Discrimination Cases

Jill Ramsdell vs. Western Massachusetts Bus Lines, Inc., & others. Hampshire. May 6, 1993. June 30, 1993. Present: Liacos. CJ.. Wilkins. Abrams. Nolan. & Lynch. JJ Anti-Discrimination Law, Sex, Prima facie case, Burden of proof. Massachusetts Commission Against Discrimination. Employment, Discrimination, Sexual harassment. In a proceeding before the Massachusetts Commission Against Discrimination in which a hearing commissioner found that an employee, who had alleged sexual harassment by her employer, failed to show that the employer’s conduct was intentionally or in effect hostile, intimidating, or humiliating to the employee in a way which affected her performance or the conditions of her employment, there was substantial evidence to support the hearing commissioner’s conclusion that the employee had not established a prima facie case of sexual discrimination. [676-679] In a proceeding before the Massachusetts Commission Against Discrimination in which an employer offered nondiscriminatory reasons for failing to promote or to pay equal wages to a female employee, there was substantial evidence to support a hearing commissioner’s conclusion that, absent the employee’s showing that the employer’s reasons were a pretext, the disparate treatment with regard to payment of wages or promotion was not the result of gender-biased discrimination. [679] Civil action commenced in the Superior Court Department on November 21, 1991. The case was heard by John F. Murphy, Jr., J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Richard M. Howland (Jean M. Fielding with him) for the plaintiff. Philip J. Shine for Western Massachusetts Bus Lines, Inc., & others. Jerrold S. Levinsky for Massachusetts Commission Against Discrimination. John Herlihy, Longueil Bus Company, and the Massachusetts Commission Against Discrimination. Nolan, J. The plaintiff, Jill Ramsdell, appeals from a judgment of the Superior Court upholding a decision and order of the Massachusetts Commission Against Discrimination (MCAD) to dismiss her complaint against her employer for alleged sexual discrimination. We transferred the case here on our own motion. We affirm. In her complaint filed in July of 1986, the plaintiff alleges three distinct counts of sexual discrimination: sexual harassment, unequal pay, and denial of a promotion. A hearing commissioner heard the evidence in July of 1988. Two and one-half years later, the commissioner finally issued her decision. The commissioner found no substantial evidence to support the plaintiff’s claims and ordered the charges be dismissed. The plaintiff appealed to the full commission. which affirmed the decision. We begin our discussion by summarizing the facts as found by the hearing commissioner. Jill Ramsdell was hired by Western Massachusetts Bus Lines, Inc., a Massachusetts corporation, in March of 1982. She began working as a charter clerk, processing charter orders and scheduling buses. Ramsdell reported directly to John Herlihy, the president and chief operating officer. The hearing commissioner found the environment “rife with sexually explicit language and sexual innuendos.” Witnesses testified that the language in the office was “rough” and abounding with raw sexual banter. A nude male calendar hung on the wall, and Herlihy’s wife, together with at least one female employee, brought sexually explicit jokes to the office and distributed them freely. Lewd conduct persisted at social gatherings as well. At Herlihy’s fortieth birthday party, the entire staff presented him with a box of “gag” gifts including sexually explicit paraphernalia. The employees contributed to hire a professional belly dancer for a male employee’s birthday. At still another birthday, cakes in the form of a naked male and female were presented respectively to a female employee and to Herlihy. Ramsdell participated each time. At another event, employees, including Ramsdell, constructed for Herlihy a costume dubbed “U.S. Sex Express.” Focusing on Herlihy, the commissioner found that he had repeatedly asked Ramsdell to perform sexual favors and addressed her using sexually explicit language and profanity. Ramsdell responded in kind. These vulgar conversations often occurred in the presence of others. Ramsdell testified that at one point Herlihy chased her and pinned her up against a garage wall. However, because this testimony was contradicted by another eyewitness, the commissioner did not credit Ramsdell’s account. Herlihy also made derogatory references to women in general. Focusing on Ramsdell, the commissioner found that she “invited” or provoked these bawdy exchanges. At least one witness testified that the profanity and vulgarity began with Ramsdell’s arrival. Ramsdell herself admitted to using extremely vulgar and profane language in the workplace and to participating in sexual jokes. For Herlihy’s fortieth birthday, she inscribed the words, “to tickle your fancy,” on a facsimile of male genitals as part of his gag gift. Once, after work, she and two other female employees followed Herlihy into a men’s room and stared at him. More than once she pinched his buttocks and shouted, “Got ‘ya, cutie!” She even grabbed his genitals in the presence of his wife and another employee. On one occasion she yanked down his jogging pants. Ramsdell was promoted to sales manager in 1983. Her promotion broadened her responsibilities. She expressed interest in the general sales manager position. Herlihy, however, hired a male from outside the company to fill that particular position. At this point, Ramsdell filed a complaint alleging sexual discrimination. Prior to that hiring decision, Herlihy himself had filled the position of general sales manager and had removed Ramsdell from some of her supervisory functions due to her poor performance. Her employee evaluations for that period reflected her shortcomings. The commissioner concluded that Herlihy did not offer Ramsdell the promotion because he believed in good faith that she was not qualified. At some point, Ramsdell discovered that her weekly salary was less than that of her male counterpart at the Longueil Bus Company. The commissioner found that the discrepancy was justified by the man’s experience, customer base, and greater responsibilities. She concluded that there was no sexual discrimination involved. The commissioner found that Ramsdell’s distress was not a result of her workplace environment. Although Ramsdell testified that the alleged harassment began right after she started work in 1982, she chose not to file a complaint until four years later. The commissioner found that Ramsdell was “a willing and active participant and often the prov[o]cateur” in creating the atmosphere described above. We shall affirm a decision and order of the MCAD unless the findings' and conclusions are unsupported by substantial •evidence or based on an error of law. G. L. c. 15IB, § 6 (1990 ed.). G. t. c. 30A, § 14 (7) (1990 ed.). College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 170 (1987), and cases cited. Because of our limited role, we “must defer to an administrative agency’s fact-finding role, including its right to draw reasonable inferences from the facts found.” Smith College v. Massachusetts Comm’n Against Discrimination, 376 Mass. 221, 224 (1978). Credibility is an issue for the commissioner and not for this court. Trustees of Deerfield Academy v. Director of the Div. of Employment Sec., 382 Mass. 26, 31-32 (1980). In this case, we conclude that the MCAD’s decision and order finds substantial support in the evidence and that there was no error of law. 1. Sexual harassment. We held in College-Town, supra at 162, that sexual harassment may constitute a violation of G. L. c. 151B, § 4 (1), which prohibits employment discrimina-tian on the basis of gender. We recognized that “[a] work environment pervaded by harassment or abuse, with the resulting intimidation, humiliation, and stigmatization, poses a formidable barrier to the full participation of an individual in the workplace.” Id. General Laws c. 15IB, § 1 (18) (1990 ed.), defines “sexual harassment” as “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (a) submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions; (b) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment. Discrimination on the basis of sex shall include, but not be limited to, sexual harassment.” There are no allegations that submission to sexual requests or,the like was ever a condition or quid pro quo of Ramsdell’s employment, either explicitly or implicitly; therefore, we shall focus on the definition under § 1 (18) (b). The commissioner found that “there is no credible evidence that the work environment in this situation was hostile, intimidating or humiliating to Ms. Ramsdell, or that it posed any barrier on her part to full participation in the work place.” As a result, the commissioner concluded that Ramsdell had not established a prima facie case of sexual discrimination and dismissed the complaint. After review, we hold that the commissioner’s conclusion was based on substantial evidence and was without error in law. Ramsdell asserted that her work place environment interfered with her job performance and that she found the atmosphere to be offensive, intimidating, or humiliating. The flaw in Ramsdell’s argument is that the commissioner did not credit Ramsdell’s testimony on that issue. Other witnesses testified that the atmosphere was “light hearted” and that the remarks were delivered in a “joking manner.” The commissioner found that Ramsdell did not take offense nor did she decline to participate in the contact described above. Perhaps the most telling evidence is that the commissioner found that Herlihy and Ramsdell frequently traveled together on one-day business trips without incident. We hold, therefore, that the commissioner’s conclusions were based on substantial evidence. The plaintiff claims that the MCAD’s decision and order is contrary to our decision in College-Town, supra at 162. We disagree. In College-Town, the hearing commissioner concluded that the conduct at issue was unwelcomed by the plaintiff. Id. at 162. Specifically, the commissioner found that the victim in College-Town cried and “felt cheap and degraded” when confronted with her supervisor’s offensive conduct. Id. at 158. Furthermore, the plaintiff in College-Town conveyed her negative reaction to a coworker and reported the activity within months of its onset. Id. at 158-159. By contrast, the commissioner in this case concluded that “there is no credible evidence that Herlihy’s behavior offended or injured-. . . the Complainant.” We do not review the commissioner’s judgment concerning the credibility of witnesses. Trustees of Deerfield Academy, supra at 31-32. Let there be no doubt that we condemn the behavior exhibited here. Indeed, we agree with the commissioner that “under ordinary circumstances, such conduct would most assuredly constitute a violation of G. L. c. 15IB.” Still, an em: ployee who alleges sexual harassment must show that the employer’s conduct was intentionally or in effect hostile, intimidating, or humiliating to the plaintiff in a way which affected her performance or the conditions of her employment. See G. L. c. 15IB, § 1 (18). See also College-Town, supra at 162. Simply put, Ramsdell did not prove her case to the commissioner. 2. Unfair treatment. We have stated that discriminatory motives behind the failure to promote or to pay equal wages can be inferred from disparate treatment of the sexes. See Smith College, supra at 227. However, once the employer offers nondiscriminatory reasons for the disparate treatment, the burden shifts back to the plaintiff to show that the employer’s reasons are merely pretext. Id. at 229. In this case, we agree with the commissioner that the plaintiff made no such showing. Ramsdell points to a pay discrepancy between herself and a man employed in the same position with the Longueil Bus Company, as evidence of gender discrimination. On the other hand, the defendants presented evidence which the commissioner found credible that the minor discrepancy ($10 per week) was justified by his greater experience, broader range of duties, and larger customer base. Therefore, substantial evidence supports the commissioner’s conclusion that the disparate treatment with regard to pay was'not the result of sexual discrimination. The plaintiff’s claim with regard to the promotion fails in similar fashion. Although Herlihy did hire a man to fill a position which Ramsdell wanted, there is no evidence that he did so for discriminatory reasons. The defendants presented evidence before the commissioner that Ramsdell was not qualified for the position, and Ramsdell offered no evidence indicating that these reasons were mere pretext. In summary, we hold that the commissioner’s conclusions were supported by substantial evidence and without error of law. Judgment affirmed. A person aggrieved by an order of the MCAD may obtain judicial review in the Superior Court pursuant to G. L. c. 151B, § 6 (1990 ed.). Although the commissioner found that some of Herlihy’s conduct was uninvited, substantial evidence supports her conclusion that these incidents were not hostile, intimidating, or humiliating to Ramsdell. Our opinion in Gnerre v. Massachusetts Comm’n Against Discrimination, 402 Mass. 502, 507 (1988), is not to the contrary. In Gnerre, we stated that, in determining whether her landlord’s conduct made the plaintiff’s tenancy “significantly less desirable” for the purposes of G. L. c. 151B, § 4 (6), “we view the evidence of harassment from the view of a reasonable person in the plaintiff’s position.” Id. If participation were an implicit condition of employment, then it would constitute discrimination under c. 15IB, §§ 1 (18) (a) and 4 (1). However, Ramsdell made no such allegation here.

RADTKE v EVERETT Docket No. 92582. Argued January 12, 1993 (Calendar No. 4). Decided June 2, 1993. Tamara J. Radtke brought an action in the Grand Traverse Circuit Court against Stuart B. Everett, D.V.M., individually, and Clarke-Everett Dog and Cat Hospital, P.C., alleging sexual harassment by creating a hostile work environment in violation of the Michigan Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., constructive discharge on the basis of sex, and assault and battery. The court, William R. Brown, J., granted summary disposition for the defendants, finding that because the hostile environment claim was based upon a single incident of sexual harassment, as a matter of law, it did not rise to the level of severity and persistence to permit recovery, dismissed the constructive discharge count because it was dependent upon finding a hostile work environment, and found that the exclusive remedy provision of the Workers’ Disability Compensation Act, MCL 418.131; MSA 17.237(131), barred the assault and battery claim because of the failure to allege an intent to harm. The Court of Appeals, Neff, P.J., and Maher and Hood, JJ., reversed the civil rights claim, finding that under the reasonable woman standard a single incident could be sufficiently severe to support a finding of a hostile work environment, and concluded that, in this case, the totality of circumstances was sufficient to permit trial, reversed the dismissal of the constructive discharge claim, and reversed the assault and battery claim because the defendant was named individually as the perpetrator, making the wdca inapplicable (Docket No. 121611). The defendants appeal. In an opinion by Justice Riley, joined by Chief Justice Cavanagh, and Justices Levin, Brickley, Boyle, and Mallett, the Supreme Court held: References Am Jur 2d, Civil Rights §§ 154 et seq; Workers’ Compensation §§ 75, 76, 79. Workers’ compensation law as precluding employee’s suit against employer for third person’s criminal attack. 49 ALR4th 926. When is work environment intimidating, hostile, or offensive, so as to constitute sexual harassment in violation of Title VII of Civil Rights Act of 1964, as amended (42 USCS sec. 2000e et seq). 78 ALR Fed 252. An objective reasonableness standard must be used in determining whether a hostile work environment exists under the Civil Rights Act. A hostile work environment claim is actionable only when the work environment is so tainted that, in the totality of the circumstances, a reasonable person in the plaintiff’s position would have perceived the conduct at issue as substantially interfering with employment or having the purpose or effect of creating an intimidating, hostile, or offensive employment environment. Although a single incident of sexual harassment generally is insufficient to constitute a hostile work environment, it may be sufficient if severe harassment is perpetrated by an employer in a closely knit working environment. The Court of Appeals improperly reached the issue whether the exclusive remedy provision of the Workers’ Disability Compensation Act bars an alternative claim of assault and battery when the claim does not allege that the defendant intended to harm the plaintiff. 1. The Michigan Civil Rights Act is aimed at the prejudices and biases borne against persons because of membership in certain classes, and seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases. An employer may not discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment because of sex. Under the act, sexual discrimination is defined broadly to include sexual harassment. 2. To establish a prima facie case of a hostile work environment, an employee must have belonged to a protected group, must have been subjected to communication or conduct on the basis of sex, and must have been subjected to unwelcome sexual conduct or communication that was intended to or in fact did substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment, and the employer must be liable under a theory of respondeat superior. Whether a hostile work environment existed is to be determined by whether a reasonable person, in the totality of the circumstances, would have perceived the conduct at issue as substantially interfering with employment or having the purpose or effect of creating an intimidating, hostile, or offensive employment environment. 3. The Civil Rights Act imposes liability whenever sexual harassment creates a hostile work environment, and a single incident may create such an environment. However, a plaintiff usually will be required to prove that the employer failed to rectify a problem after adequate notice and that a continuous or periodic problem existed or a repetition of an episode was likely to occur. 4. In this case, the plaintiff alleged a prima facie case of a hostile work environment. She is a member of a protected class (persons discriminated against on the basis of sex), was subjected to harassment on the basis of sex, and was subjected to unwelcome sexual conduct that a reasonable person would have perceived created a hostile work environment. In addition, because the employer was the perpetrator, the single incident was sufficient to satisfy a theory of respondeat superior and to permit a jury to determine whether the conduct was sufficient to have created a hostile work environment. 5. Because the plaintiff did not appeal the trial court’s application of the wdca to her claim in the Court of Appeals, and because she never requested permission to amend her complaint in the trial court, the issue whether the exclusive remedy provision of the wdca bars an alternative claim of assault and battery where the plaintiff fails to allege that the defendant intended to inflict an injury upon the plaintiff was not preserved for appeal. Affirmed in part and reversed in part. Justice Griffin, dissenting in part, stated that the cause of action for discrimination because of sex contemplated under subsection 103(h)(iii) of the Civil Rights Act requires more than the brief single incident alleged in-this case. For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment. An isolated sexual advance, without more, does not satisfy the requirement. The employer status of the individual defendant or the closely knit working environment in this case did not make the particular conduct more severe or pervasive. Although a separate claim of substantial interference with employment might have been asserted under subsection 103(h)(iii), because the plaintiff resigned rather than return to work, such a claim could be premised only on a theory of constructive discharge, an assertion severely undercut by the plaintiff’s deposition testimony. The trial court correctly ruled that the acts attributed to the defendant did not rise to the level of severity and persistence that would permit recovery under the act. 189 Mich App 346; 471 NW2d 660 (1991) affirmed in part and reversed in part. 1. Civil Rights — Sexual Harassment — Hostile Work Environment — Reasonableness Standard — Single Incident. An objective reasonableness standard must be used in determining whether a hostile work environment exists under the Civil Rights Act; a hostile work environment claim is actionable only when the work environment is so tainted, in the totality of the circumstances, that a reasonable person in the plaintiff’s position would have perceived the conduct at issue as substantially interfering with employment or having the purpose or effect of creating an intimidating, hostile, or offensive employment environment; although a single incident of sexual harassment generally is insufficient to constitute a hostile work environment, it may bé sufficient if severe harassment is perpetrated by an employer in a closely knit working environment (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 2. Workers’ Compensation — Assault and Battery — Exclusive Remedy — Failure to Allege Intent to Harm. The exclusive remedy provision of the Workers’ Disability Compensation Act bars an alternative claim of assault and battery when the claim does not allege that the defendant intended to harm the plaintiff (MCL 418.131; MSA 17.237[131]). Smith, Haughey, Rice & Roegge (by Mark D. Williams) for the plaintiff. Dykema, Gossett (by Seth M. Lloyd and Nancy L. Niemela) and Cunningham, Davison, Beeby, Rogers & Alward (by William M. Davison) for the defendants. Amici Curiae: Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Robert L. Willis, Jr., and Dianne Rubin, Assistant Attorneys General, for Michigan Civil Rights Commission and Michigan Department of Civil Rights. Clark, Klein & Beaumont (by Dwight H. Vincent, J. Walker Henry, Rachelle G. Silberberg, and Patricia Bordman) for Michigan Manufacturers Association. Miller, Canñeld, Paddock & Stone (by Diane M. Soubly and John H. Willems) for American Society of Employers, Motor Vehicle Manufacturers Association, Greater Detroit Chamber of Commerce, and Michigan Chamber of Commerce. Chiamp & Associates, P.C. (by Charlene M. Snow), for Women Lawyers Association of Michigan. Julie Kunce Field and Suellyn Scarnecchia for University of Michigan Women and the Law Clinic and Women Lawyers Association of Michigan. Stark & Gordon (by Sheldon J. Stark) for Michigan Trial Lawyers Association. Riley, J. At issue are the elements of a prima facie case of a hostile work environment under the Michigan Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. We hold that a hostile work environment claim is actionable when the work environment is so tainted that, in the totality of the circumstances, a reasonable person in the plaintiff’s position would have perceived the conduct at issue as substantially interfering with employment or having the purpose or effect of creating an intimidating, hostile, or offensive employment environment. Additionally, we hold that although a single incident of sexual harassment is generally insufficient to constitute a hostile work environment, a single incident may be sufficient if severe harassment is perpetrated by an employer in a closely knit working environment. We also hold that the Court of Appeals improperly reached the issue whether the exclusive remedy provision of the Workers’ Disability Compensation Act, MCL 418.131; MSA 17.237(131), bars an alternative claim of assault and battery when the claim does not allege that the defendant intended to harm the plaintiff. Thus, we affirm the opinion of the Court of Appeals that plaintiff has alleged a prima facie case of a hostile work environment, albeit on different grounds, and we reverse the opinion of the Court of Appeals and reinstate the trial court’s order granting summary disposition regarding the assault and battery claim. i Plaintiff’s sexual harassment, constructive discharge, and assault and battery claims were summarily dismissed by the trial court pursuant to MCR 2.116(C)(8) and (10). The Court of Appeals reversed. Accordingly, we begin our analysis with an examination of the applicable standards for granting summary disposition. A MCR 2.116(C)(8) permits summary disposition when the "opposing party has failed to state a claim on which relief can be granted.” MCR 2.116(C)(8), therefore, determines whether the opposing party’s pleadings allege a prima facie case. Marrocco v Randlett, 431 Mich 700, 707; 433 NW2d 68 (1988). Hence, the court "does not act as a factfinder,” but "accepts as true all well-pleaded facts.” Abel v Eli Lilly & Co, 418 Mich 311, 324; 343 NW2d 164 (1984). Only if the allegations fail to state a legal claim will summary disposition pursuant to MCR 2.116(C)(8) be valid. Macenas v Village of Michiana, 433 Mich 380, 387; 446 NW2d 102 (1989). While MCR 2.116(C)(8) tests the legal sufficiency of the pleadings, MCR 2.116(0(10) tests the factual basis underlying a plaintiff’s claim. Velmer v Baraga Area Schools, 430 Mich 385, 389-390; 424 NW2d 770 (1988). MCR 2.116(0(10) permits summary disposition when "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.” A court reviewing such a motion, therefore, must consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the party opposing the motion, and grant the benefit of any reasonable doubt to the opposing party. Stevens v McLouth Steel, 433 Mich 365, 370; 446 NW2d 95 (1989). Accordingly, this Court examines and recites the facts in the instant case in the light most favorable to plaintiff. B Plaintiff Tamara Radtke was employed as an unregistered veterinary technician for defendant Clarke-Everett Dog and Cat Hospital, P.C., beginning in January, 1984. The hospital is owned in equal shares by defendant Dr. Stuart Everett and Dr. James Clarke. As of May, 1988, her duties included supervising staff, assisting the doctors during surgery, scheduling, and performing minor janitorial tasks. She assisted each doctor nearly equally, and possessed a "good [working] relationship” with each. There were no incidents of sexual harassment before the date in issue. As commonly occurred, on Sunday, May 29, 1988, plaintiff was working alone with defendant Everett to provide weekend emergency veterinarian services. In her deposition plaintiff stated that after a lengthy day of work, she suggested that they take a break. Everett agreed. Plaintiff proceeded to the hospital’s lounge and poured them each a cup of coffee. She then relaxed on the couch, with her back leaning into its corner and her legs on the sofa. After finishing a few phone calls, Everett joined her and proceeded to sit next to her. Plaintiff, believing that Everett’s behavior was inappropriate, attempted to leave the couch "the minute he sat down.” Everett, however, physically restrained her by firmly placing his arm around her neck and holding her down. Plaintiff, both frightened and surprised by Everett’s behavior, described what followed during her deposition: I tried to pull my head up three times, and, on the third time, I realized he was not going to let me go. And then finally, when his arm relaxed, I sprung forward, and I told him, "You don’t want to do this.” Although plaintiff forcefully escaped his grip, Everett began to flatter her. Plaintiff rebuffed his newest advances by stating, "You don’t want to do this. I don’t want to do this. You’re married. I’m married.” Everett responded by caressing plaintiff’s neck. Again she protested, but he simply ignored her pleas. Indeed, he then attempted to kiss her by grabbing her neck and pushing his face towards hers. Plaintiff successfully pushed his face away, left the couch, and walked across the room. Plaintiff then stated that she wished to smoke outside, and encouraged Everett to accompany her in public, which he did. The working day was finished without incident. Plaintiff further stated when deposed that she did not know or could not know whether defendant was trying to hurt her, but she stated that he "would have or could have.” She acknowledged that he might have mistakenly believed she wished to kiss him and that he did not condition the terms or conditions of her employment upon the acceptance of his advances. That evening plaintiff discussed the incident with her husband, and she tendered her resignation, along with a list of requests, to Everett’s office the next morning. The following day, Dr. Clarke and plaintiff cursorily discussed the incident. Plaintiff also began psychological counseling that day. Although plaintiff suffered no physical injuries, she alleges severe emotional pain stemming from the incident. C In December, 1988, plaintiff filed a four-count civil suit against Everett and the hospital in the Grand Traverse Circuit Court. Plaintiff alleged that she was (1) sexually harassed in violation of the Civil Rights Act, (2) constructively discharged on the basis of sex, (3) the victim of assault and battery, and (4) denied access to her personnel files in violation of the Employee Right to Know Act, MCL 423.501 et seq.; MSA 17.62(1) et seq. The crux of plaintiff’s case is that Everett’s actions constituted sexual harassment because they created a hostile work environment thereby forcing her resignation. The Employee Right to Know Act count was dismissed by stipulation. In August, 1989, the trial court granted summary disposition regarding the remaining counts pursuant to MCR 2.116(C)(8) and (10). After reviewing plaintiff’s complaint and deposition, the court ruled that she. had failed to state a violation of the Civil Rights Act because her hostile environment claim was based upon a single incident of sexual harassment, which, as a matter of law, did "not rise to the level of severity and persistence which would permit recovery . . . .” Likewise, the court dismissed the constructive discharge count because it was dependent upon finding a hostile work environment. The court also ruled that the exclusive remedy provision of the Workers’ Disability Compensation Act, MCL 418.131; MSA 17.237(131), barred plaintiff’s claim of assault and battery because she failed to allege that Everett intended to harm her. The Court of Appeals reversed on all counts. The Court, sua sponte, rejected its prior utilization of a reasonable person standard to determine whether a hostile work environment exists, and ruled: [A] female plaintiff states an actionable claim for sex discrimination caused by hostile-environment sexual harassment under the state Civil Rights Act where she alleges conduct of a sexual nature that a reasonable woman would consider to be sufficiently severe or pervasive to alter the conditions of employment by substantially interfering with her employment or by creating an intimidating, hostile, or offensive employment environment. [189 Mich App 346, 355; 471 NW2d 660 (1991).] The Court then found that under the reasonable woman standard, a "single incident could be sufficiently severe under some circumstances to support a finding” of a hostile work environment. Id. at 356. The Court concluded that in the instant case, the totality of circumstances were sufficient to permit a trial regarding the issue of a hostile work environment. Id. at 356-357. Accordingly, the Court also reversed the trial court’s dismissal of the constructive discharge claim. Id. at 357. Furthermore, the Court reversed the dismissal of the assault and battery claim, holding that because it named Everett individually, plaintiff was not suing her employer but her perpetrator. Id. at 357-358. The Court reasoned, "[t]he wdca therefore is inapplicable to this claim and does not operate to bar plaintiff’s recovery.” Id. at 358. Leave to appeal was granted by this Court. D Defendants, joined by amici curiae, assert before this Court that (1) the reasonable person standard should be utilized to determine whether a hostile work environment existed, (2) a single incident is insufficient to establish a prima facie case of a hostile work environment, (3) constructive discharge did not occur, and (4) the wdca bars the alternative counts of assault and battery. Plaintiff, and other amici curiae, urge the contrary. Two amici curiae urge the elimination of any reasonableness standard, and at least one urges the adoption of a "reasonable victim” standard. n The Civil Rights Act "is aimed at 'the prejudices and biases’ borne against persons because of their membership in a certain class, and seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases.” Miller v C A Muer Corp, 420 Mich 355, 363; 362 NW2d 650 (1984) (citations omitted). Accordingly, the act declares tha

