Wrongful Termination Cases

THOMAS v JOHN DEERE CORPORATION Docket No. 149555. Submitted January 5, 1994, at Detroit. Decided May 2, 1994, at 10:10 a.m. Leave to appeal sought. Thomas L. Thomas brought an action in the Washtenaw Circuit Court against John Deere Corporation, alleging wrongful discharge from employment. The court, Patrick J. Conlin, J., granted summary disposition for the defendant. The plaintiff appealed. The Court of Appeals held: The plaintiff produced evidence from which it is possible to conclude that the defendant had imposed an employment contract that limited its discretion to terminate the plaintiff’s employment. However, the same evidence establishes that the defendant reserved for itself the sole authority to decide whether termination was justified. Although the defendant could terminate the plaintiff only for good and just cause, the decision whether good and just cause existed was to be made by the plaintiff’s supervisor, the supervisor’s superior, and a personnel representative. As long as the determination that just cause existed was made by the designated personnel, it is not possible for the plaintiff to state a claim that the defendant breached the employment contract by terminating the plaintiff’s employment. Because the defendant had reserved for itself the authority to determine whether there was good and just cause, and because the defendant had, in the manner provided by the contract, determined that there was good and just cause for terminating the plaintiff’s employment, terminating the plaintiff’s employment was not a breach of the employment contract. Affirmed. Master and Servant — Termination for Cause — Contracts. The parties to an employment contract are free to bind themselves however they wish; where an employment contract provides that the employer can terminate the employment only for just cause, and the employer reserves for itself the authority to determine whether there is good and just cause for termination and where the employer determines that there is good and just cause for termination in the manner provided in the contract, the termination of employment is not a breach of the contract. References Am Jur 2d, Master and Servant §45; Labor and Labor Relations §9. See ALR Index under Discharge From Employment or Office; Labor and Employment. Bredell & Bredell (by John H. Bredell), for the plaintiff. Howard & Howard Attorneys, P.C. (by David C. Coey and Matthew J. Coffey), for the defendant. Before: Reilly, P.J., and Connor and R. M. Pajtas, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Connor, J. Plaintiff appeals as of right the trial court’s dismissal of his claim of wrongful discharge on defendant’s motion for summary disposition brought pursuant to MCR 2.116(C)(10). We affirm. Plaintiff was a territory manager for defendant for sixteen years. In May of 1990, his supervisor informed him that his performance was unacceptable. He was given a list of objectives that he was to accomplish in six months or his employment would be terminated. In November of 1990, his supervisor informed him that he had failed to meet the defined objectives and that his employment with defendant was being terminated. Plaintiff sued defendant for wrongful discharge. In his complaint, plaintiff alleged that he had an employment contract with defendant terminable for just cause only and that defendant had breached that contract by terminating his employment without just cause. In response to defendant’s motion for summary disposition, the trial court ruled that plaintiff had not produced enough evidence to support his claim that his employment could be terminated only for just cause. On appeal, plaintiff contends that he presented sufficient evidence of a just-cause contract to avoid summary disposition. Under our Supreme Court’s decision in Rood v General Dynamics Corp, 444 Mich 107, 119-127; 507 NW2d 591 (1993), it is clear that plaintiff did not. Plaintiff’s evidence was quite similar to the evidence presented by Mr. Schippers in his companion case in Rood, and our Supreme Court held that that evidence was insufficient. Id. at 127. However, because it strikes us that calling defendant an at-will employer ignores reality, we think further comment is in order. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), was a ground-breaking decision. However, the heart of the decision was a recognition of something obvious: an employment contract is just a contract. As a rule of construction, employment contracts of indefinite duration are presumed to be terminable at will. Lynas v Maxwell Farms, 279 Mich 684, 687; 273 NW 315 (1937). The Court in Toussaint was asked to decide whether this presumption renders a contract provision that states that an employee will be terminated only for just cause a nullity. The Court concluded that parties to an employment contract are free to bind themselves however they wish. If an employment contract provides that the employer can terminate the employment only for just cause, then that provision is enforceable, and the employer cannot terminate employment at will. Id. at 610. Subsequent court cases have dealt with the issue regarding when a just-cause provision can be viewed as being a part of an employment contract. See, e.g., Rood, supra, and Rowe v Montgomery Ward & Co, Inc, 437 Mich 627; 473 NW2d 268 (1991). However, they have not changed the fundamental proposition that parties to an employment contract are free to bind themselves to whatever termination provisions they wish. Consequently, it is somewhat misleading to talk about employment contracts as being either "at-will” or "just-cause.” In some employment contracts, employers choose to retain unfettered discretion to terminate an employee’s employment when doing so would not violate the law. In other employment contracts, employers agree to limit their discretion to terminate an employee’s employment in some way. Employers and employees are free to bind themselves as they wish, and "at-will” and "just-cause” termination provisions are merely extremes that lie on opposite ends of the continuum of possibilities. This case involves an employment contract that lies between the two extremes. Plaintiff had not been explicitly promised that he could be fired only for just cause. Like most people, he did not negotiate about job security with his employer, he simply accepted employment at whatever terms defendant chose to impose. Plaintiff has produced evidence from which it is possible to conclude that defendant had imposed a contract that did limit its discretion to terminate plaintiff’s employment. Plaintiff’s supervisor admitted that every employee of defendant could be fired only for good and just cause. Defendant’s internal policies all take the same position. Defendant held itself out to all its employees, including plaintiff, as a company that would terminate employment only for cause, and it never made any statement that would suggest that it reserved for itself the discretion to terminate employment absent good and just cause. However, the same evidence relied on to demonstrate that defendant had limited its ability to terminate plaintiff’s employment also establishes that defendant reserved for itself sole authority to decide whether termination was justified. Defendant would terminate plaintiff only for good and just cause. The decision whether good and just cause existed would be made by plaintiff’s supervisor, his supervisor’s superior, and a personnel representative. Thus, despite defendant’s alleged agreement to terminate plaintiff only for cause, as long as the determination that just cause existed was made by the designated personnel, it is not possible for plaintiff to state a claim that defendant breached plaintiff’s employment contract by terminating his employment. Because defendant had reserved for itself the authority to determine whether there was good and just cause, and because defendant had, in the manner provided by the alleged employment contract, determined that there was good and just cause for terminating plaintiff’s employment, terminating plaintiff’s employment was not a breach of that contract. We are not saying that there was just cause to terminate plaintiff’s employment. We are only saying that the particular employment contract alleged by plaintiff does not give courts the authority to second-guess defendant’s determination. Affirmed. R. M. Pajtas, J., concurred. Reilly, P.J., concurred in the result only. This decision-making approach protects defendant’s employees from some risks that truly at-will employees face, such as being fired rashly in a fit of pique, and being fired only because of a personality conflict with an immediate supervisor that does not affect job performance.

SEABROOK v MICHIGAN NATIONAL CORPORATION Docket No. 143793. Submitted February 10, 1994, at Lansing. Decided April 22, 1994; approved for publication July 25, 1994, at 9:20 A.M. Tricia Seabrook brought an action in the Ingham Circuit Court against Michigan National Corporation, alleging violation of various statutory rights, civil conspiracy, invasion of privacy, tortious interference with a business relationship, and breach of an implied contract in connection with the termination of her employment as a vice president of Michigan National Bank, a subsidiary of the defendant. The court, Peter D. Houk, J., granted summary disposition for the defendant, finding that the record failed to support the plaintiffs assertion that she was an employee of the defendant. The plaintiff appealed. The Court of Appeals held: Because federal banking regulations prohibit a bank holding company from acting as a principal in dealings with third parties so as to benefit a subsidiary bank, and because it is clear that the plaintiff dealt with third parties to the benefit of Michigan National Bank, the plaintiff, as a matter of law, was an employee of the bank rather than the defendant, a conclusion that is also supported overwhelmingly by the facts on the record. Accordingly, the court properly concluded that there was no basis for the plaintiffs claims against the defendant. Affirmed. Frederick V. Greene, for the plaintiff. Thomas J. Guyer, for the defendant. Before: Griffin, P.J., and Cavanagh and H. A. Koselka, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Per Curiam. Plaintiff appeals as of right from the trial court’s order granting defendant’s motion for summary disposition in this wrongful discharge case. We affirm. Plaintiff, Tricia Seabrook, was hired by Michigan National Bank (mnb) in 1978. In 1986, she became a senior sales representative in the cash management division, and in 1987 she was appointed second vice president of mnb. Her job responsibilities included selling a bank service to other companies. In July 1988, plaintiff resigned from her position with mnb. On September 28, 1989, she filed suit against mnb for wrongful discharge and negligent evaluation. The action was dismissed with prejudice. On October 19, 1990, plaintiff filed a second wrongful discharge suit against mnb, which was also dismissed. On March 15, 1991, plaintiff filed the instant action against defendant, Michigan National Corporation (mnc), alleging violations of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and the Michigan Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq., civil conspiracy, invasion of privacy, tortious interference with a business relationship, and breach of an implied contract. Defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and (10), asserting that plaintiffs employer was mnb and, therefore, that she had no claims against defendant mnc. The court granted the motion. This appeal followed. The only issue properly before this Court is whether the trial court erred in determining that there was no genuine issue of material fact with respect to whether defendant was plaintiff’s employer. In reviewing a grant of summary disposition, we must give the benefit of reasonable doubt to the nonmovant and determine independently whether a record might be developed that would leave open an issue upon which reasonable minds could differ. Farm Bureau Mutual Ins Co v Stark, 437 Mich 175, 184-185; 468 NW2d 498 (1991). It is not disputed that defendant is a bank holding company that is regulated by Federal Reserve Regulation Y. 12 CFR 225.1 et seq. That regulation permits a holding company to perform certain personnel and accounting services for its subsidiaries, but prohibits it from acting as a principal in dealing with third parties. In other words, defendant cannot enter into contracts with third parties to benefit mnb. In this case, plaintiff was clearly acting as an agent for mnb in dealing with third parties. If plaintiff was an employee of defendant, she would have been prohibited by Regulation Y from entering into contracts with third parties. Thus, as a matter of law, plaintiff must have been an employee of mnb and not of mnc. The factual evidence also overwhelmingly supports the conclusion that plaintiff was an employee of mnb and not an employee of defendant mnc. Plaintiff initially filed suit against mnb, alleging it was her employer. Her letterhead and business card indicated that she worked for the cash management division of mnb. Mnc was named on plaintiff’s pay stubs and W-2 forms merely in its capacity as paying agent for mnb. This case is thus distinguishable from Ambro v American Nat’l Bank & Trust Co of Mich, 152 Mich App 613; 394 NW2d 46 (1986), where there was a genuine issue of fact concerning whether the plaintiff was an employee of the holding company. Id. at 621. Giving the benefit of reasonable doubt to plaintiff, there is no foundation for her asserting this claim against defendant, and summary disposition was properly granted. Affirmed.

KOCENDA v ARCHDIOCESE OF DETROIT Docket No. 150075. Submitted March 1, 1994, at Detroit. Decided April 19, 1994, at 9:40 a.m. Leave to appeal sought. Diane Kocenda and Rosemary Szymofelnik brought an action in the Wayne Circuit Court against the Archdiocese of Detroit and others, alleging wrongful discharge, promissory estoppel, and other claims following their dismissal from employment at St. Francis Cabrini High School. The plaintiffs had been discharged before the expiration of the last of a series of employment contracts that had each provided for eleven months of employment. On the defendants’ motion, the court, Edward M. Thomas, J., limited the damages the plaintiffs could recover to the salaries they would have earned had they been employed until the end of their contracts. The defendants tendered those amounts to the plaintiffs and moved for the dismissal of the plaintiffs’ claims. The court granted the motion. The plaintiffs appealed. The Court of Appeals held: The trial court did not err in ruling that the plaintiffs were not entitled to damages for the loss of future income and that they were not entitled to renewal of their contracts. The plaintiffs’ employment clearly had been terminable at the will of the employer or the employee and had not provided for employment that was terminable for just cause only, given that the employment contracts did not provide for tenure, specified that employment was terminable by either party upon thirty days’ notice, and that terminated employees were entitled to thirty days’ pay following notice of termination. Affirmed. Master and Servant — Employment Contracts — Breach — Damages. For breach of an employment contract providing for employment of a definite duration, a wrongfully discharged employee is generally entitled to damages consisting of the agreed-upon compensation for the unexpired term of employment, less what the employee could earn by making diligent efforts to obtain similar employment. References Am Jur 2d, Damages §§ 109, 111. See ALR Index under Damages; Labor and Employment. Dib & Fagan, P.C. (by Barry S. Fagan and Keitha Cowen), for the plaintiffs. Bodman, Longley & Dahling (by James J. Walsh and Karen L. Piper), for the defendants. Before: Reilly, P.J., and Griffin and C. L. Bosman, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Per Curiam. Plaintiffs appeal as of right from a circuit court order limiting damages for their wrongful discharge claims against defendants. Defendants cross appeal the denial of their motion for summary disposition of the claims. We affirm. Plaintiff Rosemary Szymofelnik, a member of the Sisters of the Holy Family of Nazareth until 1989, was employed by defendant St. Francis Cabrini High School in 1972 under a contract with the parish for her services. In 1980, Szymofelnik was given the position of principal. Throughout her engagement at the school, Szymofelnik was employed under a series of eleven-month contracts. Szymofelnik was discharged by defendant Father Gary Bueche, pastor of defendant St. Francis Cabrini Parish and, allegedly, an agent of the defendant Archdiocese of Detroit, on March 7, 1989, before the end of the term of her then current contract. In 1982, plaintiff Diane Kocenda was employed as a guidance counselor at St. Francis Cabrini High School for an eleven-month term under a written contract. Kocenda and St. Francis Cabrini entered into successive eleven-month contracts until the last employment contract of July 1988. Kocenda was also discharged from employment on March 7, 1989, by Father Bueche. Plaintiffs filed a circuit court action on May 19, 1989, alleging wrongful discharge and promissory estoppel with respect to Kocenda (count i); breach of third-party beneficiary contract with respect to Szymofelnik (count ii); wrongful discharge and promissory estoppel with respect to Szymofelnik (count hi); defamation of Szymofelnik by Father Bueche (count iv); invasion of privacy (false light) against defendant Carl Weiss (count v); invasion of privacy (false light), against Father Bueche (count vi); violation of the Employee Right to Know Act, MCL 423.501 et seq.; MSA 17.62(1) et seq. (count vn); and tortious interference with a contractual and business relationship against Weiss (count vm). Defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(10), arguing that plaintiffs’ claims were barred by the First Amendment, that plaintiffs were at-will employees under the terms of their contracts, and that the remaining claims failed as a matter of law. The trial court granted the motion with respect to counts vn and viii, but denied it with respect to the other counts. On May 15, 1991, defendants filed a motion to limit the damages plaintiffs could recover on the claims of wrongful discharge and promissory estop-pel under the eleven-month employment contracts. The motion was granted. At the hearing on plaintiffs’ motion for clarification/rehearing, the trial court explained that it granted defendants’ motion because future damages could not be determined with a reasonable degree of certainty, the contract was for a definite period of time and was not automatically renewable, and it was "clear that it was an at-will situation.” Plaintiffs’ motion for a rehearing was denied. An order was entered limiting the plaintiffs’ damages under counts i and m to their respective salaries through June 30, 1989, the end of their term of employment under the employment contracts. Subsequently, the trial court indicated that the same reasoning applied to count ii. On November 8, 1991, without admitting liability, defendants tendered to plaintiffs the maximum allowable damages as ruled by the trial court. On December 20, 1991, defendants filed a motion to dismiss plaintiffs’ claims of wrongful discharge, promissory estoppel, and breach of contract, arguing that there was no longer any litigable controversy concerning those claims because plaintiffs could not accomplish more if they went to trial. On January 10, 1992, the trial court heard arguments and granted defendants’ motion by praecipe order. On February 24, 1992, the trial court entered a stipulation and order whereby the parties agreed to dismiss counts iv, v, and vi with prejudice and without costs, to dismiss Carl Weiss as a defendant, and to waive mediation sanctions. The parties further agreed to the following: In light of the Court’s decision to grant Summary Disposition as to Counts i, n and m of Plaintiffs’ Amended Complaint, Plaintiffs are permitted to accept the salaries due each Plaintiff, through the end of the term of their contracts without in any way waiving their right to appeal any and all of the underlying orders and the Order Granting Summary Disposition as to Remaining Counts which shall be deemed final as of the date [of] entry of this order. Also on that date, in a formal order, the trial court dismissed counts I, n, and hi and, given that the remaining counts were dismissed by stipulation or order, ruled that the entire case was dismissed and that all previously entered orders were deemed to be final. Plaintiffs argue two theories to support their claim that the trial court erred in refusing to allow consequential damages with respect to their contract claims. First, plaintiffs claim that their inability to obtain employment and the resulting loss of future income was a direct and foreseeable consequence of the wrongful termination of their contracts midyear. Second, plaintiffs claim that the trial court improperly revisited the issues whether the contracts provided for termination only for "just cause” and whether plaintiffs were entitled to automatic renewal of their contracts absent just cause. Having reviewed the record, we are convinced that the trial court did not err. Both of the plaintiffs’ contracts contained the following language, except that the word "teacher” was inserted in Kocenda’s contract in place of the word "principal.” 1. Unless terminated as hereinafter provided, this agreement and principal’s employment with school shall terminate without further obligation on the part either of principal or of school at the end of the school year, a[n] 11 month period commencing August 1, 1988 and ending June 30, 1989. Principal understands, acknowledges and agrees, that he/she has no right to have this agreement extended or renewed by school or to have school offer employment to him/her for any other school year that school is under no obligation whatsoever to extend or to renew this agreement or to offer employment to him/her for any other school year, and that school may elect not to extend or renew this agreement or not to offer employment to him/her for any other school year. school understands, acknowledges and agrees that principal is under no obligation and may elect not to extend or renew this agreement or not to accept employment, if offered by school, for any other school year. 6. This agreement may be terminated during the school year either by principal or by school upon thirty (30) days written notice subject to the following: if school terminates this agreement without notice or with notice of less than thirty (30) days, principal shall be paid for the thirty (30) days immediately following notice of termination, as if he/she had actually worked the full thirty (30) days following notice, even if relieved of duties before thirty (30) days after notice of termination; if principal terminates this agreement with less than thirty (30) days written notice, principal shall receive compensation for days actually worked but shall forfeit any accrued but unpaid fringe benefits; if principal gives thirty (30) days written notice of termination, principal shall receive compensation for days actually worked plus any accrued fringe benefits. 7. This agreement may be terminated during the school year by school immediately, without notice, at any time in the event of any violation of any term of this agreement by principal, or if school otherwise determines that principal’s services no longer are necessary or satisfactory, and principal shall be entitled only to such compensation as was earned but unpaid up to and including principal’s last day of work .... Paragraph 10 of the Supplement to Teacher Contract signed by both plaintiffs provided: 10. The School is under the obligation to retain the teacher only for the time stated in the Contract. The School has no duty or obligation to automatically renew a Teacher’s contract for another year. It is also agreed and understood that there is no "Tenure” in the Cabrini School System. We agree with the trial court that plaintiffs were not entitled to future damages or to renewal of their contracts. The normal rule is that a wrongfully discharged employee is entitled to the total amount of the agreed-upon salary for the unexpired term of his employment, less what the employee could earn by making diligent efforts to obtain similar employment. Isagholian v Carnegie Institute of Detroit, Inc, 51 Mich App 220; 214 NW2d 864 (1974); 5 Corbin, Contracts, § 1095, p 514; 11 Williston on Contracts (3d ed), § 1358, p 302. Beyond this, the employee is not permitted recovery for injury to his reputation. The primary reasons underlying the rule are that (1) the computation of damages for injury to reputation is unduly speculative, and (2) such damage cannot reasonably be presumed to have been within the contemplation of the parties when they entered into the contract. Lindsey v Univ of Arizona, 157 Ariz App 48; 754 P2d 1152 (1987). See also Myrtle Springs Reverted Independent School Dist v Hogan, 705 SW2d 707 (Tex Civ App, 1985), cert den 480 US 906 (1987); Daley v Town of West Brook-held, 19 Mass App 1019; 476 NE2d 980 (1985); Winship v Brewer School Committee, 390 A2d 1089 (Me, 1978); Billmyre v Sacred Heart Hosp of the Sisters of Charity, Inc, 273 Md 638; 331 A2d 313 (1975). In view of the specific language that there was no tenure, that the contracts were terminable by either party upon thirty days’ notice, and that plaintiffs were entitled to thirty days of pay following notice of termination, plaintiffs could not reasonably expect that they would be entitled to compensation for any future wage loss even if they were terminated without just cause. Unlike Munro v Elk Rapids Schools (On Rehearing), 385 Mich 618; 189 NW2d 224 (1971), and Anderson v West- wood Community School Dist, 49 Mich App 406; 212 NW2d 232 (1973), relied upon by plaintiffs, the St. Francis Cabrini school system did not provide tenure and the parties were not subject to the teacher tenure act, MCL 38.71 et seq.; MSA 15.1971 et seq. Moreover, the contract language supports the trial court’s statement that the plaintiffs’ employment was "at will.” Although the general policy provisions might suggest that the plaintiffs were "just cause” employees, the unambiguous terms of the contracts allow either the employer or the employee to terminate the employment relationship after giving thirty days’ notice. The mutual right to terminate the employment following such notice is incompatible with a "just cause” employment relationship. Patillo v Equitable Life Assurance Society of the United States, 199 Mich App 450; 502 NW2d 696 (1993); Jontig v Bay Metropolitan Transportation Authority, 178 Mich App 499; 444 NW2d 178 (1989). We decline to address the issues raised by defendants on cross appeal, because defendants did not condition their stipulation and consent to the court’s final orders upon the right to appeal the court’s earlier refusal to grant their motion for summary disposition. Additionally, because the final orders granting summary disposition are in defendant’s favor, defendants are not "aggrieved” and are not entitled to an appeal as of right. Reddam v Consumer Mortgage Corp, 182 Mich App 754; 452 NW2d 908 (1990). Affirmed.

VAGTS v PERRY DRUG STORES, INC Docket No. 146744. Submitted December 15, 1993, at Detroit. Decided April 5, 1994, at 9:15 a.m. Leave to appeal sought. Betty Vagts brought an action in the Oakland Circuit Court against Perry Drug Stores, Inc., alleging that she was constructively discharged from employment in violation of public policy. The court, Fred D. Mester, J., granted summary disposition for the defendant, finding no question of material fact and that the defendant was entitled to a judgment as a matter of law. The plaintiff appealed. The Court of Appeals held: 1. The plaintiff’s complaint fails to state a claim under any of the three public policy exceptions to the employment-at-will doctrine. Therefore, the trial court should have dismissed the complaint on that basis. 2. The three public policy exceptions are based on the principle that some grounds for discharging an employee are so contrary to public policy as to be actionable. The first exception applies to grounds most often found in explicit legislative statements prohibiting the discharge, discipline, or other adverse treatment of employees who act in accordance with a statutory right or duty. The second exception finds sufficient legislative expression of policy to imply a cause of action for wrongful termination even in the absence of an explicit prohibition on retaliatory discharge, such as where the alleged reason for the discharge was the employee’s failure or refusal to violate a law in the course of employment. The third exception finds an implied prohibition on retaliatory discharge where the reason for the discharge was the employee’s exercise of a right conferred by a well-established legislative enactment. 3. With regard to the first exception, the only statute that arguably would prohibit a discharge in the situation involved in this case is the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq. The plaintiff, however, may not avail herself of the protection of the act because she did not refuse to perform an illegal act, did not report or threaten to report illegal activity, and did not file her action within the statutory period of limitation. In addition, where a statute confers upon a victim of retaliation the right to sue, that person may not also assert a claim of discharge in violation of public policy. Thus, the plaintiff in this case may not use the Whistleblowers’ Protection Act as a source of public policy to establish a claim under the first exception. References Am Jur 2d, Master and Servant §§ 34, 43; Wrongful Discharge §§ 44-54, 194, 214. Modern status of rule that employer may discharge at-will employee for any reason. 12 ALR4th 544. 4. The plaintiff cannot establish a claim under the second exception because her alleged refusal to violate the law happened at the same time as her resignation and the defendant had no opportunity to act appropriately or inappropriately in reaction to her alleged refusal. 5. The third exception is inapplicable because the plaintiff did not claim to have been constructively discharged for exercising a statutory right. 6. Constructive discharge is not in itself a cause of action; rather, it is a defense against the argument that no suit should lie in a specific case because the plaintiff left the job voluntarily. Thus, where constructive discharge is alleged, an underlying cause of action is needed. Affirmed. 1. Labor Relations — Employment Terminable at Will •— Public Policy Exceptions. Employment relationships generally are terminable at will, with or without cause and, at any time for any, or no, reason; however, three exceptions to this rule have been recognized, based on the principle that some grounds for discharging an employee are so contrary to public policy as to be actionable: the first exception applies where legislative statements explicitly prohibit the discharge, discipline, or other adverse treatment of employees who act in accordance with a statutory right or duty; the second exception applies where sufficient legislative expression of policy implies a cause of action for wrongful termination even in the absence of an explicit prohibition on retaliatory discharge, such as where the alleged reason for the discharge was the employee’s failure or refusal to violate a law in the course of employment; the third exception applies where the reason for the discharge was the employee’s exercise of a right conferred by a well-established legislative enactment. 2. Labor Relations — Retaliatory Discharges — Statutory Cause of Action — Public Policy Claims. Where a statute confers upon a victim of a retaliatory discharge from employment the right to sue, that person may not also assert a claim of discharge in violation of public policy; a public policy claim is sustainable only where there is no applicable statutory prohibition against discharge in retaliation for the conduct at issue. 3. Labor Relations — Actions — Defenses — Constructive Discharge. Constructive discharge from employment is not in itself a cause of action; rather, it is a defense against the argument that no suit should lie in a specific case because the plaintiff left the job voluntarily; there must be an underlying cause of action where constructive discharge is alleged. Sachs, Waldman, O’Hare, Helveston, Hodges & Barnes, P.C. (by Kathleen L. Bogas), for the plaintiff. Dykema Gossett (by Joseph A. Ritok, Jr., and Lauren A. Rousseau-Rohl), for the defendant. Before: Hood, P.J., and Murphy and Fitzgerald, JJ. Per Curiam. This is an employment case. Plaintiff appeals as of right from the trial court’s dismissal, under MCR 2.116(C)(10), of her claim of constructive discharge in violation of public policy. We affirm, albeit for reasons other than those of the trial court. Plaintiff worked in defendant’s advertising department. She claims that she was repeatedly asked to bill vendors for coupon ads that were not printed until after the coupons had expired and to lie about when the ads had been published. Plaintiff claims that she viewed this as fraud and objected, although she did not refuse to do the billing. Eventually, plaintiff’s co-worker at the advertising department left and plaintiff resigned. Plaintiff alleges that, because defendant claimed that the billing problems were not intentional but were instead due to a backlog, they would surely recur now that her department would be even more shorthanded. She argues that the trial court erred in finding that, taking plaintiffs allegations as true, there was no question of material fact and defendant was entitled to judgment as a matter of law. We agree only in part. Generally, employment relationships are terminable at will, with or without cause, "at any time for any, or no, reason.” Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 694-695; 316 NW2d 710 (1982). "However, an exception has been recognized to that rule, based on the principle that some grounds for discharging an employee are so contrary to public policy as to be actionable.” Id. at 695. These grounds are "[m]ost often . . . found in explicit legislative statements prohibiting the discharge, discipline, or other adverse treatment of employees who act in accordance with a statutory right or duty.” Id. (first exception). "[C]ourts have also occasionally found sufficient legislative expression of policy to imply a cause of action for wrongful termination even in the absence of an explicit prohibition on retaliatory discharges” such as "where the alleged reason for the discharge . . . was the [employee’s] failure or refusal to violate a law in the course of employment.” Id. (second exception). Courts have also "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.” Id. at 695-696 (third exception). The first and third forms of public policy claims identified in Suchodolski clearly rely upon a statute for the source of an identifiable public policy. See id. In Suchodolski, for example, the Court found no grounds to imply a cause of action where the employee was discharged for reporting accounting irregularities and mismanagement. For a source of public policy, the employee relied upon the internal code of ethics of the Institute of Internal Auditors and upon the Public Service Commission’s "extensive regulation of the accounting systems of public utilities.” Id. at 696. The Court found that the "code of ethics of a private association does not establish public policy” and that the psc’s regulation of the industry’s accounting practices was "not . . . directed at conferring rights on the employees.” Id. at 696-697. We also note that our Supreme Court has probably eliminated the first of the three grounds identified in Suchodolski by holding that a "public policy claim is sustainable . . . only where there also is not an applicable statutory prohibition against discharge in retaliation for the conduct at issue.” Dudewicz v Norris-Schmid Inc, 443 Mich 68, 80; 503 NW2d 645 (1993). In other words, where a statute confers upon a victim of retaliation the right to sue, that person may not also assert a claim of discharge in violation of public policy under Suchodolski. See Dudewicz at 78-80; see also Shuttleworth v Riverside Osteopathic Hosp, 191 Mich App 25, 27-28; 477 NW2d 453 (1991). The second form of the exception, however, applies where an employee has been discharged because the employee refused to violate a "law.” The term "law” may include those principles promulgated in constitutional provisions, common law, and regulations as well as statutes. Black’s Law Dictionary, Unabridged Fifth Edition (1979). Moreover, the Suchodolski Court did not hold a public policy could only be established by a statutory source. Thus, it could be possible for a public policy to be based on principles derived from authoritative sources other than statutes. With these principles in mind, we find that plaintiffs complaint, as amended, fails to state a claim under any of the three public policy exceptions to the employment-at-will doctrine. With regard to the first exception, assuming without deciding that it survived Dudewicz, the only statute that would arguably prohibit a discharge in a situation such as this one is the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq. However, plaintiff cannot avail herself of the protection of that statute because: (1) she did not refuse to perform an illegal act, (2) she did not report or threaten to report the illegal activity, and (3) she did not file suit within the statutory period. See MCL 15.362; MSA 17.428(2); MCL 15.363(1); MSA 17.428(3)(1); see also Shuttleworth, supra at 26-28. Under Du-dewicz, she also may not use the statute as a source of public policy to establish a claim under the first Suchodolski exception. The second form of the exception under Sucho-dolski is the most applicable to plaintiff’s case. Plaintiff claims she was constructively discharged for refusing to violate the law and her resignation should be treated as a refusal. However, plaintiff cannot prevail because she uses her resignation as proof of both a constructive discharge and a refusal- to violate the law. Because plaintiff’s refusal happened at the same time as her resignation, plaintiff did not give defendant an opportunity to act appropriately or inappropriately in reaction to her refusal. Therefore, plaintiff cannot establish a claim under the second form of the public policy exception. She clearly does not fit under the third exception because she did not claim to have been constructively discharged for exercising a statutory right. In summary, because plaintiff cannot establish a prima facie case under any of the three Suchodol-ski exceptions, the trial court should have dismissed plaintiff’s complaint for failing to state a claim. MCR 2.116(C)(8). For the sake of clarity, we also point out that constructive discharge is not in itself a cause of action, although it is routinely alleged as a separate count in complaints for wrongful discharge. See, e.g., Wolff v Automobile Club of Michigan, 194 Mich App 6, 15; 486 NW2d 75 (1992); Hammond v United of Oakland, Inc, 193 Mich App 146, 151; 483 NW2d 652 (1992). Rather, constructive discharge is a defense against the argument that no suit should lie in a specific case because the plaintiff left the job voluntarily. See anno: Circumstances which warrant ñnding of constructive discharge in cases under Age Discrimination in Employment Act (29 USCS §§ 621 et seq), 93 ALR Fed 10, 16 (1989); see also anno: Circumstances in Title VII employment discrimination cases (42 USCS §§2000e et seq) which warrant ñnding of "Constructive Discharge” of discriminatee who resigns employment, 55 ALR Fed 418, 420-421 (1981). Thus, an underlying cause of action is needed where it is asserted that a plaintiff did not voluntarily resign but was instead constructively discharged. A constructive discharge is established where "an employer deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation or, stated differently, when working conditions become so difficult or unpleasant that a reasonable person in the employee’s shoes would feel compelled to resign.” Mourad v Automobile Club Ins Ass’n, 186 Mich App 715, 721; 465 NW2d 395 (1991). Where reasonable persons could reach different conclusions regarding whether these elements are established, the issue becomes a question of fact for the jury and not one properly decided by the trial court. See id. We acknowledge that, if plaintiffs complaint could be found to state a claim under Suchodolski, we would reverse the judgment below because the alleged deficiencies identified by the trial court— whether plaintiffs working conditions were intolerable, whether a reasonable person would have expected the alleged illegalities to recur, and whether defendant acted intentionally — are really questions of fact for the jury that do not justify summary disposition under MCR 2.116(0(10). However, we find that the complaint fails to state a claim for discharge in violation of public policy. Affirmed.

