Failure to Accommodate Cases

PATRICIA GRAHAM, Plaintiff-Appellant v. HARDEE’S FOOD SYSTEMS, INC., Defendant-Appellee No. 9418SC449 (Filed 16 January 1996) 1. Judgments § 268 (NCI4th); Trial § 226 (NCI4th)— second dismissal against employee — derivative claims against employer barred Plaintiff’s second voluntary dismissal against defendant employee operated to bar her derivative claims against defendant employer, including a claim for negligent supervision and retention. N.C.G.S. § 1A-1, Rule 41(a)(1)(h). Am Jur 2d, Dismissal, Discontinuance, and Nonsuit §§ 73-77. What dismissals preclude a further suit, under federal and state rules regarding two dismissals. 65 ALR2d 642. 2. Labor and Employment § 68 (NCI4th)— constructive wrongful discharge — insufficient evidence The North Carolina courts have not yet adopted the tort of constructive wrongful discharge. Assuming the existence of such a cause of action, the trial court did not err by dismissing plaintiff’s claim where there was no evidence of intolerable conditions deliberately created by the employer to force plaintiff to leave her job. Am Jur 2d, Job Discrimination §§ 1091-1099; Wrongful Discharge § 8. Modern status of rule that employer may discharge at-will employee for any reason. 12 ALR4th 544. Circumstances in Title VII employment discrimination cases (42 USCS secs. 2000e et seq.) which warrant finding of “constructive discharge” of discriminatee who resigns employment. 55 ALR Fed. 418. When is work environment intimidating, hostile, or offensive, so as to constitute sexual harassment in violation of Title VII of Civil Rights Act of 1964, as amended (42 USCS secs. 2000e et seq.). 78 ALR Fed. 252. 3. Negligence § 6 (NCI4th)— negligent infliction of emotional distress — insufficient evidence Plaintiffs claim against her former employer for negligent infliction of emotional distress must fail where plaintiff’s second dismissal of her claim against a district manager relieved the employer of liability under a theory of ratification of the district manager’s improper conduct, and plaintiff presented no evidence of extreme and outrageous conduct by the employer. Am Jur 2d, Fright, Shock, and Mental Disturbance § 44.5; Wrongful Discharge § 159. Liability of employer, supervision or manager for intentionally or recklessly causing employee emotional distress. 52 ALR4th 853. Appeal by plaintiff from order entered 2 December 1993 by Judge Russell G. Walker in Guilford County Superior Court. Heard in the Court of Appeals 21 March 1995. Plaintiff filed suit 3 June 1991 against defendants Hardee’s Food Systems, Inc. (Hardee’s) and Ronald Rogers, a Hardee’s district manager, for assault and battery, intentional infliction of emotional distress, wrongful termination, and negligent hiring and retention of an employee. Plaintiff based her claims upon alleged sexual advances, untoward comments, and uninvited touchings made by Rogers. Plaintiff took a voluntary dismissal without prejudice as to both defendants on 27 November 1991. Plaintiff refiled against both defendants on 4 November 1992, asserting the same causes of action as the earlier complaint, with the addition of a claim for punitive damages. After extensive discovery, Hardee’s moved for summary judgment. Before the hearing on Hardee’s motion, plaintiff voluntarily dismissed her claim against Rogers. The trial court granted Hardee’s motion for summary judgment on all claims in an order filed 2 December 1993. From this order, and an earlier order granting Hardee’s motion to suppress plaintiff’s changes to deposition testimonies, plaintiff appeals. Joseph Edward Downs and Jeffrey S. Lisson, for plaintiff - appellant. Blakeney & Alexander, by W T Cranfill, Jr., and Michael V. Matthews, for defendant-appellee. McGEE, Judge. The crucial issue in this case is whether plaintiff’s second voluntary dismissal against Ronald Rogers operates to bar her derivative claims against Hardee’s. We hold that it does and affirm the granting of summary judgment for Hardee’s. “[A] notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of this or any other state or of the United States, an action based on or including the same claim.” N.C.R. Civ. P. 41(a)(l)(ii). Such a dismissal is with prejudice, and it operates as a disposition on the merits and precludes subsequent litigation in the same manner as if the action had been prosecuted to a full adjudication against the plaintiff. Barnes v. McGee, 21 N.C. App. 287, 289, 204 S.E.2d 203, 205 (1974). As our Supreme Court has said: “It is fundamental that a final judgment, rendered on the merits, by a court of competent jurisdiction, is conclusive of rights, questions and facts in issue, as to the parties and privies, in all other actions involving the same matter. . . . (W)hen a fact has been agreed upon or decided in a court of record, neither of the parties shall be allowed to call it in question, and have it tried over again at any time thereafter, so long as the judgment or decree stands unreversed.” Masters v. Dunstan, 256 N.C. 520, 523-24, 124 S.E.2d 574, 576 (1962) (citations omitted). Since plaintiff twice dismissed her claims against Rogers, this served as an adjudication in his favor upon the merits. Plaintiff is precluded from retrying these issues or calling into question any alleged wrongdoing by Rogers in her action against Hardee’s based upon the conduct of Rogers. Plaintiff argues the trial court erred in granting summary judgment for Hardee’s on her claims of negligent supervision and retention, wrongful discharge, negligent infliction of emotional distress, and punitive damages, claiming these actions are independent of her claims against Rogers. However, contrary to plaintiffs contentions, each of these claims as presented by plaintiff is dependant upon the alleged tortious conduct of Rogers. Since Rogers has been adjudicated not liable for the alleged conduct as a result of plaintiff’s second voluntary dismissal of her claims against him, the remaining claims against Hardee’s must also fail. As to plaintiff’s first claim, before an employer will be held liable for the tort of negligent retention and supervision of an employee, “plaintiff must prove that the incompetent employee committed a tor-tious act resulting in injury to plaintiff and that prior to the act, the employer knew or had reason to know of the employee’s incompetency.” Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 495, 340 S.E.2d 116, 124, disc review denied, 317 N.C. 334, 346 S.E.2d 141 (1986). The only tortious conduct by an employee of Hardee’s that plaintiff has alleged is the acts of Rogers which were the basis of her claims against him. As a result of the second dismissal of her claims against Rogers, it has been judicially determined that Rogers is not liable for any tortious conduct. Therefore, plaintiff has not shown that an employee of Hardee’s committed a tortious act and this cause of action fails. Plaintiff next argues the trial court erred in dismissing her claim for wrongful discharge. Plaintiff admits she quit her job and was never fired by Hardee’s. However, she claims Hardee’s is liable for wrongful discharge because they made her working conditions “intolerable,” resulting in a “constructive discharge.” We first note that North Carolina courts have yet to adopt the employment tort of constructive discharge. The Fourth Circuit Court of Appeals, which does recognize constructive discharge as a cause of action, has said that a plaintiff alleging constructive discharge “must demonstrate that the employer deliberately made working conditions intolerable and thereby forced [the plaintiff] to quit.” E.E.O.C. v. Clay Printing Co., 955 F.2d 936, 944 (4th Cir. 1992). “Deliberateness exists only if the actions complained of ‘were intended by the employer as an effort to force the employee to quit’ ”. Id. (Citations omitted). Assuming, arguendo, we accept the existence of a cause of action for constructive discharge, the record on appeal contains no evidence of intolerable conditions deliberately created by Hardee’s to force plaintiff to leave her job. “[W]hen the moving party presents an adequately supported motion [for summary judgment], the opposing party must come forward with facts, not mere allegations, which controvert the facts set forth in the moving party’s case, or otherwise suffer a summary judgment.” Connor Co. v. Spanish Inns, 294 N.C. 661, 675, 242 S.E.2d 785, 793 (1978). We note plaintiff has made several unsuccessful attempts to have additional materials added to the record which she claims contain evidence of acts by Hardee’s to create intolerable working conditions. However, the transcript shows these materials were not properly tendered for consideration on defendant’s motion for summary judgment and were not considered by the trial court. They are not part of the official record, and therefore, are not properly before us and we may not consider them. See N.C.R. App. P. 9 (“[R]eview is solely upon the record on appeal and the verbatim transcript of proceedings. . . .”) The only forecast in the record of intolerable conditions is the allegations contained in the complaint. Further, the record contains no evidence these alleged conditions were deliberately created or allowed to continue by Hardee’s in an attempt to force plaintiff to quit. Plaintiff has no cause of action under a theory of constructive discharge. Even if plaintiff could prove a constructive discharge, in order to state a claim for a wrongful discharge as an at-will employee, she would still have to prove the discharge was in contravention of North Carolina public policy or statute. See Coman v. Thomas Manufacturing Co., 325 N.C. 172, 381 S.E.2d 445 (1989). The only allegations made by plaintiff which could show a violation of public policy or statute involve the claims against Rogers for which it has been judicially determined he is not liable. Since plaintiff cannot prove a constructive discharge, and she was never fired by Hardee’s, her claim for wrongful discharge fails. Likewise, plaintiff’s claim for negligent infliction of emotional distress must also fail. As plaintiff admits in her brief, her second dismissal of Rogers relieved Hardee’s of liability under a theory of ratification of Roger’s conduct. To show an independent cause of action against Hardee’s, plaintiff needed to present facts showing Hardee’s engaged in extreme and outrageous conduct intended to cause, and which did in fact cause, severe emotional distress. See Bryant v. Thalhimer Brothers, Inc., 113 N.C. App. 1, 7, 437 S.E.2d 519, 522 (1993), disc. review denied and appeal dismissed, 336 N.C. 71, 445 S.E.2d 29 (1994). As discussed above, plaintiff, as the non-movant, must come forward with facts to counter a proper motion for summary judgment. The official record contains no factual evidence showing Hardee’s engaged in extreme or outrageous conduct. The only forecast of evidence concerning Hardee’s conduct is the allegation in the complaint that Hardee’s “sanctioned, condoned, and ratified Rogers’ improper, illegal, and tortious conduct.” Since plaintiff presented no evidence of éxtreme and outrageous independent acts of Hardee’s, summary judgment for defendant on plaintiff’s claim for negligent infliction of emotional distress was proper. Plaintiff’s brief did not contain an argument concerning her assignment of error involving the grant of defendant’s motion to suppress changes to deposition testimony, and this assignment of error is deemed abandoned. N.C.R. App. P. 28(a). Because of our holding, we need not discuss plaintiff’s remaining assignments of error and arguments. The trial court’s grant of summary judgment in favor of Hardee’s is affirmed. Affirmed. Judges JOHNSON and COZORT concur.