Robert J. Fontaine vs. Ebtec Corporation & another. Hampden. February 3, 1993. May 21, 1993. Present: Liacos. C J.. Abrams. Nolan, O’Connor, & Greaney, JJ. Anti-Discrimination Law, Age, Damages, Termination of employment. Practice, Civil, Judicial discretion, Continuance, Attorney’s fees. Damages, Under anti-discrimination law, Punitive, Attorney’s fees, Interest. Statute, Retroactive application, Construction. Attorney at Law, Compensation. In an age discrimination case, arising from the termination of the plaintiff’s employment, the jury’s verdict finding the employer and its parent corporation liable for discrimination under State and Federal law was supported by the evidence, and the judge correctly denied the defendant’s motion for judgment notwithstanding the verdict. [312-316] In an age discrimination case, the defendants were not entitled to a new trial on the ground that, due to a scheduling conflict, their principal witness’s testimony was presented through a videotaped deposition, where the scheduling of the trial was properly addressed by the judge under Mass. R. Civ. P. 40 (a) and (c). [316-317] In a civil action, this court declined to consider on appeal an argument not raised at trial. [317] Amendments to G. L. c. 151B, § 9, that provide for awards of enhanced damages in age discrimination cases were not applicable retrospectively to a case pending at the time of the amendments’ effective date, or to conduct occurring prior thereto. [318-321] In age discrimination cases, punitive damages are not available as a remedy, inasmuch as G. L. c. 151B, § 9, 4th par., inserted by St. 1990, c. 395, provides, when appropriate, that multiple damages be awarded. [321-322] A plaintiff in an age discrimination case, asserting claims under both State and Federal law, was entitled to “liquidated damages” for violations of the Federal Age Discrimination in Employment Act where he proved that the defendants’ acts were wilful. [322-323] A fair market rate for time reasonably spent preparing and litigating a case is the basic measure of a reasonable attorney’s fee (“lodestar” award) awarded under G. L. c. 151B. [324-326] In a noncomplex age discrimination case, the appropriate attorney’s fee award, calculated by the lodestar method, was adequate, and enhancement of the fee, in the circumstances, was not warranted. [326] In an age discrimination case the plaintiff was entitled to prejudgment interest on the compensatory damages awarded on his State law claim, dating from the commencement of the action [326-327], and postjudgment interest of the liquidated damages awarded on his Federal claim, dating from the date of the jury’s verdict [327-328]. Civil action commenced in the Superior Court Department on March 3, 1988. The case was tried before William H. Welch, J. The Supreme Judicial Court granted a request for direct appellate review. John J. Egan (Maurice M. Cahillane & David G. Cohen with him) for the plaintiff. Richard D. Hayes for the defendants. Stephen S. Ostrach & Emily R. Livingston, for Associated Industries of Massachusetts, amicus curiae, submitted a brief. George P. Napolitano, for Massachusetts Commission Against Discrimination, amicus curiae, submitted a brief. Thermal Scientific, PLC. Greaney, J. In January, 1988, the plaintiff was discharged from his position as vice president of Ebtec Corporation, an American subsidiary of Thermal Scientific, PLC, a British company (defendants). A jury in the Superior Court found for the plaintiff in his ensuing claims that the defendants had violated G. L. c. 15IB, § 4 (IB) (1990 ed.), the Massachusetts statute which prohibits age discrimination, and 29 U.S.C. §§ 621 et seq. (1988), the Federal Age Discrimination in Employment Act (ADEA). The jury concluded, in response to special questions, that the defendants’ violations had been wilful. The jury awarded the plaintiff actual damages for lost wages and benefits ($270,422) and for emotional distress ($80,000), and also assessed punitive damages ($600,000). On the basis of G. L. c. 15IB, § 9, as amended through St. 1990, c. 395, the judge doubled the award of actual damages, and he also awarded $132,323 in attorney’s fees. See G. L. c. 15IB, § 9 (1990 ed.). An amended judgment was entered which awarded the plaintiff $590,844 in actual damages, and $600,000 in punitive damages, and $132,323 in attorney’s fees on his claims under G. L. c. 15IB, and $1 on his claim under the ADEA. Both sides have appealed, and we granted the plaintiff’s application for direct appellate review. In part I of this opinion, we deal with the issues pertaining to liability and a new trial, concluding that the jury’s liability verdict was warranted and that there is no basis for a new trial. In part II of the opinion, we discuss the issues relating to damages. We conclude that amendments to G. L. c. 15IB, § 9, which provide for punitive and multiple damages, should not have been applied retrospectively in this case and, consequently, that the plaintiff is not entitled to recover enhanced damages under State law. We discuss the appropriate measure of damages in an age discrimination case brought pursuant to G. L. c. 15IB. We conclude that the plaintiff is entitled to enhanced damages for lost wages and benefits under the ADEA. In part III of the opinion, we take up the issues relating to attorney’s fees and interest. I. Liability and New Trial Issues. We first discuss the defendants’ assertions that judgment notwithstanding the verdict (n.o.v.) should have entered in their favor or, at the very least, that they are entitled to a new trial. 1. The defendants argue that their motion for judgment n.o.v. should have been allowed because the evidence was insufficient, as matter of law, to warrant a finding by the jury that they had discharged the plaintiff in violation of age discrimination laws. At the time of his discharge, the plaintiff was fifty-one, and, consequently, within the class of persons (over forty years of age) protected by the age discrimination laws. G. L. c. 15IB, § 1 (8) (1990 ed.). The plaintiff presented evidence, which made out a prima facie case that his discharge was discriminatory. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Smith College v. Massachusetts Comm’n Against Discrimination, 376 Mass. 221, 229 (1978); Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 135 n.5 (1976). The defendants presented evidence which would have warranted a finding that the plaintiff was discharged for unsatisfactory job performance. See McKenzie v. Brigham & Women’s Hosp., 405 Mass. 432, 435 (1989); Wheelock College v. Massachusetts Comm’n Against Discrimination, supra at 138. See also Trustees of Forbes Library v. Labor Relations Comm’n, 384 Mass. 559, 565-566 (1981). On the judgment n.o.v. point, therefore, the issue on appeal comes down to whether the evidence considered in the light most favorable to the plaintiff, and with all reasonable inferences drawn in his favor, see Boothby v. Texon, Inc., 414 Mass. 468, 470 (1993), warranted the jury’s finding that the plaintiff’s allegedly poor job performance was merely a pretext for a discharge actually based on concerns about his age. Under the applicable n.o.v. standard, the jury could have found the following. In August, 1980, the plaintiff joined Ebtec, located in Agawam, as manager of the company’s electron beam welding and laser “job shop.” The company was at that time a closely held corporation, which was owned by two individuals. Under the plaintiff’s management, the shop acquired new customers and sales and profits rose substantially. At the end of 1986, Ebtec was sold to Thermal Scientific, a British conglomerate. Thomas Liebermann was appointed to oversee Ebtec (and six other American operations owned by Thermal Scientific). Liebermann reported to Robert Huddie, who was responsible for all of Thermal Scientific’s American operations. In July, 1987, Liebermann promoted the plaintiff to executive vice president and general manager of Ebtec and gave the plaintiff specific goals in terms of pretax sales and profits. The plaintiff generally met those goals until the stock market “crash” of October, 1987, which had an adverse impact on many of the companies for which Ebtec performed services. In December, 1987, Liebermann evaluated the plaintiff. The evaluation was designed to identify for the plaintiff significant weaknesses in his management skills that would have to be addressed before the plaintiff’s promotion to president of Ebtec could be considered. Liebermann disclaimed any intent of terminating the plaintiff’s employment with Ebtec. According to Liebermann, the question was whether the plaintiff would work for Ebtec as a production manager or whether he would be promoted to president of Ebtec. Also in December, 1987, Liebermann decided that, because of changes in the company’s business goals caused largely by the October stock market crash, he would leave Thermal Scientific. He had conveyed this fact to Huddie by December, 1987, and had begun to disengage himself from the company’s operations. Huddie, not Liebermann, made the decision to terminate the plaintiff. On or about January 15, 1988, the plaintiff attended a meeting at which executives from Thermal Scientific’s American companies presented their budgets. Huddie presided over the meeting. The plaintiff testified that Huddie, reflecting on the reports that had been presented to him, commented that “there was a real problem in [Ebtec and another company] because both managers were old. One was in his fifties and the other was in his sixties, and it was absolutely necessary to get young management into these companies as soon as possible.” The plaintiff became concerned for his job at this meeting. He was terminated ten days later. His replacement, a thirty year old Thermal Scientific executive to whom the plaintiff had given basic courses in the technology that constituted Ebtec’s business, was given the title of president of Ebtec. There was additional evidence from which the jury reasonably could have inferred that Huddie desired to replace older managers with younger ones. Liebermann testified that Hud-die considered American age discrimination laws to be an unnecessary “fuss” and complained to him (Liebermann) about the age of certain managers in American Thermal Scientific companies. Liebermann also testified that he felt compelled to call the age discrimination laws to Huddie’s attention, and to insist that he, Liebermann, would not participate in any adverse employment decision based on an employee’s age. From this evidence, the jury reasonably could have inferred that Huddie had raised with Liebermann the possibility of an age-related discharge at a Thermal Scientific company under Liebermann’s supervision. In addition to this evidence of discriminatory intent, there was evidence from which the jury reasonably could have inferred that Huddie’s stated reason for terminating the plaintiff (unsatisfactory job performance in the sense of a failure to perform in relation to budgets and forecasts) was a pretext. The jury could have concluded that Ebtec’s declining profitability in November and December of 1987 was caused by the stock market crash, an event beyond the plaintiff’s control. There was evidence that the plaintiff’s superiors were fully aware of the effect of the stock market collapse on Ebtec’s business. The plaintiff indicated that he was discouraged from attempting to adjust his forecasts to reflect changed circumstances. The jury also could have concluded that other evidence concerning the plaintiff’s alleged poor performance was of little or no relevance, in light of Hud-die’s reason for the discharge. The jury’s verdict finding liability for discrimination under State and Federal law was supported by the evidence. 2. In February, 1991, the defendants moved for a firm trial date of either February 26, 1991, or on the first trial day in April, 1991, giving as a reason the conflicting travel schedules of their principal witnesses, Liebermann and Huddie. The motion judge scheduled the matter as first trial out in the March, 1991, inventory session. Because Huddie would be unavailable on this date, the defendants moved for reconsideration, seeking an April date, or, in the alternative, permission to videotape Huddie’s testimony. Permission was given to videotape Huddie’s deposition, and the videotape was shown to the jury as part of the. defendants’ case. The defendants nonetheless maintain that the absence of live testimony by Huddie so prejudiced their defense that a new trial is required. The scheduling of a trial is a matter within the sound discretion of a motion or trial judge. See Noble v. Mead-Morrison Mfg. Co., 237 Mass. 5, 16 (1921); Beninati v. Beninati, 18 Mass. App. Ct. 529, 534 (1984); Mass. R. Civ. P. 40 (a), 365 Mass. 802 (1974). “When [a] trial is . . . imminent as it was in this case, a judge may give weight to the public interest in the efficient operation of the trial list and to the interests of other parties who are ready for trial.” Castellucci v. United States Fidelity & Guar. Co., 372 Mass. 288, 292 (1977). Rule 40 (c) of the Massachusetts Rules of Civil Procedure, 365 Mass. 802 (1974), which addresses requests for a trial continuance based on the absence of a material witness, plainly contemplates testimony in the form of a deposition as a substitute for live testimony. Huddie’s videotaped deposition, which permitted the jury to observe his demeanor and tone, represented a reasonable accommodation between the defendants’ need for Huddle’s testimony, the plaintiffs interest in a prompt trial, and the efficient administration of the Superior Court trial list. It was not error to deny the defendants’ motion for a new trial on this basis. 3. The defendants claim that the plaintiffs attorney’s closing argument contained an improper appeal to regional bias. The defendants failed to object at trial to what constituted a relatively minor portion of the argument, despite the well-established rule that a closing argument which is considered to be improper should be called to the attention of the trial judge at once. Commonwealth v. Johnson, 374 Mass. 453, 458 (1978), and cases cited. The content of the criticized argument is not of significance. See Pryor v. Holiday Inns, Inc., 401 Mass. 506, 509 (1988). We decline to exercise our discretion to consider the claim of error now argued. Id. Rice v. James Hanrahan & Sons, 20 Mass. App. Ct. 701, 712 (1985). II. Damages Issues. As has been noted, the plaintiffs discharge occurred in January, 1988. The amendments to G. L. c. 151B, § 9, authorizing the recovery of punitive damages in a discrimination case, and multiple damages in an age discrimination case, were enacted in 1989 and 1990, respectively, subsequent to the plaintiffs discharge. In neither case did the Legislature direct that these amendments were to be given retrospective application. The defendants contend that, in the absence of lánguage mandating retrospective application, the new provisions increasing damages should not be applied to conduct occurring prior to their effective date, and consequently, that the plaintiff’s recovery of both multiple and punitive damages under G. L. c. 15IB, § 9, should be set aside. We agree with this contention. To clarify the damages questions in an age discrimination case under G. L. c. 15IB, we go on to conclude that a plaintiff who proves discrimination because of age is entitled to recover multiple damages only. We also conclude that the plaintiff is entitled to recover additional damages for lost wages and benefits under the provisions of the ADEA. 1. Whether a statute applies retrospectively is a question of legislative intent. In the absence of an express legislative directive, this court has usually applied “[t]he general rule of interpretation •. . . that all statutes are prospective in their operation, unless an intention that they shall be retrospective appears by necessary implication from their words, context or objects when considered in the light of the subject matter, the pre-existing state of the law and the effect upon existent rights, remedies and obligations. Doubtless all legislation commonly looks to the future, not to the past, and has no retroactive effect unless such effect manifestly is required by unequivocal terms. It is only statutes regulating practice, procedure and evidence, in short, those relating to remedies and not affecting substantive rights, that commonly are treated as operating retroactively, and as applying to pending actions or causes of action.” City Council of Waltham v. Vinciullo, 364 Mass. 624, 626 (1974), quoting Hanscom v. Malden & Melrose Gas Light Co., 220 Mass. 1, 3 (1914). See Austin v. Boston Univ. Hosp., 372 Mass. 654, 657 (1977); Kagan v. United Vacuum Appliance Corp., 357 Mass. 680, 683 (1970). Although this rule is easily stated, the distinction between legislation that concerns “substantive rights,” and legislation that concerns “procedures” and “remedies,” has proved to be difficult to draw. City Council of Waltham v. Vinciullo, supra at 627 & n.6. It appears from the context, and from a review of our prior decisions, that the term “remedies,” as it was used in Hanscom v. Malden & Melrose Gas Light Co., supra, has only encompassed essentially procedural legislation which preserves a remedy that might otherwise be lost, or which creates a new enforcement mechanism for remedying the impairment of an existing legal right. For example, retrospective application has been given to legislation extending the time for filing for an application for a tax abatement, Lindberg v. State Tax Comm’n, 335 Mass. 141, 143 (1956); to legislation modifying the requirements for filing an application for a tax abatement, Wynn v. Assessors of Boston, 281 Mass. 245, 249 (1932); and to legislation providing direct access to the courts to enforce preexisting legal rights, Selectmen of Amesbury v. Citizens Elec. St. Ry., 199 Mass. 394, 395 (1908). It would appear to be the rule in other jurisdictions that only this type of remedial legislation is given retrospective effect. See 1A Singer, Sutherland Statutory Construction § 22.36, at 301 (4th ed. 1985) (a statutory amendment “that affect [s] procedural rights — legal remedies — [is] construed to apply to all cases pending at the time of its enactment”). As have other jurisdictions, we have recognized that legislation limiting or increasing the measure of liability, while arguably remedial in the broad sense of that word, generally is considered to impair the substantive rights of a party who will be adversely affected by the legislation. In the absence of a provision mandating retrospective application, we have not assumed that such legislation applies to claims arising prior to enactment. See USM Corp. v. Marson Fastener Corp., 392 Mass. 334, 353 (1984) (suggesting that statute changing the measure of damages after tort has been committed should not be given retrospective effect); Austin v. Boston Univ. Hosp., supra at 657 (recognizing substantive aspect of legislation that imposes costs, and witness, expert, and attorney’s fees on an unsuccessful litigant); Cudlassi v. MacFarland, 304 Mass. 612, 613 (1939) (declining, in the absence of legislative directive, to give retrospective effect to statutory amendment eliminating double damages in tort case). See also Lavieri v. Ulysses, 149 Conn. 396, 402 (1962), and cases cited; LaBarre v. Daneault, 123 N.H. 267, 271-272 (1983). The large amount of the judgment entered in this case clearly demonstrates the force of the amendments to G. L. c. 151B, § 9, on a defendant’s potential liability. If the Legislature had intended the amendments to G. L. c. 15IB, § 9, providing enhanced damages to apply to cases pending at the time of their enactment, or to conduct occurring prior thereto,

BUTZER v CAMELOT HALL CONVALESCENT CENTRE, INC (AFTER REMAND) Docket No. 136247. Submitted January 12, 1993, at Detroit. Decided May 20, 1993; approved for publication August 18, 1993, at 9:00 A.M. Grace L. Butzer brought a wrongful discharge action in the Wayne Circuit Court against Camelot Hall Convalescent Centre, Inc., alleging that termination of her employment was in violation of a policy of termination for just cause only. Mediation concluded in an evaluation of $20,000 for the plaintiff, which was accepted by the plaintiff but rejected by the defendant. The court, Harry J. Dingeman, J., granted summary disposition for the defendant on the basis that there was no genuine issue of material fact. The Court of Appeals, Mackenzie, P.J., and Marilyn Kelly and T.M. Burns, JJ., reversed, holding that a genuine issue of material fact existed regarding whether the plaintiff had a reasonable expectation of employment that was terminable for just cause only. 183 Mich App 194 (1989). On remand, the defendant offered to stipulate the entry of a $3,500 judgment for the plaintiff. The plaintiff rejected the offer, and a jury subsequently returned a verdict of no cause of action. The defendant moved for, and the trial court, Edward M. Thomas, J., denied, attorney fees under MCR 2.405(D) for the plaintiff’s rejection of the defendant’s offer to stipulate the entry of a judgment and sanctions under MCR 2.114(E) for the plaintiff’s filing of pleadings for an improper purpose. The defendant appealed. After remand, the Court of Appeals held: 1. A trial court abuses its discretion by denying a motion for costs and attorney fees under MCR 2.405(D) where, as in this case, the only reason for the denial is that the rejection of the offer of judgment was reasonable. 2. The circumstances of this case do not support a finding that the plaintiffs pleadings were filed for an improper purpose and therefore do not warrant an imposition of sanctions under MCR 2.114(E). References Am Jur 2d New Topic Service, Alternate Dispute Resolution § 24; Attorneys at Law §§ 237, 264. See ALR Index under Attorney or Assistance of Attorney; Attorneys’ Fees; Fines, Penalties, and Forfeitures. Affirmed in part, reversed in part, and remanded for an award of reasonable attorney fees to the defendant. White, J., concurring in part and dissenting in part, stated that the denial of sanctions under MCR 2.114(E) was proper, but the case should be remanded to the trial court for reconsideration of the question of attorney fees under MCR 2.405(D) in light of Gudewicz v Matt’s Catering, Inc, 188 Mich App 639 (1991). Judgments — Offers to Stipulate Entry of Judgment — Rejection — Attorney Fees. A trial court abuses its discretion by denying a motion for attorney fees as a sanction for the refusal of an offer to stipulate the entry of a judgment where the only reason for the denial is that the rejection of the offer of judgment was reasonable (MCR 2.405[D]). Daryle Salisbury, for the plaintiff. Roger H. Leemis, for the defendant. AFTER REMAND Before: Doctoroff, C.J., and Weaver and White, JJ. Per Curiam. Defendant appeals a December 5, 1990, Wayne Circuit Court order denying its motion for attorney fees and costs pursuant to MCR 2.405 and sanctions pursuant to MCR 2.114(E). On appeal, defendant contends that the trial court abused its discretion when it refused to grant its request for reasonable attorney fees and erred in denying its request for sanctions. We affirm in part, reverse in part, and remand the matter to the trial court. Plaintiff was employed by defendant as a nursing supervisor beginning on May 10, 1982. On September 20, 1983, defendant terminated plaintiffs employment on the basis of what it claimed was her failure to provide adequate care for her patients. Plaintiff subsequently filed this wrongful discharge action alleging breach of contract, termination without just cause, and age discrimination. Plaintiff sought damages for loss of wages and loss of employee benefits, and also requested injunctive relief in the form of immediate reinstatement. The case was mediated at $20,000, which plaintiff accepted and defendant rejected. Thereafter, defendant moved for summary disposition pursuant to MCR 2.116(0(10), claiming that there was no genuine issue of material fact. The trial court granted defendant’s motion for summary disposition, but this Court reversed the order on appeal, concluding that there existed a genuine issue of material fact whether plaintiff had a reasonable expectation of employment terminable for just cause only. See Butzer v Camelot Hall Convalescent Centre, Inc, 183 Mich App 194; 454 NW2d 122 (1989). On April 23, 1990, the case having been remanded, defendant submitted an offer to stipulate the entry of a judgment for plaintiff in the amount of $3,500. Plaintiff rejected the offer without filing a counteroffer. Following a seven-day jury trial, a verdict was returned for defendant, the jury concluding that plaintiff had no cause of action. Defendant filed a motion for costs and attorney fees as permitted under MCR 2.405(D)(1) and also requested sanctions under MCR 2.114. Following a hearing, the trial court stated: Recalling this case very well and remembering the facts of it, the emotion that was involved in it, the Court is of the opinion that both parties proceeded to trial and made their rejections in good faith and this Court is of the opinion that Ms. Butzer should not be penalized to a point of having to pay over ten thousand dollars in attorney fees for seeking her day in court. The trial court awarded defendant $1,216.98 in costs, to which plaintiff did not object, but denied the request for attorney fees and sanctions. The purpose of imposing costs under MCR 2.405 is to encourage the parties to settle before trial. Freysinger v Taylor Supply Co, 197 Mich App 349, 353; 494 NW2d 870 (1992); Brooks v Gough, 189 Mich App 623, 625; 473 NW2d 771 (1991). MCR 2.405(D)(3) states that the court may, in the interest of justice, refuse to award a fee under the rule. In Gudewicz v Matt’s Catering, Inc, 188 Mich App 639, 645; 470 NW2d 654 (1991), this Court expressly rejected the trial court’s denial of fees under MCR 2.405 based solely upon an offeree’s "reasonable rejection” of a counteroffer of judgment. This Court concluded that the public policy behind the rule would not be served by denying fees on the basis of an offeree’s reasonable rejection. Id. As in Gudewicz, supra, we conclude that the trial court’s denial of defendant’s motion for reasonable attorney fees in this case was an abuse of discretion. The fact that plaintiff may have proceeded to trial in good faith does not excuse liability for fees when she knowingly denied the offer at the risk of having to pay those fees. See Sanders v Monical Machinery Co, 163 Mich App 689, 693; 415 NW2d 276 (1987). The better position is that a grant of fees under MCR 2.405 should be the rule rather than the exception. Gudewicz, supra at 644-645; Stamp v Hagerman, 181 Mich App 332, 338-339; 448 NW2d 849 (1989). To conclude otherwise would be to expand the "interest of justice” exception to the point where it would render the rule ineffective. See Gudewicz, supra at 644 (quoting 2 Martin, Dean & Webster, Michigan Court Rules Practice [3d ed], pp 455-456). Regarding defendant’s argument that it is entitled to sanctions under MCR 2.114(E), we disagree. The signature requirement under this rule seeks to ensure that pleadings are verified and filed in conformity with MCR 2.114(D). Warden v Fenton Lanes, Inc, 197 Mich App 618, 626; 495 NW2d 849 (1992). Although it is true that the rule provides that the signature is a certification that the pleadings are not filed for an improper purpose, we are not convinced that the pleadings in this case were in violation of this rule. A mediation panel recommended a $20,000 award in favor of plaintiff, and this Court previously determined that plaintiff’s pleadings and other evidence were sufficient to raise a genuine issue of material fact. See Butzer, supra. Under these circumstances, we find unpersuasive defendant’s contention that it is entitled to sanctions under MCR 2.114. Affirmed in part, reversed in part, and remanded for a determination of reasonable attorney fees. We do not retain jurisdiction. No costs are taxable, neither party having prevailed in full. White, J. (concurring in part and dissenting in part). I concur in the majority’s affirmance of the trial court’s denial of sanctions under MCR 2.114(E). I dissent from its reversal of the denial of attorney fees under MCR 2.405. Rather than reversing, I would remand the case to the trial court for reconsideration in light of Gudewicz v Matt’s Catering, Inc, 188 Mich App 639; 470 NW2d 654 (1991). After trial, defendant moved for costs and attorney fees pursuant to MCR 2.405 and 2.114. The trial court awarded defendant $1,216.98 in routine fees and costs, but denied the request for $12,410.07 in attorney fees under both court rules. The court stated: Recalling this case very well and remembering the facts of it, the emotion that was involved in it, the Court is of the opinion that both parties proceeded to trial and made their rejections in good faith and this Court is of the opinion that Ms. Butzer should not be penalized to a point of having to pay over ten thousand dollars in attorney fees for seeking her day in court. I believe that the assessment of attorney fees is discretionary with the Court and under the circumstances of this case, the Court is not going to assess attorney fees in the bill of costs, but will assess the one thousand, two hundred and six dollars and ninety-eight cents. Defendant argues that MCR 2.405 is unambiguous and requires imposition of reasonable attorney fees except in very limited circumstances. Defendant asserts that this case is unremarkable and presents no special circumstances to justify the court’s decision not to award attorney fees. In Sanders v Monical Machinery Co, 163 Mich App 689, 693; 415 NW2d 276 (1987), this Court affirmed the trial court’s award of attorney fees to the defendant under MCR 2.405. The Court stated that the purpose of MCR 2.405 is to encourage parties to settle matters before trial. If an offer to settle is made and the offer is not patently frivolous, the rule creates an obligation to accept, make a counteroffer, or reject. A litigant who rejects or fails to respond and goes on to lose before a jury is at risk of paying costs and attorney fees as provided in MCR 2.405. In Stamp v Hagerman, 181 Mich App 332; 448 NW2d 849 (1989), this Court affirmed the court’s refusal to award attorney fees to the defendant under MCR 2.405(D)(1). The Court said: However, MCR 2.405(D)(3) provides that the "court may, in the interest of justice, refuse to award an attorney fee under this rule.” In Sanders, supra, this Court concluded that the trial court’s decision to allow attorney fees under this subrule is discretionary, although the grant of attorney fees was thought to be preferred under the subrule as indicated by the language requiring that the trial court’s refusal to grant the attorney fees be in the "interest of justice.” The Sanders Court went on to uphold the trial court’s grant of attorney fees to the defendant as a reasonable exercise of discretion where the plaintiffs failed to respond to the defendant’s offer of judgment of $5,000 and a jury subsequently returned a verdict of no cause of action. The Sanders Court rejected the plaintiffs’ claim that the discretionary language "in the interest of justice” only permits attorney fees in exceptional circumstances where there has been bad faith or unreasonable conduct. Finally, the Sanders Court expressed its opinion that attorney fees should be routinely granted under this subrule. In the instant case, by contrast, the trial court refused to award attorney fees for the reason that plaintiffs had not rejected either of the mediation evaluations and thereafter negotiated reasonably and in good faith in an effort to reach a settlement. The trial court concluded that these facts did not indicate that the discretionary sanction against plaintiffs in the form of attorney fees was appropriate. Hence, on its face, the trial court appeared to apply the very standards of good faith and reasonable conduct that the Sanders Court suggests would not preclude an award of attorney fees to the opposing party. We are, however, of the opinion that what constitutes "in the interest of justice” must be decided on a case-by-case basis. While not controlling, a trial court may properly consider the good faith or reasonable conduct of the parties in resolving whether attorney fees are appropriate. [181 Mich App 338-339.] The Court went on to discuss cases dealing with the concept of judicial discretion. The Court concluded: Given the fact that plaintiffs proceeded to trial only after rejecting an offer which was substantially less than the prior two mediation evaluations, we conclude that the trial court did not abuse its discretion in refusing to award attorney fees to defendants. Although an award of attorney fees is favored under MCR 2.405(D)(3), we do not find that a consideration of the "interest of justice” standard precluded the trial court from refusing to award attorney fees to defendants under the circumstances of this case. [Id. at 342.] In Gudewicz, supra, this Court reversed the trial court’s ruling that under MCR 2.405(D)(3) attorney fees should be denied to the defendant in the interest of justice. The basis for the trial court’s decision was that the plaintiff’s decision to reject the counteroffer was reasonable in view of the mediation. The Gudewicz Court quoted from 2 Martin, Dean & Webster, Michigan Court Rules Practice (3d ed), pp 455-456: As to attorney fees, the rule itself gives no guidance as to the kinds of situations in which a court may determine that the interests of justice preclude an award of attorney fees. . . . [S]hould the courts liberally interpret the subrule, and routinely deny the imposition of attorney fees, trial counsel will quickly realize that the cost provisions and monetary sanctions imposed by rule 2.403(0) [mediation sanctions] may be readily negated by the submission of an offer of settlement under 2.405. See MCR 2.405(D)(6). If the imposition of sanctions under rule 2.403 is mandatory (which it is), but only discretionary under rule 2.405 (which they are), the authors have little doubt as to which rule the parties will elect to control in the action. Unless the imposition of costs under rule 2.405 is equally as certain as they are [sic] under rule 2.403, Michigan’s mediation rule will quickly be rendered useless. [188 Mich App 644.] The Court discussed Sanders and Stamp, supra:. Similar concerns were expressed by this Court in Sanders, supra. The Sanders panel concluded that the sanctions provisions of the court rule should be routinely enforced and attorney fees granted, except in the event of an unusually large verdict, or in the event of a defense verdict rendered in the face of catastrophic damages. 163 Mich App 692-693. In Stamp v Hagerman, 181 Mich App 332, 339; 448 NW2d 849 (1989), another panel concluded that, while not controlling, the good faith or reasonable conduct of the parties properly may be considered by a trial court in resolving the question whether attorney fees are appropriate. [188 Mich App 644-645.] The Court concluded: In this case, the sole reason given by the trial court for denial of attorney fees was that plaintiffs reasonably refused the counteroffer. This was insufficient justification under Stamp and Sanders, supra, and runs contrary to the policy of Sanders and the commentators which favors the award of attorney fees absent unusual circumstances. [188 Mich App 645.] While the Gudewicz Court recognized the rule set forth in Stamp, supra, it applied a far more stringent standard for determining when attorney fees can properly be denied under MCR 2.405(D) (3). In the instant case, the trial court’s decision not to grant attorney fees would not constitute an abuse of discretion under Stamp, because the facts are very similar to those in Stamp and the decision apparently was based on plaintiffs good faith and reasonable conduct. The enunciation of the decision on the record in November 1990, after Stamp had been decided but before Gudewicz, would have been sufficient under Stamp. However, Gudewicz, which is controlling under Administrative Order No. 1990-6, requires more. It is unclear whether the trial court would have awarded or denied attorney fees under Gudewicz. In other words, had Gudewicz been decided before the trial court rendered its decision, it may have granted fees or denied fees, setting forth reasons believed to be sufficient under Gudewicz. Because the trial court did not have the benefit of Gudewicz when it made the decision and because we do not know how it would have applied the Gudewicz standard to the instant case, I think a remand for reconsideration, rather than a reversal, is appropriate. I would remand to the trial court for reconsideration in light of Gudewicz, with instructions that if the trial court continues to be of the view that attorney fees should be denied under MCR 2.405(D)(3) and Gudewicz, it should fully set forth its reasons on the record.

