Harassment Cases

Universities and colleges—Civil rights—Graduate student's formal complaint of sexual harassment against tenured professor—Employment contract provides procedures \for dismissal or removal from tenure\—Removal procedures not followed and contract breached, when.

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

Public employment—Demotion of captain to sergeant based on his repeated sexual harassment of female correctional officers who worked under his supervision, upheld.

PEGGY S. BRYANT, Plaintiff v. THALHIMER BROTHERS, INC. and SCRUGGS COLVIN, Defendants No. 9121SC814 (Filed 21 December 1993) 1. Intentional Infliction of Mental Distress § 2 (NCI4th)— statute of limitations — acts more than three years before claim filed Evidence of sexual harassment and retaliation which occurred more than three years prior to the filing of plaintiff’s claim against her supervisor and employer for intentional infliction of emotional distress did not constitute evidence of complete and separate torts but was evidence of elements of the claim itself and was not barred by the three-year statute of limitations. Furthermore, plaintiff’s claim was not barred by the statute of limitations where she presented evidence of specific incidents which occurred within three years of the filing of her claim and of medical treatment for emotional distress that she received during that time as a result of her supervisor’s conduct. Am Jur 2d, Fright, Shock, and Mental Disturbance § 17. 2. Evidence and Witnesses § 1174 (NCI4th) — summary judgment hearing —statements by attorney — not judicial admissions Statements made by plaintiff’s counsel to the trial court during a summary judgment hearing to the effect that plaintiff was not seeking damages for events occurring more than three years before the complaint was filed did not constitute judicial admissions and were not binding on the plaintiff in the subsequent trial. Am Jur 2d, Evidence §§ 597, 615, 665. 3. Intentional Infliction of Mental Distress § 3 (NCI4th) — sufficiency of evidence against supervisor — employer’s ratification of supervisor’s acts Plaintiff’s evidence of conduct and intent was sufficient for submission to the jury of plaintiff’s claim against her former supervisor for intentional infliction of emotional distress where it tended to show that when plaintiff rebuffed sexual advances by defendant supervisor, he began treating plaintiff unfairly, repeatedly threatened her and her job, and created situations in which she could not effectively do the work assigned to her; plaintiff received unfavorable evaluations, was required to hire staff persons she felt were unqualified, and was called names such as “Nazi,” “Rambo,” and “Gestapo” by defendant supervisor; and defendant supervisor’s conduct caused plaintiff to seek medical attention from two doctors and to resign from her job. Furthermore, the evidence supported plaintiff’s claim that defendant employer ratified the acts of defendant supervisor so that the employer was liable for his actions where it tended to show that plaintiff submitted twenty-two complaints about her supervisor to the employer’s personnel manager and held conversations with other management personnel about defendant’s conduct; plaintiff’s discussions with management personnel which she thought were held in confidence were reported to defendant supervisor; management personnel told plaintiff that complaints of that nature were not welcome from employees; nothing was ever done about defendant supervisor’s conduct toward plaintiff; plaintiff was told that she had a bad attitude and was placed on probation; and plaintiff thereafter resigned her job. Am Jur 2d, Fright, Shock, and Mental Disturbance § 17. 4. Jury § 68 (NCI4th)— jury less than twelve —stipulation — excusal of jurors for “guilty” rather than “innocent” reasons Where the parties in an action for intentional infliction of emotional distress stipulated at the beginning of the trial that the trial could proceed with a jury of ten persons if necessary, the trial court did not abuse its discretion in the denial of defendants’ motions for a mistrial and a new trial because the verdict was rendered by a ten-person jury after the trial court excused two jurors who had read a newspaper article reporting that the court had allowed defendants’ pretrial motion to suppress evidence of the individual defendant’s sexual involvement with other women employed by defendant employer. There was no merit to defendants’ argument that their agreement to a jury of ten persons was only to allow the trial to proceed in the event of illness or emergency of jurors, an “innocent” reason, and not to allow a jury of less than twelve for the “guilty” reason that two jurors had read a newspaper article about evidence excluded by pretrial motion, since an agreement to have a verdict by less than twelve jurors does not depend on whether the jurors are excused for an “innocent” rather than a “guilty” reason. Am Jur 2d, Jury § 124 et seq. Appeal by defendants from judgment entered 25 January 1991 in Forsyth County Superior Court by Judge James A. Beaty, Jr. Heard in the Court of Appeals 15 September 1992. This action arises out of a female employee’s complaints against a male supervisor at Thalhimer Brothers in Winston-Salem. Plaintiff was employed by Thalhimers from September 1982 until her resignation in February 1987. The plaintiff filed suit on 5 December 1989, seeking damages for intentional infliction of emotional distress, wrongful termination, and negligent retention. The complaint alleged that the defendant Scruggs Colvin, who was employed by Thalhimers as the regional manager in loss prevention in 1984, began harassing her sexually in early 1985. The plaintiff further alleged that when she rebuffed the sexual advances of her supervisor, he began treating her unfairly in an attempt to force her resignation. From 1986 until her resignation, the complaint alleged that he repeatedly threatened her and her job, while creating situations in which she could not effectively do the work assigned to her. She received unfavorable evaluations, she was required to hire staff persons that she felt were unqualified, and she was called names such as “Nazi”, “Rambo”, and “Gestapo” by the defendant. Plaintiff contended that during this period she complained to supervisory personnel with the corporation about these incidents of harassment and retaliation. The defendants’ answer denied the material allegations of the complaint and raised, inter alia, the affirmative defense of the three-year statute of limitations. The defendants asserted that the statute barred recovery for damages for events which occurred prior to 5 December 1986. Defendants moved for summary judgment on that basis. The motion was denied on 15 November 1990. Just prior to trial, the defendants filed motions in limine seeking to exclude evidence of Defendant Colvin’s prior sexual relationships with other employees of Thalhimers and to exclude evidence of events that was barred by the statute of limitations. Additionally, they filed a motion to compel admissions based on representations made by plaintiff’s counsel during the earlier summary judgment hearing to the effect that the plaintiff was not seeking damages for events occurring prior to 5 December 1986. The motion to exclude the evidence of past relationships was allowed, while the motion to exclude the incidents prior to December 1986 and the motion to compel admissions were denied. Jury selection was completed on 9 January 1991. The next day, an article appeared in the Winston-Salem Journal which reported the evidence of the prior sexual relationships of Defendant Colvin and that it had been excluded from the trial. Two of the jurors had read the article and were excused by the judge. Three other jurors were aware of the article, and one juror had been told by her husband not to read the article. Defendants moved for a mistrial, having produced evidence that the plaintiff’s counsel had released the excluded evidence to the newspaper. That motion was denied. The trial proceeded with ten jurors. At the close of plaintiff’s evidence, defendants moved for a directed verdict which was denied and subsequently renewed at the close of all the evidence. At that time, the trial court allowed the motion with respect to the wrongful termination claim. The claim for intentional infliction of emotional distress went to the jury on 23 January 1991. The trial judge denied the defendants’ request for an instruction on the three-year statute of limitations. The following day, the jury returned a verdict for the plaintiff of $25,000.00 in compensatory damages and $225,000.00 in punitive damages. On 1 February 1991, the defendants filed motions for judgment notwithstanding the verdict and a new trial. These motions were denied by the trial judge. Defendants appeal from the judgment entered upon the jury verdict. Kennedy, Kennedy, Kennedy & Kennedy, by Harold L. Kennedy, III, Harvey L. Kennedy and Annie Brown Kennedy, for plaintiff-appellee. Haynsworth, Baldwin, Johnson and Greaves, P.A., by Charles P. Roberts III and Gregory P. McGuire, for defendant-appellants. ORR, Judge. We note at the onset that we are in our discretion addressing the merits of the defendants’ first argument pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure. The issue has not been raised properly. As a result of incorrect pagination, the page stating the argument and referencing the assignment of error has been omitted. Ordinarily, if a party fails to include references to the assignment of error, the question is deemed abandoned and will not be considered on appeal. However, “[t]o prevent manifest injustice to a party, or to expedite a decision in the public interest . . .”, Rule 2 allows us to waive this requirement and proceed to the merits. See State v. Shelton, 53 N.C. App. 632, 635, 281 S.E.2d 684, 688 (1981), appeal dismissed and cert. denied, 305 N.C. 306, 290 S.E.2d 707 (1982). I. The defendants have raised eight assignments of error for review by this Court. Initially, we address those issues which revolve around the applicable statute of limitations and the exclusion