Discrimination Cases

Diane Cherella vs. Phoenix Technologies Ltd. No. 90-P-827. February 13, 1992. Anti-Discrimination Law, Termination of employment, Sex. Employment, Discrimination. Practice, Civil, Complaint, Summary judgment. Civil Rights, Termination of employment. Massachusetts Commission Against Discrimination. Limitations, Statute of. Contract, Employment. On its face, the plaintiff’s complaint of gender discrimination filed with the Massachusetts Commission Against Discrimination (MCAD) was late because it was brought in excess of six months after the alleged act of discrimination. See G. L. c. 151B, § 5. A subsequent action which the plaintiff initiated in Superior Court was dismissed on a motion for summary judgment of the defendant Phoenix Technologies Ltd. (Phoenix). Impliedly (he gave no reasons for his decision), the motion judge rejected the plaintiff’s contention that she was so impaired by a back ailment as to cause an equitable tolling of the statute of limitations which had otherwise run against her. We affirm. Resort to the courts is not available for a complaint of discrimination within the jurisdiction of the MCAD unless the person claiming to have been the object of unlawful discrimination first makes a timely complaint to that agency. Melley v. Gillette Corp., 19 Mass. App. Ct. 511, 512-513 (1985), S.C., 397 Mass. 1004 (1986). Sereni v. Star Sportswear Mfg. Corp., 24 Mass. App. Ct. 428, 430 (1987). The acts of discrimination alleged were a failure to promote the plaintiff to chief financial officer of Phoenix and her discharge from employment after she had ceased to work because of her back difficulty. Those events occurred in February, March, and April of 1987. The plaintiff filed the complaint with the MCAD on April 28, 1989, a bit more than two years after the asserted discriminatory acts. Obviously, the six-month limitation period of G. L. c. 15IB, § 5, had been greatly exceeded. That limitations period, however, is subject to equitable tolling. Christo v. Edward G. Boyle Ins. Agency, Inc., 402 Mass. 815, 817 (1988). For example, if the potential defendant encourages or cajoles the potential plaintiff into inaction, that conduct may be a basis of extending the limitations period as matter of equity. Id. at 817-819. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393-398 (1982), decided in connection with analogous Federal rights under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (1988). The ground offered for tolling the statute in the instant case is the plaintiff’s mental incapacity due to the extreme pain and physical disability brought on by her hurt back. Only back surgery in January, 1989, and consequent alleviation of pain, enabled the plaintiff to reflect on the circumstances of her having been passed over as chief financial officer of Phoenix and her subsequent discharge. Mental disability has been accepted — sparingly — as a ground for tolling a statute of limitations but then in circumstances where a person literally could not act, as when in a coma because of alleged malpractice. See, e.g., Clifford v. United States, 738 F.2d 977, 980 (8th Cir. 1984). See more generally Lopez v. Citibank, N.A., 808 F.2d 905, 906-907 (1st Cir. 1987). Mental disability of the sort which would cause the tolling of a statute of limitations is described in G. L. c. 260, § 7, as in effect at relevant times, as insanity, which we have defined for that purpose as “any mental condition which precludes the plaintiff’s understanding the nature or effects of his acts.” Hornig v. Hornig, 6 Mass. App. Ct. 109, 111 (1978), and cases there cited. See also Pederson v. Time, Inc., 404 Mass. 14, 16 (1989). In her complaint, the plaintiff alleges that she “experienced diminished mental capacity as a result of extreme pain.”. In an affidavit, she stated “[w]ith regard to the physical disability and chronic pain mentioned in my complaint, I have seen, and continue to see, a variety of medical professionals for treatment of my underlying back problem and chronic pain management.” Letters from three physicians who attended the plaintiff speak to her physical problems and discomfort; they do not mention or allude to consequential mental disability of any kind, let alone of a gravity which would preclude the plaintiff from understanding the nature or effects of her acts. Nothing offered by the plaintiff in opposition to the motion for summary judgment provided evidence of mental incapacity as the phrase is understood for tolling purposes. The plaintiff’s unsupported allegation to the contrary did not create a material dispute of fact. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711-715 (1991). Compare Boudreau v. Landry, 404 Mass. 528, 530 (1989). Of the other counts in the complaint, most are an attempt to bypass the procedures established in c. 15IB and fail on that ground. See Melley v. Gillette Corp., 19 Mass. App. Ct. at 514. We think the equal employment opportunity policy announced in an employee handbook issued by Phoenix in the fall of 1986 (the plaintiff had first been employed at Phoenix in June, 1985) did not establish contractual rights which would support an action for breach of contract. See Jackson v. Action for Boston Community Dev., Inc., 403 Mass. 8, 12-15 (1988); Menard v. First Sec. Serv. Corp., 848 F.2d 281, 289-290 (1st Cir. 1988). Compare Garrity v. Valley View Nursing Home, Inc., 10 Mass. App. Ct. 822 (1980). Elizabeth Shackford Reinhardt for the plaintiff. Joan A. Lukey for the defendant. Judgment affirmed. Phoenix had filed a motion to dismiss under Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), and a motion in the alternative, for summary judgment. As the judge accepted materials (affidavits) outside the complaint, the motion is treated as one for summary judgment. Taplin v. Chatham, 390 Mass. 1, 2 (1983). Davidson v. Commonwealth, 8 Mass. App. Ct. 541, 542 n.2 (1979).

MEEK v MICHIGAN BELL TELEPHONE COMPANY Docket No. 123240. Submitted January 8, 1991, at Detroit. Decided November 26, 1991; approved for publication March 25, 1992, at 9:10 A.M. Leave to appeal denied, 440 Mich —. Gloria and Fred Meek brought an action in the Wayne Circuit Court against the Michigan Bell Telephone Company and Richard Schulz, alleging violation of Gloria Meek’s civil rights and intentional infliction of emotional distress as a result of alleged sexual and religious harassment during her employment with Michigan Bell from 1977 through 1984. The court, Thomas J. Foley, J., granted partial summary disposition for the defendants, finding that an action for conduct predating March 19, 1984, was barred by the applicable statute of limitations. The court also granted summary disposition for the defendants with regard to the claim of intentional infliction of emotional distress, and granted the defendants’ motion in limine, finding that evidence concerning most of the pre-March 19, 1984, incidents was not admissible. The plaintiffs appealed. The Court of Appeals held: 1. The acts of defendant Michigan Bell’s employees before March 19, 1984, constituted a continuous course of discriminatory conduct sufficient to invoke the continuing-violations exception to the statutory limitation period. Plaintiffs’ claim based on the pre-March 19, 1984, violations therefore was not barred by the statute of limitations. The conduct of defendant Schulz amounted to a present violation that occurred within the limitation period and therefore was not barred. 2. The trial court abused its discretion in granting the defendants’ preliminary motion to suppress the introduction of evidence of any actions predating March 19,1984. 3. The court did not err in concluding that the plaintiffs did _not allege extreme and outrageous conduct by the defendants sufficient to support a claim of intentional infliction of emotional distress. References Am Jur 2d, Fright, Shock, and Mental Disturbance §§4-7; Job Discrimination § 2292. Modem status of intentional infliction of mental distress as independent tort; "outrage”. 38 ALR4th 998. Affirmed in part, reversed in part, and remanded. 1. Limitation of Actions — Civil Rights — Employment Discrimination — Continuing Violations. The statute of limitations applicable in actions alleging employment discrimination in violation of the Civil Rights Act will not bar an action for earlier acts of discrimination that would otherwise be barred where an act of discrimination occurs within the limitation period and there is a continuous course of discriminatory conduct sufficient to constitute a continuing violation; factors to be considered in determining whether such a course of conduct exists include the subject matter, frequency, and degree of permanence of the alleged discriminatory acts (MCL 600.5805[8]; MSA 27A.5805[8]). 2. Torts — Intentional Infliction of Emotional Distress. Liability for intentional infliction of emotional distress may be found only where the conduct has been so outrageous in character, and so extreme in degree, that it goes beyond all possible bounds of decency and may be regarded as atrocious and utterly intolerable in a civilized community. Kelman, Loria, Downing, Schneider & Simpson (by Alan B. Posner), for the plaintiffs. Dickinson, Wright, Moon, Van Dusen & Freeman (by Thomas G. Kienbaum and Robert W. Powell) (Laura D. White, Michigan Bell Telephone Company, of Counsel), for the defendants. Before: Jansen, P.J., and Wahls and Hood, JJ. Per Curiam. Plaintiffs filed the present action against defendants for alleged violations of plaintiff Gloria Meek’s civil rights under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. On April 9, 1987, defendants answered plaintiffs’ complaint, alleging that the complaint was barred by the applicable statute of limitations. On November 3, 1989, the trial court granted defendants’ motion for partial summary dispositiom on the ground that the statute of limitations barred recovery for alleged conduct predating March 19, 1984; granted defendants’ motion for summary disposition in regard to allegations of intentional infliction of emotional distress; and granted defendants’ motion in limine, finding that evidence concerning most of the actions predating March 19, 1984, was not admissible. Plaintiffs appeal as of right, alleging that an action regarding the pre-1984 incidents was not time-barred because they fell within the continuing-violation doctrine and that the trial court erred in dismissing the claim of intentional infliction of emotional distress. We affirm in part and reverse in part. Gloria Meek (hereafter plaintiff) claims that from 1977 through 1984, she was subjected to instances of sexual and religious harassment. Specifically, plaintiff complains that in 1977 a supervisor indicated to her that he did not want a female working for him and gave her a cartoon drawn by other employees that berated women. The cartoon was eventually posted on employee bulletin boards and on employees’ desks. In 1978, plaintiff was transferred and placed under the supervision of another supervisor, who told plaintiff that there was no need for her to make a lot of money because she had a working spouse, that she should work inside or at home, and that plaintiff, like all Jews, was rich. This supervisor also commented that because plaintiff was a woman she should show more compassion in disciplining the crews and that she should not fill out an injury report after she broke her nose on the job. Following an uneventful transfer, plaintiff was transferred to another office, where the supervisor told her that she should be home caring for the kids, that she was taking jobs away from men, and that Jews have lots of money and fancy homes. In 1981, following a maternity leave, plaintiff was denied a raise allegedly because of the pregnancy. Plaintiff claims that later in 1981 and in 1982 another supervisor told her that Jewish women do not work, that plaintiff should be at home, that he did not like women in men’s positions, and that plaintiff failed his expectations of a Jewish woman. In 1983, another supervisor told plaintiff that he did not want her ideas, but rather those ideas submitted by the guys. After May of 1984, plaintiff was supervised by defendant Schulz. Plaintiff claims that defendant Schulz told her to put her purse away or he would take disciplinary action, to wear pants with pockets so that she could keep a wallet in them like men do, and to wear shoes like the other guys. Defendant Schulz also called plaintiff "chubbly,” a combination of chubby and ugly, and described a ring given to her by her husband as a Jewish-American-princess ring. Further, other employees under defendant Schulz’ supervision called her a Jewish-American princess and asked who she had slept with in order to get her job. After plaintiff was terminated from employment, she filed suit against defendants Michigan Bell and Schulz. First, we address plaintiffs’ allegation that the trial court erred in granting defendants’ motion for partial summary disposition on the basis that an action concerning the conduct occurring before March 19, 1984, was barred by the statute of limitations. An action alleging employment discrimination under the Civil Rights Act must be brought within three years after the cause of action accrued. MCL 600.5805(8); MSA 27A.5805(8), Mair v Consumers Power Co, 419 Mich 74, 77; 348 NW2d 256 (1984). Our Supreme Court in Sumner v Goodyear Tire & Rubber Co, 427 Mich 505; 398 NW2d 368 (1986), recognized an exception to the statute of limitations for continuing violations. The Sumner Court stated that an exception exists where an employee challenges a series of allegedly discriminatory acts so sufficiently related as to constitute a pattern where only one of the acts occurred within the limitation period. Id. at 528. The Sumner Court also set forth the factors to be considered in determining whether a continuing course of discriminatory conduct exists: The first is subject matter. Do the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation? The second is frequency. Are the alleged acts recurring (e.g., a biweekly paycheck) or more in the nature of an isolated work assignment or employment decision? The third factor, perhaps of most importance, is degree of permanence. Does the act have the degree of permanence which should trigger an employee’s awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate. [Id. at 538, quoting Berry v LSU Bd of Supervisors, 715 F2d 971, 981 (CA 5,1983).] In the present case, we hold that the prior actions of the employees of defendant Michigan Bell constituted a continuing violation sufficient to avoid the statutory limitation period. All the discriminatory events alleged by plaintiff involved the same subject matter: gender and religion. Also, the derogatory remarks made to plaintiff were not isolated to work assignments or employment decisions, but, rather, were recurring with nearly every new supervisor she was employed under. It was these same supervisors who denied plaintiff merit raises and favorable evaluations. Lastly, their acts did not have such a degree of permanence that plaintiff should have asserted her rights earlier. Over approximately nine years, plaintiff had several supervisors. It was reasonable for plaintiff to believe that with each transfer and chanjge in supervision the discriminatory conduct would cease. However, with almost each new supervisor came a new wave of harassment. We believe that the acts of defendant Michigan Bell’s employees exhibited a continuous course of discriminatory conduct sufficient to invoke the continuing-violations exception to the statutory limitation period. We also hold that the conduct of defendant Schulz amounted to a present violation that occurred within the limitation period. The mere existence of continuing harassment is insufficient if none of the relevant conduct occurred within the limitation period. Sumner, p 539. Defendants do not contest the allegedly discriminatory conduct of defendant Schulz, and we believe that the post-March 1984 actions of Schulz were intrinsically connected to the pre-March 1984 violations. Therefore, we hold that plaintiffs’ claim alleged a continuing violation and that an action' concerning the pre-March 1984 violation is not barred by the statute of limitations. Considering our holding that the prior incidents constitute a part of a continuing violation and, thus, are not barred by the statute of limitations, we must now consider whether the trial court erred in granting defendants’ preliminary motion to suppress the introduction of evidence of any actions predating March 19,1984. The decision whether to admit certain evidence is within the trial court’s sound discretion and will not be disturbed absent an abuse of discretion. Brunson v E & L Transport Co, 177 Mich App 95, 104; 441 NW2d 48 (1989). The trial court held that because there was no connection between the acts themselves and no relationship between the parties involved, evidence of these prior acts had no probative value and had potential for prejudice. Considering that we have found the existence of a continuing violation sufficient to avoid the application of the limitation period, we hold that the trial court abused its discretion by precluding the admission of this testimony. Finally, we address whether the trial court erred in granting defendants’ motion for summary disposition of the claim of intentional infliction of emotional distress. Liability for the separate cause of action of intentional infliction of emotional distress has been found "only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Roberts v Auto-Owners Ins Co, 422 Mich 594, 602-603; 374 NW2d 905 (1985), quoting 1 Restatement Torts, 2d, § 46, comment d, pp 72-73. Plaintiffs deposition alleged that defendant Schulz told plaintiff to put her purse away, to wear pants with pockets so she could keep a wallet in them like men do, and to wear shoes like the other guys. Defendant Schulz also called defendant chubbly, a combination of chubby and ugly, in front of the crew and described a ring given to her by her husband as a Jewish-American-princess ring. In addition, employees under defendant Schulz’ supervision called plaintiff a Jewish-American princess and asked plaintiff who she had slept with to get her job. Accepting these factual allegations as true, we hold that the trial court did not err in concluding that these allegations clearly do not rise to the level of extreme and outrageous conduct to support a claim of intentional infliction of emotional distress. MCR 2.116(C)(8), Scameheorn v Bucks, 167 Mich App 302, 306; 421 NW2d 918 (1988). Affirmed in part, reversed in part, and remanded to the trial court for proceedings consistent with this opinion.

Willie Bynes, Jr., & another vs. School Committee of Boston & others. Suffolk. October 8, 1991. November 21, 1991. Present: Liacos, C.J.. Wilkins. Nolan. Lynch. & Greaney. JJ. School and School Committee, Transportation of students. Criminal Offender Record Information. Anti-Discrimination Law, Employee, Termination of employment. Statute, Construction. General Laws c. 15IB, § 4 (9), prohibiting employers from requesting certain criminal record information from employees and potential employees does not prohibit employers from requesting such information from other sources. [266-269] A school committee that requested Criminal Offender Record Information (CORI) from the Criminal History Systems Board did not violate G. L. c. 6, § 172, when it received and used certain CORI that was not requested or authorized by the school committee’s certification under the statute. [270-271] Civil action commenced in the Superior Court Department on January 21, 1987. The case was heard by Barbara J. Rouse, J. The Supreme Judicial Court granted a request for direct appellate review. Harold L. Lichten for the plaintiffs. Stephanie S. Lovell, Special Assistant Corporation Counsel, for School Committee of Boston & another. E. Susan Garsh for National School Bus Service, Inc. Joan S. Dyott. National School Bus Service, Inc., and the superintendent of the Boston public schools. Nolan, J. The plaintiffs, Willie Bynes, Jr., and Joan Dyott, commenced this action against the defendants who terminated their employment as school bus drivers in the city of Boston because of their criminal records. They are appealing from a judgment of the Superior Court which determined, inter alia, that the defendants had not violated G. L. c. 151B, § 4 (9) (1990 ed.), and G. L. c. 6, § 172 (1990 ed.), in discharging the plaintiffs. This court granted the plaintiffs’ application for direct appellate review. We affirm the judgment. The school committee of Boston (school committee) provides bus transportation for approximately 25,000 Boston public school students through vendor contracts with private companies. Pursuant to such a contract, ARA Transportation, Inc. (ARA), provided school bus services from 1978 through the end of the 1984-1985 school year. In September of 1985, National School Bus Service, Inc. (National), succeeded ARA and undertook the transportation of the students through a vendor contract with the school committee. As part of the school committee’s contract with both ARA and National, it had “the right to reject... at any time prior to or during employment, any person deemed ... to be unfit for such employment.” In early 1985, as a result of the concerns of certain members of the school committee about the past criminal records of school bus drivers, school department staff requested the Criminal History Systems Board (board) to conduct background investigations on all Boston public school bus drivers pursuant to the Criminal Offenders Record Information (CORI) Act, G. L. c. 6, §§ 167-172 (1990 ed.). In accordance with the provisions of G. L. c. 6, § 172 (c), the board certified the school committee for access to criminal record information pertaining to convictions of individuals seeking employment or employed as school bus drivers. The board, consistent with its responsibility under G. L. c. 6, §§ 168, 171, reviews criminal records before releasing them to determine that only relevant information is released. Pursuant to the committee’s certification, school department staff requested CORI on the bus drivers by stating: “I request that you furnish me with CORI on each of the drivers.” Bynes and Dyott had been school bus drivers since 1978 and 1977, respectively, until their dismissals in 1985. The board sent the school committee information which indicated that Bynes had a 1972 conviction for assault by means of a dangerous weapon and a 1983 charge for assault and battery by means of a dangerous weapon. The 1983 charge was dismissed in 1984 after Bynes paid court costs and restitution to the victim, his wife. The information that the board sent to the school committee also indicated that Dyott was arrested and convicted in 1975 for possession of a controlled substance, marihuana, with intent to distribute, for which she received a suspended sentence and was placed on probation. On or about May 24, 1985, pursuant to the contract between the school committee and ARA, the school committee directed ARA to discharge twelve bus drivers, including Bynes. On June 20, 1985, the school committee promulgated a mandatory disqualification regulation, which was incorporated into the contract between the school committee and National, as well as the collective bargaining agreement between National and the bus drivers’ union. The regulation provided, in relevant part, that an individual would not be eligible for employment as a school bus driver if he or she either had been convicted at any time of possession with intent to distribute a controlled substance or had been convicted of a violent felony within the past five years. As a result of this policy, on August 23, 1985, the school committee instructed National not to hire certain drivers, including Bynes and Dyott, and National complied with the school committee’s instructions. Although the plaintiffs’ lawsuit initially contained four counts, their appeal concerns only their claims under G. L. c. 151B, § 4 (9), and c. 6, § 172, as to which judgment entered for the defendants. 1. G. L. c. 151B, § 4 (9) claim. The plaintiffs argue that the Superior Court judge misinterpreted G. L. c. 15IB, § 4 (9), by failing to give it its plain meaning and also by failing to construe § 4 (9) in light of G. L. c. 6, § 172. The plain- tiffs first contend that § 4 (9) bans all requests by an employer. for the prohibited information from any source. The plaintiffs assert, therefore, that both dismissals violated § 4 (9), because the requested CORI on Bynes included an arrest without a conviction, and the information on Dyott included a misdemeanor conviction more than five years prior to the request. Additionally, the plaintiffs argue that, in order to read c. 15IB, § 4 (9), and c. 6, § 172, harmoniously, an employer should be limited in seeking CORI to that which the employer can seek under § 4 (9). We disagree with the plaintiffs’ interpretation of § 4 (9) for a variety of reasons. The plain language of the statute rebuts the plaintiffs’ contention. “It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, . . . the sole function of the courts is to enforce it according to its terms.” Massachusetts Community College Council v. Labor Relations Comm’n, 402 Mass. 352, 354 (1988), quoting James J. Welch & Co. v. Deputy Comm’r of Capital Planning & Operations, 387 Mass. 662, 667 (1982). If we were to read the phrase in § 4 (9) (“to request any information”) as broadly as the plaintiffs read that phrase, to apply to any request from any source, we would render the subsequent phrase “to use any form of application or application blank which requests such information” superfluous." Surely the plaintiffs’ interpretation of “request any information” would include such requests on application forms. It is another elementary rule of statutory construction that a statute should not be read in such a way as to render its terms meaningless or superfluous. Globe Newspaper Co. v. Commissioner of Revenue, 410 Mass. 188, 192 (1991). International Org. of Masters, Mates & Pilots v. Woods Hole, Martha’s Vineyard & Nantucket S.S. Auth., 392 Mass. 811, 813 (1984). The Legislature’s intent was merely to protect employees from such requests from their employers and not to proscribe employers from seeking such information elsewhere. The legislative history of § 4 (9) supports this interpretation. See Quincy City Hosp. v. Rate Setting Comm’n, 406 Mass. 431, 443 (1990) (“Statutes are to be interpreted not based solely on simple, strict meaning of words, but in connection with their development and history, and with the history of the times and prior legislation”). As originally enacted, G. L. c. 151B, § 4 (9), inserted by St. 1969, c. 314, and as amended by St. 1972, c. 428, prohibited discrimination against employees or applicants who failed to furnish certain criminal history information, and it also placed restrictions on application forms. The relevant change in the 1974 revision of § 4 (9) prohibited requests for this information and the maintenance of records including this information. St. 1974, c. 531. The Superior Court judge’s reading of § 4 (9), as amended, that it is limited to an employer’s request for information from an employee or prospective employee, is consistent with the original purpose of the statute, which was to protect employees from discrimination for their failure to provide their employers with restricted criminal history information. Nothing indicates that the Legislature intended that the limited provisions of the 1974 version of § 4 (9) would have the broad reach envisioned by the plaintiffs. The plaintiffs’ interpretation of § 4 (9) would turn that limited prohibition against an employer’s request to an employee or prospective employee into a general prohibition against an employer’s use of such information. If that were the Legislature’s intent, surely the Legislature might have utilized the broader anti-discrimination language already utilized in G. L. c. 151B, § 4 (1) (1990 ed.), concerning employment discrimination, or even might have just amended § 4 (1) to include the protections envisioned by the plaintiffs'. The Massachusetts Commission Against Discrimination (commission), the agency responsible for enforcing c. 151B, has also construed the protection afforded by § 4 (9) to be “quite narrow in scope” and “directed primarily at the preemployment inquiry, particularly the application form.” McGowan v. Stoneham Police Dep’t, 6 M.D.L.R. 1639, 1648 (1984), quoting LeBoeuf v. Lodding Eng’g, 2 M.D.L.R. 1381, 1383 (1980). The commission’s interpretation of its governing statute is entitled to substantial deference. Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 204 (1981). In McGowan, the commission specifically upheld a hearing commissioner’s determination that the use of an individual’s arrest record, not directly obtained from that individual, in making employment decisions does not violate § 4 (9). McGowan, supra at 1647. The commission also stated that an interpretation of § 4 (9) which would prohibit the mere use of arrest records by employers “is against the weight of the authority on this point.” Id. Having determined that G. L. c. 151B, § 4 (9), only affects an employer’s ability to request certain criminal record information from employees and potential employees, we have no need to consider the relationship between § 4 (9) and the CORI statute. Therefore, we need not determine whether the school committee is an employer of the school bus drivers for § 4 (9) purposes. 2. The CORI claim. The next claim raised by the plaintiffs is that the defendants violated the CORI statute by requesting, obtaining, and then utilizing CORI in the dismissal of the plaintiffs. The relevant portion of G. L. c. 6, § 172, is set out in the margin. Because the board limited the school committee’s CORI access to criminal charges that resulted in convictions, and because the school committee received and used information concerning Bynes’s 1983 assault charge, allegedly in violation of the school committee’s certification, the plaintiffs contend that the defendants violated § 172. Bynes initially claims that the school committee’s request for and receipt of CORI was illegal because its request was too broad and not limited to its restricted authorization. It is the board, however, and not the recipient, which “has the duty to assure the accuracy and completeness of CORI, as well as to prevent its unauthorized disclosure.” Police Comm’r of Boston v. Municipal Court of the Dorchester Dist., 374 Mass. 640, 648 (1978). There is no language within the CORI statute which would lead us to the conclusion that the school committee, or any other certified individual or agency, shares this responsibility with the board. Bynes also asserts that the school committee violated G. L. c. 6, § 172, by using CORI that exceeded its certification, even if it was without fault in receiving unauthorized CORI. Bynes appears to read the clause “in violation of the provisions of this statute” in § 172, as modifying the antecedent clause “that receives or obtains criminal offender information.” In other words, Bynes finds a form of strict liability within the statute whereby the school committee can be liable for the use of unauthorized CORI, even if it is blameless, merely if its receipt of the information is in violation of § 172. We recognize “the general rule of statutory as well as grammatical construction that a modifying clause is confined to the last antecedent unless there is something in the subject matter or dominant purpose which requires a different interpretation.” Moulton v. Brookline Rent Control Bd., 385 Mass. 228, 230-231 (1982), quoting Druzik v. Board of Health of Haverhill, 324 Mass. 129, 133 (1949). Because the statute delegates to the board the responsibility for preventing unauthorized disclosures of CORI, any interpretation of the statute that would require individuals or agencies who have been certified by the board for access to information to undertake their own investigations of the lawfulness of their receipt of information from the board would be inconsistent with the dominant purpose of the statute. We believe that the better reading of the statute, a reading more consistent with the Legislature’s intent, is that the clause “in violation of the provisions of this statute” refers to “[a]ny individual or agency” at the beginning of the sentence. Under this reading, the plaintiff must prove that the individual or agency is in violation of the statute and at fault. Assuming, without deciding, that the school committee received unauthorized CORI on Bynes, he asserts no facts which would create any inference that the school committee violated the statute or was at fault in its CORI request. The simple statement — “I request that you furnish me with CORI on each of the drivers” — where the board bears the responsibility for unauthorized disclosures, hardly constitutes fault on the part of the school committee. In addition, each letter from the board to the school committee that contained CORI on the bus drivers included the statement that it was “[pjursuant to the certification issued by the Criminal History Systems Board on March 2, 1982.” For the-foregoing reasons, the judgment of the Superior Court is affirmed. So ordered. While the school committee based its initial termination of Bynes on both the 1972 conviction and the 1983 charge, the later decision not to rehire Bynes, resulting from the mandatory disqualification regulation, relied only on the 1983 charge. General Laws c. 151B, § 4 (9), states, in relevant part, that it is an unlawful practice “[f]or an employer ... in connection with an application for employment... or discharge of any person ... to request any information, to make or keep a record of such information, to use any form of application or application blank which requests such information, or to exclude, limit or otherwise discriminate against any person by reason of his or her failure to furnish such information through a written application or oral inquiry or otherwise regarding: (i) an arrest ... in which no conviction resulted ... or (iii) any conviction of a misdemeanor where the date of such conviction . . . occurred five or more years prior to the date of such application for employment or such request for information .... “No person shall be held under any provision of any law to be guilty of perjury or of otherwise giving a false statement by reason of his failure to recite or acknowledge such information as he has a right to withhold by this subsection.” Contrary to the plaintiffs’ contention, McGowan does not support their interpretation of § 4 (9). Without expressing our opinion on the merits of the commission’s decision, we note that the commission merely determined that it was inappropriate for a police department to use its ability to obtain criminal offender information under G. L. c. 6, § 172 (a), to effectuate its role as an employer. McGowan, supra at 1651. That is not the issue in this case. General Laws c. 6, § 172, states in relevant part: “Any individual or agency, public or private, that receives or obtains criminal offender record information, in violation of the provisions of this statute, whether directly or through any intermediary, shall not collect, store, disseminate, or use such criminal offender record information in any manner or for any purpose.” Because the school committee was certified to receive the information that it received concerning Dyott, this claim applies only to Bynes.