NIEVES v BELL INDUSTRIES, INC Docket No. 140379. Submitted December 7, 1993, at Detroit. Decided April 4, 1994, at 9:55 a.m. Russell Nieves brought an action in the Washtenaw Circuit Court against Bell Industries, Inc., and others, alleging wrongful discharge in violation of an oral agreement for, and legitimate expectation of, employment terminable for just cause only and alleging misrepresentation. The defendants moved for summary disposition, arguing that employment had been terminable at will as stated in an application form and compensation agreement signed by the plaintiff, as well as in an employee handbook given to the plaintiff. The court, Patrick J. Conlin, J., denied the motion. The defendants appealed by leave granted. The Court of Appeals held: 1. Where, as in this case, an employment contract expressly provides for employment at will, an employee, by signing the contract, assents to employment at will and may not maintain an action based on a prior oral agreement for just-cause employment. 2. A claim based on legitimate expectations of just-cause employment must rest on the employer’s promises to the work force in general, not, as occurred in this case, to an individual employee. 3. A person who, like the plaintiff, has the means to determine that a representation is not true cannot maintain an action for misrepresentation. Reversed. 1. Master and Servant — Termination of Employment — Contracts. An employee who signs an employment agreement that provides for termination at the will of either the employer or the employee assents to at-will employment and may not maintain an action for wrongful discharge based on a prior oral agreement for termination for just cause only. References Am Jur 2d, Fraud and Deceit §§ 247 et seq.; Master and Servant §§ 27 et seq. Employer’s misrepresentation as to prospect, or duration of, employment as actionable fraud. 24 ALR3d 1412. 2. Master and Servant — Just-Cause Employment. An action for wrongful discharge based on legitimate expectations of employment terminable for just cause must rest only on the employer’s promises to the work force in general rather than to the particular employee. 3. Fraud — Misrepresentation — Knowledge op Falsehood. Fraud cannot be perpetrated against a person who has the means to determine that a representation is not true. Chambers, Steiner, Mazur, Ornstein & Amlin, P.C. (by Michelle J. Harrison and Angela J. Ni-cita), for the plaintiff. Cohen & Warren, P.C. (by David W. Warren and Robert J. Essick), for the defendants. Before: Griffin, P.J., and Mackenzie and J. E. Mies, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Mackenzie, J. This is an action for wrongful discharge and misrepresentation. Defendants appeal by leave granted from an order denying their motion for summary disposition. We reverse. Plaintiff interviewed with defendant David Lerner for the position of general manager of defendant Bell Industries’ Ann Arbor office in May 1988. According to plaintiff, Lerner offered assurances that the position was "long-term” and assured plaintiff that he would not be arbitrarily fired. The following day, Lerner called plaintiff to offer him the position, and plaintiff asked if defendants would be willing to make a written offer. On May 26, 1988, plaintiff received a letter from Lerner that included a written offer and informed plaintiff that "[ajn Employment Contract will be issued after your acceptance of Bell Industries^] proposal.” Plaintiff called Lerner the same day, accepted the position, and asked about the employment contract. Plaintiff claims that Lerner told him that it "was merely a breakdown of the medical plan, it would summarize the base income and these incentive programs.” On June 6, 1988, plaintiff completed an application for employment with Bell Industries. The application stated that employment could be terminated at any time at the will of the employer. The application also stated that the termination policy could not be changed except in writing signed by an authorized representative of the company. Plaintiff stated that when he questioned Lerner regarding the at-will employment language, Lerner told him that the provision did not apply to him. Plaintiff commenced his employment with Bell Industries on June 13, 1988. At a training session, he received an employee handbook that provided that employment could be terminated at any time with or without cause and with or without notice. The handbook also provided that the policy could only be changed in a writing signed by the president or vice president of the company. According to plaintiff, he understood that the manual applied to his subordinates. On August 29, 1988, plaintiff was given a document entitled "General Manager’s Compensation Agreement.” The agreement provided that it could be terminated at any time with or without cause. When plaintiff asked Lerner to strike the language, Lerner replied that he did not have the authority to do so, but that it did not apply to plaintiff. Plaintiff signed the document after Lerner told him that his employment would have to be discontinued if he did not sign. While plaintiff recognized that Lerner did not have the authority to delete the at-will language, Lerner assured him that it was just boiler plate. On October 21, 1988, Bell Industries terminated plaintiffs employment. Plaintiff stated that he received no warning that his work was unsatisfactory, and that he was not given a chance to rectify any problems. Plaintiffs discharge slip indicated that he was discharged for cause because of his inability to "keep on top of’ Bell’s policies and procedures. This suit, alleging wrongful discharge and misrepresentation, followed. Defendants first contend that the trial court erred in not dismissing plaintiffs wrongful discharge claim. We agree. There is a strong presumption that an employment contract for an indefinite duration, such as the contract in this case, is terminable at the will of either party for any reason or no reason at all. Coleman-Nichols v Tixon Corp, 203 Mich App 645, 655; 513 NW2d 441 (1994). In Rood v General Dynamics Corp, 444 Mich 107; 507 NW2d 591 (1993), our Supreme Court reiterated that a just-cause employment relationship can arise either by contract or by an employee’s legitimate expectations in reliance on company policies. Under a contractual theory, a party must present sufficient proof either of a contractual provision for a definite term of employment or of a provision forbidding discharge absent just cause. Rood, supra, p 117. Such provisions may become part of an employment contract as a result of explicit promises or promises implied in fact. Id. Oral statements of job security must be clear and unequivocal to overcome the presumption of employment at will. Id., p 119, quoting Rowe v Montgomery Ward & Co, Inc, 437 Mich 627, 645; 473 NW2d 268 (1991). Under the legitimate expectations theory, a party may overcome the presumption of employment at will by establishing that the employer’s policies and procedures have become a legally enforceable part of an employment relationship if such policies and procedures instill legitimate expectations of discharge for just cause only. Rood, supra, pp 117-118. The courts must determine whether a promise has been made and whether the promise is reasonably capable of instilling in employees a legitimate expectation of just-cause employment. Rood, supra, p 140. In this case, plaintiff argues that there was an express oral agreement of just-cause employment in light of the promises made during his interview and because of Lerner’s job offer and plaintiff’s acceptance. Alternatively, plaintiff argues that the policies and procedures of Bell Industries created a legitimate expectation of just-cause employment. Even if we were to agree that there was an oral agreement that plaintiff had a just-cause employment contract, the General Manager’s Compensation Agreement that plaintiff signed clearly and unambiguously defined the terms of plaintiff’s employment, including the company’s at-will employment policy. Plaintiff was aware that Lerner could not change that term. One who signs a contract cannot seek to avoid it on the basis that he did not read it or that he supposed that it was different in its terms. Stopczynski v Ford Motor Co, 200 Mich App 190, 193; 503 NW2d 912 (1993). When an employment contract expressly provides for employment at will, a plaintiff, by signing the contract, assents to employment at will and cannot maintain an action based on a prior oral agreement for just-cause employment. Stopczynski, supra, p 193; Scholz v Montgomery Ward & Co, Inc, 437 Mich 83; 468 NW2d 845 (1991). See also In re Certiñed Question, 432 Mich 438; 443 NW2d 112 (1989); Rowe, supra; Grow v General Products, Inc, 184 Mich App 379; 457 NW2d 167 (1990); Pepper-man v Automobile Club of Michigan Ins Group, 181 Mich App 519; 450 NW2d 66 (1989). While plaintiff may have had a subjective expectation that his employment could not be terminated except for just cause, such an expectation in and of itself does not create a just-cause employment contract. Schwartz v Michigan Sugar Co, 106 Mich App 471, 478; 308 NW2d 459 (1981). Finally, we reject plaintiff’s suggestion that the terms of the General Manager’s Compensation Agreement may be voided on the basis of duress. See Apfelblat v Natl Bank Wyandotte-Taylor, 158 Mich App 258; 404 NW2d 725 (1987). We likewise reject plaintiff’s alternative argument based on legitimate expectations of just-cause employment. A claim based on legitimate expectations rests on the employer’s promises to the work force in general rather than to an individual employee. In re Certified Question, supra, p 443, n 3. Here, Bell’s job application, handbook, and compensation agreement all promised at-will employment. Defendant also contends that the trial court erred in refusing to dismiss plaintiff’s misrepresentation claim. We agree. A misrepresentation claim requires reasonable reliance on a false representation. See State-William Partnership v Gale, 169 Mich App 170; 425 NW2d 756 (1988). There can be no fraud where a person has the means to determine that a representation is not true. Montgomery Ward & Co v Williams, 330 Mich 275; 47 NW2d 607 (1951); Webb v First of Michigan Corp, 195 Mich App 470, 474; 491 NW2d 851 (1992). Here, plaintiff acknowledged that he read the at-will employment language in the various documents presented to him and that Lerner could not alter the terms of the employment agreement. He chose to believe Lerner rather than the signed contract. However, a plaintiff cannot claim to have been defrauded where he had information available to him that he chose to ignore. Webb, supra, p 475. Reversed.

Beverly Folmsbee vs. Tech Tool Grinding & Supply, Inc., & another. Berkshire. January 6, 1994. March 31, 1994. Present: Liacos, C.J., Wilkins, Abrams, Lynch, & O’Connor, JJ. Civil Rights, Availability of remedy. Privacy. Controlled Substances. Contract, Employment. Employment, Termination. Public Policy. A claim brought against a private employer by a former employee alleging a violation of G. L. c. 12, § 11-H, by reason of a mandatory drug testing program instituted by the employer, was properly dismissed where the employee did not allege or prove any interference or attempted interference with any right secured by the Constitution or laws either of the United States or of the Commonwealth. [391-392] In a civil action in which an employee claimed that her employer’s mandatory drug testing policy constituted “unreasonable, substantial, or serious” interference with the employee’s right to privacy in violation of G. L. c. 214, § IB, the judge correctly determined that the policy was reasonable in light of the nature of the employer’s business, the evidence of employee drug use and the procedural safeguards to guarantee privacy employed by the medical center conducting the tests. [392-394] An at-will employee discharged for failure to comply with lawful internal policy (mandatory drug testing) of her employer, had no ground for a claim that her discharge was in violation of public policy embodied in the Privacy Act (G. L. c. 214, § IB), in art. 14 of the Massachusetts Declaration of Rights, and in the Fourth Amendment to the United States Constitution. [394-395] Civil action commenced in the Superior Court Department on May 18, 1990. A motion for summary judgment on claims alleging violation of the right to privacy and wrongful termination of employment was heard by William W. Simons, J. A claim alleging violation of the Massachusetts Civil Rights Act was heard by John F. Moriarty, J. The Supreme Judicial Court granted a request for direct appellate review. Thomas J. Curley, Jr., for the plaintiff. Diane M. DeGiacomo for the defendants. Gail S. Strassfeld & Sarah Wunsch, for Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief. Robert Morin. Abrams, J. The plaintiff, Beverly Folmsbee, an employee of the defendant corporation, refused to participate in a mandatory employee drug testing program and left her employment. The plaintiff then filed a complaint against her employer, Tech Tool Grinding & Supply, Inc., alleging: (1) violation of G. L. c. 12, §§ 11H & 11I (1992 ed.), the Massachusetts Civil Rights Act (count I); (2) violation of her right to privacy under G. L. c. 214 (1992 ed.) (count II); (3) wrongful termination in violation of public policy (count III); (4) wrongful termination in violation of the covenant of good faith and fair dealing (count IV); and (5) intentional infliction of emotional distress (count V). Folmsbee agreed to summary judgment in favor of the defendants on counts IV and V. On cross motions for summary judgment, the Superior Court judge allowed summary judgment for the defendants on counts II and III. The remaining count was tried before another judge in the Superior Court, who dismissed count I, and entered judgment for the defendants. Folmsbee appeals from the judgment on counts I through III. We allowed the parties’ application for direct appellate review and now affirm. We summarize the relevant facts. The plaintiff, Beverly Folmsbee, is a former employee of Tech Tool Grinding & Supply, Inc. (Tech Tool). The defendant Tech Tool is a Massachusetts corporation in the business of manufacturing industrial cutting tools. The defendant Robert Morin is vice president and part owner of Tech Tool. Morin oversees the day to day operation of the plant. Folmsbee began work at Tech Tool as a tool grinder in August, 1988. She worked full time, approximately fifty-five hours per week, until April 12, 1990. During her employment, she received regular raises and bonuses. She was never reprimanded concerning her job performance. The parties stipulated that Tech Tool never had any probable cause to believe that Folmsbee ingested illegal drugs nor any reasonable suspicion that she did so. The work at Tech Tool requires the employees to be well trained, constantly alert, and extremely careful. The tools manufactured by the company are razor sharp and must be handled with great care in order to avoid injury to the Tech Tool employees and to persons using them after they have been manufactured and shipped. Over several years, Morin was concerned about drug use by Tech Tool’s employees. Two employees had been arrested on drug charges, and another had been sent to a twenty-one day drug rehabilitation program. In addition, Morin smelled marihuana smoke and found marihuana cigarette butts in the company rest room. On March 12, 1990, Tech Tool posted a handwritten notice to inform the employees that it was initiating a drug testing program to begin on April 12, 1990. On April 11, 1990, Morin held a meeting to discuss the drug testing procedures with Tech Tool’s employees. Morin told the employees that he had selected a local walk-in medical center to perform the testing. All full-time employees, including Morin and the company president, were to be tested. The walk-in medical center adheres to the following procedure. The employee who is being tested disrobes in a private room and dresses in a hospital gown. A medical assistant of the same sex as the employee examines the employee to ensure that no vials of urine have been brought into the room by the employee. The employee then goes alone to the bathroom to produce a urine sample, while the medical assistant waits outside. The specimen is then sealed and hand delivered to the testing laboratory. Folmsbee saw the notice on March 12, 1990, and attended the April 11 meeting. When she heard about the testing procedures, the fifty-four year old employee became very upset. The following morning, she told Morin that she found the testing procedure degrading and would not take the test. She was particularly distressed by the visual inspection, which she characterized as a “strip search.” Morin told Folmsbee that she would have to take the test if she wanted to continue on as an employee. Folmsbee responded, “You’ve just fired me.” Morin denied he was firing her, but continued to insist that she submit to drug testing. Folmsbee left the premises, and did not return to work. She did not take the drug test. She returned to Tech Tool a week later to pick up her tool kit and her check. As of the date of the trial,- Folmsbee was working as a part-time housekeeper, about eight hours a week. 1. Massachusetts Civil Rights Act. Folmsbee claims that the defendants have violated G. L. c. 12, §11H, by interfering with her right to be free from unreasonable searches and seizures. Folmsbee correctly does not allege a constitutional violation. Because Tech Tool is a private employer, Folmsbee’s rights under art. 14 of the Massachusetts Declaration of Rights and the Fourth Amendment to the United States Constitution are not implicated. See Bally v. Northeastern Univ., 403 Mass. 713, 717 n.3 (1989). Folmsbee did not prove any interference or attempted interference with any right secured by the Constitution or laws either of the United States or of the Commonwealth. There was no error. .2. Right of privacy. The question presented is whether Tech Tool’s drug testing policy constituted an “unreasonable, substantial, or serious” interference in violation of G. L. c. 214, § 1B. The Superior Court judge evaluated the policy under the balancing test set forth in Bratt v. International Business Machs. Corp., 392 Mass. 508, 520-521 (1984), and concluded the policy was reasonable. In Bratt, we said, “the employer’s legitimate interest in determining the employees’ effectiveness in their jobs should be balanced against the seriousness of the intrusion on the employees’ privacy.” Bratt, supra at 520, citing Cort v. Bristol-Myers Co., 385 Mass. 300, 308 (1982). Previously, in evaluating drug testing by a public employer, we balanced the employee’s interest in privacy against the employer’s competing interest in determining whether police cadets were using drugs. See O’Connor v. Police Comm’r of Boston, 408 Mass. 324, 330 (1990). We have recognized that requiring an employee to submit to urinalysis involves a significant invasion of privacy. See O’Connor, supra at 328; Horsemen’s Benevolent & Protec tive Ass’n, Inc. v. State Racing Comm’n, 403 Mass. 692, 704 (1989). The act of urination is inherently private. Moreover, Tech Tool’s medical tester required the employees of Tech Tool to submit to a visual inspection by either a doctor or medical assistant, in order to ensure that the employee had not concealed any vials of urine. On the other side of the balance is Tech Tool’s legitimate business interest. The nature of Tech Tool’s business requires extreme alertness and precision. Even a slight error could result in serious harm to both employees and customers. Morin had a strong basis for suspecting that Tech Tool employees were using drugs. Thus, he was concerned for the safety of both Tech Tool’s employees and its customers. Tech Tool provided thirty days’ notice prior to initiating any testing. All full-time employees, including the two owners, were required to take the test. Morin promised that anyone who tested positive would not be fired, but would be retested in thirty days and given an opportunity to undergo drug counselling at company expense. Folmsbee did not object to drug testing per se. The parties stipulated that Tech Tool never had any probable cause to believe that Folmsbee ingested illegal drugs nor reasonable suspicion that she did so. Folmsbee objected to the visual inspection procedure employed by the medical center. The center is an established medical facility with experience in drug testing. The person being tested goes alone into the examining room to disrobe in privacy. A doctor or medical assistant of the same sex as that person performs a brief visual inspection. The judge found that a visual inspection was necessary because vials of urine intended for the purpose of frustrating drug testing are commercially available. The person then goes alone to produce the urine specimen, while the doctor or medical assistant waits outside. The Superior Court judge ruled that the procedures were not unnecessarily intrusive. We agree. In light of the nature of Tech Tool’s business, the evidence of employee drug use, and the procedural safeguards to guarantee privacy employed by the medical center, the judge correctly determined that the drug testing policy was reasonable. Balancing the competing interests, we conclude that Tech Tool’s drug testing policy did not violate G. L. c. 214, § 1B. 3. Wrongful termination in violation of public policy. The general rule is that an employment-at-will contract can be terminated at any time for any reason or for no reason at all. See Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 668 n.6 (1981). As an exception to the general rule, we have permitted employees in certain circumstances to seek redress for terminations in violation of public policy. Smith-Pfeffer v. Superintendent of the Walter E. Fernald State School, 404 Mass. 145, 149 (1989). Folmsbee asserts that her discharge from Tech Tool contravenes the public policy embodied in the Privacy Act, in art. 14 of the Massachusetts Declaration of Rights, and in the Fourth Amendment to the United States Constitution. The Superior Court judge concluded that “the facts of this case [do not] fall into any of the previously delineated categories which are exceptions to the ‘at will’ rule.” We agree. Folmsbee was not discharged “for asserting a legally guaranteed right (e.g., filing workers’ compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do what the law forbids (e.g., committing perjury).” Smith-Pfeffer, supra at 149-150, and cases cited. She was discharged for failure to comply with a lawful internal company policy. Folmsbee relies on Cort v. Bristol-Myers Co., 385 Mass. 300 (1982), in which we said that an unreasonable, substantial, or serious interference with an employee’s privacy could contravene public policy and warrant the imposition of liability on the employer for the discharge. Cort, supra at 307. In Cort, employees refused to answer questions appearing on an employer questionnaire because they found them to be highly personal and offensive. We concluded in Cort that employers do not have unlimited discretion to require disclosures of their employees’ personal lives. However, in this case, as in Cort, the employer’s interference with the employees’ privacy was reasonable. See id. at 310. As we stated above, Tech Tool did not violate G. L. c. 214, § 1B, by unreasonably interfering with Folmsbee’s privacy. The judge properly allowed the defendants’ motion for summary judgment on Folmsbee’s claim for wrongful discharge in violation of public policy. There was no error in entering judgment for the defendants on counts I, II, and III of the plaintiffs complaint. Judgment affirmed. Two part-time employees were not required to take the test. One was the mother of the president of Tech Tool, who performed odd jobs. The other was a retiree who worked on his own schedule, making small tools. Morin offered no clear reason why the part-time workers were excluded from the drug testing. The relevant portions of G. L. c. 12 read as follows: “Section 11H. Whenever any person or persons, whether or not acting under color of law, interfere by threats, intimidation or coercion, or attempt to interfere by threats, intimidation or coercion, with the exercise or enjoyment by any other person or persons of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, the attorney general may bring a civil action . . . .” “Section 11I. Any person whose exercise or enjoyment of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, has been interfered with, or attempted to be interfered with, as described in [§] 11H, may institute and prosecute in his own name and on his own behalf a civil action for injunctive and other appropriate equitable relief.” In prior cases we have reserved the question whether the right of privacy statute reaches attempted interference with a person’s privacy. See Bally v. Northeastern Univ., 403 Mass. 713, 721 n.5 (1989). See also Cort v. Bristol-Myers Co., 385 Mass. 300, 311 n.l (1982) (Abrams, J., concurring). Because Folmsbee did not seek an injunction, we again do not reach the issue. General Laws c. 214, § 1B (1992 ed.), provides in relevant part: “A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages.” Courts in other jurisdictions also have employed a balancing test to evaluate whether an employer’s drug testing policy unreasonably intrudes on the privacy of employees. See Borse v. Piece Goods Shop, Inc., 963 F.2d 611 (3d Cir. 1992); Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123 (Alaska 1989); Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81 (1992); Twigg v. Hercules Corp., 185 W.Va. 155 (1990). As a private employer, Tech Tool is not subject to the more stringent requirements of probable cause that govern public employers. See Horsemen’s Benevolent & Protective Ass’n, Inc., supra at 706. In her discussion with Morin on April 12, 1990, Folmsbee did not suggest a less intrusive method of guaranteeing the integrity of the urine sample or the alternative of a blood test for drugs. Folmsbee did not raise or argue the question whether Tech Tool’s policy provides adequate safeguards against dissemination of private information regarding its employees. Therefore, that issue is not before us. Morin denies that he fired Folmsbee. We assume, without deciding, that Folmsbee was discharged.

