Wrongful Termination Cases

Wesley S. Blank vs. Chelmsford OB/Gyn, P.C., & others. Middlesex. February 8, 1995. May 17, 1995. Present: Liacos, C.J., Wilkins, Abrams, Lynch, & Grbanby, JJ. Practice, Civil, Motion to dismiss. Contract, Implied covenant of good faith and fair dealing, Employment, Performance and breach. Corporation, Close corporation, Stockholder, Stock. Fiduciary. Employment, Termination. Discussion of the implied covenant of good faith and fair dealing between parties to an employment contract and the fiduciary duty of good faith and loyalty among stockholders in a close corporation. [407-408] In an action brought by a former employee and shareholder of a close corporation alleging breach of contract, breach of fiduciary duty, intentional infliction of emotional distress and violation of G. L. c. 93A, all arising out of the termination of the plaintiff's employment, the judge correctly dismissed the complaint under Mass. R. Civ. P. 12 (b) (6), where the plaintiff had been terminated without cause on proper notice in accordance with the written terms of the employment contract that the plaintiff had agreed to. [408-409] Civil action commenced in the Superior Court Department on March 16, 1994. The case was heard by Patrick F. Brady, J., on a motion to dismiss. The Supreme Judicial Court granted an application for direct appellate review. Michael J. Stone for the plaintiff. Joan O. Vorster for the defendants. Edward M. Lipman and David W. Merens. Lynch, J. The individual defendants, two of the three shareholders in a close corporation, terminated the employment of the plaintiff, the third shareholder, pursuant to an employment agreement. As a result of this termination, the plaintiff filed this action alleging that the individual defendants were liable on theories of breach of contract, breach of fiduciary duty, conspiracy, intentional infliction of emotional distress, and unfair and deceptive trade acts in violation of G. L. c. 93A (1992 ed.). The plaintiff also alleged that the defendant corporation was liable on theories of breach of contract, deceit, wrongful termination, intentional infliction of emotional distress, and unfair and deceptive trade acts in violation of G. L. c. 93A. The plaintiff sought treble damages and attorney’s fees pursuant to G. L. c. 93A, as well as injunctive relief to prevent his termination. The defendants moved to dismiss the plaintiff’s complaint, pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), for failure to state a claim on which relief can be granted. A Superior Court judge allowed the defendants’ motion, ruling that the defendants acted within their contractual rights under the employment contract and stock purchase agreement. The judge rejected the plaintiff’s argument that the defendants owed the plaintiff a duty of good faith and fair dealing. The plaintiff filed a timely notice of appeal. We granted the plaintiff’s application for direct appellate review. We affirm the judgment. In 1988, the plaintiff and the individual defendants created the defendant corporation for the purpose of conducting a group medical practice devoted to obstetrics and gynecology. In 1990, the plaintiff entered into a written employment contract with the corporation. The contract defined the period of employment as follows: “2. Employment Period. The Corporation hereby hires the Employee to render services for it from the date set forth above to December 31, 1990 and continuing thereafter from year to year until either party shall have given written notice to the other that he (it) wishes to terminate the contract. Such notice shall be effective to terminate this Contract on the last day of the sixth month following the month in which notice was given. This contract may also be terminated as hereinafter provided.” The contract also contained a termination provision which stated as follows: “10. Termination of Agreement. This Agreement shall terminate upon the disability (as provided in Section 9 hereof), retirement (as provided in Section 11 hereof), entrance into military service or death of the Employee, upon the disqualification of the Employee from the practice of medicine for any reason or upon the discontinuation of the Employee’s policy of insurance insuring the Employee against acts of malpractice and negligence, or until terminated by either party upon serving proper written notice as hereinabove provided. “Upon termination, the Employee shall be paid his salary earned to and including the date of termination and his salary for vacation days earned but not yet taken to the date of termination.” The parties also entered into a stock purchase agreement which provided that, in certain circumstances, the corporation would repurchase a shareholder’s stock at the book value of each share, as determined by the independent accountant of the corporation. According to this Agreement, the obligation of the shareholder to sell and of the corporation to purchase the shares accrues on certain circumstances, including “[u]pan the termination by the Shareholder or by the Corporation of the employment of the Shareholder by the Corporation for any reason whatsoever.” On Friday, January 28, 1994, sometime after 5 p.m., the defendant, Edward M. Lipman, president of the corporation (president), delivered to the plaintiff a written notice stating that there would be a special meeting of the board of directors of the corporation on the following Monday, January 31, 1994. The notice stated that the purpose of the meeting was to consider the termination of the plaintiff’s employment and the repurchase of the plaintiff’s stock. At the board of director’s meeting the president gave the plaintiff a notice, which had been signed by the president on behalf of the corporation, stating that the plaintiff’s employment was being terminated. The notice was effective as of January 31, 1994, and stated, “this notice shall effectively terminate the agreement on July 30, 1994.” The defendants also voted to remove the plaintiff as the corporate treasurer and clerk. Additionally, pursuant to the stock purchase agreement, the plaintiff was required to sell back his shares to the corporation at their book value. The plaintiff objected to his termination and the required repurchase of his stock. In evaluating the allowance of a motion to dismiss, we are guided by the principle that a complaint is sufficient “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Nader v. Citron, ill Mass. 96, 98 (1977), quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Furthermore, we examine the sufficiency of the plaintiff’s claims in light of the principles that the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff’s favor, are to be taken as true. Eyal v. Helen Broadcasting Corp., 411 Mass. 426, 429 (1991), citing Balsavich v. Local 170, Int’l Bhd. of Teamsters, ill Mass. 283, 287 (1976), and Druker v. Roland Wm. Jutras Assocs., 370 Mass. 383, 385 (1976). This case places in stark contrast certain generally accepted principles of contract and corporate law. First, there is an implied covenant of good faith and fair dealing between parties to a contract. Anthony’s Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471 (1991). Such a covenant requires “that neither party shall do anything that will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.” Id. at 471-472, quoting Druker, supra, and Uproar Co. v. National Broadcasting Co., 81 F.2d 373, ill (1st Cir.), cert. denied, 298 U.S. 670 (1936). It is clear that an employment contract contains this implied covenant of good faith and fair dealing, and a termination not made in good faith may constitute a breach of the contract. See Fortune v. National Cash Register Co., 373 Mass. 96, 101 (1977). Second, the relationship among stockholders in a close corporation must be one of trust, confidence, and absolute loyalty if the enterprise is to succeed. In this regard, a close corporation resembles a partnership. Donahue v. Rodd Electrotype Co., 367 Mass. 578, 587 (1975). Because of this relationship, stockholders in a close corporation owe one another the same fiduciary duty in the operation of the corporation that partners owe to one another. This fiduciary duty is one of the utmost good faith and loyalty. Id. at 593. Stockholders in close corporations must discharge their management and stockholder responsibilities in conformity with this strict good faith standard. They may not act out of avarice, expediency, or self-interest in derogation of their duty of loyalty to the other stockholders and to the corporation. However, questions of good faith and loyalty with respect to rights on termination or stock purchase do not arise when all the stockholders in advance enter into agreements concerning termination of employment and for the purchase of stock of a withdrawing or a deceased stockholder. See id. at 598 n.24; Evangelista v. Holland, 27 Mass. App. Ct. 244, 248-249 (1989). Third, the fact that a stockholder has entered into an employment agreement or the fact that stockholders execute a valid stock purchase agreement does not relieve stockholders of the high fiduciary duty owed to one another in all their mutual dealings. See King v. Driscoll, 418 Mass. 576, 586 (1994). In this case, however, in contrast to King, there was an employment contract that permitted employment to be terminated by either party on six-months’ notice, and there is no allegation that the defendants are denying the plaintiff his contractual rights or future compensation for past services. Because there is a stock purchase agreement, the method of determining the value of the plaintiff’s shares on proper termination is not subject to question. A duty of good faith and fair dealing exists during the course of events leading up to and including termination, but that duty is to be evaluated in light of an agreement that permits termination by either party without cause on notice. Thus, we are faced with a termination without cause on proper notice, in accordance with the plaintiffs employment contract freely and mutually agreed to at the outset of his employment. The plaintiff received all that he had bargained for, i.e., the book value of his stock and six-months’ notice of his termination. Judgment affirmed. A fourth doctor was also one of the founders of the corporate defendant, but subsequently left the practice and is not a party to this litigation.

WRIGHT v RESTAURANT CONCEPT MANAGEMENT, INC Docket No. 165676. Submitted February 9, 1995, at Lansing. Decided April 21, 1995, at 10:05 a.m. Michael Wright brought an action in the Genesee Circuit Court against Thomas M. Charters and Restaurant Concept Management, Inc. (rcmi), alleging that he was wrongfully discharged from his employment as a restaurant manager in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., because he refused to comply with the defendants’ directive to fire all the bláck employees. The court, Donald R. Freeman, J., granted summary disposition for the defendants, ruling that the plaintiffs failure to disclose a prior criminal conviction on his employment application, which failure was discovered by the defendants after they had discharged the plaintiff, provided just cause for termination and a defense to the action. The plaintiff appealed the grant of summary disposition for RCMI. The Court of Appeals held: An employee discharged in violation of the Civil Rights Act is not barred from relief under the act when, after discharge, the employer discovers evidence of wrongdoing that would have led to the employee’s termination on lawful and legitimate grounds. Evidence of wrongdoing, however, may be considered in granting relief to the employee. Reversed and remanded for trial. Civil Rights — Civil Rights Act — Wrongful Discharge — Employee Misconduct Discovered After Termination. Relief under the Civil Rights Act for wrongful discharge is not foreclosed” by reason of the employer’s discovery after discharge of wrongdoing that would have led to the employee’s termination on lawful and legitimate grounds; evidence of such wrongdoing, however, is relevant in fashioning any relief to be granted in an action for wrongful discharge (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). _ ' References Am Jur 2d, Job Discrimination § 1068. See ALR Index under Civil Rights and Discrimination; Discharge from Employment or Office. Blum, Konheim, Elkin & Blum (by Loren D. Blum), for the plaintiff. Charters, Heck & O’Donnell, P.C. (by Michael A. Heck), for the defendants. Before: Fitzgerald, P.J., and Taylor and Mark-man, JJ. Markman, J. Plaintiff appeals that portion of the circuit court’s order granting summary disposition in favor of defendant Restaurant Concept Management, Inc. (rcmi). We reverse. On August 16, 1991, plaintiff filed in the Gene-see Circuit Court a complaint alleging that he had been hired by defendants Thomas M. Charters and rcmi as a store manager "for the sole purpose of firing as many black employees that he could.” Plaintiff further alleged "[t]hat after two black employees were terminated, plaintiff refused the defendant’s instructions to wrongfully terminate the remaining black employees,” and that, as a consequence, plaintiff’s employment was terminated, in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and public policy. Defendants moved for summary disposition on August 31, 1992. Defendants alleged that plaintiff, in applying for employment with defendants in 1990, had indicated that he had never been convicted of a crime other than a traffic offense although, in fact, he had been convicted of felonious assault in 1988. When the police attempted to arrest plaintiff for that offense, he engaged them in a six-hour standoff. Defendants discovered the misrepresentation on plaintiff’s employment application only after plaintiff had been terminated. Terry Pellman, who had hired and terminated plaintiff on behalf of defendants, submitted an affidavit on August 31, 1992, indicating that Pellman had relied on plaintiffs claimed lack of a criminal record in hiring plaintiff. Pellman further indicated that he immediately would have terminated plaintiff if he had discovered plaintiffs misrepresentation during plaintiffs employment, particularly in light of the six-hour standoff with police. Plaintiff asserted in his answer to the motion that when he filled out his application for employment with defendants he believed that he had never been convicted of a crime other than a traffic offense because the dangerous weapon involved in his assault conviction was a recklessly driven automobile. The trial court granted defendants’ motion for summary disposition, dismissing all of plaintiffs claims against the defendants. The plaintiff appeals only that portion of the order granting summary disposition and dismissing plaintiffs claims against rcmi. With respect to plaintiffs claims against rcmi, the trial court reasoned that his criminal history and related misrepresentation clearly established just cause for his termination by defendants, and that as a result, plaintiff could obtain no relief in this action. A motion for summary disposition under MCR 2.116(0(10) tests whether there is factual support for a claim. When deciding a motion for summary disposition, a court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it. On appeal, a trial court’s grant of summary disposition will be reviewed de novo, and this Court must determine whether the plaintiff was entitled to judgment as a matter of law. Allen v Keating, 205 Mich App 560, 562; 517 NW2d 830 (1994). In granting summary disposition in favor of defendants, the trial court relied heavily on Johnson v Honeywell Information Systems, Inc, 955 F2d 409 (CA 6, 1992). In Johnson, the Sixth Circuit Court of Appeals held that under Michigan law "an employer may rely upon an employee’s false representations made at the time of employment, of which the employer was unaware, and which were not the grounds for the employee’s discharge, as a just cause defense to the employee’s wrongful discharge and state civil rights claims.” Id. at 410-411. The employee’s résumé fraud was held to entitle the employer to judgment as a matter of law with regard to the employee’s claim of violations of the Civil Rights Act. Id. at 413-415. The trial court further relied on Bradley v Philip Morris, Inc, 194 Mich App 44; 486 NW2d 48 (1992), affirmed after remand 444 Mich 634; 513 NW2d 797 (1994). In Bradley, former employees sued an employer for wrongful discharge. This Court found that the trial court had erred in excluding from trial "any evidence of previous [employee] misconduct that was discovered after [the plaintiffs’] employment was terminated.” 194 Mich App 48. This Court reasoned: Evidence of employee misconduct occurring before termination is admissible as substantive evidence even if the former employer did not know of the misconduct until after the termination. Just cause for termination may include facts and circumstances existing at termination but not known to the employer. See 53 Am Jur 2d, Master and Servant, § 46, pp 120-121; Leahey v Federal Express Corp, 685 F Supp 127 (ED Va, 1988); Summers v State Farm Mutual Automobile Ins Co, 864 F2d 700, 708 (CA 10, 1988); and Pugh v See’s Candies, Inc, 203 Cal App 3d 743; 250 Cal Rptr 195 (1988). Moreover, this type of evidence is relevant to the issue of damages. Having reviewed the record, we conclude that the trial court abused its discretion in excluding this type of evidence and in not permitting defendants’ attorney to make a corresponding argument to the jury. [194 Mich App 48.] However, Bradley did not address the implications of such evidence for a claim brought under the Civil Rights Act. The United States Supreme Court recently decided a similar issue involving the Age Discrimination in Employment Act (adea), 29 USC 621 et seq., in McKennon v Nashville Banner Publishing Co, 531 US —; 115 S Ct 879; 130 L Ed 2d 852 (1995). In McKennon, the Court unanimously held that an employee discharged in violation of the adea 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. The Court found that "a violation of the adea cannot be so altogether disregarded.” 115 S Ct 884. The Court reasoned in part: Deterrence is one object of [statutes establishing private causes of action for invidious employment discrimination]. Compensation for injuries caused by the prohibited discrimination is another. . . . The private litigant who seeks redress for his or her injuries vindicates both the deterrence and the compensation objectives of the adea. ... It would not accord with this scheme if after-acquired evidence of wrongdoing that would have resulted in termination operates, in every instance, to bar all relief for an earlier violation of the Act. Our inquiry is not at an end, however, for even though the employer has violated the Act, we must consider how the after-acquired evidence of the employee’s wrongdoing bears on the specific remedy to be ordered. . . . We have rejected the unclean hands defense "where a private suit serves important public purposes.” . . . That does not mean, however, the employee’s own misconduct is irrelevant to all the remedies otherwise available under the statute. [115 S Ct 884-886. Citations omitted.] During oral argument, in light of the recent decision in McKennon, rcmi expressly abandoned its argument that plaintiffs résumé fraud, although discovered after his termination, barred all relief under the Civil Rights Act. Although the defendant no longer raises this issue, we find it appropriate to apply the United States Supreme Court’s prohibition of an absolute bar to relief in this case. 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. Although, as this Court has recognized, there may be differences between the Civil Rights Act and the adea, Riethmiller v Blue Cross & Blue Shield of Michigan, 151 Mich App 188, 198-199; 390 NW2d 227 (1986) (discussing the difference in the language used in the respective remedy provisions), we find nothing at all in the language of the former that would preclude application of the Supreme Court’s logic to this action. Moreover, we find the Supreme Court’s reasoning persuasive, and further find its objectives consistent with the purpose of the Civil Rights Act. As the Michigan Supreme Court has stated: The Civil Rights Act is "aimed at 'the prejudices and biases’ borne against persons because of their membership in a certain class, and seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases.” Miller v C A Muer Corp, 420 Mich 355, 363; 362 NW2d 650 (1984) (citations omitted). [Radtke v Everett, 442 Mich 368, 379; 501 NW2d 155 (1993).] The Supreme Court further noted in Rasheed v Chrysler Corp, 445 Mich 109, 125-126; 517 NW2d 19 (1994): Over the years, various legislatures and the courts have added certain restrictions to the contractual relationship between employer and employee in cases where ordinary contract law did not adequately protect important rights of the parties. Examples are the law on discriminatory discharge, which has been the topic of numerous regulations, guidelines on the right of labor to organize, and even rules concerning compensation for work-related injuries. The Supreme Court included "the Michigan Fair Employment Practices Act, MCL 423.301 et seq.; MSA 17.458(1) et seq. (since repealed and replaced by the Michigan Civil Rights Act)” as one example of "numerous regulations.” Id. at 125, n 22. Unlike in Bradley, where an alleged violation of civil rights was not at issue and contract law may well have served to adequately protect the employee, a claim of violation of civil rights should not be barred solely because of employee wrongdoing that could not possibly have been the reason for the employee’s discharge. Although such wrongdoing, to the extent it exists, does not constitute an absolute bar to all relief, this does not mean that the relief afforded the employee should be unaffected by the wrongdoing or that the wrongdoing should be ignored. In McKennon, the Court further observed: [A]s a general rule in cases of this type, neither reinstatement nor front pay is an appropriate remedy. It would be both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, in any event and upon lawful grounds. The proper measure of backpay presents a more difficult problem. . . . Once an employer learns about employee wrongdoing that would lead to a legitimate discharge, we cannot require the employer to ignore the information, even if it is acquired during the course of discovery in a suit against the employer and even if the information might have gone undiscovered absent the suit. The 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. [115 S Ct 886.] Although the plaintiff in this action is not barred from all relief as a matter of law, any wrongdoing on his part may be reflected in the relief awarded to him. As the Supreme Court articulated: The proper boundaries of remedial relief in the general class of the cases where, after termination, it is discovered that the employee has engaged in wrongdoing must be addressed by the judicial system in the ordinary course of further decisions, for the factual permutations and the equitable considerations they raise will vary from case to case. [115 S Ct 886.] To the extent rcmi is liable for plaintiff’s claims under the Civil Rights Act and to the extent rcmi has established wrongdoing by the plaintiff that would have led to his lawful termination in any event once discovered by the defendant, evidence of the wrongdoing should be considered in granting relief based on the "factual permutations and the equitable considerations” raised and in light of the remedies available under the Civil Rights Act. This approach precludes the exoneration of either wrongdoer while preserving the statutory goal of deterring discrimination. Reversed and remanded for a trial on the merits. We do not retain jurisdiction._ While the effect of any such wrongdoing by the employee will vary with the facts and circumstances of the case, we agree with the general guidance provided by the United States Supreme Court with respect to certain remedies. To the extent that future damages or reinstatement would otherwise be available to plaintiff, we agree that as a general rule in cases of this type, neither reinstatement nor front pay is an appropriate remedy. McKennon, 115 S Ct 886; see also Rasheed, supra at 144, n 8 (separate opinion by Justice Levin). We further find the Court’s general calculations of backpay appropriate, more particularly, from the date of unlawful discharge to the date the new information was discovered. McKennon, 115 S Ct 886.

PHILLIPS v BUTTERBALL FARMS COMPANY, INC (AFTER SECOND REMAND) Docket No. 97976. Argued November 2, 1994 (Calendar No. 14). Decided March 21, 1995. Teresa Phillips brought an action in the Kent Circuit Court against Butterball Farms Company, Inc., claiming that she was discharged in retaliation for exercising rights under the worker’s compensation act by requesting that medical bills for injuries suffered on the job be paid. The court, Robert A. Benson, J., granted summary disposition for the defendant, ruling that punitive damages or damages for mental or emotional distress could not be recovered. The Court of Appeals, Maher, P.J., and Sullivan and Reilly, JJ., affirmed in an unpublished opinion per curiam (Docket No. 118024). The Supreme Court vacated and remanded the case for reconsideration. 439 Mich 895 (1991). On remand, the Court of Appeals, Sullivan, P.J., and Reilly and Jansen, JJ., affirmed in an unpublished opinion per curiam, finding that the cause of action sounded in contract (Docket No. 147501). The Supreme Court again vacated and remanded the case for reconsideration in light of Dunbar v Dep’t of Mental Health, 197 Mich App 1 (1992). 442 Mich 911 (1993). On second remand, the Court of Appeals, McDonald, P.J., and Reilly and Jansen, JJ., reversed, holding that the cause of action sounded in tort, permitting damages for mental or emotional distress, but that because the plaintiff was an employee at will, only limited or nominal damages could be recovered (Docket No. 165049). The plaintiff appeals. In an opinion by Justice Levin, joined by Justices Cavanagh, Boyle, and Mallett, the Supreme Court held: Although Phillips was an employee at will, recovery is not limited to nominal damages. If she can establish that she was discharged for exercising rights under the worker’s compensation act, she may recover compensation for lost wages, back and front pay, and mental or emotional distress damages. References Am Jur 2d, Wrongful Discharge §§ 25, 26. Recovery for discharge from employment in retaliation for filing workers’ compensation claim. 32 ALR4th 1221. 1. A cause of action seeking damages from an employer for retaliatory discharge for filing a worker’s compensation claim is independent of the contract, and sounds in tort, not contract. While the contractual relationship is "at will,” it is not the source of an employee’s right to protection. The right stems not from an implied promise by the employer, but from the worker’s compensation statute. 2. Because this action sounds in tort, the available damages are not limited by contract principles. Thus, the plaintiff is not required to plead a separate claim for intentional infliction of emotional distress to recover damages, nor must she meet the burdens requisite to establishing that cause of action. She stated a separate and independent basis for recovery of mental and emotional distress damages. She may recover lost wages because she had a reasonable expectation that she would not be terminated for filing a worker’s compensation claim, despite the nature of the employment relationship. Because the right to recovery under the public policy exceptions to the employment at will doctrine arises independently of the employment contract, she should be compensated for lost wages. Nominal damages would not compensate her for the loss of employment, nor would they provide sufficient deterrence to employers who would violate the statute. Reversed and remanded. Justice Riley, joined by Chief Justice Brickley, dissenting, stated that a common-law action claiming retaliation for asserting worker’s compensation rights sounds in contract, and damages are limited to traditional contract remedies. Appropriate remedies would include reinstatement and back pay from the date of the discharge to the date of judgment, not mental distress or exemplary damages. This type of wrongful discharge gives rise to a judicially created cause of action that attempts to protect an expressed state policy that is implied in every contract of employment, i.e., the right to assert worker’s compensation rights without being discharged or discriminated against. The liability associated with worker’s compensation does not derive from the fault or negligence of the employer, but from injury arising out of and in the course of employment. Justice Weaver took no part in the decision of this case. 201 Mich App 663; 506 NW2d 606 (1993) reversed. Worker’s Compensation — Employment at Will — Retaliatory Discharge — Torts. A cause of action seeking damages from an employer for retaliatory discharge for filing a worker’s compensation claim is independent of the contract, and sounds in tort, not contract; while the contractual relationship is "at will,” it is not the source of an employee’s right to protection; the right stems not from an implied promise by the employer, but from the worker’s compensation statute (MCL 418.301[11]; MSA 17.237[301][11]). Drew, Cooper & Anding (by Stephen R. Drew and Amy L. Young) for the plaintiff. Miller, Johnson, Snell & Cummiskey, P.L.C. (by Craig H. Lubben), for the defendant. Amicus Curiae: Clark, Klein & Beaumont (by Dwight H. Vincent, J. Walker Henry, and Donica T. Thomas) for Michigan Manufacturers Association. AFTER SECOND REMAND Levin, J. Plaintiff Teresa Phillips, an employee at will, commenced this action against her former employer, defendant Butterball Farms Company, Inc., claiming that she was discharged for exercising rights under the worker’s compensation act. The circuit court entered orders limiting the damages recoverable, and trial has been deferred to provide Phillips with an opportunity to appeal those orders. The Court of Appeals held that because Phillips was an employee at will, damages for lost wages will be nominal and the measure of damages for mental or emotional distress will also be limited. We hold that, although Phillips was an employee at will, recovery is not limited to nominal damages, and, if she can establish that she was discharged for exercising rights under the worker’s compensation act, she may recover compensation for lost wages, back pay and front pay, and mental or emotional distress damages. The parties have not briefed or argued the issues that might arise respecting the length of front pay and mitigation of damages. We remand for trial. i Phillips was a probationary employee at Butterball. She injured her wrist on the job, and returned to work on August 19, 1986, five days after the injury. She alleges that she claimed benefits under the worker’s compensation act by requesting that her medical bills be paid by Butterball and was met with a hostile attitude, and, approximately two weeks later, before the end of the probationary period, her employment was terminated. Phillips commenced this action, and the circuit court entered the orders limiting damages. The Court of Appeals essentially affirmed the circuit court orders limiting damages. The Court of Appeals ruled that the instant case was factually similar to Dunbar v Dep’t of Mental Health, 197 Mich App 1; 495 NW2d 152 (1992), and that, under Administrative Order No. 1990-6, it was bound to follow Dunbar. The Court, however, criticized Dunbar. The Court said that, because it was bound to follow Dunbar, it was "compelled to conclude that plaintiff’s cause of action sounds in tort, and, therefore, plaintiff may claim all the damages allowed for that cause of action, including damages for mental or emotional distress.” The Court, however, limited the amount recoverable: [T]he measure of damages for her mental or emotional distress necessarily will be conñned to proof of distress arising solely from the retaliatory nature of the discharge, because an at will employee has no reasonable expectation of being continued in employment. Similarly, whether the action be in tort or contract, damages for lost wages will be nominal because an at-will employee cannot show a reasonable expectation of continued employment. [Emphasis added.]_ II Phillips was an employee at will. The general rule is that "in the absence of a contractual basis for holding otherwise, either party to an employment contract for an indefinite term may terminate it at any time for any, or no, reason.” Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 694-695; 316 NW2d 710 (1982). This Court continued that nevertheless "some grounds for discharging an employee are so contrary to public policy as to be actionable.” In addition to statutory causes of action for violation of explicit prohibitions, causes of action have been implied where the employee was discharged for failure or refusal to violate a law in the course of employment. This Court continued in Suchodolski that "the courts have found implied a prohibition on retaliatory discharges when the reason for a discharge was the employee’s exercise of a right conferred by a well-established legislative enactment. See, e.g., Sventko v Kroger Co [69 Mich App 644; 245 NW2d 151 (1976)]; Hrab v Hayes-Albion Corp, 103 Mich App 90; 302 NW2d 606 (1981). Both cases involved allegations of discharges in retaliation for having filed worker’s compensation claims.” In Sventko, the Court of Appeals recognized a cause of action for discharge in retaliation for filing a worker’s compensation claim. The lead opinion said that "while it is generally true that either party may terminate an employment at will for any reason or for no reason, that rule is not absolute.” The opinion continued that "the better view is that an employer at will is not free to discharge an employee when the reason for the discharge is an intention on the part of the employer to contravene the public policy of this state.” The Court of Appeals thus found that, although there was no explicit statutory proscription, the public policy expressed in the worker’s compensation act precluded an employer from discharging an employee for filing a claim. hi The Court of Appeals initially determined that an action for retaliatory discharge sounded in tort. Subsequent panels concluded that the action sounded in contract. In Dun bar, the Court ruled that an action for wrongful discharge in retaliation for filing a worker’s compensation claim sounds in tort, not contract. The Court continued that the cause of action is now statutorily-based, and that, for breach of the statutory duty, the action sounds in tort not contract. Butterball argues, consistent with the Court of Appeals opinions concluding that the claim sounds in contract, that the contractual employment relationship is what gives rise to Phillips’ cause of action. Implied in every contract, Butterball contends, is a promise not to contravene public policy. Thus, the action for retaliatory discharge is in contract because the right not to be discharged arises out of a promise implied in the contract. This argument ignores that the source of this right against retaliatory discharge does not stem from any term agreed upon by the contracting parties, but from public policy now expressed in a statute. The duty not to retaliate against an employee for filing a worker’s compensation claim arises independently from the employment contract. In Lathrop v Entenmann’s, Inc, 770 P2d 1367, 1373 (Colo App, 1989), a Colorado appellate court said: "[t]he duty of the employer to refrain from retaliation in violation of a state’s public policy does not find its source in any private contract; it is a duty imposed by the state’s legislative body; and it is one that cannot be adjusted or modified lay the private actions of an employer and a collective bargaining agent.” Many states now recognize a cause of action for retaliatory discharge of an employee who has filed a worker’s compensation claim. The vast majority hold that such an action is grounded in tort on the basis of a public policy exception or express statutory proscription. The Nevada Supreme Court observed:_ We know of no more effective way to nullify the basic purposes of Nevada’s workmen’s compensation system than to force employees to choose between a continuation of employment or the submission of an industrial claim. In the absence of an injury resulting in permanent total disability, most employees would be constrained to forego their entitlement to industrial compensation in favor of the economics necessity of retaining their jobs.[] In holding that such a cause of action sounds in tort, not contract, the Kansas Court of Appeals observed that "the mere existence of a contractual relationship between the parties does not change the nature of [this] action.” In enacting § 301(11) of the Worker’s Disability Compensation Act, the Legislature codified Sventko. While the contractual relationship was "at will,” the contractual relationship is not the source of an employee’s right to protection against retaliatory discharge for filing a worker’s compensation claim. The right stems not from an implied promise by the employer, but from the statute. A cause of action seeking damages from an employer who violates the worker’s compensation act is independent of the contract, and sounds in tort, not contract. IV The Court of Appeals, in holding that because Phillips was an employee at will, she may recover only limited or nominal damages, in effect ruled that there is no meaningful remedy for retaliatory discharge for filing a worker’s compensation claim. Some employees are employed for fixed terms. Others are protected by individual or union contracts providing that the employee may only be discharged for just cause. And still others, perhaps the majority, are "at will.” A fixed-term or just-cause employee is protected by that term of the employment relationship. Unless employees at will are also protected from retaliatory discharge for filing a worker’s compensation claim, almost no employee is protected by the prohibition against discharge of an employee therefor. In Dunbar, supra, the Court of Appeals held that, because a claim for retaliatory discharge sounds in tort, the employee can claim damages for mental distress and loss of pay resulting from the improper discharge. Butterball contends that the Dunbar panel erred, and argues that decisions of this Court have limited the circumstances in which an employee can obtain mental distress damages when there has been no evidence of physical injury. Butterball cites this Court’s decisions in Valentine v General American Credit, Inc, 420 Mich 256; 362 NW2d 628 (1984), concerning mental distress damages for breach of an employment contract, and Roberts v Auto-Owners Ins Co, 422 Mich 594; 374 NW2d 905 (1985), concerning the tort of intentional infliction of emotional distress. In Kewin v Massachusetts Mutual Life Ins Co, 409 Mich 401, 419; 295 NW2d 50 (1980), this Court held that mental and emotional distress damages were not ordinarily available in an action for bad-faith breach of contract. The Court also declined to recognize a tort for bad-faith breach because it would "open the door to recovery for mental pain and suffering caused by breach of a commercial contract.” The Court said, however, that damages for mental and emotional distress may be awarded where there was allegation and proof of tortious conduct independent of the breach of contract. Valentine, an action for breach of contract for termination of employment without just cause, followed Kewin. Valentine did not address an action in tort that arose independently of the employment contract. Because this action sounds in tort, the available "damages are not limited by contract principles.” Other courts that recognize an action in tort for worker’s compensation retaliatory discharge have allowed recovery for mental and emotional distress, as well as lost wages. The Iowa Supreme Court said: While it is not a crime or an act requiring a malicious motive or outrageous conduct, wrongful discharge offends standards of fair conduct and normally will cause the employee damages in lost income. In addition to his monetary loss of wages, the employee may suffer mentally. . . . We know of no logical reason why a wrongfully discharged employee’s damages should be limited to out-of-pocket loss of income, when the employee also suffers causally connected emotional harm. Distressful emotions not involving bodily injury are compensable in actions for the infringement of some other interest. . . . We believe that fairness alone justifies the allowance of a full recovery in this type of tort. Butterball contends that allowing Phillips to recover emotional and mental distress damages would contravene Roberts, supra. There, this Court declined to recognize an action in tort for intentional infliction of emotional distress for breach of an insurance contract. Phillips was not required to plead a separate claim for intentional infliction of emotional distress to recover damages for mental and emotional distress, nor must she meet the burdens requisite to establishing that cause of action. In pleading a cause of action for worker’s compensation retaliatory discharge, Phillips stated a separate and independent basis for recovery of mental and emotional distress damages. The Court of Appeals stated that to permit Phillips to recover full compensatory damages would transform her "at will” employment contract into a "just cause” contract. Again, we disagree. The Court of Appeals in Sepanske said that "either party to an at will employment contract for an indefinite term may terminate it at any time and for any reason, unless the employer has violated a specific public policy in discharging the employee.” The Court found that an employee at will could only recover nominal damages for lost wages because "[t]here is no tangible basis upon which damages may be assessed where plaintiff’s expectation was for an at will position which could have been changed or from which he could have been terminated without consequence.” The claim in Sepanske, however, was premised on breach of contract, not a separate tort. We hold that Phillips may recover lost wages. Phillips had a reasonable expectation that she would not be terminated for filing a worker’s compensation claim, despite the at-will nature of the employment relationship. Recovery under the public policy exceptions to the employment at will doctrine arises independently of the employment contract. Phillips should be compensated for lost wages to give effect to the mandate now expressed in § 301(11). Nominal damages would not compensate Phillips for her loss of employment, nor would it provide sufficient deterrence to employers who would violate the statute. Reversed and remanded to the circuit court for trial. Cavanagh, Boyle, and Mallett, JJ., concurred with Levin, J. The circuit court granted summary disposition in favor of Butterball dismissing Phillips’ claims of handicap discrimination and breach of implied contract. The circuit court ruled that Phillips could not recover punitive damages or damages for mental or emotional distress. The Court of Appeals affirmed in an unpublished opinion per curiam, issued February 22, 1991 (Docket No. 118024). This Court vacated the judgment of the Court of Appeals and remanded for reconsideration. 439 Mich 895 (1991). On remand, in an unpublished opinion per curiam, issued May 14, 1992 (Docket No. 147501), the Court of Appeals found that Phillips’ cause of action was in contract. This Court again vacated and remanded, this time for reconsideration in light of Dunbar v Dep’t of Mental Health, 197 Mich App 1; 495 NW2d 152 (1992). 442 Mich 911 (1993). 201 Mich App 663; 506 NW2d 606 (1993). The Court said: Furthermore, the Dunbar majority has presented no rationale for distinguishing between retaliatory discharge for filing a workers’ compensation claim and other types of retaliatory discharge that are equally offensive to public policy. The mere fact that the Workers’ Disability Compensation Act has codified the public policy against retaliatory disch

CLEMENT-ROWE v MICHIGAN HEALTH CARE CORPORATION Docket No. 155446. Submitted December 15, 1993, at Detroit. Decided March 15, 1995; approved for publication August 2, 1995, at 9:00 a.m. Karen Clement-Rowe brought an action in the Wayne Circuit Court against Michigan Health Care Corporation, alleging wrongful discharge from employment and misrepresentation. The court, John R. Kirwan, J., granted summary disposition for the defendant. The plaintiff appealed. The Court of Appeals held: 1. Statements made by management personnel to employees may create a legitimate expectation of termination for cause only, but the expectation must be based on both a subjective and objective belief that the employee has been hired under a just-cause contract. The plaintiff signed an application form that provided that she was an at-will employee and understood that the defendant could terminate her employment at any time and for any reason. The plaintiff did not have a subjective or objective belief that she had been hired under a just-cause contract. The trial court properly granted the defendant’s motion for summary disposition of the wrongful discharge claim. 2. The plaintiff presented evidence that established the elements of her fraud claim. A question of fact existed with regard to whether the defendant failed to disclose to the plaintiff its financial condition with the intention to induce her to rely on the nondisclosure in accepting employment. The order of summary disposition must be reversed with regard to the misrepresentation claim and the matter must be remanded for a trial regarding that claim. Affirmed in part, reversed in part, and remanded. White, J., dissenting from the decision to reverse and remand with regard to the misrepresentation claim, stated that the plaintiffs deposition testimony and affidavit were insufficient to create a genuine issue of material fact in light of the defendant’s motion and supporting affidavits. References Am Jur 2d, Fraud and Deceit §§146, 216; Master and Servant §§ 27, 43. See ALR Index under Discharge from Employment or Office; Fraud and Deceit. 1. Master and Servant — Wrongful Discharge — Termination for Cause. Statements made by management personnel to employees may create a legitimate expectation of termination for cause only; the expectation must be based on both a subjective and objective belief that the employee has been hired under a just-cause contract. 2. Master and Servant — Wrongful Discharge — Employment at Will. Employment may be terminated for any or no reason where the employee has signed a disclaimer describing the employment as at-will and there has been no subsequent modification of the disclaimer. 3. Fraud — False Material Misrepresentations — Silent Fraud. The false material misrepresentation element necessary to establish a claim of fraud may be established by evidence that the defendant failed to divulge a fact that the defendant had a duty to disclose and intended to induce the plaintiff to rely on its nondisclosure. Golden & Kunz (by Robert H. Golden), for the plaintiff. Butzel Long, P.C. (by John P. Hancock, Jr., and Robert A. Boonin), for the defendant. Before: Marilyn Kelly, P.J., and White and D. F. Breck, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Per Curiam. Plaintiff, Karen Clement-Rowe, appeals as of right from the trial court’s grant of summary disposition in favor of her employer, Michigan Health Care Corporation, in a wrongful discharge action. We affirm in part, reverse in part and remand. Plaintiff accepted an offer to become an employee health nurse with Michigan Health Care Corporation. She sold her home in Saginaw and moved to Detroit. About one month after hiring her, in response to a severe financial crisis, defendant terminated the employment of one hundred fifty of its employees, including plaintiff. Her salary and benefits were continued for two months, through December 31, 1990. In April, 1991, defendant rehired plaintiff in a new position and with a salary increase of $4,800. i In her suit, plaintiff alleged that she had been wrongfully discharged and that, when hiring her, defendant had misrepresented its financial condition to her. While she acknowledged signing an employment contract containing an at-will employment clause, she contended that defendant’s personnel officer modified it through oral representations regarding the company’s financial condition. This Court reviews a grant of summary disposition de novo, examining the record to determine whether a party was entitled to judgment as a matter of law. Borman v State Farm Fire & Casualty Co, 198 Mich App 675, 678; 499 NW2d 419 (1993). As a general rule, employment for an indefinite term is presumed to be terminable at the will of either party. Kostello v Rockwell Int'l Corp, 189 Mich App 241, 244; 472 NW2d 71 (1991). An employee may overcome the presumption by proof that there was a promise of employment security implied in fact. Biggs v Hilton Hotel Corp, 194 Mich App 239, 240-241; 486 NW2d 61 (1992). Oral statements of job security must be clear and unequivocal to overcome the presumption that employment is at-will. Rowe v Montgomery Ward & Co, Inc, 437 Mich 627, 645; 473 NW2d 268 (1991). Statements made by management personnel to employees may create a legitimate expectation of termination for cause only; the expectation must be based on both a subjective and objective belief that the employee has been hired under a just-cause contract. Gonyea v Motor Parts Federal Credit Union, 192 Mich App 74, 83; 480 NW2d 297 (1991). Once a disclaimer describing employment as at-will is signed by an employee, excepting any subsequent modification, the employee may be terminated for any reason or for no reason. Scholz v Montgomery Ward & Co, Inc, 437 Mich 83, 94; 468 NW2d 845 (1991). Here, plaintiff admitted that she had signed an application form which provided that she was an at-will employee. She testified that she understood that the at-will clause permitted defendant to terminate her employment at any time and for any reason. By signing the application and admitting that she understood the clause, she cannot now establish either a subjective or objective belief that she had any degree of job security. Furthermore, even if plaintiff could establish that she was a just-cause employee, bona fide economic reasons for discharge constitute just cause for termination. McCart v J Walter Thompson USA, Inc, 437 Mich 109, 114; 469 NW2d 284 (1991). Plaintiff has not challenged defendant’s proofs that adverse business conditions necessitated the elimination of her position. II Plaintiff also contends that the trial court erred in dismissing her claim of misrepresentation. A A fraud claim may be made in any employment situation under circumstances similar to those involved here if properly supported by the evidence. Brownell v Garber, 199 Mich App 519, 533; 503 NW2d 81 (1993). The Brownell decision sets forth the six elements of a fraud claim: (1) a material representation (2) that is false (3) that defendant made knowing it to be false or that it made recklessly without any knowledge of its truth and as a positive assertion; (4) with the intent that it should be acted upon by the plaintiff, . (5) that it was acted upon by the plaintiff, and (6) resulted in the plaintiffs injury. Viewing the facts in a light most favorable to plaintiff here, the elements of fraud are present and require reversal. According to plaintiffs affidavit of January 22, 1992, defendant’s personnel director, Gary Johnson, told her that money for her position had been allocated. The statement, if made, constitutes a material representation which proved to be false. If Johnson made the statement responding to plaintiffs specific inquiry, he may have known it was untrue or made it without any knowledge of its truth. Presumably, he made it in order to allay plaintiffs hesitancy to accept the job offer because of concern about the financial health of the company. Plaintiff claims to have accepted the position in reliance on the assertion. Finally, while she successfully mitigated some of her damages, she may show she suffered injury. Thus all the elements of a fraud claim are present. B Plaintiff also alleges silent fraud. The false material representation needed to establish fraud may be satisfied by the failure to divulge a fact or facts the defendant has a duty to disclose. Fassihi v Sommers, Schwartz, Silver, Schwartz & Tyler, PC, 107 Mich App 509, 517; 309 NW2d 645 (1981). A claim of silent fraud requires a plaintiff allege that the defendant intended to induce him to rely on its nondisclosure and that defendant had an affirmative duty to disclose. Lowery v Dep’t of Corrections, 146 Mich App 342, 356-360; 380 NW2d 99 (1985). In her complaint, plaintiff alleged that defendant had a duty to disclose its adverse financial conditions and intended to induce her to rely on the nondisclosure in accepting employment. Defendant asserts that it was not aware of the financial difficulties until after plaintiff was hired. However, we believe this is a question of fact sufficient to have withstood defendant’s motion for summary disposition. Today’s employment market is both tenuous and difficult. Nearly all employment is at-will. The economic well-being and financial stability of a potential employer is an important factor in accepting a job offer. Consequently, an employer who succeeds in asserting its economic health to attract qualified employees knowing the assertions are untrue may not later hide behind an at-will employment contract. Neither may it be permitted to avoid liability after omitting to disclose, when asked, known economic instability which later leads to economically-based layoffs. We affirm the trial court’s grant of summary disposition on plaintiff’s wrongful discharge claim. However, we reverse and remand for a trial on her misrepresentation claims. We deny costs to defendant. Several cases on wrongful discharge have not dealt with situations in which the complainant admitted signing a form which contained an at-will clause. Consequently, it is unnecessary to engage in the analysis required in them to determine whether plaintiff could establish that her employment contract was at-will or for just cause. See Rood v General Dynamics Corp, 444 Mich 107; 507 NW2d 591 (1993); Barnell v Taubman Co, Inc, 203 Mich App 110; 512 NW2d 13 (1993); Manning v Hazel Park, 202 Mich App 685; 509 NW2d 874 (1993). White, J. (concurring in part and dissenting in part). I join in the majority’s discussion and disposition of the breach of contract issue. I dissent, however, from the majority’s conclusions regarding the misrepresentation claims. While I agree in principle with the majority’s discussion of the issue, I conclude that plaintiff’s deposition testimony and affidavit were insufficient to create a genuine issue of material fact in light of defendant’s motion and supporting affidavits. I would affirm.

