Wrongful Termination Cases

ZANNIE GARNER, Plaintiff v. RENTENBACH CONSTRUCTORS INCORPORATED, Defendant and Third-Party Plaintiff v. ALLIED CLINICAL LABORATORIES, Third-Party Defendant No. COA97-906 (Filed 2 June 1998) 1. Labor and Employment § 77 (NCI4th)— employee drug testing — noncompliance with statute — wrongful discharge The termination of an at-will employee based upon a positive drug test conducted pursuant to the employer’s drug testing policy can constitute a wrongful discharge when the drug test was not performed consistently with a state statute. 2. Labor and Employment § 77 (NCI4th)— employee drug testing — laboratory not properly certified — wrongful discharge The statutory requirement that employee drug testing be performed by a laboratory certified consistently with the statute is an express policy declaration of the legislature, and any testing inconsistent with the statute violates public policy so that the discharge of an at-will employee based on the results of such a test supports a claim for wrongful discharge. N.C.G.S. § 95-232. 3. Labor and Employment § 77 (NCI4th)— at-will employee— wrongful discharge — public policy violation Wrongful discharge claims for at-will employees do not exist only when the discharge is the result of an employee’s refusal to violate the law upon the request of the employer or the discharge is the result of the employee engaging in a legally protected activity. Prior decisions do not preclude a wrongful discharge claim where the discharge is based on some unlawful activity of the employer or some activity of the employer in violation of public policy. 4. Labor and Employment § 77 (NCI4th)— employee drug testing — statutory violations — Department of Labor claims — wrongful discharge claim not preempted The statutory authorization of the Commissioner of Labor to investigate and file claims against employers who violate the drug screening procedures of N.C.G.S. § 95-232 did not preempt plaintiff at-will employee’s action against the employer for wrongful discharge based upon the public policy exception as a consequence of a urine drug test conducted inconsistently with a state statute. Appeal by plaintiff, Zannie Gamer, from order filed 27 February 1997 by Judge Peter M. McHugh in Guilford County Superior Court. Heard in the Court of Appeals 17 March 1998. Mark Floyd Reynolds, II, for plaintiff appellant. Carruthers & Roth, P.A., by Kenneth R. Keller, for Defendant Appellee Rentenbach Constructors, Inc. Ogletree, Deakins, Nash, Smoak & Stewart, P.C., by Guy F. Driver, Jr., for Third-Party Defendant Appellee Allied Clinical Laboratories. GREENE, Judge. Zannie Garner (plaintiff) appeals from an order of the trial court granting Rentenbach Constructors Incorporated (defendant) summary judgment on the plaintiffs claims for wrongful discharge and intentional infliction of emotional distress. The facts are as follows: The plaintiff was hired by the defendant in July of 1993 as a caipenter. There is no evidence in the record that the plaintiff was hired pursuant to a contract and the plaintiff does not contend that he was not an at-will employee. In June of 1994, the defendant provided the plaintiff with a copy of a substance abuse policy which was being implemented. Approximately six weeks later, on 26 July 1994, the plaintiff was asked to submit to random drug screening by giving a urine sample and the plaintiff agreed to do so. On 8 August 1994, the defendant terminated the plaintiffs employment for violating the company’s substance abuse policy because he had tested positive for drug use. In his complaint the plaintiff alleged that the defendant had not followed the drug testing requirements set forth by N.C. Gen. Stat. § 95-232. Among other things, the plaintiff alleged that Allied Clinical Laboratories (ACL), the laboratory used by the defendant to conduct the laboratory tests on the urine sample, did not qualify as an “approved” laboratory pursuant to the statute. At an Employment Security Commission hearing, Wayne Amman (Amman), the Assistant Safety Director for the defendant who was responsible for implementing the drug screening program, testified that an ACL representative had specifically informed him that ACL was “certified,” however, Amman did not question the type of certification held by ACL to verify that it was “approved” pursuant to the definition in N.C. Gen. Stat. § 95-231. Testimony by ACL’s representative, Dr. Evan Holzberg, revealed that ACL was not “approved” as required by the statute. The dispositive issue is whether the termination of an at-will employee based on a positive reading of a drug test conducted pursuant to the employer’s drug testing policy can constitute a wrongful discharge when the drug test was not performed consistent with a state statute. Summary judgment shall be granted if there are no genuine issues of material fact and the pleadings and evidence show that a party is entitled to a judgment as a matter of law. Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). All of the evidence is viewed in the light most favorable to the non-moving party. McMurry v. Cochrane Furniture Co., 109 N.C. App. 52, 54, 425 S.E.2d 735, 736 (1993). Our legislature has set forth procedures required of employers who choose to conduct drug screening on their employees. The purpose of the statutes is “to establish procedural and other requirements for the administration of controlled substance examinations” because “individuals should be protected from unreliable and inadequate examinations and screening.” N.C.G.S. § 95-230 (1993). N.C. Gen. Stat. § 95-232 provides that “[a]n examiner who requests or requires an examinee to submit to a controlled substance examination shall comply with the procedural requirements set forth in [that] section.” N.C.G.S. § 95-232 (Supp. 1997). One of the requirements that examiners must follow is that only “approved” laboratories may be used for the screening and confirmation of the samples collected for examination. N.C.G.S. § 95-232(c) (1993). 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). Violations of the procedural requirements are to be investigated by the Commissioner of Labor and any actions to recover penalties are to be brought by the Commissioner of Labor. N.C.G.S. § 95-234 (1993). “[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), reh’g denied, 347 N.C. 586,-S.E.2d — (1998). In general, an at-will employee has no claim for wrongful discharge. Sides v. Duke University, 74 N.C. App. 331, 336, 328 S.E.2d 818, 823 (1985), overruled on other grounds by Kurtzman, 347 N.C. 329, 493 S.E.2d 420. Exceptions to this general rule have been recognized and, 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.” Id. at 342, 328 S.E.2d at 826. Any exceptions to the at-will employment doctrine, however, “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. Public policy has been defined to be “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). Although there is no specific list of what actions constitute violations of public policy, “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, 331 N.C. 348, 353, 416 S.E.2d 166, 169 (1992). In this case, there is no dispute that the plaintiff was an at-will employee. Furthermore, there is no dispute that the plaintiff was discharged as a consequence of a positive reading on a urine drug test that was required as a condition of employment, and that this test was conducted inconsistently with a specific state statute. The plaintiff claims that the statutory requirement that employee drug testing be performed by a laboratory certified consistent with the statute is an express policy declaration of the legislature and any testing inconsistent with the statute therefore violates public policy. We agree. The General Assembly has explicitly declared its purpose for enacting the employee drug screening procedures: To protect employees from “unreliable and inadequate examinations and screening for controlled substances.” N.C.G.S. § 95-230. To insure that employee drug testing is reliable the legislature requires that the screening be conducted in laboratories certified consistent with the statute. N.C.G.S. § 95-232. It follows that employee drug testing inconsistent with the requirements of the statute violates public policy and that any discharge based on the results of such a test supports a claim for wrongful discharge. Summary judgment for the defendant was therefore error. In so holding, we reject the defendant’s argument that wrongful discharge claims for at-will employees exist only when the discharge is the result of an employee’s refusal to violate the law upon the request of the employer or the discharge is the result of the employee engaging in a legally protected activity. We acknowledge that the previous decisions of our courts recognizing wrongful discharge claims by at-will employees have presented facts consistent with the defendant’s argument. See Roberts v. First-Citizens Bank and Trust Co., 124 N.C. App. 713, 478 S.E.2d 809 (1996), appeal withdrawn, 345 N.C. 755, 487 S.E.2d 758 (1997) (employee fired for refusing to cash certificate of deposit without notice to debtors); Amos, 331 N.C. 348, 416 S.E.2d 166 (employee discharged for refusing to work below minimum wage); Coman v. Thomas Manufacturing Co., 325 N.C. 172, 381 S.E.2d 445 (1989) (employee discharged for refusing to violate Department of Transportation regulations concerning driving time of truck drivers by refusing to falsify time logs); Sides, 74 N.C. App. 331, 328 S.E.2d 818 (employee fired for refusing to testify untruthfully or incompletely in lawsuit against her employer). We do not, however, read these cases as precluding a wrongful discharge claim where the discharge is based on some unlawful activity of the employer or some activity of the employer in violation of public policy. We also reject the defendant’s argument that the plaintiff is precluded from filing this claim because the Commissioner of Labor is authorized to investigate and file claims against employers who violate the drug screening procedures of section 95-232. The “availability of alternate remedies does not prevent a plaintiff from seeking tort remedies for wrongful discharge based on the public policy exception” unless federal legislation preempts the common law claim [for wrongful discharge] or our State legislature intended to supplant the [wrongful discharge] claim with exclusive statutory remedies. Amos, 331 N.C. at 356-57, 416 S.E.2d at 171. In this case, we are not aware of any federal law that preempts this wrongful discharge claim and the defendant has not cited any. Furthermore, the legislature has not provided that the actions by the Commissioner of Labor are the exclusive remedy. The plaintiff is therefore not preempted by either federal or state law from filing this wrongful discharge claim. Reversed and remanded. Judges WALKER and TIMMONS-GOODSON concur. . Although the plaintiff appeals from the summary judgment dismissing his wrongful discharge and intentional infliction of emotional distress claims, he has abandoned his emotional distress claim by not addressing it in his appellate brief, and we therefore do not address that claim. N.C.R. App. P. 28(b) (6). . “Examiner” is defined as the “person, firm, or corporation, . . . who is the employer or prospective employer of the examinee and who performs or has performed by an approved laboratory a controlled substance examination.” N.C.G.S. § 95-231(2) (1993). “Examinee” is defined as “an individual who is an employee of the examiner or an applicant for employment with the examiner and who is requested or required by an examiner to submit to a controlled substance examination.” N.C.G.S. § 95-231(3). . This statue has been amended by our legislature; however, the changes do not affect this case. Effective 6 July 1995, an examiner has the option of “(1) performing the screening on-site for prospective employees, provided that samples which demonstrate a positive drug test result are sent to an approved laboratory for confirmation, or (2) having an approved laboratory perform both the screening and confirmation tests as provided in this section.” N.C.G.S. § 95-232(c) (Supp. 1997). . The defendants contend that the violation of section 95-232 was “inadvertent” and thus they should not be held responsible for such violation. We disagree. The statute does not require that the violations be intentional. N.C.G.S. § 95-234 (“Any examiner who violates the provisions of this Article shall be subject to a civil penalty . . . .”). Thus even “inadvertent” or unintentional violations are inconsistent with the statute.

COLE v WEST SIDE AUTO EMPLOYEES FEDERAL CREDIT UNION Docket No. 199614. Submitted January 7, 1998, at Lansing. Decided May 19, 1998, at 9:05 A.M. Guy Cole brought an action in the Genesee Circuit Court against West Side Auto Employees Federal Credit Union, alleging that his discharge from employment by the defendant constituted unlawful age discrimination under the Civil Rights Act, MCL 37.2101 et seq.) MSA 3.548 et seq., and unlawful discrimination based on handicap (alcoholism) under the Michigan Handicappers’ Civil Rights Act,MCL 37.1101 et seq.) MSA 3.550(101) et seq. The plaintiff’s employment had been terminable for just cause only, and an employee handbook had provided for arbitration as the exclusive means by which a discharged employee could challenge the termination as violative of the contractual agreement for discharge for just cause only or as violative of statutes prohibiting employment discrimination. Arbitration that resulted in a decision in favor of the defendant had preceded the plaintiff’s action. The court, Robert M. Ransom, X, granted summary disposition for the defendant, ruling alternatively that the plaintiff was obligated to submit his discrimination claims to arbitration or that collateral estoppel applied to prevent the plaintiff from pursuing his discrimination claims in court. The plaintiff appealed. The Court of Appeals held: 1. Factual findings made by an arbitrator after a proper arbitration proceeding are conclusive in a later-filed civil suit between the same parties, including a situation in which the earlier arbitration involved a contractually based wrongful discharge claim and the later lawsuit involves a claim that the discharge violated one or more state civil rights statutes. 2. The trial court did not err in summarily dismissing the claim of employment discrimination based on handicap. The Michigan Handicappers’ Civil Rights Act expressly excludes alcoholism as a handicap with respect to employment discrimination where the condition prevents the employee from performing his duties. Here, the arbitrator found that the plaintiff’s job performance was detrimentally affected by his drinking. 3. The trial court did not err in summarily dismissing the claim of employment discrimination based on age. The plaintiff could not establish a prima facie case of age discrimination because he could not show that he was qualified for his position in view of the arbitrator’s finding that the plaintiff was unable to handle the supervisory and public relations responsibilities of his job. 4. The arbitration procedure in this case encompassed any claims of wrongful discharge, including statutorily based employment discrimination claims. Accordingly, collateral estoppel properly applies to preclude the plaintiff from pursuing his civil rights claims in court. Affirmed. 1. Judgments — Collateral Estoppel — Arbitration. Collateral estoppel precludes relitigation of an issue in a subsequent, different cause of action between the same parties when the prior proceeding culminated in a valid final judgment and the issue was actually and necessarily determined in the prior proceeding; this principle likewise applies to factual determinations made during grievance hearings or arbitration proceedings. 2. Civil Rights —• Michigan Handicappers’ Civil Rights Act — Employment Discrimination —• Alcoholism. Alcoholism is not a handicap for which employment discrimination is prohibited by the Michigan Handicappers’ Civil Rights Act where the condition prevents the employee from performing the employee’s duties CMCL 37.1103[f][ii]; MSA 3.550[103][f][iij). 3. Civil Rights — Employment Discrimination — Age — Prima Facie Case. An essential element of a prima facie case of age discrimination is a showing by the plaintiff that the plaintiff was qualified for the position at issue (MCL 37.2101 et seq.\ MSA 3.548[101] et seq.). Law Offices of Dean T Yeotis (by Daniel J. Lang-don), for the plaintiff. Bower, Anderson, Radabaugh, Milton & Brown, P.C. (by Thomas R. Bowen and Evelyn C. Tombers), and Van Suilichem & Brown, P.C. (by Craig S. Schwartz), for the defendant. Before: Fitzgerald, P.J., and O’Connell and Whit-beck, JJ. Per Curiam. Plaintiff Guy Cole appeals as of right an order granting summary disposition to defendant West Side Auto Employees Federal Credit Union on his claims of age discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and discrimination based on his alleged handicap of alcoholism in violation of the Michigan Handicappers’ Civil Rights Act (hora), MCL 37.1101 et seq.; MSA 3.550(101) et seq. The trial court based its grant of summary disposition on the credit union’s motion for summary disposition pursuant to MCR 2.116(C)(7) and (10). Although we cannot approve all aspects of the trial court’s reasoning, we affirm its decision. I. FACTS Cole began working for the credit union sometime around October 1971 and eventually became the chief executive officer (CEO) of the credit union. The credit union discharged Cole on or about March 26, 1993. Following his discharge by the credit union, Cole challenged his discharge as wrongful under the credit union’s Termination and Grievance Policy. After an arbitration proceeding, the arbitrator upheld Cole’s discharge as being based on just cause. Following the arbitrator’s decision, Cole filed this lawsuit. The trial court granted summary disposition to the credit union on two grounds. First, the trial court held that Cole was obligated to submit the claims in this suit to binding arbitration pursuant to the credit union’s Termination and Grievance Policy (as opposed to filing suit in a court of law). Alternatively, the trial court noted that, assuming Cole was not obligated to submit this dispute to binding arbitration, he voluntarily did so. The trial court stated that to allow Cole to relitigate these issues “would be to give him an opportunity certainly not within the reasonable expectations of the parties at the time of the contract.” Further, the trial court indicated that the doctrine of collateral estoppel, which applies to factual determinations made during an arbitration proceeding, barred relitigation of the issues underlying this case. The trial court concluded that the arbitrator’s factual findings, which it regarded as conclusive, precluded Cole from establishing the necessary elements of either of his discrimination claims. In this appeal, Cole argues that the trial court erred in holding that he was obligated to submit his statutory discrimination claims to binding arbitration and, alternatively, that he was collaterally estopped from pursuing those claims in the trial court. Pursuant to an employee handbook issued by the credit union for its salaried employees, Cole was assured that he would not be discharged except for just cause. The employee handbook also provided for grievance and arbitration procedures applicable to salaried employees who were discharged by the credit union. The procedures purportedly were to be the only method allowed for such employees to challenge an alleged wrongful termination, expressly including employment discrimination claims. The handbook stated: These procedures shall apply to any and all disputes concerning the termination of salaried employees, including employment discrimination claims, and shall be the sole and exclusive remedy for any salaried employee claiming wrongful termination from employment with the Credit Union. [Emphasis supplied.] The arbitration procedure to be followed under the employee handbook involved the selection of a neutral arbitrator in accordance with the procedures of the American Arbitration Association. H. ARBITRATION UNDER RUSHTON v MEIJER, INC (ON REMAND) Under Rushton v Meijer, Inc (On Remand), 225 Mich App 156; 570 NW2d 271 (1997), we must reject the portion of the trial court’s analysis that concluded that Cole was obligated to submit his statutory claims of handicap and age discrimination to arbitration. The Rushton majority summarized its pertinent holding as follows: Accordingly, we hold that Meijer cannot require its employees, as a condition of employment, to waive prospectively their right to pursue direct and immediate review of civil rights claims in a judicial forum. The provision of the parties’ private employment contract requiring plaintiff, a nonunion employee, to exhaust the termination appeal procedure, including binding arbitration, before filing a lawsuit in the circuit court, is void as it relates to her gender discrimination claim under Michigan law. [Rushton, supra at 170 (emphasis supplied).] Even more pointedly, the Rushton majority declared, “Michigan’s declared public policy entitling a state civil rights plaintiff to direct and immediate review of such claims in the circuit court cannot be abrogated by contract.” Id. at 165. If Cole had not pursued the credit union’s alternative dispute resolution (adr) procedure to the point of arbitration, then clearly under Rushton Cole would have had a right to reject the ADR procedure with regard to his civil rights claims against the credit union under Michigan statutes by proceeding with a complaint against the credit union in the trial court. However, this case is materially distinguishable from Rushton. Cole decided to proceed to binding arbitration under the credit union’s ADR procedure after he had been discharged. The Rushton majority concluded that an employer could not require an employee, as a condition of employment, to prospectively waive the right to pursue civil rights claims under a state statute in a judicial forum. Id. at 170. However, this concern is inapplicable with regard to a former employee, such as Cole, whom the employer already has discharged. Indeed, the Rushton majority quoted with agreement the following comments reflecting the view of three justices of the Michigan Supreme Court in Heurtebise v Reliable Business Computers, Inc, 452 Mich 405, 438; 550 NW2d 243 (1996) (Cavanagh, J., joined by Levin and Mallett, JJ.): Finally, I would assert that I am not backing away from the public policy favoring alternative means of dispute resolution. For aggrieved individuals seeking to pursue remedies for claims that have already accrued, arbitration may present a quicker and cheaper means of receiving relief, and I fully support the parties’ voluntary intent in those cases. I would limit this opinion to the arbitration agreements in employment contracts entered into before any claim for unlawful discrimination has accrued. [Rushton, supra at 169-170 (emphasis supplied).] Accordingly, we conclude that Rushton does not apply here. We hold that a discharged employee who alleges that he was wrongly discharged and who voluntarily submits to an arbitration procedure is barred in a lawsuit filed after the arbitration decision from seeking a factual finding different from that which was found in the arbitration decision. As noted above, the Rushton majority concluded that a provision in an employment contract purporting to prospectively require arbitration of civil rights claims under state statutes is unenforceable. However, the Rushton panel unanimously concluded that a provision of an employee handbook requiring arbitration of employment disputes is enforceable with regard to a contractually based employment dispute when the employee handbook also provides for just-cause employment. Rushton, supra at 161-164 (majority opinion), 170 (Taylor, J., concurring in this part of the majority opinion). Because the plaintiff in Rush-ton never proceeded to arbitration under the employer’s ADR procedure in that case, id. at 159-160, the Rushton panel did not consider whether factual findings by an arbitrator in a proceeding in which a discharged employee alleged that the discharge violated contractual just-cause provisions would be conclusive if the employee thereafter filed a lawsuit alleging that the discharge violated one or more state civil rights statutes. Nevertheless, in Porter v Royal Oak, 214 Mich App 478, 485; 542 NW2d 905 (1995), this Court stated: Collateral estoppel precludes relitigation of an issue in a subsequent, different cause of action between the same parties when the prior proceeding culminated in a valid final judgment and the issue was actually and necessarily determined in the prior proceeding. This principle likewise applies to factual determinations made during grievance hearings or arbitration proceedings. [Citations omitted; emphasis supplied.] On the basis of the plain language of Porter, we conclude that factual findings made by an arbitrator after a proper arbitration proceeding are conclusive in a later-filed civil suit between the same parties, including a situation in which the earlier arbitration involved a contractually based wrongful discharge claim and the later lawsuit involves a claim that the employee’s discharge violated one or more state civil rights statutes. m. discrimination claim In this case, Cole alleged that his discharge involved age discrimination contrary to the Civil Rights Act and handicap discrimination contrary to the hcra. Cole based his claim of handicap discrimination solely on the alleged handicap of alcoholism. However, “The HCRA expressly excludes alcoholism as a handicap with respect to employment discrimination under Article 2 where the condition prevents the employee from performing his duties. MCL 37.1103(f)(ii); MSA 3.550(103)(f)(ii).” Gazette v Pontiac, 212 Mich App 162, 168-169; 536 NW2d 854 (1995). The arbitrator in his written opinion stated: “I find that [Cole’s] job performance was detrimentally affected by his excessive drinking during the strike.” The arbitrator also recounted various ways in which Cole’s intoxication detrimentally affected his job performance and reflected negatively on the credit union. Accordingly, we conclude that, as a matter of law, if Cole indeed suffered from alcoholism, under the arbitrator’s conclusive factual findings, Porter, supra at 485, this did not constitute a handicap that could form the basis of a claim of illegal employment discrimination under the hcra because it prevented Cole from properly performing job duties. Thus, the trial court correctly granted summary disposition to the credit union with regard to Cole’s claim of handicap discrimination. With regard to Cole’s claim of age discrimination, he presented no direct evidence of age-based animus on the part of the credit union. Accordingly, to avoid a grant of summary disposition under MCR 2.116(C)(10), Cole had to establish a “prima facie case” of age discrimination on the basis of circumstantial evidence. Harrison v Olde Financial Corp, 225 Mich App 601, 606-609; 572 NW2d 679 (1997). One essential aspect of such a prima facie case in an age discrimination case based on discharge from employment is that the plaintiff was qualified for the position. Meagher v Wayne State Univ, 222 Mich App 700, 710-711; 565 NW2d 401 (1997). Arguably, the arbitrator’s finding that Cole’s discharge was “based upon just cause” would necessarily encompass a factual determination that he was not qualified for his position as CEO of the credit union at the time of the discharge. However, assuming for purposes of discussion that a finding of just cause for termination of employment does not automatically amount to a finding that an employee is unqualified for a position, the factual findings contained in the following paragraph of the arbitrator’s decision require a conclusion that Cole was not qualified for his CEO position at the time of discharge: It is acknowledged that [Cole] accomplished much on behalf of the credit union during his long tenure supervising the construction of a $4.5 million building and expanding assets from $70 to $110 million. (TR 446). But in my view his effectiveness as a Chief Operating Officer is substantially impugned by the above incidents of misconduct which constitute sufficient evidence of just cause to warrant sustaining the Employer’s action of discharge. As is often the case it took a traumatic event, such as the hit and run incident, to alert [Cole] to the fact of his disease of alcoholism. But by that time much damage had been sustained by the credit union relative to [Cole’s] relationship with its other employees and to the public. Such damage cannot be overcome by the arguable fact that [Cole] now has his alcoholism condition under control. [Emphasis supplied.] According to the arbitrator’s conclusive factual findings, Porter, supra at 485, the damage to Cole’s relationship with other employees of the credit union and the public could not be overcome. Obviously, this requires a conclusion that Cole was, at the time of his discharge, not qualified to handle the supervisory and public relations responsibilities inherent in being the CEO of the credit union. Thus, the trial court correctly granted summary disposition to the credit union with respect to the age discrimination claim. IV. COLLATERAL ESTOPPEL While Cole invokes Florence v Dep’t of Social Services, 215 Mich App 211; 544 NW2d 723 (1996), in support of his position that the trial court erred in holding that he was collaterally estopped from pursuing his civil rights claims in a judicial forum, that case involving a union-represented employee is inapposite. In Florence, the defendant hired the plaintiff despite knowing of her severe hearing problem. Id. at 212. The plaintiff asserted that the defendant refused repeated, reasonable requests to accommodate her handicap during a training program. Id. After her training, the plaintiff was unable to perform her job adequately and was discharged. Id. at 212-213. After the discharge, the labor union that represented the plaintiff filed a grievance that resulted in a settlement agreement between the union and the defendant employer in which the defendant changed its records to indicate that the plaintiff had resigned. Id. at 213. The plaintiff did not participate in the settlement proceedings or sign the agreement. Id. Thereafter, the plaintiff filed a lawsuit alleging wrongful termination contrary to the HCRA, but the trial court granted summary disposition with one ground being that the suit was barred by the grievance settlement. Id. at 212-213. This Court concluded that the pursuit and settlement of the plaintiffs contractual grievances by the union did not preclude the plaintiff from bringing suit in her own right for the alleged violation of the HCRA: Plaintiff argues that the settlement agreement between plaintiff’s union and defendant did not bar an action based on her statutory civil rights. We agree. . . . Although a union speaks for its members, its duty is to make and uphold the terms of a collective bargaining agreement for its members. However, a union does not have a duty to pursue for its members rights possessed independent of the collective bargaining agreement. Here, it is true that plaintiffs union reached an agreement with defendant concerning plaintiffs contractual grievance. However, plaintiff’s claims in this suit do not arise out of the collective bargaining agreement. It is an “incontestable,” “black-letter statement of law” that employees in Michigan have “ ‘an independent, nonnegotiable right not to be discriminated against on the basis of handicap.’ ” Similarly, claims under the cra [the state Civil Rights Act] concern nonnegotiable state rights that are entirely independent of the collective bargaining agreement. Accordingly) plaintiff has a right to proceed in this case on her claims pursuant to the HCRA and the CRA regardless of the agreement that her union signed with respect to her contractual grievances. [Id. at 213-214 (citations omitted; emphasis supplied).] The reasoning of Florence is inapplicable to this case. It is evident that the grievance procedure in Florence was limited to contractual grievances. Accordingly, in pursuing the contractual grie