CLERICAL-TECHNICAL UNION OF MICHIGAN STATE UNIVERSITY v MICHIGAN STATE UNIVERSITY BOARD OF TRUSTEES CLERICAL-TECHNICAL UNION OF MIHCIGAN STATE UNIVERSITY v MICHIGAN STATE UNIVERSITY Docket Nos. 165131, 165835. Submitted May 9, 1995, at Lansing. Decided October 20, 1995, at 9:00 a.m. Leave to appeal sought. The Clerical-Technical Union of Michigan State University, in separate cases before the Michigan Employment Relations Commission, filed a unit clarification petition and an unfair labor practice charge after Michigan State University unilaterally removed certain job positions from the bargaining unit represented by the Clerical-Technical Union. The Clerical-Technical Union additionally alleged failure by msu to bargain and that the transfer of one position to the unit represented by the Michigan State University Administrative-Professional Association constituted unlawful assistance to that union. In the unit clarification case, the commission decided that msu had unlawfully removed positions from the Clerical-Technical Union’s bargaining unit, issued a cease-and-desist order against msu, and ordered msu to issue to employees a notice explaining the unfair labor practice. In the unfair labor practice case, the commission decided that msu had engaged in an unfair labor practice and the commission ordered msu to cease refusing to bargain. The Clerical-Technical Union appealed in each case, and the Court of Appeals consolidated the appeals. The Court of Appeals held: 1. Section 16(b) of the public employment relations act, MCL 423.216(b); MSA 17.455(16)(b), provides that the Michigan Employment Relations Commission, upon finding an unfair labor practice, shall state its findings of fact, issue an order requiring the offender to cease and desist from the unfair labor practice, and take such affirmative action as will effectuate the policies of the act. The Court of Appeals will not disturb a remedy ordered by the commission pursuant to § 16(b) unless the remedy is a patent attempt to achieve ends other than those that can fairly be said to effectuate the policies of the act. Here, the commission’s order in the unit clarification case, insofar as it failed to direct further remedial action by msu, was a patent attempt to achieve ends other than those that can fairly be said to effectuate the policies of the act, among which is to promote the peaceful settlement of industrial disputes by subjecting labor-management controversies to the mediatory influence of negotiation. References Am Jur 2d, Labor and Labor Relations §§ 2642, 2821. See ALR Index under Labor and Employment. 2. The commission’s order in the unfair labor practice case was also a patent attempt to achieve ends other than those that can fairly be said to effectuate the policies of the act, insofar as the order allowed msu to raise reliance on prior decisions by the commission as a defense to the unfair labor practice charge and failed to place on msu the costs of its wrongdoing. 3. With respect to the claim that msu had engaged in an unfair labor practice by providing illegal assistance to the Michigan State University Administrative-Professional Association, the commission failed to make findings and issue an appropriate order. The commission must do so on remand. 4. The commission failed to decide the appropriate unit for representation by the Clerical-Technical Union. On remand, the commission must specifically state findings with respect to the appropriate unit. Reversed and remanded. Hoekstra, P.J., dissenting, stated that the commission’s orders constituted a lawful exercise of the commission’s discretionary authority pursuant to MCL 423.216(b); MSA 17.455(16) (b), that the commission is under no requirement to return the parties to the status quo ante or to effectuate the remedy requested by a prevailing party, and that the commission implicitly addressed the issues of illegal assistance to the Michigan State University Administrative-Professional Association and appropriate bargaining unit. Labor Relations — Public Employment Relations Act — Unfair Labor Practices — Michigan Employment Relations Commission — Appeal. The Michigan Employment Relations Commission, upon finding an unfair labor practice in a public employment setting, must state its findings of fact, issue an order requiring the offender to cease and desist from the unfair labor practice, and take such affirmative action as will effectuate the policies of the public employment relations act; the Court of Appeals will not disturb a remedy ordered by the commission for such unfair labor practice unless the remedy is a patent attempt to achieve ends other than those that can fairly be said to effectuate the policies of the act (MCL 423.216[b]; MSA 17.455[16][b]). Finkel, Whiteñeld & Selik, P.C. (by Bradley T. Raymond), for Clerical-Technical Union of Michigan State University. Sally S. Harwood, for Michigan State University Board of Trustees. White, Beckman, Przybylowicz, Schneider & Baird, P.C. (by James J. Chiodini), for Michigan State University Administrative-Professional Association, MEA/NEA. Before: Hoekstra, P.J., and Wahls and G. S. Buth, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Wahls, J. The Clerical-Technical Union of Michigan State University appeals as of right from two decisions and orders of the Michigan Employment Relations Commission (merc), which found that Michigan State University had committed an unfair labor practice but did not order restoration of the status quo ante. The merc issued cease-and-desist orders but not orders for further remedial action. We have consolidated the two appeals for the purpose of this opinion. We reverse and remand. Appellant represents a bargaining unit of clerical and technical employees of Michigan State University. The Michigan State University Administrative-Professional Association (apa), intervenor in Docket No. 165131, represents a bargaining unit of nonsupervisory administrative and professional employees. Supervisory employees are represented by a third bargaining unit that is not party to the proceedings involved here. On September 22, 1983, appellant and msu agreed to hire an outside consultant to conduct a jointly funded classification study. On January 30, 1986, the consulting firm’s proposal for the study was accepted by both appellant and msu. In August, 1987, the consulting firm issued its initial draft of the study, which reviewed four thousand employees of msu. On January 28, 1988, msu wrote to appellant and stated that it was "accepting for potential implementation the new classification descriptions, individual placements, grade levels, and PLSA/bargaining unit determinations” of the consulting firm. In February 1988, appellant filed the unit clarification petition at issue in Docket No. 165131, asserting that the bargaining unit status of certain positions was in dispute. In November 1988, msu sent notices to employees of changes in job title, grade level, and bargaining unit. On December 27, 1988, appellant initiated the proceedings involved in Docket No. 165131, alleging that msu had engaged in an unfair labor practice by unilaterally moving positions to a different bargaining unit on the basis of the study’s recommendations. Later, appellant filed an amended charge against msu, additionally alleging that the transfer constituted unlawful assistance to the apa. Hearing referee Bert H. Wicking recommended in Docket No. 165131 that the merc dismiss the unfair labor practice charges and unit clarification petition. On August 31, 1993, the merc held that msu had unlawfully removed positions from appellant’s unit without appellant’s agreement. The merc issued a cease-and-desist order and ordered msu to post a notice to employees that explained the unfair labor practice. The merc dismissed appellant’s unit clarification petition. The appeal in Docket No. 165131 followed. Meanwhile, the position at issue in Docket No. 165835, Financial Aid Officer I (fao i), was initially in the apa bargaining unit. However, pursuant to the classification study, the position was placed in appellant’s unit in October 1988. In June 1989, the Financial Aid Department requested a reclassification of the pao i position. The position was transferred back to the apa in August 1989. On October 26, 1989, appellant filed an unfair labor practice charge against msu in Docket No. 165835, alleging a failure to bargain. Later, appellánt filed an amended charge in which it additionally alleged that msu had unlawfully assisted the apa. On April 26, 1991, hearing referee James P. Kurtz issued his decision recommending that the merc dismiss appellant’s charge. On August 31, 1993, the merc held that msu’s unilateral transfer of positions to a different unit was an unfair labor practice and ordered msu to cease refusing to bargain. However, the merc did not order further remedial action. The appeal in Docket No. 165835 followed. i Appellant argues that the merc arbitrarily refused to grant remedies that would have restored the status quo ante. This Court will not disturb merc remedies unless the merc order is a "patent attempt to achieve ends other than those which can fairly be said to effectuate the policies” of the public employment relations act (pera), MCL 423.201 et seq.; MSA 17.455(1) et seq. Crestwood Ed Ass’n v Employment Relations Comm, 88 Mich App 409, 416; 276 NW2d 592 (1979). The merc’s power to order a remedy is "a broad discretionary one, subject to limited judicial review.” Van Buren Public School Dist v Wayne Circuit Judge, 61 Mich App 6, 32-33; 232 NW2d 278 (1975). The remedy for an unfair labor practice is statutorily provided as follows: If upon the preponderance of the testimony taken the commission is of the opinion that any person named in the complaint has engaged in or is engaging in the unfair labor practice, then it shall state its findings of fact and shall issue and cause to be served on the person an order requiring him to cease and desist from the unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this act. [MCL 423.216(b); MSA 17.455(16)(b).] Under the terms of the statute, upon finding an unfair labor practice, the merc must order the offender to cease and desist from the unfair labor practice. The statute does not explicitly state that the remedy must restore the status quo ante, but instead requires that the merc take other action "as will effectuate the policies of [the pera].” Generally, the pera authorizes the merc to issue a cease-and-desist order without requiring further action. Crestwood Ed Ass’n, supra, p 418. In Crestwood, this Court indicated that, although it believed that a more stringent remedy was warranted, it was not this Court’s role "to replace the remedy fashioned by merc with one consistent with our own views.” Id. Appellant argues that the opposite result is required by Rockwell v Crestwood School Dist Bd of Ed, 393 Mich 616, 642; 227 NW2d 736 (1975), where the Court held that the merc may not adopt an arbitrary policy of refusing to consider exercising its authority in matters falling within its jurisdiction. However, in that case, the merc responded to the union’s request to seek immediate relief with a response that it was "the consistent policy of this Commission to refrain from petitioning for temporary relief or a restraining order.” Id. In this case, there is no comparable policy. As amply cited in appellant’s briefs on appeal, the merc has used its authority in the past to order other remedies. The same result is true under federal law. In construing the pera, both the merc and Michigan courts have frequently been guided by the construction placed on the analogous provisions of the National Labor Relations Act (nlra), 29 USC 141 