Robert W. Cappellano vs. Massachusetts Bay Transportation Authority & others. No. 93-P-865. Suffolk. January 4, 1995. March 7, 1995. Present: Dreben, Gillerman, & Laurence, JJ. Labor, Fair representation by union, Discharge. On a claim against a union for alleged breach of duty of fair representation, the judge correctly ordered summary judgment for the defendant where the plaintiff did not demonstrate a reasonable expectation of proving that the union’s actions toward him were arbitrary, discriminatory, or in bad faith. [233-235] A plaintiff was barred under the terms of an applicable collective bargaining agreement from bringing an action against his employer for violation of the agreement, where he did not show that the union had failed in its duty to represent him fairly. [235-236] Civil action commenced in the Superior Court Department on January 11, 1989. The case was heard by Patrick J. King, J., on motions for summary judgment. Gerald T. Anglin for the plaintiff. John McMahon for Boston Carmen’s Union Division 589, Amalgamated Transit Union. John D. Cirame for Massachusetts Bay Transportation Authority. James O’Leary, John Leary, and members of the Boston Carmen’s Union Division 589, Amalgamated Transit Union. Dreben, J. In this action brought by the plaintiff against the union for breach of its duty of fair representation, and against the Massachusetts Bay Transportation Authority (MBTA) for wrongful termination of employment, a judge of the Superior Court allowed the defendants’ motions for summary judgment. On appeal, the plaintiff claims that the judge erred in allowing the motions because there were genuine issues of material fact as to whether the plaintiff was informed that he would be required to submit to a drug screen as a condition of reinstatement and whether he consented to the test. In affirming the judgment, we take a somewhat different view of the primary issue of the appeal. The plaintiff was hired as a part-time bus driver by the MBTA in 1985. During the 112 weeks that he was employed, he had missed more than sixty days of work and had received a number of suspensions for absenteeism. On August 19, 1987, he was suspended indefinitely, pending a recommendation for discharge. A grievance was filed by the plaintiff’s union representative, and the latter obtained a conditional reinstatement. The plaintiff would have to take a physical exam including a screening for alcohol, would have to maintain perfect attendance for the next two years, and would have to start as a new employee. Although the union claimed that one of the requirements was that the plaintiff would have to take a drug test, and that he consented to do so, the plaintiff maintains that he had no notice prior to arriving at the examination that it would include a screening for drugs. He claims, contrary to the judge’s conclusion, that he did not consent and that his lack of consent creates a genuine issue of material fact which precludes the allowance of the defendants’ motions. Whether the plaintiff consented prior to his coming to the examination is not, however, determinative of his claims against the union or against the MBTA. In his deposition, the plaintiff admitted that he was informed by the doctor, prior to his physical, that the exam would include testing for drugs. He then submitted to the exam, including the drug screening. When the test showed the presence of cannabis, the recommendation for discharge was reinstated, and the MBTA terminated the plaintiffs employment based on the excessive number of absences from the job. The union pursued the grievance through the MBTA’s director of human resources and its general manager, but declined to seek arbitration. The plaintiff was informed that he had the right to appeal that decision to the membership at a meeting. Although the plaintiff attended the meeting, he did not appeal. 1. Claim against the union for breach of duty of fair representation. Under § 22.8 of the constitution of the Amalgamated Transit Union, parties “must not take legal action or go into court until they have exhausted all their rights within the Union.” See Azzi v. Western Elec. Co., 19 Mass. App. Ct. 406, 408-409 (1985). The plaintiff, not having appealed and hence not having exhausted his union remedies, argues that he comes under an exception that permits “an employee [to] bring an action against his employer for a violation of a collective bargaining agreement if he alleges and shows that the union has failed in its duty to represent him fairly . . . ” id. at 409. A union is in breach of its duty of fair representation if its actions toward an employee are “arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190 (1967). The union may not “arbitrarily ignore a meritorious grievance or process it in perfunctory fashion.” Id. at 191. Graham v. Quincy Food Serv. Employees Assn. & Hosp., Library & Pub. Employees Union, 407 Mass. 601, 606 (1990). In order to find a breach “[t]here must be substantial evidence of bad faith that is intentional, severe, and unrelated to legitimate union objectives.” Id. at 609 (citations omitted). We conclude that the union “has shown by material described in Mass.R.Civ.P. 56(c), unmet by countervailing materials, that the plaintiff has no reasonable expectation of proving [this] essential element of [his] case.” Brunner v. Stone & Webster Engr. Corp., 413 Mass. 698, 705 (1992). See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991). Although the plaintiff claimed hostility on the part of the union, there is nothing in the record to substantiate his claim. The only example of hostility cited by the plaintiff was that James Lydon, his union representative, “was getting a little bit disturbed that I was calling him on a regular basis and more or less told me so.” The plaintiff could muster no other acts of hostility. Nor did the union arbitrarily ignore a meritorious grievance which the plaintiff describes as “a presumptively unconstitutional drug test.” At the time of his discharge, the law relating to drug tests had not as yet evolved, and there was no presumption of unconstitutionality. Indeed, the practice of the union at that time, as set forth in its unrefuted answers to the plaintiff’s interrogatories, was that “in resolving grievances, the union and the grievants . . . accepted MBTA’s insistence on a drug/alcohol screen as a condition of return-to-work agreements.” The union’s belief that the claim was not worth pursuing was reasonable. The plaintiff’s attendance record was dismal, and he had received numerous suspensions. The conditions that the MBTA and the union, if not the plaintiff, had agreed upon had not been met — the plaintiff had failed the drug test. There is nothing in the record to suggest that the union was arbitrary in determining that pursuit of the grievance would not succeed and in deciding not to take the matter to arbitration. If a union’s failure to press a grievance was “the result of a reasonable and good-faith belief that [the] grievance [] [was] unmeritorious, the union was vested with the discretion not to pursue [it].” Graham v. Quincy Food Serv. Employees Assn. & Hosp., Library & Pub. Employees Union, 407 Mass. at 609. Even if the union, acting diligently and in good faith, misjudges the grievance, it has not committed a breach of the duty of fair representation as long as it has acted rationally. Early v. Eastern Transfer, 699 F.2d 552, 555 (1st Cir.), cert, denied, 464 U.S. 824 (1983). Walsh, A Judicial Guide to Labor and Employment Law 416-417 (1990). Thus, the plaintiff has shown no reasonable expectation of proving that the union failed in its duty of fair representation. This is so whether or not the plaintiff consented to a drug screening prior to appearing at the exam. 2. Action against MBTA. Since the plaintiff has failed in his claim that the union was in breach of its duty of fair representation, his action against the employer is barred. See Johnston v. School Comm. of Watertown, 404 Mass. 23, 25 (1989); Azzi v. Western Elec. Co., 19 Mass. App. Ct. at 408-409. Judgment affirmed. The plaintiff asserted other claims against each defendant, but on appeal he makes no argument with respect to these claims within the meaning of Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). When asked whether he had any conversation with the doctor about the physical examination, the plaintiff answered as follows: A. “Yes. He told me it was going to require drug and alcohol screening.” Q. “Now, that’s before he took the sample; isn’t that correct?” A. “That’s before he took the sample.” Q. “Did you make any response?” A. “I objected. I told him I didn’t think it was required, but he told me it was a voluntary quit if I didn’t take the test.” Q. “Did you attempt to get back to Mr. Lydon [executive board member of the union]?” A. “No, I couldn’t because it was eight o’clock in the morning and I was anxious to go back to work.” Q. “Did you ask the doctor if the appointment could be rescheduled to a later time and date so that you could consult with your representative or with Mr. Lydon about the drug or alcohol screen?” A. “No, I didn’t.” Even the law as it has later developed does not appear to help the plaintiff. In Johnson v. Massachusetts Bay Transp. Authy., 418 Mass. 783, 786 (1994), the plaintiff bus driver who had been previously suspended was reinstated subject to a one-year probationary period during which any rule violation would result in his discharge. After a passenger reported that the driver of a particular route had alcohol on his breath, the plaintiff was instructed to appear the next morning for a physical examination which would include urine and blood tests. He orally gave permission to a physician for a drug and urine test. He claimed he agreed to the drug test only because of the coercion that he would have been terminated if he did not consent. Although, as in the present case, a written consent would have strengthened the MBTA’s position on the consent issue, the court held that “requiring testing as a condition of continued employment of a probationary employee would not be impermissible coercion in this case involving the operator of a public conveyance.” Ibid. The only distinction between this case and Johnson is that the condition here was imposed in order that the plaintiff not be fired and to enable him to become a probationary employee for two years, while the plaintiff in Johnson was already a probationary employee when the condition was required. The plaintiff argues that he is free to pursue his action against the MBTA only if the union has breached its duty of fair representation. Accordingly, we do not consider whether there is any other basis for a claim against the employer as urged by the union to defeat the claim against it.

LYTLE v MALADY Docket No. 157627. Submitted July 7, 1994, at Grand Rapids. Decided March 6, 1995, at 9:30 a.m. Leave to appeal sought. Nancy Lytle brought an action in the Muskegon Circuit Court against Michael Malady and Howmet Corporation after she was discharged from employment at Howmet, where Malady was her supervisor. Against Howmet, Lytle alleged unlawful age and gender discrimination under the Civil Rights Act and breach of an employment contract providing for termination for just cause only. Against Malady, Lytle alleged tortious interference with her contractual relationship with Howmet. The court, R. Max Daniels, J., granted summary disposition for Malady and Howmet. Lytle appealed. The Court of Appeals held: 1. Where, as here, an employee is discharged as a result of an economically motivated reduction in force by an employer, a prima facie case and rebuttable presumption of age discrimination under the disparate-treatment theory is established upon a showing that the employee was within the protected class, that the employee was qualified to assume another position with the employer at the time of discharge, and that age was a determining factor in the decision to discharge the employee. To rebut the presumption of disparate treatment, the employer must articulate some legitimate, nondiscriminatory reason for the discharge. Once the employer offers a nondiscriminatory reason, the employee must show that the employer’s proffered reason is a mere pretext and that discrimination was more likely the employer’s true motivation in discharging the employee. In this case, genuine issues of material fact remain with respect to whether Lytle has established a presumption of age discrimination and has shown that Howmet’s proffered reasons for her discharge were a mere pretext for discrimination. The trial court therefore erred in summarily dismissing the age discrimination claim. References Am Jur 2d, Wrongful Discharge §§ 1, 93, 102, 103, 120-122, 163, 164, 237. Modern status of rule that employer may discharge at-will employee for any reason. 12 ALR4th 544. Right to discharge allegedly "at-will” employee as affected by employer’s promulgation of employment policies as to discharge. 33 ALR4th 120. Liability of corporate director, officer, or employee for tortious interference with corporation’s contract with another. 72 ALR4th 492. 2. A prima facie case and rebuttable presumption of gender discrimination is established by a female in connection with the termination of her employment as part of an economically motivated reduction in force by the employer upon a showing by the employee that she was a member of a class entitled to protection under the Civil Rights Act, that she was qualified and applied for a position available at the employer, and that she was rejected under circumstances giving rise to an inference of illegal discrimination. The presumption may be rebutted by the employer if it articulates a legitimate, nondiscriminatory reason for the discharge. If the employer offers a nondiscriminatory reason, the employee must show that the proffered reason is a mere pretext for discrimination. In this case, there are genuine issues of material fact concerning whether Lytle has established a presumption of gender discrimination and has shown that Howmet’s proffered reasons for her discharge were a mere pretext for discrimination. The trial court therefore erred in summarily dismissing the gender discrimination claim. 3. Lytle’s allegations give rise to a genuine issue of material fact with regard to whether policy statements in Howmet’s employee handbook and oral assurances of job security created a legitimate expectation of just-cause employment. Bona fide economic reasons are just cause for discharge. However, an employer may not use economic necessity as a pretext for unlawful discrimination. Where, as in this case, the parties dispute the genuineness of the claimed economic necessity, the question of just cause is one for the trier of fact. The trial court erred in summarily dismissing the claim of breach of a just-cause employment contract. 4. Lytle’s allegations do not sufficiently establish that Malady tortiously interfered with her contractual relationship with Howmet in the absence of any claims that Malady acted outside the scope of his authority and that he acted for personal benefit rather than for the benefit of his employer. The trial court did not err in summarily dismissing the claim of tortious interference with a contractual relationship. Affirmed in part, reversed in part, and remanded. 1. Civil Rights — Employment Discrimination — Age — WorkForce Reductions. An employee discharged as part of an economically motivated reduction in force by the employer establishes a prima facie case and rebuttable presumption of unlawful age discrimination under the Civil Rights Act upon a showing that the employee was within the protected class, that the employee was qualified to assume another position with the employer at the time of discharge, and that age was a determining factor in the decision to discharge the employee; the employer can rebut the presumption by articulating some legitimate, nondiscriminatory reason for discharge; if the employer articulates a nondiscriminatory reason, the employee must then show that the proffered reason is a mere pretext for discrimination (MCL 37.2202[1][a]; MSA 3.548[202][1][a]). 2. Civil Rights — Employment Discrimination — Gender — WorkForce Reductions. An employee discharged as part of an economically motivated reduction in force by the employer establishes a prima facie case and rebuttable presumption of unlawful gender discrimination under the Civil Rights Act upon a showing that the employee was a member of a class entitled to protection under the act, that the employee was qualified and applied for a position available at the employer, and that the employee was rejected under circumstances giving rise to an inference of illegal discrimination; the employer can rebut the presumption by articulating some legitimate, nondiscriminatory reason for discharge; if the employer articulates a nondiscriminatory reason, the employee must then show that the proffered reason is a mere pretext for discrimination (MCL 37.2202[l][a]; MSA 3.548[202][l][a]). 3. Master and Servant — Employment Contracts. Employment contracts for an indefinite period are presumed to be terminable at the will of either party for any reason or for no reason; this presumption may be rebutted where the employee establishes the existence of an explicit or implied-in-fact promise of employment terminable for just cause only or presents evidence of employer policies or procedures creating a legitimate expectation of employment terminable for just cause only. 4. Master and Servant — Employment Contracts. An employer’s written policy statements that create legitimate expectations in employees of employment terminable for just cause only may be unilaterally modified by an employer upon reasonable notice of the change to affected employees. 5. Torts — Tortious Interference with Contracts — Employment Contracts. An employee claiming tortious interference by a supervisor with the employee’s contractual relationship with the employer must show that the supervisor acted beyond the scope of the supervisor’s authority and acted for personal benefit rather than in the interest of the employer. Bott & Spencer, P.C. (by Timothy J. Bott), for the plaintiff. Varnum, Riddering, Schmidt & Howlett (by Joseph J. Vogan), for the defendants. Before: Holbrook, Jr., P.J., and Murphy and J. C. Kingsley, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Holbrook, Jr., P.J. In this wrongful discharge case, plaintiff’s complaint alleged three counts against defendant Howmet Corporation: age discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., gender discrimination under the Civil Rights Act, and breach of a contract providing for termination for just cause only. The complaint also alleged tortious interference with contractual relations against defendant Michael Malady. Following some discovery, defendants moved separately for summary disposition, which was granted by the .trial court on all counts. Plaintiff appeals as of right, and we affirm in part, reverse in part, and remand. I In 1973, Howmet, a manufacturer of aircraft engine parts, hired plaintiff as a general clerk. Following a succession of positive performance appraisals and promotions, she was promoted in 1979 by her supervisor, John Ozar, to employment manager of the human resources department of Howmet’s Whitehall division. When defendant Malady became plaintiffs supervisor in 1987, a personality conflict arose, and in 1989, on Malady’s recommendation, she was demoted to human resources specialist. A younger, allegedly less qualified man was promoted to replace her. As a result of declines in military spending and a downturn in the commercial airline industry, Howmet instituted a series of reductions in its work force between 1988 and 1991. In August 1991, William Roof, director of the Whitehall human resources department, was directed to cut his 1992 department budget by fifteen percent (approximately $439,000). In November 1991, Roof eliminated four positions in the human resources department, including plaintiffs position as human resources specialist, and reassigned her job duties to other persons within the department. Roof decided to eliminate plaintiff’s position because her main responsibilities involved the hourly workers who bore the brunt of the downsizing. Plaintiffs "termination evaluation” indicated that Howmet would rehire plaintiff in the event a nonsupervisory, administrative position became open. II A motion for summary disposition under MCR 2.116(0(10) tests the factual sufficiency of a claim. In reviewing a grant of summary disposition, we must independently determine, giving the benefit of doubt to the nonmovant, whether the movant would have been entitled to judgment as a matter of law. Adkins v Thomas Solvent Co, 440 Mich 293, 302; 487 NW2d 715 (1992); Featherly v Teledyne Industries, Inc, 194 Mich App 352, 357; 486 NW2d 361 (1992). This Court reviews a summary disposition determination de novo as a question of law. Borman v State Farm Fire & Casualty Co, 198 Mich App 675, 678; 499 NW2d 419 (1993), aff'd 446 Mich 482; 521 NW2d 266 (1994). III Plaintiff asserts that the trial court erred in finding that no genuine issue of material fact existed with respect to plaintiff’s prima facie case of age discrimination and in granting Howmet summary disposition pursuant to MCR 2.116(C) (10). We agree and reverse. A Plaintiff’s claim of age discrimination is based upon the Civil Rights Act, which provides in pertinent part: (1) An employer shall not do any of the following: (a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of ... age ... . [MCL 37.2202; MSA 3.548(202).] This Court has held that federal precedent, while not binding, is persuasive authority in interpreting and applying the Civil Rights Act. Featherly, supra at 357-358; Slayton v Michigan Host, Inc, 144 Mich App 535, 548, n 7; 376 NW2d 664 (1985). B An age discrimination claim can be based on two theories: (1) disparate treátment, which requires a showing of either a pattern of intentional discrimination against protected employees, e.g., employees aged forty to seventy years, or against an individual plaintiff; or (2) disparate impact, which requires a showing that an otherwise facially neutral employment policy has a discriminatory effect on members of a protected class. See Farmington Ed Ass’n v Farmington School Dist, 133 Mich App 566; 351 NW2d 242 (1984). In this case, plaintiff has presented competent evidence only of a disparate treatment claim. A plaintiff can establish a claim of disparate treatment with sufficient direct or indirect evidence of intentional discrimination. Direct evidence of disparate treatment would be evidence that, if believed, would prove the existence of the employer’s illegal motive without benefit of presumption or inference. Matras v Amoco Oil Co, 424 Mich 675, 683; 385 NW2d 586 (1986). That is not the usual case, however, because an employer is rarely so blatant as to announce its illegal motives. Instead, the usual case must be proven by indirect (circumstantial or statistical) evidence. In light of this reality, courts have created special rules of proof in order "to sharpen the inquiry into the elusive factual question of intentional discrimination.” Texas Dep’t of Community Affairs v Burdine, 450 US 248, 255, n 8; 101 S Ct 1089; 67 L Ed 2d 207 (1981). A prima facie case of age discrimination varies with differing factual situations. Matras, supra at 684. Where, as here, a plaintiff is discharged as a result of an employer’s economically motivated reduction in force (rif), a prima facie case of disparate treatment requires an initial showing, by a preponderance of the evidence, that (1) the plaintiff was within the protected class and was discharged or demoted, (2) the plaintiff was qualified to assume another position at the time of discharge or demotion, and (3) age was "a determining factor” in the employer’s decision to discharge or demote the plaintiff. Matras, supra; McDonnell Douglas Corp v Green, 411 US 792, 802; 93 S Ct 1817; 36 L Ed 2d 668 (1973). Because plaintiff has presented no direct evidence of age discrimination by Howmet, she must attempt to create through indirect evidence a rebuttable presumption of discrimination. In a rip case, it is insufficient for a plaintiff to show merely that the employer retained a younger employee while discharging an older employee. Matras, supra at 684; Featherly, supra at 359. Once established, a prima facie case creates a rebuttable presumption of disparate treatment. Burdine, supra at 252-253. At this point, the burden of production shifts to the defendant — as opposed to the burden of persuasion that never shifts —to rebut the presumption of disparate treatment by articulating (not proving) "some legitimate, nondiscriminatory reason” for the adverse employment decision against the plaintiff. Id. at 253-258. The defendant’s explanation must be clear and reasonably specific to afford the plaintiff "a full and fair opportunity” to demonstrate pretext. Id. at 256. If the defendant carries its burden of production, the presumption of discrimination is dispelled, and the factual inquiry proceeds to a new level of specificity. Id. at 255. See also St Mary’s Honor Center v Hicks, 506 US —; 113 S Ct 2742; 125 L Ed 2d 407, 422 (1993). The plaintiff’s burdens of production and persuasion merge, requiring her to prove by a preponderance of the evidence not only that the defendant’s proffered reasons are a mere pretext but also that illegal discrimination was more likely the defendant’s true motivation in discharging or demoting the plaintiff. Id., Fuentes v Perskie, 32 F3d 759, 764 (CA 3, 1994); Bodenheimer v PPG Industries, Inc, 5 F3d 955, 957 (CA 5, 1993). At this juncture, we note that there is a crucial distinction between a plaintiff’s prima facie case for purposes of surviving a summary disposition motion and a prima facie case sufficient to persuade a trier of fact at trial with regard to the ultimate question whether a defendant intentionally discriminated against the plaintiff. While the latter requires a plaintiff to prove her case to the trier of fact by a preponderance of the evidence, the former does not require her to go so far. Meeka v D & F Corp, 158 Mich App 688, 694; 405 NW2d 125 (1987); Fuentes, supra at 763-764. Neither a trial court nor this Court on appellate review of a summary disposition determination need conduct a minitrial to determine whether the plaintiff has met her burden of presenting a prima facie case by a preponderance of the evidence. Instead, for the plaintiff to survive a summary disposition motion, she need only tender specific factual evidence that could lead a reasonable jury to conclude that the defendant’s proffered reasons are a pretext for age discrimination. Bodenheimer, supra at 958; Hicks, supra, 125 L Ed 2d 416. Thus, the plaintiff must establish, either directly or indirectly, the existence of a genuine issue of material fact that the defendant’s proffered reasons are unworthy of credence, and that illegal age discrimination was more likely the defendant’s true motivation in discharging or demoting her. Id.; Featherly, supra at 362-363. Cf. Bouwman v Chrysler Corp, 114 Mich App 670, 678-679; 319 NW2d 621 (1982) (directed verdict). C Two issues are presented on appeal, both arising naturally from the McDonnell Douglas burden-shifting analysis: whether plaintiff created a genuine issue of material fact with regard to the existence of a prima facie case of discrimination by indirect evidence; and, if so, whether plaintiff created a genuine issue of material fact concerning whether Howmet’s proffered reasons were a mere pretext for age discrimination. 1 In this case, plaintiff’s prima facie case is based solely on circumstantial evidence. She alleges that in January 1989, defendant Malady demoted her from employment manager to human resources specialist, while simultaneously promoting Walter Boczkaja to employment manager. Boczkaja was younger, had less seniority with Howmet, less experience in the area of human resources, and had been trained by plaintiff during her tenure as employment manager. Plaintiff also alleges that, approximately six weeks before she was discharged in 1991 at age forty-four, Howmet hired Andrea Achterhoff, age thirty-one, as human resources specialist for its Operhall Research Center (orc), a division separate from the Whitehall division where plaintiff had worked. Plaintiff also alleges that, as part of an effort by Howmet to implement a new manufacturing approach, Jeff Billingsley, a training and development manager, was transferred from the corporate human resources department to Whitehall’s human resources department. Both Achterhoff and Billingsley were younger than plaintiff, had less seniority, and, according to plaintiff, performed duties that she could have assumed considering her nineteen years of experience at Howmet. We find plaintiff’s allegations, although meager, to be sufficient to create a genuine issue of material fact that age was a determining factor in her discharge. Because this is a rif case, Howmet’s decision to discharge qualified, older employees is not inherently suspicious but rather readily explainable in terms of its economic situation. Standing alone, the fact of such discharges does not warrant shifting the burden of production to How-met to justify its decision. Featherly, supra at 355. Here, however, we find that Howmet’s retaining and hiring of younger, less senior, and allegedly less qualified employees, while discharging plaintiff, "exude[s] that faint aroma of impropriety” sufficient to create a rebuttable presumption of disparate treatment. Thornbrough v Columbus & Greenville R Co, 760 F2d 633, 644 (CA 5, 1985). 2 In rebuttal, Howmet asserts that the elimination of plaintiff’s position as human resources specialist was justified because of a projected downturn in sales and a concomitant reduction in the hourly work force for which plaintiff was primarily responsible. Howmet further asserts that plaintiff was not replaced but that her duties were reassigned to various other employees. Howmet further claims that the hiring of Achterhoff for the position of human resources representative at orc was irrelevant to plaintiff’s discharge because orc is a separate division with a separate budget over which plaintiff’s supervisors had no control. In any event, Howmet asserts that Achterhoff was qualified for the

DZIERBOWICZ v AMERICAN SEATING COMPANY Docket No. 160829. Submitted December 15, 1994, at Grand Rapids. Decided March 6, 1995, at 9:10 a.m. Leave to appeal sought. Barbara P. Dzierbowicz brought an action in the Kent Circuit Court against American Seating Company, alleging that she was discharged from her employment by the defendant because of her medical condition and the resulting expenses and inconveniences that condition entailed in violation of the Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq. The defendant responded that the plaintiff was discharged because of a general cutback in its labor force and because of technological changes that left no openings for which the plaintiff was qualified. The court, Robert A. Benson, J. premising its ruling on the assumption that the plaintiff’s allegations were sufficient to meet her burden of establishing a prima facie case of discriminatory discharge, granted summary disposition for the defendant on the basis that the defendant’s pleadings established that the discharge was for a proper business purpose and that the plaintiff had failed to establish that the business purpose given by the defendant was a mere pretext. The plaintiff appealed. The Court of Appeals held: Once an employee has pleaded a prima facie case of employer handicapper discrimination in an action for wrongful discharge, the employer has the burden of establishing that the discharge of the employee was undertaken for a valid business purpose rather than as .a result of handicapper discrimination. If the employer’s pleadings sufficiently establish a valid business purpose for the discharge, the employee has the burden of showing that the business purpose was a mere pretext for discrimination. Here the defendant’s pleadings clearly established a valid business purpose for the plaintiff’s discharge that was not related to her handicap: cutbacks in staff levels and technological changes that left the plaintiff unqualified for any available job. The plaintiffs allegation that the defendant was aware that her medical condition would result in future medical expenses and medically related absences from work was insufficient to establish that the reason given by the defendant was a mere pretext for discrimination. References Am Jur 2d, Wrongful Discharge § 237. Modern status of rule that employer may discharge at-will employee for any reason. 12 ALR4th 544. Affirmed. C.O. Grathwohl, J., dissenting, stated that the pleadings raise a question of fact whether the plaintiffs discharge was motivated by her handicap and the resulting expenses and inconveniences that would occur as a result of her medical treatment and that such a question of fact was one that should be decided by a trier of fact, not one that should be disposed of summarily. Civil Rights — Handicappers —• Discharge prom Employment — Pleadings — Burdens of Proof. A discharged employee in an action alleging wrongful discharge as a result of handicapper discrimination has the burden of establishing that the discharge was the result of handicapper discrimination; once the employee has pleaded a prima facie case of handicapper discrimination, the employer has the burden of establishing that the employee was discharged for a valid business purpose that is not related to handicapper discrimination; if the employer sufficiently establishes a valid business purpose for the discharge, the employee then has the burden of establishing that the claimed business purpose wafe a mere pretext for handicapper discrimination (MCL 37.1202[1] [b]; MSA 3.550[202][1][b]). Meana, Spruit & Bedevia, P.C. (by Noreen K. Myers), for the plaintiff. Miller, Johnson, Snell & Cummiskey (by James S. Brady and Charles C. Hawk), for the defendant. Before: Mackenzie, P.J., and J. W. Fitzgerald and C. O. Grathwohl, JJ. Former Supreme Court justice, sitting on the Court of Appeals by assignment pursuant to Administrative Order No. 1994-7. Circuit judge, sitting on the Court of Appeals by assignment. MacKenzie, P.J. Plaintiff, who was temporarily laid off by and then terminated from employment with defendant, brought this suit alleging that her discharge was in violation of the Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq. She appeals as of right from the circuit court’s grant of summary disposition for defendant pursuant to MCR 2.116(0(10). We affirm. Plaintiff has rheumatoid arthritis that resulted in her having had several surgeries and having taken medical leaves. Her theory was that defendant fired her to avoid additional insurance and medical costs. Defendant responded that plaintiff was laid off and then terminated because of a cutback in its labor force. A motion for summary disposition under MCR 2.116(0(10) tests whether there is factual support for a claim. When deciding a motion for summary disposition, a court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it. Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993). In order to establish a prima facie case of handicap discrimination, a plaintiff must establish: (1) the plaintiff is "handicapped” as defined in the act; (2) the handicap is unrelated to the plaintiff’s ability to perform the duties of a particular job; (3) the plaintiff has been discriminated against in one of the ways set forth in § 202 of the hcra, MCL 37.1202; MSA 3.550(202). Doman v Grosse Pointe Farms, 170 Mich App 536, 541; 428 NW2d 708 (1988). In this case, the relevant section is § 202(1)(b), which prohibits the discharge of an employee because of a handicap. Once a plaintiff succeeds in establishing a prima facie case, the burden shifts to the employer to show legitimate, nondiscriminatory reasons for its action. Crittenden v Chrysler Corp, 178 Mich App 324, 331; 443 NW2d 412 (1989). If the employer rebuts the plaintiffs prima facie case, the burden shifts back to the plaintiff, who then has to show that the employer’s reasons constituted a pretext for discrimination. Id. See also Clark v Uniroyal Corp, 119 Mich App 820, 826; 327 NW2d 372 (1982); McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973). In this case, plaintiff alleged that she was handicapped because of her rheumatoid arthritis and surgical joint replacements, that her handicap was unrelated to her ability to perform her job duties, and that she was discharged because defendant knew she would need further surgeries. The trial court assumed, for purposes of the motion for summary disposition under MCR 2.116(0(10), that these allegations were sufficient for plaintiff to meet her burden of establishing a prima facie case of handicap discrimination. The burden of going forward then shifted to defendant to show legitimate, nondiscriminatory reasons for plaintiffs layoff and subsequent termination. Clark, supra at 826. Defendant rebutted plaintiffs allegations by statistical evidence that it had reduced its workforce from 2,000 employees in 1978 to 750 at the time of the motion for summary disposition. Between 1981 and 1991, the year in which plaintiff was terminated, factory clerk positions (plaintiffs job) were reduced from sixteen to three. The affidavit of defendant’s director of human resources further stated that plaintiffs position was one of those consolidated or absorbed by other positions because of computerization and technological changes and that plaintiff was not qualified for any positions for which defendant had openings. This evidence was sufficient to meet defendant’s burden of producing evidence that a valid purpose existed regarding why plaintiff was terminated. The burden then shifted back to plaintiff to show that defendant’s business reasons for her termination were merely a pretext. Plaintiff’s allegations that because the company knew she may have required additional surgeries in the future and more time off for medical leave were insufficient to rebut the evidence presented by defendant. Both plaintiff’s immediate supervisor and the director of human resources stated that neither plaintiff’s medical condition nor her insurance costs played a part in the decision to terminate her. We agree with the trial court’s ultimate decision that plaintiff failed to present material facts indicating that the business reasons offered by defendant for her termination were merely a pretext. Additionally, we agree with the trial court that summary disposition was appropriate regarding plaintiff’s other allegations of discrimination pertaining to her position and other openings within the company. Because mere speculation and inferences will not sustain an argument of intentional discrimination, Clark, supra at 826, plaintiff has not presented any material issue of fact to show that the business reasons proffered by defendant were merely a pretext. After our de novo review of the issues raised by plaintiff on appeal, we find summary disposition was properly granted. Wieringa v Blue Care Network, 207 Mich App 143, 145; 523 NW2d 872 (1994). Affirmed. J. W. Fitzgerald, J., concurred. C. O. Grathwohl, J. (dissenting). I dissent. It is disingenuous to believe an employer will admit that a handicapped employee was discharged in violation of the Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq. The majority accepts the self-serving affidavits that plaintiffs future surgical expenses for rheumatoid arthritis and joint replacements played no part in the decision to terminate her. Defendant set forth the reason for its termination of plaintiff in a December 17, 1991, document filed with the Michigan Employment Security Commission: Resulting from divisional operations consolidation and subsequent work force reduction, this claimant’s functional responsibilities were eliminated along with other employee positions within this organization’s operations. Plaintiff alleged that she would show that defendant had recalled 130 employees in 1991 and, further, that it had been necessary for defendant to hire a Kelly temporary employee to replace her during her sick leave. A review of plaintiffs work performance evaluations shows her to be a competent, dependable employee. In Crittendon v Chrysler Corp, 178 Mich App 324; 443 NW2d 412 (1989), this Court held that summary disposition is inappropriate if the plaintiff might develop a record with respect to an issue on which reasonable minds could differ. Reasonable minds could differ regarding defendant’s motive in discharging the plaintiff, depending on the weight the jury gives to the testimony that plaintiff told her supervisors that she required additional surgeries and they had reports to the effect from her surgeon. In addition, the plaintiff testified that she was ostracized from the "team” after her last return from medical leave. The trier of fact should determine if defendant had a legitimate business reason to discharge plaintiff or if the business reasons were merely a pretext. I would reverse and remand for trial.

RODGERS v WASHTENAW COUNTY Docket No. 154972. Submitted December 6, 1994, at Lansing. Decided February 22, 1995, at 9:15 a.m. Kevin Rodgers filed an unfair labor practice charge with the Michigan Employment Relations Commission against his former employer, Washtenaw County, claiming that the December 1990 termination of his employment with the county was the result of unfair labor practices. The merc dismissed the charge on the basis that the filing of the charge in February 1992 was more than six months after the alleged constructive discharge and, thus, was not filed in a timely manner as required by § 16(a) of the public employment relations act, MCL 423.216(a); MSA 17.455(16)(a). Rodgers appealed, claiming that the limitation period of § 16(a) of the pera was tolled during the pendency of an action that he had filed in the Washtenaw Circuit Court against the county for breach of his contract of employment arising out of the same constructive discharge, said action having been filed in March 1991 and not having been dismissed until after the filing of the unfair labor practice charge. The Court of Appeals held: The general tolling provision of § 5856 of the Revised Judicature Act, MCL 600.5856; MSA 27A.5856, is not applicable to § 16(a) of the pera, because the provision in the pera specifically requires that an unfair labor practice charge be filed with the merc no more than six months after the unfair labor practice occurred. Just as the filing of an administrative proceeding does not toll the operation of a statute of limitation in a civil action, the filing of a civil action does not toll the operation of the statute of limitation applicable to a proceeding before the merc. Affirmed. Anthony A. Muraski, for the petitioner. Harris, Guenzel, Meier & Nichols, P.C. (by Robert E. Guenzel), for the respondent. Before: McDonald, P.J., and Fitzgerald and W. J. Giovan, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Per Curiam. Petitioner, Kevin Rodgers, appeals from the Michigan Employment Relation Commission’s dismissal of his unfair labor practice charge against respondent, Washtenaw County. The merc dismissed petitioner’s charge because it had not been filed within the six-month limitation period provided by MCL 423.216(a); MSA 17.455(16)(a). We affirm. Petitioner left his employment with respondent in December 1990. In March 1991, petitioner sued in the Washtenaw Circuit Court for breach of his employment contract. Petitioner’s action was dismissed by the circuit court on April 29, 1992, for lack of subject-matter jurisdiction. During the pendency of the circuit court action, petitioner filed his unfair labor practice charge with the merc on February 2, 1992, more than six months after his alleged constructive discharge. MCL 423.216(a); MSA 17.455(16)(a) provides in pertinent part: No complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the commission and service of a copy thereof upon the person against whom the charge was made .... (Emphasis added.) MCL 423.216(a); MSA 17.455(16)(a) provides one exception to this rule: where the aggrieved party "was prevented from filing the charge by reason of service in the armed forces, . . . the 6-month period shall be computed from the day of his discharge.” In addition to this statutory exception, this Court has found that the six-month period of limitation is tolled during the period when the employee has no knowledge of the unfair labor practice or while the employee pursues union grievance procedures. Huntington Woods v Wines, 122 Mich App 650; 332 NW2d 557 (1983); Silbert v Lakeview Ed Ass’n, Inc, 187 Mich App 21; 466 NW2d 333 (1991); Leider v Fitzgerald Ed Ass’n, 167 Mich App 210; 421 NW2d 635 (1988). MCL 600.5856; MSA 27A.5856 provides in relevant part: The statutes of limitations or repose are tolled: (a) At the time the complaint is filed and a copy of the summons and complaint are served on the defendant. (b) At the time jurisdiction over the defendant is otherwise acquired. Petitioner argues MCL 600.5856; MSA 27A.5856 acts to toll the six-month limitation period for filing his merc charge while his complaint was pending before the circuit court. We disagree. Exceptions to statutes of limitation are to be construed strictly. Mair v Consumers Power Co, 419 Mich 74; 348 NW2d 256 (1984). Additionally, a specific statute of limitations provision controls over a general provision. Michigan Millers Mutual Ins Co v West Detroit Building Co, Inc, 196 Mich App 367; 494 NW2d 1 (1992). The statute of limitations for a civil action brought in the circuit court is not tolled by a prior action seeking administrative relief for the same alleged harm. Mair, supra; Ray v Organization of School Administrators & Supervisors, Local 28, 141 Mich App 708; 367 NW2d 438 (1985). In Mair, supra, p 85, our Supreme Court cautioned against finding exceptions to statutes of limitation: The statutes of limitations, as well as the tolling statute, are of legislative creation. So too should be any further exceptions, and particularly any further exception which makes an administrative proceeding a tolling event. The vast number of administrative agencies and their varying procedures make this area one particularly appropriate for legislative action if any change is desired, and one particularly inappropriate for the ad hoc judgments of the judiciary. MCL 423.216(a); MSA 17.455(16)(a) specifically requires the filing of an unfair labor practice charge with the commission in order to stop the six-month limitation period from running. MCL 600.5856; MSA 27A.5856 is the general tolling provision applicable to statutes of limitation in civil actions and should not be applied to thwart the specific limitation provision of MCL 423.216(a); MSA 17.455(16)(a). Just as filing an administrative proceeding does not toll the operation of a statute of limitation in a civil action, we believe filing a civil action in the circuit court should not toll the operation of the statute of limitation applicable to a merc proceeding where the statute requires the filing of a charge with the merc. Affirmed.

