Wrongful Termination Cases

STEPHEN D. McCULLOUGH, Plaintiff v. BRANCH BANKING & TRUST CO., INC., Defendant No. COA99-149 (Filed 18 January 2000) 1. Disabilities— Equal Employment Practices Act — definition of handicap — alcoholism The trial court did not err in an employment termination case by instructing the jury that the term “handicapped” has been defined to exclude active alcoholism or in its definition of active alcoholism. Reading other statutes relating to the same subject with the Equal Employment Practices Act, N.C.G.S. § 143-422.2, “handicap” as used in the Act includes alcoholism but not active alcoholism and, using the common and ordinary meaning, an “active alcoholic” is an alcoholic who is currently engaged in the use of alcohol or was in the immediate past. 2. Employer and Employee— bonus — termination The trial court did not err in an action arising from an employment termination by denying plaintiff’s request for instructions regarding plaintiff’s claim for an unpaid wage bonus. Although there was no notification to plaintiff that termination of his employment could result in forfeiture of his bonus, the decision to require forfeiture of the bonus did not constitute a change in the benefits plan and no notice was required. 3. Venue— change — convenience of witnesses — motion after answer The trial court did not err by considering a motion for change of venue filed after the answer where the motion was based on the convenience of the witnesses. Appeal by plaintiff from order allowing defendant’s motion for change of venue filed 15 July 1994 by Judge Narley L. Cashwell in Wake County Superior Court, from oral order from the bench on 5 September 1997 denying plaintiffs motion for a directed verdict, from order denying plaintiffs motion for a new trial filed 18 December 1997, from order allowing defendant’s motion for costs filed 18 December 1997, from order denying plaintiff’s first and second motions to compel defendant to pay plaintiff’s expert reasonable fee for traveling to and from his deposition filed 18 December 1997, and from jury instructions given at trial, by Judge G.K. Butterfield, Jr. in Wilson County Superior Court. Heard in the Court of Appeals 16 November 1999. Robert J. Willis, for 'plaintiff-appellant. Constangy, Brooks & Smith, LLC, by Edward Katze and Timothy R. Newton, and Narron & Holdford, P.A., by I. Joe Ivey, for defendant-appellee. GREENE, Judge. Stephen D. McCullough (Plaintiff) appeals a jury verdict and final judgment in favor of Branch Banking & Trust Company, Inc. (Defendant) finding Defendant did not wrongfully terminate the employment of Plaintiff and Defendant did not fail to pay Plaintiff a wage bonus established for the work of Plaintiff and other employees of Defendant. Plaintiff also appeals a 15 July 1994 order transferring venue from Wake County to Wilson County and an 18 December 1997 order denying him a new trial. Wrongful Termination Claim The evidence reveals Plaintiff was hired by Defendant in June 1986 with an agreement that either party could terminate the relationship “for any reason, whenever either chooses to do so.” Although none of his co-workers observed him under the influence of alcohol while at work throughout his employment with Defendant, Plaintiff regularly abused alcohol, frequently used marijuana, occasionally arrived at work with a hangover, and had trouble getting to work on time. Plaintiff testified, however, that his substance abuse did not interfere with his job performance. In 1986 and 1987, Plaintiff was charged with public intoxication twice and was arrested and charged three times for Driving While Impaired (DWI) in Wake, Durham, and Wilson Counties. The Wilson County DWI arrest, on 4 December 1987, also resulted in Plaintiff being arrested for Driving While License Revoked. Defendant learned of the Wilson County arrest through a newspaper article in The Wilson Daily Times. Consequently, Plaintiff was counseled by his supervisor Rodney Hughes (Hughes) and told Defendant’s medical plan would pay expenses for counseling and rehabilitation, leave would be available for rehabilitation, to seek help now while he recognized his problem, and Defendant would help him overcome his problem. Hughes stressed that Defendant would not tolerate a future occurrence of Plaintiffs alcohol related problems, and if another occurred, Plaintiff would be terminated. Plaintiff was ultimately convicted of DWI for both the Durham and Wilson County arrests. His driver’s license was permanently revoked, and he had to serve seven days in jail. Plaintiff concealed his jail term and his other arrests, and Defendant did not learn of Plaintiff’s jail term or his driver’s license permanent revocation until Plaintiff’s termination. On 20 October 1990, Plaintiff was arrested for DWI and Driving While License Permanently Revoked in Wake Forest, North Carolina. Plaintiff gave the arresting officer Horace Macon (Macon) a Florida driver’s license, because he was permanently banned from driving in this State. In connection with these charges, Plaintiff appeared for a hearing at the Department of Motor Vehicles (DMV) in February 1991. Plaintiff told the DMV hearing officer he lived at a Florida address, and his attorney told the DMV hearing officer Plaintiff had been living in Florida for the past three years and was in North Carolina visiting his girlfriend. As a result of these events, Macon, who was present at the DMV hearing, contacted Billy Montague (Montague), then Human Resources Director for Defendant, to verify Plaintiff’s employment in North Carolina. During this conversation, Macon told Montague what had transpired at the DMV hearing. Following his conversation with Macon, Montague contacted Hughes and Hughes’ superior Scott Reed (Reed) and conducted his own investigation into Plaintiff’s criminal record. This investigation uncovered Plaintiffs DWI arrests and his driver’s license permanent revocation. Montague was concerned about Plaintiffs trustworthiness and whether the surety bond required by law on all bank employees would terminate for Plaintiff, because the bond under which Plaintiff was covered would terminate as to any employee whenever the bank “learns of any dishonest or fraudulent act committed by such person at any time, whether in the employment of the insured or otherwise . . . On 12 March 1991, Defendant notified Plaintiff he was terminated effective 13 March 1991. Plaintiff filed this action in November of 1993 alleging Defendant wrongfully discharged him on the basis of his handicap, his alcoholism, in violation of the public policy of North Carolina as set forth in N.C. Gen. Stat. 143-422.2. Over Plaintiffs objection, the trial court instructed the jury, concerning Plaintiffs wrongful termination claim in pertinent part that: [Defendant was not entitled to terminate [P]laintiff if to do so violated public policy. A public policy violation would occur if a person is terminated from employment substantially because of a qualifying handicap when the person is capable of performing the essential functions of the job, with or without reasonable accommodation. In order to prevail on this First Issue, []the [P]laintiff must prove . . . the following three things: [] .... First,'that the [P]laintiff was handicapped by reason of being an alcohol dependent person. Now, ladies and gentlemen, the term “handicapped” is defined to mean any person who has a physical or mental impairment which substantially limits one or more major life activities. []The term “physical or mental impairment” has been defined to exclude active alcoholism, or drug addiction, or both.[] .... Following the previous instruction, Plaintiff requested and the trial court rejected the following instruction to the jury. “ ‘Physical or mental behavior that is directly caused by or a direct manifestation of a particular physical or mental impairment should be considered to be a part of that handicap.’ ” Over Plaintiffs objection, the trial court further instructed the jury in pertinent part: []In making the determination as to whether the [P]laintiff was handicapped, I instruct you that the handicap law expressly excludes individuals who are active alcoholics. Thus, a person who is an active alcoholic is not handicapped under North Carolina law. Now, you may evaluate a variety of factors in determining whether [P]laintiff was an active alcoholic at the time of his termination.... I instruct you, however, that if the evidence presented shows that the [P]laintiff, given his admission of alcoholism], was using alcohol at the time of his termination, you may find that the [P]laintiff was an active alcoholic. The term “using alcohol” is not intended to be limited to the use of alcohol within a matter of days or weeks before the [Plaintiff’s discharge. Rather, the terms appl[y] to the use of alcohol that has occurred recently enough to indicate that an individual is actively engaged in the use of alcohol. Or, the use of alcohol is an ongoing problem. [] An alcoholic employee who is using alcohol in a periodic fashion during the weeks and months prior to his termination is an active alcoholic. [] Wage Bonus Claim In 1990, Plaintiff convinced Defendant to start an incentive program for the overnight funding function he and two other employees operated for Defendant. In 1990, Plaintiff was paid his bonus at the end of the 1990 plan year after 28 November 1990. At the end of the 1990 plan year, Hughes advised Plaintiff the 1990 incentive compensation plan for the overnight funding would be renewed for the 1991 plan year. The 1991 plan year began on 29 November 1990. Hughes advised Plaintiff the standard or method for calculating the amount and share of the bonus Plaintiff would divide with his team would remain the same as in 1990. Plaintiff was not advised his right to receive this 1991 incentive compensation was subject to forfeiture on any grounds or conditioned on his tenure with Defendant, however, he testified Hughes “hadn’t decided what to do [about the paying of the bonus] if somebody leaves” before the end of the plan year. Plaintiffs employment with Defendant was terminated 13 March 1991, and he did not receive a bonus for the 1991 plan year. Plaintiffs complaint seeks payment of the unpaid wage bonus from Defendant under N.C. Gen. Stat. 95-25.22. The trial court instructed the jury in pertinent part as follows: The Fifth Issue in this case reads as follows: “Did [Defendant fail to pay the [P]laintiff a wage bonus established for the work of the [PJlaintiff and other employees from November 28, 1990 to March 1, 1991?” On this Fifth Issue, the burden of proof is on the [P]laintiff. The [PJlaintiff must prove, by the greater weight of the evidence, that [he] was entitled to a wage bonus at the time of his termination from employment. Whether [PJlaintiff was entitled to a bonus at the time of his termination depends upon the terms of the [DJefendant’s bonus plan which existed at the time of the [PJlaintiff’s termination. . . . If you find that under the [DJefendant’s bonus plan, the [PJlaintiff was entitled to a bonus at the time of his termination, you must answer this Fifth Issue “yes” in favor of the [PJlaintiff. If, on the other hand, you fail to so find, then you will answer the Fifth Issue “no” in favor of the [DJefendant. Plaintiff requested and the trial court rejected the following instruction to the jury regarding Plaintiffs wage bonus claim. “Under North Carolina law, the terms of the Defendant’s bonus plan which existed at the time of the Plaintiff’s termination do not include terms which provided for the loss or forfeiture of that bonus if certain events did or did not occur unless those terms were disclosed to the Plaintiff in writing by either providing him with a copy of those terms before the Plaintiff earned any part of that bonus or by [posting] those terms in a place accessible to the Plaintiff.” Change of Venue After filing its answer, Defendant filed a motion to change venue, pursuant to section 1-83(2), based on the convenience of the witnesses. In support of the motion, Defendant submitted an affidavit showing that all of the acts complained of occurred in Wilson County and the managers of Defendant and most of the witnesses lived in Wilson County. The trial court allowed the motion and transferred the case from Wake County to Wilson County. It should noted that Plaintiffs assignments of error numbers 1, 4, 6, 10, 13 and 16 are deemed abandoned, because they are not presented and discussed in Plaintiffs brief. N.C.R. App. P 28(a). The issues are whether: (I) the definition of a “handicapped person” given in section 168A-3(4) is properly used to determine the legislative intent of a “handicap” within the meaning of section 143-422.2; if so, (II) the jury instructions given by the trial court are consistent with the section 168A-3(4) definition; (III) the trial court erred in instructing the jury concerning Plaintiffs wage bonus claim; and (IV) the trial court erred in hearing and allowing Defendant’s motion for change of venue. Wrongful Termination At-will employees may be terminated for no reason or for arbitrary or irrational reasons, but they may not be terminated for an “ ‘unlawful reason or purpose that contravenes public policy.’ ” Coman v. Thomas Manufacturing Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989) (citation omitted). The State’s “public policy is violated when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes.” Amos v. Oakdale Knitting Co., 331 N.C. 348, 353, 416 S.E.2d 166, 169 (1992). Plaintiff, acknowledging he is an at-will employee, argues his termination of employment was in violation of this State’s public policy prohibiting discrimination on account of a person’s handicap or disability. Plaintiff specifically contends his termination was in consequence of his alcoholism and alcoholism qualifies as a handicap within the meaning of section 143-422.2. I The Equal Employment Practices Act of North Carolina (the Employment Act) provides in pertinent part: “It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of. . . handicap . . . .” N.C.G.S. § 143-422.2 (1999). The Employment Act does not define “handicap” and therein lies the basis for the dispute in this case. Plaintiff points to the federal Vocational Rehabilitation Act (Rehabilitation Act) which excludes from its definition of an “individual with a disability” alcoholics “whose current use of alcohol prevents such individual from performing the duties of the job in question.” 29 U.S.C. § 706 (8)(C)(v) (1994). Defendant directs our attention to the North Carolina Handicapped Persons Protection Act (Handicapped Act) which specifically excludes “active alcoholism” from the definition of a handicapped person. N.C.G.S. § 168A-3(4)(a)(iii)(B) (1995). In determining our legislature’s intent of the meaning of “handicap” as used in the Employment Act, it is appropriate to consider other North Carolina statutes which relate to the same subject matter, although enacted at different times. Carver v. Carver, 310 N.C. 669, 674, 314 S.E.2d 739, 742 (1984). If related to the same subject matter, the statutes “must be construed together in order to ascertain [the] legislative intent.” Id. The Employment Act, enacted in 1977, protects the rights and opportunities of persons to “seek, obtain and hold employment without discrimination or abridgement on account of . . . handicap.” N.C.G.S. § 143-422.2. The Handicapped Act, enacted in 1985, encourages all handicapped persons “to engage in remunerative employment” and finds that “the practice of discrimination based upon a handicapping condition is contrary to the public interest and to the principles of freedom and equality of opportunity.” N.C.G.S. § 168A-2 (1995). These statutes, although enacted at different times, relate to the same subject matter, employment discrimination against handicapped persons, and, thus, must be construed together to ascertain legislative intent. Reading these statutes in pari materia, “handicap” as used in the Employment Act includes alcoholism but not “active alcoholism.” The trial court, thus, correctly instructed the jury that “the term ‘handicapped’ . . . has been defined to exclude active alcoholism.” II “Active alcoholism” is not defined in the Handicapped Act or any other North Carolina statute. Having no statutory definition, not having acquired a technical meaning, and a different meaning not being apparent from the statute, the phrase “active alcoholism” must be construed in accordance with its common and ordinary meaning, Supply Co. v. Motor Lodge, 277 N.C. 312, 319, 177 S.E.2d 392, 396 (1970), which can be gained from dictionaries, State v. Martin, 7 N.C. App. 532, 533, 173 S.E.2d 47, 48 (1970). Dictionaries define “active” to include “[e]ngaged in activity; participating,” American Heritage College Dictionary 13 (3d ed. 1997), and “alcoholism” is defined as “a dependence on alcohol” and “a chronic disease . . . caused by the excessive and habitual consumption of alcohol,” id. at 32. Thus, an “active alcoholic” is an alcoholic who is currently engaged in the use of alcohol or was in the immediate past engaged in the use of alcohol. In this case, the trial court instructed the jury that an “active alcoholic” employee is an alcoholic who was “using alcohol in a periodic fashion during the weeks and months prior to his termination.” This instruction is sufficiently consistent with the definition of “active alcoholism” herein approved and, therefore, does not constitute error. See Barnard v. Rowland, 132 N.C. App. 416, 427, 512 S.E.2d 458, 466 (1999) (trial court must instruct on the law of the case). Wage Bonus Claim III North Carolina’s Wage and Hour Act, section 95-25.13, provides in pertinent part: Every employer shall: (3) Notify its employees, in writing or through a posted notice maintained in a place accessible to its employees, of anv changes in promised wages prior to the time of such changes except that wages may be retroactively increased without the prior notice required by this subsection .... N.C.G.S. § 95-25.13(3) (1999) (emphasis added). We have construed this statute to permit an employer to make changes in an employee’s benefits, but the change applies only to those benefits accruing after written notice is given the employee or notice is posted in a place accessible to the employees. Narron v. Hardee’s Food Systems, Inc., 75 N.C. App. 579, 583, 331 S.E.2d 205, 207-08, disc. review denied, 314 N.C. 542, 335 S.E.2d 316 (1985), overruled on other grounds by J&B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 362 S.E.2d 812 (1987). Employees who have not been properly notified of changes in their benefits “are not subject to loss or forfeiture” of those benefits. N.C.G.S. § 95-25.7 (1999). Plaintiff argues the trial court erred in its jury instmctions because it failed to inform the jury Plaintiff was entitled to receive his bonus unless he was notified of the forfeiture provisions prior to the accrual of the bonus. Defendant argues forfeiture notification under section 95-25.13 is required only when there occurs a change in an employee benefit. In this case, Defendant contends, no change occurred in Plaintiff’s bonus plan because an employee’s entitlement to the bonus had not been determined if their employment ceased before the end of the plan year. The evidence in this record provides details of how the bonus would be computed in a plan year. There is no evidence, however, on the issue of entitlement to the bonus if employment was terminated before the expiration of the plan year. Plaintiffs employment was terminated before the end of the plan year and Defendant refused to pay any bonus. Although there was no notific

BAKER v OAKWOOD HOSPITAL CORPORATION Docket No. 206407. Submitted March 9, 1999, at Detroit. Decided January 18, 2000, at 9:00 A.M. Veronica L. Baker brought a wrongful discharge action in the Wayne Circuit Court against Oakwood Hospital Corporation and Stephen M. Aronson, M.D., claiming breach of contract, retaliation in violation of public policy, and interference with contractual or advantageous relations in connection with her employment as research nurse coordinator for a study of the experimental drug Sabeluzole conducted by Dr. Aronson on patients with Alzheimer’s disease and for a proposed, but not undertaken, study by the same doctor of the experimental drug Milanimine on Alzheimer’s patients. The plaintiff moved for the compelled discovery of the histories and records of the patients in Dr. Aronson’s Sabeluzole study, of documents relating to sponsorship of the Sabeluzole study by the Janssen Research Foundation and to sponsorship of the Milanimine study by Parke-Davis, of documents relating to limitations on Dr. Aronson’s retention of lecture honoraria, of tax forms showing income earned by Dr. Aronson for speaking engagements and the Sabeluzole study, and of Dr. Aronson’s travel records. The plaintiff argued that the medical records and research project records would support her allegations that Dr. Aronson had violated Food and Drug Administration (fda) research rules and the research project protocol and that Dr. Aronson had required the plaintiff to practice medicine without a license and commit other improper acts. The plaintiff argued that the documents pertaining to Dr. Aronson’s travel, speaking engagements, and honoraria were relevant because they related to her allegations that Dr. Aronson’s travel took precedence over his participation in the study, prompting him to delegate medical responsibilities to the plaintiff and falsify records. Over the defendants’ objection that the medical records were privileged and that the other documents were not relevant, the court, Pamela R. Harwood, J., granted the plaintiff’s discovery motion. The defendants appealed by leave granted. The Court of Appeals held: 1. The physician-patient privilege statute, MCL 600.2157; MSA 27A2157, provides that a person duly authorized to practice medicine or surgery shall not disclose any information that the person has acquired in attending a patient in a professional character if the information was necessary to enable the person to prescribe for the patient as a physician or to do any act for the patient as a surgeon. The statute imposes an absolute bar in that it prohibits a physician from disclosing, in the course of any action wherein the physician’s patient or patients are not involved and do not consent, even the names of such noninvolved patients. In this case, the medical records of the patients in the Sabeluzole study are protected by the physician-patient privilege and are not subject to discovery. The trial court abused its discretion in compelling discovery of the medical records. 2. The personal records of Dr. Aronson, with the exception of the documents relating to the Parke-Davis project on which neither the plaintiff nor Dr. Aronson worked, are relevant to the plaintiff’s claims and are subject to discovery under MCR 2.302(B)(1). The trial court did not abuse its discretion in ordering discovery of those records. Affirmed in part and reversed in part. Physicians and Surgeons — Physician-Patient Privilege — Discovery. The physician-patient privilege bars a physician, in the course of any action wherein the physician’s patient is not involved and has not waived the privilege, from disclosing the medical records of the patient (MCL 600.2157; MSA 27A.2157). David D. Kohl, for the plaintiff. 'Dykema Gossett PLLC (by Rosemary G. Schikora), ■ for the defendants. Before: Sawyer, P.J., and Fitzgerald and Saad, JJ. Saad, J. Defendants Oakwood Hospital Corporation and Stephen M. Aronson appeal by leave granted the September 3, 1997, order by Wayne Co Circuit Judge Pamela R. Harwood granting plaintiff Veronica L. Baker’s motion to compel production of patient medical records and certain of defendant Aronson’s personal records in a wrongful discharge lawsuit. This Court granted defendants leave to file this interlocutory appeal. We reverse the order compelling production of the medical records, but affirm the order compelling production of Aronson’s personal records. I. NATURE OF THE CASE This appeal raises several discovery issues, one of which involves an issue of first impression in Michigan regarding the scope of the physician-patient privilege. Plaintiff alleges that the medical research records of Alzheimer’s patients contain necessary and material information relating to her wrongful discharge lawsuit. She contends that these records will bear out her claim that defendant Aronson, a doctor, required her to practice medicine without a license by performing research functions restricted to physicians. She argues that defendants are not entitled to assert the physician-patient and psychotherapist-patient privileges in order to shield relevant evidence. Defendants argue that the privileges constitute an absolute bar to disclosure. Without reaching the issue of privilege, the trial court ordered defendants to produce the records in redacted form. Defendants took an interlocutory appeal from that order. We conclude that under Michigan Supreme Court precedent and subsequent decisions by this Court, the physician-patient privilege is an absolute bar that prohibits the unauthorized disclosure of patient medical records, including when the patients are not parties to the action. We reverse the trial court’s order compelling discovery of those records. n. FACTS AND PROCEEDINGS This lawsuit arises from an employment dispute between plaintiff, a registered nurse who worked as a research nurse coordinator, and defendant Stephen M. Aronson, M.D. Dr. Aronson conducted a study of Sabeluzole, an experimental drug for the treatment of Alzheimer’s disease under the sponsorship of the Janssen Research Foundation (jkf). He began this research at Wayne State University and the Veterans’ Administration Hospital, and later brought the study to Oakwood Hospital. Plaintiff worked with Dr. Aron-son at Wayne State and the VA hospital, and joined him at Oakwood in January 1996 on a less than full-time basis. According to plaintiff, plaintiff’s and Dr. Aronson’s working relationship quickly deteriorated after the move to Oakwood. Plaintiff’s part-time status led to a conflict between her and Dr. Aronson over plaintiff’s hours, compensation, and benefits package. Plaintiff alleges that Dr. Aronson gave her false information on these matters before she made the move. The parties also disagreed over plaintiff’s responsibilities. Plaintiff has alleged the following version of events: After moving to Oakwood, Dr. Aronson was permitted to retain honoraria for lectures and speaking engagements that he had not been permitted to retain at Wayne State. Induced by this financial incentive, Dr. Aronson overbooked himself with speaking engagements that interfered with his participation in the research. Because he was often out of town, he was not available to perform patient medical exams and other research-related duties. Instead, he expected plaintiff to “practice medicine without a license” by assinning certain duties that Food and Drug Administration (fda) regulations and research protocols restricted to medical doctors. He also required plaintiff to falsify records to conceal his lack of involvement. The parties also clashed over a pending ParkeDavis study of the drug Milanimine. This study never materialized. Dr. Aronson contests plaintiffs version of events and has denied asking her to do anything improper. Dr. Aronson avers that plaintiffs dissatisfaction stems from defendants’ inability to accede to her demands regarding wages, benefits, and work schedule. In June 1996 plaintiff left Oakwood’s employ. Again, the parties dispute the circumstances of plaintiff’s departure. Plaintiff alleges that she confronted Dr. Aronson over his illegal and unethical conduct, which caused him to become angry and demand her resignation. When plaintiff refused to sign a resignation letter, he falsely informed Oakwood administration that she had resigned. In contrast, defendants contend that plaintiff voluntarily quit out of dissatisfaction with her compensation and because Dr. Aronson refused her demand to be paid a “finder’s fee” for each patient in the study. Plaintiff filed this three-count lawsuit against Oak-wood and Dr. Aronson. Plaintiff included counts for “wrongful discharge” (specifically, a breach of contract claim), “retaliation in violation of public policy,” and “interference with contractual or advantageous relations.” With respect to the second count, plaintiff alleged that defendants terminated her employment in retaliation for her objections to Dr. Aronson’s illegal and unethical conduct. DISCOVERY REQUESTS AND OBJECTIONS TO DISCOVERY In the course of discovery, plaintiff requested defendants to produce “a copy of the case histories and records of the patients in Dr. Aronson’s JRF Sabeluzole study.” Although the discovery request asked for patient names to be replaced by numbers to preserve confidentiality, plaintiff also requested a key showing the numbers associated with the names. Plaintiff also requested the following: documents relating to the JRF Sabeluzole research project and the abortive Parke-Davis research project on the drag Milanimine; documents relating to limitations on Dr. Aronson’s retention of lecture honoraria at both Oak-wood and Wayne State; Forms 1099 for the tax years 1994-96, showing amounts paid for speaking engagements; travel records for 1994-96; and Forms 1099 for 1994-96 showing amounts jrf paid for the Sabeluzole study. In their response to this request, defendants objected to the request for medical records because the information was not relevant and was not reasonably calculated to lead to the discovery of admissible evidence. Defendants also averred that the request was “overly broad and burdensome” because it involved thousands of pages of documents that filled two file cabinets. They objected to the requests for Forms 1099, research documents, honoraria records, and travel records on grounds of relevance. Plaintiff filed her motion to compel discovery of these documents. She argued that the medical records and research project records were relevant because they would support her allegation that Dr. Aronson violated FDA research rules and the research project protocols, and required plaintiff to practice medicine without a license and commit other improper acts. She argued that documents pertaining to Dr. Aronson’s travel, speaking engagements, and honoraria were relevant because they related to her allegations that Dr. Aronson’s travel took precedence over his participation in the study, prompting him to delegate medical responsibilities to plaintiff and falsify records. In response, defendants reiterated their objection that the medical records were not relevant to any issue and were too burdensome to produce. Additionally, defendants argued at the motion hearing that the records were privileged, although they had not raised this matter in their brief. With respect to the remaining discovery requests, defendants argued that the research documents were not relevant because plaintiff was not required to demonstrate that Dr. Aronson actually committed any violations to prove her retaliatory discharge claim (which defendants erroneously labeled a whistle-blowers’ claim). Similarly, they argued that information on Dr. Aronson’s travels and speaking engagements was irrelevant because plaintiff would not be required to prove that Dr. Aronson did, in fact, neglect his research responsibilities. The trial court heard the motion on August 22, 1997, concluded that the materials were sufficiently relevant to plaintiff’s causes of action for purposes of discovery, and granted the motion to compel. However, the court also issued a protective order to maintain confidentiality of the records and to replace patients’ names with initials. We granted defendants’ application for interlocutory appeal. HI. ANALYSIS A. THE PHYSICIAN-PATIENT PRIVILEGE AND DR. ARONSON’S RESEARCH RECORDS The applicability of the physician-patient privilege is a legal question that this Court reviews de novo. Once we determine whether the privilege is applicable to the facts of this case, we determine whether the trial court’s order was proper or an abuse of discretion. See Dorris v Detroit Osteopathic Hosp, 220 Mich App 248, 250; 559 NW2d 76 (1996), aff’d 460 Mich 26; 594 NW2d 455 (1999), see also Reed Dairy Farm v Consumers Power Co, 227 Mich App 614, 618; 576 NW2d 709 (1998), for the standard for reviewing attorney-client privilege, which we consult for analogy. 