Retaliation Cases

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

RADTKE v EVERETT Docket No. 121611. Submitted November 7, 1990, at Grand Rapids. Decided May 20, 1991, at 9:15 a.m. Leave to appeal sought. Tamara J. Radtke brought an action in the Grand Traverse Circuit Court against Stuart B. Everett and Clarke-Everett Dog and Cat Hospital, P.C., claiming, on the basis of a single incident, sexual harassment in the workplace, constructive discharge from her employment, and assault and battery. The court, William R. Brown, J., granted the defendants summary disposition with respect to the sexual harassment and constructive discharge claims on the basis that a single act would not support a finding of sexual harassment within the meaning of the Civil Rights Act, and with respect to the assault and battery claim on the basis that it was precluded by the exclusive remedy provision of the Workers’ Disability Compensation Act. The plaintiff appealed. The Court of Appeals held: 1. Because a standard which views sexual harassment of a female from the perspective of a gender-neutral "reasonable person” has a tendency to have a male bias, claims by women of sex discrimination in the workplace as a result of sexual harassment should be viewed from the perspective of a "reasonable woman.” Under the reasonable woman standard, an actionable claim within the meaning of the Civil Rights Act for sex discrimination caused by sexual harassment in the workplace is stated where a woman alleges conduct of a sexual nature which a reasonable woman would consider to be sufficiently severe or pervasive to alter her conditions of employment by substantially interfering with her employment or to create an intimidating, hostile, or offensive employment environment. Under certain circumstances, the offensive nature may be so severe that a single incident will be sufficient to support a finding of sexual harassment. Because a jury might find that the claimed incident constituted sexual harassment, it was error for the trial court to grant summary disposition of the sexual harassment and constructive discharge claims. References Am Jur 2d, Job Discrimination § 804. See the Index to Annotations under Reasonableness; Sex Discrimination. 2. The exclusive remedy provision of the Workers’ Disability Compensation Act does not bar the plaintiffs assault and battery claim, because it was brought against Dr. Everett individually, rather than against the employer, Clarke-Everett Dog and Cat Hospital, P.C. Reversed and remanded. 1. Civil Rights — Sex Discrimination — Sexual Harassment — Reasonable Woman Standard — Civil Rights Act. In an action for sex discrimination by a woman pursuant to the Civil Rights Act because of sexual harassment, the offensiveness of the claimed conduct should be viewed from the perspective of a "reasonable woman” rather than from that of a "reasonable person,” i.e., the severity or pervasiveness of the claimed conduct should be viewed from the perspective of the actual victim rather than a hypothetical gender-neutral person (MCL 37.2103[h]; MSA 3.548[103][h]). 2. Civil Rights — Sex Discrimination — Sexual Harassment — Hostile Environmental Workplace — Single Incidents — Civil Rights Act. A woman states an actionable claim under the Civil Rights Act of sex discrimination caused by hostile-environment sexual harassment 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; the required showing of the severity of the harassing conduct will vary inversely with the pervasiveness of the conduct; under some circumstances, a single incident may be sufficient to establish a claim of sex discrimination caused by hostile-environment sexual harassment (MCL 37.2103[h]; MSA 3.548[103] M>. Menmuir, Zimmerman, Kuhn & Bearup (by Mark D. Williams), for the plaintiff. Cunningham, Davison, Beeby, Rogers & Alward (by William M. Davison), for the defendants. Before: Neff, P.J., and Maher and Hood, JJ. Hood, J. Plaintiff appeals as of right from a circuit court order granting summary disposition in favor of defendants. Plaintiff’s complaint alleged sexual harassment in violation of the Michigan Civil Rights Act (count i), constructive discharge (count ii), and assault and battery (count hi). Counts i and ii were dismissed by the trial court pursuant to MCR 2.116(C)(10), and count m was dismissed pursuant to MCR 2.116(C)(8). We reverse. Plaintiff began working for defendant Clarke-Everett Dog and Cat Hospital, P.C., as an unregistered veterinary technician in January 1984. Her employment required her to work occasional weekends and holidays with one of the two veterinarians. Because of her personal schedule, plaintiff often worked those days with defendant Everett. That was the case on May 29,1988. That Sunday proved to be busy at the hospital; however, plaintiff and Everett managed to take a break late in the day. While plaintiff was relaxing on the couch in the employee lounge, Everett sat down next to her and placed his arm around her neck. When plaintiff tried to get up, Everett restrained her. After three attempts, plaintiff finally freed herself and sat forward on the couch. Everett proceeded to flatter plaintiff as he moved closer to her. Everett began caressing plaintiff’s back and arms, even after she had indicated her displeasure and unease with his advances. According to plaintiff, Everett continued to caress her back, while moving his hand toward her breasts. He then placed his hand behind her neck and brought his face toward plaintiff’s face in an attempt to kiss her. Plaintiff was able to push Everett’s face away, went across the room, and accused him of wanting to play a "nasty game.” Rattled by the incident, plaintiff requested that they go outside. She did so because they would then be in public. Although plaintiff stayed to finish her shift, she felt compelled to terminate her employment the next day, particularly because she was scheduled to work again with Everett. Plaintiff alleged that when she notified Dr. Clarke of Everett’s conduct, he took no remedial measures and told her that women like her had to watch themselves around men because of their cute, bubbly personalities. In addition to ending her employment, plaintiff immediately sought counseling for the adverse effect the incident had on her psychological well-being. In December 1988, plaintiff instituted this action, alleging that she was the victim of unlawful sexual harassment and assault and battery and that, because of the hostile work environment created by Everett’s sexual advances, her termination of employment constituted a constructive discharge. Defendants moved for summary disposition, claiming that a single incident is not sufiicient to state a cause of action for sexual harassment resulting from a hostile work environment. Accordingly, defendants argued for dismissal of count ii, because the constructive discharge claim was predicated on a deficient sexual harassment claim. Lastly, defendants moved for dismissal of count hi, alleging that the Workers’ Disability Compensation Act (wdca) barred plaintiff’s assault and battery claim. In granting defendants’ motion, the trial court determined that even accepting as true all of plaintiff’s allegations, her claim of sexual harassment and constructive discharge must fail. Relying on Langlois v McDonald’s Restaurants of Michigan, Inc, 149 Mich App 309; 385 NW2d 778 (1986), the trial court determined that a single act does not state a claim of hostile-environment sexual harassment. In addition, the court agreed with defendants that the wdca barred plaintiff’s assault and battery claim. i Plaintiff alleged that defendants violated §202 of the Michigan Civil Rights Act by discriminating against her on the basis of sex. The state Civil Rights Act defines this type of discrimination in § 103(h), MCL 37.2103(h); MSA 3.548(103)(h), which provides: Discrimination because of sex includes sexual harassment which means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature when: (i) Submission to such conduct or communication is made a term or condition either explicitly or implicitly to obtain employment.... (ii) Submission to or rejection of such conduct or communication by an individual is used as a factor in decisions affecting such individual’s employment .... (iii) Such conduct or communication has the purpose or effect of substantially interfering with an individual’s employment ... or creating an intimidating, hostile, or offensive employment . . . environment. In her complaint, plaintiff alleges that Everett’s conduct substantially interfered with her employment and created a hostile work environment; therefore, we focus our analysis on the sufficiency of her claim under § 103(h)(iii). Michigan courts have frequently reviewed sexual harassment claims under the state Civil Rights Act with reference to the persuasive federal precedent developed under the analogous federal legislation, title VII of the Civil Rights Act of 1964. When examining claims of hostile-environment sexual harassment, the court may properly look to the guidelines promulgated by the Equal Employment Opportunity Commission. Meritor Savings Bank, FBS v Vinson, 477 US 57; 106 S Ct 2399; 91 L Ed 2d 49 (1986). The eeoc guidelines describe hostile-environment harassment as "conduct [which] has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.” 