PAULITCH v DETROIT EDISON COMPANY Docket No. 151032. Submitted October 11, 1994, at Detroit. Decided February 21, 1995, at 9:25 a.m. Adolph J. Paulitch brought an action in the Wayne Circuit Court against the Detroit Edison Company, alleging that the defendant engaged in age discrimination in violation of the Civil Rights Act in failing to promote him to a position for which he had applied. The jury awarded the plaintiff damages and the court, Paul S. Teranes, J., entered a judgment consistent with the verdict. The defendant appealed. The plaintiff cross appealed, claiming the trial court erred in declining to award prejudgment interest with regard to that portion of the award pertaining to future damages. The Court of Appeals held: 1. The plaintiff established a prima facie case of age discrimination. The plaintiff proved by a preponderance of the evidence that the defendant’s purported reason for not promoting the plaintiff was a mere pretext. 2. The verdict was supported by adequate evidence and was not against the great weight of the evidence. 3. The trial court properly denied the defendant’s motions for remittitur or a new trial. 4. The defendant failed to carry its burden of proof regarding the plaintiff’s alleged failure to mitigate- damages. The award for future lost wages was proper. The trial court properly denied the defendant’s motions for a new trial or judgment notwithstanding the verdict. 5. The plaintiff is entitled to prejudgment interest on his award of future damages from the date of the filing of the complaint. The trial court’s denial of the plaintiff’s motion for prejudgment interest must be reversed. The reference to "future damages” in MCL 600.6013; MSA 27A.6013, which states that "interest shall not be allowed on future damages from the date of filing the complaint to the date of entry of the judg_ment,” is not applicable to this case because "future damages,” as defined in MCL 600.6301; MSA 27A.6301, must result from a personal bodily injury and no such injury was involved in this matter. References Am Jur 2d, Interest and Usury § 60; Job Discrimination § 2953. See ALR Index under Interest on Money; Labor and Employment. Affirmed in part and reversed in part. 1. Civil Rights — Employment Discrimination — Mitigation of Damages. An offer of employment by a defendant-employer to a plaintiff-employee who has been a victim of employment discrimination must be free from conditions before the employee’s failure to accept the offer may be considered to be a failure to mitigate damages. 2. Judgments — Prejudgment Interest — Words and Phrases — Future Damages. The term "future damages” in the statute providing that interest shall not be allowed on future damages from the date of the filing of the complaint to the date of the entry of the judgment refers to damages arising from a personal bodily injury (MCL 600.6013, 600.6301; MSA 27A.6013, 27A.6301). Van Benschoten, Hurlburt, Tsiros & Allweil, P.C. (by Mandel I. Allweil), for the plaintiff. Frederic E. Champnella and Jane K. Souris, for the defendant. Before: Weaver, P.J., and Connor and J. F. Kowalski, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Connor, J. A jury awarded plaintiff $359,000 in damages after finding that defendant had discriminated against him on the basis of his age when it failed to promote him in violation of the Civil Rights Act, MCL 37.2202; MSA 3.548(202). Defendant appeals as of right, claiming insufficient evidence, among other things. Plaintiff cross appeals, claiming the trial court improperly declined to award prejudgment interest on future damages. We affirm in part and reverse in part. Plaintiff began working for defendant in 1964, as a substation operator. Over the years, plaintiff applied numerous times for the position of central system supervisor. In 1986, plaintiff, who was fifty years old at the time, interviewed for the position. He was not promoted to the position. Plaintiff testified at trial that, during the interview, he was told repeatedly that the job for which he was applying is a "young man’s job.” Plaintiff presented other evidence that defendant appeared to favor younger individuals for the position and showed that no one over the age of forty-five ever had been promoted to the position. Defendant first argues that the trial court erred in denying its motions for a directed verdict and judgment notwithstanding the verdict because there was insufficient evidence to support the jury’s findings. We disagree. After reviewing the record, we find that the elements for proving a claim of discrimination were met. Manning v Hazel Park, 202 Mich App 685, 696; 509 NW2d 874 (1993). Plaintiff showed that defendant was predisposed to discriminate on the basis of age and acted on that predisposition. Plaintiff was in a protected class at the time, between the ages of forty and seventy, and he testified that the chief system supervisor told him that plaintiff’s proximity to retirement was a factor in his decision not to promote plaintiff. Further, plaintiff testified that during his interviews in 1986, he was asked why a person his age would want such a stressful job. Accordingly, plaintiff established a prima facie case of age discrimination. McDonald v Union Camp Corp, 898 F2d 1155, 1160-1161 (CA 6, 1990). Defendant’s purported reason for not promoting plaintiff was that testing procedures indicated he was not as well qualified for the position as other applicants. However, our review of the record reveals that plaintiff carried his burden of proving by a preponderance of the evidence that this purported reason was a mere pretext. Manning, supra, 696. Not only were portions of the testing procedures strictly subjective, but one of the candidates selected for the system supervisor position scored below plaintiff on the test. This person, who was promoted in spite of his lower score, is ten years younger than plaintiff. Viewing the evidence in a light most favorable to plaintiff, we find the jury’s verdict is supported by adequate evidence. Price v Long Realty, Inc, 199 Mich App 461, 472; 502 NW2d 337 (1993). Defendant’s claim that the jury’s verdict is against the great weight of the evidence is also without merit. After reviewing the record, we find that evidence existed regarding plaintiff’s emotional damages, including his testimony that his relationships with his wife and friends suffered after he was passed over for the promotion. As such, the verdict is not against the overwhelming weight of the evidence. Heshelman v Lombardi, 183 Mich App 72, 76; 454 NW2d 603 (1990); Brunson v E & L Transport Co, 177 Mich App 95, 106; 441 NW2d 48 (1989). Similarly, we find that the trial court did not abuse its discretion in denying defendant’s motions for remittitur or a new trial. Palenkas v Beaumont Hosp, 432 Mich 527, 532; 443 NW2d 354 (1989). Because evidence of emotional damage was presented at trial, and the award was comparable to awards in similar cases, the trial court properly deferred to the jury and denied defendant’s motions. Id.; Brunson, supra, 106. Defendant’s claim that plaintiff failed to mitigate his damages is unpersuasive. Defendant argues that if plaintiff had not withdrawn from consideration in 1989, he would have been offered the position of central system supervisor at that time. Consequently, defendant contends, plaintiffs claim for past lost wages was barred from the date of the withdrawal. We disagree. Because plaintiff actually was never offered the job of central system supervisor, plaintiff was not in a position to refuse the job. Rather, the evidence showed that plaintiff withdrew his name from consideration to avoid the embarrassment of being denied the promotion again. We find defendant has failed to carry its burden of proof regarding plaintiffs alleged failure to mitigate damages. Brooks v Rose, 191 Mich App 565, 570; 478 NW2d 731 (1991). Under these circumstances, it was reasonable for plaintiff to believe that, if defendant intended to offer him the supervisor position in 1989, it would have done so, rather than simply accepting his withdrawal from consideration. Hughes v Park Place Motor Inn, Inc, 180 Mich App 213, 220; 446 NW2d 885 (1989). Defendant’s final claim, that plaintiff should not have been awarded future lost wages, is also without merit. Defendant contends that it made plaintiff an unconditional job offer a few days before the trial began. Contrary to defendant’s argument, however, the job offer extended to plaintiff was not unconditional and plaintiff did not reject it. Rather, the offer was made on the eve of trial and remained open for only ten days. When plaintiff failed to act within that period, defendant withdrew the offer. An offer of employment by a defendant-employer to an employee who was a victim of discrimination must be free from conditions. Dep’t of Civil Rights ex rel Cornell v Edward W Sparrow Hosp Ass’n, 423 Mich 548, 568; 377 NW2d 755 (1985). Because the offer was rescinded by defendant, the jury could find that the offer was conditional. Plaintiff did not fail to mitigate his damages, and the trial court properly denied defendant’s motions for a new trial or judgment notwithstanding the verdict. Rasheed v Chrysler Motors Corp, 196 Mich App 196, 206; 493 NW2d 104 (1992). Plaintiffs cross appeal appeárs to present a conflict in the interpretation of MCL 600.6013; MSA 27A.6013. Strict construction of the statute directs that plaintiff is entitled to prejudgment interest on his award of future damages. Consequently, we reverse the trial court’s denial of plaintiff’s motion for prejudgment interest. Section 6013 of the Revised Judicature Act stated, in part, at all times relevant to this appeal: Interest shall be allowed on a money judgment recovered in a civil action, as provided in this section, except that for complaints filed on or after October 1, 1986, interest shall not be allowed on future damages from the date of filing the complaint to the date of entry of the judgment. As used in this subsection, "future damages” means that term as defined in section 6301. [MCL 600.6013; MSA 27A.6013.] Plaintiff argues that the reference to future damages is not applicable to this case because future damages, as defined in § 6301, must result from a personal bodily injury. MCL 600.6301; MSA 27A.6301. Because this case involved a civil rights violation, plaintiff contends he is entitled to prejudgment interest on the money judgment from the date of the filing of the complaint, as provided by § 6013. We agree. Panels of this Court appear to have split on this issue. In Goins v Ford Motor Co, 131 Mich App 185, 203; 347 NW2d 184 (1983), this Court ruled that the type of damages awarded by a jury was not dispositive with regard to the question of interest. This Court adopted the Goins reasoning in Om-El Export Co, Inc v Newcor, Inc, 154 Mich App 471, 480-481; 398 NW2d 440 (1986). The Goins Court reasoned that prejudgment interest should be applied to the entire award because the statute, MCL 600.6013; MSA 27A.6013, did not distinguish between past and future damages. In another case, however, this Court held that the plaintiff was not entitled to prejudgment interest pursuant to MCL 600.6013; MSA 27A.6013 from the time the complaint was filed with regard to service fees payable after the complaint was filed. Central Michigan Univ Faculty Ass’n v Stengren, 142 Mich App 455, 461; 370 NW2d 383 (1985). And in Bruno v Detroit Institute of Technology, 51 Mich App 593, 600, n 1; 215 NW2d 745 (1974), this Court held that if future damages are not reduced to their present value at the time of the complaint, then an award of prejudgment interest on future damages would grant the plaintiff a double benefit. In the instant case, the jury did not receive an instruction regarding present value of future damages, and the judgment , contained no reduction. The definition of future damages is set forth in MCL 600.6301(a); MSA 27A.6301(a): "Future damages” means damages arising from personal injury which the trier of fact finds will accrue after the damage findings are made and includes damages for medical treatment, care and custody, loss of earning, loss of earning capacity, loss of bodily function, and pain and suffering. We find there can be no interpretation of this plain language other than that a plaintiff is entitied to prejudgment interest when the suit does not result from a personal bodily injury. Affirmed in part and reversed in part. The exception regarding future damages was added to § 6013 in 1986, 1986 PA 178. We are sympathetic to defendant’s position for the following reasons. First, this Court has repeatedly held that the purpose of prejudgment interest is to compensate the prevailing party for the delay in recovering money damages. Farmers Ins Group v Lynch, 186 Mich App 537, 538; 465 NW2d 21 (1990); Dep’t of Treasury v Central Wayne Co Sanitation Authority, 186 Mich App 58, 61; 463 NW2d 120 (1990); McDaniel v Macomb Co Bd of Road Comm’rs, 169 Mich App 474, 477; 426 NW2d 747 (1988). There is no delay in paying plaintiff money to which he became entitled only as a result of the jury ..verdict. Second, although the amended Revised Judicature Act did define future damages as only applying to personal bodily injury, MCL 600.6301; MSA 27A.6301, the Legislature distinguished between prejudgment interest on future damages and other damages. However, we believe that any modifications of this system should originate with the Legislature, not the courts.

Terri Beal vs. Board of Selectmen of Hingham. Plymouth. December 5, 1994. February 21, 1995. Present: Lucos, C.J., Wilkins, Abrams, Nolan, & Lynch, JJ. Practice, Civil, Complaint, Summary judgment. Anti-Discrimination Law, Handicap, Employment, Prima facie case, Sex. Civil Rights, Availability of remedy, Termination of employment. Constitutional Law, Equal protection of laws, Sex discrimination. A Superior Court judge did not abuse his discretion in allowing a civil defendant’s motion to dismiss under Mass. R. Civ. P. 12 (b) (6) and declining to rule on the defendant’s motion to dismiss under Mass. R. Civ. P. 4 (j)> which the defendant had waived. [538] In a civil action in which the plaintiff claimed handicap discrimination in violation of G. L. c. 151B, and the Rehabilitation Act of 1973, 29 U.S.C. § 794, the judge correctly granted summary judgment for the defendant employer where the plaintiff failed to demonstrate that she had a reasonable expectation of proving that she was a “qualified handicapped person,” that is, that she was capable of performing the essential functions of the job in question, police officer, or that she would be capable of so performing with a reasonable accommodation to her handicap. [539-543] In a civil action in which the plaintiff claimed gender discrimination in violation of G. L. c. 151B, and 42 U.S.C. § 2000e-2(a) (1), the judge correctly granted summary judgment for the defendant employer where the plaintiff did not demonstrate that she had a reasonable expectation of proving that she would be capable of performing the duties of the job in question, police officer, at an acceptable level. [543-545] In a civil action in which the plaintiff claimed that her employer had denied her constitutional right to equal protection under the law on the basis of her gender in violation of 42 U.S.C. § 1983, by denying her request for “light duty” and granting it to two other (male) employees, the judge correctly granted summary judgment for the defendant where the plaintiff did not either demonstrate that the employer acted with discriminatory intent or establish a prima facie case of sex discrimination. [545-547] Civil action commenced in the Superior Court Department on December 10, 1992. The case was heard by John J. O’Brien, J., on a motion for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Kevin P. Phillips for the plaintiff. Andrew J. Waugh (James A. Toomey with him) for the defendant. Nolan, J. The plaintiff appeals from the entry of summary judgment for the defendant, the board of selectmen of Hingham (board). We transferred the appeal to this court on our own motion, and now affirm. The following are the relevant facts viewed in the light most favorable to the plaintiff. See Alioto v. Marnell, 402 Mass. 36, 37 (1988). In 1986, the board appointed the plaintiff to the position of police officer. On July 26, 1988, the plaintiff was injured in a head-on collision while on duty. Following the accident, an ambulance transported the plaintiff to South Shore Hospital where she was treated for multiple injuries. As a result of the accident, the plaintiff suffered from severe injuries to her head, neck, and back. In addition, a neurologist treated the plaintiff for headaches and dizziness resulting from the collision. While convalescing from her injuries, the plaintiff was unable to continue working as a police officer. The plaintiff, therefore, received compensation benefits pursuant to G. L. c. 41, § 111F (1992 ed.), from July 26, 1988, until June, 1990. In May of 1990, a neurologist, hired by the defendant, examined the plaintiff and concluded that she was not suffering from any neurological disabilities which would prevent her from performing the regular duties of a police officer. Subsequently, the chief of police directed the plaintiff to report for duty by June 26, 1990, and he notified her that her paid injury leave would end on June 26, 1990. The plaintiff, however, refused to report for duty. Instead, she requested an ex parte temporary restraining order to prevent the town from discontinuing her § 111F benefits. A Probate Court judge granted the temporary restraining order on June 28, 1990. On July 9, 1990, however, the judge denied the plaintiff’s request for a preliminary injunction. On July 20, 1990, the plaintiff applied for accidental disability retirement claiming injuries to her neck, back, and head. When the Hingham retirement board denied the application, the plaintiff appealed. On December 1, 1992, an administrative magistrate of the Division of Administrative Law Appeals concluded that there were no orthopedic specialists on the medical panel that had examined the plaintiff. Deciding that the plaintiff had alleged disabilities which should have been examined by an orthopedic specialist, the administrative magistrate remanded the plaintiff’s claim to the retirement board with an order to convene a new medical panel comprised of orthopedic specialists. Earlier, on October 15, 1991, the plaintiff requested that she be permitted to return to work in a letter to the board. In support of her request to perform “light duty” work, the plaintiff presented two letters from her personal physicians. Although the physicians released the plaintiff to return to her duties as a police officer, they indicated that the plaintiff still suffered from various injuries. The board, however, refused to allow the plaintiff to return to her position as a police officer for two reasons: (1) the board claimed that she had abandoned her position and (2) refused her apparent request for “limited duty.” On October 30, 1991, the plaintiff informed the defendant that she wanted to return to “full” duty. In response, the board notified the plaintiff that a hearing would be conducted to determine whether to discipline, suspend, or terminate her. On May 2, 1992, the board discharged the plaintiff from employment as a police officer after conducting a hearing on December 2, 1991, January 8, and May 2, 1992. On July 30, 1992, the plaintiff filed an employment handicap and sex discrimination claim against the defendant with the Massachusetts Commission Against Discrimination (MCAD) pursuant to G. L. c. 151B, § 4 (1992 ed.). After the MCAD granted the plaintiff’s request to remove her claim to the Superior Court, the plaintiff filed a complaint in the Superior Court on December 10, 1992. The docket reflects return of service on June 26, 1993. Subsequently the board filed a motion to dismiss pursuant to Mass. R. Civ. P. 4 (j), as appearing in 402 Mass. 1401 (1988), and a motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). In response, the plaintiff filed a motion to enlarge the time for service pursuant to Mass. R. Civ. P. 6 (b) (2), 365 Mass. 747 (1965). The motion judge treated the board’s motion to dismiss under rule 12 (b) (6), as a motion for summary judgment pursuant to Mass. R. Civ. P. 56, 365 Mass. 824 (1974), and granted the board’s motion. 1. Failure to consider rule 4 (j) motion. The plaintiff argues that the motion judge abused his discretion when he granted the board’s motion to dismiss without first addressing the issue whether the plaintiff had complied with the time limits for service of the complaint on the board in accordance with rule 4 (j). We disagree. The board waived any objection to the timeliness of the plaintiff’s service of the complaint by failing to object to the court’s not addressing the issue. In addition, the plaintiff herself filed a motion to enlarge the time for service pursuant to rule 6 (b) (2), claiming that the failure to serve the complaint on the board in a timely manner was the result of excusable neglect. The plaintiff cannot now claim on appeal that the reason that she had offered previously did not constitute excusable neglect. 2. Summary judgment. The plaintiff argues next that the motion judge erred by granting the board’s motion for summary judgment pursuant to rule 56 on all counts of the plaintiff’s complaint. We disagree. “The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law. Mass. R. Civ. P. 56 (c). See Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 626 (1989); Leavitt v. Mizner, 404 Mass. 81, 88 (1989); Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). We may consider any ground supporting the judgment. Champagne v. Commissioner of Correction, 395 Mass. 382, 386 (1985).” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). See Judson v. Essex Agric. & Technical Inst., 418 Mass. 159, 162 (1994). “[A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in rule 56 (c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). A. Handicap discrimination. The plaintiff argues that the motion judge erred in granting the board’s motion for summary judgment because she had established a prima facie case of handicap discrimination pursuant to both G. L. c. 151B and the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1988 & Supp. V 1993). There was no error. General Laws c. 15IB, § 4 (16), provides in material part that it shall be unlawful practice “[fjor any employer ... to . . . refuse to hire, rehire or advance in employment or otherwise discriminate against, because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer’s business. . . . Physical or mental job qualification requirement with respect to hiring, promotion, demotion or dismissal from employment or any other change in employment status or responsibilities shall be functionally related to the specific job or jobs for which the individual is being considered and shall be consistent with the safe and lawful performance of the job.” In an employment discrimination case pursuant to G. L. c. 15IB, the plaintiff has the initial burden of establishing a prima facie case. See Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611, 614-615 (1983); Smith College v. Massachusetts Comm’n Against Discrimination, 376 Mass. 221, 229 (1978). Although we follow the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), we have noted that the facts necessary to establish a prima facie case of discrimination will vary depending on the circumstances of each case. See Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 135 n.5 (1976), citing McDonnell Douglas Corp. v. Green, supra at 802 n.13. In order to establish a prima facie case of unlawful employment discrimination on the basis of handicap pursuant to G. L. c. 15IB, a plaintiff must present some evidence that: (1) she is handicapped; (2) she is a qualified handicapped person and she applied for a position for which the employer was seeking applicants; (3) the employer terminated the plaintiff for the position in spite of her qualifications; (4) after the employer terminated the plaintiff, the position remained open and the employer continued to seek applicants. See McDonnell Douglas Corp. v. Green, supra at 802; Wheelock College v. Massachusetts Comm’n Against Discrimination, supra at 135 n.5; P.J. Liacos, Massachusetts Evidence § 5.6.1, at 219 (6th ed. 1994); 9 J. Wigmore, Evidence § 2494 (Chadbourn rev. ed. 1981). Thus, because of the developed summary judgment record in this case, the plaintiff must establish that she has a reasonable expectation of proving each element of a prima facie case of handicap discrimination. See Kourouvacilis v. General Motors Corp., supra at 716. We shall assume, without deciding, that when viewing the facts in the light most favorable to the plaintiff, the plaintiff’s injuries rendered her a handicapped person. Nevertheless, we think that the plaintiff has failed to demonstrate that she has a reasonable expectation of proving that she is a qualified handicapped person within the meaning of either G. L. c. 15IB or §. 504 of the Rehabilitation Act. A “qualified handicapped person” is one who “is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with reasonable accommodation-to his handicap.” G. L. c. 15IB, § 1 (16). See Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 381-384 (1993). An employer, however, may refuse to accommodate any handicap that necessitates the substantial modification of employment standards. See Southeastern Community College v. Davis, 442 U.S. 397, 410 (1979); Wynne v. Tufts Univ. Sch. of Medicine, 932 F.2d 19, 25 (1st Cir. 1991), on remand, 976 F.2d 791 (1992), cert. denied, 507 U.S. 1030 (1993), citing School Bd. of Nassau County v. Arline, 480 U.S. 273, 287-288 n.17 (1987). We think that the plaintiff has failed to demonstrate that she is capable of performing the essential functions required of a police officer, even with a reasonable accommodation to her handicap. One of the essential duties of a police officer is to protect the public at large. The character of the plaintiffs injuries prevents her from fulfilling this fundamental duty. One of the plaintiffs own physicians stated that the plaintiff suffers from chronic fatigue, sleep disorder, and that she is at risk for blackouts in high-stress situations. It is uncontested that the plaintiff suffered from a long-term disability, as another one of her physicians noted when he had recommended to the plaintiff that she not resume her duties as a police officer in her “injured state.” Thus, the plaintiffs susceptibility to blackouts in high-stress situations would place the public at risk if she were to resume serving as a police officer. In addition, the plaintiffs capacity for fulfilling the duties of a police officer would not be enhanced by any reasonable accommodation. Assuming, arguendo, that “light duty” at a “desk job” or as a dispatcher constitutes a reasonable accommodation, the plaintiffs injuries still would preclude her from performing the essential duties of a police officer. A police officer who works at a desk must be capable of responding in a professional manner to various crises that could occur in the station house. In addition, a police dispatcher must remain clear headed and calm in emergency situation's. The plaintiffs susceptibility to blackouts in stressful situations, however, not only would make her unreliable, but also would endanger the public. Because police officers are responsible for public safety, and the plaintiff’s handicap severely compromises her capability to ensure the general safety of the public, we think that there are no reasonable accommodations that would enable the plaintiff to perform the essential functions of a police officer. The plaintiff, therefore, has no reasonable expectation of demonstrating that she is a qualified handicapped person under either G. L. c. 15IB or § 504 of the Rehabilitation Act. We note also that the plaintiff herself claimed that she was unable physically to return to her position as a police officer when she filed for disability retirement and social security benefits. In addition, when the defendant ordered the plaintiff to return to her duties as a police officer in June, 1990, the plaintiff refused, requesting instead that the defendant assign her to “light duty.” Furthermore, the plaintiff stated that she regarded herself as permanently and totally disabled at a disciplinary hearing conducted by the board. Having claimed previously that she was unable to perform the duties of a police officer, the plaintiff cannot now successfully claim that she is capable of performing the essential functions of the job. See August v. Offices Unlimited, Inc., 981 F.2d 576, 584 (1st Cir. 1992) (concluding that plaintiff cannot establish that he is qualified handicapped person after claiming that he was totally disabled). Because we have concluded that the plaintiff has no reasonable expectation of demonstrating that she is a qualified handicapped person, we need not further address the issue whether the plaintiff’s request for “light duty” would be a reasonable accommodation, nor need we further address whether the plaintiff has satisfied the other required elements of a prima facie case. B. Gender discrimination. The plaintiff argues next that the motion judge erred in granting the defendant’s motion for summary judgment on the plaintiff’s gender discriminatian claims pursuant to G. L. c. 151B (1992 ed.) and 42 U.S.C. § 2000e-2(a)(l) (1988). There was no error. Once again, we note that the plaintiff has the initial burden of establishing a prima facie case of gender discrimination pursuant to G. L. c. 151B. See Sarni Original Dry Cleaners, Inc. v. Cooke, supra at 614-615; Smith College v. Massachusetts Comm’n Against Discrimination, supra at 229. In order to establish a prima facie case of gender discrimination resulting in the termination of employment, the plaintiff must establish that (1) she is a member of a protected group; (2) she was capable of performing the job at an acceptable level; (3) she was terminated; and (4) her employer sought a replacement with similar qualifications. See White v. University of Mass. at Boston, 410 Mass. 553, 557 (1991). See also Wheelock College v. Massachusetts Comm’n Against Discrimination, supra at 135 n.5, citing McDonnell Douglas Corp. v. Green, supra at 802 n.13 (stating that facts necessary to establish prima facie case of discrimination will vary depending on situation). Thus, to avoid a grant of summary judgment against her on the G. L. c. 151B claim, the plaintiff must establish that she has a reasonable expectation of proving each element of a prima facie case of gender discrimination. See Kourouvacilis v. General Motors Corp., supra at 716. As the only woman police officer on a police force at the time of her employment comprised of more than thirty individuals, we shall assume without deciding, that the plaintiff is a member of a protected group. In addition, it is undisputed that the board terminated the plaintiff from her position as a police officer. Nevertheless, it is clear, in light of our discussion in part A above, that the plaintiff has no reasonable expectation of demonstrating that she would be capable of performing her duties as a police officer at an acceptable level. We decline to address, therefore, whether the plaintiff established the remaining elements of the prima facie case of gender discrimination. As a result, we are content that the plaintiff has no reasonable expectation of demonstrating that she would be capable of performing her duties as a police officer at an acceptable level in accordance with 42 U.S.C. § 2000e-2 and G. L. c.. 151B. 3. Equal protection claim. The plaintiff argues that, because the board accommodated the “handicaps” of two male police officers by giving them “light duty” but denied her request for a similar reasonable accommodation pursuant to G. L. c. 151B, the board denied the plaintiff her constitutional right to equal protection under the law on the basis of her sex in violation of 42 U.S.C. § 1983 (1988). The plaintiff claims, therefore, that the motion judge erred in granting the board’s motion for summary judgment. We disagree. Discrimination

Donald Blare vs. Husky Injection Molding Systems Boston, Inc., & others. Worcester. November 7, 1994. February 9, 1995. Present: Ljacos, C.J., Wilkins, Abrams, Nolan, Lynch, O’Connor, & Greaney, JJ. Practice, Civil, Summary judgment. Anti-Discrimination Law, Termination of employment, Age, Prima facie case, Burden of proof. Employment, Discrimination, Termination. Discussion of the three-stage order of proof in discrimination cases as set forth by the United States Supreme Court under the Federal antidiscrimination provisions of Title VII, which this court has looked to in considering employment discrimination cases brought under G. L. c. 151B. [440-443] This, court stated that, in employment discrimination cases brought under G. L. c. 15IB, the three-stage order of proof to be followed is as set forth in Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 134-136 (1976), and not as set forth in St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993), which governs Federal antidiscrimination claims. [444-446] The record on summary judgment of an employment discrimination claim under G. L. c. 151B was sufficient to raise a genuine issue of material fact as to whether the defendants discriminated against the plaintiff on the basis of age, where the plaintiff had established a prima facie case, the defendants had produced a nondiscriminatory reason for its action, and the plaintiff then produced evidence sufficient to support a jury verdict that it was more likely than not that the articulated reason was a pretext: proof of direct discrimination was not required. [446-447] Civil action commenced in the Superior Court Department on December 24, 1992. The case was heard by Charles J. Hely, J., on a motion for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Harvey A. Schwartz for the plaintiff. Rosemary J. Nevins for the defendants. John A. Gauvin and Allan Robinson. Abrams, J. At issue is whether the Superior Court judge applied the appropriate standard in allowing the defendants’ motions for summary judgment in a case alleging age discrimination under G. L. c. 151B (1992 ed.), and G. L. c. 93, § 103 (1992 ed.). For the reasons stated in this opinion, we conclude that the defendants’ motions for summary judgment should not have been allowed. We reverse and remand for further proceedings. 1. Facts. Reviewing the materials submitted for the summary judgment motion in the light most favorable to the nonmoving party (Blare), Wheatley v. American Tel. & Tel. Co., 418 Mass. 394, 396 (1994); White v. University of Mass. at Boston, 410 Mass. 553, 557 (1991), we recite the following facts. The plaintiff was employed by Husky as a machine operator from 1984 until April, 1992. At the time he was terminated, plaintiff was fifty-seven years old. From 1984 until 1992, the plaintiffs file was free of disciplinary notices. The plaintiff does not dispute that his supervisor submitted formal disciplinary notices against him during the four months preceding his termination (January 1, 1992, until April, 1992). Rather, the plaintiff presented evidence that workers not within the protected age category who had similar disciplinary records were not terminated. To further support his contention that age, and not the disciplinary notices, were the basis of his termination, the plaintiff alleged that his supervisor asked on at least one occasion, “Are you getting too [sic] old that you can’t handle two machines?” The plaintiff’s affidavit further alleged that the supervisor told him that few people retired from Husky. On April 27, 1992, the plaintiff was terminated and younger employees assumed his duties. The defendants filed motions for summary judgment on the ground that in admitting the notices the plaintiff failed to present evidence tending to show that Husky’s explanation that its decision based on the notices was a pretext. The judge ordered summary judgment be entered for the employer on the ground that the record was devoid of evidence “to dispute the basic accuracy of the four documented disciplinary incidents of quality errors and low productivity in the three months between January 20 and the April 27 termination.” We allowed the plaintiff’s application for direct appellate review. We now reverse and remand for further proceedings. 2. Summary judgment standard. Summary judgment is a disfavored remedy in the context of discrimination cases based on disparate treatment. Brunner v. Stone & Webster Eng’g Corp., 413 Mass. 698, 705 (1992) (“where motive, intent, or other state of mind questions are at issue, summary judgment is often inappropriate”), quoting Flesner v. Technical Communication Corp., 410 Mass. 805, 809 (1991), because the ultimate issue of discriminatory intent is a factual question, Anderson v. Bessemer City, 470 U.S. 564, 572-573 (1985) (issue of intent in Federal discrimination cases is a question of fact). The ultimate question of the defendants’ state of mind is elusive and rarely is established by other than circumstantial evidence, Wheelock College v. Massa chusetts Comm’n Against Discrimination, 371 Mass. 130, 137 (1976), which requires the jury to weigh the credibility of conflicting explanations of the adverse hiring decision. However, summary judgment is not always inappropriate in discrimination cases. Where a defendant’s motion for summary judgment demonstrates that the plaintiffs evidence of intent, motive, or state of mind is insufficient to support a judgment in plaintiffs favor, we have upheld summary judgment in favor of defendants. See Brunner, supra at 705 (summary judgment for defendant where plaintiff failed to offer evidence sufficient to carry burden of persuasion on employer’s discriminatory motive); McKenzie v. Brigham & Women’s Hosp., 405 Mass. 432, 437-438 (1989) (summary judgment for defendant where plaintiff offered no admissible evidence that would carry burden of persuasion on intent at trial); Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 770 (1986) (summary judgment for defendant where plaintiff did not offer evidence sufficient to carry burden of persuasion on employer’s discriminatory motive at trial). 3. Three-stage order of proof in discrimination cases. General Laws c. 15IB, § 4 (1992 ed.), provides in relevant part: “It shall be an unlawful practice: ... 1B. For an employer in the private sector, by himself or his agent, because of the age of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual, or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.” Section 1 (8) of G. L. c. 151B (1992 ed.) provides that “[t]he term ‘age’ unless a different meaning clearly appears from the context, includes any duration of time since an individual’s birth of greater than forty years.” In applying Massachusetts’ antidiscrimination statute, it has been our practice to follow the three-stage order of proof set forth by the United States Supreme Court under the Federal antidiscrimination provisions of Title VII. See Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 134-136 (1976), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); White v. University of Mass. at Boston, 410 Mass. 553, 557 (1991). Our holding in College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 163 (1987), stated that in interpreting G. L. c. 151B, “we may look to the interpretations of . . . the . . . Federal statute; we are not, however, bound by interpretations of the Federal statute in construing our own State statute.” See also Lynn Teachers Union, Local 1037 v. Massachusetts Comm’n Against Discrimination, 406 Mass. 515, 521-522 n.7 (1990). Because the trial judge ruled that the plaintiff failed to “dispute the basic accuracy” of the disciplinary notices, the issue in this case is what evidence the plaintiff is required to produce at the third stage in the order of proof in discrimination cases to clear the summary judgment hurdle. It is useful to review each stage in the order of proof before reaching this issue. In the first stage, the plaintiff has the burden to show by a preponderance of the evidence a prima facie case of discrimination. Since our decision in Wheelock College, supra, a plaintiff carries the burden of a prima facie case of discrimination with evidence that: (1) he is a member of a class protected by G. L. c. 15IB; (2) he performed his job at an acceptable level; (3) he was terminated; and (4) his employer sought to fill the plaintiff’s position by hiring another individual with qualifications similar to the plaintiffs. See also White, supra at 557. We noted in Wheelock College, supra at 135 n.5, that the elements of the plaintiffs initial burden may vary depending on the specific facts of a case. The prima facie case “eliminates the most common nondiscriminatory reasons for the plaintiffs rejection,” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981), thereby creating a presumption of discrimination. In the second stage, the employer can rebut the presumption created by the prima facie case by articulating a legitimate, nondiscriminatory reason for its hiring decision. Wheelock College, supra at 136, quoting McDonnell Doug las Corp., supra. “[A]n employer must not only give a lawful reason or reasons for its employment decision but also must produce credible evidence to show that the reason or reasons advanced were the real reasons.” Wheelock College, supra at 138. This burden of production is not onerous. If the defendant fails to meet its burden, however, then the presumption created by the preponderance of evidence supporting a prima facie case entitles plaintiff to judgment. Once the defendant articulates a nondiscriminatory reason for the challenged hiring action, the proceedings have reached the third stage in the order of proof. What the plaintiff must prove in the third stage of the order of proof has been controversial in Federal courts. Prior to the Supreme Court’s recent decision in St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993), the Federal circuit courts of appeals were divided into “pretext plus” and “pretext only” jurisdictions. Those in favor of the pretext plus position argue that the presumption of intentional discrimination created by the plaintiff’s prima facie case “bursts” when the defendant satisfies its second-stage burden of production, and requires a plaintiff in the third stage to prove that intentional discrimination was the basis of the hiring decision. The pretext only rule is similar to the pretext plus position in that the presumption created by a prima facie case drops from the case if the defendant satisfies its burden of production, but differs in the third stage in that a plaintiff who has established a prima facie case and persuaded the trier of fact that the employer’s articulated justification is not true but a pretext, is entitled to judgment. Massachusetts is a pretext only jurisdiction. See Wheelock College, supra at 138 (“if the employee has proved a prima facie case . . . and the employer gives an explanation for a hiring decision which has no reasonable support in the evidence or is wholly disbelieved (and hence is transparently a pretext), the employee should prevail”); Brunner v. Stone & Webster Eng’g Corp., 413 Mass. 698, 700 (1992) (“[i]f a plaintiff establishes a prima facie case, but the defendant [employer] answers it by advancing lawful grounds for the action taken and produces evidence of underlying facts in support thereof, the plaintiff, in order to prevail, must persuade the fact finder by a fair preponderance of the evidence that the defendant’s asserted reasons were not the real reasons for the action”). In St. Mary’s Honor Center v. Hicks, supra, the Supreme Court addressed the split between Federal circuit courts as to the third stage. A majority of the Supreme Court held that a plaintiff who reaches the third stage is not entitled to an inference of discrimination on a showing of pretext, but rather must prove that the hiring action was actually motivated by discrimination: “Title VII does not award damages against employers who cannot prove a nondiscriminatory reason for adverse employment action, but only against employers who are proven to have taken adverse employment action by reason of [a protected category]. That the employer’s proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff’s proffered reason . . . is correct.” Hicks, supra at 523-524. The dissent reasoned that a showing of pretext entitles the plaintiff to a determination of discrimination. Otherwise, “under the majority’s scheme, a victim of discrimination lacking direct evidence will now be saddled with the tremendous disadvantage of having to confront, not the defined task of proving the employer’s stated reasons to be false, but the amorphous requirement of disproving all possible nondiscriminatory reasons that a factfinder might find lurking in the record.” Hicks, supra at 534-535 (Sauter, J., dissenting). We think the better policy is to remain with our own precedent that, once a plaintiff has established a prima facie case and further shows either that the employer’s articulated reasons are a pretext or by direct evidence that the actual motivation was discrimination, the plaintiff is entitled to recovery for illegal discrimination under G. L. c. 151B. Wheelock College, supra at 138. Brunner, supra at 700. With respect to summary judgment, it follows that, if a plaintiff has produced evidence sufficient to support a prima facie case of discrimination, and has further offered evidence sufficient to support a determination either that the employer’s reason was a pretext or that the actual reason for the adverse hiring decision was discrimination, summary judgment for a defendant is inappropriate. The ultimate issue of discrimination, raised by the plaintiff’s and defendants’ conflicting evidence as to the defendants’ motive, is not for a court to decide on the basis of affidavits, but is for the fact finder after weighing the circumstantial evidence and assessing the credibility of the witnesses.. The plaintiff bears the burden of persuasion on the ultimate issue of discrimination. Trustees of Forbes Library v. Labor Relations Comm’n, 384 Mass. 559, 566 (1981). Although the three-stage order of proof “lightens the employee’s burden” by requiring the employer to provide information at the second stage which “narrows the field of possible lawful reasons” for its decision, it does not go so far as to shift the burden of persuasion to the defendants. Id. “Thus, if the evidence is in balance, the employer must prevail.” Id. Because “smoking gun” evidence is rare, Wheelock College, supra at 137, the plaintiff may, and more often than not must, carry his burden of persuasion with circumstantial evidence that convinces the fact finder that the proffered explanation is not credible. The plaintiff prevails on a showing of pretext because “we know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting. Thus, when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer’s actions, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration . . .” (emphasis in original). Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978). See Wheelock College, supra at 138. Combined with establishment of a prima facie case by a preponderance of the evidence, a showing of pretext eliminates any legitimate explanation for the adverse hiring decision and warrants a determination that the plaintiff was the victim of unlawful discrimination. The plaintiff need not conclusively exclude all other possible explanations for the decision and prove intent beyond a reasonable doubt. At the third stage in our order of proof, if the fact finder concludes that the plaintiff has proved that the employer’s reasons are a pretext, then the plaintiff prevails. If the fact finder concludes that the plaintiff did not prove pretext then the defendant prevails. Direct proof of discrimination is not required. 4. Sufficiency of the evidence. The record is sufficient to support a prima facie case. Donald Blare was born on October 26, 1934, and was fifty-seven years old at the time he was terminated from Husky. The periodic reviews in the plaintiff’s file for the seven years preceding his first written warning indicate that he consistently and conscientiously performed his job. Finally, after the plaintiff was terminated Husky delegated his duties to various other employees who were not within the protected age category. In addition, the employer met its burden of production by articulating that its legitimate, nondiscriminatory reason for terminating Blare’s employment was poor performance as documented by the written notices for quality and attendance infractions against Blare. Husky satisfied its burden by producing Blare’s disciplinary file as its nondiscriminatory reason for its decision to terminate Blare. Blare then had to produce evidence sufficient to support a jury verdict that it was more likely than not that the articulated reason was pretext for actual discrimination. “[Ajbsent direct proof of [age] discrimination, evidence which may be relevant to the plaintiff’s showing of pretext may include application of a certain criterion to employees [not within the protected category]; the employer’s general practice and policies concerning employment of [those within the protected category]; and the employer’s treatment of the plaintiff during [his] employment.” Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 767 (1986). We think that, in addition to the plaintiffs prima facie evidence, the three remarks made by Blare’s supervisor regarding the ability of Blare to work considering his age, and the evidence that other workers not in the protected category who committed similar errors were not terminated was sufficient to raise a genuine issue of material fact as to whether the defendants discriminated against the plaintiff on the basis of his age. Therefore, summary judgment in favor of the defendants was error. We reverse and remand the case for further proceedings. So ordered. The plaintiff filed a complaint with the Massachusetts Commission Against Discrimination alleging age discrimination in his termination by the defendants. The plaintiff withdrew the complaint and thereafter he filed this complaint in the Superior Court. General Laws c. 151B, § 9 (1992 ed.), provides, in relevant part: “Any person claiming to be aggrieved by a practice made unlawful under this chapter . . . may, at the expiration of ninety days after the filing of a complaint with the commission, . . . but not later than three years after the alleged unlawful practice occurred, bring a civil action for damages or injunctive relief or both in the superior . . . court for the county in which the alleged unlawful practice occurred .... The petitioner shall notify the commission of the filing of the action, and any complaint before the commission shall then be dismissed without prejudice, and the petitioner shall be barred from subsequently bringing a complaint on the same matter before the commission.” This is a disparate treatment case not a disparate impact case. See, e.g., Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 384-385 (1993); Wheelock College, supra. Compare, e.g., Coons, Proving Disparate Treatment After St. Mary’s Honor Center v. Hicks: Is Anything Left

DOLAN v CONTINENTAL AIRLINES Docket No. 149512. Submitted April 12, 1994, at Detroit. Decided January 17, 1995, at 9:15 a.m. Leave to appeal sought. Sue Ann Dolan brought an action in the Wayne Circuit Court against Continental Airlines, alleging violation of the Whistle-blowers’ Protection Act (wpa), MCL 15.361 et seq.; MSA 17.428(1) et seq., breach of contract, and a public policy tort claim as a result of the termination of the plaintiff’s employment with the defendant after she, without the employer’s permission, allegedly contacted the United States Drug Enforcement Administration with information regarding suspected drug traffickers and terrorists after her supervisor posted a notice requiring all employees first to receive permission to make such contacts. The court, William J. Giovan, J., granted the defendant’s motions to dismiss the claims. The plaintiff appealed. The Court of Appeals held: The circuit court’s grant of the defendant’s motions to dismiss the plaintiff’s claims is affirmed. Taylor, J., in an opinion with which R. D. Gotham, J., concurred in the result only, stated: 1. In order for the wpa to apply, the violation or suspected violation must be committed in the course of doing business. The wpa does not apply to this case because the failure to report or to be allowed to report suspected drug traffickers or terrorists is not itself a violation of the law and the defendant’s refusal to allow employees to report to the dea independently the information that the plaintiff sought to report did not constitute criminally irresponsible behavior on the part of the defendant. 2. The plaintiff’s public policy tort claim is not preempted by the wpa. However, the plaintiff did not state a valid public policy tort claim. 3. The trial court properly dismissed the breach of contract claim. The plaintiff was an at-will employee with no legitimate expectation of termination only for just cause. Shepherd, P.J., did not participate. Cunningham & Associates (by Douglas C. Cunningham), for the plaintiff. Miller, Canñeld, Paddock & Stone (by Leonard D. Givens and Megan P. Norris), for the defendant. Before: Shepherd, P.J., and Taylor and R. D. Gotham, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Taylor, J. Plaintiff appeals as of right a circuit court order granting defendant’s renewed motion to dismiss plaintiff’s first amended complaint. We affirm. Plaintiff worked for defendant as an agent in its Capitol City Airport hub. In early 1991, defendant informed plaintiff and her coemployees to be aware of persons purchasing tickets who fit certain "profiles” related to drug trafficking or terrorist activities. At the time, there were increased concerns about security measures because of the Persian Gulf Crisis. Relying on these profiles, on two separate occasions plaintiff reported persons to airport security, resulting in the arrest of these individuals. The United States Drug Enforcement Administration (dea) advised plaintiff that because of her tips she would receive a monetary reward. Because of concerns about overzealous reporting and the,unnecessary embarrassment of customers, plaintiff’s supervisor, Gordy Sullivan, posted a notice directing defendant’s employees not to call the dea without first clearing it with him. After the notice was posted, a dispute developed regarding whether plaintiff directly contacted the dea. She asserted that she did not, or, if she did, it was about the reward money and not in violation of Sullivan’s notice. Plaintiff’s employment with defendant was then terminated. Plaintiff filed her original complaint asserting violation of the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seq.; MSA 17.428(1) et seq., and breach of contract. The circuit court granted defendant’s motion to dismiss the wpa claim, but granted plaintiff leave to amend her complaint in order to add a public policy tort claim. After plaintiff filed her amended complaint, defendant filed a renewed motion to dismiss both the breach of contract claim and the public policy tort claim. At that time, plaintiff also filed a motion requesting relief from the court’s earlier order dismissing her wpa claim. The court consolidated these matters, granted defendant’s motion to dismiss the breach of contract and public policy tort claims, and denied plaintiff’s motion for relief from the court’s original order that dismissed her wpa claim. Plaintiff argues that the trial court erred in dismissing her wpa claim because she has stated a prima facie case under the wpa. To state a prima facie claim under the wpa, a plaintiff must establish (1) that plaintiff was engaged in protected activities as defined by the act, (2) that plaintiff was subsequently discharged, and (3) that a causal connection existed between the protected activity and the discharge. [Tyrna v Adamo, Inc, 159 Mich App 592, 601; 407 NW2d 47 (1987).] Plaintiif asserts that, even after defendant’s notice, any telephone call to the dea to report profile information on customers constituted protected activity. The fundamental question raised in this case is whether the wpa was intended to protect employees who report customers meeting a profile of terrorists or drug traffickers. That is, third parties whose violations, if any, have no connection to the business. In Dudewicz v Norris Schmid, Inc, 443 Mich 68; 503 NW2d 645 (1993), the Supreme Court held that the wpa was intended to protect employees who report violations of law arising out of company business regardless of whether the criminal actor is an employer or employee. However, the Court noted that its holding did not begin to "test the outer limits of this rather broad statute.” Id. at 77. The case before us does test the outer limits of wpa coverage. In Dudewicz, the plaintiff filed assault and battery charges against a fellow employee. The employer told the plaintiff to drop the charges and the plaintiffs employment was terminated when he refused. In concluding that the wpa afforded the plaintiff protection, the Supreme Court explained that the Legislature intended the act to protect "employees who report violations of law by either their employers or fellow employees.” Id. at 75. With regard to whether the wpa extends coverage to employees who report violations by third parties, the Court suggestively stated that "a strictly literal interpretation of the statute without an analysis of legislative intent arguably could lead to an interpretation that would bar discharge of an employee for reporting a crime by anyone under any circumstances.” Id. at 77. Yet, because it was possible to do so, the Supreme Court resolved Dudewicz without addressing the outer limits of the wpa’s reach. In her dissent in Dudewicz, Justice Boyle indicated that she agreed with the majority that the purpose of the act is "both to encourage employees to assist in law enforcement and to protect those employees who engage in whistleblowing activities.” Id. at 83 (Boyle, J., dissenting). However, she continued by indicating that this observation [of the majority] fails to take account of a significant focus of the statute noted in the bill analyses. A whistleblowing employee alerts the public to the employer’s, or a co-worker’s, "corruption or criminally irresponsible behavior in the conduct of government or large business.” [Id] She summarized, saying: In other words, where the conduct of business itself violates a law, statute, or regulation, an employee’s report of that illegal conduct is protected activity. [Id.] In Justice Boyle’s view, when the employer in Dudewicz fired the plaintiff because he refused to drop the assault and battery charge against a coemployee, the plaintiff was not reporting illegal conduct on the part of the business, and thus, he should have had no wpa protection. I believe that the majority, had it gone that far in its analysis, would have agreed with Justice Boyle’s elaboration of the wpa’s focus if not her ultimate conclusion. My position is supported by the Dudewicz majority’s conclusion that states: "The wpa applies to an employee who reports a violation of a law arising out of a dispute over the handling of company business and occurring. during business hours.” Id. at 80. Had the Dudewicz majority utilized Justice Boyle’s approach, I believe it would have found that the defendant, by discharging the plaintiff for reporting criminal activity, was placing the business in the posture of being an accessory after the fact to the assaultive behavior of the assaulting employee. In doing so, the business was acting in a criminally irresponsible manner. Thus, in order for the wpa to apply, the violation or suspected violation must be committed in the course of doing business. In this case, plaintiff claims that she was discharged for reporting third parties who met a profile that would have placed those individuals in a pool of potential criminal actors. Plaintiff does not assert that her failure to make such a report, or to be allowed to make one, is itself a violation of law. Accordingly, defendant’s refusal to allow employees to report independently profile information did not constitute criminally irresponsible behavior on the part of the business, and thus, the wpa does not apply. Plaintiff also argues that the trial court erred in dismissing her public policy tort claim. A wpa claim and a public policy tort claim are mutually exclusive. Shuttleworth v Riverside Osteopathic Hosp, 191 Mich App 25; 477 NW2d 453 (1991). As the Court said in Dudewicz, supra at 80: A public policy claim is sustainable, .then, only where there also is not an applicable statutory prohibition against discharge in retaliation for the conduct at issue. As a result, because the wpa provides relief to Dudewicz for reporting his fellow employee’s illegal activity, his public policy claim is not sustainable. Given that the wpa affords no protection under the circumstances, plaintiff’s public policy tort claim is not preempted by the wpa. It does not necessarily follow, however, that plaintiff has a viable public policy tort claim. Plaintiff argues that defendant terminated her employment because it believed she telephoned the dea regarding persons meeting profiles of suspected drug traffickers and terrorists. Taking this factual allegation as true, Michigan Ins Repair Co, Inc v Manufacturers Natl Bank of Detroit, 194 Mich App 668, 673; 487 NW2d 517 (1992), plaintiff has failed to state a valid public policy tort claim. The Supreme Court, in Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 695; 316 NW2d 710 (1982), has recognized three situations in which the grounds for discharge are so contrary to public policy as to be actionable even when the employment is at will. First, when the employee is discharged in violation of an explicit legislative statement prohibiting discharge of employees who act in accordance with a statutory right or duty. Second, when the employee is discharged for the failure or refusal to violate the law in the course of employment. Third, when the employee is discharged for exercising a right conferred by a well-established legislative enactment. Id. at 695-696. None of the above situations applies to the present case. Plaintiff does not cite any legislation explicitly prohibiting the termination of employees for reporting suspicious passengers to the dea. Plaintiff does not allege that she was discharged for failing or refusing to violate the law. Finally, plaintiff does not allege that she was discharged for exercising a statutorily conferred right. Therefore, plaintiff has no valid public policy tort claim. Finally, the trial court properly dismissed plaintiff’s breach of contract claim. Plaintiff argues that she was protected as a "just cause” employee because of statements in defendant’s human resources manual. The manual contained a progressive discipline system, but it also vested defendant with the unilateral option of an immediate termination. Accordingly, the manual could not create a legitimate expectation of termination only for just cause. Rood v General Dynamics Corp, 444 Mich 107, 140-142; 507 NW2d 591 (1993). This policy manual did not purport to be anything other than a disciplinary guideline and therefore the employer was able to treat plaintiff as an at-will employee and terminate her employment accordingly. Affirmed. R. D. Gotham, J., concurred in the result only. Shepherd, P.J., did not participate.