of evidence of conduct of Defendant Colvin which occurred prior to 5 December 1986. Defendants first contend that the trial court committed reversible error in denying their motions for directed verdict and judgment notwithstanding the verdict because the plaintiff’s claim arising out of the defendants’ conduct prior to 5 December 1986 was barred by the three-year statute of limitations applying to claims of intentional infliction of emotional distress. Secondly, they argue that plaintiff’s counsel made admissions during the arguments on preliminary motions that effectively foreclosed plaintiff seeking damages for events occurring prior to 5 December 1986. Third, they argue that the trial judge committed error in refusing to instruct the jury on the applicable statute of limitations. Finally, they assert that the trial court’s denial of the defendants’ motion in limine to exclude evidence of events prior to 5 December 1986 was reversible error. We hold that the evidence of conduct occurring prior to the 5 December 1986 date was not evidence of complete and separate torts, but rather was evidence of the elements of the claim itself and therefore, was not barred by the statute of limitations. Accordingly, we overrule the defendants’ assignments of error based on the statute of limitations. A. The defendants assert that the plaintiffs claim for intentional infliction of emotional distress is barred by the three-year statute of limitations found at N.C. Gen. Stat. § 1-52(5). See also Waddle v. Sparks, 100 N.C. App. 129, 394 S.E.2d 683 (1990), aff’d in part and reversed in part on other grounds, 331 N.C. 73, 414 S.E.2d 22 (1992). It is well settled in North Carolina that in determining whether the evidence is sufficient to withstand a motion for a directed verdict, the plaintiff’s evidence must be taken as true and all the evidence must be viewed in the light most favorable to her, giving her the benefit of every reasonable inference which may be legitimately drawn therefrom, with conflicts, contradictions, and inconsistencies being resolved in the plaintiffs favor. Hornby v. Pennsylvania National Mutual Casualty Insurance Co., 62 N.C. App. 419, 303 S.E.2d 332, cert. denied, 309 N.C. 461, 307 S.E.2d 364 (1983). Where more than a scintilla of evidence has been presented by the plaintiff which supports each element of his prima facie case, a directed verdict should be denied. Snead v. Holloman, 101 N.C. App. 462, 400 S.E.2d 91 (1991). A motion for a judgment notwithstanding the verdict is essentially the renewal of the directed verdict motion, and the standards are the same. Miller v. Cannon Motors, Inc., 40 N.C. App. 48, 257 S.E.2d 925 (1979). Both motions serve to test the sufficiency of the evidence presented at trial, first after the plaintiff’s case in chief and then again after the jury’s decision. In order to prove a claim for intentional infliction of emotional distress, the plaintiff is required to show that the defendant (1) engaged in extreme and outrageous conduct, (2) which was intended to cause and did cause (3) severe emotional distress. Hogan v. Forsyth Country Club, 79 N.C. App. 483, 340 S.E.2d 116, review denied, 317 N.C. 334, 346 S.E.2d 140 (1986). The tort may also lie where a “defendant’s actions indicate a reckless indifference to the likelihood that they will cause severe emotional distress.” Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 330 (1981). The statute of limitations for the tort of intentional infliction of emotional distress is three years. Id. at 444, 276 S.E.2d at 330. “Civil actions can only be commenced . . . [within the three-year period], after the cause of action has accrued, . . . .” N.C. Gen. Stat. § l-15(a) (1983). The recent decision by the North Carolina Supreme Court, Waddle, 331 N.C. 73, 414 S.E.2d 22, held that where the plaintiff could not show that “any of the specific incidents” took place within the statutory period, she could not survive a motion for summary judgment. In Waddle, suit was filed on 20 April 1988. Both plaintiffs alleged intentional infliction of emotional distress in response to repeated harassment and sexual innuendoes by the defendant Sparks. The purported harassment began sometime in 1983. Both the defendants pleaded the statute of limitations as an affirmative defense in their answer and moved for summary judgment on that basis after depositions of the plaintiffs were taken. The co-plaintiff, Simpson, could not produce evidence of any specific acts of harassment within three years of the filing of the suit. “Not only could she not remember a day or month when any of defendant’s alleged comments of a sexually suggestive nature occurred, but she also failed to recall the year they occurred.” Waddle, 331 N.C. at 86, 414 S.E.2d at 29. “If plaintiff Simpson could have testified that any of the specific incidents with Sparks occurred as late as February of 1986, her evidentiary forecast . . . would have been sufficient to survive a summary judgment motion based on the statute of limitations.” Id. at 87, 414 S.E.2d at 29. The issue in Waddle, as to the plaintiff Simpson, was whether there was sufficient evidence of each element of the tort to create an issue for the jury to decide at trial. Simpson could not show any evidence of one of the elements of the tort, and therefore, summary judgment was appropriate. However, the Court in no way suggested that the prior occurrences would have been excluded at trial, nor was the issue of exclusion of evidence before the Court. Moreover, in the case at bar, there were two incidents occurring on or after 5 December 1986. Therefore, there was sufficient evidence to create an issue to be decided at trial, certainly when combined with evidence of the incidents of alleged conduct which took place in 1985. The defendants rely on the rule of Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325, which established that three years is the applicable statute of limitations for claims of intentional infliction of emotional distress and that evidence of the defendants’ intentional torts against the plaintiff which took place prior to the applicable limitations period may not be considered in determining damages. However, both the law and the facts of Dickens are distinguishable from the case at bar. In Dickens, the plaintiff alleged intentional infliction of emotional distress in his complaint which was filed more than one year and less than three years after the incident complained of took place. The action arose out of a single occurrence during which the defendant not only committed an assault and battery (governed by the one-year statute of limitations of G.S. § 1-54(3)) against the plaintiff, but also made significant threats of future harm. The defendant argued that the action was only one for assault and battery, although cast as one for intentional infliction of emotional distress. They further argued that even if the plaintiff had alleged a cause of action for emotional distress, that it, too, was governed by the one-year statute. The Supreme Court disagreed, finding that the more general language of G.S. § 1-52(5) controlled the intentional infliction claim and that the plaintiff’s showing was sufficient to create an actionable claim for emotional distress. The Court concluded that “[although the assaults and batteries serve to color and give impetus to the future threat and its impact on plaintiff’s emotional condition, plaintiff may not recover damages flowing directly from the assaults and batteries themselves.” Dickens, 302 N.C. at 455, n. 11, 276 S.E.2d at 336 (emphasis added). The Court further stated that, “[although plaintiff’s recovery for injury, mental or physical, directly caused by the assaults and batteries is barred by the statute of limitations, these assaults and batteries may be considered in determining the outrageous character of the ultimate threat and the extent of plaintiff’s mental or emotional distress caused by it.” Id. Thus, while the Court did not allow damages for the separate torts, it did allow the evidence of the extreme and outrageous conduct of the defendant as an element of the plaintiffs emotional distress claim, even though an assault and battery claim was barred. In the case sub judice, the evidence presented at trial tended to indicate that incidents between the plaintiff and Defendant Colvin began in early 1985, soon after he was hired by Thalhimers in 1984. According to the plaintiffs testimony, the first conversation of a sexual nature was-on a trip to Sears in Hanes Mall in Winston-Salem to pick up supplies for the Hanes Mall Thalhimers location. The defendant asked her if she’d ever had an affair with anyone. She responded that she had not. The plaintiff also testified to the following: A. He told me he liked women with large breasts. Q. When he made that statement to you, can you tell the ladies and gentlemen of the jury what he was looking at? A. He was looking down at my breast area. On another occasion of sexually related conduct, the plaintiff testified that [w]e were moving the desk. And I was on one side and he was on the other. And I had hold of the desk and he came around on my side and he rubbed his penis across my hand. And I don’t know how, but it got caught in my ring and I jerked my hand away because was — it just flew all over me, embarrassed me. I was just humiliated. I mean it just — it just embarrassed me to death. The plaintiff also testified that the next day he called me down to the office. And he was sitting on my desk facing me. And he told me to pull my pants down because he wanted to see a bee sting. And he didn’t smile. He had that same dirty grin on his face. She told him at that time that he made her sick to her stomach. He then “jerked my door open and slammed it and left.” Except for the last incident, which plaintiff testified could have been an accident, the defendant never physically touched the plaintiff. On 24 September 1985, the plaintiff submitted some twenty-two complaints about Mr. Colvin to Tida Williams, personnel manager. She told Ms. Williams that she would be hiring an attorney to bring harassment, charges against Colvin. Ms. Williams recorded the complaints