GINTHER v OVID-ELSIE AREA SCHOOLS Docket No. 131978. Submitted December 2, 1992, at Lansing. Decided March 18, 1993; approved for publication July 21, 1993, at 9:15 a.m. Leave to appeal sought. Janice Ginther brought an action in the Clinton Circuit Court against the Ovid-Elsie Area Schools, alleging that she was not hired for a full-time custodian position as a result of sex discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. The court, Timothy M. Green, J., granted summary disposition for the defendant. The plaintiff appealed. The Court of Appeals held: 1. The plaintiff established a prima facie case of sex discrimination by showing that she applied for an available position for which she was qualified but was rejected under circumstances giving rise to an inference of unlawful discrimination. 2. A question of fact for the jury’s determination arose with regard to whether a supervisor stated that he would not hire any more women. 3. The plaintiff presented evidence indicating that the defendant’s reason for hiring the man for the position was a pretext. A genuine issue of material fact exists with regard to this matter. 4. The defendant’s argument that the school board was the ultimate decision maker is without merit. Although the school board made the ultimate employment decision, it simply approved the supervisor’s choice. Reversed and remanded. Civil Rights — Sex Discrimination — Prima Facie Case — Burden of Proof. A prima facie case of sex discrimination is established where it is proven by a preponderance of the evidence that the plaintiff applied and was qualified for an available position but was rejected under circumstances giving rise to an inference of unlawful discrimination; the burden then shifts to the defendant to articulate some legitimate, nondiscriminatory reason for its action; if the defendant meets this burden, the plaintiff then has the burden of proving by a preponderance of the evidence that the reason offered by the defendant was a pretext. References Am Jur 2d, Civil Rights §§ 161, 184-186; Job Discrimination §§ 146, 587. Construction and application of provisions of Title VII of Civil Rights Act of 1964 (42 USCS secs. 2000e et seq.) making sex discrimination in employment unlawful. 12 ALR Fed 15. Rapaport, Pollok, Farrell & Sablich, P.C. (by Mark S. Farrell), for the plaintiff. Miller, Canñeld, Paddock & Stone (by Charles S. Mishkind, Diane M. Soubly, and Lewis B. Reinwasser), for the defendant. Before: Holbrook, Jr., P.J., and Fitzgerald and D. A. Roberson, JJ. Recorder’s Court judge, sitting on the Court of Appeals by assignment. Per Curiam. Plaintiff appeals as of right from the trial court’s order dismissing her claim of sex discrimination pursuant to MCR 2.116(C)(10). We reverse. Plaintiff’s claim of sex discrimination was based on defendant’s refusal to hire her as a full-time custodian. In December of 1985, plaintiff began working as a substitute custodian in the Ovid-Elsie school system. In June of 1988, a full-time custodian retired. Initially, the school district did not hire someone for the custodian position, but eventually the building maintenance and grounds supervisor, Michael Lewis, requested that the position be filled. After a discussion at a school board meeting, the school board decided to hire a full-time custodian. The school district posted the position pursuant to a collective bargaining agreement. A member of the collective bargaining unit bid for and received the position and another member bid on and received the position vacated by that member, which then created an opening for a custodian at the E. E. Knight Elementary School. No member bid on this vacancy, and the position became open for outside hiring. On October 6, 1988, plaintiff submitted a handwritten letter to Lewis, stating she would like to bid on the custodian position. Lewis approached the school superintendent, David Porrell, informing him that several people had heard about the position. Lewis and Porrell decided to advertise the position in a local newspaper. The advertisement appeared after October 10, 1988. After reviewing the applications, Lewis recommended hiring Harry Price. Price had submitted an application in 1986 and updated it on September 22, 1988. Porrell recommended Price to the school board. On November 21, 1988, the school board approved the decision to hire Price. On February 3, 1989, plaintiff filed a lawsuit against the school district, alleging that she was not hired for the custodian position because she was a woman. In support of her claim, plaintiff alleged that the school system’s past practice was to give priority to part-time custodians if a permanent custodian position became available. Plaintiff also claimed that Price was less qualified than her. Alfred Bywater, an employee of the school district for eighteen years, testified at his deposition that he had heard Lewis state "it would be a cold day in hell before I hire any more women” or something to that effect. Bywater could not recall exactly when Lewis made this statement, but indicated that it was just before Lewis became supervisor. At his deposition, Lewis testified that he has hired four men and no women since becoming supervisor. Two of these men, Rolla Gruesbeck and Kevin Russell, were hired as custodians and had been substitute custodians. Plaintiff was not hired for one of these positions because Russell had experience with lawnmowers, whereas plaintiff did not. Lewis admitted that he never asked plaintiff if she was capable of operating a lawnmower. Lewis stated that the school district did not advertise the availability of the custodian positions and the school board did not approve Lewis’ decision to hire Gruesbeck and Russell. Lewis also testified that the school district had one woman custodian, who became a custodian after the school district eliminated her position as a housekeeper-cleaner. The housekeeper-cleaner positions had been held by women only and were eliminated before Lewis became a supervisor. Lewis described the position as a matron’s job, involving strictly cleaning. The school district also only hired women to work in the cafeteria. Lewis also testified at his deposition that he reviewed all the applications and selected four people, including plaintiff, as finalists for the position. Lewis admitted that the finalists were qualified for the position. However, Lewis felt Price was the most qualified because he did janitorial work and was the "jack-of-all-trades” at his then current job with a nursing home. Lewis claimed that he also contacted John Johnson, Price’s boss at the nursing home, who explained what Price did in the building and on the grounds. Lewis did not contact the other applicants’ employers regarding their qualifications. Lewis also did not interview any of the applicants. Lewis claimed that he did not interview plaintiff because he felt he knew her qualifications and work habits through her work as a substitute custodian. Lewis did not have problems with plaintiff’s work, nor did he receive complaints regarding her work. Lewis claimed that he did not have authority to hire or fire the employees in his department and that he had to obtain authorization from Porrell to hire someone. Porrell explained during his deposition that although the hiring decisions for the previous custodian positions were not reviewed by the school board, he felt the hiring decision for the custodian position sought by plaintiff required the board’s approval because the board agreed to reinstate the position. On June 5, 1990, the school district filed a motion for summary disposition, arguing that plaintiff could not establish that she was not hired as a full-time custodian because of her sex. Defendant claimed that plaintiff was not qualified for the position because she had never operated lawn-mowing equipment, performed building and equipment repairs, or operated the heating and air-conditioning systems. Defendant also claimed that Price was the most qualified for the position because of his experience as a custodian, performing janitorial work, minor equipment repairs, and yard work. In response, plaintiff argued that Lewis was predisposed to discriminate against women. Plaintiff also argued that the school district treated female employees differently than male employees because it only hired men as custodians and only hired women as housekeeper-cleaners and cafeteria workers. In granting defendant’s motion, the trial court found that plaintiff’s case was based on her subjective feeling that she was discriminated against and remarked that it did not have to find issues of fact. We disagree. A motion for summary disposition under MCR 2.116(0(10) tests the factual sufficiency of the claim at issue. Schultes v Naylor, 195 Mich App 640, 644; 491 NW2d 240 (1992). The benefit of doubt is to be given to the nonmoving party. Id., p 645. If the trial court determines that there is a significant deficiency in the claim that cannot be cured by a full development of the factual record, then summary disposition is appropriate. Id. Plaintiff alleges sex discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. Plaintiff claims that defendant did not hire her as a custodian because she is a woman. In a discrimination case, the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. Featherly v Teledyne Industries, Inc, 194 Mich App 352, 358; 486 NW2d 361 (1992). If the plaintiff is successful in proving a prima facie case of discrimination, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for its action. Id. If the defendant meets this burden, the plaintiff then has the burden of proving by a preponderance of the evidence that the legitimate reason offered by the defendant was a pretext. Id. Upon a thorough review of the record, we conclude that plaintiff established a prima facie case of sex discrimination. A prima facie case of sex discrimination is established when it is proven that the plaintiff applied and was qualified for an available position but was rejected under circumstances giving rise to an inference of unlawful discrimination. Pomranky v Zack Co, 159 Mich App 338, 343-344; 405 NW2d 881 (1987). Plaintiff is a member of a protected class under the Civil Rights Act and applied for the available custodian position. Lewis admitted in his deposition that plaintiff, one of the four finalists selected for the custodian position, was minimally qualified. Moreover, the circumstances support the inference that she was unlawfully discriminated against. Lewis’ alleged statement indicates that he was predisposed to discriminate against women. Proof of Lewis’ predisposition is bolstered by the fact that he has not hired a woman since becoming supervisor. Although Lewis denied making the statement, a question of fact arose that should be determined by the jury. Furthermore, we find that plaintiff presented evidence that defendant’s reason for hiring Price was a pretext. A plaintiff may succeed in establishing that the defendant’s proffered reason was a pretext either directly, by persuading the trier of fact that a discriminatory reason more likely motivated the employer, or indirectly, by showing that the proffered reason is not worthy of credence. Id., p 343. Defendant claims that it hired Price because he was the most qualified for the position. However, Lewis admitted that he did not interview any applicants and did not contact any of the applicants’ current or former employers except Price’s then current employer. Moreover, although plaintiff admitted during her deposition that she never operated the lawnmowing equipment, performed building and equipment repairs, or operated the heating and air-conditioning systems, Lewis never asked her if she had done so or could do so. Finally, there is some indication that Lewis did not know Price’s qualifications before he was hired. Price admitted during his deposition that he bolstered his application after plaintiff filed her lawsuit because he realized that his qualifications were not listed on it. Consequently, a genuine issue of material fact exists. Defendant, however, argues that Lewis’ alleged statement cannot create an issue of fact because (1) the alleged statement is double hearsay; (2) the alleged statement was an isolated, remote remark made facetiously and was not directed at any particular person; (3) Bywater claimed that the alleged statement was made in the presence of other people, all of whom denied Lewis made the remark; and (4) the school board made the ultimate hiring decision, which plaintiff admitted did not discriminate against her. First, Lewis’ alleged statement is not double hearsay because Bywater testified that Lewis made the statement. Next, it is not the court’s function to determine whether the alleged tasteless, insensitive discriminatory remark was a "joke” and not probative of Lewis’ predisposition. Moreover, the fact that three people aver that Lewis never made the statement does not transform a question of fact into an issue for the court to decide. In deciding whether to grant a motion for summary disposition, the court must accept as true all facts pleaded by the non-moving party. Finally, defendant’s argument that the school board was the ultimate decision maker is without merit. Lewis submitted a list of applicants’ names to Porrell, noting on the list that he wanted to hire Price. Porrell then submitted Lewis’ recommendation to the school board, stating that he concurred with Lewis. Although the school board made the ultimate employment decision, it simply approved Lewis’ choice. Accordingly, the trial court erred in granting defendant’s motion for summary disposition. Plaintiff established a prima facie case of sex discrimination and presented evidence that defendant’s reason for not hiring her was a pretext. The case is remanded to the lower court. Reversed and remanded. We do not retain jurisdiction. This Court notes a remarkably similar case, Cesaro v Lakeville Community School Dist, 953 F2d 252 (CA 6, 1992), holding that a school superintendent’s alleged discrimination in the selection process was irrelevant because the school board made the ultimate hiring decision. The plaintiff failed to establish her gender played any part in the school board’s hiring decision. Unlike the case before this Court, the school board reviewed the qualifications of all the candidates and chose the applicant recommended by the school superintendent because he was the best qualified. There is nothing in the lower court record in this case that indicates defendant’s school board extensively reviewed the qualifications of the applicants and made an independent decision to hire Price because he was the most qualified.

John Cox vs. New England Telephone and Telegraph Company. Suffolk. April 6, 1992. February 24, 1993. Present: Liacos. C.J.. Wilkins, Abrams, Nolan, Lynch, O’Connor & Greaney, JJ. Anti-Discrimination Law, Employee, Handicap. Employment, Discrimination. Telephone Company. Handicapped Persons. Words, “Qualified handicapped person.” Discussion of the meaning of the phrase “qualified handicapped person,” as appearing in G. L. c. 151B, § 4 (16), in light of the analogous Federal statute, § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1988), and cases decided thereunder. [381-384] Discussion of the distinctions in allocation of the burden of proof in employment discrimination cases in which “disparate treatment” is alleged as opposed to those cases involving “disparate impact.” [384-36] In an action involving a claim of employment discrimination on account of handicap under G. L. c. 15IB, the judge correctly ruled that the plaintiff did not sustain his burden of proving that a certain task, gaff climbing a telephone pole to a certain height, was not an essential function of the utility splice service technician position the plaintiff sought. [386-388] Liacos, C.J., with whom Abrams, J., joined, dissenting. In an action involving a claim of employment discrimination on account of handicap under G. L. c. 15IB, the judge correctly ruled that the plaintiff did not sustain his burden of proving that he could perform the essential tasks of the job that he sought, thus he did not demonstrate that he was a “qualified handicapped person” entitled to the protection of that statute. [388-390] Reasonable accommodation by an employer, under the provisions of G. L. c. 151B, § 4 (16), does not require the employer to waive or excuse an employee’s inability to perform an essential job function. [390] In the circumstances of a civil trial, the judge did not abuse his discretion in allowing a defense witness to testify even though the defendant’s responses to discovery requests with respect to the witness’s testimony had been filed late. [390-391] Civil action commenced in the Superior Court Department on April 11, 1988. The case was heard by George C. Keady, Jr., J. The Supreme Judicial Court granted a request for direct appellate review. Harold L. Lichten (Betsy Ehrenberg with him) for the plaintiff. John D. Corrigan, Jr., for the defendant. O’Connor, J. This case involves a claim of employment discrimination on account of handicap. In his amended complaint, the plaintiff, John Cox, makes the following allegations. Before 1983, he was employed by the defendant, New England Telephone and Telegraph Company, as a splice service technician (SST). In November of that year, he was seriously injured in a motor vehicle accident that left him with a permanent brain injury affecting his memory, speech, and reading speed. The plaintiff returned to work in a clerical position. In 1986 and 1987, the plaintiff “bid for [an SST] position” and, “[o]n each occasion [he] was awarded the bid, but did not pass the pole climbing course, solely because of his reading and memory difficulties resulting from his handicap. ... On each occasion, [the] plaintiff consequently was denied the [SST] position.” Subsequently, the plaintiff’s application to become an SST was denied because he had twice failed the pole-climbing course. According to the complaint, the “pole climbing test does not adequately test for the duties of [an SST], and has an adverse impact on handicapped persons with reading or memory disabilities.” Furthermore, “[w]ith reasonable accommodation, [the] plaintiff would have been able to pass the test” but “[a]t no time did [the defendant] offer or attempt to so accommodate [him].” The plaintiff also asserts that, since June, 1986, he “was fully able to perform the duties of [an SST], and as such was a qualified handicapped person within the meaning of [G. L. c. 151B (1990 ed.)].” The plaintiff claims that as a result of the defendant’s failure to award him an SST position, he sustained losses for which, under c. 15IB, he is entitled to compensation. The plaintiff seeks an order awarding him an SST position retroactive to the date of his initial bid, together with money damages. This case was tried in the Superior Court by a judge without a jury. The judge found that the defendant “is not liable for unlawful discrimination under [G. L.] c. 15IB,” and he ordered the entry of a judgment for the defendant. The plaintiff appealed, and we then granted his application for direct appellate review. We now affirm the judgment. We recite the pertinent findings set forth in the judge’s memorandum of findings and decision. In 1982 and 1983 the plaintiff worked for the defendant as an SST, a position that required pole climbing. Before becoming an SST, the plaintiff successfully completed the defendant’s safe pole-climbing course, including lessons on gaff climbing. “The purpose of the course is to train prospective SSTs to climb telephone poles safely. There are four ways of ascending and descending a pole, to wit: (a) by use of a ladder, (b) by use of steps built into the pole (long spikes protruding from the pole at various heights and on both sides), (c) by use of gaffs (instruments strapped to the legs which have a pointed blade or sticker attached to each so the climber can stick that blade or sticker into the pole), (d) by use of a ‘cherry picker’ (a basket on the end of an electrically maneuvered crane which can take the occupant up or down). “The chief disadvantage of the ladder is a question of availability and size or height. The stepped poles are not always present. They are much more likely to be found in congested, urban areas and not likely to be found in rural or suburban areas. The ‘cherry picker’ is seldom available and cannot be used in close quarters, e.g. rear yards of urban lots.” The judge found that, in November, 1983, the plaintiff sustained multiple serious injuries in a motor vehicle accident, including “a severe closed head injury to the brain stem,” as a result of which his physicians restricted him from pole climbing. The plaintiff returned to work in December, 1984, as a clerk. In June, 1986, he was cleared by his physicians and the defendant from the restriction against climbing poles. Then, in 1986, the plaintiff bid on, and was awarded, a position as an SST, subject to his passing the safe pole-climbing course. The content of the course given in 1986 was the same as the content of the 1982 course that the plaintiff passed. However, in 1986, unlike 1982, there was a requirement that the course be completed within twenty-six hours. “The course consisted of twelve lessons or parts. After a student completed a part he was tested on that part. If he passed it, it was behind him. If one failed a lesson he could repeat the test and pass it as long as he did not repeat a deviation which he had in the prior test.” In a footnote, the judge defined a “deviation” as “a wrong answer if the test only involves questions and answers and a misstep or erroneous movement if the test is physical.” The plaintiff failed the 1986 course because he repeated a deviation. The plaintiff reapplied for an SST position in 1987, and again he was awarded the job subject to his passing the safe pole-climbing course. The plaintiff was to be assigned to the Neponset garage in the Dorchester section of Boston or the garage in the Hyde Park section. The content of the 1982, 1986, and 1987 courses was the same. Also, in 1987, as in 1986, there was a time requirement of twenty-six hours in which to complete the course. The judge found that the first five lessons in 1987 required only reading, and the plaintiff “kept pace with the other students.” The plaintiff successfully completed lessons eleven and twelve, which “consist[ed] of reading plus testing.” “In lesson 6 through 10,” the judge found, “physical acts and maneuvers were required. Actually a substantially less amount of reading was required than in 1 through 5. Lesson 6 and 7 required pole climbing. The latter required lateral movement. [The plaintiff] passed lessons 6, 7 and 8. Lessons 7, 8 and 9 are identical except for the height at which the maneuvers are performed. They require the use of gaffs. So does Lesson 10. “[The plaintiff] did have some difficulty with lesson 8 although as stated he passed. When he reached lesson 9 he was required to climb to a level of 18 feet. He stopped at 14 feet. After staying there for an extended period of time, from 5 to 10 minutes, and after one of the instructors attempted to aid him orally by reminding him of the procedures to be followed, [the plaintiff] came down. The plaintiff never completed parts 9 and 10. Thus he did not pass the course. Having failed to pass the course for the second time, according to regulations promulgated by the defendant, well prior to 1986, the plaintiff is now ineligible to take the Safe Pole Climbing Course again. Therefore he is ineligible to become, an SST.” We continue with our recitation of the judge’s pertinent findings and discussion: “One of the plaintiff’s contentions is that because of where he would be working namely, Dorchester or Hyde Park, he would not have to be proficient in gaff climbing. I find the following facts. Because these areas are urban, a very high percentage of the poles to be climbed would be ‘stepped’ i.e. with the metal spikes affixed, making gaff climbing unnecessary. ‘Cherry pickers’ could be used in most instances, but there are few ‘cherry pickers’ available even in Boston. Ladders are generally not practical because of height. While it happens seldom to SSTs working in Boston, all SSTs employed by the defendant are subject to transfer in case of emergencies, e.g. tornado, hurricane, etc. In case of transfer outside Boston gaff climbing would be a likely need.” The judge also found that, in 1984, the defendant had a study of its safe pole-climbing course made, which resulted in certain changes in the course presentation and in the twenty-six hour completion requirement. He found that “the test taken by the plaintiff is reasonable as to content, method of instruction and the time requirement for completion.” In arriving at his decision in favor of the defendant, the judge reasoned as follows: “To prevail on his claim the plaintiff must show that he is a ‘qualified handicapped person.’ The statute defines a ‘qualified handicapped person’ as one who is able to perform the essential functions of the job, or who would be capable if reasonable accommodations were made for his handicap. [G. L.] c. 15IB, § 1. The plaintiff contends that he is a ‘qualified handicapped person’ because he possesses the ability to perform all the essential functions of the job of an SST. According to the plaintiff, climbing poles with gaffs is not an essential function of an SST position. I disagree. Though pole climbing by means of gaffs may rarely occur in the Dedham-Dorchester area, this skill is necessary if an SST employee is to accomplish his job when called to serve rural areas where unstepped poles are common. It is not unforeseeable that this skill would be necessary during an emergency, or even from time to time in Boston and its suburbs. I am further concerned about the plaintiff’s safety when climbing a stepped pole.” Having determined that the ability to climb with gaffs is essential to the SST position, the judge then found that the only way for an employer to know whether a job applicant has that ability is to observe him or her climbing with gaffs. The judge concluded that the plaintiff had “failed to demonstrate that he can safely climb poles by means of gaffs,” and that the defendant “was not required to eliminate the practicum exam of pole climbing by means of gaffs in order to accommodate the plaintiff.” Finally, the judge rejected the plaintiff’s contention that the defendant should have granted him additional time to accomplish the pole climbing. He reasoned that “[t]he timed testing was designed to increase safety. Accommodating the plaintiff by allotting him more time to accomplish the test would only endanger his job safety. The defendant is not obliged to dispense with reasonable requirements which ensure safety in the workplace.” Satisfied that the plaintiff is not a “qualified handicapped person” within the protection of G. L. c. 151B, the judge ordered judgment for the defendant. General Laws c. 15IB, § 4 (16), provides in material part that it shall be an unlawful practice “[f]or any employer . . . to . . . refuse to hire, rehire or advance in employment or otherwise discriminate against, because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer’s business. . . . Physical or mental job qualification requirement with respect to hiring, promotion, demotion or dismissal from employment or any other change in employment status or responsibilities shall be functionally related to the specific job or jobs for which the individual is being considered and shall be consistent with the safe and lawful performance of the job.” As used in c. 15IB, “[t]he term ‘handicap’ means (a) a physical or mental impairment which substantially limits one or more major life activities of a person; (b) a record of having such impairment; or (c) being regarded as having such impairment.” G. L. c. 15IB, § 1 (17). “The term ‘qualified handicapped person’ means a handicapped person who is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with reasonable accommodation to his handicap.” § 1 (16). The judge made no finding with respect to whether the plaintiff was a handicapped person during the relevant time period or as to whether the defendant refused to employ the plaintiff as an SST “because of his handicap.” Instead, the judge focused on whether “the plaintiff . . . show[ed] that he is a ‘qualified handicapped person,’ ” that is, “one who is able to perform the essential functions of the job, or who would be capable if reasonable accommodations were made for his handicap,” and he decided that the plaintiff was not such a person. We, too, shall concentrate on the issue of the plaintiff’s qualifications to be an SST. Since we decide that the judge did not err in concluding that the plaintiff is not a qualified handicapped person, we need not address the questions of the existence of a handicap or of causation. If he is not qualified for the SST job, as the judge determined, he is not entitled to relief under c. 15IB, and the judgment must be affirmed. This is our first opportunity to construe and apply the Commonwealth’s employment discrimination statute, G. L. c. 15IB, in a case in which discrimination on account of handicap is alleged. There is, however, considerable case law construing and applying the analogous Federal statute, § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1988), and we may look to those decisions for guidance. See White v. University of Mass. at Boston, 410 Mass. 553, 557 (1991) (analysis of a discrimination claim is essentially the same under State and Federal statutes). See generally Note, Employment Discrimination Against the Handicapped: An Analysis of Statutory and Constitutional Protections in Massachusetts, 21 New England L. Rev. 305, 305-332 (1986) (comparing G. L. c. 15IB and § 504). Section 504 of the Rehabilitation Act of 1973 provides in relevant part: “No otherwise qualified individual with handicaps in the. United States, as defined in § 706 (8) of this title, shall, solely by reason of his or her handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by an Executive agency or by the United States Postal Service . . . .” For purposes of § 504 of the Rehabilitation Act, “[i]n the employment context, an otherwise qualified person is one who can perform ‘the essential functions’ of the job in question. 45 C.F.R. § 84.3(k) (1985). When a handicapped person is not able to perform the essential functions of the job, the court must also consider whether any ‘reasonable accommodation’ by the employer would enable the handicapped person to perform those functions. Ibid. Accommodation is not reasonable if it either imposes ‘undue financial and administrative burdens’ on a grantee, Southeastern Community College v. Davis, 442 U.S. [397, 412 (1979)], or requires ‘a fundamental alteration in the nature of [the] program,’ id. at 410.” School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 n.17 (1987). Doherty v. Southern College of Optometry, 862 F.2d 570 (6th Cir. 1988). Reasonable accommodation does not require an employer to disregard or waive an employee’s inability to perform an essential function of the job. Gilbert v. Frank, 949 F.2d 637, 644 (2d Cir. 1991). Jasany v. United States Postal Serv., 755 F.2d 1244, 1250 (6th Cir. 1985). The term “otherwise qualified individual with handicaps” “refers to a person who is qualified in spite of his or her handicap” (emphasis in original). Doe v. New York Univ., 666 F.2d 761, 775 (2d Cir. 1981). Only if such a person, despite being handicapped, can perform the essential functions of the job, with or without reasonable accommodation, may he or she be entitled to relief. School Bd. of Nassau County v. Arline, supra at 287-288 n.17. Gilbert v. Frank, supra at 641. Hall v. United States Postal Serv., 857 F.2d 1073, 1078-1079 (6th Cir. 1988). Gardner v. Morris, 752 F.2d 1271, 1279-1280 (8th Cir. 1985). Prewitt v. United States Postal Serv., 662 F.2d 292, 305 (5th Cir. 1981). In most cases involving a claim of discrimination in employment on account of handicap, in order to answer the question whether the plaintiff is otherwise qualified, “the [trial judge] will need to conduct an individualized inquiry and make appropriate findings of fact. Such an inquiry is essential if § 504 is to achieve its goal of protecting handicapped individuals from deprivations based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to such legitimate concerns of [employers] as avoiding exposing others to significant health and safety risks.” School Bd. of Nassau County v. Arline, supra at 287. “Such a determination should be based upon more than statements in a job description and should reflect the actual functioning and circumstances of the particular enterprise involved.” Hall v. United States Postal Serv., supra at 1079. The trial judge’s subsidiary findings must stand unless, as a matter of law, they are unwarranted by the evidence, or they are clearly erroneous. Mass. R. Civ. P. 52 (a), 365 Mass. 816 (1974). Whether, based on those conclusions, a job function is “essential,” Hall, supra at 1079, or an accommodation is “reasonable,” Arneson v. Heckler, 879 F.2d 393 (8th Cir. 1989), is a legal conclusion subject to review. There is no significant distinction between the term “qualified handicapped person,” in G. L. c. 151B, and the term “otherwise qualified individual with handicaps,” in § 504 of the Rehabilitation Act. Indeed, the Federal regulations interpreting the Rehabilitation Act “generally use the term ‘qualified handicapped person,’ rather than ‘otherwise’ qualified handicapped person, on the reasoning that ‘the omission of the word “otherwise” is necessary in order to comport with the intent of the statute because, read literally, “otherwise” qualified handicapped persons include persons who are qualified except for their handicap, rather than in spite of their ha