SMEESTER v PUB-N-GRUB, INC (ON REMAND) Docket No. 165882. Submitted July 7, 1993, at Lansing. Decided January 17, 1995, at 9:10 a.m. Leave to appeal sought. Pamela Smeester brought an action in the Delta Circuit Court against Pub-N-Grub, Inc., her employer, seeking compensatory damages for wage loss, loss of earning capacity, medical expenses, and intangible damages for injuries sustained during the course of her employment. The defendant did not carry worker’s compensation insurance. The court, Dean J. Shipman, J., granted partial summary disposition for both parties, denying the defendant’s affirmative defenses and limiting damages to compensation available under the Worker’s Disability Compensation Act. The Court of Appeals, Gims, P.J., and Michael J, Kelly and Gribbs, JJ., reversed, holding that both common-law damages and defenses not abolished by statute are available in a civil action, and finding that the trial court erred in limiting both in such a manner that the action became a duplicate of a worker’s compensation proceeding. 192 Mich App 224 (1991). The Supreme Court vacated the judgment of the Court of Appeals and remanded for a determination by the Court of Appeals "whether, in a cause of action brought pursuant to MCL 418.641(2); MSA 17.237(641X2), an employee may recover damages without first having to show the negligence of the employer.” The Court further ordered that the Court of Appeals, if the record is sufficient, "decide the standard of liability, the defenses available, and the scope of recovery.” 442 Mich 404, 408 (1993). On remand, the Court of Appeals held: 1. A common-law action brought pursuant to § 641(2) does not act as an election of remedies; rather, § 641(2) imposes common-law liability in addition to, not as a substitute for, the benefits recoverable under the Worker’s Disability Compensation Act. 2. A common-law action brought pursuant to § 641(2) requires proof that the employer was in some respect negligent. 3. An employer in a common-law action for damages brought by an employee pursuant to § 641(2) may not raise as a defense the negligence of the employee, except to the extent that the employee’s negligence is wilful. References Am Jur 2d, Workers’ Compensation §§ 52, 66, 108. See ALR Index under Workers’ Compensation. 4. An employee bringing a common-law action pursuant to § 641(2) is not limited to recovering as damages only those amounts that are payable as benefits under the Worker’s Disability Compensation Act. Reversed and remanded. Worker’s Compensation — Employer Tort Liability — Negligence — Defenses — Damages. The common-law action of an employee against an employer permitted under the Worker’s Disability Compensation Act where the employer is not insured pursuant to the act does not act as an election of remedies, but rather imposes common-law liability in addition to, not as a substitute for, worker’s compensation benefits; in such a common-law action, negligence is an element of the employee’s cause of action against the employer, the employee’s negligence is a defense to the action only to the extent that the employee’s negligence is wilful, and the damages recoverable by the employee are not limited to that which is payable as benefits under the Worker’s Disability Compensation Act (MCL 418.641[2]; MSA 17.237[641][2]). Green, Renner, Weisse, Rettig, Rademacher & Clark, P.C. (by Richard C. Clark), for the plaintiff. Stupak & Bergman, P.C. (by Frank A. Stupak), for the defendant. ON REMAND Before: Gribbs, P.J., and Michael J. Kelly and Griffin, JJ. Gribbs, P.J. Previously, this Court held that both common-law damages and defenses not abolished by statute were available in a civil action under § 641(2) of the Worker’s Disability Compensation Act (wdca), MCL 418.641(2); MSA 17.237(641)(2), when an employee sues an employer for an injury such that, had the employer been insured as required by §§ 171 and 611 of the wdca, MCL 418.171, 418.611; MSA 17.237(171), 17.237(611), suit would be prohibited by the exclusive remedy provision of § 131 of the wdca, MCL 418.131; MSA 17.237(131). Smeester v Pub-N-Grub, Inc, 192 Mich App 224, 480 NW2d 329 (1991). The Supreme Court, however, found our opinion unclear and subject to conflicting interpretation and, accordingly, remanded for a determination "whether, in a cause of action brought pursuant to MCL 418.641(2); MSA 17.237(641X2), an employee may recover damages without first having to show the negligence of the employer.” The Court further ordered that, if this Court finds the record sufficient to make such determination, we are to "decide the standard of liability, the defenses available, and the scope of recovery.” If, however, the record is insufficient to that end, this Court is required to remand to the trial court for further development of the record. Smeester v Pub-N-Grub, Inc, 442 Mich 404, 408; 500 NW2d 742 (1993). Plaintiff, Pamela Smeester, was injured in the course of her employment at defendant, Pub-N-Grub, Inc., shortly after she was hired. When she submitted her medical bills to the employer, both parties discovered that defendant did not carry worker’s compensation insurance. Plaintiff then brought this civil action, seeking traditional tort damages for her injury pursuant to § 641(2) of the WDCA. The trial court granted plaintiffs motion in limine to disallow comparative negligence as an affirmative defense. Although no appeal was taken by defendant from that decision, the propriety' of that ruling appears to be one of the issues we are constrained by the Supreme Court’s order of remand to evaluate. The order that originally generated this appeal was one in which the trial court granted defendant’s motion to limit plaintiffs damages to what she otherwise could have recovered under the wdca. We granted leave to appeal and originally held that common-law damages are available in a civil action of this nature. We held that such an action is not duplicative of a worker’s compensation proceeding. By the terms of the Supreme Court’s order of remand, that is another issue we must reconsider. Two sections of the wdca apply to these problems. Section 641(2) provides: The employee of an employer who violates the provisions of section 171 or 611 shall be entitled to recover damages from the employer in a civil action because of an injury that arose out of and in the course of employment notwithstanding the provisions of section 131. The other directly applicable statutory provision is §141, MCL 418.141; MSA 17.237(141), which provides: In an action to recover damages for personal injury sustained by an employee in the course of his employment or for death resulting from personal injuries so sustained it shall not be a defense: (a) That the employee was negligent, unless it shall appear that such negligence was wilful. (b) That the injury was caused by the negligence of a fellow employee. (c) That the employee had assumed the risks inherent in or incidental to, or arising out of his employment, or arising from the failure of the employer to provide and maintain safe premises and suitable appliances. The wdca is remedial in nature and is to be construed liberally in a humanitarian manner in favor of injured employees. McGillis v Aida Engineering, Inc, 161 Mich App 370, 374; 410 NW2d 817 (1987). However, because § 641 appears to restore the employee’s common-law right to sue the employer, a cause of action otherwise eliminated by § 131, limitations on that common-law action will not be presumed lightly, and statutes will not be extended by implication to abrogate established rules of the common law. Hasty v Broughton, 133 Mich App 107, 113; 348 NW2d 299 (1984). Courts indulge a presumption that the Legislature is familiar with the rules of statutory construction and has drafted its enactments accordingly. People v Jones, 190 Mich App 509, 513; 476 NW2d 646 (1991). We note that § 641 does not, as did the corresponding provision in the original version of the Workmen’s Compensation Act, 1912 (1st Ex Sess) PA 10, part 6, § 1, declare that pursuit of such a common-law action constitutes an election of remedies. See Twork v Munising Paper Co, 275 Mich 174, 179; 266 NW 311 (1936). We hold that the wdca does not absolve an employer who is uninsured from nonetheless remaining liable under its provisions for statutory benefits. Section 641(1) delineates criminal sanctions and § 641(2) imposes common-law liability in addition to, but not as a substitute for, benefits recoverable under the WDCA. What, then, is the nature of this common-law action? As we previously held, such an action is one in tort, for which traditional tort damages, including those for emotional distress and loss of consortium, may be recovered. The common-law action is one in the nature of trespass on the case, in which the plaintiff must prove that the employer was in some respect negligent as a precondition to recovery. Viaene v Mikel, 349 Mich 533, 539; 84 NW2d 765 (1957); Brown v Standard Oil Co, 309 Mich 101; 14 NW2d 797 (1944); Williams v Sealander, 288 Mich 617; 286 NW 101 (1939); Erickson v Leach, 285 Mich 554, 558; 281 NW 324 (1938); Frost v Clement, 225 Mich 267, 269; 196 NW 324 (1923); Smith v Hyne, 208 Mich 334, 347; 175 NW 293 (1919); Lydman v De Haas, 185 Mich 128, 139; 151 NW 718 (1915). While the foregoing cases were decided before the enactment of § 641, that provision simply restores the common-law right of action abolished by § 131 under the described circumstances. Therefore, it is appropriate to turn to the common-law principles that obtained before the adoption of § 641 to determine the nature of the common-law action thus resurrected. Turning our attention to the question of comparative negligence, we note that Michigan’s appellate courts in some situations have extended comparative negligence so as to apply it to situations in which, before the adoption of comparative negligence in Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979), contributory negligence was no defense. Vining v Detroit, 162 Mich App 720, 724-728; 413 NW2d 486 (1987); Hardy v Monsanto Enviro-Chem Systems, Inc, 414 Mich 29, 38; 323 NW2d 270 (1982). Nonetheless, § 141(a) clearly precludes consideration of anything but the plaintiffs wilful negligence in defense of the common-law action restored in § 641(2). Section 141 likewise renders inapposite the doctrine of assumption of risk, in all its manifold forms. Thus, an employee who falls victim to unsafe working conditions that the employee was fully aware of, and the hazard of which the employee readily might have avoided in the exercise of due care, is within the doctrine of assumption of risk and foreclosed as a defense by § 141(c). Wulff v Bossler, 199 Mich 70; 165 NW 1048 (1917). Indeed, in effect, § 141 abolishes all or nearly all recognized common-law defenses. Erickson v Leach, supra. Nothing in the wdca purports to limit the damages recoverable in an action under § 641(2) in comparison with those otherwise available in a personal injury action sounding in tort. However, generally, it is abhorrent to the fundamental principles of the wdca to allow any form of double recovery. Stanley v Hinchliffe & Kenner, 395 Mich 645, 657; 238 NW2d 13 (1976). Accordingly, if, as in Viaene v Mikel, supra, an employee successfully has pursued and recovered benefits in a worker’s disability compensation proceeding, or been voluntarily awarded benefits, any such benefits must be subtracted from the recovery awarded by the trier of fact in a common-law action under § 641(2). See Mayhew v Berrien County Rd Comm, 414 Mich 399; 326 NW2d 366 (1982); Borchardt-Spicer v GAF Corp, 139 Mich App 658; 362 NW2d 728 (1984). Judgment then may be entered on the verdict thus adjusted. The circuit court erred in determining that an action such as the present one under § 641(2) essentially is duplicative of a worker’s compensation proceeding. There would be no point to pursuing such a common-law remedy, with its requirement that the plaintiff prove fault, when the same recovery could be had in a worker’s compensation proceeding without the necessity or risk of adducing proof of employer negligence. This common-law action is principally one for damages not otherwise recoverable within the worker’s compensation system, although, if the present plaintiff has not yet received such benefits, she may plead and prove such damages on trial of this case. Should she fail to prove negligence, however, she can revert to the administrative remedy, which is not preconditioned on proof of employer fault. Viaene v Mikel, supra. Accordingly, we hold: (1) negligence is an element of an employee’s cause of action against an employer under § 641(2); (2) an employer may not assert as a defense the negligence of the employee, unless that negligence is wilful, MCL 418*141; MSA 17.237(141); and (3) an employee’s damages are not limited to the worker’s compensation benefits available pursuant to the wdca. Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

BENJAMIN WHITE v. N.C. DEPARTMENT OF CORRECTION No. 9312SC862 (Filed 3 January 1995) 1. Public Officers and Employees § 41 (NCI4th)— decision by State Personnel Commission — timeliness Though the State Personnel Commission did not make its decision in this case within 90 days after receiving the official record, it did make its decision within 90 days of its next regularly scheduled meeting; therefore, the decision was timely, and the trial court properly refused to find that the decision was made on unlawful procedure. N.C.G.S. § 150B-44. Am Jnr 2d, Civil Service §§ 52 et seq. 2. Public Officers and Employees § 67 (NCI4th)— inability of petitioner to perform job responsibilities — sufficiency of evidence to support findings There was no merit to petitioner’s argument that the State Personnel Commission erred in finding that he was not able to perform all his duties as a correctional officer where correctional officers were required to rotate through all positions, and the physician who examined petitioner concluded that he could not perform all the duties listed in the job description for a correctional officer. Am Jur 2d, Civil Service §§ 52 et seq. 3. Handicapped Persons § 25 (NCI4th)— inability to perform duties of correctional officer — risk to self and others— petitioner not qualified handicapped person — accommodations not required of respondent Because petitioner could not perform the duties of the job of correctional officer as defined in the job description and petitioner’s condition could create an unreasonable risk to himself, his fellow correctional officers, other inmates, and the public at large, petitioner was not a “qualified handicapped person,” and respondent was under no duty to make accommodations for petitioner’s physical condition. N.C.G.S. §§ 168A-3(4), 168A-3(9)(a). Am Jur 2d, Job Discrimination §§ 111 et seq. Accommodation requirement under state legislation forbidding job discrimination on account of handicap. 76 ALR4th 310. What constitutes handicap under state legislation forbidding job discrimination on account of handicap. 82 ALR4th 26. Who is “qualified” handicapped person protected from employment discrimination under Rehabilitation Act of 1973 (29 USCS §§ 701 et seq.) and regulations promulgated thereunder. 80 ALR Fed. 830. 4. Public Officers and Employees § 67 (NCI4th)— State employee put on permanent leave without pay — suspension — just cause required Respondent’s placement of petitioner on permanent leave without pay amounted to a suspension under the State Personnel Act, and the case is remanded for a determination of whether such suspension was made for just cause. N.C.G.S. § 126-35. Am Jur 2d, Civil Service §§ 52 et seq. Appeal by petitioner from order entered 16 April 1993 by Judge Wiley F. Bowen in Cumberland County Superior Court. Heard in the Court of Appeals 21 April 1994. Petitioner, a former employee of respondent N.C. Department of Correction, filed a grievance with respondent alleging that he had been placed on leave without pay discriminatorily because he had a handicapping condition and because he had earlier filed a grievance concerning his work place. Following a contested case hearing, Administrative Law Judge Robert Reilly, Jr. made a recommended decision that petitioner be reinstated. The full State Personnel Commission (the Commission), however, rejected the ALJ’s recommended decision and affirmed respondent’s decision to place petitioner on leave without pay. Petitioner appealed this decision to the superior court. Following a hearing on the matter, Judge Bowen entered an order on 16 April 1993, affirming the Commission’s order. From this order, petitioner appeals. Reid, Lewis, Deese & Nance, by James R. Nance, Jr., for petitioner-appellant. Attorney General Michael F. Easley, by Assistant Attorney General Valerie L. Bateman, for respondent-appellee. McCRODDEN, Judge. Relying upon fifteen assignments of error, petitioner argues the trial court erred in (I) determining that the Commission’s decision was not made upon unlawful procedure, (II) finding that the Commission’s decision was supported by substantial competent evidence, and (III) determining that the Commission’s order was not affected by error of law. The facts are as follows. In June 1990, petitioner was employed by respondent as a correctional officer at Hoke Correctional Institution in McCain, North Carolina. For security reasons, that facility required all correctional officers to rotate among all of the custody positions. On 22 June 1990, petitioner alleged that he pulled his back while trying to lift a trap door in one of the facility’s guard towers, tower number 3. He requested that he not be assigned to work in that tower until the door was repaired. He subsequently requested not to be assigned to another tower which had a particularly long spiral staircase. On 29 June 1990, petitioner filed a written grievance after he was again assigned to work in tower number 3. In response to this, the Assistant Superintendent Wilford Shields met with petitioner on 3 July 1990. Shields informed petitioner that for the time being he would not be assigned to work in tower number 3, but that he would be required to undergo an examination by a medical specialist to determine whether he could continue to perform his duties as a correctional officer. Petitioner continued to work, and on 24 July 1990, he was instructed that he should not report to work until the evaluation of his back had been performed. Petitioner then began to use his accumulated vacation and sick leave. On 7 August 1990, petitioner filed a claim with the N.C. Industrial Commission for workers’ compensation benefits for the injury to his back allegedly sustained on 22 June 1990. However, respondent refused to accept liability for petitioner’s claim because petitioner had failed to notify respondent of his injury immediately or within 30 days of the injury. On 17 August 1990, Dr. J.N. Ellis, who had examined petitioner, wrote to respondent to report on petitioner’s physical status, stating: In my opinion, based on his past injury and his current problems with degenerative joint disease in the spine, I do not think that he could perform all the duties listed in the job description of a Correctional Officer and [in the] Criminal Justice physical requirements, especially in regard to lifting, carrying and dragging heavy objects, and pursuing foot-fleeing subjects.... I would agree that he should be restricted from lifting greater than 25 pounds and should not do strenuous physical activity. By 22 August 1990, petitioner had exhausted all of his vacation and sick leave, and respondent placed him on unpaid leave status. Dr. Ellis examined petitioner again and wrote a second letter to respondent stating that petitioner was not totally disabled and that he was “capable of maintaining a job that is not as strenuous as described in his job description.” In reviewing a trial court’s consideration of an agency’s final decision, our task is to determine whether the trial court properly applied the standard of review mandated by N.C. Gen. Stat. § 150B-51 (1991). Walker v. N.C. Dept. of Human Resources, 100 N.C. App. 498, 502, 397 S.E.2d 350, 353 (1990), disc. review denied, 328 N.C. 98, 402 S.E.2d 430 (1991). That statute provides that a reviewing court may reverse or modify an agency’s decision if: [T]he substantial rights of the petitioners may have been prejudiced because the agency’s findings, inferences, conclusions, or decisions are: (3) Made upon unlawful procedure; (4) Affected by other error of law; [or] (5) Unsupported by substantial evidence ... in view of the entire record as submitted. N.C.G.S. § 150B-51. The standard of review the trial court applies depends upon the issues presented on appeal. Brooks, Com’r of Labor v. Rebarco, Inc., 91 N.C. App. 459, 463, 372 S.E.2d 342, 344 (1988). When an appellant alleges that the agency made an error of law, the trial court must review the matter de novo-, however, when the issue is the sufficiency of the evidence to support the agency’s order, it applies the whole record test. Id. The standard of review for administrative decisions is the same in the Court of Appeals as in superior court. Teague v. Western Carolina University, 108 N.C. App. 689, 691, 424 S.E.2d 684, 686, disc. review denied, 333 N.C. 466, 427 S.E.2d 627 (1993). We do not defer to the superior court’s decision. Id., at 691-92, 424 S.E.2d at 686. I. Petitioner’s first argument, that the Commission’s decision was made upon unlawful procedure, implicates the de novo standard of review, and therefore allows us to substitute freely our judgment for that of the Commission. Nonetheless, we find that the Commission’s decision was not grounded upon unlawful procedure. Petitioner argues that the Commission rendered its decision outside the time allowed. An agency such as the Commission has 90 days from the day it receives the official record in a contested case from the Office of Administrative Hearings, or 90 days after its next regularly scheduled meeting, whichever is longer, to make a final decision in a case. N.C. Gen. Stat. § 150B-44 (1991). In this case, the Commission received the official record on 5 December 1991 and rendered its decision on 30 April 1991, more than 90 days after it received the record. However, the Commission’s next regularly scheduled meeting after 5 December 1991 was 4 February. Petitioner concedes that the decision was rendered within 90 days of the 4 February meeting. Based on this admission, we conclude that the Commission timely made its decision and the trial court properly refused to find that the decision was made on unlawful procedure. II. Petitioner next argues that certain of the Commission’s findings were not supported by substantial evidence. We disagree. In addressing this issue, we use the whole record test, which means that we must examine all the competent evidence, including that which contradicts the Commission’s findings, to determine if the Commission’s findings were supported by substantial evidence. Henderson v. N.C. Dept. of Human Resources, 91 N.C. App. 527, 530-31, 372 S.E.2d 887, 889-90 (1988). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Thompson v. Board of Education, 292 N.C. 406, 414, 233 S.E.2d 538, 544 (1977) (quoting Commissioner of Insurance v. Rating Bureau, 292 N.C. 70, 79, 231 S.E.2d 882, 888 (1977)). In applying the whole record test to this case, we are not allowed to replace the Commission’s judgment as between two reasonably conflicting views of the evidence. Id. at 410, 233 S.E.2d at 541. Petitioner argues that the Commission erred in finding that he was not able to perform all his duties both because he was able to work after his injury and because Dr. Ellis stated that he was not totally disabled and could perform some of the duties of a correctional officer. However, we find that the Commission’s finding was well supported. In light of the fact that correctional officers at Hoke were required to rotate through all positions, Dr. Ellis’ conclusion that petitioner could not perform all of the duties listed in the job description for a correctional officer, is certainly substantial evidence supporting the Commission’s finding. We find petitioner’s further assertion, that the Commission erred in finding that his handicap renders him not fit by definition to be a correctional officer, similarly meritless. Dr. Ellis’ opinion that respondent could not perform all of the duties of a correctional officer as listed in the job description adequately supports the Commission’s finding. III. In his next three arguments, petitioner alleges errors of law, again requiring us to review the issues de novo. Petitioner argues that the Commission misapplied the law in determining that the respondent did not owe petitioner a duty to make reasonable accommodations for petitioner’s condition. We disagree. When a “qualified handicapped person” requests that an accommodation be made for his handicapping condition, his employer must investigate whether there are reasonable accommodations that can be made and must make reasonable accommodations for the person’s condition. N.C. Gen. Stat. § 168A-4 (1987). Assuming without deciding that petitioner is a “handicapped person,” as that term is defined in N.C. Gen. Stat. § 168A-3(4) (1987), we conclude that petitioner is not a “qualified handicapped person.” That term means: With regard to employment, a handicapped person who can satisfactorily perform the duties of the job in question, with or without reasonable accommodation, (i) provided that the handicapped person shall not be held to standards of performance different from other employees similarly employed, and (ii) further provided that the handicapping condition does not create an unreasonable risk to the safety or health of the handicapped person, other employees, the employer’s customers, or the public. N.C.G.S. 168A-3(9)(a). The evidence demonstrates that the petitioner could not perform the duties of the job of correctional officer as defined in the job description. Furthermore, given the fact that the job of correctional officer entails the supervision of inmates, we believe that petitioner’s condition, which renders him unable to pursue foot-fleeing inmates or physically subdue them effectively, could create an unreasonable risk to himself, his fellow correctional officers, other inmates and the public at large. As petitioner was not a “qualified handicapped person,” we conclude that respondent was under no duty to make accommodations for petitioner’s physical condition. Next, petitioner argues that the Commission misinterpreted the workers’ compensation law in making its decision. The Commission found that “ [petitioner did not file a worker’s compensation claim about his alleged injury until August 7, 1990, even though departmental policy, about which he knew, required him to notify the agency immediately or, at the latest, within 30 days of his work-related injury.” Petitioner does not contend that he actually filed a claim within 30 days of his injury or that he did not know of the respondent’s policy concerning workers’ compensation claims. Rather, he claims that “[t]his finding adds nothing to the decision except to give the department an excuse as to why it didn’t give [petitioner] an accommodation.” We agree that this finding added nothing to the Commissions order but, having determined that respondent did not owe petitioner the duty to make accommodation for his condition, find that its inclusion was harmless. We reject these assignments of error. Finally, petitioner argues that the Commission erred in failing to conclude, as the AU had determined, that by placing petitioner on unpaid leave, respondent actually suspended him without cause. The Commission accepted the AU’s finding that petitioner was a permanent State employee subject to the State Personnel Act, N.C. Gen. Stat. §§ 126-1 to -88 (1993). However, the Commission refused to adopt each of the AU’s conclusions of law. In his first conclusion, the AU stated: The petitioner was a permanent State employee subject to the State Personnel Act. Involuntary placement on permanent leave without pay status for alleged inability to perform the duties of the job is the equivalent of being discharged, suspended and involuntarily separated for disciplinary reasons under GS 126-35. The respondent is required to establish just cause. The respondent failed to establish the required substantive just cause. Furthermore, the respondent failed to afford the petitioner the benefits of progressive warnings required by GS 126-35. It is arbitrary and capricious to deny the petitioner the opportunity to establish that he is able to perform the essential duties of a correctional officer despite his back injury. State agencies may not discharge or suspend a permanent State employee except for just cause. N.C.G.S. § 126-35. Before subjecting a State employee to such disciplinary action, the State shall furnish him with a written statement of the grounds for the action and of the employee’s appeal rights. Id. This section requires that a State employee be given three warnings before he may be terminated. Jones v. Dept. of Human Resources, 300 N.C. 687, 691, 268 S.E.2d 500, 502 (1980). It is uncontested that petitioner received no such warning. Thus, the question presented for our de novo review is: when respondent placed petitioner on leave without pay, was this the equivalent of suspension for disciplinary reasons within the meaning of N.C.G.S. § 126-35? We conclude that it was. Respondent asserts that leave without pay is not a sanction but a benefit offered to State employees. It is true that Subchapter IE of Title 25 of the North Carolina Administrative Code, which contains the regulation relating to leave without pay, is entitled “Employee Benefits.” It is also true that a State agency is required to reinstate an employee who takes leave without pay at his previous position or at one of like seniority, status and pay. N.C. Admin. Code tit. 25, r. IE. 1104 (January 1994). However, the leave without pay described in Subchapter IE is voluntary leave, initiated by the employee. See N.C. Admin. Code tit. 25, r. IE. 1103 (“The employee shall apply in writing to his supervisor for leave without pay.”). In this case, petitioner made no application for leave without pay. Instead, respondent placed him involuntarily on sick leave until his accumulated time elapsed, then required him to expend his accumulated vacation, and finally placed him on leave without pay. This was, in essence, a suspension, which could not be made without just cause. Neither the Commission nor the trial court made any findings relative to the issue of whether respondent suspended petitioner without just cause. Having concluded that the respondent’s placement of petitioner on permanent leave without pay amounted to a suspension under the State Personnel Act, we remand the case for a determination of whether such suspension was made for just cause. Remanded. Chief Judge ARNOLD and Judge GREENE concur. Opinion written and concurred in prior to 16 December 1994.

I. CARY NAILING, Appellee, v. UNC-CH, Appellant No. 9315SC1299 (Filed 20 December 1994) 1. Public Officers and Employees § 63 (NCI4th)— appeal from dismissal — failure to file petition — no jurisdiction of OAH The Office of Administrative Hearings did not have subject matter jurisdiction over petitioner’s appeal from her dismissal as an employee of UNC-CH under N.C.G.S. § 126-35 for lack of “just cause” or under N.C.G.S. § 126-36 since petitioner did not file a timely petition for a contested case hearing and thus did not follow respondent’s grievance procedure regarding the appeal from her dismissal, nor did she file a petition within 30 days after receipt of notice of the decision or action which triggered the right of appeal to commence a contested case hearing. Further, petitioner’s amendment of her prehearing statement in her original pending contested case hearing for removal of disciplinary warnings to include the issue of her termination was not equivalent to the filing of a petition as required under Article 3 of Chapter 150B to commence a contested case hearing in the OAH. Am Jur 2d, Civil Service §§ 52 et seq. Termination of public employment: right to hearing under due process clause of Fifth or Fourteenth Amendment — Supreme Court cases. 48 L. Ed. 2d 996. 2. Public Officers and Employees § 63 (NCI4th)— warnings not removed from personnel file — right of employee to appeal — status as former employee irrelevant . Petitioner had the right to appeal respondent’s action of not removing all the warnings from the personnel file and the decision that another warning could be put in place of one that was removed to the OAH, and petitioner’s status as a “former” State employee did not render her petition moot. N.C.G.S. § 126-25. Am Jur 2d, Civil Service §§ 52 et seq. Rights of state and municipal public employees in grievance proceedings. 46 ALR4th 912. On writ of certiorari to review order entered 2 August 1993 by Judge George R. Greene in Orange County Superior Court. Heard in the Court of Appeals 15 September 1994. Prior to this action, Petitioner I. Cary Nailing was an employee of Respondent University of North Carolina at Chapel Hill. On 13 April 1992, while still employed by respondent, petitioner filed a petition for a contested case hearing in the Office of Administrative Hearings (the “OAH”) alleging that she had received from respondent “a series of disciplinary warnings which were unjust and retaliatory.” The parties filed prehearing statements, and a hearing in this action was scheduled for January 1993. Thereafter, respondent notified petitioner that she had been terminated effective 28 September 1992, and petitioner attempted to amend her prehearing statement to include her termination as an issue for review. On 20 April 1993, Administrative Law Judge Becton entered a final decision finding that petitioner could not appeal her dismissal by attempting to amend her prehearing statement and that petitioner had failed to follow the proper procedure for appealing her dismissal. Judge Becton also found that since petitioner had been dismissed from employment, the issues involved in the contested' case regarding the warnings were moot. Based on these findings, Judge Becton dismissed petitioner’s petition for a contested case hearing. On 19 May 1993, petitioner filed a petition for judicial review in Orange County Superior Court. Respondent filed a motion to dismiss petitioner’s petition based on lack of subject matter jurisdiction.' On 2 August 1993, Judge George R. Greene filed an order finding that “[t]here was a continuing sequence of actions in this Contested Case[,]” the last being “the firing of [petitioner.” Further, Judge Greene found that “no earlier acts which were timely and properly contested could be ‘moot’ and no later continuing acts could be untimely nor [sic] improperly contested.” Based on these findings, Judge Greene remanded the contested case to the OAH “for a full hearing on all of the issues in this case . . . .” On 24 September 1993, respondent filed a petition for writ of certiorari with this Court, and on 13 October 1993, this Court granted respondent’s petition. Alan McSurely for petitioner-appellee. Attorney General Michael F. Easley, by Assistant Attorney General Barbara A. Shaw, for respondent-appellant. ORR, Judge. The issues raised by this appeal are whether the trial court erred in remanding this case to the OAH for a hearing on (1) whether respondent’s termination of petitioner violated petitioner’s substantive and procedural rights, and (2) the issues regarding respondent’s warnings to petitioner. Because we find that OAH lacked subject matter jurisdiction over petitioner’s case regarding her dismissal, we conclude that as to this issue, the trial court erred. On the issue of respondent’s warnings, however, we conclude that the trial court properly remanded this action for a hearing on whether the warnings should be removed from petitioner’s file. Prior to this action, petitioner was employed by respondent as a Medical Laboratory Technologist III in the Department of Pediatrics in the Cytogenetics Laboratory of respondent’s medical school. On 22 February 1991, petitioner received an oral warning regarding her conduct and work performance. Thereafter, on 6 March 1991, petitioner received a written warning concerning her work performance, which petitioner alleged was a result of her contacting the Human Resources Department “to ask for guidance about how to deal with the Oral Warning.” Subsequently, pursuant to respondent’s internal grievance procedure, petitioner filed a grievance regarding these warnings with her supervisor. Petitioner’s grievance was reviewed by the head of the Cytogenetics Laboratory and denied. Petitioner appealed the denial of her grievance to the Office of the Associate Vice Chancellor for Human Resources pursuant to Step 2 of respondent’s internal grievance procedure, and it was denied again. Petitioner then filed an appeal with the Office of the Associate Vice Chancellor for Human Resources to be heard by a panel of three Staff Grievance Committee members consisting of one faculty member and two staff employees appointed by the Chair of the Committee in accordance with Step 3 of the grievance procedure. Subsequently, on 19 September 1991, while her appeal was pending at Step 3, petitioner received two more written warnings, one warning regarding petitioner’s work performance and the other warning regarding petitioner’s unexcused absences from work. Petitioner’s grievance regarding these two warnings was denied at Step 1 and 2, and petitioner appealed to Step 3. The two grievances were consolidated at Step 3, and a hearing was held on these four warnings. Following the hearing, by letter dated 11 March 1992, Chancellor Hardin notified petitioner of his decision that the 22 February 1991 oral warning would be withdrawn; however, “ [i]f the supervisor chooses, a Report of Oral Warning for performance (the weekend rotation) and conduct (leaving work without permission) may be substituted.” Further, Chancellor Hardin notified petitioner that he agreed with the panel’s finding that the written warning of 6 March 1991 “was issued in retaliation for the earlier grievance” and informed petitioner that this warning would be withdrawn from petitioner’s file. Chancellor Hardin also notified petitioner that the 19 September 1991 warnings would remain in petitioner’s file. On 13 April 1992, petitioner filed a petition for a contested case hearing in the OAH for “[u]njust [discipline and violation of UNC-CH Rules.” Administrative Law Judge Becton entered an order directing the parties to each file a prehearing statement containing their positions with regard to the following: 1. The issues to be resolved, and the statutes, rules, and legal precedent involved; 2. A brief statement of the facts and reasons supporting the party’s position on each matter in dispute; 3. A list of proposed witnesses; 4. Whether you wish to pursue discovery. If so, the length of time required; 5. Requested location of hearing(s); 6. Estimated length of hearing; 7. If you do not have an attorney, your home and business addresses and telephone numbers; 8. The date by which you will be ready to have a hearing in this case; and 9. Other special matters. During the pendency of this action, by letter dated 29 September 1992, the Director of Cytogenetic Laboratory informed petitioner that she was terminated from her employment with respondent as of 28 September 1992 “for personal conduct reasons[.]” The letter stated that the decision to terminate petitioner’s employment was based on petitioner’s conduct on 23 September 1992 and 24 September 1992 which the letter described as constituting “verbal abuse,” “physical intimidation,” and “insubordination.” Specifically, the letter described petitioner’s conduct upon which her termination was based as follows: In September 1992, petitioner switched a “rush” case that was assigned to petitioner to Ms. Parker, a technologist who was out on sick leave, and assigned a routine case of Ms. Parker’s to petitioner. Upon finding out that petitioner had switched these cases, on 23 September 1992, the Laboratory Lead Technologist and petitioner’s direct supervisor approached petitioner about the switch. At first petitioner told these two supervisors that she had “initially made the switch because [she] had mistakenly picked up the wrong tube of patient cells and had prepared slides on Ms[.] Parker’s case . . . rather than [petitioner’s] own case.” Petitioner then assigned herself back to the previous rush case, which had almost been completed, and assigned another rush case of petitioner’s to Ms. Parker. At that time, one of the supervisors informed petitioner that a technologist out on sick leave could not be assigned a “rush” case, and petitioner “became progressively more hostile, more angry, and verbally abusive.” Petitioner raised her “assignment clip board over [her] head in a threating [sic] manner and screamed abusively at both of [the supervisors].” Thereafter, one supervisor left and the other supervisor “chose to stay in the room and talk with [petitioner] until she was sure that [petitioner] understood exactly what [her] instructions were concerning the patient assignments.” This supervisor “made it clear to [petitioner] that [she was] to start the rush case that [petitioner] had just reassigned to Ms. Parker] and at a minimum screen the case that day . . . .” On 24 September 1992, petitioner came to work and approached Ms. Parker, who was back from her sick leave, and “requested that she switch cases with [petitioner], accepting responsibility for . . . the rush case which was under discussion the day before, while [petitioner] took one of Ms[.] Parker’s more routine cases.” Further, the letter stated: You have the right to appeal this action through the University’s Dispute Resolution and Staff Grievance Procedure. A copy of the procedure is attached for your reference. You may contact the Counseling Service Department for assistance in using this procedure or, if eligible, you may file a Step 4 Appeal with the State Personnel Commission. Step 4 of the Staff Grievance Procedure states, “[i]f the Step 3 decision is unsatisfactory to the employee, the employee may appeal to Step 4, the State Personnel Commission, if eligible, according to State Personnel Commission rules.” ■ Petitioner initiated a Step 2 grievance of her dismissal as allowed by respondent’s internal grievance procedures. By letter dated 16 November 1992, respondent notified petitioner of the decision to uphold her dismissal and of the filing deadline for a Step 3 appeal. Petitioner did not, however, file a Step 3 appeal or file a petition for a contested case hearing in the OAH regarding her dismissal. Instead, petitioner moved to amend her prehearing statement in the contested case that was pending before Judge Becton in the OAH involving the four warnings to include the issue of her termination for review by the OAH. On appeal, respondent first contends that the OAH lacks subject matter jurisdiction to review petitioner’s dismissal because petitioner failed to properly file a petition for a contested case hearing in the OAH with regards to her dismissal. Petitioner is a former employee of the University of North Carolina at Chapel Hill. The University of North Carolina is expressly exempt from the administrative hearings provisions of the North Carolina Administrative Procedure Act (the “NCAPA”), see N.C. Gen. Stat. § 150B-1(f); thus, “under the plain meaning of the NCAPA, [petitioner] can be entitled to an administrative hearing to appeal [her] grievance to the OAH only by virtue of another statute.” Empire Power Co. v. N.C. Dep’t of Env’t, Health and Natural Resources, Div. of Envtl. Management, 337 N.C. 569, 579, 447 S.E.2d 768, 774 (1994). Chapter 126 of the North Carolina General Statutes gives State employees the right to an administrative hearing in the OAH for actions arising under Chapter 126. Specifically, N.C. Gen. Stat. § 126-37(a) provides, “[a]ppeals involving a disciplinary action, alleged discrimination, and any other contested case arising under this Chapter shall be conducted in the Office of Administrative Hearings as provided in Article 3 of Chapter 150B . . . .” In the present case, the only provisions under Chapter 126 that could possibly provide petitioner with an avenue of appeal from her dismissal to the OAH are N.C. Gen. Stat. §§ 126-35, 126-36. At the time of this action, N.C. Gen. Stat. § 126-35 stated, “[n]o permanent employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause.” Under N.C. Gen. Stat. § 126-36, [a]ny State employee or former State employee who has reason to believe that employment, promotion, training, or transfer was denied him or that demotion, layoff or termination of employment was forced upon him in retaliation for opposition to alleged discrimination or because of his age, sex, race, color, national origin, religion, creed, political affiliation, or handicapped [handicapping] condition as defined by G.S. 168A-3 . . . shall have the right to appeal directly to the State Personnel Commission. In order for the OAH to have jurisdiction over petitioner’s appeal pursuant to N.C. Gen. Stat. §§ 126-35, -36 however, petitioner is required to follow the statutory requirements outlined in Chapter 126 for commencing a contested case. See Lewis v. North Carolina Dep’t of Human Resources, 92 N.C. App. 737, 739, 375 S.E.2d 712, 714 (1989) (“The right to appeal to an administrative agency is granted by statute, and compliance with statutory provisions is necessary to sustain the appeal.”). N.C. Gen. Stat. § 126-37(a) requires that appeals under Chapter 126 involving a contested case be conducted as provided in Article 3 of Chapter 150B. Article 3 of Chapter 150B provides: A contested case shall be commenced bv filing a petition with the Office of Administrative Hearings .... The party who files the petition shall serve a copy of the petition on all other parties .... A party who files a petition shall file a certificate of service together with the petition. A petition shall be signed by a party or a representative of the party and, if filed by a party other than an agency, shall state facts tending to establish that the agency named as the respondent has deprived the petitioner of property, has ordered the petitioner to pay a fine or civil penalty, or has otherwise substantially prejudiced the petitioner’s rights and that the agency: (1) Exceeded its authority or jurisdiction;' (2) Acted erroneously; (3) Failed to use proper procedure; (4) Acted arbitrarily or capriciously; or (5) Failed to act as required by law or rule. A local government employee, applicant for employment, or former employee to whom Chapter 126 of the General Statutes applies may commence a contested case under this Article in the same manner as any other, petitioner. N.C. Gen. Stat. § 150B-23 (emphasis added). Further, N.C. Gen. Stat. § 126-37(a) provides “that no grievance may be appealed unless the employee has complied with G.S. 126-34” which, at the time of this action, stated, [a]ny permanent State employee having a grievance arising out of or due to his employment and who does not allege discrimination because of his age, sex, race, color, national origin, religion, creed, handicapping condition as defined by G.S. 168A-3, or political affiliation shall first discuss his problem or grievance with his supervisor and follow the grievance procedure established by his department or agency. N.C. Gen. Stat. § 126-34; See Batten v. N.C. Dep’t of Correction, 326 N.C. 338, 343, 389 S.E.2d 35, 38-39 (1990). In addition to these require-merits under Chapter 126, a petition for a contested case must be filed with the OAH “as provided in G.S. 150B-23(a) no later than 30 days after receipt of notice of the decision or action which triggers the right of appeal.” N.C. Gen. Stat. § 126-38. In the present case, it is undisputed that petitioner did not follow respondent’s grievance procedure regarding the appeal from her dismissal. Pursuant to N.C. Gen. Stat. §§ 126-37(a), -34, the OAH would not, therefore, have subject matter jurisdiction over petitioner’s appeal from her dismissal under N.C. Gen. Stat. § 126-35 for lack of “just cause” that does not allege discrimination. Thus, we turn to the issue of whether the OAH had jurisdiction over petitioner’s case involving alleged discrimination for her alleged handicapping condition pursuant to N.C. Gen. Stat. § 126-36. Under N.C. Gen. Stat. § 126-36, petitioner has an automatic right to appeal her dismissal to the Commission without following respondent’s internal grievance procedure. Petitioner is still, however, bound to follow the other requirements of Chapter 126 of filing a petition within thirty days after receipt of notice of “the decision or action which triggers the right of appeal” to commence a contested case in the OAH. With regard to petitioner’s receipt of notice of her dismissal, Judge Becton found: On September 29, 1992, the [Respondent sent a letter to the [petitioner notifying her of her dismissal from employment, effective September 28,1992, as a result of unacceptable personal conduct. The [Respondent hand-delivered a copy of the September 29, 1992 letter of termination to the [petitioner on October 6, 1992. Petitioner did not, however, file a petition for a contested case hearing in the OAH regarding her dismissal within thirty days from either 29 September 1992 or 6 October 1992. Instead, in October 1992, petitioner filed a motion to amend her prehearing statement to add the issue of whether respondent violated her substantive and procedural rights by terminating her employment and to add N.C.G.S. § 126-35 to the portion of the prehearing statement entitled “Statutes, Rules and Legal Precedents Involved.” As already discussed, petitioner could not proceed under N.C. Gen. Stat. § 126-35 for a “just cause” violation without first following respondent’s internal grievance procedure. Thereafter, in January, 1993, petitioner filed her second motion to amend her prehearing statement to add the issue of whether petitioner’s termination violated her substantive and procedural rights “including the right not to be discriminated against because of a handicapping condition” and to add N.C. Gen. Stat. § 126-36 to the section of the prehearing statement entitled “Statutes, Rules and Legal Precedents Involved.” Assuming arguendo that petitioner could properly amend her prehearing statement, we do not find such amendment equivalent to the filing of a petition as required under Article 3 of Chapter 150B to commence a contested case hearing in the OAH. In addition, we also find that this amendment was filed after the statutory thirty days. Because Chapter 1