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

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

JOYCE M. DANIEL, Plaintiff v. CAROLINA SUNROCK CORPORATION, a North Carolina Corporation, and BRYAN PFOHL, Individually, Defendants No. 929SC479 (Filed 1 June 1993) I. Labor and Employment § 77 (NCI4th)— wrongful discharge — public policy exception — sufficient forecast of evidence Plaintiffs forecast of evidence was sufficient to support her claim for wrongful discharge under the public policy exception to the e.mployment-at-will doctrine where plaintiff presented evidence tending to show that her working conditions deteriorated after she was subpoenaed and expressed a willingness to testify honestly about her employer in a former co-employee’s suit against the employer, although she never testified because the lawsuit for which she was subpoenaed was settled out of court; the employer’s president told plaintiff not to say any more than she had to when testifying and to “remember that you work for me and represent me and my company”; after plaintiff told the employer’s attorney that she intended to testify that her former co-employee was a good worker, the employer took away many of plaintiff’s employment responsibilities and moved her to a smaller office with no phone, no typewriter, and no heat; the employer’s president told another employee that plaintiff knew too much and stated an intention to get rid of all of the former co-employee’s “people”; other employees took notes on plaintiff’s activities, counted and screened her personal phone calls, had a key made and inspected the contents of plaintiff’s desk while she attended her father’s funeral, and made harassing phone calls to the homes of plaintiff, her mother and her sister-in-law; and plaintiff was discharged thirteen months after the former co-employee’s case was settled. A reasonable finder of fact could infer from plaintiff’s forecast of evidence that the employer’s president engineered plaintiff’s discharge because he believed she was prepared to testify truthfully as a witness in the former co-employee’s lawsuit. Am Jur 2d, Master and Servant §§ 49-59. 2. Trespass § 2 (NCI3d)— intentional infliction of emotional distress —insufficient forecast of evidence Alleged actions by defendant employer and its president did not rise to the level of extreme and outrageous conduct so as to support plaintiffs claim for the intentional infliction of emotional distress where plaintiffs forecast of evidence tended to show that, after plaintiff was subpoenaed by a former co-worker to testify against defendant employer, defendant’s employees took away many of plaintiffs employment responsibilities, took notes on plaintiffs activities, counted and screened plaintiffs personal phone calls, had a key made and inspected the contents of plaintiffs desk while she attended her father’s funeral, moved plaintiff into a smaller office with no phone and no heat, and made harassing phone calls to the homes of plaintiff, her mother, and her sister-in-law. Am Jur 2d, Trial § 770. Judge LEWIS dissenting. Appeal by plaintiff from judgment entered 30 January 1992 in Granville County Superior Court by Judge Robert H. Hobgood. Heard in the Court of Appeals 15 April 1993. On 17 July 1990, plaintiff filed a complaint in which she asserted claims against defendants for wrongful discharge, breach of employment contract, and tortious interference with contract. On 21 February 1991, plaintiff filed an amendment to the complaint, adding a claim for the intentional infliction of emotional distress. On 1 October 1990, defendants filed an answer to plaintiff’s original complaint, and on 12 April 1991, defendants filed an answer to plaintiff’s amended complaint. Following extensive discovery proceedings, on 16 January 1992, defendants filed a motion for summary judgment as to each of plaintiff’s claims. On 11 February 1992, plaintiff took a voluntary dismissal of her breach of employment contract claim. On that same date, Judge Hobgood entered summary judgment for the defendants on plaintiff’s claims of wrongful discharge, intentional infliction of emotional distress, and tortious interference with contract. Plaintiff filed notice of appeal on 24 February 1992. Pulley, Watson & King, P.A., by Tracy Kenyon Lischer, for plaintiff-appellant. Haynsworth, Baldwin, Johnson & Greaves, P.A., by Gregory P. McGuire, for defendant-appellees. WELLS, Judge. Plaintiff contends that the trial court erred in granting defendants’ motion for summary judgment on plaintiff’s claims of wrongful discharge and intentional infliction of emotional distress. Plaintiff did not appeal the summary judgment order as to her tortious interference with . contract claim. “Summary judgment is properly granted ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.’ N.C.G.S. 1A-1, Rule 56(c) (1983).” Waddle v. Sparks, 331 N.C. 73, 414 S.E.2d 22 (1992). All inferences of fact from the proofs offered must be drawn against the movant and in favor of the party opposing the motion for summary judgment. Id. Applying these guidelines, we shall consider plaintiff’s claims for wrongful discharge and intentional infliction of emotional distress. Wrongful Discharge While employed at Sunrock, plaintiff was an employee-at-will. Generally, in North Carolina, an employee-at-will has no claim for relief for wrongful discharge. Tompkins v. Allen, 107 N.C. App. 620, 421 S.E.2d 176 (1992). Generally, either party to an employment-at-will contract can terminate the contract for no reason at all, or for an arbitrary or irrational reason. Id. However, a valid claim for wrongful discharge may exist in the employment-at-will context if the contract is terminated for an unlawful reason or a purpose that contravenes public policy. Coman v. Thomas Manufacturing Co., 325 N.C. 172, 381 S.E.2d 445 (1989). In Sides v. Duke University, 74 N.C. App. 331, 328 S.E.2d 818, disc. rev. denied, 314 N.C. 331, 335 S.E.2d 13 (1985), this Court recognized a public policy exception to the employment-at-will doctrine in a case where a nurse alleged that her employer pressured her not to testify honestly in a medical malpractice lawsuit and subsequently discharged her because she refused to commit perjury, but rather testified fully and honestly. This Court wrote: Thus, while there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy. ... We hold, therefore, that no employer in this State, notwithstanding that an employment is at will, has the right to discharge an employee and deprive him of his livelihood without civil liability because he refuses to testify untruthfully or incompletely in a court case, as plaintiff alleges happened here. In Williams v. Hillhaven Corp., 91 N.C. App. 35, 370 S.E.2d 423 (1988), following Sides, this Court expanded the same public policy exception to a case where the plaintiff did not allege that her employer pressured her to alter her testimony, but rather alleged that she was wrongfully discharged after honestly testifying in an unemployment compensation hearing. The defendants in Williams attempted to differentiate their case from Sides because they never harassed or threatened plaintiff before she testified, but rather allegedly harassed and fired her after she testified against them. The Williams Court disagreed and found that, because she was discharged for telling the truth, “plaintiff falls into the same narrow exception to the general rule . . . that Sides created.” In the case at bar, plaintiff asks this Court to extend the public policy exception to the employment-at-will doctrine recognized in Sides and Williams to a situation where plaintiff alleges that she was wrongfully discharged after being subpoenaed and expressing a willingness to honestly testify about her employer, but never actually testified because the lawsuit for which she was subpoenaed was settled out of court. At the summary judgment hearing, the trial court considered (in addition to the pleadings) the depositions of plaintiff, H. Braxton Davis, Jr., David A. Eckstine, Jessie Self, Donald Tilley, Ellen Wilkins, and defendant Pfohl, and various exhibits relating to the plaintiff’s employment history. From these materials, the forecast of evidence, viewed in the light most favorable to plaintiff, may be summarized as follows: Carolina Sunrock Corporation [Sunrock] operates a quarry in Butner, North Carolina, producing crushed stone and building materials. Defendant Bryan Pfohl is the owner and President of Carolina Sunrock Corporation. Plaintiff became an employee at Sunrock in September of 1985. Between September of 1985 and January of 1988, plaintiff was an excellent employee and had received favorable reviews from her supervisors, one of whom stated that she was “very very effective” and “did a very good job.” On 28 January 1988, plaintiff was subpoenaed to produce company personnel records and to testify on behalf of Bob Gentry, a former plant superintendent who was suing Sunrock on a breach of contract claim. After learning that she had been subpoenaed, plaintiff immediately informed defendant Pfohl, the company’s president and owner, that she had been served with the subpoena. Upon learning of the subpoena, Mr. Pfohl told plaintiff not to say anymore than she had to when testifying and to “remember that you work for me and represent me and my company.” Plaintiff took Mr. Pfohl’s comments as a threat, pressuring her to alter her testimony, if need be, to advance the company’s best interests. Mr. Pfohl told plaintiff to meet with the company’s attorney. At the meeting with Sunrock’s attorney, plaintiff informed the attorney that she believed that Bob Gentry was a good worker and intended to testify to that effect. After informing Mr. Pfohl of the subpoena and her intention to testify honestly, plaintiff’s working conditions deteriorated significantly. Because she was subpoenaed, Mr. Pfohl became distrustful of plaintiff and believed that she had been leaking company information to Bob Gentry. Mr. Tilley, a heavy equipment operator, testified in deposition that Mr. Pfohl stated that plaintiff knew too much. Mr. Pfohl also expressed an intention to get rid of all of “Gentry’s people.” Mr. Pfohl treated plaintiff in a noticeably different manner after she received the subpoena. He was markedly colder to plaintiff after she received the subpoena. Within one week of plaintiff being served the Gentry subpoena, Ellen Wilkins was hired by Sunrock. Wilkins was assigned many of plaintiff’s duties, for reasons unrelated to plaintiff’s .performance. In February of 1988, Ms. Wilkins began taking notes on plaintiff and reported directly to Mr. Pfohl. Plaintiff was the only employee Ms. Wilkins took notes on and the notes she took were shredded after plaintiff was fired. Mr. Pfohl repeatedly asked Mr. Davis, a supervisor, whether he had “anything on” the plaintiff. In March of 1988, while plaintiff was away from work, attending her father’s funeral, Ms. Wilkins had a key made to plaintiff’s desk on Mr. Pfohl’s instructions. In plaintiff’s absence, Ms. Wilkins went through plaintiffs desk. In May of 1988, Bob Gentry’s lawsuit against Sunrock was settled out of court; hence, plaintiff never testified. On 6 June 1988, Jessie Self was hired as a receptionist. Ms. Wilkins told Ms. Self that there were problems with the plaintiff and instructed Ms. Self to keep a record of the number and source of plaintiff’s personal phone calls. Plaintiff was the only employee whose phone calls were counted. Ms. Self was also instructed to eavesdrop on plaintiff’s conversations with fellow employees and visitors and to keep notes on any violations of company policy by plaintiff. Ms. Self attended secret meetings which Ms. Wilkins called to discuss plaintiff. In December of 1988, David Eckstine was hired by Sunrock. Mr. Eckstine began taking notes on plaintiff in February, and continued taking such notes until he fired her, at which time he shredded his notes. Plaintiff was the only employee which Mr. Eckstine took notes on. After plaintiff was subpoenaed and many of her employment responsibilities were stripped, she was moved to a smaller office with no phone, no typewriter, and no heat. On 20 June 1989, Mr. Eckstine met with plaintiff and suggested that plaintiff resign. Plaintiff was told that if she did not resign, she would be terminated. On 20 June 1989, plaintiff was fired. From this forecast of evidence, a reasonable finder of fact might draw the inference that defendant Pfohl engineered plaintiff’s discharge because he believed she was prepared to testify truthfully as a witness in the Gentry lawsuit. If plaintiff was discharged for such reasons, notwithstanding the fact that she never actually testified, then plaintiff’s discharge violated public policy and would fall under the public policy exception to the employment-at-will doctrine. Therefore, the trial court erred in granting defendants’ motion for summary judgment on the claim of wrongful discharge. Intentional Infliction of Emotional Distress Next, plaintiff contends that the trial court erred in granting defendants’ motion for summary judgment on plaintiff’s claim of intentional infliction of emotional distress. “The essential elements of an action for intentional infliction of emotional distress are ‘1) extreme and outrageous conduct by the defendant 2) which is intended to and does in fact cause 3) severe emotional distress.’ ” Waddle v. Sparks, 331 N.C. 73, 414 S.E.2d 22 (1992). Extreme and outrageous conduct has been described as conduct which exceeds “all bounds usually tolerated by decent society.” Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979). In the case at bar, plaintiff alleged that harassment by Sunrock’s executives and employees constituted extreme and outrageous behavior which was intended to result, and in fact resulted, in her severe emotional distress. Plaintiff’s forecast in support of the “extreme and outrageous behavior” element of her intentional infliction of emotional distress claim included her deposition testimony in which she stated that, after plaintiff was subpoenaed to testify against Sunrock, Sunrock’s employees took away many of plaintiff’s employment responsibilities, took notes on plaintiff’s activities, counted and screened plaintiff’s personal phone calls, had a key made and inspected the contents of plaintiff’s desk while she attended her father’s funeral, moved plaintiff to a smaller office with no phone and no heat, and made harassing phone calls to the home of plaintiff and to the homes of plaintiff’s sister-in-law and mother. In Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 340 S.E.2d 116, cert. denied, 317 N.C. 334, 346 S.E.2d 141 (1986), this Court considered three intentional infliction of emotional distress claims brought against defendant by three former employees. At trial, each plaintiff’s emotional distress claim was dismissed. by summary judgment. On appeal, each plaintiff argued that her forecast of evidence contained sufficient grounds to overcome a summary judgment motion and reach the jury on its merits. While the Court considering plaintiff Hogan’s claim, this Court wrote: Hogan’s evidence tends to show that Pfeiffer [defendant’s agent] screamed and shouted at her, called her names, interfered with her supervision of waitresses under her charge, and on one occasion threw menus at her. She also testified that she shouted back at Pfeiffer. This conduct lasted during the period from 22 June 1983 until her termination on 24 July 1983. The general manager, Clifford Smith, received complaints from both Hogan and Pfeiffer concerning the temper of the other. His attempt to discuss the situation with both employees was unsuccessful because Pfeiffer walked out. While we do not condone Pfeiffer’s intemperate conduct, neither do we believe that his alleged acts “exceed all bounds usually tolerated by a decent society,” Stanback, supra, so as to satisfy the first element of the tort, requiring a showing of “extreme and outrageous conduct.” Dickens, supra. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. The liability clearly does not extend to mere insults, indignities, threats.The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate or unkind. There is no occasion for the law to intervene in every case where some one’s feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam. . . . Restatement (Second) of Torts, §46 comment (d) (1965). We hold Pfeiffer’s conduct, as shown by Hogan’s forecast of evidence, was not such as to be reasonably regarded as “extreme and outrageous” so as to permit Hogan to recover for intentional infliction of mental distress. In the case at bar, plaintiff’s forecast of evidence, taken in the light most favorable to plaintiff, fails to demonstrate that the defendants’ alleged actions “exceed all bounds-- usually tolerated by a decent society.” Guided by the Hogan standards, we hold that defendants’ alleged acts do not rise to the level of extreme and outrageous conduct, so as to support plaintiff’s claim for intentional infliction of emotional distress. Accordingly, we affirm- the trial court’s granting of defendants’ motion for summary judgment as to plaintiff’s claim of intentional infliction of emotional distress. For the reasons stated above, the trial court’s order granting defendants’ motion for summary judgment on plaintiff’s wrongful discharge claim is reversed. The trial court’s granting of defendants’ summary judgment on plaintiff’s claim for intentional infliction of emotional distress is affirmed. Affirmed in part, reversed in part, and remanded. Judge GREENE concurs. Judge LEWIS dissents in a separate opinion. Judge LEWIS dissenting. I must respectfully dissent from the majority’s opinion regarding the issue of wrongful discharge and I would vote to affirm the trial court’s entry of summary judgment. I believe that the majority’s opinion takes the public policy exception to the employment at will doctrine substantially beyond the rationale proclaimed in Sides v. Duke University, 74 N.C. App. 331, 328 S.E.2d 818, disc. rev. denied, 314 N.C. 331, 335 S.E.2d 13 (1985) and Williams v. Hillhaven Corp., 91 N.C. App. 35, 370 S.E.2d 423 (1988). In Sides, this Court first recognized the public policy exception when a nurse was discharged when she refused to commit perjury to protect her employer from liability in a civil suit. In reaching its decision, this Court said that encouraging perjury or incomplete testimony was an affront to our legal system. Sides, 74 N.C. App. at 338, 328 S.E.2d at 823-24. In Williams, we extended the public policy exception to a situation where an individual was harassed and eventually discharged after she testified truthfully. The Williams Court characterized the public policy exception as a “narrow exception” and again reaffirmed the rationale in Sides by stating: “[t]he law must encourage and not discourage truthful testimony.” Williams, 91 N.C. App. at 40, 370 S.E.2d at 426, quoting Petermann v. International Brotherhood of Teamsters, 344 P.2d 25, 27 (Cal. App. 1959). This Court now seeks to extend the public policy exception to a situation w