BETTY v BROOKS & PERKINS Docket No. 121952. Submitted April 23, 1992, at Detroit. Decided January 19, 1993, at 9:25 a.m. Leave to appeal sought. Carnell Betty brought an action in the Wayne Circuit Court against Brooks & Perkins, her employer, alleging race and sex employment discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. The defendant alleged that its treatment of the plaintiff was mandated by a collective bargaining agreement and a letter of understanding. The court, William Leo Cahalan, J., granted summary disposition for the defendant, finding the plaintiff’s claim to be preempted by § 301 of the federal Labor Management Relations Act, 29 USC 185. The plaintiff appealed. The Court of Appeals held: The court erred in ruling that the plaintiff’s claim was preempted by federal labor law. Section 301 preempts a claim based upon state law only where the claim requires interpretation of a collective bargaining agreement. State courts are not preempted from determining questions of law involving labor relations where such questions do not involve construction of a collective bargaining agreement. The questions to be resolved in this case, whether the plaintiff was subjected to disparate treatment and, if so, whether the treatment was motivated by racial discrimination, are factual, regarding the motivation of the defendant, and not legal, requiring interpretation of the collective bargaining agreement. Where a plaintiff alleges discriminatory disparate treatment and the defendant claims that the treatment was in accordance with the terms of a collective bargaining agreement, there is no federal preemption of the discrimination claim. Reversed and remanded. Michael J. Kelly, J., dissenting, stated that the resolution of the plaintiff’s claims involves interpretation of the collective bargaining agreement. Rodrick K. Green, for the plaintiff. Reynolds, Beeby & Magnuson, P.C. (by Jonathan N. Wayman), for the defendant. Before: Jansen, P.J., and Michael J. Kelly and Griffin, JJ. Jansen, P.J. On July 2, 1985, plaintiff filed this action against defendant alleging discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. On September 22, 1989, the trial court granted defendant’s motion for summary disposition pursuant to MCR 2.116(0(10). Plaintiff appeals as of right, and we reverse. The sole issue raised on appeal is whether the trial court properly ruled that plaintiff’s claim was preempted by federal labor law. We conclude that the trial court erred in so ruling. Plaintiff alleged that she was discriminated against by defendant on the basis of race and sex. Specifically, plaintiff claims that she was laid off by defendant despite having passed a welding test, whereas a white male who failed the test was not laid off. Defendant alleged that its treatment of plaintiff was mandated by a collective bargaining agreement and a letter of understanding. Section 301 of the Labor Management Relations Act (lmra), 29 USC 185, preempts a claim based upon state law only where the claim requires interpretation of a collective bargaining agreement. Lingle v Norge Division of Magic Chef, Inc, 486 US 399, 413; 108 S Ct 1877; 100 L Ed 2d 410 (1988); Hall v Kelsey-Hayes Co, 184 Mich App 277, 280; 457 NW2d 143 (1990). State courts are not preempted from determining questions of law involving labor relations where such questions do not involve construing a collective bargaining agreement. Lingle, p 413; Hall, p 280. In this case, as in Hall, the focus of inquiry is not upon the interpretation of the collective bargaining agreement, but on whether plaintiff was the recipient of disparate treatment and whether that treatment was motivated by racial discrimination. Id., pp 279-281. The question to be resolved is a factual one regarding the motivation of defendant, and not the legal one of interpretation of the collective bargaining agreement. Id., p 280. Although it is true that state law discrimination claims that assert denial of rights under collective bargaining agreements necessarily require the interpretation of the agreement, and are therefore preempted by federal labor law, "where the plaintiff alleges discriminatory disparate treatment and the defendant claims that plaintiff’s treatment was in accordance with the terms of the collective bargaining contract, there is no federal preemption of plaintiff’s discrimination claims.” Id., pp 280-281. We conclude, consistent with Hall, that plaintiff’s claims are not preempted by § 301 of the lmra. We reverse the order of the trial court and remand the case for further proceedings. Reversed and remanded. Griffin, J., concurred. Michael J. Kelly, J. (dissenting). I dissent because I believe the plaintiff’s claims involve interpretation of the collective bargaining agreement, particularly those areas regarding seniority and layoff. I do not see how plaintiff’s claim of denial of shift preference can be resolved without interpretation of the collective bargaining agreement. It is inextricably intertwined because it involves seniority rights, job preference rights, and union grievance procedures. Resolution of these issues involves interpretation of the collective bargaining agreement, and I believe the trial court’s determination that federal law governs was correct. Metro v Ford Motor Co, 169 Mich App 549, 552-553; 426 NW2d 700 (1988).

Dianne M. Brunner vs. Stone & Webster Engineering Corporation & another. Norfolk. March 3, 1992. November 19, 1992. Present: Liacos, C.J., Wilkins, Nolan, Lynch, & O’Connor, JJ. Practice, Civil, Summary judgment, Appeal. Anti-Discrimination Law, Prima facie case, Burden of proof, Termination of employment, Sex. On a claim under G. L. c. 15IB by a former employee of an engineering firm alleging that she had been discharged because of her sex and in retaliation for her having complained of sexual harassment and discrimination, the judge properly granted summary judgment for the engineering firm where, even assuming that the plaintiff had demonstrated a prima facie case of sex discrimination under c. 15 IB, the engineering firm produced evidence that it had legitimate, nondiscriminatory reasons for discharging the plaintiff, and where the record demonstrated that the plaintiff would have no reasonable expectation of proving at trial that the engineering firm’s asserted reasons for discharging the plaintiff were merely pretexts. [699-700, 703-705] Where this court determined, on the record of summary judgment proceedings, that a plaintiff had no reasonable expectation of proving unlawful discrimination against her employer in violation of G. L. c. 15 IB, and this determination was dispositive of a separate claim alleging that plaintiff’s supervisor had unlawfully interfered with her contractural relations with her employer, this court concluded that summary judgment on the unlawful interference claim was correctly ordered for the defendant supervisor. [705-706] Civil action commenced in the Superior Court Department on April 18, 1989. The case was heard by Robert W. Banks, J., on a motion for summary judgment. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Frederick T. Golder for the plaintiff. David J. Kerman for the defendants. Robert C. Wiesel. O’Connor, J. In a seven-count complaint, the plaintiff alleges in count I that Stone & Webster Engineering Corporation (Stone & Webster) discharged her from employment because of her sex and in retaliation for her having complained of sexual harassment and discrimination in violation of G. L. c. 151B (1990 ed.). In count VII, the plaintiff alleges that the defendant Wiesel intentionally interfered with her contractual relations with Stone & Webster. The defendants moved for summary judgment on all seven counts and that motion was allowed in full. The plaintiff appealed from the grant of summary judgment on counts I, II, III, and VII, and the Appeals Court, in an unpublished memorandum and order, reversed the summary judgment on counts I and VII. The Appeals Court affirmed as to counts II and III. 31 Mass. App. Ct. 1113 (1991). We allowed the defendants’ application for further appellate review with respect to counts I (G. L. c. 151B against Stone & Webster) and VII (interference with contract against Wiesel). We hold that the Superior Court judge properly granted summary judgment to the defendants on counts I and VII. We affirm the judgment of the Superior Court. General Laws c. 151B, § 4 (1990 ed.), provides in pertinent part: “It shall be an unlawful practice: 1. For an employer . . . because of the . . . sex ... of any individual... to discharge from employment such individual . . . unless based upon a bona fide occupational qualification.” In a c. 151B case involving an assertion of sexual discrimination in employment, the plaintiff has the burden of persuading the fact finder that the employer intentionally discriminated against him or her on account of sex, and that, but for the discrimination, the employer would not have taken the complained-of action. McKenzie v. Brigham & Women’s Hosp., 405 Mass. 432, 434 (1989). Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 765 (1986). See Smith College v. Massachusetts Comm’n Against Discrimination, 376 Mass. 221, 227 n.8 (1978); Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 139 (1976). The plaintiff may meet his or her burden of proof “by establishing an unanswered prima facie case of discrimination.” McKenzie v. Brigham & Women’s Hosp., supra at 434, quoting Wheelock College v. Massachusetts Comm’n Against Discrimination, supra at 139. A plaintiff would clearly establish a prima facie case, for example, by showing that she is a woman whom the employer discharged despite her qualifications, and that the employer thereafter filled that position, or attempted to fill it, with a man with similar qualifications. “If a plaintiff establishes a prima facie case, but the defendant [employer] answers it by advancing lawful grounds for the action taken and produces evidence of underlying facts in support thereof, the plaintiff, in order to prevail, must persuade the fact finder by a fair preponderance of the evidence that the defendant’s asserted reasons were not the real reasons for the action. Smith College, supra at 229-230. Wheelock College, supra at 139.” McKenzie, supra at 435. In support of their motion for summary judgment, the defendants submitted portions of the deposition testimony of the plaintiff and of Robert Doneski, supervisor of Stone & Webster’s graphic arts group to which the plaintiff was assigned. The defendants also submitted an affidavit of the defendant Wiesel, chief engineer of Stone & Webster’s struc-' tural division, to whom Doneski reported. In addition, the record contains the plaintiff’s answers to interrogatories that had been propounded by a third defendant, a coworker who is no longer a party to this case. The uncontradicted portions of those materials present the facts we set forth below. The plaintiff was first employed by Stone & Webster in 1970 as a drafter. She received several promotions and had been a senior graphic designer in the graphic arts group for six years when her employment was terminated in July, 1988. She was supervised by several tiers of management. The defendant Wiesel, as the chief engineer of Stone & Webster’s structural division, was one of the plaintiff’s supervisors. From mid-1985 until the plaintiff’s layoff, the plaintiff was also supervised by Robert Doneski, who was the supervisor of the graphic arts group. Doneski reported to Wiesel. Mario Rubio-Ospina was the lead senior graphic designer and was in charge of assigning and receiving the plaintiff’s work. In 1974, the plaintiff was denied a promotion and was told that it was because she did not have children and a mortgage to support. The plaintiff pursued the issue and was promoted. Once, the plaintiff and a female coworker overheard two male employees discussing a pornographic movie. When that incident was reported, Stone & Webster addressed the situation through a supervisor. In 1973 and again in 1986, male coworkers made vulgar sexually-oriented statements to the plaintiff. Rubio-Ospina assigned menial work to the plaintiff and did so in a confusing and demeaning manner. In 1988, Rubio-Ospina attempted to persuade the plaintiff to alter her time cards and, when she refused, he stated loudly that she was “not a real help” to the group. On that same day, Ru-bio-Ospina threw a hard-boiled egg at the plaintiff and held up her work and asked, “[Wjhich cow did this job?” In June, 1983, someone put razor blades in and on the plaintiff’s desk, and in September, 1983, her wedding picture was missing from her desk and was later found in her locked desk drawer. The plaintiff reported some of these incidents to Stone & Webster’s management personnel, who responded in a manner designed to be corrective. The plaintiff lacked training on certain automated equipment. Three men and two women in the graphic arts group, not including the plaintiff, were trained on the Autographix machine. Some of the graphic arts group personnel, but not the plaintiff, were trained in the use of the Oxbery and computer graphics machines, which training the plaintiff declined to pursue. During the 1980’s, the graphic arts group of Stone & Webster suffered a significant decline in its workload. Also, during that period, the group increased its use of automated equipment.- As a result, the workforce of the graphic arts group was reduced. The company laid off six employees in 1984, two in 1986, and three in 1987. As the workload continued to decline in 1988, Stone & Webster laid off three more graphic designers in July, 1988. They were the plaintiff, another woman, and a man. Five men and two women were retained. Of the seven graphic designers retained, two, a man and a woman, had more seniority than the plaintiff. Of the remaining five, four were men and one was a woman. They had less seniority than the plaintiff. Of these five employees with less seniority than the plaintiff, three of the men and one woman had received specialized training in automated equipment. One man, F.M. Van Wart, had not. The three individuals who were laid off had not received specialized training. Supervisor Doneski testified in a deposition that the plaintiff had never been rated less than “effective” in her formal performance evaluations, that there was nothing wrong with the quality of her work, and that other company personnel from time to time had commended the plaintiff’s work. He also testified that, while at one time he had felt that the plaintiff’s productivity was high, it had subsequently slipped, and that the plaintiff’s initiative was “average.” Wiesel and Doneski met and discussed who would be laid off. They appraised the capability, technical expertise, job knowledge, initiative, versatility, productivity, and potential contributions of each graphics group member. They decided to retain all the group members who had specialized training in automated equipment. They also decided to retain Van Wart following their discussion of Van Wart’s “high capability and excellent work.” They laid off all the others. On appeal, Stone & Webster says that it laid off its employees because of a shortage of work, and selected the plaintiff for layoff because she lacked the training of, or was a less capable performer than, those individuals with less seniority who were retained. The plaintiff argues that Stone & Webster’s claim is a mere pretext, and that the reasons she was laid off were that she was a woman and she had complained of sexual harassment and discrimination on the job. Ordinarily, as we have suggested early in this opinion, the first question would be whether the plaintiff has established a prima facie case of discrimination. However, in this case, Stone & Webster has not argued that the plaintiff has failed to prove a prima facie case and that therefore Stone & Webster is entitled to summary judgment. Instead, Stone & Webster’s argument is that it has furnished credible evidence that its reasons for discharging the plaintiff were nondiscriminatory, that, as a result, in accordance with the analytical framework of shifting burdens set forth above, the plaintiff will have the burden of proving at trial that Stone & Webster’s stated reasons were no more than pretexts, and that it is apparent from the materials submitted to the judge that the plaintiff will be unable to provide that proof. In those circumstances, contends Stone & Webster, it is entitled to summary judgment. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711-716 (1991). Because Stone & Webster does not argue that the plaintiff has failed to establish a prima facie case for summary judgment purposes, we assume, without deciding, that a prima facie case has been demonstrated. It is clear, too, that Stone & Webster has produced evidence that it had legitimate, nondiscriminatory reasons for laying off the plaintiff. Therefore, we address the question whether the depositions, affidavit, and answers to interrogatories discussed above demonstrate that the plaintiff will be unable to prove at trial that Stone & Webster’s stated reasons were pretexts. We are satisfied that the materials show that the plaintiff will be unable to prevail at trial, and that the judge was correct in ordering summary judgment for Stone & Webster. The plaintiff supports her contention that Stone & Webster’s stated reasons were pretexts by asserting that (1) she was an “excellent,” not merely average, worker; (2) she was deliberately denied training on the automated equipment; and (3) she had been the victim of several incidents of sexual harassment by fellow workers and had repeatedly complained to her supervisors. We reject the plaintiffs first argument because nothing in the materials submitted pursuant to Mass. R. Civ. P. 56, 365 Mass. 824 (1974), refutes the evidence that, when the productivity levels, technical expertise, and skills of all the graphic arts group employees were compared, a good faith judgment was made by those with the responsibility to decide that the plaintiff was less qualified for the job than those who were retained. Nothing in the record suggests that gender-specific factors were used in evaluating the job performances of the several employees. See McKenzie v. Brigham & Women’s Hosp., 405 Mass. 432, 437 (1989); Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 767-768 (1986). The plaintiff’s second argument is that Stone & Webster’s assertion that the plaintiff was less qualified for continued employment because she was untrained in the use of automated equipment was a pretext because Stone & Webster had denied her repeated requests for such training. Nothing in the record shows that the plaintiff’s discharge was discriminatory. Furthermore, nothing in the record contradicts the fact, set forth in Doneski’s deposition, that the plaintiff declined to continue training on the Oxbery machine after a week of working in the photography room, and that the plaintiff turned down an opportunity to be trained on the computer graphics machine. The record does not show that, if this case were to go to trial, there would likely be a genuine issue concerning whether Stone & Webster unlawfully denied the plaintiff’s request for training and then relied on her lack of training to dismiss her. We have set forth in our statement of the uncontroverted facts a series of incidents of harassment of the plaintiff by coworkers during her eighteen years of employment. We point out that these incidents did not directly involve Doneski or Wiesel, the Stone & Webster supervisory personnel who ultimately made the determination to lay off the plaintiff. See Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 10 (1st Cir. 1990) (“The biases of one who neither makes nor influences the challenged personnel decisions are not probative in an employment discrimination case”). Furthermore, the summary judgment materials show that, when the plaintiff reported such incidents to management personnel, Stone & Webster supervisors immediately intervened and took corrective action. We conclude that the defendant has shown by material described in Mass. R. Civ. P. 56 (c), unmet by countervailing materials, that the plaintiff has no reasonable expectation of proving an essential element of her case, namely that, but for her sex, Stone & Webster would not have included her in the layoff. McKenzie v. Brigham & Women’s Hosp., supra at 434. Smith College v. Massachusetts Comm’n Against Discrimination, supra at 227 n.8. See Kourouvacilis v. General Motors Corp., supra at 716. In coming to that conclusion, we recognize that “where motive, intent, or other state of mind questions are at issue, summary judgment is often inappropriate.” Flesner v. Technical Communication Corp., 410 Mass. 805, 809 (1991). That is not to say, however, that, in such cases, summary judgment is always inappropriate. See McKenzie v. Brigham & Women’s Hosp., supra at 438 (racial discrimination); Lewis v. Area II Homecare for Senior Citizens, Inc., supra at 770 (racial discrimination); Godbout v. Cousens, 396 Mass. 254, 258-259, 261-263, 264-265 (1985) (defamation, intentional infliction of emotional distress). We are content that, in this case, summary judgment is appropriate. We turn briefly to count VII, the plaintiff’s claim that the defendant Wiesel intentionally interfered with her employment contract with Stone & Webster. In order to prevail on that claim at trial, the plaintiff would have to prove, among other things, that Wiesel’s actions in terminating her employment were the product of improper motive or means. G.S. Enters., Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 272 (1991). The crux of the plaintiff’s claim is that she was fired at Wiesel’s direction for discriminatory reasons and thus Wiesel was acting with an improper motive. Our determination that the Mass. R. Civ. P. 56 (c) materials demonstrate that the plaintiff has no reasonable expectation of proving unlawful discrimination against Stone & Webster is dispositive of the claim against Wiesel also. The record shows that the plaintiff cannot reasonably expect to show that, in terminating the plaintiff's employment, Wiesel acted with an improper motive. The judge in the Superior Court correctly ordered summary judgment for the defendants on counts I and VII. Judgment affirmed.