NORRIS v STATE FARM FIRE & CASUALTY COMPANY Docket No. 195422. Submitted October 8, 1997, at Detroit. Decided April 10, 1998, at 9:15 A.M. Gail Norris, who suffers from rheumatoid arthritis, brought an action in the Wayne Circuit Court against State Farm Fire and Casualty Company and other State Farm companies, and Martha J. Piney, alleging claims arising out of her discharge from employment with Piney’s insurance agency. The court, Kirsten Frank Kelly, J., granted summary disposition in favor of the defendants. The plaintiff appealed with regard to the dismissal of her claims alleging unlawful discrimination in violation of the Handicappers’ Civil Rights Act (hora), MCL 37.1101 et seq.\ MSA 3.550(101) et seq., intentional infliction of emotional distress, and negligent supervision. The Court of Appeals held: 1. The plaintiff established a genuine issue of material fact regarding whether she was unlawfully discriminated against because of her handicap. Because the plaintiff testified regarding an alleged admission by Piney of employment discrimination based on the plaintiff’s handicap, the burden-shifting approach of McDonnell Douglas Corp v Green, 411 US 792 (1973), was not applicable. The court erred in granting summary disposition on the basis that the plaintiff failed to satisfy her burdens of production under McDonnell Douglas. Therefore, the traditional burdens of proof were applicable. However, the plaintiff always bears the burden of proving that she was qualified for the position from which she was discharged. The plaintiff sustained her burden for purposes of the motion for summary disposition. A genuine issue of material fact exists regarding whether the plaintiff was qualified for the position at the time of her discharge. 2. The court did not err in granting summary disposition for State Farm with regard to the claims of unlawful discrimination and negligent supervision. 3. Except in a case involving worker’s compensation benefits, the correct standard to address respondeat superior liability is the control test, not the economic-reality test The plaintiff did not show that State Farm had the right to control the employment decisions of Piney. Because defendants State Farm were not the employer of Piney, they owed no duty to the plaintiff regarding the claim of negligent supervision of Piney. Summary disposition was properly granted in this regard. 4. The alleged conduct of the defendants was not sufficiently outrageous to give rise to a separate cause of action for intentional infliction of emotional distress. The court properly granted the defendants’ motion for summary disposition regarding the claims of intentional infliction of emotional distress. Affirmed with regard to defendants State Farm, affirmed in part and reversed in part with regard to defendant Piney. Hoekstra, J., dissenting, stated that the court did not err in granting the defendants’ summary disposition with regard to the claim alleging violation of the hcra because the plaintiff did not establish that there was a genuine issue of material fact regarding whether she was qualified for the position from which she was terminated. To be qualified, the plaintiff must have been performing the job at a level that met her employer’s legitimate expectations. The defendants presented well-documented evidence that the plaintiff was not working at a level that met Piney’s expectations, the evidence that the plaintiff offered regarding her qualifications was irrelevant, the plaintiff did not present relevant evidence to show that she was doing her job well enough to rule out the possibility that she was discharged for inadequate job performance, and the plaintiff failed to prove a prima facie case of handicapper discrimination. The order of the court should be affumed. 1. Civil Rights — Employment Discrimination — Direct Evidence — Borden of Proof. Traditional burdens of proof apply and the burden-shifting approach of McDonnell Douglas Corp v Green, 411 US 792 (1973), is not applicable where a plaintiff alleging unlawful employment discrimination based on the plaintiff’s handicap presents direct evidence of unlawful discrimination by the employer; nonetheless, the plaintiff always bears the burden of proving that the plaintiff is otherwise qualified for the position in question. 2. Master and Servant — Respondeat Superior — Control Test. ... The correct standard to assess respondeat superior liability in all cases except those concerning worker’s compensation benefits is the control test, not the economic-reality test. Powell & Gerisch (by Jonathan P. Gerisch), for the plaintiff. Pepper, Hamilton & Scheetz (by Robert C. Ludolph and Judith E. Coliman), for State Farm Fire and Casualty Company, State Farm Annuity and Life Insurance Company, State Farm General Insurance Company, State Farm Life Insurance Company, and State Farm Mutual Insurance Company. Sullivan, Ward, Bone, Tyler & Asher, PC. (by A. Stuart Tompkins and Sheri B. Cataldo), for Martha J. Piney. Before: Corrigan, C.J., and Griffin and Hoekstra, JJ. Griffin, J. Plaintiff appeals as of right an order granting summary disposition in favor of defendants regarding plaintiffs claims arising out of her discharge from employment. We reverse in part and affirm in part with regard to defendant Martha J. Piney and affirm with regard to defendants State Fitrm Fire and Casualty Company, State Farm Annuity and Life Insurance Company, State Farm General Insurance Company, State Farm Life Insurance Company, and State Farm Mutual Insurance Company. i Plaintiff, who suffers from rheumatoid arthritis, began working for defendant Martha J. Piney (Piney) in November 1994 as a probationary employee. Martha J. Piney is the owner and operator of the Piney Insurance Agency, which sells exclusively insurance policies written by defendants State Farm. On February 24, 1995, following a satisfactory three-month job performance review, defendant Piney offered and plaintiff accepted a position of regular employment as a claims specialist. However, less than three weeks later, on March 10, defendant Piney terminated plaintiffs employment for alleged poor job performance. Defendant Piney claims that the employment deficiencies noted in plaintiffs thirty- and sixty-day reviews had escalated to the extent that plaintiffs overall job performance was unsatisfactory. However, in her deposition, plaintiff alleges that at the conclusion of her March 10 meeting with defendant Piney, Piney admitted to plaintiff that the true reason for her discharge was “[i]t’s because you’re handicap [sic].” Following her discharge, plaintiff filed suit against defendant Piney and defendants State Farm, alleging a variety of claims. The lower court granted summary disposition in favor of defendants pursuant to MCR 2.116(C)(10). Plaintiff appeals as of right the dismissal of her claims of alleged unlawful discrimination in violation of the Michigan Handicappers’ Civil Rights Act (HORA), MCL 37.1101 et seq.-, MSA 3.550(101) et seq., intentional infliction of emotional distress, and negligent supervision. n A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual support for a claim. In Quinto v Cross & Peters Co, 451 Mich 358, 362-363; 547 NW2d 314 (1996), the Supreme Court set forth the following standards for deciding such a notion: In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), a trial court considers affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law. MCR 2.116(0(10), (G)(4). In presenting a motion for summary disposition, the moving party has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary evidence. Neubacher v Globe Furniture Rentals, 205 Mich App 418, 420; 522 NW2d 335 (1994). The burden then shifts to the opposing party to establish that a genuine issue of disputed fact exists. Id. Where the burden of proof at trial on a dispositive issue rests on a nonmoving party, the non-moving party may not rely on mere allegations or denials in pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists. McCart v J Walter Thompson, 437 Mich 109, 115; 469 NW2d 284 (1991). If the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly granted. McCormic v Auto Club Ins Ass’n, 202 Mich App 233, 237; 507 NW2d 741 (1993). In the present case, plaintiff has established a genuine issue of material fact regarding whether she was unlawfully discriminated against because of her handicap. Plaintiff testified regarding an alleged admission by defendant Piney of employment discrimination based on her handicap. Because direct evidence of unlawful discrimination was presented, the burden-shifting approach of McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), is not applicable. Harrison v Olde Financial Corp, 225 Mich App 601; 572 NW2d 679 (1997). Accordingly, the lower court erred in granting summary disposition on the basis that plaintiff failed to satisfy her burdens of production under McDonnell Douglas. As the Sixth Circuit Court of Appeals stated in Monette v Electronic Data Systems Corp, 90 F3d 1173, 1184 (CA 6, 1996): [W]hen the plaintiff has direct evidence of discrimination based on his or her disability, there is no need for a McDonnell Douglas type burden shift and traditional burdens of proof will apply. . . . Nonetheless, the disabled individual always bears the burden of proving that he or she is “otherwise qualified” for the position in question, absent the challenged job function or with the proposed accommodation. Because plaintiff presented direct evidence of unlawful discrimination, the pivotal issue is whether plaintiff submitted sufficient evidence to establish a genuine issue of material fact that she was qualified for the position from which she was discharged. Contrary to the position taken by the dissent, we conclude that plaintiff has sustained her burden for purposes of summary disposition. We are mindful that it is not the role of the court to evaluate the strength of the evidence in ruling regarding a motion for summary disposition. Rather, when deciding a motion for summary disposition that alleges no genuine issue of material fact, [a] trial court tests the factual support of a plaintiff’s claim when it rules upon a motion for summary disposition filed under MCR 2.116(C)(10). Lichon v American Universal Ins Co, 435 Mich 408, 414; 459 NW2d 288 (1990). The court must consider the affidavits, pleadings, depositions, admissions, and documentary evidence submitted or filed in the action. The court is not permitted to assess credibility, or to determine facts on a motion for summary judgment. Zamler v Smith, 375 Mich 675, 678-679; 135 NW2d 349 (1965). Instead, the court’s task is to review the record evidence, and all reasonable inferences therefrom, and decide whether a genuine issue of any material fact exists to warrant a trial. [Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). ] Viewing the evidence in a light most favorable to the nonmoving party, we conclude that plaintiff presented sufficient evidence for a reasonable person to conclude that she was qualified for the job from which she was discharged. In particular, in a ninety-day performance review held less than three weeks before plaintiffs discharge,, defendant Piney evaluated plaintiffs job performance as satisfactory. In light of plaintiff’s satisfactory job performance, defendant Piney thereafter offered plaintiff a regular full-time position. Piney’s February 24, 1995, offer of permanent employment to plaintiff states as follows: Gail Norris Start Date: 11/7/94 2/24/94 [sic] Three month review. I have worked with Gail for three months and two weeks now. In three months she has proven to be a quick learner, very task oriented, and very dependable. At this time I am making an offer from temporary employment to holding the position of claims specialist for my agency with the hopes that Gail will continue to develop and grow as an expert in her position and continue to strive and reach the goals that are set for this agency. Continued salary with benefit package as attached and presented at time of original start date. 2/24/95 /s/ Gail Norris 2/24/95 Is/ Martha J. Piney, agent In addition to defendant Piney’s admissions regarding plaintiffs job qualifications, plaintiff also presented the deposition testimony of coemployees who noted no change in plaintiffs job performance in the period from February 24, 1995, until her discharge. Finally, although Piney claims that plaintiff was discharged because of poor customer-service skills, plaintiff submitted evidence that there were no complaints from customers regarding her job performance. After recognizing that fact finding and assessment of credibility are inappropriate when ruling regarding a motion for summary disposition, Dzierbowicz v American Seating Co, 450 Mich 969; 544 NW2d 473 (1996); Crittenden v Chrysler Corp, 178 Mich App 324; 443 NW2d 412 (1989), we conclude that a genuine issue of material fact exists regarding whether plaintiff was qualified for the position at the time of her discharge. m Next, plaintiff claims that the lower court committed error requiring reversal in granting summary disposition in favor of defendants State Farm with regard to plaintiffs claims of unlawful discrimination and negligent supervision. We disagree. Regarding these issues, both sides claim that the appropriate test for respondeat superior liability is the economic-reality test as set forth in McCarthy v State Farm Ins Co, 170 Mich App 451; 428 NW2d 692 (1988). Although McCarthy appears to be applicable, we hold that McCarthy was wrongly decided and therefore should not be followed. McCarthy relied on worker’s compensation cases in holding that respondeat superior liability should be decided on the basis of “the economic reality test.” However, after McCarthy, it is now well established that except for worker’s compensation benefits, the correct standard to assess respondeat superior liability is the control test, not the economic-reality test. Hoffman v JDM Associates, Inc, 213 Mich App 466, 468-469; 540 NW2d 689 (1995); Kral v Patrico’s Transit Mixing Co, 181 Mich App 226, 230-232; 448 NW2d 790 (1989). Cf. Meridian Mut Ins Co v Wypij, 226 Mich App 276; 573 NW2d 320 (1997). Here, plaintiff presented evidence of the economic dependency of defendant Piney on defendants State Farm. However, plaintiff presented no evidence that defendants State Farm had any right to control the employment decisions of Piney. Absent any right of control, there is no liability of defendants State Farm for the action of defendant Piney under the doctrine of respondeat superior. Hoffman, supra; Kral, supra. Similarly, because defendants State Farm were not the employer of defendant Piney, defendants State Farm owed no duty to plaintiff regarding the claim of alleged negligent supervision of defendant Piney. See, generally, Janice v Hondzinski, 176 Mich App 49; 439 NW2d 276 (1989). For these reasons, the lower court was correct in granting summary disposition in favor of defendants State Farm. Although the lower court’s decision was based on a different rationale, we will not reverse when the lower court reaches the correct result albeit for the wrong reason. Porter v Royal Oak, 214 Mich App 478, 488; 542 NW2d 905 (1995); State Mut Ins Co v Russell, 185 Mich App 521, 228; 462 NW2d 785 (1990). IV Finally, we conclude that the lower court correctly granted defendants’ motion for summary disposition regarding plaintiff’s claims of intentional infliction of emotional distress. Assuming the facts as alleged by plaintiff to be true, defendants’ conduct was not sufficiently outrageous to give rise to a separate cause of action for intentional infliction of emotional distress. Doe v Mills, 212 Mich App 73, 91; 536 NW2d 824 (1995). For these reasons, we reverse in part and affirm in part with regard to defendant Piney and affirm with regard to defendants State Farm. Defendants State Farm may recover taxable costs. No costs in favor of plaintiff or defendant Piney, neither party having prevailed in full. Corrigan, C.J., concurred. As we noted in Durant [v Stahlin, 375 Mich 628, 646-647; 135 NW2d 392 (1965)], “there is a great difference between an inquiry to determine whether or not there is an issue of fact and a trial to decide a disputed issue of fact.” McCarthy predates MCR 7.215(H) and its predecessors, Administrative Orders 1990-6, 1994-4, and 1996-4. Accordingly, McCarthy is not preeedentially binding on this Court. Meridian addresses an employee exclusion in an insurance policy that does not define the term “employee.” The Meridian panel’s holding regarding the undefined insurance policy term is not applicable to the present case. To the extent that dicta in Meridian conflicts with our decision, we chose not to follow it and note that the Meridian panel was obligated to follow our prior decision, Hoffman v JDM Associates, Inc, supra,. Hoekstra, J. (dissenting). I respectfully dissent. I disagree with the majority’s conclusion in section n, which is that the lower court erred in granting defendants summary disposition of plaintiff’s claim brought under the Michigan Handicappers’ Civil Rights Act (HORA), MCL 37.1101 et seq.; MSA 3.550(101) et seq. I would affirm the order of the lower court granting defendants’ motions for summary disposition pursuant to MCR 2.116(C)(10) because plaintiff has not established a genuine issue of material fact about whether she was qualified for the position from which she was terminated. The majority correctly states that the lower court’s analysis was improper in this case because plaintiff presented direct evidence of discriminatory intent, namely, defendant Martha J. Piney’s alleged statement that she terminated plaintiff’s employment because of plaintiff’s handicap. When a plaintiff is able to produce direct evidence of discriminatory intent, there is no need to utilize the burden of proof analysis established in McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973). Matras v Amoco Oil Co, 424 Mich 675, 683-684; 385 NW2d 586 (1986); Harrison v Olde Financial Corp, 225 Mich App 601, 609; 572 NW2d 679 (1997). In Harrison, a race discrimination case, this Court explained how a court should instead analyze whether summary disposition pursuant to MCR 2.116(C)(10) is appropriate in cases in which a plaintiff presents direct evidence of discriminatory animus. There, this Court held the following: [W]e hold that the following principles of proof apply in a typical single-plaintiff, mixed-motive employment discrimination case. First, as with circumstantial discrimination cases, in a case involving direct evidence of discrimination, the plaintiff always bears the burden of persuading the trier of fact that the employer acted with illegal discriminatory animus. Second, whatever the nature of the challenged employment action, the plaintiff must establish evidence of the plaintiff’s qualification (or other eligibility) and direct proof that the discriminatory animus was causally related to the decisionmaker’s action. Upon such a presentation of proofs, an employer may not avoid trial by merely “articulating” a nondiscriminatory reason for its action. Under such circumstances, the case ordinarily must be submitted to

HORD v ENVIRONMENTAL RESEARCH INSTITUTE OF MICHIGAN Docket No. 200481. Submitted November 5, 1997, at Detroit. Decided March 17, 1998, at 9:05 A.M. Leave to appeal sought. R. Michael Hord brought an action in the Washtenaw Circuit Court against Environmental Research Institute of Michigan, seeking damages on the bases of theories of fraudulent misrepresentation and silent fraud following his employment with the defendant and subsequent layoff. The jury awarded the plaintiff damages and the court, Donald E. Shelton, J., entered a judgment consistent with the verdict. The defendant appealed from that order and orders denying its motions for a directed verdict and judgment notwithstanding the verdict (jnov) with regard to the fraudulent misrepresentation claim. The Court of Appeals held-. 1. The court did not err in denying the defendant’s motions for a directed verdict and jnov. The plaintiff presented evidence of an affirmative misrepresentation by the defendant that the defendant intended the plaintiff to rely on. There was evidence that the representation by the defendant was false and that the defendant knew that it was false when made. Finally, there was evidence that the plaintiff relied on the misrepresentation and suffered injury. 2. The court did not err in allowing the jury to consider the plaintiffs claim for future wage loss. Although the defendant’s contention that, because the plaintiff was an at-will employee, he was only entitled to nominal damages, may be correct in a breach of contract action, it is not applicable in a tort action, where nominal damages would not provide a meaningful remedy for an employee who is defrauded or sufficiently deter an unscrupulous employer. There was evidence from which the jury could estimate the plaintiffs future wage loss. 3. The jury instructions as a whole adequately presented the applicable law. The instructions did not permit the jury to infer intent on the basis of a collective knowledge theory. Knowledge and intent were described as separate elements, both of which had to be present before the jury could find the defendant liable. No error requiring reversal occurred with regard to the jury instructions. Affirmed. Hoekstra, P.J., dissenting, stated that the matter should be reversed on the basis that the trial court erred in denying the defendant’s motion for a directed verdict. The majority blurred the factual and legal distinctions between the common-law fraud and silent fraud theories under which the plaintiff proceeded at trial. The plaintiff did not present evidence to support the threshold element of a silent fraud claim regarding the defendant’s duty to disclose. The common-law fraud claim, based on the defendant’s alleged representations that it intended to provide the plaintiff with sufficient time and resources to establish his program, should have been dismissed by the granting of the defendant’s motion for a directed verdict. Even if the alleged representations constitute representations of the defendant’s intent, no evidence established that the statements were, in fact, false when the defendant made them. 1. Damages — Torts — At-Will Employees — Future Lost Wages. A plaintiff who was an at-will employee may be entitled to only nominal damages in a breach of contract action against the plaintiff’s employer, but the same is not true in a tort action against the employer where nominal damages would not provide a meaningful remedy for the employee who was defrauded or sufficiently deter the unscrupulous employer; an award of future lost wages may be appropriate in such a tort action. 2. Appeal — Jury Instructions. Jury instructions are reviewed as a whole to determine whether they adequately informed the jury of the applicable law, given the evidentiary claims of the case. Green, Green & Craig, P.C. (by Philip Green), for the plaintiff. Dickinson, Wright, Moon, Van Dusen & Freeman (by Robert W. Powell), for the defendant. Before: Hoekstra, P.J., and Wahls and Grebbs, JJ. Wahls, J. In this fraud action, a jury awarded plaintiff $175,000 in damages stemming from his decision to accept employment with defendant and his subsequent layoff. Defendant now appeals as of right. We affirm. Many of the facts in this case are undisputed. Plaintiff was working in the aerospace division at General Electric in 1992 when he began looking for other employment. He interviewed for a job with defendant in September or October 1992. At that interview, he was given a copy of defendant’s operating summary for the fiscal year ending September 30, 1991. The parties did not engage in further discussion of the operating summary or of defendant’s financial condition at that time. Defendant was apparently interested in hiring plaintiff to develop a new program in high-performance computing. There was some discussion regarding the length of time defendant would be willing to support such a program before it became self-sustaining. However, neither party made any definite statements about how long they expected this process to take. Defendant hired plaintiff in January 1993. Sometime between 1991 and 1994, defendant apparently suffered financial reverses. Plaintiff’s employment was reduced to eighty percent in January 1994, and he was notified of an impending layoff in June of that year. He resigned a month later in exchange for a $10,000 consulting agreement. He then filed the current suit, alleging that defendant committed fraud in order to induce him to accept its offer of employment. He alleged that defendant made knowingly false representations regarding its disposition and ability to fund long-range product development. According to plaintiff, defendant’s financial position had weakened significantly between the time of the 1991 operating summary and the time he was hired. He argued that he would not have accepted the job if he had known defendant’s actual financial status. The case was submitted to the jury on theories of fraudulent misrepresentation and silent fraud. Using a simple verdict form that did not indicate which theory it was relying on, the jury awarded plaintiff $175,000 in damages. On appeal, defendant first argues that the trial court erred in denying its motions for a directed verdict and for judgment notwithstanding the verdict (jNOV)with regard to plaintiffs fraudulent misrepresentation claim. Defendant contends that plaintiff failed to present any evidence of an affirmative misrepresentation that would allow the jury to hold defendant liable on that basis. We disagree. We have recently summarized the appropriate standards of review: The standard of review for jnov requires review of the evidence and ail legitimate inferences in the light most favorable to the nonmoving party. Only if the evidence, so viewed, fails to establish a claim as a matter of law, should a motion for JNOV be granted. Similarly, in deciding a motion for a directed verdict, the trial court must consider the evidence in the light most favorable to the nonmoving party, making all reasonable inferences in favor of the non-moving party. This Court reviews all the evidence presented up to the time of the motion to determine whether a question of fact existed. [Phinney v Perlmutter, 222 Mich App 513, 524-525; 564 NW2d 532 (1997) (citations omitted).] We review the trial court’s decision de novo. Meagher v Wayne State Univ, 222 Mich App 700, 708; 565 NW2d 401 (1997), lv pending. There are six essential elements of a fraud claim: (1) that the defendant made a material representation; (2) that it was false; (3) that when the defendant made it the defendant knew that it was false, or that the defendant made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that the defendant made it with the intention that it should be acted on by the plaintiff; (5) that the plaintiff acted in reliance on it; and (6) that the plaintiff thereby suffered injury. Candler v Heigho, 208 Mich 115, 121; 175 NW 141 (1919), overruled in part on other grounds in United States Fidelity & Guaranty Co v Black, 412 Mich 99, 120-121; 313 NW2d 77 (1981); Clement-Rowe v Michigan Health Care Corp, 212 Mich App 503, 507; 538 NW2d 20 (1995). “ ‘Each of these facts must be proved with a reasonable degree of certainty, and all of them must be found to exist; the absence of any one of them is fatal to a recovery.’ ” Candler, supra at 121 (citation omitted). Defendant’s contention that it made no affirmative misrepresentations ignores the fact that the jury could have found that defendant’s presentation of its 1991 operating summary to plaintiff in September 1992 was a misrepresentation. Defendant repeatedly argues that the 1991 operating summary was clearly labeled “For the Fiscal Year Ending September 30, 1991,” and, therefore, that it could not have constituted a misrepresentation regarding defendant’s financial position in 1992, and that plaintiff could not have been misled by it. The flaw in this argument is exposed by simply asking: Why did defendant give plaintiff a copy of its 1991 operating summary? Clearly, the act of giving plaintiff the operating summary constituted an endorsement of its contents and a representation that the summary was somehow a reflection of defendant’s current financial strength. This was obviously a material representation, and the act of giving the operating summary to plaintiff during a job interview allowed the jury to infer that defendant intended that plaintiff act on it. In addition, there was evidence that, at the time defendant gave plaintiff the 1991 operating summary, it had more current financial information that suggested that it was in a much weaker financial position than it was in September 1991. From this evidence, the jury could have concluded that the representation regarding defendant’s financial strength was false and that defendant knew that it was false when made. Finally, plaintiff testified that he relied on this representation in making his decision to accept defendant’s offer of employment, and there was evidence that plaintiff suffered injury. Consequently, we find no error in the trial court’s decision to deny defendant’s motions for a directed verdict and for JNOV regarding plaintiff’s fraudulent misrepresentation claim. Defendant next argues that plaintiff’s claim for future lost wages was too speculative to be submitted to the jury. We disagree. Defendant contends that, because plaintiff was an at-will employee, he was only entitled to nominal damages. While this might be true in a breach of contract action, Sepanske v Ben dix Corp, 147 Mich App 819, 828-829; 384 NW2d 54 (1985), it is not the case in a tort action. Phillips v Butterball Farms Co, Inc (After Second Remand), 448 Mich 239, 241-242, 253-254; 531 NW2d 144 (1995). While Phillips involved a retaliatory discharge claim, we believe the same logic applies here. Nominal damages would not provide a meaningful remedy for an employee who is defrauded, nor would they sufficiently deter unscrupulous employers. See id. at 254. Indeed, extending Sepanske to tort claims would allow a tortfeasor to avoid paying damages for future wage loss any time the injured party was an at-will employee. We decline to extend Sepanske beyond breach of contract actions. While the exact amount of future wage loss cannot be fixed with mathematical certainty, there was evidence from which the jury could estimate plaintiff’s future wage loss. The trial court did not err in allowing the jury to consider plaintiff’s claim for future wage loss. Finally, defendant challenges one of the jury instructions. The trial court read the following instruction regarding the knowledge of a corporation: “The knowledge of an individual officer or employee at a certain level of responsibility will be deemed to be the knowledge of a corporation.” We review jury instructions as a whole to determine whether the instructions adequately informed the jury of the applicable law, given the evidentiary claims of the case. Holland v Liedel, 197 Mich App 60, 65; 494 NW2d 772 (1992). While the challenged instruction was not necessary in this case, the instructions as a whole adequately presented the applicable law. Defendant relies on Adams v Nat’l Bank of Detroit, 444 Mich 329; 508 NW2d 464 (1993), for the proposition that this instruction was improper. Indeed, Adams does stand for the proposition that “collective knowledge” cannot be the basis for a finding of intent: “We hold that intent to commit tortious acts cannot be imputed to a corporation on the basis of disconnected facts possessed by various employees or agents of that corporation, where there is no evidence that any employee possessed the requisite state of mind.” Id. at 368-369 (Brickley, J.), 343 (Boyle, J.). However, the instructions in this case did not permit the jury to find intent on the basis of collective knowledge. The jury was instructed as follows regarding plaintiff’s silent fraud claim: To establish fraud based on the failure to disclose facts, the plaintiff has the burden of proving each of the following elements by clear and convincing evidence: First, that the defendant failed to disclose material facts about the financial condition of ERIM, the defendant. Second, that the defendant had actual knowledge of these facts. The knowledge of an individual officer or employee at a certain level of responsibility will be deemed to be the knowledge of a corporation. Third, that the defendant’s failure to disclose these facts caused the plaintiff to have a false impression. Next, that when the defendant failed to disclose those facts, the defendant knew that failure would create that false impression. Next, when the defendant failed to disclose the facts, the defendant intended that the plaintiff rely on the resulting false impression. Clearly, knowledge and intent were described as separate elements, both of which had to be present before the jury could find defendant liable. Thus, Adams is simply inapplicable; the instructions here did not permit the jury to infer intent on the basis of a “collective knowledge” theory. While the trial court would have been better advised to omit the challenged instruction, we find no error requiring reversal. Affirmed. Gribbs, J., concurred. We use the phrase “fraudulent misrepresentation” to denote a standard fraud claim based on an affirmative statement. In contrast, “silent fraud” involves a failure to disclose information where there is a duty to do so. Defendant would have us construe its action as no more than a statement of its financial condition as of September 31, 1991. Such a construction defies common sense. When defendant gave plaintiff the operating summary in September or October 1992, it was clearly offering it as some indication of its current financial strength. Thus, the representation was not “Here is our 1991 operating summary, which is irrelevant in regard to our current financial strength.” Rather, it was effectively “Here is our 1991 operating summary, which reflects, at least to some degree, our current financial situation.” Hoekstra, P.J. (dissenting). I respectfully dissent. I would conclude that the trial court erred in denying defendant’s motion for a directed verdict. Accordingly, I would reverse the judgment for plaintiff. The majority supplies the following six elements of a fraud claim: (1) that the defendant made a material representation; (2) that it was false; (3) that when the defendant made it the defendant knew that it was false, or that the defendant made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that the defendant made it with the intention that it should be acted on by the plaintiff; (5) that the plaintiff acted in reliance on it; and (6) that the plaintiff thereby suffered injury. Clement-Rowe v Michigan Health Care Corp, 212 Mich App 503, 507; 538 NW2d 20 (1995). Although these are the proper elements for a traditional common-law fraud claim, the majority blurs the factual and legal distinctions between this and a second fraud theory under which plaintiff proceeded at trial. See Lorenzo v Noel, 206 Mich App 682, 684-685; 522 NW2d 724 (1994). Here, plaintiff alleged that defendant committed not only traditional common-law fraud on the basis of a false representation to plaintiff, but also silent fraud on the basis of its failure to disclose material facts. A silent fraud claim differs from a traditional fraud claim in that the false representation needed to establish the first three elements of fraud may be shown by the defendant’s failure to divulge a fact that the defendant had an affirmative duty to disclose. Clement-Rowe, supra at 508. Plaintiff’s silent fraud claim is based on the fact that early in the five-month courtship of plaintiff, defendant gave plaintiff a 1991 operating summary, which demonstrated consistent growth in revenue, but defendant later failed to disclose its changing financial condition in the form of 1992 financial statements, which showed a loss in revenue. Additionally, plaintiff claims that defendant failed to disclose that it laid off approximately seventy employees in 1992. Thus, plaintiff argues that defendant had a duty to disclose its adverse financial conditions to him and intended to induce him to rely on its nondisclosure. However, on the facts of this case, defendant had no affirmative duty to disclose the 1992 financial information. This Court in Clement-Rowe, supra at 508-509, stated that an employer may not be permitted to avoid liability after omitting to disclose, when asked, known economic instability that later led to economically based layoffs. Here, plaintiff never asked defendant about its financial condition during the interview process. Because plaintiff did not present evidence to support the threshold element of defendant’s duly to disclose, I would conclude that the trial court erred in denying defendant a directed verdict with regard to plaintiffs silent fraud claim. Plaintiff’s second theory of recovery, his false representation or traditional common-law fraud claim, is based on defendant’s alleged representations during the interview process that it intended to provide plaintiff with sufficient time and resources to establish his program. Specifically, plaintiff relies on an anecdote about a past program that defendant supported for ten years before the program was profitable and a statement in defendant’s subsequent offer of employment that defendant was “highly committed over the near- and long-term” to participation in defendant’s specialty area. Even assuming that these two items constitute representations of defendant’s intent, plaintiff has presented no evidence to establish that the statements were, in fact, false when defendant made them. The fact that plaintiff inferred from the anecdote and the statement in the letter an amount of time longer than that which actually transpired, does not constitute fraud on the part of defendant when neither party stipulated a specific length of time. Therefore, I would conclude that the trial court erred in denying defendant a directed verdict with regard to plaintiff’s false representation claim as well. Last, I note that I agree with the majority’s analysis of defendant’s remaining issues on appeal, although my resolution of the directed verdict issue makes it unnecessary to reach these issues.

