Pregnancy Discrimination Cases

Civ.R. 12(B)(6) failure to state a claim wrongful termination clear public policy pregnancy discrimination temporal nexus

Tracy Thurdin vs. SEI Boston, LLC. Suffolk. May 5, 2008. October 24, 2008. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Cordy, & Botsford, II. Constitutional Law, Sex discrimination. Anti-Discrimination Law, Employment, Sex. Employment, Discrimination. Discussion of G. L. c. 93, § 102 (a), one of the provisions of the Massachusetts Equal Rights Act. [439-440] Discussion of G. L. c. 151B and the administrative and judicial avenues for redress of employment discrimination in violation of the statute. [440-443] A Superior Court judge erred in dismissing a civil action alleging gender and pregnancy discrimination against the plaintiff’s employer, where although the employer, which had fewer than six employees, was not amenable to suit under G. L. c. 151B, the plaintiff could nonetheless assert a claim under the Massachusetts Equal Rights Act (MERA), G. L. c. 93, § 102 (a), a result confirmed by the plain language of the two statutes and case law [443-448], as well as the legislative intent evident from the history of MERA [448-452], Botsford, J., concurring, with whom Marshall, C.J., and Greaney, J., joined. Cordy, J., dissenting, with whom Cowin, J., joined. A Superior Court judge erred in dismissing a civil action alleging gender and pregnancy discrimination under the Massachusetts Equal Rights Act, G. L. c. 93, § 102, against the plaintiff’s employer (which, having fewer than six employees, was not amenable to suit under G. L. c. 151B), where the phrase “make and enforce contracts” in G. L. c. 93, § 102, was not limited to the hiring phase of employment, but rather covered discriminatory treatment during the course of employment. [452-455] Botsford, J., concurring, with whom Marshall, C.J., and Greaney, J., joined. Cordy, J., dissenting, with whom Cowin, J., joined. Civil action commenced in the Superior Court Department on March 8, 2006. A motion to dismiss was heard by John C. Cratsley, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Daniel W. Rice for the plaintiff. Joseph S. Berman (Kenneth J. Rodriguez with him) for the defendant. The following submitted briefs for amici curiae: James S. Weliky for Massachusetts Employment Lawyers’ Association & others. Jo Ann Shotwell Kaplan & Martin Newhouse for New England Legal Foundation & others. Patricia A. Washienko & Anne Josephson for Union of Minority Neighborhoods & others. Ireland, J. We transferred this case from the Appeals Court on our own motion to consider whether an employee who is unable to pursue an employment discrimination claim against her former employer pursuant to G. L. c. 151B, because the employer had fewer than six employees, may instead assert a claim under G. L. c. 93, § 102, one of the provisions of the Massachusetts Equal Rights Act (MERA). A Superior Court judge entered an order granting the defendant’s motion to dismiss the plaintiffs complaint charging the defendant with sex discrimination pursuant to MERA. Because we conclude that an employee may assert a sex discrimination claim under MERA where an employer is not within the ambit of G. L. c. 151B, we vacate the order and judgment dismissing the complaint and remand the case for further proceedings. Facts and procedure. We set forth the facts, taking as true all the allegations in the plaintiffs complaint and drawing all inferences in her favor. Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995). On February 15, 2005, the defendant, which provides information technology services to businesses, offered the plaintiff a position as an onsite information technology consultant. The plaintiff began working on March 15, 2005, reporting to the defendant’s managing principal, Vicki Hudson. On April 11, the plaintiff told Hudson that she was pregnant and had a due date of June 27. The plaintiff alleges that she could perform all of the essential functions of her job, including onsite consulting. The next day, Hudson told the plaintiff that she had spoken to Daniel Pierce, the owner of Systems Evolution, Inc., in Mason, Ohio. Hudson stated that she and Pierce were upset that the plaintiff was pregnant and requested that the plaintiff voluntarily take an unpaid leave of absence. The plaintiff refused. Hudson told the plaintiff that she had acted unethically by failing to reveal, during her job interview, that she was pregnant. Hudson stated that the defendant could not place the plaintiff onsite with clients due to her pregnancy and that it would be very costly to have the plaintiff “on the bench” during the term of her pregnancy and while on maternity leave. Hudson went on to say that the plaintiff was unfairly burdening the defendant with her pregnancy because the defendant is a small company trying to develop new business in the Boston area. The plaintiff asked Hudson to view the plaintiff’s situation from her perspective, to which Hudson remarked that it was “not [her] problem.” After this conversation, the plaintiff telephoned her attorney, a friend, and her husband, and relayed that she believed she was being discriminated against due to her pregnancy. Another employee overheard these calls and reported them to Hudson. Hudson ordered the plaintiff to leave the office and to “have a conversation with [herself] in the mirror and come back tomorrow with a better attitude.” By a letter dated April 20, 2005, but not given to the plaintiff until April 22, the defendant placed the plaintiff on unpaid administrative leave because of her pregnancy. The plaintiff did not return to work. Prior to receiving the letter, the plaintiff filed a charge of discrimination against the defendant with the Equal Employment Opportunity Commission (EEOC) and with the Massachusetts Commission Against Discrimination (MCAD), thus pursuing administrative remedies under Federal and State law pursuant to Title VII of the Federal Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (2000) (Title VII), and G. L. c. 151B. The plaintiff’s complaint appears to have been closed by the EEOC for lack of jurisdiction after the defendant contended that it had only three employees. In March, 2006, the plaintiff filed a complaint in the Superior Court alleging gender and pregnancy discrimination under MERA. After answering the complaint, the defendant filed a motion to dismiss or, in the alternative, a motion for judgment on the pleadings. The judge found that it is undisputed that the defendant employed less than six people. He concluded that G. L. c. 15IB is the exclusive remedy in employment discrimination cases and that, as evidenced by the statute’s definition of “employer,” the Legislature intended that discrimination claims would not lie against employers having fewer than six employees. The judge also concluded that, in any event, the plaintiff did not have an alternative remedy under MERA because the statute’s phrase “make and enforce contracts” applies only to claims of discrimination during the hiring process. To support his conclusion, the judge relied on the United States Supreme Court’s interpretation of comparable language that existed in 42 U.S.C. § 1981, at the time of its decision in Patterson v. McLean Credit Union, 491 U.S. 164, 176-177 (1989), abrogated by the Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1071. A judgment entered dismissing the plaintiff’s complaint. The plaintiff appealed. Statutory scheme. We begin with an overview of the pertinent provisions of the relevant statutes. MERA. General Laws c. 93, § 102 (a), inserted by St. 1989, c. 332, provides, in pertinent part: “All persons within the commonwealth, regardless of sex, race, color, creed or national origin, shall have, except as is otherwise provided or permitted by law, the same rights enjoyed by white male citizens, to make and enforce contracts, to inherit, purchase, to lease, sell, hold and convey real and personal property, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other” (emphasis supplied). The language of § 102 (a) drew on language in 42 U.S.C. §§ 1981 and 1982 (2000), as they existed at the time, but expanded the category of those covered, as §§ 1981 and 1982 cover only race. See Johnson, The 1989 Massachusetts “Equal Rights Law”: A Short History, 34 B.B.J. 17, 18 (1990) (Johnson) (MERA added sex and religion to language fashioned from §§ 1981 and 1982). The statute was proposed in anticipation of the United States Supreme Court’s Patterson decision. Id. at 17. General Laws c. 93, § 103, inserted by St. 1990, c. 156, extended the rights afforded under § 102 to persons with a handicap or over forty years of age, as defined in G. L. c. 15IB, § 1 (8), (17), and requires a “reasonable accommodation” concerning those rights. General Laws c. 15IB. General Laws c. 151B is an antidis-crimination statute originally enacted in 1946. St. 1946, c. 368, § 4. General Laws c. 151B, § 4 (1), (1A), (IB), and (3), as amended through St. 2004, c. 355, § 1, forbids discrimination in employment on the basis of race, color, religious creed, national origin, sex, sexual orientation, genetic information, ancestry, age, or handicap. For purposes of the statute, “employer” is defined to expressly exclude “any employer with fewer than six persons in