1. THE STATUTORY PRIVILEGES The physician-patient privilege statute provides, in pertinent part: Except as otherwise provided by law, a person duly authorized to practice medicine or surgery shall not disclose any information that the person has acquired in attending a patient in a professional character, if the information was necessary to enable the person to prescribe for the patient as a physician, or to do any act for the patient as a surgeon. [MCL 600.2157; MSA 27A.2157 (emphasis added).] The Mental Health Code, MCL 330.1001 et seq.-, MSA 14.800(1) et seq., includes additional protection for communication to a psychiatrist or psychologist. The Mental Health Code defines “privileged communication” as “a communication made to a psychiatrist or psychologist in connection with the examination, diagnosis, or treatment of a patient, or to another person while the other person is participating in the examination, diagnosis, or treatment or a communication made privileged under other applicable state or federal law.” MCL 330.1700(h); MSA 14.800(700)(h). The Mental Health Code provides that privileged communications “shall not be disclosed in civil, criminal, legislative, or administrative cases or proceedings, or in proceedings preliminary to such cases or proceedings, unless the patient has waived the privilege,” except in six enumerated circumstances, none of which is applicable here. MCL 330.1750(1), (2); MSA 14.800(750)(1), (2). The psychiatrist-patient privilege prohibits disclosure of “the fact that the patient has been examined or treated or undergone a diagnosis” except where that information is relevant to a health care provider’s or insurer’s rights or liabilities. MCL 330.1750(3); MSA 14.800(750)(3). The physician privilege bars disclosure of “any information” acquired in the course of the professional relationship, whereas the psychiatrist privilege applies only to the patient’s communications. However, the record in this case is insufficient for determining if the distinction is important here. Although defendants suggest that the psychiatric privilege might preclude discovery even if the physician privilege does not, we conclude that for purposes of this appeal, there is no difference in the application of these two privileges as applied to the facts here. A threshold issue that neither party raised or addressed is whether the physician-patient privilege applies in this case, where Dr. Aronson and the Alzheimer’s patients were not involved in a traditional doctor-patient relationship. Plaintiff has not contended that the patient records from the Sabeluzole study fall outside the scope of privileged matters under either statute. Hence, we assume for purposes of our analysis that the subjects were patients entitled to the privilege. “The purpose of the [patient-physician] privilege is to protect the doctor-patient relationship and ensure that communications between the two are confidential.” Herald Co Inc v Ann Arbor Public Schools, 224 Mich App 266, 276; 568 NW2d 411 (1997). The privilege did not exist at common law; thus, “the statute controls the scope of the privilege in Michigan.” Id. “The privilege belongs to the patient and can be waived only by the patient.” Id. Plaintiff also has not contended that any of the patients expressly or impliedly waived their privilege, or that any of the six enumerated exceptions in MCL 330.1750(2); MSA 14.800(750)(2) is applicable. 2. DEFENDANTS’ ARGUMENTS FOR APPLICATION OF PRIVILEGE There is ample Michigan authority to support defendants’ argument that the physician-patient privilege is an absolute bar that protects the medical information of nonparty patients, although no case is on all fours. Defendants rely on Schechet v Kesten, 372 Mich 346; 126 NW2d 718 (1964). In Schechet, the plaintiff, a physician, sued the defendant, a hospital administrator, for defamation, alleging that the defendant attacked his professional competence. Id., 349. The plaintiff served interrogatories on the defendant that requested the defendant to identify the “cases” (presumably the names of patients and information about their treatments) that induced the defendant to make the censorious statements. Id., 350. The Michigan Supreme Court held that the physician-patient privilege barred disclosure: The statute imposes an absolute bar. It protects, “within the veil of privilege,” whatever in order to enable the physician to prescribe, “was disclosed to any of his senses, and which in any way was brought to his knowledge for that purpose.” (Briggs v Briggs, 20 Mich 34, 41 [1870].) Such veil of privilege is the patient’s right. It prohibits the physician from disclosing, in the course of any action wherein his patient or patients are not involved and do not consent, even the names of such noninvolved patients. [Id., 351 (emphasis added).] Relying on Schechet, this Court has held that the physician-patient privilege barred disclosure of medical information for patients who were not parties to the action. In Dorris, supra, the plaintiff in a medical malpractice action sought the name of the patient who shared her hospital room because she believed this person would corroborate plaintiff’s allegation that plaintiff refused a certain medication. 220 Mich App 249-250. This Court held that Schechet was binding precedent that barred disclosure of a patient’s name. Id., 251-252. Our Supreme Court agreed and affirmed this Court’s decision: The language of § 2157 is clear in its prohibition of disclosure of privileged information. In accordance with prior rulings of this Court, particularly Schechet, that the purpose of the privilege is to encourage patients’ complete disclosure of all symptoms and conditions by protecting the confidential relationship between physician and patient, we find requiring the defendant hospitals to disclose the identity of unknown patients would be in direct contradiction of the language and established purpose of the statute. [460 Mich 37.] Similarly, in Popp v Crittenton Hosp, 181 Mich App 662; 449 NW2d 678 (1989), a medical malpractice patient alleged that the defendants, a hospital and a physician, were negligent in failing to promptly conduct a computerized axial tomography (cat) scan when the plaintiff came to the emergency room. The physician testified that another patient was under the CAT scan when the plaintiff arrived. The plaintiff sought discovery of the other patient’s medical records to determine which patient deserved priority. The trial court denied the request. Id., 665. Citing Schechet, this Court upheld the trial court’s decision because the physician-patient privilege is an “absolute bar prohibiting the disclosure of even the names of patients who are not involved in the litigation.” Id. This Court stated that “the information sought was protected by a physician-patient privilege held by someone not a party to the lawsuit who did not waive his privilege.” Id. In Dierickx v Cottage Hosp Corp, 152 Mich App 162; 393 NW2d 564 (198

LARAINE B. RUSH v. LIVING CENTERS-SOUTHEAST, INC., d/b/a BRIAN CENTER HEALTH & REHABILITATION/HENDERSONVILLE and WILLIAM T. HALL No. COA99-31 (Filed 2 November 1999) 1. Employer and Employee— wrongful discharge — employee’s refusal to testify — no public policy violation — matters concerning job duties The trial court did not err in granting defendant-employer’s summary judgment motion on plaintiff-bookkeeper’s claim that she was wrongfully discharged in violation of public policy for refusing to testify in defendant’s dispute with a deceased patient’s spouse over an unpaid account because an employer may reasonably expect that its employees will voluntarily appear on its behalf to testify about matters associated with their job duties. 2. Employer and Employee— wrongful discharge — employee’s refusal to testify — no risk of perjured testimony — no public policy violation The trial court did not err in granting defendant-employer’s summary judgment motion on plaintiff-bookkeeper’s claim that she was wrongfully discharged for refusing to testify in defendant’s dispute with a deceased patient’s spouse over an unpaid account, even in light of her contention that her participation might have caused her to perjure herself, since: (1) plaintiff admitted that she was neither asked to lie nor given any direction by defendant’s lawyers on the content or manner of her testimony; (2) defendant’s insistence that plaintiff appear in court without more preparation is not enough to find a public policy violation; and (3) plaintiff needs more evidence than just her subjective feelings that she was being directed to testify untruthfully in order to state a valid claim for wrongful discharge. Appeal by plaintiff from a judgment entered 26 August 1998 by Judge Ronald K. Payne in Henderson County Superior Court. Heard in the Court of Appeals 23 September 1999. On 5 October 1989 Laraine Rush (plaintiff) began her employment with Brian Center (defendant) as a bookkeeper. Her duties included making entries of payments, keeping track of monies owed, and making occasional phone calls in attempts to collect those sums. During her tenure, a dispute arose between defendant and Mr. Sidney Murphy regarding the amount, if any, owed on the bill of his late wife. Defendant filed suit against Mr. Murphy in Henderson County Superior Court. Arbitration was ordered, and plaintiff appeared on behalf of Brian Center in her capacity as bookkeeper and custodian of records and testified concerning the Murphy account. The arbitrator found in favor of Mr. Murphy and Brian Center appealed to the Henderson County Superior Court. Nearly a year passed during which time plaintiff heard nothing more concerning the Murphy case. On 11 March 1996, Ms. Rush received a phone call late in the afternoon informing her that she was required to appear in court the next day at 9:00 a.m. in order to testify on behalf of defendant in the trial of the case against Mr. Murphy. Plaintiff refused to testify because she did not feel she had adequate time to prepare to testify in an involved matter. When again requested by her immediate supervisor to appear in court the following day, plaintiff again refused, maintaining that there was difficulty in establishing payment dates and any amount owed on such short notice. In her deposition plaintiff stated: I told him I didn’t wanna do it; I wasn’t gonna do it and that I was not going to go in there unprepared and not be able to answer the questions and he told me that I knew that he knew, I knew what he meant when he said that I was gonna go to court and that I was to cooperate. And by him telling me that, you know what I mean, I know that he meant for me to do it, no matter what it took it, [sic] how I was to get there. Ultimately, plaintiff was told to leave whatever documentation she had in a box for her supervisor to retrieve. Plaintiff did not appear in court the next day, nor did she appear later in the week when the Murphy case was tried. Judgment was entered in favor of Mr. Murphy. Plaintiff was suspended during a two-day investigation into her actions. She was then informed that her employment with Brian Center was terminated on grounds of insubordination. Plaintiff subsequently filed suit against defendant alleging claims for wrongful discharge, corporate negligence and civil rights violations. Defendant moved for summary judgment and the trial court, finding that no genuine issue of material fact existed as to any of plaintiffs claims, found in favor of defendant. From the orders granting summary judgment, plaintiff now appeals. Waymon L. Morris, P.A., by Waymon L. Morris, for plaintiff appellant. Ball, Barden & Bell, P.A., by Ervin L. Ball, for defendant appellee. HORTON, Judge. The issue before this Court is whether or not the trial court erred in granting summary judgment in favor of defendant on plaintiffs claim that she was wrongfully discharged. Summary judgment is proper when the moving party establishes that no “triable issue” exists “by showing that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law.” Branks v. Kern, 320 N.C. 621, 623, 359 S.E.2d 780, 782 (1987). Furthermore, “[a]ll inferences are to be drawn against the moving party and in favor of the opposing party.” Id. at 624, 359 S.E.2d at 782. The trial court must view the evidence presented in the light most favorable to the nonmoving party. McMurry v. Cochrane Furniture Co., 109 N.C. App. 52, 54, 425 S.E.2d 735, 736 (1993). Thus, we must decide whether the evidence, when viewed in the light most favorable to plaintiff, was sufficient to establish a genuine issue of material fact. We hold that it was not, and affirm the judgment of the trial court. Defendant argues that plaintiff was an employee-at-will and thus could be fired for an arbitrary or irrational reason, or for no reason at all. Plaintiff contends that, although her employment was at-will, her employment contract was terminated in violation of public policy. It is well settled in this state that the “common law rule ... is that when a contract of employment does not fix a definite term the employment is terminable without cause at the will of either party.” Sides v. Duke University, 74 N.C. App. 331, 336, 328 S.E.2d 818, 822-23, disc. reviews denied, 314 N.C. 331, 333 S.E.2d 490 (1985). Recognizing the changing nature of employee-employer relationships, the courts of this state have carved out an exception to this rule. The public policy exception acknowledges that “while there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy.” Id. at 342, 328 S.E.2d at 826; Coman v. Thomas Mfg. Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989). Sides and Coman were similar in that they both involved allegations that the employer affirmatively instructed the employees in those cases to violate the law. In Sides, the plaintiff alleged that her employer pressured her not to testify truthfully in a malpractice case, and discharged her because she refused to commit perjury and testified truthfully in the case. Similarly, the plaintiff in Coman alleged that he was fired when he refused to falsify federally required documents in violation of federal law. However, the case before us is distinguishable from these two cases. When viewed in the light most favorable to plaintiff, the evidence tends to show that plaintiff’s employer was involved in a dispute over an unpaid account with the spouse of a deceased patient; that plaintiff had previously participated in an ordered arbitration of the dispute in her capacity as bookkeeper for defendant; that this involvement left plaintiff hesitant to participate in such events in the future; that defendant appealed the decision of the arbitrator to the superior court; that plaintiff was unaware of the appeal and assumed the case was over; that almost one year later, defendant contacted plaintiff late one afternoon and instructed her to appear in court the next morning to testify in the pending case against Mr. Murphy; that plaintiff refused that request more than once, stating that it was a complex matter, and she did not have adequate time to prepare her testimony; that the case was tried without her participation; that plaintiff was then suspended pending an investigation and was ultimately terminated on grounds of insubordination. Plaintiff argues that her termination violated the public policy exception to at-will employment because she was not subpoenaed and therefore was not required to appear in court; furthermore, that insistence that she testify without more time to prepare would have prevented her from giving “full, fair, and accurate” testimony. We axe not persuaded by these arguments. While the statutory law provides a mechanism whereby litigants may compel attendance of witnesses who might not otherwise voluntarily appear, it does not require that every prospective witness be subpoenaed. See N.C. Gen. Stat. § 1A-1, Rule 45 (1990). Thus, an employer may reasonably expect that its employees will voluntarily appear on its behalf to testify about matters associated with their job duties. However, as discussed above, an employer may not insist that an employee appear and testify untruthfully. Second, plaintiffs contention that defendant’s insistence upon her participation might have caused her to perjure herself is not supported by the record. In her deposition, plaintiff admitted that she was neither asked to lie nor given any direction by defendant’s lawyers on the content or manner of her testimony. We find the following excerpt from her deposition particularly telling: Q. Alright. Did anybody from Brian Center tell you to go to testify, that you had to lie? A. Uh, it was inferred, go and do what you have to do. Go to court. Q. Okay. What did they say to infer that? A. Well, Mr. Hall said just answer the questions and even when I told him, I couldn’t. Q. Just answer the questions. That’s what he said that you inferred that he wanted you to lie from? A. Well, I don’t know if he wanted to say, he didn’t say the word lie, but it was sort of go and answer. When plaintiff was given the opportunity to explain her understanding she further stated: A. When he called me, okay, he called me and I told him, you know, what I was gonna testify; I told him about the, you know, about my having everything at hand, how long it was gonna take me; I told him I couldn’t give fair testimony; I told him I didn’t wanna do it; I wasn’t gonna do it and that I was not going to go in there unprepared and not be able to answer the questions and he told me that I knew that he knew, I knew what he meant when he said that I was gonna go to court and that I was to cooperate. And by him telling me that, you know what I mean, I know that he meant for me to do it, no matter what it took it, [sic] how I was to get there. Defendant’s insistence that plaintiff appear in court without more preparation is not enough for this Court to find a public policy violation. Without some evidence which would cause a reasonable employee to have a like understanding, we cannot hold that plaintiff states a valid claim against defendant for wrongful discharge based on her subjective “feelings” that she was being directed to testify untruthfully. In Daniel v. Carolina Sunrock Corp., 110 N.C. App. 376, 430 S.E.2d 306, rev’d, in part, 335 N.C. 233, 436 S.E.2d 835 (1993), we held in a divided decision that the plaintiff stated a claim for wrongful discharge where she was instructed by her employer not to “say anymore than she had to” when testifying in a case involving the employer, and to “ ‘remember that you work for me and represent me and my company.’ ” Id. at 380, 430 S.E.2d at 309. The plaintiff in Daniel considered the statements by her employer to be both threats and pressure to alter her testimony, if necessary. Id. In a dissent, Judge Lewis reasoned that if such innocuous statements as this are sufficient to support a claim for wrongful discharge, then employers will have to stand mute when faced with a similar situation for fear that no matter what they say their employees may perceive it as a threat. Surely an eggshell sensitivity of perception should not override the rule of reasonable application. Such a result would take the public policy exception too far .... Id. at 385, 430 S.E.2d at 312. The dissent also pointed out that more than a year lapsed before Ms. Daniel was discharged from her employment with defendant. Our Supreme Court reversed the majority decision and adopted the reasoning set out in the dissent. Daniel v. Carolina Sunrock Corp., 335 N.C. 233, 436 S.E.2d 835 (1993). The language of Daniel seems particularly appropriate for application to the case before us. We are persuaded that, even if the testimony of plaintiff is taken as entirely true, a reasonable employee would not have understood the employer’s statements to plaintiff to be directives that she testify untruthfully in the case against Mr. Murphy. Therefore, plaintiff’s perceptions, being unsupported by evidence of record, are insufficient for us to find that her discharge contravened the public policies of this state. The judgment of the trial court is Affirmed. Judges WYNN and EDMUNDS concur.

HALL v McREA CORPORATION Docket No. 207233. Submitted June 8, 1999, at Detroit. Decided October 29, 1999, at 9:10 A.M. Leave to appeal sought. Howard Hall brought an action in the Wayne Circuit Court against McRea Corporation, alleging that he, aged fifty-three and diagnosed with amyotrophic lateral sclerosis, was demoted and then fired by the defendant in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., which prohibits age-based employment discrimination, and in violation of the Handieappers’ Civil Rights Act, now known as the Persons with Disabilities Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq., which prohibits handicap-based employment discrimination. The court, Michael J. Talbot, J., granted summary disposition for the defendant, ruling that the plaintiff’s prior representation of total disability in seeking benefits from the Social Security Administration served to judicially estop the plaintiff from maintaining a handicap discrimination claim and that evidentiary support for the age discrimination claim was lacking. The plaintiff appealed. The Court of Appeals held-. 1. Summary disposition of the handicap discrimination claim was inappropriate. A plaintiff’s representation of total disability to the Social Security Administration does not automatically estop the plaintiff from alleging, for purposes of the Handieappers’ Civil Rights Act, that the plaintiff was able to perform the job in question with reasonable accommodation. 2. Under an intentional discrimination theory of age discrimination, the plaintiff must show membership in a protected class, discharge from employment, that the plaintiff was qualified for the position, and that the plaintiff was replaced by a younger person. The plaintiff must prove the elements by a preponderance of the evidence. The burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the discharge. If the defendant satisfies this burden of production, the presumption raised by the prima facie case is rebutted. The burden of proof then shifts back to the plaintiff, who must show that there was a triable issue of fact that the employer’s preferred reasons were not true reasons, but were a mere pretext for discrimination. The prima facie case elements and burden-shifting analysis apply to claims under the Handicappers’ Civil Rights Act as well as to claims under the Civil Rights Act. In this case, the plaintiff failed to establish that the defendant’s proffered reason for discharge, i.e., unsatisfactory job performance, was a mere pretext for discrimination. Thus, the defendant was entitled to summary disposition of both the age discrimination claim and the handicap discrimination claim regardless of the trial court’s error in summarily dismissing the handicap discrimination claim on the basis of judicial estoppel. Affirmed. 1. Civil Rights — Handicappers’ Civil Rights Act — Employment Discrimination — Social Security Disability — Judicial Estoppel. A plaintiff in an action alleging unlawful employment discrimination under the Handicappers’ Civil Rights Act, now the Persons with Disabilities Civil Rights Act, who has previously represented total disability in seeking benefits from the Social Security Administration is not automatically estopped from alleging that the plaintiff is able to perform the job in question with reasonable accommodation for purposes of the Handicappers’ Civil Rights Act (MCL 37.1101 et seq.; MSA 3.550[101] ei seq.). 2. Civil Rights — Employment Discrimination — Discharge — Age — Handicap. A prima facie case and rebuttable presumption of age discrimination with respect to termination of employment is established by a plaintiff who shows that the plaintiff is a member of the protected class, was discharged, was qualified for the position, and was replaced by a younger person; once a prima facie case is made, the defendant must produce evidence of a legitimate, nondiscriminatory reason for termination; if the defendant produces such evidence, the plaintiff must prove by a preponderance of the evidence that the reason offered by the defendant is a mere pretext; the same burden-shifting analysis applies to a claim of handicap discrimination with respect to termination of employment once the plaintiff establishes a prima facie case and rebuttable presumption of discrimination by showing that the plaintiff is handicapped as defined in the Handicappers’ Civil Rights Act, now the Persons with Disabilities Act, but that the handicap is unrelated to the plaintiff’s ability to perform the plaintiff’s job duties with or without reasonable accommodation (MCL 37.1101 et seq., 37.2101 et seq.; MSA 3.550[101] et seq., 3.548[101] et seq.). James J. Harrington, III, and Karen H Safran, for the plaintiff. DeWitt, Balke & Vincent, P.L.C. (by Charles C. DéWitt, Jr., and William B. Balke) for the defendant. Before: Zahra, P.J., and Saad and Collins, JJ. Saad, J. Plaintiff appeals as of right from an order granting defendant’s motion for summary disposition of plaintiff’s claims of age and handicap discrimination. We affirm, albeit on different grounds than those stated by the trial court. I. facts and proceedings Plaintiff was employed as the full-time office manager for defendant, a small auto parts supply business. In November 1995, plaintiff informed Ray Fredrickson, defendant’s president, that he had been diagnosed with amyotrophic lateral sclerosis (als), more commonly known as Lou Gehrig’s disease. Als is an irreversible, degenerative disease that ultimately results in paralysis and death. Plaintiff advised his employer that he was still able to perform his job duties, and he continued to do so full-time for the next four or five months. On March 11, 1996, plaintiff broke his ankle, which required him to take a two-week absence from his work. The broken ankle was unrelated to the ALS condition. While plaintiff was off work, defendant assigned his job duties to Ernie Parpart. Parpart was defendant’s radial drill operator and had not previously performed office or computer duties for defendant. While filling in for plaintiff, Parpart informed Kurt Fredrickson, defendant’s vice president and Ray Fredrickson’s son, that he had discovered errors plaintiff made in quoting prices for customers. When plaintiff returned to work, Kurt Fredrickson appointed Parpart as full-time manager and reduced plaintiff’s hours to twenty a week. Parpart continued to discover plaintiff’s errors and report them to Kurt Fredrickson. Parpart also began to keep a record or log of plaintiff’s shortcomings. The record does not reveal the nature of this “log”; however, it was not defendant’s customary practice to keep a log of this kind on employees’ errors or performance. Kurt Fredrickson and Parpart decided that Parpart should confront plaintiff about his errors. Following a private meeting between Parpart and plaintiff in late April 1996, plaintiff’s employment with defendant ended. The parties dispute the circumstances of plaintiff’s departure from defendant’s company. Plaintiff alleges that Parpart fired him on Kurt Fredrickson’s instructions; Kurt Fredrickson avers that Parpart informed him that plaintiff voluntarily quit. At the time plaintiff left defendant’s employ, plaintiff was fifty-three years old, and Parpart was forty-one. Plaintiff filed a two-count complaint alleging age discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.) MSA 3.548(101) et seq., and disability discrimination in violation of the Handicappers’ Civil Rights Act (hcra) (now known as the Persons with Disabilities Civil Rights Act), MCL 37.1101 et seq.) MSA 3.550(101) et seq. The trial court granted defendant’s motion for summary disposition, holding that judicial estoppel barred plaintiff’s hcra claim and that plaintiff lacked evidentiary support for the age discrimination claim. We affirm, albeit on different grounds. H. ANALYSIS A Plaintiff argues that the trial court should not have considered defendant’s judicial estoppel defense because defendant failed to raise judicial estoppel in its affirmative defenses. Estoppel is an affirmative defense that must be stated in a party’s responsive pleading as originally filed or as amended in accordance with MCR 2.118. MCR 2.111(F)(3)(a). Defendant did not attempt to raise this affirmative defense until it filed its reply brief to plaintiff’s opposition to defendant’s summary disposition motion. In the reply brief, defendant requested leave to amend its affirmative defenses, but it did not make a separate motion for leave to amend as required by MCR 2.118(A)(2). At the summary disposition motion hearing, defendant attempted to move orally to amend the affirmative answers, but the trial court struck the motion on the ground that plaintiff did not have the opportunity to respond. Nonetheless, the trial court granted defendant’s summary disposition motion partly on the basis of judicial estoppel. On appeal, plaintiff argues that the trial court’s denial of the motion to amend the answer precluded the trial court from ordering summary disposition based on judicial estoppel. We agree that the trial court’s orders were inconsistent. However, we need not determine an appropriate remedy. As seen in the following discussion, we are able to affirm the trial court’s summary disposition order on grounds other than judicial estoppel. B Notwithstanding the trial court’s inconsistent orders with respect to defendant’s motion to amend its affirmative defenses, it was inappropriate for the trial court to grant summary disposition on the basis of judicial estoppel. Under recent developments in this area of the law, plaintiff’s handicap discrimination claim was not automatically precluded by his representation of a total disability to the Social Security Administration. According to the judicial estoppel doctrine, a party who has successfully and unequivocally asserted a position in a prior proceeding is estopped from asserting an inconsistent position in a subsequent proceeding. Paschke v Retool Industries, 445 Mich 502, 509-510; 519 NW2d 441 (1994). To establish a prima facie case of discrimination under the HCRA, the plaintiff must show that he is “handicapped” as defined in the statute, but that the handicap is unrelated to his ability to perform the job duties with or without reasonable accommodations. Collins v Blue Cross Blue Shield of Michigan, 228 Mich App 560, 568-569; 579 NW2d 435 (1998); MCL 37.1103(d)(i)(A); MSA 3.550(103)(d)(i)(A). The crux of defendant’s judicial estoppel argument is that plaintiff reported to the Social Security Administration that he was totally disabled, and that plaintiff is therefore judicially estopped in this lawsuit from making the inconsistent claim that his disability did not interfere with his job duties. Defendant relies on Tranker v Figgie Int’l Inc, 221 Mich App 7; 561 NW2d 397 (1997) (Tranker I). In Tranker I, this Court originally held that the plaintiff’s representations to the Social Security Administration that he was totally and permanently disabled precluded a claim under the HCRA. Our Supreme Court remanded Tranker I to this Court to reconsider the issue in light of federal circuit court decisions that allowed claims under the Americans with Disabilities Act (ADA) though the plaintiff previously represented a total disability to the Social Security Administration. 