KYLE R. PASCHAL, Plaintiff v. JERRY D. MYERS, Personally and in his Official Capacity as County Manager of Rockingham County, North Carolina; W. WAYNE GARRISON, Personally and in his Official Capacity as Director of Rockingham County Emergency Medical Services; and ROCKINGHAM COUNTY, a Political Subdivision of the State of North Carolina, Defendants No. COA97-193 (Filed 17 March 1998) 1. Labor and Employment § 54 (NCI4th)— employee handbook — personnel policies — adoption as ordinance — not part of employment contract A county’s personnel policies set forth in its employee handbook did not become a part of a former EMS employee’s contract of employment because the county commissioners had adopted the personnel policies as an ordinance. Therefore, plaintiff EMS employee remained an employee at will, and summary judgment was properly entered against plaintiff on his breach of contract claim based on the county’s alleged failure to follow its personnel policies in terminating his employment. 2. Constitutional Law § 105 (NCI4th); Labor and Employment § 63 (NCI4th)— county EMS employee — property interest in employment — creation by ordinance A former county EMS employee showed an enforceable property interest in continued employment created by ordinance in that the county’s employee handbook, which had been adopted as an ordinance, created the reasonable expectation of continued employment -within the meaning of the Due Process Clause. 3. Public Officers and Employees § 35 (NCI4th)— county officials — sued in official capacities A county manager and a county EMS director were sued only in their official capacities where the complaint failed to assert any allegations to show that these defendants were acting in any manner other than in their official capacities, and there were no allegations that defendant’s actions were corrupt or malicious or that defendants acted outside the scope of their duties. 4. Labor and Employment § 69 (NCI4th)— pre-termination due process — meetings sufficient Two meetings between plaintiff and county EMS officials prior to the termination of plaintiff’s employment with the county EMS met due process requirements where, at the first meeting, the EMS training officer gave plaintiff a copy of a letter from plaintiff’s supervisor alleging that plaintiff had filed a workers’ compensation claim falsely stating that an injury to his finger was work-related, informed plaintiff that he could make a written statement explaining his side of the story, and gave plaintiff a memorandum suspending him for three days pending an investigation of the allegations in the letter; and at the second meeting, the training officer, supervisor and plaintiff listened to a tape recording of plaintiff’s telephone calls on the night plaintiff hurt his finger, plaintiff presented a written incident report, and the training officer gave plaintiff a memorandum which summarized her investigation of the allegations against him and her reasons for his dismissal. 5. Labor and Employment § 69 (NCI4th)— post-termination due process — hearings sufficient Plaintiff former county EMS employee was accorded post-termination due process where plaintiff was provided all of the evidence upon which an EMS training officer relied in deciding to dismiss him; the director of EMS reviewed plaintiff’s dismissal at a hearing at which plaintiffs attorney made an oral presentation and submitted a written statement on plaintiffs behalf and plaintiff spoke in his own behalf; the county manager then conducted an evidentiary hearing at which plaintiff was represented by counsel, who presented evidence and cross-examined witnesses, and at which plaintiff testified in his own behalf; and plaintiff failed to present any real evidence that the county manager relied upon the opinions of the county attorney or county personnel officer in making his decision. Appeal by plaintiff from order entered 31 October 1996. by Judge Melzer A. Morgan, Jr. in Rockingham County Superior Court. Heard in the Court of Appeals 8 October 1997. Puryear and Lingle, P.L.L.C., by David B. Puryear, Jr., for plaintiff-appellant. Womble Carlyle Sandridge & Rice, a Professional Limited Liability Company, by James R. Morgan, Jr., for defendants-appellees. TIMMONS-GOODSON, Judge. Plaintiff Kyle R. Paschal filed this wrongful termination action on 22 November 1995 against defendants Jerry D. Myers, W. Wayne Garrison, and Rockingham County. In his complaint, plaintiff alleged that he had been terminated from permanent employment with defendant County in violation of his contractual and statutory rights not to be discharged except for adequate cause, in violation of the procedural rights accorded him by the Rockingham County personnel ordinance, in violation of the state personnel records privacy law, and in violation of his due process rights under the Law of the Land Clause of the North Carolina Constitution. Defendants filed their answer on 26 December 1995, denying the material allegations of plaintiff’s complaint, and asserting affirmative defenses including governmental and official immunity, failure to exhaust administrative remedies, and failure to mitigate damages. Thereafter, on 12 September 1996, defendants filed a motion for summary judgment. This motion was heard by Judge Melzer A. Morgan, Jr. during the 11 October 1996 civil session of Rockingham County Superior Court. The evidence tends to show that plaintiff had been employed by defendant County with its Emergency Medical Service (hereinafter “EMS”) as an emergency medical technician-paramedic since August 1992. In June 1993, plaintiff became a full-time, non-probationary employee of defendant County. At all times during plaintiffs employment, defendant County had an established employment policy, which had been enacted as an ordinance of Rockingham County. On 20 May 1995, plaintiff fractured the little finger on his right hand. On 22 May 1995, plaintiff completed a North Carolina Industrial Commission Form 19 (hereinafter “I.C. Form 19”), indicating that he had been injured during and in the course of employment. This form was submitted to an EMS officer on or about 1 June 1995. Upon receiving a copy of this form, plaintiff’s immediate supervisor, Lisa King, asked EMS Training Officer, Phyllis Paschall, to investigate plaintiffs statement that he had been injured during and in the course of employment. King told Paschall that plaintiff had previously indicated that he had hurt his finger while vacuuming, but had told other EMS employees that he had injured his finger during and in the course of employment, in accordance with the statement on the I.C. Form 19 injury report. Plaintiff met with Paschall and King on 1 June 1995, and was suspended from employment pending investigation of King’s allegations that plaintiff had falsified the I.C. Form 19 injury report. Subsequently, Paschall took the statements of several of plaintiff’s coworkers, who confirmed King’s version of the cause of plaintiff’s injury. These witnesses stated that they had heard plaintiff tell King, during a telephone conversation, that he had injured his finger while vacuuming. Paschall also listened to a C-Comm tape of plaintiff’s telephone calls on the evening of 20 May 1995, during which plaintiff discussed the cause of his injury. As a result of the information obtained during her investigation, on 5 June 1995, Paschall executed a written notice of termination discharging plaintiff from employment. The reasons for termination stated therein included falsification of a county record for profit, and discourteous treatment of another county employee. Plaintiff has at all times denied telling King that he had injured himself while vacuuming. Moreover, plaintiff contends that he never had notice of any problems with his job performance, specifically, in reference to discourteous treatment of another county employee before termination. On 13 June 1995, plaintiff submitted a written request for review of his termination to the Director of Rockingham County EMS, defendant W. Wayne Garrison. Defendant Garrison held a conference on this matter on 8 August 1995. Upon review of the evidence utilized by Paschall in making her decision, defendant Garrison issued a ruling on 14 August 1995, upholding plaintiff’s dismissal for the reasons stated in Paschall’s 5 June 1995 notice of termination. Defendant Garrison concluded that dismissal was proper because plaintiffs alleged misrepresentation of the cause of his finger injury indicated that plaintiff “may lie about giving medicine.” Thereafter, plaintiff requested a hearing before defendant Jerry D. Myers, Rockingham County Manager. Defendant Myers conducted a full, evidentiary hearing in this matter on 3 October 1995, and, on 27 October 1995, issued a ruling upholding plaintiffs termination. Therein, defendant Myers found that plaintiff had injured his finger on 20 May 1995 during a violent altercation with a guest of the department, Amanda West, resulting in their both having to receive medical treatment; that this altercation led to plaintiffs injury; and that plaintiff made a conscious effort to mislead his supervisors as to the cause of his injury. After reviewing all of the evidence before him, Judge Morgan entered an order granting defendants’ motion for summary judgment. Plaintiff appeals. Plaintiff brings forth but one assignment of error on appeal, by which he argues that the trial court erred in granting defendants’ motion for summary judgment. For the reasons discussed herein, we cannot agree, and accordingly, affirm the decision of the trial court. Summary judgment is properly granted if, viewing the evidence in the light most favorable to the non-movant, there is no genuine issue of material fact, and any party is entitled to judgment as a matter of law. N.C.R. Civ. P. 56. The moving party bears the burden of showing a lack of issue of triable fact, and may meet this burden by showing the non-moving party cannot prove the existence of an essential element of his claim or cannot surmount an affirmative defense which would bar the claim. Messick v. Catawba County, 110 N.C. App. 707, 712, 431 S.E.2d 489, 492-93 (citing Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 62-63, 414 S.E.2d 339, 342 (1992)), disc. review denied, 334 N.C. 621, 435 S.E.2d 336 (1993). I. Breach of Contract Claim First, plaintiff contends that his contract of employment was governed by the County’s personnel policies included in its Employee Handbook. As those policies were properly a part of plaintiffs contract of employment, plaintiff asserts that there are disputed issues of fact as to whether defendants carried out his suspension and dismissal in breach of his contract of employment. Irrefutably, North Carolina caselaw mandates that in the absence of an employment contract for a definite period, the employment is presumed to be “at will,” terminable at the will of either employer or employee. Soles v. City of Raleigh Civil Service Comm., 345 N.C. 443, 446, 480 S.E.2d 685, 687, reh’g denied, 345 N.C. 761, 485 S.E.2d 299 (1997). Our Supreme Court has recognized two exceptions to the terminable-at-will doctrine: (1) “where plaintiff-employee is assured that he cannot be fired except for incompetence and ‘where the employee gives some special consideration in addition to his services,’ ” Howell v. Town of Carolina Beach, 106 N.C. App. 410, 416, 417 S.E.2d 277, 280 (1992) (quoting Sides v. Duke University, 74 N.C. App. 331, 345, 328 S.E.2d 818, 828, 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)) (alteration in original); and (2) “where an employment contract is terminated ‘for an unlawful reason or purpose that contravenes public policy.’ ” Id. at 416, 417 S.E.2d at 281 (quoting Coman v. Thomas Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989)). Additionally, “in some circumstances employee manuals setting forth reasons and procedures for termination may become part of the employment contract even where an express contract is nonexistent,” so as to negate the terminable-at-will doctrine. Salt v. Applied Analytical, Inc., 104 N.C. App. 652, 655, 412 S.E.2d 97, 99 (1991) (citing 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)), cert. denied, 331 N.C. 119, 415 S.E.2d 200 (1992). Notably, however, “ ‘unilaterally promulgated employment manuals or policies do not become [a] part of the employment contract, unless expressly included [therein].’ ” Howell, 106 N.C. App. at 414, 417 S.E.2d at 279 (quoting Walker, 77 N.C. App. at 259, 335 S.E.2d at 83-84). In the instant case, plaintiff was a non-probationary, permanent employee for an indefinite term, i.e., an at-will employee. Further, plaintiff’s case does not come within any of the public policy exceptions to the terminable-at-will doctrine. Plaintiff has not presented any evidence to show that the County’s Employee Handbook was given to him at the time of his employment, that he had to sign indicating its receipt and his understanding of the Handbook’s contents, or any other evidence that the Handbook’s personnel policies had been made a part of his employment contract. Plaintiff maintains, however, the mere fact that the Rockingham County Board of County Commissioners had adopted, as an ordinance, the County’s personnel policies contained in the Handbook demands that the Handbook’s personnel policies were a part of his contract. This argument is unpersuasive. This Court in Howell, 106 N.C. App. 410, 417 S.E.2d 277, was presented with similar circumstances, where the Town Council of Carolina Beach had adopted and issued a “Personnel Policies and Procedures Manual (pursuant to section 160A-164 of the North Carolina General Statutes).” In that case, this Court declined to hold that the mere adoption of the Town’s personnel policies as an ordinance would necessitate the conclusion that the policies had been included in the plaintiff’s employment contract. Id. In accordance with Howell, we decline to hold that mere adoption of Rockingham County’s Employee Handbook’s personnel policies as an ordinance, makes those personnel policies a part of plaintiff’s employment contract. As plaintiff has failed to show that the Handbook’s personnel policies were expressly included in his employment contract, summary judgment was properly granted on plaintiff’s breach of contract claim. II. Due Process Claim Plaintiff also contends that there are issues of fact as to whether defendants denied him due process of law by failing to adequately and fairly notify him prior to his termination and post-termination appeals of the evidence, which was the alleged basis for his suspension and dismissal, and by rendering decisions which were arbitrary and capricious. While defendants contend otherwise, plaintiff has sufficiently shown that an enforceable property interest in continued employment was “created by ordinance,” in this case. See Burwell v. Griffin, 67 N.C. App. 198, 209, 312 S.E.2d 917, 924 (quoting Bishop v. Wood, 426 U.S. 341, 344-45, 48 L. Ed. 2d 684, 690 (1976)), appeal dismissed and disc. review denied, 311 N.C. 303, 317 S.E.2d 678 (1984). Herein, the Employee Handbook, which was also a town ordinance, created the reasonable expectation of continued employment within the meaning of the Due Process Clause. See Howell, 106 N.C. App. at 417, 417 S.E.2d at 281 (comparing the Town of Carolina Beach’s ordinance to the rights given State employees pursuant to N.C. Gen. Stat. § 126-35 (1991), which has been held to create a reasonable expectation of employment and a property interest within the meaning of the Due Process Clause). We must, therefore, decide whether plaintiff received the process he was due. In order to facilitate discussion of this question, however, we must first address the capacities in which the defendants are being sued. We note that while the caption of the complaint alleges that plaintiff is suing defendants Garrison and Myers in their individual and official capacities, the complaint fails to assert any allegations that show that these defendants were acting in any manner other than their official capacities. Moreover, the general rule is that “a ‘public official’ is immune from personal liability for ‘mere negligence’ in the performance of those duties, but he is not shielded from liability if his alleged actions were ‘corrupt or malicious’ or if ‘he acted outside and beyond the scope of his duties.’ ” Wiggins v. City of Monroe, 73 N.C. App. 44, 49, 326 S.E.2d 39, 43 (1985) (citations omitted), quoted in Thompson Cadillac-Oldsmobile, Inc. v. Silk Hope Automobile, Inc., 87 N.C. App. 467, 469, 361 S.E.2d 418, 420 (1987), disc. rev. denied, 321 N.C. 480, 364 S.E.2d 672 (1988). The facts fail to show any actions of the magnitude to pierce the cloak of official immunity, so as to allow defendants Myers and Garrison to be sued in their individual capacities. We conclude, then, that defendants Myers and Garrison may only be sued in their official capacities, as Rockingham County Manager and Director of Rockingham County EMS, respectively. The County, of course, may be derivatively liable for the actions of defendants Myers and Garrison if they have waived immunity from suit. See N.C. Gen. Stat. § 153A-435 (1991). A. Pre-termination Due Process In Cleveland Bd. of Educ. v. Loudermill, the United States Supreme Court determined that the Due Process Clause requires “ ‘an individual be given an opportunity for a hearing before he is deprived of any significant property interest.’ ” 470 U.S. 532, 542, 84 L. Ed. 2d 494, 503-04 (1985) (citation omitted) (emphasis omitted). The employee must have a pre-termination opportunity to respond to the allegations against him. This pre-termination opportunity to respond is “ ‘an initial check against mistaken decisions — essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.’ ” Leiphart v. N.C. School of the Arts, 80 N.C. App. 339, 349, 342 S.E.2d 914, 922 (quoting Loudermill, 470 U.S. at 545-46, 84 L. Ed. 2d at 506), cert. denied, 318 N.C. 507, 349 S.E.2d 862 (1986). The employer must also provide the employee with “oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.” Loudermill, 470 U.S. at 546, 84 L. Ed. 2d at 506. This evidence need not include all evidence on a charge, or even the documentary evidence in support thereof; rather, due process only requires that a descriptive explanation be given the employee so as to permit him to identify that conduct giving rise to the dismissal so that the employee may make a response. Linton v. Frederick County Bd. of County Com’rs, 964 F.2d 1436, 1440 (4th Cir. 1992). In this case, on 1 June 1995, plaintiff met with Lisa King, his supervisor, and EMS Training Officer, Phyllis Paschall. At this time, Paschall gave plaintiff a copy of King’s letter to Paschall, indicating that plaintiff had told King that he broke his finger while vacuuming, but had stated on his I.C. Form 19 injury report that he had broken his finger during and in the course of employment. Plaintiff denied these allegations. Plaintiff was informed that he had the opportunity to make a written statement, explaining his side of the story. Finally, Paschall gave plaintiff a short memorandum informing him that he was being suspended for three days, pending investigation of King’s allegations, and instructing him to report to Paschall on 5 June 1995 for further discussion and action. At plaintiff’s 5 June 1995 meeting with King and Paschall, the three listened to a C-Comm tape of plaintiff’s telephone calls on the night that plaintiff hurt his finger. While King and Paschall believed that the C-Comm

COLLINS v BLUE CROSS BLUE SHIELD OF MICHIGAN Docket No. 200333. Submitted December 3, 1997, at Detroit. Decided March 13, 1998, at 9:05 am. Leave to appeal sought. Irma Collins and Blue Cross Blue Shield of Michigan (bcbsm) submitted to arbitration her claim that bcbsm, in terminating her employment, had discriminated against her on the basis of a psychiatric disorder in violation of the Americans with Disabilities Act (ada), 42 USC 12101 et seq., and the Michigan Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq. Collins had gone on psychiatric disability, bcbsm, seeking to confirm Collins’ continued eligibility for disability benefits, had her evaluated by a psychiatrist other than the one who was treating her. The psychiatrist chosen by bcbsm had reported back to bcbsm that Collins stated that she had thought of killing her immediate supervisor but had decided not to do so when a strike caused the redeployment of the staff in her department. The arbitrator ruled in Collins’ favor and ordered Collins reinstated with back pay. The Wayne Circuit Court, J. Phillip Jourdan, J, confirmed the arbitration award. Bcbsm appealed. The Court of Appeals held: 1. The arbitration agreement between the parties was not made invalid by a provision that allowed judicial review for errors of law. The provision is consistent with MCL 600.5001 et seq.; MSA 27A.5001 et seq., and MCR 3.602, which govern statutory arbitration awards. Under the court rule, a statutory arbitration award may be vacated in limited circumstances, such as when an arbitrator’s powers are exceeded. An arbitrator’s scope of authority is exceeded when the arbitrator acts in contravention of controlling principles of law. 2. The arbitrator in this case committed an error of law in ruling that Collins’ discharge violated the ada and the hcra. Collins did not establish a prima facie case under the ada or the hcra. The ada requires a claimant to prove qualification to perform the essential functions of the job, and the hcra requires a claimant to prove that the claimant’s handicap was unrelated to ability to perform the duties of the job or position or was unrelated to the claimant’s qualifications for employment. Here, Collins’ homicidal ideation left her unqualified for employment by bcbsm. A discharge for misconduct does not violate the ADA or the hcra, even where the misconduct is a manifestation of the employee’s disability, bcbsm’s perception that Collins was a risk to workplace safety, as opposed to any actual instances of Collins endangering the workplace, was sufficient cause for discharge in view of the specific and detailed threat made by Collins. Reasonable accommodation for a disabled or handicapped employee is required of an employer by the ada and the hcea only where the employee is qualified for employment. Circuit court order confirming arbitration award vacated. 1. Arbitration — Judicial Review. A statutory arbitration award may be vacated in limited circumstances, such as where an arbitrator evidences partiality, refuses to hear material evidence, or exceeds powers (MCL 600.5001 et seq.; MSA 27A.5001 et seq.; MCR 3.602). 2. Arbitration — Arbitrator’s Scope op Authority. An arbitrator’s scope of authority is exceeded where the arbitrator acts beyond the material terms of the contract from which authority is drawn, or in contravention of controlling principles of law. 3. Civil Rights — Americans With Disabilities Act — Michigan Handicappers’ Civil Rights Act — Employment Discrimination — Misconduct. A prima facie case of employment discrimination in violation of the Americans with Disabilities Act or the Michigan Handicappers’ Civil Rights Act requires a demonstration by the employee of qualification to perform the job; misconduct, even if a manifestation of a disability or handicap, disqualifies an employee such that a discharge for misconduct cannot violate either act (42 USC 12101 et seq.; MCL 37.1101 et seq.; MSA 3.550[101] et seq.). 4. Civil Rights — Americans With Disabilities Act — Michigan Handicappers’ Civil Rights Act — Employment Discharge — Misconduct — Homicidal Threats. An employer’s perception of an employee as a risk to workplace safety, formed from a report of specific and homicidal ideation by the employee involving a co-worker by a psychiatrist assigned by the employer to evaluate the employee’s continued qualification for disability benefits for a psychiatric condition, provides a sufficient ground for discharge for misconduct; such a discharge does not violate the Americans with Disabilities Act or the Michigan Handicappers’ Civil Rights Act (42 USC 12101 et seq.; MCL 37.1101 et seq.; MSA 3.550[101] et seq.). 5. Ckil Rights — Americans With Disabilities Act — Michigan Handicappers’ Civil Rights Act — Employment Discrimination — Reasonable Accommodation. An employers’ duty under the Americans with Disabilities Act and the Michigan Handicappers’ Civil Rights Act to make reasonable accommodations for an employee’s disability or handicap extends only to those who are qualified for employment, i.e., whose disabilities or handicaps are unrelated to their abilities to perform their jobs (42 USC 12101 et seq.; MCL 37.1101 et seq.; MSA 3.550[101] et seq.). Nelson S. Chase and William L. Fischel, for the plaintiff. Kienbaum Opperwall Hardy & Pellón, P.L.C. (by Theodore R. Opperwall and Noel D. Massie) (Frank W. Jackson, of Counsel), for the defendant. Before: Holbrook, Jr., P.J., and Young and J. M. Batzer, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Per Curiam. While plaintiff was on psychiatric disability leave from her employment with defendant, plaintiff expressed homicidal ideation regarding her immediate supervisor to a psychiatrist assigned to evaluate her disability claim. After she returned to work, plaintiff was terminated as a result of those statements. Plaintiff claimed discrimination under the Americans with Disabilities Act (ADA), 42 USC 12101 et seq., and the Michigan Handicappers’ Civil Rights Act (HCRA), MCL 37.1101 et seq., MSA 3.550(101) et seg.The matter was submitted to binding arbitration and, following a hearing, the arbitrator ruled in plaintiff’s favor. Eventually, an order confirming the arbitrator’s ruling was entered by the circuit court. Defendant now brings this appeal, and we vacate the arbitrator’s decision. i In 1985, plaintiff began working for defendant as a secretary, and in 1989 she was promoted to administrative analyst. Plaintiff generally received positive performance reviews until she was promoted to the position of technical writer in 1992. Plaintiff’s immediate supervisor, Marjorie Jacobson, criticized plaintiff’s substandard work and plaintiff became very sensitive to this criticism. Todd Harrison, a human-resources specialist who was brought in to address the problem, concluded that plaintiff had been promoted beyond her skill level and that she “would not be a good candidate for reassignment within the company as her performance/interpersonal skill deficiencies precede her.” Shortly after receiving her performance appraisal from Derek Knight, her manager, plaintiff began a medical leave of absence for job stress. Plaintiff was treated by Dr. Rosalind Griffin, who concluded that plaintiff suffered from major depression/adjustment disorder and was disabled from work. To confirm plaintiff’s continued eligibility for disability benefits, defendant’s benefit plan administrator arranged for plaintiff to be examined by another psychiatrist, Dr. Jolyn Welsh Wagner. At the interview, plaintiff was angry because Dr. Wagner arrived twenty-five minutes late and because she believed defendant had disseminated information to her coworkers that she was undergoing psychiatric care. In an interim report sent to defendant’s plan administrator on the same day as the examination, Dr. Wagner opined that plaintiff presented as an “angry hypervigilant, and extremely paranoid woman who made various threatening statements about her supervisor.” Plaintiff attributed her problems at work to racism perpetrated by Jacobson, who she described as a “white bitch,” and stated that she felt unsupported by Knight, her “Uncle Tom black manager.” The report further stated that plaintiff said Jacobson was “living on borrowed time” and warned that plaintiff’s comments should be taken seriously. In a more detailed report, Dr. Wagner indicated that plaintiff stated she “had killed [Jacobson] a thousand times in [her] mind,” and that she talked about “taking a .38 and blowing [Jacobson] away.” Plaintiff further indicated to Dr. Wagner that “she had thought of killing her supervisor prior to the [company] strike and had decided not to when the department was dispersed to other areas to meet the demands of the strike.” Defendant forwarded a copy of Dr. Wagner’s interim report to plaintiff’s treating physician, Dr. Griffin, and asked if she believed plaintiff posed a threat to Jacobson or others in the workplace. Dr. Griffin responded that she did not feel plaintiff had the ability to carry out her homicidal thoughts referenced in Dr. Wagner’s report, that plaintiff had not expressed similar thoughts during their sessions, and that she did not feel plaintiff was a danger to herself or others in the workplace. Dr. Griffin added that defendant should safeguard plaintiffs confidentiality and that plaintiffs prognosis for returning to work was uncertain because of plaintiffs belief that her coworkers had been informed of her psychiatric treatment. Dr. Griffin ultimately determined that plaintiff had recovered from her disability. When plaintiff returned to work she was terminated. Defendant had made the decision to terminate plaintiffs employment after receiving Dr. Wagner’s report, but delayed firing plaintiff until she returned to work. Plaintiff filed a request for binding arbitration pursuant to her employment agreement with defendant. Hearings were held before an arbitrator with regard to plaintiff’s claims that her discharge violated the ADA and the HCRA. During the hearing, defendant acknowledged that plaintiff’s statements to Dr. Wagner were the sole reason for plaintiffs termination. At the hearing, plaintiff testified that she did not recall making most of the statements attributed to her in Dr. Wagner’s report; although she did acknowledge calling Jacobson a liar and a bitch. Dr. Wagner testified in a deposition that she would not characterize plaintiff’s statements as “threats,” but rather as expressions of plaintiff’s thoughts. Dr. Wagner also stated that she would defer to the opinion of the treating physician, Dr. Griffin, with respect to whether plaintiff had recovered from her disability or whether she posed any actual threat to Jacobson. Dr. Griffin testified in her deposition that she never reported plaintiff’s homicidal ideation because she did not believe that plaintiff would act on it or that she otherwise posed any threat to Jacobson. The arbitrator ruled in plaintiffs favor with regard to both claims and ordered that plaintiff be reinstated with back pay to a “comparable, but not identical, position” under a different supervisor and at a different work site if possible. The award added that defendant had the right to satisfy itself that plaintiff did not present a threat to other employees by requiring plaintiff to be examined by another psychiatrist and to continue treatment if necessary. Specifically, the arbitrator found that plaintiff’s statements to Dr. Wagner were products of her psychiatric disability. The arbitrator also found that defendant was aware when it decided to terminate plaintiff’s employment that she suffered from a psychiatric disability that manifested itself in homicidal ideation. Therefore, the arbitrator concluded that defendant’s termination of plaintiff was a violation of both the ADA and the HCRA because defendant was not justified in considering plaintiff to be an unqualified person and did not have a nondiscriminatory basis for termination. On judicial review, the circuit court confirmed the arbitrator’s ruling. n On appeal, defendant argues that the trial court erred in affirming the arbitrator’s award because it was premised on an error of law. We agree. A The parties’ arbitration agreement included a provision for limited judicial review of the arbitrator’s decision: The decision of the arbitrator shall be final and binding; however, that limited judicial review may be obtained in a Michigan federal district court or Michigan circuit court of competent jurisdiction (a) in accordance with the standards for review of arbitration awards as established by law; or (b) on the ground that the arbitrator committed an error of law. We find this judicial review provision to be consistent with the provisions of MCL 600.5001 et seq.; MSA 27A.5001 et seq., and MCR 3.602, which govern “statutory arbitration” awards. See Gordon Sel-Way, Inc v Spence Bros, Inc, 438 Mich 488, 495; 475 NW2d 704 (1991). Under the court rule, a statutory arbitration award may be vacated in limited circumstances, such as where an arbitrator evidences partiality, refuses to hear material evidence, or exceeds powers. MCR 3.602(J)(1); Gordon Sel-Way, supra at 495-497. Arbitrators exceed the scope of their authority “whenever they act beyond the material terms of the contract from which they primarily draw their authority, or in contravention of controlling principles of law.” DAIIE v Gavin, 416 Mich 407, 434; 331 NW2d 418 (1982); Gordon Sel-Way, supra at 496. A reviewing court may vacate an arbitration award where it finds an error of law that is apparent on its face and so substantial that, but for the error, the award would have been substantially different. Gordon Sel-Way, supra at 497. Given these foregoing principles, we find no merit to plaintiffs argument that the parties’ arbitration agreement was invalid to the extent that it allowed judicial review for errors of law. As our Supreme Court stated in Gavin, supra at 433, “If the appellate judiciary has any proper function at all, it is to correct material error.” B The gravamen of this appeal requires us to determine whether the arbitrator committed an error of law in ruling that plaintiff was discharged because of her disability, rather than for her homicidal ideation toward her supervisor. Although we do not dispute the arbitrator’s finding of fact that plaintiff’s homicidal ideation was a product of her psychiatric condition, we conclude that the arbitrator committed an error of law in ruling that defendant’s discharge of plaintiff constituted discrimination under the ADA and the HCRA. We hold that plaintiff failed to establish a prima facie case of discrimination under the ADA or the HCRA because her homicidal ideation left her unqualified for employment with defendant and because defendant did not discharge her because of her disability. The federal ADA and this state’s HCRA have similar purposes and definitions, and utilize similar analyses. Stevens v Inland Waters, Inc, 220 Mich App 212, 216-217; 559 NW2d 61 (1996); Fritz v Mascotech Automotive Systems Group, Inc, 914 F Supp 1481, 1491 (ED Mich, 1996). To establish a prima facie case under the ADA, a plaintiff must demonstrate that (1) she was disabled, (2) she was qualified to perform the essential functions of the job, and (3) her employer subjected her to discriminatory treatment solely because of her disability. 42 USC 12112; Fritz, supra at 1491. Similarly, a prima facie case of discrimination under the HCRA is established where (1) the plaintiff is “handicapped” as defined in the statute, (2) the handicap is unrelated to the plaintiff’s ability to perform the duties of a particular job or position or is unrelated to her qualifications for employment or promotion, and (3) the plaintiff has been discriminated against in one of the ways set forth in the statute. MCL 37.1202(1); MSA 3.550(202)(1), MCL 37.1103(e)(i)(A); MSA 3.550(103)(e)(i)(A); Stevens, supra at 215. Defendant argues on appeal that, because plaintiff was discharged for her expressed homicidal ideation regarding her supervisor, not because of her disability, it did not act with discriminatory intent. Our review of the current state of the law regarding this issue supports defendant’s argument that a disabled employee may be discharged for misconduct, even where the misconduct is a manifestation of the employee’s disability. See, e.g., Maddox v Univ of Tennessee, 62 F3d 843, 848 (CA 6, 1995) (upholding discharge of a football coach for drunken driving, even though he claimed his behavior was the result of alcoholism); Landefeld v Marion General Hosp, Inc, 994 F2d 1178, 1181 (CA 6, 1993) (upholding discharge of an internist whose misconduct in pilfering colleagues’ hospital mailboxes was claimed to be a result of his mental illness); EEOC v Amego, Inc, 110 F3d 135, 149 (CA 1, 1997) (upholding discharge of nurse who, because of depression, attempted suicide by taking overdoses of prescription medications); Johnson v New York Hosp, 96 F3d 33, 34 (CA 2, 1996) (upholding discharge of hospital employee who claimed that off-duty scuffle with hospital security guards while intoxicated was a result of his alcoholism); Pesterfield v Tennessee Valley Authority, 941 F2d 437, 442 (CA 6, 1991) (upholding discharge of employee whose psychological condition rendered him hypersensitive to criticism and rejection in the workplace). Recently, in Palmer v Cook Co Circuit Court, 117 F3d 351 (CA 7, 1997), the Seventh Circuit Court of Appeals held that an ADA claim failed where the plaintiff had been discharged because of threats she made to her supervisor, not because of her diagnosed major depression/delusional disorder. Chief Judge Posner explained, id. at 352: There is no evidence that Palmer was fired because of her mental illness. She was fired because she threatened to kill another employee. The cause of the threat was, we may assume, her mental illness. . . . But if an employer fires an employee because of the employee’s unacceptable behavior, the fact that that behavior was precipitated by a mental illness does not present an issue under the Americans with Disabilities Act. The Act does not require an employer to retain a potentially violent employee. Such a requirement would place the employer on a razor’s edge — in jeopardy of violating the Act if it fired such an employee, yet in jeopardy of being deemed negligent if it retained him and he hurt someone. The Act protects only “qualified” employees, that is, employees qualified to do the job for which they were hired; and threatening other employees disqualifies one. A qualified individual with a disability is one who satisfies the requisite skill, experience, education, or other work-related requirements of the job and who can perform its essential functions with or without reasonable accommodation. 42 USC 12111(8). Simply put, the ADA does not cover all disabled persons, but only those who can perform their jobs’ essential functions with the aid of reasonable accommodation. Indeed, an express provision of the ADA allows employers to defend against a charge of discrimination by establishing certain employee “qualification standards” that are job-related, consistent with business necessity, and accomplished by reasonable accommodation. 42 USC 12113(a). “Qualification standards” include “a requirement that an individual shall not pose a direct threat to the health and safety of other individuals in the workplace.” 42 USC 12113(b). “Direct threat” means “a significant risk to the health and safety of others that cannot be eliminated by reasonable accommodation.” 42 USC 12111(3). Plaintiff argues that defendant impermissibly perceived her as a direct threat to workplace safety, despite the fact that she had never directly threatened her supervisor and despite the opinion of plaintiff’s treating psychiatrist that plaintiff would not act on her homicidal idea