LINEBAUGH v SHERATON MICHIGAN CORPORATION Docket No. 126717. Submitted November 5, 1992, at Grand Rapids. Decided March 1, 1993, at 9:10 a.m. Leave to appeal sought. Sherry and Russell Linebaugh brought an action in the Cheboygan Circuit Court against Sheraton Michigan Corporation, Sherry’s employer, and Rick Herring, one of her co-workers, alleging defamation, sexual harassment, and intentional or reckless infliction of emotional distress resulting from the circulation in Sherry’s workplace of a cartoon drawn by Herring that allegedly depicted Sherry and a male co-worker engaged in a sexual act. The court, Robert C. Livo, J., granted summary disposition for the defendants. The plaintiffs appealed. The Court of Appeals held: 1. The trial court erred in granting summary disposition for Herring with regard to the defamation claim. A reasonable trier of fact could conclude that the cartoon, whether captioned or uncaptioned, imputes a want of chastity to Sherry Linebaugh. A drawing that imputes a lack of chastity to a female is actionable per se, irrespective of special harm. 2. Summary disposition for Sheraton with regard to the defamation claim was proper. The cartoon was not drawn by Herring while he was in the discharge of his duties as an agent for Sheraton, nor was it done in relation to a matter about which his duties as an agent required him to act. 3. The trial court properly granted summary disposition for the defendants with regard to the claim of sexual harassment. The plaintiffs did not demonstrate that the cartoon was gender-oriented or that the harassment complained of was based on gender, an element of a claim for sexual harassment. The cartoon, allegedly depicting Sherry Linebaugh and a male coworker engaging in a sexual act, is gender neutral and could be considered equally offensive both to male and female employees of Sheraton. In addition, upon receiving Sherry’s complaint of harassment, Sheraton conducted an investigation and gave written warnings to Herring and a co-worker who posted the cartoon on a bulletin board. References Am Jur 2d, Depositions and Discovery §§ 21-49, 153; Fright, Shock, and Mental Disturbance §§ 1-12, 53; Job Discrimination §§ 789-816; Libel and Slander §§ 60-61; Master and Servant §§ 404, 426-440. Libel and slander: defamation by cartoon. 52 ALR4th 424. Modern status of intentional infliction of mental distress as independent tort; "outrage”. 38 ALR4th 998. On-the-job sexual harassment as violation of state civil rights law. 18 ALR4th 328. 4. The trial court erred in granting summary disposition for Herring with regard to the claim of intentional or reckless infliction of emotional distress. A reasonable factfinder could conclude that the depiction of Sherry engaged in a sexual act with a co-worker constituted conduct so outrageous in character and so extreme in degree that it went beyond all bounds of common decency in a civilized society. Furthermore, Herring’s creation of the cartoon and his delivery of it to the co-worker who posted it may constitute reckless behavior. The question whether Herring’s conduct was sufficiently outrageous and extreme was a matter for determination by the trier of fact. 5. Summary disposition was properly granted for Sheraton with regard to the claim of intentional infliction of emotional distress. An employer is liable for the tortious acts of its employee only when the acts are committed within the scope of employment. Even if Herring were found to have intentionally inflicted emotional distress upon Sherry Linebaugh, Sheraton would not be vicariously liable. 6. The trial court abused its discretion in denying the plaintiffs’ motion to compel Herring to answer a question asked by the plaintiffs’ attorney during his deposition and to which defense counsel objected on the basis of relevancy. 7. The trial court did not err in ordering the plaintiffs to answer the defendants’ interrogatories regarding the subject matter and substance of their lay witnesses’ expected testimony at trial. The scope of discovery with regard to a party’s lay witness is limited only by the provisions of MCR 2.302(B)(1). Because the interrogatories may relate to matters that may be the subject of inquiry pursuant to MCR 2.302(B), the trial court did not abuse its discretion in ordering the plaintiffs to answer. Affirmed in part, reversed in part, and remanded. 1. Libel and Slander •— Drawings Imputing Female’s Lack of Chastity — Actions. A drawing that imputes a lack of chastity to a female is actionable per se, irrespective of special harm (MCL 600.2911[1]; MSA 27A.2911[1]). 2. Civil Rights — Sexual Harassment — Civil Rights Act. In order for a claim of sexual harassment in violation of the Civil Rights Act to be stated properly, the plaintiff must allege that the harassment was based on the plaintiff’s gender (MCL 37.2101 et seq.; MSA 3.548[101] et seq.l 3. Torts — Intentional Infliction of Emotional Distress. Liability for the intentional infliction of emotional distress may be found only where the conduct complained of has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community. 4. Torts — Employer’s Liability for Employee’s Torts. An employer is liable for the tortious acts of its employee only when the acts are committed within the scope of the employee’s employment. 5. Pretrial Procedure — Depositions — Objections Based on Relevancy. Where a relevancy objection is made at a deposition, the proper procedure is to note the objection on the record and then take the deponent’s answer subject to the objection (MCR 2.306[C] W). 6. Pretrial Procedure — Discovery — Lay Witnesses — Expert Witnesses. The scope of discovery with regard to lay witnesses is limited only by MCR 2.302(B)(1); the provisions of MCR 2.302(B)(4) relating to the discovery of facts known and opinions held by expert witnesses apply to expert witnesses only. Sumpter, Perry & McDonald, P.C. (by Thomas E. McDonald), for the plaintiffs. Bodman, Longley & Dahling (by Kathleen A. Lieder), for the defendants. Before: Hood, P.J., and Sawyer and Jansen, JJ. Jansen, J. Plaintiffs, Sherry and Russell Linebaugh, appeal as of right from the Cheboygan Circuit Court’s March 5, 1990, order granting defendants’ motion for summary disposition with regard to plaintiffs’ claims of defamation, sexual harassment, and intentional or reckless infliction of emotional distress. This case emanates from the circulation of a cartoon in Sherry Linebaugh’s workplace. The cartoon, which can be interpreted as depicting Sherry Linebaugh (hereafter plaintiff) and a male co-worker in a sexually compromising position, was drawn by defendant Rick Herring. We affirm in part and reverse in part the order of the trial court. Plaintiffs first contend that the trial court erred in dismissing their defamation claim because the cartoon, allegedly depicting plaintiff and a male co-worker engaged in a sexual act, is actionable by its very nature. The trial court found the cartoon to be "ambivalent as to who is doing what to whom.” We are of the opinion that summary disposition was improperly granted to Herring on this claim. Dep’t of Social Services v Aetna Casualty & Surety Co, 177 Mich App 440, 444-445; 443 NW2d 420 (1989). The elements of a cause of action for libel are: (1) a false , and defamatory statement concerning the plaintiff; (2) an unprivileged communication to a third party; (3) fault amounting to at least negligence on the part of the publisher; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by publication. Locricchio v Evening News Ass'n 438 Mich 84, 115-116; 476 NW2d 112 (1991); Rouch v Enquirer & News of Battle Creek (After Remand), 440 Mich 238, 251; 487 NW2d 205 (1992); Royal Palace Homes, Inc v Channel 7 of Detroit, Inc, 197 Mich App 48; 495 NW2d 392 (1992). A drawing that imputes a lack of chastity to a female is actionable per se, irrespective of special harm. MCL 600.2911(1); MSA 27A.2911(1). Prior established case law suggests that lack of chastity may be imputed by reference to acts other than promiscuous sexual intercourse, such as the sexual activity allegedly depicted by the cartoon at issue. Cf. Maciejewski v Rychart, 192 Mich 530; 159 NW 479 (1916); Loranger v Loranger, 115 Mich 681; 74 NW 228 (1898). We first note that in ruling on defendants’ motion, the trial court did not state whether it was considering the cartoon as captioned or uncaptioned. Herring admittedly drew the cartoon, but he strongly denies adding the caption to the cartoon. John Dunn, the union bargaining chairman, testified that there was some debate regarding who added the caption to the cartoon. Dunn also testified, however, that most of the employees he spoke with stated that the writing was on the cartoon when first posted. Although this creates a factual question precluding summary disposition, this does not constitute the sole basis for our resolution of this issue. We are of the opinion that a reasonable trier of fact could conclude that the cartoon, whether captioned or uncaptioned, imputes a want of chastity to Sherry Linebaugh. The captioned cartoon is not ambiguous with regard to either its sexual connotations or the identity of the participants depicted therein. Both plaintiff and her co-worker, Carl Schaefer, are identified by name, and defendants do not assert that some "Sherry” other than plaintiff was the clear and intended victim of the cartoon. Because the cartoon could be interpreted as depicting plaintiff engaged in a sexual act with a male other than her husband, a reasonable trier of fact could conclude that the cartoon imputes to plaintiff a lack of chastity, which is actionable irrespective of special harm. We are also of the opinion that a rational trier of fact could conclude that the