456 Mich 934 (1998). On remand, Tranker v Figgie Int’l, Inc (On Remand), 231 Mich App 115; 585 NW2d 337 (1998) (Tranker II), this Court disavowed its holding that judicial estoppel barred the plaintiff’s handicap discrimination claim. This Court noted that the differences between the HCRA and a claim to the Social Security Administration required the reversal: We agree with the Swanks court that the receipt of social security disability benefits should not bar a subsequent claim under the HCRA for the same reasons that it does not bar a subsequent claim under the ADA. The two acts are designed for different purposes and utilize different standards, and requiring a plaintiff to choose between the acts is unreasonable and illogical. Moreover, we agree that the social security definition of “disability” does not require a finding that the individual cannot perform any job -under any circumstance. Griffith, supra at 382. The ssa [Social Security Administration] does not take into consideration that a disabled individual may be able to perform a job with reasonable accommodations. Therefore, it is not inconsistent that a plaintiff could be disabled under the ssa and still be qualified to perform the duties of his job or a job he is seeking with reasonable accommodation under the hcra. For that reason, we also agree that judicial estoppel should not bar a subsequent handicapper claim. [Tranker II, supra, 231 Mich App 121-122.] The Court noted, however, that “although . . . judicial estoppel does not operate to automatically bar a disability benefit recipient’s handicap discrimination claim, statements made by the plaintiff in his prior application for disability benefits may weigh against him in his subsequent handicap discrimination claim.” Id., 122-123 (emphasis added). We now consider how a plaintiff’s statements to the Social Security Administration might weigh against him in a subsequent discrimination claim. Recently, the United States Supreme Court elaborated on this issue. In Cleveland v Policy Management Systems Corp, 526 US 795; 119 S Ct 1597; 143 L Ed 2d 966 (1999), the Supreme Court held that a plaintiff’s representation of total disability to the Social Security Administration does not automatically estop the plaintiff from alleging, for purposes of an ada claim, that she is able to perform the job in question. However, the Court also held that to survive a summary judgment motion, the plaintiff must explain why her statement to the administration is consistent with her claim that she can perform the essential functions of the job with reasonable accommodation: When faced with a plaintiff’s previous sworn statement asserting “total disability” or the like, the court should require an explanation of any apparent inconsistency with the necessary elements of an ada claim. To defeat summary judgment, that explanation must be sufficient to warrant a reasonable juror’s concluding that, assuming the truth of, or the plaintiff’s good faith belief in, the earlier statement, the plaintiff could nonetheless “perform the essential functions” of her job, with or without “reasonable accommodation.” [Id., 119 S Ct 1604.] The Cleveland requirement of an explanation from the plaintiff is fully consistent with this Court’s holding in Tranker II. If we were unable to affirm the trial court’s grant of summary disposition on different grounds, we would remand this case to the trial court for further proceedings consistent with Cleveland. While plaintiff’s representation to the Social Security Administration does not automatically preclude his handicap discrimination claim, he should not be permitted to proceed without explaining how he could, in good faith, represent a total disability and be able to perform the job with reasonable accommodation. c Although plaintiff’s representation to the Social Security Administration was not sufficient to warrant summary disposition of the handicap discrimination claim, we nonetheless affirm because defendant was entitled under MCR 2.116(C)(10) to summary disposition of the claims of handicap and age discrimination. We affirm because the trial court reached the right result, albeit for the wrong reason. Yerkovich v AAA, 231 Mich App 54, 68; 585 NW2d 318 (1998). This Court reviews decisions on motions for summary disposition de novo. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Motions under MCR 2.116(C)(10) test the factual support of the plaintiff’s claim. Id. The court considers the affidavits, pleadings, depositions, admissions, and other evidence submitted to determine whether a genuine issue of any material fact exists to warrant a trial. Id. Both this Court and the trial court must resolve all reasonable inferences in favor of the non-moving party. Bertrand v Alan Ford, Inc, 449 Mich 606, 618; 537 NW2d 185 (1995). Under an intentional discrimination theory of age discrimination, the plaintiff must show (1) membership in a protected class, (2) discharge from employment, (3) that the plaintiff was qualified for the position, and (4) that he was replaced by a younger person. The plaintiff must prove the elements by a preponderance of the evidence. Lytle v Malady (On Rehearing), 458 Mich 153, 172-173; 579 NW2d 906 (1998). The burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the discharge. Id., 173. At this stage, defendant does not need to persuade the court that it was actually motivated by the preferred reasons. It is sufficient for defendant’s evidence to raise a genuine issue of fact with respect to whether it discriminated against the plaintiff. Id., (citing Texas Dep’t of Community Affairs v Burdine, 450 US 248, 254-255; 101 S Ct 1089; 67 L Ed 2d 207 [1981]). The defendant must set forth, through admissible evidence, the reasons for the adverse employment decision. The explanation must be legally sufficient to justify judgment for the defendant. If the defendant satisfies this burden of production, the presumption raised by the prima facie case is rebutted. Lytle, supra, 174. The burden of proof then shifts back to the plaintiff, who must show “that there was a triable issue of fact that the employer’s proffered reasons were not true reasons, but were a mere pretext for discrimination.” Id. Our Supreme Court has adopted the “intermediate position” for determining the proper summary disposition standard for discrimination claims under the Civil Rights Act: Under this position, disproof of an employer’s articulated reason for an adverse employment decision defeats summary disposition only if such disproof also raises a triable issue that discriminatory animus was a motivating factor underlying the employer’s adverse action. In other words, plaintiff must not merely raise a triable issue that the employer’s proffered reason was pretextual, but that it was a pretext for age or sex discrimination. Therefore, we find that, in the context of summary disposition, a plaintiff must prove discrimination with admissible evidence, either direct or circumstantial, sufficient to permit a reasonable trier of fact to conclude that discrimination was a motivating factor for the adverse action taken by the employer toward the plaintiff. [Id., 175-176.] The prima facie case elements and burden-shifting analysis apply to HCRA claims as well as to Civil Rights Act claims. See Collins, supra, 569, and Rollert, supra. Here, plaintiff has not satisfied this burden. Plaintiff established a prima facie case of discrimination under both theories by alleging that he was first demoted and then terminated from his employment and replaced by a younger, nonhandicapped person. The burden then shifted to defendant, which met its burden of production by offering a legitimate, nondiscriminatory reason for plaintiff’s demotion and termination. Rollert v Dep’t of Civil Service, 228 Mich App 534, 538; 579 NW2d 118 (1998). Vice president Kurt Fredrickson swore in an affidavit that Parpart brought to light problems with plaintiff’s performance and that plaintiff quit his employment after he was confronted regarding errors in his work. This evidence satisfies defendant’s burden of production at the second phase of the prima facie case. Plaintiff has failed to establish that any of these proferred reasons are a pretext for discrimination. Plaintiff does not deny that Parpart reported problems with plaintiff’s performance to Kurt Fredrickson, nor does he challenge the accuracy of Paipart’s reports. Instead, plaintiff relies

DIXIE L. DEERMAN, Plaintiff v. BEVERLY CALIFORNIA CORPORATION, a California Corporation, d/b/a/ BRENTWOOD HILLS NURSING CENTER, and now known as BEVERLY HEALTH AND REHABILITATION SERVICES, INC., a California Corporation, Defendant No. COA98-135-2 (Filed 21 September 1999) Employer and Employee— wrongful discharge from employment — against public policy — motion to dismiss improperly granted Taking the allegations of plaintiff-nurse’s complaint alleging wrongful discharge from employment by defendant based on her advising a patient’s family who solicited her opinion that they should consider changing physicians as true, the trial court erred in granting defendant’s Rule 12(b)(6) motion to dismiss because plaintiff’s termination was motivated by a reason or purpose that is against public policy since the statements which led to her termination were proffered in fulfillment of her “teaching and counseling” obligations as a licensed nurse. N.C.G.S. § 90-171.20(7). Appeal by plaintiff from order filed 30 October 1997 by Judge Robert D. Lewis in Buncombe County Superior Court. Heard in the Court of Appeals 18 March 1999. George W. Moore for plaintiff-appellant. Moore & Van Allen, P.L.L.C., by Randel E. Phillips and Meredith W. Holler, for defendant-appellee. JOHN, Judge. Plaintiff appeals the trial court’s dismissal pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6) (1990) (Rule 12(b)(6)) of her complaint alleging wrongful discharge from employment by defendant. Upon careful review, we reverse. Pertinent factual allegations contained in plaintiffs complaint, filed 11 July 1997, included the following: 2. The Plaintiff is and was at all relevant times herein a registered nurse licensed by the State of North Carolina. 3. The Plaintiff was hired by the Defendant as a registered nurse at its Brentwood Hills Nursing Center in Buncombe County, North Carolina on June 25, 1994; the Plaintiff was promoted to the job of Care Plan Coordinator in January, 1995. 4. The Plaintiff was responsible for managing medical care and treatment for all patients at the Defendant’s facility .... 5. Prior to July, 1995, the Plaintiff had never been advised by administrative or supervisory personnel at the Brentwood Hills Nursing Center that her performance was in any way inadequate or incompetent and she was given a promotion shortly before July, 1995. 6. In July, 1995, the Plaintiff’s salary was based on an hourly wage of $16.50 per hour and she averaged approximately 45 hours each week. 7. In and prior to July of 1995, the Plaintiff was providing nursing services to a patient at the Brentwood Hills Nursing Center; this patient began losing weight, having hallucinations, psychiatric symptoms and acute distress; the Plaintiff documented and reported all of the patient’s medical difficulties to the patient’s physician; the Plaintiff also attempted to contact the patient’s physician by telephone, but the physician would not return her telephone calls; the Plaintiff observed that the patient’s condition was deteriorating and that she was in need of a change of treatment. 8. The Plaintiff was contacted by a member of the patient’s family regarding the patient’s difficulties and deteriorating condition; after the Plaintiff advised the patient’s family as to her concerns, one of the family members asked for the Plaintiff’s advice as to what should be done for the patient and the Plaintiff advised that she would reconsider the choice of physicians in that the appropriate treatment had not been provided for her by her physician. 9. The Defendant, after being advised that the Plaintiff had advised the patient’s family that she would reconsider the choice of physicians for the patient, terminated the Plaintiff from her position of employment with the Defendant; the Defendant’s agents advised the Plaintiff that her termination was due to her advising the family of the patient that they should consider changing physicians for the patient. 10. The Plaintiff at all times performed her duties responsibly and competently while she was employed as a registered nurse for the Defendant. 11. After her discharge, the Plaintiff attempted to find work as a registered nurse at other facilities in the area with no success. . 12. As a result of her discharge, the Plaintiff has lost substantial amounts of income and fringe benefits, including, but not limited to, medical insurance, vacation pay, and retirement benefits .... Plaintiff further alleged that in advising the patient’s family concerning choice of physicians, she had complied with the North Carolina General Statutes and the North Carolina Administrative Code regulating the practice of nursing. Therefore, plaintiff continued, termination of her employment by defendant was in violation of the strong public policy favoring administering of nursing services to those acutely or chronically ill and the supervising by nurses of patients during convalescence and rehabilitation. On 15 August 1997, defendant moved to dismiss plaintiff’s complaint under Rule 12(b)(6) for failure to state a claim upon which relief might be granted. In particular, defendant asserted that [pjlaintiff was terminated for vocalizing to a patient’s family member her criticisms of the treatment provided to the patient by the attending physician, and recommending to the patient’s family member that the family select a different physician. The Defendants’ justification and motive as alleged in [plaintiff’s complaint] does not violate any public policy of North Carolina .... The trial court granted defendant’s motion 30 October 1997, and plaintiff timely appealed. In reviewing the grant of a Rule 12(b)(6) motion, we must consider whether plaintiff was entitled to relief “under any state of facts which could be presented in support of the claim.” Barnaby v. Boardman, 70 N.C. App. 299, 302, 318 S.E.2d 907, 909 (1984), rev’d on other grounds, 313 N.C. 565, 330 S.E.2d 600 (1985). Further, the complaint must be liberally construed, Dixon v. Stuart, 85 N.C. App. 338, 340, 354 S.E.2d 757, 758 (1987), and all well-pleaded allegations therein taken as true, Sutton v. Duke, 277 N.C. 94, 98, 176 S.E.2d 161, 163 (1970). A Rule 12(b)(6) motion should be granted only if the pleading at issue “fails to allege a sufficient legal or factual basis for the claim, or reveals a fact which necessarily defeats the claim.” Wilmoth v. State Farm Mut. Auto Ins. Co., 127 N.C. App. 260, 261, 488 S.E.2d 628, 630, disc. review denied, 347 N.C. 410, 494 S.E.2d 601 (1997). The parties herein do not contest plaintiffs employment status as an “at-will” employee. [I]n the absence of a contractual agreement between an employer and an employee establishing a definite term of employment, the relationship is presumed to be terminable at the will of either party without regard to the quality of performance of either party. Kurtzman v. Applied Analytical Industries, Inc., 347 N.C. 329, 331, 493 S.E.2d 420, 422 (1997). In general, an at-will employee in this state may not maintain a claim for wrongful discharge. Sides v. Duke University, 74 N.C. App. 331, 336, 328 S.E.2d 818, 823, disc. review denied, 314 N.C. 331, 333 S.E.2d 490 and disc. review denied, 314 N.C. 331, 335 S.E.2d 13 (1985), overruled on other grounds, Kurtzman, 347 N.C. at 333, 493 S.E.2d at 423. However, certain exceptions to this general rule have been recognized; therefore, while there may be a right to terminate [at-will employment] for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such [employment] for an unlawful reason or purpose that contravenes public policy. Sides, 74 N.C. App. at 342, 328 S.E.2d at 826. Although our courts have enunciated no “bright-line” test for determining if termination of an at-will employee violates public policy, see Teleflex Information Systems, Inc. v. Arnold, 132 N.C. App. 689, 691, 513 S.E.2d 85, 87 (1999), public policy has been defined as the principle of law that holds no citizen can lawfully do that which has a tendency to be injurious to the public or against the public good, Johnson v. Mayo Yarns, Inc., 126 N.C. App. 292, 296, 484 S.E.2d 840, 842-43, disc. review denied, 346 N.C. 547, 488 S.E.2d 802 (1997). Elaborating further, our Supreme Court has observed: [ajlthough the definition of “public policy” approved by this Court does not include a laundry list of what is or is not “injurious to the public or against the public good,” at the very least public policy is violated when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes. Amos v. Oakdale Knitting Co., 331 N.C. 348, 353, 416 S.E.2d 166, 169 (1992) (footnote omitted). Previous decisions of this State’s appellate courts have recognized claims for wrongful termination based upon the public policy exception when an employee alleges termination based upon political affiliation, see Vereen v. Holden, 121 N.C. App. 779, 784, 468 S.E.2d 471, 474-75 (1996), refusal to violate the United States Department of Transportation’s regulations restricting the driving time of truck drivers, see Coman v. Thomas Manufacturing Co., 325 N.C. 172, 175-76, 381 S.E.2d 445, 447 (1989), refusal to testify untruthfully or incompletely in a court action, see Sides, 74 N.C. App. at 343, 328 S.E.2d at 826-27, testifying at an Employment Security Act proceeding, see Williams v. Hillhaven Corp., 91 N.C. App. 35, 41, 370 S.E.2d 423, 426 (1988), or refusal to cash a delinquent borrower’s certificate of deposit without the notice to the debtor required by the Uniform Commercial Code, see Roberts v. First-Citizens Bank and Trust Co., 124 N.C. App. 713, 721-22, 478 S.E.2d 809, 814-15 (1996). Nonetheless, any exception to the at-will employment doctrine “should be adopted Only with substantial justification grounded in compelling considerations of public policy.” Kurtzman, 347 N.C. at 334, 493 S.E.2d at 423. Whether the complaint sub judice states a claim for wrongful discharge is dependent upon whether plaintiff’s termination because she “advis[ed] the family of [a] patient that they should consider changing physicians for the patient” violated the public policy of North Carolina as set forth in the Nursing Practice Act (NPA), N.C.G.S. §§ 90-171.19 — 90-171.47 (1993), and the administrative regulations promulgated thereunder. G.S. § 90-171.19 expressly provides: The General Assembly of North Carolina finds that mandatory licensure of all who engage in the practice of nursing is necessary to ensure minimum standards of competency and to provide the public safe nursing care. (emphasis added). Further, G.S. § 90-171.21 creates a “Board of Nursing” (the Board) charged, inter alia, with setting minimum standards for educational programs preparing persons for licen-sure under the Act, and with licensing qualified applicants, G.S. § 90-171.23(b)(6), (8). In addition, the Board oversees disciplinary action under the NPA, “caus[ing] the prosecution of all persons violating [provisions of the Act],” G.S. § 90-171.23(b)(7), and is authorized to revoke or suspend the license of a registered nurse or applicant who: (4) Engages in conduct that endangers the public health; (5) Is unfit or incompetent to practice nursing by reason of deliberate or negligent acts or omissions regardless of whether actual injury to the patient is established; [or] (7) Has violated any provision of [the NPA], N.C.G.S. § 90-171.37 (Supp. 1995). Finally, included among administrative rules governing the nursing profession are regulations establishing minimum standards for accredited programs of professional nursing, N.C. Admin. Code Tit. 21, r. 36.0300 — 36.0325 (Dec. 1994), and enumerating the “components of nursing practice,” N.C. Admin. Code Tit. 21, r. 36.0224 (Dec. 1994). The NPA and attendant administrative regulations thus evidence a clear public policy in North Carolina to protect public safety and health by maintaining minimum standards of nursing care. See Winkelman v. Beloit Memorial Hosp., 483 N.W.2d 211, 215-16 (Wis. 1992) (statutes and administrative regulations governing practice of nursing held to represent public policy in wrongful termination action), and Kirk v. Mercy Hosp. Tri-County, 851 S.W.2d 617, 622 (Mo. Ct. App. 1993) (Missouri NPA and regulations thereunder “reveal a clear mandate of public policy ... to train and license a person to engage in the safe and competent practice of nursing”). Plaintiff maintains her termination by defendant contravened this public policy, asserting in her appellate brief that [b]y terminating [plaintiff], the defendant was preventing her from doing that which she was required to do by North Carolina statutes and regulations as a registered nurse. Plaintiff specifically references G.S. § 90-171.20(4) which defines “Nursing” as: a dynamic discipline which includes the caring, counseling, teaching, referring and implementing of prescribed treatment in the prevention and management of illness .... Plaintiff also points to G.S. § 90-171.20(7) which provides: The “practice of nursing by a registered nurse” consists of.. . a. Assessing the patient’s physical and mental health, including the patient’s reaction to illnesses and treatment regimens; [and] g. Providing teaching and counseling about the patient’s health care .... Lastly, plaintiff cites administrative regulations concerning teaching and counseling about the patient’s health care. In pertinent pon tion, these regulations provide: (h) Teaching and Counseling clients is the responsibility of the registered nurse, consistent with G.S. 90-171.20(7)g. (1) teaching and counseling consist of providing accurate and consistent information, demonstrations and guidance to clients, their families or significant others regarding the client’s health status and health care for the purpose of: (A) increasing knowledge; (B) assisting the client to reach an optimum level of health functioning and participation in self care; and (C) promoting the client’s ability to make informed decisions. (2) teaching and counseling include, but are not limited to: (A) assessing the client’s needs and abilities; (B) adapting teaching content and methods to the identified needs and abilities of the client(s); (C) evaluating effectiveness of teaching and counseling; and (D) making referrals to appropriate resources. N.C. Admin. Code Tit. 21, r. 36.0224(h) (Dec. 1994) (emphasis added) [hereinafter Rule 36.0224(h)]. Plaintiff’s public policy argument may thus fairly be summarized as follows: (1) the NPA and regulations of the Board of Nursing describe the practice of nursing as “assessing,” G.S. § 90-171.20(7), a patient’s health, which entails a “responsibility” to communicate, “counsel,” and “providfe] accurate . . . guidance to clients [and] their families,” Rule 36.0224(h); (2) plaintiff’s comments which resulted in her termination were proffered in fulfillment of the foregoing responsibilities; and (3) termination of plaintiff for fulfilling her responsibilities as a practicing nurse in North Carolina therefore violated the public policy of this State. Defendant vigorously retorts that plaintiff’s argument is fallacious. Defendant insists the NPA and the regulatory language upon which plaintiff relies “do[] not impose any requirements or express any prohibitions” and that, even should this Court rule to the contrary, the statements of plaintiff which led to her termination were not “required” by the NPA and regulations thereunder. We disagree. While the language of the NPA and attendant regulations is broad and frequently expressed with a definitional bias, we are not persuaded by defendant’s contention that neither the statutes nor regulations issued thereunder “impose any requirements or express any prohibitions” relevant to plaintiff’s cause herein. For example, G.S. § 90-171.19 recites the purpose of the NPA and the licensure of persons in the practice of nursing as being to “ensure minimum standards of competency and to provide the public safe nursing care.” To the foregoing end, the NPA defines the “practice of nursing by a registered nurse” as “ [providing teaching and counseling about the patient’s health care.” G.S. § 90-171.20(7). Explanatory regulations further provide that “Teaching and Counseling clients is the responsibility of the registered nurse” and consists of “providing accurate and consistent information . . . and guidance to clients [and] their families.” Rule 36.0224(h). Moreover, the regulations also note that “teaching and counseling include . . . making referrals to appropriate resources.” Id. In addition, the Board is required to initiate an investigation upon receipt of information about any practice that might violate any provision of [the NPA] or any rule or regulation promulgated by the Board. G.S. § 90-171.37. The Board is also empowered to take disciplinary action if it determines, inter alia, that a nurse “[i]s unfit or incompetent to practice nursing,” id., which by statute “includes the caring, counseling, teaching, referring and implementing of prescribed treatment,” G.S. § 90-171.20(4), and by regulation incorporates the “responsibility” to “provid[e] accurate and consistent information . . . and guidance to clients [and] their families.” Rule 36.0224(h). The extensive legislative scheme described herein, including regulations adopted thereunder, thus reflects that our General Assembly intended by law to require of licensed nurses a measure of “teaching and counseling,” G.S. § 90-171.20(7), so as to “ensure minimum standards of competency and to provide the public safe nursing care.” G.S. § 90-171.19. Accordingly, defendant’s contention that registered nurses in effect may choose to teach and counsel, but are not obligated to do so by law, misses the mark. In addition, defendant fails to account for the General Assembly’s expression of the necessity of ensuring a “minimum” level of “competent” nursing care to provide for the public health. See id. Defendant interjects that plaintiff in any event was not required to advise her patient’s family that “she would reconsider the choice of physicians.” On the contrary, as observed above, the NPA includes “teaching and counseling” as a function of the practice of nursing. See G.S. § 90-171.20(7). As such, plaintiff was obligated under the facts herein to provide “teaching and counseling” to her patient or the patient’s family “regarding the client’s health status and health care for the purpose of (A) increasing knowledge; (B) assisting the client to reach an optimum level of health functioning . . . ; [and] (D) making referrals to appropriate resources.” Rule 36.0224(h). Interestingly, had plaintiff allegedly been terminated in consequence of her refusal to violate the minimal requirements of her position as described by the General Assembly and the Board, a claim for wrongful termination would clearly lie, see Coman, 325 N.C. at 175-76, 381 S.E.2d at 447 (truck driver who refused to violate laws regarding maximum driving hours stated claim for wrongful termination), because our state’s public policy mandates “minimum standards of competency” for “safe nursing care.” G.S. § 90-171.19. We perceive no legally cognizable distinction between the foregoing circumstance and the allegation that plaintiff was terminated solely for the reason that she complied with statutorily and administratively proscribed minimal competency standards. Compare Sides, 74 N.C. App. at 342-43, 328 S.E.2d at 826-27 (wrongful termination claim valid where nurse terminated after refusing employer’s instructions to lie under oath in violation of state statute prohibiting false testimony); Williams, 91 N.C. App. at 41-42, 370 S.E.2d at 426 (valid wrongful termination claim presented where nurse terminated after having testified truthfully under subpoena at unemployment hearing); Lenzer v. Flaherty, 106 N.C. App. 496, 514-15, 418 S.E.2d 276, 287, disc. review denied, 332 N.C