Barbara Mistishen vs. Falcone Piano Company, Inc., & another. No. 92-P-1225. Essex. November 4, 1993. -March 21, 1994. Present: Brown, Perretta, & Kass, JJ. Contract, Employment. Public Policy. Employment, Termination. An employer’s discharge of an employee from her at-will employment in retaliation for her complaints to her supervisor that their employer’s warranty practices were unfair and deceptive did not violate public policy, where the employee did not claim that the employer’s wrongdoing put the consumer in harm’s way or otherwise presented a threat to public health or safety; where there were no material facts in dispute, summary judgment was correctly entered for the employer. [244-246] Civil action commenced in the Superior Court Department on March 20, 1991. The case was heard by Margot Botsford, J., on a motion for summary judgment. Paul A. Manoff for the plaintiff. David C. Casey for the defendants. George Brambilla. Perretta, J. For purposes of determining whether it was error to allow the defendants’ motion for summary judgment, we assume it true that the defendant Falcone Piano Company, Inc. (Falcone), discharged the plaintiff, a piano tuner, from her at-will employment in retaliation for her complaints to her supervisor, the defendant Brambilla, that Falcone’s warranty practices were unfair and deceptive. Concluding that the plaintiffs discharge does not violate public policy, we affirm the judgment. 1. The facts. When first hired by Falcone in August, 1988, the plaintiff’s duties as a piano service technician included various piano assembly tasks, as well as keyboard regulation, tuning, and final preparation of pianos for customers. About two years later, Falcone promoted the plaintiff to the position of marketing technician. Her responsibilities in that position involved preparing pianos for customers, maintaining the pianos in Falcone’s showroom, and performing service calls on pianos in customers’ homes, frequently in respect to warranty work. As a marketing technician, the plaintiff began to notice what she believed to be defects in the pianos that Falcone was preparing to sell and in pianos that she serviced in customers’ homes. The plaintiff found what she thought to be problems, mostly loose tuning pins, in about forty to fifty pianos. She also disapproved of the repair technique used by Falcone to tighten the tuning pins. Taking her complaints about perceived defects and poor workmanship to Brambilla, the plaintiff asked that the pianos either be repaired or that she be allowed to inform customers of defects in the pianos. Brambilla and his supervisor told the plaintiff that she should inform them and not customers as to the existence of any defects and that they would deal with any problems if and when a customer came forward with a complaint about a piano. On March 5, 1991, Brambilla asked the plaintiff to prepare a piano that was to be sold on March 7. On March 6, the plaintiff was late for work, because of personal business, and Brambilla discharged her. It is the plaintiff’s claim that the true reason for her discharge was her effort to have Fal-cone honor its warranties and repair its defective pianos. There are no material facts in dispute because Falcone, while denying the existence of any imperfections in its pianos, accepts the plaintiff’s allegations solely for the purpose of challenging the complaint on summary judgment. 2. Discussion. “[A]n at-will employee has a cause of action for wrongful discharge if the discharge is contrary to public policy.” DeRose v. Putnam Mgmt. Co., 398 Mass. 205, 210 (1986). The “issue whether there was a public policy violation is a question of law for the judge. . . .” Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 151 (1989), citing Mello v. Stop & Shop Cos., 402 Mass. 555, 561 n.7 (1988). The plaintiff argues that because her complaints implicated Falcone’s violation of a statute, G. L. c. 93A, she engaged in conduct protected by public policy. Although the term “public policy” is amorphous, see Petermann v. International Bhd. of Teamsters, Local 396, 174 Cal. App. 2d 184, 188 (1959), the public policy exception to the at-will employment rule has been made available to employees discharged for performing important public deeds. See Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. at 149-150; Flesner v. Technical Communications Corp., 410 Mass. 805, 810-811 (1991). While the importance of a public deed is not determined on the sole basis of whether the law absolutely requires its performance, ibid., such a mandate would bespeak a legislative determination of the importance of the act to the public. Under c. 93A, unfair acts and practices can range from the annoying to the disastrous. Considering the breadth and flexibility of the coverage provided by the statute, see Schubach v. Household Fin. Corp., 375 Mass. 133, 137 (1978), we think it significant that the Legislature chose to create new private and public remedies for consumers without imposing any obligation on employees to report unfair or deceptive acts by their employers. Whether there is public importance in employee complaints about c. 93A violations by their employers must be determined on the basis of the act claimed to be unfair, and deceptive. See Mello v. Stop & Shop Cos., 402 Mass. at 560 n.6, where the court assumed without deciding that “whistleblowing based on a reasonable, good faith (but erroneous) belief that the employer is violating the law should be protected in particular instances” (emphasis supplied). The underlying act, which the plaintiff believed to be unfair and deceptive and which she identified as having prompted her to “blow the whistle,” was that Falcone was in breach of its warranties, that it was selling “bargain basement pianos” while professing that they were of superior quality. The plaintiff does not claim that Falcone’s wrongdoing put the consumer in harm’s way or otherwise presented a threat to public health or safety. To the contrary, she concedes in her brief that Falcone, but for its representations, did nothing that the law forbids: “Falcone would be perfectly free under . . . c. 93A to manufacture and distribute poorly crafted cheap pianos as long as it did not represent or warrant that it was doing something else.” While the act performed by the plaintiff might be viewed by some as appropriate and socially desirable, it fell far short of the level of importance necessary to warrant a conclusion that her discharge violates public policy. See Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. at 151; Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 475-476 (1992). Compare Flesner v. Technical Communications Corp., 410 Mass. at 810-811. The plaintiff’s claim that she was acting in furtherance of honesty and fairness in the marketplace does not elevate her disagreement with Falcone concerning internal matters, the manner in which it honored its warranties, into protected activity. “[I]f the present facts should be held to qualify a discharged employee for relief, then a new practical definition might have to be given to employments theoretically terminable at will.” Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. at 151, quoting from Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 667 (1981). Judgment affirmed. The plaintiffs claim against Brambilla for tortious interference with her employment is also based upon the allegation of retaliatory discharge.

Martin B. Kraft vs. Police Commissioner of Boston. Suffolk. November 1, 1993. March 10, 1994. Present: Liacos, C.J., Nolan, Lynch, O’Connor, & Greaney, JJ. Police, Assignment of duties, Authority of police chief, Firearms. Public Employment, Police. Contempt. Practice, Civil, Contempt, Appeal. In a contempt proceeding brought by a discharged police officer who had been reinstated pursuant to court order to his former position, the judge correctly concluded' that the police commissioner had acted in good faith in the exercise of his managerial discretion in requiring the officer to demonstrate his fitness to carry a service revolver and that the commissioner was not thereby in contempt of the previous reinstatement order. [239-241] A litigant who failed to assert any right to submit live testimony at a hearing on a complaint for contempt waived any such rights. [241] In a civil action, a party was not entitled to raise an issue for the first time on a second appeal, where he could have, but did not, raise the issue the previous time the matter was appealed. [242] Civil action commenced in the Superior Court Department on October 31, 1988. After review by this court, 410 Mass. 155 (1991), further proceedings were had before John C. Cratsley, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Harold• L. Lichten for the plaintiff. Susan M. Prosnitz, Special Assistant Corporation Counsel, for the defendant. O’Connor, J. The plaintiff, Martin B. Kraft, was appointed a Boston police officer in 1983 and served with an unblemished record for several years. In 1988 the defendant police commissioner terminated Kraft’s employment after discovering that, in completing application forms for the police officer position, Kraft had failed to disclose that he had been hospitalized for mental illness. At the time of his discharge, Kraft was a detective in the drug control unit. Kraft brought an action in the Superior Court challenging his discharge, and a judge determined that the commissioner’s action had been unlawful. After that determination was made, the judge conducted a hearing on damages incurred through January 16, 1990. The parties agreed that from that date forward Kraft would be placed on administrative leave with a rate of pay of a detective with the same rank and title he had held before his employment was terminated. After the completion of the hearings, the judge ordered the defendant to “reinstate [the] plaintiff ... to his former position as a detective assigned to the Drug Control Unit, without loss of benefits or seniority.” A few weeks later the judge amended the order to require the defendant to “reinstate [Kraft] to the position, by rank, title, and salary, of detective [not necessarily assigned to the drug unit] without loss of benefits or seniority.” The judge also awarded Kraft damages for “lost wages, benefits, overtime and paid detail during this period and damages for emotional distress” “up to and including January 16, 1990,” and attorney’s fees and costs. The judge stayed Kraft’s reinstatement to active duty, pending appeal. On May 15, 1991, this court affirmed the judgment. Kraft v. Police Comm’r of Boston, 410 Mass. 155 (1991) (Kraft I). The plaintiff appeals and the defendant cross appeals from an order that the judge issued on January 29, 1992, approximately eight months after this court’s decision. Kraft I. We transferred the case to this court on our own initiative. The January 29 order was in response to the plaintiff’s “Petition for Contempt: and/or Motion to Clarify and Enforce Judgment.” The facts relevant to the plaintiff’s petition, taken from the judge’s written findings, are as follows: “On June 13, 1991 [the] plaintiff returned to active duty. After a week of training at the Boston Police Academy, [the] plaintiff was assigned to the Identification Unit of the Department with the same rate of pay he was earning while on administrative leave. At this time [the] plaintiff was denied recertification for use of a department service revolver, despite [the] plaintiffs request for recertification. [The] [p]laintiff was informed that in order to be recertified for use of a handgun, he would have to take a psychological test and undergo an examination by the police department psychologist. After consulting with his attorney, the plaintiff complied with these requests. “On August 16, 1991 [the] plaintiff was provided a copy of the police department psychologist’s report. The report recommended that [the] plaintiff not be reinstated to the position of police detective and that he not be certified for use of a firearm. On August 19, 1991 counsel for [the] plaintiff was informed by counsel for the defendant that the plaintiff would not be recertified for use of a service revolver and that he would remain in his present assignment in the Identification Unit. The Identification Unit does not offer any opportunity for overtime work and, without a service revolver, [the] plaintiff has been unable to obtain other available overtime and paid detail work.” The judge did not hear testimony in connection with the plaintiffs petition. However, he was provided with numerous materials including an aEdavit of the plaintiffs counsel, an aEdavit of the plaintiff with the police department psychologist’s report and other exhibits attached, and the reports and curriculum vitae of a psychologist and a psychiatrist of the plaintiffs choosing. In his aEdavit, the plaintiff disputed several factual assertions bearing on his medical history as described in the department psychologist’s report. Also, in response to an assertion in the department psychologist’s report, he disputed that he had “ever tr[led] to ‘beat the test’ on any test given to [him] by a licensed psychologist or psychiatrist.” Repetition here of the contents of the psychologists’ and psychiatrist’s reports is unnecessary. It is enough to say that the department psychologist expressed an opinion that, in light of the plaintiffs being “unwilling or unable to be truthful when the truth may cast a negative light on him” and the plaintiffs mental health and substance abuse history, the plaintiff “is ... an unacceptable risk.” The department psychologist declined to recommend Kraft for reinstatement to the position of police detective, and he advised that Kraft “should certainly not have his firearm returned to him, nor should he be given a permit to carry a firearm at this time.” The psychologist chosen by the plaintiff, on the other hand, was highly critical of the department psychologist’s report, and concluded that Kraft “has made a remarkable recovery from the impediments of an early childhood and young adulthood” and “is capable of performing his job as Detective with the Boston Police Department,” including the carrying of a weapon. The psychiatrist’s report, too, was favorable to the plaintiff. The psychiatrist concluded that “Mr. Kraft is fit to be a police officer and it is safe for him to carry a gun.” By his “Petition for Contempt: and/or Motion to Clarify and Enforce Judgment,” the plaintiff seeks a judgment that, by refusing to recertify him to use a service revolver and by limiting him to “non-detective” services in the identification unit, thereby depriving him of an opportunity for overtime work and paid details, the defendant police commissioner violated the order of the Superior Court judge, affirmed in Kraft I, supra, that the plaintiff be reinstated to the position of detective. The plaintiff seeks an adjudication of contempt or, as an alternative if such an adjudication should be denied, a new order more clearly requiring the commissioner to re-certify him to carry a service revolver and to receive assignments customarily given to detectives. Only in that way, the plaintiff contends, will he be “made whole” following the unlawful termination of his employment as the judge’s prior order contemplated. Following oral argument on the petition and the submission of briefs by counsel, the judge awarded Kraft $38,668.73 in damages for the period from January 17, 1990, to August 19, 1991, the period the plaintiff was on administrative leave, plus interest, and ordered that the plaintiff’s petition be dismissed. Kraft appeals from the dismissal of his petition. The police commissioner cross appeals from the award of damages. In his memorandum of decision explaining his reason for dismissing the petition, the judge focused on “the well-recognized authority of the Boston Police Commissioner to determine the fitness of an officer to perform his duties including the fitness of an officer to carry a firearm. Nolan v. Police Comm’r of Boston, 383 Mass. 625, 630 (1981). See St. 1962, c. 322, § 1 (14); G. L. c. 41, § 98; Boston v. Boston Police Patrolmen’s (Ass’n), Inc., 8 Mass. App. Ct. 220, 225-227 (1979) (a ‘compendium of legislation’ regulating who shall carry a firearm and under what conditions ‘demonstrates a clear policy statement by’ the Legislature that ‘the carrying of firearms is to be controlled by specified officials’).” In addition, the judge noted that “it is also clear that a police commissioner may require an officer returning to active duty to undergo a psychiatric examination before reissuance of a firearm. Nolan, supra at 626 and 629 n.4; Boston, supra at 227.” The judge continued as follows: The “[pjlaintiff has suggested that the defendant’s requirement that he undergo a further psychiatric examination was undertaken in retaliation for his success in bringing his discrimination claim [Kraft I]. [The] [pjlaintiff has failed, however, to make a prima facie showing of retaliation. Radvilas v. Stop & Shop, Inc., 18 Mass. App. Ct. 431, 439-440 (1984). Absent a showing that the defendant has ‘abused his managerial powers,’ this Court has no authority to interfere with the defendant’s administrative prerogative to decide who shall carry a firearm. Boston, supra at 227.” “To constitute civil contempt there must be a clear and undoubted disobedience of a clear and unequivocal command.” United Factory Outlet, Inc. v. Jay’s Stores, Inc., 361 Mass. 35, 36 (1972). Commonwealth v. One 1987 Ford Econoline Van, 413 Mass. 407, 411 (1992). In this case, the police commissioner was commanded to “reinstate [Kraft] to the position ... of detective,” that is, to restore Kraft to the position from which he had been unlawfully removed. The commissioner was not commanded, however, to put Kraft in a better, more protected, position than he had been in before he was discharged. As the cases and statutes on which the judge relied establish, until his employment was terminated Kraft’s right to carry a service revolver, and therefore to perform police functions requiring possession of such a weapon, was subject to the police commissioner’s determination that he was fit to do so, and. that discretionary decision could properly have been aided by mandated psychiatric or psychological testing. On reinstatement, Kraft’s rights were subject to the same managerial prerogatives of the police commissioner. Thus, in the absence of a showing that, in requiring the psychological testing and in refusing recertification, the commissioner was engaged in pretext or device motivated by hostility toward the plaintiff rather than by a desire to fulfil his managerial responsibilities, see Mayor of Somerville v. Caliguri, 8 Mass. App. Ct. 335, 339 (1979), there was no inconsistency between the order of reinstatement and the commissioner’s conduct, and contempt was not established. It is apparent from the judge’s memorandum that he was satisfied that the materials submitted to him did not constitute a “prima facie showing” that the police commissioner’s insistence on psychological testing and his decision to deny recertification to the plaintiff had been motivated by concerns other than public safety. Stated another way, it is apparent that the judge concluded that, without assessing credibility but rather viewing the evidence contained in the affidavits and experts’ reports in their light most favorable to the plaintiff, it could not fairly be inferred that the police commissioner’s conduct was other than a good faith exercise of managerial discretion. The issue before the judge was not whether the plaintiff was fit to carry a service revolver. That decision was for the police commissioner to make. The issue before the judge was only whether the commissioner’s decision was made in a good faith effort to fulfil his statutory managerial function. If it was, there was no contempt of the Superior Court order. If it was not, contempt was established. We think the judge was correct in determining that no prima facie showing of pretext or device had been made. If the submitted materials are accepted in their light most favorable to the plaintiff, it has not been shown that, in requiring psychological testing or in relying on the department psychologist’s report despite the challenges to it, the police commissioner was not concerned with public safety but instead was motivated by a desire to retaliate or by other unlawful considerations. The plaintiff argues on appeal that the judge committed prejudicial error by not taking live testimony. We disagree. No contention was made below, nor is it made here, that, had the judge permitted live testimony, the plaintiff could have produced evidence in addition to the materials submitted to the judge that would have warranted a finding that the commissioner’s conduct was unlawfully motivated. Indeed, after submitting the materials to which we have referred, the parties engaged in oral arguments and submitted briefs without any suggestion that live testimony would be appropriate. The plaintiff waived any right he may have had to an evidentiary hearing involving live testimony. Milano v. Hingham Sportswear Co., 366 Mass. 376, 379 (1974) (“A defendant in a contempt proceeding may, of course, waive his right to an evidentiary trial. .'. . Such a waiver may result, in effect, from a failure to assert rights in the trial court in a manner which permits effective appellate review” [citations omitted]). We are satisfied that the judge’s order, affirmed in Kraft I, was a clear and unequivocal command, thus obviating the need for a “clarification” as sought by the plaintiff in lieu of, or in addition to, an adjudication of contempt. We also are satisfied, however, that the plaintiff has failed to show a “clear and undoubted disobedience” of that command. United Factory Outlet, Inc. v. Jay’s Stores, Inc., supra. No contempt has been proven. Thus, the judge’s order dismissing the plaintiff’s petition was correct. We turn very briefly to the police commissioner’s cross appeal. The commissioner challenges the award of compensation for the period Kraft was on administrative leave, that is, from January 17, 1990, to August 19,' 1991, when, as the judge concluded, the commissioner “lawfully removed [Kraft] from his street assignment.” The commissioner- argues that damages for that period should not have included compensation for loss of overtime or detail pay since such an award requires undue speculation. The commissioner had the opportunity to raise that question in his initial appeal (Kraft I) but did not do so and therefore waived a right of review at this stage of the proceedings. Judgment affirmed. In a reply brief to the Superior Court dated December 6, 1991, Kraft complained that the police commissioner had made factual assertions in his brief that were unsupported by the submitted materials. He stated, “All of these allegations are false, or at the very least disputed by [the] plaintiff. No affidavit or other evidence has been submitted by the defendant to support these spurious allegations. If such factual assertions are relevant they must be resolved after evidentiary hearing.” It is apparent from the judge’s memorandum of decision that he did not rely on the referenced factual assertions but instead considered whether the submitted material made a prima facie showing of retaliation or any other form of contempt.

COLEMAN-NICHOLS v TIXON CORPORATION Docket No. 145235. Submitted November 3, 1993, at Detroit. Decided February 22, 1994, at 9:15 A.M. Beverly Coleman-Nichols brought an action in the Wayne Circuit Court against Tixon Corporation, William Herbert, Tixon’s general manager, and Armanda Herbert, Tixon’s president, alleging sex discrimination, wrongful discharge from employment, intentional infliction of emotional distress, defamation, and fraudulent conveyance against all three defendants and interference with contractual relations against Armanda Herbert individually. The court, James J. Rashid, J., granted summary disposition for the defendants with respect to the claims of intentional infliction of emotional distress and defamation, but denied summary disposition of the claims of sex discrimination, wrongful discharge, tortious interference with contractual relations, and fraudulent conveyance. The defendants appealed by leave granted. The plaintiff cross appealed from the trial court’s refusal to enter a default judgment in her favor based upon the defendants’ alleged failure to cooperate with discovery. The Court of Appeals held: 1. The plaintiff has presented a prima facie case of sex discrimination and has sustained her burden of demonstrating that the defendants’ proffered legitimate, nondiscriminatory reason for their action was merely a pretext. There is a genuine issue of fact regarding whether the plaintiff was discriminated against on the basis of her gender. 2. The plaintiff should have been permitted to attempt to demonstrate to the jury that her demotion may have been a disparate form of discipline. There was a genuine issue of fact regarding whether the plaintiff was treated differently than other employees similarly situated. The trial court properly refused to grant summary disposition with regard to the claim of sex discrimination. References Am Jur 2d, Fraudulent Conveyances §§ 1, 3, 5-41, 145, 174; Job Discrimination §§151, 2003, 2006, 2008-2012, 2015-2020, 2022, 2024, 2735; Judgments §§ 1152, 1154, 1158; Master and Servant §§ 14-18, 20, 27, 32, 33; Wrongful Discharge §§ 95, 101-103, 120-122, 161-166. 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. 3. Under either a contractual analysis or a legitimate-expectations analysis, the plaintiff did not present sufficient evidence to create a genuine issue of fact concerning the existence of an employment contract terminable for just cause only. The trial court erred in failing to dismiss the wrongful discharge claim. 4. The trial court erred in denying summary disposition of the plaintiff’s claim of tortious interference with contractual relations against Armanda Herbert individually. The plaintiff presented no evidence of any affirmative acts by Armanda individually that corroborate an unlawful interference. 5. The trial court erred in denying summary disposition of the plaintiff’s claim that the defendants fraudulently conveyed certain property contrary to §§ 4, 5, and 6 of the Uniform Fraudulent Conveyance Act, MCL 566.14, 566.15, 566.16; MSA 26.884, 26,885, 26.886, but properly denied summary disposition of the claim involving § 7 of the act, MCL 566.17; MSA 26.887. The plaintiff presented sufficient evidence to create a question of fact regarding the defendants’ intent to defraud creditors under § 7 of the act. 6. The plaintiff was a creditor under the Uniform Fraudulent Conveyance Act and is entitled to pursue her claim under § 7 of the act. 7. Although the record confirms facts sufficient to warrant the entry of a default judgment based on the defendants’ failure to cooperate with discovery, the trial court’s refusal to enter a default judgment was not an abuse of discretion in light of the measures the court took to remedy the defendants’ abuse of the discovery process. 8. The trial court’s denial of summary disposition of the claims of wrongful discharge and tortious interference with contractual relations is reversed. The court’s denial of summary disposition of the claims of sex discrimination and fraudulent conveyance is affirmed. The trial court’s refusal to enter a default judgment based on the defendants’ failure to cooperate with discovery is affirmed. Affirmed in part and reversed in part. 1. Civil Rights — Sex Discrimination — Motions and Orders — Summary Disposition. A plaintiff must demonstrate a genuine issue of material fact regarding whether a prima facie case of sex discrimination exists to avoid summary disposition of such a claim; a prima facie case of discrimination can be made by proving either intentional discrimination or disparate treatment; where the defendant puts forth a legitimate, nondiscriminatory reason for its actions in response to a prima facie case of discrimination, the plaintiff has the burden of showing that the proffered reason is merely a pretext (MCR 2.116[C][10]). 2. Civil Rights — Sex Discrimination — Prima Facie Case. In order to establish a prima facie case of intentional sex discrimination in employment, a plaintiff must prove membership in a protected class, discharge or other discrimination with respect to employment, predisposition of the defendant to discriminate against persons in the class, and action by the defendant upon that disposition when the employment decision was made; to establish a prima facie case under the disparate-treatment theory, the plaintiff must show membership in a protected class and that, for the same conduct or performance, a person of the other gender was treated differently. 3. Master and Servant — Termination for Cause. An employment relationship terminable for just cause only can arise either by contract or by an employee’s legitimate expectations in reliance on company policies; a general statement concerning job security, without further discourse about causes for termination, is insufficient to establish an employer’s intent to create a just-cause contract. 4. Torts — Interference with At-Will Employment Contract. A plaintiff with a claim of tortious interference with an at-will employment contract against a defendant who is an officer of the employer must prove that the officer was acting outside the scope of the officer’s authority; such a claim requires proof, with specificity, of affirmative acts by the defendant that corroborate the unlawful purpose of the interference. 5. Fraudulent Conveyances — Uniform Fraudulent Conveyance Act — Intent to Defraud — Badges of Fraud. Actual intent to defraud creditors can be inferred under the Uniform Fraudulent Conveyance Act from certain "badges” of fraud, although the existence of such badges is not conclusive evidence of intent to defraud; badges of fraud include lack of consideration for the conveyance, a close relationship between transferor and transferee, pendency or threat of litigation, financial difficulties of the transferor, and retention of the possession, control, or benefit of the property by the transferor (MCL 566.17; MSA 26.887). 6. Fraudulent Conveyances — Uniform Fraudulent Conveyance Act — Creditor. A creditor, for purposes of the Uniform Fraudulent Conveyance Act, is a person having a claim, whether matured or unmatured, liquidated or unliquidated, absolute, fixed, or contingent; a person with a tort claim is a creditor from the date of the tort, any liabilities are considered as existing from the date the cause of action arose, and an action can be brought under the act before the rendering of a judgment in a preceding action involving the parties (MCL 566.11, 566.20; MSA 26.881, 26.890). 7. Pretrial Procedure — Discovery — Remedies — Default Judgments. The entry of a default judgment for failure to cooperate with discovery is an extraordinary remedy reserved for use within the sound discretion of the trial court (MCR 2.313[B][2][c]). Kelman, Loria, Downing, Schneider & Simpson (by Janet M. Tooley), for the plaintiff. Bell & Gardner, P.C. (by James W. McGinnis), for the defendants. Before: Gribbs, P.J., and Shepherd and P. E. Deegan, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Shepherd, J. Defendants appeal by leave granted from a November 1, 1991, order of the trial court granting defendants partial summary disposition but denying summary disposition with regard to the balance of plaintiffs claims. Plaintiff cross appeals from the trial court’s refusal to grant entry of a default judgment based on defendants’ alleged failure to cooperate in discovery. We affirm in part and reverse in part. This case arises out of plaintiffs employment relationship with Tixon Corporation, of which William Herbert was general manager, and his wife, Armanda Herbert, was president. Tixon was in the business of collecting parking violation fines for the City of Detroit. Plaintiff began working for Tixon in September, 1986. After working as a supervisor for two years, plaintiff was promoted to the position of assistant operations manager. Plaintiff was primarily responsible for the operations support and the public service departments. Tixon’s other assistant manager was Derrick Gray. Gray was responsible for the revenue and data entry departments, and was later also given the title of marketing director. On May 9, 1990, defendant William Herbert issued a memorandum that announced the elimination of two positions—those of plaintiff and defendant William Herbert’s son, Steven Herbert, ostensibly for economic reasons. Plaintiff’s responsibilities were to be consolidated with those of Gray, who was to be given the sole assistant manager position. At the same time, plaintiff was offered an alternative position as a processor, with a reduction in pay. Plaintiff accepted the lower-level position, but resigned by June, 1990. Following her demotion, plaintiff filed suit against defendants. Then, on November 2, 1990, after her resignation, plaintiff filed an amended complaint. Plaintiff’s amended complaint alleged sex discrimination, wrongful discharge, intentional infliction of emotional distress, defamation, and fraudulent conveyance against all three defendants. Further, plaintiff’s amended complaint alleged interference with contractual relations against defendant Armanda Herbert individually. As noted above, on November 1, 1991, following a hearing on defendants’ motion for summary disposition pursuant to MCR 2.116(0(10), the trial court ordered partial summary disposition. The trial court granted defendants’ motion for summary disposition regarding plaintiff’s claims of intentional infliction of emotional distress and defamation, but denied summary disposition of plaintiff’s claims of sex discrimination, wrongful discharge, tortious interference with contractual relations, and fraudulent conveyance. From that November 1, 1991, order, defendants appeal by leave granted. Plaintiff cross appeals from the trial court’s refusal to enter a default judgment in her favor based upon defendants’ alleged failure to cooperate in discovery. On appeal, our review of a motion for summary disposition pursuant to MCR 2.116(C)(10) is de novo. Adkins v Thomas Solvent Co, 440 Mich 293, 302; 487 NW2d 715 (1992). A motion for summary disposition under MCR 2.116(C)(10) tests the factual support for a claim. Buczkowski v Allstate Ins Co (On Rehearing), 198 Mich App 276, 278; 502 NW2d 343 (1993). The trial court must give the benefit of any reasonable doubt to the nonmoving party. Schultes v Naylor, 195 Mich App 640, 645; 491 NW2d 240 (1992). The trial court must then determine whether a record might be developed that would leave open an issue upon which reasonable minds might differ. Featherly v Teledyne Industries, Inc, 194 Mich App 352, 357; 486 NW2d 361 (1992). i First, defendants argue that the trial court should have granted summary disposition with regard to plaintiff’s claim of sex discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. Defendants argue that plaintiff was not similarly situated to the male employees to whom she compares herself. Defendants also argue that plaintiff has not demonstrated that the reasons given by defendants for eliminating plaintiffs position were a mere pretext. In order to avoid summary disposition of this claim, plaintiff had to demonstrate a genuine issue of material fact regarding whether a prima facie case of discrimination exists. Schultes, supra at 645; MCR 2.116(c)(10). A prima facie case of discrimination can be made by proving either intentional discrimination or disparate treatment. Reisman v Regents of Wayne State Univ, 188 Mich App 526, 538; 470 NW2d 678 (1991). In order to establish a prima facie case of intentional sex discrimination, a plaintiff must show that she was a member of a protected class, that she was discharged or otherwise discriminated against with respect to employment, that the defendant was predisposed to discriminate against persons in the class, and that the defendant acted upon that disposition when the employment decision was made. Schultes, supra at 646. In order to establish a prima facie case of sex discrimination under the disparate-treatment theory, a plaintiff must show that she was a member of a protected class, and that, for the same conduct or performance, she was treated differently than a man. Id. at 645. Where, in response to a prima facie case of discrimination, a defendant puts forth a legitimate, nondiscriminatory reason for its actions, the plaintiff has the burden of showing that the proffered reason was merely a pretext. Featherly, supra at 362. A In the present case, our review of the record reveals that there is a genuine issue of fact regarding whether plaintiff was discriminated against on the basis of her gender. MCR 2.116(0(10). There is no question that plaintiff is a member of a protected class, and that an employment decision was made that was adverse to her. Schultes, supra at 646. Further, it is undisputed that a male coworker, Gray, was paid significantly more as a new supervisor than plaintiff was paid for being an experienced supervisor. Although Gray was promoted to assistant manager a few months after plaintiff, Gray also earned more than plaintiff in the assistant manager position. Then, when the two assistant manager positions were consolidated, Gray was chosen over plaintiff despite plaintiffs greater experience. This was sufficient to create a prima facie case of sex discrimination. Reisman, supra at 538. While at this stage of the proceedings there may be some dispute regarding whether plaintiff and Gray were similarly situated, this is a factual question to be answered by a jury. It does appear that plaintiffs duties as an assistant manager were different from Gray’s. Plaintiff oversaw the public relations and operations support departments. Gray oversaw the revenue and data entry departments, and was later also given the title of marketing director when the assistant manager positions were consolidated. However, on the basis of the job descriptions and various other exhibits presented by the parties, we cannot say with certainty that the two assistant manager positions were substantially different. While plaintiff acknowledges that Gray had attained a higher level of education with his college degree, we cannot say that Gray’s college degree made him any more qualified for the consolidated assistant manager position because the position entailed responsibilities in a wide array of disciplines. By comparison, plaintiff was already proficient at supervising the public relations and operations support departments. Overall, plaintiff and Gray appear to have been equally qualified for the consolidated assistant manager position—although plaintiff had been with the company longer. Thus, we are left with a question of fact regarding why plaintiff was not chosen for the position despite her equal or superior qualifications. Schultes, supra at 645. Plaintiff has presented a prima facie case of sex discrimination. In response to plaintiff’s prima facie case of sex discrimination, defendants argue that plaintiff’s position was eliminated because of economic necessity. However, plaintiff has presented evidence that defendant Tixon Corporation operated at a substantial profit for the period in question. Thus, plaintiff has sustained her burden of demonstrating that defendants’ proffered reason was merely a pretext. Featherly, supra at 362. B On an independent basis, as discussed above, we would sustain plaintiff’s claim of sex discrimination in light of the disparate treatment she received in comparison to Gray. However, in a separate argument, plaintiff also alleges that other male employees were not proportionately disciplined for various incidents of misconduct, while she was constructively discharged for remarking that the Herberts spent their money in ways other than on their employees. On this point—with the elimination of a valid economic rationale for defendants’ actions, as noted above—plaintiff should also be permitted to attempt to demonstrate to a jury that her demotion may have been a disparate form of discipline. The evidence presented by plaintiff in support of this argument strongly suggests that a number of other male employees were not proportionately disciplined for far more egregious conduct. For example, some male employees received neither a demotion nor a pay cut for such serious infractions as fighting on the job and falsifying timesheets. Thus, here also there is a genuine issue of fact. MCR 2.116(0(10). In sum, there exists a genuine issue of material fact whether plaintiff was treated differently than other employees similarly situated. It appears that the record may be further developed in support of plaintiff’s claim of sex discrimination. Featherly, supra at 357. The trial court properly refused to grant summary disposition with regard to this count. ii Next, defendants argue that the trial court erred in refusing to grant summary disposition of plaintiff’s claim of wrongful discharge. Defendants argue that plaintiff was not discharged, but rather resigned. Further, defendants argue that even if plaintiff was constructively discharged, she cannot prove the existence of an employment contract providing for termination only for just cause. Here, we agree that there is no genuine issue of material fact that plaintiff’s employment was terminable only for just cause. MCR 2.116(0(10). No reasonable juror could find that plaintiff had a just-cause employment contract. Featherly, supra at 357. In the recent case of Rood v General Dynamics Corp, 444 Mich 107, 119, 140; 507 NW2d 591 (1993), our Supreme Court reiterated that a just-cause employment relationship can arise either by contract or by an employee’s legitimate expectations in reliance on company policies. However, there is a strong presumption that employment contracts for an indefinite duration are terminable at the will of either party for any reason or for no reason at all. Id. at 116. Under a contractual theory, courts use an objective test, looking at the expressed words of the parties and their visible acts to determine whether a reasonable person could have interpreted the words or conduct to create such a contract. Id. at 119. Under the legitimate-expectations theory, the courts must "examine employer policy statements, concerning employee discharge, if any, to determine, as a threshold matter, whether such policies are reasonably capable of being interpreted as promises of just-cause employment.” Id. at 140. In support of her claim of a just-cause employment relationship, plaintiff stated during her deposition that William Herbert told her that she would keep her job as long as Tixon was doing business. In addition, plaintiff emphasizes that she was given a management training