McLEMORE v DETROIT RECEIVING HOSPITAL AND UNIVERSITY MEDICAL CENTER Docket No. 134930. Submitted August 13, 1992, at Detroit. Decided October 19, 1992, at 10:10 a.m. Leave to appeal sought. Orrie C. McLemore brought an action in the Wayne Circuit Court against Detroit Receiving Hospital and University Medical Center and others, alleging sex discrimination, breach of an employment contract, and retaliatory discharge for her filing of a sex discrimination charge with the Equal Employment Opportunity Commission. The jury found that plaintiff’s employment was terminated in retaliation for filing the charge and that the defendants breached their employment contract with the plaintiff. The court, J. Phillip Jourdan, J., entered a judgment consistent with the jury verdict for the plaintiff for $465,445.72, including prejudgment interest. The defendants appealed from the portion of the judgment finding retaliatory discharge. The Court of Appeals held: 1. There was sufficient evidence to support the retaliation claim. Regardless of the vagueness of an employee’s charge or the lack of a formal invocation of the protection of the Civil Rights Act, if an employer’s decision to terminate or otherwise adversely effect an employee is a result of that employee’s raising the possibility of a discrimination complaint, retaliation prohibited by the act occurs. The evidence supports the inference that, in eliminating the plaintiff’s position, the defendants merely took advantage of an opportunity to do what they had been preparing to do, and that the economic necessity they asserted was a pretext. The trial court properly denied the defendants’ motion for judgment notwithstanding the verdict. References Am Jur 2d, Appeal and Error §§ 398, 404, 797; Civil Rights §§ 223-225, 446; Job Discrimination §§ 127-150. Award of attorneys’ fees under § 706(k) of Civil Rights Act of 1964 (42 USCS § 2000e-5(k)) authorizing court to allow prevailing party, other than Equal Employment Opportunity Commission or United States, reasonable attorney’s fee as part of costs in action under equal employment opportunities part of Act. 16 ALR Fed 643; Construction and application of § 704(a) of Civil Rights Act of 1964 (42 USC § 2000e-3(a)), making it unlawful employment practice to discriminate against individual for participation in equal opportunity proceedings or activities. 11 ALR Fed 316. 2. The trial court did not abuse its discretion in denying the defendants’ motion for a new trial. The verdict was not against the great weight of the evidence. 3. The trial court erred in instructing the jury that the defendants had the burden of proving their claim that the layoff was motivated by the hospital’s economic problems. However, because the jury returned a verdict it was told it could reach only if it found that the plaintiff had proven that the defendants had a retaliatory motive and that the economic justification the defendants put forth was a sham or pretext, the error could not have affected the verdict. Therefore, reversal is not required. 4. The defendants’ failure to provide the Court of Appeals with a transcript of the trial court’s ruling regarding their request for remittitur precludes review of their claim that the court erred in denying the request. 5. By not requesting attorney fees in the trial court and not filing a cross appeal, the plaintiff waived any right she may have had to attorney fees for work done before the entry of the judgment. 6. The Court of Appeals has discretion to award the plaintiff appellate attorney fees under the Civil Rights Act, MCL 37.2802; MSA 3.548(802). Remand to the trial court is appropriate for a determination and award of reasonable appellate attorney fees. Aifirmed and remanded. 1. Civil Rights — Discrimination Complaints — Retaliation. Regardless of the vagueness of an employee’s charge of a violation of the Civil Rights Act or the lack of formal invocation of the protection of the act, if an employer’s decision to terminate or otherwise adversely effect an employee is a result of that employee’s raising the possibility of a discrimination complaint, retaliation prohibited by the act occurs (MCL 37.2701; MSA 3.548[701]). 2. Appeal — Jury Instructions. Reversal is required because of an erroheous jury instruction only where the failure to reverse would be inconsistent with substantial justice. 3. Appeal •— Remittitur — Preserving Question — Transcripts. Failure to provide the Court of Appeals with a transcript of a trial court’s ruling on a motion for remittitur precludes consideration of the claim that the court erred in denying the motion (MCR 7.210[B][l][a]). 4. Civil Rights — Appellate Attorney Fees. The Court of Appeals may award appellate attorney fees in an action brought under the Civil Rights Act (MCL 37.2802; MSA 3.548[802]). Clayton C. Jones, for the plaintiff. Honigman Miller Schwartz & Cohn (by Thomas E. Marshall and Ingrid K. Brey), for the defendants. Before: Neff, P.J., and Gribbs and Shepherd, JJ. Shepherd, J. A jury found that defendants terminated plaintiff’s employment in retaliation for her filing a sex discrimination charge with the Equal Employment Opportunity Commission. Pursuant to the jury’s verdict, the trial court entered judgment for plaintiff for $465,445.72. Defendants appeal as of right. We affirm and remand for further proceedings. Plaintiff was a clinical instructor at defendant hospital’s school of radiologic technology. In February of 1982, defendant Thomas Gallagher, director of radiology, appraised plaintiff’s performance as "effective.” In March of 1983, the educational coordinator, defendant Gail Alexander, also evaluated plaintiff’s performance as "effective.” When Alexander became associate director of radiology, plaintiff applied for the vacant educational coordinator’s position. Her interview in September of 1983 did not go well. Gallagher focused his attention on what he felt were inaccuracies in plaintiff’s resume._ Gallagher, Alexander, and Dr. Kenneth Krabbenhoft, the chief director of radiology, ultimately chose a man for the position. Plaintiff filed a complaint with the hospital expressing concern that the hiring decision may have been the result of "bias,” and requesting an explanation for the decision in order to avoid "litigation.” Plaintiff was told the man was selected because of his superior qualifications. As part of their response to plaintiff’s complaint, Alexander and Gallagher sent plaintiff memoranda criticizing her job performance. The man did not work out and resigned. In January 1984, plaintiff once again applied for the position. Gallagher, Alexander, and Dr. Krabbenhoft selected defendant Donald Stokes to be the new educational coordinator. Almost immediately, Stokes too began criticizing plaintiff’s job performance. At the end of March 1984, he appraised plaintiff’s performance as "unsatisfactory.” On April 2, 1984, plaintiff filed a complaint with the eeoc, charging defendants with sex discrimination. For years the hospital had been having financial difficulties. In the spring of 1984, Gallagher ánd Alexander were asked to identify positions in the radiology department that could be eliminated as part of a hospital-wide staff reduction. They recommended eliminating plaintiff’s position. At the time, Gallagher knew plaintiff had filed a complaint with the eeoc. Plaintiff was laid off on May 31, 1984. Plaintiff filed this action, charging sex discrimination, breach of contract, and retaliatory discharge. The trial court directed a verdict for defendants with regard to the sex discrimination charge, a ruling plaintiff has not appealed. The jury returned a verdict for plaintiff, finding that retaliation was a significant factor in defendants’ decision to lay her off, and that defendants violated the hospital’s policies by laying her off and subsequently failing to rehire her. The jury awarded plaintiff $13,500 for economic damages and $250,000 for emotional distress. The trial court entered judgment on the verdict for plaintiff for $465,445.72, including prejudgment interest. i Defendants first contend there was insufficient evidence to support the retaliation claim. We disagree. Defendants moved for judgment notwithstanding the verdict, contesting the sufficiency of the evidence. The trial court denied the motion. When deciding a motion for judgment notwithstanding the verdict, a trial court must examine the testimony and all legitimate inferences that may be drawn therefrom in a light most favorable to the plaintiff. Reisman v Regents of Wayne State Univ, 188 Mich App 526, 538; 470 NW2d 678 (1991). If the evidence is such that reasonable jurors could have found for the plaintiff, neither the trial court nor this Court may substitute its judgment for that of the jury. Id. Defendants contend there was no evidence that the decision to eliminate plaintiff’s position was motivated by anything other than economic considerations. They argue that because plaintiff did not file her charge with the eeoc until April 2, 1984, what went on before that date cannot support her claim of retaliation. We disagree. The Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., prohibits employers from retaliating against an employee for making a charge, filing a complaint, testifying, assisting, or participating in an investigation, proceeding, or hearing under the act. MCL 37.2701; MSA 3.548(701). In Booker v Brown & Williamson Tobacco Co, Inc, 879 F2d 1304, 1312-1314 (CA 6, 1989), the federal court of appeals decided that the Civil Rights Act did not protect from retaliation an employee who had merely expressed concern to his employer about possible discrimination. We strongly disagree with this interpretation of the act. Regardless of the vagueness of the charge or the lack of formal invocation of the protection of the act, if an employer’s decision to terminate or otherwise adversely effect an employee is a result of that employee raising the spectre of a discrimination complaint, retaliation prohibited by the act occurs. We will not interpret the act to allow employers to peremptorily retaliate against employees with impunity. Doing so would be contrary to our state’s policy of protecting employees who are about to report a suspected violation of law. See MCL 15.362; MSA 17.428(2). The core issue in this case was defendants’ motivation for eliminating plaintiff’s job. Plaintiff did not dispute that defendant hospital’s financial distress was genuine, and that some jobs would have to be eliminated. Plaintiff contended her job was selected because defendants wanted to get rid of her for making a discrimination charge. Plaintiff produced no direct evidence that defendants’ motives were less than pure. The question therefore is whether the circumstantial evidence plaintiff did produce, when viewed in the light most favorable to plaintiff, was sufficient for the jury to legitimately infer that defendants were motivated by a desire to retaliate. Plaintiff presented evidence that defendants had begun to compile a paper record that would support her discharge long before the layoff. This evidence supports the inference that in eliminating her position, defendants merely took advantage of an opportunity to do what they had been preparing to do, and that the economic necessity was a pretext. Plaintiff presented evidence that defendants, who previously judged her job performance as effective, suddenly viewed it as unsatisfactory after she raised the issue of bias. In fact, the barrage of criticism of plaintiffs job performance actually began as defendants’ official response to plaintiffs internal complaint. This supports the inference that it was the internal complaint with its implied threat of a formal discrimination complaint and not-so-implied threat of litigation that caused the sudden change in how defendants viewed plaintiffs worth. Defendants point out that neither in the internal complaint nor in the meeting that followed did plaintiff expressly discuss sex discrimination. While this is relevant, we believe a rational trier of fact could still conclude that defendants’ reaction to the complaint was motivated by a fear that plaintiff, a black female, would eventually file a complaint charging some type of prohibited bias, either race or sex discrimination. From the moment they learned plaintiff was concerned about bias, defendants began doing things that could make a case for terminating her employment. They sent numerous memoranda to her criticizing her job performance. Yet she was being criticized for problems with the school outside her control, and for not completing tasks she had not been given. These memoranda and plaintiff’s performance evaluations express a level of overall dissatisfaction with her work that is difficult to reconcile with the praise she had received before her complaint. A rational trier of fact could infer that all this was motivated by a fear of an eeoc charge and litigation to follow. When plaintiff filed her complaint with the eeoc, defendants’ fears were realized, and they responded by using the first available opportunity to rid themselves of her. Furthermore, there was evidence of a hospital policy to offer laid-off employees other positions to the extent such positions were available. Plaintiff presented evidence that the policy was deliberately ignored in her case. Therefore, the evidence, viewed in a light most favorable to plaintiff, supports the inference that she was laid off in retaliation for charging defendants with sex discrimination. The trial court did not err in denying the motion for judgment notwithstanding the verdict. ii Defendants also contend that the trial court erred in denying their motion for a new trial. We disagree. Defendants argued below that they were entitled to a new trial because the verdict was against the great weight of the evidence. See MCR 2.611(A)(1)(e). The trial court disagreed. A trial court’s decision on such a motion is discretionary, and will not be disturbed unless an abuse of that discretion is shown. Bosak v Hutchinson, 422 Mich 712, 737; 375 NW2d 333 (1985). The jury, with sufficient evidence before it, found that the evidence established plaintiff’s claims. The trial court, with its unique vantage point of both the evidence and the proceedings, found the verdict not to be against the great weight of the evidence. Our reading of the record does not show that ruling to have been an abuse of the trial court’s discretion. in Defendants next argue that the trial court erred in instructing the jury about the burden of proof. The trial court told the jury that plaintiff had the burden of proving that retaliation played a significant role in her layoff. The court instructed the jury that plaintiff had the burden of proving that defendants’ claim of economic necessity was a sham or pretext. However, the court also told the jury that the defendants had the burden of proving their claim that the layoff was motivated by the hospital’s economic problems. The trial court’s instruction was erroneous. As the party seeking to change the status quo, the burden of proof was on plaintiff to show that she was entitled to the relief she sought. Although the burden of production may have shifted to defendants to articulate a legitimate reason for laying plaintiff off, the burden of proof did not shift. See Polk v Yellow Freight System, Inc, 876 F2d 527, 531 (CA 6, 1989). If a jury charge is erroneous, reversal is required only where failure to reverse would be inconsistent with substantial justice. Reisman, supra, p 532. Although the trial court erred in instructing the jury, we find that the error could not have affected the verdict, and, therefore, do not reverse. The parties’ claims concerning defendants’ motivation for eliminating plaintiff’s job were mutually exclusive. Either defendants were motivated by a desire to retaliate for the discrimination complaint as plaintiff claimed, or they were motivated by the economic situation, as defendants claimed. Although the jury instructions were erroneous, the error could only affect the verdict in one situation. If a preponderance of the evidence demonstrated that defendants were retaliating while using the economic situation as a pretext, then, according to the instructions given, the jury would properly return a verdict for plaintiff. If a preponderance of the evidence demonstrated that the layoff was motivated by the economic situation, and that a desire to retaliate was not a significant factor in the decision, then the jury would properly return a verdict for defendants. It is only if the jury could not decide what defendants’ motivation was, if the evidence was in equipoise, that the instructional error would have any effect. The jury was not told what to do in such a situation. A properly instructed jury would know to return a verdict for defendants. The record makes it clear that the jury did not find the evidence to be in equipoise. The jury returned a verdict it was told it could reach only if it found that plaintiff had proven that defendants had a retaliatory motive and plaintiff had also proven that the economic justification defendants put forth was a sham or pretext. Therefore, the instructional error could not have affected the verdict and, therefore, is not grounds for reversal. IV Defendants contend that the trial court erred in denying their request for remittitur. The jury awarded plaintiff $250,000 for the emotional distress she suffered. Defendants did not object to the verdict form, nor did they object to the instructions regarding how the jury should arrive at an amount for compensating plaintiff. When deciding a motion for remittitur, a trial court must determine whether the jury verdict is for an amount greater than the evidence can support. MCR 2.611(E). When reviewing the trial court’s decision, this Court must afford due deference to the trial court’s unique ability to evaluate the jury’s reaction to the evidence, and only disturb the trial court’s decision if there has been an abuse of discretion. Palenkas v Beaumont Hosp, 432 Mich 527, 533-534; 443 NW2d 354 (1989). The trial court considered defendants’ motion for remittitur and ruled from the bench on October 19, 1990. On November 2, 1990, the trial court signed an order denying the motion "for the reasons stated on the record.” Defendants have not provided this Court with a transcript of the proceedings of October 19, 1990, something they were required to do. See MCR 7.210(B)(1)(a). On the record before us we can only say that there was evidence that plaintiff suffered emotional distress as a result of defendants’ actions, the jury thought that $250,000 would adequately compensate plaintiff for her distress, and the trial court decided that defendants were not entitled to remittitur. Without the record of the trial court’s ruling from the bench, it is simply not possible for us to determine whether the trial court abused its discretion or properly exercised it. See Wilson v General Motors Corp, 183 Mich App 21, 40; 454 NW2d 405 (1990) (remittitur of mental anguish award to $375,000 not an abuse of discretion). We find defendants’ failure to provide this Court with a transcript of the ruling to preclude our review of this issue. See Brown v JoJo-Ab, Inc, 191 Mich App 208, 210; 477 NW2d 121 (1991). v Plaintiff asks this Court to remand for an award of post-verdict attorney fees. Plaintiff filed no cross appeal. She requested no attorney fees in the trial court. Therefore, she has waived any right she may have had to attorney fees for work done before entry of judgment. MCL 37.2802; MSA 3.548(802); MCR 2.625(F). Plaintiff apparently seeks to recover the attorney fees incurred defending this appeal. This Court has not previously decided whether appellate attorney fees are recoverable under MCL 37.2802; MSA 3.548(802). The subject of this appeal, plaintiff’s action, was

RASHEED v CHRYSLER MOTORS CORPORATION Docket No. 129620. Submitted July 14, 1992, at Detroit. Decided October 5,1992, at 9:00 a.m. Leave to appeal sought. Muhammad Rasheed brought an action in the Wayne Circuit Court against his former employer, Chrysler Motors Corporation, and former supervisor, James Senart, alleging, inter alia, that his disciplinary discharge and prior suspensions were motivated by religious discrimination. Before filing suit, the plaintiff initiated grievance procedures that resulted in his eventual rejection of an offer of reinstatement with full seniority but without back pay. A jury returned a verdict for the plaintiff and awarded him damages, and the court, Richard P. Hathaway, J., ordered Chrysler to offer the plaintiff employment as a new employee with no seniority. The defendants appealed, and the plaintiff cross appealed. The Court of Appeals held: 1. The trial court did not abuse its discretion in denying the defendants’ motion for a directed verdict. Reasonable jurors could have reached different conclusions with regard to the plaintiff’s claim of religious discrimination after he presented a prima facie case based on disparate treatment and the defendants presented nondiscriminatory reasons for the treatment. 2. The trial court did not abuse its discretion in limiting the admissibility of the plaintiff’s personnel file to that portion that related to the three years immediately preceding his discharge. The ruling was consistent with the parties’ collective bargaining agreement, which provided that only that time period could be considered in deciding whether an employee could be discharged. Furthermore, evidence of the plaintiff’s personnel records before that period would have been more prejudicial than probative. 3. Under the circumstances of this case, the trial court did not abuse its discretion in ordering that the plaintiff be reinstated, but treated as a new employee. Although the plaintiff forfeited any right to back pay when he refused Chrysler’s offer of reinstatement, he did not forfeit the right to reinstatement. References Am Jur 2d, Civil Rights §§ 193, 307-309, 432-435, 438-442; Job Discrimination §§ 1231-1245; 2414. See the Index to Annotations under Backpay; Discharge from Employment or Office; Discrimination; Equal Employment Opportunity. 4. The trial court did not err in limiting the plaintiff’s recovery of damages to injuries that occurred within the statutory period of limitation for his claim. The period was not tolled under the "continuing violations” theory because the plaintiff failed to establish that the last act of discrimination was part of a series of past discrimination of which he became aware only at the time of the last act. Affirmed. J. C. Kingsley, J., dissenting in part, stated that a discharged employee’s refusal of an employer’s unconditional offer of reinstatement, unless reasonable under the circumstances, should forfeit the employee’s right to reinstatement. 1. Civil Rights — Wrongful Discharge — Mitigation of Damages — Offers of Reinstatement — Back Pay. An employer’s unconditional offer to reinstate an employee allegedly discharged in violation of the employee’s civil rights tolls the employer’s liability for back pay because rejection of the offer constitutes a failure to mitigate damages. 2. Civil Rights — Wrongful Discharge — Reinstatement. A discharged employee who prevails against the employer in an action for discrimination under the Civil Rights Act does not automatically forfeit the right to reinstatement for refusing, before the filing of the action, an unconditional offer of reinstatement by the employer (MCL 37.2101 -et seq.; MSA 3.548[101] et seq.). 3. Civil Rights — Limitation of Actions — Continuing Violation. The statute of limitations applicable to actions for discrimination under the Civil Rights Act may be tolled in a case involving a continuing violation, i.e., one where a present violation is suffered within the limitation period and where there is a policy of discrimination, a continuing course of conduct, and present effects of past discrimination (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). Durant & Durant, P.C. (by Kirsten Frank), for the plaintiff. Dickinson, Wright, Moon, Van Dusen & Freeman (by George R. Ashford and Eric J. Pelton), for the defendants. Before: Fitzgerald, P.J., and Hood and J. C. Kingsley, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Hood, J. Plaintiff brought an action for religious and racial discrimination, intentional infliction of emotional distress, religious harassment, and fraud against his employer and immediate supervisor. All claims except the religious discrimination claim were dismissed following defendants’ motion for a directed verdict at the close of plaintiffs proofs. Defendants appeal as of right from a judgment in plaintiffs favor and from the trial court’s order of reinstatement. Plaintiff cross appeals from the trial court’s ruling that prohibited him from collecting damages for discriminatory acts that occurred outside the three-year period of limitation and from the trial court’s refusal to order full reinstatement, with seniority and back pay, to his former position. We affirm. Plaintiff had been employed by defendant Chrysler Motors Corporation since 1967. The parties stipulated that, in 1978, plaintiff became a member of the American Muslim Mission. In 1981, plaintiff transferred from Chrysler’s Hugo Foundry plant to its Trenton plant. Plaintiff asserts that after the transfer he was subjected to daily harassment relating to his religious beliefs from both co-workers and his supervisor, defendant James Senart. Plaintiff produced evidence at trial that he made known the difficulties he was experiencing to his supervisor and other managerial and union personnel but that they failed to rectify the problem. Senart informed plaintiff of his dislike for those who adhere to plaintiff’s religion and often encouraged or participated in the harassment. Plaintiff was involved in three disciplinary incidents shortly before being discharged. The first involved plaintiff’s attempt to participate in the fast of Ramadan, which began near the first of June 1984. During this holy month, plaintiff was required to fast from sunup until sundown. He could not break his fast during his regularly scheduled lunch period (8:00 p.m. until 8:30 p.m.). Although Senart would not accommodate his need to take a later lunch break, plaintiff was able, when Senart went on vacation, to make arrangements with the substitute supervisor, Pat Crowe, to take a later break. When Senart returned, he revoked this privilege and suspended plaintiff for one day for abuse of lunch privileges. Plaintiff denied abusing the lunch break and was eventually reimbursed for this involuntary layoff. Shortly after the one-day suspension, plaintiff received a three-day suspension for disobeying his supervisor’s direct order to retrieve certain script charts. Plaintiff denied disobeying the order and pointed out that the suspension came on the heels of his refusal to work voluntary overtime. Plaintiff was also reimbursed for this suspension. On July 12, 1984, the day of the suspension that led to his discharge, plaintiff was charged with destroying company property, specifically, scrap cylinder heads. Plaintiff maintains that he handled the cylinder heads in the usual manner and tossed them into the divider with the normal amount of force used when handling scrap heads. After tossing the heads into the divider, plaintiff was escorted out of the plant by two guards. A week later, plaintiff was notified by mail of his discharge. Plaintiff availed himself of the grievance procedure provided in his union contract to challenge his discharge. Thirteen months later, pursuant to a settlement between his union and Chrysler, plaintiff was offered his job back with seniority, but without back pay, and with the discharge reduced to a disciplinary layoff. Plaintiff refused the offer because it did not include back pay and because he felt the offer was conditioned upon him admitting that he committed the infraction for which he was discharged. The grievance was not arbitrated. This suit followed. Plaintiff prevailed on his claim of religious discrimination, and the jury awarded him damages in the amount of $61,300. After trial, a hearing was held to determine whether the trial court would use its equitable powers to reinstate plaintiff to his former position. The court ruled that defendant was to offer plaintiff employment as a new employee, that is, with no seniority, within the following sixty days. Defendants first argue that the trial court erred in denying their motion for a directed verdict on plaintiff’s religious discrimination claim. This Court reviews a trial court’s denial of a motion for a directed verdict for an abuse of discretion. Howard v Canteen Corp, 192 Mich App 427, 431; 481 NW2d 718 (1992). This Court reviews all the evidence, including all reasonable inferences that can be drawn from it, in the light most favorable to the nonmoving party to determine whether there existed a question of fact for the jury’s determination. Stoken v J E T Electronics & Technology, Inc, 174 Mich App 457, 463; 436 NW2d 389 (1988). To successfully bring a religious discrimination claim under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., a plaintiff must make a prima facie showing of religious discrimination by demonstrating either disparate treatment or intentional discrimination. Pitts v Michael Miller Car Rental, 942 F2d 1067, 1070 (CA 6, 1991); Smith v Consolidated Rail Corp, 168 Mich App 773, 778; 425 NW2d 220 (1988). To establish disparate treatment, the 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. Singal v General Motors Corp, 179 Mich App 497, 503; 447 NW2d 152 (1989). The employer then has the burden of establishing a legitimate reason for the treatment. If the employer carries its burden, the’ plaintiff must establish that the reason or reasons presented by the employer were a mere pretext. Pitts, supra. The plaintiff may establish pretext by showing either that it is more likely that a discriminatory reason motivated the employer’s action or that the reasons proffered are simply not credible. Pitts, supra at 1071. Plaintiff’s claim is essentially one of disparate treatment. Plaintiff alleges that he was discharged for engaging in conduct that other employees regularly engaged in without being discharged. He further asserts that he was treated differently because he is a Muslim. Plaintiff established through his own testimony as well as the testimony of Larry Allen, Benny Wright, and Terri Williams that he was discharged for tossing a scrap cylinder head into a divider and that others engaging in similar conduct were not fired. In response, defendants offered testimony establishing that plaintiff was fired for destroying company property. There was testimony from Charles Ferns and Senart that the cylinder head was destroyed and there was damage to the plant floor caused by plaintiff’s throwing the head into the divider. It was then necessary for plaintiff to establish that defendants’ reasons for discharging him were a mere pretext. Plaintiff presented testimony from Larry Allen that the cylinder head was not destroyed and that there was no damage to the floor. Further, plaintiff testified about a history of harassment from defendant Senart concerning plaintiff’s religion. In addition, there was testimony from Senart that plaintiff was a good repairman and a productive and capable worker. The resolution of this case rests almost entirely on the jurors’ assessment of each witness’ credibility. The verdict rendered indicates that, in the jury’s estimation, plaintiffs testimony and the testimony of witnesses who supported his version of the events were more credible than defendants’ testimony. If reasonable jurors could reach different conclusions, a motion for a directed verdict should be denied. The trial court cannot substitute its judgment for that of the jury. Jenkins v Raleigh Trucking Services, Inc, 187 Mich App 424, 427; 468 NW2d 64 (1991). The trial court did not commit error requiring reversal when it denied defendants’ motion for a directed verdict. Defendants next argue that the trial court erred in refusing to allow plaintiffs entire personnel file into evidence. The decision to admit evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Michigan Microtech, Inc v Federated Publications, Inc, 187 Mich App 178, 186; 466 NW2d 717 (1991). An abuse of discretion is found only if an unprejudiced person, considering the facts on which the trial court acted, would say that there was no justification or excuse for the ruling made. People v Milton, 186 Mich App 574, 576; 465 NW2d 371 (1990). Only relevant evidence is admissible. MRE 402. However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. MRE 403; Dunn v Nundkumar, 186 Mich App 51, 55; 463 NW2d 435 (1990). The trial court ruled that, under the collective bargaining agreement, defendants were allowed to go back only three years when making a decision to discharge and that, therefore, those were the only relevant years. However, the trial court also determined that, if older information contained in plaintiffs personnel file was needed for impeachment purposes, it would make a ruling at the time the issue arose during trial. The trial court did not abuse its discretion by disallowing the introduction of plaintiff’s entire personnel file. As noted by the trial court, evidence of plaintiffs disciplinary history before the three-year period was not relevant to the decision to discharge. Further, even if marginally relevant, the evidence was substantially more prejudicial than probative. The trial court provided adequate reasons for its ruling on the record and gave defendants an opportunity to use the excluded evidence for impeachment purposes. Next, both plaintiff and defendants find fault with the trial court’s order of reinstatement. At the reinstatement hearing, the trial court ordered defendants to offer plaintiff a position as a new employee within sixty days. Plaintiff had been offered his old job with full seniority and benefits a little over a year after his discharge pursuant to the union’s settlement of his grievance against Chrysler. The discharge was to be reduced to a disciplinary layoff. Defendants argue that plaintiff forfeited his right to back pay and reinstatement because he failed to accept their unconditional offer of reinstatement. Plaintiff argues that he should have been reinstated with back pay and seniority. As stated before, plaintiff declined the offer. An employee who is wrongfully discharged has an obligation to mitigate damages by accepting employment of a "like nature.” In determining whether employment is of a like nature, the trial court looks at the type of work, the hours, the wages, and the working conditions. Hughes v Park Place Motor Inn, Inc, 180 Mich App 213, 220; 446 NW2d 885 (1989). Defendants argue that the trial court erred in reinstating plaintiff when it had ruled earlier, when it limited back pay, that plaintiff had unreasonably rejected an unconditional offer of reinstatement. Plaintiff argues that the trial court should have reinstated him with back pay and seniority. Plaintiff further argues that accepting the initial reinstatement offer would not have made him whole because the religious discrimination would have continued. He also argues that, at the time he rejected the offer, he thought acceptance meant forfeiting his right to pursue other legal remedies. The record, however, does not support plaintiff’s last claim. It is clearly stated in the offer of reinstatement that the settlement of the grievance would not affect the outcome of any other proceeding. In support of his position that he is entitled to reinstatement and back pay, plaintiff cites Ford Motor Co v Equal Employment Opportunity Comm, 458 US 219; 102 S Ct 3057; 73 L Ed 2d 721 (1982), Morvay v Maghielse Tool & Die Co, Inc, 708 F2d 229 (CA 6, 1983), and Boomsma v Greyhound Food Management, Inc, 639 F Supp 1448 (WD Mich, 1986). In Ford, supra at 731, the Court noted that the purpose of the reinstatement rule was to encourage compliance with civil rights laws because reinstatement addresses the discriminatory effect of an unfair discharge. This conclusion is also supported by Morvay, supra. In Boomsma, supra, however, the plaintiff, who was not seeking reinstatement, forfeited his right to back pay because of his refusal to accept the employer’s offer of reinstatement even though earlier in the opinion the court held that the employer had failed to adequately accommodate the plaintiff’s religious beliefs. Plaintiff’s primary complaint in the case at bar was that he was discharged for discriminatory reasons. Reinstatement to his former position would have reversed that discriminatory act. However, none of the cases cited by plaintiff justify his refusal to accept Chrysler’s offer of reinstatement, although they do support the conclusion that reinstatement is a preferred and uniquely effective remedy for a discriminatory discharge. We agree with defendants that plaintiff is not entitled to any back pay that accrued after the date of the first offer of reinstatement. An unconditional offer of reinstatement tolls an employer’s liability for back pay because rejecting it constitutes a failure to mitigate damages. See Hughes, supra at 220; see also Figgs v Quick Fill Corp, 766 F2d 901, 904 (CA 5, 1985); Morvay, supra; O’Donnel v Georgia Osteopathic Hosp, Inc, 748 F2d 1543, 1550-1551 (CA 11, 1984); Fiedler v Indianhead Truck Line, Inc, 670 F2d 806 (CA 8, 1982). However, despite federal precedent to the contrary, including Boomsma, we disagree with defendants’ contention that plaintiff’s rejection of Chrysler’s offer also automatically forfeits his right to reinstatement. See Giandonato v Sybron Corp, 804 F2d 120, 125 (CA 10, 1986) (employee’s refusal of unconditional offer of reinstatement forfeited right to back pay and reinstatement); Stanfield v Answering Service, Inc, 867 F2d 1290, 1296 (CA 11, 1986) (refusal of offer of reinstatement, unless reasonable, forfeits employee’s right to reinstatement). Although federal precedent is persuasive, this Court is not bound to follow it even where there is no Michigan law on point. We feel that following federal precedent in this case would lead to an unduly harsh result. Further, it would unnecessarily interfere with the trial court’s ability to fashion an appropriate remedy. Flexibility in that regard is crucial to implementing justice in light of the jury’s verdict. In this case, on the basis of hotly contested evidence, the jury found that plaintiff had been the victim of religious discrimination. The trial court, although expressing disagreement with that result, had no power to substitute its judgment and overturn the jury’s verdict. The court further had an affirmative obligation to implement the verdict and remedy the discrimination found. The trial court could reasonably conclude that awarding plaintiff only the one year of back pay that accrued before the first offer of reinstatement was insufficient under the circumstances. The trial court did not abuse its discretion in exercising its equitable powers and reinstating plaintiff, albeit without seniority. However, this Court does not hold that reinstatement is required in all similar situations, only that ordering it in this case was not an abuse of discretion. Plaintiff next argues that the trial court erred in limiting his damages to injuries that occurred within the th