cartoon, if construed uncaptioned, is defamatory and actionable per se. If uncaptioned, the viewer of the cartoon would have to possess knowledge of extrinsic facts in order to trigger its defamatory effect. As stated in Prosser, Torts (4th ed), § 111, p 749: He [the plaintiff] need not, of course, be named, and the reference may be an indirect one, with the identification depending upon circumstances known to the hearers, and it is not necessary that every listener understand it, so long as there are some who reasonably do; but the understanding that the plaintiff is meant must be a reasonable one, and if it arises from extrinsic facts, it must be shown that these were known to those who heard. The testimony indicates that in referring to plaintiff, Carl Schaefer told Paul Freeman "to leave his mashed potatoes and gravy alone.” Thereafter, Herring drew the cartoon in question and Robert Shorkey posted the cartoon on a bulletin board in the workplace. According to Herring’s own testimony, most of the people on the afternoon shift had knowledge of the "mashed potatoes” story. Herring testified that if other employees had heard the story and saw the cartoon, they could possibly relate the cartoon to the story. One viewer of the cartoon testified that the male figure depicted in the drawing resembled Schaefer with sufficient detail to lead her to believe that it was Schaefer. Also, the buttocks depicted in the cartoon are wearing Lee brand jeans, and plaintiff testified that she customarily wore jeans to work. In light of the above considerations, we hold that the trial court erred in granting summary disposition to Herring with regard to plaintiffs’ defamation claim. However, we reach a different result with regard to the corporate defendant, Sheraton Michigan Corporation. See Poledna v Bendix Aviation Corp, 360 Mich 129, 139-140; 103 NW2d 789 (1960); Grist v Upjohn Co, 368 Mich 578, 583; 118 NW2d 985 (1962). We cannot say that the cartoon was drawn by Herring while in the discharge of his duties as an agent for Sheraton, or that it was done in relation to a matter about which his duties as an agent required him to act. Therefore, we affirm the trial court’s grant of summary disposition to the corporate defendant on plaintiffs’ defamation claim. Plaintiffs next contend that the trial court erred in dismissing their sexual harassment claim brought pursuant to the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. We disagree with plaintiffs. Plaintiffs’ sexual harassment claim is based upon a hostile work environment theory, MCL 37.2103(h)(iii); MSA 3.548(103)(h)(iii). This Court, in Langlois v McDonald’s Restaurants of Michigan, Inc, 149 Mich App 309; 385 NW2d 778 (1986), recognized as one element of a sexual harassment claim the necessity that the harassment complained of be based on the complainant’s gender. Id., p 313. In the present case, plaintiff has not demonstrated that the cartoon was gender-oriented or that the harassment complained of was based on her gender. The cartoon allegedly depicts both plaintiff and a male co-worker as engaging in a sexual act and, therefore, is gender neutral. The cartoon could be considered equally offensive to both male and female employees. Additionally, upon receiving plaintiff’s complaint of harassment, an investigation was conducted and Herring and Robert Shorkey were given written warnings. Therefore, we find that the trial court properly granted summary disposition for defendants with regard to plaintiffs’ sexual harassment claim. Downer v Detroit Receiving Hosp, 191 Mich App 232, 234; 477 NW2d 146 (1991). Plaintiffs next argue that the trial court erred in dismissing their claim of intentional or reckless infliction of emotional distress. Plaintiffs assert that there are few things more outrageous than a cartoon depicting a woman engaged in a sexual act with a male other than her husband. We agree with plaintiffs. The elements of the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct; (2) intent or recklessness; (3) causation; and (4) severe emotional distress. Roberts v Auto-Owners Ins Co, 422 Mich 594, 602; 374 NW2d 905 (1985); Runions v Auto-Owners Ins Co, 197 Mich App 105; 495 NW2d 166 (1992). Liability for the intentional infliction of emotional distress has been found only where the conduct complained of has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Roberts, p 603; Meek v Michigan Bell Telephone Co, 193 Mich App 340, 346; 483 NW2d 407 (1992). However, liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Roberts, p 603. We are of the opinion that the trial court erred in granting summary disposition to Herring with regard to this claim. Once having viewed the cartoon at issue, a reasonable factfinder could conclude that the depiction of plaintiff engaged in a sexual act with a co-worker constitutes conduct so outrageous in character and so extreme in degree that it goes beyond all bounds of common decency in a civilized society. We note that a number of plaintiff’s co-workers testified that the cartoon was offensive. Furthermore, Herring’s creation of the cartoon and his delivery of it to Shorkey may well constitute reckless behavior. The question whether Herring’s conduct was sufficiently outrageous and extreme so as to render him liable for intentional infliction of emotional distress is a matter for determination by the trier of fact. With regard to the corporate defendant, Sheraton, we reach a different conclusion. Even if Herring were found to have intentionally inflicted emotional distress upon plaintiff, Sheraton would not be vicariously liable. An employer is liable only for the acts of its employee committed within the scope of employment. McCalla v Ellis, 129 Mich App 452, 460-461; 341 NW2d 525 (1983). Summary disposition was properly granted to the corporate defendant with regard to this claim. Plaintiffs also assert that the trial court erred in refusing to compel Herring to answer a question put to him during the course of his deposition. Defense counsel instructed Herring not to answer a question asked by plaintiffs’ attorney during the deposition. Defense counsel objected to the question on the basis of relevancy. The trial court subsequently denied plaintiffs’ motion to compel discovery. A motion to compel discovery is a matter within the trial court’s discretion, and the court’s decision to grant or deny a discovery motion will be reversed only if there has been an abuse of that discretion. Williams v Logan, 184 Mich App 472, 476; 459 NW2d 62 (1990). Evidence objected to at a deposition, on grounds other than privilege, shall be taken subject to the objection. MCR 2.306(C)(4). When a relevancy objection is made at a deposition, the proper procedure is to note the objection on the record, and then take the deponent’s answer subject to the objection. In this case, the trial court abused its discretion in denying plaintiffs’ motion to compel Herring to answer the question. Lastly, plaintiffs contend that the trial court erred in ordering them to answer defendants’ interrogatories regarding the subject matter and substance of their lay witnesses’ expected testimony at trial. Plaintiffs argue that the court rules only allow inquiry into a party’s expectations about the testimony of expert witnesses, and that an inquiry into the expected testimony of lay witnesses exceeds the bounds of discovery permitted under the court rules. Plaintiffs further argue that such an inquiry would result in revealing plaintiffs’ attorney’s mental theories, impressions, and work product. We disagree with plaintiffs. We first point out that plaintiffs’ second amended witness list named fifty-eight potential witnesses, including an unspecified number of "nurses” and "therapy personnel.” Plaintiffs argued that it was necessary to list all the witnesses or else they would "lose them.” Defendants argued that the magnitude of the list was inappropriate and amounted to an abusive practice. Defendants further argued that if the subject matter and substance of the testimony of the witnesses listed by plaintiffs was made known to them, they could better determine which witnesses should be deposed. The trial court found that "if you have a witness, you have to disclose whether you’re going to use him — for what purpose, and what you believe he will testify to.” Generally, parties may obtain discovery regarding any matter not privileged that is relevant to the subject matter involved in the pending action. MCR 2.302(B)(1). It is true, as plaintiffs assert, that the court rules do permit discovery of facts known and opinions held by expert witnesses, but only as provided in the court rule. MCR 2.302(B)(4). We find instructive the author’s comment to MCR 2.302, 2 Martin, Dean & Webster, Michigan Court Rules Practice, Rule 2.302, comment 8(g), p 182, which states: The provisions of subrule 2.302(B)(4) restrict discovery of facts known and opinions held by experts acquired or developed in anticipation of litigation or in preparation for trial to only the situations and methods provided for by that sub-rule. As to this one particular class of persons, experts, the rule is a direct restriction on the scope of discovery permitted by 2.302(B)(1). . . . Conversely, however, if the expert witness acquired his or her information not in anticipation of litigation or for trial, but rather as a witness to the incident or occurrence in question, or as a result or consequence of his or her normal business activities and duties, no restrictions are placed upon discovery relating to these persons at all. They are treated just as if they were any other potential witness, and the scope of discovery as to them is limited only by the provisions of rule 2.302(B)(1). [Emphasi