THORIN v BLOOMFIELD HILLS BOARD OF EDUCATION Docket No. 141676. Submitted October 20, 1993, at Detroit. Decided February 22, 1994, at 9:30 A.M. Fred D. Thorin brought an action in the Oakland Circuit Court against the Bloomfield Hills Board of Education and others, alleging wrongful discharge after the board voted not to renew the last of a series of employment contracts under which he served as superintendent of the Bloomfield Hills Public Schools for terms of two years each. The plaintiff alleged that the defendants had assured him employment until retirement and that, if his employment was terminated because of unsatisfactory performance, he should have been provided a one-year program of assistance during which to show improvement, as provided in an employment handbook. The defendants moved for summary disposition, contending that the plaintiffs employment was governed solely by the terms of his contract and that the handbook did not apply to the plaintiff. The court, Robert L. Templin, J., denied the motion. The Court of Appeals, Gkibbs, P.J., and Holbrook, Jr., and Reilly, JJ., affirmed in an unpublished opinion per curiam, decided October 3, 1989 (Docket No. 105031), stating that the plaintiffs theory of liability is analogous to that addressed in Touissant v Blue Cross & Blue Shield of Michigan, 408 Mich 579 (1980). A jury subsequently rendered a verdict for the plaintiff, awarding him damages of $558,000, comprising six years of his salary at $88,000 a year and an early retirement bonus of $30,000. The defendants appealed. The Court of Appeals held: 1. The trial court did not err in denying the defendants’ motion for judgment notwithstanding the verdict. The jury reasonably could have concluded that the decision not to renew the plaintiffs employment contract was based on unsatisfactory performance. References Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 327, 331, 333; Municipal County, School, and State Tort Liability § 639; Wrongful Discharge § 90. See ALR Index under At Will Relationship; Discharge from Employment or Office. 2. The doctrine of law of the case requires the Court of Appeals to hold that the trial court did not err in instructing the jury in accordance with Touissant. 3. Touissant applies to public employees as long as the resulting implied contract does not violate the employer’s statutory authority. In this case, MCL 380.131(1); MSA 15.4132(1), which limits employment contracts of public school superintendents to no more than three years in duration, would not be violated in allowing a one-year extension of the plaintiffs final two-year contract for a program of assistance for unsatisfactory performance. Accordingly, the plaintiff is entitled to damages of $118,000, consisting of one-year’s salary of $88,000 and the $30,000 early retirement bonus. On remand, the plaintiff may consent to the entry of a judgment for $118,000 plus interest and costs or request, and be allowed, a new trial solely on the issue of damages. 4. The remaining issues raised by the defendants are without merit or were not properly preserved for appellate review. Affirmed in part, reversed in part, and remanded. Corrigan, P.J., concurring, stated that the scope and nature of wrongful discharge remedies available to public sector employees warrants Supreme Court review. Master and Servant — Employment Contracts — Public Employees A wrongful discharge claim based on Touissant v Blue Cross & Blue Shield of Michigan, 408 Mich 579 (1980), can be maintained by a public sector employee only where the resulting implied contract does not exceed the employer’s statutory authority. Googasian, Hopkins, Hohauser & Forhan (by George A. Googasian) (Bendure & Thomas, by Mark R. Bendure and Amy R. Snell, of Counsel), for the plaintiff. Butzel Long (by Virginia F. Metz and David B. Calzone), for the defendants. Before: Corrigan, P.J., and Neff and R. J. Colombo, Jr., JJ. Circuit judge, sitting on the Court of Appeals by assignment. R. J. Colombo, Jr., J. Defendants appeal as of right a jury verdict awarding the plaintiff damages of $558,000 on his wrongful discharge claim. A judgment including costs and interest was entered on April 10, 1991, in the amount of $1,121,308.66. We affirm in part and reverse in part. i The plaintiff was hired as superintendent for defendants’ school district on July 1, 1970. Plaintiff worked under a series of employment contracts and contract supplements. On May 17, 1983, plaintiff signed a letter agreement supplementing the employment contract of July 1, 1980, which extended his employment to June 30, 1985. In June 1984, the president of the school board, Edward Fleischmann, called the plaintiff and advised that he did not believe plaintiff’s contract would be renewed. Plaintiff mentioned he had rights under the administrative handbook and asked about the possibility of a six-month extension. Pursuant to Fleischmann’s instructions, plaintiff made a written request for a six-month extension in a memorandum dated July 6, 1984. The memorandum also set forth plaintiff’s claim that under the terms of the handbook he was entitled to one year’s notice before termination or nonrenewal for unsatisfactory performance. The handbook for July 1, 1983, through June 30, 1986, provided in pertinent part: Terms of Employment Subject to the limitations listed below, the Board of Education agrees that each administrator will be employed for a term of two years, commencing July 1, 1979, and continuing from year to year thereafter unless notification is given by either party, to comply with law as provided in Act 269, PA 1955, as amended by Act 247, PA 1970. 2. Unsatisfactory Performance: A program of assistance shall be instituted as soon as practicable, but no later than February 1 of either year of the administrator’s contract. If after one year of such assistance program, the administrator’s performance is not satisfactory, then, upon 90-day written notice prior to the terminal date of the administrator’s contract, employment may be terminated. Plaintiff and defendants attempted to negotiate a resolution under which plaintiff would be granted a six-month extension as a consultant. Unfortunately, the parties could not agree upon compensation. On December 4, 1984, the board of education voted unanimously not to renew or extend plaintiff’s contract. In a letter dated December 10, 1984, the board advised the plaintiff of its action. This lawsuit ensued. n The first issue raised by the defendants is that the trial court erred in failing to grant their motion for judgment notwithstanding the verdict. They contend that the undisputed evidence established that unsatisfactory performance was not the reason for defendants’ failure to extend or renew plaintiff’s contract. Rather, this action was taken because of a change in membership of the board and its belief that it was time for different leadership. Furthermore, plaintiff had been planning retirement, and granting plaintiff a six-month extension and finding a new superintendent in the middle of the school year were not in the best interest of the school district. In reviewing a trial court’s failure to grant a defendant’s motion for judgment notwithstanding the verdict, we examine the testimony and all legitimate inferences that may be drawn in the light most favorable to the plaintiff. Matras v Amoco Oil Co, 424 Mich 675, 681; 385 NW2d 586 (1986). If reasonable jurors could honestly have reached different conclusions, neither the trial court nor this Court may substitute its judgment for that of the jury. Reisman v Regents of Wayne State Univ, 188 Mich App 526, 538; 470 NW2d 678 (1991). During opening statement, counsel for defendants suggested that because plaintiff had been the superintendent for a long time, there was a tendency to "cut corners.” As an example, counsel stated that the school board paid plaintiff money for a country club membership without action by the school board at a public meeting and official minutes. Counsel told the jury that it would be satisfied with the proofs that this was the board’s motivation for what occurred. During the trial, the school district’s business manager testified there was no other administrator or employee in the school district who was paid wages on verbal directions, spent more for insurance or any other item than the contract provided, and charged personal expenses to the school district. This evidence was to demonstrate that plaintiff used school district funds without legitimate authorization. Finally, there was evidence that once plaintiff filed this lawsuit, the defendants filed a counterclaim. It alleged that plaintiff received pay increases without proper authorization of the school board. Reasonable jurors could have concluded that the decision not to extend or renew plaintiffs contract was due to unsatisfactory performance relating to unauthorized expenditures. The trial court properly denied defendants’ motion for judgment notwithstanding the verdict. in The next issue raised by defendants is that this case was tried under an erroneous legal theory when the trial court improperly instructed the jury in accordance with Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980). They contend that the trial court was not bound by this Court’s prior opinion in Thorin v Bloomfield Hills Bd of Ed, (Docket No. 105031) (Thorin I), unpublished opinion per curiam, decided October 3, 1989, because the opinion was issued without the benefit of a full development of the facts. Defendants rely upon this Court’s statements in Thorin I that "Plaintiffs theory of liability is analogous to that addressed in Toussaint” and "may evolve into a Toussaint-type of contractual entitlement.” Accordingly, defendants believe Thorin I did not establish the law of the case. The doctrine of the law of the case arises where an appellate court has passed on a legal question and remanded the case for further proceedings. Under the doctrine, the legal questions determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain materially the same. CAF Investment Co v Saginaw Twp, 410 Mich 428, 454; 302 NW2d 164 (1981). The law of the case does not apply to an issue that was raised but not decided by an appellate court. Hill v Clark Equipment Co, 85 Mich App 1, 3; 270 NW2d 722 (1978). In Thorin I, our Court held that plaintiffs contractual rights could be determined from his written contracts and the handbook under a theory of liability analogous to Toussaint. We cited Toussaint, supra at 614-615, for the principle that the employer’s statements of policy contained in an employment manual can give rise to contractual rights. We rejected defendants’ claim that Toussaint did not apply to a fixed-term contract subject to periodic renewal. To the extent defendants are contending that Toussaint does not apply to a fixed-term contract that has expired and the written contracts and handbook established that the handbook did not apply to plaintiff, the doctrine of the law of the case applies. These issues were considered in Thorin I and may not be reconsidered in this appeal. Moreover, defendants’ failure to object to the jury instructions precludes appellate review absent a miscarriage of justice. Moghis v Citizens Ins Co of America, 187 Mich App 245, 251; 466 NW2d 290 (1991). We find no miscarriage of justice. IV1 Defendants have raised the issue that Toussaint does not apply in this case because Toussaint does not apply to public employees, all actions by the school board must be approved by a majority vote at a public hearing, MCL 380.1201(1); MSA 15.41201(1), and the school board’s contract with the superintendent shall be for a term not to exceed three years. MCL 380.132(1); MSA 15.4132(1). Defendants assert implied contracts are inconsistent with these statutory requirements imposed upon a school board. A threshold issue is whether Thorin I precludes consideration of this issue. We conclude that the law of the case does not bar consideration of this issue because it was not decided in Thorin I. In Manning v City of Hazel Park, 202 Mich App 685; 509 NW2d 874 (1993), this Court held that Toussaint applies to public employees. This was premised upon the Michigan Supreme Court’s reliance in Toussaint on Perry v Sindermann, 408 US 593; 92 S Ct 2694; 33 L Ed 2d 570 (1972). In Perry, the United States Supreme Court approved the concept of a constitutionally protected interest in continued employment based on an implied contract where the plaintiff was a public employee. Accordingly, Manning concluded that a public employee may maintain a wrongful discharge claim básed on Toussaint. Manning did not address whether there is any limitation on Toussaint’s application to public employees. Three cases in the United States District Court of Michigan have addressed the issue of Toussaint's applicability to public employees. See Merrell v Bay Co Metropolitian Transportation Authority, 707 F Supp 289 (ED Mich, 1989); Willoughby v Village of Dexter, 709 F Supp 781 (ED Mich, 1989); Bennett v Marshall Public Library, 746 F Supp 671 (WD Mich, 1990). These cases also provide guidance with regard to whether there are limitations on Toussaint’s application to public employees. In Merrell, the district court noted that the Michigan Supreme Court explicitly recognized that the genesis of the implied contract was the United States Supreme Court’s decision in Perry, supra. Perry clearly sanctioned the concept of a constitutionally protected interest in public employment based on an implied contract. The district court concluded that Toussaint’s heavy reliance on Perry offered strong support for extending implied contracts to public employees in Michigan. Merrell, supra at 292. In Willoughby, supra, the district court concluded that Toussaint did not apply to public employees. The plaintiff was removed as village manager. An ordinance authorized the council to remove the village manager by majority vote. The ordinance was silent with respect to the need for grounds for removal. The district court determined that the council could not bind future councils by entering into a just-cause contract for an indefinite duration with the village manager. This would negate the power of future councils to discharge under the ordinance. Willoughby, supra at 787. In Bennett, supra, the district court again faced the issue of Toussaint’s application to public employees and reconciled the holdings in Merrell and Willoughby. The court determined that Toussaint applied to public employees only where the resulting implied contract does not exceed the controlling body’s statutory authority. In Bennett the plaintiff was the city’s librarian and claimed that she could only be removed for just cause. A state statute authorized a city’s library board to remove the librarian. The district court found that the plaintiff stated a Toussaint claim as a public employee. This was because a one-year employment contract for just cause did not violate the statutory authority of the library board to remove the librarian and would not create binding obligations on future library boards. Bennett, supra at 671. The reasoning of the district court in Bennett is persuasive. It is reasonable to assume, as did our Court in Manning, that the Michigan Supreme Court intended Toussaint to apply to public employees in light of its reliance upon Perry. Likewise, a public employee cannot claim an implied contract where it violates the controlling body’s statutory authority. Plaintiffs claim of a one-year program of assistance for unsatisfactory performance under the terms of the handbook was consistent with MCL 380.1201(1); MSA 15.41201(1), requiring school board action by a majority vote at a public meeting. Defendants did not assert that the handbook had not been adopted in accordance with this statute. Rather, they stated that the handbook did not apply to plaintiff. Defendants’ erroneous belief does not mean that the handbook was not adopted by a majority vote of the school board at a public meeting. Defendants did not argue at trial that plaintiffs contract extension to June 30, 1985, had not been adopted in accordance with MCL 380.1201(1); MSA 15.41201(1). Although the defendants initially asserted this in their counterclaim, the assertion was withdrawn before trial. Plaintiffs claim to damages through June 30, 1986, did not violate the provisions of MCL 380.132(1); MSA 15.4132(1), which limits contracts with the superintendent to a term not to exceed three years. Plaintiffs last employment contract was extended for two years to June 30, 1985. An additional one-year program of assistance under the handbook would extend the contract to three years and not violate the provisions of MCL 380.132(1); MSA 15.4132(1). However, plaintiff argued at trial that he was entitled to damages after June 30, 1986. This argument was based upon plaintiffs expectation of continued employment until retirement absent just cause for termination and a program of assistance. With a two-year contract extended one year for a program of assistance, plaintiff could only have legitimately expected that he would not be discharged absent just cause until June 30, 1986. Moreover, MCL 380.132(1); MSA 15.4132(1) only authorized a contract for three years. The defendants had no authority to approve a contract for more than three years. Plaintiff was not entitled to damages beyond June 30, 1986. The jury was given various alternatives for assessing damages. One alternative was to award damages of $88,000 a year for six years and a $30,000 early retirement benefit for a total of $558,000. It is reasonable to conclude that the jury computed damages under this method because this was the amount of its verdict. Plaintiff was entitled to damages of $88,000 for lost salary from July 1, 1985, through June 30, 1986, and $30,000 for an early retirement benefit for a total of $118,000. If plaintiff consents in writing to the entry of a judgment in the amount of $118,000 plus interest and costs within twenty-eight days after the expiration of the time limit for pursuing an appellate remedy as of right, a judgment shall enter. Otherwise, plaintiff is entitled to a new trial solely on the issue of damages. v Defendants also contend that the evidence that the handbook applied to plaintiff did not meet the clear and unequivocal standard set forth in Rowe v Montgomery Ward & Co, Inc, 437 Mich 627, 645; 473 NW2d 268 (1991). In addition, they claim that the testimony of individual school board members regarding this issue was made without authority and could not bind the defendants. Defendants assert that it was error to fail to give their proposed instructions relating to the authority of the school board. In Rowe, supra, the Michigan Supreme Court held that oral statements of job security must be clear and unequivocal to overcome the presumption of employment at will. Id. at 645. This rule has no application to the instant case. This case did not involve a claim of employment at will or oral statements of job security. It presented a factual dispute regarding whether the unsatisfactory performance provision in the handbook applied to plaintiff. The testimony of school board members, employees, defendants’ former attorney, and plaintiff sufficiently supported the jury’s conclusion that the provision in the handbook applied to pláintiff. The testimony of school board members regarding this issue was not offered to demonstrate that defendants had adopted the handbook. As noted above, that was never disputed at trial. Rather, the testimony was for the purpose of resolving the issue of the application to plaintiff of the unsatisfactory performance provision in the handbook. There was no error in failing to instruct regarding the requirements for officia