BEDKER v DOMINO’S PIZZA, INC Docket No. 126784. Submitted May 21, 1992, at Detroit. Decided September 8, 1992, at 9:45 a.m. Robert Bedker, as next friend of Scott M. Bedker, a minor, brought an action in the Wayne Circuit Court against Domino’s Pizza, Inc., RPM Pizza, Inc., and Thomas Monaghan, alleging sex discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., after his employment was terminated because his hair did not conform to the defendants’ grooming policy that required men to cut their hair at or above the collar. The court, John A. Murphy, J., granted summary disposition for the defendants. The plaintiff appealed. The Court of Appeals held: 1. Title VII of the Civil Rights Act of 1964, 42 USC 2000e et seq., is substantially the same as Michigan’s Civil Rights Act with regard to sex discrimination provisions. Therefore, federal case law interpreting title VII is persuasive authority for resolving cases brought under the Michigan act. Federal courts have held that sex-differentiated hair-length grooming requirements do not constitute sex discrimination under title VIL 2. Title VTl protection does not encompass those characteristics not inherently immutable, such as different grooming standards for men and women. Title VII was not intended to interfere with grooming policies that have no significant effect upon the employment opportunities afforded one sex in favor of the other. Title VII may be violated when the grooming code that applies to each sex is not equally burdensome or when the overall grooming code is not enforced in an evenhanded manner. 3. There is no allegation in this case that each sex’s individual grooming requirements were not enforced evenhandedly or that the overall grooming policy burdens one sex more than the other so as to favor the employment of one sex. _4. Because the defendants’ grooming standards would not violate title VII, they do not violate Michigan’s Civil Rights Act. References Am Jur 2d, Civil Rights § 146. Employer’s enforcement of dress or grooming policy as unlawful employment practice under § 703(a) of Civil Rights Act of 1964 (42 USCS § 2000e-2(a)). 27 ALR Fed 274. Affirmed. Civil Rights — Sexual Discrimination — Employment — Sex-Differential Grooming Requirements. Sex-differential hair-length grooming requirements for employment do not constitute sexual discrimination under the Michigan Civil Rights Act; the act is violated where the grooming code that applies to each sex is not equally burdensome and favors the employment of one sex over the other or where the overall grooming code is not enforced in an evenhanded manner; a grooming standard that does not violate title VII of the federal Civil Rights Act of 1964 does not violate the sexual discrimination provisions of the Michigan Civil Rights Act (42 USC 2000e et seq.; MCL 37.2101 et seq.; MSA 3.548[101] et seq.). Kelman, Loria, Downing, Schneider & Simpson (by Michael L. Pitt), for the plaintiff. Miller, Canfíeld, Paddock & Stone (by David B. Gunsberg), for RPM Pizza, Inc. Pear, Sperling, Eggan & Muskovitz, P.C. (by Melvin J. Muskovitz and Francyne Stacey), for Domino’s Pizza, Inc., and Thomas Monaghan. Before: Michael J. Kelly, P.J., and Mackenzie and Brennan, JJ. Brennan, J. Plaintiff appeals as of right from a March 8, 1990, order granting defendants summary disposition. Plaintiff filed suit alleging sex discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., after his employment was terminated because his hair fell below his shirt collar in violation of defendants’ grooming policy. We affirm. Plaintiff began working for RPM Pizza, Inc., a franchise of Domino’s Pizza, Inc., in November 1986 as a counter person. At the time plaintiff was hired, rpm had in place a single grooming policy applicable to both males and females that provided: Hair—there shall be no loose hair. All hair is to be restrained by a baseball cap or a hair net is required. Must be tucked under a hat so hair is not on forehead or visible from the front of the hat. Must be at or above the collar. In order to comply with the policy, men with longer hair would tuck their hair into a cap. In January 1988, in order to comply with Domino’s grooming policy, rpm announced that men would now have to cut their hair at or above the collar to be in compliance with rpm’s grooming policy. Plaintiffs employment was terminated after he refused to cut his hair in compliance with the policy. A written version of the modified policy was distributed in March 1988. Plaintiff subsequently filed this suit. Plaintiffs amended complaint alleged that defendants violated the Civil Rights Act when they applied their unisex grooming policy in a disparate manner by requiring only men to cut their hair at or above the collar. Defendants moved for summary disposition, arguing that rpm’s policy was modified to provide for sex-specific grooming policies, in conformance with Domino’s policy and that there was no disparate treatment. The court granted defendants summary disposition, finding that defendants had in place sex-specific policies and that there was no evidence of disparate treatment with respect to enforcement of the sex-specific grooming policies. On appeal, plaintiff argues that the court erred in granting summary disposition because a question of fact existed whether rpm had in place a sex-neutral, rather than a sex-specific, grooming policy that was applied in a disparate manner when plaintiff was fired. The court apparently granted summary disposition pursuant to MCR 2.116(C) (10). In deciding a motion brought under this subrule, the court must give the benefit of reasonable doubt to the nonmovant and determine whether a record might be developed that would leave open an issue upon which reasonable minds could differ. Werth v Taylor, 190 Mich App 141, 145; 475 NW2d 426 (1991). The issue whether a male-only hair-length grooming requirement constitutes sex discrimination has never been determined by a Michigan court pursuant to Michigan’s Civil Rights Act. However, the issue has been addressed by federal courts in regard to title VII of the Civil Rights Act of 1964, 42 USC 2000e et seq. Michigan’s Civil Rights Act is substantially the same as title VII with regard to its sex discrimination provisions. This Court has held that federal civil rights cases interpreting title VII are persuasive authority for resolving cases brought pursuant to the Michigan act. Northville Public Schools v Civil Rights Comm, 118 Mich App 573, 576; 325 NW2d 497 (1982). A review of the federal case law reveals that it is irrelevant whether a sex-neutral or sex-specific policy is in effect. Federal courts have held that sex-differentiated hair-length grooming requirements do not constitute sex discrimination under title VII. See Fagan v National Cash Register Co, 157 US App DC 15; 481 F2d 1115 (1973); Dodge v Giant Food, Inc, 160 US App DC 9; 488 F2d 1333 (1973); Willingham v Macon Telegraph Publishing Co, 507 F2d 1084 (CA 5, 1975); Longo v Carlisle DeCoppet & Co, 537 F2d 685 (CA 2, 1976). The courts, for the most part, found that title VII protection does not encompass those characteristics not inherently immutable, such as different grooming standards for men and women. The courts reasoned that title VII was never intended to interfere with grooming policies that have no significant effect upon the employment opportunities afforded one sex in favor of the other. See cases cited above. See also 1 Larson, Employment Discrimination, § 41.11, pp 8-112—8-127. Plaintiff misconstrues the disparate-treatment test in title VII cases. It is irrelevant whether defendants had a sex-specific grooming policy or a unisex grooming policy with an unwritten requirement that men wear their hair cut above the collar. Courts have held that such unwritten policies do not violate title VII. Miller v Missouri P R Co, 410 F Supp 533 (WD Mo, 1976). Title VII may, however, be violated when the grooming code that applies to each sex is not equally burdensome or when the overall grooming code is not enforced in an evenhanded manner. Equal Employment Opportunity Commission Compliance Manual, §619, p 3602, Dodge, supra, p 13, Willingham, supra, p 1092, and Knott v Missouri P R Co, 527 F2d 1249, 1252 (CA 8, 1975). However, see contra Fountain v Safeway Stores, Inc, 555 F2d 753 (CA 9, 1977). An example of uneven enforcement of a grooming code would be if an employer has a dress and grooming policy for men and women but only enforces the male hair-length provision. Equal Employment Opportunity Commission Compliance Manual, § 619, p 3602. In this case, there is no allegation that each sex’s individual grooming requirements were not enforced evenhandedly. Further, plaintiff does not contend that the overall grooming policy burdens one sex more than the other so as to favor the employment of one sex over the other. Accordingly, we find that because defendants’ grooming standards would not violate title VII, they do not violate Michigan’s Civil Rights Act. Therefore, we find that the trial court properly granted defendants summary disposition, albeit for the wrong reason. Portice v Otsego Co Sheriff’s Dep’t, 169 Mich App 563, 566; 426 NW2d 706 (1988). Plaintiff further argues that the trial court erred in finding that defendants had a sex-specific grooming policy in effect at the time of plaintiff’s termination. However, this issue becomes moot in light of our disposition of the first issue. Affirmed. These cases represent, only a sampling of the numerous cases reaching this result. We note that in 1975, the Michigan Department of Civil Rights issued a policy statement on grooming requirements. The statement reflects recognition of the fact that virtually all courts are reaching a similar decision, that title VII was intended to protect against sex-based discrimination and was not intended to encompass different grooming standards for men and women. The department decided not to continue to accept or process charges of this nature. We note that eeoc interpretations are entitled to great deference by the courts. Griggs v Duke Power Co, 401 US 424, 434-435; 91 S Ct 849; 28 L Ed 2d 158 (1971). We note that defendants’ policy requires females to secure their hair.

SANCHEZ v LAGOUDAKIS Docket Nos. 89528, 89532. Argued December 4, 1991 (Calendar No. 5). Decided August 4, 1992. Dorene Sanchez brought an action in the Branch Circuit Court against her employer, Kostas Lagoudakis, doing business as Paradise Family Restaurant, claiming that his refusal to allow her to work at the restaurant until she secured medical evidence that she did not suffer from acquired immunodeficiency syndrome, violated the Handicappers’ Civil Rights Act. The court, Michael H. Cherry, J., granted summary disposition for the defendant, finding that because Sanchez eventually was shown not to have aids, she failed to state a claim under the act, but conditioned dismissal on payment by Lagoudakis of lost wages, costs, and attorney fees. The Court of Appeals, Gillis, P.J., and McDonald and J. W. Fitzgerald, JJ., affirmed in an opinion per curiam (Docket No. 115526). Both parties appeal. In an opinion by Justice Levin, joined by Chief Justice Cavanagh, and Justices Brickley, Boyle, and Mallett, the Supreme Court held: Aids can be found to be a handicap for purposes of the Handicappers’ Civil Rights Act. The mere perception of a handicap, even if erroneous, is actionable under the act. 1. MCL 37.1103(b)(i); MSA 3.550(103)(b)(i), in effect at the time of the plaintiff’s claim, defined "handicap” as a determinable physical or mental characteristic of an individual or a history of the characteristic that may result from disease, injury, congenital condition of birth, or functional disorder, which characteristic is unrelated to the individual’s ability to perform a particular job or position or is unrelated to the individual’s qualification'for employment or promotion. A person with aids can be found to be handicapped. Because the circuit court did not reach either the issue whether aids can be a determinable physical or mental characteristic resulting from disease or the issue of unrelatedness, remand is required for further factual development and determination. 2. Under MCL 37.1202(l)(b); MSA 3.550(202)(l)(b), an employer was not permitted to discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment because of a handicap unrelated to the individual’s ability to perform the duties of a particular job or position. It appears that the act prohibited employers from acting against employees on the basis of a handicap within the statutory definition. The focus of the act was the basis of the employer’s conduct, the employer’s belief or intent, and not the employee’s condition. If an employer acts on a belief that an employee has a handicap, and subsequently discharges or otherwise discriminates against the employee on the basis of that belief, it is inconsequential whether the employee actually has the handicap because the employer has undertaken the kind of discriminatory action prohibited by the act. The Civil Rights Commission consistently has construed the act to protect persons who suffer discrimination motivated by an employer’s erroneous perception of a handicap and has extended this construction to explicitly include the perception of aids. Justices Riley and Griffin concurred in the result only. Reversed and remanded for further proceedings. 184 Mich App 355; 457 NW2d 373 (1990) reversed. ACLU Fund of Michigan (by Mark Brewer and Mark Stuart); (Paul Denenfeld, of counsel) for the plaintiff. George Platsis for the defendant. Amici Curiae: Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, Robert L. Willis, Jr., Dianne Rubin, and Ron D. Robinson, Assistant Attorneys General, for Michigan Civil Rights Commission and Michigan Department of Civil Rights. David Piontkowsky for Michigan Organization for Human Rights. Levin, J. Defendant Kostas Lagoudakis operates the Paradise Family Restaurant in Coldwater. In November, 1987, he hired plaintiff Dorene Sanchez as a waitress. Shortly thereafter, a rumor circulated that Sanchez had acquired immunodeficiency syndrome, aids. It appears that some patrons refused to allow Sanchez to wait on them. On December 8, 1987, Lagoudakis informed Sanchez that she could not continue to work at the restaurant until she secured medical evidence that she was disease free. Sanchez obtained a blood test at the county health department and learned that the result was negative about a month later. She maintains, however, that she was so humiliated by the experience that she had to leave Coldwater and return to Marshall. Sanchez commenced this action against her employer, Lagoudakis, claiming that his actions violated the Handicappers’ Civil Rights Act. After some discovery, both parties filed motions for summary disposition. The circuit court granted Lagoudakis’ motion, finding that because the complaint alleged, and discovery tended to show, that Sanchez did not in fact have aids, she did not have a handicap as defined by the act, and thus had failed to state a claim under the act. The court conditioned the dismissal of the case, however, on Lagoudakis’ paying lost wages for the time between Sanchez’ suspension and her receipt of the negative test results. The court assessed some costs and attorney fees against Lagoudakis. The Court of Appeals affirmed. We reverse, and remand for further proceedings. I The circuit judge granted summary disposition because he was of the opinion that the act cannot support a claim of discriminatory treatment based on an employer’s erroneous perception that an employee has aids. There are two parts to the question presented: (1) can aids be found to be a handicap under the act?; (2) is the mere perception of a handicap, even if erroneous, actionable under the act? A Although this is the first time this Court has confronted the issue whether aids can be a handicap under the act, courts in California, New York and New Jersey, have considered the question in construing discrimination statutes. These courts have all concluded that aids is a handicap for civil rights purposes. The United States Courts of Appeals for the Ninth and Eleventh Circuits, and the United States District'Courts for the Eastern District of Pennsylvania, and the Central District of California, have held that aids is a handicap under antidiscrimination statutes. Section 103(b)(i) of the act, in effect at the time of Sanchez’ claim, defined "handicap” as "a determinable physical or mental characteristic of an individual or a history of the characteristic which may result from disease, injury, congenital condition of birth, or functional disorder which characteristic . . . is unrelated to the individual’s ability to perform the duties of a particular job or position, or is unrelated to the individual’s qualifications for employment or promotion.” We are persuaded that a person with aids can be found to be handicapped. On remand, the evidence may provide support for a finding that a person with aids has a "physical characteristic” because such persons have a severely weakened immune system, an inability to fight disease that persons not so infected can withstand. Further, this characteristic may be "determinable” because it can be identified by blood testing. Finally, this characteristic may "result from disease” because the cause of the breakdown of an Ams-infected person’s immune system is the disease known as AIDS. In the instant case, the circuit court did not reach either the issue whether aids can be a determinable physical or mental characteristic resulting from disease or the issue of "unrelatedness,” having concluded that the act precluded claims based on the perception of handicap. B Having determined that aids can be found to be a handicap under the act, we turn to the question whether the mere perception of a handicap, even if erroneous, is actionable under the act. Section 202(1)(b) of the act provided that an employer shall not "[discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment, because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job or position.” (Emphasis added.) It appears from this wording that the act prohibited employers from acting against employees on the basis of a handicap within the statutory definition. The focus of the act was the basis of the employer’s conduct — the employer’s belief or intent — and not the employee’s condition. If the employer acts on a belief that the employee has a handicap, and subsequently discharges or otherwise discriminates against the employee on the basis of that belief, it is inconsequential whether the employee actually has the handicap because, in either hypothesis, the employer has undertaken the kind of discriminatory action that the act prohibits. The Civil Rights Commission has consistently construed the act to protect persons who suffer discrimination motivated by an employer’s erroneous perception of a handicap. The commission recently extended this construction to explicitly include the perception of aids. The Court of Appeals has concluded that the act proscribes discrimination motivated by an employer’s erroneous perception of a handicap. Courts in other jurisdictions with discrimination laws similar to the act have consistently construed their statutes to protect persons perceived to be handicapped. The United States Supreme Court, as well as the United States Court of Appeals for the Fifth Circuit and the United States District Courts for the Eastern District of Pennsylvania and the District of Hawaii, have construed the federal Rehabilitation Act to include employers’ perceptions of handicap, even in instances where the employee in fact had no handicap. The Supreme Courts for the States of Washington, Wisconsin and Utah, the Connecticut Human Rights Commission, the United States District Court for the Southern District of Florida and the New Jersey Superior Court, have all concluded that handicap discrimination statutes prohibit discrimination based on mere perception of handicap. The Legislature, in 1990, amended the definition of "handicap” to include "[b]eing regarded as having” a handicap. Clearly, under the current version, 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. II Because aids can be found to be a handicap under the Handicappers’ Civil Rights Act, and because the act prohibits discriminatory treatment, even when based on erroneous perception, we reverse the decision of the Court of Appeals and remand this case to the circuit court for further proceedings. On remand the circuit court shall determine whether the condition Sanchez was perceived to have was a determinable physical characteristic resulting from disease unrelated to her ability to perform the duties of her job or her qualifications for employment or promotion. Both of these questions are for further factual development and determination. No record is presented on which we might express an opinion. Reversed and remanded to the circuit court. Cavanagh, C.J., and Brickley, Boyle, and Mallett, JJ., concurred with Levin, J. Riley and Griffin, JJ., concurred in the result only._ Sanchez claims that Lagoudakis communicated the aids allegation to other employees and customers of the restaurant. Lagoudakis version is that Sanchez was welcome to return to work, but that she simply chose to return to Marshall to live with her husband. Sanchez named a coemployee, allegedly responsible for the rumor, as an additional defendant. MCL 37.1101 et seq.; MSA 3.550(101) et seq. The order of dismissal entered on February 22, 1989, awarded Sanchez lost wages and tips of $491.25, costs of $316.24, and attorney fees of $500. Our disposition makes it unnecessary to consider the propriety of this award. 184 Mich App 355; 457 NW2d 373 (1990). This Court then granted both parties’ applications for leave to appeal, 437 Mich 1035 (1991). Raytheon Co v California Fair Employment & Housing Comm, 212 Cal App 3d 1242; 261 Cal Rptr 197 (1989) (aids was a physical handicap under the California Fair Employment and Housing Act [Cal Gov Code 12900 et seq.] — the act does not offer a restrictive definition of "handicap,” but the California Supreme Court has defined the term to include a "physical” condition that either presently or eventually impairs a person’s ability to do his job, see American Nat’l Ins Co v Fair Employment Housing Comm, 32 Cal 3d 603, 608-610; 186 Cal Rptr 345; 651 P2d 1151 [1982], and Cal Gov Code 12926); Barton v New York City Comm on Human Rights, 140 Misc 2d 554; 531 NYS2d 979 (1988) (aids patients were physically handicapped within the meaning of § 8-108 of the New York City Administrative Code); Poff v Caro, 228 NJ Super 370; 549 A2d 900 (1987) (a person suffering from aids clearly has a severe handicap within the meaning of the New Jersey Law Against Discrimination [NJ Stat Ann 10:5-1 et seq.] — the statute defines "handicapped” as "suffering from physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness including epilepsy, and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment or physical reliance on a service or guide dog, wheelchair, or other remedial appliance or device, or from any mental, psychological, or developmental disability resulting from anatomical, psychological, physiological or neurological conditions which prevents the normal exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques,” NJ Stat Ann 10:5-5[q]). Chalk v United States Dist Court, 840 F2d 701 (CA 9, 1988) (reversing the denial of a preliminary injunction seeking reinstatement of teacher with aids to classroom duties under the federal Rehabilitation Act [29 USC 701 et seq.] — the act defines "handicap” as "physical or mental impairment which substantially limits one or more of such person’s major life activities, has a record of such an impairment, ... or is regarded as having such an impairment,” 29 USC 706[8][B]). Martinez v School Bd of Hillsborough Co, 861 F2d 1502, 1506 (CA 11, 1988) (aids qualifies as a handicap under the federal Rehabilitation Act). Cain v Hyatt, 734 F Supp 671 (ED Pa, 1990) (aids is a handicap within the meaning of the Pennsylvania Human Relations Act [43 Pa Stat Ann 951 et seq.] — the act defines "handicap” as "a physical or mental impairment which substantially limits one or more major life activities,” 16 Pa Code 44.4[4][i], interpreting the act, 43 Pa Stat Ann 955). Thomas v Atascadero Uniñed School Dist, 662 F Supp 376, 381 (CD Cal, 1986) (a child with aids is handicapped under the federal Rehabilitation Act). MCL 37.1103(b)(i); MSA 3.550(103)(b)(i). Effective June 25, 1990, this act was amended and the term "handicap” is now defined by MCL 37.1103(e); MSA 3.550(103)(e) to mean: 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: . . . substantially limits I 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. (ii) A history of a determinable physical or mental characteristic described in subparagraph (i). (iii) Being regarded as having a determinable physical or mental characteristic described in subparagraph (i). [Emphasis added.] This opinion should not be read as addressing whether, on these facts, aids is unrelated to Sanchez’ job as a waitress. MCL 37.1202(1)(b); MSA 3.550(202)(1)(b). The purpose of the act is to prohibit employers from discriminating on the basis of handicap. It would not be consistent with that purpose to relieve employers who so discriminate of liability if, although they acted in a prohibited discriminatory manner, it later turns out that their belief was in fact erroneous. The key as far as the act is concerned is that the employer acted on the belief of a handicap. See, e.g., Dep’t of Civil Rights ex rel Lanphar v A & C Carriers, Mich Civ Rts Comm Dec No. 36140-E1 (December 18, 1979) ("[e]ven if claimant did not, in fact, have a spondylolysis [a back condition], respondent failed or refused to hire claimant because of respondent’s perception that he had such a condition, and such failure or refusal to hire based upon a perception of a handicap is a violation of [the hcra]”). See also Dep’t of Civil Rights ex rel Roznowski v Bay City Fire Dep’t, Mich Civ Rts Comm Dec No. 71346-E1 (December 14, 1987). On August 25, 1986, the Civil Rights Commission issued a policy statement providing the following construction of the act: The [Department of Civil Rights] will accept and process complaints from persons who believe they have been discriminated against in employment, housing, public accommodations, public service, and education because of aids or a related condition or the perception of aids. [Emphasis added.] See Dep’t of Civil Rights ex rel Lanphar v A & C Carriers, 157 Mich App 534, 537; 403 NW2d 586 (1987) (per curiam) (" '[A]n individual claiming protection under the act is not required to allege and prove himself or herself to be, in fact, handicapped in order to be eligible for the relief provided by the act. It is only necessary for a claimant to show that an employer, believing or suspecting such claimant to be handicapped, committed one of the employment practices prohibited by the act’ ”). See also Bay City Fire Dep’t v Dep’t of Civil Rights ex rel Roznowski, 182 Mich App 145; 451 NW2d 533 (1989) (per curiam) (Reilly, J., concurring). Southeastern Community College v Davis, 442 US 397, 405-406, n 6; 99 S Ct 2361; 60 L Ed 2d 980 (1979) (“A person who has a record of, or is regarded as having, an impairment may at present have no actual incapacity at all. Such a person would be exactly the kind of individual who could be 'otherwise qualified’ to participate in covered programs [under the federal Rehabilitation Act]”). See also School Bd of Nassau Co v Arline, 480 US 273; 107 S Ct 1123; 94 L Ed 2d 307 (1987). Carter v Orleans Parish Public Schools, 725 F2d 261, 263 (CA 5, 1984) ("Unimpaired persons regarded as having an impairment enjoy statutory protection [under the federal Rehabilitation Act] because the erroneous denial of admission into regular classes is one of the abuses Congress sought specifically to correct”). Local 1812 v United States Dep’t of State, 662 F Supp 50, 54 (D DC, 1987) ("Persons who carry hiv may be deemed handicapped [under the federal Rehabilitation Act] ... if they are perceived to be handicapped”). E E Black, Ltd v Marshall, 497 F Supp 1088, 1098 (D Hawaii, 1980) (recognizing that the provision of the federal Rehabilitation Act and regulations promulgated pursuant thereto define "handicapped individual” to include a person who is merely regarded as having such an impairment). 29 USC 701 et seq.; USC 706(8)(B), 793, and 794. See also cases cited in 3 Sullivan, Zimmer & Richards, Employment Discrimination, § 25.2.3, pp 11-13. Because the recently enacted Americans With Disabilities Act defines "disability” similarly to the definition of "handicap” under the federal Rehabilitation Act, it appears that discrimination based on an employer’s perception of disability, even if the employee in fact has no disability, is actionable under this newer law as well.

Held: An amount received in settlement of a claim of race discrimination made pursuant to title VII of the Civil Rights Act of 1964 is not excludable from gross income pursuant to sec. 104(a)(2), I.R.C., as an amount received on account of personal injury. United States v. Burke, 504 U.S.    , 112 S. Ct. 1867 (1992).

