inc. No. 92-P-976. Middlesex. September 8, 1993. December 6, 1993. Present: Brown. Fine. & Laurence. JJ. Contract, Collective bargaining contract, Arbitration. Arbitration, Collective bargaining, Authority of arbitrator. Employment, Discrimination. Handicapped Persons. A former employee was not precluded by reason of a labor arbitration decision from bringing an action under G. L. c. 151B, § 4(16), against his former employer alleging handicap discrimination, where the arbitrator lacked authority under the applicable collective bargaining agreement to determine whether the employee was handicapped within the meaning of G. L. c. 252, § 75B. [583-585] Civil action commenced in the Superior Court Department on April 10, 1991. The case was heard by George A. O’Toole, Jr., J., on a motion for summary judgment. John D. Burke for the plaintiff. Gordon P. Katz (Charles A. Cook with him) for the defendant. Brown, J. This is an appeal from a decision by a judge of the Superior Court granting summary judgment to the defendant, Transgas, Inc. (Transgas). On appeal, the plaintiff, Michael Carr, claims that the judge erred in concluding that the decision of an arbitrator precluded his handicap discrimination claim brought pursuant to G. L. c. 15IB, § 4(16). As we are in agreement with the plaintiff, we reverse. Transgas, a Massachusetts liquid gas hauler, employed Carr as a truck driver from August 3, 1981, to April 6, 1990. Carr alleged that on January 25, 1990, he (for the third time) injured his shoulder while operating a truck without power steering. He notified Transgas of the injury. On April 4, 1990, Carr was again assigned a truck without power steering, although, he alleges, trucks with power steering were available. He attempted to operate the vehicle but later returned it to the terminal, claiming that he was unable to operate a truck that lacked power steering because of his shoulder injury. Two days later, Carr was discharged for refusing to drive the truck assigned to him on April 4. Through his union, Carr filed a grievance against Trans-gas, claiming unjust discharge because he was handicapped under G. L. c. 152, § 75B. In accordance with the collective bargaining agreement between the union and the company, the dispute went to arbitration. The arbitrator concluded that “there was just cause to discharge him in April 1990.” The arbitrator also found that the evidence did not support Carr’s claim that he suffered a work-related injury which would qualify as a handicap under the law. She ruled, in addition, that, even if such a handicap were established, it was not clear that the law regarding handicap discrimination could be applied here. Unsatisfied with the arbitrator’s decision, Carr filed an action in Superior Court alleging handicap discrimination pursuant to G. L. c. 15IB, § 4(16). Transgas moved to dismiss the complaint as precluded by the earlier arbitration. In allowing the motion the judge ruled that “the questions of whether Carr had sustained a work-related injury and whether Transgas fired him because of that injury (or ‘handicap’) were distinctly in issue and were directly determined by the arbitrator.” This was error. See and compare Bailey v. Metropolitan Property & Liab. Ins. Co., 24 Mass. App. Ct. 34, 36-38 (1987). Although in other circumstances an arbitration decision may be preclusive, an employee’s prior submission of a claim of racial discrimination to final arbitration under the nondiscrimination clause of a collective bargaining agreement does not foreclose the employee’s statutory right under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (1988), to a trial de novo in Federal court. Alexander v. Gardner-Denver Co. (Alexander), 415 U.S. 36, 59-60 (1974). “[I]n general, submission of a [racial discrimination] claim to one forum does not preclude a later submission to another.” Id. at 47-48. In Alexander the Court emphasized that an employee’s contractual rights under a collective bargaiijing agreement are distinct from the employee’s independent statutory rights under Title VII. “The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence.” Id. at 49-50. See the discussion in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 35 (1991), of the distinctions between the line of cases holding that compulsory arbitration of statutory claims under an agreement to arbitrate all claims may be appropriate and preclusive and the Alexander line of cases, which hold that prior submission of a contract-based claim to arbitration does not bar subsequent de novo review of a statutory claim by a court. The Alexander Court also determined that, because such rights are personal, or individual, in nature, “an employee’s rights under Title VII are not susceptible of prospective waiver.” Id. at 51-52. Applying Alexander to an employment discrimination case brought pursuant to G. L. c. 151B, the