PHYLLIS WAGONER v. ELKIN CITY SCHOOLS’ BOARD OF EDUCATION, BRUCE MORTON, DONALD T. LASSITER, and CHARLIE PARSONS No. 9317SC241 (Filed 15 February 1994) 1. Discovery and Depositions § 7 (NCI4th)— wrongful discharge of teacher alleged —discovery request for personnel and student records —failure to show relevancy and necessity — request properly denied The trial court did not err in denying plaintiff’s motion to compel discovery in her action for intentional infliction of emotional distress, constructive wrongful discharge, malicious interference with contract, and punitive damages, since plaintiff failed to meet her burden of proving that her requests for information as to whether the teacher who replaced her had had a relationship with a high school student during his previous employment, the complete student records at her school, and school personnel records related to information both relevant and necessary to her claims. Am Jur 2d, Depositions and Discovery §§ 21 et seq. 2. Evidence and Witnesses § 2152 (NCI4th)— expert witness-affidavit consisting of legal conclusions The trial court did not err in sustaining defendants’ objection to an expert witness’s affidavit where the entire affidavit consisted of legal conclusions. Am Jur 2d, Expert and Opinion Evidence §§ 136 et seq. 3. Intentional Infliction of Mental Distress § 2 (NCI4th)— intentional infliction of emotional distress —principal’s treatment of teacher —summary judgment for defendants proper The trial court did not err in granting defendants’ motion for summary judgment on plaintiff’s claim for intentional infliction of emotional distress, since evidence that defendants told plaintiff to throw away her health and physical education materials because she would never need them again, removed her from her health and physical education teaching position to the job of ISS coordinator, placed her away from other faculty members in a small room with great humidity and high temperatures, returned a student who had pushed plaintiff to her classroom, stared for “minutes at a time” at plaintiff while she taught, assigned her after school and Saturday work hours, asked her to accompany students on a skiing trip for a good evaluation, told her she had the worst job in school, and denied her the opportunity to attend workshops in her area may well have insulted plaintiff or caused her to suffer indignities, but such actions did not amount to conduct which was atrocious and utterly intolerable in a civilized community. Am Jur 2d, Fright, Shock, and Mental Disturbance §§ 4 et seq., 17. Liability of employer, supervisor, or manager for intentionally or recklessly causing employee emotional distress. 52 ALR4th 853. 4. Contracts § 180 (NCI4th|— malicious interference —action by teacher against board and superintendent —parties to contract Plaintiff teacher could not maintain an action against defendant board of education or defendant superintendent of schools for malicious interference with contract since the board and the superintendent were parties to the contract. Am Jur 2d, Interference §§ 39-48. 5. Contracts § 190 (NCI4th)— malicious interference —motive of principals proper —failure of plaintiff to make prima facie case Because plaintiff teacher admitted on the face of her complaint that defendant principals, by virtue of their positions at her school, had a proper motive for their actions of placing plaintiff in the position of ISS coordinator, plaintiff failed to show that she could make out a prima facie case of malicious interference with contract. Am Jur 2d, Interference §§ 49-48. 6. Labor and Employment § 68 (NCI4th)— career teacher —no employee at will — tort of wrongful discharge inapplicable Plaintiff teacher’s claim based on the tort of wrongful discharge was correctly dismissed by the trial court, since that tort arises only in the context of employees at will, and plaintiff, as a career teacher under N.C.G.S. § 115C-325(c), was not an employee at will. Am Jur 2d, Master and Servant §§ 60-70. Appeal by plaintiff from judgment entered 30 June 1992 in Surry County Superior Court by Judge James M. Long. Heard in the Court of Appeals 6 January 1994. Kennedy, Kennedy, Kennedy & Kennedy, by Harold L. Kennedy, III and Harvey L. Kennedy, for plaintiff-appellant. Tharrington, Smith & Hargrove, by Ann L. Majestic, Alexis C. Pearce, and Jaye P. Meyer, for defendant-appellees. GREENE, Judge. Phyllis Wagoner (plaintiff) appeals from the trial court’s granting of Elkin City Schools’ Board of Education, Bruce Morton, Donald T. Lassiter, and Charlie Parsons’ (defendants) motion for summary judgment in this action for intentional infliction of emotional distress, constructive wrongful discharge, malicious interference with contract, and punitive damages. Plaintiff also appeals from the trial court’s order denying her motion to compel discovery and from the trial court’s sustaining of defendants’ objection to the affidavit of Dr. Melvin F. Gadson (Dr. Gadson). The evidence, viewed in the light most favorable to plaintiff, reveals that the Elkin City Schools’ Board of Education (the Board) hired plaintiff in 1974, and David Thrift, then principal of Elkin High School (EHS), informed her she was being hired to teach health and physical education, the only areas she was certified to teach. The probationary contract between the Board and plaintiff for the 1976-1977 school year and the career contract between the Board and plaintiff for the 1977-1978 school year state plaintiff is “[tentatively assigned to Elkin High School.” Plaintiff signed no other employment contract after signing the 1977 career contract. In 1974, plaintiff began teaching physical education and health. In August 1985, Bruce Morton (Morton), EHS principal from the fall of 1985 until the summer of 1990, asked in front of the entire faculty, “Which one of you is Phyllis Wagoner?” and did not ask for anyone else. Morton visited the gym while she was teaching and stared at her for “minutes at a time,” did not show up for scheduled evaluations of plaintiff, told her once “if I were grading you today, I would give you an F,” switched her from a physical education teacher to an ISS coordinator, told her she could “throw all of [her] health and physical education materials away because [she] would never need them again,” placed her office in a small room in the girls’ locker room with a temperature of 90 to 100 degrees without providing a phone in that room, denied her the opportunity to attend workshops in her area, assigned different working hours than the other teachers, told her that her job was the worst job in the school, told her she would receive a good evaluation if she went on a school skiing trip, filled out an evaluation without a formal observation and claimed that plaintiff had agreed to an interview type observation when she had not, and returned a student that had pushed plaintiff to her classroom. Plaintiff complained to the Board and Donald Lassiter (Lassiter), superintendent of Elkin City Schools, about her position and working hours as ISS coordinator; however, Lassiter and the Board upheld Morton’s assignment of duties and the hours under the Senate Bill 2 plan. After she informed the Board and the new principal, Charlie Parsons (Parsons), that she would work the regular hours, Lassiter suspended plaintiff without pay pending termination for alleged insubordination. After plaintiff appealed this suspension to a Professional Review Committee under N.C. Gen. Stat. § 115C-325, which determined on 23 October 1990 that plaintiff was wrongfully suspended, Lassiter reinstated her. After returning to EHS in November 1990, Parsons placed plaintiff back in the ISS program. On 30 November 1990, she resigned, citing that her work environment from 1989 through November 1990 was intolerable and unbearable, and she had been given “nothing to do” since her return. As a result of these events, plaintiff has suffered severe emotional distress, has been on medication for depression and anxiety, and has been diagnosed by her psychiatrist as having a major psychiatric disorder. During discovery, plaintiff deposed Tony Duncan (Duncan), the teacher who was placed in plaintiff’s position of physical education and health teacher, on 20 February 1992, but Duncan refused to answer questions regarding his relationship with a female high school student at his place of employment before coming to EHS. In written discovery, plaintiff sought personnel records of nine EHS teachers and certain student records. Plaintiff moved to compel discovery of such information on 28 February 1992, which motion was denied by the trial court on 2 April 1992. Sam Tesh, Assistant Principal at EHS from 1983-87, James W. Halsey, Director of Personnel for the Board from 1985-87, Ralph Clingerman, a teacher at EHS, and Laura C. Overbey stated that Morton had told them he was under pressure from the Board to get rid of plaintiff. Morton stated that as principal of EHS, he had the responsibility of making teaching assignments and evaluating each teacher, and switched Duncan and plaintiff because he became “concerned that she was not doing an effective job of teaching the basic skills of various sports to the students” and because switching the responsibilities between Mr. Duncan and [plaintiff] would improve the overall school program.” Plaintiff tendered into evidence at the summary judgment hearing, the affidavit of Dr. Gadson. He stated in his affidavit that in his opinion, (1) defendants’ treatment of plaintiff was an “extreme departure from the normal operation of a public school program,” and that she was forced to work under “extreme and outrageous” conditions; (2) replacing plaintiff with Duncan was a “wrongful interference with her contract because it was motivated not by a legitimate educational purpose, but was rather due to a malicious and calculated design to drive her out of the Elkin school system”; (3) because defendants’ conduct was “so far outside the bounds of human decency and normal standards for the operations of a public school,” plaintiff would have been expected to resign; and (4) defendants violated North Carolina’s public policy by placing Duncan in plaintiff’s position because they knew of his immoral conduct. After defendants objected to the trial court’s consideration of Dr. Gadson’s affidavit on the grounds that the affidavit “purported to offer expert opinions regarding issues of law,” the trial court sustained the objection and ruled those portions offering opinion testimony inadmissible. Defendants then objected to the affidavit on the grounds that Dr. Gadson was not qualified to be an expert in the subject areas in which his affidavit purports to offer expert opinions. The trial court sustained the objection and ruled the affidavit inadmissible. Based on the evidence presented at the summary judgment hearing, the trial court, on 30 June 1992, granted defendants’ motion for summary judgment as to each of plaintiff’s claims and dismissed her action. The issues presented are whether the trial court erred in (I) denying plaintiff’s motion to compel discovery; (II) sustaining defendants’ objection to consideration of Dr. Gadson’s affidavit; and (III) granting defendants’ summary judgment motion on plaintiff’s claims for intentional infliction of emotional distress, malicious interference with contract, constructive wrongful discharge, and punitive damages. I Plaintiff argues that the trial court erred in denying her motion to compel discovery. Plaintiff wished to retake Duncan’s deposition for the “purpose of having him answer questions about those matters which he failed to do” in his deposition on 20 February 1992. Those matters concern the alleged involvement between Duncan and a female student at the high school where Duncan was employed before accepting employment at EHS. Plaintiff also wished, under her Second Request for Production of Documents, for defendants to supply plaintiff “the complete student record, including report cards, discipline records, etc.” of all students in the ISS program and EHS during 1989-90 and 1990-91 school years. Under the rules governing discovery, a party may obtain discovery concerning any unprivileged matter as long as relevant to the pending action and reasonably calculated to lead to the discovery of admissible evidence. N.C.G.S. § 1A-1, Rule 26(b) (1990). If defendant fails to respond or specifically object to a request within forty-five days, or such other time the court states otherwise, Rule 84,/ the serving party, upon reasonable notice, may move to compel discovery under N.C. Gen. Stat. § 1A-1, Rule 37(a) (1990). Whether or not the party’s motion to compel discovery should be granted or denied is within the trial court’s sound discretion and will not be reversed absent an abuse of discretion. In re Estate of Tucci, 104 N.C. App. 142, 152, 408 S.E.2d 859, 865-66 (1991), disc. rev. improvidently allowed, 331 N.C. 749, 417 S.E.2d 236 (1992). Plaintiff has failed to meet her burden of proving that her requests relate to information both relevant and necessary to her claims. Whether or not Duncan had a relationship with a high school student during his previous employment, the complete student records at EHS, and school personnel records are irrelevant to whether defendants intentionally inflicted emotional distress on plaintiff, constructively and wrongfully discharged her, or maliciously interfered with her contract. The trial court did not therefore abuse its discretion in denying her motion to compel discovery. II Plaintiff argues that the trial court erred in sustaining defendants’ objection to Dr. Gadson’s affidavit. We disagree. Whether a witness is competent to testify as an expert is within the sound discretion of the trial judge. State ex rel. Utilities Comm’n v. General Telephone Co., 281 N.C. 318, 373, 189 S.E.2d 705, 740 (1972). Furthermore, expert testimony which suggests whether legal conclusions should be drawn or whether legal standards are satisfied is inadmissible. See Hajmm Co. v. House of Raeford Farms, 328 N.C. 578, 587, 403 S.E.2d 483, 489 (1991). In this case, Dr. Gadson’s entire affidavit consists of legal conclusions; therefore, the trial court did not err in sustaining defendants’ objection to Dr. Gadson’s affidavit. III Intentional Infliction of Emotional Distress In an action for intentional infliction of emotional distress, the essential elements are “0 extreme and outrageous conduct by the defendant 2) which is intended to and does in fact cause 3) severe emotional distress.” Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992) (quoting Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981)). Whether or not conduct constitutes extreme and outrageous behavior is initially a question of law for the court. Briggs v. Rosenthal, 73 N.C. App. 672, 676, 327 S.E.2d 308, 311, cert. denied, 314 N.C. 114, 332 S.E.2d 479 (1985). To meet the essential element of extreme and outrageous conduct, the conduct must go beyond all possible bounds of decency, and “be regarded as atrocious, and utterly intolerable in a civilized community. The liability clearly does not extend to mere insults, indignities, threats.” Daniel v. Carolina Sunrock Corp., 110 N.C. App. 376, 383, 430 S.E.2d 306, 310, rev’d in part, 335 N.C. 233, 436 S.E.2d 835 (1993). Viewing the evidence in the light most favorable to plaintiff, Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992) (all inferences drawn in favor of non-movant in deciding motion for summary judgment), defendants’ conduct of telling her to throw away her health and physical education materials because she would never need them again, removing her from her health and physical education teaching position to the job of ISS coordinator, placing her away from other faculty members in a small room with great humidity and high temperatures, returning a student that pushed plaintiff to her classroom, staring for “minutes at a time” at plaintiff while she taught, assigning her after school and Saturday work hours, asking her to accompany students on a skiing trip for a good evaluation, telling her she had the worst job in school, denying her the opportunity to attend workshops in her area, and asking “[wjhich one of you is Phyllis Wagoner” in front of the entire faculty may very well have “insulted” plaintiff or caused her to suffer “indignities”; however, we do not regard this conduct “as atrocious, and utterly intolerable in a civilized community.” Even assuming that removing plaintiff from her teaching position and placing her in the job of ISS coordinator was not allowed under her contract with the Board or under N.C. Gen. Stat. § 115C, an issue we need not decide, her removal and placement in the ISS position does not constitute extreme and outrageous conduct. Therefore, because plaintiff cannot forecast evidence of extreme and outrageous conduct, the trial court did not err in granting defendants’ motion for summary judgment as to that cause of action. Roumillat, 331 N.C. at 63, 414 S.E.2d at 342 (once summary judgment movant meets burden, burden is on non-movant to show she can make out prima facie case at trial). Malicious Interference With Contract There are five essential elements for an action for malicious interference with contract: (1) a valid contract existed between plaintiff and a third person, (2) defendant knew of such contract, (3) defendant intentionally induced the third person not to perform his or her contract with plaintiff, (4) defendant had no justification for his or her actions, and (5) plaintiff suffered damage as a result. McLaughlin v. Barclays American Corp., 95 N.C. App. 301, 308, 382 S.E.2d 836, 841, cert. denied, 325 N.C. 546, 385 S.E.2d 498 (1989); Uzzell v. Integon Life Ins. Corp., 78 N.C. App. 458, 463, 337 S.E.2d 639, 643 (1985), cert. denied, 317 N.C. 341, 346 S.E.2d 149 (1986). We initially note that plaintiff cannot maintain an action against the Board or Lassiter for malicious interference of contract because the Board and Lassiter, as superintendent of the Board, are parties to the contract. See Smith v. Ford Motor Co., 289 N.C. 71, 87, 221 S.E.2d 282, 292 (1976); Elmore v. Atlantic Coast Line R.R. Co., 191 N.C. 182, 187, 131 S.E. 633, 636 (1926). Therefore, the trial court did not err in granting summary judgment for the Board or Lassiter on plaintiffs claim for malicious interference of contract. Because Morton and Parsons are not parties to the contract between plaintiff and the Board, they may be liable for malicious interference with the contract if they have in fact interfered with the contract and the interference has no relation whatever “to that legitimate business interest which is the source of the defendant’s non-outsider status.” Smith, 289 N.C. at 87, 221 S.E.2d at 292. Therefore, if the actions of Morton and Parsons have a basis related to their legitimate business interest in the contract between plaintiff and the Board, even though there may have also been some reasons for their actions unrelated to their legitimate business interest, plaintiff’s action for malicious interference with contract cannot be sustained. Plaintiff, in her complaint, admits that Morton and Parsons had an interest in her performance at EHS under her contract with the Board by alleging that Morton “was an agent, servant, employee and Principal of Defendant Board” and that Parsons “was and is an agent, servant, employee and Principal of Defendant Board.” In their roles as principals at EHS, Morton and Parsons had a legitimate business interest in plaintiffs performance under her contract with the Board because they were responsible for overseeing, observing, and evaluating the faculty at EHS, and for assigning duties to the teachers. Because plaintiff admits on the face of her complaint that Morton and Parsons, by virtue of their positions as principals of EHS

KENNETH W. LONG and ROBERT C. HOWE, Plaintiffs-Appellants v. VERTICAL TECHNOLOGIES, INC., a North Carolina corporation, and MELLON BANK, N.A., a National Banking Association, Defendants-Appellees No. 9220SC1110 (Filed 15 February 1994) 1. Libel and Slander §§ 43, 44 (NCI4th)— slander —plaintiffs’ misuse of company resources — statements protected by qualified privilege — statements not actionable per se The trial court did not err in allowing defendants’ motion for partial summary judgment on plaintiffs’ complaint for slander and defamation since the statements in question were made during a staff meeting regarding plaintiffs’ termination of employment; one plaintiff acknowledged that the statements were made in good faith and without malice; the statements thus were not actionable by reason of qualified privilege; and though the statements may have related to plaintiffs’ not doing business in the best interests of defendant or their misuse of company resources, the statements nevertheless were not actionable per se as it was not shown that they were false, touched plaintiffs in their trade or occupation, and contained an imputation necessarily hurtful in its effect on plaintiffs’ business. Am Jur 2d, Libel and Slander § 444. 2. Labor and Employment § 68 (NCI4th)— no wrongful termination of employment —sufficiency of evidence The trial court did not err in failing to find that plaintiffs were wrongfully terminated where the evidence tended to show that plaintiffs sold their computer software company, VTI, to defendants; plaintiffs entered into employment agreements with VTI; plaintiffs subsequently formed two new companies while working for VTI; they did not disclose to defendants all of their activities with regard to use of VTI property to further the affairs of their company, including use of VTI employees, facilities, computers, computer programs, telephone number and address; and plaintiffs still had a fiduciary duty of loyalty and fair dealing as long as they were employees of VTI. Am Jur 2d, Master and Servant §§ 60-70. 3. Labor and Employment § 39 (NCI4th) — breach of loyalty and fiduciary obligations by employees — damages —sufficiency of evidence The trial court did not err in finding that defendant was entitled to recover from plaintiffs approximately $70,000 representing the fair value of services plaintiffs caused defendant to provide to plaintiffs’ company which they operated on the side, since the evidence showed that plaintiffs caused defendant’s employees to spend 753 hours of work time on the development of plaintiffs’ side company’s products, and defendant presented evidence that the hourly rate for the work was $93. Am Jur 2d, Master and Servant §§ 2, 14. Appeal by plaintiffs from judgment entered 23 July 1992 by Judge Melzer A. Morgan, Jr. in Union County Superior Court. Heard in the Court of Appeals 5 October 1993. Koy E. Dawkins, P. A., for plaintiffs-appellants. Robinson, Bradshaw & Hinson, P. A., by A. Ward McKeithen, for defendants-appellees. JOHNSON, Judge. Plaintiff Kenneth W. Long (Long) formed a corporation, Vertical Technology, Inc. (VTI) in 1984. VTI operated under the name of Backroom Systems Group, developing and selling computer programs to be used with small computers or PC’s in the financial industry. Plaintiff Robert C. Howe (Howe) was Senior Vice President and Operations Manager for VTI. In September 1988, VTI was purchased by defendant Mellon Bank (Mellon) and both Long and Howe entered into employment agreements with VTI for a term of three years; the agreements were identical except as to salary and bonus compensation. In 1990, Mellon began putting VTI’s employees, including Long and Howe, on the Mellon payroll. This caused conflicts between Long, Howe and the Mellon officers. In the summer of 1990, Long and Howe were informed they were going to be terminated because of these conflicts, but compensated until the end of their respective employment agreements. Long and Howe then formed two new companies, Financial Systems Group, Inc. (FSG) and Protocorp, Inc., which they planned to operate after their termination. However, the Mellon officer who had decided to terminate Long and Howe left before the termination was put into effect, and Long and Howe were not terminated that summer. In August of 1990, the Mellon officer in charge of VTI, Allan Woods (Woods) met with Long and began discussing a buy-back or repurchase of VTI by Long and Howe. During the exchange of offers and negotiations, Long wrote Woods a letter in which he disclosed the formation of the two new companies; discussed alternatives for the survival of VTI, including the repurchase from Mellon Bank; and stated “I feel very awkward at this point proposing any sort of business case from a Mellon manager point of view. The only alternative I feel I am left with is to approach you as one business man to another looking for a deal that will be mutually beneficial.” One of the new companies formed by Long and Howe, FSG, was operated by Terry Nelson (Nelson), a former VTI sales representative. In October 1990, Nelson sent out solicitation letters introducing FSG, identifying himself as a former VTI employee, and identifying Long and Howe as president and senior vice president of VTI and as “other principals” of FSG. This letter went to a number of VTI and Mellon customers. In January 1991, a force of Mellon officers and employees including the newly elected President of VTI, James Luisi, took over the operation of VTI and terminated Long and Howe. Long and Howe were informed they were terminated “for cause” and would be compensated only for January 1991. Long and Howe both filed an action against VTI and Mellon alleging wrongful termination, slander and defamation. VTI and Mellon countered alleging breach of loyalty and fiduciary obligations and claiming damages for Long and Howe using VTI facilities and personnel in connection with FSG projects. A motion for summary judgment was filed by defendants on the issues of slander and defamation, and the trial court granted defendants partial summary judgment. Plaintiffs’ claim for wrongful termination and defendants’ counterclaims were tried before the trial court without a jury in Union County Superior Court. The trial judge held for defendants and entered judgment against plaintiffs. From the judgment entered, plaintiffs appeal. The first issue presented for review is whether the trial court erred in allowing defendants’ motion for partial summary judgment on plaintiffs’ complaint, count II slander and defamation. Summary judgment is a device whereby judgment is rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, if any, show that there is no genuine issue of material fact and that a party is entitled to judgment as a matter of law.” N.C.R. Civ. P. 56(c). “Thus a defending party is entitled to summary judgment if he can show that claimant cannot prove the existence of an essential element of his claim, ... or cannot surmount an affirmative defense which would bar the claim.” Dickens v. Puryear, 302 N.C. 437, 453, 276 S.E.2d 325, 335 (1981) (citation omitted). “In ruling on a motion for summary judgment the evidence is viewed in the light most favorable to the non-moving party.” Hinson v. Hinson, 80 N.C. App. 561, 563, 343 S.E.2d 266, 268 (1986) (citation omitted). The issue before us then is whether the evidence taken in a light most favorable to plaintiffs was sufficient to establish any genuine issue of material fact. We hold as a matter of law, it was not. Plaintiffs contend that James Luisi, the newly elected President of VTI, slandered or defamed plaintiffs by making demeaning and prejudicial statements to third parties. The statements in question, “insinuated that Long and Howe were not handling business correctly and . . . doing something ‘shady’.” Defendants however, argue that the statements are qualifiedly privileged. Slander is commonly defined as “the speaking of base or defamatory words which tend to prejudice another in his reputation, office, trade, business, or means of livelihood.” . .. Slander, . . . may be actionable per se or only per quod. That is, the false remarks in themselves (per se) may form the basis of an action for damage, in which case both malice and damage are, as a matter of law, presumed; or the false utterance may be such as to sustain an action only when causing some special damage (per quod), in which case both the malice and the special damage must be alleged and proved. (Citations omitted.) Beane v. Weiman Co., Inc., 5 N.C. App. 276, 277, 168 S.E.2d 236, 237 (1969). However, even if it is determined that a statement is slanderous, the law recognizes certain communications as privileged. Privilege does not destroy the actionable character of a defamatory communication, but is available only by way of defense. A qualified or conditionally privileged communication is one made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a right or duty, if made to a person having a corresponding interest or duty on a privileged occasion and in a manner and under circumstances fairly warranted by the occasion and duty, right or interest: Troxler v. Charter Mandala Center, Inc., 89 N.C. App. 268, 272, 365 S.E.2d 665, 668, disc. review denied, 322 N.C. 838, 371 S.E.2d 284 (1988) (citations omitted). The essential elements for the qualified privilege to exist are good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion and publication in a proper manner and the proper parties only. Stewart v. Check Corp., 279 N.C. 278, 182 S.E.2d 410 (1971). Additionally, a qualified privilege may be lost by proof of actual malice on the part of the defendant. Id. The depositions of Enroth, and Fortson, employees of VTI to whom the alleged statements were made, show that the statements in question were made during a VTI staff meeting regarding the termination of Long and Howe. Additionally, Long acknowledged that the statements were made in good faith and without malice. Thus, the alleged statements are not actionable by reason of qualified privilege and the lack of evidence to support that the statements were not made in good faith and with malice. Alternatively, plaintiffs allege the statements made by defendants’ agent were slanderous per se because they were uttered about plaintiffs’ business or professional relationship. There are several categories of slander which are actionable per se: (1) statements which charge plaintiff with a crime or an offense of moral turpitude; (2) statements which impeach his/her trade or profession; (3) statements which impute to him/her a loathsome disease. Williams v. Freight Lines, Inc. and Willard v. Freight Lines, Inc., 10 N.C. App. 384, 179 S.E.2d 319 (1971). The alleged statements in question, are slander per se only if they come under the second category listed above, i.e., statements which impeach one’s trade or profession. In order to come within this category of slander, the false statement must do more than merely injure a person in his business. The false statement “ ‘(1) must touch the plaintiff in his special trade or occupation, and (2) must contain an imputation necessarily hurtful in its effect on his business.’ ” Tallent v. Blake, 57 N.C. App. 249, 253, 291 S.E.2d 336, 339 (1982) (citations omitted). Moreover, in order to be actionable, the defamatory statement must be false. The truth of a statement is a complete defense. Parker v. Edwards, 222 N.C. 75, 21 S.E.2d 876 (1942). From the depositions presented, it appears that the alleged slanderous comments were related to Long and Howe not doing business in the best interest of VTI and their misuse of VTI resources. We do not find that these statements meet the test set out in Tallent. Nor do we find that the statements are false. We therefore find the trial court correctly granted defendants partial summary judgment as to the slander and defamation claims. Plaintiffs argue next that the trial court erred in failing to find (1) that the relationship of Long and Howe to the newly formed companies was sufficiently disclosed to Mellon and that a new relationship existed between Long, Howe and Mellon after the letter dated 24 August 1990 and (2) that plaintiffs were wrongfully terminated. This argument relates to the findings of fact and conclusions of law made by the trial judge. The standard for review as to findings of fact made by a trial judge is the same standard used to evaluate a jury trial; the findings of fact are conclusive if supported by competent evidence. Williams v. Insurance Co., 288 N.C. 338, 218 S.E.2d 368 (1975). Where trial is by judge and not by jury, the trial court’s findings of fact have the force and effect of a verdict by a jury and are conclusive on appeal if there is evidence to support them, even though the evidence might sustain findings to the contrary. Id. Long and Howe argue that Long wrote a letter to Mellon in which he disclosed their formation of two new companies; discussed the alternatives for the survival of VTI, including the repurchase from Mellon; and stated “I feel very awkward at this point proposing any sort of business case from a Mellon manager point of view. The only alternative I feel I am left with is to approach you as one business man to another looking for a deal that will be mutually beneficial.” With that letter Long and Howe argue a new relationship existed because they began an exchange of offers and negotiations for Long and Howe to buy back VTI from Mellon. Plaintiffs also argue that this letter sufficiently disclosed to Mellon the formation and activities of the two new companies. However, we note that: (1) the letter did not sufficiently disclose all of the activities of Long and Howe in regard to their use of VTI property to further FSG affairs and (2) Long and Howe still had a fiduciary duty of loyalty and fair dealing as long as they were employees of VTI. In essence, no new relationship was formed as argued by plaintiffs. Additionally, Long and Howe admitted in their depositions that they did not disclose many of their activities to Mellon. They also acknowledged that they: (1) caused VTI resources, including employees, facilities, computers and computer programs to be used to develop the computer software products of FSG and to advance the business of FSG; (2) caused and allowed persons employed by and working for FSG and not employees of VTI to have offices at VTI and to have use of VTI computers and programs to develop FSG products; (3) used the VTI address and telephone number on promotional materials and products of FSG and maintained and stored FSG records and files on VTI’s computer system; and (4) themselves actively worked for and promoted FSG’s product and development and business during normal business hours. Manifestly, when a servant becomes engaged in a business which necessarily renders him a competitor and rival of his master, no matter how much or how little time and attention he devotes to it, he has an interest against his duty. It would be monstrous to hold that the master is bound to retain the servant in his employment after he has thus voluntarily put himself in an attitude hostile to his master’s interests. (Citations omitted.) In re Burris, 263 N.C. 793, 795, 140 S.E.2d 408, 410 (1965). Additionally, where an employee deliberately acquires an interest adverse to his employer, he is disloyal, and his discharge is justified. Id. The law as well as the evidence is thus clear. The trial court properly concluded that the activities of Long and Howe constituted: (1) a material breach of their express contractual duties under the agreements to perform their services in good faith and in the best interests of VTI; (2) a material breach of their fiduciary duty of good faith, fair dealing and loyalty to VTI; and (3) actions for which they should have been discharged. Next, plaintiffs contend and argue that defendants acted in bad faith by failing to inform them of concerns regarding conflicts of interest or a breach of fiduciary duties, even though it was considered a serious threat to plaintiffs’ continued employment and sale of VTI to them. However, we find that there is sufficient evidence to support the trial court’s finding that defendant Mellon engaged in good faith discussions with plaintiffs regarding the possible purchase of VTI. Additionally, we find that there is sufficient evidence to support defendant Mellon’s decision to continue to employ plaintiffs until they were able to form an honest belief that plaintiffs were no longer loyal or performing in good faith. Plaintiffs finally argue that the trial court erred in finding that VTI was entitled to recover from Long and Howe the sum of $70,029.00 representing the fair value of services plaintiffs caused VTI to provide to FSG. We disagree. The evidence shows that Long and Howe caused VTI employees to spend 753 hours of VTI work time on the development of FSG products. VTI presented evidence that the hourly rate for the work was $93.00. The evidence supports the trial court’s finding that VTI is entitled to $70,029.00. Therefore, we find the conclusion of the trial court, that Long and Howe were jointly and severally liable to VTI for the fair value of the services they caused VTI to provide FSG, and that the fair value of such services is $70,029.00 is fully supported by the evidence. The decision of the trial court is affirmed. Judges COZORT and McCRODDEN concur.

MICHAEL P. CONKLIN v. CAROLINA NARROW FABRICS COMPANY No. 9223SC1279 (Filed 1 February 1994) Labor and Employment § 75 (NCI4th)— retaliatory discharge — workers’ compensation claim — 12(b)(6) motion denied A complaint alleging retaliatory discharge for filing a workers’ compensation claim was sufficient to withstand a motion to dismiss under N.C.G.S. § 1A-1, Rule 12(b)(6) where N.C.G.S. § 97-6.1 was operative at the time plaintiff filed his complaint; plaintiffs allegation that he had been discharged because he had instituted a workers’ compensation claim in ' good faith brought his claim within the purview of N.C.G.S. § 97-6.1; the defense in N.C.G.S. § 97-6.1(c) for a discharge due to failure to meet work standards unrelated to the workers’ compensation claim did not apply because plaintiff alleged that he was unable to continue his work because of his injury; the exception in N.C.G.S. § 97-6.1(e) for discharge on the basis of disability preventing employees from carrying out the duties for which they are employed applies only to permanent partial or total disability; and, while plaintiff alleged receipt of some disability payments, his complaint does not aver that he received compensation for either of those disabilities and therefore does not allege an unconditional affirmative defense. Am Jur 2d, Workers’ Compensation §§ 39 et seq. Recovery for discharge from employment in retaliation for filing workers’ compensation claim. 32 ALR4th 1221. Appeal by plaintiff from order entered 25 September 1992 by Judge Julius A. Rousseau, Jr. in Alleghany County Superior Court. Heard in the Court of Appeals 27 October 1993. Plaintiff Michael P. Conklin brought this suit on 25 March 1992, claiming that his former employer, defendant Carolina Narrow Fabrics Company, violated N.C. Gen. Stat. § 97-6.1 (1991) by discharging him without just cause and solely because he pursued workers’ compensation benefits. On 21 April 1992, defendant filed a motion to dismiss the complaint pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (1990). The trial court entered an order on 25 September 1992, dismissing the complaint. Plaintiff appeals from the order of dismissal. George E. Francisco for plaintiff-appellant. Petree Stockton, by Barbara E. Ruark, for defendant-appellee. McCRODDEN, Judge. In this appeal, we decide whether the trial court properly dismissed plaintiffs claim of retaliatory discharge when the complaint alleged a workers’ compensation injury, inability to work, and dismissal on the basis of that disability. More specifically, the complaint avers that, while employed by defendant on 24 April 1991, plaintiff injured his back as he helped lift two steel beams weighing 200 pounds. He thereafter received disability and medical benefits under the Workers’ Compensation Act. The complaint further alleges that on 20 August 1991, plaintiff’s treating physician allowed him to return to work, but he was unable to perform the duties of his job due to the pain from his back injury. Plaintiff then contacted his boss, informing him that “he could not do the job.” Defendant subsequently terminated plaintiff from his employment. In considering a motion to dismiss for failure to state a claim, the trial court must accept as true all allegations of fact. Amos v. Oakdale Knitting Co., 331 N.C. 348, 351, 416 S.E.2d 166, 168 (1992). Dismissal is generally inappropriate except in those instances where the face of the complaint discloses some insurmountable bar to recovery, such as an unconditional affirmative defense which defeats the claim asserted or facts which deny the right to any relief on the alleged claim. Sutton v. Duke, 277 N.C. 94, 102, 176 S.E.2d 161, 166 (1970). A trial court should not dismiss a complaint for insufficiency unless it appears to a certainty that the plaintiff is entitled to no relief under any state of facts which he could prove in support of the claim. Id. The ability of an employer to chill an employee’s exercise of his or her rights under the Workers’ Compensation Act through retaliatory discharge or demotion motivated our legislature to enact N.C.G.S. § 97-6.1. See Henderson v. Traditional Log Homes, 70 N.C. App. 303, 305, 319 S.E.2d 290, 292, disc. review denied, 312 N.C. 622, 323 S.E.2d 923 (1984). This statute, operative at the time plaintiff filed his complaint (subsequently repealed effective 1 October 1992), provides: “No employer may discharge or demote any employee because the employee has instituted or caused to be instituted, in good faith, any proceeding under the North Carolina Workers’ Compensation Act . . . .” It does not, however, prohibit all discharges of employees who are involved in workers’ compensation claims; it prohibits only a discharge made because the employee exercised his compensation rights. Morgan v. Musselwhite, 101 N.C. App. 390, 393, 399 S.E.2d 151, 153, disc. review denied, 329 N.C. 498, 407 S.E.2d 536 (1991). Plaintiff’s complaint stated that “the defendant-corporation discharged the plaintiff because the plaintiff instituted, in good faith, a proceeding under the North Carolina Workers’ Compensation Act and requested benefits pursuant to that Act.” This allegation is sufficient to bring his claim within the purview of N.C.G.S. § 97-6.1. Defendant, nonetheless, contends that dismissal of plaintiff’s complaint was proper due to the existence of statutory defenses set out in N.C.G.S. § 97-6.1 (c) and (e). Section 97-6.1 (c) states that an “employer shall have as an affirmative defense to this section . . . [the employee’s] failure to meet employer work standards not related to the Workers’ Compensation Claim.” Defendant may not avail itself of this provision, however, because, if the employee’s failure to meet the defendant’s work standards was due to the injury which was the subject of the workers’ compensation claim, his failure to meet these standards was related to his workers’ compensation claim. Burrow v. Westinghouse Electric Corp., 88 N.C. App. 347, 352, 363 S.E.2d 215, 218, disc. review denied, 322 N.C. 111, 367 S.E.2d 910 (1988). Since plaintiff’s complaint alleges that he was “unable to continue working at his job because of the pain resulting from his back injury,” he alleges facts sufficient to defeat application of the subsection (c) defense. N.C.G.S. § 97-6.1 (e), also argued by defendant, creates another narrow exception to the prohibition stated in subsection (a), reading: The failure of an employer to employ, either in employment or at the employee’s previous level of employment, an employee who receives compensation for permanent total disability, or a permanent partial disability interfering with his ability to adequately perform work available, shall in no manner be deemed a violation of this section. Hence, pursuant to section 97-6.1 (e), an employer may discharge an employee on the basis of the employee’s disability which prevents him from carrying out the duties for which he is employed. Johnson v. Builder’s Transport, Inc., 79 N.C. App. 721, 723, 340 S.E.2d 515, 517 (1986). This subsection, however, applies only to employees who have received compensation for “permanent total disability” or “permanent partial disability,” terms that have distinct meanings under the North Carolina Workers’ Compensation Act, N.C. Gen. Stat. §§ 97-29, -31 (1991), but which are not the only types of disability for which a claimant may receive compensation. While plaintiff’s complaint does allege that plaintiff received some disability payments, it does not aver that he received compensation for either type of disability required by subsection (e), and, it does not, therefore, allege an unconditional affirmative defense that would justify a Rule 12(b)(6) dismissal. In view of the foregoing, we are compelled to rule that plaintiff’s complaint alleging retaliatory discharge was sufficient to withstand a Rule 12(b)(6) motion to dismiss. This ruling does not foreclose summary judgment for defendant upon a showing that it has paid compensation for permanent total disability or permanent partial disability. Reversed. Judges LEWIS and WYNN concur.