CATHY HOWARD, Plaintiff-Appellee v. OAKWOOD HOMES CORP., Defendant-Appellant No. COA98-1101 (Filed 6 July 1999) 1. Appeal and Error— appealability — right to arbitrate The right to arbitrate a claim is a substantial right which may be lost if review is delayed and an order denying arbitration is therefore immediately appealable. 2. Employer and Employee— dispute resolution program— employment contract The trial court erred by denying defendant’s motion to compel dispute resolution and stay judicial proceedings where the court concluded that the dispute resolution program (DRP) was unenforceable due to lack of consideration. The evidence was sufficient to show that plaintiff knew that the terms of the DRP would apply to her should she continue her employment and both plaintiff and defendant were mutually bound by the terms of the DRP. Unlike a covenant not to compete, an arbitration agreement requires a new promise from both parties which mutually changes the nature of the employment relationship and this mutual promise is new and sufficient consideration. Agreements to arbitrate are favored and encouraged, whereas covenants not to compete are disfavored. Appeal by defendant from judgment entered 9 July 1998 by Judge Catherine Eagles in Guilford County Superior Court. Heard in the Court of Appeals 20 April 1999. Gray, Newell & Johnson, LLP, by Angela Newell Gray, for plaintiff-appellee. Constangy, Brooks & Smith, LLC, by W.R. Loftis, Jr., and Virginia A. Piekarski, for defendant-appellant. MARTIN, Judge. Defendant Oakwood Homes Corp. appeals the denial of its motion to compel arbitration and stay judicial proceedings in the underlying civil action. Briefly summarized, the record discloses that defendant manufactures and sells homes throughout the United States and employs approximately 9,600 employees to that end. Plaintiff Cathy Howard began employment with defendant on a temporary basis in 1991, and accepted a full time position as an at-will employee in defendant’s Title Department in September 1992. On 1 May 1997, defendant implemented a Dispute Resolution Program (“DRP”) requiring defendant and its employees to submit to dispute resolution as the exclusive means of resolving a variety of employment disputes, including those arising out of an employee’s termination. The program provides that an employee with a claim may submit a written complaint to defendant’s Director of Human Resources. The complaint is then investigated, and an answer is provided to the employee. If the employee is not satisfied, the employee may request non-binding mediation conducted by a mediator provided by the American Arbitration Association. If the defendant and the employee are unable to resolve the dispute through mediation, the employee may elect to submit the dispute to binding arbitration in which the arbitrator may grant any remedy or relief that would have been available through the courts. Under the DRP, all arbitra-tions are conducted in accordance with the Federal Arbitration Act (“FAA”). Prior to the 1 May 1997 effective date of the DRP, on 1 April 1997, defendant’s Vice-President of Human Resources mailed to covered employees a copy of the DRP with a memorandum informing employees that both defendant and the employee would be bound by the program, and that an employee’s decision to continue employment with defendant would constitute an agreement to be bound by the terms of the DRP. Additionally, on 7 April 1997, Paul Macksood, defendant’s Director of Human Resources, distributed an office memorandum to employees informing them of scheduled meetings at which employees were to be instructed on the terms of the DRP and permitted to ask questions about it. On 3 June 1997, following implementation of the DRP, plaintiff’s employment with defendant was terminated for poor performance. Plaintiff complained that she was not issued a final warning prior to her termination. In response to her complaint, Mr. Macksood informed plaintiff that her claim was treated as though it had been brought under the DRP, that it had been investigated accordingly, and although defendant was not required to issue plaintiff a final warning, defendant would provide plaintiff another opportunity to improve her level of performance. Plaintiff’s termination was rescinded. Mr. Macksood reminded plaintiff by letter that she was bound by the DRP and attached a copy of the program thereto. On 18 July 1997 plaintiff was again terminated for poor performance, and on 23 April 1998 she commenced the underlying civil action against defendant, alleging wrongful termination, negligent infliction of emotional distress, negligent supervision, negligent retention, and intentional infliction of emotional distress. On 12 June 1998 defendant moved for an order to stay judicial proceedings and compel plaintiff to submit her claim to dispute resolution pursuant to the DRP. The trial court denied defendant’s motion, concluding that no agreement to arbitrate existed due to lack of consideration. Where a trial court’s order, such as the order sub judice, fails to resolve all issues between all parties in an action, the order is not a final judgment, but rather is interlocutory. First Atlantic Management Corp. v. Dunlea Realty Co., 131 N.C. App. 242, 507 S.E.2d 56 (1998). While an interlocutory order is generally not directly appealable, such an order will be considered “ ‘if the trial court’s decision deprives the appellant of a substantial right which would be lost absent immediate review.’ ” N.C. Ins. Guar. Ass’n v. Burnette, 131 N.C. App. 840, 843, 508 S.E.2d 837, 839 (1998) (citation omitted); see also N.C. Gen. Stat. § 1-277, 7A-27. The right to arbitrate a claim is a substantial right which may be lost if review is delayed, and an order denying arbitration is therefore immediately appealable. Burke v. Wilkins, 131 N.C. App. 687, 688, 507 S.E.2d 913, 914 (1998). In its sole assignment of error, defendant argues that its motion to compel arbitration should have been granted, and that the trial court erred in concluding that the DRP was not an enforceable agreement due to lack of consideration. We agree. We note at the outset that North Carolina “ ‘has a strong public policy favoring the settlement of disputes by arbitration’ ”, and that “[o]ur Supreme Court has held that where there is any doubt concerning the existence of an arbitration agreement, it should be resolved in favor of arbitration.” Martin v. Vance, 133 N.C. App. 116, 120, 514 S.E.2d 306, 309 (1999) (citing Johnston County v. R.N. Rouse & Co., 331 N.C. 88, 91-92, 414 S.E.2d 30, 32 (1992)). Although arbitration is favored in the law, in order to be enforced, the underlying agreement must first be shown to be valid as determined by a common law contract analysis. Routh v. Snap-On Tools Corp., 108 N.C. App. 268, 423 S.E.2d 791 (1992). It is a basic principle of contract law that in order to be valid, an agreement must be supported by adequate consideration. Deans v. Layton, 89 N.C. App. 358, 368, 366 S.E.2d 560, 567, disc. review denied, 322 N.C. 834, 371 S.E.2d 276 (1988) (citation omitted). “Mutual promises may constitute reciprocal consideration to support a contract.” Id. In Vance, supra, this Court recently ruled on the validity of an agreement to arbitrate in the employment context. The plaintiff in Vance had been employed with the defendant since 1990, and in 1994 the defendant implemented an alternative dispute resolution grievance procedure which was set forth in the personnel policy manual. In holding that the agreement was supported by adequate consideration, this Court stated, .. . the agreement to arbitrate does not fail for lack of consideration. Mutual binding promises provide adequate consideration to support a contract. Where each party agrees to be bound by an arbitration agreement, there is sufficient consideration to uphold the agreement. Vance at 122, 514 S.E.2d at 310 (citations omitted). The Vance court noted that other jurisdictions have held that mutual promises to arbitrate constitute sufficient consideration, specifically citing the Fourth Circuit opinions in O’Neil v. Hilton Head Hospital, 115 F.3d 272 (4th Cir. 1997), and Johnson v. Circuit City Stores, 148 F.3d 373 (4th Cir. 1998). We too find such cases instructive. In O’Neil, the plaintiff had been employed with defendant hospital since 1991. In 1994, the plaintiff signed an agreement that she would arbitrate all claims as a condition of her continued employment. O’Neil at 273. The plaintiff was subsequently terminated, and she filed suit, arguing that the agreement was invalid for lack of consideration where it was not binding on the hospital. Id. at 274-75. The Fourth Circuit, in holding that the agreement was mutually binding, stated that the employer’s proffer of the agreement implied that both employer and employee would be bound by the agreement, and that the employer had consistently argued that it was bound by the agreement. Id. at 275. The court held that a mutual agreement existed, and that “a mutual promise to arbitrate constitutes sufficient consideration for this arbitration agreement.” Id. (citation omitted). In Johnson, the Fourth Circuit reversed the district court’s conclusion that an arbitration agreement was void for lack of consideration, and held that an agreement between the parties to be bound by the same rules was sufficient consideration to support the arbitration agreement. Johnson at 378. The court stated, As in O’Neil, both parties in this case agreed to be bound by the arbitration process for the resolution of any claim required to be submitted to arbitration under the Dispute Resolution Agreement. Therefore, we hold that the Dispute Resolution Agreement was supported by adequate consideration. ... no consideration above and beyond the agreement to be bound by the arbitration process was required. Id. Following this Court’s holding in Vance, and applying the reasoning of O’Neil and Johnson, we hold that the mutual promise to abide by the provisions of the DRP and to relinquish the right to pursue certain disputes in court is sufficient consideration to support the DRP agreement. Moreover, we are unpersuaded by plaintiff’s argument that there was no mutual agreement to be bound by the terms of the DRP. As in O’Neil, supra, by proffering the DRP, defendant has at least implicitly agreed to be mutually bound by the DRP, and, as in O’Neil, defendant has consistently argued that it is bound by the DRP and has shown a commitment to arbitration by virtue of this action. Moreover, the DRP provides that all arbitrations are to be conducted pursuant to the FAA. The FAA requires that agreements to arbitrate be in writing, however, such agreements need not be signed. See Real Color Displays, Inc. v. Universal Applied Technologies Corp., 950 F. Supp. 714 (E.D.N.C. 1997) (As in contract law, the FAA imposes no requirement that a written arbitration agreement be signed by the party to be charged, and it is sufficient that a party by act or conduct commits himself to the agreement.). In Vance, we noted that where the language of a contract is clear and unambiguous, we must interpret the contract as written. Vance, supra (citing Robbins v. Trading Post, 253 N.C. 474, 117 S.E.2d 438 (1960)). The Vance court, upon noting that the plaintiff had actually signed the contract, the terms of which unambiguously bound her to arbitration, held it unnecessary to look beyond the writing to determine if mutual assent existed. Id. In the present case, however, plaintiff did not sign the agreement, and, while the terms of the DRP unambiguously bound her to the agreement should she continue employment through 1 May 1997, we look beyond the writing to determine if mutual assent to the terms of the DRP existed. An examination of the record shows that plaintiff continued in defendant’s employment with actual notice that the terms of the DRP would be mutually effective 1 May 1997, and she therefore evidenced her mutual assent to the terms of the DRP by continuing in her employment. Defendant mailed to plaintiffs home on 1 April 1997 a copy of the DRP as well as a memorandum regarding the requirements and effective date of the program. On 7 April 1997 defendant notified employees of the impending implementation, as well as a schedule of meetings where employees could learn and ask questions about the DRP. Plaintiff again received a copy of the DRP by mail on 24 June 1997 accompanied by a letter from Mr. Macksood informing her that her prior employment dispute had been handled pursuant to the terms of the DRP. Moreover, plaintiff, in a complaint filed with the Equal Employment Opportunities Commission, acknowledged existence of the DRP agreement and that the recission of her initial termination occurred as a result of DRP procedures. We hold such evidence to be sufficient to show plaintiff knew that the terms of the DRP would apply to her should she continue in her employment, and that by doing so, plaintiff mutually assented to the program. Both plaintiff and defendant were mutually bound by the terms of the DRP, and such mutuality provided the consideration necessary to support the agreement. We, of course, are advertent to the decisional law in this State which holds that the prospect of continued employment is insufficient consideration to support a covenant not to compete where the employee receives “no change in compensation, commission, duties, nature of employment or other consideration in exchange for signing the agreement....” Cox v. Dine-A-Mate, Inc., 129 N.C. App. 773, 776, 501 S.E.2d 353, 355, disc. review denied, 349 N.C. 355, 525 S.E.2d 449 (1998). In Milner Airco, Inc. v. Morris, 111 N.C. App. 866, 870, 433 S.E.2d 811, 814 (1993), this Court held a non-compete agreement to be unsupported by sufficient consideration where the employer “made no new promise that he was required to keep in return for the promise not to compete.” Plaintiff argues that the principle of such cases should apply here. Unlike a covenant not to compete, however, an arbitration agreement requires a new promise from both parties which mutually changes the nature of the employment relationship in that both parties relinquish their right to pursue certain employment disputes in court. As stated above, this mutual promise is new and sufficient consideration to support the agreement. Moreover, the principle that continued employment alone is insufficient consideration is applied in the context of covenants not to compete which invoke policy concerns and are disfavored by the law, whereas agreements to arbitrate are favored and encouraged. See Cox v. Dine-A-Mate, supra (in order to be valid, covenant not to compete must be shown to be reasonable and not against public policy); Johnston County v. R.N. Rouse & Co., supra (North Carolina has strong public policy favoring agreements to arbitrate). Additionally, plaintiff argues that the DRP is egregious and viola-tive of plaintiffs constitutional rights. However, the trial court’s sole conclusion of law in denying defendant’s motion to compel arbitration pursuant to the DRP was that no agreement to arbitrate exists between the parties “since there was no vaiid consideration.” Plaintiff has not cross-assigned error to the trial court’s failure to find and conclude, as an alternative basis for denying defendant’s motion, that the DRP was egregious and violative of plaintiff’s constitutional rights. We therefore do not consider plaintiff’s argument. See N.C.R. App. P. 10(d) (appellee may cross-assign as error any action or omission of the trial court depriving appellee of alternative basis in law for supporting the trial court’s order); N.C.R. App. P. 10(a) (“scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal in accordance with this Rule 10”); Albrecht v. Dorsett, 131 N.C. App. 502, 508 S.E.2d 319 (1998). The order of the trial court denying defendant’s motion to compel dispute resolution and stay judicial proceedings is hereby reversed, and this case is remanded to the trial court for entry of an order granting defendant’s motion. Reversed and remanded. Judges GREENE and McGEE concur.

ZANNIE GARNER, Plaintiff v. RENTENBACH CONSTRUCTORS INCORPORATED, Defendant and Third-Party Plaintiff v. ALLIED CLINICAL LABORATORIES, Third-Party Defendant No. 255PA98 (Filed 25 June 1999) Employer and Employee— wrongful discharge — drug testing— failure to utilize laboratory The trial court properly granted summary judgment for defendant in a wrongful discharge action arising from a failed drug test where plaintiff alleged that the discharge was wrongful because the test was not performed by an approved laboratory pursuant to N.C.G.S. § 95-232. While N.C.G.S. § 95-230 is an expression of the public policy of North Carolina, the public policy exception to the employment-at-will doctrine is not automatically triggered because defendant violated the statute by failing to use an approved laboratory. Such conduct may subject an employer to liability under the civil penalties provisions of the statute, but plaintiff in this case failed to forecast any evidence that at the time of the testing defendant knew or suspected that the laboratory did not qualify as an approved laboratory and failed to forecast any evidence suggesting that plaintiffs discharge was for an unlawful reason or a purpose that contravenes public policy. Under the doctrine of employment-at-will, an employer may certainly terminate an employee for suspected drug use as part of an effort to maintain a drug free workplace. On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, 129 N.C. App. 624, 501 S.E.2d 83 (1998), reversing an order entered by McHugh, J., on 27 February 1997 in Superior Court, Guilford County, on a claim of wrongful discharge, and remanding for trial. Heard in the Supreme Court 8 March 1999. Mark Floyd Reynolds II for plaintiff-appellee. Carruthers & Roth, RA., by Kenneth R. Keller, for defendant- and third-party plaintiff-appellant. Ogletree, Deakins, Nash, Smoak & Stewart, P.C., by Guy F. Driver, Jr., Barbara R. Lentz, and C. Matthew Keen, for third-party defendant-appellant. FRYE, Justice. The issue in this case is whether the termination of plaintiffs employment based on a positive reading of a drug test constitutes a wrongful discharge because the drug test was not performed consistently with a state statute. We conclude that, on the facts of this case, it does not. Plaintiff, Zannie Gamer, was hired by defendant, Rentenbach Constructors Inc., as a carpenter on 30 June 1993. The parties do not dispute that plaintiff was an at-will employee. In June 1994, defendant implemented a substance-abuse policy requiring employees to submit to random drug testing. Plaintiff received a copy of defendant’s “Drug-Free Workplace Policy” and acknowledged its requirements in writing. On 26 July 1994, plaintiff was asked to give a urine sample for screening, and he agreed to do so. Third-party defendant, Allied Clinical Laboratories (Allied), performed the testing of plaintiff’s urine specimen at its Chattanooga, Tennessee, laboratory. The urine sample attributed to plaintiff tested positive for the presence of canriabinoids (marijuana), and the results were reported to defendant by Allied. On 8 August 1994, plaintiff’s employment was terminated. Plaintiff denies having used illegal drugs. Plaintiff filed this action on 7 August 1995 alleging, inter alia, that his discharge from employment based on positive drug-screening results was wrongful because defendant violated N.C.G.S. § 95-232 by failing to have the testing performed by an “approved laboratory,” as defined by N.C.G.S. § 95-231(1). Defendant filed an answer denying any wrongdoing and asserting a third-party complaint against Allied. Defendant contends that it relied on Allied’s assurances that it was qualified and equipped to perform forensic urine drug testing and on Allied’s report concerning the presence of cannabinoids in plaintiff’s urine sample. Allied filed an answer denying liability. In January 1997, defendant and Allied filed separate motions for summary judgment. Among the evidence considered by the trial court in ruling on the summary judgment motions were excerpts from a transcript of proceedings in plaintiff’s unemployment benefits claim held before the Employment Security Commission on 31 October 1994. Uncontroverted evidence indicated that at the time plaintiff’s urine sample was tested, Allied’s Chattanooga laboratory had a general laboratory accreditation from the College of American Pathologists, which included general screening toxicology, but it was not accredited for forensic urine drug testing. Nor was the laboratory certified by the United States Department of Health and Human Services, National Institute on Drug Abuse (NIDA), for forensic urine drug testing. The trial court also considered an affidavit of Wayne Amann, safety director for defendant, in which he stated that prior to using Allied to perform drug testing, he inquired and was assured by Allied that it was qualified and equipped to perform drug testing of Rentenbach employees and that its laboratories were “ ‘NIDA’ certified.” The trial court granted defendant’s motion for summary judgment, dismissing plaintiff’s claim of wrongful discharge. Allied’s motion for summary judgment was denied. Plaintiff appealed. The Court of Appeals reversed the trial court’s grant of summary judgment and remanded for trial. Discretionary review was allowed by this Court on 8 October 1998. Recently, in Kurtzman v. Applied Analytical Indus., 347 N.C. 329, 493 S.E.2d 420 (1997), this Court reaffirmed the well-established principle that North Carolina is an employment-at-will state. This Court has repeatedly held that in the absence of a contractual agreement between an employer and an employee establishing a definite term of employment, the relationship is presumed to be terminable at the will of either party without regard to the quality of performance of either party. There are limited exceptions. First, . . . parties can remove the at-will presumption by specifying a definite period of employment contractually. Second, federal and state statutes have created exceptions prohibiting employers from discharging employees based on impermissible considerations such as the employee’s age, race, sex, religion, national origin, or disability, or in retaliation for filing certain claims against the employer. Finally, this Court has recognized a public-policy exception to the employment-at-will rule. Id. at 331, 493 S.E.2d at 422 (citations omitted). Our Court of Appeals first recognized a public-policy exception to the employment-at-will doctrine in Sides v. Duke Univ., 74 N.C. App. 331, 328 S.E.2d 818, disc. rev. denied, 314 N.C. 331, 333 S.E.2d 490 (1985). The plaintiff in Sides was a nurse who alleged that she was discharged in retaliation for her refusal to commit perjury in a medical malpractice case against her employer. The Court of Appeals recognized the compelling public interest at stake and held that “notwithstanding that an employment is at will, [no employer] has the right to discharge an employee and deprive him of his livelihood without civil liability because he refuses to testify untruthfully or incompletely in a court case.” Id. at 342, 328 S.E.2d at 826. This Court adopted a public-policy exception to employment at will in Coman v. Thomas Mfg. Co., 325 N.C. 172, 381 S.E.2d 445 (1989). In Coman, the plaintiff, a long-distance truck driver, alleged that his employer required him to drive in excess of the hours allowed by federal Department of Transportation regulations and ordered him to falsify his logs to show compliance with the regulations. The plaintiff refused to do so, and his pay was reduced by fifty percent, which amounted to a constructive discharge. The defendant’s conduct violated not only the federal regulations, but also the public policy of North Carolina because the federal regulations had been adopted in the state administrative code and because “[a]ctions committed against the safety of the traveling public” are contrary to the established public policy of the State. Id. at 176, 381 S.E.2d at 447. This Court held that the plaintiff stated a cause of action for wrongful discharge, expressly adopting the following language from Sides-. “[W]hile there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy. A different interpretation would encourage and sanction lawlessness, which law by its very nature is designed to discourage and prevent.” Id. at 175, 381 S.E.2d at 447 (quoting Sides, 74 N.C. App. at 342, 328 S.E.2d at 826). Three years later, in Amos v. Oakdale Knitting Co., 331 N.C. 348, 416 S.E.2d 166 (1992), we were presented with a case in which three employees were told to work for reduced pay, below the statutory minimum wage, or they would be fired. Recognizing that payment of the minimum wage is the public policy of North Carolina, we held that the defendant-employer violated the public policy by firing the plaintiff-employees for refusing to work for less than the statutory minimum wage. Plaintiff in this case contends that the statutory requirement that employee drug testing be performed by an approved laboratory is an express declaration of policy by the General Assembly and that any employee drug testing performed inconsistently with the Controlled Substance Examination Regulation, N.C.G.S. ch. 95, art. 20 (1993 & Supp. 1998), violates public policy. By enacting the Controlled Substance Examination Regulation, “[t]he General Assembly finds that individuals should be protected from unreliable and inadequate examinations and screening for controlled substances. The purpose of this Article is to establish procedural and other requirements for the administration of controlled substance examinations.” N.C.G.S. § 95-230 (1993). Under North Carolina law, an employer or prospective employer “who requests or requires an examinee to submit to a controlled substance examination shall comply with the procedural requirements” of the Controlled Substance Examination Regulation. N.C.G.S. § 95-232(a) (Supp. 1998). Among the procedural requirements in effect at the relevant time for this case was that an employer or prospective employer “shall use only approved laboratories for screening and confirmation of samples.” N.C.G.S. § 95-232(c) (1993) (amended effective 6 July 1995). An “approved laboratory” is “a clinical chemistry laboratory which performs controlled substances testing and which has demonstrated satisfactory performance in the forensic urine drug testing programs of the United States Department of Health and Human Services or the College of American Pathologists for the type of tests and controlled substances being evaluated.” N.C.G.S. § 95-231(1) (1993). We agree that N.C.G.S. § 95-230 is an expression of the public policy of North Carolina. However, we do not agree with plaintiff that because defendant violated N.C.G.S. § 95-232 by failing to use an approved laboratory, the public policy exception to the employment-at-will doctrine is automatically triggered, giving rise to a claim for wrongful discharge. Under the rationale of Sides, Coman, and Amos, something more than a mere statutory violation is required to sustain a claim of wrongful discharge under the public-policy exception. An employer wrongfully discharges an at-will employee if the termination is done for “an unlawful reason or purpose that contravenes public policy.” Sides, 74 N.C. App. at 342, 328 S.E.2d at 826 (emphasis added); see also Amos, 331 N.C. at 351, 416 S.E.2d at 168; Coman, 325 N.C. at 175, 381 S.E.2d at 447. As stated in Amos, the public-policy exception was “designed to vindicate the rights of employees fired for reasons offensive to the public policy of this State.” Amos, 331 N.C. at 356, 416 S.E.2d at 171 (emphasis added). This language contemplates a degree of intent or wilfulness on the part of the employer. In order to support a claim for wrongful discharge of an at-will employee, the termination itself must be motivated by an unlawful reason or purpose that is against public policy. This case comes to us from the Court of Appeals’ reversal of the trial court’s grant of summary judgment in favor of defendant. “The party moving for summary judgment must establish the lack of any triable issue by showing that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law.” Branks v. Kern, 320 N.C. 621, 623, 359 S.E.2d 780, 782 (1987). “All inferences are to be drawn against the moving party and in favor of the opposing party.” Id. at 624, 359 S.E.2d at 782. Likewise, on appellate review of an order for summary judgment, the evidence is considered in the light most favorable to the nonmoving party. See Raritan River Steel Co. v. Cherry, Bekaert & Holland, 329 N.C. 646, 650, 407 S.E.2d 178, 181 (1991). The forecast of evidence in the instant case, when viewed in the light most favorable to plaintiff as the nonmoving party, shows that defendant violated the Controlled Substance Examination Regulation by failing to utilize an approved laboratory to conduct plaintiff’s drug testing. Such conduct may indeed subject an employer to liability under the civil penalty provisions of the Controlled Substance Examination Regulation. See N.C.G.S. § 95-234 (1993). However, plaintiff in this case has failed to forecast any evidence that at the time of plaintiff’s testing defendant knew, or even suspected, that Allied’s laboratory in Chattanooga did not qualify as an approved laboratory under N.C.G.S. § 95-231(1). Plaintiff also has not forecast any evidence suggesting that his discharge was for an unlawful reason or for a purpose that contravenes public policy. In this case, defendant’s allegedly unlawful conduct was the failure to comply with a regulatory statute governing employee drug-testing procedures. In contrast, defendant’s reason for terminating plaintiff’s employment was permissible. Under the doctrine of employment at will, an employer who may fire an employee for any reason or no reason at all may certainly terminate an employee for suspected drug use as part of an effort to maintain a drug-free workplace. We do not condone defendant’s failure to comply with the Controlled Substance Examination Regulation. Nor do we suggest that employers may take lightly the mandate and purpose of the law as set forth in N.C.G.S. § 95-230. However, on the evidence in the record in this case, plaintiff fails to sustain his claim for wrongful discharge upon defendant’s motion for summary judgment. Accordingly, we hold that the Court of Appeals erred by reversing the trial court’s grant of summary judgment in favor of defendant. REVERSED. . Plaintiff voluntarily dismissed a claim of defamation and abandoned a claim of intentional infliction of emotional distress by failing to address it in his brief before the Court of Appeals. The claim of wrongful discharge is the only one before this Court.