29 CFR 1604.11(a)(3). We note that the language of this guideline is nearly identical to that of § 103(h)(iii) of the state Civil Rights Act quoted above. Title VII affords employees the right to work in an environment that is free from discriminatory intimidation, insult, and ridicule. Meritor Savings Bank, 477 US 65. However, not all harassment affects a "term, condition, or privilege” of employment within the meaning of title VII. In order to maintain a claim under title VII, the sexual harassment must be sufficiently severe or pervasive to alter the conditions of the victim’s employment. Id. at 67. See also Henson v City of Dundee, 682 F2d 897, 904 (CA 11, 1982). In Langlois, supra, this Court determined that the single incident experienced by the plaintiff was not sufficiently severe and pervasive to constitute the substantial interference required under the state Civil Rights Act. Defendants urge us to follow Langlois and the cases cited therein, and conclude that a single incident is not sufficient to state a claim of hostile-environment harassment under the state Civil Rights Act. In addition, defendants ask us to apply the "reasonable person” standard announced in Rabidue v Osceola Refining Co, 805 F2d 611 (CA 6, 1986), from which the totality of the circumstances should be viewed. We do not agree with the standards or principles announced in Rabidue and Langlois, and we choose not to follow them. In Rabidue, the Sixth Circuit Court of Appeals declined to find that a hostile environment was created where there was a display of posters of naked and partially dressed women and where male employees customarily referred to women by derogatory sexual names, referred to the plaintiff as "fat ass,” and specifically stated that "all that bitch needs is a good lay.” Over a strong dissent, the majority concluded that the remarks and posters did not seriously affect plaintiff’s psychological well-being. The court stated that the trier of facts was required to "adopt the perspective of a reasonable person’s reaction to a similar environment under essentially like or similar circumstances.” 805 F2d 620. A plaintiff could prevail only if a hypothetical reasonable person’s work performance was interfered with and the conduct seriously affected the psychological well-being of the reasonable employee. Id. Among the circumstances to be considered by the factfinder is "the lexicon of obscenity that pervaded the environment of the workplace both before and after the plaintiff’s introduction into its environs.” Id. However, we believe that in a sexual harassment case involving a woman, the proper perspective to view the offensive conduct from is that of the "reasonable woman,” not that of the "reasonable person.” Thus, the severity or pervasiveness of the conduct should be viewed from the perspective of the victim, not that of a hypothetical employee irrespective of gender. Ellison v Brady, 924 F2d 872, 878-879 (CA 9, 1991); King v Bd of Regents of University of Wisconsin System, 898 F2d 533, 537 (CA 7, 1990). We believe that a standard which views harassing conduct from the "reasonable person” perspective has the tendency to be male-biased and runs the risk of reinforcing the prevailing level of discrimination which the state Civil Rights Act and title VII were designed to eliminate. In such a case, harassers could continue to discriminate merely because such harassment was the norm at the workplace. See Ellison, supra at 878; Abrams, Gender discrimination and the transformation of workplace norms, 42 Vand L Rev 1183 (1989). We believe that the adoption of the reasonable person standard, coupled with the consideration of the level of "obscenity” that pervaded the workplace before and after plaintiff’s arrival, strips the provisions of the state Civil Rights Act of their effect. In essence, the principles in Rabidue prevent the state Civil Rights Act from achieving its purpose of eliminating sexual harassment from the workplace and ensuring employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult. Accordingly, we adopt the "reasonable woman” perspective. This standard, which ensures a gender-conscious review of sexual harassment, will help enable women to participate in the work force on an equal footing with men, and prevent the trivializing of the effects of sexual harassment that has previously occurred under the gender-neutral "reasonable person” standard. Ellison, supra at 879, 880. By adopting a gender-conscious standard that views the harassment from the victim’s perspective, it is important to analyze and understand the different perspectives of men and women. See, e.g., Yates v Arco Corp, 819 F2d 630, 637, n 2 (CA 6, 1987); Lipsett v Univ of Puerto Rico, 864 F2d 881, 898 (CA 1, 1988); Abrams, Gender discrimination and the transformation of workplace norms, 42 Vand L Rev 1183 (1989). For example, because of their historical vulnerability in the work force, women are more likely to regard a verbal or physical sexual encounter as a coercive and degrading reminder that the woman involved is viewed more as an object of sexual desire than as a credible coworker deserving of respect. Such treatment can prevent women from feeling, and others from perceiving them, as equal in the workplace. We hold, therefore, that 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. Under this standard, the required showing of the severity of the harassing conduct will vary inversely with the pervasiveness of the conduct under the totality of the circumstances. Ellison, supra at 878; King, supra at 537. Accordingly, we hold that a single incident could be sufficiently severe under some circumstances to support a finding that a reasonable woman’s employment was substantially interfered with or that an intimidating, hostile, or offensive employment environment had been created. We believe that in some situations the mere presence of the harasser who has engaged in particularly offensive conduct can create a hostile work environment. We therefore reject the conclusions in Langlois that a single incident is insufficient, as a matter of law, to state a claim for hostile-environment sexual harassment. We must now turn to the specific case at hand and determine whether plaintiff’s complaint was properly dismissed. We are presented with a situation in which plaintiff, a married woman, often worked alone with defendant Everett, who is also married, in a small veterinarian hospital in a relatively small community. The acts complained of included repeated physical contact and restraint, verbal remarks of a sexual nature, and an admitted attempt for a romantic kiss. Further, when she informed Dr. Clarke of the incident, no remedial measures were taken, and plaintiff was "warned” that women like her had to be careful around men because of their cute, bubbly personalities. Under the totality of the circumstances, we cannot say as a matter of law that plaintiff’s reaction was idiosyncratic or hypersensitive, particularly where she was scheduled to work with Everett the very next