his employ.” G. L. c. 151B, § 1 (5). The Massachusetts Commission Against Discrimination (MCAD) is the administrative agency that enforces the statute. G. L. c. 15IB, §§ 1 (7), 3, 5. General Laws c. 15IB, § 9, first par., provides that the statute “shall be construed liberally for the accomplishment of its purposes.” It states that “any law inconsistent with any provision of this chapter shall not apply, but nothing contained in this chapter shall be deemed to repeal any provision of any other law of the commonwealth relating to discrimination” (emphasis added). Section 9, second and third pars., also states that ninety days (but not later than three years) after filing a complaint with the MCAD, a plaintiff may choose to bring an action for damages (actual and punitive) in the Superior Court, Probate and Family Court, or Housing Court. Thus the statute provides an aggrieved party with “two largely independent avenues for redress of violations of [G. L. c. 15IB], one through the MCAD (G. L. c. 151B, §§ 5-6), and the other in the courts (G. L. c. 151B, § 9).” Stonehill College v. Massachusetts Comm’n Against Discrimination, 441 Mass. 549, 565, cert. denied sub nom. Wilfert Bros. Realty Co. v. Massachusetts Comm’n Against Discrimination, 543 U.S. 979 (2004) (Stonehill College), quoting Brunson v. Wall, 405 Mass. 446, 452 (1989). However, the judicial remedy is available only after a party has first filed a complaint with the MCAD, and while administrative procedures are pending pursuant to G. L. c. 151B, §§ 4 and 5, that procedure is exclusive. G. L. c. 151B, § 9, as amended through St. 2002, c. 223, § 2. Moreover, if G. L. c. 151B is available, an aggrieved employee may not bring a claim under another statute in the first instance. Charland v. Muzi Motors, Inc., 417 Mass. 580, 586 (1994) (Charland) (where G. L. c. 151B applies, it is exclusive remedy for employment discrimination). Furthermore, “the primary purpose of an administrative proceeding before the MCAD is to vindicate the public’s interest in reducing discrimination in the workplace.” Stonehill College, supra at 563. During the administrative process, the commission, not the complainant, prosecutes the claim, and “the commission is empowered to fashion equitable remedies designed chiefly to protect and promote the broader public interest in eradicating systemic discrimination” (emphasis added). Id. If the complainant chooses the judicial route to recover damages for his or her individual discrimination, the MCAD takes no further action. Id. Rather, the case is considered no longer “pending” pursuant to G. L. c. 151B, §§ 4, 5, and 9. Charland, supra at 585. Discussion. 1. In his written decision granting the defendant’s motion to dismiss, the judge stated: “[I]t is apparent that [the Legislature] contemplated the precise issue currently before this Court. [It] considered and resolved [in the negative] the question of whether the antidiscrimination statute allows for a cause of action in pregnancy-related discrimination cases involving employers with [six] or fewer employees. . . . [Its] intent is demonstrated in the definition of an employer provided in [G. L.] c. 151B. Employees of such smaller companies are not within the scope of the statute’s intended protections . . . [and] given the explicit text they enacted [it] must have believed that the benefits to smaller businesses outweighed all other considerations.” In support of this conclusion, the judge stated that in the case of sexual harassment, the Legislature enacted G. L. c. 214, § 1C, to cover employees working for small firms. He concluded that because the Legislature did not enact a statute to cover pregnancy-related discrimination for employees of small firms, it was evidence that the Legislature intended G. L. c. 15IB to be the exclusive remedy for such discrimination. The defendant argues that the judge’s interpretation of the statute is correct because G. L. c. 151B’s definition of “employer” is plain and unambiguous, and because there was a footnote in the bill proposed in 1946 stating that the Legislature deliberately excluded small businesses from the scope of the statute. See note 7, supra. The defendant further contends that this position is bolstered by G. L. c. 149, § 105D, which provides, in certain circumstances, maternity leave for female employees, and for the restoration of their job (or similar position) and protection of, inter alla, seniority and level of pay. The statute states that an employer “shall be defined as in [G. L. c. 151B, § 1 (5)].” Although the defendant does not argue that maternity leave is at issue here, it argues that this statute is evidence that small employers were exempted deliberately from pregnancy discrimination. We disagree. Ordinarily, where the language of a statute is plain and unambiguous, it is conclusive as to legislative intent. See Sterilite Corp. v. Continental Cas. Co., 397 Mass. 837, 839 (1986), and cases cited. Moreover, we construe civil rights statutes liberally, giving effect to every provision to produce a consistent body of law. See, e.g., Green v. Wyman-Gordon Co., 422 Mass. 551, 554 (1996); Batchelder v. Allied Stores Corp., 393 Mass. 819, 822 (1985), citing 3 C. Sands, Sutherland Statutory Construction § 72.05, at 392 (4th ed. 1974) (civil rights statutes are remedial and entitled to liberal construction). “The mle for the construction of remedial statutes is that cases within the reason, though not within the letter, of a statute shall be embraced by its provisions . . . .” Batchelder v. Allied Stores Corp., supra, quoting 2A C. Sands, Sutherland Statutory Construction § 54.04, at 570 (4th ed. 1974). We also assume the Legislature is aware of existing statutes when it enacts subsequent ones. Green v. Wyman-Gordon Co., supra. Furthermore, where there is an express exception in a statute, it comprises the only limit on the operation of the statute and no others will be implied. General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 805-806 (1999), quoting District Attorney for the Plymouth Dist. v. Selectmen of Middleborough, 395 Mass. 629, 633 (1985). Here, there is nothing in the plain language of § 102 of MERA that excludes small employers from its application. It expressly states, in pertinent part, that “[a]ll persons” shall have a right to “make and enforce contracts” without regard to sex. Moreover, there is nothing in the plain language of G. L. c. 15 IB stating that, where it does not apply, aggrieved parties are excluded from using other statutes to vindicate their right to be free from employment discrimination. Rather, the statute expressly states that “nothing contained in this chapter shall be deemed to repeal any provision of any other law of this commonwealth relating to discrimination,” unless it is inconsistent with G. L. c. 15IB (emphasis added). G. L. c. 15IB, § 9, first par. The statute’s phrase “nothing contained in this chapter” would include the definition of “employer” in G. L. c. 15IB, § 1 (5), because § 9 allows no exception, reflecting a determination by the Legislature that antidiscrimination statutes should be applied as written. See General Elec. Co. v. Department of Envtl. Protection, supra. In addition, there is nothing “inconsistent” between the two statutes because they do not cover the same employers and provide different remedies. We also do not agree with the defendant that our Charland decision supports its interpretation of G. L. c. 15IB. In Char-land, the plaintiff failed to file a timely complaint with the MCAD and filed suit in the Superior Court under MERA. The court’s conclusion that G. L. c. 151B is the “exclusive remedy” for employment discrimination because “it is unlikely . . . the Legislature intended to create a parallel and competing alternative to dealing with the problem of employment discrimination,” was expressly qualified by the words “where applicable.” Char-land, supra at 584, 586. The Charland court discussed Melley v. Gillette Corp., 397 Mass. 1004 (1986), and Mouradian v. General Elec. Co., 23 Mass. App. Ct. 538, 541-542 (1987), where G. L. c. 151B did apply, and where the Appeals Court concluded that it would not, respectively, create a new common-law cause of action or permit an action under the Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H and 111, in lieu of G. L. c. 151B. See Charland, supra at 585-586. However, Charland did not state that there were no alternative remedies where G. L. c. 151B did not apply. Rather, it quoted this portion of the Mouradian case: “There may be a case in which the termination of an at-will employee could give rise to a tenable complaint seeking relief under G. L. c. 12, §§ 11H and 111.” Id. at 586, quoting Moura-dian v. General Elec. Co., supra at 543. The Charland court went on to state that its decision was in keeping with its decisions (predating MERA) in O’Connell v. Chasdi, 400 Mass. 686 (1987), and Comey v. Hill, 387 Mass. 11 (1982). Charland, supra. The court stated that the O’Connell case held that the exclusivity provisions of G. L. c. 15IB “do not preclude an independent claim of a violation of an employee’s equal protection rights under art. 1 of the Declaration of Rights.” Charland, supra. The court also stated that the Comey case held that an employee could maintain a tort claim based on common-law principles that existed prior to the adoption of G. L. c. 151B. Id. Thus, we do not read Charland to stand for the proposition that G. L. c. 15IB is the exclusive remedy for all employment discrimination claims. Cases subsequent to MERA’s enactment support our reading of Charland. In Agin v. Federal White Cement, Inc., 417 Mass. 669, 670 (1994), the court was faced with a reported question similar to the one here, where an employee filed an age discrimination complaint pursuant to § 103 of MERA, and remanded the case because there had been no finding whether G. L. c. 151B applied to the employer. Id. at 672-673. However, the court did not state that if G. L. c. 15IB was not available, the plaintiff could not use MERA. In addition, this court has stated in two other cases that if G. L. c. 151B is not available for an employee alleging sexual harassment, the sexual harassment statute, G. L. c. 214, § 1C, is available as an alternative. Compare Guzman v. Lowinger, 422 Mass. 570, 572 (1996) (G. L. c. 151B unavailable), with Green v. Wyman-Gordon Co., 422 Mass. 551, 554-555 (1996) (G. L. c. 151B available). In Guzman v. Lowinger, supra,