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

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

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

JOANN W. WADDLE and JACQUELINE E. SIMPSON v. JACK SPARKS AND GUILFORD MILLS, INC. No. 476A90 (Filed 5 March 1992) 1. Rules of Civil Procedure § 56.3 (NCI3d)— summary judgment— proof of nonexistence of essential element Summary judgment is properly entered in the movant’s favor if the movant establishes that an essential part or element of the opposing party’s claim is nonexistent. Therefore, in order to overcome defendants’ motions for summary judgment, plaintiffs must forecast sufficient evidence of all essential elements of their claims. Am Jur 2d, Summary Judgment § 26. 2. Trespass § 2 (NCI3d)— intentional infliction of emotional distress — elements The essential elements of an action for intentional infliction of emotional distress are (1) extreme and outrageous conduct by the defendant (2) which is intended to and does in fact cause (3) severe emotional distress. Am Jur 2d, Fright, Shock, and Mental Disturbance §§ 4-7. 3.Trespass § 2 (NCI3d)— intentional infliction of emotional distress —meaning of severe emotional distress The standards for determining the element of severe emotional distress in actions for the intentional infliction of emotional distress and the negligent infliction of emotional distress are the same. Therefore, the term “severe emotional distress” in an action for the intentional infliction of emotional distress means any emotional or mental disorder, such as, for example, neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so. Am Jur 2d, Fright, Shock, and Mental Disturbance §§ 3, 4, 47, 51. 4. Trespass § 2 (NCI3d| — intentional infliction of emotional distress — insufficient forecast of evidence of severe emotional distress Plaintiff’s forecast of evidence failed to show that she has suffered the severe emotional distress necessary to maintain her cause of action against her former supervisor for intentional infliction of emotional distress based on sexually suggestive comments and offensive actions where plaintiff stated during her deposition that she had not seen a psychiatrist or psychologist since well before the events comprising her lawsuit; plaintiff stated that the only time she had taken “nerve pills” prescribed by her doctor for a protracted period of time was during episodes of family-related stress due to problems with her mother and daughter; plaintiff stated that the only time she missed work was when her mother was hospitalized and again when her teenage daughter eloped; and there was no forecast of any medical documentation of plaintiff’s alleged “severe emotional distress” and no forecast of evidence of “severe and disabling” psychological problems. Am Jur 2d, Fright, Shock, and Mental Disturbance §§ 8-10, 12. 5. Rules of Civil Procedure § 56.4 (NCI3d)— statute of limitations —defendants’ summary judgment motions — burden on plaintiff Where defendants pleaded the statute of limitations as a defense to plaintiff’s claim for the intentional infliction of emotional distress and relied on it in their separate motions for summary judgment, plaintiff was required to produce a forecast of evidence of specific acts which took place within three years prior to the filing of her complaint in order to sustain her claim over defendants’ summary judgment motions. Am Jur 2d, Limitation of Actions § 470; Summary Judgment §§ 26, 27. 6. Trespass § 2 (NCI3d|— intentional infliction of emotional distress —summary judgment —statute of limitations Summary judgment was properly entered against the second plaintiff on her claim against her former supervisor for intentional infliction of emotional distress because her forecast of evidence failed to show that any conduct of defendant occurred within the applicable three-year statute of limitations where she was unable to state during her deposition a date, even within a year, when any one of the various specific incidents she alleged against defendant occurred. Am Jur 2d, Limitation of Actions § 470; Summary Judgment §§ 26, 27. 7. Master and Servant § 29 (NCI3d) — negligent retention of supervisor — insufficient forecast of evidence Summary judgment in favor of defendant employer was proper on plaintiffs’ claims for negligent retention of their former supervisor where the only tort at issue against the supervisor was intentional infliction of emotional distress, and plaintiffs’ forecasts of evidence were insufficient to sustain their claims against the supervisor for this tort. Am Jur 2d, Summary Judgment §§ 26, 27. Liability of employer, supervisor, or manager for intentionally or recklessly causing employee emotional distress. 52 ALR4th 853. Justice LAKE did not participate in the consideration or decision of this case. On appeal of right by defendants pursuant to N.C.G.S. § 7A-30(2) and on discretionary review of additional issues pursuant to N.C.G.S. § 7A-31(a), from the decision of a divided panel of the Court of Appeals, 100 N.C. App. 129, 394 S.E.2d 683, reversing summary judgment against plaintiff Waddle and affirming summary judgment against plaintiff Simpson, the judgments having been rendered on 15 June 1989 in Superior Court, GUILFORD County, Walker (Ralph A.), J., presiding. Heard in the Supreme Court on 8 April 1991. Ling & Parran, by Jeffrey P. Farran, for plaintiff-appellee Joann W. Waddle and plaintiff-appellant Jacqueline E. Simpson. Haines, Short, Campbell & Ferguson, by W. Marcus Short, for defendant Jack Sparks. Smith, Helms, Mullís & Moore, by Martin N. Erwin and Michael A. Gilíes, for defendant Guilford Mills, Inc. Harvey L. Kennedy and Harold L. Kennedy, III, for the North Carolina Academy of Trial Lawyers, Amicus Curiae. EXUM, Chief Justice. Plaintiffs’ complaint, filed 20 April 1988, alleges intentional and negligent infliction of emotional distress against defendant Jack Sparks and negligent hiring and retention of Sparks by defendant Guilford Mills, Inc. On 24 April and 26 April 1989, defendants, respectively, filed motions for summary judgment as to all plaintiffs’ claims. The trial court granted these motions on 15 June 1989. Plaintiffs appealed the summary judgments entered against them on their intentional infliction of emotional distress claims against Sparks and their negligent retention claims against Guilford Mills to the Court of Appeals. A divided panel of the Court of Appeals reversed the summary judgments entered in favor of both defendants as to plaintiff Waddle. 100 N.C. App. 129, 394 S.E.2d 683 (1990) (Lewis, J., dissenting). The Court of Appeals unanimously affirmed the summary judgments entered in favor of both defendants as to plaintiff Simpson. Id. Defendants appealed to this Court on the basis of Judge Lewis’ dissent. Both defendants petitioned for discretionary review of additional issues which were raised in, but not addressed by, the Court of Appeals. Plaintiff Simpson also petitioned for discretionary review. The Court allowed all petitions on 10 January 1991. The questions before us are, on defendants’ appeal, whether the Court of Appeals erred in reversing summary judgments in their favor on plaintiff Waddle’s claim for intentional infliction of emotional distress against Sparks and negligent retention against Guilford Mills; and on plaintiff Simpson’s petition for discretionary review, whether the Court of Appeals erred in affirming summary judgments for both defendants on her claims resting on these same torts. We conclude the Court of Appeals should have affirmed summary judgments entered for defendants as to both plaintiffs on both claims. Because of this conclusion we need not address the various additional issues raised by the parties in their petitions for discretionary review. I. The trial judge considered several documents propounded by the parties in determining that defendants’ motions for summary judgment on all claims should be granted. Among these were the pleadings, the depositions of each plaintiff and of defendant Jack Sparks, defendants’ responses to requests for admissions and, finally, a summarized version of an attitude survey of employees working under defendant Sparks taken by defendant Guilford Mills. Taken in the light most favorable to each plaintiff, the following facts can be gleaned from these documents. Joann Waddle began working for defendant Guilford Mills, Inc. in 1970. In early 1983, defendant Jack Sparks became the third-shift supervisor of the Knitting Department in Guilford Mills’ Wendover plant. In this position Sparks was plaintiff Waddle’s direct supervisor. In 1984, defendant Guilford Mills took an attitude survey of the employees under defendant Sparks’ supervision. The survey tended to show that Sparks was not well liked by the employees working on his shift. A report of the survey stated that [s]ome employees feel Sparks is vicious and “likes to stir people up,” while others think it’s his idea of “humor.” In any event, its [sic] causing problems and largely of this supervisor’s own making. The mix, particularly among women, ranges from fear to anger, with Sparks viewed as “the most vindictive egocentric person in the plant.” Even when things are “mentioned to Jack that he can and should correct, he gets so profane and angry that we’re afraid to mention anything that needs attention.” . . . The situation in this department would be radically improved if Sparks were reclaimed, recycled or removed. Quotations from the above survey are apparently direct quotes of department employees. Waddle’s deposition was taken on 16 August 1988. During her deposition Waddle testified that sometime in 1983 Sparks brushed his arm against her breast while she was working on a clipboard. Although Waddle initially felt the brushing incident was an accident, she stated that a similar occurrence happened the next week and she began to suspect it was deliberate. The actual touching occurred only twice; however, Waddle testified that she had to step away from Sparks on several more occasions in order to avoid similar attempts. The last time she had to avoid these attempts “was about 1984.” Plaintiff acknowledged, “I wasn’t worried about his brushing up against me because I knew I could get away from him if he tried anything.” She further acknowledged in her deposition that any acts of a sexual nature, except “dirty talk,” occurred within the first six months or a year that Sparks supervised her (i.e., in 1983 and 1984). In its opinion, the Court of Appeals outlined specific allegations of Waddle against Sparks which it gleaned from Waddle’s deposition. It believed the following allegations could potentially support her claim of intentional infliction of mental distress (paraphrased except where quoted from the Waddle deposition): 1. In 1983 Sparks brushed up against plaintiff’s breast; however, Waddle acknowledged she was not worried about these attempts because of her ability to dodge them. 2. In March, 1985, a male employee was cleaning and greasing a knitting machine. A female employee approached the machine and said “Bill, you have not greased the balls.” Another female employee present at the scene then said to Sparks “Jack, listen over here. Frances is worried about whether Bill’s greased his balls or not.” Sparks responded to her “What are you worrying about Bill’s balls for?” Waddle was not involved in this exchange, although she did overhear the conversation. 3. Sometime in either March or April, 1985, Waddle and Sparks were examining some fabric together. Waddle commented to Sparks that the fabric “has four holes the way its [sic] supposed to.” According to Waddle, Sparks responded by asking, “[D]o you have four holes? I bet you know how to use all four of them don’t you?” 4. In the fall of 1985, Waddle approached Sparks for some medicine for an infected cut on her finger which was oozing pus. Sparks asked Waddle how she knew it was infected. Waddle stated “it’s red and it’s swollen and it’s got pus in it.” Sparks started laughing and asked another employee to take care of plaintiff. Sparks then said “Yeah, Joann’s got a pussy finger. Walt’s going to have to work on Joann’s pussy.” Sparks then got up from his desk laughing even harder and said “I’d better leave on this one. I can’t stand it anymore.” As Sparks was leaving, another employee approached the office. Sparks stopped him and Waddle allegedly overheard Sparks tell the person “You can’t go in there. Walt’s working on Joann’s pussy finger.” Waddle stated that Sparks paused between the words “pussy” and “finger.” Plaintiff has also alleged in her complaint that defendant Sparks “frequently and constantly used dirty or obscene language of a sexual nature.” During her deposition, Waddle was pressed for details about incidents at which Sparks used such sexually suggestive comments. Waddle responded that she bought a watch for her father around Christmas 1984 and that one day she brought the watch with her to work. When she showed the watch to Sparks, he responded “Well, that’s nice.” Sparks then turned around and commented to another employee “Yeah, I guess one of her boyfriends gave it to her.” This incident and those already mentioned are the only specific, sexually suggestive comments made by Sparks, as recounted in Waddle’s deposition. Waddle did say during her deposition that, throughout her employment on Sparks’ shift, he frequently used offensive and vulgar language. She stated that defendant “always threw cuss words in every sentence he said.” In “the early part of the fall” of 1985, Waddle complained to plant manager John Moffitt and assistant plant manager Ed Gray regarding Sparks’ alleged unfair treatment of her as compared to other employees. During the meeting Moffitt left to go to another meeting. After Moffitt left, she told Gray about Sparks’ excessive use of dirty language, saying that Sparks “used G.D. all the time and the T word.” She acknowledged not telling Gray about the touching incidents in 1983 and 1984, and she did not tell Gray about any incidents where Sparks had used sexually suggestive remarks. “[I]n the later part of the fall” of 1985, Waddle complained to personnel manager Brenda Shelton about Sparks. The thrust of her complaints involved Sparks giving other employees special treatment at her expense. Waddle also mentioned that Sparks had a “filthy mouth.” When Shelton asked if Waddle had ever spoken to Sparks about his language, plaintiff told Shelton that she had but that “you can’t talk to him. The man’s crazy. . . . Every time you try to talk to him, he makes something dirty out of it or he uses cuss words —dirty words. . . . You can’t talk to him. It’s impossible.” Waddle testified that Shelton replied “Well, sex should never enter into the workplace.” When pressed for details about those incidents when Sparks had “talked dirty,” Waddle testified that she could not “remember telling her [Shelton] anything specific.” Waddle attempted to persuade Shelton to go to the plant and speak to other employees to verify Waddle’s complaints. Shelton thought it would be a bad idea because it “would be too obvious” to Sparks what was going on. Instead Shelton encouraged plaintiff to get some of her co-workers to bring their complaints directly to Shelton’s office. Shelton attempted to assure Waddle that she would see “anybody that wants to talk.” Waddle, however, was apprehensive about getting into trouble if she encouraged others to talk to Shelton. Waddle also begged Shelton to keep Waddle’s name out of any conversations Shelton might have with Moffitt, Gray or Sparks, fearing that the three would retaliate against her. Defendant Jack Sparks’ deposition was taken on 9 December 1987 during the discovery period of another case not involving the present plaintiffs. In that deposition, which Judge Walker (now a member of the Court of Appeals) had before him at the summary judgment hearing in this case, Sparks acknowledged that he was verbally reprimanded by Moffitt for use of offensive language. Moffitt warned Sparks that if Sparks “was found guilty of vulgar language . . . [he] would be terminated.” From the record and the deposition testimony of Waddle, it appears that none of the above-cited incidents of inappropriate language about which Waddle testified occurred after plaintiff Waddle complained to Gray or Shelton. In February 1986, Waddle requested a transfer to the second shift. Guilford Mills granted the request on 24 February 1986. Thereafter, she was not supervised by defendant Sparks. On 22 October 1987 plaintiff Waddle voluntarily quit her job at Guilford Mills. She then complained that she was being unfairly accused of incorrectly measuring a set of beams, and she refused to sign a “write-up sheet” acknowledging the mistake. Apparently, at a later date, Guilford Mills determined that the mistake was not the fault of Waddle. Defendant Sparks was not involved in this final incident. Plaintiff Jacqueline Simpson was also deposed on 16 August 1988. During her deposition, Simpson testified that on several occasions Sparks brushed his elbow against her breast while walking by her. She also stated that he frequently used dirty language and that, if someone talked to him about it, “he tried to turn it into something sexual.” For example, when pressed by defendants’ counsel for details of Sparks’ “dirty talk,” Simpson testified as follows: He said lots of dirty talk. If you had any — lots of people used lotion out there in dealing with the yarn. And they put lotion in your hand. If you had lotion in your hand and he came by he would say, “Who you been messing with?” or “Have you been messing with yourself?” or “We know what you’ve been doing.” If the yarn was pulled apart in the middle, “What did you do, get your titty in that?” If there was a wet spot on the floor, “Did you pee on the floor?” If there was a wet spot on your pants, “What have you been doing?” If your legs were sore from walking and you’d say, “My legs are sore.” He’d say, “Well, I know why they’re sore.” On several occasions, Sparks also made lewd gestures to Simpson with his hands where he would turn his palm up and wiggle his middle finger. When asked during her deposition to recount when any of these episodes took place, Simpson largely could not. She could not specify when any of these statements by Sparks occurred— even within a single year. Her responses were generally vague and apparently the majority of these incidents took place on a sporadic basis. ■ II. Civil Procedure Rule 56 governs motions for summary judgment. Summary judgment is properly granted “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 judgment as a matter of law.” N.C.G.S. § 1A-1, Rule 56(c) (1983). The procedures and guidelines by which summary judgment is properly allowed have oft been recited by this Court, but they bear repeating here. By making a motion for summary judgment, a defendant may force a plaintiff to produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial.... The party moving for summary judgment has the burden of establishing the lack of any triable issue. . . . The movant may meet this burden by proving that an essential element of the opposing party’s claim is nonexistent, or by showing through discovery that the opposing party cam not produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim. . . . All inferences of fact from the proofs offered at the hearing must be drawn against the movant and in favor of the party opposing the motion. . . . Boudreau v. Baughman, 322 N.C. 331, 342-43, 368 S.E.2d 849, 858 (1988) (citations omitted). Rule 56(e) of the Rules of Civil Procedure