day. Consequently, we reverse the trial court’s grant of summary disposition to defendants on count i of plaintiff’s complaint. Accordingly, count n of plaintiff’s complaint, which alleged constructive discharge arising from the creation of a hostile work environment and from Dr. Clarke’s comment and failure to take remedial measures, was likewise improperly granted and is reversed. See Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785, 796; 369 NW2d 223 (1985). ii Plaintiff’s complaint also alleged assault and battery. The trial court dismissed this claim, finding that it was barred by the Workers’ Disability Compensation Act. On appeal, plaintiff argues that the dismissal was improper where the court did not provide her an opportunity to amend her complaint as provided in MCR 2.116(I)(5) to allege that defendant intended her injuries. We find that summary disposition was improperly granted as a result of the trial court’s erroneous application of the exclusive remedy provision of the wdca, MCL 418.131; MSA 17.237(131). The wdca applies to bar claims brought by employees against their employers for injuries sustained in the course of work, unless such claims fall within the intentional tort exception to the exclusive remedy provision of the act. However, we have reviewed plaintiff’s complaint and note that the claim of assault and battery was brought against defendant Everett individually, and not against plaintiff’s employer, defendant Clarke-Everett Dog and Cat Hospital. Plaintiff is not suing her employer for the assault and battery, but rather the perpetrator, defendant Everett. The wdca therefore is inapplicable to this claim and does not operate to bar plaintiffs recovery. Accordingly, we reverse the grant of summary disposition of this claim. Reversed and remanded for proceedings consistent with this opinion. MCL 37.2101 et seq.; MSA 38.548(101) et seq. Plaintiffs fourth count, which alleged a violation of the Employee Right to Know Act, MCL 423.501 et seq.; MSA 17.16(1) et seq., was dismissed with prejudice by stipulation of the parties and is not a subject of this appeal. Defendant Everett admitted that he did attempt to kiss plaintiff. In Langlois, the plaintiff based her claim of hostile-work-environment sexual harassment on a single incident that occurred while she worked at one of the defendant’s fast-food restaurants. The plaintiff was instructed by "first assistant” Ivan Forney to take a break, and he whispered to her, "Hi, baby, let’s have some fun.” Once on break, Forney again asked her if she wanted to "have some fun,” and moved his hips back and forth in a crude manner. He then placed his hand on her breast and grabbed her buttocks. The plaintiff then left the crewroo

BRANCH v AZALEA/EPPS HOME, LTD Docket No. 124903. Submitted December 18, 1990, at Detroit. Decided May 7, 1991, at 9:30 a.m. Barbara Branch brought an action in the Wayne Circuit Court against Azalea/Epps Home, Ltd., and John Lewis, alleging wrongful discharge from employment. The court, Kaye Tertzag, J., denied a motion for summary disposition by the defendants, who contended that the action was barred by the exclusive remedy provision of the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq., because its ninety-day limitation period had expired. The defendants appealed. The Court of Appeals held: The trial court erred in denying the defendants’ motion for summary disposition. The Whistleblowers’ Protection Act is the plaintiff’s exclusive remedy and is applicable to this case. The period of limitation having expired, the defendants were entitled to summary disposition. 1. The Whistleblowers’ Protection Act provides that an employer must not discharge an employee because the employee reports a suspected violation of law to a public body or is asked by a public body to participate in an investigation. The plaintiff’s principal claim was that she was discharged in retaliation for reporting to a Wayne County Department of Social Services social worker the circumstances of the death of a resident in the defendants’ residential foster-care facility where she worked. 2. The social worker in this case was a public body as defined by § 1(d) of the act. Reversed. 1. Master and Servant — Whistleblowers’ Protection Act — Exclusive Remedy. The Whistleblowers’ Protection Act provides the exclusive remedy for a discharged employee who claims that the discharge was in retaliation for the employee’s report of a suspected violation of law to a public body or participation in an investigation by a public body (MCL 15.361 et seq.; MSA 17.428[1] et seq.). References Am Jur 2d, Master and Servant § 48.7; Plant and Job Safety §§ 59-61. Liability for retaliation against at-will employee for public complaints or efforts relating to health or safety. 75 ALR4th 13. 2. Master and Servant — Whistleblowers’ Protection Act — Public Bodies — Social Workers. A social worker may constitute a public body for purposes of the Whistleblowers’ Protection Act (MCL 15.361[d]; MSA 17.428[1] HD. Charlie C. Taylor, for the plaintiff. Ulanoff, Ross & Wesley, P.C. (by Janice G. Hildenbrand), for the defendants. Before: Gribbs, P.J., and Mackenzie and Jansen, JJ. Per Curiam. Defendants appeal by leave granted a December 20, 1989, circuit court order denying their motion for summary disposition of plaintiff Barbara Branch’s action for wrongful termination of a just-cause employment contract and retaliatory discharge. Defendants’ motion for summary disposition was premised on their allegation that plaintiff’s claim was barred by the exclusive remedy provision of the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq., whose ninety-day limitation period had lapsed. In denying defendants’ motion, the trial court held that plaintiffs cause of action did not fall within the ambit of the act. We reverse. The present lawsuit consists of two separate causes of action: one based on the death of a resident at defendants’ adult residential foster-care facility and the other based on the firing of plaintiff, a housekeeper/aide at the facility. On April 11, 1989, decedent Delores Johnson informed plaintiff that she was short of breath and that repeated requests for medical attention had been denied by defendants. In plaintiffs presence, Johnson made additional requests for medical assistance which were refused. On April 12, 1989, Johnson died of a heart attack. On April 22, 1989, plaintiffs employment was terminated. Plaintiff alleges that defendants wrongfully terminated her employment because she related the circumstances surrounding Johnson’s death to defendant John Lewis and a social worker investigating Johnson’s death. On appeal, plaintiff claims that the Whistleblowers’ Protection Act is inapplicable to the present action because a social worker is not a public body under the act. We disagree. The Whistleblowers’ Protection Act is plaintiff’s exclusive remedy. Covell v Spengler, 141 Mich App 76, 82-84; 366 NW2d 76 (1985). MCL 15.362; MSA 17.428(2) provides: An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action. The act defines public body to include: (i) A state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of state government. (ii) An agency, board, commission, council, member, or employee of the legislative branch of state government. (iv) Any other body which is created by state or local authority or which is primarily funded by or through state or local authority, or any member or employee of that body. [MCL 15.361(d); MSA 17.428(l)(d).] Thus, under the Whistleblowers’ Protection Act a report to a social worker employed by the Wayne County Department of Social Services is a report to a public body. We are unpersuaded by plaintiffs argument that the definition of employee in subsection a of § 1 of the act, which excludes civil service employees, excludes a social worker from the definition of "a public body.” The definition in subsection a refers to the person reporting the violation or suspected violation of that person’s employer, not the public body receiving the report. Therefore, we hold that the social worker in the present case constituted a public body within the ambit of the Whistleblowers’ Protection Act. Reversed.