J. Gibb Brownlie vs. Kanzaki Specialty Papers, Inc. No. 96-P-0592. Hampden. December 3, 1997. - March 12, 1998. Present: Jacobs, Gillbrman, & Spina, JJ. Anti-Discrimination Law, Age, Termination of employment, Prima facie case, Burden of proof, Damages. Employment, Discrimination, Termination. Limitations, Statute of. Evidence, Failure to produce witness. In a civil action, the judge did not err in ruling that the only event of alleged employment discrimination properly before the jury was the plaintiff’s claim of discharge, which was timely filed within six months as required by G. L. c. 151B, § 5. [412-413] Evidence presented at the trial of an age discrimination case warranted the jury’s finding that the plaintiff established a prima facie case that the defendant employer terminated the plaintiff’s employment due to his age, as well as the jury’s rejection of the defendant’s proffered explanation for the plaintiff’s discharge. [413-416] At the trial of a complaint alleging age discrimination in discharge from employment, error, if any, in the judge’s instructions regarding the defendant employer’s burden of persuasion in a mixed motive case was harmless, where the jury found that the defendant’s proffered explanation for the plaintiff’s termination was not a legitimate business reason and was merely a pretext for discrimination. [416-419] In an age discrimination case, the judge did not abuse his discretion in instructing the jury that they could draw an adverse inference from the failure of the defendant employer to call a key witness at trial, where the defendant failed to provide a plausible explanation as to why the witness was unable to testify. [419-420] Allegedly prejudicial remarks made during closing argument by the plaintiff’s counsel in an age discrimination case did not warrant a new trial. [420] In an age discrimination case, the trial judge properly awarded double damages to the plaintiff where the evidence was sufficient to support a finding that the defendant employer terminated the plaintiff’s employment with knowledge, or reason to know, that the termination violated the provisions of G. L. c. 151B, § 4. [420] Civil action commenced in the Superior Court Department on December 2, 1992. The case was tried before James P. Dohoney, J., and posttrial motions were heard by him. William A. Escobar (Samuel A. Marsella with him) for the defendant. Charles V. Ryan for the plaintiff. Gillerman, J. J. Gibb Brownlie was discharged from his position as vice-president of public affairs for Kanzaki Specialty Papers, Inc. (Kanzaki), in February, 1992. He had been demoted in 1990, when he turned sixty, and demoted again in 1991. After he was discharged, Brownlie filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) in April, 1992, alleging age discrimination. General Laws c. 151B, § 4(1B), makes it an unlawful practice for an employer to refuse to hire or employ or to bar or to discharge from employment any individual because of his or her age. (Under G. L. c. 151B, § 1(8), a person over forty years may claim age discrimination.) Brownlie withdrew his complaint from the MCAD and filed his action in the Superior Court in December, 1992. In June, 1994, a jury returned a verdict on special questions in favor of Brownlie. He was awarded compensatory damages in the amount of $262,252 and emotional distress damages in the amount of $50,000. The trial judge subsequently ordered Kanzaki to pay double damages in the amount of $624,504, attorney’s fees in the amount of $157,492.50, and costs in the amount of $10,404.35. He concluded that the president of Kanzaki had “reason to know” that the termination violated G. L. c. 151B, § 4. The trial judge also denied Kanzaki’s posttrial motions for judgment notwithstanding the verdict or a new trial. Kanzaki filed a timely appeal from the final judgment and from the denial of its posttrial motions. We proceed with the factual background and a discussion of the issues open on appeal. 1. Factual background. We state the facts under the standard applicable to a motion for judgment notwithstanding the verdict. Kanzaki is a specialty paper company and a subsidiary of Kanzaki Japan, a Japanese corporation. In 1991, the year immediately prior to Brownlie’s discharge, annual sales were $89,641,000. Kazuhico Watanabe was the president of Kanzaki during the relevant time period, and he reported daily to the president of Kanzaki Japan. Kanzaki Japan had a written policy that required all employees, including senior managers, to retire at age sixty. Although a mandatory retirement policy was in effect at Kanzaki Japan, Watanabe knew that age discrimination was illegal in Massachusetts and in the United States. In December, 1986, Kanzaki purchased a plant in Massachusetts from Ludlow Corporation, another paper company. Brownlie had been employed by Ludlow in various positions from 1978 to 1986. After Kanzaki purchased the Ludlow plant, most of the former Ludlow employees, including Brownlie, became employees of Kanzaki. Brownlie was fifty-six years old at the time he was hired by Kanzaki. From December, 1986, until June, 1989, he was marketing services and public relations manager. His duties included responsibility for advertising, sales promotion, public relations, and product management. On June 1, 1989, Watanabe promoted Brownlie, then age fifty-nine, to the position of vice-president of sales and marketing and Brownlie received a salary increase from $46,000 to $71,000. He was responsible for advertising, sales promotions, public relations, and product management, and reported directly to Watanabe. He also managed the inside sales force, which was comprised of approximately eight people, and the field sales force, which was made up of approximately twelve sales people and three regional managers. In August, 1990, when Brownlie was sixty years old, Watanabe relieved Brownlie of his sales responsibilities and transferred those tasks to Hamlet Collina, a new employee who was forty-nine years old. Collina became vice-president of sales, and Brownlie was demoted to vice-president of marketing. Although Brownlie was demoted, his salary and benefits were not reduced. When Watanabe demoted Brownlie in 1990, he knew that Brownlie was sixty years old. On the day that Brownlie learned of his impending demotion, Watanabe said to him, “[Yjou’ve been doing a good job, but I want a younger man .... [Wjhen is Steve Jablonski planning to retire?” Watanabe also informed Brownlie during the same conversation that he was hiring Collina, whom he described as “a younger man,” as the new vice-president of sales. Brownlie asked Watanabe if he was being demoted because he was not doing a good job. Watanabe answered, “No, it’s not that, it’s a reason beyond your control.” The next day, Brownlie reported the substance of his conversation with Watanabe to Kevin Moriarty, who was the director of human resources. Prior to Brownlie’s 1990 demotion, Moriarty had explained to Watanabe the discrimination laws of the United States. From August, 1990, when he was first demoted, to the middle of March, 1991, Brownlie did not receive any criticism from Watanabe regarding his performance as vice-president of marketing. Nevertheless, in April of 1991, he was demoted again. Watanabe promoted Collina to vice-president of sales and marketing, and Brownlie, now relieved of both sales and marketing, became vice-president of public affairs, a newly-created position. As was the case with his first demotion, Brownlie’s salary and benefits were not reduced at the time of the second demotion. Although Kanzaki claimed that Brownlie was being demoted for poor performance, Brownlie received a four percent merit raise two months after being demoted to vice-president of public affairs. On February 19, 1992, ten months after the second demotion, Watanabe terminated Brownlie’s position with the company without consulting any other senior managers. Brownlie was then sixty-one years old. Two other employees were discharged on the same day that Brownlie was terminated, including Jablonski, who was sixty-two; Jablonski was the same employee about whom Watanabe inquired in August, 1990. After Brown-lie was discharged, his advertising, sales promotions, and public relations responsibilities were given to Collina. In response to a special verdict form, the jury concluded that Brownlie had presented a prima facie case of employment discrimination when he was discharged in February, 1992 (special question 1); that Kanzaki did not have a legitimate business purpose in discharging Brownlie (special question 2); that the reason advanced by Kanzaki for Brownlie’s discharge was a pretext for age discrimination (special question 3); that age discrimination was a “motivating factor” in Kanzaki’s decision to discharge Brownlie (special question 3A); and that Kanzaki failed to prove that “[t]he legitimate business purpose given by it as the reason for the discharge, standing alone, would have convinced [it] to discharge Brownlie in February of 1992” (special question 3B). The special verdict form, including the responses of the jury, is reproduced in the Appendix to this opinion. 2. The denial of the motion for judgment n.o.v. a. Statute of limitations. Kanzaki argues that Brownlie failed to file his claim with the MCAD within the six-month period of limitations provided by G. L. c. 151B, § 5. This is so, the argument runs, because the measuring period should start from the demotions in 1990 and 1991, and not the termination of employment in 1992, and therefore the judge should have allowed Kanzaki’s motion for judgment notwithstanding the verdict. Kanzaki’s argument proceeds from the proposition that Brownlie “did not seriously contend below that his dismissal was in and of itself [emphasis in original] discriminatory — only that he would not have been in the non-essential advertising position” at the time of his nondiscriminatory discharge but for his two previous (allegedly) discriminatory discharges. Kanzaki mischaracterizes, or misunderstands, Brownlie’s position. At the colloquy between counsel and the judge regarding the special verdict form, the judge first stated his preference for a single discriminatory incident — Brownlie’s termination in February, 1992. Brownlie’s counsel, in explaining his acceptance of the form of question proposed by the judge, said, “this was a package deal... the intent was formed in July of 1990 to do this on the installment plan .... [B]y the time they got all through with this plan, concocted in 1990 and carried all the way through, all of his duties had been transferred to the same younger man . . . Collina.” The judge responded that Brownlie’s counsel “could argue it that way.” Since the judge permitted Brownlie’s counsel to argue that the employment discrimination occurred, if at all, when Brown-lie was terminated in February, 1992, the judge implicitly concluded that the evidence supported the theory put forward by Brownlie’s counsel. There was ample support in the record for the judge’s ruling, as discussed more fully below. Thus, special question 1 appropriately inquired whether Brownlie “has presented believable evidence to make up a prima facié case of employment discrimination relative to age when he was discharged in February of 1992” (emphasis added). Since the judge did not err in ruling that the only event of alleged employment discrimination that the jury properly could be called upon to assess was the discharge in February, 1992, and since the complaint to the MCAD was filed within six months thereafter, there was no violation of the short statute of limitations. b. Brownlie’s evidence of discrimination and Kanzaki’s proffered reasons for its employment decision. The familiar “three-stage order of proof” in discrimination cases, see Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 440-441 (1995), is commonly reduced to two stages at trial. This occurs when the employee establishes a prima facie case of discrimination, with the consequence that the unlawful discrimination is presumed (stage one). See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1997). See also Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1 (1998). The employer then may articulate a nondiscriminatory reason for the discharge decision coupled with supporting evidence that its preferred reason was the “real reason” (stage two), see Matthews, 426 Mass. at 128, and, if it does so, the presumption of the illegality of the employer’s action “vanishes.” Ibid. However, the plaintiff’s prima facie evidence does not vanish; it remains as evidence in the case, see Liacos, Massachusetts Evidence § 5.8.5, at 236-237 (6th ed. 1994), available to satisfy the employee’s ultimate burden of persuasion on the issue of discrimination. See Blare, 419 Mass. at 445. So it was in this case. At the conclusion of Kanzaki’s case, and the judge’s charge, the jury found (via special questions 1, 2, and 3) that (i) Brownlie had established a prima facie case of employment discrimination, (ii) Kanzaki had no legitimate reason for terminating Brownlie, and (iii) the reasons proffered by Kanzaki for the discharge were a pretext for age discrimination. See note 12, infra. Kanzaki now argues that its motion for judgment notwithstanding the verdict should have been allowed because (i) Brownlie failed to establish a prima facie case by failing to come forward with “any evidence” that Brownlie’s discharge was “motivated by his age” and (ii) Kanzaki’s evidence of its nondiscriminatory reasons for the discharge compels the allowance of the motion. We conclude that these arguments have no merit. i. Brownlie’s evidence of discrimination. The jury could infer that Watanabe’s intent to discriminate was first evident in July, 1990, when Brownlie learned of his impending demotion. It was then that Watanabe told the plaintiff, “[Yjou’ve been doing a good job, but I want a younger man. . . . [Wjhen is Steve Jablonski [then sixty-one years old] planning to retire?” Watanabe’s statements were admissible. Northeast Metropolitan Regional Vocational Sch. Comm. v. Massachusetts Commn. Against Discrimination, 31 Mass. App. Ct. 84, 87 (1991). In ruling on Brownlie’s application for multiple damages, the judge wrote, and we agree, that these remarks by Watanabe were “much stronger” than mere “stray remarks,” as in Johansen v. NCR Comten, Inc., 30 Mass. App. Ct. 294, 302 (1991). Probative remarks, such as those made by Watanabe to Brown-lie, are ordinarily not to be judged as matter of law; they are for the jury to assess. See Fontaine v. Ebtec Corp., 415 Mass. 309, 314 n.7 (1993) (“Ultimately, the jury had to decide whether the remarks were made, whether they indicated a discriminatory intent, and how much weight should be given them”). Watanabe’s additional remark to Brownlie — that the 1990 demotion which deprived him of his sales responsibilities was due to “a reason beyond [Brownlie’s] control” — could be taken by the jury as additional evidence that the reason beyond Brownlie’s control was his age. The jury could also have inferred that Watanabe was referring to Kanzaki Japan’s mandatory retirement policy and the need he felt to implement it. The judge observed (in the same memorandum referred to above), “[h]ere Watanabe acknowledged that Brownlie has performed well and then simultaneously took action to demote him.” While Kanzaki claimed that Brownlie was demoted in 1990 for poor performance, Brownlie presented credible evidence that he was performing his job in a satisfactory manner, that he had received several raises based on his performance, and that he was praised for his performance by Watanabe. From this evidence, the jury could also infer that Brownlie was demoted in 1990 for a reason other than the quality of his job performance, and that his demotion was merely a preliminary step in Kanzaki’s plan to terminate him. The jury could also infer from the evidence that Brownlie’s second demotion in April, 1991, was in furtherance of Kanzaki’s discriminatory intent, and that the second demotion, claimed to be for poor performance, was “papered over” with a merit increase in compensation. In sum, the jury could have found that Brownlie’s discharge was the culmination of a carefully arranged sequence of events to conceal the purposeful design to discharge Brownlie because of his age. We conclude that the jury were warranted in finding that Brownlie had made out the necessary prima facie case (special question 1). See Dartt v. Browning-Ferris Indus., Inc. (Mass.), supra. ii. Kanzaki’s justification. Kanzaki argues next that its evidence of a nondiscriminatory reason for Brownlie’s discharge was both “compelling and undisputed.” Kanzaki fails to recognize that its evidence, even if undisputed, could be — and was — rejected by the jury in its entirety. See special questions 2 and 3. See also Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. at 442 (in stage two, the employer must “produce credible evidence . . . that the reason or reasons advanced were the real reasons” [emphasis added]); Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 138 (1976) (when an employee has made a prima facie case of discrimination, and the employer’s explanation “is wholly disbelieved [and hence is transparently a pretext], the employee should prevail”). In any event, the jury’s findings rejecting Kanzaki’s explanation had adequate support in the evidence. Kanzaki claimed that in 1992 it was in severe financial difficulty. Even assuming that to be so, when Kanzaki reduced its work force by only thirteen persons during 1991-1992, Watanabe, as the judge pointed out in the same memorandum referred to above, in February, 1992, “terminated three people. Two of these three were persons about whom [Watanabe] had expressed age related comments” (Brownlie and Jablonski). Further, financial difficulty in a company the size of Kanzaki does not necessarily dictate, or even necessarily explain, the discharge of this employee. The jury could reasonably reject the proffered business explanation for Brownlie’s discharge as not credible. 3. The denial of the motion for a new trial. a. The “mixed motive” charge. The thrust of Kanzaki’s argument in support of its request for a new trial is its claim that the trial judge erred in giving the jury a “mixed motive” charge which impermissibly shifted the burden of persuasion to Kanzaki. See special question 3B. It appears from the colloquy concerning the form of the special questions that the judge, in accepting the “mixed motive” inquiry, had in mind the decision of the Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), as discussed in Johansen v. NCR Comten, Inc., 30 Mass. App. Ct. at 300-301. In Price Waterhouse the Court shifted the burden of persuasion to the employer — where the evidence demonstrated that the employer had mixed motives, that is, one legitimate and the other illegitimate, for its employment decision — to prove that the “legitimate reason, standing alone, would have induced it to make the same decision.” Price Warehouse, supra at 252. It does not appear that the Supreme Judicial Court has ever applied the “mixed motive” formula in a case involving Massachusetts discrimination law. In a 1976 decision, Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. at 138-139, the court made it clear that where the employer advances a nondiscriminatory reason which has reasonable support in the evidence, and the employee has already established his prima facie case, the burden then falls on the employee to prove by a preponderance of the evidence that the" employer’s proffered reasons were not the real reasons for its action. In Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. at 444-445, after reviewing Federal

Brian A. Dartt vs. Browning-Ferris Industries, Inc. (Mass.). Suffolk. November 6, 1997. February 26, 1998. Present: Wilkins, C.J., Abrams, Lynch, Grbaney, Fried, Marshall, & Ireland, JJ. Handicapped Persons. Anti-Discrimination Law, Handicap, Prima facie case, Termination of employment. Employment, Discrimination, Termination. Statute, Construction. Practice, Civil, Instructions to jury, Presumptions and burden of proof, Damages. Workers’ Compensation Act, Claim. Evidence, Relevancy and materiality. Damages, Punitive. Americans with Disabilities Act. This court concluded, upon consideration of the plain language of G. L. c. 151B, § 4 (16), the legislative history of that statute, the cognate provisions of art. 114 of the Amendments to the Massachusetts Constitution, and Federal cases interpreting the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., that a plaintiff alleging handicap employment discrimination in violation of G. L. c. 151B, § 4 (16), need not establish, as part of his prima facie case, that he was terminated or otherwise adversely treated by his employer “solely” because of his handicap. [6-11] In a handicap discrimination case, the judge’s instructions to the jury, read as a whole, correctly informed the jury of the plaintiff’s burden of proof. [12] In a handicap discrimination case in which the plaintiff alleged that the defendant terminated the plaintiff’s employment to avoid payment of workers’ compensation benefits, the trial judge’s refusal to instruct the jury on the defendant’s payment obligations under the workers’ compensation statute constituted prejudicial error requiring a new trial. [12-14] At the trial of an employment discrimination case, the trial judge erred in admitting in evidence an outdated application form, used by the defendant prior to the effective date of the Americans with Disabilities Act, to show the defendant’s “state of mind.” [14-16] At the trial of a handicap discrimination case, there was sufficient evidence for the jury to conclude that the defendant employer regarded the plaintiff as having a physical impairment and that the employer terminated the plaintiff’s employment on that basis. [16-17] In a handicap discrimination case, where there was no admissible evidence that the defendant employer’s conduct was outrageous in any respect, the judge should not submit the question of punitive damages to the jury in the trial of the case after remand. [17-18] Civil action commenced in the Superior Court Department on December 31, 1993. The case was tried before Carol S. Ball, J., and posttrial motions were heard by her. The Supreme Judicial Court granted an application for direct appellate review. Paul J. Murphy (Theodore E. Daiber with him) for the defendant. Kevin G. Powers for the plaintiff. Marshall, J. We clarify today the prima facie standard a plaintiff must meet to establish liability in a case involving a claim of handicap discrimination in violation of G. L. c. 151B, § 4 (16). The defendant, Browning-Ferris Industries, Inc. (Mass.) (BFI), appeals from a jury verdict that it unlawfully fired the plaintiff, Brian A. Dartt, because of a handicap, an earlier work-related injury to his back. BFI maintained that Dartt’s prior injury played no role in its decision to terminate him, and that he was terminated because he was grossly negligent when a BFI tractor-trailer that he was operating flipped over. The jury awarded Dartt $83,000 in back pay, $16,000 in emotional distress damages, and $175,000 in punitive damages. BFI filed posttrial motions and Dartt filed a motion for attorney’s fees. After a hearing, the judge denied BFI’s motions and awarded Dartt substantially all of his attorney’s fees. We granted BFI’s application for direct appellate review. We rule that to establish a prima facie case of unlawful employment discrimination on the basis of handicap under G. L. c. 151B, § 4 (16), a plaintiff must present credible evidence that (1) he is handicapped within the meaning of the statute; (2) he is qualified to perform the essential functions of the job with or without reasonable accommodation; (3) he was terminated or otherwise subject to an adverse action by his employer; and (4) the position he had occupied remained open and the employer sought to fill it. See Beal v. Selectmen of Hingham, 419 Mass. 535, 541 (1995). See also Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995). It is not a requirement that a plaintiff show, as part of his prima facie case, that he was terminated “solely” because of his handicap. In this case the judge’s instructions were generally consistent with these requirements. We nevertheless conclude that a new trial is required because two of the judge’s rulings, described below, constitute prejudicial error. We also conclude that Dartt presented insufficient evidence to support the punitive damages awarded to him. I From 1985 until 1992, when he was terminated, Dartt was employed by BFI as a truck driver, first in Colorado and later in Tyngsborough. Dartt operated a ten-wheel tractor-trailer used to transport and dump large loads of waste. In March, 1990, Dartt injured his back when he fell from a trailer while attempting to secure a canvas flap. BFI’s safety review board determined that Dartt was not at fault for that accident. As a result of his injury, Dartt was required to undergo two operations and he was unable to work for almost two years. BFI paid Dartt $61,389 in workers’ compensation benefits for that injury. On May 19, 1992, approximately two months after returning to full-time work, Dartt had another accident that precipitated this lawsuit. On that day, the vehicle that Dartt was operating flipped over while he was dumping a load of sludge at a landfill in Rochester, New Hampshire. After he had backed the vehicle to an appropriate location, Dartt engaged the hydraulic dumping mechanism located in the cab of the vehicle to raise the trailer bed. He aborted that initial process when he observed through the vehicle’s mirrors that the trailer was rising unevenly. Dartt then moved the vehicle forward to what he thought was more level ground, and commenced the dumping procedure a second time. He testified that, while he watched through two side mirrors as the trailer rose, he reached down for a soda located in a plastic lunch box placed to the right of the driver’s seat. To retrieve the soda, Dartt removed the lid on the plastic cooler and then transferred the soda bottle from one hand to the other. Dartt testified that “the next thing [he] knew,” the truck had flipped and was lying on its side. Dartt did not sustain any injury, but the accident caused damage to the tractor-trailer. Dartt immediately telephoned Ernest G. Stone, the district safety manager for BFI, and informed him of the accident. Stone traveled to the landfill to investigate. Dartt told Stone that the vehicle had tipped over while he was reaching for the soda. He testified that he also told Stone that, in his view, the sludge load had stuck to one side of the trailer, creating an imbalance that had caused the vehicle to tip over. The following morning BFI’s management review board consisting of Stone, Ronald Greenwood, BFI’s district manager, and Donald Butler, Dartt’s immediate supervisor, met to discuss the accident. Based on his observations at the site and on his interview with Dartt, Stone informed the others that it was his view that Dartt had not been paying attention to what he was doing when the truck flipped on its side. Greenwood directed Stone to terminate Dartt for violating BFI’s safety policy. A few days later, at his request, Dartt met with Greenwood and Butler to explain the accident. Greenwood told Dartt that he would look into the matter, but Dartt heard nothing further from him. On May 31, 1992, after Stone had told Dartt he was terminated, BFI’s safety review board met to review the accident. The role of the safety review board in employee discipline matters, as described in BFI’s policy and procedures manual, is to determine whether an accident was “preventable.” The board, composed of managers and other employees, reviews all aspects of the accident with the driver involved, then presents its findings to the district manager for- evaluation, and possible disciplinary action, including termination. The driver also is informed of the board’s decision, and he may appeal it. The manual provides that after a third “preventable” accident in any twelve-month period, a driver “may” be subject to discharge. In this case the board concluded that the accident could have been prevented by Dartt. Although the manual provided that “the board will review all aspects of the accident with the driver involved,” Dartt was not informed of the board meeting. Other than this incident, Dartt had a safe driving record, as documented by BFI. Dartt never claimed that he was injured in the second accident. He argued that he was fired because BFI was concerned that he might file a new claim for workers’ compensation, and that BFI wanted to avoid paying him any such compensation. There was evidence that before this accident BFI was concerned about containing what it perceived were escalating workers’ compensation claims: Dartt testified that, at one of the weekly safety meetings that he was required to attend, Stone told a group of employees that the number of workers’ compensation claims had to .be reduced. In addition, while Dartt was on the earlier disability leave of absence, BFI’s workers’ compensation administrator told Stone that BFI would have “exposure for future temporary partial benefits in the event that [BFI] would not be able to accommodate [Dartt] on a permanent basis in a position within his restrictions.” n BFI claims that the judge erred in her instructions to the jury on the elements of a prima facie case of handicap discrimination, and that there was insufficient evidence as a matter of law to support a finding of discriminatory termination. We address first BFI’s challenge to the judge’s instructions. In cases of handicap discrimination brought under G. Li c. 151B, § 4 (16), we use the familiar three-stage order of proof that we have recognized in cases alleging disparate treatment under G. L. c. 151B, § 4 (1), which prohibits discrimination “because of the race, color, religious creed, national origin, sex, sexual orientation ... or ancestry” of an individual. Labonte v. Hutchins & Wheeler, 424 Mass. 813, 821 (1997). At issue here is the first stage order of proof — the plaintiff must establish a prima facie case of discrimination by a preponderance of the evidence. Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995). General Laws c. 15IB, § 4 (16), provides that an employer may not “dismiss from employment or refuse to hire, rehire or advance in employment or otherwise discriminate against, because o/his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation” (emphasis supplied). The parties dispute how the term “because of” affects a plaintiff’s prima facie burden of proof. At trial, relying on Garrity v. United Airlines, Inc., 421 Mass. 55 (1995), and Tate v. Department of Mental Health, 419 Mass. 356, 361 (1995), BFI asked the judge to charge the jury that in his prima facie case Dartt had to prove that he was terminated “solely because of his handicap.” The judge rejected BFI’s request. Relying on Blare, supra, she gave the following charge to the jury: “To recover, the plaintiff must prove at the outset the following by a fair preponderance of the credible evidence, first, that the plaintiff had a ‘handicap’ at the relevant time; second, that the plaintiff was a ‘qualified handicapped person’; and third, that the plaintiff was terminated by the defendant.” On appeal, BFI argues further that any dispute concerning this issue was put to rest by our recent opinion in Labonte v. Hutchins & Wheeler, 424 Mass. 813 (1997), where we said that it is a plaintiff’s burden to establish in his prima facie case that he was terminated “solely” because of his handicap. We recognize that some of our earlier decisions concerning a plaintiff’s prima facie burden in a case of handicap discrimination may have been the cause of confusion, for we previously have not been consistent in our descriptions of that burden. We sometimes have said that a plaintiff must establish that he was terminated “in spite of [his] qualifications,” see, e.g., Whalen v. NYNEX Info. Resources Co., 419 Mass. 792, 795-796 (1995); Beal v. Selectmen of Hingham, 419 Mass. 535, 541 (1995), or that he was fired “because of” a handicap, see, e.g., Tate, supra at 361-362, while at other times we have said that to establish a prima facie case a plaintiff must demonstrate that he was fired “solely because of his handicap.” See, e.g., Labonte, supra at 821; Garrity, supra at 60; Tate, supra at 362. We now make clear that as part of his prima facie case, a plaintiff alleging a violation of G. L. c. 15IB, § 4 (16), need not establish that he was terminated (or received some other adverse treatment from his employer) “solely” because of his handicap. We reach this conclusion for several reasons. We commence our analysis, appropriately, with the plain language of the statute. Massachusetts Bay Transp. Auth. v. Massachusetts Bay Transp. Auth. Retirement Bd., 397 Mass. 734, 738 (1986). General Laws c. 151B, § 4 (16), does not use the term “solely.” We discern no other similarly restrictive language in the statutory scheme, and we hesitate to rewrite the statute judicially to import such a restriction. In interpreting the substantially identical causal language in the context of Title VII, the United States Supreme Court concluded that “because of” does not mean “solely because of.” Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989) (plurality opinion). While no opinion of the Court garnered a majority of votes, all the Justices agreed on this point. See id. at 241 (plurality opinion); id. at 258-259 (White, J., concurring in the judgment); id. at 262-263 (O’Connor, J., concurring in the judgment); id. at 284 (Kennedy, J., dissenting). Writing for the plurality, Justice Brennan noted that “since we know that the words ‘because of’ do not mean ‘solely because of,’ we also know that Title VII meant to condemn even those decisions based on a mixture of legitimate and illegitimate considerations” (footnote omitted; emphasis in original). Id. at 241. Similarly, we will not read the restrictive term “solely” into G. L. c. 151B, § 4 (16). The legislative history confirms that our interpretation is consistent with what the Legislature intended. Prior to adopting St. 1983, c. 533, § 2, the 1983 amendment that inserted § 4 (16) into G. L. c. 15IB, the Legislature rejected proposed amendments that would have prohibited discrimination “solely because of” a handicap. See, e.g., 1981 Senate Doc. No. 208; 1981 House Doc. No. 353; 1981 House Doc. No. 485; 1981 House Doc. No. 3537; 1980 House Doc. No 650. BH is correct that the legislative history does not elucidate why the Legislature rejected each of these competing bills. But we will not add to a statute a word that the Legislature had the option to, but chose not to, include. Bronstein v. Prudential Ins. Co., 390 Mass. 701, 706 (1984). Nor does our conclusion ignore the cognate amendment to the Massachusetts Constitution enacted a few years before the statutory amendment at issue here. Article 114 of the Amendments to the Massachusetts Constitution, enacted in 1980, provides in relevant part: “No otherwise qualified handicapped individual shall, solely by reason of his handicap, be excluded from the participation in, denied the benefits of, or be subject to discrimination under any program or activity within the commonwealth” (emphasis added). A statute may provide greater protection than a constitutional counterpart. Here, the statute protects fully those persons covered under art. 114. Were we to require the plaintiff to prove at the prima facie stage that he had been discriminated against “solely because of a handicap,” we would be imposing on him a greater burden at the first stage than he is required to meet at the third stage of proof. Conversely, the standard we adopt today achieves the purpose we intend by requiring a plaintiff to demonstrate a prima facie case: to “eliminate[] the most common nondiscriminatory reasons for the plaintiff’s rejection.” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). See Blare, supra at 441. We are also guided in our resolution by interpretations of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ■ (1994) (ADA), even though that statute was enacted in 1991, after the enactment of G. L. c. 151B, § 4 (16). The ADA provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability.” 42 U.S.C. § 12112(a). Because that causal language is substantially similar to the prohibition of G. L. c. 15 IB, § 4 (16), that an employee may not be discriminated against because of his handicap, judicial analyses of the ADA are helpful. The decision of the United States Court of Appeals for the First Circuit in Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 511 (1st Cir. 1996), is particularly instructive. In that case, the court concluded, as we have, that a plaintiff could prove a claim of discrimination under the ADA by using the three-stage framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Jacques court then outlined a five-part test a plaintiff must meet to establish a prima facie case of handicap discrimination: “[A] plaintiff must first prove by a preponderance of the evidence that he or she (i) has a disability within the meaning of the Act; (ii) is qualified to perform the essential functions of the job, with or without reasonable accommodations; (iii) was subject to an adverse employment action by a company subject to the Act; (iv) was replaced by a non-disabled person or was treated less favorably than non-disabled employees; and (v) suffered damages as a result.” Id. at 511. See EEOC v. Amego, Inc., 110 F.3d 135, 141 n.2 (1st Cir. 1997). The United States Court of Appeals for the Eighth Circuit uses a similar test to establish a prima facie case of disability discrimination under the ADA. See Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1318 (8th Cir. 1996) (third and final element of prima facie case is that plaintiff “has suffered an adverse employment action under circumstances from which an inference of unlawful discrimination arises”). For all these reasons we hold that Dartt was not required to demonstrate at the prima facie stage that he was terminated by BFI “solely” because of his handicap. There was no error in the judge’s instructions. BFI also argues, in passing, that the jury instructions as a whole did not require the jury to find affirmatively at any stage that BFI was motivated by discrimination. We agree that the burden of persuasion rests with the plaintiff at all times. Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 445 (1995). We have said that at the third stage of proof, “the presumption of discrimination vanishes, and the burden returns to the plaintiff to persuade the court, by a fair preponderance of the evidence, that the defendant’s proffered reason for its employment decision was not the real reason, but is a pretext.” Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1997). We have also said that “[t]he plaintiff bears the burden of persuasion on the ultimate issue of discrimination . . . and therefore 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.’ ” Id.

EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Appellant/Respondent v. WILLIAM PEACE, Appellee/Petitioner EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Appellee/Respondent v. WILLIAM H. PEACE, III, Appellant/Petitioner No. COA95-678 No. COA94-1283 (Filed 2 December 1997) 1. Administrative Law and Procedure § 9 (NCI4th); Labor and Employment § 120 (NCI4th)— Title VII retaliatory discharge claim — jurisdiction of OAH The Office of Administrative Hearings (OAH) had jurisdiction to hear an ESC employee’s claim for retaliatory discharge in violation of Title VII of the Civil Rights Act of 1964 and did not act ultra vires in adjudicating such claim. The OAH does not function as a court in violation of N.C. Const, art. IV, § 1 when making final agency decisions on Title VII charges deferred from the Equal Employment Opportunity Commission. N.C.G.S. § 7A-769. 2. Labor and Employment § 121 (NCI4th)— Title VII claim— burden of proof Plaintiff carries the initial burden of proof in Title VII retaliatory discharge cases. In order to make a prima facie showing of a Title VII retaliatory discharge, plaintiff must show that (1) he engaged in protected activity, (2) the employer took adverse employment action against plaintiff, and (3) a but for causal connection existed between the protected activity and the adverse action. If plaintiff presents a prima facie case of retaliation, defendant employer must articulate a legitimate nondiscriminatory reason for its action. If defendant employer shows a legitimate reason that overcomes the presumption of discrimination from plaintiffs prima facie showing, plaintiff then has to show that the reason was only a pretext for the retaliatory action. 3. Labor and Employment § 121 (NCI4th)— Title VII action— burden of proof The Office of Administrative Hearings erred in placing the initial burden on defendant employer to show an absence of retaliatory purpose in a Title VII retaliatory discharge case prior to plaintiff employee’s prima facie showing of a retaliatory discharge. 4. Public Officers and Employees § 66 (NCI4th)— state employee — continued employment — property interest— due process A state employee had a property interest in continued employment created by N.C.G.S. § 126-35 and protected by the Due Process Clause of the United States Constitution. 5. Public Officers and Employees § 66 (NCI4th)— state employee — dismissal for just cause — burden of proof The employer had the initial burden to produce evidence that a state employee was dismissed for “just cause,” and the employee must then come forward with evidence that his or her dismissal was without “just cause.” 6. Public Officers and Employees § 66 (NCI4th)— state employee — dismissal for just cause — burden on employee— due process Placing the burden of proof on the state employee in determining whether the employee was dismissed for “just cause” within the purview of N.C.G.S. § 126-35 does not pose a substantial threat of erroneous termination and thus does not violate due process. Judge Greene dissenting in part. Appeal by Employment Security Commission from order entered 12 August 1994 in case 93 CVS 10599 by Judge Narley L. Cashwell in Wake County Superior Court, affirming a final order of the Office of Administrative Hearings reinstating Peace as an Equal Employment Opportunity Commission Officer based on retaliatory discharge. Appeal by Peace from an order entered 13 March 1995 in case 94 CVS 11517 by Judge Wiley F. Bowen in Wake County Superior Court, which order concluded that “just cause” existed for terminating Peace and reversed the State Personnel Commission’s decision that Peace be reinstated. Both Peace appeals were thereafter consolidated and were originally heard in the Court of Appeals on 7 May 1996. See Employment Security Comm. v. Peace, 122 N.C. App. 313, 740 S.E.2d 63 (1996), disc, review allowed and remanded, 345 N.C. 640, 483 S.E.2d 706 (1997). Heard on grant of discretionary review in the Supreme Court on 11 June 1996. The cases sub judice were then remanded to this Court for reconsideration in light of the Supreme Court’s ruling in Soles v. The City of Raleigh Civil Service Comm., 345 N.C. 443, 480 S.E.2d 685, reh’g denied, 345 N.C. 761, 485 S.E.2d 299 (1997). Heard on remand in the Court of Appeals on 1 April 1997. Attorney General Michael F. Easley, by Chief Deputy Attorney General Andrew A. Vanore, Jr., and Assistant Attorney General Valerie Bateman, for North Carolina Department of Justice; and Chief Counsel T.S. Whitaker and Attorney Fred R. Gamin, for North Carolina Employment Security Commission, respondent appellant (No. COA94-1283), respondent appellee (No. COA95-678). Hilliard & Jones, by Thomas Hilliard, III, for petitioner appellant (No. COA95-678). William H. Peace, III, petitioner appellee (No. COA94-1283), pro se. SMITH, Judge. On 15 October 1985, William H. Peace, III (“Peace”), began his employment with respondent Employment Security Commission (“ESC”) as its Equal Employment Opportunity (“EEO”) officer. On 10 April 1991, an incident between Peace and a coworker ultimately led to Peace’s dismissal for alleged unacceptable personal conduct. The State Personnel Commission (“SPC”) adopted, inter alia, the following facts as recommended by the Administrative Law Judge (“ALJ”): During his 1985 orientation, Peace was informed that by paying $2.00 per month to the Personnel Office petty fund, he would be entitled to obtain an occasional cup of coffee from a pot located in the personnel file room. He paid the dues; however, his usual practice was to go to the agency’s cafeteria for morning coffee. Prior to 10 April 1991, no one informed Peace that his payment into the petty fund did not entitle him to obtain coffee from the personnel file room. Over the years, on an irregular basis, he obtained coffee from the petty fund coffee pot. At a staff meeting which Peace did not attend, a coffee fund of $3.40 per month was established for any interested participants. Peace was not made aware of a separate coffee fund, nor was he asked to join. On 10 April 1991, Peace got a cup of coffee from the personnel file room. As Peace was leaving the office with the coffee, an exchange took place with Ms. Catherine High, a supervisor in the personnel office, in which she told him that he should pay her for the coffee. Peace refused. Ms. High called Peace “despicable” and told him she hoped he was fired. She told Peace that if he got another cup of coffee and did not pay her, she would get a cup of coffee and scald him with it. Ms. High informed her supervisor and Mr. Gene Baker, who became Peace’s immediate supervisor as of 22 April 1991, of the incident. On the afternoon of 10 April 1991, Peace contacted the magistrate’s office regarding the incident with Ms. High. Peace was informed that, if he believed Ms. High was capable of carrying out her threat, he should take out a warrant against her. Peace spoke with Ms. High following his conversation with the magistrate’s office, at which time he gave her an opportunity to apologize. Ms. High did not apologize. Thereafter, Peace had the magistrate’s office issue summons against Ms. High charging her with communicating a threat. The charge was dismissed by the trial court as frivolous and Peace was ordered to pay court costs. Peace was not contacted by his superiors regarding the incident until he received a predismissal conference memorandum on 5 June 1991, from Gene Baker, his immediate supervisor. Following a 6 June dismissal conference, Peace was discharged for unacceptable personal conduct. In a 7 June letter, Ann Q. Duncan, Chairperson of ESC, explained that Peace was being dismissed for unacceptable conduct, including taking the coffee without paying Catherine High and filing criminal charges against High, which were found to be frivolous. Such conduct, said Duncan, caused Peace’s reputation as the EEO officer at ESC to be called into question and his respect among fellow employees diminished. Peace filed two appeals of the ESC decision to discharge him. The bases of his appeals were that ESC lacked “just cause” to dismiss him pursuant to N.C. Gen. Stat. § 126-35 (1991), and that he had been discharged in retaliation for having filed discrimination charges against ESC in 1989, for violation of Title VII, Section 704(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3 (1988). Peace did not appeal upon a state claim of retaliatory discharge pursuant to N.C. Gen. Stat. § 126-36 (1987). Pursuant to N.C. Gen. Stat. § 7A-759 (1987), Peace’s charge of retaliatory discharge was investigated by the Civil Rights Division of the Office of Administrative Hearings. Through its investigation, the Office of Administrative Hearings (“OAH”) found reasonable cause to believe that a violation of Title VII had occurred. OAH presented Peace with three options. He could: (1) receive a right to sue letter; (2) commence a contested case hearing in OAH; or (3) do nothing. Peace chose to commence a contested case hearing with regard to the retaliatory discharge claim. He also filed a petition for contested case hearing pursuant to N.C. Gen. Stat. § 126-35 on his lack of “just cause” claim. Pursuant to an order of the Chief Administrative Law Judge of OAH, both cases were consolidated for hearing. A hearing was conducted by ALJ Sammie Chess on 12-14 July 1993. Pursuant to N.C. Gen. Stat. § 7A-759(e), an ALJ decision on the merits of a retaliatory discharge claim is a final agency decision binding on the parties absent a petition for judicial review. See N.C. Gen. Stat. § 150B-45 (1987). However, with regard to the N.C. Gen. Stat. § 126-35 lack of “just cause” claim, an ALJ issues a recommended decision to SPC, which then issues a final agency decision also subject to judicial review. N.C. Gen. Stat. § 126-37 (1991). AU Chess issued two separate decisions following the hearing. In his recommended decision to SPC, AU Chess found that ESC had the burden of proving it had “just cause” to discharge petitioner. AU Chess concluded that ESC had failed to meet that burden and recommended Peace be reinstated. In his final decision regarding the retaliatory discharge claim pursuant to Title VII, AU Chess also placed the burden of proof on ESC and concluded that Peace’s discharge violated Section 704(a) of Title VII of the Civil Rights Act of 1964, in that his dismissal was retaliatory. Pursuant to that holding, ALJ Chess ordered petitioner reinstated. The ALJ’s recommended decision reinstating Peace for lack of “just cause” was adopted, with slight modification, by SPC. ESC appealed SPC’s final decision and the ALJ’s final decision separately, pursuant to N.C. Gen. Stat. § 150B-50 (1987). In a 13 August 1994 order, Judge Narley L. Cashwell upheld the final agency decision of the ALJ with regard to the retaliatory discharge claim in which Peace was ordered reinstated. In a 13 March 1995 order, Judge Wiley F. Bowen reversed the final decision of SPC and dismissed Peace’s petition challenging his dismissal on the “just cause” claim. ESC appeals Judge Cashwell’s order affirming the retaliatory discharge claim. Peace appeals Judge Bowen’s order reversing the SPC decision to reinstate him. The proper standard of review for the superior court “ ‘depends upon the particular issues presented on appeal.’ ” Act-Up Triangle v. Commission for Health Services of the State of North Carolina, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (citation omitted). If petitioner asks: “ ‘(1) whether the agency’s decision was supported by the evidence or (2) whether the decision was arbitrary or capricious, then the reviewing court must apply the “whole record” test.’ ” Id. (quoting In re Appeal by McCrary, 112 N.C. App. 161, 165, 435 S.E.2d 359, 363 (1993). Under the whole record test, a reviewing court is required to examine all competent evidence in order to determine whether the agency decision is supported by substantial evidence. Id. The definition of substantial evidence includes “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Id. at 707, 483 S.E.2d at 393 (citation omitted). Furthermore, in making arbitrary or capricious determinations concerning the agency decision, the reviewing court “ ‘does not have authority to override decisions within agency discretion when that discretion is exercised in good faith and in accordance with law.’ ” Id. at 707, 483 S.E.2d at 393 (citation omitted). Appellate review of a superior court order concerning an agency decision requires an examination of the trial court’s order for any errors of law. Id. at 706, 483 S.E.2d at 392. The two tasks involved include: “ ‘(1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.’ ” Id. (citation omitted). The whole record test allows a reviewing court to determine whether an administrative decision has a rational basis in the evidence. Id. at 706-07, 483 S.E.2d at 392. As the reviewing court in the “just cause” case, we must take into account the specialized expertise of the staff of an administrative agency; in this case, the SPC. See High Rock Lake Assoc. v. Environmental Management Comm., 51 N.C. App. 275, 279, 276 S.E.2d 472, 475 (1981). While there is evidence in the record contrary to the Commission’s findings, neither this Court nor the superior court may substitute its judgment for that of the agency. After reviewing the record, we find substantial evidence to support the State Personnel Commission’s findings of fact. At the outset, we note that the actions of both Peace and High were inappropriate and childlike. As a result of both parties’ improper behavior and subsequent refusals to resolve their differences amicably as adults, this matter has involved years of litigation and, as yet, remains unresolved. If there was ever a case that could have been resolved by the parties and participants in an employment controversy and was not, then this must be that case. I. Title VII Retaliatory Discharge Claim A. The Jurisdiction of OAH in Title VII Cases As a preliminary matter, we address ESC’s argument that the trial court erred in failing to find OAH did not have jurisdiction to hear Peace’s Title VII retaliatory discharge claim, and also in failing to find OAH acted ultra vires by adjudicating such claim. ESC contends that only courts, and not administrative agencies, have jurisdiction to hear Title VII cases, and if OAH is authorized to hear Title VII claims, then it is functioning as a court in violation of N.C. Const. art. IV, § 1. N.C. Const. art. IV, § 1 provides: The judicial power of the State shall, except as provided in Section 3 of this Article, be vested in a Court for the Trial of Impeachments and in a General Court of Justice. The General Assembly shall have no power to deprive the judicial department of any power or jurisdiction that rightfully pertains to it as a co-ordinate department of the government, nor shall it establish or authorize any courts other than as permitted by this Article. N.C. Const. art. IV, § 3 permits the General Assembly to vest in administrative agencies established pursuant to N.C. Const. art. Ill, § 11 as part of the executive branch, such judicial powers as are reasonably necessary to accomplish the purposes for which the agencies were created, and also directs that appeals from such agencies shall be to the General Court of Justice. Title VII authorizes the Equal Employment Opportunity Commission (“EEOC”) to enter into worksharing agreements with state and local agencies charged with the administration of state fair employment practices laws in order to fulfill its duty of preventing unlawful employment practices. 42 U.S.C. 2000e-8(b) (1988). When an alleged unlawful employment practice occurs in a state that has a law prohibiting the alleged practice and has established a state or local authority to grant or seek relief from such practice, Title VII provides that “ ‘no charge may be filed [with the EEOC]... by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated.’ ” Davis v. North Carolina Dept. of Correction, 48 F.3d 134, 137 (4th Cir. 1995) (quoting 42 U.S.C. 2000e-5(c) (1988)). Thus, where state law protects against the kind of discrimination alleged, Title VII requires that plaintiffs resort to state and local remedies before seeking relief under federal law. Id. N.C. Gen. Stat § 7A-759 designates OAH as the State’s deferral agency for cases deferred by the EEOC as provided in 42 U.S.C. 2000e-5. N.C. Gen. Stat. § 7A-759(e) provides that orders entered by an ALJ after a contested case hearing on the merits of a deferred charge is a final agency decision binding on the parties, and that an ALJ may order whatever remedial action is necessary to give full relief consistent with the requirements of federal statutes and regulations. However, an ALJ’s decision with respect to a deferred charge is not a judicial decision, but rather a final agency decision. This becomes apparent upon an evaluation of the rationale for the creation of OAH. According to the Administrative Procedure Act as originally adopted, 1973 N.C. Sess. Laws ch. 1331, § 150-30(a), the presiding officers for administrative hearings were designated by either an agency itself or by statute. In an effort to obtain nonbiased hearing officers with specialized knowledge of the issues presented, the General Assembly created OAH, an independent, quasi-judicial agency in order to “provide a source of independent hearing officers to preside in administrative cases and thereby prevent the commingling of legislative, executive, and judicial functions in the administrative process.” N.C. Gen. Stat. § 7A-750 (1985). Thus, because OAH was established as part of the executive branch pursuant to N.C. Const. art. III, § 11, it is not a court, and does not function as such when making final agency decisions on charges deferred from EEOC. See also Utilities Commission v. Finishing Plant, 264 N.C. 416, 422, 142 S.E.2d 8, 12 (1965) (“Administrative agencies . . . are distinguished from courts. They are not constituent parts of the General Court of Justice.”) To support its argument that only courts, and not administrative agencies, have the authority to hear Title VII claims, ESC cites footnote four in Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 108 L. Ed. 2d 834 (1990). This footnote points out that Congress opted for judicial, rather than administrative enforcement of Title VII claims. Id. at 825, 108 L. Ed. 2d 840 n.4. However, this footnote precisely states Congress “preferred that the ultimate determination of discrimination rest with the Federal judiciary,” and not EEOC. Id. The Court does not attempt to say that state administrative agencies have no authority to hear Title VII claims. In fact, the Court, when discussing the 60-day delay found in 42 U.S.C. 2000e-5(c), says that such delay “is designed to give state administrative agencies an opportunity to invoke state rules of law.” Yellow Freight System, Inc., 494 U.S. at 825, 108 L. Ed. 2d at 841. In light of this language and the plain language of Title VII, we conclude the trial court did not err in failing to find that OAH did not have jurisdiction to hear Peace’s Title VII claim, or that OAH acted ultra vires by adjudicating such claim. A. Burden of Proof in Title VII Cases According to the North Carolina Supreme Court, the claimant carries the initial burden of proof in Title VII cases. See North Carolina Department of Correction v. Gibson, 308 N.C. 131, 137, 301 S.E.2d 78, 87 (1983). In addition, a prima facie showing of retaliatory discharge requires a plaintiff to show: (1) he engaged in some protected activity, such as filing an EEO complaint; (2) the employer took adverse employment action aga

HYDE v UNIVERSITY OF MICHIGAN BOARD OF REGENTS Docket Nos. 181187, 190178. Submitted March 13, 1997, at Detroit. Decided November 25, 1997, at 9:00 a.m. Maurice Hyde, an African-American, brought an action in the Washte-naw Circuit Court against the University of Michigan Board of Regents, alleging disparate treatment in employment, retaliation, and discriminatory discharge on the basis of race. The plaintiff also alleged breach of contract, which count was heard separately by the circuit court sitting by stipulation as the Court of Claims. The court, Patrick J. Conlin, J., granted the defendant’s motion for partial summary disposition with regard to the plaintiff’s claim that his assignment was reduced from full-time to part-time because of his race. A jury heard the disparate treatment, retaliation, and discriminatory discharge claims and found that the plaintiff was not discharged from employment because of his race, that he was not retaliated against because of his complaints of discrimination, and that he was not entitled to any monetary back pay. The jury found that the defendant discriminated against the plaintiff by treating him differently than nonminorities, and awarded him noneconomic damages for outrage, indignation, humiliation, and embarrassment. The jury awarded the plaintiff $20,000, plus court costs and attorney fees. The Court of Claims action was decided adversely to the plaintiff. The plaintiff appealed, and the defendant cross appealed. (Docket No. 181187). The plaintiff also appealed from the trial court’s order awarding the defendant mediation sanctions for the plaintiff’s rejection of the mediation evaluation. (Docket No. 190178). The appeals were consolidated. The Court of Appeals held: 1. Partial summary disposition was properly granted with regard to the plaintiff’s claim that his change from full-time to part-time status was motivated by illegal race discrimination. 2. Where, as here, the plaintiff in an employment discrimination case seeks more than economic damages from an employer, the defendant employer may pursue normal discovery of the plaintiff’s emotional and mental history. A plaintiff who prefers to shield the plaintiff’s mental and emotional history from discovery may do so, but only if all claims for mental or emotional distress damages are withdrawn, including claims for damages arising out of embarrassment, anger, indignation, humiliation, and all similar issues. Where, as here, a plaintiff asserts the physician-patient privilege to shield psychological or mental history from discovery, it is error to allow the plaintiff to seek noneconomic damages or to introduce evidence of noneconomic injury. 3. The court erred in attempting to create two separate categories of psychic injuries: “serious” and “garden variety.” The court properly prevented the plaintiff from presenting more specific and additional evidence of mental anguish. 4. The plaintiff did not preserve for appellate review his allegation that the verdict with regard to the issues of retaliation and termination was contrary to the great weight of the evidence. 5. The mediation sanctions imposed on the plaintiff must be affirmed. 6. The jury’s verdict against the plaintiff regarding the claims of discriminatory discharge and retaliation precludes the retrial of any issues concerning economic damages on remand. The Court of Appeals ruling precluding the claims for noneconomic damages where the privilege has been invoked precludes the retrial of any issues concerning noneconomic damages on remand. Therefore, because there can be no evidence of damages on remand, there is no need for a new trial. The judgment reflecting the jury verdict for noneconomic damages and the award of costs and attorney fees must be reversed and the matter must be remanded for entry of a judgment of no cause of action. The remainder of the court’s rulings in other respects must be affirmed. Affirmed in part, reversed in part, and remanded. 1. Civil Rights — Employment Discrimination — Evidence — Noneconomic Damages — Discovery. A plaintiff in an employment discrimination and wrongful discharge case brought under the Civil Rights Act who seeks recovery for noneconomic damages, such as pain and suffering, mental distress, hurt feelings, or embarrassment, places the plaintiff’s mental condition in issue and consequently open to discovery; a plaintiff who asserts a privilege to prevent discovery with regard to this issue must withdraw, or the court must dismiss, any claim for noneconomic damages (MCR 2.314[A],[B]; MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 2. Civil Rights — Actions — Psychic Injuries. Victims of discrimination may recover for psychic injuries such as humiliation, embarrassment, outrage, disappointment, and other forms of mental anguish that flow from discrimination; Michigan courts have not recognized a two-tiered approach to emotional or psychic injuries that would create separate categories for “serious” and “garden variety” injuries. 3. Pretrial Procedure — Mediation — Appeal — Sanctions. It is the ultimate verdict that the parties are left with after appellate review is complete that should be measured against a mediation evaluation to determine whether sanctions should be imposed on a rejecting party pursuant to MCR 2.403(0). Green, Green & Craig, P.C. (by Philip Green and Christine A. Green), for the plaintiff. Miller, Canfield, Paddock and Stone, P.L.C. (by Richard J. Seryak and Megan P Norris), for the defendant. Before: Sawyer, P.J., and Saad and Gage, JJ. Saad, J. i NATURE OF THE CASE In this case we address several legal issues, but highlight here the key issue of first impression. In an employment discrimination, wrongful discharge case brought under the Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq., may a plaintiff seek more than economic damages yet shield from discovery his mental history? Our answer is clear and simple: no. If a plaintiff, as here, seeks more than economic damages from his employer, the defendant-employer may pursue normal discovery that includes discovery of the plaintiff’s emotional and mental history. If plaintiff prefers to shield his mental and emotional history from discovery, he may do so but only if he withdraws all claims for mental or emotional distress damages, including claims for damages arising out of embarrassment, anger, indignation, humiliation, and all similar issues. Because the trial court erred in allowing plaintiff to seek noneconomic damages after shielding his psychological or mental history from discoveiy by asserting the privilege, we reverse the lower court’s judgment with regard to those damages and the award of costs and attorney fees and affirm the circuit court’s rulings with regard to the other issues raised herein. n FACTS AND PROCEDURAL HISTORY At all times relevant to this case, the University of Michigan School of Social Work had a contract with the UAW-Ford Motor Company National Education, Development & Training Center (UAW-Ford Center) located in Dearborn, to provide academic and career counseling to Ford’s union workers. Plaintiff, an African-American male, was hired by the University of Michigan in 1985 to work as a Regional Life Education Advisor (rlea) with the iife/Education Planning Program (LEPP) for the UAW-Ford Center. Plaintiff’s duties as an rlea required travel to various Ford plants in his region, at which he developed and presented workshops and seminars for Ford employees. Plaintiff testified at trial that although he allegedly enjoyed a good working relationship with his previous supervisors, problems began about a year after Justine Bykowski became his supervisor in 1986 or 1987. Plaintiff filed a formal grievance against Ms. Bykowski in August, 1990, alleging racial discrimination and challenging her alleged “confrontational and inflexible management style.” After a hearing, a grievance panel unanimously found no evidence of discrimination, but called for both parties to “communicate clearly.” In 1989 and 1990, Ms. Bykowski wrote three disciplinary memos to plaintiff addressing alleged travel irregularities. Sometime later, plaintiff’s employment was reduced from full-time to half-time by the UAW-Ford Center. Plaintiff filed a second grievance against Ms. Bykowski, again alleging racial discrimination. On April 16, 1992, a panel again found no evidence of discrimination. Indeed, one African-American member that sat on both grievance panels (by plaintiff’s choice) attributed the difficulties between Bykowski and plaintiff to a personality conflict, rather than race. According to plaintiff, after his second grievance his relationship with Bykowski continued to deteriorate until the “Buffalo” incident at the Buffalo, New York, plant on September 1-3, 1992. On August 24, 1992, plaintiff was asked to service the Buffalo plant beginning on September 1, and he agreed to do so. On August 29, 1992, a friend asked plaintiff to sing in Chicago at the funeral of the friend’s father, and plaintiff telephoned Bykowski repeatedly to ask if his schedule could be changed. She made inquiries with the UAW-Ford Center and reviewed schedules of other regional rleas to determine if anyone could take plaintiff’s place. However, when she was unable to find a replacement, she notified plaintiff that he could not alter his schedule. Plaintiff refused to accept Ms. Bykowski’s answer, and he proceeded to contact others in the program, including people at the UAW-Ford Center in Dearborn and the local co-chair at the Buffalo plant, as well as some of Ms. Bykowski’s superiors in an attempt to override her determination. Eventually, plaintiff and Bykowski spoke by telephone again and Bykowski faxed plaintiff a memo telling him to fulfill the Buffalo assignment. Plaintiff did fulfill his obligations in Buffalo, but also sent a reply to Bykowski, in which he included the statement, “Also, at all costs you forego all professional management skills and opt to perform behaviors that border on what I believe are tactics adopted by the white supremacy.” Plaintiff sent copies of his letter to Harold Johnson (the dean of the university’s School of Social Work under which the lepp was administered), Shirley Anderson, the dean’s assistant, Program Director Bob Toronto, as well as Ron Dick and Dan Gamble of the personnel department. Following notification and a hearing, plaintiff was discharged on October 16, 1992. Mr. Toronto and Ms. Anderson recommended plaintiff’s dismissal to Dean Johnson, who himself felt that the discharge was long overdue, and who instructed Toronto to “proceed with all speed.” (Johnson, an African-American, described plaintiff as being noted for irregular expenditures, having difficulty in accepting assignments, and using poor judgment.) After further consultation with Dean Johnson, Mr. Toronto decided that plaintiff’s employment should be terminated and he authorized plaintiffs termination letter, which stated: In the recent episode at Buffalo Stamping, a routine scheduling decision made, in order to meet the needs of the program, was transformed by you into a point of contention which disrupted the work of numerous people. By your involving others in and outside of the University in your attempt to override the scheduling decision, you placed your personal convenience and priorities above those of the University, the Sponsor, the local site and the program as a whole. Your conduct damaged our relationship with the sponsor and the location and disrupted the provision of service to workers. This was inexcusably unprofessional. The Buffalo episode, in and of itself, would have caused me to consider the termination of your employment. In the context of the prior written warnings and your apparent inability to understand and appreciate the negative impact of your actions on the University’s relationship with its Sponsor, such action is inescapable. Your position in the [Disciplinary Review Conference] was that there was nothing wrong with your conduct in this or any other instance. This strengthened my conviction that termination was the only outcome that would meet the long term needs of the Program. Plaintiff brought this suit against the University of Michigan Board of Regents only, not the UAW-Ford Center or any individual (including Bykowski). In summary, plaintiff alleged: (1) disparate treatment on the basis of race in regard to his travel arrangements, assignments, work schedules, and criticisms from his supervisor, (2) retaliation for having filed two grievances alleging race discrimination, (3) termination from employment in October 1992, on the basis of illegal race discrimination, and (4) breach of contract. On March 8, 1994, the trial court granted defendant’s motion for partial summary disposition regarding plaintiffs claim that his assignment was reduced from full-time to part-time because of his race; the court determined that plaintiff had failed to raise a genuine issue of fact for trial that the decision had been made by the defendant, rather than by the uaw-Ford Center, whom plaintiff had not sued. The case proceeded to a jury trial of plaintiffs disparate treatment, retaliation, and discriminatory discharge claims. The jury found that plaintiff was not discharged from employment because of his race, that he was not retaliated against because of his complaints of discrimination, and that he was not entitled to any monetary back pay. The jury found that defendant discriminated against plaintiff by treating him differently than nonminorities, and awarded him noneconomic damages for outrage, indignation, humiliation, and embarrassment. The jury awarded $20,000, plus court costs and attorney fees. On appeal, in Docket No. 181187, plaintiff raises several substantive issues, one of which is cross appealed by defendant. In Docket No. 190178, plaintiff raises certain procedural issues involving mediation sanctions. The appeals were consolidated. m ANALYSIS A Plaintiff first alleges that the circuit court erred in granting partial summary disposition with regard to his claim that his change from full-time to part-time status was motivated by illegal race discrimination. We disagree. As a threshold matter, it is undisputed that it was the UAW-Ford Center, not the defendant university, that made the decision to reduce plaintiffs status. It is similarly undisputed that, in response to the UAW-Ford Center’s request for information, Ms. Bykowski provided the center with statistical information regarding the services actually performed by the RLE As. Plaintiff claims that Ms. Bykowski’s alleged racial animus tainted the center’s ultimate decision. However, plaintiff was unable to present facts to support his contention. In response to defendant’s motion, plaintiff presented no evidence that the statistics compiled by Bykowski were inaccurate or slanted, or that the statistics were not based on the reports actually submitted by the RLEAs themselves. Although plaintiff stated that “further discovery will very likely shed additional light on these questions,” plaintiff failed to show by affidavit that further development would support his claims. MCR 2.116(H). Thus, had Bykowski harbored illegal discriminatory animus, plaintiff was unable to show that it contributed in any way to the UAW-Ford Center’s decision to reduce plaintiff’s hours. See McDonald v Union Camp Corp, 898 F2d 1155, 1161 (CA 6, 1990). We find no error. B The parties next cross appeal various noneconomic damages issues, for which an additional factual discussion is necessary. In his complaint, plaintiff alleged that, as a result of defendant’s racial discrimination, he suffered, inter alia, “mental anguish, outrage, embarrassment and humiliation.” The applicable Michigan Court Rule regarding discovery provides: (1) When a mental or physical condition of a party is in controversy, medical information about the condition is subject to discovery under these rules to the extent that (a) the information is otherwise discoverable under MCR 2.302(B), and (b) the party does not assert that the information is subject to a valid privilege. [MCR 2.314(A)(1).] Pursuant to MCR 2.314, defendant sought discovery of plaintiffs mental histoiy. Plaintiff refused this request, asserted the physician-patient privilege, and contended: Plaintiff states [in his complaint] that he is seeking damages for mental anguish, humiliation, embarrassment, and the like, which are psychic damages. He is not claiming psychiatric injury or exacerbation of a pre-existing psychological or psychiatric condition. Because plaintiff asserted the privilege to shield his mental history from discovery, defendant asked the trial court by a motion in limine to preclude plaintiff from introducing any evidence of emotional distress at trial, pursuant to MCR 2.314(B)(2): Unless the court orders otherwise, if a party asserts that the medical information is subject to a privilege and the assertion has the effect of preventing discovery of medical information otherwise discoverable under MCR 2.302(B), the party may not thereafter present or introduce any physical, documentary, or testimonial evidence relating to the party’s medical history or mental or physical condition. Plaintiff argued to the circuit court that MCR 2.314(A)(1) did not apply because “as long as the claim for non-economic damages is restricted to embarrassment, humiliation, outrage and indignation, which some courts are referring to as the garden variety of emotional injuries, . . . the medical and psychological] records are not relevant and are not likely to lead to any relevant or admissible evidence.” The trial court incorrectly ruled that it would permit plaintiff to introduce evidence regarding embarrassment, humiliation, outrage, and indignation, but not mental anguish and emotional distress. In an August 12, 1994, opinion, the trial court refused plaintiffs request to expand the ruling to permit evidence of damages for mental anguish. At trial, the court attempted to limit plaintiffs evidence to his feelings of indignation, embarrassment, humiliation, and outrage and to prohibit testimony regarding emotional distress or mental anguish. Thus, plaintiff testified that he felt disgusted, frustrated, and embarrassed, that he felt angry, disrespected, and very insignificant as a person, and that he felt like “a broke forty-one year old man living with his mother.” At one point, the trial court sustained defendant’s objection that plaintiff’s testimony was invading the province of emotional/mental anguish. As previously stated, the jury ultimately awarded plaintiff $20,000 in noneconomic damages for outrage, indignation, humiliation, or embarrassment resulting from racial discrimination in his employment. We reverse this award because it was predicated on evidence of damages that should have been excluded by the trial court. It is well established that victims of discrimination may recover for psychic injuries such as humiliation, embarrassment, outrage, disappointment, and other forms of mental anguish that flow from discrimination. Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785, 799; 369 NW2d 223 (1985). See also Phillips v Butterball Farms Co, Inc (After Second Remand), 448 Mich 239, 250-253; 531 NW2d 144 (1995). However, the trial court clearly erred in attempting to create two separate categories of psychic injuries: (1) “serious” injuries such as “emotional distress” and “mental anguish,” and (2) “garden variety” injuries, such as hurt feelings, outrage, embarrassment, and humiliation. Such a distinction cannot be realistically maintained. In Veselenak v Smith, 414 Mich 567, 576; 327 NW2d 261 (1982), which addressed the duplication between ordinary damages and exemplary damages, the Court rejected the contention that “ordinary damages for shame and mortification” and “exemplary damages for humiliation and indignity” compe