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

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

DOWNER v DETROIT RECEIVING HOSPITAL Docket No. 118568. Submitted July 15, 1991, at Detroit. Decided September 16, 1991, at 9:00 a.m. Jennifer R. Downer brought an action in the Wayne Circuit Court against Detroit Receiving Hospital, Desabee Meadows, and others, alleging sexual harassment, negligent supervision, and negligent hiring, after she allegedly was sexually harassed by Meadows, one of her supervisors at the hospital. The court, Richard P. Hathaway, J., granted summary disposition for the defendants. The plaintiff appealed The Court of Appeals held: 1. The court properly refused to consider the plaintiffs affidavit submitted in opposition to the defendants’ motion for summary disposition. The affidavit contradicted testimony the plaintiff gave in a previous deposition. 2. The court properly granted summary disposition for the employer with regard to the plaintiffs sexual harassment claim based on a hostile work environment. The employer adequately investigated and took prompt and appropriate remedial action upon notice of the alleged hostile work environment. 3. Summary disposition of the claims against four of the defendants, which were based on their failure or refusal to investigate the plaintiffs claims against Meadows, was proper. A failure to investigate is not, in and of itself, a civil rights violation. 4. Summary disposition with regard to the negligent-hiring claim was proper. The plaintiff did not allege that the employer acted intentionally, and therefore the claim is barred by the exclusive remedy provision of the Workers’ Disability Compensation Act, MCL 418.131; MSA 17.237(131). Affirmed. 1. Motions and Orders — Summary Disposition — Affidavits. A party may not create factual issues by merely asserting the contrary in an affidavit after giving damaging testimony in a deposition (MCR 2.116[C][10]). References Am Jur 2d, Job Discrimination §§ 810-814; Motions, Rules, and Orders §§ 13,14, 20; Summary Judgment §§ 23, 35, 36. On-the-job sexual harassment as violation of state civil rights law. 18 ALR4th 328. 2. Civil Rights — Sexual Harassment — Hostile Work Environment — Duty to Investigate. An employer may avoid liability for an employee’s claim of sexual harassment based on a hostile work environment if it adequately investigated and took prompt and appropriate remedial action upon notice of the alleged hostile work environment; the employer has a duty to investigate and take prompt remedial action only if it has actual or constructive notice of the offensive environment. 3. Civil Rights — Sexual Harassment — Hostile Work Environment — Failure to Investigate Allegations. A failure to investigate allegations of sexual harassment based on a hostile work environment is not, in and of itself, a violation of the Civil Rights Act (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). Burkett, Cooper, Cooper & Woods (by Raymond R. Burkett and Arlene F. Woods), for the plaintiff. Honigman Miller Schwartz & Cohn (by Thomas E. Marshall), for Detroit Receiving Hospital, Kenneth Maly, Edward Thomas, Marjorie Lester, and Patrick Greaves. Before: Doctoroff, P.J., and McDonald and Brennan, JJ. Brennan, J. Plaintiff appeals as of right from a June 6, 1989, order granting summary disposition in favor of defendants pursuant to MCR 2.116(C) (8), (10). Plaintiff, an employee of defendant hospital, filed the present action against defendants alleging sexual harassment, negligent supervision, and negligent hiring after being sexually harassed by one of her supervisors at defendant hospital. We affirm. On appeal, plaintiff first argues that the trial court erred in refusing to consider her affidavit submitted in opposition to defendants’ motion for summary disposition. However, plaintiffs affidavit contradicted testimony she gave in a previous deposition. Parties may not create factual issues by merely asserting the contrary in an affidavit after giving damaging testimony in a deposition. Peterfish v Frantz, 168 Mich App 43, 54-55; 424 NW2d 25 (1988). Therefore, we find that the trial court did not err in this regard. Plaintiff next argues that the trial court erred in granting summary disposition to defendants where plaintiff stated a cause of action for sexual harassment. Plaintiffs claim was based on a hostile work environment. An employer may avoid liability for such a claim if it adequately investigated and took prompt and appropriate remedial action upon notice of the alleged hostile work environment. Eide v Kelsey-Hayes Co, 154 Mich App 142, 152; 397 NW2d 532 (1986), rev’d in part on other grounds 431 Mich 26; 427 NW2d 488 (1988). Plaintiff’s deposition testimony indicated that, upon receiving plaintiff’s first and only complaint regarding the sexual harassment by her supervisor, Desabee Meadows, defendant hospital immediately terminated Meadows’ employment. Therefore, we find that the trial court properly granted summary disposition on this basis. Plaintiff next argues that the lower court erred in granting summary disposition to defendants Lester, Maly, Greaves, and Thomas. Plaintiff alleged in her complaint that these individual defendants, specifically defendants Lester and Maly, were informed by plaintiff of her complaints of sexual harassment by Meadows but failed and refused to investigate the complaints. However, Michigan’s Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548 (101) et seq., is specific with regard to what constitutes a violation, and failure to investigate is not, in and of itself, a civil rights violation. Sumner v Goodyear Tire & Rubber Co, 427 Mich 505, 545; 398 NW2d 368 (1986). It has been used only as a formula for derivative liability against an employer whose employees have engaged in sexual harassment. Id. The employer has a duty to investigate and take prompt remedial action regarding claims of sexual harassment only if it has actual or constructive notice of the offensive environment. Eide, supra, p 152. As noted above, upon receiving plaintiff’s first and only complaint, regarding Meadows’ sexual harassment of plaintiff, defendant hospital immediately terminated Meadows’ employment. Therefore, we find that the trial court properly granted summary disposition with regard to this claim as well. Finally, plaintiff maintains that the trial court erred in granting defendant hospital’s motion for summary disposition regarding plaintiff’s negligent-hiring claim. We disagree. However, we find that the trial court reached the correct result for the wrong reason. DeWitt Twp v Clinton Co, 113 Mich App 709, 713; 319 NW2d 2 (1982). The trial court found that plaintiff failed to state a claim, citing Hersh v Kentfield Builders, Inc, 385 Mich 410, 412; 189 NW2d 286 (1971). However, we find that plaintiff’s claim is barred by the exclusive remedy provision of the Workers’ Disability Compensation Act. MCL 418.131; MSA 17.237 (131). The wdca bars claims brought by employees against their employer for injuries sustained in the course of employment unless the claim is one for an intentional tort. Radtke v Everett, 189 Mich App 346, 357; 471 NW2d 660 (1991); MCL 418.131; MSA 17.237 (131). An employer is deemed to have intended an injury if it had actual knowledge that an injury was certain to occur and wilfully disregarded that knowledge. Id. Here, plaintiff alleges that her employer acted negligently in hiring Desabee Meadows. Plaintiff does not allege that her employer acted intentionally, and therefore, her claim is barred. Compare Schutt v Lado, 138 Mich App 433, 437; 360 NW2d 214 (1984). See also Irvin Investors, Inc v Superior Court, 166 Ariz 113; 800 P2d 979 (1990). Affirmed.