EDELBERG v LECO CORPORATION Docket No. 208126. Submitted May 5, 1999, at Grand Rapids. Decided June 11, 1999, at 9:10 am. Robert Edelberg brought an action in the Berrien Circuit Court against Leco Corporation, alleging wrongful discharge from employment that was terminable at will by either party. The plaintiff contended that he was discharged for exercising rights conferred by the Worker’s Disability Compensation Act (wdca), MCL 418.101 et seq.-, MSA 17.237(101) et seq., and the Michigan Employment Security Act (mesa), MCL 421.1 et seq.-, MSA 17.501 et seq., so as to make the discharge in violation of public policy. The plaintiff argued that he was discharged for refusing to sign a waiver and release of all claims against the defendant and that the requested waiver and release contravened MCL 418.815; MSA 17.237(815) and MCL 421.31; MSA 17.533, which provide that no agreement by an employee to waive rights to compensation under the wdca and to rights to benefits under the mesa, respectively, shall be valid. The court, Lynda A. Tolen, J., granted summary disposition for the defendant, ruling that the plaintiff had failed to state a claim on which relief could be granted. The plaintiff appealed. The Court of Appeals held: In refusing to sign the waiver and release, the plaintiff was not exercising rights conferred by MCL 418.815; MSA 17.237(815) and MCL 421.31; MSA 17.533. These statutes do not grant specific rights to individuals; rather, they serve to invalidate agreements that purport to limit the rights of individuals. Furthermore, the plaintiffs subjective and erroneous belief that by signing the waiver and release he would waive his rights under the wdca and the mesa fails to establish a claim inasmuch as such rights, by statute, cannot be waived. Affirmed. Master and Servant — At-Will Employment — Public Policy Exceptions. An employment contract for an indefinite term is terminable at will by either party; discharge from at-will employment is so contrary to public policy as to be actionable where the employee is discharged in violation of an explicit legislative statement prohibiting discharge of employees who act in accordance with a statutory right or duty, the employee is discharged for the failure or refusal to violate the law in the course of employment, or the employee is discharged for exercising a right conferred by a well-established legislative enactment. John T. Burhans, for the plaintiff. Miller, Johnson, Snell & Cummiskey, P.L.C. (by Jon R. Muth and Jennifer L. Jordan), for the defendant. Before: Hoekstra, P.J., and Saad and R. B. Burns, JJ. Former Court of Appeals judge, sitting on the Court of Appeals by assignment. Saad, J. Plaintiff, Robert Edelberg, appeals as of right from an order granting summary disposition in favor of defendant, Leco Corporation, pursuant to MCR 2.116(C)(8). We affirm. i FACTS AND PROCEEDINGS Plaintiff was suspended pending discharge for sleeping and loafing on the job. Defendant offered to commute this penalty to suspension without pay if plaintiff would sign a “Last Chance Agreement” waiving and releasing any claims, suits, or causes of action against defendant. Because plaintiff refused to sign the agreement, the suspension pending discharge was converted to discharge and, accordingly, plaintiffs employment was terminated. Plaintiff says that he refused to sign the agreement because he was unwilling to waive his rights to unemployment benefits or worker’s compensation. Plaintiff filed this wrongful discharge action, claiming that his termination of employment contravenes Michigan’s public policy. Plaintiff alleges that his termination was contrary to well-established legislative enactments pertaining to prohibitions against waivers of rights under the Worker’s Disability Compensation Act (WDCA), MCL 418.101 et seq.) MSA 17.237(101) et seq., and the Michigan Employment Security Act (MESA), MCL 421.1 et seq.) MSA 17.501 et seq. The trial court granted defendant’s motion for summary disposition, and plaintiff appealed. n ANALYSIS We review de novo a grant of summary disposition that is based on a failure to state a claim. Beaty v Hertzberg & Golden, PC, 456 Mich 247, 253; 571 NW2d 716 (1997). Motions under MCR 2.116(C)(8) test the legal sufficiency of the claim on the pleadings alone to determine if the plaintiff has stated a claim on which relief may be granted. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). The court must grant the motion if no factual development could justify the plaintiff’s claim for relief. Id. Plaintiff was an at-will employee, meaning that either he or his employer could terminate the employment relationship at any time for any, or no, reason. Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 694-695; 316 NW2d 710 (1982). In the absence of a contractual basis for holding otherwise, an employment contract for an indefinite term is terminable at will by either party. Id.; see Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980). In Suchodolski, our Supreme Court recognized three situations where the discharge is so contrary to public policy as to be actionable though the employment is at will. The three public policy exceptions to the at-will doctrine apply when (1) the employee is discharged in violation of an explicit legislative statement prohibiting discharge of employees who act in accordance with a statutory right or duty, (2) the employee is discharged for the failure or refusal to violate the law in the course of employment, and (3) the employee is discharged for exercising a right conferred by a well-established legislative enactment. Id, 695-696. Plaintiff claims that this action is based on the third prong of Suchodolski. The trial court dismissed plaintiffs claim because plaintiffs public policy cause of action does not apply where the employee is discharged in anticipation of a future worker’s compensation claim. While plaintiff concedes that this is a correct statement of the law, he contends that the trial court misunderstood the nature of his claim. Plaintiff asserts that in refusing to sign the Last Chance Agreement, he was exercising his statutory rights and his claim therefore falls under the third prong. Though the trial court may have misapprehended plaintiffs theory, it is well settled that we will affirm a lower court’s ruling when the court reached the right result, though its reasoning may have been incorrect. Yerkovich v AAA, 231 Mich App 54, 68; 585 NW2d 318 (1998). Plaintiff has failed to establish a public policy claim under the third prong. The statutes to which plaintiff refers, the wdca and the mesa, expressly state that the rights created by these statutes cannot be waived: No agreement by an employee to waive his rights to compensation under this act shall be valid .... [MCL 418.815; MSA 17.237(815) (wdca).] No agreement by an individual to wave [sic], release, or commute his rights to benefits or any other rights under this act from an employer shall be valid .... [MCL 421.31; MSA 17.533 (mesa).] Accordingly, plaintiff did not exercise a right conferred by statute when he refused to sign the Last Chance Agreement. The antiwaiver statutes do not grant specific rights to individuals; rather, they serve to invalidate agreements that purport to limit the rights of individuals. The issue, therefore, is whether a statute that does not directly confer rights on a plaintiff is sufficient to satisfy the third prong of the public policy exception. Plaintiff cites Garavaglia v Centra, Inc, 211 Mich App 625; 536 NW2d 805 (1995), for the proposition that a statute need not confer direct rights on an individual for the third prong of the public policy exception to apply. In Garavaglia, the plaintiff was discharged by the defendant, Centra, Inc., because of pressure from the union representing Centra’s employees. Id., 627-628. The union told Centra that there would be “no labor peace” unless the plaintiff was discharged, and Centra complied with the union’s demands. Id. The plaintiff contended that it was a violation of the National Labor Relations Act (NLRA) for the union to influence Centra in their choice of a bargaining representative. 29 USC 158(b)(1)(B). Centra argued that the nlra did not confer rights on the plaintiff so as to form the basis of a claim for breach of public policy. Id., 629. The Garavaglia Court stated that “the fact that the NLRA does not specifically confer rights upon plaintiff is not disposi-tive.” Id., 631. The Court further stated that “the better view is that an employer at will is not free to discharge an employee when the reason for the discharge is an intention on the part of the employer to contravene the public policy of this state.” Id., citing Sventko v Kroger Co, 69 Mich App 644, 647; 245 NW2d 151 (1976). Though the above-quoted language, may, at first glance, appear to create a fourth public policy exception, upon closer examination it becomes clear that Garavaglia does not, in fact, create a fourth exception. The Garavaglia Court ultimately found that the plaintiff’s claim did fall within the third prong of the public policy exception: In any event, plaintiff was entitled to be the employer’s bargaining representative without influences from the union. Under the nlra, a duty is imposed on the union not to influence or interfere with an employer’s choice of a bargaining representative. Accordingly, the nlra did confer a right upon plaintiff to be the bargaining representative without being pressured to leave by the union. Under these circumstances, the third prong of Suchodolski is satisfied because a cause of action may be had where the alleged reason for the discharge is the employee’s exercise of a right conferred by a well-established legislative enactment. [Garavaglia, supra, 631-632.] Although the Court suggested in Garavaglia that a public policy claim might be cognizable where the statute in question does not specifically confer rights on the plaintiff, this statement was extraneous because the nlra actually did confer rights on the plaintiff. Therefore, any comments relating to the intent of the employer to contravene public policy in the absence of statutorily conferred rights was not determinative of the case. Accordingly, that language is merely obiter dictum, and did not create a separate fourth exception under Suchodolski. As noted in Justice Archer’s dissent in Whirlpool Corp v Civil Rights Comm, 425 Mich 527; 390 NW2d 625 (1986), “ ‘Statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor [sic] essential to determination of the case in hand, are, however inuminating, but obiter dicta and lack the force of adjudication.’ ” Id., 539, quoting Hett v Duffy, 346 Mich 456, 461; 78 NW2d 284 (1956). See also Breckon v Franklin Fuel Co, 383 Mich 251, 267; 174 NW2d 836 (1970), overruled on other grounds Smith v Detroit, 388 Mich 637; 202 NW2d 300 (1972). If the obiter dictum were construed as a ruling of law, it would, in effect, expand Suchodolski by creating a fourth public policy exception. We decline to expand Suchodolski beyond our Supreme Court’s decision. Furthermore, we affirm the trial court’s dismissal of plaintiff’s claim because plaintiff’s subjective and erroneous belief that by signing the Last Chance Agreement he would waive his rights under the wdca and the mesa fails to establish a claim under the third prong of the public policy exception to the at-will employment doctrine. As we stated, by statute, he cannot waive these statutory rights. Accordingly, the trial court properly granted summary disposition. Affirmed. Plaintiff contends that he believed he may have suffered adverse effects from his exposure to workplace chemicals. A public policy claim under the first prong is sustainable only where there also is not an applicable statutory prohibition against discharge in retaliation for the conduct at issue. Dudewicz v Norris Schmid, Inc, 443 Mich 68, 79-80; 503 NW2d 645 (1993). Although the parties have not raised the issue, we note that plaintiff is precluded from arguing, under the first prong, that his employment was terminated in retaliation for his exercising his rights under the worker’s compensation statute, because that statute prohibits retaliatory action against an employee “because of the exercise by the employee on behalf of himself or others of a right afforded by this act.” MCL 418.301(11); MSA 17.237(301)(11). Griffey v Prestige Stamping, Inc, 189 Mich App 665, 666-669; 473 NW2d 790 (1991); Wilson v Acacia Park Cemetery Ass’n, 162 Mich App 638, 645-646; 413 NW2d 79 (1987). Also, plaintiff failed to produce any evidence that defendant made any attempt to have plaintiff waive these unwaivable rights.

NOVAK v NATIONWIDE MUTUAL INSURANCE COMPANY Docket No. 204162. Submitted February 2, 1999, at Detroit. Decided June 1, 1999, at 9:05 A.M. Leave to appeal sought. Terry Novak and Novak & Associates Insurance, Inc., brought an action in the Wayne Circuit Court against Nationwide Mutual Insurance Company and other Nationwide Insurance companies (hereinafter Nationwide) and Edward Malinowski, seeking damages for Nationwide’s allegedly illegal termination of Novak’s employment as an insurance sales agent. When plaintiff Novak took over plaintiff agency from his father, he signed an employment agreement with Nationwide that specified, among other things, that he would be enrolled in Nationwide’s agent development program upon successful completion of a training period, that he would begin to receive full commissions on his father’s former accounts if he successfully handled those accounts for two years, that he would not sell insurance for insurance carriers other than Nationwide unless directed to do so by Nationwide, and that the employment contract was terminable at will by either party. Less than two years later, Nationwide terminated Novak’s employment. Novak asserted that the termination of his employment was not subject to the employment-at-will provision of the employment agreement, that he was entitled to continued employment by reason of promissory estoppel or fraudulent and innocent misrepresentations, and that the termination of his employment was improper because it resulted in violations of the Insurance Code, the federal Fair Housing Act, and the Civil Rights Act. Nationwide moved for summary disposition, asserting that, notwithstanding the at-will provision of the employment agreement, Novak’s employment was terminated for cause. The court, Brian K. Zahra, J., granted summary disposition for Nationwide. Plaintiff Novak appealed. The Court of Appeals held: 1. Because the written employment contract contained both an express provision that Novak’s employment was at-will and an express provision that any modification of the contract must be in writing and signed by a representative of Nationwide, Novak’s allegation that he was told by one of Nationwide’s employees that the at-will provision would not apply to him, even if true, would not negate the express language of the written contract that he signed. Accordingly, the trial court properly granted summary disposition for Nationwide with respect to Novak’s common-law wrongful discharge claim. Further, because Novak failed to claim that Nationwide promised just-cause employment to its work force in general, the court properly dismissed Novak’s claim of a right to continued employment based on a legitimate expectation of just-cause employment. 2. Novak alleged that notwithstanding the employment contract’s at-will provision, Nationwide’s termination of his employment was precluded by the anti-redlining provision of § 209 of the Michigan Insurance Code, MCL 500.1209; MSA 24.11209. Subsection 3 of § 209, MCL 500.1209(3); MSA 24.11209(3), provides that a home or automobile insurer is prohibited from canceling an agent’s contract except for malfeasance, breach of fiduciary duty or trust, violation of the Insurance Code, failure to perform in accordance with the parties’ contract, or failure to submit at least twenty-five applications for insurance in the preceding twelve-month period. Subsection 4 of § 209, MCL 500.1209(4); MSA 24.11209(4), provides that subsection 3 is not to be construed as permitting termination of an agent’s authority where the termination is based primarily on the location of the agent’s insurance business or on the actual or expected loss experience of the agent’s business insofar as the loss experience is related to the geographical location of the agent’s business. Subsection 5, MCL 500.1209(5); MSA 24.11209(5), provides that subsection 3 does not apply with respect to an agent that is an employee of the insurer where the property rights in the renewal of insurance policies are owned by the insurer and the termination of the agent’s employment contract does not result in the cancellation or nonrenewal of any home or automobile insurance policy. 3. There is no factual dispute that Novak was an employee of Nationwide or that Nationwide owned the property rights in the renewal of the policies issued to Novak’s customers. Although Novak suggests that the termination of his employment resulted in the cancellation or nonrenewal of home or automobile insurance policies, pointing to a slightly higher rate of cancellation of automobile policies than was usual following the termination, Novak failed to show a single instance in which a home or automobile policy cancellation resulted from the termination of his employment rather than from some legitimate reason. Further, Nationwide’s alleged inefficient servicing of the policies of Novak’s customers after the termination, even if it resulted in those customers seeking insurance with other insurers, does not constitute constructive cancellation of those policies so as to constitute a policy cancellation within the meaning of the language of subsection 5. Accordingly, the trial court properly concluded that the termination of Novak’s employment was subject to subsection 5 and was thus not subject to the restrictions found in subsection 3. 4. Subsection 4 is clearly intended to clarify the nature of the rights and restrictions set forth in subsection 3 and was not meant to stand alone or to create any rights separate and apart from those protected by subsection 3. Accordingly, the exclusionary reference to subsection 3 that is found in subsection 5 is equally applicable to subsection 4, and the trial court properly dismissed Novak’s claim insofar as it was based on § 209 of the Insurance Code. 5. Novak’s claim that the alleged statement by an employee of Nationwide that the at-will provision of the employment contract would not apply to Novak created a right to continued employment under the theory of promissory estoppel is without merit. Because the contract specifically provided that Novak’s employment was to be at-will and that all oral promises were integrated into the written agreement, the circumstances precluded an objective finding of a clear and definite promise of just-cause employment, and the trial court properly dismissed the promissory estoppel claim. 6. Novak’s claim based on fraudulent and innocent misrepresentation is without merit. Novak claimed that he was induced into signing the written agreement by Nationwide’s informing him that he would immediately begin to receive commissions on renewals of policies serviced by his father, that everything in Nationwide’s power would be done to transfer his father’s agency to him, that his office expenses would be paid directly to the creditors, that the at-will provision in the written contract did not apply to him, and that he would be allowed to sell insurance for companies other than Nationwide. 7. A claim of fraudulent misrepresentation requires a showing that a plaintiff suffered damages as a result of acting on a representation that a defendant knew or should have known was false and that was made by the defendant with the intention that the plaintiff act on the representation. Novak failed to establish the elements of a claim of fraudulent misrepresentation. Because Novak acknowledged that the statement concerning commissions was made after the employment contract was signed, it could not have induced Novak to sign the contract. The employment manual that Novak referred to in coqjunction with the allegation concerning the transfer of the agency provides that Nationwide would “sincerely endeavor” to facilitate the transfer if other conditions were met, and there is no evidence that Nationwide failed to do that. There was no showing that the promise with respect to office expenses was false when made, but, rather, the record shows that Nationwide was unable to pay Novak’s office expenses directly because of unforeseen billing difficulties and the apportioning of office expenses between Novak and his non-Nationwide office mate. The allegations relative to the at-will provision and the selling of other insurance were directly contrary to provisions in the written contract, and, thus, Novak could not have reasonably relied on either statement. 8. Novak’s claim that his firing resulted in racial discrimination that was actionable under the federal Fair Housing Act, 42 USC 3604 et seg., was not timely brought. The period of limitation for such a claim is two years. Because the basis of his claim was the economic effect resulting from his firing, the period of limitation began to run on the date of his firing. Thus, the claim under the Fair Housing Act was time-barred three months before Novak brought his action. 9. To the extent that Nationwide may have acted to deny insurance to minorities in violation of § 302 of the Civil Bights Act, MCL 37.2302; MSA 3.548(302), which prohibits racial discrimination in the provision of goods and services, Novak lacked standing to raise that claim. Although Novak may have had an economic interest, § 302 protects the persons who are denied goods and services, not those who are providing those services. Because the Civil Rights Act does not confer standing on insurance agents to bring an action on behalf of persons who are denied insurance by reason of race, Novak lacked standing to bring a claim under § 302 of the Civil Rights Act. Further, because Novak did not show that Nationwide had coerced, intimidated, threatened, or interfered with him as a result of his having aided or encouraged a minority person to exercise any right under the Civil Rights Act, Novak failed to plead a viable action under subsection f of § 701 of the Civil Rights Act, MCL 37.2701(f); MSA 3.548(701)(f). Moreover, because newly licensed drivers are not a protected class under the Civil Rights Act, any attempt by Nationwide to obstruct or to prevent Novak from issuing automobile insurance to newly licensed drivers could not constitute the obstruction or prevention of a person from complying with the act in violation of subsection e of § 701 of the Civil Rights Act, MCL 37.2701(e); MSA 3.548(701)(e). Affirmed. 1. Insurance — Insurance Code — Redlining — Constructive Cancellation op Insurance. Inefficient servicing by an insurer of the policies of its customers, even if such servicing results in those customers seeking insurance with other insurers, does not constitute constructive cancellation of those policies so as to constitute cancellation of a policy within the meaning of the language of subsection 5 of the anti-redlining provisions of § 209 of the Insurance Code (MCL 500.1209[5]; MSA 24.11209[5]) 2. Insurance — Insurance Code — Redlining. Subsection 4 of the anti-redlining provision of § 209 of the Insurance Code is clearly intended to clarify the nature of the rights and restrictions set forth in subsection 3 of § 209 and is not meant to stand alone or to create any rights separate and apart from those protected by subsection 3; accordingly, the exclusionary reference to subsection 3 that is found in subsection 5 of § 209 is equally applicable to subsection 4 (MCL 500.1209[3], [4], [5]; MSA 24.11209[3], [4], [5]). 3. Fraud — Misrepresentation — Reasonable Reliance on Misrepresentation. An actionable claim of fraudulent misrepresentation requires a showing that a plaintiff reasonably relied on the alleged misrepresentation. 4. Civil Rights — Racial Discrimination — Goods and Services — Insurance Agents — Standing. An insurance agent lacks standing to bring an action under the Civil Rights Act for an alleged attempt by an insurance company to deny insurance to minority customers of the agent; the Civil Rights Act protects the rights of persons who are being denied goods and services, not the economic interests of persons who attempt to provide the goods and services (MCL 37.2302; MSA 3.548[302]). 5. Civil Rights — Civil Rights Act — Insurance Agents — Coercion — Actions. An insurance agent that has not aided or encouraged a minority customer to exercise any right protected by the Civil Rights Act in response to the denial of insurance by an insurer may not maintain an action against the insurer under the provision of the Civil Rights Act prohibiting coercion or intimidation of a person who aided or encouraged another in the exercise or enjoyment of a right protected by the Civil Rights Act (MCL 37.2701 [f]; MSA 3.548[701][f|). James W. Bigelow, for the plaintiff. Harvey Kruse, P.C. (by Thomas F. Kauza and William F Rivard), for the defendants. Before: Mackenzie, P.J., and Gribbs and Wilder, JJ. Mackenzie, P.J. Plaintiff Terry Novak (plaintiff), who alleged that the Nationwide defendants (defendants) illegally terminated his position as an insurance sales agent because they found his Detroit-area clients economically undesirable, appeals as of right from an order granting defendants’ motion for summary disposition of his nine-count complaint. We affirm. FACTUAL BACKGROUND In August 1991, in anticipation of assuming responsibility for his father’s insurance agency, Novak & Associates Insurance, Inc., plaintiff signed an employment agreement with defendants. Among other things, the agreement specified that (1) if plaintiff successfully completed a training period, defendants would enroll him in their New Agent Development Program or New Business Agent Program, (2) if plaintiff successfully handled his father’s former accounts for two years, he would then begin to receive full commissions on those accounts, (3) plaintiff was not to sell insurance for any insurance carriers other than defendants unless defendants specifically directed him to do so, and (4) plaintiff’s employment with defendants was terminable at will by either party. In March 1993, defendants terminated plaintiff’s employment. Plaintiff filed suit, claiming, among other things, that the at-will provision in the employment contract was inapplicable to him and that defendants improperly terminated his employment on the basis of his reluctance to move his agency out of Wayne County. Defendants argued that notwithstanding the at-will provision, they properly terminated plaintiffs employment because he (1) commingled personal and business funds, (2) often remitted premium payments to them in an untimely fashion, and (3) allowed unauthorized individuals to sign insurance certificates. STANDARDS OF REVIEW Except for his claim under the federal Fair Housing Act (FHA), 42 USC 3601 et seq., discussed infra, all of plaintiffs claims were dismissed under MCR 2.116(C)(10). We review de novo a trial court’s grant of summary disposition under MCR 2.116(C)(10). Paul v Lee, 455 Mich 204, 210; 568 NW2d 510 (1997). Like the trial court, we look at the entire record, view the evidence in favor of the nonmoving party, and decide if there exists a relevant factual issue about which reasonable minds might differ. Id. If, as in the instant case, the nonmoving party would bear the burden of proof at trial, that party, in order to avoid summary disposition, must provide documentary evidence showing the existence of a disputable issue. Quinto v Cross & Peters Co, 451 Mich 358, 362; 574 NW2d 314 (1996). The trial court dismissed plaintiff’s FHA claim under MCR 2.116(C)(7) because it concluded that the period of limitation for the claim had run. We review a grant of summary disposition under MCR 2.116(C)(7) de novo. Iovino v Michigan, 228 Mich App 125, 131; 577 NW2d 193 (1998). We consider all documentary evidence submitted by the parties and accept the plaintiff’s well-pleaded allegations, except those contradicted by documentary evidence, as true. Id.; Patterson v Kleiman, 447 Mich 429, 433-435; 526 NW2d 879 (1994). We view the uncontradicted allegations in favor of the plaintiff and determine whether the claim is time-barred. Id. WRONGFUL DISCHARGE AND BREACH OF LEGITIMATE EXPECTATIONS Plaintiff argues that the termination of his employment violated an implied just-cause employment agreement and that the trial court therefore should not have summarily disposed of his wrongful discharge and breach of legitimate expectations claims. He bases this argument on an alleged oral statement by one of defendants’ employees that the at-will termination provision in the written employment contract would not apply to him. This alleged oral statement, however, did not negate the at-will provision in the written contract, which also contained a provision requiring that modifications of the contract be in writing and be signed by a company representative. When an employment contract expressly provides for employment at will, a plaintiff, by signing the contract, assents to employment at will and cannot maintain a cause of action based on a prior oral agreement for just-cause employment. Nieves v Bell Industries, Inc, 204 Mich App 459, 463; 517 NW2d 235 (1994); see also Stopczynski v Ford Motor Co, 200 Mich App 190, 193; 503 NW2d 912 (1993). Thus, the trial court properly dismissed plaintiff’s wrongful discharge claim. The court also properly dismissed plaintiff’s breach of legitimate expectations claim, because a claim based on legitimate expectations rests on the employer’s promises to the work force in general — for example, promises contained in a company handbook — rather than on promises made to an individual employee, and because plaintiff made no claim that defendants promised just-cause employment to the work force in general. Nieves, supra at 464; see also Dolan v Continental Airlines/Continental Express, 454 Mich 373, 384, 386-387; 563 NW2d 23 (1997). INSURANCE CODE ANTI-REDLINING PROVISIONS Plaintiff argues that notwithstanding the employment contract’s at-will provision, defendants nevertheless improperly terminated his employment because the Insurance Code precludes the termination of an agent’s employment for certain specified reasons even if an employment contract otherwise allows for it. Specifically, plaintiff claims that there was a question of fact regarding whether defendants discharged him because of the loss history and geographic location of his Wayne County agency and thereby violated the anti-redlining provisions contained in § 209 of the Michigan Insurance Code, MCL 500.1209; MSA 24.11209, which states, in pertinent part, as follows: (3) As a condition of maintaining its authority to transact insurance in this state, an insurer transacting automobile insurance or home insurance in this state shall not cancel an agent’s contract. . . except for 1 or more of the following reasons: (a) Malfeasance. (b) Breach of fiduciary duty or trust. (c) A violation of this act. (d) Failure to perform as provided by the contract between the parties. (e) Submission of less than 25 applications for home insurance and automobile insurance within the immediately preceding 12-month period. (4) Subsection (3) shall not be construed as permitting a termination of an agent’s authority based primarily upon any of the following: (a) The geographic location of the agent’s home insurance or automobile insurance business. (b) The actual or expected loss experience of the agent’s automobile or home insurance business, related in whole or in part to the geographical location of that business. * * * (5) Subsection (3) . . . shall not apply with respect to an agent who is an employee of an insurer ... if the property rights in the renewal are owned by the insurer . . . and the cancellation or termination of the agent’s contract does not result in the cancellation or nonrenewal of any home or automobile insurance policy. [Emphasis added.] Plaintiff argues that he did not fall within the parameters of subsection 5 — and that he was therefore protected by subsections 3 and 4 — because his discharge resulted in the cancellation of home and automobile insurance policies. He additionally argues that even if subsection 5 had