JONATHAN DUNBAR WESTON v. CAROLINA MEDICORP, INC., and FORSYTH MEMORIAL HOSPITAL, INC., d/b/a FORSYTH MEMORIAL HOSPITAL No. 9321SC229 (Filed 18 January 1994) 1. Constitutional Law § 88 (NCI4th); Appeal and Error § 555 (NCI4th)— race discrimination alleged —relitigation precluded based on doctrine of the law of the case Even if the Civil Rights Act of 1991 did apply to plaintiff, he was prevented from relitigating the issue of race discrimination in his dismissal from the staff of defendant hospital based on the doctrine of the law of the case. Am Jur 2d, Appeal and Error §§ 744 et seq.; Civil Rights §§ 3, 4. Erroneous decision as law of the case on subsequent appellate review. 87 ALR2d 271. 2. Hospitals and Medical Facilities or Institutions § 39 (NCI4th) — rejection of “captain of the ship doctrine” —no applicability to defendant’s case —no relief from judgment There was no merit to plaintiff’s contention that the Court’s rejection of the “captain of the ship doctrine” in Harris v. Miller, 103 N.C.App. 312, entitled him to relief from judgment in his action alleging that defendants violated his right to due process and racially discriminated against him in revoking his staff privileges at defendant hospital, since defendant repeatedly engaged in conduct which led to a recommendation that, because plaintiff’s medical judgment was impaired, his staff privileges should be revoked so as to protect his patients from risk of harm. Am Jur 2d, Hospitals and Asylums §§ 8 et seq. Exclusion of or discrimination against physician or surgeon by hospital. 37 ALR3d 645. Appeal by plaintiff from order signed 28 August 1992 in For-syth County Superior Court by Judge W. Douglas Albright denying plaintiff’s motion to set aside the judgment. Heard in the Court of Appeals 8 December 1993. In April 1988, plaintiff was suspended from the medical staff of Forsyth Memorial Hospital for violating the hospital policy which requires a physician admitting a patient with HIV infection to identify the patient to other health care providers as being potentially infectious. In 1989, plaintiff was summarily suspended from the medical staff because of various incidents which raised questions concerning whether plaintiff should continue to be allowed staff privileges. Plaintiff appealed the summary suspension to the Executive Committee and to the hospital’s Board of Trustees. Both bodies affirmed the suspension pending a full investigation. After an investigation, the Executive Committee recommended that plaintiff’s staff privileges be revoked because the Executive Committee found that plaintiff’s medical judgment was impaired and that revocation of his staff privileges was necessary to protect patients from the risk of harm. The hospital’s Board of Trustees subsequently revoked plaintiff’s staff privileges. On 21 October 1988, plaintiff filed this action alleging that defendants violated his right to due process under the North Carolina Constitution and the Constitution of the United States by suspending and revoking his staff privileges and racially discriminated against him in violation of 42 U.S.C. § 1981, 42 U.S.C. § 1983, and the First and Fourteenth Amendments to the United States Constitution. The trial court entered judgment in favor of defendants, and, on appeal to this Court, we affirmed. Weston v. Carolina Medicorp, Inc., 102 N.C. App. 370, 402 S.E.2d 653 (1991). Our Supreme Court dismissed plaintiff’s appeal and denied his petition for discretionary review. Weston v. Carolina Medicorp, Inc., 330 N.C. 123, 409 S.E.2d 611 (1991). On 25 February 1992, plaintiff filed a motion to set aside the judgment and for a new trial pursuant to Rule 60(b)(6) of the North Carolina Rules of Civil Procedure. On 28 August 1992, the trial court entered an order denying plaintiff’s motion. Plaintiff appeals from that order to this Court. Kennedy, Kennedy, Kennedy & Kennedy, by Harvey L. Kennedy and Harold L. Kennedy, III, for plaintiff-appellant. Womble Carlyle Sandridge & Rice, by Anthony H. Brett, Dale E. Nimmo, and Joel M. Leander, for defendants-appellees. WELLS, Judge. Plaintiff argues in his first assignment of error that the trial court erred in denying his motion to set aside the judgment and award him a new trial pursuant to Rule 60(b)(6) of the North Carolina Rules of Civil Procedure. Plaintiff contends that the Civil Rights Act of 1991 (the Act) applies retroactively to his claim so as to entitle him to relief from judgment. We disagree. The Act was signed into law on 21 November 1991. Pub. L. No. 102-166, 105 Stat. 1071 (1991). In section 3 of the Act, Congress stated that one of the purposes of the Act was “to respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination.” Section 101 of the Act prohibits all racial discrimination in the making and enforcement of contracts, and, in response to Patterson v. McLean Credit Union, 491 U.S. 164, 105 L. Ed. 2d 132 (1989), section 101 of the Act provides that “make and enforce contracts” includes “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b) (1991). Even if the Act did apply retroactively to plaintiffs claim, plaintiff is prevented from relitigating the issue of race discrimination based on the doctrine of the law of the case. According to the doctrine of the law of the case, once an appellate court has ruled on a question, that decision becomes the law of the case and governs the question both in subsequent proceedings in a trial court and on subsequent appeal. Transportation, Inc. v. Strick Corp., 286 N.C. 235, 210 S.E.2d 181 (1974). See also NCNB v. Virginia Carolina Builders, 307 N.C. 563, 299 S.E.2d 629 (1983). When the trial court entered judgment against plaintiff, the trial court made the following finding of fact: “The actions taken by the Hospital in summarily suspending and revoking plaintiff’s staff privileges were not taken on account of his race. Dr. Weston’s race played no role in the proceedings.” On his first appeal to this Court, we held that “plaintiff’s assignments of error with regard to the findings of fact [were] . . . ineffective to challenge the sufficiency of the evidence to support the findings under the ‘any competent evidence standard’ of appellate review” and that “the trial court’s findings of fact [were] conclusive on this appeal.” Weston, supra. The prior decision of this Court is the law of the case and as such is binding upon this panel. Plaintiff therefore is foreclosed from relitigating the question of race discrimination in this or any other subsequent proceeding. Furthermore, under general rules of estoppel by judgment, plaintiff is similarly precluded from relitigating an issue adversely determined against him. Poindexter v. First Nat’l Bank, 247 N.C. 606, 101 S.E.2d 682 (1958). Plaintiff next argues that the trial court erred in denying his motion to set aside the judgment because there occurred a change in the law as announced by this Court in the case of Harris v. Miller, 103 N.C. App. 312, 407 S.E.2d 556, rev. granted, 329 N.C. 788, 408 S.E.2d 520 (1991). We disagree. In Harris, we rejected the “captain of the ship doctrine” which plaintiff contends was relied upon by the trial court in ruling against him. Plaintiff argues that our rejection of the “captain of the ship doctrine” in Harris entitles him to relief from judgment. In support of this argument, plaintiff makes the following statement in his brief: “In the present case, Dr. Weston had his staff privileges revoked mainly because of the actions of the anesthesiologist in overloading [a] myomectomy patient with fluid.” (Emphasis added). This statement is a gross distortion of the findings made by the trial court in the original judgment. Those findings reflect a history of repeated conduct on the part of Dr. Weston which, as we have noted earlier, required the Executive Committee to recommend that, because his medical judgment was impaired, his staff privileges be revoked so as to protect his patients from a risk of harm. Under these circumstances, the Harris rule has no application which would require the trial court to grant plaintiff’s motion. Our determination is that the trial court’s denial was not a discretionary ruling but one which was required by the doctrine of the law of the case and issue preclusion. The order of the trial court is Affirmed. Chief Judge ARNOLD and Judge EAGLES concur.

BARNELL v TAUBMAN COMPANY, INC Docket No. 135296. Submitted April 15, 1993, at Lansing. Decided December 20, 1993, at 10:00 A.M. Leave to appeal sought. Charles L. Barnell brought an action in the Oakland Circuit Court against the Taubman Company, Inc., alleging wrongful discharge, age discrimination, and promissory estoppel. Kay Barnell, Charles’ wife, brought a derivative claim of loss of consortium. The plaintiffs alleged that Charles Barnell was recruited by the defendant for a new position of vice president of financial services. They further alleged that during his interviews with the chief financial officer, the chief executive officer, and the chief of operations he was assured that his performance would be reviewed and he would be discharged only for failing to perform adequately. The defendant claimed that Charles Barnell’s employment was at will and that even if he was not aware of that policy at the time of his employment, he was made aware of it a few months later when a memorandum indicating that all employment was at will was circulated to all employees. The defendant further claimed that Charles Barnell had been discharged for cause. The court, Jessica R. Cooper, J., granted summary disposition for the defendant on the basis that there was no issue of material fact. The plaintiffs appealed. The Court of Appeals held: 1. The plaintiffs alleged that the defendant had made a specific promise that plaintiff Charles Barnell would be discharged only for good cause. Their pleadings were sufficient, if believed by a trier of fact, to establish a contractual basis to overcome the presumption that his employment was at will. 2. Because the plaintiffs alleged an express contractual agreement that the employment would be terminated only for good cause, the defendant could not change unilaterally the nature of the employment relationship. Inasmuch as plaintiff Charles did not sign the acknowledgment that accompanied the memorandum that the defendant circulated to its employees relative to the nature of their employment relationship, and there were no other acts of the parties evidencing his assent to a modification of his employment relationship, the memorandum could not modify the alleged express agreement upon which the plaintiffs’ claim of wrongful discharge was based. Accordingly, the trial court erred in granting summary disposition for the defendant with respect to the claim of wrongful discharge on the basis that the plaintiffs failed to allege facts sufficient to raise issues of material fact requiring resolution by a trier of fact. References Am Jur 2d, Master and Servant §§ 20, 32, 43, 46. See ALR Index under Discharge from Employment or Office; Labor and Employment. 3. Although the plaintiffs’ allegations with respect to the claim of age discrimination were sufficient to establish that Charles Barnell was replaced by a younger employee, their allegations failed to rebut the defendant’s allegation that his dismissal was because of a difference in management philosophies. Replacement by a younger person without some evidence that age was a determining factor in the dismissal is insufficient to establish a claim of age discrimination. Because the plaintiffs failed to plead that critical factor, the trial court properly granted summary disposition for the defendant with respect to the claim of age discrimination. 4. Plaintiff Charles Barnell’s leaving his prior position and moving from Grand Rapids to the Detroit area in order to take the job with the defendant was insufficient to establish the element of reliance needed to establish a claim of promissory estoppel. Although the trial court incorrectly stated that summary disposition for the defendant with respect to the claim of promissory estoppel should be granted on the basis that the claim was nothing more than a restatement of the claim of wrongful discharge, the granting of summary disposition was the correct result, albeit for the wrong reason. 5. The issue argued by the defendant relative to mitigation of damages is not properly before the Court of Appeals, no cross appeal having been filed. Affirmed in part, reversed in part, and remanded. Contracts — Employment — Discharge for Good Cause — Express Agreements — Unilateral Modification. An employer that by express agreement promises that an employee will be discharged only for good cause may not convert unilaterally that relationship to employment at will; such a change of the employment relationship requires the assent of the employee. Mary Anne M. Helveston, for the plaintiffs. Miro Miro & Weiner (by Thomas W. Cranmer and Bruce L. Segal), for the defendant. Before: White, P.J., and Cavanagh and Jansen, JJ. Jansen, J. This is a wrongful discharge and age discrimination case. Plaintiffs appeal as of right from an order of the Oakland Circuit Court of November 7, 1990, granting defendant summary disposition pursuant to MCR 2.116(0(10). We affirm in part, reverse in part, and remand for further proceedings. i Charles Barnell (hereinafter plaintiff) was employed by Rapistan, a division of Lear Siegler, Inc., from 1971 until 1985. In January 1984, he became vice president of finance at Rapistan. In the spring of 1985, an employment search agency contacted plaintiff and advised him that defendant Taubman Company was seeking to fill a new position of vice president of financial services. The position was designed to assist Gerald Poissant, defendant’s chief financial officer. Although plaintiff was not looking to change positions, he agreed to meet with Poissant. Plaintiff met with Poissant, and one of plaintiff’s initial inquiries concerned job security. Plaintiff stated that he was concerned about the stability of the Taubman organization and the security of the position of vice president of financial services, because it was a newly created position. Poissant told plaintiff that he need not be concerned with summary dismissal at the Taubman Company, that he would have the same type of job security that he had at Rapistan, that he would not be discharged without cause (although he was not certain of the exact words used. to convey this message), that the Taubman Company had a process of regular reviews, and that defendant had a performance evaluation system. Plaintiff next met with Robert Larson, defendant’s chief executive officer. Plaintiff related some of the same concerns to Larson. Larson assured plaintiff that there was a system for employee evaluation and that such a system would apply to him. Plaintiff last met with Robert Taubman, defendant’s chief of operations. Taubman assured plaintiff that employees were reviewed and only if they were not performing would they be discharged. Plaintiff accepted the position with the Taubman Company in August 1985. Defendant claims that the employment application sets forth the company’s policy that all employment is at will. However, plaintiff asserts that he never received or saw the document, and the document is not signed by plaintiff. Approximately eight months after plaintiff began working with defendant, in March 1986, defendant distributed to all employees, including plaintiff, a memorandum stating that all employment was strictly at will. Plaintiff did not sign the acknowledgment form that accompanied the memorandum, but he does not deny receiving the memorandum. During his tenure with defendant, plaintiff never received a formal evaluation. When he questioned Poissant about this, he was told not to worry and that he would be reviewed the next time. Plaintiff also received a letter from Larson in December 1985 telling him that he had been selected as a key manager to participate in an incentive compensation program, and he received a similar letter and bonus the following year. On February 10, 1987, plaintiffs employment was terminated without prior notice. When plaintiff inquired why, he was told that "things weren’t working out.” There is some indication that an employee whom plaintiff had supervised, Steve Eder, was very unhappy with plaintiff’s presence and was very critical of plaintiff. Apparently, Eder had applied for the same position as plaintiff, but obviously was not chosen for the job. Eder complained to Poissant regarding plaintiffs management style. Defendant claims that plaintiff was terminated primarily because of a difference in management philosophies. Several months after plaintiffs termination, defendant hired Cathleen Knight, a thirty-year-old, to assist Poissant in some of his duties. Plaintiff concedes that his actual position was not filled but that his responsibilities were reorganized. Plaintiff filed his cause of action alleging wrongful discharge, age discrimination, and promissory estoppel. Plaintiffs wife, Kay Barnell, filed a claim of loss of consortium, a derivative action. Defendant moved for summary disposition of all claims, arguing that plaintiff had failed to create a material factual dispute. The trial court agreed and granted summary disposition to defendant pursuant to MCR 2.116(0(10). ii A Plaintiff’s first issue on appeal relates to his wrongful discharge claim. Plaintiff argues that the trial court erred in granting summary disposition because there is a material factual dispute regarding the existence of a just-cause contract. A motion for summary disposition pursuant to MCR 2.116(C) (10) may be granted when, except with regard to the amount of damages, there is no genuine issue concerning any material fact and the moving party is entitled to judgment as a matter of law. Such a motion tests the factual basis of the claim. A court reviewing the motion must consider the pleadings, affidavits, depositions, admissions, and any other documentary evidence. Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993). The party opposing the motion has the burden of showing that a genuine issue of material fact exists. Giving the benefit of reasonable doubt to the nonmovant, the trial court determines whether a record might be developed that would leave open an issue upon which reasonable minds might differ. The court may not make factual findings or weigh credibility in deciding a motion for summary disposition. Featherly v Teledyne Industries, Inc, 194 Mich App 352, 357; 486 NW2d 361 (1992). This Court examines the facts of this case in a light most favorable to plaintiff. Radtke, supra. Accordingly, our review of a motion for summary disposition is de novo. B We must first determine whether the oral assurances given to plaintiff are sufficient to create an employment contract terminable only for just cause. Employment contracts for an indefinite duration are presumptively terminable at the will of either party. Lynas v Maxwell Farms, 279 Mich 684, 687; 273 NW 315 (1937). To overcome the presumption of employment at will, a party must present sufficient proof either of a contractual provision for employment for a definite term or of a provision forbidding discharge in the absence of just cause. Rowe v Montgomery Ward & Co, Inc, 437 Mich 627, 636; 473 NW2d 268 (1991). There are two alternative theories that may support a claim of wrongful discharge. The first theory is grounded in contract principles. The contract theory is shown by the existence of an express agreement, oral or written. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 598; 292 NW2d 880 (1980). The second theory is termed the legitimate expectations theory and is based on the employee’s legitimate expectations of continued employment absent just cause for termination arising out of the employer’s policies and procedures. Id. In the instant case, we are only concerned with whether plaintiff has proven the existence of an express agreement based mainly on the oral assurances given him during the preemployment stages. In Rowe, supra at 645, our Supreme Court made clear that "oral statements of job security must be clear and unequivocal to overcome the presumption of employment at will.” When analyzing oral statements for contractual implications, the meaning that reasonable persons might have given the language under the circumstances must be determined. Rowe, supra at 640. We believe, on the basis of the factors set forth in Rowe, that plaintiff has alleged sufficient objective evidence to permit a reasonable juror to find that a reasonable promisee would interpret the statements made by Poissant, Larson, and Taubman as a promise of termination only for just cause. Rood v General Dynamics Corp, 444 Mich 107, 119; 507 NW2d 591 (1993). Taken in a light most favorable to plaintiff, the evidence establishes that plaintiff engaged in preemployment negotiations regarding job security. Plaintiff was the vice president of finance at Rapistan before being contacted by an employment search agency. Although he was not looking for a new job, he agreed to meet with Poissant. At the meeting with Poissant, he specifically inquired about job security because the position was new, and he inquired about the stability of the Taubman Company. He made known to Poissant that he did not want to be in an environment of "summary dismissals,” as was the case with some employees at Rapistan, although his employment had not been terminated by Rapistan. Poissant assured plaintiff that the environment was not one where he needed to be concerned with summary dismissal. Poissant assured him that defendant offered the same kind of job security that he had at Rapistan, that he would not be dismissed without cause, and that defendant had a performance evaluation system or regular reviews. Poissant informed plaintiff that the performance evaluation system normally occurred once a year and that employees were rewarded or dismissed on the basis of their performance utilizing that system. Plaintiff expressed his same concerns to Larson, and Larson also assured plaintiff that there was a system of employee evaluation used for everyone in the company. Robert Taubman further assured plaintiff that employees were reviewed and only if they were not performing would they be discharged. Therefore, plaintiff specifically engaged in preemployment negotiations regarding job security and the parties discussed job security in the sense of requiring just cause for plaintiff’s termination. Rowe, supra at 643; Rood, supra at 120. Further, plaintiff was applying for the singular executive position of vice president of financial services. Such a position is similar to that in Toussaint and unlike the "one of many departmental salespersons” as in Rowe. Because plaintiff was leaving a well-paid, executive position at Rapistan, it is reasonable to conclude that job security would be important to him. Also, in the instant case, plaintiff was given few, if any, documents at the preemployment stage. Indeed, the only document referred to by both parties is the employment application form. However, the acknowledgment of his employment being at will is unsigned and plaintiff claims that he never received or saw the document. We find that the oral assurances assertedly made by Poissant, Larson, and Taubman in the preemployment negotiation stage were sufficient to create an express agreement for just-cause employment. Coupled with the fact of the uniqueness of the position and the lack of any handbooks, documents, or other material given to plaintiff suggesting employment at will, we find that plaintiff has alleged sufficient evidence from which reasonable minds could find that a reasonable promisee would interpret the statements as a promise forbidding termination absent just cause. c Having concluded that the oral statements formed an express agreement for just-cause employment, we must next determine if the employer could change unilaterally the nature of the employment relationship with the memorandum sent in March of 1986 providing for employment at will. Plaintiff does not deny receiving the memorandum, but, he did not sign an acknowledgment form. In In re Certified Question, 432 Mich 438, 441; 443 NW2d 112 (1989), our Supreme Court held that a company’s written policy statements, which created legitimate expectations in the employee that he would be discharged for just cause only, could be unilaterally modified provided that the employer gives the affected employees reasonable notice of the policy change. However, the instant case is not premised on the legitimate expectations theory of creation of an employment contract providing for discharge for cause only. Rather, this case involves an express agreement that discharge will be only for cause. In Rowe, supra at 650-651, the Supreme Court found the fact that the plaintiff did not sign the disclaimers that employment was at will to be not determinative, because the plaintiff did not have an express contract providing that discharge would be only for cause. The Court made clear that if a plaintiff has a prior express contract providing that discharge will be only for cause, then the plaintiff’s assent is required to modify the agreement. Rowe, supra at 651. Therefore, the fact that plaintiff did not sign the acknowledgment form in this case is determinative. By not signing the acknowledgment form, plaintiff evidenced an intent not to assent to the modification of the express agreement that discharge would be only for cause. Further, there are no other acts of the parties, including written and spoken words, that indicate that plaintiff assented to modify the express agreement. Farrell v Automobile Club of Michigan (On Remand), 187 Mich App 220, 228; 466 NW2d 298 (1991); Scholz v Montgomery Ward & Co, Inc, 437 Mich 83, 90-93; 468 NW2d 845 (1991). Accordingly, we hold that the trial court erred in granting defendant summary disposition with regard to the wrongful discharge claim. Plaintiff has alleged sufficient facts to give rise to a question for a trier of fact whether there was an express agreement that his employment would be terminated only for just cause. Further, because plaintiff did not assent to the modification of the express contract, the memorandum providing that all employment was at will did not change the nature of the employment contract. iii Plaintiff next argues that the trial court erred in granting summary disposition with regard to his age discrimination claim. Plaintiff’s claim of age discrimination is premised on the provisions of the Civil Rights Act, which prohibits discrimination on the basis of age. MCL 37.2202(1)(a); MSA 3.548(202)(1)(a). The burden of proof in an age discrimination case is allocated as follows: (1) the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination; (2) if the plaintiff is successful in proving a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions; and (3) the plaintiff then has the burden of proving by a preponderance of the evidence that the legitimate reason offered by the defendant was merely a pretext. Featherly, supra at 358. A prima facie case of age discrimination can be made by proving either intentional discrimination or disparate treatment. Wolff v Automobile Club of Michigan, 194 Mich App 6, 11; 486 NW2d 75 (1992). To establish a prima facie case of age discrimination under the intentional discrimination theory, plaintiff must show that (1) he was a member of a protected class, (2) he was discharged, (3) he was qualified for the position, and (4) he was replaced by a younger person. Matras v Amoco Oil Co, 424 Mich 675, 683; 385 NW2d 586 (1986). In proving disparate treatment, plaintiff must show that he was a member of a protected class and that he was treated differently than persons of a different class for the same or similar conduct. Wolff, supra at 11. Age need not be the only reason or main reason for discharge, but it must be one of the reasons that made a difference in determining whether to discharge a person. Therefore, the question is whether age