et seq. Rockwell, supra, p 636; Detroit Fire Fighters Ass’n v Detroit, 96 Mich App 543, 545; 294 NW2d 842 (1980). The provision of the pera at issue here, MCL 423.216(b); MSA 17.455(16)(b), is taken almost verbatim from the nlra, 29 USC 160(c). Appellant argues that both the Sixth Circuit Court of Appeals and the District of Columbia Circuit Court of Appeals have rejected analogous claims that the National Labor Relations Board (nlrb) possesses discretion to refuse to remedy unfair labor practices after finding that they have been committed. However, the cases cited by appellant stand for the proposition that the nlrb must issue a cease-and-desist order, not that it must order other action as well. UAW v NLRB, 427 F2d 1330, 1334 (CA 6, 1970); Int’l Woodworkers v NLRB, 127 US App DC 81; 380 F2d 628 (1967); see also Eichleay Corp v NLRB, 206 F2d 799, 805 (CA 3, 1953). The merc has complied with that requirement here. Indeed, the United States Supreme Court has affirmed the enforcement of an nlrb decision to issue a cease-and-desist order, but not to order reimbursement. Shepard v NLRB, 459 US 344, 349; 103 S Ct 665; 74 L Ed 2d 523 (1983). The Court reasoned that the statute does not require the nlrb "to reflexively order that which a complaining party may regard as 'complete relief for every unfair labor practice.” Id., p 352. The holding that the merc is authorized generally to remedy an unfair labor practice by issuing only a cease-and-desist order does not end the matter. We must still determine whether the merc orders here were "patent attempts] to achieve ends other than those which can fairly be said to effectuate the policies” of the pera. Crestwood Ed Ass’n, supra, p 416. The circumstances of this case are distinguishable from those in Crestwood, where the reinstatements that the charging party sought would not have restored the status quo immediately before the unfair labor practice. One purpose of the pera is "to promote the peaceful settlement of industrial disputes by subjecting labor-management controversies to the mediatory influence of negotiation.” Van Buren Public School Dist, supra, pp 25-26. In addition, provisions of the pera are to be construed liberally in favor of public employees as compensation for the act’s prohibition against striking. MESPA v Jackson Community College, 187 Mich App 708, 711; 468 NW2d 61 (1991); see Detroit Fire Fighters Ass’n v Detroit, 408 Mich 663, 684; 293 NW2d 278 (1980). In Docket No. 165835, the merc gave little guidance with respect to the reasoning behind its decision. It stated simply that "[i]t is not recommended that further remedial action be taken by the University for it well may have been led astray by prior decisions of this Commission.” The merc denied appellant’s motion for clarification or reconsideration of the remedy. Effective appellate review, as well as judicial and administrative accountability, requires that the merc clearly articulate the reasons behind any order, and particularly why other remedies were found to be inappropriate. NLRB v Pacific Southwest Airlines, 550 F2d 1148, 1152 (CA 9, 1977). Here, the merc erred in its sparse legal reasoning. A party’s claim that it acted in detrimental reliance on prior administrative decisions is not a defense to unfair labor practice allegations or the issuance of traditional remedies. See Clear Pine Mouldings v NLRB, 268 NLRB 1044; 115 LRRM 1113 (1984), enf'd 765 F2d 148 (CA 9, 1985). Either the company or the employees must bear the costs of the remedy. See NLRB v JH Rutter-Rex Mfg Co, 396 US 258, 263-264; 90 S Ct 417; 24 L Ed 2d 405 (1969). The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty that his own wrong has created. Bigelow v RKO Radio Pictures, Inc, 327 US 251, 265; 66 S Ct 574; 90 L Ed 652 (1946). Construing the pera liberally on behalf of msu employees, MESPA, supra, p 711, we find that msu should not have been granted the benefit of its wrongdoing. Accordingly, we hold that the merc’s order Docket No. 165835 was a "patent attempt to achieve ends other than those which can fairly be said to effectuate the policies” of the pera. Crestwood Ed Ass’n, supra, p 416. In addition, upon finding an unfair labor practice, the merc should have required msu to post a notice so that msu employees would have full and accurate information of the decisions of the merc. See Mooresville Cotton Mills v NLRB, 97 F2d 959, 963-964 (CA 4, 1938). In Docket No. 165131, the merc’s decision provided more guidance about its reasoning. First, it stated that it is reasonable to assume that msu. relied on the 1978 case to its detriment. Second, the merc found that "the bargaining unit changes cannot be separated from the other changes, e.g. classification, title and grade changes, which resulted from the study and which have now been in effect for more than four years.” The merc concluded that to return the positions removed from appellant now would cause "hopeless confusion.” However, as noted above, msu’s reliance on prior administrative decisions is not a defense to traditional remedies for unfair labor practices. See Clear Pine Mouldings, supra, p 1044, n 3. Moreover, the merc was concerned about the confusion that would result from reversing msu’s actions four years later. However, either the company or the employees had to bear the costs of the administrative delay. JH Rutter-Rex, supra, pp 263-264. Because msu was the wrongdoer, it should have been the party bearing the costs that its own wrong created. Bigelow, supra, p 265. Accordingly, we hold that the merc’s order in Docket No. 165131 was also a "patent attempt to . achieve ends other than those which can fairly be said to effectuate the policies” of the pera. Crestwood Ed Ass’n, supra, p 416. We remand both cases back to the merc to determine a remedy that will effectuate the policies of the pera. ii Appellant argues that the merc did not issue findings with regard to whether defendant provided illegal assistance to the apa. We agree. The merc is required to issue findings and an appropriate order regarding unfair labor practice allegations brought before it. MCL 423.216(b); MSA 17.455(16)(b). Similarly, under the nlra, when a complaint has been brought, the nlrb has two choices: it must determine either that a violation occurred or that it did not. UAW, supra, pp 1331-1332. There is no express authorization in the statutory language for the nlrb to abstain from deciding whether the alleged conduct violates the NLRA. Id., p 1332. Here, both of the merc’s opinions focused entirely on appellant’s complaints concerning msu’s refusal to bargain. Indeed, in Docket No. 165835, the merc specifically stated: "Nor is it material as to how the position of Financial Assistance Officer I came to be in the Charging Party’s bargaining unit.” Nowhere does the pera authorize the merc to abstain from deciding whether the alleged conduct violates the pera. See UAW, supra, p 1332. Upon remand, the merc must determine in both cases whether msu committed an unfair labor practice by providing illegal assistance to the apa. iii Appellant argues in Docket No. 165131 that the merc arbitrarily refused to decide the appropriate unit for collective bargaining. We agree. The pera requires the merc to state its findings. MCL 423.216(b); MSA 17.455(16)(b). Upon remand, the merc should specifically state its findings with respect to the appropriate bargaining unit. Reversed and remanded. G. S. Buth, J., concurred. Hoekstra, P.J. (dissenting). I respectfully dissent because I would conclude that the Michigan Employment Relations Commission (merc) orders in these consolidated cases constitute a lawful exercise of the merc’s discretionary authority pursuant to MCL 423.216(b); MSA 17.455(16)(b). This Court’s review of the merc’s remedial orders is very limited. This Court has consistently refused to substitute its judgment for that of the merc. Crestwood Ed Ass’n v Employment Relations Comm, 88 Mich App 409; 276 NW2d 592 (1979); Muskegon Co Profess

HATFIELD v ST MARY’S MEDICAL CENTER Docket No. 150429. Submitted December 15, 1994, at Lansing. Decided June 2, 1995, at 9:25 a.m. Leave to appeal sought. Pamela D. Hatfield brought an action in the Saginaw Circuit Court against St. Mary’s Medical Center, alleging employment discrimination in violation of the Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq. The plaintiff was employed by the defendant in a position that required the ability to lift about forty pounds. The plaintiff, after being involved in an automobile accident that was unrelated to her employment, could not do the lifting required of her position. She attempted to return to work with a restriction by her physician from lifting more than ten pounds. She found she was unable to continue working and, at the employer’s suggestion, applied for a one-year medical leave of absence. Six-months later, she sought to return to work and presented a note from her physician indicating that she had a temporary restriction against lifting more than twenty-five pounds. Although there is some dispute, the plaintiff’s employment apparently was thereafter terminated. The jury returned a verdict for the plaintiff and the trial court, Leopold P. Borrello, J., entered a judgment consistent with the verdict. The plaintiff appealed. The Court of Appeals held: 1. The trial court should have granted the defendant’s motion for a directed verdict at the close of the plaintiff’s proofs. The trial court’s judgment must be reversed and the matter remanded for entry of an order of dismissal. 2. At the time applicable to this action, the Handicappers’ Civil Rights Act provided that the only handicaps covered by the act, for purposes of employment, were those unrelated to the ability to perform the duties of the position. The act did not require employers to adjust or modify job duties otherwise required by the job description in order to accommodate a handicapped employee. Therefore, the plaintiff was not handicapped because her disability related to her ability to perform the duties of her position. References Am Jur 2d, Job Discrimination §§ 209-216. Handicap as job disqualification under state legislation forbidding job discrimination on account of handicap. 78 ALR4th 265. What constitutes handicap under state legislation forbidding job discrimination on account of handicap. 82 ALR4th 26. 