SNIECINSKI v BLUE CROSS & BLUE SHIELD OF MICHIGAN Docket No. 119407. Argued November 19, 2002 (Calendar No. 6). Decided July 22, 2003. Rehearing denied post, 1224. Marcia Sniecinski brought an action in the Wayne Circuit Court against Blue Cross and Blue Shield of Michigan, alleging that bcbsm’s failure to hire her was based on pregnancy discrimination. The circuit court, Marianne O. Battani, J., denied the defendant’s motions for a directed verdict and a judgment notwithstanding the verdict, and entered judgment on a jury verdict and award of damages for the plaintiff. The Court of Appeals, Gribbs, RJ. (Kelly, J., concurring in result, and Sawyer, J., concurring in part and dissenting in part), affirmed in an unpublished opinion per curiam (Docket No. 212788). The defendant appealed. In an opinion by Chief Justice Corrigan, joined by Justices Taylor, Young, and Markman, the Supreme Court held: The trial court erred in failing to find no cause of action because the plaintiff failed to establish a causal connection between her pregnancy and the defendant’s failure to hire her. 1. The plaintiff’s employment was not transferred to bcbsm from Blue Care Network after the merger of their marketing activities because her employment with bcn had been administratively terminated before the transfer date by plaintiff’s collecting long-term disability benefits occasioned by her usage of medical leave on account of problem pregnancies. An offer of employment from BCBSM expired by plaintiff’s failure to begin performing the bcbsm job functions before collecting long-term disability benefits. 2. The plaintiff failed to present evidence that satisfies the direct-evidence test for discriminatory animus. She also failed to present evidence of discriminatory animus under the indirect or circumstantial evidence method set forth in McDonnell Douglas Corp v Green, 411 US 792 (1973), which requires the plaintiff to show a prima facie case of discrimination, requires the defendant to rebut the prima facie showing by articulating a legitimate, nondiscriminatory reason for the adverse employment action, and requires the plaintiff to show that the reason articulated was merely a pretext for discrimination. Bcbsm was therefore entitled to a finding by the circuit court of no cause of action as a matter of law. Justice Cavanagh concurred in the result only. Justice Weaver, concurring in part and dissenting in part, stated that, relating to noneconomic damages, the trial court did err in denying the defendant’s motion for a directed verdict because the plaintiff failed to present any specific and definite evidence of mental anguish, anxiety, or distress as she was required to do. There was, however, a reasonable inference from the evidence that the defendant’s failure to hire the plaintiff was causally connected to her pregnancy. Reversed; remanded to the circuit court. Justice Kelly, dissenting, stated that the jury was entitled to infer its conclusions from evidence submitted. The plaintiff presented abundant proof to create an inference regarding causation consistent with the jury’s decision. The jury was entitled to believe that the facts precipitating the loss of the position were an extension of discriminatory animus. The defendant’s posttermination actions also support the inference of a causal link between the discrimination alleged and the defendant’s employment actions. Civil Rights —- Civil Rights Act — Employment Discrimination — Evidence. A plaintiff claiming employment discrimination may prove the claim by direct evidence of discrimination or indirect or circumstantial evidence of discrimination; direct evidence is that which requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions; in the case of indirect or circumstantial evidence, the plaintiff must present a prima facie case of discrimination; if the defendant rebuts the presumption by articulating a legitimate, nondiscriminatory reason for the adverse employment action, the plaintiff must show that the defendant’s reasons are a mere pretext for discrimination (MCL 37.2101 et seqj. Hurlburt, Tsiros, AUweil & Perez, PC. (by Mandel I. AUweil), for the plaintiff. Bart M. Feinbaum for the defendant. Amici Curiae: Vercruysse Metz & Murray (by Diane M. Soubly) for the Michigan Chamber of Commerce. Clark Hill PLC (by Duane L. Tamacki, F.R. Damm, and Lira A. Johnson) for the Michigan Manufacturers Association. Kienbaum Opperwall Hardy & Pelton, PLC (by Thomas G. Kienbaum, Theodore R. Opperwall, and Noel D. Massie), for the Automobile Club of Michigan and DaimlerChrysler Corporation. Corrigan, C.J. In this pregnancy discrimination case, we have been asked to decide whether the trial court erred by denying defendant Blue Cross and Blue Shield of Michigan’s (bcbsm) motions for directed verdict and judgment notwithstanding the verdict. We hold that because plaintiff failed to adduce evidence of a causal connection between her pregnancy and bcbsm’s failure to hire her, bcbsm was entitled to a finding of no cause of action as a matter of law. The trial court erred by denying defendant’s motions for directed verdict and judgment notwithstanding the verdict. I. UNDERLYING FACTS AND PROCEDURAL HISTORY Blue Care Network of East Michigan (BCN), a wholly owned subsidiary of bcbsm, employed plaintiff as a telemarketing representative. Plaintiff, a high school graduate, began work at BCN’s predecessor, Group Health Services (GHS), in 1983. She held a variety of positions. In 1987, she became a telemarketing representative. In 1989, GHS merged into BCN. BCN honored the seniority that plaintiff had acquired at GHS. Also in 1989, plaintiff became pregnant. She experienced pregnancy complications that required her to take a medical leave for seven months. In October of that year, plaintiff gave birth to her daughter. In November, she returned to work for bcn. Plaintiff became pregnant again in 1992 while she was supervised by Michael Curdy. Plaintiff testified that after she informed Curdy about her pregnancy, he seemed upset. He referred to plaintiff’s chair as the “pregnancy chair.” He stated that he would not let anyone sit in that chair again. He asked plaintiff whether she was going to experience problems with her pregnancy as she had in 1989. Curdy further told plaintiff that he would not permit her to use either sick time or unpaid leave because of her pregnancy. In January 1993, Curdy placed a memo regarding plaintiff’s attendance in her personnel file. When plaintiff learned about the memo, she complained to Patricia Stone, the Regional Human Resources Manager at bcn. Stone informed Curdy that he had not followed the appropriate procedure for discipline. She advised Curdy to follow the correct procedure to determine whether a problem existed regarding plaintiff’s attendance before a disciplinary memo could be placed in plaintiff’s file. Stone then removed the memo from plaintiff’s file. Plaintiff again experienced pregnancy complications that required her to take one week off from work in February 1993. During that time, she suffered a miscarriage. Plaintiff testified that upon her return to work Curdy spoke to her about future pregnancies and stated, “We’ll have to deal with that problem when it comes.” During 1993, the marketing departments of bcn and bcbsm were merged. Because the merger was going to eliminate the telemarketing positions at BCN, BCN telemarketers seeking to continue their employment were required to interview for a position of account representative at bcbsm. In August 1993, plaintiff interviewed for an account representative position with Donald Whitford, bcbsm Regional Sales Director; Donald Roseberry, bcbsm Sales Team Manager; and Curdy. Plaintiff testified that Curdy asked about her time off from work related to her previous pregnancy complications. He also asked whether plaintiff thought her pregnancies would be a future problem. After a second interview with Whitford and Roseberry only, plaintiff was offered an account representative position at bcbsm. Immediately thereafter, plaintiff told Whitford and Roseberry that she was pregnant. Plaintiff testified that they “seemed surprised” and