PAMELA A. MARTIN, Plaintiff v. JEFFREY M. VANCE, RONALD BEAUVAIS, and DUKE UNIVERSITY, Defendants No. COA98-649 (Filed 4 May 1999) 1. Appeal and Error— appealability — order denying arbitration An order denying arbitration is immediately appealable because it involves a substantial right (the right to arbitrate claims) which might be lost if the appeal is delayed. 2. Arbitration— agreement to arbitrate — employment contract A trial court order denying defendant’s’ motions to dismiss and to stay proceedings pending final arbitration was reversed and remanded where plaintiffs employment contract included an agreement to arbitrate the claims plaintiff asserts. The grievance procedure as set out in the Personnel Policy Manual became a part of plaintiffs employment contract because it had been included in the Manual and it is apparent that plaintiff signed a transfer/upgrade request knowing that any claim arising out of her employment would be subject to resolution pursuant to the grievance procedure. Moreover, she took advantage of the grievance procedure by initiating internal review of her termination and seeking reinstatement. Appeal by defendants from an order entered 31 March 1998 by Judge David Q. LaBarre and filed 14 April 1998 in Orange County Superior Court. Heard in the Court of Appeals 27 January 1999. Baddour & Milner, PLLC, by Robert Terrell Milner, for plaintiff - appellee. Fulbright & Jaworski, L.L.R, by John M. Simpson and Karen M. Moran, for defendants-appellants. WALKER, Judge. On 30 December 1997, plaintiff filed this action against her former employer, Duke University (Duke), and her former supervisors Jeffrey Vance (Vance) and Ronald Beauvais (Beauvais) alleging battery, intentional infliction of emotional distress, tortious interference with contract, and negligent retention. Plaintiff had been employed at Duke since 1990 as a nonexempt biweekly employee who was not covered by a collective bargaining agreement. This meant she was paid every two weeks and was subject to federal overtime restrictions. She was not employed for a fixed period of time and did not have a written employment contract. Since 5 February 1996, plaintiff had worked as Staff Assistant to Vance, an Associate Professor in Neurology at Duke University Medical Center. Beauvais was the Administrator of the Department of Neurology. Vance and Beauvais accused plaintiff of falsifying her time cards which led to her termination by Duke on 28 February 1997. As plaintiff gathered her belongings to leave, she alleges that Vance committed a battery upon her by standing in close proximity to her and then shoving her away from her computer. Plaintiff also alleges that during her employment with Vance she was subjected to a pattern of verbal abuse, insults, and humiliation that led to her diagnosis of clinical depression. Further, she alleges that Vance and Beauvais interfered with her “employment contract. . . with Duke” by representing to her that Duke did not pay overtime but approved her use of “comp time” to make up for the extra hours that she had worked. On 29 January 1997, prior to her termination, plaintiff requested a transfer to another department at Duke. The transfer/upgrade request form that plaintiff filed contained a certification which she signed. That certification read in part: 6. I hereby agree that any dispute or controversy arising out of or related to my employment or termination by Duke University shall be subject to final and binding resolution through the applicable grievance or dispute resolution procedure, as may be periodically amended and which is available upon request from the department of Human Resources. The grievance procedure referred to in the certification was entitled the “Nonexempt (Biweekly) Employee Grievance Procedure” and was contained in the Duke University Personnel Policy Manual. The grievance procedure had been in place at Duke since 1994, and it called for an outside arbitrator to hear all grievances involving the involuntary termination of an employee such as plaintiff. Prior to the filing of her complaint, plaintiff availed herself of the grievance procedure and sought reinstatement through the internal portion of the process, proceeding to the “Second Step.” In response to plaintiffs complaint, defendants filed a motion to dismiss and a motion to stay these proceedings pending completion of arbitration. After a hearing on motions, the trial court made the following findings and conclusions: FINDINGS OF FACT 1. Plaintiff was employed by Defendant Duke University during all times relevant to this action. 2. At no time did Plaintiff sign a written contract of employment with Duke University. 3. Plaintiff signed the document entitled Duke University Transfer/Upgrade Request which contained a clause referring to binding arbitration. Plaintiff never received the transfer she requested. 4. Duke University’s Personnel Policy Manual is a unilaterally promulgated employment policy manual which outlines grievance procedures purporting to provide for the arbitration of certain disputes between Duke University and its employees. CONCLUSIONS OF LAW 1. This Court has personal jurisdiction over the parties to this action, and subject matter jurisdiction over the claims asserted in this action. 2. Plaintiff was employed by Defendant Duke University as an employee-at-will during all times relevant to this action. 3. Pursuant to Walker v. Westinshouse Electric Corp. 77 N.C. App. 253, 335 S.E.2d 79 (1985), Duke University’s unilaterally promulgated Personnel Policy Manual, submitted by Defendants as evidence of a contract between Duke University and Plaintiff to submit disputes such as those at issue in this action to binding arbitration, is not a part of Plaintiff’s employment contract and is therefore not a contract as a matter of law. 4. The document entitled “Duke University Transfer/Upgrade Request” is not a contractual agreement in any sense, is not a part of Plaintiff’s employment contract and is therefore not a contract as a matter of law. The trial court denied defendants’ motions to dismiss and to stay proceedings pending arbitration. Ordinarily, this appeal would be interlocutory because it does not determine all of the issues between the parties and directs some further proceeding preliminary to a final judgment. Futrelle v. Duke University, 127 N.C. App. 244, 247, 488 S.E.2d 635, 638, disc. review denied, 347 N.C. 398, 494 S.E.2d 412 (1997). However, an order denying arbitration is immediately appealable because it involves a substantial right, the right to arbitrate claims, which might be lost if appeal is delayed. Burke v. Wilkins, 131 N.C. App. 687, 688, 507 S.E.2d 913, 914 (1998). On appeal, defendants contend that the grievance procedure was a part of plaintiff’s employment contract and that this was evidenced by her signing of the transfer/upgrade request. Plaintiff argues that the grievance procedure and policy manual were not part of her employment contract and that the transfer/upgrade request did not constitute a supplement to her employment contract because there was no mutuality of assent to the agreement and there was no voluntary waiver of plaintiffs rights to judicial process. At the outset, we note that “North Carolina has a strong public policy favoring the settlement of disputes by arbitration.” Johnston County v. R.N. Rouse & Co., 331 N.C. 88, 91, 414 S.E.2d 30, 32 (1992). Our review confirms this position is consistent with other jurisdictions including “a liberal federal policy favoring arbitration agreements.” Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 74 L. Ed. 2d 765 (1983); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 114 L. Ed. 2d 26 (1991). Our Supreme Court has held that where there is any doubt concerning the existence of an arbitration agreement, it should be resolved in favor of arbitration. R.N. Rouse & Co., 331 N.C. at 92, 414 S.E.2d at 32. The validity of an arbitration agreement is determined by the application of basic contract law principles. Futrelle, 127 N.C. App. 244, 488 S.E.2d 635; Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 134 L. Ed. 2d 902 (1996). The dispositive issue here is whether the plaintiff, in her contract of employment with Duke, agreed to arbitration of her claims in accordance with the procedure set forth in the Personnel Policy Manual. The trial court in its denial of defendants’ motion, cited Walker v. Westinghouse Electric Corp., 77 N.C. App. 253, 335 S.E.2d 79 (1985), disc. review denied, 315 N.C. 597, 341 S.E.2d 39 (1986) where the plaintiff employee alleged he was wrongfully discharged by his employer and claimed that an employee handbook was part of his employment contract which the employer had violated. Under the facts of that case, this Court held that the handbook was not part of the plaintiffs at-will employment contract. Id. There was no issue regarding how the dispute would be resolved. This Court quoted extensively from the employee handbook and concluded that the handbook “did not become an understanding binding on the employer.” Id. at 260, 335 S.E.2d at 84. However, Walker is inapposite here as there is evidence beyond the promulgation of the policy manual that indicates the grievance procedure was made part of plaintiffs employment contract. In this case, we examine a number of factors to determine if plaintiff’s contract of employment included an agreement to arbitrate her claims. First, plaintiff had worked for Duke since 1990 and the Personnel Policy Manual containing the grievance procedure had existed since 1994. Also, in her complaint, plaintiff asserted she had a contract of employment with Duke although she denied in her affidavit the grievance procedure was ever explained to her. However, she does not claim that she was unaware of the grievance procedure, and, in fact, plaintiff availed herself of the grievance procedure and began proceedings prior to the initiation of this action. Further, plaintiff sought a transfer to another department and signed the transfer/upgrade request which contained an explicit certification that any dispute or controversy arising out of or related to her employment or termination by Duke would be subject to resolution through the applicable grievance or dispute resolution procedure. An employment-at-will contract may be supplemented by additional agreements which are enforceable. Walker, 77 N.C. App. at 261, 335 S.E.2d at 84. Before a valid contract can exist, there must be a mutual agreement between the parties as to the terms of the contract. Normile v. Miller and Segal v. Miller, 313 N.C. 98, 326 S.E.2d 11 (1985). “If a question arises concerning a party’s assent to a written instrument, the court must first examine the written instrument to ascertain the intention of the parties.” Routh v. Snap-On Tools Corp., 108 N.C. App. 268, 273, 423 S.E.2d 791, 795 (1992). If the language of the contract is “clear and unambiguous,” the court must interpret the contract as written. Robbins v. Trading Post, 253 N.C. 474, 117 S.E.2d 438 (1960). The transfer/upgrade request, which plaintiff signed, is a “clear and unambiguous” certification of her willingness to submit disputes arising from her employment with Duke to the grievance procedure. As the language in the agreement is unambiguous, we need not look beyond the writing itself to determine whether there was mutual assent to the agreement. Furthermore, plaintiff’s execution of this document charges her with knowledge and assent to the contents of the agreement. Biesecker v. Biesecker, 62 N.C. App. 282, 302 S.E.2d 826 (1983). In this State it is held that one who signs a paper writing is under a duty to ascertain its contents, and in the absence of a showing that he was wilfully misled or misinformed by the defendant as to these contents ... he is held to have signed with full knowledge and assent as to what is therein contained. Gas House, Inc. v. Southern Bell Telephone Co., 289 N.C. 175, 180, 221 S.E.2d 499, 503 (1976) (quoting Harris v. Bingham, 246 N.C. 77, 97 S.E.2d 453 (1957) and Williams v. Williams, 220 N.C. 806, 18 S.E.2d 364 (1941)), overruled on other grounds, State ex rel. Utilities Comm. v. Southern Bell, 307 N.C. 541, 299 S.E.2d 763 (1983). Moreover, the agreement to arbitrate does not fail for lack of consideration. Mutual binding promises provide adequate consideration to support a contract. Casualty Co. v. Funderburg, 264 N.C. 131, 140 S.E.2d 750 (1965); Kirby v. Board of Education, 230 N.C. 619, 55 S.E.2d 322 (1949). Where each party agrees to be bound by an arbitration agreement, there is sufficient consideration to uphold the agreement. See Johnson v. Circuit City Stores, 148 F.3d 373 (4th Cir. 1998). Other jurisdictions have held that arbitration agreements evidenced by similar circumstances as here are enforceable. In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 114 L. Ed. 2d 26 (1991), the plaintiff was required by his employer to register as a securities representative with several securities exchanges including the New York Stock Exchange. Included in the registration materials was a requirement that the plaintiff agree to arbitrate any disputes that arose between him and his employer and which were required to be arbitrated by the rules of the stock exchange. Id. After the plaintiff was terminated by his employer at the age of 62, he sued under the Age Discrimination in Employment Act and the employer moved to compel arbitration. Id. The Supreme Court affirmed the Fourth Circuit Court of Appeals and held that the claim was arbitra-ble under the agreement signed by the plaintiff with the stock exchange. Id. In O’Neil v. Hilton Head Hospital, 115 F.3d 272 (4th Cir. 1997), the plaintiff, while on leave from work, signed an acknowledgment form when she received an employee handbook from the new owners of the defendant hospital. Id. at 273. The acknowledgment form contained an agreement to arbitrate all claims arising out of plaintiff’s employment. Id. The plaintiff argued that the arbitration agreement failed for lack of mutual assent claiming that the hospital had not agreed to be bound. The Fourth Circuit Court of Appeals disagreed and held that by submitting the arbitration policy to plaintiff, the defendant hospital had implicitly agreed to be bound by the policy. Id. at 275. Noting the strong federal policy supporting arbitration of disputes, the trial court reversed and remanded the case for a stay pending arbitration. Id. at 276. Similarly, in Patterson v. Tenet Healthcare, Inc., 113 F.3d 832 (8th Cir. 1997), plaintiff was employed at a hospital owned by defendant, and, when she received a copy of Tenet’s employee handbook, she signed an arbitration clause set out on the last page of the handbook. Id. at 834. The trial court found that the signed arbitration clause constituted a contract and dismissed the plaintiffs complaint. Id. On appeal, Patterson argued that Missouri law ordinarily did not consider an employee handbook part of an employment contract because it lacks the usual prerequisites to a contract. Id. at 835. However, the Eighth Circuit Court of Appeals found that although the employee handbook was not a contract, the arbitration clause formed a separate contract because it was separate and distinct from the remainder of the handbook. Id. Thus, the arbitration agreement was enforceable for all claims that the plaintiff brought against the hospital. In Johnson v. Circuit City Stores, 148 F.3d 373 (4th Cir. 1998), the plaintiff applied for a job with defendant and signed her job application which contained an arbitration agreement whereby any claims arising out of her application or her employment with defendant would be submitted to arbitration. The district court held that the agreement was not enforceable for lack of consideration and denied defendant’s motion for summary judgment. Id. at 377. Pursuant to their earlier decision in O’Neil, the Fourth Circuit Court of Appeals reversed the trial court holding that where both parties agree to be bound by the arbitration, there was sufficient consideration to enforce the contract. Id. at 379. In each of the above cases, the court held the plaintiff was bound by an arbitration agreement which was proffered by an employer, prospective employer, or a regulating body and which was not part of a formal employment contract. Here, plaintiff alleged in her complaint that she had an employment contract with Duke during her seven years of employment. The grievance procedure had been included in the Personnel Policy Manual since 1994. With this additional background, it is apparent that plaintiff signed the transfer/upgrade request document knowing that any claim arising out of her employment would be subject to resolution pursuant to the grievance procedure. Moreover, plaintiff took advantage of the grievance procedure by initiating the internal review of her termination and seeking reinstatement. Thus, the grievance procedure as set out in the Personnel Policy Manual became a part of plaintiffs employment contract. The plaintiff cites Routh, 108 N.C. App. 268, 423 S.E.2d 791, in support of her contention that there was no agreement. In Routh, the plaintiff signed an agreement which terminated the business relationship between the parties and which also included an arbitration agreement. Id. However, an additional term to the agreement had been placed at the end of the standard form and plaintiff only signed on the line after the added term, not on the original line designated for his signature. Id. This Court, in affirming the trial court’s holding that the arbitration agreement was invalid, held that there was no meeting of the minds by the parties with regard to the agreement to arbitrate. Id. at 274, 423 S.E.2d at 795. We reasoned that an ambiguity existed in the agreement because of the added term and the signature after the added term and that extrinsic evidence was properly admitted to interpret the contract. Id. at 273, 423 S.E.2d at 795. The extrinsic evidence indicated that the parties had not agreed on the term requiring arbitration. Id. There is no such ambiguity in the agreement signed by the plaintiff and she makes no such contention. Plaintiff also contends that the agreement was not enforceable because she did not make a voluntary waiver of her rights to judicial process and cites Prudential Ins. Co. of America v. Lai, 42 F.3d 1299 (9th Cir. 1994), cert. denied, 516 U.S. 812, 133 L. Ed. 2d 24 (1995) as authority. In Lai, the Ninth Circuit Court of Appeals held that a plaintiff must make a knowing and voluntary waiver of her right to litigate a claim brought under Title VII for sexual discrimination. Id. Lai is distinguishable, however, because it deals specifically with federal statutory claims arising out of the employment. Further, the agreement only required those claims selected by the employer to be arbitrated. In this case, plaintiffs claims are not statutorily based nor were they selected by the employer to be arbitrated. The parties’ agreement to abide by the grievance procedure includes all claims arising out of the employment relationship. Moreover, as noted above, plaintiff is charged with knowledge of and assent to the agreement which she signed. See Biesecker, 62 N.C. App. 282, 302 S.E.2d 826. We conclude that plaintiff’s employment contract included an agreement to arbitrate plaintiff’s claims which she now asserts. For the reasons stated herein, we reverse the order of the trial court denying defendants’ motions to dismiss and to stay the proceedings pending final arbitration and remand for entry of an order staying proceedings pending final arbitration. Reversed and remanded. Judges LEWIS and TIMMONS-GOODSON concur.

Thomas Wooster vs. Abdow Corporation.. No. 97-P-702. Hampshire. April 17, 1998. April 28, 1999. Present: Armstrong, Lenk, & Beck, JJ. Handicapped Persons. Practice, Civil, Summary judgment. Anti-Discrimination Law, Burden of proof, Termination of employment, Handicap, Age. Employment, Discrimination, Termination. In an action alleging age and handicap discrimination in employment, the materials presented on summary judgment raised a genuine issue of material fact whether the defendant’s stated reasons for terminating the plaintiff were pretexts for handicap discrimination and, as to that claim, the matter was remanded for trial. [669-673] Civil action commenced in the Superior Court Department on February 22, 1994. The case was heard by John F. Murphy, Jr., J., on a motion for summary judgment. Maurice M. Cahillane for the plaintiff. Robert L. Leonard for the defendant. Beck, J. The issue in this age and handicap discrimination case is whether the plaintiff produced sufficient evidence of pretext “to clear the summary judgment hurdle.” Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995). The plaintiff, a manager in the defendant’s restaurant business, claims his discharge was in violation of State and Federal law, including G. L. c. 151B, § 4. A Superior Court judge allowed the defendant’s motion for summary judgment. The plaintiff appeals, arguing there was sufficient evidence of pretext to warrant sending the case to a jury. As to the claim of handicap discrimination, we agree. 1. Summary judgment issues. We address first certain questions concerning the defendant’s summary judgment materials, because their resolution affects the recitation of the facts. Among the documents submitted in support of its motion for summary judgment, the defendant included an affidavit of its president, Ronald Abdow, setting out the names of those who were familiar with the plaintiff’s work and attaching “a statement of Abdow to the Massachusetts Commission Against Discrimination (‘MCAD’) ... in response to [the plaintiff’s] claim of discrimination.” In the affidavit, Ronald Abdow claimed to have “personal knowledge of some of the facts” in the attachment. The attachment itself was a letter from Abdow’s lawyer on law firm letterhead, setting out Abdow’s defense to the plaintiff’s MCAD complaint. Under the lawyer’s signature was that of Ronald Abdow, on behalf of the corporation, stating that “[t]he above information is correct to the best of knowledge and belief [sz'c].” Attached to the letter were various other documents, which supported some, but not all, of the factual allegations included in the letter. In his opposition to the defendant’s motion for summary judgment in Superior Court, the plaintiff argued that the defendant’s “[employee] turnover rate statistics,” as set out in the letter, “are not competent or admissible as evidence.” He claimed the defendant destroyed the documents on which the statistics were based. On appeal, the plaintiff again complains of the destruction of the records used to calculate the turnover rates. He also challenges the defendant’s use of the lawyer’s letter, which was drafted after the plaintiff’s claim of discrimination, and argues generally that the defendant’s allegations as to the plaintiff’s performance are “unsupported by admissible documentary evidence.” While these complaints may well have substantive merit, they are not properly before us because the plaintiff did not move to strike the inadmissible portions of Abdow’s affidavit. See Madsen v. Erwin, 395 Mass. 715,721 (1985). See also Mass.R.Civ. P. 56(e), 365 Mass. 824 (1974); Wright, Miller, & Kane, Federal Practice and Procedure § 2738, at 372-375 (1998). Compare Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 123 n.l (1997) (Supreme Judicial Court disregarded several parts of summary judgment affidavit because they contained hearsay and the affidavit had been challenged by motion to strike). The Superior Court judge was therefore within his discretion in considering the defendant’s affidavit. Madsen v. Erwin, supra. Moreover, there is no evidence in the record that the plaintiff requested copies of the underlying employee turnover rate documents. He sent the defendant an interrogatory asking “whether such data or statistics are routinely kept by the company.” The company responded that “[t]he payroll records from which the information was compiled are maintained by the company but reports regarding the turnover rate were not usually kept by the company for an extended period of time.” An explicit request to produce the data would have established whether the records survived. 2. The facts. Neither party disputes that the other met its initial burden in the first two stages of the discrimination analysis. See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass, at 440-442, and cases cited. The defendant, Abdow Corporation (Abdow), is a family-owned chain of nineteen restaurants in central Massachusetts. There are four specialty or dinner restaurants; the remainder are family restaurants. The plaintiff, Thomas Wooster, began work for Abdow as a management trainee at one of the defendant’s family restaurants in 1981, when he was thirty-six. In 1983, he became shift manager at the P.J. Scott dinner house restaurant in Chicopee and was promoted to executive manager of that restaurant four months later. He remained in that position until he was discharged in May, 1992, at the age of forty-seven. His replacement was a younger man, apparently with no handicap. a. The plaintiff’s prima facie case: evidence regarding handicap and age. Because the defendant does not argue that the plaintiff has failed to establish a prima facie case of either age or handicap discrimination, for purposes of the appeal we assume the plaintiff has done so. See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. at 128. See also Dartt v. Browning-Ferris Indus., Inc. (Mass.), All Mass. 1, 3 (1998), setting out the standards for proof of a prima facie case. The plaintiff’s evidence, in the light most favorable to him, was as follows. During his employment with Abdow, the plaintiff suffered from chronic asthma, which required several medications, including steroids, to control. He explained the effect of the steroids on his mood to Ronald Abdow, and mentioned that the medications could cause future medical problems such as cataracts and diabetes. In fact, in January and March of 1992, he had two cataract operations. During the physical examination in preparation for the first eye surgery, he discovered he had diabetes, and he informed Paul Lichwan, Abdow’s vice-president for operations, of this new diagnosis. He also had a bad back for which he had regular chiropractic treatment. In December, 1991, Steven Abdow, Ronald’s son and the plaintiff’s supervisor, announced to Abdow’s restaurant managers that Abdow had decided to make employee health care a “controllable expense.” In announcing the change in policy, Steven Abdow admonished the managers to “make sure that we hire people . . . [who] are not going to be big insurance gobblers.” When the plaintiff asked whether Steven Abdow “[was] suggesting . . . that we fire the people that use the insurance . . . there was a very long pause.” Finally Steven Abdow said, “If you had a position for one individual, and you had two people for that position, if one of the people was going to be an insurance user or had reason for the insurance, and the other person didn’t, you would want to go with the person that didn’t.” The plaintiff was aware of the volume of his own insurance claims; he felt it was “like there was no end in sight.” Between December, 1991, and May, 1992, the plaintiff received calls from Abdow’s central office questioning medical expenses of other employees at the restaurant he managed. The plaintiff claimed that managers at the other dinner restaurants were considerably younger than he; that when there was a vacancy for the manager at the flagship dinner restaurant, the job did not go to him but to a younger man; and that only five of the forty-seven managers were over age forty, and of those, two were demoted, two left, and he was fired. He provided no comparable information for managers under age forty. b. The defendant’s legitimate nondiscriminatory reason. The plaintiff does not dispute that the defendant articulated a legitimate nondiscriminatory reason for his discharge — the plaintiff’s poor performance as a manager between December, 1991, and his termination in May, 1992. The defendant’s evidence of its reasons for discharging Wooster included the plaintiff’s deposition testimony acknowledging his receipt of a disciplinary report; Ronald Abdow’s deposition testimony claiming that the plaintiff’s job performance had deteriorated over time; and Steven Abdow’s deposition testimony containing certain details about the plaintiff’s performance, including violations of the defendant’s dress codes. The MCAD letter reported high staff turnover rates in 1991 and 1992 at the restaurant the plaintiff managed; verbal abuse of a female employee; increasing customer complaints; and attempts to counsel the plaintiff to improve his performance. The attachments to the MCAD letter included an unfavorable management performance review from Steven Abdow, dated February 25, 1992; the complaint of a part-time employee about her work schedule; and an employee counseling/suspension notice, also from Steven Abdow, dated December 9, 1991, based on a customer complaint, violations of grooming and uniform dress standards, and misrepresentation (which the plaintiff claimed stemmed from his account of the customer’s complaint). 3. Evidence of pretext and the appropriate standards. We now arrive at the third stage in the plaintiff’s order of proof of discrimination. See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. at 440-443, and cases cited; Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. at 127-128, and cases cited. In order to prevail at this final stage, the plaintiff “must persuade the fact finder by a fair preponderance of the evidence that the defendant’s asserted reasons were not the real reasons . . . [for the plaintiff’s discharge].” Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 443, quoting from Brunner v. Stone & Webster Engr. Corp., 413 Mass. 698, 700 (1992). In an appeal from summary judgment, “our task is to consider whether there is evidence which generates a genuine dispute of fact on the pretext point.” Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 448 (1996). In that task, “[o]ur reading of the summary judgment materials is in a light most favorable to the nonmoving party, here the plaintiff.” Ibid., citing Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 438. In addition to the prima facie evidence set out above, which “remains as evidence in the case,” Brownlie v. Kanzaki Specialty Papers, Inc., 44 Mass. App. Ct. 408, 413 (1998); see Liacos, Massachusetts Evidence § 5.8.5, at 236-237 (6th ed. 1994), to demonstrate pretext the plaintiff offered written evaluations he had received covering the same period as the documents the defendant introduced to show nondiscriminatory motive. The plaintiff’s documents included an unsigned November 16, 1991, report on his restaurant’s condition headed with the words “fantastic job”; a specialty restaurant inspection form dated January 14, 1992, signed by Steven Abdow, awarding 86 points out of 100 and commenting “very nice”; a second specialty restaurant inspection form dated March 10, 1992, which Steven Abdow also signed, awarding 95 points and commenting “excellent”; and a memorandum dated April 14, 1992, announcing that the plaintiff’s restaurant had come in second in the competition for the “Pacesetter’s Cup” for the month of March, 1992. The plaintiff also produced a letter of reference dated June 6, 1992, from Paul Lichwan stating that the plaintiff was “proficient in all functions of a restaurant’s operations,” as well as Lichwan’s deposition testimony that the plaintiff was a good manager and that he would hire him again if he had authority to do so. a. Handicap discrimination claim. The Superior Court judge found that the plaintiff “failed [to] produce sufficient evidence that the reasons articulated by Abdow for his termination were a pretext for handicap[ ] discrimination.” However, in his memorandum of decision, the Superior Court judge failed to mention any of the written evaluations submitted by the plaintiff. Moreover, although he considered the evidence regarding health care costs, the judge observed that “[the plaintiff] presented] no evidence that Abdow ever inquired into [the plaintiff’s] own use of the plan or commented on his medical expenses.” But it is just this kind of “smoking gun” evidence that is not required, because it is “rare.” Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass, at 445. “[T]he plaintiff’s ultimate burden of persuasion may be satisfied either by direct or circumstantial evidence of discrimination.” Id. at 445 n.8. “The ultimate issue of discrimination, raised by the plaintiff’s and defendant’s] conflicting evidence as to the defendant’s] motive, is not for a court to decide on the basis of affidavits [and other summary judgment materials], but is for the fact finder after weighing the circumstantial evidence and assessing the credibility of the witnesses.” Id. at 445. The facts of this case are consistent with those in Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 446-447, where the Supreme Judicial Court concluded that conflicting evidence of satisfactory performance, combined with remarks about Blare’s ability to do his work and evidence that younger workers were not similarly disciplined, was sufficient to raise a genuine issue of material fact as to discrimination. See Handrahan v. Red Roof Inns, Inc., 43 Mass. App. Ct. 13, 15-17 (1997) (evidence of disciplinary warnings for failure to comply with unwritten time limits for cleaning motel rooms following disclosure of the plaintiff’s epilepsy, considered against generally favorable performance evaluations which had noted plaintiffs failure to clean her assigned rooms in a timely manner in the past, although thin, sufficient to reach a jury). “The timing of the enforcement of the . . . rule . . . is . . . suspect,” id. at 17, and along with the defendant’s “practice and policies concerning employment of [people with health care expenses],” Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. at 447, quoting from Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 767 (1986), “could support an inference that the defendant’s real motive was discrimination.” Handrahan v. Red Roof Inns, Inc., 43 Mass. App. Ct. at 17. b. Age discrimination claim. The age discrimination count is a much closer question. The same factual dispute regarding the plaintiffs work performance applies to the plaintiffs claim of age discrimination. However, other than the undisputed fact that the plaintiff was over age forty at the time he was discharged, there is little evidence that the employer was concerned about the plaintiffs age. The question then is whether the “conflicting evidence” about the plaintiff’s work performance is sufficient evidence of pretext to withstand the motion for summary judgment. To support a claim of discrimination, the plaintiff must produce “evidence sufficient to support a jury verdict that it was more likely than not that the articulated reason was pretext for actual discrimination. ‘[Ajbsent direct proof of [age] discrimination, evidence which may be relevant to the plaintiffs showing of pretext may include application of a certain criterion to employees [not within the protected category]; the employer’s general practice and policies concerning employment of [those within the protected category]; and the employer’s treatment of the plaintiff during [his] employment,’ ” Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. at 447, quoting from Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. at 767. “The plaintiff bears the burden of persuasion on the ultimate issue of discrimination.” Blare, supra at 445. The case law is consistent with these requirements, notwithstanding the court’s statement in Blare v. Husky Injection Mold ing Sys. Boston, Inc., supra at 443, that “Massachusetts is a pretext only jurisdiction.” In Blare, in addition to the prima facie evidence, the evidence that “the three remarks made by Blare’s supervisor regarding the ability of Blare to work considering his age, and the evidence that other workers not in the protected category who committed similar errors were not terminated was sufficient to raise a genuine issue of material fact as to whether the defendants discriminated against the plaintiff on the basis of his age.” Id. at 447. See Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass, at 16 (evidence that employer’s deviation from normal management procedures in summarily terminating the plaintiff could support reasonable inference of discrimination based on perceived handicap); Finney v. Madico, Inc., 42 Mass. App. Ct. 46 (1997) (persistent remarks over three year period that women not qualified to be managers sufficient to withstand motion for summary judgment on claim of discriminatory discharge during reduction in force); Handrahan v. Red Roof Inns, Inc., 43 Mass. App. Ct. at 17 (jury could have disbelieved rule was an established policy when enforcement, followed notice of plaintiff’s epilepsy); Brownlie v. Kanzaki Specialty Papers, Inc., 44 Mass. App. Ct. at 413-414 (explicit statement “I want a younger man” and jury’s disbelief of nondiscriminatory reason satisfied “employee’s ultimate burden of persuasion on the issue of discrimination,” citing Blare, 419 Mass. at 445); Salem v. Massachusetts Commn. Against Discrimination, 44 Mass. App. Ct. 627, 643-645 (1998) (several instances of disparate treatment combined with pretextual reasons for hiring decisions, including development of more reasons as discrimination claim proceeded, adequate to support claim of discrimination). Here there are no remarks concerning age and no apparent connection between the evaluations and the plaintiff s age. The plaintiffs evidence of disparate treatment is anecdotal at best, and there is no evidence of deviation from normal management procedures connected to age in Abdow’s treatment of the plaintiff. See Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. at 449-450, in which there was a “dispute of fact about how serious Tardanico’s errors were,” but we held that the plaintiffs age, and “isolated or ambiguous remarks, tending to suggest animus based on age” (citation omitted), were insufficient to withstand the employer’s motion for summary judgment. See also Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. at 129-130 (to show discriminatory discharge, at least when employer’s reason for discharge is theft of company product, employee must show disparate treatment by identifying other similarly situated employees and demotistrating that their offenses are of similar seriousness). But see Powers v. H.B. Smith Co., 42 Mass. App. Ct. 657, 658, 662 (1997) (reduction in force age discrimination case where jury’s disbelief of defendant’s explanation for termination decision sufficient to establish pretext; case also rife with “procedural tangles and . . . several critical missteps”). To withstand a defendant’s motion for summary judgment, a plaintiff claiming discrimination must show something more than a conflict in the evidence regarding the employer’s legitimate, nondiscriminatory explanation for the employment decision and the plaintiff’s membership in a protected group. Compare Miner v. Connleaf, Inc., 989 F. Supp. 49, 53 (D. Mass. 1997) (“the concepts of pretext and discrim

WILCOXON v MINNESOTA MINING & MANUFACTURING COMPANY Docket No. 204431. Submitted April 7, 1999, at Detroit. Decided April 23, 1999, at 9:15 am. Leave to appeal sought. Dallias E. Wilcoxon brought an action in the Wayne Circuit Court against Minnesota Mining & Manufacturing Company (3M) and two 3M employees, alleging race and sex discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.\ MSA 3.548(101) et seq., and other claims. The court, Deborah A. Thomas, J., in response to the defendants’ first motion for summary disposition, found that the plaintiff had not demonstrated any of the criteria necessary to show that her transfer from one position to another had been an adverse employment action. The court determined that the only issue left pertained to the plaintiff’s separation from 3M. The court dismissed the claim that was based on the alleged wrongful transfer and dismissed one of the individual defendants from the action. In response to the defendants’ second motion for summary disposition, the court held that the plaintiff had failed to show that, with regard to her termination from employment, the plaintiff was treated differently from other employees similarly situated, the basis for such treatment was discriminatory, that 3M’s stated reason for the discharge from employment was a pretext, and that the reason for the discharge was based on a factor that violated the laws of the state. The court entered an order that dismissed the action in its entirety. The plaintiff appealed. The Court of Appeals held: 1. The claim regarding the transfer is a disparate treatment claim under MCL 37.2202(l)(a); MSA 3.548(202)(l)(a ). Regardless of the approach the plaintiff employed to establish her claim, she had to prove that she suffered an adverse employment action. 2. In order for an employment action to be adverse for purposes of a discrimination action, the action must be materially adverse in that it is more than mere inconvenience or an alteration of job responsibilities and there must be some objective basis for demonstrating that the action is adverse. The employee’s subjective impressions regarding the desirability of one position over another are not controlling. 3. The plaintiff failed to make any showing that her transfer was a materially adverse employment action, other than advancing her own subjective views. The court properly dismissed the claim with regard to the transfer. 4. There is no dispute that the plaintiff’s termination from employment qualifies as an adverse employment action. The plaintiff could have established that claim under a mixed motive theory or a pretextual theory. 5. The plaintiff, a black female, falls into two protected classes contemplated by the Civil Rights Act and, thus, meets the first element of the test applicable to actions under the mixed motive theory. She meets the second element because her termination from employment is an adverse employment action. The plaintiff therefore had to prove that the defendants were predisposed to discriminate against members of the protected class, the third element, and that the defendants actually acted on the predisposition in terminating the plaintiff’s employment, the last element. 6. The occurrences of which the plaintiff complains, if believed, would not require a conclusion that the defendants acted with discriminatory animus. The plaintiff’s claim cannot be proved under the mixed motive theory. 7. The plaintiff meets the first three elements of the test applicable to actions under the pretextual theory because she is a member of a protected class who suffered an adverse employment action and was qualified for the job. Therefore, the plaintiff had to show that she suffered the adverse employment action under circumstances that give rise to an inference of unlawful discrimination, the last element. 8. The court did not err in finding that the plaintiff failed to show that similarly situated male or white employees were not terminated from employment under like circumstances. Summary disposition was properly granted with regard to the pretextual theory of proof. The court properly granted summary disposition in favor of the defendants with regard to the rest of the plaintiff’s claims, which alleged intentional infliction of emotional distress. Affirmed. 1. Civil Rights — Master and Servant — Employment Discrimination — Disparate Treatment — Adverse Employment Actions. A necessarily included element of an action alleging disparate treatment of an employee by an employer in violation of subsection 202(l)(a) of the Civil Rights Act is a demonstration that the employee suffered an adverse employment action; for an employment action to be adverse for purposes of a discrimination action, the action must be materially adverse in that it is more than mere inconvenience or an alteration of job responsibilities and there must be some objective basis for demonstrating that the change is adverse; the employee’s subjective impressions regarding the desirability of one position over another are not controlling in determining whether a change of positions is adverse (MCL 37.2202[l][a]; MSA 3.548[202][l][aD. 2. Civil Rights — Master and Servant — Employment Discrimination — Disparate Treatment — Mixed Motive Evidentiary Method — Elements. The elements of an action under subsection 202(l)(a) of the Civil Rights Act alleging disparate treatment in employment and proceeding under the “mixed motive” evidentiary method are the plaintiff’s membership in a protected class, an adverse employment action, a showing that the defendant was predisposed to discriminating against members of the plaintiff’s protected class, and a showing that the defendant actually acted on that predisposition in visiting the adverse employment action on the plaintiff (MCL 37.2202[l][a]; MSA 3.548[202][l][a]). 3. Civil Rights — Master and Servant — Employment Discrimination — Disparate Treatment •— Pretextual Evidentiary Method — Elements. The elements of an action under subsection 202(l)(a) of the Civil Rights Act alleging disparate treatment in employment and proceeding under the “pretextual” evidentiary method are the plaintiff’s membership in a protected class, and showings that the plaintiff suffered an adverse employment action, the plaintiff was qualified for the position, and the plaintiff suffered the adverse employment action under circumstances that give rise to an inference of unlawful discrimination; circumstances give rise to an inference of discrimination when the plaintiff was treated differently than persons of a different class for the same or similar conduct; being qualified for a job, for purposes of establishing a prima facie case of discrimination, requires minimal qualification only; to create an inference of disparate treatment, the plaintiff must prove that all the relevant factors were nearly identical to those of a differently treated person (MCL 37.2202[l][a]; MSA 3.548[202][l][a]). Dallias E. Wilcoxon, in propria persona. Barris, Sott, Derm & Driker, P.L.L.C. (by Sharon Woods and Claudia D. Orr), for the defendants. Before: Hood, P.J., and Holbrook, Jr., and Whitbeck, JJ. Whitbeck, J. Plaintiff-appellant Dallias E. Wilcoxon contests the dismissal, by summary disposition, of her claims of unlawful race and sex discrimination in her former employment. The trial court dismissed portions of Wilcoxon’s complaint relating to a transfer on the basis of her failure to produce any objective evidence that the transfer was an adverse employment action. Just before trial, the trial court dismissed the remainder of Wilcoxon’s action, primarily on the basis of her inability to identify any similarly situated members of another class who were treated differently. Wilcoxon now appeals as of right. We affirm. I. BASIC FACTS AND PROCEDURAL HISTORY Wilcoxon, a black female with a master’s degree in Public Administration and a law degree, began working in the govemment/community affairs department of the outdoor advertising subsidiary of defendantappellee Minnesota Mining & Manufacturing Company (3M National) in 1989 as the first minority or female in that capacity. From 1990 through 1992, she received promotions, raises, and above-average performance evaluations. However, these evaluations noted a need for her to improve her working relationship with field management. As the govemment/community affairs manager in 3M National’s Detroit area offices, Wilcoxon monitored legislative and regulatory matters affecting outdoor advertising (i.e., billboards) in the northeastern portion of the United States and worked to improve or preserve her employer’s position in that regard. Additionally, Wilcoxon provided information regarding these matters as necessary to support field managers who procured and marketed the available billboard space. During Wilcoxon’s tenure with 3M National, she experienced difficulty dealing with defendant-appellee David Horton, who was the market manager and, later, district manager of the marketing department for the same territory, and at least one other market manager. Although Horton was not Wilcoxon’s superior and Wilcoxon concedes that people in general found Horton difficult to work with, Wilcoxon attributed her problems relating to field management to racism and sexism. By Horton’s account, however, Wilcoxon was difficult to talk to and her attitude was both condescending and offensive as perceived by him and staff members who complained to him. Defendant-appellee Edward Kenevan became Wilcoxon’s direct supervisor in May 1992. The following March, Kenevan gave Wilcoxon a below-average performance appraisal, ostensibly on the basis of her poor relationship with field management and an insufficient familiarity with the industry. In the section of the evaluation for comments by the next level of supervision, Kenevan’s own supervisor observed that Wilcoxon had always been professional in his presence and that perhaps she needed a new challenge in another department. According to Kenevan, he decided to transfer Wilcoxon to the newly created position of public service/community affairs manager, in order to take advantage of her strengths, while minimizing her role in her areas of weakness. In this new position, which Wilcoxon was charged with developing, Wilcoxon was to oversee 3M National’s public service and charitable activities nationwide. Wilcoxon resisted the transfer, which did not entail any loss of pay or benefits, but apparently was not afforded a choice in the matter. Her replacement, whom she helped train for a month or two, was a white male. Although Wilcoxon continued to work out of the Detroit area offices for seven months, her new supervisor, John Provost, made it clear that eventually Wilcoxon would have to relocate to Chicago. In January 1994, Wilcoxon went on sick leave and applied for short-term disability benefits, which she initially began receiving. Her physician described her symptoms as headache, stress/anxiety, and chest pain. Consistent with company policy, Wilcoxon’s application for short-term disability benefits was submitted to physicians retained by 3M’s benefits department for review. The reviewing physicians found nothing disabling about Wilcoxon’s condition and reported this to 3M’s benefits department personnel, who in turn advised Wilcoxon that continued benefits would be denied and that she should return to work by February 28, 1994. Wilcoxon appealed within the sixty days allotted for that purpose and forwarded additional documentation to the reviewing physicians who, again, found nothing disabling about Wilcoxon’s condition. Disability benefits were again denied. Thereafter, Provost informed Wilcoxon that if she did not return to work by April 18, 1994, she would be presumed to have resigned. Wilcoxon did not return to work by that date and was thereafter notified that she was no longer employed at 3M National. In June 1994, Wilcoxon filed a complaint alleging race and sex discrimination in violation of the Civil Rights Act (CRA), MCL 37.2101 et seq.; MSA 3.548(101) et seq. According to Wilcoxon, she was (1) provided less training than white males in similar employment positions, (2) provided less support staff than similarly situated white males, (3) undermined by defendants’ employees while attempting to accomplish necessary employment functions, (4) denied reimbursement for continuing education courses, while similarly situated white males enjoyed such a benefit, and (5) demoted and replaced by a white male. In February 1996, defendants filed their first motion for summary disposition. Defendants argued that Wilcoxon could not maintain race or sex discrimination claims because her transfer did not constitute an adverse employment action, since she suffered no loss in pay or benefits. Furthermore, defendants asserted a legitimate business reason for both Wilcoxon’s transfer and her termination from employment. Defendants maintain that Wilcoxon was unable to produce any evidence that she was treated any differently than white or male employees who refused to return to work following a disability leave. Defendants contended that, because Wilcoxon was unable to establish that 3M National’s reasons were a mere pretext for discrimination, Wilcoxon’s race and sex discrimination claims must fail. Finally, defendants claimed that Horton could not be individually liable for the alleged discrimination because Horton did not qualify as an agent of 3M National. In November 1996, the trial court issued its ruling from the bench. First, the trial court found that Wilcoxon had not demonstrated any of the criteria necessary to show that her transfer had been an adverse employment action. Second, the trial court declined to decide whether Wilcoxon had resigned or had been constructively discharged by intolerable discriminatory conditions inasmuch as “there are several questions of fact that must be resolved.” Third, the trial court found that the question whether there was a legitimate nondiscriminatory reason for plaintiffs transfer was an issue for the finder of fact. Fourth, the trial court addressed whether Horton, who was not Wilcoxon’s supervisor but who exercised control over her worksite, could be held personally liable for Wilcoxon’s claims. The trial court stated, “even viewing it in the light most favorable to the Plaintiff” there was not a “sufficient legal basis upon which to hold Mr. Horton personally liable.” According to the trial court, because Wilcoxon’s transfer was not an adverse employment action, the only issue left was with regard to Wilcoxon’s ultimate separation from 3M National. By a subsequent order, the trial court deemed the transfer not to be an adverse employment action and dismissed Wilcoxon’s claims based on that action; the trial court dismissed Horton from the action as well. In April 1997, defendants brought three motions in limine to (1) preclude, on the basis of the trial court’s prior ruling, Wilcoxon from characterizing her transfer as a demotion, (2) preclude Wilcoxon from mentioning discreet incidents of allegedly unfavorable treatment unless she laid a foundation by showing that at some point she was discriminated against by being treated differently than similarly situated white or male employees, and (3) preclude Wilcoxon from mentioning acts that preceded the filing of her complaint by more than three years. During a hearing regarding these motions, it was revealed that Wilcoxon had yet to identify another individual who had been treated differently when the individual failed to return to work from medical leave. In response, the trial court adjourned trial to a date that would allow sufficient time for defendants to bring another motion for summary disposition. In May 1997, defendants brought their second motion for summary disposition pursuant to MCR 2.116(C)(10). Defendants argued that it was incumbent on Wilcoxon to show that “but for” her race or sex, she would not have been discharged. Moreover, defendants argued that because defendants asserted a legitimate nondiscriminatory reason for the employment separation, Wilcoxon would also have to establish that this was a pretext. Defendants asserted that, because Wilcoxon had not come forward with any evidence of either disparate treatment or pretext concerning her termination from employment, summary disposition in favor of defendants was proper. Defendants supported this motion by, among other things, the affidavits of Barbara Warner, supervisor of 3M’s health care and disability program, and Provost. Warner averred that in performing her duties she made the ultimate decision to deny Wilcoxon benefits while unaware of Wilcoxon’s race, and race or sex was not used in the decision. Warner also averred that Wilcoxon’s employment status was not within the scope of her decision. Provost averred that, as Wilcoxon’s supervisor at the time, after learning that Wilcoxon was ineligible for disability leave, he notified her that she must return to work by April 18, 1994, or she would be considered as having resigned. When Wilcoxon did not so return, Provost stated that he terminated her employment. In response to defendant’s motion, Wilcoxon named a white female office supervisor, a white male sales representative, two other white males, and a white female as similarly situated employees who were not discharged when their illnesses caused their extended absences from work. Further, Wilcoxon argued that a race or sex discrimination case can be established either by showing disparate treatment or by showing intentional discrimination. Wilcoxon contended that she had established a case of intentional discrimination by showing that defendants were predisposed to discriminate against women or blacks and had acted on that disposition in terminating her employment. At a June 1997 hearing regarding this motion, defendants argued that they conducted a last-minute record search with regard to the supposedly similarly situated people identified in Wilcoxon’s brief. According to defendants, two individuals could not be found, there was no record of disability leaves for two more, and the other (who had been on extended leave after a complicated pregnancy) had, unlike Wilcoxon, voluntarily returned to work at the expiration of her leave. Moreover, defendants argued, the decisionmaker with regard to Wilcoxon’s disability leave did not know Wilcoxon’s race and Wilcoxon had conceded that the decisionmaker with regard to the termination of Wilcoxon’s employment had never discriminated against her. The trial court issued the following ruling: Discovery in this matter has been closed, witness lists have been filed and there’s no opportunity that these five individuals were made witnesses in this matter. The individual who made the decision with regard to the termination, would be the individual in the personnel office. Who would send out the communication, the questioned returned date that the decision-maker determines whether or not to terminate. For failure to return to work, which is the matter that remains before this Court. The burden lies upon the plaintiff to show that somehow she was treated differently than other employees similarly situated. And that the basis for such treatment was discriminatory. She does not have either the individuals who were treated differently than herself, nor has she been able to establish that the employer[’]s stated reason for the discharge was a pretext. And that there was any evidence to establish that the reason for discharge was based on a factor which violated the laws of [this] state, established to protect those individuals who have historically been treated unfairly because of race. The trial court entered an order the same day that dismissed Wilcoxon’s action in its entirety with prejudice. Wilcoxon timely appealed as of right. II. STANDARD OF REVIEW This Court reviews a trial court’s decision regar

TELEFLEX INFORMATION SYSTEMS, INC., Plaintiff v. DAVID J. ARNOLD, JR., Defendant, and DAVID J. ARNOLD, JR., Third-Party Plaintiff v. VANGUARD CELLULAR SYSTEMS, INC., Third-Party Defendant No. COA96-1067 (Filed 6 April 1999) 1. Employer and Employee— at-will employment contract— action for wrongful termination — public policy — not extended The trial court did not err by granting summary judgment against Arnold (the original defendant who counterclaimed against the original plaintiff and then brought a third-party complaint against the original plaintiffs parent company, including many of the same claims) on a claim for wrongful termination of an at-will employment contract where Arnold alleged violation of public patent policy, the fruits of his labor clause of the North Carolina Constitution, the open door clause of the North Carolina Constitution, and his right to free speech. The Court of Appeals declined to expand public policy exceptions to essentially private contract disputes. 2. Employer and Employee— breach of implied covenant of fair dealing — summary judgment The trial court did not err by granting summary judgment for Arnold on a claim against his employer for breach of an implied covenant of fair dealing in the context of an at-will employment contract. 