3. The fact that the plaintiff was returning to work from a medical leave of absence rather than applying for the position for the first time does not change her ability to ■ use the Handicappers’ Civil Rights Act. 4. The trial court erred, in instructing the jury that an employer must give an employee a reasonable time to heal. The plaintiff did not allege that the defendant denied her adequate leave time and, in fact, chose to cut her leave short and return to work. Reversed and remanded. Civil Rights — Handicappers’ Civil Rights Act — Covered Handicaps. Before June 1990, the Handicappers’ Civil Rights Act provided that the only handicaps covered by the act, for purposes of employment, were those unrelated to the ability to perform the duties of the position; the act did not require employers to adjust or modify job duties otherwise required by the job description in order to accommodate a handicapped employee (MCL 37.1103[b]; MSA 3.550[103][b]). Fordney, Cady, Mastromarco & Jahn, P.C. (by Victor J. Mastromarco, Jr., and Jo Ellen O'Con-nor), for the plaintiff. Chaklos, Jungerheld & Hahn, P.C. (by Thomas C. Wimsatt), for the defendant. Before: Taylor, P.J., and Griffin and W. G. Schma, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Taylor, P.J. Defendant appeals as of right the circuit court’s judgment for plaintiff. The judgment was based on a jury verdict arising out of an employment discrimination claim under the Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq. We reverse and remand for entry of an order of dismissal. In 1984,. defendant employed plaintiff as a computer operator, data entry clerk. Her job description provided that she must have "the ability to stand, walk, as well as lift and carry medium weight (average about forty pounds) for four to five percent of work time.” This description was accurate and plaintiff admitted that her job did involve lifting printers, screens, keyboards, and paper products. On September 19, 1988, plaintiff was involved in an automobile accident that was unrelated to her employment. After the accident, she could not do the lifting required by her employer because of a soft tissue injury to her back. She received medical treatment, but her back problems became progressively worse. On December 29, 1988, unable to continue, she took a leave of absence from work and sought treatment for her back pain. On March 14, 1989, following treatment with an orthopedic surgeon, plaintiff returned to work on a two-week trial basis for four hours a day with a weightlifting restriction of ten pounds. She was not required to do any lifting during this two-week period because her department was involved in computer training when she returned and she spent her time learning this new computer system. Having satisfactorily completed this two-week period, she presented a return-to-work note from her physician that continued the lifting restriction but allowed her to work eight hours a day. Defendant authorized her to attempt this on a two-week trial basis. To comply with the weight restrictions, plaintiff was instructed to break down items where possible to ensure that she did not exceed her ten-pound lifting restriction. Plaintiff was also advised to get help, if necessary, from someone in the department, or from security, for items that could not be broken down. She completed her first eight-hour shift and returned to work the following day for a few hours before concluding that she could not continue. At defendant’s suggestion, plaintiff applied for a one-year medical leave of absence effective April 10, 1989. Plaintiff’s understanding of the leave of absence was that it could last for one year. During that year, she could come back to work by bringing a slip from her physician and could get her job back if .it was available. She also understood that if the job was not available, defendant would make an effort to see that she got a comparable job. During her leave of absence, plaintiff underwent further treatment and the condition of her back improved. She was released to return to work on September 11, 1989, and presented her physician’s note to defendant’s personnel department. The note read: To Whom It May Concern: Pamela Hatfield has been under my care since May 10, 1989. She may return to work on September 11, 1989 with a weight restriction of 25 pounds, (this is a temporary weight restriction). Plaintiff’s supervisor, Julie Carey, expressed reservations about the weight restriction. As related by plaintiff at trial, Carey called her approximately three days later and stated that, regardless of the lifting restriction, plaintiff could not have the job back because of potential liability should plaintiff reinjure her back on the job. Because Carey was her supervisor, plaintiff testified that she believed that Carey had fired her. Defendant denied that plaintiff was terminated by Carey because Carey had no such authority and plaintiff had about five months of leave remaining. While plaintiff acknowledged that she never received any termination notice in writing or an exit interview, which she understood was part of defendant’s termination procedure, she continued to adhere to the view that she had been terminated. Her proofs and arguments regarding this issue were reinforced by defendant’s answers to questions posed by the Department of Social Services when plaintiff subsequently applied for benefits. Defendant’s answers strongly implied that plaintiff had been terminated. Premised on these facts, plaintiff brought a lawsuit alleging breach of employment contract by defendant and a violation of the hcra. Only the hcra claim reached the jury. The jury returned a verdict for plaintiff in the amount of $70,000. On appeal, defendant argues that the trial court abused its discretion in failing to direct a verdict in defendant’s favor. We find that defendant’s position is meritorious and that defendant’s motion for a directed verdict should, have been granted at the close of plaintiff’s proofs. In reviewing a trial court’s decision regarding a motion for a directed verdict, this Court views the evidence presented up to the time of the motion in the light most favorable to the nonmoving party, grants that party every reasonable inference, and resolves any conflict in the evidence in that party’s favor to decide whether a question of fact existed. Morrow v Boldt, 203 Mich App 324, 327; 512 NW2d 83 (1994); Stoken v J E T Electronics & Technology, Inc, 174 Mich App 457, 463; 436 NW2d 389 (1988). Further, the trial court’s decision will not be disturbed absent a clear abuse of discretion. Howard v Canteen Corp, 192 Mich App 427, 431; 481 NW2d 718 (1992). The Michigan hcra went into effect on March 31, 1977, and was amended on June 25, 1990, by 1990 PA 121. Because this matter arose before 1990, the preamendment hcra is applicable. Before its amendment in June 1990, the hcra.defined the term "handicap” in pertinent part as follows: "Handicap” means a determinable physical or mental characteristic of an individual or a history of the characteristic which may result from disease, injury, congenital condition of birth, or functional disorder which characteristic: (i) ... is unrelated to the individual’s ability to perform the duties of a particular job or position, or is unrelated to the individual’s qualifications for employment or promotion. [Adkerson v MK-Ferguson Co, 191 Mich App 129, 140; 477 NW2d 465 (1991) (quoting MCL 37.1103[b]; MSA 3.550[103][b].] Our Supreme Court has held that the statutory language cited means that "the only handicaps covered by the act, for purposes of employment, are those unrelated to ability to perform the duties of the position.” Carr v General Motors Corp, 425 Mich 313, 321-322; 389 NW2d 686 (1986). The Carr Court also laid to rest the previously existing conflict in this Court regarding whether employers were obligated to accommodate employees whose handicaps impeded job performance, but who could perform if adequately accommodated. The Carr opinion concluded that the hcra did not require employers to adjust or modify job duties otherwise required by the job description in order to accommodate a handicapped employee. Id. at 321-323. The Carr holding is dispositive of plaintiffs hcra claim. Even when the facts are viewed in the light most favorable to her, plaintiff merely asserts that she could have performed her job if defendant would have accommodated her lifting restriction. Pursuant to the holding in Carr, plaintiffs claim does not fall within the purview of the hcra. Simply stated, plaintiff was not handicapped because her disability related to her ability to perform the duties of the position; before its amendment, the hcra did not require this type of accommodation. As a result, plaintiffs claim fell outside the protections afforded by this statute. As defendant perceptively argues, had plaintiff been applying for the position of entry clerk, she would not have been eligible for employment because of the weight restrictions and, under the act then in effect, could not have pleaded a handicap within the meaning of the hcra. That is, defendant could have refused to hire plaintiff for this reason and would not have violated her civil rights by doing so. The fact that plaintiff was returning to work from a medical leave of absence rather than applying for the first time does not change her ability to utilize the statute. Plaintiff has attempted to avoid application of the Carr holding by asserting that this Court’s decision in Ashworth v Jefferson Screw Products, Inc, 176 Mich App 737, 744; 440 NW2d 101 (1989), controls the issue. Plaintiff argues that, pursuant to Ashworth, the hcra imposes a duty on employers to modify peripheral duties in order to allow job performance. Review of the Ashworth decision indicates that it was based on this Court’s holding in Rancour v Detroit Edison Co, 150 Mich App 276, 279; 388 NW2d 336 (1986). However, Rancour was decided before the Supreme Court’s Carr opinion and the Carr Court rejected the reasoning and arguments advanced in Rancour, effectively overruling that decision. Thus, to the extent that the reasoning relied on in Ashworth is inconsistent with our Supreme Court’s holding in Carr, we decline to follow it. As is well understood, this Court must comply with Supreme Court precedent. Boyd v W G Wade Shows, 443 Mich 515, 523; 505 NW2d 544 (1993). Accordingly, we must reject plaintiffs interpretation of Ashworth because such a reading would cause it to be inconsistent with the holding in Carr. Defendant next argues that the trial court erred in giving a special instruction that was premised on an error of law. Specifically, defendant argues that, relying on the decision in Rymar v Michigan Bell Telephone Co, 190 Mich App 504; 476 NW2d 451 (1991), the trial court erroneously instructed the jury: An employer must give its employees a reasonable time to heal, so long as the delay does not impede getting the employer’s work done. If you find that Plaintiffs handicap did adversely affect her capacity to do the work, it is your duty to decide whether, within a reasonable time, Plaintiffs disability and handicap [would have] ceased to adversely affect her capacity to do the work. We agree with defendant that the trial court erred in giving this instruction. In Rymar, this Court held that an employer must give an employee a reasonable time to heal if the handicap is temporary. Id. at 507. The plaintiff in Rymar argued that her employment was terminated without first affording her the same amount of leave time as received by other employees. The Rymar Court correctly concluded that, on the date of her termination, the plaintiff’s disability was related to her ability to do her job. The Court then stated, "However, there remains unanswered a question whether, within a reasonable time, her disability would cease to adversely affect her capacity to do the work.” Id. On the basis of this conclusion, the Rymar Court held that summary disposition was improper. Id. While we question the soundness of the reasoning in Rymar, we conclude that we are not constrained to follow it because Rymar is distinguishable. Unlike the plaintiff in Rymar, plaintiff in this case never alleged that defendant denied her adequate leave time. Indeed, it was defendant who urged plaintiff to take a medical leave of absence in April, 1989. Plaintiffs leave of absence did not expire until April, 1990. However, plaintiff made the decision to return to work approximately six months before the medical leave expired, effectively asserting that she was sufficiently healed to perform the duties of her job. If she could not perform those duties, she had no protections under the hcra and could be terminated as she, in fact, asserts she was. Because plaintiff made the conscious choice to cut her leave short and return to work, she will not now be heard to claim that defendant did not provide her adequate time to heal. Therefore, we hold that the trial court erred in giving the jury the "time to heal” instruction. Reversed and remanded for entry of an order of dismissal.