HOWARD v CANTEEN CORPORATION Docket No. 120825. Submitted May 13, 1991, at Detroit. Decided October 15, 1991; approved for publication January 15, 1992, at 9:00 a.m. Carol J. Howard brought an action in the Wayne Circuit Court against Canteen Corporation and David Spender, alleging breach of an employment contract and sexual discrimination as a result of the defendants’ failure to promote her, harassment, retaliation, and wrongful termination of her employment. The jury returned a verdict for the plaintiff on the claims for breach of contract and sex discrimination, and the court, Louis F. Simmons, Jr., J., entered a judgment for $299,530 plus interest, costs, and attorney fees. The defendants appealed from the denial of their motions for directed verdict, judgment notwithstanding the verdict, a new trial, and remittitur. The Court of Appeals held: 1. There was sufficient evidence of sexual discrimination on the basis of the failure to promote, sexual harassment, retaliation, and wrongful discharge and of breach of contract to send the case to the jury and to support its verdicts regarding those claims. The trial court did not err in denying the defendants’ motions for directed verdict or judgment notwithstanding the verdict. 2. The award of $200,000 for mental anguish, emotional distress, and humiliation associated with the sex discrimination claims was supported by the evidence and was not excessive. The court did not abuse its discretion in denying the defendants’ motion for remittitur. 3. The court did not abuse its discretion in denying the defendants’ motion for a new trial. 4. A remand is necessary for an evidentiary hearing regarding the reasonableness of the attorney fees awarded to the _plaintiff because the defendants were not provided a sufficient opportunity to challenge the affidavits and other documentary evidence in support of the requested fees and the trial court did not make findings of fact with regard to the attorney fee issue. References Am Jur 2d, Costs §§ 72, 79, 261; Damages §§ 143, 144, 678; Job Discrimination § 2498. Effect of anticipated inflation on damages for future losses — modern cases. 21 ALR4th 21. 5. The use of a multiplier for the attorney fees granted under the Civil Rights Act was not justified under the circumstances of this case, and, therefore, the portion of the attorney fees awarded that are attributable to the multiplier is vacated. 6. The award of attorney fees under both the Civil Rights Act and MCR 2.403(0) was appropriate because each provision serves an independent policy or purpose. The court, on remand, must determine the reasonableness of the fees awarded as mediation sanctions. 7. The court erred in failing to reduce the award for damages for the plaintiffs future wage loss to present value or to instruct the jury to do so. Inflation is a factor that may be considered in assessing damages, but a court may not employ it to omit the present-value reduction. Remand is required for the court to reduce the future wage loss award to present value. Affirmed in part, reversed in part, and remanded. 1. Attorney and Client — Attorney Fees. Each party in a lawsuit ordinarily bears its own attorney fees unless there is express statutory authorization to the contrary. 2. Civil Rights — Attorney Fees — Findings of Fact. A trial court, in its discretion, may award reasonable attorney fees in cases involving violations of the Civil Rights Act; the court, where attorney fees are to be awarded, must determine the reasonable amount of fees according to the nonexclusive list of factors and guidelines set forth in Wood v DAIIE, 413 Mich 573 (1982), and, while not required to detail its findings regarding each specific factor, it is required to make findings of fact with regard to the issue of attorney fees (MCL 37.2802; MSA 3.548[802]). 3. Attorney and Client — Attorney Fees — Evidentiary Hearings. The party seeking an award of attorney fees bears the burden of establishing entitlement and documenting the appropriate hours expended and hourly rates; where the opposing party challenges the reasonableness of the requested fee, the trial court should hold an evidentiary hearing regarding the issue, and, if any of the underlying facts are in dispute, the court should make findings of fact regarding those issues. 4. Attorney and Client — Attorney Fees. A reasonable attorney fee is presumed to be based on a reasonable hourly rate multiplied by a reasonable number of hours expended; a trial court’s discretion to increase such a presumptively reasonable attorney fee is limited to rare circumstances where the attorney’s work is so superior and outstanding that it far exceeds client expectations and normal levels of competence, or where it is necessary for attracting competent counsel. 5. Civil Rights — Attorney Fees — Mediation Sanctions. Reasonable attorney fees may be awarded under both the court rule governing mediation sanctions and the attorney fee provision of the Civil Rights Act in an appropriate case because each provision serves an independent policy or purpose (MCR 2.403[O]; MCL 37.2802; MSA 3.548[802]). 6. Damages — Future Losses — Present Value. An award of damages for future losses must be reduced to its present cash value; a trial court faced with such an award either must instruct the jury regarding such reduction or reduce the award to its present value. . 7. Damages — Future Losses — Inflation. Inflation is a factor that may be considered in assessing damages, but it does not entitle a trial court to ignore the duty to reduce to present value an award of damages for future losses. Kelman, Loria, Downing, Schneider & Simpson (by Janet M. Tooley), for the plaintiff. Clark, Klein & Beaumont (by P. Robert Brown, Jr., Dorothy M. Basmaji, Amy Bateson, Sheryl A. Moody, and Nancy J. Gordon), for the defendants. Before: Cavanagh, P.J., and Neff and W. R. Beasley, JJ. Former Court of Appeals judge, sitting on the Court of Appeals by assignment. Per Curiam. In this gender-based discrimination case, defendants appeal as of right from a judgment entered on a jury verdict of approximately $300,000. They also claim that the trial court erred in denying their posttrial motions for directed verdict, judgment notwithstanding the verdiet, a new trial, and remittitur. We affirm in part and reverse in part. Plaintiff, Carol Howard, began working at defendant Canteen’s Cadillac 5 cafeteria as a shift supervisor in 1982. In September 1984, defendant David Spender was hired as manager of Cadillac 5. Plaintiff claims that Spender performed several acts and made several statements that constituted sexual harassment. Shortly before plaintiff left Canteen’s employ, she had a meeting with Bernard Palko, manager of food services, and Spender regarding her complaints where Spender claimed that, rather than harassing, he was only complimenting plaintiff in the things he had said. Plaintiff believed that the two men were only trying to appease her and that she was not going to get anywhere with her complaint. Spender told plaintiff after the meeting that she would be terminated, removed, or reprimanded, and that he was going to make sure she was transferred out of Cadillac 5. During plaintiff’s last week of employment, Palko told her that she was being transferred to the Cadillac Main account, which was located in a dangerous neighborhood in Detroit and was a farther distance from her home. She protested the transfer, which was obviously undesirable for her, as being made only because Spender could not be controlled. She turned down the transfer because of the way it was handled, it would cause her financial hardship, she did not have reliable transportation to drive the farther distance, she would not be getting extra income, and her feelings regarding her safety. Palko told her that if she did not transfer, she would be considered terminated. Plaintiff did not return to work for Canteen. In February 1986, plaintiff filed suit against defendants, alleging, among other things, breach of contract and sexual discrimination as a result of defendants’ failure to promote her, harassment, retaliation, and wrongful termination of her employment. These issues were thoroughly ventilated before the jury, and, after trial, the jury returned a verdict in plaintiff’s favor on both the breach of contract and sex discrimination claims. The trial court entered a judgment for $299,530, plus interest, costs, and attorney fees. Defendants filed motions for directed verdict, judgment notwithstanding the verdict, a new trial, and remittitur, which were denied. Defendants appeal. First, defendants claim the trial court erred in denying their motions for directed verdict or judgment notwithstanding the verdict because there was insufficient evidence to send the case to the jury or to support the verdicts for sexual discrimination and breach of contract. When deciding motions for directed verdict and judgment notwithstanding the verdict, the trial court must view the evidence in a light most favorable to the nonmoving party. Relief is required where insufficient evidence is presented to create an issue for the jury. Conversely, relief is not required where reasonable minds could differ on issues of fact. We will not disturb the trial court’s decision unless there has been a clear abuse of discretion. To establish a prima facie case of sex discrimination, the plaintiff must show membership in a class protected under the Civil Rights Act and that, for the same or similar conduct, the plaintiff was treated differently than a member of the opposite sex. If the defendant employer asserts legitimate, nondiscriminatory reasons for its actions, the plaintiff must then show that the reasons asserted were a mere pretext for discrimination. With regard to plaintiff’s claim of sexual discrimination regarding the failure to promote her to the Cadillac 5 manager position, for which she had requested consideration, defendants argue that plaintiff did not present sufficient evidence to support her claim because Spender was more qualified for the position than she was. However, plaintiff presented evidence that she had supervisory experience before coming to work for Canteen in 1982, she had filled in for the manager at another location on numerous occasions, she had managed both shifts of the Cadillac 5 cafeteria for a few weeks before Spender was hired, and she had generally fulfilled all the job duties of a manager at some point in time. Additionally, she was told by Palko to try to assist and guide a previous manager because she had more experience. Viewing this and the other evidence of discrimination in a light most favorable to plaintiff, a jury question was raised regarding whether plaintiff had shown, by a preponderance of the evidence, that she applied for an available position for which she was qualified but was rejected under circumstances giving rise to an inference of unlawful conduct and that sex discrimination played a significant role in the decision to deny plaintiff the promotion._ With regard to plaintiffs claim of sexual harassment, defendants argue that plaintiff did not present sufficient evidence to establish either quid pro quo sexual harassment or sexual harassment that results from a hostile or offensive work environment. However, the jury heard testimony that Spender would inquire into plaintiffs personal life, asking why she was divorced and how she could get a younger man like Michael Hobson, her live-in boyfriend who also worked on her shift at Cadillac 5; that Spender asked if plaintiff paid Hobson for his sexual favors, how she could keep up with a younger man, and why she was not more sociable with a man of Spender’s age; and that Spender also told plaintiff that if it were not for Hobson, he and plaintiff would be "closer” and they would have a better "working relationship.” Additionally, the jury heard testimony that Spender would open, read, and throw away plaintiffs mail, would go through her purse, and had grabbed a personal check out of her hand, and that he told plaintiff that women should not work out in public, that she was too aggressive, and that she was wasting her time because the company did not promote women to upper management positions, but rather would stick them in lower management positions just to keep various women’s groups happy. The jury also heard testimony that Spender told plaintiff she was not going to go anywhere unless she cooperated and that Spender was responsible for food shortage problems that occurred two or three times a week. This evidence, if accepted by the jury, was sufficient to show, at least, sexual harassment resulting from a hostile or offensive work environment. Regarding plaintiffs claim of sexual discrimination concerning retaliation, defendants argue that there was nothing of an actionable nature to retaliate against, that there was no evidence of retaliation, and that plaintiffs claim of retaliation based on her transfer to Cadillac Main was pure speculation. However, plaintiff testified that, after the meeting between Palko, Spender, and herself, Spender told her she would be terminated, removed, or reprimanded and that Spender would make sure plaintiff was moved out of his account. Soon afterward, plaintiff was told she must transfer to what was for her a much less desirable situation. Further, when plaintiff refused to transfer, Canteen hired a person "off the street” to fill the position, which tends to render quite unbelievable defendants’ claim that this was a promotion or growing experience for plaintiff. Viewing this evidence in a light most favorable to plaintiff, there was ample evidence for the jury to reasonably find that the elements of plaintiffs retaliation claim were proved. With regard to plaintiffs claim of sexual discrimination concerning her discharge, there was sufficient evidence to support the jury’s findings. Plaintiff was terminated immediately after she refused the transfer to Cadillac Main. She presented evidence that, in the context of this case, working conditions there were so difficult or unpleasant that a reasonable person in her shoes would have felt compelled to resign and that such action was a reasonably foreseeable consequence of Canteen’s conduct. As indicated, there was evidence that plaintiffs employment situation had been made intolerable by discrimination and sexual harassment and that her employment situation was further aggravated by a transfer to an undesirable location. Defendants also argue that there was insufficient evidence to support plaintiffs claim of breach of contract. However, plaintiff testified that Palko had told plaintiff that as long as she was familiar with the company’s policies, followed those policies, and did her job well, she would have a future with Canteen. Such verbal statements can give rise to a contract that an employee will be discharged only for just cause. In addition, Palko testified that it was Canteen’s policy not to terminate employees without a fair reason or just cause. Thus, plaintiff presented sufficient evidence to support her claim for breach of contract. Viewing all the evidence in a light most favorable to plaintiff, we do not find that the trial court abused its discretion in denying defendants’ motions for directed verdict and judgment notwithstanding the verdict. Second, defendants claim that the evidence was insufficient to support the $200,000 damage award for mental anguish, emotional distress, and humiliation with regard to the discrimination count, and they contend that the trial court erred in denying their motion for remittitur. Victims of discrimination may recover for the humiliation, embarrassment, disappointment, and other forms of mental anguish resulting from the discrimination, and medical testimony substantiating the claim is not required. When a verdict is within the range of the evidence produced at trial, it should not be reversed as excessive. With regard to remittitur, the only consideration expressly authorized by the remittitur court rule, MCR 2.611(E)(1), is whether the award is supported by the evidence. However, other objective factors such as whether the verdict was induced by bias or prejudice relating to the actual conduct of the trial or to the evidence adduced may be considered. The testimony indicated that defendants’ actions left plaintiff sad and depressed and that she is still dealing with her problems today. She is behind in paying her bills and suffers from a medical problem that she believes stems from her work situation. The evidence to support these results is found in the harassment and discrimination inflicted upon her for a lengthy period of time, despite her complaints to Palko. Under these circumstances, we do not believe the award was excessive, nor do we believe, giving deference to the trial court that personally observed the witnesses and heard the testimony, that the trial court abused its discretion in denying defendants’ motion for remittitur. Third, defendants claim that the trial court abused its discretion in denying their motion for a new trial because of numerous errors or irregularities in the trial proceedings. We have reviewed each of defendants’ alleged errors and do not find that the trial court abused its discretion so as to justify a new trial. Fourth, defendants claim that the trial court erred in its award of attorney fees. They contend that the attorney fees requested and granted were unreasonable, that the use of a multiplier for the fees granted under the Civil Rights Act was not justified, and that an additional award of attorney fees as a mediation sanction constituted double-dipping. The "American Rule” provides that each party in a lawsuit ordinarily bears its own attorney fees unless there is express statutory authorization to the contrary. MCL 37.2802; MSA 3.548(802) provides the authority to award reasonable attorney fees in state civil rights cases. The decision to grant or deny attorney fees under the Civil Rights Act is discretionary with the trial court. Where attorney fees are to be awarded, the court must determine the reasonable amount of fees according to the nonexclusive list of factors and guidelines set forth in Wood v DAIIE. While the court is not required to detail its findings regarding each specific factor, it is required to make findings of fact with regard to the attorney fee issue. The most useful starting point for determining the amount of a reasonable attorney fee is the number of hours reasonably expended on the case multiplied by a reasonable hourly rate. The party seeking the fee bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates. In plaintiffs brief in support of her motion for attorney fees submitted to the trial court, plaintiffs attorney claims that she does not keep contemporaneous time records. She stated: It may be noted that Plaintiffs firm does not ordinarily keep contemporaneous billing records, as we are strictly a plaintiffs law firm and rarely bill clients. While such records are not required to be kept, in demanding a large sum of attorney fees the lack of contemporaneous time records leaves room for doubt regarding the reasonableness of the hours expended. Where the opposing party challenges the reasonableness of the requested fee, the trial court should hold an evidentiary hearing regarding the issue. If any of the underlying facts, such as the number of hours spent in preparation, are in dispute, the trial court should make findings of fact regarding the disputed issues. In this case, no evidentiary hearing was held regarding the reasonableness of the attorney fee. Rather, plaintiffs counsel submitted affidavits and other documentary evidence in support of her requested fees, and oral arguments were heard. The trial court, in ruling on the issue, stated: [T]he Court is satisfied that both