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

WILLIAM HOWARD SHAFFNER, JR., Plaintiff v. WESTINGHOUSE ELECTRIC CORPORATION, Defendant No. 9021SC138 (Filed 18 December 1990) Master and Servant § 10.2 (NCI3d)— workers’ compensation— termination for misrepresenting extent of disability — no violation of statute The evidence supported the jury’s verdict finding that plaintiff was not terminated from his employment in violation of N.C.G.S. § 97-6.1(a) because he instituted a claim under the Workers’ Compensation Act where it showed that the employer did not question the fact of plaintiff’s disability but terminated plaintiff for misrepresentations about the extent of his disability. Am Jur 2d, Workmen’s Compensation § 55. Recovery for discharge from employment in retaliation for filing workers’ compensation claim. 32 ALR4th 1221. APPEAL by plaintiff from judgment entered 21 July 1989 in FORSYTH County Superior Court by Judge W. Steven Allen. Heard in the Court of Appeals 30 August 1990. Herman L. Stephens for plaintiff-appellant. Womble, Carlyle, Sandridge & Rice, by Charles F. Vance, Jr., C. Daniel Barrett and Clayton M. Custer, for defendant-appellee. DUNCAN, Judge. William Shaffner, Jr. (“plaintiff”) was employed by Westinghouse Electric Corporation (“defendant”) for over fourteen years. At the time of his final injury he was working as a senior electrician. During the course of his employment plaintiff sustained a number of injuries; he received workers’ compensation benefits for all those injuries for which claims were made. On 15 April 1987, plaintiff’s supervisor directed him to return an electric motor to a storage crib. The particular building in which the crib was housed did not have a storage attendant to receive merchandise, so plaintiff had to lift the motor himself — something he did not normally do. Immediately after lifting the motor, the muscles in his lower back began to tighten up, and his condition worsened throughout the day. The next morning plaintiff experienced low back pain in addition to the tightened muscles. His condition worsened after he returned to work, and by Monday of the following week he went to see Dr. Middleton, the plant doctor. Dr. Middleton prescribed medication and recommended a week’s bed rest; plaintiff nevertheless continued to work that week and the following one. When he was seen again, it was recommended that he visit a specialist, and he was eventually seen by Dr. Holthusen, an orthopaedic surgeon who had operated on him previously. Despite recurring pain, plaintiff continued to work until 26 May 1987, when Dr. Holthusen placed him on bed rest. On 30 May 1987, plaintiff took his children to the annual company picnic at the Carowinds Amusement Park, and accompanied his sons on several rides. On 2 June 1987, plaintiff returned to Dr. Holthusen, who continued to state that plaintiff should not work. Dr. Holthusen was not aware that plaintiff had gone to Carowinds and ridden on the rides. On 29 June 1987, plaintiff returned to see Dr. Holthusen, and was released to return to work. When plaintiff reported to work he was placed on suspension without pay pending an investigation into the circumstances surrounding his disability. Plaintiff was subsequently terminated effective 29 June 1987. He was given the following reason: After reviewing all the events, circumstances and facts surrounding your disability condition we have no alternative except to convert your indefinite suspension into discharge for violation of the Plant Rules of Conduct . . . Misrepresentation and/or falsification of records or attendance reports. An internal company appeals board upheld the termination, and plaintiff then brought this action seeking damages for wrongful discharge and reinstatement to his prior position. The jury found that plaintiff had not been terminated because he had instituted a workers’ compensation claim, and held in favor of the defendant. The trial court denied plaintiff’s motion for judgment notwithstanding the verdict, and this appeal followed. I Plaintiff’s primary argument on appeal is that the trial court erred in denying his motions for a directed verdict and for judgment notwithstanding the verdict, because defendant’s explanation of plaintiff’s determination establishes that it discharged him for instituting a workers’ compensation claim. Since the standard for determining the appropriateness of a motion for directed verdict and a motion for judgment notwithstanding the verdict is the same, Dickinson v. Pake, 284 N.C. 576, 584-85, 201 S.E.2d 897, 903 (1974), the following discussion applies to both. In considering a plaintiff’s motion for directed verdict, the defendant’s evidence must be taken as true and must be considered in the light most favorable to defendant, giving defendant the benefit of every reasonable inference to be drawn therefrom. See, e.g., Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E.2d 678 (1977). Plaintiff argues that defendant’s own evidence establishes a violation of N.C. Gen. Stat. Section 97-6.1 which provides, in pertinent part, as follows: Protection of claimants from discharge or demotion by employers. (a) No employer may discharge or demote any employee because the employee has instituted or caused to be instituted, in good faith, any proceeding under the North Carolina Workers’ Compensation Act, or has testified or is about to testify in any such proceeding. There is no dispute here that plaintiff did, in fact, institute a claim. Plaintiff argues further that by terminating him for misrepresenting his disability, defendant was challenging the existence of his disability —a determination which is within the exclusive province of the Industrial Commission. See N.C. Gen. Stat. Section 97-84. Plaintiff argues that the only avenue open to defendant to contest his disability was through the workers’ compensation process, and that defendant’s action was in effect an impermissible collateral attack on the Commission’s jurisdiction. Although plaintiff makes a compelling argument, we are constrained to disagree for two reasons. First of all, the anti-retaliation language of Section 97-6.1(a) is limited to an employee’s instituting a charge or testifying in a proceeding. Here, neither of those specific actions precipitated defendant’s response. Plaintiff instituted his claim under the Workers’ Compensation Act on 18 April 1987. He was suspended on 29 June 1987 and terminated on 17 July 1987, retroactively effective on 29 June 1987. There is thus no close temporal connection between plaintiff’s instituting a charge and his termination. Plaintiff notes himself that prior to this most recent injury, he had suffered injuries on the job for which he received workers’ compensation benefits. Plaintiff’s broader argument is that defendant’s terminating him for misrepresentation challenged the very issue before the Industrial Commission — the existence of his disability. That argument can be responded to by making a point that even plaintiff recognizes: Defendant was not questioning his representations about the fact of his disability, but rather its extent. Dr. Holthusen also testified that upon learning of plaintiff’s trips and activities, he felt that plaintiff had not been honest with him. Under plaintiff’s interpretations of the statute, an employee could sustain a minor, but disabling injury, and misrepresent the gravity of it without fear of sanction. The jury here found that the defendant did not discharge plaintiff because he instituted a claim under the Workers’ Compensation Act. Giving the defendant, as we must, the benefit of every reasonable inference to be drawn from the facts, we cannot find that the trial court erred in denying plaintiff’s motions for summary judgment and judgment notwithstanding the verdict. II We have examined plaintiff’s other assignments of error and find them to be without merit. Accordingly, the judgment appealed from is Affirmed. Judges COZORT and ORR concur.