HALL v HACKLEY HOSPITAL Docket No. 168859. Submitted February 7, 1995, at Grand Rapids. Decided April 21, 1995, at 9:35 a.m. Audrey Hall brought an action in the Muskegon Circuit Court against Hackley Hospital, alleging violation of the Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq., as a result of the defendant’s failure to accommodate her need to work in a smoke-free environment because of asthma. The court, Michael E. Kobza, J., granted summary disposition for the defendant, pursuant to MCR 2.116(0(10), finding that the defendant was not required to ban smoking in the psychiatric unit where the plaintiff worked in order to accommodate the plaintiff. The plaintiff appealed and the defendant cross appealed, alleging that the court should have granted its motion pursuant to MCR 2.116(C)(7). The Court of Appeals held: 1. The plaintiff failed to establish a genuine issue of material fact regarding whether the defendant failed to accommodate the plaintiff as required by MCL 37.1102(2); MSA 3.550(102)(2). Therefore, summary disposition was proper. 2. The plaintiff did not show that a genuine issue of material fact existed regarding whether the defendant was required to ban smoking to satisfy its duty to accommodate the plaintiff. Even if the plaintiff had established such a prima facie case, the defendant met its burden of producing evidence that completely banning its patients from smoking would impose an undue hardship, and the plaintiff failed to prove by a preponderance of the evidence that banning smoking would not impose an undue hardship. 3. The defendant’s duty to accommodate the plaintiff did not require it to place the plaintiff in another job in the hospital. The act does not require placement in a new job. References Am Jur 2d, Job Discrimination § 173. Handicap as job disqualification under state legislation forbidding job discrimination on account of handicap. 78 ALR4th 265. Discrimination "because of handicap” or "on the basis of handicap” under state statutes prohibiting job discrimination on account of handicap. 81 ALR4th 144. What constitutes handicap under state legislation forbidding job discrimination on account of handicap. 82 ALR4th 26. Affirmed. 1. Civil Rights — Handicappers’ Civil Rights Act — Burden of Proof. A plaintiff seeking to recover under the Handicappers’ Civil Rights Act must allege and prove that the plaintiff is handicapped as defined by the act, the handicap is unrelated to the plaintiff’s ability to perform the duties of a particular job, and the plaintiff has been discriminated against in one of the ways set forth in the act (MCL 37.1103[e],[g],[l][i]; MSA 3.550[103] [e],[g],[l][i]). 2. Civil Rights — Handicappers’ Civil Rights Act — Duty of Accommodation — Burden of Proof. The Handicappers’ Civil Rights Act places the burden of proof on the handicapper to show that the defendant failed to accommodate the handicap; if the handicapper proves a prima facie case, the defendant must produce evidence that an accommodation would impose an undue hardship; if the defendant produces such evidence, the handicapper must prove by a preponderance of the evidence that an accommodation would not impose an undue hardship (MCL 37.1210[1]; MSA 3.550[210][1]). 3. Civil Rights — Handicappers’ Civil Rights Act — Duty of Accommodation — New Job Placement. An employer’s duty to accommodate a handicapped employee imposed by the Handicappers’ Civil Rights Act does not extend to new job placement (MCL 37.1210[1]; MSA 3.550[210][1]). Vander Ploeg, Ruck, Luyendyk & Wells (by Theodore N. Williams, Jr.), for the plaintiff. Culver, Lague & McNally (by Kevin B. Even), for the defendant. Before: Murphy, P.J., and Mackenzie and Hoekstra, JJ. Per Curiam;. In this action brought pursuant to the Michigan Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq., plaintiff appeals as of right the trial court’s' grant of summary disposition for defendant pursuant to MCR 2.116(C)(10) (no genuine issue of material fact), and defendant cross appeals as of right from the trial court’s refusal to grant summary disposition for defendant pursuant to MCR 2.116(C)(7) (claim barred by statute of limitations). We affirm. From 1983 to 1991, plaintiff, who was diagnosed with asthma when she was four years old, worked for defendant hospital in various capacities. In early 1991, plaintiff began working as a mental health worker in defendant’s Northwood Center, an approximately forty-eight-bed psychiatric unit located in a separate building adjacent to the hospital. Plaintiff’s duties at the center included interacting with, checking on, and helping patients throughout the day. Defendant’s smoking policy states that "[s]moking is prohibited in all areas of the hospital with the exception of one designated area for patients in Northwood Center.” At one time patients were apparently permitted to smoke throughout the center. However, in response to a grievance filed by the center’s mental health workers regarding the dangers of secondhand smoke, defendant designated two ventilated smoking rooms at the center and required patients to smoke only in those rooms. (Contrary to defendant’s stated smoking policy, there are actually two, not one, designated smoking areas.) One of the smoking rooms is for the general patient population and visitors and one is for psychiatric intensive care patients. The smoking room designated for the general patient population and visitors has a cigarette lighter on thé wall, but for safety reasons the smoking room designated for intensive care patients does not have such a lighter. Intensive care patients are required to have their cigarettes lighted by a nurse or mental health worker at an office located about twenty feet from the smoking room and walk to the smoking room to smoke the cigarette. Defendant’s rationale for permitting patients to smoke at the center is explained in the affidavit of the center’s medical director, Augustus F. Kinzel, M.D. The center’s patients typically have acute psychotic illnesses and are locked inside the center during their stay. They generally remain at the center for about nine days. Many of the patients are addicted to tobacco. They often have a very intense craving to smoke, and denying them cigarettes can lead to increased assaultive behavior, acute withdrawal, or profound depression resulting in further mental and physical deterioration. The decision to permit the patients to smoke reflects the center’s desire to first control the patient’s psychotic episode before addressing the patient’s tobacco addiction. Plaintiff was required to go into most of the rooms at the center, including both smoking rooms, as part of her duties. Although the air in the smoking rooms was recycled, cigarette smoke continued to permeate the center. Because of sinus and asthma problems, plaintiff left work on February 20, 1992, and sought medical treatment. Plaintiff’s doctor determined that she was the type of asthmatic who was sensitive to airborne irritants, such as tobacco smoke. Her doctor permitted her to return to work on February 29, 1992, but instructed her not to expose herself to tobacco smoke and not to work in a smoke-filled environment. On February 27, 1992, plaintiff went to defendant’s nursing office and informed defendant that she could not work in a smoke-filled environment. Defendant approved a medical leave of absence for plaintiff effective February 28, 1992. On March 18, Thomas Flack, defendant’s associate relations manager, met with plaintiffs supervisor, Mary Ehresman, and human resources employee Melanie Towne to determine if there was any way that plaintiff could continue to work at the center. They determined that, because plaintiff could not be exposed to smoke and the center permitted smoking, she could not continue to work at the center. Flack and Towne met with plaintiff on March 30, 1992, to discuss plaintiffs leave status and to determine whether she was permanently or temporarily banned from exposure to smoke. In June 1992, defendant offered plaintiff alternative employment as an environmental services aide, or janitor. However, plaintiff did not accept the position because she feared that airborne irritants associated with the work, such as dust and cleaning solvents, would aggravate her asthma and because the job was inappropriate for her skill level. On September 22, 1992, plaintiff wrote a letter to defendant asking defendant to attempt to reasonably accommodate her handicap. Flack met with plaintiff in October 1992 to discuss plaintiff’s request, but the substance or result of this discussion is not apparent from the record. On January 5, 1993, plaintiff filed suit pursuant to the hcra, MCL 37.1101 et seq.; MSA 3.550(101) et seq., alleging that defendant failed to accommodate her asthma as required by MCL 37.1102(2); MSA 3.550(102)(2). Defendant moved for summary disposition pursuant to MCR 2.116(C)(7) and MCR 2.116(0(10). The trial court granted defendant’s motion pursuant to MCR 2.116(0(10), but denied defendant’s motion pursuant to MCR 2.116(C)(7). Because we find that the trial court properly granted defendant’s motion for summary disposition pursuant to MCR 2.116(0(10), we need not address defendant’s argument that the trial court improperly denied its motion for summary disposition pursuant to MCR 2.116(C)(7). On appeal, our review of a motion for summary disposition pursuant to MCR 2.116(0(10) is de novo. Adkins v Thomas Solvent Co, 440 Mich 293, 302; 487 NW2d 715 (1992); Coleman-Nichols v Tixon Corp, 203 Mich App 645, 650; 513 NW2d 441 (1994). A motion for summary disposition under MCR 2.116(0(10) tests the factual sufficiency of a claim. Lichon v American Universal Ins Co, 435 Mich 408, 414; 459 NW2d 288 (1990). MCR 2.116(C) (10) permits summary disposition when, except with regard to the amount of damages, there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. In reviewing such a motion, this Court considers the pleadings, affidavits, depositions, admissions, and documentary evidence and grants the benefit of any reasonable doubt to the nonmoving party. Skinner v Square D Co, 445 Mich 153, 161-162; 516 NW2d 475 (1994). To recover under the hcra, a plaintiff must allege and prove that (1) the plaintiff is "handicapped” as defined by the hcra,* (2) the handicap is unrelated to the plaintiffs ability to perform the duties of a particular job, and (3) the plaintiff has been discriminated against in one of the ways set forth in the statute. Merillat v Michigan State Univ, 207 Mich App 240, 245; 523 NW2d 802 (1994); Ashworth v Jefferson Screw Products, Inc, 176 Mich App 737, 743; 440 NW2d 101 (1989). Because we find that plaintiff failed to establish a genuine issue of material fact regarding whether she has been discriminated against in one of the ways set forth in the hcra, specifically whether defendant failed to accommodate plaintiff as required by MCL 37.1102(2); MSA 3.550(102X2), we will assume, without deciding, that plaintiff established a genuine issue of material fact regarding the first two elements of her prima facie case. Plaintiff argues that defendant failed to satisfy its duty to accommodate as set forth in MCL 37.1102(2); MSA 3.550(102X2). MCL 37.1102(2); MSA 3.550(102)(2) provides: Except as otherwise provided in article 2, a person shall accommodate a handicapper for purposes of employment, public accommodation, public service, education, or housing unless the person demonstrates that the accommodation would impose an undue hardship. The hcra places the burden of proof on the handicapper to show that the defendant failed to accommodate the handicap. MCL 37.1210(1); MSA 3.550(210)(1). If the handicapper proves a prima facie case, the defendant bears the burden of producing evidence that an accommodation would impose an undue hardship. Id. If the defendant produces evidence that an accommodation would impose an undue hardship, the handicapper bears the burden of proving by a preponderance of the evidence that an accommodation would not impose an undue hardship. Id. Plaintiff argues that defendant reasonably could have done two things to accommodate her asthma. First, plaintiff argues that defendant could have banned smoking in the center. Second, plaintiff argues that defendant could have offered her another position in the hospital that did not involve exposure to cigarette smoke or other airborne irritants. We find that plaintiff did not establish a genuine issue of material fact regarding whether defendant reasonably satisfied its duty to accommodate plaintiff. Therefore, we conclude that summary disposition as a matter of law was appropriate. Defendant’s duty to accommodate plaintiff did not require defendant to ban smoking at the center. As the party opposing the motion for summary disposition, it was plaintiff’s burden to show that a genuine issue of material fact existed regarding whether defendant was required to ban smoking at the center to satisfy its duty to accommodate plaintiff. Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994). Plaintiff was required, by affidavits or documentary evidence, to set forth specific facts establishing that there was a genuine issue for trial. MCR 2.116(G)(4). We find that plaintiff failed to satisfy her burden of making such a showing. Plaintiff submitted no affidavits and the documentary evidence she submitted does not establish that a genuine issue of material fact existed regarding whether defendant was required to ban smoking to satisfy its duty to accommodate. Furthermore, even if plaintiff had established a prima facie case that defendant failed to satisfy its duty to accommodate plaintiff by not banning smoking at the center, defendant met its burden of producing evidence that completely banning its patients from smoking at the center would impose an undue hardship, and plaintiif failed to prove by a preponderance of the evidence that banning smoking at the center would not impose an undue hardship. MCL 37.1210(1); MSA 3.550(210X1). The affidavit of Augustus F. Kinzel, M.D., constituted evidence that there was a sound medical reason for the center’s decision to permit patients to smoke cigarettes and that to require a complete ban on cigarette smoking at the center would impose an undue hardship on defendant because such a ban would threaten the mental and physical health of its patients. We do not believe that the scope of defendant’s duty to accommodate plaintiffs asthma requires defendant to ban smoking at the center when there is a sound medical basis for permitting the patients to smoke, the center has attempted to limit human exposure to secondhand smoke by confining smoking to two ventilated rooms in the facility, and plaintiff failed to meet her burden of proving by a preponderance of the evidence that banning smoking would not impose an undue hardship on defendant. We caution that our decision that defendant is not required to ban smoking at the center to satisfy its duty to accommodate plaintiffs asthma should not be read as a general rule that an employer never has a duty to ban or restrict smoking to accommodate an established handicap. Our holding is narrow and turns on the specific facts of this case. The instant case is unique because of the special needs of the psychiatric patients at the center. Because of the patients’ acute psychotic illnesses, there are sound medical reasons for permitting the patients to smoke in designated areas. Balancing plaintiffs interest in imposing a complete ban on smoking against the patients’ interest in permitting smoking in limited areas, we conclude that the interests of the patients, on balance, must prevail. Although we can think of few, if any, other cases where such strong factors favor allowing patients to smoke, in this case, the patients’ medical needs are paramount. Therefore, we conclude that on the facts of this case, defendant was not required to ban smoking at the center to accommodate plaintiffs asthma. We also hold that defendant’s duty to accommodate plaintiff did not require defendant to place plaintiff in another job in the hospital because "[t]he duty to accommodate imposed under the handicappers’ act does not extend to new job placement.” Rancour v Detroit Edison Co, 150 Mich App 276, 279; 388 NW2d 336 (1986); see also Ashworth, supra, 744. Despite our holding, we recognize as we did in Rancour that there are legitimate public policy arguments that favor requiring an employer to place a handicapped employee in a new job, and we are mindful that the hcra is a remedial statute and that the duty to accommodate therefore should be liberally construed. Rancour, 284-285. However, we agree with our previous conclusion that the extent of the burden to be placed on employers to provide new jobs for employees with established handicaps "is a problem to be solved by the Legislature, not the judiciary.” Id., 286. Plaintiff contends that Rancour is inapplicable to the instant case because it was decided before the 1990 amendments of the hcra, 1990 PA 121. We disagree with plaintiffs position. After the 1990 amendments, the hcra specifically recognized the following types of accommodation: (1) purchasing equipment and devices; (2) hiring readers or interpreters; (3) restructuring jobs and altering schedules for minor or infrequent duties. MCL 37.1210(2X5), (8X11), and (14X15); MSA 3.550(210) (2X5), (8)-(ll), and (14)-(15). The 1990 amendments did not include a provision specifically requiring employers to reassign handicapped persons to new jobs to satisfy their duty to accommodate. In contrast, the Americans with Disabilities Act, 42 USC 12101 et seq., contains an explicit provision requiring employers to reassign handicapped persons to a vacant position to accommodate the person’s handicap. 42 USC 12111(9)(B). When it enacted the 1990 amendments, the Legislature could have enacted such a provision, but did not. Because the Legislature did not specifically establish a requirement that an employer must place a handicapped person in a new job to satisfy its duty to accommodate, we decline to read such a requirement into the hcra. See Michigan Residential Care Ass’n v DSS, 207 Mich App 373, 376; 526 NW2d 9 (1994). Furthermore, the Legislature is presumed to act with knowledge of appellate court statutory interpretations. Gordon. Sel-Way, Inc v Spence Bros, Inc, 438 Mich 488, 505-506; 475 NW2d 704 (1991). This Court decided Rancour in 1986. Four years later, in 1990, the Legislature amended the hcra, but did not address whether an employer’s duty to accommodate required the employer to place a handicapped employee in a new job. In light of the presumption that the Legislature acted with knowledge of this Court’s interpretation of the hcra in Rancour, we believe that if the Legislature had intended for the employer’s duty to accommodate to require the employer to place a handicapped employee in a new job, it would have adopted specific language clarifying that intent when it amended the hcra in 1990. Gordon, supra, 506. This Court is precluded from reading into the hcra something not otherwise clearly therein. Jefferson Schools v Detroit Edison Co, 154 Mich App 390, 393; 397 NW2d 320 (1986). Therefore, we conclude that contrary to plaintiff’s argument, Rancour is applicable to the instant case, and defendant was not required to place plaintiff in a new job to satisfy its duty to accommodate. In sum, we conclude that the trial court properly granted defendant’s motion for summary disposition pursuant to MCR 2.116(0(10). Plaintiff failed to establish a genuine issue of material fact regarding her claim that defendant failed to accommodate her handicap because defendant was under no duty to provide the type of accommodation sought by plaintiff. Thus, the trial court properly granted summary disposition as a

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

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

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

BENJAMIN WHITE v. N.C. DEPARTMENT OF CORRECTION No. 9312SC862 (Filed 3 January 1995) 1. Public Officers and Employees § 41 (NCI4th)— decision by State Personnel Commission — timeliness Though the State Personnel Commission did not make its decision in this case within 90 days after receiving the official record, it did make its decision within 90 days of its next regularly scheduled meeting; therefore, the decision was timely, and the trial court properly refused to find that the decision was made on unlawful procedure. N.C.G.S. § 150B-44. Am Jnr 2d, Civil Service §§ 52 et seq. 2. Public Officers and Employees § 67 (NCI4th)— inability of petitioner to perform job responsibilities — sufficiency of evidence to support findings There was no merit to petitioner’s argument that the State Personnel Commission erred in finding that he was not able to perform all his duties as a correctional officer where correctional officers were required to rotate through all positions, and the physician who examined petitioner concluded that he could not perform all the duties listed in the job description for a correctional officer. Am Jur 2d, Civil Service §§ 52 et seq. 3. Handicapped Persons § 25 (NCI4th)— inability to perform duties of correctional officer — risk to self and others— petitioner not qualified handicapped person — accommodations not required of respondent Because petitioner could not perform the duties of the job of correctional officer as defined in the job description and petitioner’s condition could create an unreasonable risk to himself, his fellow correctional officers, other inmates, and the public at large, petitioner was not a “qualified handicapped person,” and respondent was under no duty to make accommodations for petitioner’s physical condition. N.C.G.S. §§ 168A-3(4), 168A-3(9)(a). Am Jur 2d, Job Discrimination §§ 111 et seq. Accommodation requirement under state legislation forbidding job discrimination on account of handicap. 76 ALR4th 310. What constitutes handicap under state legislation forbidding job discrimination on account of handicap. 82 ALR4th 26. Who is “qualified” handicapped person protected from employment discrimination under Rehabilitation Act of 1973 (29 USCS §§ 701 et seq.) and regulations promulgated thereunder. 80 ALR Fed. 830. 4. Public Officers and Employees § 67 (NCI4th)— State employee put on permanent leave without pay — suspension — just cause required Respondent’s placement of petitioner on permanent leave without pay amounted to a suspension under the State Personnel Act, and the case is remanded for a determination of whether such suspension was made for just cause. N.C.G.S. § 126-35. Am Jur 2d, Civil Service §§ 52 et seq. Appeal by petitioner from order entered 16 April 1993 by Judge Wiley F. Bowen in Cumberland County Superior Court. Heard in the Court of Appeals 21 April 1994. Petitioner, a former employee of respondent N.C. Department of Correction, filed a grievance with respondent alleging that he had been placed on leave without pay discriminatorily because he had a handicapping condition and because he had earlier filed a grievance concerning his work place. Following a contested case hearing, Administrative Law Judge Robert Reilly, Jr. made a recommended decision that petitioner be reinstated. The full State Personnel Commission (the Commission), however, rejected the ALJ’s recommended decision and affirmed respondent’s decision to place petitioner on leave without pay. Petitioner appealed this decision to the superior court. Following a hearing on the matter, Judge Bowen entered an order on 16 April 1993, affirming the Commission’s order. From this order, petitioner appeals. Reid, Lewis, Deese & Nance, by James R. Nance, Jr., for petitioner-appellant. Attorney General Michael F. Easley, by Assistant Attorney General Valerie L. Bateman, for respondent-appellee. McCRODDEN, Judge. Relying upon fifteen assignments of error, petitioner argues the trial court erred in (I) determining that the Commission’s decision was not made upon unlawful procedure, (II) finding that the Commission’s decision was supported by substantial competent evidence, and (III) determining that the Commission’s order was not affected by error of law. The facts are as follows. In June 1990, petitioner was employed by respondent as a correctional officer at Hoke Correctional Institution in McCain, North Carolina. For security reasons, that facility required all correctional officers to rotate among all of the custody positions. On 22 June 1990, petitioner alleged that he pulled his back while trying to lift a trap door in one of the facility’s guard towers, tower number 3. He requested that he not be assigned to work in that tower until the door was repaired. He subsequently requested not to be assigned to another tower which had a particularly long spiral staircase. On 29 June 1990, petitioner filed a written grievance after he was again assigned to work in tower number 3. In response to this, the Assistant Superintendent Wilford Shields met with petitioner on 3 July 1990. Shields informed petitioner that for the time being he would not be assigned to work in tower number 3, but that he would be required to undergo an examination by a medical specialist to determine whether he could continue to perform his duties as a correctional officer. Petitioner continued to work, and on 24 July 1990, he was instructed that he should not report to work until the evaluation