RICE v ISI MANUFACTURING, INC Docket No. 143981. Submitted February 16, 1994, at Detroit. Decided December 5, 1994, at 9:00 a.m. Leave to appeal sought. Lawrence Rice brought a wrongful discharge action in the Ma-comb Circuit Court against ISI Manufacturing, Inc., alleging that his employment was terminable for just cause only and that there had not been just cause for the termination. The court, Deborah A. Servitto, J., entered a judgment for the plaintiff pursuant to a jury verdict, and denied motions by the defendant for summary disposition, a directed verdict, judgment notwithstanding the verdict, and a new trial. The defendant appealed. The Court of Appeals held: 1. Evidence consisting of a supervisor’s oral assurances that the plaintiff could return to his engineering position if a sales position did not work out and a written reprimand of the plaintiff by which he was informed that his performance would be reviewed monthly adequately supported the jury’s findings that the plaintiff should have been discharged for just cause only and that the defendant did not have just cause to terminate the plaintiff’s employment. 2. The trial court’s instructions to the jury were accurate and applicable to the case. 3. The jury’s award of damages was supported by the evidence and was not excessive. Affirmed. Michael J. Kelly, P.J., dissenting, stated that the trial court’s denial of the motions for summary disposition, a directed verdict, and judgment notwithstanding the verdict should be reversed because the supervisor’s statements to the plaintiff could not have led to an expectation of employment that was terminable for just cause only inasmuch as the statements were not made in response to an inquiry concerning when or how the plaintiff’s employment might be terminated or in response to articulated concerns by the plaintiff that he be terminated for just cause only and because the termination report and the written reprimand could not have led to an expectation of termination for just cause only inasmuch as the plaintiff did not know of the existence of the termination report until after discharge and the written reprimand concerned only the plaintiff and therefore could not have given rise to a general policy of termination for just cause only. References Am Jur 2d, Master and Servant § 32. Comment Note. — Validity and duration of contract purporting to be for permanent employment. 60 ALR3d 226. Master and Servant — Employment Contracts — Termination. Contracts for permanent employment are for an indefinite period and are presumptively construed to provide employment at will; the presumption may be overcome by proof of an express contract for a definite term or a provision forbidding discharge in the absence of just cause, or it may be overcome by proofs that permit a promise implied in fact of employment security. Mallon & McNealy, P.C. (by Connie Skinner McNealy), for the plaintiff. Kerr, Russell & Weber (by James R. Case and Janice A. Furioso), for the defendant. Before: Michael J. Kelly, P.J., and Brennan and B. L. Howard, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Brennan, J. Defendant appeals as of right from a jury verdict in favor of plaintiff and from orders denying its motions for summary disposition, a directed verdict, judgment notwithstanding the verdict, and a new trial. We affirm. A motion for summary disposition under MCR 2.116(0(10) tests the factual support for a claim. State Farm Fire & Casualty Co v Fisher, 192 Mich App 371, 374; 481 NW2d 743 (1991); Lepp v Cheboygan Area Schools, 190 Mich App 726, 730; 476 NW2d 506 (1991). When ruling on such a motion, the court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it and grant summary disposition if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. Marrero v McDonnell Douglas Capital Corp, 200 Mich App 438, 441; 505 NW2d 275 (1993); Kreager v State Farm Mutual Automobile Ins Co, 197 Mich App 577, 579; 496 NW2d 346 (1992). When deciding a motion for a directed verdict or judgment notwithstanding the verdict, the trial court must review the evidence in a light most favorable to the nonmoving party to determine whether reasonable minds could differ on an issue of fact. Teodorescu v Bushnell, Gage, Reizen & Byington (On Remand), 201 Mich App 260, 264; 506 NW2d 275 (1993); Clemens v Lesnek, 200 Mich App 456, 461; 505 NW2d 283 (1993). If reasonable jurors could differ, a motion for a directed verdict or judgment notwithstanding the verdict should not be granted. Id. at 461. We will not disturb the trial court’s decision unless there has been a clear abuse of discretion. Howard v Canteen Corp, 192 Mich App 427, 431; 481 NW2d 718 (1992). Defendant claims in this case that the trial court erred in denying its motions for summary disposition and a directed verdict because plaintiff was employed pursuant to an at-will employment contract. Contracts for permanent employment are for an indefinite period and are presumptively construed to provide employment at will. Rowe v Montgomery Ward & Co, Inc, 437 Mich 627, 636; 473 NW2d 268 (1991). This presumption, however, may be overcome by proof of an express contract for a definite term or a provision forbidding discharge in the absence of just cause, or it may be overcome by proofs that permit a promise implied in fact of employment security. Id. at 636-637. After reviewing the record in this case, we are convinced that the evidence presented, including the supervisor’s oral assurances that plaintiff could return to his engineering position if the sales position did not work out, was sufficient for the jury to find that plaintiff could not be discharged without just cause. We conclude, therefore, that the court did not err in denying defendant’s motion for summary disposition. Moreover, we believe that the trial court correctly denied defendant’s motions for a directed verdict and judgment notwithstanding the verdict. Defendant next contends that the trial court erred in denying its motion for a new trial. A motion for a new trial may be granted when the jury’s verdict was against the overwhelming weight of the evidence. The trial court’s decision with regard to the motion will not be reversed absent an abuse of discretion. Snell v UACC Midwest, Inc, 194 Mich App 511, 516; 487 NW2d 772 (1992). In light of evidence contained within the record, including the oral assurances by plaintiff’s supervisor and the written reprimand wherein plaintiff was informed that his performance would be reviewed monthly, we find no abuse of discretion on the part of the trial court. A jury could properly find that plaintiff could only be discharged by defendant with just cause and that in this case the defendant did not have just cause to discharge plaintiff. Defendant further contends that the court erred in denying its motions for judgment notwithstanding the verdict and a new trial because the verdict was based on erroneous instructions given by the trial court. We disagree. The determination whether an instruction is accurate and applicable to a case is in the sound discretion of the trial court. There is no error requiring reversal if, on balance, the theories and the applicable law were adequately and fairly presented to the jury. Wil liams v Coleman, 194 Mich App 606, 623; 488 NW2d 464 (1992). After considering the record, we are of the opinion that both sets of instructions were warranted under the circumstances of this case. Defendant also contends that the trial court erred in denying its motions for judgment notwithstanding the verdict and a new trial because the plaintiff failed to present a prima facie case on damages and the award was excessive. A trial court should deny a request for remittitur where the jury award is supported by the evidence. Clemens, supra at 464; Snell, supra at 517. We conclude that the jury’s award of damages was supported by the evidence and was not excessive. In addition, we believe that the trial court did not err in allowing plaintiff to argue the issue of future damages to the jury. Future damages are permissible in a case of this kind. Renny v Port Huron Hosp, 427 Mich 415, 439; 398 NW2d 327 (1986); Ritchie v Michigan Consolidated Gas Co, 163 Mich App 358, 374; 413 NW2d 796 (1987). Affirmed. B. L. Howard, J., concurred. Michael J. Kelly, P.J. (dissenting). I respectfully dissent. In support of the existence of a just-cause employment contract, plaintiff relies primarily on the statement by his supervisor that he could return to his old job if his new job did not work out. Plaintiff also relies on a statement to the effect that, as long as he continued to remain the kind of employee that he was, he would have a job. I do not think that these statements can be construed to establish a just-cause contract in light of their context and in light of the Supreme Court’s opinion in Rood v General Dynamics Corp, 444 Mich 107; 507 NW2d 591 (1993), consolidated with Schippers v SPX Corp. In Schippers, the plaintiff had consulted with his supervisors about job security before deciding whether to transfer to another division and was told by his employer that "unless something was really wrong, [he] would be there for retirement” and that "as long as [the defendant] had a truck, [he] would be the driver.” Id. at 122-123. The Court held that the plaintiff failed to present sufficient evidence to overcome the presumption of employment at will: Only by taking the statement completely out of context could a reasonable juror interpret them in the manner that Mr. Schippers asserts — as promises to terminate "only if something was really wrong,” i.e., for just cause. The record shows discussion concerning job security in the sense of HyLift’s resolve in maintaining its trucking function, but there is no evidence whatsoever that indicates that the parties even discussed job security in the sense of requiring just cause for Mr. Schipper’s termination. [Id. at 123-124.] The Court distinguished Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), where it found a factual basis for a just-cause employment contract. The plaintiff in Toussaint had attended several interviews before being hired by the defendant. At one of the interviews, the plaintiff specifically inquired about job security and was told that he would be with the company as long as he did his job. The Schippers Court noted: Unlike the facts of this case, both Mr. Toussaint’s inquiry and Mr. Schaedel’s response indicate a discussion concerning the likelihood of Mr. Toussaint being discharged. Here, the evidence indicates that Mr. Schippers’ only concern was losing his job as a result of Hy-Lift discontinuing its trucking function. Given that Mr. Schippers’ inquiries were restricted to this subject, his supervisors’ statements simply cannot be interpreted as assent to a contract providing for termination only for just cause. . . . Indeed, viewing the statements in context makes clear that the language referred to management’s intentions regarding the permanency of the trucking function at Hy-Lift and not to the sufficiency of the grounds required to terminate Mr. Schippers. [444 Mich 125.] In Rood, supra, the plaintiff confronted his supervisor after becoming concerned about his job security in light of a pending merger. The supervisor told him that "[his] job [was] fine, it’s secure.” Even under those circumstances, the Court held the evidence insufficient to support a just-cause employment relationship. Id. at 134. Similarly, in Rowe v Montgomery Ward & Co, Inc, 437 Mich 627, 642; 473 NW2d 268 (1991), the Supreme Court found insufficient evidence of a just-cause contract where the plaintiff was assured by her employer that "as long as [she] sold, [she] would have a job at Montgomery Ward.” Like the Court in Schippers, I do not see how a reasonable person could interpret defendant’s promise to return plaintiff to his old position as assent to a just-cause employment contract. Nor do I consider the other oral representations indicative of a clear intention to create such a contract. They were not made in response to an inquiry concerning when or how plaintiff’s employment might be terminated. Nor were they made in response to articulated concerns by plaintiff that he be terminated for just cause only. See Barber v SMH (US), Inc, 202 Mich App 366, 371; 509 NW2d 791 (1993). The focus of the conversations in which these statements arose was simply not specific enough to the topic of just-cause employment to warrant a finding that defendant clearly intended to override the at-will employment language in the employment application. I also find unpersuasive plaintiffs argument that the termination report, listing reasons for discharge, and the written reprimand, providing that plaintiff would be reviewed on a monthly basis, created a legitimate expectation of just-cause employment. With respect to the termination report, there is no evidence that plaintiff knew of its existence before he was dismissed. Thus, the report could not have instilled any legitimate expectations of just-cause employment. Moreover, a nonexclusive list of grounds for discharge does not preclude an employer from discharging an employee at will. Rood, supra at 142; Rowe, supra at 645. With respect to the written reprimand, which applied only to plaintiff, the Supreme Court held in Rood, supra at 138, that the legitimate expectations theory is not available where the policy creating the expectation of just-cause employment applies only to an individual employee. I would reverse the trial court’s rulings on defendant’s motions for summary disposition, a directed verdict, and judgment notwithstanding the verdict.

Anthony Johnson vs. Massachusetts Bay Transportation Authority. Suffolk. September 12, 1994. November 10, 1994. Present: Liacos, C.J., Wilkins, Abrams, & Nolan, & Lynch, JJ. Practice, Civil, Summary judgment. Public Employment, Termination, Urine test. Controlled Substances. Search and Seizure, Warrant, Urine sample. Evidence, Business record, Breathalyzer test. Due Process of Law, Termination of employment. In a civil action, after a trial on the merits, the denial of a motion for summary judgment is not reviewable on appeal. [785] In a civil action in which the plaintiff claimed he was unlawfully discharged from his employment as a Massachusetts Bay Transportation Authority (MBTA) bus driver, the judge’s finding that the plaintiff had operated a bus under the influence of cocaine in violation of MBTA rules was not clearly erroneous. [785] In circumstances in which an employer, a provider of public transportation, had probable cause to believe that an employee had operated a vehicle under the influence of some drug, the employer was entitled to require the employee to submit to blood and urine testing for drugs and alcohol without a warrant [785-786]; in any event, the results of the tests were admissible in a civil trial where the judge was warranted in finding that the employee had consented to the tests [786], Results of a laboratory test were properly admitted in evidence at a civil trial, as a business record. [786] Admission in evidence at a civil trial of results of a certain laboratory test did not prejudice the plaintiff. [786] In an action alleging the plaintiff’s wrongful termination from employment, the judge’s finding that the plaintiff did not request a hearing to clear his name after his suspension and termination was not clearly erroneous. [786-787] Civil action commenced in the Superior Court Department on March 13, 1989. The case was heard by Patti B. Saris, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Winston Kendall for the plaintiff. Geraldine S. Hines for the defendant. Wilkins, J. The plaintiff (Johnson) appeals from a judgment that rejected his claim that the defendant (MBTA) unlawfully discharged him for driving a bus while under the influence of cocaine. We transferred Johnson’s appeal here on our own motion. We find no merit in Johnson’s various claims of prejudicial error. We affirm the judgment. The MBTA employed Johnson as a bus driver. On September 26, 1985, Johnson appeared to be under the influence of alcohol on the job, failed a breathalyzer test which he took voluntarily, and was suspended indefinitely for violation of MBTA rules. On November 8, 1985, the MBTA reinstated Johnson, subject to a one-year probationary period during which any rule violation would result in his discharge. On January 9, 1986, an MBTA passenger, who identified himself, reported by telephone to the MBTA police that he had smelled alcohol on the breath of a driver of a particular bus on the Allston-Dudley route. Two supervisors, who knew nothing of Johnson’s prior employment record, met Johnson at Dudley Street station. Each concluded that Johnson’s eyes had a very heavy look and that he appeared to be under the influence of something. When they told Johnson the reasons for their investigation, Johnson said: “No, not again.” Asked if he would submit to a breathalyzer examination, which it was his right to refuse, Johnson said that he would not. Johnson was suspended for the rest of the evening. Neither supervisor smelled alcohol on Johnson’s breath, nor did Johnson walk irregularly. Johnson responded to instructions to appear the next morning for a physical examination, which would include urine and blood tests, and for an interview. Johnson gave oral permission to an MBTA physician for a drug and urine test. The test was a condition of Johnson’s continued employment. A laboratory’s tests of the urine sample were positive for the use of cocaine. During the January 10 interview Johnson was given written notice of his suspension pending the receipt of the test results. On January 24, 1986, the MBTA discharged Johnson. This action followed. The trial judge found that Johnson operated an MBTA bus on January 9, 1986, under the influence of cocaine and ruled, among other things, that the MBTA had probable cause to test Johnson’s urine. 1. Johnson argues that summary judgment should have been entered in his favor. We need not consider the point. After a trial on the merits, as here, the denial of a motion for summary judgment may not be reviewed on appeal. Deerskin Trading Post, Inc. v. Spencer Press, Inc., 398 Mass. 118, 126 (1986). 2. The judge’s finding that Johnson was operating an MBTA bus on January 9, 1986, under the influence of cocaine in violation of MBTA rules was not clearly erroneous. Mass. R. Civ. P. 52 (a), 365 Mass. 816 (1974). The MBTA supervisors who saw Johnson described his eyes as having a very heavy look, and said that he appeared to be under the influence of something. The subsequent positive drug test results, which we shall conclude were properly admissible, indicated cocaine use at some time. 3. The judge was correct in ruling that the warrantless search and seizure was lawful. The MBTA had probable cause to conduct tests for drug use, and no warrant was needed in the circumstances. Johnson argues that the urine and blood tests were an unreasonable search and seizure in violation of art. 14 of the Massachusetts Declaration of Rights. The evidence warranted the conclusion of the MBTA supervisors that more probably than not Johnson had operated an MBTA bus while under the influence of alcohol or some other drug. In such circumstances an employer is entitled to require an employee to submit to blood and urine testing for drugs and alcohol. The MBTA was not obliged to obtain a warrant. An employer providing public transportation has a duty to assure that its drivers are not impaired by alcohol or some other drug. Such a driver is not unfairly or unreasonably treated by a requirement that he promptly submit to tests for drugs when there is probable cause to believe that he has operated a vehicle under the influence of some drug. In any event, Johnson’s challenge to the admission of the test results fails because the judge was warranted in finding that he consented to these tests. Johnson claimed that he agreed to the tests only because of the coercion that he would have been terminated if he did not consent. A written consent would have strengthened the MBTA’s position on the consent issue. The judge was warranted in ruling that requiring testing as a condition of continued employment of a probationary employee would not be impermissible coercion in this case involving the operator of a public conveyance. See O’Connor v. Police Comm’r of Boston, 408 Mass. 324, 326 (1990). 4. The judge did not err in admitting the laboratory report that showed that Johnson’s urine tested positive for cocaine. The chain of custody, although less than perfectly shown, was sufficiently established to justify admission of the evidence. The results of the laboratory test were properly admitted as a business record. See G. L. c. 233, § 78 (1992 ed.). 5. Johnson himself testified that he had failed a breathalyzer test. He is thus not in a strong position to challenge the admission of the results of the September 26, 1985, breathalyzer examination “for the limited purpose of establishing the sequence of events” leading to Johnson’s termination. The judge did not improperly rely on the breathalyzer test results, and Johnson’s rights were not injuriously affected by admission of the test results. 6. The MBTA did not violate Johnson’s due process right to a hearing to clear his name after he was suspended and then terminated. The judge found that Johnson did not request a hearing. That finding is not clearly erroneous, and we need not decide whether the judge was correct in concluding that a hearing was not required in any event. See O’Connor v. Police Comm’r of Boston, supra at 331. Judgment affirmed. Because there was probable cause, we need not decide whether in some situations the responsibilities of an employee are so important to the public safety that, in the absence of consent, a public employer may nevertheless require testing for drugs on the basis of something less than probable cause.

WALLACE v RECORDER’S COURT OF DETROIT Docket No. 152976. Submitted October 6, 1994, at Lansing. Decided November 7, 1994, at 9:55 a.m. Patricia A. Wallace brought an action in the Court of Claims against the Recorder’s Court of Detroit and the director of its psychiatric clinic, alleging defamation and wrongful discharge in violation of an implied contract of employment providing for termination for just cause only. The court, Lawrence M. Glazer, J., granted summary disposition for the defendants. The plaintiff appealed. The Court of Appeals held: 1. The plaintiff may not assert breach of an implied contract in view of the existence of a collective bargaining agreement governing her employment. 2. The collective bargaining agreement provided for grievance and arbitration procedures, which the plaintiff failed to pursue. Because she failed to exhaust those remedies, she is precluded from seeking relief in court with respect to the wrongful discharge claim. 3. Governmental immunity bars the defamation claim against the Recorder’s Court in the absence of an allegation of facts supporting an exception to immunity. The defamation claim against the director of the psychiatric clinic also fails, given that the plaintiff did not allege a connection between the alleged defamatory statement and the director. Affirmed. Corrigan, J., concurring, stated continued adherence to the views she expressed in a concurring opinion in Thorin v Bloom-held Hüls Bd of Ed, 203 Mich App 692 (1994). 1. Contracts — Impued Contracts — Express Contracts. A party may not seek to enforce an implied contract where an express agreement has been made covering the same subject matter. References Am Jur 2d, Contracts §§ 12-14, 25; Master and Service § 67. What law governs employee’s right to damages for wrongful discharge. 61 ALR2d 917. 2. Master and Servant — Collective Bargaining Agreements — Exhaustion op Remedies — Wrongful Discharge. Failure to exhaust remedies under the grievance and arbitration provisions of a collective bargaining agreement covering public sector employment precludes the bringing of an action for wrongful discharge by an employee subject to the collective bargaining agreement. Melvin Houston and Veleta Brooks-Burkett, for the plaintiff. Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Gary P. Gordon and Thomas Quasarano, Assistant Attorneys General, for the defendants. Before: Reilly, P.J., and Corrigan and R. J. Jason, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Reilly, P.J. Plaintiff appeals as of right from the trial court’s order granting defendants’ motion for summary disposition and dismissing her claims of wrongful discharge (hostile environment) and defamation. We affirm. Plaintiff was employed by the State Judicial Council (sjc) as the chief clinical psychologist when she resigned in August 1990. It is undisputed that there was no direct agreement between plaintiff and the sjc. Rather, her employment was subject to a labor agreement between the sjc and the Government Administrators’ Association (gaa) at the time of her resignation. Plaintiff alleged that she was constructively discharged because of acts of the clinic director that allegedly violated the Recorder’s Court "written employment policies and labor agreement in effect at the time.” However, contrary to MCR 2.113(F), plaintiff failed to attach to her complaint a copy of the employment policies or the labor agreement upon which she relies. Subsequently, plaintiff indicated that her wrongful discharge claim was based on the theory of an implied contract providing for termination for just cause only, as recognized in Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980). Defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(4), (7), (8), and (10). According to defendants’ exhibits, plaintiff sought a grievance investigation for the defendants’ "unjust discipline . . . without following the disciplinary procedure as outlined in the contract agreement,” in violation of "Article 11, Section A.” However, plaintiff never exhausted her administrative remedies under the grievance procedure provided by the collective bargaining agreement. Article 9, Step 4(F) of that agreement provides that the arbitrator’s decision shall be "final and binding” if rendered in accordance with the arbitrator’s jurisdiction and authority under the agreement. Consequently, defendants argue, plaintiff is precluded from seeking relief in court. Defendants also contend that plaintiff, as a governmental employee, may not sue for breach of contract. Defendants rely on Matulewicz v Governor, 174 Mich App 295, 304; 435 NW2d 785 (1989), where this Court stated: As plaintiffs are civil servants who do not have contracts of employment either express or implied, the circuit court properly dismissed plaintiffs’ count for breach of contract for failure to state a claim upon which relief can be granted. The trial court granted summary disposition of the wrongful discharge claim, ruling that Matulewicz, supra, applied to the undisputed facts of this sitúation, and that "there is no Toussaint-type wrongful discharge in the case of a governmental employee who has any kind of civil service protection. She could conceivably have an appeal of the discharge, if there was a discharge, but I think that would have to be determined first by an administrative body.” After the trial court issued its decision, this Court decided Manning v Hazel Park, 202 Mich App 685, 690-691; 509 NW2d 874 (1993), and Thorin v Bloomfield Hills Bd of Ed, 203 Mich App 692; 513 NW2d 230 (1994), both of which held that a wrongful discharge claim under Toussaint is applicable to public employees. However, in those cases, and the cases upon which they rely, the plaintiffs were not members of a union or association that had entered into a collective bargaining agreement with the governmental employer. Unlike the plaintiff in this case, they had no contractual right to determine, through a grievance process or otherwise, whether they were entitled to be discharged only for "just cause” or whether any contractual rights had been violated. Because Manning and Thorin are distinguishable, we decline to apply them to the case before us. We agree with the trial court that, although plaintiff is not a "civil servant” subject to the rules of the Civil Service Commission, she is entitled to similar protection under the grievance procedure of the collective bargaining agreement. With certain exceptions not relevant here, policies regarding conditions and terms of employment are subjects of any collective bargaining between the sjc and the associations representing the state-paid employees serving in the Recorder’s Court. MCL 600.9104; MSA 27A.9104. Because matters of discipline and termination were expressly covered in the gaa collective bargaining agreement, plaintiff is bound by its terms. A party may not seek to enforce an implied contract where an express agreement has been made covering the same subject matter. Scholz v Montgomery Ward & Co, Inc, 437 Mich 83, 93; 468 NW2d 845 (1991). Therefore, we conclude that plaintiff was not entitled to rely on Toussaint, supra, in pursuing her wrongful discharge claim. Moreover, because she failed to exhaust her remedies under the grievance procedure, she is precluded from seeking judicial review of her alleged wrongful discharge. See Samuel v Dep’t of Mental Health, 140 Mich App 101, 107-109; 364 NW2d 294 (1985), and Mollett v City of Taylor, 197 Mich App 328; 494 NW2d 832 (1992). Summary disposition of the wrongful discharge claim properly was granted under MCR 2.116(C) (10). Also, even if plaintiff’s complaint does state a claim for defamation, Gonyea v Motor Parts Federal Credit Union, 192 Mich App 74, 76-77; 480 NW2d 297 (1991); Sawabini v Desenberg, 143 Mich App 373, 379; 372 NW2d 559 (1985), we find that summary disposition properly was granted to defendants on the basis of governmental immunity. MCR 2.116(C)(7). In responding to defendants’ motion, plaintiff failed to allege facts justifying application of an exception to governmental immunity, i.e., facts supporting an inference that defendant Recorder’s Court was not engaged in the exercise of a governmental function when the alleged defamatory statement was made. MCL 691.1407(1); MSA 3.996(107)(1); Wade v Dep’t of Corrections, 439 Mich 158, 162; 483 NW2d 26 (1992). Moreover, we reject plaintiff’s assertion that the defamation claim should survive with respect to defendant director of the Recorder’s Court Psychiatric Clinic given that (1) plaintiff’s complaint does not allege that defendant director was connected to the making of the statement and (2) plaintiff admitted in her deposition that she does not know who made the statement. Affirmed. R. J. Jason, J., concurred. Corrigan, J. (concurring). I concur in Judge Reilly’s fine opinion. I also continue to adhere to the views expressed in my concurring opinion in Thorin v Bloomfield Hills Bd of Ed, 203 Mich App 692; 513 NW2d 230 (1994).

McKISSACK v COMPREHENSIVE HEALTH SERVICES OF DETROIT Docket No. 96458. Argued May 5, 1994 (Calendar No. 3). Decided August 30, 1994. Rehearing denied post, 1202. Clara McKissack sought worker’s compensation for injuries sustained in the course of her employment as a medical technologist with Comprehensive Health Services of Detroit. A hearing referee found that she sustained a work-related disability, but concluded that it was not a continuing disability because she wás able to return to her job. The Worker’s Compensation Appeal Board reversed, holding that she had a continuing disability because she was not able to perform her duties adequately, and that this had led her employer to become dissatisfied and demand her resignation. The Court of Appeals, Murphy, P.J., and Gribbs and Fitzgerald, JJ., reversed in an unpublished opinion per curiam (Docket No. 141512). The claimant appeals, limited to the question whether there was sufficient evidence to support the wcab’s finding of continuing disability. In an opinion by Justice Levin, joined by Chief Justice Cavanagh, and Justices Boyle and Mallett, the Supreme Court held: There was sufficient evidence to support the wcab’s finding that the claimant was suffering from a continuing disability. 1. There was evidence that the speed with which plaintiff could carry out her job duties was below the minimum acceptable by Comprehensive Health Services, contravening the statement by the Court of Appeals that the record was wholly void of such evidence. Further, evidence that the work was painful was properly considered by the wcab in determining that the plaintiff was disabled from performing it. Clearly there is a difference between pain resulting from illness or disease not caused or aggravated by the work or working conditions, and pain resulting from a work-related injury. Worker’s compensation benefits may not be awarded simply because a worker is unable by reason of pain to continue with the work if the cause of the pain is illness or disease not caused or aggravated by the work or working conditions, but if the wcab finds that pain is caused or aggravated by a work-related injury, and the worker cannot by reason of pain resulting from the injury continue to work, the worker can be found to be disabled and awarded benefits. 2. The Court of Appeals exceeded its authority in finding as fact that the plaintiff was not fired because of inability to keep pace with the demands of her employer. It is one thing for the Court of Appeals to find that there is insufficient evidence to support a finding of fact made by the wcab; the Court exceeds its authority when it makes its own findings of fact. The wcab found that Comprehensive Health Services had not shown to the satisfaction of the wcab that the plaintiff was asked to resign for a reason other than her inability to keep up with the work, an inability that the wcab found to have been caused by her work-related injury. 3. Although MCL 418.301(5)(a); MSA 17.237(301)(5)(a) provides that an employee is to be deemed voluntarily removed from the work force and no longer entitled to any wage-loss benefits during a period of a refusal of a bona fide offer of reasonable employment, that stricture is not applicable unless the employee refuses the employment without good and reasonable cause. Clearly an employee, such as the plaintiff, may be found by the wcab to have good and reasonable cause to refuse even a bona fide offer of reasonable employment where the employee has refused the employment or refused, by resigning, to continue in the employment because she was disabled from doing the work demanded by the employer. 4. The wcab found by a preponderance of the evidence that the work-related disability to the claimant’s left elbow precluded her from performing her medical technologist job as the job existed before her injury, establishing that she was disabled within the meaning of the worker’s compensation act, which, at the time, defined "disability” as a limitation of an employee’s wage-earning capacity in the employee’s general field of employment resulting from a personal injury or work-related disease. Reversed and remanded. Justice Riley, joined by Justice Griffin, dissenting, stated that proper resolution of this case requires an answer to the question whether it was the alleged disability or the mistakes in blood testing that led to the defendant’s decision to terminate the plaintiff. To date, causation questions ordinarily resolved by the worker’s disability compensation system have involved the issue whether employment causes or aggravates an injury or disease that qualifies for compensation. In this case, whether plaintiff’s injury made her disabled under the terms of the Worker’s Disability Compensation Act is not appropriately reached unless it is clear that her injury-related work performance rather than her alleged mistakes caused the termination. Thus, proper resolution of this case would be to remand to the wcac to determine whether it has jurisdiction to decide whether the plaintiff was terminated for poor performance unrelated to her injuries, or for work slowdown as a consequence of them, and, if so, whether there are facts on record to permit the wcac to reverse what is in reality a credibility determination made by the hearing referee. Justice Brickley, dissenting, stated that the issue is whether, as a matter of law, the plaintiff’s evidence that she could not perform her work to her former employer’s satisfaction is sufficient under the standard required by MCL 418.301(4); MSA 17.237(301)(4). The defining standard regarding whether a worker is disabled is broader than work history with one employer. The statute requires an impairment in the employee’s general field of employment rather than employability with one specific employer. Absent any evidence regarding the plaintiff’s general employability as a medical technologist, the evidence presented, as a matter of law, did not meet the plaintiff’s burden of proof. Even if the plaintiff has proven a work-related disability, the case should be remanded for a redetermination of whether the injury is partial or total. Sachs, Waldman, O’Hare, Helveston, Hodges & Barnes, P.C. (by Granner S. Ries), for the plaintiff. Conklin, Benham, Ducey, Listman & Chuhran, P.C. (by Martin L. Critchell), for the defendants. Amici Curiae: Glotta, Rawlings & Skutt, P.C. (by Richard M. Skutt), and Monica Farris Linkner and Jeffrey T. Meyers, for Michigan Trial Lawyers Association. Lacey & Jones (by Gerald M. Marcinkoski) for Chrysler Corporation and Michigan Mutual Insurance Company. Levin, J. This is a worker’s compensation case. The hearing referee found that plaintiff Clara McKissack sustained a work-related disability to her left elbow, but concluded that it was not a continuing disability because she was able to return to her job as a medical technologist with defendant Comprehensive Health Services of Detroit. The Worker’s Compensation Appeal Board reversed, holding that McKissack had a continuing disability because she was not able to perform her duties adequately, and that this had led her employer to become dissatisfied and to demand her resignation. The Court of Appeals reversed. This Court granted leave to appeal limited to the question whether there was sufficient evidence to support the Wcab’s finding that McKissack was suffering from a continuing disability. We reverse because we find that there was sufficient evidence. I McKissack, a fifty-four-year old senior medical technologist, commenced employment with Comprehensive Health Services in 1977. She fell while walking across an employee parking lot on June 20, 1983. She sustained a fracture of the right knee and left elbow, and was hospitalized initially for two weeks, and returned for an additional week in September. After casts were removed from her right knee and left elbow, she was placed on a regimen of physical therapy. McKissack’s attending physician acquiesced in her request to return to work, but imposed restrictions against prolonged standing or walking, strenuous use of the left arm, repetitive bending, and heavy lifting. She returned to her full duties as a medical technologist on January 18, 1984. She walked with a marked limp. She often resorted to the use of a cane to assist her in ambulation. She had a limitation of motion in her left arm, her elbow being frozen at the fracture site. She testified that she moved slowly in performing her duties because of right leg, left shoulder, and left arm pain, and that she could not move her arm upward more than forty degrees. A The hearing referee found that McKissack resigned on November 26, 1984, after she was asked to do so because she had failed to carry through to conclusion certain ana tests, and, as a result, two patients were placed in intensive care, exposing Comprehensive Health Services to possible litigation. The hearing referee concluded,, on the basis of the testimony of physicians who examined McKissack for Comprehensive Health Services, that McKissack was able to perform her normal occupational duties on her last day of work, November 26, 1984, and that she did not leave work because of her injuries of June 20, 1983, "but as a result of an unfortunate series of incidents in which she neglected to follow through on ana testing procedures which she, herself, had been instrumental in establishing.” McKissack had thus failed to sustain the burden of proving disability beyond January 18, 1984. B The wcab reversed, stating that, on the basis of the testimony of the treating and examining physicians, the testimony of McKissack, and of lay witnesses, McKissack was "unable to continue to perform her job as a medical technologist due to the physical residuals of the injury . . . .” The wcab found as facts that McKissack’s "arm limitations affected her ability to perform her job, to the extent that the job was painful,” that "her performance was slower than prior to the injury,” that her supervisor asked her "to work more quickly,” and that the mistake was due to the "speed up” required by McKissack’s "supervisor when she was unable to work quickly.” The wcab added that McKissack "was not able to perform the work” at Comprehensive Health Services, and that, even if she were able to perform the work, Comprehensive Health Services "has not shown a violation of company rules which would normally result in termination of a non-disabled employee.” The wcab explained that McKissack’s direct supervisor "did not feel the test performance was grounds for termination; and in fact blamed herself for part of the problem.” c The Court of Appeals reversed the decision of the wcab. It acknowledged that it "is bound by findings of fact made by the [wcab], which are conclusive in the absence of fraud. Const 1963, art 6, § 28” and that its "authority is to review only questions of law . . . .” The Court of Appeals said that there was competent evidence to support the wcab’s determination that McKissack "could perform her duties as a medical technologist more slowly after injury than before, and only with .pain.” It said that that finding failed to establish, however, that Mc-Kissack is " 'disabled’ as statutorily defined. After injury, plaintiff returned to her regular employment and suffered no diminution of remuneration. The record is wholly void of evidence that, after injury, the speed with which plaintiff could carry out her job duties was below .the minimum acceptable for a medical technologist employed by” Comprehensive Health Services. The Court of Appeals said that while McKissack "could only work with pain,” she "could perform and was performing her duties when she resigned from her employment. Merely because her work was painful does not establish that she could not perform it or that she was disabled from performing it. Kostamo v Marquette Iron Mining Co, 405 Mich 105, 116 [274 NW2d 411] (1979).” The Court of Appeals in effect found that McKissack had not "been fired because of inability to keep pace with the demands of her employer . . . .” It said, assuming that McKissack "established a disability,” she was nevertheless precluded from receiving benefits because "she had not yet been fired, she was working under a 'bona fide offer of reasonable employment from the previous employer’ ” within the meaning of § 301(5)(a) of the Worker’s Disability Compensation Act: "Whatever the motivation for plaintiff’s resignation, whether it was under pressure or not, even assuming she was disabled, she nonetheless resigned.” ii The Court of Appeals erred in stating —that there was no evidence that "the speed with which plaintiff could carry out her job duties was below the minimum acceptable” by Comprehensive Health Services; —that evidence the work was painful does not establish that McKissack "was disabled from performing it”; —that McKissack was not "fired because of inability to keep pace with the demands of her employer”; and —assuming that McKissack "had established a disability,” § 301(5)(a) precludes her from receiving benefits because she had not been fired but rather, "[w]hatever the motivation for plaintiff’s resignation, whether it was under pressure or not, even assuming she was disabled,” she had resigned from a " 'bona fide offer of reasonable employment from the previous employer.’ ” A There was evidence that "the speed with which plaintiff could carry out her job duties was below the minimum acceptable” by Comprehensive Health Services. McKissack testified that she "didn’t have the speed that [she] had before” her injury. She "was coping with pain,” and "couldn’t handle the load that [she] previously could handle.” Her supervisor complained about the speed of her work. "[She] was constantly told [by her supervisor] that [she was] not holding up [her] end. The employees work[ed] extra to save [her] job for [her], and [she was] not holding up [her] end. This was constantly brought to [her] attention” by her supervisor. A coworker testified that on a number of occasions she overheard the supervisor so remonstrating with McKissack about her failure to hold up her end of the work. McKissack’s testimony and the testimony of her co-worker contravene the statement by the Court of Appeals that the "record is wholly void of evidence” that the speed with which McKissack could carry out her duties was below the minimum acceptable by Comprehensive Health Services. B Evidence that the work was painful was properly considered by the wcab in determining that McKissack "was disabled from performing it.” The Court of Appeals said, citing this Court’s decision in Kostamo v Marquette Iron Mining Co, supra at 116, that "[m]erely because her work was painful does not establish that she could not perform it or that she was disabled from performing it.” In Kostamo, this Court said that the worker’s compensation act "does not provide compensation for a person afflicted by an illness or disease not caused or aggravated by his work or working conditions. Nor is a different result required because debility has progressed to the point where the worker cannot work without pain or injury.” Id. Clearly there is a difference between pain resulting from "illness or disease not caused or aggravated” by the work or working conditions, and pain resulting from a work-related injury. As indicated in Kostamo, worker’s compensation benefits may not be awarded simply because a worker is unable by reason of pain to continue with the work if the cause of the pain is illness or disease not caused or aggravated by the work or working conditions. But contrariwise, if the wcab finds that pain is caused or aggravated by a work-related injury, and the worker cannot by reason of pain resulting from the injury continue to work, the wcab can find that the worker is disabled and award benefits. c The Court of Appeals exceeded its authority in finding in effect as a fact that McKissack was not "fired because of inability to keep pace with the demands of her employer . . . .” It is one thing for the Court of Appeals to find that there is insufficient evidence to support a finding of fact made by the wcab; the Court of Appeals exceeds its authority when it makes its own findings of fact. Thomas v Griffin Wheel Co, 8 Mich App 35, 45; 153 NW2d 387 (1967). Moreover, the wcab found that Comprehensive Health Services had "not shown a violation of company rules which would normally result in termination of a non-disabled employee.” The wcab thus found that Comprehensive Health Services had not shown to the satisfaction of the wcab that McKissack was asked to resign for a reason other than her inability to keep up with the work, an inability that the wcab found to have been caused by her work-related injury. D Although § 301(5)(a) provides that an employee shall be deemed voluntarily removed from the work force and no longer entitled to any wage-loss benefits during a period of a refusal of a bona fide offer of reasonable employment from a previous employer, such as Comprehensive Health Services, or, indeed, another employer, or through the Michigan Employment Security Commission, that stricture is not, by the terms of § 301(5)(a), applicable unless the "employee refuses that employment without good and reasonable cause.” Clearly an employee, such as McKissack, may be found by the wcab to have "good and reasonable cause” to refuse even a "bona fide offer of reasonable employment” on a finding that the employee refused the employment or refused, by resigning, to continue in the employment because she was disabled from doing the work demanded by the employer. Such a finding by. the wcab is implicit in its other findings. See Thomas v Griffin Wheel Co, supra. The wcab found that McKissack was disabled from doing the work demanded by Comprehensive Health Services; it said: "we find plaintiff has proven by a preponderance of the evidence that the work related disability to the left elbow precludes her from performing her medical technologist job as the job existed prior to injury.” That finding is supported by the wcab’s findings of fact that McKissack’s "arm limitations affected her ability to perform her job, to the extent that the job was painful,” that "her performance was slower than prior to the injury,” that she "was told by her supervisor to work more quickly,” and that the "mistake” made by her was due to the "speed up” required by her supervisor when she was unable to work quickly. The wcab’s finding that McKissack was disabled from doing the work demanded by Comprehensive Health Services established that she was disabled within the meaning of the worker’s compensation act, which, at the time, defined "disability” as "a limitation of an employee’s wage earning capacity in the employee’s general field of employment resulting from a personal injury or work related disease.” As set forth at the outset of this opinion, we conclude that there was sufficient evidence to support the wcab’s finding that McKissack was suffering from a continuing disability. hi The wcab found that McKissack was totally disabled from January 19, 1984, the day after she returned to Comprehensive Health Services and resumed her full duties as a medical technologist. Comprehensive Health Services declares in its brief in this Court that this is mind boggling: "It is an oxymoron to declare at once and the same time that an injured employee is totally disabled from a field of endeavor upon resuming work in that field!” (Emphasis in original.) Comprehensive Health Services contends that if McKissack was disabled at all, she was partially, not totally, disabled, and that the wcab should in all events be required to determine a residual wage-earning capacity for McKissack as a partially disabled person pursuant to this Court’s decision in Trask v Modern Pattern & Machine Co, 222 Mich 692; 193 NW 830 (1923), and the decision of the Court of Appeals in Sob