RYMAR v MICHIGAN BELL TELEPHONE COMPANY Docket No. 120278. Submitted February 21, 1991, at Detroit. Decided August 5, 1991, at 9:25 a.m. Leave to appeal sought. Patricia Rymar brought an action in the Wayne Circuit Court against Michigan Bell Telephone Company, her former employer, alleging that Bell, in terminating her employment because of an emotional disorder, violated the Handicappers’ Civil Rights Act, MCL 37.1101 et aeq.; MSA 3.550(101) et aeq. The court, John H. Gillis, Jr., J., denied summary disposition for Bell, which had argued that the plaintiff’s disorder was not a handicap under the act because it was related to her ability to perform her job. Bell appealed by leave granted. The Court of Appeals held: The trial court did not err in denying the motion for summary disposition. 1. A person with a temporary disability that can be remedied within a reasonable time so as to enable that person to perform the duties of a particular job has a handicap for purposes of the Handicappers’ Civil Rights Act, which prohibits employment discrimination on the basis of an employee’s handicap. 2. In this case, there remains a question whether, within a reasonable time, the plaintiff’s disorder would cease to adversely affect her capacity to perform her job. Affirmed. Reilly, P.J., dissenting, stated that this case is indistinguishable from Ashworth v Jefferson Screw Products, Inc, 176 Mich App 737 (1989), where it was held that the Handicappers’ Civil Rights Act covers only those whose disabilities are unrelated to their abilities to perform their jobs. She would reverse the trial court’s denial of summary disposition. Civil Rights — Handicappers’ Civil Rights Act — Temporary Disabilities — Employment Discrimination. A person who is unable to perform the duties of a particular position because of a temporary disability that can be remedied ■within a reasonable time so as to enable that person to perform those duties has a handicap for which that person may seek the protections against employment discrimination provided by the Handicappers’ Civil Rights Act (MCL 37.1101 et seq.; MSA 3.550[101] et seq.). References Am Jur 2d, Job Discrimination §§ 124,125. See the Index to Annotations under Disablied Persons; Emotioned Injury. Dib & Fagan, P.C. (by Barry S. Fagan), for the plaintiff. Albert Calille and Laura Demetry White, for the defendant. Before: Reilly, P.J., and Shepherd and Marilyn Kelly, JJ. Marilyn Kelly, J. This is an employment discrimination claim filed under the Michigan Handicappers’ Civil Rights Act (mhcra). MCL 37.1101 et seq.; MSA 3.550(101) et seq. The trial court denied defendant’s motion for summary disposition. MCR 2.116(C)(8). Defendant appeals the decision by leave granted. We affirm. On March 8, 1988, plaintiff took a two-month leave of absence to care for her terminally ill mother. Her mother died on March 20. Plaintiff then sought and defendant granted her a medical leave which extended through May 31, 1988. Plaintiff was unable to return to work on May 31 and requested an extension. Defendant informed her that she must return by July 1, 1988, or it could not guarantee reemployment. Plaintiff was again unable to work. She submitted a letter from her physician stating, however, that she would be able to return on August 1 at the earliest. Defendant terminated plaintiff’s employment on June 30,1988. On August 8, 1988, plaintiff filed a claim for workers’ compensation. She listed her disability as an ongoing emotional disorder. On August 28, she filed this employment discrimination suit. She later withdrew her claim for workers’ compensation. On appeal, defendant argues that the trial court erred in denying its motion for summary disposition. Defendant maintains that there is no question that, on the date of termination, plaintiff’s disability was related to her ability to perform her job. Therefore, her disability was not a "handicap” under the mhcra. Carr v General Motors Corp, 425 Mich 313; 389 NW2d 686 (1986). Alternatively, defendant claims that at the time of termination plaintiff was not in a "mentally ill restored” condition. Thus, she did not fall within the disability categories described in the mhcra. The mhcra covers only those whose disabilities are unrelated to their capacity to perform their jobs. The handicapped person seeking employment must be capable of performing the duties of the position. A disability that is related to one’s ability to perform the duties of a particular position is not a "handicap” within the meaning of the act. Carr, 315-316, 321-322. There is no question that, on the date of termination, plaintiff was unable to perform her job because of her disability. Michigan case law has consistently used the date of termination as the relevant point to assess the status of a disability. Ashworth v Jefferson Screw Products, Inc, 176 Mich App 737; 440 NW2d 101 (1989); Bowerman v Malloy Lithographing, Inc, 171 Mich App 110, 116; 430 NW2d 742 (1988); Doman v Grosse Pointe Farms, 170 Mich App 536, 542; 428 NW2d 708 (1988); Wilson v Acacia Park, 162 Mich App 638, 643-644; 413 NW2d 79 (1987). However, we are not persuaded that the date of termination is the obligatory focal point in every case. We agree with Judge Shepherd’s reasoning in his dissent in Ashworth. A mandatory fixation on the date of termination ignores the factor of time. Ashworth, 746. That factor was not relevant in the Carr case, where the plaintiff was permanently, not temporarily, disabled. Moreover, it is notable that the Supreme Court in Carr quotes the following segment from the 1976 Journal of the Senate 590: [TJf a handicapped person seeking employment meets the qualifications of the job and can attain the performance levels required within a reasonable time, he must, by law be given the same opportunity as other applicants to secure the position. [Carr, 319. Emphasis added.] A representation was made in this case that defendant denied plaintiff the same leave time as other employees. An employer must give its employee a reasonable time to heal, under like conditions as other employees, so long as the delay does not impede getting the employer’s work done. Ashworth, 747-749. In this case, on the date of termination, plaintiff’s disability was related to her ability to do her job. Her condition was not "mentally ill restored.” However, there remains unanswered a question whether, within a reasonable time, her disability would cease to adversely affect her capacity to do the work, putting her in a restored condition. Plaintiff’s mhcra claim is not so clearly unenforceable as a matter of law that no factual development could justify a right of recovery. Scameheorn v Bucks, 167 Mich App 302, 306; 421 NW2d 918 (1988). The trial court did not err in denying the motion for summary disposition as to the handicappers’ civil rights claim. Affirmed. Shepherd, J., concurred. Reilly, P.J. (dissenting). The facts of this case are not distinguishable from the facts in Ashworth v Jefferson Screw Products, Inc, 176 Mich App 737; 440 NW2d 101 (1989). I concur with the majority opinion in that case, and would reverse in this case.

DUMAS v AUTO CLUB INSURANCE ASSOCIATION Docket No. 83982. Argued October 2, 1990 (Calendar No. 2). Decided July 31, 1991. Dissenting opinion by Levin, J., filed August 2, 1991. Rehearing denied 438 Mich 1202. Richard Dumas and approximately 180 other current and past members of the insurance sales staff of the Auto Club Insurance Association brought an action .in the Wayne Circuit Court, alleging breach of contract, violations of civil rights, fraud and misrepresentation, unjust enrichment, and promissory estoppel as a result of a change by the employer of a compensation plan. The court, John H. Hausner, J., for purposes of clarity, divided the plaintiffs into three groups: Group A was comprised of those plaintiffs who claimed that at the time of hiring they were informed by the defendant of a seven percent commission system, but not that they were informed that the system would remain in place for a particular duration; Group b was comprised of plaintiffs who claimed that before or at the time of hiring they were told that the system would remain in place as long as they were employed or forever or words to that effect; Group c was comprised of plaintiffs who claimed that they began employment with the same understanding claimed by the plaintiffs in Group a, but later were told that the system would last as long as they were employed or forever or words to that effect. The court then granted summary disposition for the defendant. The Court of Appeals, Doctoroff, P.J., and Cynar and P. D. Hour, JJ., reversed in an opinion per curiam with regard to the claims for breach of contract and unjust enrichment (Docket No. 96212). The defendant appeals. In an opinion by Justice Riley, joined by Justices Bricrley and Griffin, and opinions by Chief Justice Cavanagh and Justice Boyle, the Supreme Court held: The plaintiffs may not maintain actions against the defendant for breach of contract or unjust enrichment. No express promises of permanent employment were made to the plaintiffs in Group a. Promises claimed by the plaintiffs in Group c to have been made subsequent to the time of hiring lacked objective support. The defendant was not unjustly benefited by virtue of changing its compensation plan: with regard to Groups a and c, the action was within the realm of defendant’s managerial powers; with regard to Group b, the claim lacked record support. Justice Riley, joined by Justices Brickley and Griffin, further stated that no express promises of permanency were made to the plaintiffs in Group a; thus, any contractual rights to that effect must result from the legitimate-expectations leg of the holding in Toussaint v BCBSM, 408 Mich 579 (1980). However, Toussaint involved a claim of wrongful discharge, and, given the traditional reluctance of courts to interfere with management decisions and the needed flexibility of businesses to alter policies to respond to changing economic conditions, its holding should not be extended to cases involving permanent compensation plans. Any promises claimed by the plaintiffs in Group b to have been made at the time of hiring that they would receive seven percent renewal commissions forever were unenforceable under the statute of frauds as not capable of being performed within one year. These provisions were severable from the remainder of the employment contracts. Justice Boyle, concurring, stated that the plaintiffs’ proofs are insufficient to support an inference of a contract providing termination only for just cause or an enforceable promise not to change the payment plan; nor was any evidence presented that the employer’s statements, interpreted in the light of trade usage or course of performance, would permit the conclusion that the factfinder could draw an inference of a durational term for the method of compensation. Chief Justice Cavanagh, concurring in the result, stated that the plaintiffs’ claims clearly rest solely on a theory of express oral contract, not a legitimate-expectations theory arising from the defendant’s policy manuals. With respect to the plaintiffs in Group a, there is no basis for the express oral contract theory. With regard to all plaintiffs, the evidence presented indicates that summary disposition for the defendant was properly granted. Reversed. Justice Levin, dissenting, stated that this is not an action for wrongful discharge, but rather an ordinary action for breach of contract for failure to pay agreed-upon compensation for services rendered and to be rendered. The plaintiffs rely solely on claims of express promise, not on implied promises arising out of legitimate expectations. Nor does the question presented concern the scope of Toussaint. The central issue, whether the plaintiffs may maintain actions for breach of an express contract, turns on whether there is sufficient evidence to justify a finding by the trier of fact that a reasonable person in the position of the plaintiffs would conclude that the defendant intended to pay a seven percent commission on renewals written while, and for as long as, they remained in the employ of the defendant. The test is objective, focusing on the understanding of a reasonable person in the plaintiffs’ position. The subjective intent of the defendant is not relevant except insofar as such a reasonable person would have been, or possibly should have been, aware of the defendant’s intent. The majority incorrectly describes the testimony of forty of the plaintiffs, who recalled being told or informed of a durational term for the promise to pay a seven percent commission on policy renewals, as a vague and precatory promise that the commission system would last forever. However, an evenhanded summary of the affidavit on which the majority’s description is based would recognize that perhaps only one, or only a handful, of those plaintiffs may have used the word "forever” to describe the durational term. The affidavit cannot properly supply the basis for this portrayal of the plaintiffs’ deposition testimony. The majority incorrectly assumes that the defendant’s promise to pay a seven percent commission on new sales and policy renewals did not, as a matter of law, express a durational term. Contrary to the majority’s assumption, the words "policy renewals” may be interpreted and understood by the plaintiffs as implicitly stating a durational term, namely, for as long as the defendant and the customer choose to renew a policy. Because the trier of fact appropriately could find that the plaintiffs reasonably might so interpret the promise, it is not, and should not be, determinative whether the plaintiffs recall being told that renewal commissions would be paid on policy renewals "for as long as they were employed” by the defendant, or "forever,” or “always.” The trier of fact reasonably could find that the promise, so interpreted, states a durational term. It appears that the plaintiffs would be able to establish at a trial with other evidence that the promise to pay renewal commissions was for renewals written while, and for as long as, the plaintiffs remained in the employ of the defendant. The duration of the contract, therefore, is determinable and sufficiently definite, although it is uncertain how long the defendant would offer to renew, the customer would choose to renew, and the plaintiffs would remain in the employ of the defendant. Justice Mallett took no part in the decision of this case. 168 Mich App 619; 425 NW2d 480 (1988) reversed. Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick (by Richard E. Shaw and Sheldon L. Miller) for the plaintiffs. Fox & Grove, Chartered (by Kalvin M. Grove, Steven L. Gillman, and Allison C. Blakley) and Finkel, Whiteñeld & Selik (by Robert J. Finkel) for the defendant. Amici Curiae: Conboy, Fell, Stack, Lieder & Hanson (by Lloyd C. Fell) for General Motors Corporation. Clark, Klein & Beaumont (by Dwight H Vincent, J. Walker Henry, and Rachelle G. Silberberg) for Michigan Manufacturers Association. Miller, Canñeld, Paddock & Stone (by Diane M. Soubly) for American Society of Employers, Motor Vehicle Manufacturers Association of the United States, Inc., Greater Detroit Chamber of Commerce, and Michigan State Chamber of Commerce. Mark Granzotto, Monica Farris Linkner, and Charles P. Burbach for Michigan Trial Lawyers Association. Riley, J. Two questions are presented in this appeal. First, whether plaintiffs have actions for breach of contract on the basis that they were informed of a particular compensation system upon entering defendant’s work force, and the system was subsequently changed. A subissue is whether those plaintiffs who were promised the policy would remain in force "forever” have actions for breach of contract. The second question is whether plaintiffs can maintain claims for unjust enrichment against defendant. We hold that the Court of Appeals improperly determined that plaintiffs could maintain actions against defendant for breach of contract and unjust enrichment. Therefore, we reverse the decision of the Court of Appeals. I. FACTS AND PROCEEDINGS In the instant case, approximately 180 plaintiffs are suing the Auto Club Insurance Association. Plaintiffs are current and past members of defendant’s insurance sales force. Upon commencing employment, all plaintiffs were informed that they would be paid under the "Accrued Commission Plan.” Under the commission plan, they would receive seven percent commissions on insurance policies sold and upon policy renewals. The commission amounts were tied to policy premiums. Also, for the first year of employment, new salespersons received a base salary to supplant renewal commissions which were unavailable during the first year. All sales employees were on the same compensation system with regard to the seven percent commissions. Early in 1977, defendant realized a substantial drop in its cash reserves and decided to address the problem. In the wake of analyses by defendant’s outside accounting firm, defendant concluded that the payment system for the commissioned sales force was a major contributor to its cash reserve problem. On December 2, 1977, defendant notified its sales force in writing of its intent to change the compensation plan. Instead of commissions based on a percentage of the premiums, salespersons would be paid a flat rate for each policy sold. Though the new plan was implemented by January 1, 1978, during the period from January to July, defendant adjusted compensation so that no employees would experience a reduction in income unless their volume of business fell. The new "unit commission plan” became fully effective July 1, 1978. On February 8, 1978, a union was certified to represent defendant’s sales force. The union filed a complaint with the National Labor Relations Board in May of 1978, alleging unfair labor practices by defendant in unilaterally changing the commission system and refusing to bargain with the union. In August, 1979, the board ruled in favor of defendant, finding that the plan was instituted before the union was certified. On May 26, 1983, plaintiffs filed a complaint in the Wayne Circuit Court, alleging breach of contract, violations of the Civil Rights Act, fraud and misrepresentation, unjust enrichment, and promissory estoppel. On January 10, 1984, pursuant to a motion for summary disposition filed by defendant in July of 1983, the circuit court dismissed claims based on new policies, or renewals based on those policies, purchased after the date of the change in payment plans. On January 18, 1984, plaintiffs filed a motion for rehearing which was denied on February 29, 1984. Subsequently, plaintiffs’ application for interlocutory appeal was denied by the Court of Appeals. On August 19, 1986, the trial court ruled on motions for partial summary disposition filed by defendant and plaintiffs respectively. For the purpose of clarity, the court divided plaintiffs into three groups: Group a consisted ,of 139 plaintiffs who were informed of the. seven percent commission system upon being hired. This group was not promised that the payment system would be in place for any particular duration. Group b consisted of twenty plaintiffs who were told by defendant prior to or at the time of hiring that the seven percent commission plan would last "forever.” Group c consisted of twenty plaintiffs. Group c began employment with the same understanding as Group a, but after they began work they were told by defendant that the seven percent plan would last "forever.” With regard to Group a, the court determined that no claim for breach of contract existed and granted summary disposition for defendant. The court reasoned that defendant did not foreclose its right to change its compensation plan. With regard to Group b, the trial court decided a factual issue existed regarding whether the word "forever” created an enforceable promise not to change the payment plan. However, the court dismissed the claims on the basis of the statute of frauds. With regard to Group c, the court granted summary disposition for defendant because the oral promise subsequent to hiring lacked consideration. The court also dismissed plaintiffs’ claims of fraud, misrepresentation, promissory estoppel, age discrimination, and unjust enrichment. On October 3, 1986, the trial court entered the final order regarding summary disposition. Plaintiffs appealed, and the Court of Appeals reversed the trial court’s grant of summary disposition regarding the breach of contract and unjust enrichment claims. Dumas v Auto Club Ins Ass’n, 168 Mich App 619; 425 NW2d 480 (1988). Defendant appealed, and this Court held Dumas in abeyance pending decisions in In re Certified Question, Bankey v Storer Broadcasting Co, 432 Mich 438; 443 NW2d 112 (1989), and Bullock v Automobile Club of Michigan, 432 Mich 472; 444 NW2d 114 (1989). On May 4, 1990, subsequent to the issuance of opinions in those cases, this Court granted leave to appeal. 434 Mich 911 (1990). ii The first question to be addressed is whether plaintiffs can maintain claims for breach of contract where defendant unilaterally altered the terms upon which plaintiffs were compensated. Plaintiffs do not challenge the new system with regard to new policies purchased after the date of the change. Plaintiffs only challenge the system as it applies to renewals of old policies purchased before the change in compensation plan. A. GROUP A Group a was informed of the seven percent commission at the time of hiring, but defendant made no explicit promises to plaintiffs regarding the duration of the policy. In framing the breach of contract action with regard to Group A, it is important to note that because no express promises of permanency were made to plaintiffs, any contractual rights to that effect had to spring from the "legitimate expectations” leg of Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 598; 292 NW2d 880 (1980). Thus, the threshold inquiry for Group a should be whether to extend the "legitimate expectations” leg of Toussaint beyond wrongful discharge disputes to cover an employer’s compensation policy. We choose not to extend the "legitimate expectations” cause of action to this case. In Toussaint, this Court held that a company’s written policy statements providing for dismissal for just cause may create contractual obligations if the statements give rise in the employee to legitimate expectations of dismissal for just cause. In Toussaint, this Court found that the plaintiff’s wrongful discharge claim based on written policy statements and express oral statements could be submitted to a jury. While Toussaint created a "legitimate expectations” claim in the wrongful-discharge setting, earlier cases held that written policy statements could give rise to contractual obligations outside the discharge context. Although some of the cases dealt with compensation policies, those policies created contract rights with regard to deferred compensation. As Justice Ryan stated in his dissent in Toussaint, supra, p 648:_ In each of the cases cited, policy statements by the employer announced the existence of bonus, profit-sharing or pension benefits and the employer or the claimant-employee satisfied the burden of proof that work already performed was in consideration of the announced beneñt and that what was sought was merely deferred compensation. [Emphasis added.] In other words, a change in a compensation policy which affects vested rights already accrued may give rise to a cause of action in contract. In re Certiñed Question, supra, p 457, n 17. However, in the instant case, there were no representations made to plaintiffs with regard to deferred compensation. The right to renewal commissions depends on the contract between the agent and insurance company. Stevenson v Brotherhoods Mutual Benefit, 317 Mich 575, 580; 27 NW2d 104 (1947). Unless otherwise provided by contract, renewal commissions or future commissions do not rest upon the sale of the original policy. Renewal contracts are separate from the originals, in part requiring additional effort and consideration by salespersons in keeping policies alive. Id. at 581. In the instant case, plaintiffs do not contend that their contracts provided for the vesting of renewal commissions upon the sale of original policies. In fact, each of the cases cited in n 5 operate under traditional contract principles. For instance, in Cain v Allen Electric & Equipment Co, 346 Mich 568, 579-580; 78 NW2d 296 (1956), the Court stated: In short, the adoption of the described policies by the company constituted an offer of a contract. This offer . . . "the plaintiff accepted ... by continuing in its employment beyond the 5-year period specified in exhibit b . . . .” While the deferred compensation cases are subject to contract law, the "legitimate expectations” doctrine of Toussaint does not follow traditional contract analysis. Therefore, it does not logically follow that Toussaint should be extended to the area of compensation. Also, since employees’ accrued benefits are protected by the presence of traditional contract remedies, there is no need to extend the expectations rationale to compensation. In addition to the lack of precedent extending Toussaint to facts similar to those presented here, policy considerations weigh in favor of containing Toussaint to the wrongful-discharge scenario. Were we to extend the legitimate-expectations claim to every area governed by company policy, then each time a policy change took place contract rights would be called into question. The fear of courting litigation would result in a substantial impairment of a company’s operations and its ability to formulate policy. Justice Griffin’s majority opinion in In re Certified Question, supra, p 456, discussed the nature of a business policy: In other words, a "policy” is commonly understood to be a flexible framework for operational guidance, not a perpetually binding contractual obligation. In the modern economic climate, the operating policies of a business enterprise must be adaptable and responsive to change. Our opinion in In re Certified Question was in furtherance of this Court’s traditional reluctance to limit or second guess the decision-making ability of business management. As stated in In re Butterfield Estate, 418 Mich 241, 255; 341 NW2d 453 (1983), "[a] court should be most reluctant to interfere with the business judgment and discretion of directors in the conduct of corporate affairs.” Much the same conclusion was reached by Justice Griffin in Bullock v Automobile Club of Michigan, supra, pp 521-522: Even if it can be said that policy considerations were sufficient to justify the Toussaint intervention to protect job security, it is difficult to imagine the scope of difficulties and mischief that would be encountered if Toussaint were to be extended beyond wrongful discharge into every facet of the employment relationship. Particularly