of his back had been performed. Petitioner then began to use his accumulated vacation and sick leave. On 7 August 1990, petitioner filed a claim with the N.C. Industrial Commission for workers’ compensation benefits for the injury to his back allegedly sustained on 22 June 1990. However, respondent refused to accept liability for petitioner’s claim because petitioner had failed to notify respondent of his injury immediately or within 30 days of the injury. On 17 August 1990, Dr. J.N. Ellis, who had examined petitioner, wrote to respondent to report on petitioner’s physical status, stating: In my opinion, based on his past injury and his current problems with degenerative joint disease in the spine, I do not think that he could perform all the duties listed in the job description of a Correctional Officer and [in the] Criminal Justice physical requirements, especially in regard to lifting, carrying and dragging heavy objects, and pursuing foot-fleeing subjects.... I would agree that he should be restricted from lifting greater than 25 pounds and should not do strenuous physical activity. By 22 August 1990, petitioner had exhausted all of his vacation and sick leave, and respondent placed him on unpaid leave status. Dr. Ellis examined petitioner again and wrote a second letter to respondent stating that petitioner was not totally disabled and that he was “capable of maintaining a job that is not as strenuous as described in his job description.” In reviewing a trial court’s consideration of an agency’s final decision, our task is to determine whether the trial court properly applied the standard of review mandated by N.C. Gen. Stat. § 150B-51 (1991). Walker v. N.C. Dept. of Human Resources, 100 N.C. App. 498, 502, 397 S.E.2d 350, 353 (1990), disc. review denied, 328 N.C. 98, 402 S.E.2d 430 (1991). That statute provides that a reviewing court may reverse or modify an agency’s decision if: [T]he substantial rights of the petitioners may have been prejudiced because the agency’s findings, inferences, conclusions, or decisions are: (3) Made upon unlawful procedure; (4) Affected by other error of law; [or] (5) Unsupported by substantial evidence ... in view of the entire record as submitted. N.C.G.S. § 150B-51. The standard of review the trial court applies depends upon the issues presented on appeal. Brooks, Com’r of Labor v. Rebarco, Inc., 91 N.C. App. 459, 463, 372 S.E.2d 342, 344 (1988). When an appellant alleges that the agency made an error of law, the trial court must review the matter de novo-, however, when the issue is the sufficiency of the evidence to support the agency’s order, it applies the whole record test. Id. The standard of review for administrative decisions is the same in the Court of Appeals as in superior court. Teague v. Western Carolina University, 108 N.C. App. 689, 691, 424 S.E.2d 684, 686, disc. review denied, 333 N.C. 466, 427 S.E.2d 627 (1993). We do not defer to the superior court’s decision. Id., at 691-92, 424 S.E.2d at 686. I. Petitioner’s first argument, that the Commission’s decision was made upon unlawful procedure, implicates the de novo standard of review, and therefore allows us to substitute freely our judgment for that of the Commission. Nonetheless, we find that the Commission’s decision was not grounded upon unlawful procedure. Petitioner argues that the Commission rendered its decision outside the time allowed. An agency such as the Commission has 90 days from the day it receives the official record in a contested case from the Office of Administrative Hearings, or 90 days after its next regularly scheduled meeting, whichever is longer, to make a final decision in a case. N.C. Gen. Stat. § 150B-44 (1991). In this case, the Commission received the official record on 5 December 1991 and rendered its decision on 30 April 1991, more than 90 days after it received the record. However, the Commission’s next regularly scheduled meeting after 5 December 1991 was 4 February. Petitioner concedes that the decision was rendered within 90 days of the 4 February meeting. Based on this admission, we conclude that the Commission timely made its decision and the trial court properly refused to find that the decision was made on unlawful procedure. II. Petitioner next argues that certain of the Commission’s findings were not supported by substantial evidence. We disagree. In addressing this issue, we use the whole record test, which means that we must examine all the competent evidence, including that which contradicts the Commission’s findings, to determine if the Commission’s findings were supported by substantial evidence. Henderson v. N.C. Dept. of Human Resources, 91 N.C. App. 527, 530-31, 372 S.E.2d 887, 889-90 (1988). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Thompson v. Board of Education, 292 N.C. 406, 414, 233 S.E.2d 538, 544 (1977) (quoting Commissioner of Insurance v. Rating Bureau, 292 N.C. 70, 79, 231 S.E.2d 882, 888 (1977)). In applying the whole record test to this case, we are not allowed to replace the Commission’s judgment as between two reasonably conflicting views of the evidence. Id. at 410, 233 S.E.2d at 541. Petitioner argues that the Commission erred in finding that he was not able to perform all his duties both because he was able to work after his injury and because Dr. Ellis stated that he was not totally disabled and could perform some of the duties of a correctional officer. However, we find that the Commission’s finding was well supported. In light of the fact that correctional officers at Hoke were required to rotate through all positions, Dr. Ellis’ conclusion that petitioner could not perform all of the duties listed in the job description for a correctional officer, is certainly substantial evidence supporting the Commission’s finding. We find petitioner’s further assertion, that the Commission erred in finding that his handicap renders him not fit by definition to be a correctional officer, similarly meritless. Dr. Ellis’ opinion that respondent could not perform all of the duties of a correctional officer as listed in the job description adequately supports the Commission’s finding. III. In his next three arguments, petitioner alleges errors of law, again requiring us to review the issues de novo. Petitioner argues that the Commission misapplied the law in determining that the respondent did not owe petitioner a duty to make reasonable accommodations for petitioner’s condition. We disagree. When a “qualified handicapped person” requests that an accommodation be made for his handicapping condition, his employer must investigate whether there are reasonable accommodations that can be made and must make reasonable accommodations for the person’s condition. N.C. Gen. Stat. § 168A-4 (1987). Assuming without deciding that petitioner is a “handicapped person,” as that term is defined in N.C. Gen. Stat. § 168A-3(4) (1987), we conclude that petitioner is not a “qualified handicapped person.” That term means: With regard to employment, a handicapped person who can satisfactorily perform the duties of the job in question, with or without reasonable accommodation, (i) provided that the handicapped person shall not be held to standards of performance different from other employees similarly employed, and (ii) further provided that the handicapping condition does not create an unreasonable risk to the safety or health of the handicapped person, other employees, the employer’s customers, or the public. N.C.G.S. 168A-3(9)(a). The evidence demonstrates that the petitioner could not perform the duties of the job of correctional officer as defined in the job description. Furthermore, given the fact that the job of correctional officer entails the supervision of inmates, we believe that petitioner’s condition, which renders him unable to pursue foot-fleeing inmates or physically subdue them effectively, could create an unreasonable risk to himself, his fellow correctional officers, other inmates and the public at large. As petitioner was not a “qualified handicapped person,” we conclude that respondent was under no duty to make accommodations for petitioner’s physical condition. Next, petitioner argues that the Commission misinterpreted the workers’ compensation law in making its decision. The Commission found that “ [petitioner did not file a worker’s compensation claim about his alleged injury until August 7, 1990, even though departmental policy, about which he knew, required him to notify the agency immediately or, at the latest, within 30 days of his work-related injury.” Petitioner does not contend that he actually filed a claim within 30 days of his injury or that he did not know of the respondent’s policy concerning workers’ compensation claims. Rather, he claims that “[t]his finding adds nothing to the decision except to give the department an excuse as to why it didn’t give [petitioner] an accommodation.” We agree that this finding added nothing to the Commissions order but, having determined that respondent did not owe petitioner the duty to make accommodation for his condition, find that its inclusion was harmless. We reject these assignments of error. Finally, petitioner argues that the Commission erred in failing to conclude, as the AU had determined, that by placing petitioner on unpaid leave, respondent actually suspended him without cause. The Commission accepted the AU’s finding that petitioner was a permanent State employee subject to the State Personnel Act, N.C. Gen. Stat. §§ 126-1 to -88 (1993). However, the Commission refused to adopt each of the AU’s conclusions of law. In his first conclusion, the AU stated: The petitioner was a permanent State employee subject to the State Personnel Act. Involuntary placement on permanent leave without pay status for alleged inability to perform the duties of the job is the equivalent of being discharged, suspended and involuntarily separated for disciplinary reasons under GS 126-35. The respondent is required to establish just cause. The respondent failed to establish the required substantive just cause. Furthermore, the respondent failed to afford the petitioner the benefits of progressive warnings required by GS 126-35. It is arbitrary and capricious to deny the petitioner the opportunity to establish that he is able to perform the essential duties of a correctional officer despite his back injury. State agencies may not discharge or suspend a permanent State employee except for just cause. N.C.G.S. § 126-35. Before subjecting a State employee to such disciplinary action, the State shall furnish him with a written statement of the grounds for the action and of the employee’s appeal rights. Id. This section requires that a State employee be given three warnings before he may be terminated. Jones v. Dept. of Human Resources, 300 N.C. 687, 691, 268 S.E.2d 500, 502 (1980). It is uncontested that petitioner received no such warning. Thus, the question presented for our de novo review is: when respondent placed petitioner on leave without pay, was this the equivalent of suspension for disciplinary reasons within the meaning of N.C.G.S. § 126-35? We conclude that it was. Respondent asserts that leave without pay is not a sanction but a benefit offered to State employees. It is true that Subchapter IE of Title 25 of the North Carolina Administrative Code, which contains the regulation relating to leave without pay, is entitled “Employee Benefits.” It is also true that a State agency is required to reinstate an employee who takes leave without pay at his previous position or at one of like seniority, status and pay. N.C. Admin. Code tit. 25, r. IE. 1104 (January 1994). However, the leave without pay described in Subchapter IE is voluntary leave, initiated by the employee. See N.C. Admin. Code tit. 25, r. IE. 1103 (“The employee shall apply in writing to his supervisor for leave without pay.”). In this case, petitioner made no application for leave without pay. Instead, respondent placed him involuntarily on sick leave until his accumulated time elapsed, then required him to expend his accumulated vacation, and finally placed him on leave without pay. This was, in essence, a suspension, which could not be made without just cause. Neither the Commission nor the trial court made any findings relative to the issue of whether respondent suspended petitioner without just cause. Having concluded that the respondent’s placement of petitioner on permanent leave without pay amounted to a suspension under the State Personnel Act, we remand the case for a determination of whether such suspension was made for just cause. Remanded. Chief Judge ARNOLD and Judge GREENE concur. Opinion written and concurred in prior to 16 December 1994.