were “taken aback,” but congratulated her. Plaintiff and other BCN employees expecting to transfer to BCBSM continued to work for bcn until the merger. Plaintiff testified that when Curdy heard about her pregnancy, he remarked, “I’ll have to make sure I don’t hire anybody in child bearing years in the future.” In September 1993, soon after receiving the job offer, plaintiff began experiencing pregnancy-related complications. She was again required to take time off from work. She remained on medical leave from September 1993 until May 1994, six weeks after giving birth to her son. Shortly after plaintiff was offered the account representative position, Whitford and Curdy contacted Stone to discuss placing a disciplinary note in plaintiff’s file regarding her attendance problems during previous pregnancies. Stone testified that Whitford wanted Curdy’s January 1993 memo put back in plaintiffs file because plaintiff was continuing to have attendance problems. Stone advised them that placing a memo in plaintiffs file was inappropriate. On November 22, 1993, while plaintiff was on medical leave, the planned merger of the sales departments of bcn and bcbsm occurred, and all bcn employees who had been offered jobs with bcbsm terminated their employment with bcn and began working for bcbsm. Plaintiff did not report for work at bcbsm because she was on medical leave at that time. Instead, bcbsm held open an account representative position for her. On March 1, 1994, plaintiff’s short-term disability benefits expired, and she began to collect long-term disability (ltd) benefits. Under bcn’s ltd policy, an employee on medical leave converts from short-term to ltd status on the first day of the employee’s sixth month off work. The ltd policy provides that the employee is separated from the company and issued a final pay check, including accrued vacation and personal time. On October 11, 1993, while plaintiff was on short-term disability, she requested an extension of her medical leave. Plaintiff was concerned that the account representative position at bcbsm would no longer be available when she was ready to return to work. Stone informed plaintiff that the position would be held open until plaintiff went on ltd, if plaintiff’s medical leave extended that long. Stone’s notations in her Franklin planner corroborated this account of her conversation with plaintiff. The notes read as follows: Marcia concerned over job security- Advised her that not issue until ltd If ltd -> Blue Cross job not possible. We will attempt to find position similar qualifications/pay. Because plaintiff did not return to work before March 1, 1994, she began collecting ltd benefits. Bcn issued plaintiff a vacation and incentive payout and separated her from the company. In late May 1994, plaintiff informed bcbsm that she was ready to return to work. Because of the 1993 merger, her telemarketing position at bcn had been eliminated. The bcbsm account representative position previously offered to her was not filled because of a company-wide hiring freeze resulting from a loss of Medicare business. Plaintiff thereafter collected unemployment benefits for six months while making periodic efforts to find another job. In December 1994, bcn offered, and plaintiff accepted, a position as a marketing representative that was unrelated to her previous job. After resuming work, plaintiff learned that bcbsm had recently hired an account representative who was a college graduate. Both before and after the merger, the BCBSM account representative position required a college degree. The degree requirement had been waived only for those BCN employees transferring to BCBSM during the merger. Plaintiff had no college degree. In March 1996, while still employed at BCN, plaintiff sued bcbsm, alleging sex (pregnancy) discrimination in violation of Michigan’s Civil Rights Act (cra), MCL 37.2101 et seq. In August 1996, plaintiff saw a posting for an account representative with bcbsm. The position still required a college degree. Upon her inquiry, the BCBSM human resources department informed her that the degree requirement could not be waived. On September 20, 1996, plaintiff resigned from her position with BCN. She did not seek employment, instead opting to enroll in college to attend classes part-time. Plaintiffs lawsuit proceeded to trial. The jury rendered a verdict for plaintiff, awarding her $125,000 for past economic loss, $136,000 for future economic loss, and $90,000 in noneconomic damages. Defendant moved for judgment notwithstanding the verdict (jnov), a new trial, and remittitur of plaintiffs economic damages. The trial court denied the motions. The Court of Appeals affirmed the verdict. We granted bcbsm’s application for leave to appeal. H. STANDARD OF REVIEW Defendant contends that the trial court erred by denying its motions for directed verdict or JNOV. We review de novo the trial court’s denial of both motions. Forge v Smith, 458 Mich 198, 204; 580 NW2d 876 (1998); Smith v Jones, 246 Mich App 270, 273-274; 632 NW2d 509 (2001). We “review the evidence and all legitimate inferences in the light most favorable to the nonmoving party.” Wilkinson v Lee, 463 Mich 388, 391; 617 NW2d 305 (2000); Forge, supra at 204, quoting Orzel v Scott Drug Co, 449 Mich 550, 557; 537 NW2d 208 (1995). A motion for directed verdict or jnov should be granted only if the evidence viewed in this light fails to establish a claim as a matter of law. Wilkinson, supra at 391; Forge, supra at 204. III. ANALYSIS Section 202 of the cra, MCL 37.2202, provides in part: (1) An employer shall not do any of the following: (A) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status. [Emphasis added.] The CRA defines “sex,” within the meaning of the above section, as “ ‘[s]ex’ includes, but is not limited to, pregnancy, childbirth, or a medical condition related to pregnancy or childbirth . . . .” MCL 37.2201(d). Plaintiff claims that defendant discriminated against her in violation of the CRA by refusing to hire her because she was pregnant. Proof of discriminatory treatment in violation of the CRA may be established by direct evidence or by indirect or circumstantial evidence. DeBrow v Century 21 Great Lakes, Inc (After Remand), 463 Mich 534, 539; 620 NW2d 836 (2001); Harrison v Olde Financial Corp, 225 Mich App 601, 606-607; 572 NW2d 679 (1997). In cases involving direct evidence of discrimination, a plaintiff may prove unlawful discrimination in the same manner as a plaintiff would prove any other civil case. Hazle v Ford Motor Co, 464 Mich 456, 462; 628 NW2d 515 (2001). We have previously cited with approval the United States Court of Appeals for the Sixth Circuit’s definition of “ ‘direct evidence’ as ‘evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions.’ ” Hazle, supra at 462, quoting Jacklyn v Schering-Plough Healthcare Products Sales Corp, 176 F3d 921, 926 (CA 6, 1999); Harrison, supra at 610. In a direct evidence case involving mixed motives, i.e., where the adverse employment decision could have been based on both legitimate and legally impermissible reasons, a plaintiff must prove that the defendant’s discriminatory animus was more likely than not a “substantial” or “motivating” factor in the decision. Price Waterhouse v Hopkins, 490 US 228, 244; 109 S Ct 1775; 104 L Ed 2d 268 (1989); Harrison, supra at 612-613. In addition, a plaintiff must establish her qualification or other eligibility for the position sought and present direct proof that the discriminatory animus was causally related to the adverse decision. Harrison, supra at 612-613. Stated another way, a defendant may avoid a finding of liability by proving that it would have made the same decision even if the impermissible consideration had not played a role in the decision. Price Waterhouse, supra at 244-245. In cases involving indirect or circumstantial evidence, a plaintiff must proceed by using the burden-shifting approach set forth in McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973). Hazle, supra at 462; DeBrow, supra at 540. This approach allows “a plaintiff to present a rebuttable prima facie case on the basis of proofs from which a factfinder could infer that the plaintiff was the victim of unlawful discrimination.” DeBrow, supra at 538. To establish a rebuttable prima facie case of discrimination, a plaintiff must present evidence that (1) she belongs to a protected class, (2) she suffered an adverse employment action, (3) she was qualified for the position, and (4) her failure to obtain the position occurred under circumstances giving rise to an inference of unlawful discrimination. Hazle, supra at 463; Lytle v Malady (On Rehearing), 458 Mich 153, 172-173; 579 NW2d 906 (1998) (opinion by Weaver, J.); see also McDonnell Douglas, supra at 802. Once a plaintiff has presented a prima facie case of discrimination, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Hazle, supra at 464; Lytle, supra at 173 (opinion by Weaver, J.). If a defendant produces such evidence, the presumption is rebutted, and the burden shifts back to the plaintiff to show that the defendant’s reasons were not the true reasons, but a mere pretext for discrimination. Hazle, supra at 465-466; Lytle, supra at 174 (opinion by Weaver, J.). Under either the direct evidence test or the McDonnell Douglas