Northeast Metropolitan Regional Vocational School District School Committee vs. Massachusetts Commission Against Discrimination. No. 90-P-19. Suffolk. March 11, 1991. July 18, 1991. Present: Warner, C.J., Jacobs, & Porada, JJ. Anti-Discrimination Law, Sex, Prima facie case, Burden of proof, Damages. Massachusetts Commission Against Discrimination. Employment, Discrimination. Damages, Under anti-discrimination law. Evidence, Administrative proceeding. At a hearing before a single commissioner of the Massachusetts Commission Against Discrimination, the commissioner properly admitted evidence of bias and unlawful motive contained in statements of two members of a regional district school committee, and the commission properly relied on that evidence in concluding that the complainant had established a prima facie case of employment discrimination by the school committee. [86-88] The Massachusetts Commission Against Discrimination concluded, on the basis of substantial evidence, that the complainant had proved by a preponderance of the evidence that the reasons advanced by a school committee for failing to select her as superintendent were mere pretexts for an unlawful, discriminatory decision on the basis of the complainant’s gender. [89-90] In a gender discrimination case, the Massachusetts Commission Against Discrimination’s award of damages was based on substantial evidence. [90] Civil action commenced in the Superior Court Department on September 22, 1988. The case was heard by J. Harold Flannery, J. Eugenia M. Guastaferri for the defendant. David A. Guberman (Nereyda Garcia with him) for the plaintiff. Porada, J. When -the Northeast Metropolitan Regional Vocational School District School Committee (committee) failed to select Charlotte Scott on August 21, 1980, for the position of superintendent-director, she filed a complaint with the Massachusetts Commission Against Discrimination (commission) alleging that the committee had discriminated against her in its selection process because of her sex, in violation of G. L. c. 151B, § 4(1). After a hearing, a single commissioner determined that the complainant had established a prima facie case of sex discrimination against the committee and that the committee had not articulated a legitimate nondiscriminatory reason for its failure to appoint her. The presumption of discrimination raised by the complainant’s prima facie case was, therefore, left unrebutted. The single commissioner ordered the committee to cease and desist from discriminating against its employees and potential employees on the basis of sex and awarded back pay damages to the complainant of $48,507, together with interest. The committee filed an appeal with the commission. The commission affirmed the single commissioner’s decision. In doing so, the commission held that it was questionable whether the committee had met its burden of producing credible evidence that the reason or reasons advanced for failing to select the complainant for the position were the real reasons and that, even if the committee met its burden, the complainant produced ample evidence to show that the articulated reasons were mere pretexts for a discriminatory decision. On the committee’s appeal to the Superior Court, the judge ruled that these conclusions of the commission and its award of damages were not supported by substantial evidence. The judge vacated the commission’s decision and remanded the case to the commission for further proceedings to determine if the reasons advanced by the committee for its failure to appoint the complainant were mere pretexts for discriminatory action and, if so, to recalculate the award of damages based on additional evidence of the complainant’s actual salary in her new position as superintendent of the Montachusett Regional Vocational Technical School. On appeal, the commission argues that the judge erred in his ruling that the commission’s findings as to sex discrimination and damages were not supported by substantial evidence. We vacate the order of the judge in the Superior Court and affirm the commission’s decision for the reasons given. To establish a case of gender discrimination where an employee claims that the stated reason for an employer’s decision is a mere pretext for its real .reason, a three-step process is usually required. Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 138-139 (1976). Smith College v. Massachusetts Commn. Against Discrimination, 376 Mass. 221, 229-230 (1978). McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973). The plaintiff must prove by a fair preponderance of the evidence a prima facie case of sex discrimination. If she succeeds, then the defendant has the burden of producing evidence that the plaintiff was rejected or someone else selected for a legitimate, nondiscriminatory reason. If the defendant meets its burden of production, then the plaintiff must prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons but were pretexts for discrimination. Trustees of Forbes Library v. Labor Relations Commn., 384 Mass. 559, 566 (1981). Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-253 (1981). In.this case, there is no question that the complainant, under the first step, established a prima facie case of gender discrimination by substantial evidence. She introduced evidence credited by the commission that she applied for the position of superintendent-director, that she was qualified for the position, and that she was rejected under circumstances which gave rise to an inference of unlawful discrimination. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 253. Those circumstances were statements made during the selection process by the chairperson of the search-subcommittee, Pacino, that “we don’t want a woman in that position [superintendent-director],” and by another committee member, Connolly, “I don’t know why you even applied. What we need is a big, strong man with a big, strong voice who can come to the committee and fight.” Those circumstances also included statements by two other committee members, Holland and Barry, to the complainant after the selection process that she had been the object of discrimination because of her sex. The committee argues, however, that this evidence should not have been admitted by the single commissioner and that, without it, the complainant has not established a prima facie case by substantial evidence. The single commissioner did not err in admitting that evidence. The committee’s challenge to the evidence was based on grounds that it constituted a violation of the paroi evidence rule, was hearsay, and was unreliable. The committee’s reliance on the paroi evidence rule is misplaced. This evidence was not introduced to vary the record of the committee’s action, see Carbone, Inc. v. Kelly, 289 Mass. 602, 605 (1935), but to prove bias and an unlawful motive of the school committee members and, as such, was admissible. See Shoppers’ World, Inc. v. Board of Assessors of Framingham, 348 Mass. 366, 371-372 (1965). Nor was it objectionable on hearsay grounds. These statements could properly be considered as admissions of a party opponent under the then prevailing practice in Massachusetts courts. See Mailhiot v. Liberty Bank & Trust Co., 24 Mass. App. Ct. 525, 529-530 n.5 (1987). These statements were all made by committee members relative to a decision within the scope of their authority and to which they were privy. In addition, Pacino was both the chairperson of the search sub-committee and chairperson of the committee when he made his statement and Holland was the chairperson of the committee, Pacino’s successor, when she made her statement. See also Ruszcyk v. Secretary of Pub. Safety, 401 Mass. 418, 422-423 (1988). Fed.R.Evid. 801(d)(2)(D). There is also no merit to the committee’s argument that the evidence was unreliable. That argument was directed to Barry’s deposition testimony containing Pacino’s statement. Where there is conflicting evidence, the court must defer to the fact finding function of the single commissioner. Wheelock v. Massachusetts Commn. Against Discrimination, 371 Mass, at 132-133. Her reasons for crediting this testimony were more than adequate. Even had any of those statements been inadmissible'under the rules of evidence, they were properly admitted and considered by the commission. The commission is not bound by strict rules of evidence. G. L. c. 151B, § 5. G. L. c. 30A, § 11(2). Its regulations provide that the “Commission shall not be bound by the rules of evidence observed by courts except for the rules of privilege ... So far as practicable, however the Commission shall follow the rules of evidence then prevailing in the courts of the Commonwealth.” 804 Code Mass. Regs. § 1.15 (14) (1986). This regulation does not deprive a hearing commissioner of her discretion in admitting evidence and crediting it, even if it would be inadmissible under the rules of evidence, if it bears indicia of reliability. See College-Town, Division of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. 156, 169 (1987). Embers of Salisbury, Inc. v. Alcoholic Beverages Control Commn., 401 Mass. 526, 530 (1988). The commission properly relied on this evidence in concluding that a prima facie case had been established. We do agree with the judge of the Superior Court that the commission erred in concluding that the committee failed to meet its burden, in the second step of the process, of producing evidence that the complainant was rejected for a nondiscriminatory reason. Trustee of Forbes Library v. Labor Relations Commn., 384 Mass. 559, 566 (1981). The committee did introduce evidence that the successful applicant’s experience was superior to that of the complainant in that he was then serving as an acting superintendent of a vocational high school, and his work experience in a vocational high school setting was broader than the complainant’s, which was limited to the administration of health occupation programs. The employer need not persuade the trier of fact, under the second step, that it was correct in its belief or was motivated solely by the proffered reason. Ibid. It is sufficient if the defendant presents evidence which articulates a “legitimate nondiscriminatory reason” for its action, which we conclude it did. Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass, at 136-137. Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 766 (1986). The commission concluded, however, that even if the committee had met its burden of articulating a legitimate nondiscriminatory reason, the plaintiff, under the third step, had proved by a preponderance of the evidence that the reason or reasons advanced were mere pretexts for a discriminatory decision. This finding was rejected by the judge because he found it was not based on substantial evidence. We disagree. General Laws c. 30A,.§ 1(6) (1988 ed.), defines “substantial evidence” as “such evidence as a reasonable mind might accept as adequate to support a conclusion.” While it is true that the committee was comprised of twelve members and there was direct evidence of sexual bias exhibited by only two of its members, this is not fatal to the complainant’s case. Southern Worcester County Reg. Vocational Sch. Dist. v. Labor Relations Commn., 386 Mass. 414, 421 (1982). The complainant can establish proof of gender discrimination by direct or circumstantial evidence or both. Ibid. Here, the statements made by the two members of the committee were couched in terms of “we do not want a woman in that positian” and “what we need is a big strong man who can come to the committee and fight.” When this evidence is considered along with statements made by the chairperson of the committee and another committee member that the complainant was the victim of discrimination based on her sex in the selection process and evidence of her qualifications, including the testimony of another committee person that the complainant was the best qualified person for the job, we conclude that the commission’s determination that the reasons advanced for the complainant’s rejection were mere pretexts is based on evidence that a reasonable person might accept as adequate to support these conclusions. We also conclude that the commission’s award of damages was based on substantial evidence. The judge in the Superior Court determined that the complainant had failed to prove her damages because she did not prove what her salary would have been if appointed superintendent by the committee and what her salary was in her new job as superintendent of the Montachusett school after her first year of employment. The burden rested with the committee, rather than the complainant, to prove the complainant’s interim earnings at the Montachusett school in mitigation of damages. J.C. Hillary’s v. Massachusetts Commn. Against Discrimination, 27 Mass. App. Ct. 204, 206, 209-210 (1989). In addition, there was evidence of the new superintendent’s salary at the Northeast school from September, 1980, until the hearing date; the complainant’s salary at Northeast in September, 1980; the complainant’s initial salary at Montachusett in 1981; and the complainant’s qualifications. This evidence was adequate to justify the commission’s award of back damages of $48,507. The judgment of the Superior Court is reversed, and a judgment shall be entered affirming the commission’s decision. So ordered. In Price Waterhouse v. Hopkins, 490 U.S. 228, 244-247 (1989), which was decided after the trial judge entered his findings and original order in this case, the Supreme Court held that where there is evidence of both a legitimate and an illegitimate motive for an employer’s decision, the employer bears not only the burden of production of a legitimate motive for its decision but also the burden of proof by a preponderance of the evidence that it would have made the same decision based solely on the legitimate motive. See the discussion of the evolution of the methods of allocating evidentiary burden in discrimination cases set forth in Johnson v. NCR Comten, Inc., 30 Mass. App. Ct. 294, 296-301 (1991). We need not address whether the principles enumerated in the Price Waterhouse decision are applicable here, because this case was tried as a pretext case and our decision upholds the commission’s finding that the committee’s reasons for its decision were pretexts for discrimination. See Price v. Waterhouse, 490 U.S. at 247, n. 12.

McDONALD v STROH BREWERY COMPANY Docket Nos. 107001, 107004, 107005, 107008, 107011. Submitted January 8, 1991, at Detroit. Decided July 10, 1991; approved for publication October 22, 1991, at 9:00 a.m. Leave to appeal sought. John E. McDonald and others brought actions in the Wayne Circuit Court against Stroh Brewery Company, alleging wrongful discharge and employment discrimination based upon age, gender, or national origin. The parties agreed that a single action brought by John Martin would be tried before a jury and that a decision in that case regarding the defendant’s liability would be binding in the other suits. The defendant stipulated that Martin had an implied contract to be dismissed for just cause only; therefore the central issue was whether Martin’s discharge was based upon economic considerations. The court, Robert J. Colombo, Jr., J., entered judgment on a jury verdict of no cause of action. In accordance with the pretrial stipulation, Judge Colombo then entered judgments of no cause of action in all of the cases. The appeals were consolidated. The Court of Appeals held: 1. The trial court did not abuse its discretion in excluding proof regarding whether Martin’s dismissal was for just-cause only. The defendant conceded that Martin only could be terminated for just cause, and that fact was not at issue. The plaintiffs were not prejudiced or unfairly surprised by the decision to exclude the evidence. 2. The court did not abuse its discretion in excluding testimony of several witnesses and documents prepared by an "outplacement” firm. The evidence was irrelevant, cumulative, based on mere speculation, or lacked a proper foundation. References Am Jur 2d, Civil Rights §§ 233, 507; Job Discrimination §§ 98 et seq., 1337 et seq., 2109-2121, 2178. Application of State law to age discrimination in employment. 96 ALR3d 195. Proving that discharge was because of age, for purposes of Age Discrimination in Employment Act (29 USCS §§ 621 et seq.). 58 ALR Fed 94. 3. The jury instructions adequately and fairly presented the parties’ theories of the case and the applicable law. 4. The trial court’s response to a question asked by the jury during its deliberations was complete and fair to both parties and did not mislead the jurors. 5. The Court of Appeals lacks jurisdiction to review whether the trial court could hold the plaintiffs jointly and severally liable for aggregate mediation sanctions. The plaintiffs did not file claims of appeal with regard to that order. Affirmed. 1. Master and Servant — Employment Contracts — Age Discrimination — Burden of Proof — Bona Fide Economic Reasons for Discharge. A plaintiff alleging age discrimination in employment must prove by a preponderance of the evidence that it was a determining factor in the decision to discharge; if the defendant articulates a legitimate explanation for the termination, the burden of proof shifts to the plaintiff to show that economic reasons were a mere pretext; although the economic reasons must be bona fide, they need not rise to the level of a necessity; the jury is to decide only the reasonableness of the defendant’s conduct and not substitute its judgment for the defendant’s business judgment. 2. Master and Servant — Employment Contracts — Termination for Just Cause. A bona fide economic reason may provide just cause to terminate an employee whose contract provides for dismissal for just cause only. Conway, Bogdanski & Wright (by Daniel J. Wright and Michael A. Conway), for the plaintiffs. Butzel Long (by Philip J. Kessler, Virginia F. Metz, and David B. Calzone), for the defendant. Before: Jansen, P.J., and Wahls and Reilly, JJ. Per Curiam. Plaintiffs appeal as of right from judgments of no cause of action entered by the Wayne Circuit Court regarding their various claims against defendant for wrongful discharge and employment discrimination based upon age, sex, or national origin. We affirm. i Defendant, a regional brewery, discharged eighty-seven of its approximately four hundred employees on November 16, 1981, allegedly because of economic pressures occasioned by increased marketing, production, and transportation costs and loss of market share to the two largest national breweries. The terminations followed a poor earnings performance during the preceding fiscal year and was part of a reorganization effort to reduce defendant’s work force without a corresponding decrease in production or efficiency. Before notifying the affected employees, defendant consulted with legal counsel, who assured it that the terminations would not violate the company’s affirmative action program or its equal employment opportunity policy. After discharging the employees, a "bridge” program, which provided assistance in obtaining new employment and paid long-term employees their salaries and benefits for upward of six months, was implemented. Several months after the terminations, defendant acquired the Schlitz Brewing Company for $510 million, of which two-thirds was borrowed and one-third financed using Schlitz’s own assets. The acquisition makes defendant the third largest national brewery and was intended to position it as an effective competitor in the national market. Plaintiffs-appellants, and others who are not parties to these appeals, filed separate actions against defendant in the Wayne Circuit Court, pleading wrongful discharge and employment discrimination. Because of the numerous individual suits filed, the parties agreed that a single action— that of John Martin — would be tried before a jury and that a decision in that case regarding defendant’s liability would be binding in the other suits. Before trial, defendant stipulated that Martin had an implied contract to be dismissed for just cause only. Defendant therefore filed a motion in limine to exclude evidence regarding the nature of the employment contract. Martin objected, arguing that the evidence would be reflective of defendant’s credibility and that its exclusion would prevent the jury from considering the proofs in their entirety. Finding that the evidence would not be material to a disputed issue and would cause needless delay and confusion, the trial court granted defendant’s motion to exclude the evidence. Thus, the central issue to be litigated was whether the termination of Martin’s employment was based upon economic considerations. At the trial, which lasted three weeks, dozens of witnesses testified and numerous exhibits were submitted. Through his proofs, Martin attempted to show that the economic necessity defense was a mere pretext, as evidenced by, among other things, defendant’s ability to afford the expensive "bridge” program and to acquire the Schlitz Brewing Company. Martin asserted that he was discharged without cause and was discriminated against because of his age. However, the jury was not persuaded. After hearing testimony regarding defendant’s financial condition, the circumstances of the Schlitz acquisition, and defendant’s efforts to reduce operating expenses and become competitive at a national level, the jury returned a verdict of no cause of action. In accordance with the pretrial stipulation, judgments of no cause of action were thereafter entered in all the cases. This review is a consolidation of appeals brought by five of the aggrieved plaintiffs. n On appeal, plaintiffs first claim that the trial court abused its discretion in excluding proof of Martin’s just-cause employment contract with defendant. We disagree. The decision whether to admit or exclude evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Kochoian v Allstate Ins Co, 168 Mich App 1, 12; 423 NW2d 913 (1988). Generally, relevant evidence is admissible, while irrelevant evidence is not. MRE 402. Evidence is relevant if it tends to make the existence of a fact at issue in the action more or less probable than it would be without the evidence. MRE 401. Relevant evidence may be excluded from trial if its probative value is substantially outweighed by the risk of unfair prejudice, confusion of the issues, waste of time, or misleading the jury. MRE 403; Bartlett v Sinai Hosp of Detroit, 149 Mich App 412, 417; 385 NW2d 801 (1986). Here, because defendant conceded that Martin could be discharged for just cause only, that fact was not at issue in the case. Hence, the evidence would not have made the existence of a fact at issue more or less probable than it would have been without the evidence. Even if relevant, the evidence was properly excluded because its probative value was substantially outweighed by the danger that it might confuse the jurors with regard to the issue at hand (i.e., whether the termination was based upon economic considerations). Moreover, admission of the evidence would have resulted in additional expense and delay to an already lengthy trial. And, this is not a situation where the concession failed to cover all facets of a material issue. See Gutowski v M & R Plastics & Coating, Inc, 60 Mich App 499, 515; 231 NW2d 456 (1975). In a collateral argument, plaintiffs also claim that defendant’s concession of the just-cause issue changed the order of proofs and resulted in unfair surprise. We can perceive no prejudice to plaintiffs. The motion in limine was made before trial and with enough time for both parties to file briefs concerning the matter. Plaintiffs cannot complain that they were unfairly surprised by the court’s decision to exclude the evidence. hi Plaintiffs next claim that the court abused its discretion in excluding certain other evidence on grounds of being irrelevant or cumulative. This evidence included testimony that Martin was refused reemployment in 1982, when defendant was hiring new employees; testimony that a younger employee assumed some of Martin’s job responsibilities in 1983; documents prepared by an "outplacement” firm hired by defendant to administer the "bridge” program; testimony of a former controller of the defendant speculating about the cost of the "bridge” program; and testimony of a former vice president of the defendant regarding the economic necessity of the terminations. We do not believe the court abused its discretion in excluding this evidence. Kochoian, supra. Testimony about events that occurred after the Schlitz acquisition was properly excluded because defendant’s financial condition had changed substantially in comparison with the conditions that existed at the time of the terminations. Only the latter time period was relevant to the crucial issue whether Martin’s discharge was due to economic considerations or discriminatory intent. See Gallaway v Chrysler Corp, 105 Mich App 1, 9; 306 NW2d 368 (1981). Thus, the evidence was properly excluded on the ground that it was not probative of defendant’s reason for the termination. MRE 402. The documents prepared by the outplacement firm regarding the services and costs of the "bridge” program were also properly excluded because Martin’s witness was unable to testify that the documents were ever forwarded to, or seen by, defendant. Absent proof that defendant adopted or ratified the services and costs described in the documents, their relevancy had not been established by a proper foundation. The cases cited by plaintiffs are not persuasive because they involved hearsay, not foundational, objections. See Valenti v Mayer, 301 Mich 551; 4 NW2d 5 (1942); Arnsteen v US Equipment Co, 52 Mich App 177; 217 NW2d 61 (1974). Moreover, even if the evidence were improperly excluded, reversal would not be required because other competent evidence was admitted from which the jury could infer the costliness of the "bridge” program. MRE 403. Exclusion of testimony of defendant’s former controller with regard to the cost of the "bridge” program was also proper. By the controller’s own admissions, he could not render an informed opinion regarding the cost of the program. The amount estimated by the controller was based on mere speculation and, therefore, was properly stricken. Harrison v Grand Trunk WR Co, 162 Mich App 464, 469; 413 NW2d 429 (1987). Lastly, the trial court properly excluded the continuing testimony of defendant’s former vice president regarding the economic necessity of the terminations. Before the point of exclusion, the witness’ testimony was entirely consistent with that of several prior witnesses. Plaintiffs have not shown that the excluded testimony would have been other than cumulative. MRE 403; Wayne Co Sheriff v Wayne Co Bd of Comm’rs, 148 Mich App 702, 710-711; 385 NW2d 267 (1983). IV Plaintiffs next contend that the trial court erroneously instructed the jury that defendant should prevail if the terminations were based on a bona fide economic reason without requiring economic necessity. Allegedly, those instructions were improper because they permitted the jury to discount Martin’s age discrimination proofs and find for defendant even if the terminations were based merely on the desire for profit and expansion, not economic hardship. We disagree. When viewed as a whole, and not in a piecemeal and isolated fashion, the instructions adequately and fairly presented to the jur> the parties’ theories of the case and the applicable law. Wiegerink v Mitts & Merrill, 182 Mich App 546, 548; 452 NW2d 872 (1990). The jury was apprised that Martin had to prove, by a preponderance of the evidence, that age discrimination was a determining factor in the decision to discharge him. Meeka v D & F Corp, 158 Mich App 688, 692; 405 NW2d 125 (1987). Further, the jury was told that if defendant articulated a legitimate explanation for the termination, the burden of proof shifted back to Martin to show that the economic reasons were a mere pretext. Id. Although the economic reasons must be bona fide, there is no requirement that they rise to the level of a "necessity.” See McCart v J Walter Thompson USA, Inc, 437 Mich 109, 114-115; 469 NW2d 284 (1991); Friske v Jasinski Builders, Inc, 156 Mich App 468, 472; 402 NW2d 42 (1986). Next, the jury was essentially instructed that a bona fide economic reason for the discharge constituted "just cause” under Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980). This was an appropriate charge. McCart, supra, p 114. Finally, the jury was properly advised that it was to decide only whether defendant’s conduct was reasonable and not to substitute its judgment for defendant’s business judgment. SJI2d 105.03. v During deliberations, the jury asked whether any exhibits had been introduced concerning a change in defendant’s termination policy. There was none, and the court so responded. Over Martin’s objection, the court refused to explain that the only evidence of the policy was presented through oral testimony. Plaintiffs now claim that the court failed to fully and fairly respond to the jury’s inquiry. We find no error. Clearly, the jury’s request concerned only an exhibit regarding the policy, not any testimony thereon. The court’s response was complete and fair to both parties and did not mislead the jurors into believing that no evidence of the policy was admitted at trial. See Rumptz v Leahey, 26 Mich App 438, 444; 182 NW2d 614 (1970). VI For their final issue, plaintiffs challenge the trial court’s order making them jointly and severally liable for aggregate mediation sanctions. Because plaintiffs did not file claims of appeal with regard to that order, this Court is without jurisdiction to review the issue. Eriksen v Fisher, 166 Mich App 439, 450-451; 421 NW2d 193 (1988). Affirmed.