Emma Harrison vs. Boston Financial Data Services, Inc. No. 93-P-653. Norfolk. April 13, 1994. August 15, 1994. Present: Brown, Smith, & Fine, JJ. Practice, Civil, Summary judgment. Anti-Discrimination Law, Prima facie case, Employment, Race. Employment, Discrimination. On the record of an action alleging employment discrimination based on race, summary judgment was incorrectly entered in favor of the employer where the plaintiff had set forth sufficient facts to establish a prima facie case of unlawful discrimination, unmet by countervailing materials. [136-139] Civil action commenced in the Superior Court Department on August 5, 1991. The case was heard by Andrew G. Meyer, J., on a motion for summary judgment. Winston Kendall for the plaintiff. Colette Manoil for the defendant. Brown, J. This is an appeal from a grant of summary judgment for the defendant, Boston Financial Data Services, Inc. (BFDS). All the materials that were before the motion judge are also before us on appeal. Cf. Pilch v. Ware, 8 Mass. App. Ct. 779, 780 (1979). Contrast Cambridge Hous. Authy. v. Civil Serv. Commn., 7 Mass. App. Ct. 586, 588 (1979). On review of this record, we have little difficulty con-eluding that the judge erred in allowing the defendant’s motion for summary judgment. The plaintiff, Emma Harrison, an African-American woman, was employed as a “microfilmer” by BFDS in December, 1984, under a contract at will. According to her verified complaint, she intended to remain with BFDS on a long-term basis, and she anticipated promotions and salary increases. In January, 1986, after one year with the company, an evaluation by her supervisor rated her as effective (i.e., “good”) in the position, and her supervisor further indicated that she desired more challenging job tasks and should be allowed to perform other duties. The evaluation also indicated that she was interested in being promoted. In March, 1986, she was moved “laterally” to the position of “correspondence control clerk.” As of the summer of 1990, the plaintiff had received annual merit salary increases but had received no promotions. Nor had she received any in-house training (with the exception of a five-hour stress management workshop in February, 1989) since September, 1988. See note 13, infra. In July, 1990, Harrison took a short-term disability leave, until September, 1990. When Harrison returned to the company in September, she was informed verbally that her former position had been eliminated. While a new position of “accounts specialist” had been created that comprised many of her former duties, as well as some additional responsibilities, BFDS did not offer Harrison this position, nor even make her aware of its existence. She maintains that she was fully capable of performing the duties associated with the “new” position, an assertion for which no dispute appears in the materials before the trial judge. On October 15, 1990, BFDS hired a white female to fill the position of accounts specialist. While the record does not reflect the basis upon which the new person was hired or what her qualifications were, we note that 180 persons held the accounts specialist position at BFDS. On October 1, 1990, Harrison filed a complaint with the Massachusetts Commission Against Discrimination (MCAD), alleging discrimination based on race, color, and age (Harrison was fifty-four at the time her position was eliminated). Some time after the charge was filed with the MCAD, Harrison was offered a position as “mail opener” at a different facility of BFDS, a gesture that it fairly may be inferred was a veiled attempt to nullify her discrimination claim. That position carried essentially the same duties as her previous position, which the defendant had informed her had been abolished. She did not accept the offer. In August, 1991, Harrison filed a verified complaint alleging violations of State and Federal statutes: G. L. c. 151B, § 4; 42 U.S.C. § 1981 (1988); and 29 U.S.C. §§ 621 et seq. (1988), and requested a trial by jury. After discovery, BFDS’s motion for summary judgment, filed in September, 1992, was allowed in December, 1992. Summary judgment is appropriate where there is an absence of genuine dispute as to any material fact and the moving party is entitled to summary judgment as matter of law. Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). See Flesner v. Technical Communications Corp., 410 Mass. 805, 808-809 (1991), and cases cited. Our review of the grant of summary judgment in favor of the defendant requires us to assume the truth of all the facts set forth in all the materials the plaintiff properly presented to the Superior Court judge, as well as to give her the benefit of any favorable inferences that may be drawn from those materials. Welford v. Nobrega, 30 Mass. App. Ct. 92, 94 (1991), S.C., 411 Mass. 798 (1992). Following the McDonnell Douglas framework, Harrison’s verified complaint and materials in support of her opposition to summary judgment establish a prima facie case of unlawful discrimination: (1) she is a member of a protected class; (2) she was qualified for the position of correspondence control clerk (as well as its newly created successor position); (3) despite her qualifications, she was not considered for the successor position; and (4) her job having been eliminated, she was effectively replaced with a white woman who had her qualifications. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 135 & n.5 (1976). See also Radvilas v. Stop & Shop, Inc., 18 Mass. App. Ct. 431, 439-440 (1984). The exact prima facie proof required can vary depending on the factual situation. Wheelock College v. Massachusetts Commn. Against Discrimination, supra at 135 n.5. Radvilas v. Stop & Shop, Inc., supra at 439. BFDS argues that Harrison failed to make out a prima facie case of discrimination because she was not in fact terminated. Rather, BFDS asserts that Harrison took a disability leave with full knowledge that her job might not exist when she returned, thereby entitling the defendant to summary judgment as matter of law. We do not agree. In addition to the ample basis set out in her verified complaint, Harrison submitted deposition testimony and excerpts from the employee manual that describe the efforts (or lack thereof) of BFDS in dealing with issues of racial discrimination in an attempt to demonstrate that the reasons given for eliminating Harrison’s job and not hiring her for the new position were a pretext. Smith College v. Massachusetts Commn. Against Discrimination, 376 Mass. 221, 230 (1978). In addition, Harrison asserted that she was not provided with the training and educational opportunities routinely accorded white employees, nor was she made aware of BFDS’s policy of paying tuition costs for employees who sought to enhance their knowledge and skills in order to take advantage of promotion opportunities. The defendant never performed an evaluation of Harrison’s skills, let alone offered her the new position or even administered the requisite tests (which were minimal) for that position. Nor was she provided an opportunity to present her career aspirations. Inferentially, this treatment of the plaintiff contributed to the atmosphere of unlawful discrimination. Nothing has been made to appear by BFDS to counter either these materials or her assertions. Contrast Brunner v. Stone & Webster Engr. Corp., 413 Mass. 698, 703-705 (1992). BFDS claims that Harrison did not apply for any other job, and therefore could not have been impermissibly rejected based on race. While it is not clear whether Harrison ever actually applied for a promotion, that is not fatal to the plaintiffs prima facie case. Passing the issue raised by the hiring of the white female, we need to look no further than to the deposition testimony of Maureen DeVivo, who began in 1983 as a secretary to the manager of BFDS’s human resources department and has risen to the position of group manager of employee relations and benefits. DeVivo stated therein that BFDS had no formal program for soliciting (or accepting) applications for promotion or for promoting employees. She went on to say that there existed an informal, subjective mechanism for hiring and promoting employees outside the formal system of job postings. Such subjective conditions have been acknowledged as suspect by a number of courts, deserving of close scrutiny “because of their capacity for masking unlawful bias.” Sklenar v. Central Bd. of Educ. of Sch. Dist., 497 F. Supp. 1154, 1160 (E.D. Mich. 1980), quoting from Davis v. Calitano, 613 F.2d 957, 965 (D.C. Cir. 1980). Moreover, where, as here, the complainant-employee was not offered the so-called new position or even made aware that the particular job opening existed, a fact finder reasonably could infer that discriminatory practices prevented even awareness of the opportunity. See Rodgers v. Peninsular Steel Co., 542 F. Supp. 1215, 1299 (N.D. Ohio 1982). In conclusion, we think that the plaintiffs verified complaint sets forth sufficient facts to establish a prima facie case of unlawful discrimination and that she has shown by material described in Mass.R.Civ.P. 56(c), unmet by countervailing materials, sufficient information for a fact finder to find (1) that the plaintiff, a member of a racial minority group, had in fact been terminated (or denied promotion), and (2) that the reason proffered by the defendant for treating Harrison in such a manner was a pretext. See Talbert Trading Co. v. Massachusetts Commn. Against Discrimination, ante 56, 63 (1994), and cases cited. Judgment reversed. In this posture, for purposes of our review, we look at a trial judge’s decision to allow a motion for summary judgment, albeit useful, as a “nondispositive prelude.” “Here we must be mindful that in cases involving a state of mind, where credibility of witnesses may be important, summary judgment may be inappropriate.” Welford v. Nobrega, 30 Mass. App. Ct. 92, 99 (1991), S.C., 411 Mass. 798 (1992). See also Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991) (“where motive, intent, or other state of mind questions are at issue, summary judgment is often inappropriate”). Harrison received similar ratings in every successive year, except her last full year, when the evaluator’s comment was “meets requirements.” By way of explanation, the plaintiff averred in her verified complaint, and repeated in an affidavit, that when she “came to realize that [her] future with the defendant was bleak and that [she] would probably not be promoted . . . [she] became depressed and frustrated” and, as a result, experienced such intense “pain in my joints ... at work ... so as to incapacitate [her].” The defendant, however, points to evidence in the record contrary to the plaintiffs assertion that her short-term disability leave was work-related. The defendant is estopped from making an argument that the new accounts specialist position required a degree by the deposition testimony of its manager, Ms. DiVivo, who stated “[i]t didn’t require [a degree].” Deciding as we do, we do not reach the age discrimination claim. The judge stated, in allowing the motion, that “[although it appears that plaintilf has filed a claim with the Mass. Comm, against Discrimination pursuant to G. L. c. 15IB, § 4, it is not apparent that plaintiff has exhausted that remedy. See Sereni v. Star Sportswear Mfg. Corp., 24 Mass. App. Ct. 428, 429 (1987).” The plaintiff is correct in her contention that the judge’s invocation of the Serení case is misplaced. See G. L. c. 151B, § 9. The court in Serení did not impose an exhaustion requirement; rather, Serení stands for the proposition that a timely complaint must be filed with the MCAD before a plaintiff can proceed with an action in the Superior Court. See, e.g., Brunson v. Wall, 405 Mass. 446, 452 (1989). Harrison is not required to exhaust administrative remedies under the Federal statute. Melley v. Gillette Corp., 19 Mass. App. Ct. 511, 512-513 (1985), S.C., 397 Mass. 1004 (1986). See also Cherella v. Phoenix Technologies Ltd., 32 Mass. App. Ct. 919 (1992). The Supreme Court of the United States held in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), that a complainant could establish a prima facie case of racial discrimination by showing “(i) that [s]he belongs to a racial minority; (ii) that [s]he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite [her] qualifications, [s]he was rejected; and (iv) that, after [her] rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” “Only if the plaintiff files a verified complaint is the complaint treated as an affidavit for purposes of rule 56(e).” Godbout v. Cousens, 396 Mass. 254, 262 (1985). At oral argument, BFDS cited a “corporate restructuring” during plaintiffs absence as the basis for eliminating her job; however, it failed to address that issue adequately in its brief. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). This argument is presumably advanced as the defendant’s “legitimate nondiscriminatory reason” for the elimination of Harrison’s position to rebut a prima facie case of unlawful discrimination. Smith College v. Massachusetts Commn. Against Discrimination, 376 Mass. 221, 229 (1978). Harrison signed a “short-term disability leave agreement” which stated, “I further understand th fat] I am not guaranteed a position with the Company upon return from my leave.” For example, the record indicates that BFDS had no affirmative action plan, nor had it posted on its premises any notices which would inform African-American employees of the existence of a process or mechanism whereby they could register complaints concerning discriminatory treatment. The record also contrasts the experience of a white woman employee in terms of the training and education she received and promotional opportunities provided her by BFDS. As stated in its employment manual, it is BFDS’s policy to provide training to its employees designed to strengthen their performance.

William F. King vs. Robert F. Driscoll & others. Middlesex. April 4, 1994. August 11, 1994. Present: Liacos, C.J., Abrams, Nolan, Lynch, & Greaney, JJ. Employment, Termination. Contract, Employment. Corporation, Stockholder’s derivative suit, Stockholder. Public Policy. Unlawful Interference. Malice. Practice, Civil, Attorney’s fees. Discussion of cases involving the issue whether a retaliatory discharge of an at-will employee violates public policy. [581-583] In a civil action in which an at-will employee claimed he was wrongfully terminated in retaliation for his participation as a shareholder in a derivative action against the employer, no considerations of public policy giving shareholders a right to seek redress for harms to a corporation, arising in the context of a conflict over the corporation’s internal affairs, rose to the level of importance required to justify an exception to the general rule regarding termination of at-will employees. [583-585] In a civil action in which an employee and shareholder of a closely held corporation claimed that the other shareholders breached the duty of utmost good faith and loyalty owed to him as a shareholder, the judge correctly concluded that the conduct of the defendants which caused the plaintiff to be terminated as an employee and, as a result, caused his stock to be repurchased constituted a breach of that duty. [585-587] In a civil action in which the plaintiff claimed that the defendants intentionally interfered with contractual relations, the evidence was insufficient to support a finding in favor of the plaintiff where no improper motive for the defendants’ conduct was shown. [587] The judge in a civil action correctly concluded that an officer of a corporation had been terminated without cause, under the corporation’s bylaws. [587-588] This court vacated an award of attorney’s fees to a plaintiff in a civil action that was based on rulings of the trial judge that this court reversed. [588] Civil action commenced in the Superior Court Department on June 28, 1990. The case was heard by Vieri Guy Volterra, J. The Supreme Judicial Court granted a request for direct appellate review. Richard L. Neumeier for the defendants. Morris M. Goldings {John F. Aylmer, Jr., with him) for the plaintiff. Stephen S. Ostrach, for New England Legal Foundation, amicus curiae, submitted a brief. Albert Marchant, Michael Martin, and F.S. Payne Co. Liacos, CJ. The defendants, Robert F. Driscoll, Albert Marchant, Michael Martin, and F.S. Payne Co., appeal from that portion of a judgment of the Superior Court entered against them in the plaintiff’s wrongful termination suit. The plaintiff filed a cross appeal from another part of that judgment. See p. 581 & note 5, infra. We granted the defendants’ application for direct appellate review. The primary issue presented here is whether the public policy exception to the rule that at-will employees may be terminated at any time with or without cause includes termination in retaliation for an employee’s participation in a shareholder derivative suit. We recount the facts, many of which are in dispute on appeal, as found by the trial judge sitting without a jury. See Mass. R. Civ. P. 52 (a), 365 Mass. 816 (1974). Payne is a closely held Massachusetts corporation which focuses on services to the elevator industry. Until 1988, it manufactured elevators and related parts. From its origin until August, 1990, all the stock of Payne was held by a small number of shareholders and Payne’s upper-level management positions were occupied by individuals owning relatively large amounts of the corporation’s stock. In August, 1990, Payne’s stock was purchased by Northern Elevator of Toronto. Beginning in 1954, employees of Payne who purchased Payne stock were required to enter into a “buy back” agreement which allowed Payne to repurchase the stock at the end of the employees’ respective tenures at Payne. The language of the buy back agreement was ambiguous and thus Payne repurchased stock over time from departing employees at varying rates. The buy back agreement became the subject of the shareholder derivative suit relevant here. See Dynan v. Fritz, 400 Mass 230 (1987), S.C., Martin v. F.S. Payne Co., 409 Mass. 753 (1991). The plaintiff here was one of the plaintiffs in that suit. During .the relevant time period, Edward A. Fritz, Jr., was a director, shareholder and, at one time, president of Payne. Driscoll was a director, shareholder, and the president of Payne when the incidents leading to this lawsuit took place. Martin was an assistant to Driscoll, a director of Payne, but not a shareholder. Marchant was a director, shareholder, and an employee of Payne. King began his employment with Payne in 1958 and received various promotions until 1982 when he was elected by the directors to be vice president of Payne’s manufacturing division. He remained in that position until his termination in November 1987. King was a shareholder of Payne. During the 1970’s and 1980’s, various power struggles transpired within Payne, mainly between Driscoll and Robert G. Dynan, another large shareholder and Payne’s lead salesperson. After Fritz’s retirement, the corporate infighting culminated with the ascension to the Payne presidency by Driscoll. Dynan had been a director but was not reelected in 1983. Around that time, Driscoll called for Dynan’s retirement, but Dynan refused. Later, Dynan’s business traveling was restricted by Driscoll and thus Dynan’s effectiveness as a salesperson was diminished. Both Dynan and Driscoll made overtures to King seeking his support in their “war.” At one point, Driscoll suggested to King that King should be transferred to another division within Payne so that King could be groomed to succeed Driscoll as president. King, preferring to remain in the manufacturing division, declined. In the spring of 1984, Dynan asked King to join him in filing a derivative suit regarding the stock buy back plan, especially as it related to the buy back of Fritz’s stock. King initially declined but later, concluding that the suit was in the best interests of Payne, joined as a party to the derivative action. During 1980-1984, Payne’s manufacturing division was profitable. During the pendency of the derivative action from 1985 through 1987, however, the division sustained increasing losses. The judge found that Driscoll’s course of conduct during that time exhibited a purpose to undermine King’s ability successfully to manage the manufacturing division and, thus, to make the division unprofitable. Among Driscoll’s actions cited by the judge were charging the salaries of certain employees to the overhead of that division, halting a computer project designed to improve manufacturing efficiency, and restricting Dynan’s business travel for sales purposes. In 1986, Driscoll hired Martin as his assistant, and Martin contracted with a consulting firm to evaluate the manufacturing division. The judge found that, for various reasons including Martin’s past relationship with members of the consulting firm, the firm’s evaluation of the division was compromised. Although Martin resigned his employment with Payne early in 1987, he had been appointed a director and so his involvement with the corporation continued. In March, 1987, Rick Auth was hired by Driscoll as assistant to the treasurer. Auth previously had been affiliated with the accounting firm that performed services for Payne. In June 1987, a “steering committee” was formed to investigate the performance of Payne’s manufacturing division. The committee was chaired by Auth. Its members were Marchant, King, two Payne managers, and Paul Oberg of the consulting firm. The majority of the committee ultimately suggested that new management was needed in the manufacturing division — that is, King should be terminated. On November 13, 1987, at a meeting of the Payne board of directors attended by Driscoll, Martin, Marchant and Fritz, the directors voted to terminate King. Fritz abstained from this vote. At a meeting on November 30, 1987, Driscoll, in the presence of Martin, terminated King’s employment. King contends that, at this meeting, Driscoll suggested that he would not be firing King if it were not for his participation in the derivative suit. The Driscoll faction proffered several legitimate business reasons for terminating King. The group contended that King was ineffective as vice president of manufacturing and cited King’s failure to prepare a five-year plan for manufacturing as requested by Driscoll, the $250,000 loss sustained by the manufacturing division in 1986, the steering committee’s recommendation, and the consulting firm’s recommendation. The judge discussed and rejected each of these reasons. In addition, the judge made findings regarding the motives and conduct of Driscoll, Martin, Marchant, and Fritz which led him to his conclusion that the reasons asserted for King’s termination were a pretext. The judge concluded that, on his review of the totality of the evidence, King’s termination did not have a legitimate business purpose. Instead, the judge found, King was terminated in retaliation for his participation in the derivative action. Acknowledging the general rule that, as an at-will employee, King could be terminated at any time with or without cause, the judge ruled that King’s termination in retaliation for participating in a derivative suit was covered by the public policy exception to the general rule. Thus, the judge concluded, King’s termination was wrongful and actionable at law. The judge also ruled that Payne, through the actions of Driscoll, Martin, and Marchant, breached the covenant of good faith and fair dealing implied in at-will employment contracts. As to King’s claim of intentional interference with contractual relations, the judge concluded that Driscoll and Martin, but not Marchant, were liable for interfering with King’s employment' contract with Payne. In addition, the judge concluded that Driscoll and Marchant, as shareholders in a close corporation, breached the duty of utmost good faith and loyalty owed to King, another shareholder. On King’s claim that his termination violated an implied contract that he would be terminated only “for cause” and only after notice and a hearing as provided in Payne’s bylaws, the judge ruled against King. Payne had filed counterclaims against King for allegedly violating an implied covenant of good faith and fair dealing by his alleged failure to prevent and later account for a loss of inventory, his alleged premature installation and invoicing of a particular elevator project, and his alleged failure to rectify a problem with a certain type of elevator button used by Payne. The judge found in favor of King on these counterclaims. The judge also awarded King attorney’s fees. 1. Wrongful termination claim. The defendants argue that there was insufficient evidence on which the judge could have based his finding of wrongful termination, and that, in any case, there is no public policy which would prevent an employer from terminating an employee who participates in a shareholder derivative action. Because we agree with the defendants’ second argument, we need not address the first. See Wright v. Shriners Hosp. for Crippled Chidren, 412 Mass. 469, 472 (1992) (whether retaliatory discharge violates public policy question of law for the judge). As an exception to the general rule that an employer may terminate an at-will employee at any time with or without cause, we have recognized that an at-will employee has a cause of action for wrongful termination only if the termination violates a clearly established public policy. Flesner v. Technical Communications Corp., 410 Mass. 805, 810-811 (1991) (wrongful termination where employee was terminated for cooperating with Customs officials in investigation of employer, even though employee was not required by law to cooperate) (noting, id. at 810, quoting Smith-Pfeffer v. Superintendant of the Walter E. Fernald State Sch., 404 Mass. 145, 149 [1989], that “redress is available for employees who are terminated ‘for asserting a legally guaranteed right [e.g. filing workers’ compensation claim]’ ”). Hobson v. McLean Hosp. Corp., 402 Mass. 413, 416-417 (1988) (wrongful termination may be found where employee was terminated for adhering strictly to what law required). DeRose v. Putnam Management Co., 398 Mass. 205, 209-211 (1986) (termination wrongful where employee was terminated for refusing to testify falsely at trial, i.e., refusing to do what the law forbids). Cort v. Bristol-Myers Co., 385 Mass. 300, 306-307 (1982) (wrongful termination may be found where employee is terminated for refusing to provide information to employer where such request is serious or substantial interference with privacy). Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 668 n.6 (1981), S.C., 391 Mass. 333 (1984). This court consistently has interpreted the public policy exception narrowly, reasoning that to do otherwise would “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 at 150. See Wright, supra at 474 (where nurse reported internal problems to high-level officials within organization, reports were internal matter, which could not be basis for pub-lie policy exception); Smith-Pfeffer, supra at 150-151 (where employee expressed disagreement with superior’s management of school, even if to do so was appropriate, socially desirable conduct, termination was not wrongful because school management was an internal matter); Mello v. Stop & Shop Cos., 402 Mass. 555, 560-561 (1988) (termination of employee who reported false damage claims could not be wrongful because claims were an internal matter). See also Mistishen v. Falcone Piano Co., 36 Mass. App. Ct. 243, 245-246 (1994) (discharge of employee who threatened to reveal employer’s unfair and deceptive trade practices which were not a threat to public health or safety was not wrongful because the situation did not rise to the requisite level of public importance; it was an internal matter); Yovino v. Fish, 27 Mass. App. Ct. 442, 444-445 (1989) (termination of producer of radio program who permitted program which parodied and thus offended public officials was not wrongful because no issue of freedom of speech of employee was involved). As the above cases demonstrate, the internal administration, policy, functioning, and other matters of an organization cannot be the basis for a public policy exception to the general rule that at-will employees are terminable at any time with or without cause. In this case, the subject of the lawsuit, the price to be paid under the stock buy back program, was an internal company matter. The mere fact that a dissatisfied shareholder could litigate the matter in a court of the Commonwealth does not transform this into an external matter involving, as the plaintiff argues, public policy. Thus, assuming that King was terminated in retaliation for participation in the derivative action, we conclude that his termination did not violate any public policy. General Laws c. 156B, § 46 (1992 ed.), conferred on King the right to participate in a derivative suit. While we often look to statutes to find pronouncements of public policy, see, e.g., Federici v. Mansfield Credit Union, 399 Mass. 592, 596-597 (1987); but see Wright, supra at 477-478 (Liacos, C.J., dissenting) (emphasizing separate common law sources of public policy determinations), it is not necessarily true that the existence of a statute relating to a particular matter is by itself a pronouncement of public policy that will protect, in every instance, an employee from termination. Even a public policy, evidenced in a particular statute, which protects employees in some instances might not protect employees in all instances. See Mistishen, supra. The statute at issue may suggest a public policy in favor of allowing shareholders to seek redress for perceived harms to the corporation. This public policy, however, which relates to the financial well being of the corporation and, by extension, its shareholders, does not rise to the level of importance required to justify an exception to the general rule regarding termination of employees at will. It may be true generally that the financial well being of a corporation affects the economy which in turn affects the well being of the citizenry, and that, therefore, shareholder derivative actions are appropriate and socially desirable conduct. Nevertheless, such a remote effect on the public, arising in the context of a conflict over internal policy matters, does not elevate King’s participation in the lawsuit to protected activity. See Mistishen, supra at 246. The fact that participation in a derivative suit is a right of a shareholder employee conferred by G. L. c. 156B, § 46, also does not change our conclusion. To date, we have acknowledged very few statutory rights the exercise of which would warrant invocation of the public policy exception. See Flesner, supra at 810. For the exercise of a statutory right to be worthy of protection in this area we believe that the statutory right must relate to or arise from the employee’s status as an employee, not as a shareholder. Cf. Mello, supra at 557 (rule of liability can be found where statute expresses Legislature’s policy concerning employees’ rights). The exerelse of the right to file a derivative action arose from King’s status as a shareholder; his termination as an employee resulting from the exercise of that right does not automatically entitle him to seek redress. 2. Breach of the duty of utmost good faith and loyalty owed to King as a shareholder. Relying on Donahue v. Rodd Electrotype Co. of New England, Inc., 367 Mass. 578, 586-587 (1975), and Wilkes v. Springside Nursing Home, Inc., 370 Mass. 842, 848 (1976), the judge concluded that Driscoll and Marchant breached the duty of utmost good faith and loyalty to King when they terminated King’s employment with Payne. The defendants argue for reversal of this conclusion. In support thereof they offer the case of Evangelista v. Holland, 27 Mass. App. Ct. 244 (1989). Evangelista, supra at 248-249, cites to Donahue, supra at 598 n.24, for the proposition, “Questions of good faith and loyalty do not arise when all the stockholders in advance enter into an agreement for the purchase of stock of a withdrawing or deceased stockholder.” In both the Donahue and Evangelista cases, however, the controversies themselves arose from repurchase transactions of the stock of certain shareholders. Donahue, supra at 579. Evangelista, supra at 245-246. Thus, the courts deciding those cases were examining the duties of good faith and loyalty surrounding the repurchase transactions alone. Accordingly in Evangelista, where there was a valid repurchase agreement previously executed and there was no indication that, at the time of the execution of the agreement, the parties failed in their duties of good faith and loyalty, the court was warranted in stating that “ [questions of good faith and loyalty do not arise when all the stockholders in advance enter into an agreement for the purchase of stock . . . .” Id. at 248-249. Evangelista does not stand for the proposition that the existence of a buy back agreement completely relieves shareholders of the high duty owed to one another in all dealings among them. In this case, contrary to the facts of Donahue and Evangelista, the allegations of breach of the duty of utmost good faith and loyalty arose from the conduct of fellow shareholders Driscoll and Marchant during the whole series of events leading up to and including the termination of the plaintiff. The plaintiff did not aver that the terms of the repurchase constituted a breach of the duty, but in essence argued that the conduct of the defendants w

James A. Webster & another vs. Motorola, Inc., & others. Suffolk. April 5, 1994. July 21, 1994. Present: Liacos, C.J., Abrams, Nolan, Lynch, & Greaney, JJ. Civil Rights, Availability of remedy, Coercion. Privacy. Controlled Substances. Contract, Employment. Employment, Termination, Urine testing. Summary judgment was correctly entered for the defendants on claims brought by two at-will employees against their employers alleging violation of the Massachusetts Civil Rights Act, G. L. c. 12, § 111, where the conduct of the employers in instituting a mandatory universal drug testing program involving urinalysis, did not constitute a threat, intimidation or coercion, where the employees had no right to their at-will positions, and where the drug testing program was universal and not directed toward the plaintiffs. [429-430] In a civil action in which two employees claimed that their employers’ institution of a mandatory, universal drug testing program violated their right to privacy under G. L. c. 214, § IB, the judge correctly concluded that, in light of the nature of the defendants’ businesses, the plaintiffs’ duties and responsibilities, and the program’s testing procedures which guarantee privacy and ensure accuracy as much as possible, the drug testing policy was reasonable as to one employee but not as to the other. [430-434] Civil action commenced in the Superior Court Department on September 26, 1990. A motion for summary judgment was heard by Patti B. Saris, J., and claims by the plaintiffs under G. L. c. 214, § IB, the Massachusetts Privacy Act, were heard by her. The Supreme Judicial Court granted a request for direct appellate review. David A. Hoffman {Audrey K. Wang & Sarah Wunsch with him) for the plaintiffs. Paul E. Nemser {David S. Mackey with him) for the defendants. Warren M. Davison, Mark A. de Bernardo & John W Kyle, of the District of Columbia, for Institute for a Drug-Free Workplace, amicus curiae, submitted a brief. Michael P. Joyce. Motorola Communications and Electronics, Inc., and Codex Corporation. Nolan, J. This case concerns the propriety of a drug testing program instituted by the defendants Motorola Communications and Electronics, Inc. (Motorola Communications) and Codex Corporation (Codex), which are subsidiaries of the defendant Motorola, Inc. (Motorola). The plaintiffs, James A. Webster and Michael P. Joyce, appeal from the summary judgment against them on their claims brought under G. L. c. 12, § 111 (1992 ed.), the Massachusetts Civil Rights Act (MCRA), and Webster appeals the ruling and decision of the trial judge who was also the motion judge in favor of the defendants on his claim under G. L. c. 214, § IB (1992 ed.), the Massachusetts Privacy Act. The defendants cross appeal the trial judge’s decision in favor of Joyce on his claim under c. 214, § IB. We granted the defendants’ application for direct appellate review. We affirm. The facts follow. Motorola is an international manufacturer of various electronic equipment and systems. On January 1, 1991, Motorola instituted a universal drug testing program (program) at all of its facilities, including those operated as Motorola Communications and Codex. Before 1991, Motorola’s employees were subjected to a urine test prior to their employment and otherwise only “for cause.” Under the program, employees are randomly selected by computer for testing. Name selection runs on a cycle, such that each employee is selected at least once in a three-year period. When selected for testing under the program, employees are notified and instructed to report to a designated collection site located at or in the area of their Motorola facility. On arriving at the testing location, an employee is asked to sign a form authorizing the testing. The employee is given the opportunity to disclose to the technicians any medications he may recently have taken. The employee is then given a cup, and is asked to provide a urine specimen. The employee is directed to a private room in which to produce the specimen. A technician stands immediately outside of the room to listen while the employee urinates. Once provided with the specimen, the technician, while in the presence of the employee, examines the specimen for unusual characteristics and records its temperature. The employee is then allowed to leave. Collected urine specimens are tested by an independent chemical laboratory for the presence of five classes of drugs: marihuana, cocaine, opiates, phencyclidine (PCP), and amphetamines. If a sample tests positive for any of these drugs, it is further tested for barbiturates, benzodiazepines, methadone, and methaqualone. Each positive result is reported to a medical review officer (MRO), who is not an employee of Motorola, for verification. An MRO meets with each employee who has tested positive, and asks them about medications and dietary information in an effort to identify any substances which may have affected the testing. The MRO then reviews the test results and the information obtained during the employee interview to verify the positive test result. The MRO is instructed by Motorola to rule on the side of the employee if the MRO has “discussed or seen evidence from the employee that would substantiate a negative rather than a positive test.” A verified positive test result is reported to a designated staff member in the health services department at Motorola’s corporate headquarters. The result is then disclosed to a designated personnel professional for the employee’s division, who in turn communicates with the employee and a Motorola employee assistance program (EAP) professional. The employee’s supervisors are notified only if necessary to restrict the employee’s duties or to provide accommodations for the employee. The EAP professional meets with the employee to assess the nature of the employee’s drug use. The employee is then referred to an outside provider, who diagnoses the employee and recommends a rehabilitation plan. Rehabilitation plans may include education, out-patient treatment, or in-patient treatment. Employees who refuse to undergo rehabilitation or who otherwise refuse to comply with Motorola’s drug testing program are terminated. James A. Webster was employed by Motorola Communications in Waltham as an account executive. He was an “at-will” employee; his employment relationship with Motorola Communications was expressly terminable “with or without notice at any time, and for any reason.” At the inception of his employment in 1988, Webster signed a drug testing consent form, which at that time concerned only preemployment testing and “for-cause” testing. As part of his employment responsibilities, Webster sells communications equipment to various State and local government agencies. His position requires that he drive a company-owned vehicle approximately 20,000 to 25,000 miles a year. On March 2, 1992, Webster was informed that he had been selected for testing. He was tested on March 3, after signing the testing authorization form under protest. He chose to be tested rather than face termination under the program. Michael P. Joyce was employed at Codex as a principal technical editor. Like Webster, his employment relationship with his employer was “at will.” Joyce primarily edited user manuals for data communications equipment. He also designed and developed product documentation and tested documentation against products. Numerous products for which Joyce edited documentation have been sold to the United States Department of Defense (Defense Department) and the Federal Aviation Administration (FAA). On notice of Motorola’s program, Joyce objected to Codex management. He was not tested under the program. This action commenced in the Superior Court on September 26, 1990. The plaintiffs’ complaint includes claims under G. L. c. 12, § 111, and G. L. c. 214, § IB, and claims for breach of contract and wrongful termination. The plaintiffs seek declaratory and injunctive relief, as well as costs and attorney’s fees. The plaintiffs filed a motion for a preliminary injunction, which was denied. After a period of discovery, the defendants moved for summary judgment. The motion judge entered judgment in favor of the defendants on all claims except those brought under G. L. c. 214, § IB. The plaintiffs filed a motion for reconsideration as to their claims under the MCRA, which was denied. Trial commenced on June 12, 1992, and was conducted before a judge sitting without a jury. Trial lasted three days. On November 10, 1992, the trial judge issued her findings of fact, rulings of law, and order of judgment. She ruled that Motorola’s program violated the privacy act as to Joyce but not as to Webster, and she ordered that the defendants be enjoined from testing Joyce under the program. We address the issues. 1. Massachusetts Civil Rights Act. The plaintiffs assert that the defendants violated G. L. c. 12, § 111, by interfering. or attempting to interfere with their right to privacy. They argue that the defendants’ conduct constitutes actionable “threats, intimidation or coercion.” The motion judge ruled that the alleged conduct of the defendants, as a matter of law, did not constitute a threat, intimidation, or coercion. We agree. Relief under the Massachusetts Civil Rights Act may be granted where the threat, intimidation, or coercion involves “any interference or attempted interference with any right secured by the Constitution or laws either of the United States or of the Commonwealth.” Folmsbee v. Tech Tool Grinding & Supply, Inc., 417 Mass. 388, 392 (1994). In the present case, the defendants conditioned the plaintiffs’ continued employment on their submission to the program. The plaintiffs were employed “at will.” Thus, the defendants allegedly attempted to interfere with the plaintiffs’ rights by threatening the loss of their “at-will” positions. This is not actionable conduct. No physical confrontation is alleged, and because the plaintiffs were employed “at will,” they had no contract right to their positions. Furthermore, “meritorious claims for which this court has granted relief under the Massachusetts Civil Rights Act . . . [generally] involve [] measures directed toward a particular individual or class of persons.” Bally v. Northeastern Univ., 403 Mass. 713, 718-719 (1989). In this case, the plaintiffs’ employment was conditional on their participation in the defendants’ universal drug testing program. The program involves “indiscriminate, impartially administered testing, and is not comparable with the direct assault found in cases where we have granted relief under the Massachusetts Civil Rights Act.” Id. at 719. Summary judgment was properly entered for the defendants. 2. Right to privacy. The plaintiffs assert that the defendants’ universal drug testing program violates the plaintiffs’ statutory right to privacy, as provided in G. L. c. 214, § IB. The trial judge concluded that the defendants’ program violated the rights of Joyce but did not violate the rights of Webster. Webster argues error in the trial judge’s decision, claiming that the defendants’ interest in testing him is outweighed by his privacy interests. The defendants argue that the trial judge erred in her determination as to Joyce, claiming that their legitimate business interests outweigh Joyce’s privacy interest. There is no error. General Laws c. 214, § IB, protects an individual’s privacy from “unreasonable, substantial or serious” interference. To determine whether an employer’s drug testing policy violates its employees’ rights under § IB, we employ a balancing test: “[W]e balance[] the employee[s’] interest in privacy against the employer’s competing interest in determining whether [its employees are] using drugs.” Folmsbee v. Tech Tool Grinding & Supply, Inc., supra at 392, and cases cited. We note, “As . . . private employer[s], [the defendants] [are] not subject to the more stringent requirements of probable cause that govern public employers.” Id. at 393 n.7, citing Horsemen’s Benevolent & Protective Ass’n, Inc. v. State Racing Comm’n, 403 Mass. 692, 706 (1989). We examine the interests of the parties. “We have recognized that requiring an employee to submit to urinalysis involves, a significant invasion of privacy.” Folmsbee, supra at 392, citing O’Connor v. Police Comm’r of Boston, 408 Mass. 324, 328 (1990), and Horsemen’s Benevolent & Protective Ass’n, Inc. v. State Racing Comm’n, supra at 704. “The act of urination is inherently private,” Folmsbee, supra at 393, and beyond the act itself, individuals have a privacy interest in what may be detected through urine testing. Horsemen’s Benevolent & Protective Ass’n, Inc., supra at 700 (“an individual has reasonable expectations of privacy regarding the information which can be extracted from a urine specimen”). Additionally, to the extent that it may be requested to rebut an initial positive test result, information concerning an employee’s medical conditions is also within the realm of one’s privacy interest. See id. “On the other side of the balance is [the defendants’] legitimate business interest.” Folmsbee, supra at 393. We have stated that “an employer may have a substantial and valid interest in aspects of an employee’s health that could affect the employee’s ability effectively to perform job duties.” Bratt v. International Business Machs. Corp., 392 Mass. 508, 524 (1984). The nature of the employer’s business and the nature of the employee’s duties are relevant factors in determining the gravity of the employer’s.interest. See Folmsbee, supra. Motorola designs, manufactures, and sells various electronic equipment in international markets. Its products include two-way radios, pagers, cellular telephones and systems, semiconductors, defense and aerospace electronics, automotive and industrial electronics, computers, data communications equipment, and information processing equipment. These are used in consumer products, such as air bags, ignition systems controls, braking systems, and steering mechanisms, and are also sold to the government for various applications, including radar systems, ground-to-air communications, and two-way communication systems designed for State and local police and fire departments. Motorola Communications’s product line includes two-way communications systems, and Codex’s line includes data communications equipment and defense and aerospace electronics which are sold to various corporations in the retail, banking, and airline industries, as well as to the FAA, the Defense Department, and the White House. Webster was employed by Motorola Communications as an account executive. His responsibilities included sales of communications equipment to various local and State agencies. His position required him to drive a company-owned vehicle approximately 20,000 to 25,000 miles a year. Joyce was employed by Codex as a technical editor. His duties included designing and editing technical documentation for various data communications. Some of the equipment for which he edited documentation was sold to the Defense Department and the FAA. With respect to Webster, Motorola Communications’s and Motorola’s legitimate business interests justify their random drug testing program. The defendants, as do all businesses, have a general interest in protecting the safety of their employees and in providing them a drug-free environment in which to work. This interest alone, however, is not sufficient. Motorola Communications, and Motorola had the added interest in ensuring that Webster not operate their motor vehicle while intoxicated by drugs; this interest included protecting Webster’s safety and the safety of others, preventing corporate liability, and protecting corporate property. In the circumstances, the defendants’ legitimate business interests are sufficient to outweigh Webster’s privacy interests. With respect to Joyce, the interests of his employer, Codex, and Motorola are not sufficient to outweigh his privacy interests. Although his job duties are such that errors could possibly result in harm to human health and safety or to national security, the trial judge rightly determined that “the nexus between his job duties and the harms feared is attenuated.” Joyce primarily is an editor of technical texts; he is not a principal writer. His work is checked by others before release. In fact, the judge found that Motorola conceded that “it is unable to predict whether any of the manuals or updates which Mr. Joyce is editing . . . are likely to affect national security or human health and safety.” Joyce does not have a security clearance, nor does he work directly on matters of national security. The judge concluded that, “Motorola . . . has not demonstrated that the proprietary information in question is sufficiently sensitive to justify drug testing. Motorola merely asserts that Mr. Joyce has access to proprietary information and does not identify the nature of the information protected nor the risk of harm sought to be prevented.” The judge balanced that fact against Joyce’s privacy rights. See Folmsbee, supra at 392. Based on the evidence, the judge concluded that “the balance tips in favor of the employee.” The judge did not foreclose the possibility that Joyce’s job duties may change. The judge noted that, if Joyce’s duties “entail an immediate risk to health and safety,” the balance would shift in favor of Motorola. The judge recognized that the balancing of interests involves a factual inquiry. She considered the nature of the employee’s duties, as well as the safety risk to the employer, the employee, and the public. See Folmsbee, supra at 393. The judge’s factual findings are supported by the record, and her conclusions follow the law as stated by this court and the Supreme Court of the United States. See National Treasury Employees Union v. Von Raab, 489 U.S. 656, 678 (1989); Folmsbee, supra at 392-393; Bratt, supra at 518-519. There is no error in her conclusion that the legitimate interests of Codex and Motorola are not sufficient to outweigh the privacy interests of Joyce. Motorola’s testing program is not otherwise unreasonably intrusive. The individual being tested is not observed while urinating, nor is he or she visually inspected during the procedure. Cf. Folmsbee, supra at 393. The only information ultimately reported to Motorola is whether traces are discovered of any of the five drugs for which the sample was tested, and before being reported, test results are first verified by an independent MRO. The judge found that the laboratory which tests the specimens utilizes “a highly accurate, state-of-the-art technique.” The judge further found, “Though not subject by law to [them], Motorola’s testing procedures adhere to or give employees more protection and privacy than the [United States] Department of Health and Human Services Mandatory Guidelines for Federal Workplace Drug Testing Programs.” We conclude that, in light of the nature of the defendants’ businesses, the plaintiffs’ duties and responsibilities, and the program’s testing procedures which guarantee privacy and ensure accuracy as much as possible, the defendants’ drug testing policy was reasonable as to Webster but not as to Joyce. 3. Conclusion. We therefore affirm summary judgment in favor of the defendants on the plaintiffs’ civil rights claims, and we affirm the judge’s decision on the plaintiffs’ claims brought under G. L. c. 214. So ordered. Since the commencement of this action, both plaintiffs have left the employ of the defendants. This does not affect our review of the issues here presented; the plaintiffs still have standing to pursue their civil rights claims, and as the Superior Court judge declared that the defendants’ program violated G. L. c. 214, we review that issue as well. General Laws c. 12, § 111 (1992 ed.), reads in part as follows: “Any person whose exercise or enjoyment of rights secured