test, a plaintiff must establish a causal link between the discriminatory animus and the adverse employment decision. Because a prima facie case under the McDonnell Douglas test creates a presumption of unlawful discrimination, causation is presumed. Texas Dep’t of Community Affairs v Bur dine, 450 US 248, 254; 101 S Ct 1089; 67 L Ed 2d 207 (1981). A defendant may rebut the presumption of causation by articulating a legitimate, nondiscriminatory reason for the employment decision. Under the direct evidence test, a plaintiff must present direct proof that the discriminatory animus was causally related to the adverse employment decision. Price Waterhouse, supra at 244-245; Harrison, supra at 612-613. In support of her claim, plaintiff relied in part upon the following alleged statements regarding her pregnancies: (1) Curdy referred to plaintiff’s chair as the “pregnancy chair” and stated that he was not going to allow anyone else to sit in the chair; (2) Curdy informed plaintiff that she would not be permitted to use sick time or unpaid leave in connection with her second pregnancy; (3) When discussing possible complications with future pregnancies, Curdy stated, “We’ll have to deal with that problem when it comes”; (4) Curdy asked plaintiff whether she was going to have complications with her second pregnancy “like she had in 1989”; (5) Curdy asked plaintiff about her pregnancy complications at the interview for the bcbsm account representative position; and (6) Curdy stated that he would never hire anyone in child-bearing years again. Bcbsm argued that the above statements were merely “stray remarks” and not direct evidence of discrimination. We need not determine whether the cited comments were mere “stray remarks.” Regardless of whether these were “stray remarks” or direct evidence of a discriminatory animus, plaintiff failed as a matter of law to prove that the remarks were causally related to bcbsm’s failure to hire her. Stated another way, plaintiff failed

Jennifer Thomas vs. EDI Specialists, Inc.; Steven A. Mills, third-party defendant. Bristol. May 8, 2002. August 15, 2002. Present: Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Contribution. Indemnity. Anti-Discrimination Law, Employment. Actionable Tort. Limitations, Statute of. A Superior Court judge correctly dismissed an employer’s third-party complaint against an employee who had been named as a primary offender in a fellow employee’s discrimination action against the employer pursuant to G. L. c. 15IB, where the employer had no right of contribution or indemnification against the offending employee for the alleged violations of c. 151B. [538-543] Civil action commenced in the Superior Court Department on October 13, 2000. A motion to dismiss a third-party complaint was heard by Ernest B. Murphy, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Randall T. Weeks, Jr. (Matthew C. Worthen with him) for EDI Specialists, Inc. John T. Landry, III, for Steven A. Mills. The following submitted briefs for amici curiae: Cynthia L. Amara for New England Legal Foundation. Thomas F. Reilly, Attorney General, Catherine C. Ziehl & Kathleen Z. Quill, Assistant Attorneys General, for the Attorney General. Robert S. Mantell for Massachusetts Employment Lawyers Association. Cowin, J. We decide today whether an employer has a right of contribution or indemnification against an offending employee for alleged violations of G. L. c. 151B. Jennifer Thomas filed a discrimination action in the Superior Court pursuant to G. L. c. 151B against her employer, EDI Specialists, Inc. (EDI). In her complaint, she names Steven A. Mills, a fellow employee, as a primary offender. EDI filed a third-party complaint against Mills seeking contribution and indemnification in the event it is found liable to Thomas. Mills moved to dismiss the third-party complaint, claiming, inter alla, that G. L. c. 151B does not provide for a right of contribution or indemnification against an employee. A judge in the Superior Court agreed with Mills and dismissed EDI’s third-party complaint. We affirm. 1. Facts and procedural background. We summarize the relevant facts from the Superior Court’s order, supplemented by relevant information from the record. EDI is an eighteen-employee company located in Massachusetts. Thomas was hired by EDI as an implementation services manager, and Mills as an operations director. In her charge of discrimination before the Massachusetts Commission Against Discrimination (commission), Thomas named EDI as the sole respondent and claimed that, after the announcement of her pregnancy, she was subjected to continuous and ongoing discrimination. Specifically, she alleged that, after becoming pregnant, she was required to document “every minute” of her time and was harassed and subjected to derogatory comments. She claimed further that after the birth of her child, she was not returned to the assignment she had before her maternity leave as she had been promised, and she was also changed from a salaried to an hourly employee. After waiting the requisite ninety days after the filing of her complaint with the commission, see G. L. c. 151B, § 9, Thomas commenced an action in the Superior Court under G. L. c. 151B, thereby transferring the case from the commission. EDI is the only defendant named in the complaint. Thomas alleged, inter alla, that EDI unlawfully discriminated against her on the basis of sex and in connection with her pregnancy in violation of G. L. c. 151B. According to Thomas, Mills referred to her as the “Company Prego” and told her that her inability to travel was detrimental to EDI. Thomas also alleged discriminatory behavior by the company’s president, Joseph Gilbody, and EDI itself for the failure to adopt company policies regarding sexual harassment and maternity leave. EDI filed a third-party complaint against Mills seeking indemnification and contribution. A Superior Court judge granted Mills’s motion to dismiss EDI’s third-party complaint, reasoning that G. L. c. 23IB, § 1 (a), the statute providing for the right to seek contribution, only applies to tort claims, and a claim under G. L. c. 15IB is not a “ ‘tort-like’ cause of action.” EDI petitioned for interlocutory review of the Superior Court’s order to a single justice of the Appeals Court, who granted EDI leave to file an interlocutory appeal. We transferred the case to this court on our own motion. 2. Discussion. On appeal, EDI argues that an employer sued under G. L. c. 15IB may seek contribution and indemnification from an offending employee pursuant to G. L. c. 23IB, § 1 (a). General Laws c. 15IB, § 4, provides that “[i]t shall be an unlawful practice . . . for an employer . . . because of race, color, religious creed, national origin, sex, sexual orientation . . . , genetic information, or ancestry ... to discriminate against such individual in compensation or in terms, conditions or privileges of employment. . .” (emphasis added). The statute sets forth a detailed procedure that an aggrieved employee must follow in pursuing a discrimination claim, G. L. c. 151B, § 5, and has been interpreted to allow an action against an individual employee as well as an employer. See Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 490-492 (2000). General Laws c. 15 IB contains no provision regarding an employer’s right to seek contribution from the offending employee. However, EDI argues that contribution is permitted by G. L. c. 23 IB. That statute provides for a right to contribution “where two or more persons become jointly liable in tort,” G. L. c. 23IB, § 1 (a), and permits a tortfeasor to seek partial reimbursement from a party who is jointly hable if he has paid more than his “pro rata share” of the damages. G. L. c. 23IB, § 1 (b). The language of the statute does not distinguish between intentional torts and negligence. The right of contribution created by G. L. c. 23 IB is not limited to those causes of action that existed when the statute became effective. Wolfe v. Ford Motor Co., 386 Mass. 95, 98-99 (1982). Rather, in deciding whether a particular statutory action supports a claim for contribution under G. L. c. 23IB, we must look to whether the underlying claim is “in essence a tort claim.” Id. at 99. See Ankiewicz v. Kinder, 408 Mass. 792, 795 (1990). Applying tins principle, we have held that a defendant may seek contribution in connection with a claim of implied warranty of merchantability, Wolfe v. Ford Motor Co., supra, and a claim of violation of the lead paint prevention law, Ankiewicz v. Kinder, supra. See Framingham Union Hosp. v. Travelers Ins. Co., 744 F. Supp. 29 (D. Mass. 1990) (permitting contribution in connection with claim of unfair business practices under G. L. c. 93A). EDI maintains that a discrimination action under c. 151B, like the statutes described above, “sound[s] in tort,” and thus permits third-party actions for contribution. Although we have, at times, analogized discrimination actions to tort actions, see, e.g., Dalis v. Buyer Advertising, Inc., 418 Mass. 220, 224 (1994); Conway v. Electro Switch Corp., 402 Mass. 385, 387-388 (1988), in other contexts, we have distinguished discrimination actions from tort actions. See Jancey v. School Comm. of Everett, 421 Mass. 482, 501 (1995), S.C., 427 Mass. 603 (1998) (“acts of discrimination — whether intentional or unintentional — do not thereby become torts”). See also McMillan v. Massachusetts Soc’y for the Prevention of Cruelty to Animals, 168 F.R.D. 94, 97 (D. Mass. 1995) (holding that statutory cap on tort damages recoverable against charitable organizations not applicable to claims brought under c. 151B). Our prior cases recognize that, in some but not all respects, actions brought under G. L. c. 151B are analogous to tort actions. Even if G. L. c. 151B can be considered “tort-like” for some purposes, allowing an action for contribution would undermine the statute’s complex and detailed procedures; the Legislature could not have intended such a result. General Laws c. 151B sets forth a comprehensive scheme for the resolution of discrimination claims. Guzman v. Lowinger, 422 Mass. 570, 571 (1996). Melley v. Gillette Corp., 19 Mass. App. Ct. 511 (1985), S.C., 397 Mass. 1004 (1986). A complainant may pursue a remedy either through administrative proceedings within the commission or through the judicial system. G. L. c. 151B, §§ 5, 9. However, a complainant under G. L. c. 151B must meet certain procedural requirements before proceeding in the courts, East Chop Tennis Club v. Massachusetts Commission Against Discrimination, 364 Mass. 444, 448 (1973); Melley v. Gillette Corp., supra at 512, and is not permitted to withdraw the case until the completion of a ninety-day waiting period unless “a commissioner assents in writing” to an earlier withdrawal. G. L. c. 15 IB, § 9. Allowing a right of contribution would interfere with the Legislature’s preference for resolving the proceedings at the administrative level. Charland v. Muzi Motors, Inc., 417 Mass. 580, 585 (1994), quoting Melley v. Gillette Corp., supra at 513 (referring to “legislative preference for an administrative solution”). The administrative process provides a defendant with notice and the opportunity for conciliation. G. L. c. 151B, § 5. Courts have recognized “the importance under c. 151B of sufficient notice being provided in the [commission] filing of the charges being made and of the parties deemed responsible, so as to allow both the opportunity to attempt early conciliation and a fair opportunity to litigate the issues raised.” Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 492 (2000), citing Chatman v. Gentle Dental Ctr. of Waltham, 973 F. Supp. 228, 235 (D. Mass. 1997). The commission’s regulations do not provide a method by which a defendant may join a third party, thereby potentially depriving a third-party defendant of the opportunity to participate in the administrative process. School Comm. of Brockton v. Massachusetts Comm’n Against Discrimination, 423 Mass. 7, 13 (1996) (“The investigating commissioner denied the school committee’s motion to join the union as a party-respondent because the commission has no rule allowing for third-party practice”). Further, the short statute of limitations of G. L. c. 15IB conflicts with the longer period of time in which a defendant may seek contribution under G. L. c. 23IB. At the time of this case, claims under G. L. c. 151B were lost if not brought within six months of the offending conduct. G. L. c. 151B, § 5. However, an action for contribution may be commenced as late as “one year after the judgment has become final by lapse of time for appeal or after appellate review.” G. L. c. 23IB, § 3 (c). The present case exemplifies the potential procedural pitfalls if we permit a defendant to assert a third-party complaint for contribution. Mills was not named as a respondent by Thomas in her original or amended complaint before the commission. In addition, EDI filed its third-party complaint against Mills only after the case had proceeded to court and after the six-month statute of limitations had expired. Thus, Mills was not afforded the administrative protections provided under G. L. c. 151B, and EDI’s late filing of the complaint deprived him of the benefit of the short limitations period of G. L. c. 151B. Engrafting a right to contribution would conflict with the remaining provisions of the statute and undermine the importance of its specific procedures. We cannot infer that the Legislature intended such a result. In addition, allowing a claim for contribution would circumvent the purposes of G. L. c. 151B. The language of the statute provides that an “employer” may be liable for discriminatory acts committed “by himself or his agent.” G. L. c. 151B, § 4. The statute also directs employers to adopt certain policies to prevent discrimination. See, e.g., G. L. c. 151B, § 3A. Thus, the statute clearly evinces an intent to reduce discrimination in the workplace by holding employers responsible for the discriminatory actions of their employees, regardless of whether these actions were authorized or supported by the employer or its policies. Although our conclusion may burden the employer who bears sole liability for the unauthorized conduct of an employee, that appears to be precisely what the Legislature intended. We also note that employers may protect their interests by contracting with employees for indemnification and enforcing that contract in a separate action, if the employer is held liable for the employee’s discriminatory behavior. The United States Supreme Court has reached a similar result in interpreting Title VII of the Civil Rights Act of 1964, the analogous Federal discrimination statute. Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 80-81 (1981). The Court reasoned that there is no Federal statutory right to contribution; Title VII was enacted solely to establish a statutory right of employees against employers, not to benefit employers; and the comprehensive nature of the remedial and enforcement schemes “expressly fashioned by Congress strongly evidences an intent not to authorize additional remedies.” Id. at 91-94. As discussed above, c. 151B, like its Federal counterpart, was enacted to eliminate discrimination by employers against employees through a comprehensive enforcement scheme. Although c. 15 IB, unlike Title VII, allows for the personal liability of individual employees, Beaupre v. Cliff Smith & Assocs., supra at 490-491, we find the reasoning of the Northwest Airlines case convincing. College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 163 (1987) (“In interpreting our statute, we may look to the interpretations of Title VII of the analogous Federal statute . . . “). As judges, we cannot amend the legislative scheme by “adding to [it] another private remedy not authorized by [the Legislature].” Northwest Airlines, Inc. v. Transport Workers Union, supra at 94. Judgment affirmed. Although EDI maintains that it is entitled to indemnification as well as contribution, EDI does not argue separately on indemnification. EDI makes no allegation of an express or implied contractual provision for indemnity. See Fall River Hous. Auth. v. H.V. Collins Co., 414 Mass. 10, 14 (1992). EDI apparently assumes that G. L. c. 231B, § 1 (a), provides a right to indemnification. Indemnification, however, is a common-law right available to one who is “without fault, [and] compelled by operation of law to defend himself against the wrongful act of another.” Santos v. Chrysler Corp., 430 Mass. 198, 217 (1999), quoting Elias v. Unisys Corp., 410 Mass. 479, 482 (1991). The Legislature did not intend that an employer found to be in violation of G. L. c. 151B could later be considered fault free in a subsequent action for indemnity. The commission has previously recognized a right of contribution under G. L. c. 23 IB against a union jointly liable for the discrimination. See Angelli vs. Lynn Sch. Comm., No. 81 BEM 0275 (1985). See also School Comm. of Brockton v. Massachusetts Comm’n Against Discrimination, 423 Mass. 7, 13 (1996). In the Angelli case, however, the third-party procedure was not needed to reach the union, as the complainants had named both the employer and the union in their complaint. Angelli vs. Lynn Sch. Comm., supra. The commission was thus faced with the complainants’ direct claims against both respondents, and did not have to confront the problems posed when a named respondent, not the claimant, seeks to bring another respondent into the case. The time for filing such complaints has since been extended to 300 days. See St. 2002, c. 223, § 1. We recognize that other jurisdictions have allowed actions for contribution under their own discrimination statutes. See Degener v. Hall Contracting Corp., 27 S.W.3d 775 (Ky. 2000); Donajkowski v. Alpena Power Co., 460 Mich. 243, 248-250 (1999) (permitting a third-party claim against union in gender discrimination claim); Flaherty vs. S.D. Warren Co., U.S. Dist. Ct. No. 98-254-P-H (D. Me. Jan. 26, 1999); Rodolico vs. Unisys Corp., 189 F.R.D. 245, 250 (E.D.N.Y. 1999) (same); Biggs v. Surrey Broadcasting Co., 811 P.2d, 111, 114-115 (Okla. Ct. App. 1991) (permitting counterclaim claim for indemnification by employer against employee in gender discrimination claim). As recognized in these decisions, there may be many sound policy reasons favoring an award of contribution. We are of the view, however, that those policy considerations are for the Legislature to weigh, and we will not engraft provisions that the Legislature has not enacted onto the very detailed procedures of G. L. c. 151B.