RODNEY ALTON LORBACHER, Plaintiff v. HOUSING AUTHORITY OF THE CITY OF RALEIGH, FLOYD T. CARTER, former Executive Director, PAUL H. MESSENGER, current Executive Director and HORACE C. BRANTLEY III, former Deputy Executive Director, Defendants No. COA97-129 (Filed 18 November 1997) 1. Constitutional Law § 86 (NCI4th)— 42 U.S.C. § 1983-action against individuals — presumed in official capacity It was presumed that plaintiff was suing the named defendants under 42 U.S.C. § 1983 in their official capacity as officers of the Housing Authority where the complaint did not identify whether defendants were being sued in their individual or official capacities but the caption of the complaint and the allegations made therein refer to them by both their names and job titles. A suit against a defendant in his or her official capacity is simply another way of pleading an action against the municipality itself. 2. Constitutional Law § 86 (NCI4th)— employment termination — 42 U.S.C. § 1983 — violation of free speech- no policy or practice Summary judgment was properly granted for defendant Housing Authority on a claim under 42 U.S.C. § 1983 for deprivation of free speech arising from plaintiff’s firing as Director of Development where plaintiff neither alleged nor brought forth any evidence that the Housing Authority has a policy or practice of discharging employees for the exercise of First Amendment rights. Although plaintiff alleges that the individual defendants were delegated final policy-making authority, the Housing Authority Board established personnel policies and adopted the employee handbook in question, which states that all personnel decisions regarding demotions and discharges are vested in the Executive Director and those designated to act on the Executive Director’s behalf. The Executive Director is a final decision-maker in matters of promotions and discharges, but is not the final policy-maker with regard to substantive personnel matters. 3. Trial § 43 (NCI4th)— summary judgment — motion to reconsider — new evidence The trial court did not abuse its discretion by denying plaintiff’s motion to reconsider a summary judgment for defendant Housing Authority on a 42 U.S.C. § 1983 claim in light of new evidence where the additional evidence failed to establish that the Housing Authority itself was responsible for the violation of plaintiff’s constitutional rights. 4. Labor and Employment § 68 (NCI4th)— wrongful discharge — municipal agency — 42 U.S.C. § 1983 claim distinguished Defendant Housing Authority could be sued for wrongful discharge where plaintiff brought a state claim for wrongful discharge and a claim under 42 U.S.C. § 1983 against the Housing Authority and individual officials arising from his dismissal from the Housing Authority. A state claim for wrongful discharge may be based on the agency relationship between an entity and its officers and employees and plaintiff alleged that the individual defendants were acting in the scope and course of their employment when they discharged him. The court properly dismissed the claim against the individuals as they were not plaintiff’s employers for purposes of a wrongful discharge claim and, while the Housing Authority contends that the state wrongful discharge claim against it should be dismissed for the same reasons as the § 1983 claim, the requirements for municipal liability under § 1983 are specifically driven by the text and legislative history of the federal statute. 5. Labor and Employment § 77 (NCI4th)— agency negligence disclosed — wrongful discharge claim — summary judgment Summary judgment should not have been granted for defendant Housing Authority on a state wrongful discharge claim where plaintiff alleged that he was dismissed for giving truthful testimony and media statements about the Housing Authority’s knowledge of dangerous conditions and inadequate maintenance programs which led to two deaths and defendant contended that plaintiff was discharged for failure to obtain a valid driver’s license and for accepting rides from contractors in violation of policy. A valid claim for wrongful discharge exists when an at-will employee is discharged for an unlawful reason or in contravention of public policy and if plaintiff’s discharge was in retaliation for his testimony, his claim falls well within the public policy exception. Plaintiff’s evidence created a genuine issue of material fact as to the motive for his discharge; although defendant produced refuting evidence, it is for the finder of fact to determine the motive. However, the trial court correctly granted summary judgment on the issue of punitive damages since punitive damages may not be recovered from a municipal corporation absent statutory authorization. 6. Constitutional Law § 105 (NCI4th)— employment dismissal — federal due process — employee handbook — no entitlement to continued employment The trial court properly dismissed under N.C.G.S. § 1A-1, Rule 12(b)(6) plaintiff’s Fourteenth Amendment Due Process claim arising from his dismissal from the Housing Authority where plaintiff did not allege a liberty interest, failed to allege that he is covered by a statute or ordinance creating an entitlement to continued employment, and employee handbooks are not considered part of the employment contract unless expressly included. 7. Constitutional Law § 105 (NCI4th)— employment termination — North Carolina Constitution — insufficient property interest The trial court properly dismissed plaintiffs claim that his discharge from the Housing Authority violated the Law of the Land clause of the North Carolina Constitution where he lacked the requisite property interest in continued employment to trigger the protections afforded by the State Constitution. 8. Constitutional Law § 98 (NCI4th)— freedom of speech— state constitution — wrongful discharge claim — adequate protection Plaintiffs discharge from the Housing Authority, allegedly for giving deposition testimony and media statements regarding improper Housing Authority practices, did not warrant a direct claim under the North Carolina Constitution for violation of freedom of speech because plaintiffs rights are adequately protected by a wrongful discharge claim. 9. Intentional Mental Distress § 2 (NCI4th)— employment discharge — allegations—insufficient The trial court did not err by dismissing plaintiffs claim for intentional infliction of emotional distress arising from his discharge from the Housing Authority, allegedly for disclosing the Housing Authority’s negligent operations, where defendant’s conduct, even assuming the truth of the allegations, did not rise to the required level of extreme and outrageous conduct and plaintiff did not allege that defendants’ conduct was intentional. 10.Negligence § 75 (NCI4th)— employment discharge— negligent infliction of mental distress — allegations— insufficient The trial court properly dismissed plaintiff’s negligent infliction of emotional distress claim arising from his discharge from the Housing Authority, allegedly for disclosing the Housing Authority’s negligent operations. The conclusion that defendant’s conduct was not extreme and outrageous with respect to plaintiff’s intentional infliction of emotional distress claim also precludes any claim for negligent infliction of emotional distress. Appeal by plaintiff from judgment entered 12 November 1996, by Judge Henry V. Barnette in Wake County Superior Court. Heard in the Court of Appeals 6 October 1997. The purpose of the Housing Authority is to provide and maintain low income residential housing in the Raleigh area. Plaintiff worked for the Housing Authority for a number of years and eventually became “Director of Development.” Part of plaintiffs responsibilities revolved around obtaining federal grant monies for improvements, supervising various employees, monitoring the work of consultants, and visiting construction sites to monitor for construction compliance. On 29 June 1992, plaintiff lost his driver’s license as a result of a driving while impaired conviction. Because performance of his duties required a valid driver’s license, Brantley terminated plaintiff’s employment on 21 July 1992. Plaintiff appealed his termination and agreed to find a car and driver for any necessary travel and was reinstated effective 8 August 1992. As a result of negligent maintenance of a heating system, two residents of Walnut Terrace Apartments died from carbon monoxide poisoning on 10 October 1992. On 3 November 1992, a wrongful death action was filed against the Housing Authority. Plaintiff gave deposition testimony in the case on 22 October 1993 and testified regarding the Housing Authority’s knowledge of the dangerous conditions at the apartment complex and failure to take any remedial action. Plaintiff was discharged by Paul Messenger on 28 October 1993. In October 1994, plaintiff filed suit against the Housing Authority of the City of Raleigh, Floyd T. Carter, former Executive Director, Horace C. Brantley III, former Deputy Executive Director, and Paul H. Messenger, then current Executive Director. He alleged that his discharge resulted from his comments to the media about improper Housing Authority practices and his deposition testimony to the same effect. Defendants claim plaintiff’s discharge was not related to his deposition testimony but rather was the result of plaintiff’s failure to obtain acceptable transportation arrangements that were necessary for the proper performance of his duties. Paul Messenger was hired as the new Executive Director of the Housing Authority, replacing Floyd Carter, on 20 September 1993. Shortly after his arrival, Messenger learned through a routine insurance check that plaintiff did not have a valid license. Messenger also learned that plaintiff was accepting rides to construction sites from the contractors he was supervising, in contravention of Housing Authority policy. Messenger terminated plaintiffs employment on 28 October 1993 on the grounds that plaintiff could not fulfill the responsibilities of his job without a license and that accepting rides from the contractors he was to supervise created an unacceptable conflict of interest. Plaintiff brought the following claims against defendants: (1) a 42 U.S.C. § 1983 claim for violation of his First Amendment rights, (2) violation of his Fourteenth Amendment Due Process rights, (3) a conspiracy claim under 42 U.S.C. § 1985, (4) violations of his state constitutional rights under the Law of the Land and Free Speech Clauses, and (5) state law claims against defendants for breach of their fiduciary duties, intentional infliction of emotional distress and negligent infliction of emotional distress. Plaintiff additionally requested punitive damages. Defendants moved to dismiss all claims except the federal constitutional free speech claim and the wrongful discharge claim against the Housing Authority. On 1 May 1996, Judge Barnette partially granted defendants’ motion. All claims against defendant Brantley were dismissed for the lack of any allegation of misconduct on his part. All the remaining claims covered were dismissed as well, except for plaintiffs claims against defendants Carter and Messenger for punitive damages. Subsequently, defendants’ motion for summary judgment on plaintiff’s free speech, wrongful discharge and punitive damages claims was granted on 2 October 1996. On the same day, plaintiff tendered additional evidence and filed a motion to reconsider or for relief from summary judgment. The trial court denied this motion and plaintiff appealed. William E. Moore, Jr. and Marvin Schiller for plaintiff appellant. Cranfill, Sumner & Hartzog, L.L.P., by Raymond M. Davis, for defendant appellee. ARNOLD, Chief Judge. Plaintiff appeals from the trial court’s order granting defendants’ motion for summary judgment on plaintiff’s 42 U.S.C. § 1983 claim for violation of his First Amendment rights, his state wrongful discharge claim, and claims for punitive damages against defendants Carter and Messenger. He also assigns error to the trial court’s denial of his motion to reconsider or for relief from summary judgment. Finally, plaintiff appeals from the partial grant of defendants’ motion to dismiss on his Fourteenth Amendment Due Process claim, state constitutional Law of the Land and Freedom of Speech claims, and intentional and negligent infliction of emotional distress claims. Summary judgment is appropriate when then there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c) (1990); Gregory v. Perdue, Inc., 47 N.C. App. 655, 656, 267 S.E.2d 584, 586 (1980). It is not the court’s function to decide questions of fact when ruling on a motion for summary judgment; rather, the moving party must establish that there is an absence of a triable issue of fact. Moore v. Bryson, 11 N.C. App. 260, 262, 181 S.E.2d 113, 114 (1971) (citations omitted). All evidence must be considered in the light most favorable to the non-moving party. Burrow v. Westinghouse Electric Corp., 88 N.C. App. 347, 350, 363 S.E.2d 215, 217, disc. review denied, 322 N.C. 111, 367 S.E.2d 910 (1988) (citations omitted). Plaintiff alleges that defendants deprived him of his First Amendment right to free speech in .violation of 42 U.S.C. § 1983. The federal statute reads, in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983 (1994). The Housing Authority is a municipal corporation. Jackson v. Housing Authority of High Point, 316 N.C. 259, 341 S.E.2d 523 (1986). Although the language of § 1983 speaks in terms of “person,” the United States Supreme Court holds that municipalities axe “persons” for purposes of the statute. Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611 (1978). Although plaintiff also brought claims against Housing Authority officers under the statute, we need only consider the liability of the Housing Authority for the § 1983 claim. Municipal officers may be sued under § 1983 in their official or individual capacity. Hafer v. Melo, 502 U.S. 21, 116 L. Ed. 2d 301 (1991). A suit against a defendant in his/her official capacity is simply another way of pleading an action against the municipality itself. Monell, 436 U.S. 658, 690 n.55, 56 L. Ed. 2d 611, 635 n.55. Officials who are sued in their individual capacity are personally liable for damages, although a defense of qualified immunity may be available to them. Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396 (1982). In the present case, the complaint does not identify whether defendants Carter and Messenger are being sued in their individual or official capacities; however, the caption of the complaint, and the allegations made therein, refer to them by both their names and job titles. We presume that plaintiff is suing these individuals in their official capacity as officers of the Housing Authority. See Kolar v. County of Sangamon of State of Ill., 756 F.2d 564, 568 (7th Cir. 1985). Therefore, we need only consider the liability of the Housing Authority with respect to this claim. Although a municipality may be sued under the statute, it may not be held liable solely on the basis of respondeat superior, rather, liability exists only if the entity itself is responsible for the violation. Pembaur v. City of Cincinnati, 475 U.S. 469, 478, 89 L. Ed. 2d 452, 462 (1986). The Housing Authority only can be held liable for the actions of its employees if it officially ordered or sanctioned the conduct, the employees responsible for plaintiffs demotion and discharge had final policy-making authority, or the action was taken pursuant to a municipal policy, practice or custom. Id. at 483 n.12, 89 L. Ed. 2d at 465 n.12. Plaintiff neither alleges nor brings forth any evidence of the Housing Authority having a policy or practice of discharging employees for the exercise of First Amendment rights. Instead, plaintiff alleges that defendants Carter and Messenger were delegated final policy-making authority. It is on this theory of municipal liability alone which plaintiff rests his case. In order that the action properly may be considered a municipal policy, the employee must possess authority to establish “final policy with respect to the subject matter in question.” Id. at 483, 89 L. Ed. 2d at 465. The determination of whether a specific official has final policy-making authority is governed by state or local law. City of St. Louis v. Praprotnik, 485 U.S. 112, 125, 99 L. Ed. 2d 107, 119 (1988). The Housing Authority handbook states that all personnel decisions regarding demotions and discharges are vested in the Executive Director and those designated to act on his/her behalf. The fact that an official has some discretion in the exercise of his/her functions, in and of itself, does not give rise to municipal liability. Pembaur, 475 U.S. at 481-82, 89 L. Ed. 2d at 464. Although the executive director is a final decision-maker in matters of promotions and discharges, he is not the final policy-maker with regard to substantive personnel matters. The Housing Authority Board established personnel policies and adopted the employee handbook in question. Federal courts draw a line between the power to implement policy and the power to make policy. An official’s ability to discharge an employee does not necessarily equate to the ability to create substantive policy. See Greensboro Professional Firefighters Ass’n, Local 3157 v. City of Greensboro, 64 F.3d 962, 966 (4th Cir. 1995) (“The discretion to hire and fire does not necessarily include responsibility for establishing related policy.”). Plaintiff has failed to come forward with any evidence to support a viable theory of liability. Indeed, plaintiff failed to even address this element of a § 1983 claim in his brief. Accordingly, we conclude that summary judgment for defendant Housing Authority was properly granted. At this point, we also consider plaintiffs argument that in light of the introduction of new evidence, the trial court erred in denying his motion to reconsider or for relief from judgment. The standard of review on appeal from the trial court’s denial of such a motion is whether the trial court abused its discretion. Muse v. Charter Hospital of Winston-Salem, Inc., 117 N.C. App. 468, 481, 452 S.E.2d 589, affirmed per curiam, 342 N.C. 403, 464 S.E.2d 44 (1995). We conclude that the trial court did not abuse its discretion in this matter. The additional evidence failed to establish that the Housing Authority itself was responsible for the violation of plaintiff’s constitutional rights. Plaintiff also brought a state law cause of action against defendants for wrongful discharge. The trial court properly dismissed the claim against the individual defendants as they were not plaintiff’s employers for the purposes of a wrongful discharge claim. See Sides v. Duke University, 74 N.C. App. 331, 343, 328 S.E.2d 818, 827, disc. review denied, 314 N.C. 331, 333 S.E.2d 490 (1985). With regard to the Housing Authority, it argues that this claim against it fails for the same reasons that plaintiff’s First Amendment claim fails. We disagree. Plaintiff brought suit against defendant Housing Authority for violation of his First Amendment rights pursuant to 42 U.S.C. § 1983. The requirements for municipal liability under § 1983 are specifically driven by the text and legislative history of this federal statute. Plaintiff’s wrongful discharge claim is not a federal, bu

Carleton Matthews vs. Ocean Spray Cranberries, Inc. Plymouth. October 14, 1997. - November 12, 1997. Present: Wilkins, C.J., Abrams, Lynch, Grbaney, Marshall, & Ireland, JJ. Employment, Discrimination, Termination. Anti-Discrimination Law, Burden of proof, Employment, Prima facie case, Race, Termination of employment. Practice, Civil, Summary judgment. Massachusetts Commission Against Discrimination. Discussion of the burden of proof in an employment discrimination claim in the context of cross motions for summary judgment. [127-128] The record of an employment discrimination case on cross motions for summary judgment showed that the defendant introduced credible evidence of a legitimate, nondiscriminatory reason for terminating the plaintiff for having removed company product from company premises without authorization in violation of the company’s widely publicized rules [128-129]; further, the record showed that the defendant demonstrated that the plaintiff would be unable to prove at trial that the stated reason for terminating him was a pretext for racial discrimination [129-134], A finding of probable cause by the Massachusetts Commission Against Discrimination in an employment discrimination case did not preclude a court of competent jurisdiction from entering summary judgment for the defendant employer on the record of cross motions for summary judgment in a civil action arising out of the same circumstances. [134-135] Civil action commenced in the Superior Court Department on September 9, 1993. The case was heard by Raymond J. Brassard, J., on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Edward J. McCormick, III (Elizabeth Maitland with him) for the plaintiff. Kay H. Hodge (Andrew L. Matz with her) for the defendant. Greaney, J. The plaintiff, Carleton Matthews, an African-American male, was terminated from his position as a forklift operator in the shipping department of the defendant’s, Ocean Spray Cranberries, Inc.’s, Middleborough manufacturing facility on April 23, 1992, after he admitted to removing product (cranberry sauce) from the facility’s premises without authorization. The plaintiff grieved his termination to arbitration pursuant to his collective bargaining agreement, and the arbitrator concluded, in a written decision which was not appealed, that the plaintiff had been terminated for just cause. The plaintiff filed complaints with the United States Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), and with the Massachusetts Commission Against Discrimination (MCAD) alleging employment discrimination. The OFCCP issued a notice of violation (which it subsequently rescinded), and the MCAD entered a finding of probable cause. The plaintiff next withdrew his charge before the MCAD and filed a complaint in the Superior Court, alleging that the defendant had terminated him because of his race in violation of G. L. c. 151B, § 4 (1). Both parties filed motions for summary judgment, and the judge granted the defendant’s motion. Thereafter, the judge denied the plaintiff’s motion to strike an affidavit submitted by the defendant’s human resources manager. The plaintiff has appealed, and we granted his application for direct appellate review. We affirm the summary judgment for the defendant. 1. The following facts are relevant for the purpose of summary judgment. The defendant maintains at its Middleborough facility a set of “plant rules” which are divided into “major” and “minor” violations. Included as a major violation, which “may result in discharge or a disciplinary suspension,” is “stealing,” which “involves the stealing of [cjompany or other employee’s property, stealing [cjompany time such as sleeping on the job, deliberate time card falsification, punching another’s time card, claiming pay not due, etc.” On March 20, 1989, a memorandum was issued in which the plant manager highlighted “stealing,” and three other major violations, as transgressions that the company would “not tolerate.” The memorandum “clarif[ied] that [stealing] also [applies to] individuals who are removing product from production lines without authorization, removing product from any designated production or storage area, bringing product or company property outside of the area in which it normally resides without authorization. It includes product or company property that is in an individual’s possession or under [the individual’s] control[,] such as in a bag or locker or is removed from the control or domain of the company whether it is on the premises or off.” The memorandum further stated: “all major violations as noted in the plant rules including stealing . . . will be dealt with in the most extreme manner possible. These plant rules when abused will be looked at as a threat to the well-being of our employees and as such, any individual found to have engaged in any of these activities [will] be terminated.” Neither the definition of stealing in the clarifying memorandum, nor in the plant rules, distinguishes between the unauthorized removal of damaged or undamaged product. On September 20,1991, the plant manager issued a memorandum entitled “REMOVAL OF COMPANY PROPERTY FROM OCEAN SPRAY COMPOUND.” The memorandum stated: “May this note serve to remind all employees that [c]ompany property removed from this facility requires pre-approval by a Manager or Supervisor. Prior approval to remove items may be granted by Managers and Supervisors under circumstances deemed appropriate according to policy and practice at the facility.” The plant rules, and both memoranda, were distributed to employees at the time of their issuance, and are posted on the employee bulletin board next to postings of employee schedules and assignments. At the time of the incident at issue, numerous employees had utilized the authorization form procedure to remove various objects discarded in the facility’s dumpsters. The facility also maintains a store where employees may purchase damaged product for three dollars per case. Despite the rules, deposition testimony indicated that the unauthorized removal of damaged product is commonplace at the facility. Nonetheless, the plant’s rules regarding the unauthorized removal of company product are well known and understood among the facility’s nearly 400 employees. The defendant has terminated all employees it has discovered taking company product without authority since the clarification memorandum was issued. The Middleborough facility does not manufacture cranberry sauce, although the facility stores and distributes sauce manufactured at the company’s Bordentown, New Jersey facility. The defendant tracks inventory received by the Middleborough facility, and cranberry sauce arrives at the facility in palletized lots for distribution to retailers. The company claims that it maintains records regarding damaged product, although some damaged product is discarded without having been recorded. The plaintiff began his employment with the defendant on October 12, 1987, and by all accounts, he was a good employee and was qualified for his position. In 1988, he received a written warning and a suspension for a major violation of the company’s rules (fighting). The warning stated that “your involvement in any major violation in the future will place your job in jeopardy.” On Friday, April 17, 1992, at approximately noontime, James Hurley, a production supervisor at the facility, observed the plaintiff in the cafeteria of the plant carrying a cardboard case containing eight-ounce cans of cranberry sauce under his left arm. The case appeared to Hurley to be unopened. A dark colored jacket was placed on top of the case. The plaintiff then left the cafeteria. Shortly thereafter, Barbara Denkner, the human resources manager at the facility, learned that the plaintiff had left the facility with company product. She immediately began an investigation into the incident in the course of which she interviewed the plaintiff and other facility employees. Denkner first spoke with the facility’s shipping and employee sales departments to ask whether the plaintiff had purchased or had been given any company product. When she was informed that he had not been authorized to remove product from the facility, Denkner then met with the plaintiff and his supervisor, Mustapha Finni. On informing him that he was seen taking a case of company product, the plaintiff readily admitted that he had taken the product. He explained that he had removed a damaged cardboard case containing dented cans of cranberry sauce from a dumpster in the lot outside the shipping area of the facility. He stated that he believed that he could take the product without authorization because it had been discarded and was in the dumpster. In response to Denkner’s suggestion that he return the product, the plaintiff stated that he had given it to his wife after he left the building. Following this meeting, Denkner advised Linda Hogan, the acting plant manager, “that an employee had admitted to stealing product.” At Hogan’s direction, Denkner again met with the plaintiff. James Luckraft, a supervisor at the facility, was present at this meeting. The plaintiff again admitted to taking company product without authorization, and acknowledged that he had received a copy of the plant rules at his orientation and that he was aware of the September 20, 1991, memorandum requiring employees to submit an authorization form, signed by their supervisor, prior to the removal of company property. He maintained that the rules were unclear and that he had misunderstood the authorization policy in that he believed that discarded product found in a dumpster was no longer company product subject to the authorization form requirement. Denkner did not find the plaintiff’s explanation credible because the September 20, 1989 “clarification” memorandum had been distributed to all employees when it was issued and had continued to be posted throughout the facility. In addition, the authorization form policy was posted throughout the plant and was being followed by other employees. At the conclusion of the meeting, Denkner informed the plaintiff that he was suspended pending further investigation of the incident. Later that afternoon, after he was advised that return of the product would assist the investigation, the plaintiff returned to Denkner’s office with seven uniformly dented, clean, and otherwise unblemished cans of cranberry sauce in a “Shaw’s Supermarket” paper bag, which he told Denkner were the cans he had taken from the dumpster. Following the plaintiff’s suspension, Denkner reviewed company records which indicated that the cans the plaintiff returned were included in a shipment of cranberry sauce received by the Middleborough facility on April 16, 1992, and that part of the shipment had been transported to various retailers in palletized quantities on the same day. The records did not indicate that the cans the plaintiff returned had been damaged, reworked or destroyed during the week and one half, prior to, and including, April 17, 1992. Furthermore, because the dumpster from which the plaintiff alleged he retrieved the cans is emptied daily, Denkner concluded that the plaintiff could not have found the cans in the dumpster. Denkner also concluded that the plaintiff had been untruthful about the quantity of product taken, since he had been observed carrying a case of product. After reviewing both the investigation report prepared by Denkner and the plaintiff’s personnel file, and after speaking with Denkner, Luckcraft, Finni, and Hurley, Hogan decided to terminate the plaintiff. Hogan asserted in a deposition that, because the plaintiff had removed product from the facility despite the rule against removing company property without authority, and because the authorization form policy for removing property was widely promulgated, and well-utilized by other employees, she did not consider suspending the plaintiff. The plaintiff’s disciplinary record did not “weighQ heavily” on her decision because “[u]nder the circumstances with [the plaintiff] having stolen company property, it would have stood alone ... in terms of requiring a termination.” On April 23, 1992, Hogan met with the plaintiff to advise him that he was discharged. Hogan maintained that prior to that meeting, she had “never connected [the plaintiff’s] face and [his] name.” 2. The party moving for summary judgment has the burden of affirmatively demonstrating the absence of a genuine issue of material fact on every relevant issue, even if the party would not have the burden on an issue if the case were to go to trial. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). The moving party may satisfy its burden by demonstrating that the opposing party has no reasonable expectation of proving an essential element of the case at trial. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). Here, we concentrate on the defendant’s motion for summary judgment which is the one granted by the judge, and is at the heart of the appeal. Summary judgment is admittedly a disfavored remedy in discrimination cases based on disparate treatment. Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 439 (1995), and cases cited. Nonetheless, summary judgment is not always inappropriate in these cases. We have upheld summary judgment in favor of defendants where their motions demonstrate that the plaintiff is unable to offer admissible evidence of the defendant’s discriminatory intent, motive, or state of mind sufficient to carry the plaintiff’s burdens and support a judgment in the plaintiff’s favor. See id. at 440, and cases cited. In employment discrimination cases alleging disparate treatment, we allocate the burden of producing evidence according to the framework set forth by the United States Supreme Court under the Federal antidiscrimination provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (1994). See id. at 440-441 (1995); Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 138 (1976), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under this framework, the plaintiff bears the initial burden of establishing a prima facie case of racial discrimination. Blare, supra at 441. See McDonnell Douglas Corp., supra at 802; Wheelock College, supra at 138. Once the plaintiff meets this burden, unlawful discrimination is presumed. The burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its hiring decision, Blare at 441-442, citing Wheelock College, supra at 136, and McDonnell Douglas Corp., supra, and to “produce credible evidence to show that the reason or reasons advanced were the real reasons.” Blare, supra at 442, quoting Wheelock College, supra at 138. The defendant’s “burden of production is not onerous.” Blare, supra at 442. “The reasons given for a decision may be unsound or even absurd,” and the action may appear “arbitrary or unwise,” nonetheless the defendant has fulfilled its obligation. Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 766-768 (1986). The defendant is not required to persuade the fact finder that it was correct in its belief. Tate v. Department of Mental Health, 419 Mass. 356, 362 (1995). Once the defendant meets its burden, the presumption of discrimination vanishes, and the burden returns to the plaintiff to persuade the court, by a fair preponderance of the evidence, that the defendant’s proffered reason for its employment decision was not the real reason, but is a pretext for discrimination. Blare, supra at 444-445. The plaintiff bears the burden of persuasion on the ultimate issue of discrimination, id. at 445, and therefore 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.” Id. at 447. If the defendant’s reasons are not discriminatory, and if the plaintiff does not prove that they are pretexts, the plaintiff cannot prevail. Lewis, supra at 766. 3. Because the defendant does not argue that the plaintiff has failed to establish a prima facie case for summary judgment purposes, we assume, without deciding, that a prima facie case has been demonstrated. The plaintiff contends that the judge erred in denying his cross motion for summary judgment because the defendant failed to produce sufficient evidence to rebut the prima facie case. We disagree. The record shows that the defendant introduced credible evidence to demonstrate that it terminated the plaintiff because he had taken company product without authorization in violation of the company’s widely publicized rules. The defendant immediately initiated a thorough investigation into the incident, and did not accept the plaintiff’s explanation because, if indeed he was not aware, he should have been aware of the rules against removal of product without authority. It was reasonable in these circumstances for the defendant to conclude that the plaintiff was aware of the clarification memorandum and authorization form policy, but deliberately failed to adhere to them. In addition, the defendant reasonably could have suspected that the plaintiff lied about the circumstances surrounding his removal of the product. Accordingly, the defendant has satisfied its burden of advancing a legitimate, nondiscriminatory reason for terminating the plaintiff, and supporting that reason with credible evidence. We then turn to the issue whether the summary judgment record demonstrates that the defendant has shown that the plaintiff will be unable to prove at trial that the stated reason for terminating him was a pretext. The most probative means of establishing that the plaintiff’s termination was a pretext for racial discrimination is to demonstrate that similarly situated white employees were treated differently. Smith College v. Massachusetts Comm’n Against Discrimination, 376 Mass. 221, 228 (1978) (fact of discriminatory motive “can be inferred from differences in the treatment of [employees of different races]”). We have not previously considered what.evidence a plaintiff must produce to show that two individuals are similarly situated for purposes of proving differential treatment, and thus discrimination, in violation of G. L. c. 15IB. We adopt the approach taken by Federal courts under Title VII that in order to establish that the defendant’s stated reasons for terminating him were a pretext, the plaintiff must “identify and relate specific instances where persons similarly situated ‘in all relevant aspects’ were treated differently.” Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989), quoting Smith v. Monsanto Chem. Co., 770 F.2d 719, 723 (8th Cir. 1985), cert. denied, 475 U.S. 1050 (1986). The plaintiff must identify other employees to whom he is similarly situated “in terms of performance, qualifications and conduct, ‘without such differentiating or mitigating circumstances that would distinguish’ their situations.” Smith v. Stratus Computer, Inc., 40 F.3d 11, 17 (1st Cir. 1994), cert. denied, 514 U.S. 1108 (1995), quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992). Although the offenses of two employees need not be identical, the offenses must be of comparable seriousness. McDonnell Douglas Corp., supra at 804. Employees are not similarly situated where one is disciplined pursuant to one policy and then seeks to be compared to coworkers who were not subject to that policy or were subject to a previous policy. See Hooker v. Tufts Univ., 581 F. Supp. 104, 114 (D. Mass. 1983). The plaintiff submitted evidence that other individuals employed at the Middleborough facility, all of whom were white and were comparable to him in terms of positions and pay, committed violations of the compa