Katharine White vs. The University of Massachusetts at Boston & another. Suffolk. March 4, 1991. - July 3, 1991. Present: Liacos. C.J.. Wilkins. Abrams. Nolan. & Lynch. JJ. Anti-Discrimination Law, Prima facie case. Termination of employment, Maternity leave, Sex. Employment, Termination, Discrimination. Practice, Civil, Summary judgment. In a civil action in which the plaintiff claimed she was wrongfully terminated from her employment because of her sex, that the termination was retaliatory due to her filing of discrimination charges, that she was terminated in bad faith, and that another employee had interefered with her advantageous employment relations and violated her civil rights, summary judgment was properly entered for the defendants where the plaintiff failed to demonstrate that she had been terminated, and thus she could not establish a prima facie case on any claim. [556-559] Civil action commenced in the Superior Court Department on October 18, 1988. The case was heard by Elbert Tuttle, J., on a motion for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Wendy A. Kaplan for the plaintiffs. Deirdre Heatwole for the defendants. Alan Clarke. Liacos, C.J. On October 18, 1988, the plaintiff, Katharine White, initiated this action against the defendants, The University of Massachusetts at Boston (University) and Alan Clarke, executive director of the Department of Educational Support Programs at the University. White’s complaint alleged gender discrimination in violation of G. L. c. 151B, § 4 (1988 ed.), and 42 U.S.C. § 2000e-2 (1990). She alleged further that she was wrongfully terminated from a full-time teaching position at the University because of her sex; that there was retaliatory termination due to her filing discrimination charges with the University and with the Massachusetts Commission Against Discrimination (MCAD); that termination of her employment by the University was in bad faith; and that Clarke maliciously interfered with her advantageous employment relations and violated her civil rights. White sought reinstatement in her teaching and counselling position at the University, compensatory damages, and related injunctive relief. On September 12, 1989, the defendants submitted a motion for summary judgment pursuant to Mass. R. Civ. P. 56 (b), 365 Mass. 824 (1974). A judge in the Superior Court granted the motion for summary judgment on all counts and ordered the complaint dismissed. The plaintiff appeals the grant of summary judgment as to the counts of discrimination in employment and retaliation by the University and Clarke, and malicious interference with advantageous employment relations by Clarke. We transferred the appeal to this court on our own motion. We affirm. Facts. The following facts are not in dispute. In 1979, White began working as an English teacher and counselor in the University’s Veterans Education and Training Program (VET Program). When White learned that she was pregnant, in December, 1986, she notified the supervisor of the VET Program, Charles Diggs, and his supervisor, Kevin Bowen, co-director of the University’s Joiner Center for War and Social Consequences. Although the standard period allowed under University policy for maternity leave was eight weeks, White was able to arrange an eight-month leave, during the spring and summer semesters of 1987. White’s then-existing employment contract would expire at the end of the leave of absence, on August 31, 1987. On May 29, 1987, Alan Clarke notified White by letter that he did “not intend to recommend that [her] contract be renewed in its present form” in order “to provide the University with sufficient flexibility to implement the best possible program design.” The notice also provided that White would be “accorded preferential treatment in the filling of whatever positions emerge[d].” In July, White requested a further extension of her leave of absence or, alternatively, a part-time teaching position, through the fall semester, 1987. White’s supervisor approved the request, with reservations, in a letter addressed to Clarke dated August 11, 1987. Clarke responded to White’s request by a letter dated August. 14, 1987. In the letter, Clarke denied the request for part-time employment, but stated that he “lookfed] forward to having [White] rejoin the staff of the Veterans Educational Training Program on a full-time basis.” Unable to arrange for her child’s care prior to September 1, 1987, White did not return to work for the fall semester. In November, 1987, White filed a grievance with the University’s affirmative action office seeking clarification of her job status. On January 11, 1988, White filed a charge of gender discrimination with the Massachusetts Commission Against Discrimination (MCAD) alleging, inter alia, that in June, 1987, Clarke terminated her position without cause or notice. In a letter dated February 25, 1988, Clarke denied ever having terminated White’s position, stating that he offered to renew White’s full-time contract beginning in September, 1987, but she turned the offer down. Clarke’s letter further provided: “To the best of my knowledge, you have no employment status at the University.” Subsequently, White amended her discrimination charge with the MCAD to include a charge of retaliation, alleging that Clarke, by the February 25 letter, terminated her employment at the University because she had filed discrimination charges with the University and the MCAD. Motion for summary judgment. Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). On appeal, an “order granting summary judgment against [the non-moving party] thus will be upheld if certain factors converge to convince us that the trial judge was ruling in this case on undisputed facts and, of course, that his rulings were correct as matter of law.” Community Nat’l Bank v. Dawes, 369 Mass. 550, 556 (1976). We view the evidence and the inferences to be drawn therefrom in the light most favorable to the opposing party. Id. at 559 n.8. The pivotal element of each claim asserted by White is the allegation that she was terminated. White’s first claim, on appeal, is that she was discriminated against on the basis of her sex and because she had recently been pregnant, and that the discrimination resulted in the termination of her employment at the University. The analysis of a discrimination claim is essentially the same under the State and Federal statutes. See Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 135 & n.5 (1976); Radvilas v. Stop & Shop, Inc., 18 Mass. App. Ct. 431, 438-439 (1984). In order to establish a prima facie case of sex discrimination resulting in termination of employment, White must establish that (1) she is a member of a protected group; (2) she performed her job at an acceptable level; (3) she was terminated; and (4) her employer sought a replacement with similar qualifications. See Duke v. Uniroyal Inc., 928 F.2d 1413 (4th Cir. 1991) (standard applied in challenge of termination on basis of age discrimination). See also Wheelock College, supra at 135 n.5, citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n.13 (1973) (facts necessary to establish prima facie case of discrimination will vary depending on situation). Asserting a claim based on sex discrimination as a pregnant woman, White is a member of a protected group. See Massachusetts Elec. Co. v. Massachusetts Comm’n Against Discrimination, 375 Mass. 160, 167 (1978), citing General Elec. Co. v. Gilbert, 429 U.S. 125, 149 (1976) (Brennan, J„ dissenting) (classification relying on pregnancy is distinction based on sex). There was also evidence that she performed her job at an acceptable level, prior to her extended leave of absence beginning in February, 1987. There is no evidence, however, that White was terminated from her position. In fact, the parties agree that in Clarke’s August 14, 1987, letter he offered to renew White’s full-time contract beginning September 1, 1987. White argues that Clarke’s offer was not a genuine offer but, rather, a ruse. White alleges that Clarke knew she could not obtain day care for her child on such short notice, having received the offer only eleven days before the new contract was to begin. While we acknowledge that inferences which may be drawn from uncontested facts are to be drawn in favor of the opposing party, the application of this principle “is predicated on the clear averment by the opposing party of subsidiary facts in [her sworn] pleadings or affidavits.” Community Nat’l Bank, supra at 559 n.8. White offered no specific facts to demonstrate that Clarke’s offer was a ploy to terminate her. Many of her statements in her affidavit were on information and belief (the motion judge characterized them as “opinion”) and, thus, are not sufficient under rule 56. See McKenzie v. Brigham & Women’s Hosp., 405 Mass. 432, 437-438 (1989). The only other evidence remotely on point is from the deposition testimony of the co-director of the Joiner Center, Kevin Bowen. Bowen testified that Clarke said “he had gotten rid of Kate [White].” We do not consider this a clear averment permitting the inference, without more, that the offer of employment was a ruse. The facts of record do not permit the conclusion that White was terminated. Thus, she failed to establish a prima facie case of sex discrimination, and summary judgment for the defendants was properly entered. White’s claim of retaliation also must fail because this claim also is premised on the fact that she was terminated. As we have indicated, and as the Superior Court judge ruled, she was not terminated. White chose not to accept Clarke’s offer of employment. There can be no claim of retaliatory termination when there has not been a termination. Finally, White’s claim that Clarke intentionally interfered with her advantageous relations with the University also is premised on her claim that she was terminated. There having been no termination, White cannot establish a prima facie case. Judgment affirmed. General Laws c. 151B, § 4 (1988 ed.), provided, in part: “It shall be unlawful practice: “1. For an employer, by himself or his agent, because of the race, color, religious creed, national origin, sex, or ancestry of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.” Subsection 1 of G. L. c. 15IB, § 4, was amended by St. 1989, c. 516, § 4. The amendment is not relevant to this appeal. Title 42 U.S.C. § 2000e-2 provides, in part: “(a) It shall be an unlawful employment practice for an employer— “(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” The eight-month leave period consisted of an eight-week maternity leave and White’s remaining vacation leave, followed by a five-month leave of absence. The record appendix contains a letter, unsigned and undated, addressed to White’s supervisor, Diggs, in which White requested that she be permitted “to return [in the fall, 1987] to the night program as a part-time teacher, and then return to [her] full-time job in January of 1988,” because her child was “not yet ready for a separation of [the] magnitude” required to undertake full-time employment. Diggs noted in his letter to Clarke that Diggs wanted a “full-time staff’ and that by January, 1988, he wanted “to have the staffing situation stabilized.” Diggs’ supervisor, Kevin Bowen, also approved the extension request. See note 11, infra. White claims that she received the letter on August 20, 1987, and that Clarke intentionally sent her notification by the slowest means possible in order to frustrate her attempts to find day care for her child and begin full-time employment on September 1, 1987. On July 25, 1988, White withdrew her discrimination complaint from the MCAD. White makes no claim that she was constructively terminated. Cf. Rosado v. Santiago, 562 F.2d 114, 119 (1st Cir. 1977). In her brief to this court, White also claims that she was discriminated against when her application for a part-time teaching position was denied. White did not raise this argument in the Superior Court; therefore the claim is not properly before us. We decline to address this issue. See Prior v. Holiday Inns, Inc., 401 Mass. 506, 509 (1988), and cases cited. The deposition testimony was as follows: “Q: Has Mr. Clarke said anything to you at any time which has led you to believe that he was hostile to Kate White? “A [Bowen]: At different times he has expressed hostility to both Kate and Mary, and his threats that he was going to get rid of them I could sometimes interpret as being threats to me because I wanted to keep them, so it was a matter of wills. He did at one point say that after this had transpired, that he had gotten rid of Kate, he was going to get rid of Mary next, and there was nothing I could do to stop him, but this was after he had been drinking.” Although not necessary to our holding, we note that White’s initial discrimination charge alleged that she had already been terminated from her position. Therefore, the filing of her claim could not result in a “re-termination.”

REISMAN v REGENTS OF WAYNE STATE UNIVERSITY Docket Nos. 111538, 111557. Submitted July 8, 1990, at Lansing. Decided April 16, 1991, at 9:05 a.m. Leave to appeal sought. Betty L. Reisman brought an action in the Court of Claims and the Wayne Circuit Court against the Regents of Wayne State University alleging breach of an employment contract and reverse discrimination, respectively, after her contract of employment was not renewed. Trials were conducted simultaneously by Richard P. Hathaway, J. The Court of Claims entered a judgment of no cause of action on the breach of contract claim, and a circuit court jury returned a judgment for the plaintiff with regard to the reverse discrimination claim. The plaintiff appealed the judgment of the Court of Claims and the defendant appealed that of the circuit court. The appeals were consolidated in the Court of Appeals. The Court of Appeals held: The judgment of the Court of Claims is affirmed. The judgment of the Wayne Circuit Court is affirmed in part and reversed in part, and the case is remanded for a new trial. 1. The Court of Claims judgment of no cause of action was proper. An employee, such as the plaintiff, who is discharged for reasons of budget cutbacks or economic necessity does not have grounds for a wrongful discharge claim, even if the employment contract expressly provides that the employee is subject to termination only for just cause. The evidence supports a finding that the decision not to renew the plaintiff’s employment contract was motivated by economic necessity. The defendant permitted the plaintiff to serve out the term of her contract of employment and did not breach the contract. 2. The defendant preserved for appeal the issue of the jury instruction regarding the effect of the defendant’s affirmative action policy. 3. The fact that an affirmative action plan, like the one involved in this action, has not been approved by the Civil Rights Commission does not render the plan invalid, and actions taken pursuant to an unapproved plan are not discriminatory per se. The jury was erroneously instructed that, if it found that the defendant considered race in deciding not to renew the plaintiffs contract, it must find that the defendant violated the plaintiffs civil rights. The instruction precluded the jury from considering whether consideration of the affirmative action policy was a legitimate justification for the nonrenewal of the plaintiffs contract. The instruction denied the defendant a fair trial, and reversal is required. References Am Jur 2d, Job Discrimination § 1158. See the Index to Annotations under Budgets and Budgetary Matters; Discrimination; Equal Employment Opportunity. 4. Because the plaintiffs contract allegedly was not renewed because of economic necessity, a prima facie case of race discrimination cannot be established merely by showing that race was a factor in the decision not to renew the plaintiffs employment contract. Instead, the plaintiff must present sufficient evidence to establish that race was a determining factor in the decision not to renew her contract. Because the evidence was such that reasonable jurors could honestly have reached different conclusions about whether the plaintiffs race was a determining factor in the decision not to renew her contract, the trial court did not err in denying the defendant’s motions for a directed verdict and judgment notwithstanding the verdict. 5. If it is determined on retrial that the defendant violated the Civil Rights Act in deciding not to renew the plaintiffs contract, the plaintiff is entitled to any damages which she can show she suffered as a result of the discrimination. Affirmed in part, reversed in part, and remanded. 1. Master and Servant — Termination of Employment — Economic Necessity. An employee who is discharged for reasons of budget cutbacks or economic necessity does not have grounds for a wrongful discharge claim, even if the employment contract expressly provides that the employee is subject to termination only for just cause. 2. Civil Rights — Affirmative Action Plans — Civil Rights Commission Approval. The fact that an affirmative action plan has not been approved by the Civil Rights Commission does not render the plan invalid, and actions taken pursuant to an unapproved plan are not discriminatory per se. 3. Civil Rights — Employment Discrimination — Race — Economic Necessity — Burden of Proof. A plaintiffs burden of proof in an action alleging employment discrimination based on race may vary depending on the facts of the particular case; a plaintiff has a greater burden of proof where the employer is making cutbacks because of economic necessity; under such circumstances, a prima facie case of race discrimination cannot be established merely by showing that race was a factor in the employment decision; instead, the plaintiff must present sufficient evidence to establish that race was a determining factor. Fried & Levitt, P.C. (by Gary E. Levitt), for the plaintiff. Wayne State University Office of the General Counsel (by Daniel J. Bernard, Assistant General Counsel), for the defendant. Before: Marilyn Kelly, P.J., and Hood and Doctoroff, JJ. Per Curiam. These are appeals as of right from two cases that were conducted simultaneously before the same judge. The appeals were consolidated. In Docket No. 111538, plaintiff filed a complaint in the Court of Claims, alleging breach of an employment contract. This claim was heard by a Wayne Circuit Court judge sitting as the Court of Claims. Plaintiff appeals from the trial court’s ruling of no cause of action, arguing that the court erred in ruling that plaintiff failed to prove that she was discharged without cause. We affirm. In Docket No. 111557, plaintiff filed a complaint in the Wayne Circuit Court, alleging reverse race discrimination. This claim was heard by a jury, which returned a verdict in plaintiff’s favor in the amount of $1,582,000, plus interest and attorney fees. The trial court subsequently granted remittitur, reducing the damage award by $200,000. Defendant appeals, raising several issues. Defendant argues that the uncertainty of tenure is fatal to plaintiff’s claim for future wages and benefits; that the trial court erred in excluding certain evidence, in instructing the jury regarding the effect of defendant’s affirmative action policy, and in failing to grant defendant’s motions for a directed verdict and judgment notwithstanding the verdict; and that a new trial is required because of jury misconduct and inconsistent verdicts. Plaintiff cross appeals, arguing that the trial court erred in granting remittitur. We find dispositive defendant’s argument that the trial court erred in instructing the jury regarding the effect of defendant’s affirmative action policy. Accordingly, we reverse and remand for a new trial. On July 12, 1979, the university offered Gordon Smith, a black male, a position as an assistant professor in the area of guidance and counseling of the Division of Theoretical and Behavioral Foundations of the College of Education, for a two-year term. On July 23, 1979, the university offered plaintiff, a white female, the position of associate professor in the guidance and counseling area of the same division for a two-year term. Both plaintiff and Smith accepted the offers and began teaching in the fall semester of 1979. Both contracts were renewed twice more, both times for one-year terms. In November 1982, at the beginning of her fourth year with the university, plaintiff applied for tenure. On November 24, 1982, the university informed plaintiff that her contract would not be renewed and that her employment would end on August 31, 1983. Smith’s contract was renewed for another one-year term. In May 1983, plaintiff was notified that her application for tenure was denied. In Docket No. 111538, plaintiff appeals from the judgment of no cause of action entered by the Court of Claims in regard to plaintiff’s breach of contract claim. In an opinion issued on March 24, 1988, the Court of Claims concluded that in 1979 and 1981 the parties entered into legally enforceable contracts of employment which provided that plaintiff could be terminated only for just cause, that plaintiff had not proven by a preponderance of the evidence that the dean of the College of Education made all the alleged statements concerning "life time” employment, that defendant did not breach the employment contract by nonrenewal of plaintiff’s contract of employment for the 1983-84 school year, and that plaintiff had not proven by a preponderance of the evidence that she was terminated without just cause. Plaintiff asserts that the Court of Claims correctly found that a Toussaint contract existed, but that the court erred in ruling that she failed to prove by a preponderance of the evidence that her employment was terminated without just cause. Defendant argues that Toussaint does not apply to the contract at issue, but, nevertheless, that the judgment of no cause of action was correct. Where a trial court reaches the correct result for the wrong reason, the result will not be disturbed on appeal. Wilson v Acacia Park Cemetery Ass’n, 162 Mich App 638, 642; 413 NW2d 79 (1987); Dutka v Sinai Hosp of Detroit, 143 Mich App 170, 176; 371 NW2d 901 (1985). For several reasons, the judgment of no cause of action was correct. First, the contract theories articulated in Toussaint do not apply when the conduct of the parties is governed by a collective bargaining contract. Sankar v Detroit Bd of Ed, 160 Mich App 470, 478-479; 409 NW2d 213 (1987). In the instant case, a collective bargaining agreement was in force at all times. Indeed, plaintiff availed herself of the grievance and arbitration procedure set forth in the collective bargaining agreement. Second, an employee who is discharged for reasons of budget cutbacks or economic necessity does not have grounds for a wrongful discharge claim, even if the employment contract expressly provides that the employee is subject to termination only for just cause. Bhogaonker v Metropolitan Hosp, 164 Mich App 563; 417 NW2d 501 (1987); Friske v Jasinski Builders, Inc, 156 Mich App 468; 402 NW2d 42 (1986). Plaintiff concedes that in 1981 and 1982 defendant was experiencing a budget crisis which required work force reductions. In addition, the evidence overwhelmingly supports a finding that the decision not to renew plaintiffs contract was motivated by economic necessity. Third, plaintiffs contracts with defendant were for a definite term. The collective bargaining agreement, the supplement to the agreement negotiated in 1982, the university’s "statutes,” and the letters of offer and acceptance establish that the express terms of the contract created employment for the stated duration. In fact, the letters offering plaintiff one-year renewals for 1981-82 and 1982-83 specifically stated, "Please note that this appointment carries no presumption of reappointment beyond the stated time period.” Plaintiff accepted the reappointments by signing the letters. The university permitted plaintiff to serve out the term of her last contract as expressly provided and, thus, did not breach the contract. The dismissal of plaintiffs breach of contract action is affirmed. In Docket No. 111557, defendant appeals from the verdict in plaintiffs favor on her race-discrimination claim. We first address defendant’s argument that the trial court erred in instructing the jury regarding the effect of defendant’s affirmative action policy. Plaintiff asserts that defendant failed to preserve this issue for appeal. Defendant did not state its objections to the instruction immediately after the trial court finished instructing the jury. However, defendant did object to the instruction during the discussion of jury instructions that took place before the trial court instructed the jury and also raised the issue in its motion for judgment notwithstanding the verdict or a new trial. Thus, the trial court had the opportunity to consider the issue. In our view, this issue was sufficiently preserved for review. In addition, when a defect in an instruction to which no objection was made pertains to a basic and controlling issue in a case, this Court may address the error in order to avoid manifest injustice. Gallaway v Chrysler Corp, 105 Mich App 1, 6-7; 306 NW2d 368 (1981). Plaintiff’s theory in this case was that the decision not to renew her contract was based on defendant’s affirmative action policy. Plaintiff argued that the policy was invalid because it had not been approved by the Civil Rights Commission and, therefore, that any consideration of race by defendant was a violation of the law. Thus, the effect of the affirmative action policy was a basic and controlling issue in this case. If a jury charge is erroneous or inadequate, reversal is required only where failure to reverse would be inconsistent with substantial justice. MCR 2.613(A); Willoughby v Lehrbass, 150 Mich App 319, 336; 388 NW2d 688 (1986). The trial court charged the jury as follows: I instruct you that if you find that race or color was at least one of the reasons that made a difference in determining that Betty Reisman’s contract was to be non-renewed, defendant cannot avoid liability to plaintiff by claiming that the defendant’s acts were done pursuant to an affirmative action plan. The challenged instruction was based upon the interpretation of § 210 of the Civil Rights Act, MCL 37.2210; MSA 3.548(210), by the Court in JF Cavanaugh & Co v Detroit, 126 Mich App 627; 337 NW2d 605 (1983). Section 210 provides: A person subject to this article may adopt and carry out a plan to eliminate present effects of past discriminatory practices or assure equal opportunity with respect to religion, race, color, national origin, or sex if the plan is filed with the commission under rules of the commission and the commission approves the plan. In Cavanaugh, the City of Detroit passed an ordinance requiring all city contractors to take affirmative action to achieve reasonable representation of minority groups and women on their work force. Although primarily a preemption case, this Court also affirmed the trial court’s ruling that the ordinance was invalid because it conflicted with state law requiring that employers not discriminate on the basis of religion, race, color, national origin, or sex. In discussing the validity of the ordinance, the Court quoted § 210 and then stated: In view of the statute’s prohibition of discrimination, §210 implicitly precludes the use of an affirmative action plan unless the plan is "filed with the [civil rights] commission under rules of the commission and the commission approves the plan.” The nature of the interaction between nondiscrimination laws and affirmative action plans is such that we are convinced that the Legislature intended to preclude municipalities from requiring the adoption and use of plans approved only by the municipality. We also agree with plaintiffs’ contention that compliance with a city-approved affirmative action plan will not insulate an employer from charges that it violated the state’s nondiscrimination law. [126 Mich App 637-638.] The next case addressing this issue was Van Dam v Civil Service Bd of Grand Rapids, 162 Mich App 135; 412 NW2d 260 (1987). The Court in Van Dam reversed the grant of summary disposition in the defendant’s favor. The trial court had ruled that submission of an affirmative action plan for approval was not absolutely required by §210. This Court found that the trial court erred in construing the statute as giving the city discretion in submitting the plan for approval and ruled that, once a plan is initiated, it must be submitted to the Civil Rights Commission for approval before it can take effect. Citing Cavanaugh, this Court held that the defendant’s unapproved plan was invalid. See also Victorson v Dep’t of Treasury, 183 Mich App 318; 454 NW2d 256 (1990) (an unapproved affirmative action plan is invalid). A conflict in decisions developed with the release of Ruppal v Dep’t of Treasury, 163 Mich App 219; 413 NW2d 751 (1987). The trial court in Ruppal ruled that action taken pursuant to an unapproved affirmative action plan was void and discriminatory per se, and granted summary disposition for the plaintiff. This Court rejected the view that an unapproved affirmative action plan was void and discriminatory per se and reversed. The Court rejected the trial court’s reasoning, stating: There are at least two problems with this line of reasoning. First, there is nothing to suggest that an unapproved affirmative action plan is void under § 210, or that any action taken pursuant to the plan is void as discriminatory per se. Instead, failure to obtain Civil Rights Commission approval means that the plan "will not insulate an employer from charges that it violated the state’s nondiscrimination law.” J F Cavanaugh & Co v Detroit, 126 Mich App 627; 337 NW2d 605 (1983). Stated differently, protection from a lawsuit alleging discrimination cannot be guaranteed absent an approved plan. This is a far-different proposition than the trial court’s conclusion that the plan and actions taken pursuant to the plan are wholly invalid. Second, and more fundamentally, a court’s inquiry in a sex discrimination case under the Civil Rights Act does not end with a finding that the plaintiff has made out a prima facie case that sex has been taken into account in an employer’s employment decision. Once a court concludes that a plaintiff has proven a prima facie case of discrimination then the court must next consider the defendant’s explanation or justification for the presumptively discriminatory action. [163 Mich App 226-227. Emphasis in original.] The Ruppal Court, in short, ruled that the defendants could not be held liable merely because of the failure to obtain Civil Rights Commission approval of the affirmative action plan. Failure to obtain approval simply precluded the plan from serving as a statutory defense. See also Kulek v Mt Clemens, 164 Mich App 51, 64; 416 NW2d 321 (1987) (reliance on an unapproved plan will not insulate an employer from charges that it violated the state’s nondiscrimination law, "but the unapproved plan itself, and actions taken pursuant to it, are not necessarily invalid”). Where the language of a statute is clear and unambiguous, judicial interpretation is precluded, and this Court should not look beyond the ordinary meaning of the unambiguous language in giving effect to the statute. Wills v Iron Co Bd of Canvassers, 183 Mich App 797, 801; 455 NW2d 405 (1990). If construction is required, this Court is obliged to determine and give effect to the intention of the Legislature. Id. Statutory language should be given a reasonable construction considering its purpose and the object sought to be accomplished. An act must be read in its entirety, giving due consideration to all sections to produce an harmonious and consistent enactment of the whole. Id. Statutes are to be construed to avoid absurd or unreasonable consequences. Id. The overall purpose of the Civil Rights Act was stated in Miller v C A Muer Corp, 420 Mich 355, 362-363; 362 NW2d 650 (1984): Civil rights acts seek to prevent discrimination against a person because of stereotyped impressions about the characteristics of a class to which the person belongs. The Michigan civil rights act is aimed at "the prejudices and biases” borne against persons because of their membership in a certain class, Boscaglia v Michigan Bell Telephone Co, 420 Mich 308, 316; 362 NW2d 642 (1984); Freeman v Kelvinator, Inc, 469 F Supp 999, 1000 (ED Mich, 1979), and seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases. We agree with the decision in Ruppal that nothing in the statute suggests that an unapproved affirmative action plan is void or that action taken pursuant to an unapproved plan is di