3. Employer and Employee— interference with prospective economic relations — no action The trial court did not err by granting summary judgment for Arnold on a claim for interference with prospective economic relations arising from a dispute over ownership of software. There is no basis for believing that a cause of action exists in North Carolina for interference with prospective contractual relationships. Appeal by David J. Arnold, Jr., third-party plaintiff, from judgment entered 11 March 1996 by Judge W. Steven Allen, Sr., in Guilford County Superior Court. Heard in the Court of Appeals 16 February 1999. This' case arises out of a controversy between Teleflex Information Systems, Inc. (Teleflex), and David J. Arnold, Jr. (Arnold), over the ownership of certain methods and processes Arnold developed, or invented, while an employee of Teleflex. Teleflex is the wholly owned subsidiary of Vanguard Cellular Systems, Inc. (Vanguard). Teleflex instituted this action seeking an injunction from the trial court to prevent Arnold from divulging any trade secrets of Teleflex; seeking a declaration that Arnold was “hired to invent” the software in question, and a declaration that Teleflex owns all rights, including intellectual property rights, in the software; and seeking damages. Arnold counterclaimed, seeking similar relief against Teleflex and seeking damages for wrongful termination of his employment, among other things. Arnold brought a third-party complaint against Vanguard, which included many of the same claims he asserted against Teleflex. The nine causes of action in his third-party complaint against Vanguard included claims for wrongful termination of employment [Count II], breach of the duty of fair dealing [Count IV], and interference with prospective economic relations [Count V]. On motion of Vanguard, the trial court granted summary judgment on Counts II, IV, and V of Arnold’s third-party complaint, certified there was “no just cause for delay,” and Arnold appealed to this Court from the grant of summary judgment. Upchurch & Galifianakis, by Nick Galifianakis; and Lee L. Corum, for third-party plaintiff-appellant. Smith Helms Mulliss & Moore, L.L.P., by William Sam Byassee, for third-party defendant-appellee. HORTON, Judge. A. Wrongful Termination of Employment [Count II] During the time Arnold was an at-will employee of Teleflex or Vanguard, or both, Arnold developed a “new batch billing architecture.” Arnold contends, and Vanguard denies, that the new process resulted from work Arnold did on his own time, without any assistance from Vanguard or its employees, and that he is the sole owner of the process or “invention.” Arnold agrees, that he was an “at-will” employee of Vanguard, but argues that he was fired by Vanguard on 28 January 1994 in violation of the public policy of this State for refusing to sign a document acknowledging that he claimed no ownership interest in the process. Although there is a continuing factual dispute whether Arnold was in fact an employee of Vanguard, counsel for Vanguard stipulated in oral argument that Arnold could be considered an employee of Vanguard for purposes of this appeal. Although the discharge of an employee-at-will normally does not support an action for wrongful termination of employment, North Carolina courts have developed a public policy exception to the general rule. There is no “bright-line” test for determining when the termination of an at-will employee violates public policy. Our Supreme Court held in Amos v. Oakdale Knitting Co., 331 N.C. 348, 416 S.E.2d 166 (1992), that: [although the definition of “public policy” approved by this Court does not include a laundry list of what is or is not “injurious to the public or against the public good,” at the very least public policy is violated when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes. Id. at 363, 416 S.E.2d at 169 (footnote omitted). The plaintiff employee in Amos was fired because she refused to work for less than the statutory minimum wage. The Court held that “defendants violated the public policy of North Carolina by firing plaintiffs for refusing to work for less than the statutory minimum wage.” Id. at 354, 416 S.E.2d at 170. Plaintiff alleges four public policy violations arising from termination of his at-will employment with Vanguard. Arnold contends that his discharge violates “public patent policy,” as set out in Article I, § 8, cl. 8 of the U.S. Constitution; that his termination denies him the right to the fruits of his labors as found in Article I, § 1 of the N.C. Constitution; that the action of Vanguard in terminating his employment operates to bar the courthouse door in violation of Article I, § 18 of the N.C. Constitution; and that his discharge violates his rights to free speech as guaranteed by both the U.S. and N.C. Constitutions. We disagree but will examine each of appellant’s arguments. Public Patent Policy Plaintiff contends that defendant terminated his employment in violation of a “public patent policy.” He contends that Article I, § 8, cl. 8 of the U.S. Constitution confers upon him a right to protect his inventions, and to terminate his employment in light of his alleged right violates the Constitution. He also claims that defendant’s conduct harms the public at large because to deny plaintiff the ability to file a patent is to delay or deny the public’s right to the future use of his inventions. In its brief, defendant cites Article I, § 8, cl. 8, which provides that “congress shall have power . . . [t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries[.]” Defendant contends that the language of Article I, § 8, cl. 8 confers no patent right upon plaintiff, but rather grants Congress the power to enact laws that create property rights in inventions. We agree with defendant’s contention, in light of the fact that after the Constitution was ratified, Congress passed the Patent Act in 1790. We follow the holdings of other jurisdictions that the “Patent Clause” of the U.S. Constitution “authorizes Congress to enact the patent laws, but does not confer any rights by itself upon an individual.” Brosso v. Devices for Vascular Intervention, Inc., 879 F. Supp. 473, 478, aff’d, 74 F.3d 1225 (E.D. Pa. 1995). We decline to create a “public patent policy” exception to the employment at-will doctrine. Denial of the Fruits of His Labor Plaintiff further contends that defendant’s conduct violates public policy as promoted under the North Carolina Constitution. Article I, § 1 of the N.C. Constitution guarantees all citizens of North Carolina “certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.” He claims that defendant terminated him in an effort to deny him “the enjoyment of the fruits” of his own labor. Defendant contends that Article I, § 1 creates no interest which limits the employment at-will doctrine, and argues that the constitutional provision guarantees to an individual only the right to pursue ordinary and simple occupations free from government regulation. In Real Estate Licensing Board v. Aikens, 31 N.C. App. 8, 228 S.E.2d 493 (1976), this Court determined that an amendment to our statutes regulating real estate brokers and requiring their licensure was unconstitutional as being overly broad, because the definition contained in the amendment purported to regulate business activities such as those of defendant, which “consisted] only of selling for a modest fee the addresses of property for rent, some information about the features of the properties, and the phone numbers of the lessors.” Id. at 11, 228 S.E.2d at 495. This Court held, in part, that to regulate the defendant, and others like him, as real estate brokers was “a sharp and dangerous detour from any established and accepted definition” of real estate broker. Id. at 12, 228 S.E.2d at 496. In Aikens, the defendant argued that such regulation violated several provisions of our State Constitution, including Article I, § 1. We agreed, holding that the “fundamental provisions” of our State Constitution, such as Article I, § 1, were inserted to “guarantee the right to pursue ordinary and simple occupations free from governmental regulation.” Id. at 13, 228 S.E.2d at 496 (emphasis added). See also State v. Ballance, 229 N.C. 764, 768, 51 S.E.2d 731, 734 (1949), in which Justice Ervin eloquently observed that the declaration of rights in our State Constitution was inserted “chiefly to protect the individual from the State." Id. (emphasis added). Here, Arnold does not seek redress for any governmental action, and the cited provision of the State Constitution does not give him a remedy against a corporate defendant in an essentially private dispute over the ownership of property. We agree with defendant’s position for the above reasons, and find that Article I, § 1 of the North Carolina Constitution does not apply to plaintiffs claim. Barring the Courthouse Door Plaintiff contends that defendant’s conduct violates public policy as promoted under Article I, § 18 of the North Carolina Constitution. The section provides that: All courts shall be open; every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law; and right and justice shall be administered without favor, denial, or delay. Plaintiff contends that, when defendant learned that plaintiff consulted a patent attorney and asserted his legal rights as an inventor, defendant made an effort to bar plaintiff from asserting his rights in court by confronting plaintiff with two options: either relinquish his ownership rights, or face termination of employment. Defendant contends that the very fact plaintiff has asserted his claims in a court of law contradicts his own argument that defendant has somehow barred plaintiff a judicial remedy. We agree with defendant’s contention, and we find no evidence that defendant illegally prohibited plaintiff from asserting his rights in a court of law. Right to Free Speech Plaintiff contends that defendant violated public policy by denying him his constitutionally protected right to free speech. He contends that defendant abridged his right to claim ownership of his inventions, and that defendant terminated his employment because he refused to disavow those rights. Defendant contends there is no free speech interest to be protected here; no free speech rights are implicated in a dispute between an employee and a private employer. If “state action” is responsible for restricting speech, then there is a potential constitutional violation. See Corum v. University of North Carolina, 330 N.C. 761, 782, 413 S.E.2d 276, 289, reh’g denied, 331 N.C. 558, 418 S.E.2d 664, cert. denied, 506 U.S. 985, 121 S.E.2d 431 (1992). Defendant contends that, as a private entity, it is allowed to abridge plaintiff’s free speech rights without violating public policy. We agree with defendant’s contention for the above-stated reasons, and we find no public policy violation here. In determining whether to enlarge the scope of the public policy exceptions to the employment-at-will doctrine, we must focus on the public interests involved. In McLaughlin v. Barclays American Corp., plaintiff asked this Court “to recognize, as a public-policy exception to the employee-at-will doctrine, a cause of action for wrongful discharge when the termination results from the employee’s use of self-defense.” 95 N.C. App. 301, 304, 382 S.E.2d 836, 839, cert. denied, 325 N.C. 546, 385 S.E.2d 498 (1989). We noted in McLaughlin that “ ‘[p]ublic policy’ is a ‘vague expression’ but has been defined as the principle of law holding that no citizen can lawfully do that which has a tendency to be injurious to the public or against the public good.” Id. at 305, 382 S.E.2d at 839 (citations omitted). After analyzing the leading North Carolina cases of Coman v. Thomas Manufacturing Co., 325 N.C. 172, 381 S.E.2d 445 (1989), and Sides v. Duke University, 74 N.C. App. 331, 328 S.E.2d 818, disc. reviews denied, 314 N.C. 331, 333 S.E.2d 490 and disc. review denied, 314 N.C. 331, 335 S.E.2d 13 (1985), we stated: In each case, our courts focused on the potential harm to the public at large if those instructions [i.e., to give perjured testimony in Sides and to violate the state and federal highway safety regulations in Coman] were obeyed. Similar public-policy implications are not present in Mr. McLaughlin’s case. We do not perceive the kind of deleterious consequences for the general public, if we uphold Barclays’ action, as might have resulted from decisions favorable to the employers in Sides and Coman. McLaughlin, 95 N.C. App. at 306, 382 S.E.2d at 840 (emphasis added). Here, we do not find the “potential harm to the public at large” as in Sides, Coman, and their successors. In those cases, the defendant-employer encouraged the plaintiff-employee to violate some law or risk being fired. In the case before us, the evidence does not suggest that Vanguard encouraged Arnold to violate any law. We know of no law requiring the plaintiff to claim an ownership interest in his inventions or to file a patent application. We decline to expand the public policy exceptions to essentially private contract disputes such as this. The assignment of error is overruled. B. Breach of Duty of Fair Dealing [Count IV] Arnold contends that North Carolina recognizes a cause of action for an employer’s alleged breach of an implied covenant of fair dealing in the context of an at-will employment. In support of his contention, Arnold cites Speck v. N.C. Dairy Foundation, 64 N.C. App. 419, 307 S.E.2d 785 (1983), reversed, 311 N.C. 679, 319 S.E.2d 139 (1984); and Coman, 325 N.C. at 174-75, 381 S.E.2d at 446-47. Speck provides no support for Arnold’s argument, however. Speck involved the claim by two professors that they had an interest in a secret scientific process which made possible the production of “Sweet Acidophilus” milk, and which process they discovered while employed by North Carolina State University. The trial court in Speck granted summary judgment for the defendants, and this Court reversed, holding that there was a question of fact about the existence of a fiduciary relationship between plaintiffs and the defendants. In reversing the decision of this Court, the Supreme Court held that the plaintiffs never had any interest in the process which they developed while employed by the University: “As the secret process in question belonged to the University immediately upon its discovery by the plaintiffs, the plaintiffs never possessed any interest cognizable in equity or at law in the process.” Speck, 311 N.C. at 687, 319 S.E.2d at 144. Therefore, defendants never stood in a fiduciary relationship with the plaintiffs with regard to their discovery. Id. In Coman, our Supreme Court stated that courts in other states “have recognized wrongful discharge theories characterized either as the bad faith exception to the at-will doctrine or under the implied covenant of good faith and fair dealing.” Coman, 325 N.C. at 177, 416 S.E.2d at 173 (citation omitted). In Amos, 331 N.C. 348, 416 S.E.2d 166, however, the Supreme Court stated that the above-quoted statements from Coman were “dicta,” and specifically stated that the Court “did not recognize a separate claim for wrongful discharge in bad faith.” Id. at 360, 416 S.E.2d at 173. The trial court properly entered summary judgment on this claim for relief. C. Interference with Prospective Economic Relations [Count V] Our Supreme Court set out the elements of tortious interference with contract in United Laboratories, Inc. v. Kuykendall: The tort of interference with contract has five elements: (1) a valid contract between the plaintiff and a third person which confers upon the plaintiff a contractual right against a third person; (2) the defendant knows of the contract; (3) the defendant intentionally induces the third person not to perform the contract; (4) and in doing so acts without justification; (5) resulting in actual damage to plaintiff. Childress v. Abeles, 240 N.C. 667, 84 S.E.2d 176 (1954). 322 N.C. 643, 661, 370 S.E.2d 375, 387 (1988). Plaintiff contends, however, that the interference is with his “prospective” contractual relationships. In EEE-ZZZ Lay Drain Co. v. N.C. Dept. of Human Resources, 108 N.C. App. 24, 422 S.E.2d 338 (1992), overruled on other grounds, 347 N.C. 97, 489 S.E.2d 880 (1997), this Court reversed the trial court’s denial of summary judgment, holding in part that “[pjlaintiff was unable to point to any specific instance when these acts [i.e., interference with prospective contractual relations] occurred, and this Court is unable to find any evidence of such in the record. We find no basis for believing that such a cause of action even exists in North Carolina. ” Id. at 31, 422 S.E.2d at 343 (emphasis added). Likewise, in the case before us, Arnold cannot point to any particular prospective relationships with which Vanguard tortiously interfered, and the trial court’s grant of summary judgment must be affirmed. Arnold is not without a remedy, however. If he ultimately prevails at trial, he may seek damages from Vanguard for wrongfully obtaining an injunction against him. N.C. Gen. Stat. § 1A-1, Rule 65(e) (1990). In summary, we affirm the grant of summary judgment by the trial court as to all three counts which are the subject of this appeal. Affirmed. Judges GREENE and LEWIS concur.

Ling Zhang & another vs. Massachusetts Institute of Technology. No. 96-P-1588. Middlesex. May 12, 1998. - April 5, 1999. Present: Armstrong, Perretta, & Spina, JJ. Practice, Civil, Summary judgment. Anti-Discrimination Law, Burden of proof, Prima facie case, Termination of employment, Sex, Race. Employment, Discrimination, Termination. Contract, Misrepresentation. Husband and Wife, Consortium. In a claim alleging employment discrimination based on disparate treatment on account of gender, the plaintiff presented sufficient evidence on the defendant’s motion for summary judgment to show a prima facie case of discrimination because of her pregnancy and the existence of disputed questions of fact as to whether her employer’s proffered reasons advanced to support its termination of the plaintiff were pretexts. [601-604] In a claim alleging discrimination in employment based on race, the plaintiff’s proffer on the defendant’s motion for summary judgment was insufficient to show a prima facie case of race discrimination, and the judge correctly ordered summary judgment in favor of the defendant. [604-605] A Superior Court judge correctly granted summary judgment in favor of the defendant on a claim for misrepresentation [605-606], and a claim for loss of consortium [606-607], where the plaintiffs had no reasonable expectation of proving an essential element of those claims. Civil action commenced in the Superior Court Department on May 22, 1995. The case was heard by Hiller B. Zobel, J., on a motion for summary judgment. Celina Gerbic for the plaintiffs. Elizabeth P. Seaman for the defendant. James Cen. Perretta, J. This appeal is from a grant of summary judgment in favor of the defendant, Massachusetts Institute of Technology (MIT), on a complaint brought by the plaintiff, Ling Zhang, alleging employment discrimination (gender and race) and misrepresentation; and by her spouse, James Cen, claiming a loss of consortium. Based upon the materials submitted pursuant to Mass.R.Civ.P. 56, 365 Mass. 824 (1974), a Superior Court judge ruled that Zhang’s allegations of discrimination were based on no more than speculation that the termination of her employment was the result of her pregnancy and that the term “tar baby” had been made in reference to her situation and not her race. He granted MIT summary judgment on her claim that MIT had misrepresented the duration of her employment on the basis that the materials showed that Zhang knew that she had received a term-appointment which was subject to nonrenewal. The judge did not address Cen’s claim for loss of consortium, apparently reasoning that dismissal of Zhang’s claims necessarily disposed of his ancillary action. We think that the materials submitted on the motion show genuine disputes of material fact on Zhang’s claim of gender discrimination and reverse the judgment with regard to that claim only. 1. The facts. This litigation arises out of Zhang’s employment position with the Atmospheric Sciences Group (ASG) at the Haystack Observatory (haystack), a MIT research laboratory. We relate the facts as they appear in the plaintiffs’ affidavits, deposition transcripts, and exhibits. Although MIT disputes many of the facts asserted by the plaintiffs, “[o]ur review of the grant of summary judgment in favor of the defendant requires us to assume the truth of all the facts set forth in all the materials the plaintiff[s] properly presented to the Superior Court judge, as well as to give [them] the benefit of any favorable inferences that may be drawn from those materials.” Harrison v. Boston Financial Data Servs., Inc., 37 Mass. App. Ct. 133, 136 (1994). See Judson v. Essex Agrie. & Technical Inst., 418 Mass. 159, 162 (1994). In 1992, John C. Foster was an associate director at Haystack, and Zhang was a Ph.D. candidate in physics at Boston College. In May of that year, while attending an American Geophysical Union meeting, Zhang introduced herself to Foster and asked if he was still doing research in the area of plasma convection in the ionosphere, which was the topic of her thesis. Foster informed her that he had an opening at Haystack for someone with a background in that field. As of that time, Zhang had sent out many resumes in search of a tenure-track teaching position, and she had received one offer from a college in Atlanta, Georgia, at an annual salary of $28,000. Cen was then living and working in Atlanta. Soon after the conference, Foster invited Zhang to visit Haystack to discuss postdoctoral opportunities. Zhang accepted the invitation and went to Haystack for an interview with Foster. During that interview, she asked him whether the position was a “permanent” or “long-term” one. Foster told Zhang that no one at Haystack had a permanent position, that “we are all under soft money and everybody gets renewed every year depending on funding,” and that, in the past, funding had been good. Zhang understood the term “soft money” to mean “money which would come from some government source and it may not always be there.” It was also her understanding that a “postdoctoral staff position” was a position for someone with, or soon to obtain, a doctoral degree. As put by her, “It’s a category to differentiate someone who is staff without a doctorate degree and someone who is staff with a doctorate degree.” Foster also informed Zhang that the annual salary for the position was $35,000. At the conclusion of the interview, he told Zhang that she would be receiving an offer from MIT very shortly. The offer came in the form of two letters. In the first letter, dated December 16, 1992, the offered position was described as a “temporary, Sponsored Research Staff — Postdoctoral appointment,” effective January 1, 1993, through December 31, 1993. The letter further stated that the position was a “temporary full-time position.” The second letter, dated December 24, reiterated the effective dates of the appointment (January- December, 1993), referred to the position as a “Sponsored Research Staff — Postdoctoral,” and made no reference to “temporary.” Although Zhang did not like the use of the word “temporary” in the first letter, she did not seek clarification from anyone at MIT for several reasons: the first letter was signed by MIT’s personnel officer whereas the second letter, in which the word “temporary” was not used, was signed by MIT’s vice-president and dean for research, and Foster had told her that because continued employment was dependent upon funding, no one at Haystack had a permanent position and that everyone was on a year-to-year appointment. Zhang began working at Haystack in January of 1993. On October 29, 1993, she was advised that her “current temporary appointment” had been extended through December 31, 1994. In January of 1994, she received a small, one percent salary increase. Zhang testified at her deposition that although she was not pleased about the amount of the increase, she accepted Foster’s explanation in which he praised her work and stated that the budget was very tight. He also told her that because money might also be very tight the following year, her appointment might not be renewed. Zhang stated that she was surprised to learn about the budget situation because Foster had told her during her interview that Haystack’s funding history was good. In late June, 1994, Foster left for a three-month sabbatical in Japan. When he returned to Haystack at the beginning of October, he passed Zhang in the hallways. At this time she was six months pregnant, and her condition was apparent. Foster called a meeting for ASG members for October 6. Zhang stated that the purpose of the October 6 meeting was to address funding issues. Foster announced that funding for 1995 would be level with 1994 and that two new people would be joining ASG. Although Foster named the two individuals, one of whom was a Monica Coakley, and gave a brief statement about where they were coming from, he gave no indication that they were to be replacements for anyone. Zhang knew, however, that two people had left Haystack during 1994. After the meeting, Zhang approached Foster and told him that her baby was due in January. He congratulated her and asked about her plans. When Zhang stated that she intended to return to work in mid-January, Foster told her that he would have to check his budget for that year, that it was very tight. Zhang responded that if the budget was tight, she would consider an appointment for a term less than one year. In late November, Zhang had another conversation with Foster in which he asked Zhang whether she would consider a short, three-month extension of her appointment. Although surprised, Zhang stated that if that was all the budget could allow, she would take it, that she had recently enrolled in MIT’s health insurance plan, and that she most likely could find another position at the end of that short-term extension. On or about December 12, 1994, Zhang was notified that, because of a lack of funding, her appointment would not be extended beyond December 31, 1994. Her position was filled by Coakley. Cen testified at his deposition that Zhang’s employment situation caused stress in their lives and that they would have disagreements over trifling matters two or three times a week. 2. The discrimination claim. In examining Zhang’s discrimination claims based upon disparate treatment, we follow an established three-step analysis. See Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 138 (1976), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441-442, 446 (1995); Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1997). Zhang must first make a prima facie case of gender and racial discrimination. Based upon that evidence, discrimination will be presumed, and the burden then shifts to MIT to give a legitimate, nondiscriminatory reason for its hiring decision and to produce evidence to show that the reasons given for that decision were the real reasons. Once that burden is met, the presumption of discrimination dissolves, and the burden again shifts to Zhang who must now show, by a preponderance of the evidence, that the nondiscriminatory reasons given by MIT were not the real reasons for its decision and thus were pretexts. Blare, supra at 443. To make a prima facie case of sex discrimination, a plaintiff must show membership in a protected class, satisfactory job performance, termination, and the hiring of a replacement who possesses similar skills. See Beal v. Selectmen of Hingham, 419 Mass. 535, 544 (1995). The materials presented on summary judgment show that Zhang has a reasonable expectation of proving each of the four elements of a prima facie case of gender discrimination. “Asserting a claim based on sex discrimination as a pregnant woman, [Zhang] is a member of a protected group.” White v. University of Mass, at Boston, 410 Mass. 553, 557 (1991). She stated at her deposition that Foster praised her work. During his deposition, Foster testified that while some members of his research staff had higher performance evaluations than Zhang, her work was good. When Zhang’s appointment was not renewed, her position was given to a woman possessing similar skills. To satisfy its burden of production, MIT presented materials to show that Foster had determined not to renew Zhang’s appointment before she even became pregnant and that his determination was based upon her low evaluations and reductions in funding. According to an affidavit from Foster, funding was very erratic in 1993 and 1994. In mid-1993, the Air Force Office of Scientific Research (AFOSR) cut back its funding by $20,000. That reduction “directly affected the viability of a post-doc position continuing.” In the fall of 1993, Foster met with Haystack’s director, Joseph Salah, to review the performance and salary of each ASG employee. At that meeting, Foster told Salah that Zhang had not been as productive as he had hoped and that he did not expect her to complete any significant research project. Foster and Salah met again in January, 1994, and discussed the effect of the funding cutbacks on the post-doctoral positions. Foster and Salah decided that although there was sufficient funding to cover the second year of Zhang’s appointment, she would not be offered a third year at Haystack after 1994. Foster stated that that decision was based upon both the funding situation and his “low evaluation” of Zhang’s accomplishments. He then informed Zhang that, because of funding, her employment would end on December 31, 1994. In the meantime, according to Foster’s affidavit, the National Science Foundation renewed its funding support in June of 1994. That money would allow ASG to fill the position that would be open upon the termination of Zhang’s employment. Because he was due to leave for Japan on sabbatical, Foster asked members of ASG to look for someone in the research area of optical ionospheric research. There is an affidavit from an ASG research scientist in which he states that, in late June, he told Monica Coakley about an upcoming postdoctoral position, that she visited Haystack over the Labor Day weekend, and that she told the affiant that she would need a prompt response from MIT. Again reading Foster’s affidavit, we are informed that one of the first things he did upon his return to Haystack was, on October 5, 1994, offer a postdoctoral position to Coakley and announce her employment, commencing in 1995, at the ASG meeting the next day. We conclude that the facts set out in MIT’s proffer are sufficient to satisfy its burden of production to show that its decision to terminate Zhang was based on nondiscriminatory reasons. Its proffer was, therefore, sufficient to rebut Zhang’s prima facie case. See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass, at 128. That being so, the question now is whether the materials submitted on the motion for summary judgment are sufficient to show that the reasons advanced by MIT were a pretext. Although Foster states that he informed Zhang in January of 1994 that her employment would end on December 31, 1994, because of a lack of funding, Zhang states that, at that time, Foster praised her work and told her only that funding was tight. While Foster set out in his affidavit that he had given Zhang’s work a “low evaluation,” he testified at his deposition that her work performance was, like that of eight other research staff members, good. Because there were other research staff members who had received higher evaluations, Zhang’s was “low.” Further, Foster knew of the renewed funding from the National Science Foundation before he left on sabbatical and before he knew of Monica Coakley. Upon his return from sabbatical, he saw that Zhang was pregnant; he offered a postdoctoral position to a candidate who had been found and recommended by someone within the ASG group and whom, from all that appears, he had not even met; he announced level funding for 1995; and he thereafter informed Zhang that funding was tight but that he would look into whether she could be given a short-term, three-month extension of her employment without also telling her that Coakley had been appointed to her (Zhang’s) postdoctoral position. Zhang was not offered a short-term appointment because, as shown on copies of electronic mail messages, Salah’s assistant, Alan Blackburn, took the position that Zhang knew from the outset that her appointment was limited to two years and that a short-term extension would open the door for Zhang to claim generous health care benefits and maternity leave from MIT. Putting aside, as we must, issues of credibility and the weight of the evidence, see Attorney Gen. v. Brown, 400 Mass. 826, 832 (1987), and bearing in mind that summary judgment is disfavored in disputes involving a party’s state of mind, motive, or intent, see Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass, at 439, we conclude that Zhang’s proffer shows a prima facie case of discrimination on account of her pregnancy and presents disputed questions of fact whether the reasons advanced by MIT, the “low” evaluation of her work performance viewed in light of reduced funding, were pretexts. We do not, however, reach a similar conclusion on her claim of race discrimination. A claim of race discrimination brought under G. L. c. 151B, § 4(1), follows the same analysis as that applied to a gender-based claim. See Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 765-766 (1986). That is, to make her prima facie case, Zhang must show membership in a racial minority, acceptable job performance, termination of her employment, and replacement with a similarly qualified individual. See McKenzie v. Brigham & Women’s Hosp., 405 Mass. 432, 434-435 (1989). Evidence of the employer’s general practice and policies concerning the employment of racial minorities, the treatment of employees of different race, and the specific treatment of the plaintiff while employed are all relevant to show racial discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. at 804-805; Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass, at 767; McKenzie v. Brigham & Women’s Hosp., 405 Mass, at 437. Zhang’s claim of race discrimination rests entirely upon the electronic mail messages sent by Blackburn to Foster and the personnel director in which he twice used the term “tar baby,” words generally understood to be either a derogatory reference to black Americans or a difficult or sticky problem. See IV Oxford English Dictionary Supplement (1986). For purposes of this decision, we acknowledge that the term “tar baby” is extremely offensive to African-Americans. Nonetheless, in view of the undisputed facts that Zhang is not a member of the minority who rightfully take offense from that term, that Blackburn viewed Zhang’s request for a short-term extension of her employment as an unfair and calculated attempt to obtain MIT’s generous health insurance and maternity leave benefits, and that MIT has a history of employing minorities, including Asians, we agree with the Superior Court judge’s conclusion that Zhang’s proffer was insufficient to show a prima facie case of race discrimination. See Fontaine v. Ebtec Corp., 415 Mass. 309, 314 n.7 (1993) (isolated or ambiguous remark, standing alone, is insufficient to prove discriminatory intent). See also Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 450 (1996). 3. The misrepresentation claim. This claim is based upon Foster’s statements to Zhang during her meeting with him at Haystack in May, 1992. Zhang testified at her deposition that Foster, in response to her inquiries concerning the nature and tenure of her possible position at Haystack, told her that the position was a regular staff and not a postdoctoral position, that no one at Haystack had a permanent position, that employment depended upon funding, that everybody gets renewed every year depending upon funding, and that, in the past, funding had been good. Zhang argues that, because these statements contradict MIT’s subsequent representations that her appointment was to a postdoctoral position of limited duration (two years), she has shown the requisite falsity, materiality, and purpose (inducement) of Foster’s statements in May of 1992 as well as her detrimental reliance upon them. See Zimmerman v. Kent, 31 Mass. App. Ct. 72, 77 (1991). As earlier noted, MIT does not dispute, for purposes of this appeal, Zhang’s version of her 1992 interview with Foster. See note 3, supra. Construing Foster’s statements in a fight most favorable to Zhang, we think that they could be construed reasonably as a representation by Foster that her appointment would be renewed from year to year so long as funds were available. “Massachusetts law clearly states that statements of present inte