Supreme Judicial Court in School Comm. of Brockton v. Massachusetts Commn. Against Discrimination, 377 Mass. 392, 399 (1979), stated: “General Laws c. 151B, § 4, concerns not collective processes, but rather each individual’s right to equal employment opportunities. . . . Rights of this kind, which are of a personal, and not merely economic, nature are beyond a labor union’s ability to bargain away.” See also Rooney v. Yarmouth, 410 Mass. 485, 490-491 (1991), and cases cited. In the present case, the labor arbitrator lacked the authority to decide Carr’s statutory handicap discrimination claim. The issue before the arbitrator was whether, under the terms of the collective bargaining agreement, Transgas had “just cause” to terminate Carr. Nowhere in the agreement was there a provision proscribing handicap discrimination, and there was no other agreement to arbitrate the statutory claim of handicap discrimination. See Rooney v. Yarmouth, 410 Mass. at 491 (“employees need not submit to arbitration disputes based on independent statutory rights that are not addressed and encompassed by the collective bargaining agreement”). Compare Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) (a party can be compelled to arbitrate statutory age discrimination claims covered by an arbitration agreement). Since the arbitrator was confined to interpreting the collective bargaining agreement and the agreement in no way incorporated the statutory claim of handicap discrimination, the arbitrator could not properly have determined that Carr was not handicapped under the provisions of G. L. c. 152, § 75B. See Gilmer, supra at 34-35. In fact, the arbitrator acknowledged her lack of authority to determine whether Carr suffered from a qualifying handicap under G. L. c. 152, § 75B. Noting that the collective bargaining agreement specifically included discrimination based on “race, color, creed, sex, national origin or union membership,” but did not mention “handicap,” the arbitrator wrote in her opinion, “[B]y its specific omission, it appears that the parties intended to exclude the application of external law as it relates to handicap discrimination from the terms of the collective bargaining agreement. Since the arbitrator is limited by the stipulated issue to interpreting the contract, and the contract appears specifically to exclude the law as it relates to handicap discrimination, the Union’s argument concerning G. L. c. 152, § 75B, would fail, even if the Grievant had established a work-related injury.” (Emphasis supplied.) Because there was no agreement to arbitrate handicap discrimination claims in the collective bargaining agreement between Carr’s union and Transgas, the arbitrator lacked the authority to decide whether Transgas discriminated against Carr on the basis of a handicap. Therefore, the arbitrator’s finding that Carr “was not unable to perform his duties by reason of a handicap or impairment” when he refused to drive equipment assigned to him does not preclude Carr’s handicap discrimination action brought in Superior Court pursuant to G. L. c. 151B, § 4(16). We accordingly reverse the judgment dismissing the plaintiff’s complaint. See School Comm. of Brockton v. Massachusetts Commn. Against Discrimination, 377 Mass. at 399, and cases cited therein. Judgment reversed. Carr claimed that he had sustained two prior shoulder injuries in a similar manner. “Any employee who has sustained a work-related injury and is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of such job with reasonable accommodations, shall be deemed to be a qualified handicapped person under the provisions of [c. 151B].” G. L. c. 152, § 75B(1), as inserted by St. 1985, c. 572, § 58. Also, compare Cancellier v. Federated Dept. Stores, 672 F.2d 1312, 1318 (9th Cir.), cert. denied, 459 U.S. 859 (1982) (Federal Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 [1988] does not preempt State claim for breach of implied covenant of good faith and fair dealing), with Dependahl v. Falstaff Brewing Corp., 653 F.2d 1208, 1214-1216 (8th Cir.), cert. denied, 454 U.S. 968 (1981) (Employee Retirement Income Security Act, 29 U.S.C. §§1001 et seq. [1988] [ERISA], held to preempt State law claims for tortious interference with employee benefit plans). In the Brockton case, the school committee argued that its policy of denying sick leave benefits for pregnancy-related disability was shielded by the collective bargaining agreement and other statutory provisions regarding maternity leaves. Deciding as we do, we have no occasion to treat the defendant’s argument, even if not raised for the first time on appeal, that the arbitrator determined that Transgas had just cause to dismiss Carr on the basis that, prior to his earlier reinstatement, he had agreed that any future refusal to operate assigned equipment would constitute just cause for his dismissal.