Ronald B. Wheatley vs. American Telephone & Telegraph Company & another. Suffolk. February 7, 1994. July 19, 1994. Present: Wilkins, Abrams, O’Connor, & Greaney, JJ. Practice, Civil, Summary judgment. Anti-Discrimination Law, Age, Termination of employment. Limitations, Statute of. Discussion of Federal case law construing the Federal anti-discrimination statutes to which this court looks in interpreting G. L. c. 151B. [397-398] In an action alleging employment discrimination by reason of age in violation of G. L. c. 15IB, § 4, the plaintiffs affidavit and accompanying materials demonstrated a genuine issue of material fact whether the plaintiff received unequivocal notice of his termination within the six months prior to the filing of his complaint, such as would trigger the commencement of the limitations period for filing the claim. [397-398] In an age discrimination in employment action, the plaintiffs affidavit and accompanying materials demonstrated a genuine issue of material fact whether the plaintiff knew or should have known his duties would be reassigned to younger employees so as to start the running of the limitations period for filing his claim. [398-400] Civil action commenced in the Superior Court Department on August 16, 1991. The case was heard by Regina L. Quinlan, J., on a motion for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Frank J. Teague for the plaintiff. Thomas E. Shirley for the defendants. Mare Rosen. Abrams, J. The plaintiff, Ronald B. Wheatley, filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) alleging that the defendants, American Telephone and Telegraph Company (AT&T) and Marc Rosen, terminated him because of his age in violation of G. L. c. 15IB, § 4 (1992 ed.). The plaintiff subsequently withdrew the complaint and commenced this age discrimination action in the Superior Court pursuant to G. L. c. 15IB, § 9 (1992 ed.). After concluding that the plaintiff failed to comply with the period of limitations set forth in G. L. c. 15IB, § 5, *the Superior Court judge allowed the defendants’ motion for summary judgment. The plaintiff appealed, contending that the Superior Court judge incorrectly determined that the period of limitations began to run, at the latest, on the date on which he received written notice that he would soon be terminated and that, even if the limitations period commenced on the notification date, AT&T’s assurance that it would assist him in finding alternative employment within the company and its failure to conspicuously post notice of employee rights under G. L. c. 15IB, § 7 (1992 ed.), tolled the limitations period. We transferred the appeal to this court on our own motion. We reverse. 1. The■ facts. Viewed in the light most favorable to the plaintiff, see Alioto v. Marnell, 402 Mass. 36, 37 (1988), the materials submitted on the summary judgment motion established the following facts. The plaintiff served as a regional attorney for AT&T from January, 1984, through December 30, 1990. Marc Rosen was the plaintiff’s immediate supervisor. The plaintiff’s primary responsibilities included reviewing and analyzing legislation introduced in the States of New York, Rhode Island, and Connecticut. On July 13, 1990, Rosen informed the plaintiff that his position would be eliminated. Rosen further informed the plaintiff that he would have a ninety-day “transition period” in which to find another position within the company and that company personnel would assist him in this effort. On September 10, 1990, the plaintiff received a letter from Richard Romano, Rosen’s supervisor, advising him that his position had been eliminated and that he would be terminated on November 30", 1990, if he were unable to secure another position within AT&T by that date. On December 30, 1990, the plaintiff was officially taken off the AT&T payroll. On April 24, 1991, the plaintiff filed a charge of age discrimination against AT&T with the MCAD pursuant to G. L. c. 151B. 2. The summary judgment standard. Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). However, “granting summary judgment is error when the party opposing the motion has alleged facts relating to the transaction on which suit has been brought which raise issues entitling him to a trial.” Community Nat’l Bank v. Dawes, 369 Mass. 550, 556 (1976). See also Mathers v. Midland-Ross Corp., 403 Mass. 688, 690 (1989); Attorney Gen. v. Bailey, 386 Mass. 367, 371, cert, denied, 459 U.S. 970 (1982). “[A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass. R. Civ. P. 56 (c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case. . . . That showing having been made, the plaintiff [must] respond by ‘set [ting] forth specific facts showing that there is a genuine issue for trial.’ ” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991), quoting Mass. R. Civ. P. 56 (e). 3. AT&T’s motion for summary judgment. The defendant AT&T contends that we should look to Federal law to determine the correctness of the judge’s ruling on the motion for summary judgment. It is our practice to apply Federal case law construing the Federal anti-discrimination statutes in interpreting G. L. c. 15IB. See, e.g., Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 135-139 (1976). We turn therefore to the Federal cases. Some Federal courts treat a “discharge” notice that offers the possibility of other employment within the company as an equivocal termination notice which does not trigger the commencement of the limitations period for filing an employment discrimination claim. See McConnell v. General Tel. Co. of Cal., 814 F.2d 1311, 1317 (9th Cir. 1987), cert, denied, 484 U.S. 1059 (1988). See also Verschuuren v. Equitable Life Assurance Soc’y of U.S., 554 F. Supp. 1188, 1190 (S.D.N.Y. 1983). We agree with the reasoning of these cases. “The statutory period for complaining of a discriminatory termination does not begin to run until the employee has sufficient notice of that specific act.” McConnell, supra at 1317. Because AT&T held out the possibility of other employment within the company, the letter of September 10, 1990, did not trigger the six-month statute of limitations. The plaintiffs affidavit and the materials accompanying it establish a genuine issue whether the plaintiff received unequivocal notice of his termination within six months of the filing of his complaint. On this basis, the trial judge should have denied AT&T’s motion for summary judgment. Further, in age-based discriminatory discharge claims, some Federal courts have ruled that the limitations period does not start to run until the employee knows or should know that he or she has been or will be replaced by a person outside the protected age group. See Sturniolo v. Sheaffer, Eaton, Inc., 15 F.3d 1023, 1025-1026 (11th Cir. 1994); Rhodes v. Guiberson Oil Tools Div., 927 F.2d 876, 880-882 (5th Cir.), cert, denied, 502 U.S. 868 (1991); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307-309 (3d Cir. 1983), cert, dismissed, 465 U.S. 1091 (1984). The principle announced in these Federal cases is consistent with our own holdings. See Hendrickson v. Sears, 365 Mass. 83, 89 (1974) (“a cause of action accrues on the happening of an event likely to put the plaintiff on notice”). See also Puritan Medical Center, Inc. v. Cashman, 413 Mass. 167, 175 (1992); Murphy v. Smith, 411 Mass. 133, 136 (1991); Riley v. Presnell, 409 Mass. 239, 251 (1991) (O’Connor, J., dissenting). In his affidavit, the plaintiff alleges that he was never informed by AT&T that, following his termination, his duties would be reassigned to younger employees. In a memorandum dated January 9, 1991, ten days after the plaintiff’s discharge, an AT&T official stated that “[a] major portion of the work and responsibility [previously performed by the plaintiff had been] transferred to [two younger employees].” The plaintiff’s affidavit and the materials accompanying it establish a genuine issue whether the plaintiff knew or should have known that he had been or would be replaced by persons outside the protected age group within six months of the filing of his complaint. On this basis as well, the trial judge should have denied AT&T’s motion for summary judgment. AT&T relies on Delaware State College v. Ricks, 449 U.S. 250 (1980), as support for its claim that the plaintiff’s complaint is untimely. In Ricks, supra at 258-259, the United States Supreme Court held that the period of limitations for bringing a claim pursuant to Title VII of the Civil Rights Act of 1964 commences to run on the date in which the employee is notified of the unlawful employment decision, not on the date in which termination actually occurs. However, in Ricks, the termination notice (denial of tenure) was explicit and final. Further, the notice (denial of tenure) was the only claim of discrimination. The Supreme Court noted that the employer’s letter to Ricks provided “explicit notice that his employment would end upon [the ‘terminal’ contract’s] expiration.” Id. at 258. The Supreme Court con-eluded that “[w]here, as here, the only challenged employment practice occurs before the termination date, the limitations period necessarily commences to run before that date.” Id. at 259. Thus, on its facts, Ricks, supra, is inapplicable in this case. We conclude that the Superior Court judge erred in allowing the defendants’ motion for summary judgment and we remand this case to the Superior Court for further proceedings consistent with this opinion. So ordered. General Laws c. 15IB, § 4 (IB) (1992 ed.), provides, in part, that it shall be an unlawful practice “[f]or an employer in the private sector, by himself or his agent, because of the age of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual, or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.” General Laws c. 15IB, § 9 (1992 ed.), provides, in part, that “[a]ny person claiming to be aggrieved by a practice made unlawful under this chapter or under [c. 151C], or by any other unlawful practice within the jurisdiction of the commission, may, at the expiration of ninety days after the filing of a complaint with the commission, or sooner if a commissioner assents in writing, but not later than three years after the alleged unlawful practice occurred, bring a civil action for damages or injunctive relief or both in the superior court . . . .” General Laws c. 151B, § 5 (1992 ed.), provides, in part, that “[a]ny complaint filed pursuant to this section must be so filed within six months after the alleged act of discrimination.” General Laws c. 151B, § 7 (1992 ed.), provides that “[ejvery employer . . . subject to this chapter, shall post in a conspicuous place or places on his premises a notice to be prepared or approved by the commission, which shall set forth excerpts of this chapter and such other relevant information which the commission deems necessary to explain the chapter.” In a letter sent to the director of investigations for the Massachusetts Commission Against Discrimination on May 23, 1991, an AT&T staff attorney stated: “On July 13, 1990, Rosen . . . met with [the plaintiff] and informed him that [his] position . . . was being eliminated, and that he was being declared surplus. [The plaintiff] also was advised . . . that he would have ninety (90) days to locate another AT&T position, at the end of which time he would be separated from the payroll, and that Rosen and others would provide reassignment assistance during the transition period. ... On July 30, 1990, Victoria A. Knudson, one of the . . . staff managers responsible for assisting in the implementation of reductions-in-force, contacted [the plaintiff] about providing assistance in locating other positions in AT&T, and was advised by Wheatley that he was not mobile outside of Boston .... On September 11, 1990, Wheatley advised Knudson that he had received the Company’s force management plan package . . . and had no questions. ... On November 6, 1990, Wheatley advised Knudson that he was willing to broaden his search for a position.” Both in its July 13, 1990, conversation with the plaintiff and in its September 10, 1990, letter to the plaintiff, AT&T offered the plaintiff the possibility of other employment within the company. We note that McConnell v. General Tel. Co. of Cal., 814 F.2d 1311, 1317 (9th Cir. 1987), cert, denied, 484 U.S. 1059 (1988), also treats a “termination” notice that offers the possibility of other employment within the company as tolling the limitation period. See notes 6 and 7, supra. Because we conclude that the trial judge erred in allowing AT&T’s motion for summary judgment, we need not discuss the issue of tolling. We comment, however, that a reasonable person who has been informed that his or her employment would be terminated on a specified date if he or she did not obtain another position within the organization by that date might not file an employment discrimination claim during this “transition period” because “[t]he filing of such a charge may prejudice any pending reconsideration of the [termination] decision.” Delaware State College v. Ricks, 449 U.S. 250, 266 n.2 (1980) (Stevens, J., dissenting). Because we conclude that the trial judge erred in allowing AT&T’s motion for summary judgment, we need not reach or decide the issue whether AT&T’s failure conspicuously to post notice of employee rights under G. L. c. 151B, § 7 (1992 ed.), tolled the limitations period. How- . ever, with respect to AT&T’s argument that we should presume that the plaintiff knew his rights under G. L. c. 151B because he was a lawyer who monitored changes in the New York counterpart to G. L. c. 151B, we note that “[t]he issue of a party’s . . . knowledge . . . often cannot be resolved adequately from a consideration of the limited materials which accompany a summary judgment motion.” Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass. 81, 86 (1984). See Noyes v. Quincy Mut. Fire Ins. Co., 7 Mass. App. Ct. 723, 725-727 (1979).

Victoria Dalis vs. Buyer Advertising, Inc. Middlesex. March 8, 1994. July 11, 1994. Present: Liacos, C.J., Abrams, Nolan, O’Connor, & Greaney, JJ. Practice, Civil, Jury trial. Jurisdiction, Equitable. Common Law. Constitutional Law, Trial by jury, Sex discrimination. Jury and Jurors. Anti-Discrimination Law, Sex, Employee. Employment, Discrimination. Civil Rights, Termination of employment. Discussion of the right to trial by jury as provided in art. 15 of the Declaration of Rights of the Massachusetts Constitution. [221-222] A plaintiff was entitled to a jury trial on her claims alleging gender discrimination in employment (G. L. c. 151B, § 4) [222-226], wage discrimination based on gender (G. L. c. 149, §§ 105A-105C) .[226], violation of the maternity leave act (G. L. c. 149, § 105D) [227], and violation of the equal rights act (G. L. c. 93, § 102) [227-228], to the extent those claims were not solely for equitable relief, under the provisions of art. 15 of the Declaration of Rights that guarantee trial by jury in “controversies concerning property.” Civil action commenced in the Superior Court Department on July 1, 1992. A motion in limine to strike the plaintiff’s demand for a jury trial was considered by Robert H. Bohn, J. An application for leave to prosecute an interlocutory appeal was allowed by Elizabeth A. Porada, J., in the Appeals Court, and the appeal was reported to a panel of that court. The Supreme Judicial Court granted a request for direct appellate review. Duncan <S'. Payne (Arthur P. Menard with him) for the defendant. Gerald T. Anglin (Catherine Sheedy-McGonagle with him) for the plaintiff. Anne L. Josephson, Sarah Wunsch & Alice Zaft, for Civil Liberties Union of Massachusetts & another, amici curiae, submitted a brief. Barbara C. Johnson, pro se, amicus curiae, submitted a brief. Abrams, J. At issue is whether the plaintiff is entitled, as a matter of State constitutional right, to a trial by jury in an action alleging discrimination based on gender. The plaintiff, Victoria Dalis, claims that she was discharged from her employment because she was pregnant. She filed a complaint against her employer, Buyer Advertising, Inc. (defendant), alleging violations of G. L. c. 93, § 102 (1992 ed.) (equal rights act); G. L. c. 149, §§ 105A-105C (1992 ed.) (wage discrimination based on gender); G. L. c. 149, § 105D (1992- ed.) (maternity leave act); and G. L. c. 151B, § 4 (1) (1992 ed.) (gender discrimination in employment). In her complaint, the plaintiff moved for a jury trial. The defendant moved to strike the jury demand, claiming that Dalis was not entitled to a trial by jury under any of the cited statutes. A judge in the Superior Court denied the defendant’s motion. The defendant appealed to a single justice of the Appeals Court. Citing inconsistent decisions in the Superior Court, the single justice reported the matter to a panel of the Appeals Court. We allowed the defendant’s application for direct appellate review. We conclude that the plaintiff is entitled to a trial by jury on most of her claims under art. 15 of the Massachusetts Declaration of Rights. Therefore, we affirm the denial of the defendant’s motion. The plaintiff’s claim under art. 15 of the Declaration of Rights. Article 15 “preserves the ‘common law trial by jury in its indispensable characteristics as established and known at the time the Constitution was adopted’ in 1780.” Department of Revenue v. Jarvenpaa, 404 Mass. 177, 185-186 (1989). Article 15 does not preserve “the minor details or unessential formalities of the trial by jury as it then existed .either in England or here.” Bothwell v. Boston Elevated Ry., 215 Mass. 467, 473 (1913). The article must be construed with “flexibility in its adaptation of details to the changing needs of society without in any degree impairing its essential character.” Id. at 477. The language of art. 15 sweeps broadly: “In all controversics concerning property, and in all suits between two or more persons, ... the parties have a right to a trial by jury . . .” (emphasis added). The exception is narrowly defined: “[Ejxcept in cases in which it has heretofore been otherways used and practised.” Thus, according to the language of art. 15, the “sacred” method for resolving all manner of cases and controversies was trial by jury unless the case was one in which a court of equity in either England or Massachusetts would have exercised jurisdiction in 1780. See Parker v. Simpson, 180 Mass. 334, 355 (1902); Stockbridge v. Mixer, 215 Mass. 415, 418 (1913); In re Acushnet River & New Bedford Harbor, 712 F. Supp. 994, 1009-1010 (D. Mass. 1989). The jury system, as the “sacred” method for resolving factual disputes, is the most important means by which laypersons can participate in and understand the legal system. Commonwealth v. Canon, 373 Mass. 494, 516 (1977), cert. denied, 435 U.S. 933 (1978). It brings the “rules of law to the touchstone of contemporary common sense.” Id., quoting 1 W. Holdsworth, A History of English Law 348-349 (3d ed. 1922). “Jurors bring to a case their common sense and community values; their ‘very inexperience is an asset because it secures a fresh perception of each trial, avoiding the stereotypes said to infect the judicial eye.’ ” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 355 (1979) (Rehnquist, J., dissenting), quoting H. Kalven & H. Zeisel, The American Jury 8 (1966). The plaintiffs sex discrimination claim falls squarely within the language of art. 15. It is a suit between two persons which clearly sets forth a controversy concerning property. Parker v. Simpson, supra at 345. Next, we must determine whether the exception in art. 15 is applicable. We examine whether the plaintiffs claim is analogous, in either subject matter or remedy sought, to cases within the court’s equity jurisdiction, as it existed at the time of the adoption of the Constitution. See Parker v. Simpson, supra at 355. See also Powers v. Raymond, 137 Mass. 483, 485-486 (1884); Commonwealth v. Mongardi, 26 Mass. App. Ct. 5, 8 (1988). The plaintiff does not seek primarily equitable relief. Nor is the nature of her claim analogous to any case which was traditionally heard in a court of equity. Thus, the plaintiff has a right to a jury trial. See Gallagher v. Wilton Enters., Inc., 962 F.2d 120, 124 (1st Cir. 1992). Compare Department of Revenue v. Jarvenpaa, supra at 185-186 (plaintiffs not entitled to a jury trial because traditionally paternity and child support claims were not tried before a jury). The plaintiffs sex discrimination claim is analogous to common law actions sounding in both tort and contract. See Conway v. Electro Switch Corp., 402 Mass. 385, 388 (1988); Gallagher v. Wilton Enters., Inc., supra at 122-123 (“Courts have routinely held that discrimination suits in general, and employment discrimination suits in particular, are analogous to either of two common law causes of action [tort and contract]”). See also Beesley v. Hartford Fire Ins. Co., 717 F. Supp. 781, S.C., 723 F. Supp. 635, 652 (N.D. Ala. 1989) (Seventh Amendment guarantees a jury trial for plaintiffs in Title VII sex discrimination suits for lost wages). The United States Supreme Court has commented that “[a]n action to redress racial [or gender] discrimination may also be likened to an action for defamation or intentional infliction of mental distress.” Curtis v. Loether, 415 U.S. 189, 195-196 n.10 (1974). Under G. L. c. 15IB, § 9 (1992 ed.), the plaintiff may seek both legal and equitable remedies for violations of G. L. c. 15IB, § 4. If the plaintiff prevails, she may recover monetary damages for her economic losses as well as for mental anguish. See College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 169 (1987). In egregious cases, the statute also provides the legal remedy of punitive damages. See G. L. c. 15IB, § 9. The statute clearly affords the plaintiff the “legal remedy of compensatory damages.” Conway v. Electro Switch Corp., 402 Mass. 385, 387 (1988). The defendant concedes that the plaintiff’s sex discrimination claim is analogous to actions at common law, but argues that, absent clear legislative direction, the court should not imply a right to a jury trial. The issue is not whether we should imply a right to a jury trial but whether art. 15 preserves and protects the right to a jury trial on the plaintiff’s claims. Our long-standing rule is that the boundaries of equity jurisdiction “ought not to be widened by judicial decision . . . [because] the constitutional right of trial by jury would thereby become correspondingly narrowed.” Parkway, Inc. v. United States Fire Ins. Co., 314 Mass. 647, 651 (1943). The defendant relies on Nei v. Burley, 388 Mass. 307 (1983), to support its position that there is no constitutional right to a trial by jury on the plaintiff’s claims. We do not agree. In Nei, we said that the court should be “hesitant to imply a right to a jury trial for the sui generis causes of action for unfair or deceptive practices in the absence of legislative direction.” Id. at 314. General Laws c. 93A (consumer protection statute) entitles plaintiffs to relief where traditional legal remedies were considered inadequate by the Legislature. Unlike a traditional common law action for fraud, consumers suing under c. 93A need not prove actual reliance on a false representation, or that the defendant knew that the representation was false. Slaney v. Westwood Auto, Inc., 366 Mass. 688, 703 (1975). An “ ‘unfair or deceptive act or practice’ goes far beyond the scope of the common law action for fraud and deceit.” Id. We determined that any analogies between “unfair and deceptive practices” and common law claims for fraud and deceit were inappropriate. Nei v. Burley, supra at 313. Thus, we concluded that a plaintiff alleging a violation of G. L. c. 93A is not constitutionally entitled to a trial by jury. The outcome in Nei turned on the “equitable nature of the relief’ sought under c. 93A. Nei, supra at 315. By contrast, the nature of the plaintiffs claim is more analogous to actions at common law, and the relief sought by the plaintiff is predominantly legal. Nei is distinguishable on that basis. Under the broad language of art. 15, the plaintiffs right to a jury trial is protected. The exception set forth in art. 15 does not apply because the plaintiffs rights and remedies are similar to those traditionally treated as actions at law. Under art. 15, the plaintiff is constitutionally entitled to a trial by jury for her claim of employment discrimination based on sex. The judge correctly denied the defendant’s motion to strike the plaintiffs demand for a jury trial. General Laws c. 149, §§ 105A-105C Our analysis of the plaintiffs right to a jury trial under this statute is the same as under G. L. c. 15IB. The relevant inquiry is whether a claim of wage discrimination based on gender is analogous to cases which were traditionally treated as legal actions. Wage discrimination based on gender, like employment discrimination based on gender, has historical connections to common law tort and contract claims. See ante at 223. The statute permits plaintiffs to recover unpaid wages, and an additional equal amount of liquidated damages. Compensatory and punitive damages are legal remedies. Thus, both the nature of the action and the relief sought are legal. See Santiago-Negron v. Castro-Davila, 865 F.2d 431, 437, 441 (1st Cir. 1989) (back pay considered factor of compensatory damages which involves common law right to trial by jury). For the same reasons as stated ante at 223, we conclude that the plaintiff is entitled to a jury trial on her claim of wage discrimination based on gender. General Laws c. 149, § 105D. Again, we begin the analysis by exploring whether the rights afforded by this statute have an analogue in the class of cases which are essentially legal in nature, with roots in both tort and contracts. See supra at 223. An employee seeking relief under G. L. c. 149, § 105D, is entitled to both injunctive relief and money damages. The fact that the plaintiff is entitled to both legal and equitable relief may not compromise her constitutional right to a trial by jury. Stockbridge v. Mixer, 215 Mass. 415, 418 (1913). We agree with the Supreme Court that where there are legal and equitable claims present in the same case, the trial court will “have to use its discretion in deciding whether the legal or equitable cause should be tried first. Because the right to jury trial is a constitutional one, however, while no similar requirement protects trials by the court, that discretion is very narrowly limited and must, wherever possible, be exercised to preserve jury trial” (footnote omitted). Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510 (1959). Under State law, as in the Federal system, “only [in] the most imperative circumstances . . . can the right to a jury trial of legal issues be lost through prior determination of equitable claims.” Id. at 510-511. General Laws c. 93, § 102. The defendant contends that the only remedy available under G. L. c. 93, § 102, is “injunctive and other appropriate equitable relief.” Relying on our decision in Commonwealth v. Guilfoyle, 402 Mass. 130, 135-136 (1988), the defendant argues that the plaintiff is not entitled to a jury trial. We do not agree. In Guilfoyle, we concluded that there was no constitutional right to a jury trial for claims brought under the Massachusetts Civil Rights Act. Guilfoyle, supra at 135-136. Guilfoyle does not stand for the broad proposition that a jury trial does not attach to new causes of action. Our decision in Guilfoyle is grounded on the reasoning that art. 15 does not guarantee a right to a trial by jury in the class of cases traditionally reserved for the courts of equity. Guilfoyle, supra at 135. General Laws c. 93, § 102, guarantees equality in the making and enforcing of contracts. Article 15 preserves the right to a jury trial for traditional contract claims. Because a claim under G. L. c. 93, § 102, does not fall within the narrow class of cases reserved for courts of equity, the plaintiff is entitled to a trial by jury. See Parker v. Simpson, 180 Mass. 334, 355 (1902). As in the Federal system, to the extent that there are some equitable claims in addition to the legal claims, the judge has discretion to determine the order of trial between the legal claims and the request for some equitable relief. However the judge must recognize that judicial discretion is “narrowly limited” by the plaintiff’s State constitutional right to a trial by jury. The order of the Superior Court judge denying the defendant’s motion to strike the plaintiff’s demand for trial by jury is affirmed. This matter is remanded to the Superior Court for further proceedings. So ordered. We acknowledge the amicus briefs submitted by Barbara C. Johnson, The Civil Liberties Union of Massachusetts, and The Women’s Bar Association of Massachusetts. “In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practised, the parties have a right to a trial by jury; and this method of procedure shall be held sacred, unless, in causes arising on the high seas, and such as relate to mariners’ wages, the legislature shall hereafter find it necessary to alter it.” The plaintiff's complaint requests compensatory damages, exemplary damages, interests and costs, attorney’s fees, and reinstatement. The Seventh Amendment to the Constitution of the United States does not apply to a State civil trial. See Galvin v. Welsh Mfg. Co., 382 Mass. 340, 345 (1981). However, the court’s analysis of Title VII claims under the Seventh Amendment is similar to our analysis under art. 15. The Federal equal rights statute, 42 U.S.C. § 1981, also has been interpreted to confer a right to a jury trial. See Laskaris v. Thornburgh, 733 F.2d 260, 263 (3d Cir.), cert, denied, 469 U.S. 886 (1984) (“A party seeking compensatory and punitive damages or other legal relief under 42 U.S.C. § 1981 has a right to a jury trial”). See also Curtis v. Loether, 415 U.S. 189 (1974) (Seventh Amendment guarantees the right to a jury trial in suits alleging fair housing violations under 42 U.S.C. § 3612). Because the result we reach is consistent with the result reached in Federal courts, the right to a jury trial is not affected by the forum selected. In analyzing claims for a trial by jury under the Seventh Amendment, the Supreme Court has said that the Seventh Amendment requires a trial by jury if the complaint invokes rights and remedies traditionally resolved in an action at law rather than equity or admiralty. See Pernell v. Southall Realty, 416 U.S. 363, 375 (1974). Although we are not bound by these decisions in considering appropriate resolution of the plaintiffs claims, we consider the reasoning of the United States Supreme Court cases to be analogous to our case law. General Laws c. 151B, § 4 (1) (1992 ed.), provides: “It shall be an unlawful practice: 1. For an employer, by himself or his agent, because of the race, color, religious creed, national origin, sex, sexual orientation, which shall not include persons whose sexual orientation involves minor children as the sex object, or ancestry of any individual to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.” General Laws c. 151B, § 9 (1992 ed.), states, in relevant part: “Any person claiming to be aggrieved by a practice made unlawful under this chapter . . . may . . . bring a civil action for damages or injunctive relief or both in the superior or probate court . . . .” Though a plaintiff has no constitutional right to a trial by jury, the presiding judge may commit the resolution of a G. L. c. 93A claim to a jury as a matter of discretion. Travis v. McDonald, 397 Mass. 230, 234 (1986). General Laws c. 149, § 105A (1992 ed.), prohibits discrimination in the payment of wages based on sex. The statute provides the following remedy: “Any employer who violates any provision of this section shall be liable to the employee or employees affected in the amount of their unpaid wages, and in an additional equal amount of their unpaid wages, and in an additional equal amount of liquidated damages.” General Laws c. 149, § 105D (1992 ed.), requires that employers grant an employee up to eight weeks, with or without pay, for maternity leave. The statute provides in relevant part: “A female employee . . . shall be restored to her previous, or a similar position with the same status, pay, length of service credit and seniority, wherever applicable, as of the date of her leave. . . . Such maternity leave shall not affect. . . any other advantages or rights of her employment incident to her employment position.” “General Laws c. 93, § 102 (a) (1992 ed.), guarantees: “All persons within the Commonwealth, regardless of sex, race, color, creed or national origin, shall have, except as is otherwise provided or permitted by law, the same rights enjoyed by white male citizens, to make and enforce contracts, to inherit, purchase, to lease, sell, hold and convey real and personal property . . . and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” General Laws c. 93, § 102 (6) (1992 ed.), states in relevant part: “A person whose rights under the provisions of subsection (a) have been violated may commence a civil action for injunctive and other appropriate equitable relief, including the award of compensatory and exemplary damages. . . .” To the extent that the plaintiff seeks injunctive relief, that, of course, is a claim for equitable relief not subject to a trial by

NEDERHOOD v CADILLAC MALLEABLE IRON COMPANY ZIMMERMAN v CADILLAC MALLEABLE IRON COMPANY Docket Nos. 94110, 94299. Argued October 5, 1993 (Calendar Nos. 3-4). Decided May 31, 1994. Rehearing denied in Nederhood, post, 1237. Roger Nederhood and James Zimmerman separately sought worker’s compensation benefits for disability that allegedly arose out of and in the course of their employment with Cadillac Malleable Iron Company. A hearing referee found the plaintiffs to have been partially disabled at the commencement of a strike between Malleable and their union, but denied them benefits during the period of their participation in the strike. The referee found, however, that wage loss benefits recommenced when an offer by the union to return to work terminated any unreasonable refusal by the plaintiffs to perform favored work. The referee additionally found that Zimmerman became totally disabled on February 4, 1982, as a result of a supervening heart condition unrelated to his favored work. In separate proceedings, the Worker’s Compensation Appeal Board affirmed the referee’s findings with respect to dates of injury and the cessation of benefits during the strike, but reversed with regard to the restoration of wage loss benefits after the union’s offer, finding no showing that plaintiffs personally had offered to return to work. The Court of Appeals, Hood, P.J., and Connor and Richard Kaufman, JJ., affirmed in an unpublished opinion per curiam. In Zimmerman, it held that the wcab had not applied erroneous legal reasoning in determining that the plaintiff’s refusal to perform favored work while on strike, and not the actions of the union in striking, provided a basis for denying benefits, and that such forfeiture continued for the duration of the plaintiff’s unwillingness to return to work. It additionally found that Zimmerman’s supervening heart attack did not render him eligible for benefits, because he failed to communicate his willingness to return to work before the heart attack (Docket No. 134288). In Nederhood, the Court held that the wcab had correctly applied the law in determining that the plaintiff’s participation in the strike precluded collection of work loss benefits during the pendency of the strike and that he had not personally offered to return to favored work (Docket No. 134290). The plaintiffs appeal. In separate opinions, the Supreme Court held: A voluntary cessation of favored work per se does not result in a permanent forfeiture of wage loss benefits. In Zimmerman, the occurrence of the plaintiff’s heart attack while on strike does not preclude the recovery of wage loss benefits. Generally, a refusal of suitable work suspends benefits for the duration of the refusal. However, a permanent forfeiture of benefits is not in accord with a liberal construction of the Worker’s Disability Compensation Act. Nederhood reversed and remanded for further proceedings. Zimmerman reversed. Justice Brickley additionally stated that a voluntary cessation of favored work by a striking employee should result in a suspension of wage loss benefits. Neither a conditional offer to return by a worker’s union nor the hiring of permanent replacement workers by the employer should operate to automatically restore benefits to the striking employee. However, benefits should be restored once the employee expresses a good-faith willingness to return to favored work, provided such willingness is communicated to the employer within a reasonable period following the cessation of favored work. The resumption of such an employee’s right to benefits upon the occasion of a supervening heart attack that renders the employee totally disabled should depend on the certainty and extent of the injury, the length of the refusal to perform favored work before the injury, and the lack of a causal nexus between the refusal of favored work and the resulting heart attack. Justice Boyle, joined by Chief Justice Cavanagh and Justice Mallett, concurring in part and dissenting in part, additionally stated that the hiring of permanent replacement workers, in fact and in law, may work to withdraw an employer’s offer of favored work. An employee’s right to benefits is suspended only as long as there is a voluntary withholding of services. If the employer has revoked the offer of favored work with the hiring of replacement workers, then the refusal to work is no longer due to the strike. The issue of the adoption of a reasonable time limitation on an employee’s ability to reestablish the right to favored work is not properly before the Court and its disposition is unwarranted. However, only because three members of the Court propose the adoption of such a limitation is it necessary to oppose this adoption. The reasonable time limitation would present employers with a windfall by relieving them of the obligation to pay owed benefits or offer favored work without policy justification. Justice Riley, joined by Justice Griffin, concurring in part and dissenting in part, additionally stated that a striking favored worker fully disabled by a supervening event is not entitled to a reinstatement of benefits without showing an intention to have returned to work but for the supervening event. A favored worker who refuses to perform favored work because of participation in a strike forfeits the right to compensation. The worker only becomes eligible to have benefits restored when a good-faith willingness to resume favored work is tendered. Reasonableness must apply to both parties. A favored worker’s unreasonable delay in accepting an offer of favored work relieves the employer of liability. In Nederhood, the plaintiff failed to present a prima facie case and appropriately was denied relief. A supervening event causing cessation of an employee’s favored work will not terminate the right to benefits as long as the event is not under the employee’s control. While such an event does not preclude payment of compensation, the favored work doctrine does not require compensation to be automatically revived upon its happening. A claimant must show that favored work already was being performed and that a supervening independent event precluded its continuance. In Zimmerman, the plaintiff was not entitled to benefits. He was not performing favored work when he suffered the heart attack, but was voluntarily participating- in a strike, and he failed to present evidence that he would have returned to work despite the strike and the decertification of the union. His disability is irrelevant to his ability to receive benefits because he would have been ineligible for such benefits if he had not had the heart attack. Justice Levin, writing separately, joined in reversal in Zimmerman, and would remand with the direction that benefits should be awarded to Nederhood, but joined in remand to provide a fourth vote for a disposition that may result in the award of compensation. MCL 418.301(5)(a); MSA 17.237(301)(5)(a), effective January 1, 1982, providing that a disabled employee who refuses a bona fide offer of reasonable employment from a previous employer, another employer, or through the Employment Security Commission without good and reasonable cause is no longer entitled to any wage loss benefits during the period of such refusal, is inconsistent with the view that such a refusal results in permanent forfeiture of worker’s compensation benefits. That statutory provision is also inconsistent with the view that because it would be unreasonable to expect the employer to keep such positions open beyond the point that it announced the jobs would be filled by permanent replacements, Nederhood may not recover benefits. While the needs of the employer may justify the employer in not keeping an offer open beyond a reasonable time, the need of the employee to participate in a strike may justify a refusal to work during a strike. The disabled worker is nevertheless disabled and can properly be denied benefits only during the period of a refusal, without good and reasonable cause, of a bona fide offer of reasonable employment from a previous employer, another employer, or through the mesc. The period of such a refusal is a question of fact, and the burden of showing refusal of work should be borne by the employer because the offer of favored work is in mitigation of damages. Bott & Spencer, P.C. (by Timothy J. Bott), for the plaintiff. Russell & Carowitz (by Fanny L. Vail) for the defendant. Brickley, J. We granted leave in these cases to determine whether the Worker’s Compensation Appeal Board and the Court of Appeals erred in concluding that the plaintiffs-appellants were disqualified from receiving worker’s compensation benefits because they left favored work to participate in a strike that resulted in the use of permanent replacements. In deciding this issue, we must determine whether the hiring of permanent replacement workers obligates an employer to renew its offer of favored work to its injured employees, or whether the employee must take action to reinstate benefits. In the case of plaintiff-appellant James Zimmerman, who became fully disabled after the strike had begun, we must determine whether such total disability operates to revive his right to benefits. We conclude that where a striking favored worker has voluntarily ceased performance of favored work, benefits should be restored once the favored worker expresses a good-faith willingness to return to favored work, provided this willingness is communicated to the employer within a reasonable time after the cessation of favored work. Such benefits should not automatically be restored upon the hiring of permanent replacement workers by the employer. Additionally, we would hold that plaintiff Zimmerman’s supervening heart attack, which rendered him totally disabled, revived his right to benefits. I A This dispute arose out of a labor strike between defendant-appellee Cadillac Malleable Iron Company and Local 784 of the uaw, of which plaintiffs-appellants, James Zimmerman and Roger Nederhood, were members. On September 30, 1981, the collective bargaining agreement between Cadillac and the union expired, and the union struck on October 1, 1981, when it became apparent that a new agreement was not forthcoming. At this time, approximately thirty-five proposals for a new contract were unresolved. Cadillac was demanding twenty-four additional language changes in the contract and the union was demanding a $2 per month increase in the employer’s pension contribution for current retirees. On October 7, 1981, Cadillac modified its September 30 proposal and submitted it to the union. These modifications included an extension of seniority retention during layoff to thirty-six months. This offer was rejected by the union and was withdrawn by Cadillac by October 22, 1981. On January 12, 1982, Cadillac officially informed the union that it would be hiring permanent replacement workers. At a January 18, 1982, bargaining session, the union attempted to accept the October 7, 1981, proposal, and offered to accept a dollar an hour cut in wages. Cadillac informed the union representative that the October 7 proposal had been withdrawn, and insisted on limiting wages to $6 per hour with no cost-of-living adjustment, and on limiting the number of plant classifications. The union representative terminated this meeting. As of March, 1983, forty-one or forty-two replacement workers had been hired. At the time of the strike, approximately eighty workers had been employed by Cadillac. The record is silent with regard to whether plaintiffs’ favored work positions had been given to permanent replacements. B A hearing referee found both Zimmerman and Nederhood to have been partially disabled at the commencement of the strike, but determined that plaintiffs were not entitled to wage loss benefits for the period between October 1, 1981, and January 18, 1982, because of their participation in a strike. The referee found, however, that wage loss benefits recommenced on January 18, 1982, determining that the union’s “offer to return” to work on this date terminated any unreasonable refusal by plaintiffs to perform favored work. Additionally, the hearing referee found that on February 4, 1982, plaintiff Zimmerman became totally disabled as a result of his supervening, non-work-related heart condition. The wcab affirmed the hearing referee’s findings with respect to injury dates and the cessation of benefits during the strike, but reversed the referee’s determination that plaintiffs were entitled to restoration of wage loss benefits as of January 18, 1982, finding instead that there was no showing that plaintiffs themselves had offered to return to work at any time before the wcab hearing. Plaintiffs’ applications for leave to appeal to the Court of Appeals were denied for lack of merit, and we remanded for consideration as on leave granted. The Court of Appeals affirmed the decisions of the wcab. In Zimmerman, it held that the wcab had not applied erroneous legal reasoning in determining that plaintiff’s individual refusal to perform favored work while his union was on strike, and not the actions of the union in striking, provided a basis for denying benefits, and that such forfeiture continued for the duration of plaintiff’s unwillingness to return to work. In Nederhood, it held that the wcab had correctly applied the law in determining that Nederhood’s participation in the strike precluded him from collecting wage loss benefits during the pendency of the strike. The Court of Appeals also found that the record adequately supported the board’s holding that plaintiffs had not personally offered to return to favored work, and that the union’s January 18, 1982, "offer” was merely another proposal in a series of negotiations. Additionally, in Zimmerman, it found that plaintiff’s supervening heart attack did not render him eligible for benefits because he had failed to communicate his willingness to return to work before his supervening heart attack, thus failing to meet his burden of establishing his entitlement to benefits. On March 16, 1993, we granted leave to appeal, ordering that Zimmerman and Nederhood be submitted and argued together. 442 Mich 867. II As a preliminary matter, we note that the parties do not dispute that the plaintiffs were performing favored work at the time of the strike. Additionally, the parties do not contest that before the union’s offer to return to work on December 4, 1981, under a contract incorporating prestrike terms, plaintiffs were disqualified from receiving benefits on the basis of their voluntary cessation of favored work stemming from their participation in a strike. We must now decide the duration of this disqualification._ The general rule is that a refusal of suitable work suspends benefits for the duration of the refusal. Although this Court has never expressly decided the question, in Bower v Whitehall Leather Co, 412 Mich 172; 312 NW2d 640 (1981), we utilized a case that supports this rule, and our decision in Pigue v General Motors Corp, 317 Mich 311; 26 NW2d 900 (1947), seems also to imply a suspension of benefits instead of a permanent forfeiture. A The Bower Court’s citation, with apparent approval, of PPG Industries, Inc v Aites, 7 Pa Commw Ct 588; 300 A2d 902 (1973), supports the conclusion that Bower envisioned only a temporary loss of benefits. In PPG Industries, Inc, the employee left his favored work to become a minister. Once it became evident that he was unable to earn a living as a minister, he attempted to find other light work. The court held that he had. not permanently forfeited his benefits by leaving favored work. The combination of the claimant’s attempt to find employment other than as a minister and the unavailability of his old favored position triggered his eligibility for benefits. B The Pigue Court did not expressly address this issue because the claimant had returned to favored work upon settlement of the strike. In framing the issue, however, the Court stated that the pivotal question was whether the plaintiff was entitled to compensation "during the period of a strike . . . .” Id. at 315. While the weight to be accorded this is minimal, it lends credence to the view that suspension is the sanction implicit in Pigue. Noteworthy, also, is that the Pigue Court neither stated nor intimated that a permanent forfeiture results. c Larson, in his treatise on worker’s compensation, opines that a temporary forfeiture of benefits is the preferred sanction. Although discussed within the context of employee misconduct, the reasons underlying his conclusions apply with equal force to the striking employee. Larson states that an injured employee discharged for misconduct should not suffer a permanent loss of benefits. He draws an analogy to the unemployment context, in which misconduct-based discharges and voluntary quitting are handled by imposing a penalty of a limited number of weeks. Likewise, he concludes that in the worker’s compensation arena, the penalty for a voluntary cessation of favored work should also be limited to a loss of benefits for a period of weeks. D The Minnesota Supreme Court has grappled with this issue and determined that only a temporary forfeiture of benefits should result. Marsolek v George A Hormel Co, 438 NW2d 922, 923 (Minn, 1989). In this case, a partially disabled employee, Marsolek, was terminated for misconduct during a strike against the employer. Marsolek had threatened to damage cars and injure employees attempting to cross the picket line. When the plant was reopened five months after the strike began, Marsolek was not invited to return. Except for a three-month period following the strike, he was unable to find employment, and filed a claim for worker’s compensation benefits, including a claim for lost wages. The court held that a justifiable discharge for misconduct suspends an injured employee’s right to wage loss benefits; but the suspension of entitlement to wage loss benefits will be lifted once it has become demonstrable that the employee’s work-related disability is the cause of the employee’s inability to find or hold new employment. Such a determination should be made upon consideration of the totality of the circumstances including the usual work search "requirements.” [Id. at 924. Emphasis added.] In reaching this conclusion, the court noted that the purpose of the Worker’s Compensation Act was to compensate injured employees for a wage loss attributable to a work injury. On this basis, compensation has been denied where the record established only a discharge for misconduct; but benefits have been awarded where the record evidenced misconduct, yet showed that the employee’s injury was the cause of his inability to find other work. E The Court of Appeals has, on several occasions, spoken on the issue of permanent forfeiture. In Hartsell v Richmond Lumber Co, 154 Mich App 523; 398 NW2d 456 (1986), the employee left his favored work as a night watchman and began working elsewhere. Hartsell was given compensation for total disability during the period between his injury and his employment as a night watchman, and was given compensation for partial disability for the period up until his hearing, but was denied compensation for lost wages during the period following his cessation of favored work. In February, 1978, Richmond Lumber closed its plant, and in May, 1978, Hartsell filed a petition for compensation. The Court of Appeals affirmed an award of benefits from the time of the plant closing, holding that the plant closure was a tacit withdrawal of the offer of favored work, rendering Hartsell eligible for benefits. The Court of Appeals reached a similar result in Steward v Westran Corp, 130 Mich App 68; 343 NW2d 7 (1983). In this case, the plaintiff initially accepted Westran’s offer of favored work, but upon completion of his first favored work assignment, he rej