CUNNINGHAM v DEARBORN BOARD OF EDUCATION Docket No. 216170. Submitted December 12, 2000, at Detroit. Decided July 6, 2001, at 9:05 A.M. Denise Cunningham brought an action in the Wayne Circuit Court against the Dearborn Board of Education, her employer, alleging sex discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq., with respect to the defendant’s refusal to provide favored work to the plaintiff that would have been consistent with restrictions placed by her physician because of her pregnancy, whereas the defendant offers favored work to employees who sustain work-related disabilities that qualify them for worker’s compensation. The court, Dalton A. Roberson, J., granted summary disposition for the defendant, ruling that the plaintiff failed to establish a prima facie case of sex discrimination. The plaintiff appealed. The Court of Appeals held: The Civil Rights Act prohibits employment discrimination based on sex and defines “sex” to include pregnancy. The defendant’s policy of extending favored work to employees who sustain work-related disabilities that qualify them for worker’s compensation, but not to employees who sustain disabilities not related to work, such as pregnancy, does not constitute sex discrimination under the Civil Rights Act. The plaintiff failed to establish a prima facie case of sex discrimination inasmuch as she was not similarly situated with employees who sustain work-related disabilities and she was accorded the same rights as employees who sustain disabilities not related to work. Affirmed. Civil Rights — Civil Rights Act — Employment Discrimination — Sex — Pregnancy. An employer does not discriminate against an employee on the basis of sex or pregnancy in making favored work available to employees who sustain work-related disabilities that qualify them for worker’s compensation, but not to employees who sustain disabilities not related to work, such as pregnancy (MCL 37.2201[d], 37.2202[l][a]). Wahl & Rivers, EC. (by Beth M. Rivers), for the plaintiff. Plunkett & Cooney, P.C. (by Robert G. Kamenec and Suzanne P. Barios), for the defendant. Before: Griffin, P.J., and Holbrook, Jr., and Murphy, JJ. Griffin, P.J. Plaintiff appeals as of right an order granting summary disposition in favor of defendant pursuant to MCR 2.116(C)(10). We affirm. i Since 1991, plaintiff has worked for defendant as a Custodian C. At all relevant times, defendant had promulgated and distributed a job description for its Custodial C (Custodian C) position. The “performance responsibilities” contained in the Custodian C job description are as follows: 1. Perform cleaning duties as outlined by the Building Engineer including but not limited to: classrooms, rest rooms, shower and locker rooms, offices and other areas of the school building. 2. Perform minor repairs to school fixtures such as doors, light fixtures, window shades, desks and other furniture, etc. 3. Perform outside cleaning of building and grounds as outlined by the Building Engineer such as snow shoveling, grass cutting, window cleaning and policing grounds and parking area. 4. Assist in preparing of athletic fields. 5. Operate mechanized custodial equipment such as vacuums, hand scrubber, auto scrubber, carpet shampooers, etc. 6. Move and rearrange school furniture as directed by the Building Engineer. 7. Lock and unlock building to provide security and entry of groups using the building. 8. Maintain manual and mechanized custodial equipment and report needed repairs to Building Engineer. 9. Maintain supplies and reports needs to Engineer. 10. Remove trash to outside containers. 11. Replace burned out lamps using step ladders, extension poles or scaffolding. 12. Work cooperatively with other employees in performance of project cleaning. 13. Report cleaning or safety problems to Building Engineer. 14. Scrub and refinish floors during the school year to maintain protection of hard surfaces and minimize the need for floor stripping during summer cleaning. [Emphasis added.] The above duties of a Custodian C employee were the subject of a union contract negotiated between defendant and the Dearborn Federation of School Employees. In her deposition, plaintiff explained the day-to-day duties of a Custodian C position as follows: Q. Do you know what the difference is between a custodial A and custodial C? A. Yes, I do. Q. What is the difference? A. No heavy lifting for custodial A, they normally don’t throw out their own trash, no ladder climbing, no running of any dangerous machinery. Q. What would the heavy lifting be, what type of heavy lifting would there be? A. Moving of heavy desks, furniture, filing cabinets, supplies. Q. Why would you have to get on a ladder, what would that entail? A. Changing a light bulb. * * * Q. What were your duties at Woodworth when you arrived there in ‘94? A. I did the whole first floor hall, I did every entrance in and out of the building, large gym, two gang bathroom [sic], three classrooms, boys lockeroom [sic] and some other duties I can’t remember. H: ' * ‡. Q. At Woodworth, would your duties change in the summer months? A. Yes, it would. Q. What would you do during the summer? A. 'Stripping, wax floors, moving the furniture, cleaning them, change the light bulbs, dusting, major cleaning. Q. Basically the same thing, you would do at McDonald? A. Yes. Q. And since you got at — went to Woodworth, is there any change in your duties as of today? A. I have a different area. Q-. Okay. What would be different about your area, just a different portion of building? A. Correct. Q. The same functions. A. Same functions. In 1995, plaintiff became pregnant with her second child. Because of her pregnancy, on March 22, 1995, plaintiffs personal physician restricted her, employment activities to no lifting of more than fifteen to twenty pounds, no ladder climbing, and no use of an industrial buffer. Shortly after plaintiff presented defendant with her written work restrictions, defendant’s supervisor of human resources wrote a letter to plaintiff that stated: Dear Ms. Cuimingham: As I told you on Monday, March 27, 1995, you cannot currently perform your Custodial C duties due to the restrictions your doctor has placed you under because of your pregnancy. Since you have exhausted all your sick, personal business, and vacation banks, you must apply for leave under the Family and Medical Leave Act. Please complete the appropriate forms as soon as possible and return them to the Department of Human Resources. Thereafter, defendant placed plaintiff on extended health leave that was later converted to family medical leave. After the birth of her child, plaintiff returned to work as a Custodian C on November 30, 1995. It is undisputed that defendant had a collective bargaining agreement with the Dearborn Federation of School Employees, of which plaintiff, as a full-time custodian, was a member. Pursuant to an agreement between defendant and the union, defendant had a “favored work” program. Under the agreement, and by policy of defendant, “an employee who was either eligible for or is receiving Worker’s Compensation benefits is eligible for inclusion in the Favored Work Program,” under which that employee will be permitted to work within the parameters of the medical restrictions placed on the employee. It is uncoñtested that because plaintiff was not eligible for worker’s compensation for her pregnancy, she was not offered favored work. Plaintiff subsequently filed a complaint in the circuit court, alleging that defendant’s decision to suspend plaintiff’s employment as a Custodian C because of her medical restrictions constituted sex discrimination in violation of Michigan’s Civil Rights Act, MCL 37.2101 et seq. In her claim based on “disparate treatment,” plaintiff maintained she was treated differently than alleged similarly situated individuals because defendant permits favored work for job-related disabilities when an employee is eligible for or is receiving worker’s compensation benefits, while defendant does not afford favored work for non-job-related disabilities such as pregnancy. Following discovery, defendant moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that plaintiff was unable to establish a prima facie case of sex discrimination based on her pregnancy because she could present no evidence that she was treated differently than any other employees with non-work-related conditions. Specifically, defendant contended that its decision not to allow plaintiff to continue working in a favored work capacity was based on defendant’s district-wide policy, contained in the collective bargaining agreement with plaintiff’s union and uniformly applied to men and women, that an employee is not given favored work unless that employee is eligible for worker’s compensation by virtue of a work-related injury, which plaintiff conced-edly did not have. The trial court ultimately agreed with defendant’s arguments and granted summary disposition in its favor. Plaintiff now appeals. n In her brief on appeal, plaintiff concedes “there are no Michigan cases on point” but relies on conflicting federal authorities to argue that illegal sex discrimination based on pregnancy occurs if a defendant/ employer does not treat pregnancy as a job-related disability eligible for favored work. However, we agree with the circuit court and hold that defendant’s differing treatment for job-related disabilities and non-job-related disabilities including pregnancy does not violate the Michigan Civil Rights Act. Because plaintiff’s cause of action is not based on title VII of the Civil Rights Act of 1964, 42 USC 2000e et seq. as amended in 1978 by the Pregnancy Discrimination Act (pda), we express no opinion regarding the dissimilar federal statute and its conflicting interpretations. The Michigan Civil Rights Act provides: An employer shall not do any of the