MOURAD v AUTOMOBILE CLUB INSURANCE ASSOCIATION Docket No. 109985. Submitted April 11, 1990, at Detroit. Decided January 8, 1991, at 9:35 a.m. Roger Mourad, after he was demoted from head of the legal department to executive attorney, brought an action in the Wayne Circuit Court against the Automobile Club Insurance Association, his former employer, and three of its employees, alleging breach of an employment contract providing for termination for just cause only, retaliatory demotion and constructive discharge, intentional infliction of emotional distress, and conspiracy. The court, Henry J. Szymanski, J., entered judgment consistent with a jury verdict awarding the plaintiff compensatory damages for breach of contract and retaliatory demotion and exemplary damages for retaliatory demotion, but overturned an award of exemplary damages for intentional infliction of emotional distress. The defendants appealed. The plaintiff cross appealed. The Court of Appeals held: The plaintiff can maintain a cause of action against Auto Club for breach of a contract providing termination for just cause only as a result of retaliatory demotion and constructive discharge. However, because the cause of action for retaliatory demotion and constructive discharge merges with the breach of contract claim, that award must be set aside. Damages for intentional infliction of emotional distress are not recoverable in an action for breach of an employment contract. 1. The jury did not err in finding that there was a contract providing termination of employment for just cause only and that the defendants breached the contract when they constructively discharged the plaintiff by demoting him for his failure to take action which he claimed would have violated the Code _of Professional Responsibility. Accordingly, the trial court did not err in denying the defendants’ motion for a directed verdict regarding the claim of constructive discharge. References Am Jur 2d, Damages § 118; Master and Servant §§ 44, 62, 63. See the Index to Annotations under Attorney or Assistance of Attorney; Discharge from Employment or Office; Emotional Injury. 2. The plaintiffs breach of contract claim is not precluded by the general rule that an attorney’s client has a right to discharge an attorney at any time, with or without cause. The plaintiffs relationship with the defendants was more than merely that of attorney and client. 3. The plaintiff cannot properly recover damages for breach of contract and retaliatory demotion and discharge because each cause of action is an alternative type of wrongful discharge. Thus, the award of damages for retaliatory demotion must be vacated. 4. The trial court erred in instructing the jury with regard to the availability and adequacy of defendants’ internal appeal procedures upon the plaintiffs demotion inasmuch as the defendants did not assert that the plaintiff was precluded from maintaining his action because an internal appeal procedure was available. The error, however, does not require reversal because the verdict was consistent with substantial justice. 5. Damages for intentional infliction of emotional distress are not recoverable in an action for breach of an employment contract. The trial court erred in submitting the claim of intentional infliction of emotional distress to the jury, but properly refused to grant judgment with regard to the jury’s award of exemplary damages for intentional infliction of emotional distress. 6. The trial judge, an Auto Club policyholder, did not abuse his discretion in failing to disqualify himself as an interested party. The defendants failed to show actual bias sufficient for disqualification. The trial judge’s comments and questions at trial were not improper or prejudicial, nor did they deny the defendants a fair and impartial trial. Affirmed in part, reversed in part, and remanded. 1. Master and Servant — Attorney and Client — Wrongful Discharge. An action for wrongful discharge by an in-house attorney against an insurer-employer, claiming breach of a just-cause employment contract was not barred by the general rule that an attorney’s client has a right to discharge an attorney at any time, with or without cause, where the attorney, aside from serving as counsel for the insurer, also served as counsel for the insurer’s policyholders and as administrator for the insurer. 2. Master and Servant — Termination of Employment — Wrongful Discharge. A jury, having found a breach of a just-cause contract of employment, cannot rely on the same factual basis to award additional damages for a claim of retaliatory demotion and retaliatory constructive discharge. 3. Damages — Emotional Distress — Breach of Employment Contracts. Damages for infliction of emotional distress are not recoverable in an action for breach of an employment contract. Weinstein, Gordon & Hoffman, P.C. (by William J. Weinstein and Joel L. Hoffman), for the plaintiff. Dykema Gossett (by Donald S. Young, Kathleen McCree Lewis, and Suzanne Sahakian), for the defendants. Before: Holbrook, Jr., P.J. and McDonald and Jansen, JJ. Jansen, J. Defendants appeal as of right from a March 3, 1988, Wayne Circuit Court jury verdict in the amount of $1,773,000 for breach of an employment contract, demotion without cause, constructive discharge, retaliatory demotion, intentional infliction of emotional distress, and conspiracy. Plaintiff cross appeals the trial court’s refusal to enter an additional $500,000 in exemplary damages which the jury had awarded on a special verdict form for intentional infliction of emotional distress. We hold that plaintiff, an attorney, can maintain a cause of action against defendant, Automobile Club Insurance Association (Auto Club), his former client and employer, for breach of a just-cause contract. However, we reverse the jury verdict regarding the claims of retaliatory demotion, intentional infliction of emotional distress, and conspiracy. We therefore affirm in part and reverse in part. In 1980, plaintiff was named legal area manager and in that capacity headed Auto Club’s in-house legal department from August 1980 until March 1983 when he was demoted to an executive attorney position. Auto Club’s legal department represents the insurance association in first-party cases and represents policyholders in third-party cases. The legal department attorneys supervise outside counsel and provide legal counsel and advice to Auto Club’s claims staff regarding nonlitigation matters. As legal area manager, plaintiff served as the attorney who advised management regarding the implementation of Auto Club’s policies within the department. Specifically, plaintiff formulated budget requests and administered the legal department within the budget approved by Auto Club. Plaintiff also supervised the attorney staff in its representation of insureds in pending litigation. Specifically, plaintiff gave settlement authority in certain cases, dealt with personnel problems and questions from attorneys and staff, evaluated executive attorneys, and reviewed senior attorneys’ evaluations of associate attorneys. Plaintiff described his function as a "managing lawyer.” As legal area manager he did not directly handle individual third-party cases. It appears that plaintiff was an excellent lawyer. However, Thomas Bowman, Auto Club’s claims director and plaintiff’s direct supervisor, concluded that plaintiff was unable to implement Auto Club’s policies and did not have the "administrative talents” necessary to effectively implement cost-containment measures in the legal department. In September 1982, Bowman assigned defendant Leonard Bach, who is not a lawyer, but who had twenty years of claims experience, to oversee the legal department. On March 16, 1983, plaintiff was removed as legal area manager and demoted to executive attorney. Plaintiff lost his use of a company car and approximately $700 in annual salary. Following his demotion, plaintiff was an executive attorney who handled first-party catastrophic claims. On March 16, 1984, plaintiff resigned his employment with Auto Club and opened a sole practice. On July 11, 1984, plaintiff filed a complaint alleging breach of a just-cause contract, retaliatory demotion and constructive discharge, intentional infliction of emotional distress, and conspiracy to commit the tort of retaliatory demotion or intentional infliction of emotional distress. Plaintiff claimed that his demotion was the result of his refusal to comply with alleged unethical and illegal orders from the individual defendants who were not attorneys. Plaintiff further claimed that had he complied with such orders and instructions he would have violated the Code of Professional Responsibility and Canons. On March 3, 1988, the jury returned its verdict. As compensatory damages, the jury awarded $1,250,000 as past, present, and future loss of wages and employment benefits for the breach of contract claim and $23,000 as past, present, and future loss of wages and employment benefits for the retaliatory demotion claim. For retaliatory demotion, the jury added $500,000 as compensatory damages for mental anguish. The jury also awarded $500,000 as exemplary damages for intentional infliction of emotional distress. Following an April 15, 1988, hearing, the court entered a judgment on the jury verdict, less the exemplary damages for intentional infliction of emotional distress, which the court found inconsistent, duplicative and punitive. Defendants argue that plaintiff cannot sustain a cause of action for wrongful termination, because plaintiff was defendants’ attorney. Specifically, defendants allege that a just-cause contract as established in Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), reh den 409 Mich 1101 (1980), cannot exist under these circumstances. We disagree. The issue before us is whether plaintiff can maintain an action for wrongful termination of a just-cause employment contract. In Toussaint, supra, our Supreme Court held that an employer’s statements of company policy and procedure that an employee will be terminated only for cause can give rise to an enforceable contract right. The existence of a just-cause contract and whether defendants’ actions constituted a breach of that contract is a question for the jury to determine. Stoken v J E T Electronics & Technology, Inc, 174 Mich App 457, 464; 436 NW2d 389 (1988); Struble v Lacks Industries, Inc, 157 Mich App 169, 175; 403 NW2d 71 (1986). Initially, we note that the jury did not err in finding that there was a just-cause contract and that defendants, by demoting plaintiff for his failure to comply with policy decisions which plaintiff claimed would have violated the code of professional conduct, breached that contract. In a special jury form, the jury found that defendants’ policy manual and pamphlets had in fact created a contract to terminate for just cause. The jury also found that defendants did not have just cause to demote plaintiff and that defendants constructively discharged plaintiff by making the conditions of plaintiff’s work so intolerable that plaintiff felt compelled to leave. We are unpersuaded by defendants’ argument that the trial court erred in failing to direct a verdict for defendants on the constructive discharge claim. A constructive discharge occurs when an employer deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation or, stated differently, when working conditions become so difficult or unpleasant that a reasonable person in the employee’s shoes would feel compelled to resign. Fischhaber v General Motors Corp, 174 Mich App 450, 454-455; 436 NW2d 386 (1988). In reviewing a trial court’s ruling on a motion for a directed verdict or judgment notwithstanding the verdict, the testimony and all legitimate inferences that may be drawn from that testimony are viewed in the light most favorable to the plaintiff. Matras v Amoco Oil Co, 424 Mich 675, 681; 385 NW2d 586 (1986). If reasonable jurors could honestly reach different conclusions, the motion should be denied, and the case should be decided by the jury, because no court under such circumstances has authority to substitute its judgment for that of the jury. Id.; Feaheny v Caldwell, 175 Mich App 291, 299-300; 437 NW2d 358 (1989). We hold that the trial court did not err in refusing to grant defendants’ motion for a directed verdict. Evidence presented at trial indicated that plaintiff was demoted from the highest position in the legal staff to a lesser position with the resultant loss of authority and various benefits. Evidence indicated that plaintiff was essentially isolated from the operation of the law department. Further, after plaintiff’s demotion, plaintiff alleged that defendants continued to make unethical requests and demands concerning plaintiff’s representation of insureds. Under these facts, we find that a reasonable juror could find that plaintiff was constructively discharged. Defendants claim that plaintiff’s cause of action should be precluded by the general rule that a client has a right to discharge his attorney at any time, with or without cause. See comments to MRPC 1.16, formerly DR 2-110; Brown v Brown, How NP 94, 95 (Wayne CC, 1876). We disagree. In support of their position, defendants cite Herbster v North American Co, 150 Ill App 3d 21; 103 Ill Dec 322; 501 NE2d 343 (1986), and Willy v Coastal Corp, 647 F Supp 116 (SD Tex, 1986), rev’d on other grounds 855 F2d 1160 (CA 5, 1988). In Herbster, the plaintiff brought suit for retaliatory discharge against his employer, North American Company, stemming from the plaintiff’s refusal to destroy or remove inculpatory documents requested in lawsuits pending in federal court. The plaintiff was North American’s chief legal officer and vice-president in charge of the legal department under an employment-at-will contract. In Illinois the tort of retaliatory discharge is an exception to the general rule that an employee at will has no recourse for discharge. The tort requires that the employer discharge the employee in retaliation for the employee’s activities and that the discharge be in contravention of clearly mandated public policy. The Illinois court granted summary judgment for North American on the basis of the attorney-client relationship. The Illinois Court of Appeals affirmed, refusing to extend the tort of retaliatory discharge to cases involving general in-house counsel. The Illinois Court of Appeals noted that the right to terminate is a necessary aspect of the attorney-client relationship and a preventive measure against the evils created by any friction or distress between an attorney and his client. Likewise, in Willy, the federal district court held that an in-house attorney is required to withdraw from employment when a client elects to terminate the attorney-client relationship. In that case, the court granted the defendant’s motion to dismiss a cause of action for wrongful termination from the plaintiffs employment as in-house counsel. The plaintiff alleged that he was fired because he required the defendant to comply with environmental laws. The Willy court held that the public policy exception, which creates a cause of action for retaliatory discharge in the context of an employment-at-will contract, does not apply to the termination of in-house attorneys. The Willy court noted that the ethical canons and the disciplinary rules set forth the standards for attorneys to follow and that they require an attorney presented with ethical conflicts to withdraw from representation. Thus, the Willy Court declined to extend the retaliatory discharge claim to include the wrongful termination of in-house attorneys. However, the appeals court of New Jersey, in Parker v M & T Chemicals, Inc, 236 NJ Super 451; 566 A2d 215 (1989), held that the New Jersey Whistleblower’s Act compels an employer to pay damages to an employee-attorney who is wrongfully discharged or mistreated for any reason which is violative of law, fraudulent, criminal, or incompatible with a clear mandate of New Jersey public policy concerning public health, safety, or welfare. Id. at 220. Thus, Parker held that the attorney-client relationship was not a bar to recovery on the basis of a retaliatory discharge claim. We distinguish the Willy, Herbster, and Parker opinions. These cases dealt with the question whether the state will recognize a public policy exception to the typical employment-at-will contract. In the present case, the jury found a just-cause contract and a breach of that contract. The determination of the existence of a public policy exception to an employment-at-will contract, as discussed in Willy, Herbster, and Parker, is a different inquiry from the establishment of a breach of a just-cause contract. The present case involves the creation of contractual rights by the parties, not the imposition of restrictions on employment termination on the basis of public policy grounds. Further, we decline to adopt a complete bar to suits brought by an attorney for wrongful termination and breach of a just-cause contract on the basis of the attorney-client relationship. The general rule that a client has the right to discharge his attorney at any time, with or without cause, does not affect the present action for breach of contractual rights. Although at the time of plaintiffs demotion and constructive discharge DR 2-110 required that an attorney withdraw from employment if he knows or if it is obvious that his continued employment will result in a violation of a disciplinary rule, the present case does not simply involve an attorney-client relationship between plaintiff and Auto Club. In many ways, plaintiff, in his relationship as supervisor of the legal staff and subsequently as supervisor over lawsuits involving catastrophic injury, was an attorney for the insureds. As such, he had a duty of loyalty and zealous representation to the insured client alone. American Employers’ Ins Co v Medical Protective Co, 165 Mich App 657, 660; 419 NW2d 447 (1988). In this role, plaintiffs "sole loyalty and duty is owed to the client alone.” Atlanta Int’l Ins Co v Bell, 181 Mich App 272, 274; 448 NW2d 804 (1989). The Bell Court summarized: [T]he fact remains that an insurance defense attorney represents the insured and not the insurance company. The only attorney-client relationship which exists is between the attorney and the insured client. Indeed, whenever the interests of the insured and the insurance company differ, the attorney’s ethical obligation is to pursue the interests of the insured client the attorney is representing and not the interests of the insurance company who pays the bill. . . . Indeed, the insurance company’s relationship is, in reality, with its insured; that is, the insurance company is obligated to pay the attorney fee incurred by its insured in defending litigation covered by an applicable insurance policy. The fact that an insurance company may directly pay the attorney fee rather than merely reimbursing its insured does not affect the nature of the attorney-client relationship nor does it change the fact that the attorney represents the insured client and only owes a duty to that insured client. [Bell, supra at 274-275, citation omitted.] However, it should also be noted that in some respects plaintiffs relationship with Auto Club was as counsel for Auto Club. Auto Club’s legal department represented Auto Club in first-party cases, i.e., where a policyholder sues Auto Club, seeking benefits under an insurance contract. Plaintiff also acted as in-house counsel who advised management on the operation of the legal department in supervising attorneys who represented various policyholders in separate actions. Finally, we note that plaintiff was also a supervisor acting in an administrative role. In this sense, plaintiff did not