Michael Carr vs. Transgas, Inc. No. 92-P-976. Middlesex. September 8, 1993. December 6, 1993. Present: Brown. Fine. & Laurence. JJ. Contract, Collective bargaining contract, Arbitration. Arbitration, Collective bargaining, Authority of arbitrator. Employment, Discrimination. Handicapped Persons. A former employee was not precluded by reason of a labor arbitration decision from bringing an action under G. L. c. 151B, § 4(16), against his former employer alleging handicap discrimination, where the arbitrator lacked authority under the applicable collective bargaining agreement to determine whether the employee was handicapped within the meaning of G. L. c. 252, § 75B. [583-585] Civil action commenced in the Superior Court Department on April 10, 1991. The case was heard by George A. O’Toole, Jr., J., on a motion for summary judgment. John D. Burke for the plaintiff. Gordon P. Katz (Charles A. Cook with him) for the defendant. Brown, J. This is an appeal from a decision by a judge of the Superior Court granting summary judgment to the defendant, Transgas, Inc. (Transgas). On appeal, the plaintiff, Michael Carr, claims that the judge erred in concluding that the decision of an arbitrator precluded his handicap discrimination claim brought pursuant to G. L. c. 15IB, § 4(16). As we are in agreement with the plaintiff, we reverse. Transgas, a Massachusetts liquid gas hauler, employed Carr as a truck driver from August 3, 1981, to April 6, 1990. Carr alleged that on January 25, 1990, he (for the third time) injured his shoulder while operating a truck without power steering. He notified Transgas of the injury. On April 4, 1990, Carr was again assigned a truck without power steering, although, he alleges, trucks with power steering were available. He attempted to operate the vehicle but later returned it to the terminal, claiming that he was unable to operate a truck that lacked power steering because of his shoulder injury. Two days later, Carr was discharged for refusing to drive the truck assigned to him on April 4. Through his union, Carr filed a grievance against Trans-gas, claiming unjust discharge because he was handicapped under G. L. c. 152, § 75B. In accordance with the collective bargaining agreement between the union and the company, the dispute went to arbitration. The arbitrator concluded that “there was just cause to discharge him in April 1990.” The arbitrator also found that the evidence did not support Carr’s claim that he suffered a work-related injury which would qualify as a handicap under the law. She ruled, in addition, that, even if such a handicap were established, it was not clear that the law regarding handicap discrimination could be applied here. Unsatisfied with the arbitrator’s decision, Carr filed an action in Superior Court alleging handicap discrimination pursuant to G. L. c. 15IB, § 4(16). Transgas moved to dismiss the complaint as precluded by the earlier arbitration. In allowing the motion the judge ruled that “the questions of whether Carr had sustained a work-related injury and whether Transgas fired him because of that injury (or ‘handicap’) were distinctly in issue and were directly determined by the arbitrator.” This was error. See and compare Bailey v. Metropolitan Property & Liab. Ins. Co., 24 Mass. App. Ct. 34, 36-38 (1987). Although in other circumstances an arbitration decision may be preclusive, an employee’s prior submission of a claim of racial discrimination to final arbitration under the nondiscrimination clause of a collective bargaining agreement does not foreclose the employee’s statutory right under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (1988), to a trial de novo in Federal court. Alexander v. Gardner-Denver Co. (Alexander), 415 U.S. 36, 59-60 (1974). “[I]n general, submission of a [racial discrimination] claim to one forum does not preclude a later submission to another.” Id. at 47-48. In Alexander the Court emphasized that an employee’s contractual rights under a collective bargaiijing agreement are distinct from the employee’s independent statutory rights under Title VII. “The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence.” Id. at 49-50. See the discussion in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 35 (1991), of the distinctions between the line of cases holding that compulsory arbitration of statutory claims under an agreement to arbitrate all claims may be appropriate and preclusive and the Alexander line of cases, which hold that prior submission of a contract-based claim to arbitration does not bar subsequent de novo review of a statutory claim by a court. The Alexander Court also determined that, because such rights are personal, or individual, in nature, “an employee’s rights under Title VII are not susceptible of prospective waiver.” Id. at 51-52. Applying Alexander to an employment discrimination case brought pursuant to G. L. c. 151B, the Supreme Judicial Court in School Comm. of Brockton v. Massachusetts Commn. Against Discrimination, 377 Mass. 392, 399 (1979), stated: “General Laws c. 151B, § 4, concerns not collective processes, but rather each individual’s right to equal employment opportunities. . . . Rights of this kind, which are of a personal, and not merely economic, nature are beyond a labor union’s ability to bargain away.” See also Rooney v. Yarmouth, 410 Mass. 485, 490-491 (1991), and cases cited. In the present case, the labor arbitrator lacked the authority to decide Carr’s statutory handicap discrimination claim. The issue before the arbitrator was whether, under the terms of the collective bargaining agreement, Transgas had “just cause” to terminate Carr. Nowhere in the agreement was there a provision proscribing handicap discrimination, and there was no other agreement to arbitrate the statutory claim of handicap discrimination. See Rooney v. Yarmouth, 410 Mass. at 491 (“employees need not submit to arbitration disputes based on independent statutory rights that are not addressed and encompassed by the collective bargaining agreement”). Compare Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) (a party can be compelled to arbitrate statutory age discrimination claims covered by an arbitration agreement). Since the arbitrator was confined to interpreting the collective bargaining agreement and the agreement in no way incorporated the statutory claim of handicap discrimination, the arbitrator could not properly have determined that Carr was not handicapped under the provisions of G. L. c. 152, § 75B. See Gilmer, supra at 34-35. In fact, the arbitrator acknowledged her lack of authority to determine whether Carr suffered from a qualifying handicap under G. L. c. 152, § 75B. Noting that the collective bargaining agreement specifically included discrimination based on “race, color, creed, sex, national origin or union membership,” but did not mention “handicap,” the arbitrator wrote in her opinion, “[B]y its specific omission, it appears that the parties intended to exclude the application of external law as it relates to handicap discrimination from the terms of the collective bargaining agreement. Since the arbitrator is limited by the stipulated issue to interpreting the contract, and the contract appears specifically to exclude the law as it relates to handicap discrimination, the Union’s argument concerning G. L. c. 152, § 75B, would fail, even if the Grievant had established a work-related injury.” (Emphasis supplied.) Because there was no agreement to arbitrate handicap discrimination claims in the collective bargaining agreement between Carr’s union and Transgas, the arbitrator lacked the authority to decide whether Transgas discriminated against Carr on the basis of a handicap. Therefore, the arbitrator’s finding that Carr “was not unable to perform his duties by reason of a handicap or impairment” when he refused to drive equipment assigned to him does not preclude Carr’s handicap discrimination action brought in Superior Court pursuant to G. L. c. 151B, § 4(16). We accordingly reverse the judgment dismissing the plaintiff’s complaint. See School Comm. of Brockton v. Massachusetts Commn. Against Discrimination, 377 Mass. at 399, and cases cited therein. Judgment reversed. Carr claimed that he had sustained two prior shoulder injuries in a similar manner. “Any employee who has sustained a work-related injury and is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of such job with reasonable accommodations, shall be deemed to be a qualified handicapped person under the provisions of [c. 151B].” G. L. c. 152, § 75B(1), as inserted by St. 1985, c. 572, § 58. Also, compare Cancellier v. Federated Dept. Stores, 672 F.2d 1312, 1318 (9th Cir.), cert. denied, 459 U.S. 859 (1982) (Federal Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 [1988] does not preempt State claim for breach of implied covenant of good faith and fair dealing), with Dependahl v. Falstaff Brewing Corp., 653 F.2d 1208, 1214-1216 (8th Cir.), cert. denied, 454 U.S. 968 (1981) (Employee Retirement Income Security Act, 29 U.S.C. §§1001 et seq. [1988] [ERISA], held to preempt State law claims for tortious interference with employee benefit plans). In the Brockton case, the school committee argued that its policy of denying sick leave benefits for pregnancy-related disability was shielded by the collective bargaining agreement and other statutory provisions regarding maternity leaves. Deciding as we do, we have no occasion to treat the defendant’s argument, even if not raised for the first time on appeal, that the arbitrator determined that Transgas had just cause to dismiss Carr on the basis that, prior to his earlier reinstatement, he had agreed that any future refusal to operate assigned equipment would constitute just cause for his dismissal.

VIRGINIA P. ABELS v. RENFRO CORPORATION No. 33PA93 (Filed 3 December 1993) 1. Rules of Civil Procedure § 50 (NCI3d)— motion for judgment n.o.v. — motion for directed verdict — same standard In essence, a motion for judgment notwithstanding the verdict is a renewal of the movant’s prerequisite motion for a directed verdict, and the same standard should be used in the determination of the sufficiency of the evidence with regard to both motions. N.C.G.S. § 1A-1, Rule 50(b)(1). Am Jur 2d, Trial §§ 862, 863, 1953. 2. Rules of Civil Procedure § 50.3 (NCI3d)— motion for directed verdict — consideration and sufficiency of evidence A motion for directed verdict tests the sufficiency of the evidence to take the case to the jury. In making its determination of whether to grant the motion, the trial court must examine all of the evidence in a light most favorable to the nonmoving party, and the nonmoving party must be given the benefit of all reasonable inferences that may be drawn from that evidence. If the trial judge finds that there is evidence to support each element of the nonmoving party’s cause of action, the motion for directed verdict and any subsequent motion for judgment notwithstanding the verdict should be denied. Am Jur 2d, Trial §§ 850 et seq. 3. Labor and Employment § 75 (NCI4th)— retaliatory discharge for workers’ compensation claim —sufficiency of evidence There was sufficient evidence to support an inference that plaintiff was fired because defendant employer anticipated her good-faith filing of a workers’ compensation claim so that her claim for retaliatory discharge in violation of former N.C.G.S. § 97-6.1 was properly submitted to the jury where plaintiff’s evidence tended to show that she worked for defendant from 1949 until 1962 and then again from 1972 until she was discharged in 1987; after her first injury in 1984, she was allowed to engage in light work until she could return to her regular duties; her production was good throughout her employment, even after her second injury in 1987; defendant was aware that plaintiff had been injured again in 1987 while at work and that her doctor had requested that she be given a one-month leave of absence; plaintiff was discharged shortly after her second injury; and plaintiff later filed a workers’ compensation claim based upon the injuries sustained while working for defendant. Am Jur 2d, Workers’ Compensation §§ 39 et seq. 4. Labor and Employment § 75 (NCI4th); Evidence and Witnesses § 108 (NCI4th)— retaliatory discharge claim —comparative evidence — treatment of similarly situated employees In an action under N.C.G.S. § 97-6.1 for retaliatory discharge for filing a workers’ compensation claim, evidence of the employer’s treatment of similarly situated employees is admissible to show the employer’s motive for discharging plaintiff employee. Therefore, evidence offered by defendant of the discharge for poor quality work of other employees who never filed workers’ compensation claims and evidence of other employees who filed workers’ compensation claims and returned to work without incident should have been admitted to support defendant’s defense under N.C.G.S. § 97-6.1(c) that plaintiff was fired because of the continued low quality of her work after repeated warnings. Am Jur 2d, Evidence §§ 298 et seq.; Workers’ Compensation §§ 39 et seq. 5. Labor and Employment § 75 (NCI4th); Damages § 29 (NCI4th) — retaliatory discharge —insufficient evidence of emotional distress Assuming arguendo that plaintiff may recover damages for emotional distress in an action for retaliatory discharge for filing a workers’ compensation claim and that plaintiff’s allegations of such damages were adequate, the evidence was insufficient to show any mental or emotional disturbance on the part of plaintiff resulting from defendant’s actions. Am Jur 2d, Damages § 185; Workers’ Compensation §§ 39 et seq. 6. Evidence and Witnesses § 1380 (NCI4th)— findings in workers’ compensation action — not res judicata in retaliatory discharge action Findings by the Industrial Commission that plaintiff’s injuries were not compensable were not res judicata in plaintiff’s action for retaliatory discharge for filing a workers’ compensation claim since plaintiff’s retaliatory discharge claim is not dependent upon a finding of compensability of plaintiff’s injuries and the two actions do not involve the same claim. Therefore, the trial court properly refused to admit those findings in plaintiff’s retaliatory discharge action. Am Jur 2d, Evidence §§ 738 et seq. 7. Labor and Employment § 75 (NCI4th(— retaliatory discharge — conflicting evidence — judgment n.o.v. not warranted The trial court did not err by denying defendant employer’s motion for judgment notwithstanding the verdict in plaintiff’s action for retaliatory discharge on the ground that defendant had a policy of discharging employees if they were not able to return to work after a six-month leave of absence due to injury and that plaintiff should not be allowed to recover for any compensation she lost beyond that point, or on the alternative ground that the evidence showed that plaintiff was able to work after her injury and should have been held responsible for mitigation of damages by engaging in other employment, where the evidence in support of each of these two contentions was conflicting. Am Jur 2d, Workers’ Compensation §§ 39 et seq. Justice PARKER did not participate in the consideration or decision of this case. On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, 108 N.C. App. 135, 423 S.E.2d 479 (1992), affirming a judgment for plaintiff entered 25 March 1991 on a claim of retaliatory discharge in violation of N.C.G.S. § 97-6.1 by Long (James M.), J., after a jury trial at the 22 January 1991 Civil Session of Superior Court, Surry County, and an order entered 26 March 1991 denying defendant’s motion, inter alia, for judgment notwithstanding the verdict. Heard in the Supreme Court 14 September 1993. Franklin Smith for plaintiff-appellee. Constangy, Brooks & Smith, by W.R. Loftis, Jr., and Robin E. Shea, for defendant-appellant. . After initiation and trial of this action, this statute was repealed; the pertinent statute is now N.C!G.S. § 95-241. MEYER, Justice. In this case we decide, inter alia, whether, in an employee discharge case instituted pursuant to N.C.G.S. § 97-6.1, evidence of the employer’s treatment of similarly situated employees is admissible to show the employer’s motive for discharging the employee. We hold that such evidence is admissible. Plaintiff began her employment as a knitter with defendant in 1949 and continued working until she became pregnant in 1962. Plaintiff resumed her employment with defendant in 1972. At the time of her discharge on 19 August 1987, plaintiff’s duties included overseeing approximately forty knitting machines and inspecting the quality of manufactured socks. Plaintiff alleged that she was injured when she slipped and fell on some cardboard boxes on 15 June 1984. Plaintiff reported this injury to defendant but did not file a workers’ compensation claim at that time. Plaintiff also alleged a second injury, which occurred on 26 June 1987 when an employee of defendant, in the process of moving boxes, struck her from behind, injuring the back of her head, her upper back, her neck, and her ribs. Defendant discharged plaintiff on 19 August 1987. Approximately six weeks after her termination, plaintiff filed workers’ compensation claims for her alleged 15 June 1984 and 26 June 1987 injuries. Plaintiff filed suit against defendant on 25 November 1987, alleging that defendant violated N.C.G.S. § 97-6.1 by discharging her in retaliation for her anticipated filing of workers’ compensation claims. Defendant argued that plaintiff was fired due to the poor quality of her work and that prior to her discharge, she received several warnings from management to either improve the quality of her work or face termination. Plaintiff’s workers’ compensation claims were denied. The Industrial Commission found that her 1984 claim was barred by the statute of limitations and that the 1987 claim was not based on a compensable injury. This decision was affirmed by the full Commission on 13 June 1989 and by the Court of Appeals on 21 August 1990. A jury trial on the retaliatory discharge claim began on 22 January 1991. On 23 January 1991, the trial court ruled that defendant could not introduce as substantive evidence the findings of the Deputy Commissioner, the full Commission, or the Court of Appeals with regard to the injuries alleged to have been sustained by plaintiff. On 28 January 1991, the jury returned a verdict finding that plaintiff was wrongfully discharged in violation of N.C.G.S. § 97-6.1 and awarded her $82,200 in damages as follows: $60,000 for loss of earnings, $12,000 for loss of health insurance benefits, $7,200 for loss of defendant’s contributions to Social Security, $2,000 for loss of profit sharing, and $1,000 for mental and emotional distress. On 25 March 1991, the trial court entered judgment for that amount and ordered plaintiff’s reinstatement to her former position. Defendant’s motion for judgment notwithstanding the verdict and, in the alternative, for a new trial was denied by the trial court on 26 March 1991. Defendant appealed to the Court of Appeals, which unanimously affirmed the decision of the trial court. Abels v. Renfro Corp., 108 N.C. App. 135, 423 S.E.2d 479 (1992). Defendant brings forth five assignments of error. In its first assignment of error, defendant contends that the Court of Appeals erred in affirming the trial court’s denial of defendant’s motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. Defendant suggests that this Court adopt the complicated analysis used in federal employment discrimination cases as a model for how a retaliatory discharge case based upon the filing of a workers’ compensation claim should be developed in our North Carolina courts. We decline to do so. Instead, we rely on the terms of the statute itself to determine what showing is necessary to withstand a motion for directed verdict and subsequent motion for judgment notwithstanding the verdict. We first note that Rule 50 of the North Carolina Rules of Civil Procedure provides that a motion for judgment notwithstanding the verdict “shall be granted if it appears that the motion for directed verdict could properly have been granted.” N.C.G.S. § 1A-1, Rule 50(b)(1) (1990). In essence, a motion for judgment notwithstanding the verdict is a renewal of the movant’s prerequisite motion for a directed verdict. Taylor v. Walker, 320 N.C. 729, 360 S.E.2d 796 (1987); Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 329 S.E.2d 333 (1985). Accordingly, the same standard should be used in the determination of the sufficiency of the evidence with regard to both motions. E.g., Abernathy v. Consolidated Freightways Corp., 321 N.C. 236, 362 S.E.2d 559 (1987), reh’g denied, 321 N.C. 747, 366 S.E.2d 855 (1988); Northern Nat’l Life Ins. v. Miller Machine Co., 311 N.C. 62, 316 S.E.2d 256 (1984). A motion for directed verdict tests the sufficiency of the evidence to take the case to the jury. In Re Will of Jarvis, 334 N.C. 140, 143, 430 S.E.2d 922, 923 (1993); United Labs v. Kuykendall, 322 N.C. 643, 661, 370 S.E.2d 375, 387 (1988). In making its determination of whether to grant the motion, the trial court must examine all of the evidence in a light most favorable to the nonmoving party, and the nonmoving party must be given the benefit of all reasonable inferences that may be drawn from that evidence. Anderson v. Butler, 284 N.C. 723, 730-31, 202 S.E.2d 585, 590 (1974). If, after undertaking such an analysis of the evidence, the trial judge finds that there is evidence to support each element of the nonmoving party’s cause of action, then the motion for directed verdict and any subsequent motion for judgment notwithstanding the verdict should be denied. In Re Will of Jarvis, 334 N.C. 140, 143, 430 S.E.2d 922, 923; Braswell v. Braswell, 330 N.C. 363, 367, 410 S.E.2d 897, 899 (1991), reh’g denied, 330 N.C. 854, 413 S.E.2d 550 (1992). Plaintiff in this case bases her claim on N.C.G.S. § 97-6.1, the pertinent portion of which reads as follows: (a) No employer may discharge or demote any employee because the employee has instituted or caused to be instituted, in good faith, any proceeding under the North Carolina Workers’ Compensation Act, or has testified or is about to testify in any such proceeding. N.C.G.S. § 97-6.1(a) (1991) (repealed effective October 1992). As the Court of Appeals noted, in order for a plaintiff to recover in an action brought pursuant to N.C.G.S. § 97-6.1, “plaintiff must show that her discharge was caused by her good faith institution of the workers’ compensation proceedings or by her testimony or her anticipated testimony in those proceedings.” Abels v. Renfro Corp., 108 N.C. App. 135, 143, 423 S.E.2d 479, 483 (1992) (citing Hull v. Floyd S. Pike Electrical Contractor, 64 N.C. App. 379, 307 S.E.2d 404 (1983)). The Court of Appeals has also held that a plaintiff can survive a Rule 12(b)(6) motion to dismiss his claim even if he is fired before he files his workers’ compensation claim. In Wright v. Fiber Industries, Inc., 60 N.C. App. 486, 299 S.E.2d 284 (1983), the Court of Appeals noted that [i]f G.S. 97-6.1 were limited only to retaliatory acts which occurred after the employee filed his claim, an employer could easily avoid the statute by firing the injured employee before he filed. Id. at 491, 299 S.E.2d at 287. We agree. A careful reading of the transcript reveals that the evidence taken in the light most favorable to the plaintiff was as follows: Plaintiff testified that she worked for defendant, Renfro Corporation, from 1949 until 1962, and then again from 1972 until she was discharged in 1987. She testified that throughout her employment, even after her second injury, her production was good. There was evidence that after her first injury in 1984, she was allowed to engage in light work until she could return to her regular duties. There was also evidence that Renfro Corporation was aware that plaintiff had been injured again in 1987 while at work and that her doctor had requested that she be given a one-month leave of absence. Shortly after the injury, she was discharged. Plaintiff later filed a workers’ compensation claim based upon the injuries sustained while working for defendant Renfro Corporation. We conclude that, although the evidence of causal connection between the discharge and filing of the workers’ compensation claim is weak, the jury could have inferred that Renfro, having earlier escaped a workers’ compensation claim by allowing plaintiff to continue earning her salary at lighter duties, eventually concluded, upon her second injury, that this prospect was no longer to be avoided and that, in order to forestall the anticipated filing of a workers’ compensation claim, the most expedient remedy would be to discharge plaintiff. We thus hold that there was sufficient evidence to support an inference that plaintiff was fired because defendant Renfro Corporation anticipated her good-faith filing of a workers’ compensation claim, and accordingly, defendant’s motion for a judgment notwithstanding the verdict was properly denied. We next address the question of whether it was error for the trial court to prohibit defendant from introducing evidence of its treatment of similarly situated employees. We hold that it was error requiring a new trial. Defendant Renfro Corporation offered substantial evidence that plaintiff was discharged, not because of any anticipated filing of a workers’ compensation claim, but because of the continued low quality of plaintiff’s work after repeated warnings. Defendant also attempted to1 introduce evidence of the discharge for poor quality work of other employees who never filed workers’ compensation claims and evidence of other employees who filed workers’ compensation claims and returned to work without incident. This evidence was offered to rebut plaintiff’s assertion that she was fired because defendant anticipated her filing a workers’ compensation claim as a result of her 1984 and 1987 injuries. We first note that under Rule 401 of the North Carolina Rules of Evidence, evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C.G.S. § 8C-1, Rule 401 (1992). What defendant would have attempted to prove by the introduction of comparative evidence was that plaintiff was discharged “for failure to meet employer work standards not related to the Workers’ Compensation Claim,” a specifically listed defense to the cause of action established by N.C.G.S. § 97-6.1. N.C.G.S. § 97-6.1(c). It thus becomes apparent that, in this type of claim, after it has been established that the employee was in fact discharged and that she had filed or was about to file a workers’ compensation claim, the question of the motive of the employer is determinative. “The motive which prompts a person to do a particular act is seldom an essential element of a cause of action or defense, and therefore it need not ordinarily be proved.” 1 Henry Brandis, Jr., Brandis on North Carolina Evidence § 83 (3d ed. 1988). In this type of case, however, the employer’s motivation is critically important. This particular statute was designed to protect employees who have been fired because the employee has instituted, or those whom the employer anticipates will in good faith institute, a proceeding under the North Carolina Workers’ Compensation Act. N.C.G.S. § 97-6.1(a). The statute contains several specifically listed defenses to such an action: (c) Any employer shall have as an affirmative defense to this section the following: willful or habitual tardiness or absence from work or being disorderly or intoxicated while at work, or destructive of an employer’s property; or for failure to meet employer work standards not related to the Workers’ Compensation Claim; or malingering; or embezzlement or larceny of employer’s property; or for violating specific written company policy of which the employee has been previously warned and for which the action is a stated remedy of such violation. N.C.G.S. § 97-6.1(c) (emphasis added). The employer’s primary defense in these cases rests upon its ability to present evidence that the employee was fired for other reasons, particularly those reasons listed in the statute as defenses to the claim. This Court, in its first employment discrimination case brought under N.C.G.S. § 143-422.2, noted that it would “look to federal decisions for guidance in establishing evidentiary standards and principles of law to be applied in discrimination cases.” Dept. of Correction v. Gibson, 308 N.C. 131, 136, 301 S.E.2d 78, 82 (1983). Though not controlling, we note that federal courts have long allowed this type of comparative evidence in employment discrimination cases. E.g., McDonnell Douglas v. Green, 411 U.S. 792, 36 L. Ed. 2d 668 (1973); Miller v. CertainTeed Corp., 971 F.2d 167 (8th Cir. 1992); Canady v. J.B. Hunt Transport, Inc., 970 F.2d 710 (10th Cir. 1992). In a case such as this, the motivation of the employer in the dismissal of the employee is the primary issue to be decided by the jury. It is unlikely that either plaintiff or defendant will be able to present any direct evidence of the employer’s state of mind in the making of the decision. Thus, critical to this determination would be evidence of how the employer has treated similarly situated employees in the past and how it was treating them at the time of the disputed discharge. This evidence, though circumstantial in nature, is perhaps the best indication, other tha