SMITH v UNION CHARTER TOWNSHIP (ON REHEARING) Docket No. 187677. Submitted November 5, 1996, at Lansing. Decided September 16, 1997. Submitted on rehearing October 28, 1997. Decided on rehearing January 16, 1998, at 9:10 A.M. Walter E. Smith, Jr., brought an action in the Isabella Circuit Court against Union Charter Township and others, alleging, in part, racial discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq., with respect to the defendants’ failure or refusal to hire the plaintiff as township manager/utility manager. In seeking applicants for the job, the defendants had advertised that a professional engineering degree or engineer in training status was required. During discovery, the defendants learned that the plaintiff had submitted a resumé that falsely stated that he was a college graduate with experience in managing a public utility. The defendants moved for summary disposition of the civil rights claim. The court, James E. Wilson, X, granted the motion. The Court of Appeals, Smolenski, P.J., and Markman and T. G. Power, JX, in an unpublished opinion per curiam and a concurring opinion by T. G. Power, X, issued September 16,1997 (Docket No. 187677), reversed and remanded, holding that the trial court erred in concluding that the position required a professional engineering degree, an equivalent degree, or engineer in training status and erred in concluding that the plaintiffs resumé fraud precluded him from maintaining the civil rights claim. The Court of Appeals subsequently granted the defendants’ motion for a rehearing. On rehearing, the Court of Appeals held-. Wrongdoing by a job applicant, such as resumé fraud, that is discovered by an employer after rejecting the applicant and that would have led to the employee’s rejection on lawful and legitimate grounds does not bar the applicant from relief under the Civil Rights Act for wrongful failure or refusal to hire. Where the resumé fraud relates to core qualifications for the position, it can be presumed that the employer would have quickly discovered the applicant’s lack of qualifications such that the applicant, if successful with regard to the civil rights claim, would be entitled to damages limited to backpay from the date of failure or refusal to hire to the date of discovery of the wrongdoing. Order of partial summary disposition vacated; case remanded for further proceedings. Civil Rights — Employment Discrimination — Wrongful Failure or Refusal to Hire — Subsequently Discovered Wrongdoing by Applicant. Wrongdoing by a job applicant, such as resumé fraud, that is discovered by an employer after rejecting the applicant and that would have led to the employee’s rejection on lawful and legitimate grounds does not bar the applicant from relief under the Civil Rights Act if the failure or refusal to hire was unlawful under the act (MCL 37.2202; MSA 3.548[202]). Constance Y Ross, for the plaintiff. Foster, Swift, Collins & Smith, P.C. (by Kevin McGraw and Stephen J. Rhodes), for the defendants. Before: Smolensk, P.J., and Markman and T. G. Power, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Per Curiam. Plaintiff appeals as of right an order granting partial summary disposition to defendants pursuant to MCR 2.116(C)(10). In our initial opinion, Smith v Union Charter Twp, unpublished opinion per curiam of the Court of Appeals, issued September 16, 1997 (Docket No. 187677), we reversed and remanded. Defendants moved for rehearing. We hereby grant defendants’ motion for rehearing and vacate our initial opinion. We now vacate and remand. Defendant Union Charter Township advertised for candidates for an employment position entitled “Township Manager/Utility Manager,” which position required, in part, “PE [Professional Engineering Degree] or EIT [Engineer in Training status] with business management background or equivalent, plus local government experience. Responsible for management of water and sewer utilities . . . .” Plaintiff, a black male, submitted a resumé indicating that he had both a “B.S., Business Administration,” and an associate of arts degree. Plaintiff’s resumé listed three employers and indicated that he had management experience. With respect to one employer, plaintiff’s resumé indicated that he had experience in the public sector supervising civil engineering projects, including the construction, maintenance, and repair of water and sewage lines. Plaintiff and Wayne Zdrojkowski, a white male, emerged as finalists for the position. Defendant township offered the position to Zdrojkowski, who ultimately refused the offer. Defendant township did not offer the position to plaintiff and, instead, continued searching for candidates to fill the position. Plaintiff filed suit against defendant township and certain township officials, alleging, in relevant part, a claim of racial discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. During discovery, defendants learned that plaintiff had falsified parts of his resumé. Specifically, defendants discovered that plaintiff had only a general equivalency diploma (GED) with no college credits, and that he had little or no experience in designing, managing, operating, constructing, or maintaining a public utility. Defendants moved for summary disposition, which motion the trial court granted. First, the court noted that the employment advertisement plaintiff had answered required a “PE or EIT ... or equivalent,” and that “the equivalent refers to an equivalent degree in PE or EIT.” The court indicated that it had reviewed plaintiff’s resumé, and found as fact that plaintiff was not qualified for the employment position. The court made clear that this ground for its grant of summary disposition did not turn on plaintiff’s resumé fraud. Second, and alternatively, the court, noting that there was no Michigan law on this particular issue, found as a matter of law that plaintiff could not maintain his cause of action because of his resumé fraud. This Court reviews decisions on motions for summary disposition de novo to determine if the moving party was entitled to judgment as a matter of law. Stehlik v Johnson (On Rehearing), 206 Mich App 83, 85; 520 NW2d 633 (1994). MCR 2.116(C)(10) permits summary disposition when, except for the amount of damages, there is no genuine issue concerning any material fact and the moving party is entitled to [judgment] as a matter of law. A court reviewing such a motion must consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the opposing party and grant the benefit of any reasonable doubt to the opposing party. [Id.] Under the Civil Rights Act, an employer is prohibited from failing or refusing to hire an individual because of race. MCL 37.2202; MSA 3.548(202). The parties agree that Carden v General Motors Corp, 156 Mich App 202, 210; 401 NW2d 273 (1986), sets forth the applicable elements of a prima facie case of racial discrimination in the context of a refusal to hire: The Plaintiff has the burden of proving the following: (1) That he belonged to a racial minority; (2) That he applied and was qualified for a job for which the employer was seeking applicants; (3) That, despite his qualifications, he was rejected. See also Matras v Amoco Oil Co, 424 Mich 675, 683-684; 385 NW2d 586 (1986). This Court recently held that an employee discharged in violation of the Civil Rights Act is not barred from all relief when, after his discharge, the employer discovers evidence of wrongdoing that would have led to the employee’s termination on lawful and legitimate grounds. Wright v Restaurant Concept Management, Inc, 210 Mich App 105, 109-110; 532 NW2d 889 (1995) (citing McKennon v Nashville Banner Publishing Co, 513 US 352; 115 S Ct 879; 130 L Ed 2d 852; [1995]), see also Horn v Dep’t of Corrections, 216 Mich App 58; 548 NW2d 660 (1996). “An employer should not be absolutely insulated from liability for violations of state civil rights laws because of the fortuitous discovery, after the employee’s termination, of employee wrongdoing sufficient to have caused his termination.” Wright, supra at 110. Rather, any wrongdoing on the employee’s part may be reflected in the relief awarded. Id. at 111-112. Where evidence of employee misconduct is subsequently discovered in a discriminatory discharge case, reinstatement and front pay are generally not appropriate remedies. McKennon, supra; Wright, supra at 111-113. With respect to an award of backpay in such cases, “[t]he beginning point in the trial court’s formulation of a remedy should be calculation of backpay from the date of the unlawful discharge to the date the new information was discovered.” McKennon, supra; Wright, supra at 112. However, the relief ultimately accorded in such cases depends on the “ ‘factual permutations and the equitable considerations’ raised and in light of the remedies available under the Civil Rights Act.” Wright, supra at 112-113 (quoting McKennon, supra). “This approach precludes the exoneration of either wrongdoer while preserving the statutory goal of deterring discrimination.” Id. at 113. Unlike McKennon, Wright, and Horn, which involved wrongful termination, the present case involves an alleged wrongful failure to hire. The applicability of the after-acquired evidence rule to the present case is a legal question that is reviewed de novo. Horn, supra at 66. We find nothing in the logic of either the Supreme Court’s opinion in McKennon or this Court’s opinion in Wright that would preclude application of those cases to failure to hire cases. See Wright, supra at 110. However, one important distinction between wrongful discharge and failure to hire cases that bears on the appropriate remedy is the employer’s ability to observe the plaintiff working. In wrongful discharge cases, the employer has had the opportunity and incentive to monitor whether the plaintiff is qualified for the position during the time the plaintiff has worked for the employer. Accordingly, in awarding damages, it is appropriate that the starting point in calculating backpay be from the date of the discharge through the date the employer actually discovers the resumé fraud. However, in failure to hire cases, the employer has had no similar opportunity to observe the plaintiff working and thereby to discover resumé fraud relating to the plaintiff’s qualifications for the position. Accordingly, in applying the remedy guidelines set forth in these cases to the failure to hire context, we believe that the starting point should be calculation of backpay from the date of the unlawful employment action to the date that the defendant would reasonably have discovered the plaintiffs misrepresentations if he had been hired. Where the resumé fraud relates to core qualifications for the position, for example, it can be presumed that the employer would have quickly discovered the plaintiffs lack of qualifications and, therefore, the resumé fraud if the plaintiff had started working for the employer. Here, plaintiff is seeking recovery for alleged discrimination in violation of the Civil Rights Act despite his resumé fraud. The position at issue, Township Manager/Utility Manager, required specific technical expertise and experience. The specific false representations on plaintiffs resumé indicated that he was qualified for the position in question, when, in fact, he was not. Because these false representations of expertise and experience involved core qualifications for the position, we are convinced that plaintiffs lack of such expertise would quickly have become apparent to defendants if plaintiff had attempted to perform the job. Accordingly, here, if plaintiff were to prevail in his civil rights action against defendants, he would be entitled to extremely limited damages because defendants would soon have discovered his lack of qualifications and, therefore, his resumé fraud had they hired him. For these reasons, we vacate the trial court order granting defendants’ motion for partial summaiy disposition and remand for further proceedings consistent with this opinion. Defendants contend that plaintiffs claim of appeal was not timely. A challenge to subject-matter jurisdiction may be raised at any time. Smith v Smith, 218 Mich App 727, 729-730; 555 NW2d 271 (1996). Whether a court has subject-matter jurisdiction is a question of law that is reviewed de novo. Id. at 729. Here, we conclude that plaintiff’s claim of appeal was timely. Although the order denying plaintiffs motion for reconsideration was signed on June 15, 1995, there was no “entry,” as that term is defined in MCR 7.202(3), of this order until it was placed into the file and records of the lower court, which occurred on June 23, 1995, as evidenced by the date stamp on the order. Cf. MCR 2.001 and 2.602(A). Plaintiffs claim of appeal was then filed on July 13, 1995, i.e., within twenty-one days after the entry of the order denying plaintiffs motion for reconsideration. See MCR 7.204. While we grant defendants’ motion for rehearing, we feel obligated nonetheless to note that defendants’ counsel’s (inaccurate, in our judgment) characterization of an article in Michigan Lawyers Weekly in support of their position has not reflected well upon their cause and is highly inappropriate as a “legal argument” before this Court. Defendants contend that even if a question of fact remains concerning the exact nature of the qualifications for the manager’s position, plaintiff still cannot satisfy the qualifications requirement where plaintiff is “indisputably unqualified to manager either the Township or its utilities” because he possesses only a ged with no college credits and lacks “any work experience that would even make him close to being qualified.” The trial court did not have the benefit of either Wright, supra, or McKennon, supra, at the time it decided defendants’ motion for summary disposition. See also Blong v West, 886 F Supp 1576 (D Kan, 1995), aff'd 86 F3d 1166 (CA 10, 1996) (indicating that the Supreme Court’s opinion in McKennon would apply in a gender discrimination case consisting of an alleged wrongftd failure to hire); Perkins v Brigham & Women’s Hosp, 78 F3d 747, 751 (CA 1, 1996) (“[A]n employer cannot avoid liability in a discrimination case by exploiting' a weakness in an employee’s credentials . . . that was not known to the employer at the time of the adverse employment action [and that, therefore, could not have figured in the decisional calculus].”) Under MCL 37.2802; MSA 3.548(802), courts have discretion to award costs, including attorney fees, in civil rights actions. We presume that courts will exercise their discretion appropriately in considering in their decisions the extent of damages awarded to the plaintiff.

DIANE FUTRELLE, Plaintiff v. DUKE UNIVERSITY, SUSAN J. FEINGLOS, PATRICIA L. THIBODEAU, Defendants No. COA96-902 (Filed 19 August 1997) 1. Appeal and Error § 124 (NCI4th)— denial of motion to confirm arbitration — interlocutory order — immediate appeal An interlocutory order denying defendants’ motion to confirm an arbitration award and to dismiss plaintiffs action for breach of contract, wrongful discharge, and defamation involved a substantial right and was immediately appealable. 2. Accord and Satisfaction § 8 (NCI4th)— arbitration award — acceptance and cashing of check Plaintiff university medical librarian’s acceptance and cashing of a check from defendant university pursuant to an arbitration award in a dispute concerning her termination by her supervisors and the university constituted an accord and satisfaction, although the check did not contain the words “payment in full,” where the undisputed facts show (1) that defendants intended the check to be full and final payment resolving the dispute, and (2) that plaintiff understood defendants’ intent. 3. Arbitration and Award § 33 (NCI4th)— cashing of check— ratification of arbitration award Plaintiff ratified an arbitration award when she accepted and cashed defendants’ check paid pursuant to the award. 4. Arbitration and Award § 36 (NCI4th)— wrongful termination — arbitration award — cashing of check — waiver of related claims Plaintiff university medical librarian’s acceptance and cashing of defendant university’s check constituted an accord and satisfaction and ratification of an arbitration award pertaining to a dispute as to whether she was wrongfully terminated by defendant university which waived any right to bring future claims arising out of or related to the termination where the letter sent by defendant university with the check stated that payment was being made in accordance with the arbitration award; the stipulated arbitration issue was whether plaintiff was terminated in violation of the law or university policy; and the arbitration award referred to provisions of the university’s dispute resolution procedure regarding the binding effect of arbitration. Therefore, plaintiff’s claims for breach of contract and wrongful discharge, which related directly to whether she was wrongfully terminated, and her defamation claims, which arose out of and were directly related to her termination, were barred and should have been dismissed by the trial court. Appeal by defendants from order entered 24 April 1996 by Judge F. Gordon Battle in Orange County Superior Court. Heard in the Court of Appeals 2 April 1997. Michael B. Brough & Associates, by Stephen D. Brody and Michael B. Brough, for plaintiff-appellee. Fulbright & Jaworski L.L.P., by John M. Simpson, for defendant-appellants. McGEE, Judge. In November 1992, plaintiff was hired by Duke University (Duke) for a specified term of employment as a Learning Resources Librarian at the Duke University Medical Center Library (Library). Plaintiff became an “exempt employee” meaning that she was not subject to a collective bargaining agreement. Duke contends, and plaintiff disagrees, that Duke’s Exempt Staff Member Dispute Resolution Procedure (DRP) became part of plaintiff’s employment contract when she was hired. In September 1994, plaintiff requested permission from Susan Feinglos, her supervisor, to attend a professional conference. Defendants contend Feinglos denied the request. Plaintiff contends Feinglos authorized her to attend the conference if she completed equipment specifications for a work project. Plaintiff attended the conference and was absent from the workplace on 29 September and 30 September 1994. On 29 September 1994, plaintiff contacted Feinglos from the conference site at which time Feinglos told plaintiff she had not been given permission to attend the conference. Upon plaintiff’s return to work on 3 October 1994, Feinglos handed her a termination letter. Another supervisor, Patricia L. Thibodeau, escorted plaintiff to her office and told her to pack her belongings and leave the premises. Plaintiff contends Feinglos sent a copy of the termination letter to Gordon Hammes, an administrator with Duke University Medical Center. She also contends that, shortly after her termination, Thibodeau attended a professional conference and told one or more persons in attendance that plaintiff was terminated for “willful insubordination.” Plaintiff further contends Thibodeau told several of plaintiff’s professional colleagues at the Library that plaintiff had been terminated for willful insubordination, grave misconduct, and a poor work performance history. Plaintiff challenged her dismissal through the DRP. After proceeding through various steps of review under DRP, plaintiff requested arbitration under Article IV of DRP which provides that the decision of the arbitration panel “shall be final and binding between the parties as to all claims which were or could have been raised in connection with the dispute, to the full extent permitted by the United States Arbitration Act.” In the letter requesting arbitration, plaintiff’s attorney stated plaintiff’s “request is made without prejudice to [her] right to pursue any other form of relief’ and that it was his understanding that arbitration “would not have any preclusive effect.” In this letter, he asked Duke to respond if it had a contrary understanding so that plaintiff would have the opportunity to withdraw her request for arbitration. In a response letter, Duke’s attorney accepted plaintiff’s request for arbitration but also stated “I am enclosing a copy of the University’s exempt staff member dispute resolution procedure, which answers the other questions in your letter.” The parties then proceeded with arbitration before a panel of the American Arbitration Association. In an award issued 6 July 1995, the panel concluded plaintiff was intentionally insubordinate but that termination was too harsh because she had no past incidents of discipline on her record and had not received any corrective discipline prior to termination. The panel further concluded the appropriate penalty was reinstatement with three month’s back pay and benefits. However, the panel also quoted from a DRP provision which gives Duke the discretion to pay severance pay in lieu of reinstatement and concluded, in reference to this option, that “the parties are bound by that language, if it is properly executed and enforced.” In July 1995, Duke’s attorney informed plaintiff that Duke was exercising its discretion under the DRP to pay severance pay in lieu of reinstatement and enclosed a check in the amount of $16,158.69. In her affidavit, defendant Thibodeau asserts this check cleared Duke’s account in August 1995. Accompanying the check was a letter from Duke University Counsel which stated: In accordance with the Arbitration Panel’s Award, [the defendant] is enclosing a check payable to [plaintiff] which includes payment for six (6) months severance pay (in lieu of reinstatement); for three (3) months backpay; and for vacation accrued for such three (3) months backpay; and for vacation accrued for such three (3) month period. On 3 October 1995, plaintiff filed this action against defendants seeking damages for breach of contract, wrongful discharge, and defamation. On 15 November 1995, defendants moved to confirm the arbitration award and to dismiss the action. By order filed 24 April 1996, Judge F. Gordon Battle denied defendants’ motion. Defendants appeal. I. We first note this appeal is interlocutory because the order denying defendants’ motion to confirm the arbitration award and dismiss the action “ ‘does not determine the issues but directs some further proceeding preliminary to final decree.’” See Waters v. Personnel, Inc., 294 N.C. 200, 207, 240 S.E.2d 338, 343 (1978) (quoting Greene v. Laboratories, Inc., 254 N.C. 680, 693, 120 S.E.2d 82, 91 (1961)). However, we have held an “order denying arbitration, although interlocutory, is immediately appealable because it involves a substantial right which might be lost if appeal is delayed.” Bennish v. North Carolina Dance Theater, 108 N.C. App. 42, 44, 422 S.E.2d 335, 336 (1992) (quoting Prime South Homes v. Byrd, 102 N.C. App. 255, 258, 401 S.E.2d 822, 825 (1991)). Similarly here, we hold the order denying defendants’ motion involves a substantial right because the right to arbitration would effectively be lost if appeal is delayed. We initially recognize that “North Carolina has a strong public policy favoring arbitration.” Red Springs Presbyterian Church v. Terminix Co., 119 N.C. App. 299, 303, 458 S.E.2d 270, 273 (1995). The essential thrust of the Federal Arbitration Act, which is in accord with the law of our state, is to require the application of contract law to determine whether a particular arbitration agreement is enforceable; thereby placing arbitration agreements “upon the same footing as other contracts.” Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 687, 134 L. Ed. 2d 902, 909 (1996) (citations omitted). It is essential that parties to an arbitration specify clearly the scope and terms of their agreement to arbitrate as enforcement of arbitration agreements is not subject to less scrutiny than the enforcement of other agreements. Defendants contend plaintiff was bound by the arbitration award pursuant to her employment contract and, in the alternative, by her participation in arbitration under the DRP, and that the trial court therefore erred by failing to confirm the award and denying their motion to dismiss. We do not reach the merits of whether there was a valid agreement to arbitrate, however, because we hold plaintiffs acceptance of defendants’ payment pursuant to the arbitration award constitutes both an accord and satisfaction and a ratification of the arbitration award. In its order denying defendants’ motion to confirm the award and to dismiss plaintiff’s claims, the trial court stated it reviewed the pleadings and affidavits filed in support of and in opposition to this motion. When a trial court considers matters outside the pleadings, a motion to dismiss may be converted into a motion for summary judgment. King v. Durham County Mental Health Authority, 113 N.C. App. 341, 345, 439 S.E.2d 771, 774 (1994). In addition, here the issue of accord and satisfaction may be resolved as a matter of law since there are no material facts in issue surrounding the delivery and acceptance of defendants’ payment. “Although the existence of accord and satisfaction is generally a question of fact, ‘where the only reasonable inference is existence or non-existence, accord and satisfaction is a question of law and may be adjudicated by summary judgment when the essential facts are made clear of record.’” Zanone v. RJR Nabisco, 120 N.C. App. 768, 771, 463 S.E.2d 584, 587 (1995). Article 3 of the Uniform Commercial Code is invoked when a dispute arises over a payment made with a negotiable instrument, such as the check issued by the defendants to plaintiff. See N.C. Gen. Stat. § 25-3-102 (1995) (discussing scope of Article 3); see also N.C. Gen. Stat. § 25-3-104 (1995) (defining “negotiable instrument”). Under this article, a payment by a party may constitute an accord and satisfaction of a dispute if the following requirements are met: (a) If a person against whom a claim is asserted proves that (i) that person in good faith tendered an instrument to the claimant as full satisfaction of the claim, (ii) the amount of the claim was unliquidated or subject to bona fide dispute, and (iii) the claimant obtained payment of the instrument, the following subsections apply. (b) . . . the claim is discharged if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim. N.C. Gen. Stat. § 25-3-311 (1995). In Zanone, RJR Nabisco by letter offered former employee Zanone a $5000 check as “full and final payment of [Zanone’s] severance relocation associated benefits.” Zanone, 120 N.C. App. at 772, 463 S.E.2d at 588. Although RJR’s letter was not marked “payment in full” or accompanied by a letter explaining it was “payment in full,” this Court found the letter “established RJR’s intent [that] the $5000 check be treated as an accord” because the facts and circumstances surrounding receipt of a check may establish an accord and satisfaction. Id. Upon receipt of RJR’s letter, Zanone responded stating he regretted he could not accept the offer as final and he believed $5000 to be insufficient. Id. at 772-73, 463 S.E.2d at 588. RJR then mailed the check to Zanone who cashed it. This Court found: “[although Zanone registered his objection to the $5000 amount by letter ... , he had no further communication with RJR concerning the disputed debt prior to cashing the $5000 check.” Id. at 774, 463 S.E.2d at 589. This Court concluded “Zanone received the $5000 check clearly understanding RJR was offering the $5000 check as ‘full and final’ payment of the disputed debt” and held there was accord and satisfaction as a matter of law barring Zanone’s breach of contract claim. Id. at 774-75, 463 S.E.2d at 589. Similarly here, defendants have established, as a matter of law, the Article 3 requirements for accord and satisfaction. Defendants have introduced undisputed evidence that they tendered to plaintiff in good faith a check for $16,158.69. By affidavit defendant Thibodeau testified this check cleared Duke’s account in August 1995. Plaintiff has presented no evidence to contest defendants’ assertion that plaintiff cashed the check. The requirement, that a dispute exist, is satisfied in that, prior to payment of this amount, the parties disputed what remedy, if any, plaintiff was entitled to receive because of defendants’ decision to terminate her employment contract. The requirement of a conspicuous statement that the instrument is tendered as full satisfaction of the claim is satisfied by the letter from Duke University Counsel which accompanied the check. This letter acknowledges receipt of the arbitration panel’s decision and states defendants are exercising their discretion to pay severance pay in lieu of the reinstatement ordered in the arbitration award. The letter states the check is enclosed “ [i]n accordance with the Arbitration Panel’s Award.” As in Zanone, the omission of the words “payment in full” does not prevent the accord and satisfaction given the facts and circumstances surrounding payment and receipt of the check. We hold there was an accord and satisfaction as a matter of law because the undisputed facts show the following to be the only reasonable inferences regarding the parties’ intent: (1) that defendants intended the check to be full and final payment resolving the dispute and (2) that given the reference to the final arbitration award, plaintiff understood that this was defendants’ intent. Furthermore, by cashing the check as presented to her, plaintiff effectively ratified the arbitration award. The Oregon Court of Appeals reached a similar conclusion in Harrington v. Warlick, 758 P.2d 387 (Or. App. 1988). In Harrington, the court held that the defendants waived their right to appeal an arbitration award when they accepted the award. Id. at 388. Although here the issue is whether a party may collaterally attack an arbitration award through civil action rather than whether the party may appeal the award, we find the same principles apply. Thus, we hold plaintiff ratified the arbitration award when she accepted defendants’ check paid pursuant to the award. For this reason, the trial court erred by failing to confirm the arbitration award. II. Since the trial court erred by denying the motion to confirm the arbitration award, upon remand the trial court is directed to confirm and enter judgment on the award. Once judgment is entered upon the arbitration award, it will then operate “as an estoppel not only as to all matters actually determined or litigated in the prior proceeding, but also as to all relevant and material matters within the scope of the proceeding which the parties, in the exercise of reasonable diligence, could and should have brought forward for determination.” Rodgers Builders v. McQueen, 76 N.C. App. 16, 22, 331 S.E.2d 726, 730 (1985), disc. rev. denied, 315 N.C. 590, 341 S.E.2d 29 (1986). Since all claims within the scope of the arbitration proceeding are barred by judgment on the award, we must determine the scope of the accord and satisfaction and plaintiffs ratification of the arbitration award and the resulting impact on plaintiffs claims. In determining whether the parties agreed to submit a particular dispute or claim to arbitration, we must look to the language in the agreement. Id. at 23-24, 331 S.E.2d at 731. “Whether denominated accord and satisfaction or compromise and settlement, the executed agreement terminating or purporting to terminate a controversy is a contract, to be interpreted and tested by established rules relating to contracts.” Casualty Co. v. Teer Co., 250 N.C. 547, 550, 109 S.E.2d 171, 173 (1959). In an accord and satisfaction, the accord is the agreement and the satisfaction is execution of the performance of the agreement. Bizzell v. Bizzell, 247 N.C. 590, 601, 101 S.E.2d 668, 676, cert. denied, 358 U.S. 888, 3 L. Ed. 2d 115 (1958), reh’g denied, 358 U.S. 938, 3 L. Ed. 2d 310 (1959); Bumgarner v. Tomblin, 63 N.C. App. 636, 642, 306 S.E.2d 178, 183 (1983). Here, the letter sent by defendants along with the check states the payment is being made “[i]n accordance with the Arbitration Panel’s Award.” By so referencing the award, this letter effectively incorporated the terms of the arbitration award making the terms of the award part of the offer of settlement included in the accord. Plaintiffs ratification of the award by cashing the check effected her acceptance of the accord terms. The stipulated issue of the arbitration stated in the arbitration award was whether the plaintiff was “terminated in violation of the law or University policy.” Given this stipulation, we hold plaintiffs claims for breach of contract and wrongful discharge, both of which relate directly to whether she was wrongfully terminated, are barred and should have been dismissed. The award also states that it is “based on the entire record, the Exempt Staff Member Dispute Resolution Procedure [DRP] and the facts and circumstances of this case.” Section E of the DRP provides “[t]he decision of the panel shall be final and binding between the parties as to all claims which were or could have been raised in connection with the dispute, to the full extent permitted by the United States Arbitration Act.” The award further states that the parties are bound by language in the DRP which gives defendants the option to pay severance pay in lieu of reinstatement. Since the arbitration award, ratified by plaintiff, directly references the DRP provisions regarding the binding effect of arbitration and states that it is based on the DRP, we hold, as a matter of law, that plaintiff accepted the resolution of the dispute based solely on the stipulated issue and waived any right to bring future claims arising out of or related to the termination when she ratified the award by accepting the check in satisfaction of the dispute. Since the slander and libel claims clearly arise out of and are directly related to her termination, these claims should be dismissed. We note that parties entering into arbitration should exercise great care to delineate the precise claims and disputes to be resolved and to reserve specifically any claims they wish not to be precluded by the arbitration. As this Court has previously emphasized: A party is required to bring forth the whole case at one time and will not be permitted to split the claim or divide the grounds for recover