DELKE v SCHEUREN Docket No. 119347, 119375. Submitted May 15, 1990, at Marquette. Decided August 23, 1990. Leave to appeal applied for. Jeffrey L. Delke suffered a hernia on September 1, 1982, while lifting bales of hay for his employer, James Scheuren. Delke continued to work for Scheuren until September 26, 1982, and on November 29, 1982, filed a petition with the Bureau of Workers’ Disability Compensation claiming disability as a result of his work-related injury. On September 6, 1983, Delke amended his petition to allege that Scheuren had discharged him and refused to rehire him, in violation of the Workers’ Disability Compensation Act. Delke then withdrew his disability claim and proceeded on only the retaliatory discharge claim. Following a hearing, a referee denied Delke’s claim, finding that Scheuren did not discriminate against Delke in not rehiring him on the basis of the institution of proceedings under the workers’ compensation act. The referee also ruled that the Accident Fund of Michigan was obligated to defend Scheuren and to pay any damages and costs to which Delke may be entitled as a result of the alleged retaliatory discharge. Delke and the Accident Fund both appealed the referee’s decision to the Workers’ Compensation Appeal Board. The wcab vacated the referee’s decision regarding Delke’s claim of retaliatory discharge, holding that neither the referee nor the wcab had authority or jurisdiction to enforce the retaliatory discharge provision of the workers’ compensation act. The wcab also held that it did have jurisdiction to decide the insurance question and that the Accident Fund is obligated to defend Scheuren and to cover any damages and costs awarded in any circuit court action in connection with the alleged retaliatory discharge claim. Delke and the Accident Fund filed, by leave granted, separate appeals from the decision of the wcab. The appeals have been consolidated. The Court of Appeals held: References Am Jur 2d, Workmen’s Compensation §§ 55, 545, 546, 683. Recovery for discharge from employment in retaliation for filing worker’s compensation claim. 32 ALR4th 1221. 1. The wcab correctly determined that the Bureau of Workers’ Disability Compensation does not have jurisdiction to decide a claim of retaliatory discharge. The bureau may award benefits only if it finds that a claimant is disabled within the meaning of the workers’ compensation act, i.e., has suffered a loss of wage-earning capacity. No such loss is demonstrated in a retaliatory discharge action. Furthermore, there is no express legislative conferral of authority on the bureau or the wcab to order reinstatement and back pay, the equitable remedies customarily sought in a retaliatory discharge action. 2. The wcab erred in finding that it had the authority to decide whether the Accident Fund was required to defend and indemnify Scheuren. While the wcab may decide insurance coverage questions in cases where it has properly taken jurisdiction of the claimant’s petition for compensation, it is inappropriate for it to decide the coverage question when jurisdiction over the substantive question of liability is in a court of general jurisdiction. Affirmed in part and reversed in part. 1. Workers’ Compensation — Retaliatory Discharge Actions — Jurisdiction. The Bureau of Workers’ Disability Compensation lacks jurisdiction to decide a retaliatory discharge action; it may award benefits only if it finds that a claimant is disabled within the meaning of the workers’ compensation act, i.e., has suffered a loss of wage-earning capacity; no loss of wage-earning capacity is involved in a retaliatory discharge action, and the bureau lacks the power to award reinstatement and back pay, the equitable remedies customarily sought in a retaliatory discharge action (MCL 418.301[11]; MSA 17.237[301][11]). 2. Workers’ Compensation — Appeal Board. It is inappropriate for the Workers’ Compensation Appeal Board to decide questions of insurance coverage in an action in which jurisdiction over the substantive question of liability is in a court of general jurisdiction. Green, Renner, Weisse, Rettig, Rademacher & Clark, P.C. (by James M. Rettig), for Jeffrey L. Delke. Peterson, Beauchamp, DeGrand, Reardon & Hall, P.C. (by Ralph B. K. Peterson), for Accident Fund of Michigan. Before: Cynar, P.J., and Weaver and Griffin, JJ. Per Curiam. Both plaintiff Jeffrey L. Delke and defendant Accident Fund of Michigan appeal by leave granted from an order of the Workers’ Compensation Appeal Board, which vacated a hearing referee’s decision regarding plaintiff’s claim of retaliatory discharge, but affirmed the referee’s determination that the Accident Fund was obligated to defend the employer, defendant James Scheuren, and to pay any damages and costs to which plaintiff may be entitled as a result of the alleged retaliatory discharge. We affirm in part and reverse in part. Plaintiff suffered a hernia on September 1, 1982, while lifting bales of hay for defendant employer. His last day worked was September 26, 1982. He filed a petition for hearing on November 29, 1982, claiming disability as a result of the work-related injury. On September 6, 1983, plaintiff filed an amended petition, claiming that the employer had discharged him and refused to rehire him in violation of § 301(11) of the act, MCL 418.301(11); MSA 17.237(301X11), which provides: A person shall not discharge an employee or in any manner discriminate against an employee because the employee filed a complaint or instituted or caused to be instituted a proceeding under this act or because of the exercise by the employee on behalf of himself or herself or others of a right afforded by this act. By the time of the hearing, plaintiff apparently withdrew his disability claim and proceeded only on the retaliatory discharge claim. In a decision mailed March 29, 1984, the referee denied the claim, finding as fact "that the employer did not discriminate under § 301(11) in not rehiring petitioner based on the institution of proceedings under the Act.” In response to an inquiry from defendants, a second decision was mailed on June 20, 1984, which included the following additional language: Addendum: Defense counsel rightly argue that a second issue presented and argued at trial was not decided in the above decision: whether or not the insurance carrier had an obligation under the Act to provide a legal defense to the claim of discriminatory non-reemployment of Petitioner under section 301(11). As to this second issue I find that section 621(2) mandates that the carrier had the obligation to defend the employer. But as to the ultimate relief sought by the employer, as limited by the decision finding no discriminatory treatment of Petitioner, I have no power to award costs or damages. Both plaintiff and defendant insurance company appealed. In a decision and order dated June 30, 1989, the wcab vacated the referee’s finding under § 301(11) and denied plaintiffs petition, holding that neither the referee nor the wcab had authority or jurisdiction to enforce § 301(11). The wcab also held, however, that it did have jurisdiction to decide the insurance question and that defendant insurer is obligated to defend the employer and to cover any damages and costs awarded in any circuit court