KAMALNATH v MERCY MEMORIAL HOSPITAL CORPORATION Docket No. 128108. Submitted April 8, 1992, at Detroit. Decided June 15, 1992, at 9:15 a.m. Leave to appeal sought. Jacintha F. Kamalnath and Prakash J. Kamalnath, for himself and as next friend of Anthea J. Kamalnath, brought an action in the Monroe Circuit Court against Mercy Memorial Hospital Corporation, alleging breach of contract, wrongful discharge, employment discrimination based on gender and race, fraud, misrepresentation, and intentional infliction of emotional distress after the defendant refused to allow Jacintha F. Kamalnath to continue her medical practice at its clinic. The court, Michael W. LaBeau, J., granted the defendant summary disposition of all claims and denied a subsequent motion for rehearing, in which the plaintiffs first asserted a claim of estoppel. The plaintiffs appealed. The Court of Appeals held: 1. The trial court properly dismissed the claim of breach of contract after it determined that there was no written and signed contract between the defendant and Dr. Kamalnath and that she had commenced her services at the clinic despite the absence of a contract. 2. The claims of quantum meruit and equitable estoppel are without merit because the plaintiff received compensation in the amount specified in the defendant’s contractual offers. 3. The trial court correctly dismissed the employment discrimination claims because the plaintiffs offered no evidence to refute the defendant’s contention that Dr. Kamalnath’s poor performance was the reason for discontinuing her services. 4. The trial court properly dismissed the fraudulent misrepresentation claim because the plaintiffs failed to respond to the defendant’s denial of fraudulent intent. Also, the alleged misrepresentations concerned promises of future action or matters of opinion, neither of which may serve as the basis of an action for fraud. 5. The trial court properly dismissed the claim of intentional infliction of emotional distress because the plaintiffs failed to allege outrageous conduct by the defendant or a breach of duty distinct from contract. Affirmed. Hooper, Hathaway, Price, Beuche & Wallace (by David J. Hutchinson), for the plaintiffs. Kitch, Saurbier, Drutchas, Wagner & Kenney, P.C. (by William A. Tanoury, Susan Healy Zitterman, and Linda M. Garbarino), for the defendant. Before: Weaver, P.J., and Sullivan and Corrigan, JJ. Corrigan, J. Plaintiffs appeal a grant of summary disposition of their complaint of breach of contract, wrongful discharge, employment discrimination, fraud, misrepresentation, and intentional infliction of emotional distress. We affirm. In 1986, defendant decided to open an outpatient family practice clinic in Petersburg in Monroe County. Defendant retained a recruiter to identify a private family practitioner who brought plaintiff Jacintha Kamalnath and defendant together. In June 1986, plaintiff, an endocrinologist, first visited the area and discussed the clinic plan with John Iacoangeli, defendant’s director of planning and development. Plaintiff was unfamiliar with Monroe County and also lacked experience in the "business” aspects of medical practice. Iacoangeli allegedly stated that the hospital would assist plaintiff with marketing. On June 20, 1986, Iacoangeli wrote plaintiff as follows: Thank you for visiting this facility and touring the communities of Monroe and Petersburg on Saturday. As discussed at our meeting, I stated that I would present for your consideration an offer relative to the start-up of a physician office in Petersburg and your retention as a private family practitioner. The following offer is subject to receipt and review of your curriculum vitea [sic]. 1. The hospital will provide a net salary guarantee before taxes for one year in an amount not to exceed Sixty Thousand [$60,000] Dollars. The salary guarantee is determined by subtracting office and equipment rental, insurance, including medical liability, salaries, payroll taxes and workers compensation for office staff, office supplies and medical records, dues to medical organizations (ama, Michigan State Medical Society), fees associated with normal business operations (legal and accounting), and telephone. 2. Underwrite the rental of the physician office for the first year of operation. 3. Provide a Fifty-Thousand [$50,000] Dollar line of credit to be used for operational and professional expenses. The interest rate for using these funds will be seven percent. This line of credit will be available for two years. 4. The hospital will assist you with your relocation costs to a home within Monroe County at a cost not to exceed $1,500. As I mentioned, the salary guarantee is associated with the primary care aspect of the Peters-burg Physician Office. Consultation and other fees associated with your speciality in Endocrinology are separate. This offer is based on your availability to serve the Petersburg market area as a primary care physician and maintain regular office hours four [4] full days and two [2] half-days a week. If you have any further questions, please feel free to contact me. /s/ John R. Iacoangeli Plaintiff did not accept this written offer. Instead, she suggested various changes and additions, principally an increase in the term from one year to three years and a provision that the hospital handle marketing. On June 30, 1986, Iacoangeli sent plaintiff a second letter, which provided in part: It was a pleasure speaking with you again regarding the physician opportunity in Petersburg. As I mentioned, the following revisions to my June 20 letter, are outlined as follows: 1. The net salary-guarantee before taxes in an amount not to exceed Sixty Thousand [$60,000] dollars will be offered for three [3] years, subject to an annual performance review. 2. In addition to those expenses that are subtracted from gross receipts as outlined previously, medical education relating to primary care has been added. 3. Cost of relocation will be increased to a cost not to exceed $2,750. 4. The hospital administration will assist in providing coverage for the office when you are on vacation. Also, I have enclosed an application for appointment to the Medical Staff. Please complete this as soon as possible. . . . Defendant subsequently prepared several drafts of a proposed contract, but none of them proved satisfactory to plaintiff, who testified: "[T]here were so many things that was [sic] not acceptable, I saw it [the contract] as not acceptable and that’s the whole thing.” Plaintiff, however, moved to Petersburg and began work, although she had no signed contract and the clinic was not yet completed. Various problems then developed with equipping and staffing the clinic. Defendant allegedly did not provide promised equipment, office staff, and advertising and did not timely bill the patients. In addition, although the hospital arranged a line of credit, plaintiff allegedly was not informed that the Nine of credit” was actually a personal loan. The Petersburg clinic was not as successful as the parties had hoped. Relations between them deteriorated. A white male physician, who is allegedly less qualified than plaintiff, was added to the clinic staff. In November 1987, defendant formally notified plaintiff to vacate the clinic after a breakdown in their relationship. In early 1988, plaintiff filed suit, claiming breach of contract, wrongful discharge, sex and race discrimination in employment, fraud and misrepresentation, negligent misrepresentation, and intentional infliction of emotional distress. Defendant sought summary disposition pursuant to MCR 2.116(C)(8) and (10), asserting that the statute of frauds barred plaintiff’s contract claim, that plaintiff’s sex and race discrimination claims had no factual basis, that the alleged fraud and misrepresentation involved matters of opinion and future promises, that the claim of intentional infliction of emotional distress lacked any basis, and that plaintiff was an independent contractor who could not sue for wrongful discharge. The motion was supported by a detailed affidavit from John Iacoangeli. Plaintiff’s response brief lacked any citations to authority. The support filed by plaintiff’s counsel consisted of an "Affidavit of Unavailability of Affidavits,” the material portions of which read: 2. The Motion was filed while I was on vacation, and my schedule did not permit me to have the necessary communications with potential witnesses that would have been necessary prerequisites to the preparation of specific affidavits. 3. The persons from whom affidavits might have been obtained would include Plaintiffs, who would have been able to support everything contained in the Complaint, as well as the testimony of Dr. Omana Menon relating to damages, the testimony of Dr. Bruce Feyz and Dr. Amba Krishnan regarding the discrimination claim.[] The court granted defendant’s motion, finding that the June 20 and June 30, 1986, letters were mere offers outside the statute of frauds, that plaintiff was not defendant’s employee, that no genuine issue of fact existed as to the discrimination claims, that the fraud and misrepresentation claims involved promises and matters of opinion with no evidence of intent to deceive, and that no "outrageous conduct” supported plaintiff’s claim of intentional infliction of emotional distress. Plaintiff sought rehearing, rearguing her earlier points and newly claiming promissory and equitable estoppel. She also sought for the first time recovery in quantum meruit. The court denied the motion for rehearing. I. THERE WAS NO ENFORCEABLE CONTRACT BETWEEN THE PARTIES. It is hornbook law that a valid contract requires a "meeting of the minds” on all the essential terms. In order to form a valid contract, there must be a meeting of the minds on all the material facts. A meeting of the minds is judged by an objective standard, looking to the express words of the parties and their visible acts, not their subjective states of mind. [Stanton v Dachille, 186 Mich App 247, 256; 463 NW2d 479 (1990), citing Heritage Broadcasting Co v Wilson Communications, Inc, 170 Mich App 812, 818; 428 NW2d 784 (1988).] "Meeting of the minds” is a figure of speech for mutual assent. Goldman v Century Ins Co, 354 Mich 528, 534; 93 NW2d 240 (1958). See also, e.g., Stark v Kent Products, Inc, 62 Mich App 546, 548; 233 NW2d 643 (1975). An offer is a unilateral declaration of intention, and is not a contract. Western Michigan Univ Bd of Trustees v Slavin, 381 Mich 23, 31; 158 NW2d 884 (1968); Eastern Michigan Univ Bd of Control v Burgess, 45 Mich App 183, 187; 206 NW2d 256 (1973). A contract is made when both parties have executed or accepted it, and not before. Brown v Considine, 108 Mich App 504, 507; 310 NW2d 441 (1981), citing Holder v Aultman, Miller & Co, 169 US 81, 89; 18 S Ct 269; 42 L Ed 669 (1898). A counterproposition is not an acceptance. Harper Bldg Co v Kaplan, 332 Mich 651, 655; 52 NW2d 536 (1952). Mere discussions and negotiation, including unaccepted offers, cannot be a substitute for the formal requirements of a contract. Kirchhoff v Morris, 282 Mich 90, 95; 275 NW 778 (1937). A mere expression of intention does not make a binding contract, Hammel v Foor, 359 Mich 392, 400; 102 NW2d 196 (1960): The burden is on plaintiffs to show the existence of the contract sought to be enforced, and no presumption will be indulged in favor of the execution of a contract since, regardless of the equities in a case, the court cannot make a contract for the parties when none exists. In this case, the parties did not have a sufficient "meeting of the minds” regarding the essential terms of the contract. Plaintiff rejected the June 20 offer, as the June 30 offer makes plain. Plaintiff herself admitted that she did not approve any of the proposed contracts after her move to Peters-burg. Important differences remained between the parties as to basic contractual duties such as the responsibility for certain major expenses. The parties had exchanged a series of offers and counteroffers, not an offer and an acceptance. Even if the June 20 and 30 letters were considered a binding contract, defendant reserved the right to terminate plaintiff. She had no guarantee of continuation after the first year. The June 30 letter expressly provided that "[t]he net salary-guarantee . . . will be offered for three [3] years, subject to an annual performance review.” [Emphasis supplied.] Plaintiff’s performance was subjected to an annual performance review and found deficient. Iacoangeli averred that defendant terminated plaintiff’s employment "based on her poor performance in operating the Petersburg Clinic in terms of her office hours, patient relations, patient charges, accounting and general management responsibilities.” As noted, plaintiff never countered the Iacoangeli affidavit. Further, under the statute of frauds, MCL 566.132(a); MSA 26.922(a), "[a]n agreement that, by its terms, is not to be performed within 1 year from the making thereof’ must be in writing and "signed by the party to be charged.” The proposed contract was for three years. The only document signed by defendant’s agent that refers to a three-year term is the June 30 letter. That letter, however, is not a contract; the author refers to "revisions to my June 20 letter.” The June 20 letter was merely "an offer relative to the start-up of a physician office in Petersburg and your retention as a private family practitioner.” Thus, plaintiff’s claim is defeated by the statute of frauds. Plaintiff cannot avoid the effect of the statute by claiming partial performance of the terms of the purported contract. In Michigan, the partial-performance doctrine does not apply to employment contracts for more than one year. McMath v Ford Motor Co, 77 Mich App 721, 725; 259 NW2d 140 (1977). Plaintiffs alternative argument, seeking compensation under some other theory, was presented to the court below only on plaintiffs motion for rehearing. The trial court did not rule on it. Generally, questions not ruled on below cannot be presented to or considered by a reviewing court, absent a miscarriage of justice. Bajis v Dearborn, 151 Mich App 533, 536; 391 NW2d 401 (1986); Petrus v Dickinson Co Bd of Comm’rs, 184 Mich App 282, 288; 457 NW2d 359 (1990). We see no miscarriage of justice here. Nevertheless, we find plaintiffs alternative argument to have no merit. Because she has been compensated, she cannot seek recovery in quantum meruit. She was paid for her services at the clinic in 1986 and 1987 at the proposed contract rate of $60,000 a year. The doctrine of quantum meruit allows a party to recover the reasonable value of services rendered. A contract, though void under the statute of frauds, may be admissible to show the value placed on a plaintiffs services by the parties. Ordon v Johnson, 346 Mich 38, 49; 77 NW2d 377 (1956). Plaintiff is not entitled to any additional payment under a quantum meruit analysis. Nor does the doctrine of equitable estoppel support plaintiff. "[A]s an equitable remedy, [estoppel] is employed to alleviate an unjust result of strict adherence to established legal principles.” Ass’n of Hebrew Teachers v Jewish Welfare Federation, 62 Mich App 54, 60; 233 NW2d 184 (1975). Defendant has not been unjustly enriched at plaintiffs expense. Even assuming a three-year contract for plaintiffs services, plaintiffs contractual rate of compensation ($60,000 a year) was identical to what she was actually paid. Plaintiffs apparent suggestion that clinic revenues increased because of her activity lacks any merit since her compensation was not tied to clinic income. She would not have received any more than $60,000 a year from defendant had she remained at the Petersburg clinic longer than she did. Had defendant refused to pay plaintiff at all for services rendered or paid her at a lower rate, the case might be different. But plaintiff herself admitted that she was paid appropriately. Moreover, to support a claim of estoppel, a promise must be definite and clear. McMath, supra at 726, citing Ass’n of Hebrew Teachers, supra at 59. The promises upon which plaintiff allegedly relied are certainly not definite and clear. The only promise mentioned in the complaint was defendant’s "promise to use business expertise and experience.” The doctrine of estoppel should be applied only where the facts are unquestionable and the wrong to be prevented undoubted. Commercial Union Ins Co v Medical Protective Co, 136 Mich App 412, 421; 356 NW2d 648 (1984), rev’d in part on other grounds 426 Mich 109; 393 NW2d 479 (1986). This vague promise does not qualify. ii. plaintiff’s remaining claims do not warrant REVERSAL. Plaintiff’s remaining allegations require minimal discussion. A. EMPLOYMENT DISCRIMINATION Plaintiff alleges violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., because defendant engaged a white male physician to replace her, a female of Indian origin. MCL 37.2202; MSA 3.548(202) prohibits "discriminat[ion] . . . because of . . . national origin . . . [or] sex.” Plaintiff failed to adduce any evidence whatsoever to support this claim in response to defendant’s properly supported motion for summary disposition. As noted, Iacoangeli averred that he terminated defendant’s relationship with plaintiff solely on the basis of her poor performance. When a motion under subrule (C)(10) is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, judgment, if appropriate, shall be entered against him or her. [Emphasis supplied; MCR 2.116(G)(4).] Plaintiff did not come forward with any facts at all. Instead, counsel presented the previously described "Affidavit of Unavailability of Affidavits.” A mere promise to offer factual support at trial is insufficient. McCart v J Walter Thompson USA, Inc, 437 Mich 109, 115, n 4; 469 NW2d 284 (1991). Summary disposition was properly granted pursuant to MCR 2.116(G)(4). Further, plaintiffs employment discrimination claim fails because plaintiff was not defendant’s employee. The trial court properly found that plaintiff was an independent contractor, not an employee. An independent contractor is one who, carrying on an independent business, contracts to do work without being subject to the right of control by the employer as to the method of work but only as to the result to be accomplished. [Parham v Preferred Risk Mut Ins Co, 124 Mich App 618, 622-623; 335 NW2d 106 (1983), citing Marchand v Russell, 257 Mich 96; 241 NW 209 (1932).] The proposed agreement renders plaintiff an independent contractor rather than an employee. The clinic staff were to be plaintiff’s employees, not defendant’s. Plaintiff would be required to pay all expenses from clinic receipts, including insurance, supplies, most business expenses, transportation, and depreciation. Plaintiff would also be liable for rent to defendant. We find no error. B. FRAUD AND MISREPRESENTATION We affirm the lower court’s dismissal of the counts of fraud and misrepresentation because plaintiff did not comply with MCR 2.116(G)(4). She failed to produce any affidavits or other evidence to counter lacoangeli’s affidavit denying any intent to defraud or mislead plaintiff. Moreover, an action for fraudulent misrepresentation must be predicated upon a statement relating to a past or an existing fact. Future promises cannot constitute actionable fraud. State Bank of Standish v Curry, 190 Mich App 616, 623; 476 NW2d 635 (1991), citing Hi-Way Motor Co v Int'l Harvester Co, 398 Mich 330, 336; 247 NW2d 813 (1976). The actions plaintiff complained of principally relate either to promises of future action (e.g., the division of expenses between plaintiff and d

SCHULTES v NAYLOR Docket No. 129828. Submitted May 7, 1992, at Detroit. Decided June 2, 1992; approved for publication September 3, 1992, at 9:15 A.M. Karen L. Rapp Schultes brought a wrongful discharge action in the Wayne Circuit Court against Michael A. Naylor, General Motors Corporation, and others, alleging breach of contract, intentional infliction of emotional distress, and unlawful sexual discrimination. The court, Richard P. Hathaway, J., granted summary disposition for the defendants. The plaintiff appealed. The Court of Appeals held: 1. Both the written employment contract between the plaintiff and General Motors and the employee handbook clearly indicated that the plaintiff’s employment was to be month to month. Therefore, her employment was terminable at will, as opposed to for just cause only, and her discharge for insubordination, which was preceded by reprimands for excessive tardiness, inability to work with fellow employees, and abuse of telephone privileges, was consistent with the terms of employment. 2. The plaintiff failed to establish a prima facie case of sexual discrimination in the absence of a showing of disparate treatment or intentional discrimination. None of the male employees with whom the plaintiff compared herself refused, as did the plaintiff, to reimburse General Motors for the cost of personal telephone calls. The plaintiff failed to show that the reasons stated for her discharge were mere pretext for intentional discrimination. Affirmed. 1. Master and Servant — Employment Contracts — Employee Handbooks. An employment relationship is terminable at will by either party where the employee signs an agreement that employment will be month to month and receives an employee handbook so stating. References Am Jur 2d, Civil Rights §§ 154 et seq.; Job Discrimination §§ 138 et seq.; Master and Servant §§ 27 et seq.. See the Index to Annotations under Discharge From Employment or Office; Equal Employment Opportunity; Sex Discrimination. 2. Civil Rights — Sexual Discrimination — Disparate Treatment. A prima facie case of sexual discrimination is established on the basis of disparate treatment upon a showing that the plaintiff is a member of a class deserving of protection under the Civil Rights Act and that, for the same conduct, the plaintiff was treated differently than a person of the opposite sex (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 3. Civil Rights — Sexual Discrimination — Intentional Discrimination. A prima facie case of intentional sexual discrimination in the termination of employment is established upon a showing that the plaintiff was a member of an affected class, that the plaintiff was discharged, that the defendant was predisposed to discriminate against persons in the class, and that the defendant actually acted upon that disposition in deciding to terminate employment (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). Christensen & Bannigan, P.C. (by Thomas H. Bannigan), for the plaintiff. Bodman, Longley & Dahling (by Joseph A. Sullivan and Martha B. Goodloe), for the defendants. Before: Sawyer, P.J., and Neff and Fitzgerald, JJ. Per Curiam. Plaintiff appeals from a May 24, 1990, order dismissing her claims of sexual discrimination, breach of contract, and intentional infliction of emotional distress. MCR 2.116(C)(10). We affirm. This appeal arises out of an employment relationship between plaintiff and defendant, General Motors Corporation. In November 1982, plaintiff was hired by gm and placed in the Risk Management Department. Initially, management was dissatisfied with plaintiff’s job performance becáuse of her consistent tardiness, inability to deal with other workers effectively, and failure to complete work in a timely fashion. In 1985, plaintiff applied for a new position in the Corporate Strategic Planning Group of gm. Notwithstanding the interviewers’ concerns about her past job performance, plaintiff was given a transfer to the cspg, and worked there until her termination. In August 1987, plaintiff took a leave of absence in order to have a child. When she returned to work, she was consistently reprimanded for tardiness. In February and March 1988, plaintiff’s absences and tardiness became excessive. When the supervisors’ efforts to reconcile the problem failed, they consulted with the personnel department to seek a solution. As part of the investigation into plaintiff’s performance, an employee in personnel requisitioned plaintiff’s phone records for her office extension. These phone records revealed that plaintiff made nearly $1,700 in phone calls at gm’s expense. Gm management sent plaintiff a letter informing her that she would be billed for the phone calls that were not related to her employment responsibilities with gm. The letter also reprimanded plaintiff for her excessive tardiness, inability to deal with her co-workers, and abuse of her phone privileges. Management sent an additional letter to plaintiff asking that she submit a payment plan for her personal phone calls by the following day. Plaintiff responded to the letter with a note that stated, in part, as follows: I have discontinued efforts to review the bills. For the following reasons, my plan for repayment of the phone bills of [plaintiff’s extension] is as follows: I will pay zero amount of such telephone bills. Plaintiff was subsequently discharged from her duties with gm and thereafter filed this action. Plaintiff first argues that it was error for the trial court to summarily dismiss count i of her complaint, which alleged breach of contract. We disagree. When she was hired, plaintiff was interviewed by Wayne Morrison, a gm employee. Plaintiff alleged that Morrison told her that she would remain at gm as long as she did her job. However, on the day she was hired, plaintiff signed an employment agreement stating that she was employed month to month only. The agreement contains a total integration clause and indicates that oral modifications are not permitted. Plaintiff also signed a number of subsequent compensation statements that acknowledged that the terms of the original employment agreement controlled her relationship with gm. Finally, the employee handbook, a copy of which plaintiff received, describes the employment terms as month to month. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), stands for the proposition that employment contracts terminable only for cause are enforceable to the same degree as other contracts. Id. at 610. See also Valentine v General American Credit, Inc, 420 Mich 256, 258; 362 NW2d 628 (1984). It is clear from Toussaint that an employer who makes oral representations that employment may be terminated only for cause may be bound contractually if those representations are supported by company policy. Toussaint, supra at 598. Our Supreme Court has held that oral manifestations by an employer that an employee’s job is secure must be clear and unequivocal. Rowe v Montgomery Ward & Co, Inc, 437 Mich 627, 645; 473 NW2d 268 (1991). The representation must be based upon more than just an employer’s statement regarding hopes for a long relationship. Id. at 640. This Court has evaluated the same form contract and gm handbook involved in this case and concluded that they create an at-will employment relationship. See Singal v General Motors Corp, 179 Mich App 497, 504-505; 447 NW2d 152 (1989) (relying on Taylor v General Motors Corp, 826 F2d 452 [CA 6, 1987]). Plaintiff has not produced any evidence corroborating her claim that gm made oral manifestations regarding a just-cause employment relationship. Accordingly, plaintiff has failed to rebut the clear indication in her employment agreement that she was terminable at will. Count ii of plaintiffs complaint alleges sexual discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. This claim is based on plaintiffs comparison of herself with male employees who also "abused” their phone privileges. The trial court concluded that "this is a case where it really is not one that centers on sexual discrimination but, rather, it is one without any factual dispute and I believe it is one of insubordination.” We agree with the trial court. A motion for summary disposition under MCR 2.116(0(10) tests the factual sufficiency of the claim at issue. Marsh v Dep’t of Civil Service (After Remand), 173 Mich App 72, 77; 433 NW2d 820 (1988). Under MCR 2.116(G)(5), the court must consider the affidavits, pleadings, depositions, and other documentary evidence presented by the parties. The benefit of doubt is to be given to the nonmoving party. If the trial court determines that there is a significant deficiency in the claim that cannot be cured by a full development of the factual record, then summary disposition under MCR 2.116(0(10) is appropriate. In order to avoid summary disposition in this case, plaintiff had to establish a genuine issue of material fact regarding whether a prima facie case of discrimination exists. See Meeka v D & F Corp, 158 Mich App 688, 694; 405 NW2d 125 (1987). To establish a prima facie case of sexual discrimination under the disparate-treatment theory, a plaintiff must show that she was a member of a class deserving of protection under the statute, and that, for the same conduct, she was treated differently than a man. Marsh, supra at 79. The crux of the sexual discrimination case is that there are similarly situated individuals who have been treated differently because of their sex. Id. It is plaintiff’s burden to establish a prima facie case of sexual discrimination with evidence that is legally admissible and sufficient to state a prima facie claim. Id. at 80. Our review of plaintiff’s proofs reveals a factual deficiency that cannot be overcome. None of the male employees to whom plaintiff compared herself refused to reimburse gm for their phone usage. If plaintiff had shown that these men did refuse to pay, but were not terminated, her case would be much stronger. In light of her failure to make this showing, none of the men were similarly situated and, thus, the trial court properly dismissed this claim. Finally, plaintiff contends that she was not terminated for insubordination. Specifically, plaintiff contends that defendants’ insubordination justification was merely a pretext for discriminating against her on the basis of sex. We disagree. A second way to make a prima facie showing of discrimination based upon sex is to prove that the discrimination was intentional. Hickman v W-S Equipment Co, Inc, 176 Mich App 17, 21; 438 NW2d 872 (1989). In order to succeed under this theory, a plaintiff must show that she was a member of an affected class, that she was discharged, that the defendant was predisposed to discriminate against persons in the class, and that the defendant actually acted upon that disposition when the termination decision was made. Id. In this case, plaintiff is obviously a member of a protected class and was discharged. The only question is whether she has made the requisite showing of a pretext for intentional discrimination in order, to sustain the action. This question must be answered in the negative. All the incidents to which plaintiff points are actions taken by defendants in order to extract from plaintiff compliance with the rules under which all employees of gm were expected to work. Plaintiff did not produce any evidence at the hearing on the motion for summary disposition that indicated a pattern of discrimination against women within gm. Rather, plaintiff made unsubstantiated allegations of discrimination against her that were insufficient to create a genuine issue of material fact regarding intentional discrimination. Affirmed. A good portion of the calls were made to plaintiff's relatives in Rhode Island and New Jersey. In addition, the records revealed that plaintiff used her GM-issued phone credit card to make calls from California while she was on vacation. It is also clear that none of the individuals named as defendants are liable because they were not parties to either the express or implied contract plaintiff alleges was formed on the day she was hired. Plaintiff’s contention that she followed gm’s directive to submit a plan for reimbursement for the phone calls is without merit. Plaintiff’s letter, which indicated that her plan was to pay zero, was nothing more than an enticement for gm to take action.