Harry G. Johansen vs. NCR Comten, Inc. No. 89-P-1395. Middlesex. January 10, 1991. March 22, 1991. Present: Kass, Kaplan, & Gillerman, JJ. Anti-Discrimination Law, Prima facie case, Burden of proof, Employee. Employment, Discrimination. Discussion of the Federal cases setting forth methods of allocating evidentiary burdens in cases involving allegations of unlawful job discrimination. [296-301] In a civil action in which the plaintiff alleged that his employment was unlawfully terminated on account of his age, the judge correctly instructed the jury that if the employer advanced a legitimate business purpose for the discharge, the burden then fell back to the plaintiff to prove the employer’s explanation was a pretext, where the evidence of discrimination was circumstantial. [301-302] Civil action commenced in the Superior Court Department on May 10, 1982. The case was tried before J. Harold Flannery, J. John W. Marshall for the plaintiff. S. Elaine McChesney (Robert A. Buhlman with her) for the defendant. Kass, J. Aggrieved by an adverse judgment (founded on a jury verdict) concerning his age discrimination claim, the plaintiff, Harry G. Johansen, argues that the trial judge, in his charge to the jury, failed to allocate correctly the respective evidentiary burdens of the parties. We affirm. Johansen brought an action against NCR Comten, Inc. (NCR), alleging that it terminated his employment for reasons proscribed by the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623 (a)(l)(1976) and its Massachusetts analogue, G. L. c. 15IB, §§ 4 and 9.* Only the Federal claim was tried to the jury; the judge, by arrangement with the parties, was to take the jury’s finding on an advisory basis as to the State claim. The jury returned a verdict of “no” to the question: “Was Mr. Johansen’s age the determining factor in his discharge?” The judge similarly found, on the State claim, that “the [plaintiff’s] age was not the determining factor in his discharge.” Judgment entered for the defendant NCR on both counts. We review the salient facts which the evidence allowed the jury to find. Before Johansen, then fifty years old, was hired as a sales representative (the precise date of hire was April 7, 1980), Gerry Garrett, the branch manager of NCR’s Waltham office (it covered the New England region), while sifting through applications, remarked about Johansen’s résumé, “This man is way too old for this job.” However, after interviewing Johansen and about nine other finalists, Garrett selected Johansen. The other applicants were all under age forty. Garrett thought Johansen might particularly fill the bill of minding and binding existing customers because he had sales experience and would be familiar with how purchasing decisions were made by large companies. “He was a silver-haired, distinguished-looking gentleman,” Garrett observed, who “we felt would represent the company the way we wanted it represented in the Stone & Webster [Engineering Corporation] and New England Telephone Company.” To develop new customers and territories, Garretí, at the time he hired Johansen, engaged a less experienced “high energy level” person. Less than nine months later, on December 5, 1980, NCR fired Johansen. His six-month review contained adverse observations about his knowledge of the NCR product line, the poor quality of his written reports and oral presentations (“he was just no good on his feet”), and the amount of work he was putting into the job. Johansen’s position at NCR was particularly undermined by a complaint from a major customer, Stone and Webster Engineering, that Johansen could not get an accurate purchase contract together. The adverse comment had been made at an encounter in San Diego between Hervey Bailey of Stone and Webster and NCR’s vice president for sales, Edward Clark. Bailey gave Clark to understand that “he couldn’t even get a proper replay of what he was feeding the sales rep.” Clark traveled from NCR’s home base in Minneapolis to size up the situation in Boston. He had salesmen make presentations and formed an unfavorable impression of Johansen. Clark decided Johansen should be discharged and left “implementation” to the people in the regional office to whom Johansen reported. Before we turn to the instruction that Johansen wanted and did not get, we recapitulate what was, before the decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the standard (although not the only) method of allocating evidentiary burdens in cases involving discrimination based not on job qualifications but on forbidden grounds such as race, gender, religion, national origin, or age. The initial burden is on the plaintiff to produce evidence of unlawful discrimination, i.e., to make a prima facie case. If the plaintiff man- ages to make a prima facie case, the burden shifts to the defendant to produce evidence of lawful reasons for firing or not hiring the plaintiff. Should the defendant succeed in so doing, the burden shifts back to the plaintiff to establish by a preponderance of the evidence that the reasons, ostensibly legitimate, put forward by the employer are a pretext for the real reason, unlawful discrimination. This allocation of evidentiary burdens was explicated in two leading cases, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-253 (1981). The approach was expounded locally in Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 138-139 (1976); Smith College v. Massachusetts Commn. Against Discrimination, 376 Mass. 221, 229-232 (1978); Trustees of Forbes Library v. Labor Relations Commn., 384 Mass. 559, 566-567 (1981); Comey v. Hill, 387 Mass. 11, 17-18 (1982); and Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (1st Cir. 1979)". Part of the plaintiff’s request for jury instructions followed the criteria first announced in the McDonnell case, supra. Included in the plaintiff’s request for instructions, however, was the following, which provides the focus of the appeal: “It is possible on the evidence presented that you will conclude that Mr. Johansen’s age was one reason but not the only reason for his termination. It is not necessary for Mr. Johansen to convince you that his age was the only reason for the termination. Age may be one of a number of factors contributing to the [defendant's action. If Mr. Johansen proves to you that age was a factor, you must find in his favor unless the [defendant proves to you that Mr. Johansen would have been terminated even if it were not for his age. In other words, if Mr. Johansen proves that age was a factor, the [defendant must prove that age was not a determinative factor.” Under that requested instruction, the burden fell on NCR to prove that age was not a determinative factor. In the classic formulation of the McDonnell and Burdine cases, supra, the burden remained with the plaintiff to prove that his job performance or other lawful reasons given by the employer were a pretext. The judge’s instruction adhered generally to the McDonnell-Burdine formula. The pertinent portion of the instruction appears as an appendix to this opinion. The McDonnell-Burdine allocation of evidentiary burdens presupposed that the evidence of unlawful discrimination would be circumstantial. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985). It was not likely that employers would declare forbidden bias frontally by, e.g., the publication of policy statements that blacks would be excluded from executive positions or that employees over the age of fifty were to be phased out at the earliest opportunity. Rather, most cases of unlawful discrimination would be stitched together from hiring and discharge patterns, other acts of discrimination, and the absence of plausible explanation for the employment decision. See Smith College v. Massachusetts Commn. Against Discrimination, 376 Mass. at. 228 n.9. Passing over the job application of a member of the protected class is the sort of evidence that has given rise to an inference of unlawful discrimination. See International Bhd. of Teamsters v. United States, 431 U.S. 324, 357-358 (1977). In the aftermath of McDonnell and Burdine, there developed a line of cases which observed that a different allocation of evidentiary burdens was called for when there was evidence of declared animus or discrimination against the protected group. When unlawful discrimination was established as present in the employment setting the employer was required not only to prove that there was a lawful reason for the employment decision but also to prove by a preponderance of the evidence that it would have made the same employment decision even though it may have taken age, gender, race, or other improper categorization into account. See Trans World Airlines, Inc. v. Thurston, 469 U.S. at 121; Blalock v. Metals Trades, Inc., 775 F.2d 703, 707, 711-712 (6th Cir. 1985); Fields v. Clark Univ., 817 F.2d 931, 935-936 (1st Cir. 1987). Those cases and others like them make a dichotomy between “direct” and “indirect” evidence of unlawful discrimination; if the evidence is “indirect,” the McDonnell-Burdine allocation of burdens applies; if the evidence is “direct,” the employer carries the burden of persuading the finder that lawful considerations dictated the employer’s action, notwithstanding the presence of animus based on age, race, etc. We shy from the direct-indirect evidence terminology because it is too elusive a guide. Direct evidence has been described as evidence which “if believed by the trier of fact, will prove the particular fact in question without reliance upon inference or presumption.” Randle v. LaSalle Telecommunications, Inc., 876 F.2d 563, 569 (7th Cir. 1989). Yet short of something so implausible as an employer acknowledging that it failed to employ Asian-Americans or to promote women as matter of policy, the process of arriving at an ultimate finding of unlawful discrimination will require an element of inference to tie the evidence of unlawful discrimination to the employment decision. For example, an expression of conviction by an executive who has personnel responsibilities that “new young blood” is needed, followed by the discharge of persons over forty and their replacement by persons under thirty, makes for powerful evidence of age discrimination, but some inferential reasoning is required to link it to the discharge of a particular person. When the cases speak of direct evidence they generally refer to evidence which, if believed, results in an inescapable, or at least highly probable, inference that a forbidden bias was present in the workplace. So it was that in Miles v. M.N.C. Corp., 750 F.2d 867, 875-876 (11th Cir. 1985), a slur about the ability of blacks by a person who had responsibility for hiring, coupled with the presence of very few blacks on the payroll, was taken as direct evidence of unlawful discrimination. Similarly, in Fields v. Clark Univ., 817 F.2d at 933, evidence of sexual harassment and sexual innuendo was treated by the trial judge as strong — for which the Court of Appeals read “direct” — evidence of a pervasively sexist attitude on the part of male members of a university sociology department. In Trans World Airlines, Inc. v. Thurston, 469 U.S. at 121, one of the early instances in which the direct-indirect evidence dichotomy was applied, the evidence, indeed, required no inferences to be drawn. There was undisputed evidence that the airline had a policy of allowing captains who became disqualified to be eligible for duty as flight engineers and to be entitled to bump less senior flight engineers. Captains over the age of sixty, however, as matter of policy, were not entitled to the flight engineer positions. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Court undertook to resolve conflict among the Federal Courts of Appeal about the allocation of evidentiary burden in cases in which “it has been shown that an employment decision resulted from a mixture of legitimate and illegitimate motives.” Id. at 232. There was powerful evidence in Price Waterhouse that partners had appraised a candidate for partnership, Hopkins, with gender stereotypes in mind. The partner charged with explaining to Hopkins why her status was on hold, advised Hopkins she “should walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. at 235. Price Waterhouse decided that if a plaintiff in an unlawful discrimination case shows that an impermissible motive played a part in an employment decision, an employer may not prevail by showing, as in McDonnell-Burdine, a legitimate reason for its decision; the employer “instead must show that its legitimate reason, standing alone, would have induced it to make the same decision.” Price Waterhouse v. Hopkins, 490 U.S. at 252. Unlawful discrimination cases decided since Price Waterhouse have reverted to a direct evidence vocabulary absent from the plurality opinion of the Court, but what is involved in those cases is an assessment whether there has been strong evidence that an impermissible motive was involved in an employment decision. See and compare Randle v. LaSalle Communications, Inc., 876 F.2d at 570; Gagne v. Northwestern Natl. Ins. Co., 881 F.2d 309, 316 (6th Cir. 1989); Lynch v. Belden & Co., 882 F.2d 262, 269 n.6 (7th Cir. 1989); Blake v. J.C. Penney Co., 894 F.2d 274, 278 (8th Cir. 1990); Jackson v. Harvard Univ., 900 F.2d 464, 467-468 (1st Cir. 1990); Caban-Wheeler v. Elsea, 904 F.2d 1549, 1555 (11th Cir. 1990); Ramsey v. City & County of Denver, 907 F.2d 1004, 1007-1008 (10th Cir. 1990); Burns v. Gadsden State Community College, 908 F.2d 1512, 1518 (11th Cir. 1990); Chamberlin v. 101 Realty, Inc., 915 F.2d 111, 779-782 (1st Cir. 1990). We return, at long last, to the facts in this case. There had been evidence adduced by the plaintiff through a former employee (who had hoped to be selected regional manager and left after Gerry Garrett had been selected) that Garrett, when examining the plaintiffs résumé, expressed the thought that the resume described someone “way too old for the job.” There had also been evidence that Garrett wanted “high energy level” (it could be code for youth) in certain jobs. Appraised in the light of Garrett’s having hired Johansen in preference to younger applicants, the evidence is weak beer to support the proposition that Johansen’s discharge nine months later was at least partially infected with age bias. Stray remarks suggestive of impermissible bias do not constitute the sort of evidence that places a case in the mixed motive category and requires the employer to prove that its decision was made only on the basis of legitimate criteria. It was, therefore, correct to instruct the jury that, if the employer had advanced a legitimate business purpose in discharging Johansen, the burden fell back to Johansen to prove that the employer’s explanation was a pretext. The record did not establish the prerequisite for an instruction that the burden fell on NCR to prove that it would have made the same decision even if age had not been a factor. See Williamson v. Feinstein, 311 Mass. 322, 324 (1942); Back v. Wickes Corp., 375 Mass. 633, 638 (1978). The plaintiff had not approached establishing that age was a factor. Judgment affirmed. Appendix. Extract from Trial Judge’s Charge. In order to prove his case, a discharged plaintiff must establish that he is over 40, which is not disputed in this case. Second, that he was terminated. Which is also undisputed here. And third, that his age was the determining factor in his discharge. Which is disputed here. That is, regardless of the plaintiff’s strengths or weaknesses as an employee, he must prove by a fair preponderance of the credible evidence that the real reason for his termination, the determining factor, as I have called it, was his age. Now, if a plaintiff can establish those elements by direct evidence, he or she may, of course, do so. An example of direct evidence of discrimination would be an employer’s acknowledgement that he had hired Tony, or Chris, sight unseen. But fired her upon learning that Tony, or Chris, is a woman and not a man. That would be an example of direct evidence of discrimination. But the plaintiff may also prove discrimination indirectly, or circumstantially. In that case, a plaintiff must prove, in addition to his age and his termination, that he was qualified for the job; was performing it at a level of the employer’s reasonable, legitimate expectations; and was replaced or succeeded by a younger person. Let me reiterate those. The plaintiff may proceed indirectly or circumstantially, and where he chooses to do so, in addition to proving the discharge and being over 40, he must also prove by a fair preponderance of the credible evidence that he was qualified for the job; was performing it at a level of the employer’s reasonable, legitimate expectations; and was replaced or succeeded by a younger person. If a plaintiff fails to establish those elements by a preponderance of the evidence, then the defendant prevails, without more. However, if the plaintiff has proved those elements, it becomes the defendant’s obligation to articulate a nondiscriminatory reason for the discharge. That is, to come forward with a legitimate, age-neutral basis for its action. Now, the defendant is not obliged to show that it made a correct business decision with which you or another employer would necessarily agree. Rather, the defendant’s obligation is limited to presenting a non-discriminatory basis for its decision. If the defendant does so plausibly, then the plaintiff, in order to prevail, must prove that the employer’s stated reasons are a pretext for age discrimination; that is, that the employer’s explanation is only an attempt to mask the real reason for the discharge. The plaintiffs age. If the plaintiff has not proved discrimination directly, or the foregoing elements circumstantially, you should return a verdict for the defendant. If the' plaintiff has proved those elements by a fair preponderance of the credible evidence, to your satisfaction, you should return a verdict for the plaintiff. Section 623(a)(1) provides: “It shall be unlawful for an employer (1) to fail or refuse to hire or to discharge any individual or otherwise discrimiríate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” Subsection IB of § 4 of G. L. c. 15IB, inserted by St. 1984, c. 266, § 6, provides in pertinent part, “It shall be an unlawful practice: . . . [fjor an employer in the private sector, by himself or his agent, because of the age of any individual, to refuse to hire or employ or to bar or to discharge from employment such an individual, or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.” On the date NCR discharged Johansen, December 5, 1980, the organization of the statute was somewhat different, but the substantive provisions were, for purposes of this case, the same. The elements of the prima facie case in a hiring case involve establishing that the job seeker “applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). By analogy, in a discharge case, the plaintiff, to establish a prima facie case, must produce evidence that the plaintiff was discharging the responsibilities of the job capably and was fired under circumstances which give rise to an inference of unlawful discrimination. The parties do not dispute, nor should they, the applicability of guidelines de

Andover Newton Theological School, Inc. vs. Continental Casualty Company. Suffolk. November 7, 1990. February 19, 1991. Present: Liacos, C.J., Wilkins, Abrams, Lynch, & Greaney, JJ. Insurance, Construction of policy, Liability insurance, Coverage. Indemnity. Wilful, Wanton, or Reckless Conduct. A finding of wilfulness under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (1988), if based on a finding of “reckless disregard as to whether [a defendant’s] conduct is prohibited by federal law,” did not constitute “deliberate or intentional . . . wrongdoing” such as to preclude indemnification by an insurer under the public policy of Massachusetts as codified in G. L. c. 175, § 47 Sixth (b), precluding an insurer from insuring “any person against legal liability for causing injury, other than bodily injury, by his deliberate or intentional crime or wrongdoing.” [352-353] Certification of a question of law to the Supreme Judicial Court by the United States Court of Appeals for the First Circuit. Leonard F. Clarkin (Harry C. Beach with him) for the plaintiff. Patricia A. Gotschalk of the District of Columbia (Joan M. Griffin with her) for the defendant. Terence P. O’Malley & William E. Searson, III, for University of Massachusetts, amicus curiae, submitted a brief. Wilkins, J. The United States Court of Appeals for the First Circuit has certified a question pursuant to S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981), concerning G. L. c. 175, § 47, Sixth (6) (1988 ed.). That statute precludes an insurance company from insuring “any person against legal liability for causing injury, other than bodily injury, by his deliberate or intentional crime or wrongdoing.” A jury sitting in the United States District Court for the District of Massachusetts found that the plaintiff (Andover Newton) had wilfully violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. (1988). The case was considered on appeal in Linn v. Andover Newton Theological School, Inc., 874 F.2d 1 (1st Cir. 1989), where liability for the discharge of a sixty-two year old tenured professor was upheld. The trial judge had instructed the jury that an entity acts “willfully if it knows its conduct was prohibited by federal law or if it acts in reckless disregard as to whether its conduct is prohibited by federal law.” The jury was not asked to, and did not, indicate whether its finding of wilfulness was based on one or the other, or perhaps even both, of the theories on which it could have found wilfulness. Thereafter, Andover Newton brought an action in the same court seeking a determination, among other things, that its insurer, the defendant Continental Casualty Company (Continental), is obliged to indemnify it for the loss occasioned by its violation of the ADEA. A District Court judge, who had been the trial judge in the underlying action, ruled that because of the statute (cl. Sixth [6]) Continental was not obliged to indemnify Andover Newton for the loss arising from its violation of the ADEA. There is no suggestion that Continental’s policy of insurance did not purport by its terms to cover Andover Newton’s ADEA liability. Andover Newton appealed from an order that allowed Continental’s motion for summary judgment on Andover Newton’s claim for indemnity. The Court of Appeals for the First Circuit certified a single question to this court: “Does a finding of willfulness under the Age Discrimination in Employment Act (ADEA), if based on a finding of ‘reckless disregard as to whether [defendant’s] conduct is prohibited by federal law,’ constitute ‘deliberate or intentional. . . wrongdoing’ such as to preclude indemnification by an insurer under the public policy of Massachusetts as codified at Mass. Gen. L. ch. 175, § 47 Sixth (b)?” The answer to the question is “no.” Only one opinion of this court (and none of the Appeals Court) has construed cl. Sixth (b), and that opinion provides only limited assistance in answering the certified question. In J. D’Amico, Inc. v. Boston, 345 Mass. 218, 225-226 (1962), an insurer sought unsuccessfully to rely on cl. Sixth (6) to avoid any obligation to indemnify an insured against property damage arising from trespass committed by mistake. The insured contractor had allegedly cut down trees outside the area of a taking and without the authorization of the landowner. This court said that, if the contractor cut the trees by mistake, cl. Sixth (6) did not forbid an insurer from providing coverage against any loss incurred. A trespass by mistake was not a “deliberate or intentional crime or wrongdoing” within the meaning of cl. Sixth (6). Id. at 226. Here we deal with conduct that may not have been a deliberate or intentional, and thus knowing, violation of Federal law. The conduct in this case, although a violation of law, may have been undertaken with reckless disregard as to whether it was unlawful. The discharging of a tenured professor was intentional. The cutting of the trees in the D’Amico case was intentional. The fact that a wrongful act was committed intentionally, however, does not alone bar coverage. That bar arises only if an intentionally committed, wrongful act was also done deliberately or intentionally, in the sense that the actor knew that the act was wrongful. Therefore, although reckless disregard as to the lawfulness of one’s conduct may be wilful conduct for the purposes of the ADEA, and for other purposes (see Commonwealth v. Welansky, 316 Mass. 383, 401 [1944]), it is not conduct known by the actor to be unlawful and, therefore, is not deliberate or intentional wrongdoing. Indifferent or reckless wrongdoing is not deliberate or intentional wrongdoing. In Sheehan v. Goriansky, 321 Mass. 200, 202-203 (1947), the court considered the question whether a recklessly inflicted injury causing death could be an injury caused by accident. As a matter of public policy, any provision for indemnification against liability due to an intentional wrong was said to be void. Id. at 203. The Sheehan case concerned events that occurred before cl. Sixth (b) was amended to add the bar to coverage now stated in it, and thus the court could not rely on the easy answer that in all circumstances cl. Sixth (b) exempts from that bar, and therefore allows, coverage for deliberate or intentional wrongdoing causing bodily injury. The court held that harm due to reckless conduct would fall within an injury “caused by accident” and that insuring for liability from such conduct would not violate public policy. Id. at 205. In its certification to this court, the Court of Appeals commented that the Sheehan opinion “suggests that Massachusetts may recognize a difference for purposes of insurance coverage between deliberate and reckless conduct, despite the fact that the two may be legally equivalent for other purposes.” Clause Sixth (b) recognizes such a distinction, as did the Sheehan opinion. The answer to the certified question is “no.” The insurance policy did provide, however, that the loss insured against did not cover “matters which shall be deemed uninsurable under the law pursuant to which this policy shall be construed.” An insurer may, of course, resolve uncertainties in the scope of cl. Sixth (b) by defining its own coverage exclusion in its insurance policy. The certified question assumes, we think correctly, that cl. Sixth (¿>) codifies the entire public policy of the Commonwealth that would bear on the insurability of losses caused by a reckless disregard of the lawfulness of conduct, and that, therefore, the common law developed before cl. Sixth (b) was amended to express its public policy view has no continuing significance.