action in connection with the alleged retaliatory discharge claim. Plaintiff contends that the wcab erred in finding that MCL 418.301(11); MSA 17.237(301)(11) does not provide the Bureau of Workers’ Disability Compensation with jurisdiction to hear his discrimination claim. He argues that the amendment of § 301 to include subsection (11) manifests a legislative intent to treat retaliatory discharges as a form of personal injury compensable under the act. Plaintiff notes that prior to the amendment a discharge in retaliation for filing a workers’ compensation claim was actionable as a violation of public policy. Sventko v Kroger Co, 69 Mich App 644; 245 NW2d 151 (1976). Because § 301(11) was therefore unnecessary to create a cause of action for retaliatory discharge, plaintiff concludes that the subsection must have been added in order to create an administrative remedy in addition to any legal remedies. Moreover, plaintiff notes that § 301(11) appears to be patterned after § 65(1) of the Michigan Occupational Safety and Health Act (miosha), MCL 408.1065(1); MSA 17.50(65X1). Plaintiff notes that § 65 in addition to its nonretaliation language provides a detailed administrative scheme for handling retaliation claims culminating in court review under the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq. Plaintiff concludes that the Legislature’s failure to include such a scheme in § 301 implies that the Legislature intended retaliation claims to be treated like all other claims under the workers’ compensation act. Finally, plaintiff claims that these conclusions are reinforced by § 841(1) of the act, MCL 418.841(1); MSA 17.237(841X1), which provides: Any dispute or controversy concerning compensation or other benefits shall be submitted to the bureau and all questions arising under this act shall be determined by the bureau or a worker’s compensation magistrate, as applicable. The director may be an interested party in all worker’s compensation cases in questions of law. Because a claim of retaliatory discharge in violation of § 301(11) is a question "arising under this act,” plaintiff concludes that the instant dispute must be submitted to the bureau for determination. On the other hand, defendant argues that in every workers’ compensation claim two questions must be answered: (1) is the claimant disabled; and (2) was the disability caused by the employment. Because plaintiff was not "disabled” within the meaning of the act, there is no true workers’ compensation claim in the instant case. Like plaintiff, defendant notes that § 301(11) appears similar to § 65(1) of miosha, but draws the opposite conclusion. Because the Legislature spelled out an administrative scheme to remedy violations of the nonretaliation language of miosha, the Legislature’s failure to specify such a scheme here means that the Legislature did not intend hearing referees or the wcab to address themselves to retaliation claims. Finally, defendant argues that § 841(1) does not mandate a different result, because the instant case does not involve any "dispute or controversy concerning compensation or other benefits” under the act. We believe the wcab and defendant have the better argument. Even if a retaliatory discharge should be treated as a "personal injury,” benefits may be awarded only if a claimant is found to be "disabled” within the meaning of the act, i.e., has suffered a loss of wage-earning capacity. MCL 418.301(4); MSA 17.237(301X4). No such loss has been demonstrated here. The Legislature may have added § 301(11) simply to codify the holding in Sventko, supra, or to limit the scope of workers’ compensation retaliation actions. For example, in Wilson v Acacia Park Cemetery Ass’n, 162 Mich App 638, 645-646; 413 NW2d 79 (1987), this Court held that a plaintiff may not premise his right of recovery on a defendant’s alleged anticipation of future workers’ compensation claims, in part because of the language of §301(11). Given this plausible interpretation of the Legislature’s intent, as well as the fact that the fact-finding involved in a retaliatory discharge action would go beyond the range of the bureau’s or the wcab’s expertise, we find that plaintiff has failed to show sufficient evidence of legislative intent to create an administrative remedy for retaliatory discharge. Furthermore, the bureau and the wcab would be unable to award the equitable remedies customarily sought in a retaliatory discharge action, such as reinstatement and back pay. In the absence of an express legislative conferral of authority, an administrative agency generally lacks the powers of a court of equity. Auto-Owners Ins Co v Elchuk, 103 Mich App 542, 545-546; 303 NW2d 35 (1981). The workers’ compensation act contains no such provision, in contrast to § 65(2) of miosha which expressly provides for orders of reinstatement and back pay. While we agree with the wcab that the bureau is without jurisdiction to decide a retaliation claim, we do not agree that the bureau and the wcab had the authority to decide whether defendant Accident Fund was required to defend and indemnify defendant employer. The wcab premised its, decision on § 621(2) of the act, MCL 418.621(2); MSA 17.237(621X2), which provides for certain mandatory language in every workers’ compensation insurance policy. In particular, §621(2) requires the following to be included in every policy: Compensation, (a) That it will pay to the persons that may become entitled thereto all workmen’s compensation for which the insured employer may become liable under the provisions of the Michigan workmen’s compensation act for all compensable injuries or compensable occupational diseases happening to his employees during the life of this contract or policy; Obligations assumed, (f) That it hereby assumes all obligations imposed upon the employer by his acceptance of the Michigan workmen’s compensation act, as far as the payment of compensation, death benefits, medical surgical, hospital care or medicine and rehabilitation services is concerned. Section 621(2) also provides that the insurance policy cover "all the businesses, employees, enterprises, and activities of the employer.” Although we agree that the terms of § 621 and of the individual insurance policy in question will have to be reviewed in order to determine whether a workers’ compensation insurer is obliged to defend and indemnify an insured in a retaliation action, neither § 621 nor the individual insurance policy confers jurisdiction or authority on the bureau or the wcab to perform this review. Certainly, pursuant to §841(1), the bureau and the wcab may decide insurance coverage questions in cases where jurisdiction of the claimant’s petition for compensation has been properly taken. See, e.g., Michigan Property & Casualty Guaranty Ass’n v Checker Cab Co, 138 Mich App 180; 360 NW2d 168 (1984), and St Paul Fire & Marine Ins Co v Littky, 60 Mich App 375; 230 NW2d 440 (1975). However, we believe it is inappropriate for the wcab to decide the coverage question when jurisdiction over the substantive question of liability is in a court of general jurisdiction. Principles of judicial and administrative economy lead to the conclusion that the issues be resolved in a single forum. Affirmed in part and reversed in part.