RUSHTON v MEIJER, INCORPORATED (ON REMAND) Docket No. 199684. Submitted December 9, 1996, at Lansing. Decided August 19, 1997, at 9:25 A.M. Leave to appeal sought. Christine M. Rushton brought an action in the Genesee Circuit Court against Meijer, Incorporated, alleging wrongful discharge, gender discrimination, and retaliation. The plaintiff had been employed by the defendant as a part-time floor detective. When the plaintiff was hired, she agreed to abide by the defendant’s policies and procedures and acknowledged receipt of an associate handbook, in which there was a provision that required that employees who were terminated follow the alternative dispute resolution (adr) procedure set forth in the handbook before seeking any judicial remedy. When the plaintiff was terminated from her employment, she invoked the adr procedure, indicating that she believed that she had been terminated without just cause, that she was the victim of gender discrimination, and that her termination had been in retaliation for her complaining about not being given a full-time job. Following an investigation, the plaintiff’s termination was upheld. Rather than pursue the next step in the adr procedure, which was binding arbitration, the plaintiff commenced her action in the circuit court. The defendant moved for summary disposition on the basis of the plaintiff’s failure to complete the alternative dispute resolution procedure. Following the plaintiff’s withdrawal of her retaliation claim, the court, Valdemar L. Washington, J., denied defendant’s motion for summary disposition of the wrongful discharge and gender discrimination claims. The defendant appealed by leave granted. The Court of Appeals, Fitzgerald, P.J., and Tailor and Holbrook, Jr., JJ., relying on the holding in Heurtebise v Reliable Business Computers, Inc, 207 Mich App 308 (1994), as controlling precedent for the proposition that private agreements to arbitrate civil rights claims are enforceable, reversed the order of the trial court that denied summary disposition with respect to both the wrongful discharge and the gender discrimination claims. Unpublished memorandum opinion of the Court of Appeals, issued March 1, 1995 (Docket No. 164272). The plaintiff sought leave to appeal to the Supreme Court, which remanded the matter to the Court of Appeals for reconsideration in light of Heurtebise v Relia ble Business Computers, Inc, 452 Mich 405 (1996). 453 Mich 943 (1996). On remand, the Court of Appeals held: 1. The Supreme Court in Heurtebise reversed the decision of the Court of Appeals in that case because the employee handbook contained language demonstrating that the employer did not intend to be bound by the provisions set forth in the handbook, in that the handbook stated that the policies contained therein did not create any employment or personal contract, that the employer retained the right to terminate any employee at any time for any reason, and that the employer retained the right to change any and all of the policies set forth in the handbook. 2. Unlike the employee handbook in Heurtebise, the defendant’s employee handbook in this case does not contain any language suggesting that the defendant does not intend to be bound by the provisions in the handbook or that the defendant does not consider that those policies result in employment that can be terminated only for just cause. Although the defendant’s handbook reserves to the defendant the right to modify or delete existing policies that are set forth in the handbook, it is clear that the defendant intended to be bound by the policies set forth in the handbook until such time that it exercises, with adequate notice to its employees, the reserved right to modify those policies. Because the defendant made no changes to the policies set forth in the handbook before the plaintiff instituted her action, both the plaintiff and the defendant are contractually bound by those provisions. 3. Because the provisions of the defendant’s employee handbook clearly require that a terminated employee pursuing a breach of contract claim first exhaust the nonjudicial remedies set forth in the ADR procedure, including the submission of the matter to binding arbitration, and because contractual provisions requiring the submission of claims of breach of contract to binding arbitration have been held to be valid and enforceable, the plaintiff’s failure to proceed with the remedies under the adr procedure of the employee handbook with respect to the wrongful discharge claim barred her pursuit of that claim in the circuit court. Accordingly, the trial court erred in failing to grant summary disposition for the defendant with respect to the wrongful discharge claim. 4. Section 803 of the Civil Rights Act, MCL 37.2803; MSA 3.548(803), expressly prohibits any requirement that a person asserting a right under that act first exhaust any nonjudicial remedies before seeking legal or equitable remedies in a court of this state. Accordingly, any provision in an employment contract that presumes to require that an employee who has a claim arising under the provisions of the Civil Rights Act first exhaust any nor\judicial remedies is contrary to public policy and unenforceable. Accordingly, the plaintiff was not required to proceed with the nonjudicial remedies set forth in the employee handbook rather than seeking a judicial remedy of her gender discrimination claim by the filing of a complaint in the circuit court, and the trial court properly refused to grant summary disposition for the defendant with respect to the claim of gender discrimination. 5. Because the plaintiffs employment as a store detective did not directly involve or affect interstate commerce, the federal arbitration act, 9 USC 1 et seq., is inapplicable to this matter, even though the defendant’s general business might involve interstate commerce. Affirmed in part, reversed in part, and remanded. Taylor, J., concurring in part and dissenting in part, stated that not only did the trial court err in refusing to grant summary disposition for the defendant with respect to the wrongful discharge claim, but also erred in refusing to grant summary disposition with respect to the gender discrimination claim because there is no binding authority to compel the conclusion that parties may not before a dispute arises contractually decide to submit any dispute that might arise under the Civil Rights Act to binding arbitration as the means of resolving the dispute. The provision of the Civil Rights Act upon which the majority primarily relies, MCL 37.2803; MSA 3.548(803), provides only that the Civil Rights Act does not diminish the right of a person to seek preexisting common-law and statutory legal and equitable rights in the courts of this state and is silent with respect to the question whether parties can contractually adopt binding arbitration as the means of resolving a dispute arising under the Civil Rights Act. In the face of that silence, a predispute agreement to arbitrate such disputes is consistent with state statutory law concerning arbitration and is valid and enforceable. 1. Contracts — Employment Contracts — Employee Handbooks — Intention to be Bound. An employer’s indication that it intends to be bound by the policies and procedures set forth in its employee handbook creates a valid employment contract binding both the employer and the employee to the provisions contained in the handbook even where the employer has reserved an unexercised right to amend or delete existing policies contained in the handbook. 2. Arbitration — Employment Contracts — Breach of Contract — Agreement to Arbitrate. An employer and an employee in an employment contract may validly agree that any dispute involving a breach of that contract be submitted to binding arbitration as the means of resolving the dispute. 3. Arbitration — Civil Rights Act — Employment Contracts — Agreement to Arbitrate — Public Policy. An agreement in an employment contract requiring any subsequent dispute involving a claim arising under the Civil Rights Act to be submitted to binding arbitration is contrary to the express provisions of that act and is unenforceable as a matter of public policy (MCL 37.2803; MSA 3.548[803]). Wascha & Waun, P.C. (by Thomas W. Waun), for the plaintiff. Jeffrey A. Rueble and Miller, Canfield, Paddock and Stone (by Charles S. Mishkind and Diane M. Soubly), for the defendant. Amici Curiae: Dickinson, Wright, Moon, Van Dusen & Freeman (by John Corbett O’Meara, Thomas G. Kienbaum, and Noel D. Massie), for American Society of Employers and others. ON REMAND Before: Fitzgerald, P.J., and Taylor and Holbrook, Jr., JJ. Holbrook, Jr., J. This case is on remand to us from the Michigan Supreme Court, 453 Mich 943 (1996), for reconsideration in light of Heurtebise v Reliable Business Computers, Inc, 452 Mich 405; 550 NW2d 243 (1996). We reverse in part and affirm in part. As we stated in our earlier opinion: Plaintiff worked as a part-time floor detective for defendant Meijer, Incorporated. When she was hired by Meijer, plaintiff signed an employment form agreeing to abide [by] defendant’s policies and procedures. Plaintiff acknowledged receipt of an associate handbook which included defendant’s termination appeal procedure. This document unambiguously provided that terminated employees were required to exhaust the alternate dispute resolution (adr) procedure. A separate document which plaintiff received indicated that exhaustion of the adr procedure is a condition precedent to litigation, regardless of whether the arbitrator’s final decision is upheld by a trial court. When defendant terminated plaintiff’s employment, she [plaintiff] invoked the adr procedure. She indicated that she believed she had been discharged without just cause, that she was the victim of gender discrimination, and that she had been retaliated against for complaining about not being given a full-time job. Following an investigation, plaintiff’s discharge was upheld at step one of the adr procedure. Plaintiff chose not to pursue the next step in the procedure, binding arbitration, and instead filed a lawsuit alleging wrongful discharge, gender discrimination, and retaliation. Defendant moved for summary or partial disposition, or for an order enforcing the adr award or procedure. At the hearing on defendant’s motion, plaintiff withdrew her retaliation claim. The court then denied defendant’s motion for summary disposition of the wrongful discharge and gender discrimination claims. [Rushton v Meijer, Inc, unpublished memorandum opinion of the Court of Appeals, issued March 1, 1995 (Docket No. 164272).] In our original opinion, we reversed the trial court’s denial of a defense motion for summary disposition of plaintiff’s wrongful discharge and gender discrimination claims because plaintiff had failed to exhaust the remedies available to her pursuant to the ADR procedure that defendant had established to resolve such claims. In reversing the trial court’s denial of defendant’s motion for summary disposition of plaintiff’s gender discrimination claim, we relied on Heurtebise v Reliable Business Computers, Inc, 207 Mich App 308; 523 NW2d 904 (1994), as controlling precedent for the proposition that private agreements to arbitrate civil rights claims are enforceable. i The Michigan Supreme Court reversed this Court’s decision in Heurtebise, because the employee handbook contained language demonstrating that the employer did not intend to be bound by its provisions. 452 Mich 414. As the Supreme Court noted, the handbook in Heurtebise contained clauses stating: (1) the policies in the handbook do not create any employment or personal contract, express or implied; (2) the employer had the right to terminate employees’ employment at any time, without notice, for any reason; and (3) the employer reserved the right to make modifications to any or all of the policies in the handbook. Thus, the instrument in Heurtebise expressly disclaiming contract status, yielding the employee no benefit above the minimal required status even to be an employee — namely, at-will status— and having provisions that could be changed unilaterally by the employer was, as might be expected, determined not to be a contract by the Supreme Court. It is in light of this holding that we are directed to reexamine the Meijer employee handbook. The dissimilarities are marked. Unlike the Heurtebise handbook, the Meijer handbook does not contain language stating that Meijer does not intend to be bound by its provisions. Further, it does not indicate that Meijer considers the policies not to create a contract and, finally, rather than an at-will termination policy, this instrument has consideration running to the employee in the form of an express promise of termination from employment only for just cause. Were this the extent of the provisions of the Meijer handbook, we could easily discern its determinative distinctions from the Heurtebise booklet and find it to be a contract binding on both parties. There is, however, reservation language in the Meijer handbook stating that the existing policies may be “modified or deleted” by the employer. This reservation clause, plaintiff argues, would allow all or part of the contractual provisions to be deleted and means that the instrument here at issue, just as the one in Heurtebise, is no contract at all. This argument has some allure, but on serious scrutiny, the problem plaintiff points to is illusory in the factual circumstances found here. It must be recalled that this instrument is an agreement to control an ongoing course of conduct between the employer and its employees. By its clear terms, they are both bound by it unless and until the employer chooses to change it. Even then, the employer cannot retroactively escape from its requirements. Any change can only take effect prospectively. See In re Certified Question, 432 Mich 438, 441; 443 NW2d 112 (1989). Accordingly, because the alleged improper acts by the employer at issue here came before any change was made in the agreement by the employer (in fact, as far as we know, even now no changes have been instituted by the employer), both parties are bound. In particular, the parties are bound to utilize the exclusive ADR procedure for handling their contract dispute. While the reservation language in the handbook will allow Meijer, for example, to change its policy of being a just-cause employer to become an at-will employer, the change would be effective only from the time of the implementation of the change (and after reasonable employee notification). Until such a change is made (which might cause the new arrangement to run afoul of the Heurtebise holding), Meijer is bound by the handbook in its dealing with its employees. Indeed, any other conclusion would mean that an employer could never change its employment agreements with its employees. Once a just-cause employer would mean always a just-cause employer. No employer would be likely to choose voluntarily to be so bound, and, thus, plaintiffs position, if adopted, would have the unfortunate and surely undesirable consequence of discouraging the practice of granting employees just-cause termination protection. Moreover, if an employer should cavalierly eliminate provisions that restrict its options in dealing with its employees, arbitrability could be jeopardized under Heurtebise, and valued employees, the retention of whom no doubt prompted the adoption of the just-cause policy in the first place, might choose to leave the employer. Rood v General Dynamics Corp, 444 Mich 107, 137-141; 507 NW2d 591 (1993). This economic regulation of the employment marketplace will undoubtedly cause an employer to exercise caution before making any change in the employment relationship, just as conditions of the employment market no doubt were factors considered in the granting of just-cause termination status in this case. Therefore, because the Meijer and Heurtebise handbooks are distinguishable, this plaintiff was bound by the handbook with regard to any contractual claim. The fact that Meijer could later change the agreement does not vitiate the fact that, as things currently stand, these parties are contractually bound. Accordingly, Meijer can, consistent with prior case law, require employees to arbitrate contract disputes regarding adverse employment decisions. See, e.g., Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 624; 292 NW2d 880 (1989). Because plaintiff failed to pursue her breach of contract claim utilizing the required ADR procedure, she is barred from pursuing such a claim in the circuit court. Renny v Port Huron Hosp, 427 Mich 415, 429-430; 398 NW2d 327 (1986); Zeniuk v RKA, Inc, 189 Mich App 33, 35, 37-38; 472 NW2d 23 (1991). Accordingly, we reverse the trial court’s order denying defendant’s motion for summary disposition of this claim. H With regard to plaintiff’s gender discrimination claim, we conclude, in light of Heurtebise, that summary disposition was properly denied by the trial court. To this end, we agree with and adopt as our own the reasoning of Justice Cavanagh in parts m through VI of his opinion in Heurtebise, which addressed, albeit in dicta, the issue “whether private employers can require employees, as a condition of employment, to waive prospectively their right to pursue civil rights claims in a judicial forum.” 452 Mich 414. As noted by Justice Cavanagh in Heurtebise, “[u]nlike federal law, Michigan has an unwavering history of faithfully defending an aggrieved individual’s right to a judicial forum to remedy unlawful discrimination.” 452 Mich 414. This unwavering history is currently reflected in the judicial remedies clause of Const 1963, art 5, § 29, as well as its legislative counterpart, MCL 37.2803; MSA 3.548(803). Article 5, § 29 of our state constitution establishes a civil rights commission with certain powers and responsibilities, and incorporates a judicial remedies clause: “Nothing contained in this section shall be construed to diminish the right of any party to direct and immediate legal or equitable remedies in the courts of this state.” Similarly, our Legislature in § 803 of the Civil Rights Act has reinforced and broadened the constitutional right of Michigan’s citizens to immediate and direct judicial review of a civil rights claim: “This [civil rights] act shall not be construed to diminish the right of a person to direct or immediate legal or equitable remedies in the courts of this state.” Justice Cavanagh aptly concluded that § 803 “expressly prohibits an exhaustion of administrative remedies requirement.” 452 Mich 420. Michigan’s declared public policy entitling a state civil rights plaintiff to direct and immediate review of such claims in the circuit court cannot be abrogated by contract: A contract which is contrary to public policy is illegal and void. Federoff v Ewing, 386 Mich 474, 481; 192 NW2d 242 (1971). Public policy has been described as “the community common sense and common conscience, extended and applied throughout the State to matters of public morals, public health, public safety, public welfare, and the like.” Skutt v Grand Rapids, 275 Mich 258, 264; 266 NW 344 (1936). It is expressed in the constitution, statutes, judicial decisions, or customs and conventions of the people, and it concerns the primary principles of equity and justice. Id. [Badon v General Motors Corp, 188 Mich App 430, 439; 470 NW2d 436 (1991).] Contrary to defendant Meijer’s argument, we do not find the parties’ employment contract to be governed by the federal arbitration act (faa), 9 USC 1 et seq. In Bernhardt v Polygraphic Co of America, Inc, 350 US 198, 200-201; 76 S Ct 273; 100 L Ed 199 (1956), Bernhardt, a New York resident, was hired by Polygraphic, a New York corporation, to be the superintendent of its lithographic plant in Vermont. Under the terms of the part

Anne Marie Shea vs. Emmanuel College & another. Suffolk. May 7, 1997. - August 18, 1997. Present: Wilkins, C.J., Abrams, O’Connor, Greaney, & Marshall, JJ. Contract, Employment, Interference with contractual relations. Public Policy. Employment, Termination. Public policy protects from discharge an at-will employee who, in good faith, reports criminal conduct in her place of employment, not to public authorities, but to her superiors within the employing unit. [762-763] In a claim for wrongful discharge, the plaintiff did not establish on the record of a motion for summary judgment that her discharge was for a reason contrary to public policy and judgment was correctly entered for the defendant. [763-764] On a claim for intentional interference with an employment contract, the record on the defendant’s motion for summary judgment did not permit the inference that the defendant acted with “actual malice” in discharging the plaintiff. [764] Civil action commenced in the Superior Court Department on April 27, 1993. The case was heard by Margaret R. Hinkle, J., on a motion for summary judgment. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Paul A. Manoff for the plaintiff. Clare F. Carroll for the defendants. Edward J. Black. Wilkins, C.J. We granted further appellate review to assess the accuracy of the shared conclusion of a Superior Court judge and the Appeals Court that the plaintiff, who was an at-will employee, may not obtain redress from her former employer, Emmanuel College, when, as the plaintiff claims, the college discharged her for reporting within the college’s administration the apparent theft of funds from the office in which she worked. Ws also consider the plaintiff’s claim that the defendant Black, her former supervisor, intentionally interfered with her employment. A Superior Court judge allowed the defendants’ joint motion for summary judgment, and the Appeals Court affirmed in a memorandum and order under its rule 1:28. 42 Mass. App. Ct. 1101 (1997). We affirm the judgment of the Superior Court. 1. We have recognized that, in certain circumstances, an at-will employee may maintain an action against her former employer for wrongful discharge. See Upton v. JWP Businessland, ante 756, 757 (1997), and cases cited. The question is whether a well-established public policy is served by denying the employer the right freely to discharge an employee for engaging in particular conduct. Id. The Appeals Court viewed the summary judgment evidence most favorable to the plaintiff as indicating “that the plaintiff was discharged at the behest of Black for bringing to the attention of college officials a pilferage problem in the office headed by Black, reflecting badly on Black’s administration of the office and suggesting ongoing criminality.” The Appeals Court and the motion judge concluded that public policy is not violated when an employer discharges an employee for reporting criminal activity if the reports were made, not to public officials, but only within the employing unit. In Mello v. Stop & Shop Cos., 402 Mass. 555 (1988), we assumed, without deciding, that an at-will employee who told his employer of criminal wrongdoing occurring within his company would be entitled to recover for a wrongful discharge, “even though before discharge he did not complain to public authorities.” Id. at 560 n.6. Each authority cited by the Appeals Court in support of the trial court’s grant of summary judgment to the college involved an at-will employee who was discharged for objecting to the policies or the manner of operation of his or her former employer, but none involved a report or complaint about an alleged violation of the criminal law. See King v. Driscoll, 418 Mass. 576, 582-585 (1994); Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 472-476 (1992); Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 149-151 (1989); Mello v. Stop & Shop Cos., supra at 560. The distinction of importance is between a discharge for an employee’s internal complaint about company policies or the violation of company rules, for which liability may not be imposed, and an internal complaint made about the alleged violation of the criminal law for which we now decide that liability may be imposed. In an opinion released the day after the entry of the Appeals Court memorandum and order in this case, a judge of the United States District Court for the District of Massachusetts correctly anticipated that this court “would not require the employee to complain outside the organization to claim the public policy exception for whistleblowers in a case like this.” Smith v. Mitre Corp., 949 F. Supp. 943, 950 (D. Mass. 1997). In that case, the employee had reported fraud and false statements in claims made by the employer as a Federal contractor. A policy that protects an at-will employee who, in good faith, reports criminal conduct in her place of employment to public authorities, but does not protect an at-will employee who in good faith reports such conduct to her superiors, would be illogical. See Byle v. Anacomp, Inc., 854 F. Supp. 738, 746 (D. Kan. 1994). In neither case should the reporting of suspected criminal activity be discouraged by the threat of discharge. Although we reject the grounds on which summary judgment in favor of the college was entered, we agree that entry of summary judgment for the college was appropriate. We have reviewed the summary judgment record, taking the evidence in the light most favorable to the plaintiff, and conclude that she has failed to rebut a fact that, standing unrebutted, shows that she is not entitled to relief. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991). There is no dispute that the plaintiff was an at-will employee. In the face of that fact, she had an obligation to present facts on the record that supported her claim that she was discharged for reporting criminal conduct to her superiors. An assertion or speculation that the college discharged her for that reason is not sufficient to create a dispute of material fact concerning the reason for her discharge. See Doe v. Liberty Mut. Ins. Co., 423 Mass. 366, 368 (1996). In her deposition, the plaintiff testified that she had no facts to support her claim that the defendant Black fired her in an effort to cover up his own responsibility for the alleged thefts. The record contains nothing to support the claim that the college discharged the plaintiff for a reason contrary to a well-established public policy. 2. There remains the plaintiff’s claim that Black intentionally interfered with her employment contract. To prevail on this claim, the plaintiff must prove that (1) she had an employment contract with the college, (2) Black knowingly induced the college to break the contract, (3) Black’s interference, in addition to being intentional, was improper in motive or means, and (4) she was harmed by Black’s actions. Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 476 (1992). The improper motive or means required is “actual malice.” See King v. Driscoll, 418 Mass. 576, 587 (1994); Boothby v. Texon, Inc., 414 Mass. 468, 487 (1993). Actual malice is any “spiteful, malignant purpose, unrelated to the legitimate corporate interest.” Wright v. Shriners Hosp. for Crippled Children, supra at 476. The evidence in the summary judgment record would not permit the inference that Black acted with “actual malice” in arranging for the plaintiff’s discharge. The record is replete with examples (some supplied by the plaintiff herself) of the troubles that the plaintiff was having on the job. Moreover, as we have said, the plaintiff admitted in her deposition that she had no facts to support her claim that Black had discharged her because he was trying to cover up the fact of the missing funds. Because Black produced unrebutted evidence that would justify the plaintiff’s discharge and the plaintiff produced no evidence that Black had a spiteful, malignant purpose in making that discharge, the judge properly granted summary judgment on the intentional interference claim. Judgment affirmed. In Smith v. Mitre Corp., 949 F. Supp. 943 (D. Mass. 1997), the victim of the allegedly unlawful conduct was a third party, and not, as here, the employer itself. In our case, the intensity of any public policy in favor of protecting a whistleblower is, therefore, arguably somewhat less. That such an employer, when it is the victim of the alleged criminal conduct, may choose to ignore, to condone, or even to ratify the reported criminal wrongdoing is irrelevant. An employer should not be permitted to justify the discharge of such an employee by deciding after the fact that the reported, seemingly criminal wrongdoing was tolerable or even accepted company practice. See Belline v. K-Mart Corp., 940 F.2d 184, 189 (7th Cir. 1991).

Joanna Upton vs. JWP Businessland. Norfolk. May 7, 1997. - August 18, 1997. Present: Wilkins, C.J., Abrams, O’Connor, Greaney, & Marshall, JJ. Contract, Employment. Public Policy. Employment, Termination. Estoppel. Discussion of the circumstances in which an at-will employee may maintain an action for wrongful discharge. [757-758] The termination of an at-will employee for her refusal to work long hours based on the employee’s need to be with her young child did not violate public policy and could not form the basis of an action for wrongful discharge. [758-760] The record on summary judgment of a claim that the defendant employer was estopped to discharge the plaintiff employee did not establish that the plaintiff reasonably relied to her detriment on the defendant’s representations regarding her hours of work. [760] Civil action commenced in the Superior Court Department on February 24, 1992. The case was heard by Patrick F. Brady, J., on a motion for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Harvey A. Schwartz for the plaintiff. Wilkins, CJ. The plaintiff, a former at-will employee of the defendant and a divorced single parent, appeals from the entry of summary judgment for the defendant. She asserts that the defendant discharged her when, because of the need to be with her young son, she was unwilling to work long hours. She argues that such a discharge is contrary to public policy and entitles her to damages. We granted the plaintiff’s application for direct appellate review. We affirm the judgment. For the purpose of considering the propriety of the allowance of the defendant’s motion for summary judgment, the following facts are relevant. At the time of her discharge, the plaintiff was the mother of a young son whom she cared for herself -and supported entirely from her earnings. She commuted from Cape Cod to work for the defendant in Canton. When she was hired in April, 1991, she was told that her hours of work would be 8:15 a.m. to 5:30 p.m., with the need to work late on one or two days each month. The plaintiff arranged child care accordingly. In fact, the requirements of her job kept her until 6:30 p.m. to 7 p.m. from the outset and even later as the job progressed. In late July, 1991, the plaintiff was told that she would have to work until 9 or 10 p.m. each evening and all day Saturday for at least several months. The plaintiff informed her employer that she would not be able to work such hours because of her responsibilities as a mother. She was discharged two weeks later. The general rule is that an at-will employee may be terminated at any time for any reason or for no reason at all. See Folmsbee v. Tech Tool Grinding & Supply, Inc., 417 Mass. 388, 394 (1994); Jackson v. Action for Boston Community Dev., Inc., 403 Mass. 8, 9 (1988). Liability may be imposed on an employer, however, if an at-will employee is terminated for a reason that violates a clearly established public policy. See King v. Driscoll, 418 Mass. 576, 582 (1994); Flesner v. Technical Communications Corp., 410 Mass. 805, 810 (1991); DeRose v. Putnam Mgt. Co., 398 Mass. 205, 210 (1986). The public policy exception makes redress available to employees who are terminated for asserting a legal right (e.g., filing a workers’ compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to disobey the law (e.g., refusing to commit perjury). See Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 149-150 (1989). We have identified additional reasons for terminations which would directly contradict well-defined public policies of the Commonwealth. See Flesner v. Technical Communications Corp., supra at 811 (at-will employee cooperated with law enforcement agency investigation of his employer); Hobson v. McLean Hosp. Corp., 402 Mass. 413, 416 (1988) (at-will employee allegedly discharged for enforcing safety laws which were her responsibility to enforce); DeRose v. Putnam Mgt. Co., supra at 209-211 (at-will employee refused to give false testimony against coworker in criminal trial). See also Shea v. Emmanuel College, post 761, 762-763 (1997) (at-will employee who internally reports suspected criminal wrongdoing occurring within company entitled to recover when discharged for making such report). On the other hand, we have held that other reasons for termination do not warrant recovery by an at-will employee. See King v. Driscoll, supra at 583 (participation in shareholder derivative suit); Folmsbee v. Tech Tool Grinding & Supply, Inc., supra at 394-395 (failure to comply with employer’s internal policy of mandatory drug testing); Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 475-476 (1992) (nurse made internal reports of problems to high-ranking officials within hospital organization); Korb v. Raytheon Corp., 410 Mass. 581, 584 (1991) (employee hired as corporation’s spokesperson publicly expressed views which conflicted with corporation’s economic interests); Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., supra at 151 (employee expressed disagreement with employer’s reorganization plan — “[a]n employee, even one in a socially important occupation, who simply disagrees with her employer’s policy decisions, may not seek redress in the courts”); Mello v. Stop & Shop Cos., 402 Mass. 555, 560-561 (1988) (employee reported false damage claims which were internal company matters). See also Mistishen v. Falcone Piano Co., 36 Mass. App. Ct. 243, 245-246 (1994) (discharge of at-will employee in retaliation for her internal complaints regarding company’s trade practices, which she claimed were in violation of G. L. c. 93A). The plaintiff seeks to recover for a termination that was not, on its face, made because she did something that public policy strongly encourages (such as serving on a jury) or because she refused to engage in conduct that public policy strongly discourages (such as refusing to lie on behalf of her employer). There is no clearly established public policy which requires employers to refrain from demanding that their adult employees work long hours. Nor is any public policy directly served by an employee’s refusal to work long hours. Because no public purpose is served by the conduct for which the plaintiff asserts she was discharged, this case is unlike those cases in which we have held that the employer may be liable for the discharge of an at-will employee. To advance her claim that her termination violated public policy, the plaintiff relies on the Commonwealth’s strong policy favoring the care and protection of children. Her theory is that an employer may not properly discharge an employee whose refusal to work long hours is based on her sense of obligation to be with her young child. She argues that meeting the defendant’s demands regarding work hours would cause her to neglect her child in contravention of public policy. The plaintiff asserts that cases involving eligibility for unemployment compensation directly support her theory. The judge correctly concluded that the Commonwealth’s broad policies of protecting the family unit and promoting the best interests of children do not transform the discharge of an at-will employee who cannot work particular hours required by her employer into a discharge in violation of a well-defined public policy. The judge noted that, although the Legislature has established rights to unemployment compensation (G. L. c. 151 A) for certain former employees, compensation is not available in every instance in which an at-will employee experiences a conflict between job requirements and parental responsibilities. A policy that says that, if domestic responsibilities limit a person’s availability to work, unemployment compensation may nevertheless be available does not translate into a policy that an employer is liable to a former employee for discharging her in comparable circumstances. The Legislature has directed that unemployment compensation should be available to such a person, but it has not provided that such an employee has an action for wrongful discharge. The Legislature has not announced a public policy position in the area of unemployment compensation that is as broad as the one that the plaintiff urges us to identify. Nor has any court to our knowledge allowed recovery against an employer who terminated an at-will employee who refused to work newly imposed hours due to an irreconcilable conflict between her new work schedule and the obligations of parenting. There is no public policy which mandates that an employer must adjust its expectations, based on a case-by-case analysis of an at-will employee’s domestic circumstances, or face liability for having discharged the employee. Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 150 (1989). Construing the public policy exception to cover terminations of employees in the plaintiff’s situation would tend to convert the general rule “into a rule that requires just cause to terminate an at-will employee.” Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., supra. Liability to an at-will employee for a discharge in violation of public policy must be based on general principles, and not on the special domestic circumstances of any particular employee. The plaintiff argues briefly that the defendant was estopped from firing her because she relied to her detriment on the defendant’s representations regarding her expected hours of work. To avoid the entry of summary judgment against her, an at-will employee asserting estoppel would have to show that she reasonably relied on an unambiguous promise. See Rhode Island Hosp. Trust Nat’l Bank v. Varadian, 419 Mass. 841, 848 (1995). The summary judgment record shows no such promise, only that the plaintiff asked about regular work hours and was so told. No promise in a contractual sense is shown. Id. at 850. We sympathize with the difficulties of persons in the position of the plaintiff who face the challenge of reconciling parental responsibilities with the demands of employment. However, employer liability under common-law principles is not an appropriate means of addressing the problem in the at-will employment context. Judgment affirmed. In Conlon v. Director of the Div. of Employment Sec., 382 Mass. 19, 19 (1980), a woman sought to continue to receive unemployment benefits in circumstances in which she had “restricted her availability for work to a daytime shift which was consistent with her fulfilment of responsibilities to her children.” We remanded the proceeding to the agency so that it could determine whether the employee had “good cause” to decline to seek or accept employment at any other time of day and, if she did have a valid reason for doing so, whether she so limited her availability that “she effectively removed herself from the labor force.” Id. at 25. See Zukoski v. Director of the Div. of Employment Sec., 390 Mass. 1009 (1984); Manias v. Director of the Div. of Employment Sec., 388 Mass. 201, 204 (1983). The Legislature has included within the functions, powers, and duties of the Massachusetts Commission Against Discrimination complaints “alleging discrimination because of . . . children.” G. L. c. 151B, § 3. This case does not appear to involve unlawful discrimination, and, in any event, the reference to “children” was added to G. L. c. 151B, § 3, after the plaintiff’s discharge. St. 1991, c. 323, § 1.