STEFANAC v CRANBROOK EDUCATIONAL COMMUNITY (AFTER REMAND) Docket No. 82317. Argued March 8, 1989 (Calendar No. 7). Decided July 5, 1990. Judith Stefanac brought an action in the Oakland Circuit Court against Cranbrook Educational Community, alleging wrongful discharge, sex discrimination, and termination of employment in violation of public policy. The court, Robert C. Anderson, J., relying on Leahan v Stroh Brewery Co, 420 Mich 108 (1984), granted the defendant’s motion for accelerated judgment because plaintiff failed to tender consideration, and therefore the release executed by the plaintiff barred her claims. Thereafter, the plaintiff, on rehearing, sought the court’s consent to tender the disputed consideration and refile her suit. The court affirmed its previous ruling, dismissing the complaint with prejudice. The Court of Appeals, Beasley and C. L. Horn, JJ. (Bronson, P.J., not participating), affirmed in an unpublished opinion per curiam (Docket No. 89512). The Supreme Court vacated the judgment of the Court of Appeals and remanded the case for consideration of plaintiff’s alternate argument whether her offer to tender the disputed consideration was made within a reasonable time. 428 Mich 903 (1987). On remand, the Court of Appeals, Beasley, P.J., and Michael J. Kelly and Maher, JJ., held that the offer to tender the disputed consideration had been made within a reasonable time and instructed the trial court to issue an order allowing the plaintiff thirty days to make restitution (Docket No. 101319). The defendant appeals. In an opinion by Justice Brickley, joined by Chief Justice Riley and Justices Cavanagh, Boyle, and Griffin, the Supreme Court held: Where a plaintiff has entered into a settlement agreement, of consideration recited in the agreement must occur not only within a reasonable time after execution of the agreement, but, in all cases, prior to or simultaneously with the commencement of any proceeding raising a legal claim in contravention of the agreement. References Am Jur 2d, Compromise and Settlement §§ 7, 8,13. Timeliness of tender or offer of return of consideration for release or compromise, required as condition of setting it aside. 53 ALR2d 757. 1. Settlement agreements are binding until rescinded for cause. Tender of consideration received is a condition precedent to the right to repudiate a contract of settlement. The law favors settlements, and a party entering into a settlement agreement, offering adequate consideration, is entitled to rely on the terms of the agreement. A compromise and release should not be confused with the law of contract. The very essence of a release is to avoid litigation, even at the expense of strict right. One who seeks to repudiate or avoid a compromise settlement or release and revert to the original right of action must place the other party in statu quo, absent waiver or fraud in the execution. In this case, the plaintiff’s allegations of fraud are insufficient to bring the claim within the exception, and the defendant has not waived the obligation to tender. The plaintiff made no effort to raise the validity of the release; rather, she merely ignored the existence and terms of the agreement and brought an action in contravention of it, while retaining its benefits. 2. A plaintiff must tender restitution promptly and without unreasonable delay upon discovery of fraud or be held to have ratified the release. Long acquiescence and failure to complain promptly operates, as a matter of law, to reaffirm a contract of settlement and bars litigation. A settlement agreement is binding until rescission by repudiation and tender. Tender is a prerequisite to the right to repudiate. Commencement of a lawsuit is not a proper means to repudiate a settlement. Tender must occur within a reasonable time after learning of the grounds upon which the release and settlement could be repudiated. What is reasonable under the circumstances is a matter of discretion for the trial court. In this case, the trial court had no occasion to rule on the issue because, instead of repudiating the agreement, the plaintiff filed suit in contravention of the terms of the release. 3. Independent of the issue what constitutes a reasonable time within which to repudiate a settlement is the question whether tender is permissible after commencement of an action in contravention of the agreement. As a matter of law, in all cases where a legal claim is raised in contravention of an agreement, the plaintiff must tender the consideration recited in the agreement prior to or simultaneously with filing suit. A defendant is entitled to rely on the binding nature of an agreement. A plaintiff is not entitled to retain the benefit of an agreement and at the same time bring suit in contravention of the agreement. Reversed. Justice Levin, dissenting, stated that where a plaintiff claims, and the court finds, that there would be entitlement to retain recited consideration after a release is set aside because the amount recited as consideration represents payment that accrued and was owing to the plaintiff separate and apart from the claims that were settled by the release, and that no consideration in fact was paid to settle those claims, tender is not required. In deciding whether tender is required before suit in this case the Supreme Court is obliged to accept as true the allegations in the plaintiff’s complaint and in her response to the motion for summary disposition, and to proceed on the assumptions, absent judicial determination at the trial level to the contrary, both that the release in fact was obtained by fraud or duress and that the defendant indeed owes the plaintiff two weeks’ vacation pay and thus an amount equal to the consideration recited in the release. In addition, it exalts form over substance to require tender before suit where it is apparent that the defendant would not have accepted the tender had it been promptly offered. A person who has signed a release should not be permitted to proceed in an action in disaffirmance of the release until the consideration actually paid for the release itself has been returned. The purpose of the tender rule is not to provide a fair and necessary check against the instability of contracts, but rather to provide a check against the unjust enrichment of the rescinding party that would result if the rescinding party were allowed to retain the benefits of the contract attacked. The factual dispute in an action to set aside a release does not involve the merits of the plaintiff’s underlying claim against the defendant that were resolved by the release if it is valid. It is only if and when the release is set aside that the plaintiff should be able to put the defendant to the expense of defending against the underlying claim. The consideration paid by the defendant to the plaintiff at the time the release is signed does not provide protection against a claim that the release itself was procured by fraud or duress, or protect the very instrument that is intended to ensure forbearance of litigation. If it is judicially determined in this case that the plaintiff was coerced into signing the release, the release should be set aside and she should be required to return the payment before obtaining a determination on the merits of her claims of wrongful discharge unless it is also so judicially determined that the defendant owes her that amount as additional vacation pay. The majority’s reading of Leahan is incorrect and contradicts a well-established tenet of the law of contracts. Parol evidence is always admissible to show that a statement in a document is not true. Tender of consideration, although a precondition to an action at law, is not a precondition to commencement of an action seeking equitable relief. The majority errs in concluding that the abolition of the procedural distinction between law and equity in some way diminishes the power of a court to order rescission in accordance with the rules and practices developed in equity. Modem procedural reforms, in conjunction with the consolidation in one court of jurisdiction of both equitable and legal claims, eliminate the necessity of tender as a prerequisite to commencement of an action seeking to obtain rescission. Under unified proceedings, a court may enter a judgment conditioning rescission on the return of consideration received by the plaintiff, thus effectuating the purpose of the tender rule, the avoidance of unjust enrichment of the residing party. Contracts to relinquish the enforcement of legal rights warrant at least as much judicial surveillance as other contracts. Justice Archer, dissenting, stated that an inflexible application in this case of the rule of Leahan that a party to a contract of settlement must tender any consideration received as a condition precedent to repudiating the contract is neither complete nor fair. Where there is a bona fide, good-faith dispute regarding whether consideration recited in a release agreement actually amounted to consideration, the rule of Leahan is unworkable. Where, aside from the transaction, the person seeking restitution would be entitled to retain what the other gave as a result of the agreement, there is no enrichment as a result of the agreement even though what was given is retained, nor does it diminish the net assets of the other. Clearly, a plaintiff who contests the sufficiency of the consideration supporting a release agreement should be allowed to withhold tender of the alleged consideration until there is a judicial determination that consideration was in fact paid. If it is found that the consideration was paid, the plaintiff should be required to tender that amount. However, if the court determines that the amount paid to the plaintiff for the release was already owed to the plaintiff, the plaintiff should be allowed to retain that amount and proceed with any legal action. In this case, the plaintiff unquestionably was owed her wages find accrued vacation pay. A question of fact exists regarding whether additional vacation pay was owed, and any amount determined to be in excess of that owed the plaintiff should be tendered to the defendant within a reasonable time following resolution. However, the plaintiff should be allowed to amend her complaint to request rescission. 164 Mich App 709; 417 NW2d 582 (1987) reversed. Compromise and Settlement — Release — Consideration — Tender — Reasonable Time. Where a plaintiff has entered into a settlement agreement, tender of consideration recited in the agreement must occur not only within a reasonable time after execution of the agreement, but, in all cases, prior to or simultaneously with the commencement of any proceeding raising a legal claim in contravention of the agreement. Bell & Gardner, P.C. (by Mary E. Rosick and Cynthia Yott), for the plaintiff. Dickinson, Wright, Moon, Van Dusen & Freeman (by John Corbett O’Meara, Thomas G. Kienbaum, and Elizabeth Hardy) for the defendant. AFTER REMAND Brickley, J. The issues presented in this case are whether a plaintiff, before commencing a suit which disregards the terms of a release, must tender the consideration recited in the release and, if so, at what point before or during the proceedings must this tender take place. We hold that when a plaintiff has entered into a settlement agreement tender of consideration recited in the agreement must occur not only -within a reasonable time after execution of the agreement, but in all cases prior to or simultaneously with the commencement of any proceeding raising a legal claim in contravention of the agreement. i On November 16, 1983, plaintiff resigned as personnel director of Cranbrook Educational Community. In connection with her termination, plaintiff signed a document entitled "Release of Claims.” The release is dated November 16, 1983, and reads in pertinent part as follows: For and in consideration of Cranbrook Educational Community’s (Cranbrook) acceptance of the voluntary resignation of Judith Stefanac (Stefanac) and Cranbrook’s further agreement to pay Stefanac for two weeks, less applicable state and federal withholding taxes, Stefanac, for herself, her heirs, administrators and executors, does hereby fully and forever release, acquit and discharge Cranbrook, its agents, servants and representatives, of and from any and all claims, demands, actions and causes of action of every kind, nature and description which Stefanac may have had, may now have or may hereafter have by reason of any matter, cause, act or omission arising out of or in connection with Stefanac’s employment with and/or resignation from Cranbrook. After signing the release plaintiff received a check from defendant for $2,090.65. The check was purportedly intended to be payment for four weeks accrued vacation time and two weeks’ severance pay. Plaintiff filed suit against Cranbrook on August 9, 1984, alleging wrongful discharge, sex discrimination, and termination in violation of public policy. Subsequently, defendant filed a motion for accelerated judgment, arguing that the release barred plaintiff’s claims. In response, plaintiff filed an affidavit challenging the validity of the release. The parties agreed that plaintiff's affidavit raised a question of fact, and therefore the motion was denied without prejudice. Following a discovery period of one year, defendant again moved for dismissal of the action on the grounds that the release barred suit. Defendant also argued at this point, that plaintiff’s failure to tender the consideration received in exchange for the release prevented her from now attempting to rescind the agreement. Defendant’s position was based on this Court’s decision in Leahan v Stroh Brewery Co, 420 Mich 108; 359 NW2d 524 (1984). Plaintiff conceded that Leahan merely reaffirmed the law as it had existed in the past, but asserted that the facts of Leahan differed from the instant case. Further, plaintiff maintained that the release was void for lack of consideration and that she was entitled to all money received as a result of her termination. The trial court interpreted Leahan as dispositive of the issue and granted defendant’s motion. Three weeks later, plaintiff filed a motion for rehearing. On rehearing, plaintiff sought the trial court’s consent to tender the disputed consideration and, following tender of the money, the opportunity to refile her suit against defendant. This is the first indication that plaintiff was willing to repay the consideration recited in the release. The trial judge affirmed the previous ruling, dismissing plaintiff’s complaint with prejudice. Plaintiff appealed as of right, raising two issues. Plaintiff continued to argue that she was entitled to all the money received and therefore that tender was not required in order to maintain the action. Alternatively, plaintiff argued that her offer to tender back the disputed consideration was within a reasonable time under the circumstances of the case. Basing its analysis on an examination of Leahan, the Court of Appeals held: [T]he consequence of the Leahan decision is that if a release recites that consideration was paid and if money was in fact paid, a plaintiff may not argue that the money was not actually consideration, regardless of any evidence to that effect. That seems to be what Leahan holds. If not, we believe it is up to the Supreme Court to say so. Consequently, we affirm.[] [Emphasis added.] However, the Court of Appeals did not directly address plaintiff’s alternate argument that tender of the disputed consideration occurred within a reasonable time. Consequently, we issued an order vacating the judgment of the Court of Appeals and remanded the case for consideration of the second issue raised by plaintiff. 428 Mich 903 (1987). On remand, the Court of Appeals ruled that “plaintiff’s offer to tender back the disputed consideration was within a reasonable time.” The Court instructed the trial judge to issue an order which would allow plaintiff thirty days to make restitution to the defendant. Further, the trial court held: If such restitution is made, trial shall be had on the merits, including determination of the validity of the release. If such restitution is not made, judgment may enter for defendant. Nothing in this opinion is intended to preclude the trial judge from making appropriate findings of fact after trial, including resolution of how much, if any, of the monies paid plaintiff were in consideration of the release.[] We granted defendant’s application for leave to appeal. 430 Mich 892 (1988). ii It is a well-settled principle of Michigan law that settlement agreements are binding until rescinded for cause. Further, tender of consideration received is a condition precedent to the right to repudiate a contract of settlement. See, generally, Randall v Port Huron, St C & M C R Co, 215 Mich 413; 184 NW 435 (1921); Kirl v Zinner, 274 Mich 331; 264 NW 391 (1936); Leahan v Stroh Brewery Co, supra. The policy consideration underlying the general rule is that the law favors settlements. A party entering into a settlement agreement, offering adequate consideration, is entitled to rely on the terms of the agreement. The rationale for the rule was explained further by this Court in Kirl v Zinner:___ A compromise and release is not to be confused with the law of contract, in which equivalents are exchanged, for the very essence of a release is to avoid litigation, even at the expense of strict right. * * * It is a general and salutary rule that one repudiating or seeking to avoid a compromise settlement or release, and thereby revert to the original right of action, must place the other party in statu quo, otherwise the very fact of payment, in consideration of the compromise or release, will likely operate as a confession of liability. [274 Mich 334-335. Emphasis in original.] Plaintiff asserts that she should be excepted from this rule because the release was void and not merely voidable. The validity of the release was challenged by plaintiff on the grounds that it lacked consideration and was procured under duress and fraud. Specifically plaintiff asserts that defendant misrepresented the terms of the agreement. Moreover she asserts that defendant knew that plaintiff was legally entitled to the money she received, that she needed the money to support her family, and that defendant waved the checks at her refusing to give plaintiff any funds unless she signed the release. Plaintiff contends that although the release recites that consideration was received, she in fact did not get anything in exchange for signing the settlement agreement. Therefore tender was not necessary prior to filing suit because "there is nothing to be returned to restore the status quo ante.” However, plaintiff admits that she signed the release and that she received four checks. Subsequently she endorsed and cashed the checks received. We start with the presumption that the plaintiff executed the release knowingly and that the recited consideration was received. Porth v Cadillac Motor Car Co, 198 Mich 501; 165 NW 698 (1917). Kirl v Zinner, supra. The plaintiff has the burden of showing, by a preponderance of the evidence, that the release is unfair or incorrect on its face. Id. Even in light of these presumptions and the plaintiff’s burden, the plaintiff must tender the recited consideration before there is a right to repudiate the release. Id. The only recognized exceptions in Michigan are a waiver of the plaintiff’s duty by the defendant and fraud in the execution. Plaintiff has not raised either exception and thus is not relieved of the duty to tender the consideration recited in the release. Our reports are replete with authority that negate plaintiff’s contentions. In Niederhauser v Detroit Citizens’ St R Co, 131 Mich 550, 552; 91 NW 1028 (1902), we held: The law is well settled that, if one seeks to rescind a settlement on the

ROSEMARIE L. GADSON v. NORTH CAROLINA MEMORIAL HOSPITAL and THE STATE PERSONNEL COMMISSION No. 8910SC889 (Filed 19 June 1990) State § 12 (NCI3d) — promotion of one employee over another —no retaliation for earlier discrimination grievance The State Personnel Commission did not err in concluding that petitioner failed to show that respondent hospital’s stated reasons for promoting another employee over her were merely a pretext for petitioner’s having prevailed in a racial discrimination claim against respondent ten years earlier, sincé respondent had legitimate reasons for designing the selection criteria as it did; size and complexity of respondent hospital made experience there a legitimate consideration in filling the position so that petitioner’s experience in other employment was not considered; any supervisory experience petitioner acquired between 1975 and 1980 was not given more weight because the department was smaller and less complex at the time; experience of the employee who was promoted was weighted heavily because most of it was after 1981 when the department installed more sophisticated equipment and the duties of department personnel were expanded; differences in the applicants’ job performance evaluations were not significant; there was no evidence that respondent knew, at the time of the promotion decision, of the other employee’s alleged mood swings and so this could not be considered in the decision; petitioner’s tardiness was considered in making the promotion decision; and eight years after petitioner had filed and prevailed on a grievance alleging racial discrimination by the department director, he rehired petitioner in another position. Am Jur 2d, Job Discrimination §§ 129, 132, 146, 147, 149, 150, 747, 754. APPEAL by petitioner from judgment entered 25 May 1989 by Judge James H. Pou Bailey in WAKE County Superior Court. Heard in the Court of Appeals 7 March 1990. This appeal involves respondent North Carolina Memorial Hospital’s decision in 1987 to deny a promotion to petitioner Rosemarie L. Gadson, a black woman who prevailed in a racial discrimination claim against the Hospital. She now claims the Hospital’s decision not to promote her in 1987 was in retaliation for her 1977 grievance. In 1977, after several years in the Hospital’s Communications Center, Gadson was denied a promotion to the position of Communications Center Supervisor. The position' was awarded to a white woman. Andrew Melvin, Director of the Hospital’s Communications Department, had made the personnel decision. On hearing Gadson’s grievance, the Personnel Commission found that Gadson had been denied the 1977 promotion because of racial discrimination and awarded her back pay and attorney’s fees. Gadson continued to work in the Communications Department until September 1980, when she moved out of state with her family. In August 1985, Gadson returned to North Carolina. Beverly Williams, the Medical Center Telecommunications Supervisor, rehired Gadson as a Medical Center Telecommunications Specialist I (MCTS I). Melvin, who was still Director of the Communications Department, approved Williams’ decision to rehire Gadson. In March 1987, Gadson and another MCTS I, Wendy L. Freeland, applied for a promotion to MCTS II, a supervisory position. Gadson and Freeland were the only two applicants for the position. Williams, the Medical Center Telecommunications Supervisor, was responsible for filling the vacant MCTS II position. She drafted selection criteria and questions for the applicants and interviewed each applicant. Melvin, the Communications Center Director, reviewed the selection criteria and questions, participated in each applicant’s interview, and reviewed each applicant’s written materials. After conferring with Melvin and two members of the Personnel Department, Williams promoted Freeland to MCTS II. In October 1987, Gadson filed a grievance against the Hospital alleging that she had been unfairly denied the promotion. On 27 April 1988, Gadson’s case was heard by an Administrative Law Judge. The recommended decision of the A.L.J. concluded that Gadson had made a prima facie showing of retaliation and that the Hospital had shown legitimate nondiscriminatory reasons for promoting Freeland rather than Gadson. The A.L.J. then concluded that the Hospital’s stated nondiscriminatory reasons were only a pretext for retaliation, stating that the hiring process and selection criteria were slanted against Gadson. The State Personnel Commission adopted all of the A.LJ.’s findings of fact and those conclusions of law regarding Gadson’s prima facie case of retaliation and the Hospital’s showing of legitimate nondiscriminatory reasons for its action. However, the Commission disagreed with the A.L.J.’s conclusion that “but for the earlier race discrimination case, Petitioner would have been chosen above Ms. Freeland for the promotion to MCTS II.” Instead, the Commission concluded that petitioner had failed to carry her burden of proving that the Hospital’s stated reasons were merely a pretext for retaliation for past protected activity. Accordingly, the Commission upheld the Hospital’s decision not to promote Gadson to MCTS II. On appeal, the superior court affirmed the Personnel Commission’s decision. Petitioner appeals. Broughton, Wilkins & Webb, by William Woodward Webb, for petitioner appellant. Attorney General Lacy H. Thornburg, by Assistant Attorney General J. Charles Waldrup, for the respondent appellee Hospital. ARNOLD, Judge. N.C. Gen. Stat. § 126-36 in pertinent part provides: “Any State employee . . . who has reason to believe that . . . promotion . . . was denied him ... in retaliation for opposition to alleged discrimination . . . shall have the right to appeal directly to the State Personnel Commission.” “The ultimate purpose of G.S. 126-36, G.S. 143-422.2, and Title VII (42 U.S.C. 2000(e), et seq.) is the same; that is, the elimination of discriminatory practices in employment.” Dept. of Correction v. Gibson, 308 N.C. 131, 141, 301 S.E.2d 78, 85 (1983). Petitioner does not dispute any of the Commission’s findings of fact, nor does she dispute the conclusions of law regarding her prima facie case of retaliation and the Hospital’s showing of legitimate nondiscriminatory reasons for its personnel decision. Therefore, the question raised by petitioner’s primary assignment of error is whether the Commission erred in concluding that petitioner failed to show that the Hospital’s stated reasons were merely a pretext for retaliation. Petitioner contends the Commission’s order was “[unsupported by substantial evidence ... in view of the entire record as submitted.” N.C. Gen. Stat. § 150B-51(b)(5). The “whole record” test requires this Court to consider all the evidence, both that which supports the Commission’s decision and that which detracts from it. Leiphart v. N.C. School of the Arts, 80 N.C. App. 339, 344, 342 S.E.2d 914, 919, cert. denied, 318 N.C. 507, 349 S.E.2d 862 (1986). Gadson argues that substantial evidence supports the conclusion that the Hospital’s stated reasons for not promoting her were pretextual because the Hospital had weighted the hiring process and selection criteria against her. Specifically, she argues that the Hospital underemphasized her telecommunications experience outside the Hospital, her supervisory experience at the Hospital, and evaluations of her job performance as a MCTS I, while overemphasizing Freeland’s experience in the Communications Center. She also argues that the Hospital considered her tardiness, but did not consider Freeland’s behavior problems. There is, however, substantial evidence in the record that the Hospital had legitimate reasons for designing the selection criteria as it did and that, therefore, the Hospital’s stated reasons for its decision were not a pretext for discrimination. Williams testified that the size and complexity of the Hospital made experience at the Hospital a legitimate consideration in filling the MCTS II position. Melvin testified that any supervisory experience Gadson acquired between 1975 and 1980 was not given more weight because the department was smaller and less complex at that time. Similarly, Freeland’s experience in the Communications Center was weighted heavily because most of it was after 1981, when the Center installed more sophisticated equipment and the duties of Center personnel were expanded. Melvin testified that the differences in the applicants’ job performance evaluations were not significant because both received high ratings and any slight differences were attributable to different supervisors’ evaluation styles. Finally, there was no evidence that the Hospital knew, at the time of the promotion decision, of Freeland’s alleged mood swings, so these behavior problems could not have been considered. Gadson’s tardiness was, however, documented by the Hospital and was considered in making the promotion decision. Moreover, evidence showed that in 1985, eight years after Gadson had filed and prevailed on a grievance alleging racial discrimination by Melvin, the Communications Department Director, he approved the hiring of Gadson as a MCTS I. Petitioner offers no explanation for why Melvin would retaliate against her in 1987 for her 1977 opposition to discrimination when he did not do so in 1985. From the whole record, substantial evidence supports the Commission’s conclusion that the Hospital’s stated reasons were legitimate and not a pretext for discrimination. Conversely, there is lacking substantial evidence that retaliation for past opposition to discrimination was the Hospital’s “predominant reason,” see Ross v. Communications Satellite Corp., 759 F.2d 355 (1985), for denying Gadson the promotion. Petitioner makes two further assignments of error under N.C. Gen. Stat. § 150B-51. She contends first that the Personnel Commission heard new evidence after receiving the A.L.J.’s recommended decision, and second, that the agency did not state the specific reasons for not adopting the A.L.J.’s recommended decision. We reject both these arguments. First, the Commission rejected the A.L.J.’s conclusion that the Hospital’s reasons for not promoting Gadson were pretextual by stating in part that “said conclusion is inconsistent with prior decisions of this Commission.” This statement in no way shows the Commission considered new evidence after receiving the A.L.J.’s recommended decision. Second, the Commission stated that Gadson had failed to carry the burden of showing that the Hospital’s reasons for not promoting her were pretextual and discussed the shortcomings of Gadson’s evidence. This is a sufficient statement of specific reasons for rejecting the A.L.J.’s recommended decision. Petitioner’s remaining assignments of error essentially repeat the substance of those already reviewed and we reject them without further discussion. No error. Judges JOHNSON and Orr concur.