FEATHERLY v TELEDYNE INDUSTRIES, INC Docket No. 126875. Submitted April 21, 1992, at Grand Rapids. Decided May 18, 1992, at 9:50 a.m. Norman Featherly, Stanley Way, and Leroy Gannon brought an action in the Muskegon Circuit Court against Teledyne Industries, Inc., and its president, Thomas Keenan, alleging that their permanent layoffs following a work-force reduction were the result of employment discrimination based on age and were breaches of implied contracts of employment providing for termination only for just cause. The court, Michael E. Kobza, J., granted summary disposition for the defendants with respect to the age discrimination claims of Featherly and Way, but not Gannon, and with respect to the contractual claims of all the plaintiffs. Featherly appealed the dismissal of his age discrimination claim, Way appealed the dismissal of both his claims, and the defendants cross appealed the denial of summary disposition of Gannon’s age discrimination claim. The Court of Appeals held: 1. Featherly and Gannon, but not Way, each established a prima facie case of age discrimination. Accordingly, the trial court erred in summarily dismissing Featherly’s age discrimination claim, but did not err in denying summary disposition of Gannon’s claim or in granting summary disposition of Way’s claim. 2. The trial court did not err in dismissing the contractual claims of the plaintiffs. Their employment was terminable at the will of either the employer or the employees. Even if, as the plaintiffs asserted, certain oral representations by the defendants gave rise to expectations of employment terminable only for just cause, just cause is established where, as in this case, termination results from a work-force reduction based on economic reasons. Affirmed in part and reversed in part. References Am Jur 2d, Civil Rights §§226 et seq., 507; Job Discrimination §§ 102-105, 2109-2111, 2178; Master and Servant §§ 27-29, 32-34. Proving that discharge was because of age, for purposes of Age Discrimination in Employment Act (29 USCS §§ 621 et seq.). 58 ALR Fed 94. 1. Civil Rights — Discrimination — Burden of Proof. The plaintiff in a case alleging discrimination initially has the burden of proving a prima facie case by a preponderance of the evidence; if the plaintiff is successful, the burden shifts to the defendant to articulate some legitimate, nondiscriminatbry reason for its action; once the defendant articulates a legitimate reason, the plaintiff then has the burden of showing by a preponderance of the evidence that the reason was merely a pretext for discrimination. 2. Civil Rights — Employment Discrimination — Age — Prima Facie Case. A prima facie case of employment discrimination based on age in the discharge of an employee is established upon a showing that the employee was a member of a protected class, was discharged, was qualified for the position, and was replaced by a younger person. 3. Civil Rights — Employment Discrimination — Age. A plaintiff who alleges employment discrimination based on age must present evidence of possession of qualifications comparable to that of the person ultimately selected, and demonstrate that age was the determining factor in the defendant’s decision. 4. Civil Rights — Discrimination — Summary Disposition. A plaintiff who alleges discrimination, in order to survive a motion for summary disposition brought after the defendant presents a legitimate, nondiscriminatory reason in rebuttal of the plaintiff’s prima facie case, must allege facts that raise a triable issue concerning whether .the proffered reason was a mere pretext. 5. Master and Servant — Termination of Employment — Just Cause — Work-Force Reduction. Just cause for termination of employment is established when termination results from a work-force reduction based on economic reasons. Libner, Van Leuven, Kortering, Evans & Portenga, P.C. (by John A. Braden), for the plaintiffs. Butzel Long (by Robert J. Battista and Mark T. Nelson), for the defendants. Before: Hood, P.J., and Shepherd and K. N. Sanborn, JJ. Former circuit judge, sitting on the Court of Appeals by assignment. Shepherd, J. This case involves claims of employment discrimination and breach of contract under Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), in which the trial court granted defendants’ motion for summary disposition pursuant to MCR 2.116(C) (10) with respect to the age discrimination claims of plaintiffs Norman Featherly and Stanley Way, denied defendants’ motion with respect to the age discrimination claim of plaintiff Leroy Gannon, and granted defendants’ motion with respect to the Toussaint claims of all three plaintiffs. Plaintiffs Featherly and Way appeal as of right the dismissal of their age discrimination claims, plaintiff Way appeals the dismissal of his Toussaint claim, and defendants cross appeal the denial of their motion with respect to the age discrimination claim of plaintiff Gannon. As a result of a business downturn, Teledyne laid off 250 people, including both salaried and union personnel, in December 1987. After consultations with the company’s finance department in the fall of 1987, defendant Thomas Keenan, Teledyne’s president, approved the layoff plan and instructed each vice president in the various departments of the plant to lay off a certain number of employees. The selection of which employees to lay off was made by the immediate supervisor with the concurrence of the manager or vice president of the department or area. Each plaintiff is a former supervisor of Teledyne who was laid off in December 1987 and claims that his layoff was in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and in breach of an implied contract of employment. It was undisputed that each plaintiff was a competent and capable supervisor in his respective area, and that Teledyne claimed to have laid them off because of economic necessity. There is also no dispute that layoffs of numerous employees were, in fact, mandated by economic necessity. The primary issue in this case is whether, in choosing which employees to lay off, the defendants made their selection by using age as a determining factor. We begin with the assumption that although there may be justification for economic layoffs, an employer may not decide which employees to lay off on the basis of considerations that are prohibited by law, such as race, gender, or age. See King v Michigan Consolidated Gas Co, 177 Mich App 531; 442 NW2d 714 (1989), where the plaintiffs federal civil rights claim based on race was permitted to go to trial even though the employer was faced with an economically necessitated reduction in force. Subsequently, his claim of racial discrimination in violation of state law was also allowed to stand. See also Schipani v Ford Motor Co, 102 Mich App 606; 302 NW2d 307 (1981), in which the plaintiffs Toussaint and age discrimination claims were treated separately. Both cases taken together implicitly stand for the proposition that where an employer has a legitimate reason to terminate (e.g., economic necessity or a contract for employment at will), it may not do so for illegal reasons such as unlawful discrimination. Since 1975, Norman Featherly had been the production supervisor of the crankshaft departments (Departments Nos. 313 and 316). As a result of the 1987 reduction, the crankshaft departments and "Gears” (Department No. 311) were consolidated. Production Superintendent Harvey Myers, Featherly’s immediate supervisor, and Robert Bramer, the manufacturing manager, decided that Featherly should be laid off because they concluded that he did not have the versatility to supervise both departments. Consequently, Featherly’s duties were added to those of Robert Gilbert, the production supervisor of "Gears.” At the time of his layoff, Featherly was fifty-eight years old and had approximately twenty-five years’ seniority, whereas Gilbert was forty-one years old and had twelve years of supervisory experience. Leroy Gannon was the supervisor of "non-productive stores” and "cutter grinds” from 1976 until his layoff in 1987. His duties involved maintenance, repair, and operations, as well as resharpening and testing tools. His position was eliminated and his duties were assigned to Thomas Karafa and Harry Mikesell. Karafa is a toolmaker, who was the supervisor of the model shop and tool repair at the time of the layoffs. Mikesell is a manufacturing engineering analyst, whose job is to prepare budgets for the Manufacturing Engineering Department. At the time of his layoff, Gannon was sixty-three years old, whereas Karafa and Mikesell were forty-one and sixty years old, respectively. From May, 1966 until his layoff in 1987, Stanley Way was a production control supervisor whose duties involved shipping and receiving. After his position was eliminated in the 1987 reduction, his duties were added to those of Bill Ford, the "Master Scheduler.” Ford was retained because Way had no experience with or knowledge of scheduling systems. At the time of Way’s layoff, he was fifty-nine years old and had thirty-seven years’ seniority, whereas Ford was fifty-six years old. In addition, the clerical work related to Way’s position was assigned to Virginia Settler, a sixty-year-old union clerk who had forty-three years’ seniority with Teledyne. A motion for summary disposition pursuant to MCR 2.116(0(10) may be granted when, except for the amount of damages, there is no genuine issue with regard to any material fact and the moving party is entitled to judgment or partial judgement as a matter of law. A motion for summary disposition tests whether there is factual support for a claim. The trial court must consider the affidavits submitted, pleadings, depositions, admissions, and documentary evidence. Amorello v Monsanto Corp, 186 Mich App 324, 329-330; 463 NW2d 487 (1990). The party opposing the motion has the burden of showing that a genuine issue of material fact exists. Ewers v Stroh Brewery Co, 178 Mich App 371, 374; 443 NW2d 504 (1989). 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. Amorello, supra, p 330. The court may not make findings of fact or weigh credibility in deciding a motion for summary disposition. Paul v US Mutual Financial Corp, 150 Mich App 773, 779; 389 NW2d 487 (1986). Plaintiffs’ claims of age discrimination are based upon the Civil Rights Act, which provides: (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 .... [MCL 37.2202; MSA 3.548(202).] Michigan courts have considered federal law when reviewing claims of age discrimination based on state law. See Matras v Amoco Oil Co, 424 Mich 675, 683-685; 385 NW2d 586 (1986); Meeka v D & F Corp, 158 Mich App 688, 692; 405 NW2d 125 (1987); Dixon v W W Grainger, Inc, 168 Mich App 107, 113-114; 423 NW2d 580 (1987). Reaffirming the holding of McDonnell Douglas v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), the United States Supreme Court in Texas Dep’t of Community Affairs v Burdine, 450 US 248, 252-253; 101 S Ct 1089; 67 L Ed 2d 207 (1981), set forth the order and allocation of the burden of proof in employment discrimination cases as follows. First, the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff is successful in proving a prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for its actions. Third, if the defendant meets this burden, 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. Id.; Dubey v Stroh Brewery Co, 185 Mich App 561, 563-564; 462 NW2d 758 (1990). To establish a prima facie case of age discrimination, the 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. Ewers, supra, pp 379-380. Age discrimination may also be established by ordinary principles of proof without resort to any special judicially created presumptions or inferences. Matras, supra, p 683. In an age discrimination claim, the plaintiff must present evidence that (1) he had skills, experience, background, or qualifications comparable to the retained employee and (2) his age was a determining factor in the adverse employment decision. Id., pp 683-684; Meeka, supra, p 692. Evidence that a competent older employee was terminated and a younger employee was retained, standing alone, is insufficient to establish a prima facie case when the employer reduces his work force because of economic necessity. Matras, p 684. Viewing the evidence in a light most favorable to plaintiffs, we conclude that plaintiffs Featherly and Gannon, but not Way, established a prima facie case of age discrimination. In the case of Featherly, there was evidence presented that he was qualified for the position of supervisor of the consolidated departments. The record reveals that Featherly was the production supervisor of two departments with nine different lines, whereas Gilbert supervised one department containing two lines. Moreover, Featherly had more experience, as measured in years of seniority, than Gilbert. Featherly also presented sufficient evidence showing that age was a determining factor in his layoff. All the plaintiffs cite an article about the future of Teledyne in the Muskegon area published by the magazine West Michigan Proñle in November 1987, wherein Keenan was quoted as saying: We intentionally went with a small start in a new product so that we could get our feet wet, build some credibility, get some of the younger kids in here under the special arrangement, get them working and make them a core. Although defendant Keenan stated in his deposition that he meant that there was enough work for existing employees and that Teledyne would seek to provide employment to future generations in the Muskegon community, his remark is evidence that age was a determining factor in the 1987 layoff insofar as defendants sought to retain a younger work force. Because plaintiff Featherly, age fifty-eight, was replaced by Gilbert, age forty-one, defendant Keenan’s statement provides factual support that age was a determining factor in Featherly’s layoff. Additional evidence that age was a determining factor in the layoffs was presented in previous litigation arising from the December 1987 layoffs. In John Harris v Teledyne Industries, unpublished opinion per curiam of the Court of Appeals, decided October 8, 1990 (Docket No. 116087), Lloyd Lindland, Teledyne’s vice president of operations, allegedly told Harris, a production supervisor like plaintiff Featherly, that he was laid off because the retained employee was younger and better. Although Lindland, who oversaw the departments to which all the plaintiffs belonged, did not make a similar remark to any plaintiff in the instant case, the statement nevertheless presents some evidence that age may have been a determining factor in Teledyne’s decision to lay off plaintiffs in December 1987. Moreover, plaintiffs put forward some statistical evidence indicating that the oldest supervisors within each department were the employees most affected by the 1987 layoffs. Plaintiffs allege that whereas the median age of the laid-off supervisors was fifty-five, the median age of those retained was forty-four, and that no supervisor under the age of fifty-one was laid off. Defendants assert that plaintiffs’ average-age analysis distorts the evidence. In particular, defendants allege that there is no persuasive evidence of age discrimination in the case of Featherly, because the average age of the retained production supervisors dropped by only one year after the 1987 layoffs. Although the statistical evidence presented in this case may provide only weak circumstantial evidence of age discrimination, it nonetheless constitutes some factual support for the claim, especially when conjoined with the other facts evidencing age discrimination. Gannon also established a prima facie case of age discrimination with proof that his position was eliminated and his duties were assigned to Karafa and Mikesell. Alleging that his tool-making and budgeting experience was comparable to that of the retained employees, Gannon presented evidence showing that he was as qualified as Karafa. Further, Gannon presented evidence that age was a determining factor in his layoff. In addition to relying on the statements of defendant Keenan and Lindland, and the statistical evidence, Gannon alleges that remarks made to him by Engineering Manager Gary Tidball before and after the layoff provide evidence that age may have been a determining factor in his layoff. A month or two before the 1987 layoffs were announced, Tidball asked him how long he planned to work. Gannon told him another four to five years. After the announcement of the layoffs, Tidball asked Gannon how old he was and later remarked to Gannon that the layoff would not hurt him much because he could retire. Although the statements attributable to Tidball do not evidence an age discrimination claim as clearly as the remark allegedly made by Lindland in Harris, they support Gannon’s claim that age was a determining factor in his layoff. Unlike Featherly and Gannon, Way did not present a prima facie case of age discrimination. Although Way provided some evidence that he had qualifications comparable to those of the retained employees, Ford and Settler, he failed to present evidence that age was a determining factor in his layoff. Of the retained employees, Ford, age fifty-six, was only three years younger than plaintiff Way, whereas Settler, age sixty, was one year older and had six years more seniority than Way. Notwithstanding the foregoing evidence showing that age was a factor in Teledyne’s decision to lay off employees in December 1987, the record does not reveal that age was a determining factor in plaintiff Way’s case. Accordingly, we conclude that the trial court did not err in granting defendants’ motion for summary disposition of plaintiff Way’s age discrimination claim. Because plaintiffs Featherly and Gannon established prima facie cases of age discrimination, the burden shifts to defendants to articulate some legitimate, nondiscriminatory reason for their action. In the present case, defendants maintain that plaintiffs’ layoffs were caused by a business downturn that required the reduction of Teledyne’s work force. In addition, defendants presented evidence that Featherly was laid off because he was not as versatile as the retained employee, Gilbert. Defendants also presented evidence that Gannon’s position was eliminated and his duties assigned to Karafa and Mikesell because Gannon did not possess the retained employees’ respective tool-making and budgetary skills. Thus, plaintiffs have the burden of showing that this reason was merely a pretext. As this Court observed in Clark v Uniroyal Corp, 119 Mich App 820, 826; 327 NW2d 372 (1982), to avoid a motion for summary disposition after the defendant presents a legitimate, nondiscriminatory reason that rebuts the plaintiffs prima facie case of discrimination, the plaintiff must put forth factual allegations to raise a triable issue of fact as to whether the proffered reasons were mere pretext. Thus, a plaintiff must present factual allegations allowing the inference that the defendant had a discriminatory reason that was more likely its true motivation or factual allegations that show the def

Ruth V. Kolodziej vs. Warren Smith & another. Hampden. October 9, 1991. March 16, 1992. Present: Liacos, C.J., Wilkins, Lynch, O’Connor, & Greaney, JJ. Practice, Civil, Directed verdict. Civil Rights, Availability of remedy, Termination of employment. Constitutional Law, Freedom of religion. Employment, Termination, Discrimination. Contract, Employment. Public Policy. Evidence that an employer required all of its management level employees to attend a week-long seminar that, while nondenominational, used references to Scriptural texts to reinforce and illustrate teachings in the resolution of conflicts in interpersonal relationships was insufficient as a matter of law to warrant recovery under G. L. c. 12. § 111, on a management employee’s claim that the employer interfered with her rights of religious freedom under the First Amendment to the United States Constitution and art. 2 of the Declaration of Rights of the Massachusetts Constitution. [219-221] A judge in a civil action correctly allowed an employer’s motion for a directed verdict on a claim by a management employee that week-long seminar for all management level employees was an unlawful discriminatory practice in violation of G. L. c. 15IB, § 4 (1A), where the employee provided no evidence that the employer’s condition for her continuing in her management-level position, attendance at the seminar, required her to miss any religious service or to compromise her faith. [221] There was no merit to an employee’s claim that she was entitled to damages because her employer terminated her at-will employment in violation of public policy, that is, she was fired because she refused to attend a “religion seminar,” where there was no evidence that attending the seminar inhibited her in the exercise of her religion, or that her employer fired her because of her religion. [221-222] In the circumstances, this court remanded a case to the trial judge solely ■ to give the plaintiff an opportunity to file a motion in the Superior Court to amend her complaint to assert a claim under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (1988). [222-223] Civil action commenced in the Superior Court Department on August 17, 1988. The case was tried before James P. Lynch, Jr., J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Raymond R. Randall (Deborah D. A. Jeffrey with him) for the plaintiff. Douglas R. Dagarin for the defendants. Steven J. Schwartz, for Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief. Robert G. Caprera, for Institute in Basic Life Principles, amicus curiae, submitted a brief. Electro-Term, Inc. O’Connor, J. At all relevant times, the defendant Warren Smith was the president and sole shareholder of the corporate defendant Electro-Term, Inc. The plaintiff asserts in her complaint that the defendants interfered with her rights of religious freedom guaranteed by the Federal and State Constitutions, entitling her to damages and other relief under G. L. c. 12, § 11I (1990 ed.). She seeks similar relief on the ground that the defendants made her retention of employment conditional on her forgoing the practice of her “creed or religion as required by that creed or religion” in violation of G. L. c. 151B, § 4 (1 A) (1990 ed.). Finally, the plaintiffs complaint alleges that she is entitled to damages because Electro-Term, Inc., terminated her at-will employment in. violation of public policy, that is, Electro-Term, Inc., fired or demoted her because she refused to attend a religion seminar. Other claims set forth in the complaint are not in issue in this appeal. The case was tried to a jury. At the close of the plaintiffs evidence, the defendants moved for directed verdicts. Recognizing “the wisdom, normally, of submitting cases to juries for their decision rather than directing verdicts at the close of the plaintiffs evidence or of all the evidence, as recommended by Soares v. Lakeville Baseball Camp, Inc., 369 Mass. 974 (1976) and its several progeny,” the judge nevertheless “was of the strong belief that the plaintiff clearly had failed to make out a case which warranted submission to the jury,” and therefore he allowed the motion for directed verdicts in its entirety. The plaintiff appealed to the Appeals Court and we transferred the case here on our own motion. We affirm the judgment entered in the Superior Court. In reviewing a directed verdict, we summarize the evidence in the light most favorable to the party having the burden of proof, who ordinarily, as here, is the plaintiff. Narine v. Powers, 400 Mass. 343, 344-345 (1987). The jury would have been warranted in finding the following facts. Electro-Term, Inc., manufactures and sells electrical connectors. Begun in 1976 by the defendant Smith, the company considers itself a “Christian company.” It espouses Christian principles and offers a weekly Bible reading session to employees at which attendance is voluntary. In 1988, when the plaintiff’s legal action was commenced, Electro-Term, Inc., employed approximately forty-one people. The plaintiff, a Roman Catholic, was initially hired as a temporary employee by the company in August, 1987. In October, 1987, she was hired permanently and promoted to the position of controller, a management position. At all times she was an employee at will. Smith considered it very beneficial for the company’s employees annually to attend a week-long seminar put on by the Institute in Basic Life Principles entitled “Institute in Basic Youth Conflicts.” Attendance was mandatory for management level employees. The seminar offered instruction in several areas including the resolution of conflicts in interpersonal relationships, dealing with anger, and responding to authority. The seminar was nondenominational, but it used references to Scriptural texts to reinforce and illustrate its teachings. On the first night, the 1988 seminar, which was held in Symphony Hall in Springfield, focused on the family and its relationship to “the church.” A workbook was distributed that referred to Biblical passages. The workbook was prefaced with an extensive list of passages, separated by topic headings, which those in attendance were encouraged to read at home. A representative sampling of topic headings is as follows: “Wisdom and Understanding,” “Discerning Levels of Conflict,” “Responding to Enemies,” “Basic Steps of Maturity,” “Acceptance of God’s Design,” “Abnormal Social Developments,” “Discerning God’s Guidance,” “Basic Structures of Authority — Family, Government, Church,” “Reverence,” “Gratefulness,” “Forgiveness,” “Basic Steps to Walk in God’s Spirit,” “Consequences of Sensual Material,” and “Consequences of Alcohol.” On the second night of the 1988 seminar, a videotape presentation centered on a woman’s proper place in the family. The plaintiff testified, “This whole thing was done by video cassette, a screen up on the auditorium stage. There was no person giving the seminar. You watched the video on a screen, and there was this great big triangle and there was a man up at the top and the wife underneath him and the family underneath that, and I kind of looked at that situation where the woman was — I was told the woman was under the man’s influence in the family, that she should follow everything that he says, that she should not concern herself with financial matters in the family, that was his area, that she made the home a pleasant place to be; that she made the home, that he financed the home, in essence.” Scriptural passages were offered in support of this concept and the workbook contained a diagram showing a man in a superior position to the woman in the family. The plaintiff further testified: “They were telling me that I was a second class citizen — my husband’s first class, I’m second class — and yet they are using the Bible to tell me that this is true, which I didn’t believe was true, they are telling me that I shouldn’t know anything about financial matters, and here I am supposedly the controller of Electro-Term and the president is supposed to be digesting what I tell him. It just — the whole thing bothered me terribly.” On Wednesday, the plaintiff told Smith that she would not attend the rest of the seminar. On the following day, she explained to Smith that it was personally offensive, “religious,” and not work-related. He told her that, if she did not attend the seminar, she could no longer be part of management. He offered her a position as bookkeeper. The plaintiff refused either to attend the seminar or to accept what she considered to be a demotion to the nonmanagement position of bookkeeper. The plaintiff left the company’s employ. For our purposes it makes no difference whether we consider the plaintiff as having been demoted or discharged for her refusal to attend the seminar. In either event, she was penalized. The Massachusetts Civil Rights Act, G. L. c. 12, § 11H (1990 ed.), authorizes the Attorney General to bring a civil action in the Superior Court “[w]henever any person or persons, whether or not acting under color of law, interfere by threats, intimidation or coercion, or attempt to interfere by threats, intimidation or coercion, with the exercise or enjoyment by any other person or persons of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth . . . .” Section 11I grants a private cause of action to any individual whose exercise or enjoyment of such rights has been interfered with, or attempted to be interfered with, as described in § 11H. Batchelder v. Allied Stores Corp., 393 Mass. 819, 821 (1985). The plaintiff contends that the defendants interfered with her rights of religious freedom under the First Amendment to the United States Constitution and under art. 2 of the Declaration of Rights of the Massachusetts Constitution. The First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” Article 2 provides in relevant part, “[N]o subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping GOD in the manner and season most agreeable to the dictates of his own conscience, or for his religious profession or sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship.” General Laws c. 12, §§ 11H and 11I, provide remedies for interference with civil rights either by the State or by private individuals. O’Connell v. Chasdi, 400 Mass. 686, 692 (1987). Bell v. Mazza, 394 Mass. 176, 181-182 (1985). Batchelder v. Allied Stores Corp., supra at 821, 822-823. The question we must answer is whether the evidence set forth above is sufficient to warrant a finding that either defendant or both defendants interfered with the plaintiffs Federal or State constitutional right to believe and profess the religious doctrine of her choice. This right includes the right to assemble, or abstain from assembling, with others to engage in religious activity, Employment Div., Dep’t of Human Resources of Or. v. Smith, 494 U.S. 872, 877-878 (1990), and it includes the right to refrain from professing a particular religious belief. Torcaso v. Watkins, 367 U.S. 488, 495 (1961). “Only beliefs rooted in religion are protected . . . .” Frazee v. Illinois Dep’t of Employment Sec., 489 U.S. 829, 833 (1989), quoting Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 713 (1981). “Purely secular views do not suffice.” Frazee, supra. However, in order for a belief to be a protected religious belief, it is not necessary that it be shared by an organized sect or church. Id. The plaintiff argues that the principle taught at the seminar, that Scripture says that husbands have authority superior to that of their wives within the family context, is a belief rooted in religion, as is her contrary belief. Frequently, as here, making a proper distinction between religious and secular beliefs is difficult. Nevertheless, we accept the plaintiff’s contention that these two contrary beliefs are religious beliefs. It follows that the plaintiff would have had a right to abstain from attendance at the seminar if, as a result of the advocacy of that belief, the seminar constituted a religious activity. We hold, however, that it did not. We have no doubt that an employer’s requirement of an employee’s attendance at devotional services at which prayer is offered would constitute unlawful compulsion to participate in religious activity. This would be true regardless of whether the employee was told she could ignore what was going on. Young v. Southwestern Sav. & Loan Ass’n, 509 F.2d 140 (5th Cir. 1975), and EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610 (9th Cir. 1988), cited by the plaintiff, stand for that proposition. However, the seminar at issue here was in no sense a devotional service despite the fact that it promoted Scriptural passages as support for the lessons it sought to promote. No case has come to our attention in which a court has held on facts comparable to the facts here that an employer has interfered with an employee’s religious freedom, and we are not willing to go that far. Surely, there is no evidence -in this case that would warrant a finding that the defendants have forced the plaintiff to alter her religious convictions or her profession of belief, or to give the appearance of supporting a particular tenet of religion. We conclude that the evidence was insufficient as a matter of law to warrant recovery under G. L. c. 12, § 11I, and that the judge correctly directed verdicts for the defendants on those claims. Next, the plaintiff argues that compulsory attendance at the seminar violated G. L. c. 151B, § 4 (1A), which makes it an “unlawful discriminatory practice for an employer to impose upon any individual as a condition of obtaining or retaining employment any terms or conditions, compliance with which would require such individual to violate, or forego the practice of, his creed or religion as required by that creed or religion .... The employee shall have the burden of proof as to the required practice of his creed or religion.” In Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 771 (1986), we observed that this “statute does not deal with the full panoply of religious beliefs, practices, preferences, and ideals,” but focuses instead on required religious practices. The plaintiff produced no evidence that the defendants’ condition for her continuing as controller, attendance at the seminar, required her to miss any religious service or to compromise her faith. There was no evidence that Roman Catholic dogma forbade her attendance at the seminar. The judge correctly allowed the motion for directed verdicts on the G. L. c. 151B, § 4 (1A), claim. We turn to the plaintiff’s claim that she was discharged or demoted in violation of public policy. As an employee at will the plaintiffs employment was subject to termination or modification at any time for any reason or no reason at all. Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 150 (1989). We have allowed exceptions to this general at-will employment rule in cases where employees have been, discharged for doing what the law requires, see Hobson v. McLean Hosp. Corp., 402 Mass. 413, 416 (1988), for performing important public deeds such as cooperating with law enforcement officials, see Flesner v. Technical Communications Corp., 410 Mass. 805, 811 (1991), and for refusing to commit unlawful acts, see DeRose v. Putnam Management Co., 398 Mass. 205, 209-210 (1986). Of course, it is a public policy of this State to allow free exercise of religion. The plaintiffs claim fails, however, because there was no evidence that attending the seminar inhibited her in the exercise of her religion, or that ElectroTerm, Inc., fired her because of her religion. A verdict for Electro-Term, Inc., was properly directed. It appears that before commencing this action the plaintiff had filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) and MCAD then filed that complaint with the Equal Employment Opportunity Commission as required for a plaintiff to bring a Title VII (Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. [1988]) action. See Lewis v. Area II Homecare for Senior Citizens, Inc., supra at 770 n.11, citing 2 A. Larson, Employment Discrimination § 48.31 (1985). Beyond the averment in her Superior Court complaint that she had filed a complaint with MCAD, the plaintiffs complaint did not set forth a specific count asserting a violation of Title VII. Apparently, this was because counsel believed that Title VII actions were required to be brought in a Federal court. See Bradshaw v. General Motors Corp., 805 F.2d 110, 112 (3d Cir. 1986); Jones v. Intermountain Power Project, 794 F.2d 546, 553 (10th Cir. 1986); Valenzuela v. Kraft, Inc., 739 F.2d 434, 436 (9th Cir. 1984). Subsequent to the bringing of this action, approximately one month before the trial, the United States Supreme Court held that State courts have jurisdiction to adjudicate Title VII claims. Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820, 825 (1990). We think that the plaintiff should have an opportunity to file a motion in the Superior Court to amend her complaint to assert a Title VII claim. We affirm the judgments entered below except that we remand this case solely to give the plaintiff an opportunity within thirty days of the issuance of the rescript of this court to move to amend her complaint as discussed above. So ordered.