MERILLAT v MICHIGAN STATE UNIVERSITY Docket No. 143849. Submitted March 8, 1994, at Lansing. Decided May 19, 1994; approved for publication October 11, 1994, at 9:10 a.m. Vicki J. Merillat brought an action in the Ingham Circuit Court against Michigan State University and Bruce L. Benson, director of the university’s Department of Public Safety (dps), seeking both damages for her discharge as a dps dispatcher and reinstatement to that position with back pay and seniority. The plaintiff alleged that, following her romantic involvement with a dps supervisor, she was ordered by defendant Benson to undergo physical and psychological examinations to determine her fitness as a dispatcher, that she submitted to the physical examination, that she twice presented herself for a psychological examination, that a psychological examination was not administered because she refused to complete a questionnaire and execute a written release, that she was suspended without pay until she attended another psychological examination and signed all the required releases and waivers, and that she was terminated for insubordination when she failed to execute the requested releases and waivers. The plaintiff further alleged that she was ordered to take the psychological examination because the defendants believed her to be mentally or emotionally impaired, that that perceived handicap was unrelated to her ability to perform her duties as a dispatcher, and that any findings of the ordered psychological examination would have been unrelated to her job performance. The plaintiff claimed that the defendants’ conduct constituted prohibited discrimination under both the Handicappers’ Civil Rights Act and the Civil Rights Act. The trial court, Thomas L. Brown, J., granted summary disposition for the defendants, finding that the plaintiff’s discharge was for insubordination because she refused to submit to the psychological examination and not because of any perceived handicap and that she failed to show that she was treated any differently than any other employee who refused to submit to psychological evaluation. The plaintiff appealed. The Court of Appeals held: 1. A motion for summary disposition under MCR 2.116(C)(8) for failure to state a claim tests the legal sufficiency of the claim and is decided by reference to the pleadings alone. 2. The plaintiff alleged that the defendants perceived her to have a handicap, that the perceived handicap was unrelated to her ability to perform her duties as a dispatcher, and that the ordered psychological examination was unrelated to her job performance. Those allegations were sufficient to constitute a prima facie showing of prohibited discrimination under § 202(1) (e) of the Handicappers’ Civil Rights Act, MCL 37.1202(l)(e); MSA 3.550(202)(l)(e). Accordingly, trial court erred in granting summary disposition for the defendants with respect to the plaintiff’s claim under the Handicappers’ Civil Rights Act. 3. Although the plaintiff alleged that she was a member of protected classes, she being white, female, and unmarried, and that no dps employee who was African-American or male had been terminated for insubordination, she failed to allege that any other person had refused to undergo psychological evaluation in defiance of an order of the defendants. Accordingly, the plaintiff failed to show disparate treatment, and the trial court properly granted summary disposition for the defendants with respect to the plaintiff’s counts under the Civil Rights Act. Affirmed in part, reversed in part, and remanded. Abood, Abood & Rheaume, P.C. (by Michael J. Otis), for the plaintiff. Michael J. Kiley, for the defendants. Before: Hood, P.J., and Neff and T. E. Jackson, JJ. Recorder’s Court judge, sitting on the Court of Appeals by assignment. Per Curiam. This case involves a claim of unlawful discrimination, and stems from defendants’ decision to terminate plaintiff from its employ. The trial court granted summary disposition in favor of defendants pursuant to MCR 2.116(C)(8); plaintiff appeals as of right. We affirm in part and reverse in part. Plaintiff, a white female, was employed by defendant Michigan State University as a dispatcher in the Department of Public Safety (dps) from 1984 until 1990. During the course of her employment, plaintiff became romantically involved with a married dps supervisor, who was African-American. The African-American supervisor’s wife, who also worked in the dps, was white. At least two internal investigations were conducted within the dps in order to ascertain whether plaintiff and the supervisor indeed were engaged in an amorous relationship; these investigations were inconclusive. In March of 1990, the director of the dps, defendant Bruce Benson, ordered plaintiff to undergo a physical and psychological examination to determine her fitness for continued duty as a dispatcher. A subsequent physical examination failed to disclose any condition that would prevent plaintiff from performing her duties as a dispatcher. Plaintiff twice made herself available for the psychological evaluation; however, the examination was not conducted, because plaintiff would not agree to complete an accompanying questionnaire and execute a written release. On August 24, 1990, upon returning to the dps, plaintiff was informed that she was suspended without pay until such time as she attended another evaluation and signed all releases and waivers requested by the doctor. Plaintiff failed to do so and was terminated for insubordination on September 7, 1990. In a three-count amended complaint, plaintiff alleged that defendants’ conduct was discriminatory pursuant to the Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq., and the Civil Rights Act (cra), MCL 37.2101 et seq.; MSA 3.548(101) et seq. More specifically, plaintiff claimed that defendants’ conduct was contrary to the provisions of the hcra because the defendants were motivated by a perceived risk of future harm due to unknown handicaps. Plaintiff additionally claimed that defendants had violated the cra, because the disciplinary action imposed against her was more severe because of the fact that she was single, white, and female. In their amended answer, defendants admitted that investigations were conducted into plaintiff’s relationship with certain co-workers. These investigations were initiated by Benson and were predicated on his belief that plaintiff "suffered from some form of psychological and/or emotional problem(s) which was affecting her work performance.” Benson’s belief stemmed from his personal observations of plaintiff, statements made by plaintiff, and statements made by co-workers about plaintiff. Defendants admitted that Benson had no "evidence” that plaintiff was unable to perform her duties as a dispatcher. The trial court granted defendants’ subsequent motion for summary disposition pursuant to MCR 2.116(C)(8). The court reasoned that because plaintiff refused the psychological examination(s), defendants never ascertained whether she was in fact handicapped. Thus, according to the trial court, defendants did not terminate plaintiff on the basis of a handicap but, rather, because she had refused to undergo the psychological evaluation. The trial court further stated that plaintiff could not rely on the provisions of the hcra, because she failed to assert a handicap. Additionally, the trial court determined that plaintiff had not stated a cognizable claim under the cra, because she had failed to show that defendants acted differently toward her than it would have toward any other employee who, like plaintiff, had refused to undergo an ordered psychological evaluation. Finally, the trial court stated that plaintiff had failed to allege intentional discrimination by a showing of defendants’ predisposition to discriminate against members of a certain class. A motion for summary disposition under MCR 2.116(C)(8) for failure to state a claim tests the legal sufficiency of a claim and is decided only by reference to the pleadings. Dockweiler v Wentzell, 169 Mich App 368, 371-372; 425 NW2d 468 (1988). Unless the claim is so clearly unenforceable as a matter of law that no factual development could justify recovery, the motion should be denied. Id. This Court will review a summary disposition determination de novo. Borman v State Farm Fire & Casualty Co, 198 Mich App 675, 678; 499 NW2d 419 (1993). Generally, in order to establish a prima facie case of discrimination under the hcra, it must be alleged that (1) the plaintiff is "handicapped” as defined in the hcra, (2) the handicap is unrelated to the plaintiffs ability to perform the duties of a particular job, and (3) the plaintiff has been discriminated against in one of the ways set forth in the statute. See Ashworth v Jefferson Screw Products, Inc, 176 Mich App 737; 440 NW2d 101 (1989). As amended, § 103(e) of the hcra, MCL 37.1103(e); MSA 3.550(103)(e), sets forth the following definition: "[Hjandicap” means 1 or more of the following: (i) A determinable physical or mental characteristic of an individual, which may result from disease, injury, congenital condition of birth, or functional disorder, if the characteristic: (A) For purposes of article 2, substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s ability to perform the duties of a particular job or position or substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s qualifications for employment or promotion. (iii) Being regarded as having a determinable physical or mental characteristic described in sub-paragraph (i). [Emphasis added.] Clearly, when the act, in describing prohibited behavior, speaks of discrimination by an employer against an individual because of a handicap, this includes an individual who, while not handicapped, is regarded as having a handicap. Sanchez v Lagoudakis, 440 Mich 496, 506; 486 NW2d 657 (1992). In her complaint, plaintiff alleged that defendants ordered her to undergo the subject physical and psychological examinations because of a perceived handicap. Plaintiff further claimed that defendants had no evidence to suggest that she was unable to perform her duties as a dispatcher because of a physical or psychological problem. To the contrary, plaintiff alleged that until the time of her dismissal, she had demonstrated her ability to successfully perform her duties as a dispatcher. Finally, plaintiff contended that these examinations were irrelevant, because they had no bearing on whether she could discharge her duties as a dispatcher in a satisfactory manner. Plaintiff’s complaint specifically alleged that defendants perceived her to be mentally or emotionally impaired. Defendants’ perception of plaintiff as mentally unstable falls within the amended statutory definition of "handicap.” Sanchez, supra; hcra § 103(e)(iii). Hence, plaintiff’s pleadings satisfied the first element of a prima facie case under the hcra. Ashworth, supra. Next, plaintiff alleged that the perceived handicap was unrelated to the performance of her duties as a dispatcher. Plaintiff added that, until her dismissal, she had demonstrated her ability to satisfactorily perform her duties as a dispatcher. This satisfies the second element of a prima facie case under the hcra. Id. Finally, §202(l)(e), MCL 37.1202(l)(e); MSA 3.550(202)(l)(e), precludes an employer from discharging or taking other discriminatory action against an individual on the basis of physical or mental examinations that are not directly related to the requirements of the specific job. Plaintiffs complaint alleged that her dismissal was based on a failure to undergo a psychological examination that was not related to the requirements of the dispatcher position in question. Defendants contend that plaintiff was not dismissed on the basis of results obtained following a psychological examination, but rather because she refused to undergo the evaluation. Again, the language of §202(l)(e) prevents an employer from discharging an employee "on the basis of” physical or mental examinations that are not directly related to the requirements of a specific job. Had plaintiff taken and "failed” the psychological examination, she clearly would have been able to assert a cause of action under the hcra if defendants had discharged her on that basis and the exam was unrelated to the requirements of her job. However, in this case, plaintiff did not "fail” the ordered psychological examination. A liberal construction of the provisions of the hcra will not allow us to permit a plaintiff that has been discharged after "failing” an alleged irrelevant physical or psychological examination to assert a cause of action, yet preclude that same plaintiff from doing so upon being discharged for refusing to submit to the same. At issue here is the basis upon which defendants’ decision to terminate plaintiff was predicated. Plaintiff asserted that defendants’ decision to terminate her was based on her failure to undergo a psychological evaluation that was wholly unrelated to the performance of her job. This allegation, which set forth a specified act of discrimination under the statute, was sufficient to satisfy the third element of plaintiff’s prima facie case. Section 202(l)(e); Ashworth, supra. Plaintiff’s pleadings set forth a prima facie case of discrimination under the hcra. Id.; Sanchez, supra. Accordingly, the trial court erred in granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(8), because her claim under the hcra was not clearly unenforceable as a matter of law. Wentzell, supra. Next, plaintiff alleges in counts n and hi of her complaint that defendants violated the cra by taking disciplinary action against her that was more severe than the actions taken against the African-American supervisor and his wife. Plaintiff further alleges that at no time in the past has insubordination been a basis for termination against any African-American employee of the dps. Plaintiff claims that defendant discriminated against her on the basis of her race, marital status, and sex. To make a prima facie case of discrimination under the theory of disparate treatment, it must be shown that a plaintiff was a member of the class entitled to protection and was treated differently from members of a different class for the same or similar conduct. Dixon v W W Grainger, Inc, 168 Mich App 107, 114; 423 NW2d 580 (1987). Here, plaintiff did allege that she was a member of protected classes — namely, that she was white, unmarried, and female. Thus, plaintiff’s allegations satisfied the first prong of the theory of disparate treatment. Plaintiff further alleged that insubordination had never been a cause for termination against any employee of the dps who happened to be African-American or male. However, plaintiff did not allege facts to show that any person or persons in these three groups had ever failed to undergo an ordered physical or psychological evaluation. Moreover, plaintiff failed to allege facts to indicate that defendants ever had reason to order any person from one of these three groups to undergo a psychological evaluation. Thus, plaintiff has not shown that she was treated differently from members of a different class for the same or similar conduct. Therefore, the trial court did not err in granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(8), because plaintiff failed to establish a prima facie case of discrimination under the cra. Dixon, supra. Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

RASHEED v CHRYSLER CORPORATION Docket Nos. 95122, 95774. Argued November 3, 1993 (Calendar No. 10). Decided May 17, 1994. Muhammad Rasheed brought an action in the Wayne Circuit Court under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., against Chrysler Corporation and James Senart, his supervisor at Chrysler, alleging wrongful discharge. Before trial, the court, Richard P. Hathaway, J., ruled that any damages would be limited to the thirteen-month period of unemployment preceding the plaintiff’s rejection of an offer by Chrysler to reinstate him to his former position with full seniority, but without backpay. Following trial, the court granted a directed verdict for the defendants on all but the plaintiff’s claim of religious discrimination, entering judgment on a jury verdict of that claim for the plaintiff. In a subsequent hearing, conducted without a jury, the court ordered Chrysler to reinstate the plaintiff as a newly hired employee with no seniority. The Court of Appeals, Fitzgerald, P.J., and Hood, J. (J. C. Kingsley, J., dissenting in part), affirmed (Docket No. 129620). Both parties appeal. In an opinion by Justice Riley, joined by Chief Justice Cavanagh, and Justices Brickley, Boyle, Griffin, and Mallett, the Supreme Court held: Because the trial court made its decision regarding the appropriate remedy before all factual issues were decided, remand is required to resolve the issue of the reasonableness of the plaintiff’s rejection and a reassessment of the appropriate remedy. The trial court properly denied the defendants’ motion for a directed verdict on the claim of intentional discrimination because factual questions remained. 1. Trial courts have wide discretion to fashion appropriate remedies in wrongful discharge cases. A discharged employee has a duty to mitigate damages. Failure to do so, whether by failing to seek other suitable employment or by rejecting an unconditional reinstatement offer, is an affirmative defense to be established by the employer. Whether an employee acted reasonably in not seeking or accepting particular employment is to be decided by the trier of fact. 2. Reinstatement offers that are clear on their face may be construed by the courts as a matter of law. Where an offer properly may be characterized as ambiguous, construction is permitted. Where it becomes necessary to consider the parties’ intent, the inquiry is a question of fact. While conditionality may be decided as a matter of law under appropriate circumstances, reasonableness is a question of fact that must be decided independently. An unconditional offer of reinstatement may be used as proof of an unreasonable rejection in satisfaction of the employer’s burden. However, if there are any differences between the offer and the previous employment, with the exception of backpay, rejection based in part on the difference precludes a peremptory ruling by the court, and reasonableness in light of the particular circumstances must be determined. 3. Once it is established that a reinstatement offer is unconditional, a rebuttable presumption arises that its rejection is unreasonable. To rebut, the employee must offer reasonable grounds for rejection that are based on the employment as contemplated by the offer rather than for purely personal reasons. Failure by the claimant to provide a legitimate basis for a rejection forfeits the right to front pay. In this case, the issue of the reasonableness of the plaintiff’s rejection was improperly removed from the jury. The trial court erred as a matter of law in deciding the continued backpay issue before the factfinder decided the defendants’ ultimate liability for the alleged discriminatory discharge, requiring reversal of the Court of Appeals decision and remand to the trial court for reconsideration of the issue of reasonableness and the appropriate remedy. 4. A claimant asserting an intentional discrimination claim must establish as part of a prima facie case a discriminatory predisposition of the employer and an act in furtherance of this predisposition. In this case, the decision to terminate the plaintiff was made entirely on the basis of the supervisor’s report, and the court properly allowed the plaintiff to offer proof that the reason asserted was a mere pretext. In unique circumstances, ordinarily neutral mechanisms for termination may qualify as discriminatory employment practices. The facts of this case constitute such unique circumstances. Reasonable jurors could have reached different conclusions regarding whether the labor relations manager was aware of the alleged discrimination and acted in furtherance of it. Reversed and remanded. Justice Levin, writing separately, stated that federal case law does not support the proposition that Michigan courts have broad discretion to fashion appropriate remedies in wrongful discharge cases. Federal cases construing title VII of 42 USC 2000e-5(g) are not persuasive where a damage remedy has been sought under the Michigan Civil Rights Act. Nor do those cases grant federal courts the power to deny a plaintiff found to be a victim of an unlawful employment practice a remedy that would make the victim whole. In wrongful discharge cases, separate determinations of the conditionality of a reinstatement offer and of the reasonableness of a rejection need not be made. In deciding whether a prevailing plaintiff may recover damages for a period following the rejection of an offer of reinstatement, the trier of fact need only determine whether the plaintiff failed to mitigate damages, as is required in other wrongful discharge cases in Michigan and in the federal system where the alleged failure to mitigate concerns the plaintiff’s rejection of an offer of employment by the original employer that differs from the original job or when the plaintiff reasonably refuses to accept an offer of employment from another company. The issue of the conditionality of a reinstatement offer does not become a matter of law to be decided by the court simply because the employer has offered to reinstate the discharged employee. Assuming that whether an offer of reinstatement was conditional and whether the plaintiff acted reasonably in rejecting such an offer are proper are separate inquiries, each inquiry presents a question of fact for the trier of fact, and neither may be resolved by the court as a matter of law unless reasonable minds could not draw different conclusions concerning conditionality or reasonableness. MCL 37.2803; MSA 3.548(803) provides that the Civil Rights Act is not to be construed to diminish the right of a person to direct or immediate legal or equitable remedies in the courts, simply repeating the language of Const 1963, art 5, § 29, providing for the establishment of a Civil Rights Commission, with powers provided by law to carry out its purposes, and proscribing any construction that would diminish the right of any party to direct and immediate legal or equitable remedies in the courts. Section 803 says nothing at all about what those legal or equitable remedies might be. Section 801 does not provide that the courts of this state may provide an equitable remedy such as injunctive relief or a damage remedy, as the court thinks best in the exercise of its discretion. Rather, it provides that a person alleging a violation of the Civil Rights Act may bring a civil action for appropriate injunctive relief, or damages, or both. The discretion whether to seek an equitable remedy, such as injunctive relief as well as damages, is confided by the constitution and the Legislature, consistent with art 5, § 29, to the person alleging a violation of the Civil Rights Act. The majority has an extravagant view of judicial power in concluding that it may arrogate to the trial courts of this state the power — so clearly confided by the constitution and the Legislature to the victim of a civil rights violation — whether to seek an equitable remedy as an alternative to a legal remedy. While a fair degree of discretion on the part of the trial court might be necessary to make whole a victim of discrimination who seeks an equitable (injunctive) remedy, that does not mean that, where the victim seeks a legal (damage) remedy in the exercise of the choice confided to the victim by the constitution and the Civil Rights Act, the Supreme Court is empowered to confide to the courts of this state a degree of discretion, in the name of making the victim of discrimination whole, to deny the victim of the choice of a legal (damage) remedy. United States Courts of Appeals, construing the federal statute, have not found it necessary to create a bifurcated or trifurcated procedure. The majority simply prefers to confide to trial courts, and to remove from jury consideration, questions that it is more comfortable having a judge decide. This is judicial legislation, an arrogation of power to the courts in an area in which the majority does not trust the jury. There is ample power under the traditional approach that permits a trial court to remove from jury consideration any issue of fact that, in the judgment of the trial court, all reasonable persons must reach but one result. 196 Mich App 196; 493 NW2d 104 (1992) reversed. Durant & Durant, P.C. (by Richard Durant), for the plaintiff. Dickinson, Wright, Moon, Van Dusen & Freeman (by John Corbett O’Meara, Robert W. Powell, Noel D. Massie, and Eric J. Pelton) for the defendants. Amicus Curiae: Clark, Klein & Beaumont (by Dwight H. Vincent and J. Walker Henry) for Michigan Manufacturers Association. Riley, J. Today the Court is called upon to consider a host of issues surrounding a claim for discriminatory termination of employment brought under the Michigan Civil Rights Act. Resolution of these issues requires us to explore the legal and procedural parameters of a discriminatory termination claim involving subsequent offers of reinstatement as they relate to the theory of damage mitigation. We conclude that because the trial court made its decision regarding the appropriate remedy before all factual issues were decided, we remand for resolution of the reasonableness of rejection issue and a reassessment of the appropriate remedy. We also find that because defendants waived the statute of limitations defense, it is unnecessary to deal with plaintiff’s continuing violations claim. Finally, we affirm the trial court’s denial of defendants’ motion for a directed verdict on the intentional discrimination claim. I Plaintiff began his employment with Chrysler in 1967 at the Huber facility in Detroit. In 1978, plaintiff converted to the Muslim faith. Three years later, plaintiff was transferred to Chrysler’s Trenton engine plant where, according to plaintiff, he was subjected to religious and racial harassment from the first day when guards at the plant allegedly attempted to stop him from taking an Islamic newspaper into the facility because it was "subversive,” being called "Ayatollah Cockamania” by his supervisor and alleged major antagonist James Senart, the purposeful placing of pork near his work station during the holy month of Ramadan, numerous remarks about how Muslims should stay in Detroit, attempts to incite anti-Muslim sentiments from the other employees, refusal to replace plaintiff’s broken tools while other employees got new tools, several suspensions with racial and religious overtones, and for other similar acts. Plaintiff reported these incidents to union officials and Chrysler managerial employees on numerous occasions. Although the record contains evidence of several meetings between Chrysler management and plaintiff or his union representatives regarding these alleged occurrences, no legal action was taken by plaintiff before his termination. According to plaintiff, the anti-Muslim atmosphere culminated on July 12, 1984, in a setup orchestrated by Senart and intended to get plaintiff fired from his employment. Senart was allegedly baiting plaintiff, and other employees were improperly removing a storage bin, called a head divider, from plaintiff’s work area. When plaintiff retrieved the head divider, Senart allegedly rebuked him for taking it away from another work station. According to defendants, plaintiff kicked the head divider and threw two engine heads onto the ground with such damaging force that they could not be repaired. Senart wrote up a report on the incident, alleging that plaintiff purposefully destroyed company property, which is a ground for immediate discharge. Shortly thereafter, plaintiff was escorted out of the plant by security guards and placed on disciplinary leave. Charles Fern, the labor relations manager at the Trenton plant, reviewed Senart’s report and attempted to interview plaintiff’s co-workers. Fern inspected the two engine heads that were indeed damaged, and he looked at two grooves in the floor of plaintiff’s work area that were allegedly caused by plaintiff’s act of hurling the engine heads to the ground. Fern also spoke to union representatives and other supervisors. As a result of his investigation, Fern concluded that plaintiff had destroyed company property, and the disciplinary leave was upgraded to termination of employment. Plaintiff filed the instant action in Wayne Circuit Court against Chrysler and Senart for wrongful discharge based on racial and religious discrimination, for intentional infliction of emotional distress, and for fraud or misrepresentation on the part of Senart. Before trial, the court ruled that any damages awarded to plaintiff would be limited to the thirteen-month period of his unemployment preceding his rejection of Chrysler’s reinstatement offer. At trial, the court granted defendants’ motion for a directed verdict on all but the religious discrimination claim. The jury returned a verdict in favor of plaintiff on the religious discrimination claim and awarded him $51,300 for lost wages and $10,000 for embarrassment or humiliation. In a subsequent hearing conducted without a jury, the court exercised its equitable powers to order Chrysler to reinstate plaintiff as newly hired, with no seniority, within sixty days of the decision. Defendants appealed the court’s decision not to grant the motion for a directed verdict on the religious discrimination claim, as well as the order requiring plaintiff’s reinstatement as a newly hired employee. Plaintiff cross appealed the court’s refusal to permit recovery for acts occurring before the three-year period of limitation running from the date of termination and for the decision not to reinstate plaintiff with full seniority rights and backpay. A majority of the Court of Appeals upheld the trial court’s decision not to grant defendants’ motion regarding the religious discrimination claim, and it upheld the trial court’s "equitable power” to fashion the remedy of reinstatement, albeit without any seniority rights. 196 Mich App 196, 200; 493 NW2d 104 (1992). The majority also upheld the ruling of the limitation of backpay to the thirteen-month period before plaintiff’s refusal to accept Chrysler’s reinstatement offer. Finally, the majority concluded that plaintiff failed to establish all of the elements necessary to invoke the "continuing violation” theory, which would have permitted plaintiff to recover for alleged acts that occurred more than three years before the filing of the complaint. The dissenting judge, relying heavily on federal precedent, would have reversed the trial court’s decision to reinstate plaintiff for what he considered to be an unreasonable refusal to accept Chrysler’s "unconditional” offer of reinstatement. Id. at 210. This Court granted both parties’ application for leave to appeal. II A One year and three months after his termination, Chrysler offered to reinstate plaintiff to his former position with full seniority, but without backpay. The offer provided in its entirety: In full settlement of this case, M. Rasheed will be offered reinstatement in accordance with his seniority provided he can meet normal requirements. Upon his return to work his discharge shall be reduced to a disciplinary layoff without back pay for the period during which he was away from the plant. This action of the Appeal Board shall form no basis or precedent for a decision or settlement in any other case. On the basis of this offer, defendants moved for partial summary disposition to prevent plaintiff from recovering continued backpay for a failure to accept what they asserted was an "unconditional” offer, as well as to prevent plaintiff’s reinstatement. Plaintiff asserted that the offer was conditional because it did not include backpay and because it offered to convert the termination into a disciplinary layoff rather than remove the blemish from his employment record. At the hearing on the motion itself, the trial court concluded as follows: It is hereby ordered, adjudged and decreed that Defendant’s Motion is granted as it concerns limiting backpay that Plaintiff can seek, to that period covering July 19, 1984, up to and including August 26, 1985. It is further ordered, adjudged and decreed that Defendant’s Motion as it concerns the preclusion of reinstatement for Plaintiff is denied, and Plaintiff will be allowed to present proofs concerning the equitable issue of reinstatement to the trier of fact. It is further ordered, adjudged and decreed that notwithstanding any ruling on reinstatement of the submission of proofs, Plaintiff’s backpay is limited to the aforementioned July 19, 1984 to August 26, 1985 period. It is unclear from this ruling what was the basis for the trial court’s conclusion that plaintiff rejected an unconditional offer so that he was not entitled to continued backpay, but that the issue of reinstatement was a question to be decided by the finder of fact. In addressing this issue, we turn first to a discussion of the relevant case law. B The law concerning backpay and other remedies in the employment discrimination context has its roots in provisions of the federal Civil Rights Act of 1964, which amended the Civil Rights Act of 1957. The avowed purpose of the new provisions was to "provide the spur or catalyst which causes employers ... to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country’s history.” United States v N L Industries, Inc, 479 F2d 354, 379 (CA 8, 1973), quoted in Albemarle Paper Co v Moody, 422 US 405, 417-418; 95 S Ct 2362; 45 L Ed 2d 280 (1975). Modeled after a provision in the National Labor Relations Act, the backpay provision was intended to "make whole” anyone suffering from the effects of employment discrimination. Albemarle, supra at 418-419. Almost a decade later, however, the United States Supreme Court recognized a corollary to the backpay provision on the basis of interim earnings language found in 42 USC 2000e-5(g). In the landmark decision Ford Motor Co v EEOC, 458 US 219; 102 S Ct 3057; 73 L Ed 2d 721 (1982), the Supreme Court specifically imposed on a discharged employee the duty to mitigate damages under title VII of the federal Civil Rights Act of 1964 by accepting unconditional offers of reinstatement even when the offers do not include backpay. The majority held: An unemployed or underemployed claimant, like all other Title VII claimants, is subject to the statutory duty to minimize damages set out in § 706(g). This duty, rooted in an ancient principle of law, requires the claimant to use reasonable diligence in finding other suitable employment. Although the unemployed or underemployed claimant need not go into another line of work, accept a demotion, or take a demeaning position, he forfeits his right to backpay if he refuses a job substantially equivalent to the one he was denied. Consequently, an employer charged with unlawful discrimination often can toll the accrual of back-pay liabil

Judith Rideout & another vs. Crum & Forster Commercial Insurance & others. Suffolk. April 4, 1994. May 11, 1994. Present: Lucos, C.J., Abrams, Nolan, Lynch, & Greaney, JJ. Insurance, General liability insurance, Coverage, Construction of policy. Employment, Discrimination, Termination. Anti-Discrimination Law, Termination of employment, Sex. Words, “Occurrence.” Plaintiffs who obtained a final judgment against their former employer in an action to enforce orders of a commissioner of the Massachusetts Commission Against Discrimination awarding damages for sex discrimination could not prevail on their claims for declaratory relief and to reach and apply the proceeds of the employer’s insurance policies, where the policies excluded coverage for injuries “expected or intended from the standpoint of the insured,” and where the intentional acts of discrimination and retaliation found by the commissioner implied that the employer intended the harm that resulted, thus the policies did not provide coverage for the employees’ injuries. [760-764] Civil action commenced in the Superior Court Department on April 24, 1990. The case was heard by Elbert Tuttle, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Martin J. Alperen for the plaintiffs. J. Kenneth Griffin for the defendants. Scott Harshbarger, Attorney General, & George P. Napolitano, Special Assistant Attorney General, for Massachusetts Commission Against Discrimination, amicus curiae, submitted a brief. Marilyn Thomas. United States Fire Insurance Company and North River Insurance Company. Nolan, J. The plaintiffs, Judith Rideout and Marilyn Thomas, appeal from a Superior Court judge’s dismissal of their action to reach and apply insurance proceeds pursuant to G. L. c. 214, § 3 (1992 ed.), and for declaratory relief pursuant to G. L. c. 231A (1992 ed.), against the defendant insurance companies. The Massáchusetts Commission Against Discrimination (MCAD) found that the plaintiffs’ former employer, Hub Manufacturing Company, Inc. (Hub), had unlawfully discriminated against them on the basis of their sex and had ordered Hub to pay damages. Then, in an enforcement action brought in the Superior Court, the plaintiffs obtained a final judgment against Hub. The plaintiffs then brought this action to collect the amount of the enforcement judgment from the defendants, which insured Hub during the time of the discriminatory acts. Concluding that the relevant insurance policies of the defendants failed to cover the plaintiffs’ claims, the judge allowed the defendants’ motion for summary judgment. The plaintiffs appealed. We transferred this case to this court on our own motion. We affirm. On May 12, 1981, the plaintiffs filed complaints against Hub with the MCAD alleging that Hub discriminated against them in the terms and conditions of their employment. More specifically, the plaintiffs alleged that Hub discriminated against them, in violation of G. L. c. 151B and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., by denying them equal pay, the opportunity to work overtime, and promotions on account of their gender. Shortly thereafter, Hub laid off the plaintiffs as part of a general short-term layoff. When they were not recalled, the plaintiffs amended their complaints on September 17, 1981, to include charges of retaliation. The cases were consolidated for public hearing by agreement of the parties. A public hearing was conducted at the MCAD offices on October 22, November 7 and 8, 1985. On March 15, 1988, a MCAD hearing commissioner found that Hub had unlawfully discriminated and retaliated against the plaintiffs and ordered Hub to pay the plaintiffs damages. The pertinent findings of the commissioner are as follows. In 1980, Hub, which was primarily involved in the business of manufacturing swimming pools, hired the plaintiffs as general floor workers and sealers. At all times relevant, Archie Taylor supervised Hub’s day-to-day business operations and was responsible for personnel matters, including job assignments, hiring, and firing. At Hub, there was a disparity between pay rates and pay increases of men and women employees who performed the same work. The pay disparity had no correlation with the seniority of the employees. Taylor denied the plaintiffs the opportunity to work overtime because of their gender, stating that men needed the overtime work to support their families. Taylor failed to transfer the plaintiffs to higher paying positions because of their gender, stating that “[n]o woman has ever worked in this department and never will ... I only hire men, and women would distract them.” After the plaintiffs requested transfers and filed complaints with the MCAD, Taylor retaliated against the plaintiffs by reassigning them to the most menial, repetitive, and isolated tasks within the company. The reassignments caused the plaintiffs to feel angry, frustrated, humiliated, and embarrassed throughout the remainder of their employment. The plaintiffs were then laid off during the summer of 1981 at the time of the general layoff. On laying off the plaintiffs, Taylor stated that the plaintiffs “under no circumstances would ever be hired back because they are a couple of troublemakers.” Taylor failed to recall the plaintiffs, although he rehired other laid-off employees, in retaliation for their filing the complaints. Based on these findings, the hearing commissioner held that the plaintiffs had proved that Hub disparately treated them on the basis of their sex in violation of G. L. c. 151B, § 4(1), and had retaliated against them in violation of G. L. c. 151B, § 4 (4). The commissioner then ordered Hub to pay damages to the plaintiffs for lost wages and emotional distress. The damages for emotional distress were awarded to compensate the plaintiffs for the emotional harm suffered due to Hub’s acts of retaliation. On March 7, 1986, without having paid the plaintiffs the amount of the MCAD order, Hub ceased operations and assigned its assets to creditors. In December, 1988, the plaintiffs sought to enforce the MCAD order against Hub and two successor corporations pursuant to G. L. c. 151B, § 6 (1992 ed.), in the Superior Court. On April 27, 1989, summary judgment was granted in favor of the two successor corporations. Hub defaulted and, on February 2, 1990, the plaintiffs obtained a final judgment against Hub. Pursuant to this judgment, the court ordered Hub to pay Rideout the sum of $45,519.50, interest in the sum of $47,674.02, and costs and to pay Thomas the sum of $45,306, interest in the sum of $47,450.48, and costs. The defendants insured Hub during the period that the acts of discrimination occurred. On March 30, 1990, the defendants denied coverage for the plaintiffs’ claims. On April 24, 1990, the plaintiffs instituted this action in the Superior Court. On cross motions for summary judgment, the Superior Court judge allowed the defendants’ motion for summary judgment, concluding that the policies in issue did not cover the plaintiffs’ claims. General Laws c. 214, § 3 (9), provides the Superior Court with jurisdiction over “[ajctions to reach and apply the obligation of an insurance company to a judgment debtor . . . under [a] policy insuring a judgment debtor against liability for loss or damage on account of bodily injury ... or on account of damage to property, in satisfaction of a judgment covered by such policy . . . .” An insurer may avail itself of any defense which it would have against the insured. Lombardi v. Lumbermens Mut. Casualty Co., 361 Mass. 310, 311 (1972). Where the policy provides no coverage, an insurer has no obligation to pay a judgment against its insured. Connolly v. Bolster, 187 Mass. 266, 270-271 (1905). The critical question is whether the final judgment against Hub is one covered by the defendants’ policies. All the policies in issue are policies for comprehensive general liability insurance containing identical coverage provisions. Section II of the policies extended liability coverage to Hub, providing that the defendants would pay on Hub’s behalf “all sums which the insured shall become legally obligated to pay as damages because of (A) bodily injury or (B) property damage to which this insurance applies, caused by an occurrence . . . .” Thus, the defendants’ obligation to indemnify the insured Hub is contingent on the plaintiffs having suffered bodily injury or property damage caused by an “occurrence.” The definitional section applicable to Section II defines “occurrence” as “an accident . . . which results in bodily injury or property damage neither expected or intended from the standpoint of the insured.” The basis of the plaintiffs’ claims against Hub were allegations of disparate treatment. The MCAD commissioner found that Hub discriminated against the plaintiffs in denying them equal pay, overtime opportunities, and promotions on the basis of their gender. Additionally, the MCAD found that Hub retaliated against the plaintiffs for filing their discrimination complaints. Based on these findings, the commissioner awarded the plaintiffs damages for lost wages and emotional distress. General Laws c. 175, § 47, Sixth, provides that “no company may insure any person against legal liability for causing injury, other than bodily injury, by his deliberate or intentional crime or wrongdoing.” Coverage is barred under this section only “if an intentionally committed, wrongful act was also done deliberately or intentionally, in the sense that the actor knew that the act was wrongful.” Andover Newton Theological Sch., Inc. v. Continental Casualty Co., 409 Mass. 350, 352 (1991). However, the policies must be determined to provide coverage before a court need determine whether the coverage is barred by § 47, Sixth. We now turn to whether the policies in question cover the plaintiffs’ claims. The defendants contend that the policies in question did not cover any of the damages awarded because the discriminatory acts of Hub do not constitute an occurrence, as that term is defined by the policies, because Hub intended or expected to deprive the plaintiffs of their wages and cause them emotional distress. The policies in issue defined “occurrence” as including an “accident . . . which results in bodily injury or property damage neither expected or intended from the standpoint of the insured” (emphasis added). We have stated that “[g]enerally, an injury ‘which ensues from the volitional act of an insured is still an ‘accident’ within the meaning of an insurance policy if the insured does not specifically intend to cause the resulting harm or is not substantially certain that such harm will occur.’ ” Worcester Ins. Co. v. Fells Acres Day Sch., Inc., 408 Mass. 393, 399 (1990), quoting Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass. 81, 84 (1984). However, “[t]he insured need not intend to cause the exact extent of the injury which results, in order for the exclusion to apply.” Newton v. Krasnigor, 404 Mass. 682, 685 (1989). The resulting harm “concerns the type of harm inflicted . . . and not the extent of the harm actually sustained.” Id. at 686. 1. Damages for lost wages resulting from discrimination. As noted above, the MCAD commissioner awarded the plaintiffs damages for lost wages, part of which were to compensate for Hub’s discrimination in terms of pay, overtime, and promotions. We now decide whether Hub intentionally caused or was substantially certain to cause the plaintiffs to lose wages. The plaintiffs argue that Hub negligently or recklessly discriminated against them. They further argue that, if we conclude that Hub intentionally discriminated against them, that there is no evidence that Hub intended the resulting harm. The plaintiffs’ first argument ignores the MCAD’s finding that Hub intentionally discriminated against them on the basis of their sex. The MCAD order, which is the basis of the final judgment that the plaintiffs are seeking to enforce, makes clear that Hub’s liability is based solely on its discriminatory disparate treatment, which entails a discriminatory intent. Brunner v. Stone & Webster Eng’g Corp., 413 Mass. 698, 699 (1992). The plaintiffs’ second argument also fails. The findings of the MCAD demonstrate that Hub discriminated against the plaintiffs knowing that the amount the plaintiffs received in wages would be adversely affected. We hold that Hub’s acts of discrimination against the plaintiffs, in denying equal pay, overtime work, and promotions, imply an intent to cause loss of wages. Hub’s discrimination resulting in lost wages to the plaintiffs was not a covered “occurrence,” as defined by the policies in question. 2. Damages for lost wages resulting from retaliation. The MCAD commissioner also awarded damages for lost wages resulting from Hub’s retaliation in permanently laying off the plaintiffs. The MCAD commissioner found that Hub intentionally failed to recall the plaintiffs after they were laid off in retaliation for filing complaints with the MCAD. As a matter of law, a retaliatory discharge implies an intent to cause loss of wages. The award for lost wages was not covered by the policies. 3. Damages for emotional distress resulting from retaliation. The MCAD also awarded damages to compensate the plaintiffs for the emotional harm they suffered due to Hub’s retaliation against them for filing their complaints. The MCAD found that Taylor became angry when the plaintiffs complained about the discrimination and that he immediately reassigned the plaintiffs to ignoble and isolated tasks in the company in order to retaliate. Furthermore, the MCAD found that these acts of retaliation caused the plaintiffs to feel angry, frustrated, humiliated, and embarrassed. In order for the emotional harm suffered by the plaintiffs resulting from the acts of retaliation of Hub to be deemed accidental, Hub must not have intended to cause the harm nor have been substantially certain that such harm would occur. The judge concluded that Hub either intended or was substantially certain that the plaintiffs would suffer emotional harm when it reassigned them to menial positions and failed to recall them. We agree. The MCAD’s findings make apparent that Hub at least knew with substantial certainty that the plaintiffs would suffer emotional harm when it retaliated against them for filing their complaints. 4. Conclusion. Because Hub, in discriminating against the plaintiffs because of their gender and retaliating against them because of their complaints, intended or was substantially certain that the plaintiffs would suffer the types of harm they did suffer, the plaintiffs’ claims do not constitute an “occurrence” under the policies in question. The plaintiffs’ arguments that coverage exists under other provisions of the policies are unpersuasive. The judgment of the Superior Court denying the plaintiffs’ motion for summary judgment and allowing the defendants’ motion for summary judgment is affirmed. Judgment affirmed. The defendants also contend that there is no coverage because the damages awarded are not because of bodily injury or property damage, as defined in the policies. Furthermore, they argue that the plaintiffs’ claims are barrred by the policies’ employee exclusion, which excludes from coverage bodily injury to an employee arising out of the course of employment. In addition, they argue that the judgment is not enforceable against them because they have been prejudiced by the late receipt of the plaintiffs’ claim and by Hub’s failure to cooperate. Because we decide in favor of the defendants on other grounds, we do not address these contentions. These arguments do not warrant extended discussion since they require an imaginative reading of the policies and a disregard of the facts and applicable law. The plaintiffs contend that certain language extending coverage to defamation and violations of the right to privacy provides coverage for their claims. It is entirely clear from the MCAD’s order that Hub’s liability is based solely on discrimination and not on defamation or invasion of privacy. Likewise, the plaintiffs’ argument that Hub negligently allowed its employee Taylor to discriminate against them fails to comport with the record. The MCAD order solely imposed liability against Hub derivatively for Taylor’s actions. Incredibly, the plaintiffs also argue that coverage is provided by certain policy language extending bodily injury coverage to intentional acts in reasonable defense of persons or property. Assuming that the plaintiffs were injured bodily and that Hub discriminated against the plaintiffs in order to protect male employees, liability for sex discrimination can never be held to be reasonable. Another argument wrongly assumes that coverage is bestowed if the claims are not barred by the policies’ employee exclusion. The plaintiffs’ other arguments are contingent on their claims being “occurrence[sj,” and need not be discussed.

Robert Agin vs. Federal White Cement, Inc., & another. Hampden. January 4, 1994. May 5, 1994. Present: Lucos, C.J., Wilkins, Abrams, Nolan, Lynch, & Greaney, JJ. Anti-Discrimination Law, Termination of employment. Employment, Discrimination. Civil Rights, Termination of employment. Practice, Civil, Report. In an employment age discrimination case in which the plaintiff alleged in separate counts violations of 29 U.S.C. § 621, G. L. c. 151B, and G. L. c. 93, §§ 102 and 103, the matter was remanded to the Superior Court for further proceedings in light of this court’s holding in Charland v. Muzi Motors, Inc., ante 580 (1994), that if a remedy under G. L. c. 151B is available, a plaintiff may not pursue a remedy under G. L. c. 93, § 103. [670-673] Civil action commenced in the Superior Court Department on October 1, 1991. A motion for summary judgment was heard by John F. Moriarty, J., and the matter was reported by him to the Appeals Court. The Supreme Judicial Court granted a request for direct appellate review. David G. Cohen (John J. Egan & Maurice M. Cahillane with him) for the plaintiff. Thomas J. Curley, Jr., for the defendants. The following submitted briefs for amici curiae: Scott Harshbarger, Attorney General, Richard W. Cole & John A. Capin, Assistant Attorneys General, for the Attorney General. Judith Olans Brown & Alan Jay Rom for Boston Bar Association. Patrick W. Hanifin & Charla T.-McMillian for Massachusetts Business Roundtable. Betsy L. Ehrenberg, Ruth A. Bourquin, Harold L. Lichten, Ellen J. Messing & Dahlia C. Rudavsky for Massachusetts Chapter of the National Employment Lawyers Association. John W. Welch, Kenneth R. Barba & Wendy A. Wodarski for Barry W. Soden. Federal White Cement, Ltd. Lynch, J. This case was reported by a Superior Court judge to the Appeals Court. We granted the plaintiffs request for direct appellate review. The plaintiff claims that he was discharged from his job due to his age. His complaint contains three counts alleging violation of 29 U.S.C § 621 (1988 & Supp. IV 1992) (count I), G. L. c. 151B (1992 ed.) (count II), and, G. L. c. 93, §§ 102 and 103 (1992 ed.) (count III). The defendants filed separate motions to dismiss all three counts. The motions were denied with respect to counts I and II, but allowed as to count III. The defendants also filed a joint motion for summary judgment which was heard by another Superior Court judge who was unaware of the decision issued on the motions to dismiss. That judge denied summary judgment as to counts I and II, but granted it as to count III. The judge reasoned: “Although the new statute [c. 93, § 103] encompasses a broad range of civil rights, it does not specifically include a right to be free of discrimination by employers in their employment practices by reason of handicap or age. That is undoubtedly because the subject of discriminatory employment practices is already covered by very comprehensive legislation in Chapter 151B of the General Laws, and because another statute attempting to provide another civil remedy for the same wrongs would be highly disruptive of the procedures that are already in place. I am therefore of the opinion that the omission was deliberate on the part of the legislature and that § 103 is not applicable to the type of discrimination of which the plaintiff complains in this case.” The judge reported his decision granting summary judgment in favor of the defendants because reversal of the plaintiff’s decision on appeal following a trial on the merits of his other counts could result in a second trial on the same facts, and because lower courts have arrived at inconsistent interpretations of G. L. c. 93, § 103. In his complaint, the plaintiff alleges that he began working as a salesman for the defendant Federal White Cement, Inc., in 1979, and remained there until he was involuntarily retired as of December 31, 1990, by the defendants. The plaintiff was over forty years of age when he was discharged. Federal White Cement, Inc., is a Delaware corporation and a wholly-owned subsidiary of the defendant Federal White Cement, Ltd., a Canadian corporation. Both corporations share the same officers. At his deposition, the plaintiff testified that the president had told him that he wanted “continuity of personnel,” “a smooth transition from one person to another,” and that the plaintiff had “reached a point where [he] should relax and take it easy.” On January 17, 1991, the plaintiff commenced an action with the Equal Employment Opportunity Commission. By affidavit, he averred that he contacted the Massachusetts Commission Against Discrimination (MCAD) before commencing this action but was told that he could not file a complaint because his employer did not have enough employees in this State. We agree with the Superior Court judge that the validity of the plaintiff’s claims under counts I and II depend on unresolved factual matters, and therefore, we offer no opinion in regard to them. This is also true in regard to count III. We held in Charland v. Muzi Motors, Inc., ante 580 (1994), that, if a remedy under G. L. c. 151B is available to a plaintiff, he may not pursue a remedy under G. L. c. 93, § 103. Accordingly, should a judge decide that G. L. c. 151B is or was available to the plaintiff, the plaintiff would have no viable c. 93, § 103, claim under the teaching of Charland. Since there has never been a hearing on the jurisdictional aspects of G. L. c. 151B, it would be premature for us to decide the issue reported. See Cusic v. Commonwealth, 412 Mass. 291, 294 (1992) (discharging report involving abstract question of law which may involve matters of law and policy); W.R. Grace & Co. v. Maryland Casualty Co., 33 Mass. App. Ct. 358, 372 (1992) (declining to answer speculative and premature question). Although there have been circumstances in which we have been willing to express our views on matters not strictly before us, where matters of public policy are raised, we have stated a preference for passing on the issues in light of a fully developed trial record rather than in the abstract. Heck v. Commonwealth, 397 Mass. 336, 339 (1986). Doe v. Doe, 378 Mass. 202, 203 (1979). Accordingly, we discharge the report and remand to the Superior Court for further proceedings not inconsistent with this opinion. So ordered. We note with appreciation the amicus briefs submitted by: the Attorney General; Boston Bar Association; Massachusetts Business Roundtable; Massachusetts Chapter of the National Employment Lawyers Association; and Barry W. Soden. General Laws c. 93, § 103 (a) (1992 ed.), provides: “Any person within the commonwealth, regardless of handicap or age as defined in chapter one hundred and fifty-one B, shall, with reasonable accommodation, have the same rights as other persons to make and enforce contracts, inherit, purchase, lease, sell, hold and convey real and personal property, sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property, including, but not limited to, the rights secured under Article CXIV of the Amendments to the Constitution.” The judge concluded that the plaintiff could not pursue remedies under both G. L. c. 151B (1992 ed.) and G. L. c. 93, § 103, for alleged employment discrimination due to age. She noted, however, that a remedy would be available under § 103 for employment discrimination due to age to a plaintiff whose unique circumstances did not meet the criteria delineated in c. 151B. “A judge may report an interlocutory ruling which the judge believes ‘so affects the merits of the controversy that the matter ought to be determined by the appeals court before any further proceedings in the trial court.’ ” Morrison v. Lennett, 415 Mass. 857, 859 (1993), quoting G. L. c. 231, § 11, second par. (1990 ed.). In his report, the judge stated that the plaintiff was born on May 5, 1923. Under G. L. c. 151B, § 1 (5), “ ‘employer’ does not include . . . any employer with fewer than six persons in his employ.” We note that the six-month deadline to file a claim under G. L. c. 151B is “in effect a statute of limitations subject to equitable tolling.” Christo v. Edward G. Boyle Ins. Agency, Inc., 402 Mass. 815, 817 (1988). Where MCAD employees have discouraged a claimant from filing a timely complaint with the MCAD, it may be appropriate to toll the six-month filing period. Id. Whether it is appropriate to toll the filing period in this case is a matter yet to be resolved by the Superior Court.