HALL v KELSEY-HAYES COMPANY Docket No. 113326. Submitted March 15, 1990, at Detroit. Decided June 18, 1990. Leave to appeal applied for. William T. Hall brought an action under the Civil Rights Act in the Wayne Circuit Court against his employer, Kelsey-Hayes Company, alleging racial discrimination and improper retaliation. Defendant asserted that its actions were in accord with its collective bargaining agreement with its employees and moved for summary disposition on the ground that the claims were preempted by § 301 of the Labor Management Relations Act, 29 USC 185. The circuit court, Roland L. Olzark, J., denied defendant’s motion. The Court of Appeals granted defendant’s application for leave to appeal. The Court of Appeals held: 1. The trial court properly found that plaintiffs discrimination claims are not preempted by §301. Where the plaintiff alleges discriminatory disparate treatment and the defendant claims that plaintiffs treatment was in accordance with the terms of the collective bargaining contract, there is no federal preemption of plaintiffs discrimination claims. 2. Plaintiffs claims are not barred by the provisions of the Labor Management Relations Act regarding exhaustion of available remedies and the period of limitation for § 301 actions. Affirmed. 1. Labor Relations — Federal Preemption. State courts are not preempted from determining questions of law involving labor relations where such questions do not involve construing a collective bargaining agreement. 2. Labor Relations — Labor Management Relations Act — Fed- eral Preemption. State law discrimination claims which assert denial of rights under a collective bargaining contract require the interpretation of the contract and, therefore, are preempted by the Labor Management Relations Act; however, there is no federal preemption of plaintiffs discrimination claims where the plaintiff alleges discriminatory disparate treatment and the defendant claims that plaintiffs treatment was in accordance with the terms of the collective bargaining contract (29 USC 185). References Am Jur 2d, Civil Rights § 102; Labor and Labor Relations § 1931. See the Index to Annotations under Discrimination; Collective Bairganing; Pre-emption. 3. Civil Rights — Exhaustion of Remedies. The Civil Rights Act does not require a plaintiff to exhaust all available remedies prior to filing suit (MCL 37.2101 et seq.; MSA 3.S48[101]et seq.). Shrauger, Dunn & Aronson, P.C. (by Gary A. Benjamin), for plaintiff. Berry, Moorman, King & Hudson, P.C. (by Thomas M. Sullivan, Sheryl A. Laughren, and Barbara D. Urlaub), for defendant. Before: Reilly, P.J., and Michael J. Kelly and H. E. Deming, JJ. Former circuit judge, sitting on the Court of Appeals by assignment. Michael J. Kelly, J. Defendant Kelsey-Hayes Company appeals from the circuit court’s denial of its motion for summary disposition of plaintiff William T. Hall’s discrimination suit brought under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. We affirm the circuit court. Plaintiff William T. Hall, who is black, has been employed by defendant Kelsey-Hayes Company since 1965. Since 1975, Hall has unsuccessfully tried for a tool and die apprenticeship at Kelsey-Hayes. He was placed in an apprenticeship program briefly but was laid off and then returned to semiskilled production work. Plaintiff later attempted to apply for other apprenticeship programs but defendant denied his application. Plaintiff filed suit against defendant in May of 1986, claiming that defendant’s treatment of him violated the Civil Rights Act. Count i of plaintiffs complaint alleged racial discrimination in denying plaintiff access to apprenticeship programs. It also alleged that he and other black employees were denied wait-listing for apprenticeships, while white employees were allowed to place their names on the list and have been placed in apprenticeship programs. He alleged that this disparate treatment was based upon race. Count n of plaintiffs complaint alleged a claim for improper retaliation against plaintiff by defendant in response to plaintiffs filing a claim with the Michigan Department of Civil Rights. Defendant denied racial discrimination, asserting that plaintiffs layoffs and recalls were in accord with its collective bargaining agreement with its employees. Defendant moved for summary disposition of plaintiffs civil rights action on the ground that the claims were preempted by § 301 of the Labor Management Relations Act, 29 USC 185. Defendant argued that because the issue whether plaintiff could be placed into an apprenticeship program would be controlled by the terms of the collective bargaining agreement, plaintiffs discrimination claims were dependent upon interpretation of the bargaining agreement and, thus, were preempted by federal law. The circuit court disagreed with defendant’s reasoning and denied its motion for summary disposition. The court cited Lingle v Norge Division of Magic Chef, Inc, 486 US 399; 108 S Ct 1877; 100 L Ed 2d 410 (1988), and Smolarek v Chrysler Corp, 858 F2d 1165 (CA 6, 1988), reasoning: The factual determination which must be made to resolve plaintiffs discrimination claim on the defense raised by defendant, is whether defendant took the alleged actions adverse to plaintiff because of his race or color, or solely because defendant felt bound by the collective-bargaining agreement to do so. It does not require the Court to determine whether or not defendant’s interpretation of the agreement is correct as a matter of federal labor law. In other words, the question which must be resolved is the factual one of motivation and not the legal one of interpretation of the collective bargaining agreement. Therefore, under Lingle and Smolarek, the plaintiff’s cause of action is not pre-empted by the nlra and defendant’s motion must be denied. I Defendant argues that the circuit court erred in finding that plaintiffs discrimination claims are not preempted by § 301 of the lmra. Defendant contends that plaintiff’s claims seek to enforce rights under the collective bargaining agreement and are dependent upon the interpretation of the agreement. We disagree. In Lingle, supra, the Supreme Court held that § 301 will preempt a claim based upon state law only where the claim requires interpretation of a collective bargaining agreement. 486 US 413. State courts are not preempted from determining questions of law involving labor relations where such questions do not involve construing a collective bargaining agreement. Id. State law discrimination claims which assert denial of rights under a collective bargaining contract necessarily require the interpretation of the contract, and so are preempted by § 301. Cuffe v General Motors Corp (On Remand), 180 Mich App 394, 395-396; 446 NW2d 903 (1989). However, 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 plaintiffs discrimination claims. Walker v Consolidated Rail Corp, 178 Mich App 451, 456-457; 444 NW2d 199 (1989); Smolarek, supra. Review of plaintiffs complaint indicates that it does not assert denial of rights under the collective bargaining contract but, rather, that defendant treated him differently than similarly situated white employees, who were permitted to enter apprenticeship programs and switch trades. Defendant contends that it was not motivated by racial discrimination, but was only acting according to the terms of the collective bargaining agreement. Thus, the focus of inquiry in this case is not upon the interpretation of the collective bargaining contract, but on whether plaintiff in fact received disparate treatment and whether this treatment was motivated by racial discrimination. Plaintiffs claims are not preempted by § 301 of the lmra. ii Defendant also argues that plaintiffs claims are barred by his failure to exhaust his available remedies under the collective bargaining agreement and by the six-month period of limitation for § 301 actions. Such defenses would be operative if plaintiffs claims were brought pursuant to § 301 of the lmra. However, plaintiffs claims were brought under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., which is the controlling statute. Unlike the lmra, the Civil Rights Act does not require a plaintiff to exhaust all available remedies prior to filing suit, nor does it contain a six-month limitation period. Plaintiffs claim is not barred by the provisions of the lmra. Affirmed.

<p>Non-Argument Calendar.</p>

WILSON v GENERAL MOTORS CORPORATION Docket Nos. 106198, 109438. Submitted October 18, 1989, at Detroit. Decided April 2, 1990. Leave to appeal applied for. Gail L. Wilson was discharged from her employment with General Motors Corporation. Wilson brought an action for damages against General Motors in Wayne Circuit Court, alleging race and gender discrimination in violation of the provisions of the Civil Rights Act and wrongful discharge by breach of an implied contract of continued employment. The jury found that race or gender was a determining factor in defendant’s decision to discharge plaintiff, that an implied contract existed between plaintiff and defendant to the effect that defendant would only be discharged for good cause, and that plaintiff was not discharged for good cause. The jury awarded plaintiff $500,000 for lost wages and benefits and $750,000 for pain and suffering. Defendant moved for judgment notwithstanding the verdict, a new trial or remittitur. The trial court, Richard P. Hathaway, J., denied judgment notwithstanding the verdict, denied the motion for a new trial if plaintiff agreed to remittitur and reduced the award for pain and suffering to $375,000. Defendant appealed. Plaintiff cross appealed. Plaintiff moved for costs and attorney fees pursuant to the Civil Rights Act. The trial court entered an award for costs and attorney fees of $86,730.24. Defendant appealed from the award of costs and attorney fees. The Court of Appeals held: 1. The record fails to support defendant’s claim of prejudice arising out of the alleged misconduct of plaintiff’s counsel during the trial. 2. The trial court did not err in refusing to permit the testimony of a defense witness who had not been put on the witness list as required under a local court rule then in effect. References Am Jur 2d, Appeal and Error §§ 352, 355; Job Discrimination §§1985, 2502, 2503, 2511, 2515, 2520; New Trial §576; Trial §219. Recovery of damages as remedy for wrongful discrimination under state or local civil rights provisions. 85 ALR3d 351. 3. No error requiring reversal arose out of the trial court’s instructions to the jury. 4. The trial court properly allowed plaintiff and another employee of defendant to testify as to their perception of the racial overtones of statements made by a supervisor employed by defendant to plaintiff and other similarly situated employees. 5. Since there was sufficient evidence to support the jury’s determinations that there was both a civil rights violation and an implied contract of continued employment, the trial court properly denied the motion for judgment notwithstanding the verdict. 6. The trial court did not abuse its discretion by entering the award of remittitur on the pain and suffering award. 7. The jury’s award of economic damages clearly reflects inclusion of the sought, but unproved, damages for loss of life insurance and loss of cost of living. Accordingly, the $500,000 award for economic damages should be reduced to $373,578.11. 8. Since the question of entry of costs and attorney fees was not reserved in the order of judgment and the motion for such costs was made subsequent to the claim of appeal, the trial court lacked jurisdiction to amend its prior judgment by an award of costs and attorney fees. The award of costs and attorney fees is set aside without prejudice to plaintiff’s right to renew that motion in the trial court. Affirmed in part and reversed in part. Murphy, J., concurred in part with the majority, but would not have granted remittitur as to economic damages and would not have held that the use of a multiplier in the calculating of attorney fees is improper under the Civil Rights Act. 1. Appeal — Attorney Misconduct — Fair Trial. An attorney’s comments at trial will usually not be cause for reversal on appeal unless they indicate a deliberate course of conduct aimed at preventing a fair and impartial trial or where counsel’s comments were such as to deflect the jury’s attention from the issues involved and had a controlling influence upon the verdict. 2. Civil Rights — Employment Discrimination — Jury Instructions — Standard Jury Instructions. The standard jury instructions relative to employment discrimination are sufficient in themselves to inform the jury as to its duty; it is not error for a trial court to refuse to give supplemental instructions concerning employment discrimination (SJI2d 105.02-105.04). 3. Evidence — Opinion Testimony — Employment Discrimination — Race Discrimination. Minority employees testifying in an employment discrimination suit based on alleged race discrimination may give opinion testimony as to whether a supervisor’s comments to them during the course of their employment had a racial overtone since such testimony is rationally based upon the perception of the witness and would be helpful to a clear understanding of the fact at issue (MRE 701). 4. New Trial — Remittitur — Acceptance of Remittitur — Mail. Acceptance by a plaintiff of remittitur rather than a new trial, when the acceptance is done by mail, is complete at the time of mailing rather than on the date that it is received or processed by the court clerk (MCR 2.107[C][3]). 5. Appeal — Orders — Attorney Fees. A trial court is without jurisdiction to award attorney fees after a claim of appeal has been filed unless the trial court’s order granting judgment provided that the trial court would award such fees (MCR 7.208A). 6. Civil Rights — Attorney Fees — Contingency Fee Agreements. The existence of a contingent fee. arrangement does not preclude an award of attorney fees to a successful plaintiff under the Civil Rights Act; however, the existence of a contingent fee arrangement is one of the factors which a trial court should consider in determining what constitutes a reasonable fee award (MCL 37.2802; MSA 3.548[802]). 7. Civil Rights — Attorney Fees — Evidentiary Hearings. A trial court, when confronted with a challenge to the reasonableness of the attorney fees requested pursuant to the provisions of the Civil Rights Act, should conduct an evidentiary hearing at which an inquiry is made as to the actual services which were rendered and the reasonableness of the requested fees. 8. Civil Rights — Attorney Fees. It is improper for a trial court in awarding attorney fees pursuant to the Civil Rights Act to determine the award of attorney fees by multiplying the total of the actual hourly and daily rates incurred by a plaintiff’s counsel by a multiplier greater than unity without explaining why the case is so exceptional as to warrant application of a multiplier factor. Chambers, Steiner, Mazur, Ornstein & Amlin, P.C. (by Angela J. Nicita and Courtney Morgan, Jr.), for plaintiff. Bodman, Longley & Dahling (by Joseph A. Sullivan, Robert G. Brower and Martha B. Goodloe), for defendant. Before: McDonald, P.J., and Michael J. Kelly and Murphy, JJ. Michael J. Kelly, J. Defendant, General Motors Corporation, appeals from a jury verdict and award of attorney fees in favor of plaintiff, Gail Leslie Wilson. Plaintiff appeals from the circuit court’s grant of remittitur in favor of defendant. Plaintiff, a black woman, was employed by GM’s Assembly Division as a. data preparation operator from December of 1976 to October of 1981, when she was discharged. At the time of her discharge, plaintiff was on a performance improvement plan to increase her rate of production. This plan put her on six months employment probation. Plaintiff became pregnant in April or May of 1981, and this evidently caused her work quality to decline during this performance improvement period. Following her discharge, plaintiff filed suit against defendant for race and gender discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and for wrongful discharge under Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), reh den 409 Mich 1101 (1980). Plaintiff claimed that defendant discriminated against her on the basis of her race and gender by transferring and promoting other workers, who were white women, while refusing to transfer or promote plaintiff. Plaintiff claimed that she was fired because she confronted her supervisor regarding gm’s failure to transfer or promote black female employees and because of her pregnancy. Plaintiff’s Toussaint claim was based upon the verbal promise of one of defendant’s personnel employees at the time plaintiff was hired. Defendant denied discriminating against the plaintiff or otherwise wrongfully discharging her. It claimed that plaintiff was discharged due to her poor job performance. Following trial, the jury found that race or gender was a determining factor in defendant’s decision to discharge plaintiff. It found that a contract existed between plaintiff and defendant that defendant would fire plaintiff only for good cause and that plaintiff was not discharged for good cause. The jury awarded plaintiff $500,000 for lost wages and benefits, plus $750,000 for pain and suffering. Defendant moved for judgment notwithstanding the verdict, a new trial, and remittitur. The circuit court denied defendant’s motions for judgment notwithstanding the verdict or a new trial, but granted remittitur of the pain and suffering award to $375,000 for a total award of $875,000. Plaintiff moved for costs and attorney fees, which the court granted, in the amount of $86,730.24. i Defendant argues that the jury’s verdict must be reversed because improper conduct by plaintiff’s counsel denied defendant a fair and impartial trial. Gm claims that plaintiff’s counsel made improper inflammatory statements regarding unrelated incidents, made repeated references to matters outside the record, and made improper comments regarding defense witnesses. We find no error requiring reversal. When reviewing asserted improper conduct by a party’s lawyer, we must first determine whether the lawyer’s action was error and, if so, whether the error requires reversal. Reetz v Kinsman Marine Transit Co, 416 Mich 97, 103; 330 NW2d 638 (1982). A lawyer’s comments usually will not be cause for reversal unless they indicate a deliberate course of conduct aimed at preventing a fair and impartial trial. Guider v Smith, 157 Mich App 92, 101; 403 NW2d 505 (1987), aff'd 431 Mich 559 (1988). Reversal may also be required where counsel’s remarks were such as to deflect the jury’s attention from the issues involved and had a controlling influence upon the verdict. Id. Defendant complains about the following comments made by plaintiffs counsel during his opening statement: It [discrimination] can be a bunch of guys in white sheets standing on your front lawn burning a cross, or it could be ... . Discrimination can be brutally beating a black boy out in front of a pizza parlor in New York. It can be telling of racial jokes over a radio station, or [sic] one of the finest institutions in the country. ... It was just an analogy. Obviously it can, also, be telling someone who complains to you about why they are not being given an opportunity to advance that they are lucky to have a job, and there are plenty more where you came from. It can, also, be consistently transferring white women out of a department and leaving the black women behind. That’s in a racial situation. It can, also, be being insensitive to a woman’s needs as caused by her pregnancy, and this can be sexual discrimination. Defense counsel objected to these comments, but the circuit judge permitted them. The court did instruct the jury that the opening statements were not evidence and that anything that the attorney said was not evidence. What constitutes a fair and proper opening statement is left to the discretion of the trial court. Guider, supra, p 102. Here, plaintiffs lawyer was evidently pointing out that there are Obvious, overt forms of discrimination and subtle, less easily discerned forms of discrimination, such as in plaintiffs case. The examples cited in plaintiffs counsel’s opening statement were not related to gm and were not attacks on gm. The circuit court did not abuse its discretion by permitting these remarks. Defendant complains that plaintiffs counsel commented in closing on defendant’s failure to present the testimony of a Doctor Golusin and on defendant’s failure to present data entry operator logs which would verify defendant’s claims that plaintiff was a poor worker. In Reetz, supra, 416 Mich 109, our Supreme Court pointed out: [I]t is legitimate to point out that an opposing party failed to produce evidence that it might have, and consequently the jury may draw an inference against the opposing party. This is permissible even though the same witnesses could have been produced by both parties. These comments did not result in error. Defendant also argues that plaintiffs counsel improperly belittled defense witness Nina Shepard and James Rupkey. In closing arguments, counsel may discuss the character of a witness and characterize their testimony. DeVoe v C A Hull Inc, 169 Mich App 569, 581; 426 NW2d 709 (1988), lv den 431 Mich 862 (1988). Plaintiffs attorney’s comments did not deny defendant a fair trial and did not result in error. ii Defendant argues that the circuit court erred by excluding the testimony of a crucial defense witness. We find no error. Defendant attempted to present the testimony of Valerie Martin, a gm personnel representative, to rebut plaintiff’s evidence indicating that defendant made plaintiff, while pregnant, return to work against the advice of physicians. Defendant argued that Martin would testify that she received a report from an independent physician, Dr. Golusin, which indicated that plaintiff was free to return to work. Martin had been previously deposed by the parties but was not listed on defendant’s witness list in accordance with Wayne Circuit Court Rule 2.301. The court precluded Martin from testifying pursuant to LCR 2.301(4) on the ground that she was not listed as a witness. Wayne Circuit Court Rule 2.301(4), which was in effect at the time of the trial, provided in relevant part: An unlisted witness may not be called at the trial, except as the court orders for good cause shown or as permitted by paragraphs (5) and (6). [Emphasis added.] Under this local court rule, defendant could not present Martin as a witness unless it convinced the court of good cause. The record indicates that defendant did not show good cause for presenting Martin’s testimony regarding Dr. Golusin’s report. Martin’s deposition testimony indicated that she was not aware of the conclusions of Golusin’s report or the results of his examination of plaintiff and that Martin herself had not signed the report. Additionally, Martin’s testimony regarding the contents of Golusin’s report appears to be inadmissible hearsay under MRE 801. See Slayton v Michigan Host, Inc, 144 Mich App 535, 551; 376 NW2d 664 (1985); Carlisle v General Motors Corp, 126 Mich App 127, 129; 337 NW2d 4 (1983). The circuit court properly excluded Martin’s testimony. hi Defendant claims that reversal is required because the circuit court refused to instruct the jury regarding the authority of defendant’s employees to bind defendant to statements or promises made to plaintiff. We disagree. Plaintiff testified at trial that, at the time she was hired by gm, an employee of gm in its personnel department, Leona Zyber, told plaintiff that she would remain employed so long as she did her work and followed the rules. One of plaintiff’s witnesses also testified about similar statements made to her by employees in gm’s personnel department. These statements served as the basis for plaintiff’s Toussaint claim for breach of employment contract. Defendant did not call Zyber as a witness or present evidence regarding whether Zyber or other gm employees had actual or apparent authority to bind it with a verbal Toussainttype contract. Defendant requested the following jury instructions regarding the authority of employees to bind the employer: Plaintiff claims that one or more employees of General Motors Corporation made statements or promises to her that she would only be terminated for good cause. If you find that statements or promises were actually made by the defendants, you must then determine whether the person who made the statement or promise had the authority to bind General Motors to that statement or promise. Authority of an employee to make statements or promises which bind General Motors can be of two types: 1. Actual Authority. This type of authority exists when the employee has been expressly authorized by General Motors to make such statements or promises. 2. Apparent Authority. This type of authority exists only if the plaintiff reasonably believed that the person who made promises or statements to her was authorized by General Motors to make those statements or promises. If you find that one or more persons actually made statements or promises to the plaintiff, those statements or promises are not binding on General Motors unless you also find that the person who made the statement or promise had the actual or apparent authority to make the statement or promise. The court declined to give this instruction and instead gave the following instruction: Members of the jury, I instruct you that a corporation such as the Defendant, General Motors, in this case is operated through its employees. If you find that there was wrongdoing on the part of any employee which caused injury to Gail Wilson, then such wrongdoing would be chargeable to General Motors. Defendant argues that the court, through this instruction, improperly took from the jury the factual issue of whether its personnel employees had actual or implied authority to make contracts with plaintiff. We agree that the instruction as given was incomplete and should have applied only to plaintiff’s discrimination claims. However, any error due to this instruction is harmless and does not require reversal. An instructional error does not require reversal where it did not result in a jury verdict inconsistent with substantial justice. MCR 2.613(A); Johnson v Corbet, 423 Mich 304, 327; 377 NW2d 713 (1985); Caliesen v Grand Trunk W R Co, 175 Mich App 252, 263; 437 NW2d 372 (1989). The jury found in favor of plaintiff on bbth her claims. The jury’s verdict of liability for .race and gender discrimination alone supports the damages awarded under both claims. Additionally, we note that defendant offered no evidence to rebut plaintiff’s testimony or to establish that Leona Zyber had no authority to enter into á Toussaint-type contract with plaintiff. Our Suprerhe Court in Renda v International Union, UAW, 366 Mich 58, 94; 114 NW2d 343 (1962), stated: Where the facts are either admitted or undisputed as to the existence of the principal agent’s relationship and as to the scope of the agent’s authority, the lower court may properly instruct the jury that the principal, as a matter of law, is responsible for the acts of the agent. Gm did not present evidence disputing Zyber’s apparent authority. The circuit court’s instruction does not require reversal; IV Defendant argues that reversal is required because the circuit court refused to instruct the jury that plaintiff bore the burden of proving that she reasonably relied upon Leona Zyber’s statements. We find no error. At trial, defendant argued that, because the only basis for plaintiff’s Toussaint claim was the statements of Leona Zyber, the trial court must instruct the jury that, in order to find a valid Toussaint claim, the jury would have to find either that plaintiff was not provided with gm’s employee handbook or that the statements contained in the handbook were not inconsistent with Zyber’s statements to plaintiff. Defendant requested the following jury instruction, which the court refused to give: Statements or promises made by employees to the plaintiff can only become a part of the plaintiffs emplo