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

BRENDA GRAVITTE, Plaintiff v. MITSUBISHI SEMICONDUCTOR AMERICA, INC., Defendant No. 9114SC967 (Filed 6 April 1993) 1. Handicapped Persons § 1 (NCI4th) — back problems —inability to do particular job —no major life activity limited —plaintiff not handicapped —employer not required to reasonably accommodate “handicap” Plaintiff was not a “handicapped person” within the meaning of N.C.G.S. § 168A-1 et seq. (the “North Carolina Handicapped Persons Protection Act”), and the trial court therefore properly granted defendant’s summary judgment motion on plaintiffs claim that defendant employer failed to make reasonable accommodation to her handicap in violation of N.C.G.S. § 168A-4, since plaintiff would be unable to show at trial that her physical impairment limited a “major life activity” where evidence in the record indicated that plaintiff experienced some pain in her lower back and that she was under a physician’s order not to lift more than 40 pounds, to avoid repetitive bending at the waist, and to avoid prolonged sitting or standing without changing position; the activities which caused plaintiff pain and discomfort were not those essential tasks one must perform on a regular basis in order to carry on a normal existence; and plaintiff was not “handicapped” merely because she could not perform one particular type of job. N.C.G.S. § 168A-3(4)(i). 2. Labor and Employment § 63 (NCI4th)— at-will employee — resignation —no claim for wrongful discharge The trial court properly granted defendant’s motion for summary judgment on plaintiff’s claim for wrongful discharge where plaintiff, an at-will employee, tendered her resignation after asking to be transferred to another position and being told that none was currently available, since a plaintiff who voluntarily resigns defendant’s employ cannot bring a claim for wrongful discharge. Am Jur 2d, Master and Servant §§ 27-33. Modern status of rule that employer may discharge at-will employee for any reason. 12 ALR4th 544. Modern status as to duration of employment where contract specifies no term but fixes daily or longer compensation. 93 ALR3d 659. Right of corporation to discharge employee who asserts rights as stockholder. 84 ALR3d 1107. Reduction in rank or authority or change of duties as breach of employment contract. 63 ALR3d 539. Employer’s termination of professional athlete’s services as constituting breach of employment contract. 57 ALR3d 257. Appeal by plaintiff from order entered 15 May 1991 by Judge J.B. Allen, Jr., in Durham County Superior Court. Heard in the Court of Appeals 13 October 1992. McCreary & Read, by Daniel F. Read, for plaintiff-appellant. Poyner & Spruill, by Cecil W. Harrison, Jr. and Laura ■Broughton Russell, for defendant-appellee. JOHN, Judge. Plaintiff appeals from summary judgment dismissing her claims against defendant for violation of G.S. § 168A-1 et seq. (the “North Carolina Handicapped Persons Protection Act”) and for wrongful discharge. We affirm the trial court. The pleadings, depositions, answers to interrogatories, affidavits, and other materials before the trial court indicate the following: While working for defendant in 1988, plaintiff sustained a back injury and subsequently took several leaves of absence. During her absence, plaintiff received worker’s compensation benefits and defendant paid her medical bills. According to plaintiff, defendant “put me on leave until their doctor, the physical therapist, and my doctor agreed that it was okay for me to come back.” By letter dated 20 March 1990, Dr. Peter Bronec (plaintiff’s physician) advised defendant that plaintiff could return to work if certain restrictions were followed. In pertinent part his letter provides: Brenda Gravitte is suffering from chronic musculoligamentous strain of the lumbar spine which is also associated with mild degenerative disease o[f] the lumbar spine. This is usually the result of excessive stress to the lower lumbar region as is encountered with heavy lifting and repetitive bending at the waist. She is able to do well as long as she stays within certain activity restrictions. Specifically, I have recommended that she not lift more than 40 pounds, avoid repetitive bending at the waist, and avoid prolonged sitting or standing in one place .... I expect her to remain under these restrictions permanently. As long as she can remain within these restrictions, I see no reason why she cannot work. It is my understanding that there is an aspect of her current job which requires more lifting than the restrictions. This seems to have been giving her the most trouble. I understand . . . that this weight could be broken up into smaller weights. However this has apparently caused some discord among the other employees, therefore Brenda has felt compelled to lift the entire weight. If this problem cannot be rectified then she would not be able to continue performing that job. If there is no other job currently available under these guidelines, than [sic] it might be appropriate to place her on medical leave until such time that a satisfactory job becomes available. I do not feel that any length of medical leave will allow her to return to a job which exceeds these restrictions as she has proven in the past. On 6 April 1990 plaintiff returned to her position as an Operator in defendant’s Plating Department. Before doing so, plaintiff, as well as Sheila Barnes, her supervisor, and E. L. Fricke, defendant’s human relations supervisor, signed a “Memorandum of Understanding” which provided inter alia that plaintiff’s return was “contingent upon [her] compliance with the stipulations as set down by Dr. Peter Bronec” and listed several “restrictions and conditions” which comport with those set forth in the physician’s letter. Plaintiff thereafter sought transfer to other positions, but was told there were no openings. On 18 May 1990 she resigned. In her letter of resignation plaintiff stated: It is with regret that I am turning in my two weeks’ notice. As you and human resources are aware and have been, the medical problems that I have had in plating [sic]. After coming back from medical leave this last time I was informed that modifications were made in plating to accom[mo]date my situation with working in the plating department. The only modifications were two temporary people were added, only one remains. One was discharged 4-26-90. With the amount of work that we have it’s hard for the other operator to stop what she’s doing and do the heavy part of my job. Also if I lift one magazine at the time to load the oven or carry it ... to plating the increased amount of twisting at the waist gives me a lot of pain in my back. I’ve discussed this with Dr. Bronec and he has advised me that if the problems with this particular job cannot be rectified then if the company does not see fit to put me in another job that is not so strenuous on me that I should seek employment else where [sic]. As I have stated I’ve been through channels and ask[ed] for something else but have been told there is nothing else in the plant for me to do. I had planned to stay with MSAI until retirement, being as I have been employed here 5 years [on] May 13, 1990. But my health will not permit me to remain in this job, and the company says there’s nothing else that I can do. Plaintiff contends the trial court erred by granting defendant’s motion for summary judgment. Under Rule 56(c), N.C. Rules of Civil Procedure, summary judgment should be granted only “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 any party is entitled to a judgment as a matter of law.” The party moving for summary judgment bears the burden of establishing the lack of any triable issue, Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 414 S.E.2d 339 (1992), and may meet this burden by (1) proving that an essential element of the opposing party’s claim is nonexistent; (2) showing through discovery that the opposing party cannot produce evidence to support an essential element; or (3) showing that the opposing party cannot surmount an affirmative defense. Roumillat at 63, 414 S.E.2d at 342. I. In her first claim, brought under the North Carolina Handicapped Persons Protection Act, G.S. § 168A-1, et seq. [hereinafter the Act], plaintiff alleges that she is a “qualified handicapped person” within the meaning of the Act and that defendant failed to make reasonable accommodation to her handicap in violation of G.S. § 168A-4. The question of whether one is a “qualified handicapped person” under the Act must be preceded by a determination that one is a “handicapped person.” G.S. § 168A-30). The Act defines a “handicapped person” as “any person who (i) has a physical or mental impairment which substantially limits one or more major life activities-, (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment. G.S. § 168A-3(4) (emphasis added). “Major life activities” are defined as “functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, and learning.” G.S. § 168A-3(4)b. In Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 388 S.E.2d 134 (1990), the North Carolina Supreme Court recently considered what constitutes a “major life activity” under the Act. In Burgess, the plaintiff was discharged from his position as a short order cook after testing positive for the Human Immunodeficiency Virus (HIV), the agent currently recognized as responsible for Acquired Immune Deficiency Syndrome (AIDS). Although the plaintiff was asymptomatic for the AIDS disease itself, he nevertheless contended that, because he was discharged due to his affliction, he was regarded as having an impairment that limited a major life activity, “working.” In upholding the trial court’s grant of defendant’s motion to dismiss made pursuant to Rule 12(b)(6), N.C. Rules of Civil Procedure, the Burgess Court noted that the Act is narrower in scope than the federal act which specifically encompasses “working.” Burgess at 213-214, 388 S.E.2d at 138-139. “As an asymptomatic carrier of HIV, plaintiff has failed to show that he has any condition that would substantially limit his ability to perform any of the physical or mental tasks listed in the . . . Act as major life activities.” Id. at 214, 388 S.E.2d at 139. The Court also rejected the argument that (1) the ability to bear a healthy child or (2) the ability to engage in sexual relationships constitute “major life activities.” Id. “Major life activities” encompass only those “essential tasks one must perform on a regular basis in order to carry on a normal existence.” Id. Under Burgess then, plaintiff’s condition must limit more than her mere ability to work a particular job in order for it to affect a “major life activity.” The functions which are limited must be those listed in G.S. § 168A-3(4)b or “of the same nature as those listed.” Burgess at 214, 388 S.E.2d at 139. Evidence in the record here indicates that plaintiff experienced some pain in her lower back and that she was under a physician’s order not to “lift more than 40 pounds, [to] avoid repetitive bending at the waist, and [to] avoid prolonged sitting or standing in one place without the opportunity to move around and change position.” In her deposition, plaintiff asserted that repetitive lifting of objects weighing 40 pounds did not bother her, but rather it was the repetitive “twisting, turning, reaching, stooping, bending.” Of further note is a physician’s evaluation from 29 May 1990, 11 days after plaintiff’s employment ceased, that “[s]ince she has been out of work . . . the discomfort is slowly improving.” This physician assessed plaintiff’s condition as “[mjild recurrent low back pain. Probable musculoligamentous strain.” Based upon the foregoing, we conclude that plaintiff at trial will be unable to produce evidence in support of an essential element of her claim, that is, that her physical impairment limits a “major life activity” so as to bring her under the purview of G.S. § 168A-3(4)(i). The activities which cause plaintiff pain and discomfort simply are not those “essential tasks one must perform on a regular basis in order to carry on a normal existence.” Plaintiff is not “handicapped” merely because she cannot perform one particular type of job. We further note there is no evidence indicating plaintiff is a “handicapped person” as defined in either G.S. §§ 168A-3(4)(ii) or (iii). Since plaintiff is not a “handicapped person” as contemplated in the Act, the trial court properly granted defendant’s motion for summary judgment as to plaintiff’s first claim. II. Plaintiff’s second contention is that the trial court erred in dismissing her claim for wrongful discharge. We disagree. In North Carolina, the general rule is that, absent an employment contract for a definite period of time, both employer and employee are generally free to terminate their association at any time and without reason. Salt v. Applied Analytical, Inc., 104 N.C.App. 652, 655, 412 S.E.2d 97, 99 (1991), disc. review denied, 331 N.C. 119, 415 S.E.2d 200 (1992). This typical working relationship is known as “employment-at-will.” It is uncontroverted that plaintiff was an “at-will” employee. An exception to the employment-at-will doctrine exists where an employee is discharged for “an unlawful reason or purpose that contravenes public policy.” Coman v. Thomas Manufacturing Co., Inc., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989), quoting Sides v. Duke Hospital, 74 N.C.App. 331, 342, 328 S.E.2d 818, 826, disc. review denied, 314 N.C. 331, 333 S.E.2d 490 (1985). Plaintiff argues this exception is applicable to her. We disagree. To proceed under this exception, plaintiff must allege facts which indicate that she was in fact “discharged.” If plaintiff voluntarily resigned defendant’s employ, she cannot bring a claim for wrongful discharge. Here, plaintiff tendered her resignation after asking to be transferred to another position and being told that none was currently available. There is no evidence that she was ever subjected to a reduction in wages, and there is no indication that defendant suggested, much less threatened, that she would be terminated for any reason. Instead, the record shows: (1) that defendant paid plaintiff workers’ compensation benefits including medical bills and disability compensation; and (2) that defendant attempted to accommodate plaintiff’s medical condition. On these facts, it is clear plaintiff was not “discharged” by any act of defendant. Accordingly, the trial court properly granted defendant’s motion for summary judgment on plaintiff’s claim for wrongful discharge. The trial court’s order granting defendant’s motion for summary judgment is affirmed. Judges EAGLES and ORR concur.

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

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.