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

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

Mary Jane Drinkwater vs. School Committee of Boston. Suffolk. December 4, 1989. February 26, 1990. Present: Liacos, C.J., Abrams, Nolan, O’Connor, & Greaney, JJ. Practice, Civil, Summary judgment. Anti-Discrimination Law, Prima facie case, Burden of proof, Employee, Race. School and School Committee, Appointment of personnel. Constitutional Law, Equal protection of laws. An affirmative action plan governing the hiring of administrative personnel by the school committee of Boston, which had been incorporated in a Federal court-ordered desegregation plan, did not violate G. L. c. 15IB by discriminating against nonmembers of minorities on the basis of their race, inasmuch as all candidates for employment were required to possess certain minimum qualifications, the hiring of nonminority applicants was not barred, and the requirement for affirmative action efforts was to continue in effect only until black employees comprised twenty-five percent of the school system’s administrative staff. [759-760] In an action by an unsuccessful nonminority candidate for a position as a staff attorney in the office of the general counsel of the Boston school committee, alleging that the school committee had violated G. L. c. 151B, § 4, by discriminating against her on the basis of her race, allowance of the school committee’s motion for summary judgment was error, where a genuine issue of material fact was presented with regard to the qualifications of the minority candidate who filled the staff attorney position under the school committee’s affirmative action plan, which provided for a racial preference when it was faced with “eligible, qualified black candidates.” [760-763] Civil action commenced in the Superior Court Department on May 20, 1986. The case was heard by John L. Murphy, Jr., J., on a motion for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Nance Lyons {Mary Jane Drinkwater with her) for the plaintiff. John S. Stadler, Special Assistant Corporation Counsel, for the defendant. Nolan, J. The plaintiff, Mary Jane Drinkwater, commenced this action in 1986 alleging that the school committee of Boston (school committee) discriminated against her on the basis of her race and then declined to hire her in retaliation for her complaints of discrimination. The Superior Court allowed the school committee’s motion for summary judgment and Drinkwater appeals from that ruling. We transferred the case to this court on our own motion. We reverse and remand the case to the Superior Court for further proceedings not inconsistent with this opinion. A party moving for summary judgment “must affirmatively show that there is no real issue of fact.” Attorney Gen. v. Bailey, 386 Mass. 367, 371, cert, denied, 459 U.S. 970 (1982), quoting Hub Assocs. v. Goode, 357 Mass. 449, 451 (1970). “The inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion.” In our view the school committee has not met its burden of showing that the material facts are undisputed. This case has its origins in the decision of the United States District Court in Morgan v. Hennigan, 379 F. Supp. 410 (D. Mass.), aff'd sub nom. Morgan v. Kerrigan, 509 F.2d 580 (1st Cir. 1974), cert, denied, 421 U.S. 963 (1975). In that case, the court determined that school committee authorities had engaged in purposeful racial discrimination. Morgan v. Hennigan, supra at 480. As part of a comprehensive remedy, the District Court ordered the desegregation of the administrative staff of the Boston public schools. The order incorporated an affirmative action plan submitted by the school committee in order to achieve compliance with the order. In June of 1984, the school committee announced that it was accepting applications for two positions in the office of its general counsel. The positions were listed as “Staff Attornev I” and “Staff Attorney II.” Drinkwater applied for both positions; she was hired for neither. Drinkwater, who is white, filed a racial discrimination complaint with the school committee’s office of equal opportunity (OEO), alleging that a minority candidate was chosen for one of the positions solely on the basis of race. Due to an unrelated problem, the school committee was forced to repost the two positions. Drinkwater reapplied for both; she received neither. Drinkwater contends that the school committee’s actions violated G. L. c. 15IB, § 4 (1988 ed.), by discriminating against her on the basis of her race and, with regard to her reapplication, in retaliating against her for filing a complaint with the OEO. In cases under c. 15IB, a complainant must show a prima facie case of discrimination, which then shifts the burden of production to the respondent to show a lawful reason for its action. See Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 137-138 (1976). In arguing that summary judgment was appropriate, the school committee contends that there is no dispute as to the lawful reason for its action: it was under the obligation, pursuant to a Federal court order, to desegregate. At the outset we reject any notion that Drinkwater is bound by a judgment of a Federal court in a case to which she was not a party. See Hansberry v. Lee, 311 U.S. 32, 40 (1940). See also Martin v. Wilks, 109 S. Ct. 2180 (1989) (white fire fighters alleging reverse discrimination not bound by consent decrees between city and black fire fighters). The real question is whether, and to what extent, an employer can rely on a court-ordered affirmative action program as a justification for a hiring decision involving race when sued under c. 15IB. A subsidiary but important question is whether the school committee properly applied the affirmative action program that it adopted. In Concerned Minority Educators of Worcester v. School Comm. of Worcester, 392 Mass. 184, 189-190 (1984), we stated that “[cjertainly a voluntary program for determining layoffs containing an affirmative action component overriding a seniority component, in whole or in part, would not violate State law . . . .” Thus, we have recognized that c. 15IB, although neutral in its terms, does not categorically prohibit the implementation of an affirmative action program. Indeed, we prefer to interpret c. 15IB in harmony with other statutes which appear to call for affirmative action programs. See G. L. c. 23A, § 44 (1988 ed.); G. L. c. 35, § 53A (1988 ed.). Having determined that c. 151B does not place a per s'e prohibition on affirmative action plans, we turn to the question whether the plan in this case is compatible with G. L. c. 151B. In determining whether particular race-conscious remedies violate the equal protection guarantee of the Fourteenth Amendment to the United States Constitution, the United States Supreme Court looks to the “necessity for the relief and the efficacy of alternative remedies; the flexibility and duration of the relief, including the availability of waiver provisions; the relationship of the numerical goals to the relevant labor market; and the impact of the relief on the rights of third parties.” United States v. Paradise, 480 U.S. 149, 171 (1987) (plurality opinion). In the instant case the affirmative action plan is incorporated in a court-ordered desegregation plan. There can be no doubt of the necessity for race-conscious relief. The school committee’s plan requires the school system to “engage in affirmative efforts to recruit and retain minority applicants for employment until . . . Blacks constitute ... 