following: Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of . . . sex .... [MCL 37.2202(1)(a).] In response to the United States Supreme Court’s decision in General Electric Co v Gilbert, 429 US 125; 97 S Ct 401; 50 L Ed 2d 343 (1976), the Michigan Legislature amended the Civil Rights Act and the United States Congress amended title VII of the Civil Rights Act of 1964. Both the Michigan Legislature and the Congress reacted to remedy the Supreme Court’s decision, which held that title VII of the Civil Rights Act did not prohibit discrimination based on pregnancy. See, generally, Koester v City of Novi, 458 Mich 1, 10-12; 580 NW2d 835 (1998). However, the substance of the state and federal amendments were different. Michigan’s amendment was a straightforward redefinition of the term “sex discrimination,” which was clarified to include pregnancy and pregnancy-related conditions: “Sex” includes, but is not limited to, pregnancy, childbirth, or a medical condition related to pregnancy or childbirth that does not include nontherapeutic abortion not intended to save the life of the mother. [MCL 37.2201(d) (1978 PA 153, effective May 22, 1978).] By contrast, the 1978 congressional amendment of title VII of the Civil Rights Act was more than a clarification. Unlike the 1978 amendment of the Michigan Civil Rights Act, the federal améndment, the pda, not only stated that sex discrimination included discrimination based on pregnancy and pregnancy-related conditions but further provided “women affected by pregnancy, . . . shall be treated the same for all employment-related purposes, ... as other persons not so affected but similar in their ability or inability to work.” 42 USC 2000e(k) (emphasis added). The United States Sixth Circuit Court of Appeals in Ensley-Gaines v Runyon, 100 F3d 1220, 1226 (CA 6, 1996), on which plaintiff herein relies, held that the pda not only overturned the Supreme Court’s decision in Gilbert, supra, by outlawing discrimination based on pregnancy but also “provided additional protection to those women affected by pregnancy. ” According to the Ensley-Gaines court, the additional protection afforded by the pda is the second clause of the pda, which “mandates that pregnant employees ‘shall be treated the same for all employment-related purposes’ as nonpregnant employees similarly situated with respect to their ability to work.” Id. (Emphasis in original.) On the basis of this language contained in the pda, the Ensley-Gaines court held that pregnant employees may not be treated differently on the basis of whether their disability is work-related or non-work-related: [T]he pda explicitly alters the analysis to be applied in pregnancy discrimination cases. While Title VII generally requires that a plaintiff demonstrate that the employee who received more favorable treatment be similarly situated “in all respects,” Mitchell [v Toledo Hosp], 964 F2d [577 (CA 6, 1992)] at 583, the pda requires only that the employee be similar in his or her “ability or inability to work.” 42 USC 2000e(k). Accordingly, when a Title VII litigant alleges discrimination on the basis of pregnancy in violation of the pda, in order to establish a prima facie case of discrimination, she must demonstrate only that another employee who is similarly situated in her or his ability or inability to work received more favorable benefits. In addition, of course, she still must meet her burden of demonstrating that she is a member of the class to be protected by the pda, that she was denied benefits, and that she was qualified to receive those benefits. See McDonnell Douglas [Corp v Green], 411 US [792] at 802, 93 S Ct [1817] at 1824 [36 L Ed 2d 668 (1973)]. Likewise, this ruling does not alter the plaintiff’s burden in rebutting any legitimate, nondiscriminatory reasons which may be offered by the defendant for its employment actions. Therefore, raider the pda, an individual employee alleging discrimination based upon pregnancy need not meet “the same supervisor test” as enunciated in Mitchell, but need only demonstrate that another employee who was similar in her or his ability or inability to work received the employment benefits denied to her. [Ensley-Gaines, supra at 1226.] The Sixth Circuit Court of Appeals opinion in Ens-ley-Gaines, supra, was followed recently by the federal district court for the eastern district of Michigan in Sumner v Wayne Co, 94 F Supp 2d 822, 826 (2000). In applying the second clause protections of the pda, Judge Cohn held: Contrary to defendants’ arguments, the distinction that Seely’s [another employee] temporary disability was as a result of an injury sustained on the job, while Sumner’s [plaintiff] was as a result of her pregnancy (presumably sustained while she was off-duty), is not material. The proper focus under the comparison prong is whether the employees are similar in their ability or inability to work, regardless of the source of the injury or illness. Accordingly, relying on the precise language of the second clause of the pda, the Sixth Circuit Court of Appeals and the federal district court for the eastern district of Michigan have held that in regard to pregnant employees, employers may not make a distinction between work-related disabilities and non-work-related disabilities. However, in Urbano v Continental Airlines, Inc, 138 F3d 204, 206 (CA 5, 1998), the Fifth Circuit Court of Appeals rejected the holding of Ensley-Gaines, supra, when it held that it was not a violation of the PDA for the employer to deny light duty assignments to pregnant employees even though employees who were injured on the job were provided with such an opportunity. The Urbano court held that the pda merely reestablished the principles of title VII law as they had been understood before the Gilbert decision and included pregnancy and pregnancy-related conditions within the definition of sex discrimination without affording pregnant workers any greater rights. Id. at 207. In a footnote, the Urbano court opined that if the PDA were construed in the manner advanced by Ensley-Gaines, the act would discriminate against male employees and therefore violate the intent of title VII, which is to prohibit any discrimination based on sex. Id. at 208, n 2. Likewise, in Spivey v Beverly Enterprises, Inc, 196 F3d 1309 (CA 11, 1999), the Eleventh Circuit Court of Appeals, favorably acknowledging Urbano, supra, held that the defendant employer did not violate the pda by offering modified duty solely to employees injured on the job, and not to employees with nonoccupational injuries, including pregnant employees such as the plaintiff. The Spivey court explained, supra at 1313: The correct comparison is between Appellant and other employees who suffer non-occupational disabilities, not between Appellant and employees who are injured on the job. Under the pda, the employer must ignore an employee’s pregnancy and treat her “as well as it would have if she were not pregnant.” Piraino v International Orientation Resources, Inc, 84 F3d 270, 274 (7th Cir 1996). Ignoring Appellant’s pregnancy would still have left Appellee with an employee who suffered from a non-occupational injury. Appellee, as per its policy, was therefore entitled to deny Appellant a modified duty assignment as long as it denied modified duty assignments to all employees who were not injured on the job. * * * We therefore hold that an employer does not violate the pda when it offers modified duty solely to employees who are injured on the job and not to employees who suffer from a non-occupational injury. Of course, pregnant employees must be treated the same as every other employee with a non-occupational injury. Cf. Spaziano v Lucky Stores, Inc, 69 Cal App 4th 106; 81 Cal Rptr 2d 378 (1999). In the present case, plaintiffs claim of unlawful sex discrimination is based solely on the Michigan Civil Rights Act, not title VII. Most importantly, our Civil Rights Act does not contain the critical language of the pda that was found dispositive in Ensley-Gaines, supra, and Sumner, supra. Michigan’s 1978 amendment is narrower in scope than the federal pda. Thus, as previously noted, the above conflicting interpretations of the dissimilar federal statute are inapposite and not dispositive of the case at hand. Recently in Chambers v Trettco, Inc, 463 Mich 297; 614 NW2d 910 (2000), our Supreme Court emphasized that our Civil Rights Act does not always follow its parallel federal counterpart. In this regard, the Michigan Supreme Court stated: We are many times guided in our interpretation of the Michigan Civil Rights Act by federal court interpretations of its counterpart federal statute. See, e.g., Sumner v Good year Tire & Rubber Co, 427 Mich 505, 525; 398 NW2d 368 (1986). However, we have generally been careful to make it clear that we are not compelled to follow those federal interpretations. See, e.g., Radtke [v Everett, 442 Mich 368, 382; 501 NW2d 155 (1993)]. Instead, our primary obligation when interpreting Michigan law is always “to ascertain and give effect to the intent of the Legislature, ... ‘as gathered from the act itself.’ ” McJunkin v Cellasto Plastic Corp, 461 Mich 590, 598; 608 NW2d 57 (2000). Although there will often be good reasons to look for guidance in federal interpretations of similar laws, particularly where the Legislature has acted to conform Michigan law with the decisions of the federal judiciary, see, e.g., Koester v City of Novi, 458 Mich 1, 15-16; 580 NW2d 835 (1998), we cannot defer to federal interpretations if doing so would nullify a portion of the Legislature’s enactment. [Id. at 313.] Because the language of our Civil Rights Act differs from its federal counterpart, we rely on other state jurisdictions for guidance. In this regard, we note that in Lavalley v E B & A C Whiting Co, 166 Vt 205; 692 A2d 367 (1997), the Vermont Supreme Court addressed the prese