25 % of the non-academic workforces.” The court order itself also requires affirmative efforts with regard to hiring blacks until blacks constitute 25% of the school system’s administrators. It is undisputed that blacks made up only 23.76% of the school system’s administrative staff at the time Drinkwater applied for the positions of Staff Attorney I and Staff Attorney II. The court order and the plan itself both required the school committee affirmatively to recruit blacks for attorney positions. Drinkwater’s main argument appears to center on the contention that the school committee’s plan unnecessarily trammels the interests of nonminority applicants. Under this plan race is not the only factor in the hiring process, since all the candidates must meet certain minimum qualifications. The plan does not create a bar to the hiring of white employees and, in fact, a white person was hired to fill one of the two positions. Moreover, the affirmative requirement that the school committee consider minority status is not permanent. Rather, that requirement will only last until blacks make up 25% of the administrative staff of the Boston public school system. We think the plan is both limited and flexibile rather than a rigid rule which unnecessarily trammels the rights of nonminorities. Even when an employer acts pursuant to an affirmative action plan, however, that employer may violate c. 15IB. When a plan is misapplied, the employer’s action may constitute illegal “reverse” discrimination. Drinkwater argues that the school committee misapplied the plan in this case. Drinkwater argues that the plan does not, or should not, apply to the office of the school committee’s general counsel. Drinkwater claims that there is a factual dispute as to whether the school committee attorneys are actually assistant corporation counsel of the city of Boston (to whom the court order does not apply). She relies on statements that the school committee’s general counsel, Mr. Michael Betcher, made in a deposition to the effect that school committee attorneys are “technically” special assistant corporation counsel. Betcher also stated, however, that the label of “special assistant” was indicative of the fact that the corporation counsel retained some jurisdiction over the school committee attorneys in matters of litigation. Other than with regard to the understanding concerning litigation, there was no separate written agreement between the corporation counsel and the school committee’s general counsel. Moreover, the school committee submitted evidence which showed that the attorneys in the general counsel’s office were hired and employed by the school committee. The attorney positions within the general counsel’s office were, organizationally, within the school department. Positions in the general counsel’s office were included in the annual reports on desegregation which the school committee submitted to the Federal court. These undisputed facts are enough to bring the staff attorneys within the ambit of the “nonacademic” workforce of the Boston public school department, to which both the plan and the court order apply. The fact that the staff attorneys may also be special assistant corporation counsel or that the corporation counsel may have some say in the hiring decisions is irrelevant. Drinkwater contends that the goal of having 25 % minorities should not apply because blacks do not make up 25 % of the relevant labor market (attorneys). The goal of having 25 % minority administrators applies, however, to all the administrative positions in the Boston public schools as a whole. As long as the total percentage of black administrators is less than 25%, the school committee must, in all its hiring efforts, affirmatively act to hire members of minorities. Although both the court order and the plan require that minorities be spread out in all the administrative departments, neither requires that each department actually have 25 % minority personnel. We see nothing wrong with a plan that looks to the administrative positions in the school system as a whole rather than pigeonholing each type of position in the system. Thus, the plan itself is valid. Even though the plan was properly applicable to the staff attorney positions, we agree with Drinkwater that there is a factual issue regarding the qualifications of the minority candidate who filed the Staff Attorney I position. The successful applicant’s qualifications are material because the Federal court order in this case did not require the blind appointment of members of minorities to administrative positions. Rather, it provided for a racial preference when the school committee was faced with “eligible, qualified black candidates.” The affirmative action plan explicitly stated that the goals it announced were not “rigid or inflexible quotas.” The plan only required the school committee to rely “in part” on the race of a candidate when it was “reasonably necessary” to do so. Thus, race is only a factor to be considered as between otherwise qualified applicants. The qualifications listed in the job posting including “[pjroficiency in education law, administrative law and civil litigation; knowledge of state and federal special education laws and regulations; analytic and writing skills; administrative ability; human relations skills.” Drinkwater asserts that the successful applicant had to meet all the qualifications. The school committee’s position, supported by deposition testimony, was that the qualifications were not intended to require experience in each of the areas listed, as long as an applicant was “substantially in compliance with the requirement that she exhibit some expertise in that area.” The reason offered by the school committee for its willingness to accept applicants without all of the qualifications listed was that it was prepared to consider applicants with “0 years” experience. In its answer to the complaint, the school committee averred that “the minority individual selected showed very strong potential, but had no significant special education experience.” Other facts tended to show that the successful applicant did have some experience in administrative law and civil litigation. Because the successful applicant met some, but not all, of the qualifications listed, there is a genuine issue whether the school committee complied with its affirmative action plan, which we have already determined is facially valid. See Hub Assocs. v. Goode, 357 Mass. 449, 451 (1970). In support of her claim of retaliation, Drinkwater presented evidence which showed that the school committee’s general counsel was “angry that Ms. Drinkwater was accusing me of a violation of state and federal discrimination laws.” If Drinkwater should have received the Staff Attorney I position, even under the affirmative action plan as she argues, and the general counsel declined to recommend her when she reapplied because she had filed a complaint to that effect, then there may indeed have been illegal retaliation. The school committee, of course, contends that there was no retaliation. In any event, however, there is a genuine issue of material fact, as already noted. Therefore, it was error to allow the school committee’s motion for summary judgment. The judgment is reversed and the case is remanded to the Superior Court. So ordered. We do not reach the question whether affirmative action programs are permissible under the State Constitution’s Equal Rights Amendment (ERA). Art. 1 of the Massachusetts Declaration of Rights, as amended by art. 106 of the Amendments. See Attorney Gen. v. Massachusetts Interscholastic Athletic Ass’n, Inc., 378 Mass. 342, 357 (1979) (any justification for classification proscribed by ERA, even under affirmative action, should be weighed very carefully). Drinkwater relies primarily on Federal cases arising under Title VII of the Civil Rights Act of 1964 and the Fourteenth Amendment in her argument that the “reverse discrimination” in this case is illegal. Because her complaint only challenges the defendants’ actions under G. L. c. 15IB, § 4, we construe her argument as urging us to adopt standards under c. 151B similar to those utilized under Federal law. For the purposes of this case we assume, without deciding, that these standards apply under c. 151B. Drinkwater asks this court to take judicial notice of this fact. It is undisputed that the successful applicant failed the July, 1984, bar examination, and that one of the qualifications listed in the job posting was “current membership in Massachusetts and federal bars, or admission to bar membership by January, 1985.” This, however, creates no issue concerning the qualification of the successful applicant at the time she was hired, which is the time that we must consider in evaluating whether the school committee misapplied its facially valid affirmative action plan. As applied to 1984 law school graduates such as the successful applicant, then, we construe that requirement to be a condition subsequent to the employment, the nonoccurrence of which might subject the employee to discharge.