PHILLIPS v BUTTERBALL FARMS COMPANY, INC (ON SECOND REMAND) Docket No. 165049. Submitted June 4, 1993, at Lansing. Decided October 4,1993, at 9:30 a.m. Leave to appeal sought. Teresa Phillips brought an action in the Kent Circuit Court against Butterball Farms Company, Inc., alleging that she had been discharged from her employment with the defendant in retaliation for exercising her rights under the Workers’ Disability Compensation Act. The plaintiff sought not only lost income but also damages for mental and emotional distress and anguish. The trial court, Robert A. Benson, J., dismissed the claim for damages for mental and emotional distress, finding that the plaintiff’s claim sounded in contract rather than tort, and dismissed a breach of contract claim, finding that the plaintiff was an at-will employee. Thereafter, the court, George S. Buth, J., approved a jury instruction proposed by the defendant that would have limited the plaintiff to nominal damages. The plaintiff appealed by leave granted. The Court of Appeals, Maher, P.J., and Sullivan and Reilly, JJ., affirmed, basing the determination in part on the plaintiffs failure to request a transcript of one of the hearings. Unpublished opinion per curiam, decided February 21, 1991 (Docket No. 118024). The Supreme Court, in lieu of granting leave to appeal, remanded for consideration on the merits. 439 Mich 895 (1991). On remand, the Court of Appeals, Sullivan, P.J., and Reilly and Jansen, JJ., again affirmed. Unpublished opinion per curiam, decided May 14, 1992 (Docket No. 147051). The Supreme Court, in lieu of granting leave to appeal, vacated the judgment of the Court of Appeals and remanded for reconsideration in light of Dunbar v Dep’t of Mental Health, 197 Mich App 1 (1992). 442 Mich 909 (1993). On second remand, the Court of Appeals held: 1. The Dunbar holding that an action brought under the retaliatory discharge provision of the Workers’ Disability Compensation Act sounds in tort rather than contract and that damages for mental distress and anguish may be awarded is binding precedent and must be followed. Accordingly, it was error for the trial court to limit the plaintiff’s damages to nominal damages for lost wages. References Am Jur 2d, Damages §§ 251-259; Master and Servant §§ 60-63; Wrongful Discharge §§ 25-29. Recovery for discharge from employment in retaliation for filing workers’ compensation claim. 32 ALR4th 1221. 2. Because the plaintiff was an at-will employee, damages for mental distress and anguish are limited to only those damages attributable to the distress resulting from the retaliatory nature of the discharge and not from the distress of her subsequent unemployment, because she could have had no reasonable expectation of continued employment. The fact that the result may be only nominal damages that might do little to deter retaliatory discharges is a problem that must be addressed by the Legislature. Reversed and remanded. 1. Master and Servant — Wrongful Discharge — Retaliatory Discharge — Damages — Mental Anguish. An action for wrongful discharge alleging retaliation for the filing of a claim for workers’ compensation benefits sounds in tort, not contract; damages for mental anguish may be awarded in such an action. 2. Master and Servant — At-Will Employment — Retaliatory Discharge — Damages — Mental Anguish. Intrinsic in the concept of an at-will employment contract is the mutual understanding between employer and employee that neither party to the agreement has an expectation of continued employment; consequently, damages for mental or emotional distress in an action alleging discharge in retaliation for the filing of a claim of workers’ compensation benefits are limited to those damages that arise solely from the retaliatory nature of the discharge. Williams, Klukowski, Drew & Fotieo (by Stephen R. Drew), for the plaintiff. Miller, Johnson, Snell & Cummiskey (by Craig H. Lubben and Nancy S. Rubino), for the defendant. ON SECOND REMAND Before: McDonald, P.J., and Reilly and Jansen, JJ. Reilly, J. This case has been remanded again, this time for reconsideration in light of Dunbar v Dep’t of Mental Health, 197 Mich App 1; 495 NW2d 152 (1992), a case decided after our last opinion was released. Our previous opinions in this matter have been vacated and, therefore, we are bound by Administrative Order No. 1990-6, as extended, to follow Dunbar. Accordingly, we reverse. i In our original opinion on remand, we considered whether the trial court properly dismissed plaintiffs claim for damages for mental anguish, anxiety, humiliation, and pain and suffering arising out of her alleged retaliatory discharge for exercising her rights under the workers’ compensation statute. Unpublished opinion per curiam of the Court of Appeals, decided May 14, 1992 (Docket No. 147501). We noted that a conflict among panels of this Court with regard to the recovery of exemplary damages in retaliatory discharge actions had been resolved in Mourad v Automobile Club Ins Ass’n, 186 Mich App 715, 728; 465 NW2d 395 (1991). In Mourad, this Court, following Watassek v Dep’t of Mental Health, 143 Mich App 556; 372 NW2d 617 (1985), and Lopus v L & L Shop-Rite, Inc, 171 Mich App 486; 430 NW2d 757 (1988), determined that an action for retaliatory discharge is an action asserting a specific type of wrongful discharge and is, therefore, a contract action. Accordingly, a plaintiff in a retaliatory discharge case is not entitled to recover exemplary damages. Mourad, supra at 728. In Dunbar, a panel of this Court held that an action for retaliatory discharge for filing a workers’ compensation claim sounds in tort, not in contract. The majority acknowledged that a retaliatory discharge is a type of wrongful discharge. Dunbar, supra, at 6. However, the majority distinguished Mourad (retaliatory demotion for failing to follow company’s unethical practice), Watassek (retaliatory discharge for interference with treatment of patients), and Lopus (retaliatory discharge in anticipation of plaintiffs filing a workers’ compensation claim) and held that the allegedly wrongful conduct was a breach of the statutory duty not to discharge an employee in retaliation for filing a workers’ compensation claim and, therefore, sounds in tort. Id. at 10; MCL 418.301(11); MSA 17.237(301)(11). This case is factually on point with Dunbar, because plaintiff in this case also alleges that she was discharged from her employment in retaliation for exercising her rights under the Workers’ Disability Compensation Act, in violation of § 301(11) of the statute. Therefore, we believe that we are bound to follow Dunbar. However, we do so reluctantly because we do not believe that the Dunbar majority sufficiently justified its departure from the rule of law stated in Mourad. The cause of action for retaliatory discharge in contravention of the public policy indicated in the Workers’ Disability Compensation Act was judicially established in Sventko v Kroger, 69 Mich App 644, 647; 245 NW2d 151 (1976), as an exception to the doctrine of at-will employment. However, Sventko failed to define the nature of the action, i.e., contract or tort, and failed to provide a remedy. Subsequently, in 1981, the Legislature codified that public policy and enacted a prohibition against the discharge of an employee for filing a claim for workers’ compensation benefits. 1981 PA 200, §301(11), MCL 418.301(11); MSA 17.237(301)(11). However, the legislation failed to codify the judicially created cause of action, define its nature, or provide any penalty or remedy for the violation of the public policy. Later decisions of this Court, which dealt with the nature of retaliatory discharge actions in other factual contexts, were in conflict concerning whether the cause of action was one sounding in tort or contract. We believe that conflict was appropriately resolved in Mourad. Nevertheless, the majority in Dunbar has concluded that the cause of action in that case sounded in tort because the employer allegedly violated a duty imposed by § 301(11) of the Workers’ Disability Compensation Act. However, we emphasize, as did the dissent in Dunbar, that § 301(11) does not create a cause of action or set forth a remedy. Compare the Civil Rights Act, MCL 37.2701; MSA 3.548(701) and MCL 37.2801; MSA 3.548(801) and the Handicappers’ Civil Rights Act, MCL 37.1602; MSA 3.550(602) and MCL 37.1606; MSA 3.550(606). Rather, the statute is merely a codification of the judicially recognized public policy against retaliatory discharge in the specific situation where an employee files a workers’ compensation claim. Dunbar, supra at 14-15, n 4; see also Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 695; 316 NW2d 710 (1982); Sventko, supra. 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 discharge for filing a workers’ compensation claim is not a sufficient basis for ignoring the underlying basis for the cause of action, i.e., that some grounds for discharge are so contrary to public policy as to give rise to an action for wrongful discharge, even though the employer-employee relationship is "at will.” Sventko, supra. The action is based on the breach of an implied provision that the employer will not discharge an employee for a reason that is contrary to public policy. See Brockmeyer v Dunn & Bradstreet, 131 Wis 2d 561; 335 NW2d 834 (1983); Sterling Drugs, Inc v Oxford, 294 Ark 239; 743 SW2d 380 (1988). The cause of action for wrongful discharge exists even where there is no explicit legislative statement prohibiting such a discharge. See Mourad, supra, Suchodolski, supra, and Sventko, supra. See also Trombetta v Detroit, T & I R Co, 81 Mich App 489, 496; 265 NW2d 385 (1978) (employee discharged for refusing to violate a law). The majority in Dunbar acknowledged that a retaliatory discharge is a type of wrongful discharge, but did not explain how the explicit statutory codification of a public policy against retaliatory discharge in workers’ compensation cases transforms such activity into a tort action while other types of retaliatory discharge apparently give rise to contract actions. We recognize that the majority’s conclusion in Dunbar that a claim of discharge in retaliation for filing a workers’ compensation claim sounds in tort is consistent with recent rulings of several other state courts. 32 ALR4th 1221, § 4, pp 1231-1238. However, we remain convinced that plaintiff’s claim for retaliatory discharge is one sounding in contract. The rights and obligations of employers and employees under the Workers’ Disability Compensation Act arise out of and are incidental to the contract of employment and, therefore, are contractual in nature. Boshaw v J J Newberry Co, 259 Mich 333, 341; 243 NW 46 (1932), overruled on other grounds Halfacre v Paragon Bridge & Steel Co, 368 Mich 366, 376; 118 NW2d 455 (1962); Erickson v Goodell Oil Co, Inc, 384 Mich 207, 211; 180 NW2d 798 (1970); Lee v J H Lee & Son, 72 Mich App 257, 265; 249 NW2d 380 (1976). Furthermore, the liability imposed upon employers for their employees’ work-related injuries is not based on tort theory. Rather, employees who receive an injury "arising out of and in the course of employment” are entitled to benefits without regard to whether the employer was negligent or at fault. See MCL 418.301(1); MSA 17.237(301X1). In spite of that, because we are bound to follow Dunbar, we are 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. In view of our holding, the trial court’s ruling accepting defendant’s proposed instruction limiting plaintiff’s damages solely to nominal damages for lost wages, was error. Intrinsic in the concept of an at-will employment contract is the mutual understanding between employer and employee that neither party to the agreement has an expectation of continued employment. Consequently, an "at-will” employee who seeks to enforce an action for retaliatory discharge, whether the action sounds in tort or contract, will be limited in the damages that can be obtained. Having ruled that the plaintiffs action is to be treated as one sounding in tort, the measure of damages for her mental or emotional distress necessarily will be confined 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. Sepanske v Bendix Corp, 147 Mich App 819; 384 NW2d 54 (1985). We realize that at-will employees may only be able to recover minimal damages for their mental and emotional distress, and nominal damages for lost wages in an action sounding in tort. Nonetheless, while we do not condone acts of retaliatory discharge, we should not disregard basic concepts of the common law in order to deter retaliatory discharges. We should not judicially convert "at-will” employment contracts into "just cause” contracts for the purpose of deterring such conduct. Any other remedy for the at-will employee, or penalty against the employer, must be provided by the Legislature. Accordingly, we reverse and remand for proceedings consistent with this opinion. We do not retain jurisdiction. Phillips v Butterball Farms Company, Inc, 442 Mich 909 (1993). A person shall not discharge an employee or in any manner discriminate against an employee because the employee filed a complaint or instituted or caused to be instituted a proceeding under the act or because of the exercise by the employee on behalf of himself or herself or others of a right afforded by this act. In this case, the plaintiff was a ninety-day probationary employee, whose employment was terminable at will. In Dunbar, the plaintiff was a registered nurse employed by the Michigan Department of Mental Health at the Northville Regional Psychiatric Hospital for approximately two years.

ROOD v GENERAL DYNAMIC CORPORATION SCHIPPERS v SPX CORPORATION Docket Nos. 93416, 93968. Argued April 1, 1993 (Calendar Nos. 10-11). Decided September 21, 1993. Rehearings denied post, 1203. Richard A. Rood, M.D., brought an action in the Macomb Circuit Court against the General Dynamics Corporation, alleging wrongful discharge in breach of a just-cause contract. The court, Robert J. Chrzanowski, J., granted summary judgment for the defendant. The Court of Appeals, Cynar and Brennan, JJ. (Danhof, C.J., dissenting), reversed in an unpublished opinion per curiam (Docket No. 117470). In lieu of granting leave to appeal, the Supreme Court remanded the case to the Court of Appeals for reconsideration in light of Rowe v Montgomery Ward & Co, Inc, 437 Mich 627 (1991). After remand, the Court of Appeals, Danhof, C.J., and Griffin, J. (Brennan, J., dissenting), reversed its original decision in an unpublished opinion per curiam (Docket No. 145598). The plaintiff appeals. Joseph Schippers brought an action in the Muskegon Circuit Court against the SPX Corporation, alleging wrongful discharge in breach of a just-cause contract. The court, Michael E. Kobza, J., granted summary judgment for the defendant. The Court of Appeals, Neff, P.J., and Maher and Murphy, JJ., reversed (Docket No. 117549). The Supreme Court, in lieu of granting leave to appeal, remanded the case to the Court of Appeals for reconsideration in light of Rowe. After remand, the Court of Appeals, Neff, P.J., and Michael J. Kelly and Reilly, JJ., reaffirmed its original holding (Docket No. 147499). The defendant appeals. In an opinion by Chief Justice Cavanagh, joined by Justices Brickley, Boyle, Riley, Griffin, and Mallett, the Supreme Court held: A claim for wrongful discharge may be supported by contract or public policy. In these cases, while there was insufficient . evidence under the contract theory to overcome the presumption of employment at will, in Rood, the employer’s written policies and procedures were sufficiently clear and definite to create a question for the jury regarding the existence of a just-cause employment relationship. References Am Jur 2d, Master and Servant §§ 27, 45. See ALR Index under Labor and Employment. 1. Employment contracts of indefinite duration are presumed to be terminable by either party for any or no reason. To overcome the presumption, sufficient proof either of a provision for a definite term of employment or one forbidding discharge except for just cause must be shown. Express or implied promises or employer policies and procedures that instill legitimate expectations of just-cause employment may be sufficient and may become legally enforceable parts of an employment relationship. 2. Oral statements of just-cause employment must be clear and unequivocal, and the circumstances surrounding them must objectively show that a reasonable person would have interpreted them to provide a just-cause relationship. In these cases, viewing the evidence in a light most favorable to the plaintiffs, there is no evidence from which a reasonable juror could infer that the employers intended to provide just-cause employment. 3. Where a legitimate expectations theory is asserted, the trial court should examine the employer’s policy statements concerning employee discharge to determine whether they are capable of reasonably being interpreted differently, and thus questions for the jury. In Schippers, the statements were insufficient. In Rood, the policies and procedures could have instilled a legitimate expectation of just-cause employment, requiring reversal and remand for further proceedings. Rood, reversed and remanded. Schippers, reversed. Justice Levin, concurring in part and dissenting in part, stated that the evidence presented by the plaintiffs is sufficient to create a question of material fact whether oral assurances, written company policies, and company procedures and practices gave rise to a contract of just-cause employment under Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 479 (1980). It cannot properly be said that all reasonable persons would agree that no such contract was created between the parties. 194 Mich App 52; 486 NW2d 89 (1992) reversed. Master and Servant — Termination for Cause — Oral Promises. Express or implied promises or employer policies and procedures that instill legitimate expectations of just-cause employment may be sufficient and may become legally enforceable parts of an employment relationship; oral statements of just-cause employment must be clear and unequivocal, and the circumstances surrounding them must objectively show that a reasonable person would have interpreted them to provide a just-cause relationship. Sachs, Waldman, O’Hare, Helveston, Hodges & Barnes, P.C. (by Mary Katherine Norton), for the plaintiff in Rood. McCroskey, Feldman, Cochrane & Brock, P.C. (by John P. Halloran), for the plaintiff in Schipppers. Butzel, Long, P.C. (by John P. Hancock, Jr., Barbara T. Pichan, and Susan A. Hartmus), for the defendant in Rood. Culver, Lague & McNally (by Kevin B. Even) for the defendant in Schippers. Amicus Curiae: Mark Granzotto, Monica Farris Linkner, and Charles P. Burbach, for Michigan Trial Lawyers Association. Clark, Klein & Beaumont (by Dwight H. Vincent, J. Walker Henry, Rachelle G. Silberberg, and Patricia Bordman) for Michigan Manufacturers Association. Stark & Gordon (by Sheldon J. Stark, Martha I. Seijas) for National Lawyers Guild, Edgar Jerome Dew for National Conference of Black Lawyers, Reginald M. Turner, Jr., for Wolverine Bar Association, Paul J. Denenfeld for American Civil Liberties Union, and Charlene M. Snow for Women Lawyers Association of Michigan. Vamum, Riddering, Schmidt & Howlett (by Joseph J. Vogan) for Michigan Chamber of Commerce and The Employers’ Association. Cavanagh, C.J. In these wrongful discharge actions, we are asked to examine employer oral representations and written policy statements to determine the existence of alleged employment agreements terminable only for cause. In Rood, we find that the employer’s written policy statements were sufficiently clear and definite to create a jury question, regarding the existence of a just-cause employment relationship. In Schippers, however, we cannot so find. Consequently, we reverse the judgments of the different panels of the Court of Appeals. i A. SCHIPPERS v SPX CORP For fourteen years, plaintiff Joseph Schippers was employed as an "over-the-road” truck driver by defendant SPX Corporation. For approximately 12V2 of those years, Mr. Schippers was employed at the SPX-Sealed Power Division. In August 1986, Mr. Schippers transferred from Sealed Power to another division within spx, the Hy-Lift Division, which had only one truck and one driver, Mr. Schippers. Spx leased its trucks, including the truck driven by Mr. Schippers, from defendant Ryder Truck Rental. As part of the lease agreement between spx and Ryder, spx agreed to operate the trucks in a safe and careful manner. On January 28, 1987, Ryder’s district controller, Peter Stanley, sent a letter to Hy-Lift’s production control manager, Larry Bozik, informing him that Mr. Schippers had been involved in three accidents and that Ryder was placing Mr. Schippers on probation. Hy-Lift’s employee relations manager, Patrick E. Goresch challenged the basis for Ryder’s decision and requested proof to establish its claim. Ryder never sent the requested information and nothing further occurred until August 1987. On August 6, 1987, approximately one year after his transfer to Hy-Lift, Mr. Schippers was involved in a traffic accident. While Mr. Schippers claims that the accident was caused by a "steering malfunction,” an investigation conducted by Ryder indicated that the accident occurred because Mr. Schippers fell asleep at the wheel. In any event, Ryder notified spx that, pursuant to the lease agreement, it was requesting that Mr. Schip-pers not be permitted to operate any of its vehicles. Ryder further warned spx that if it allowed Mr. Schippers to operate any of its vehicles, then spx would be in breach of contract and liable for all personal injury and property damage resulting from any accident involving Mr. Schippers after the date of the letter. Following receipt of this letter, spx initiated its own investigation. The investigation revealed that this was not Mr. Schippers’ first accident; it was only "one of many which occurred while Schippers was a truck driver for spx.” On the basis of the investigation, an spx risk-management employee, James Sheridan, determined that of all spx truck drivers employed, Schippers presented the greatest risk to the enterprise. Mr. Schippers was terminated on September 4, 1987. He commenced this action against spx in Muskegon Circuit Court, on June 15, 1988, claiming that his discharge violated his employment agreement, which provided for discharge only for cause and negligent evaluation. The trial court granted spx’s motion for summary judgment on both counts, but the Court of Appeals reversed. 186 Mich App 595; 465 NW2d 34 (1990). Spx filed an application for leave to appeal in this Court, which, in lieu of granting leave, remanded to the Court of Appeals for reconsideration in light of Rowe v Montgomery Ward & Co, Inc, 437 Mich 627; 473 NW2d 268 (1991). 439 Mich 895 (1991). On remand, the Court of Appeals reaffirmed its original holding. 194 Mich App 52; 486 NW2d 89 (1992). We subsequently granted spx’s application for leave to appeal, 441 Mich 881 (1992), and we reverse. B. ROOD V GENERAL DYNAMICS CORP The plaintiff, Dr. Richard Rood, began working for Chrysler Corporation at its Hamtramck plant in 1968 as a per diem plant physician. In 1970, he converted to a salaried employee at the urging of his supervisor, Dr. George Olson. Dr. Rood’s employment responsibilities included the performance of physicals for newly hired workers and workers returning to work, and workers’ compensation evaluations. He also was responsible for providing general medical care for plant employees. In 1972, Dr. Rood was promoted to senior plant physician at the Hamtramck plant. This position required the supervision of other doctors and nurses. He performed this function until Chrysler closed its Hamtramck plant in 1980 and transferred Dr. Rood to the Detroit tank plant, where he assumed the role of plant physician, working under the direct supervision of the personnel manager, Owsley Spiller. Chrysler sold the Detroit tank plant in March 1982 to the defendant, General Dynamics Land Systems (gdls), which retained the entire plant medical department, including Dr. Rood as plant physician. As a result, Dr. Rood continued to report to Mr. Spiller, and his duties remained essentially the same. Gdls had three plants in separate states and each plant had its own plant physician who reported to nonmedical personnel. The new vice president of human resources, Donald Norman, testified that he desired to create a more efficient means of handling the various medical facilities at the three plants. As a result, he established the position of division medical director to oversee all the division’s medical personnel, and only that person reported to Mr. Norman. When filling this new position, Mr. Norman bypassed Dr. Rood and hired another doctor, Dr. Charles R. Harper, who had an extensive background as a medical director in other corporations. Gdls contends that, after hiring Dr. Harper, an economic concern developed. At the time of his termination, Dr. Rood’s annual salary was $59,000 and Dr. Harper’s starting salary was $70,000. According to Mr. Norman, it was not economically feasible for gdls to have both a full-time plant physician and a division medical director. He, therefore, purportedly decided that the division medical director would perform both the division-wide responsibilities as well as the duties of the plant physician at the Detroit plant and Dr. Rood’s position was eliminated. Dr. Rood challenges the reasons for his dismissal, however, claiming that the hiring of Dr. Harper was solely to replace him. In any event, in December 1984, the then-director of personnel relations, William Pagen, informed Dr. Rood that gdls "had decided to replace” him and that he could either submit a letter of resignation or be fired. Dr. Rood submitted his letter of resignation that became effective on January 4, 1985. Dr. Rood filed this action in Macomb Circuit Court on December 29, 1987, claiming that his discharge violated his employment agreement, negligent evaluation, and breach of the covenant of good faith and fair dealing. On gdls’ motion, the circuit court dismissed plaintiff’s negligent evaluation and breach of good-faith and fair-dealing claims for failure to state a claim on which relief can be granted. MCR 2.116(C)(8). Because Dr. Rood did not appeal this determination, the case proceeded through discovery on only the breach of implied contract claim. Following discovery, gdls filed a motion for summary judgment, which the trial court granted. Dr. Rood appealed in the Court of Appeals, which reversed in a split decision. Unpublished opinion per curiam, decided December 27, 1990 (Docket No. 117470). Gdls filed an application for leave to appeal in this Court, which, in lieu of granting leave, remanded to the Court of Appeals for reconsideration in light of Rowe. 439 Mich 851 (1991). On remand, the Court of Appeals, in yet another split decision, reversed its original holding. Unpublished opinion per curiam, decided February 19, 1992 (Docket No. 145598). We subsequently granted Dr. Rood’s application for leave to appeal, 441 Mich 880 (1992), and we reverse. ii Employment contracts for an indefinite duration are presumptively terminable at the will of either party for any reason or for no reason at all. Lynas v Maxwell Farms, 279 Mich 684, 687; 273 NW 315 (1937). This presumption is not, however, "a substantive limitation on the enforceability of employment contracts but merely a rule of 'construction.’ ” Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 597; 292 NW2d 880 (1980). "The presumption does not prevent proof of actual intent and should not be employed to permit unjustified evasions of promissory liability.” Rowe at 676, n 14 (Boyle, J., concurring). To overcome the presumption of employment at will, a party must present sufficient proof either of a contractual provision for a definite term of employment or a provision forbidding discharge absent just cause. Rowe at 636-637. Such provisions may become part of an employment contract as a result of "explicit” promises, Perritt, Employee Dismissal Law & Practice (2d ed), § 4.1, p 173, or promises implied in fact. Rowe at 668 (Boyle, J., concurring). As recognized in Toussaint, however, employer policies and procedures may also become a legally enforceable part of an employment relationship if such policies and procedures instill "legitimate expectations” of job security in employees. Toussaint at 615. In other words, there are two alternative theories of enforceability that may support a claim of wrongful discharge in Michigan. While the first theory is grounded solely on contract principles "relative to the employment setting,” Rowe at 632, the second theory is grounded solely on public policy considerations. As Justice Boyle noted in her concurring opinion in In re Certified Question (Bankey v Storer Broadcasting Co), 432 Mich 438, 458; 443 NW2d 112 (1989), "the pure legitimate expectations leg of Toussaint was founded on the Court’s common-law authority to recognize” enforceable obligations that arise " 'outside the operation of normal contract principles.’ ” a. "contract theory” of toussaint 1. APPLICABLE LAW Contractual liability is consensual. 1 Farns-worth, Contracts, § 3.1, p 160. A basic requirement of contract formation is that the parties mutually assent to be bound. Id. In Rowe, this Court recognized "the difficulty in verifying oral promises,” Rowe at 641, especially in the employment relations context, because individuals often harbor "optimistic hope of a long relationship” that causes them to misinterpret their employer’s oral statements as manifestations of an intention to undertake a commitment in the form of a promise of job security. Rowe at 640. Accordingly, and in an effort to recognize oral contracts for job security only where the circumstances suggest both parties intended to be bound, id. at 636, the Rowe Court held that "oral statements of job security must be clear and unequivocal to overcome the presumption of employment at will.” Id. at 645. In deciding whether a party has assented to a contract, we follow the objective theory of assent, focusing on how a reasonable person in the position of the promisee would have interpreted the promisor’s statements or conduct. Calamari & Per-illo, Contracts (3d ed), §2-2, p 27. As Professor Farnsworth stated: Since it is difficult for a workable system of contract law to take account of assent unless, there has been an overt expression of it, courts have required that assent to the formation of a contract be manifested in some way, by words or other conduct, if it is to be effective. [Id. at § 3.1, pp 160-161.] Otherwise stated, to determine whether there was mutual assent to a contract, "we use an objective test, 'looking to the expressed words of the parties and their visible acts,’ ” Rowe at 640, quoting Goldman v Century Ins Co, 354 Mich 528, 535; 93 NW2d 240 (1958), and ask whether a reasonable person could have interpreted the words or conduct in the manner that is alleged. Thus, we begin our analysis by looking "to all the relevant circumstances surrounding the transaction, including all writings, oral statements, and other conduct by which the parties manifested their intent.” Rowe at 641. (A) SCHIPPERS (i) EVIDENCE Viewed in a light most favorable to Mr. Schip-pers, the relevant evidence is as follows: Mr. Schip-pers was employed at Sealed Power for approximately 12V2 years before transferring to Hy-Lift. Before Mr. Schippers transferred to that division, Hy-Lift did not have a truck or a driver and relied totally on Sealed Power for its transportation needs. In an effort to save money and to gain additional control over its transportation needs, Hy-Lift decided to lease a truck from Ryder and approached Mr. Schippers about his willingness to transfer from Sealed Power to Hy-Lift. Although Hy-Lift had its choice of Sealed Power drivers, it wanted Mr. Schippers because he had driven for Hy-Lift, knew the routes, and was considered the most reliable. Mr. Schippers was one of seven drivers at Sealed Power, and he was second in seniority. Consequently, before deciding to make the switch to Hy-Lift, Mr. Schippers "consulted” with three of Hy-Lift supervisors, including his immediate supervisor, Mr. Bozik, and the general manager of Hy-Lift, Mr. Overway, about "job security.” During these conversations, Roy Overway told him that "as far as he was concerned, unless something was really wrong, [Mr. Schippers] would be there for retirement”' and that "Mr. Bosik [sic] went so far as to make the comment that as long as [Hy-Lift] had a truck, [he] would be the driver.” Moreover, Mr. Schippers states that he was given "similar” assurances from another "management person” at Hy-Lift, Perry Abbes, although he was unable to recall his exact words. At the time of transfer, spx had issued an employee "Information Handbook.” On page one, the handbook provides:_ We are proud of our people and recognize their value through steady employment, fair wages, good working conditions, unusually broad benefit programs, and recognition as individuals. Sealed Power has adopted overall policies of employment and standards of conduct which are fair to all employees and in the best interest of the company. These policies and standards spell out your responsibilities to the company and the company’s responsibility and obligati

DUDEWICZ v NORRIS SCHMID, INC Docket No. 93029. Argued March 31, 1993 (Calendar No. 3 April). Decided July 27, 1993. Michael L. Dudewicz brought an action in the Saginaw Circuit Court against Norris Schmid, Inc., alleging that the termination of his employment because he refused to. drop criminal assault and battery charges against a fellow employee that arose out of a dispute over the handling of Norris Schmid’s business violated the Whistleblowers’ Protection Act as well as public policy. The court, Robert S. Gilbert, J., granted summary disposition for the defendant with respect to the public policy claim and entered a directed verdict for the defendant with respect to the Whistleblowers’ Protection Act claim. The Court of Appeals, Cavanagh, P.J., and D. E. Holbrook, Jr., and Cynar, JJ., reversed, finding that retaliatory discharge violates the public policy of encouraging victims of crime to file criminal complaints, and that the Whistleblowers’ Protection Act applies to violations by fellow employees, as well as employers (Docket No. 126212). The defendant appeals. In an opinion by Justice Brickley, joined by Chief Justice Cavanagh, and Justices Levin, Riley, Griffin, and Mallett, the Supreme Court held: The Whistleblowers’ Protection Act applies to an employee who reports a violation of a law arising out of a dispute over the handling of company business occurring during business hours, regardless of whether the criminal actor is the employer or a fellow employee. 1. The Whistleblowers’ Protection Act applies to the discharge of employees who report a violation or a suspected violation of the law either by their employers or fellow employees. Reporting a fellow employee for violating the Criminal Code because of a dispute over the handling of company business is not so different from traditional notions of whistleblowing closely connected with employment, such as Health Code and safety violations or illegal labor practices. Nothing in the wpa or its legislative analysis limits protection only to those employees who report violations of law by their employer; rather, the explicit language of the analysis and the broad scope of the statute strongly suggest that the wpa was intended to protect employees who report violations by an employer or fellow employees. Remedial statutes, such as the wpa, are to be liberally construed in favor of the persons intended to be benefited. The trial court erred in directing a verdict on this issue. References Am Jur 2d, Wrongful Discharge § 57. See ALR Index under Whistleblowers. 2. Remedies provided by statute for violation of a right having no common-law counterpart are exclusive, not cumulative. At common law there was no right to be free from being fired for reporting an employer’s violation of the law. Thus, the remedies provided by the wpa are exclusive, not cumulative. The specific prohibition against retaliatory discharge is determinative of the viability of a public policy claim. A public policy claim is sustainable only where there is no applicable statutory prohibition against discharge in retaliation for the conduct at issue. Because the wpa provides relief for reporting illegal activity by a fellow employee, the public policy claim is preempted. Affirmed in part and reversed in part. Justice Boyle, dissenting, stated that the employer’s demand that the employee withdraw the criminal complaint against his co-worker or be fired, rather, was an alleged violation of a clearly established public policy of this state. The plaintiff did not engage in activity protected under the Whistleblowers’ Protection Act when he filed a criminal complaint against a coworker. The wpa was enacted to protect employees who report corrupt or illegal business practices or violations of law by an employer or co-worker that result from the conduct of the employer’s business. 192 Mich App 247; 480 NW2d 612 (1991) affirmed in part and reversed in part. Labor Relations — Whistleblowers’ Protection Act — Violations by Fellow Employees. The Whistleblowers’ Protection Act applies to an employee who reports a violation of a law arising out of a dispute over the handling of company business occurring during business hours, regardless of whether the criminal actor is the employer or a fellow employee (MSA 15.361 et seq.; MSA 17.428[1] et seq.). Jensen, Smith & Gilbert, P.C. (by Peter C. Jensen), for the plaintiff. Smith, Bovill, Fisher, Meyer & Borchard, P.C. (by Robert A. Jarema), for the defendant. Amicus Curiae: Mark Brewer (Paul Denenfeld, of counsel), for ACLU Fund of Michigan. Brickley, J. The issue before us is whether the Whistleblowers’ Protection Act (wpa) prohibits an employer from discharging an employee who files a criminal complaint against a fellow employee for an assault that arose out of a dispute over the handling of the employer’s business, during business hours, and at the site of employment. We are also asked to decide whether the public policy exception to the employment at will doctrine applies to the facts of this case. In a case of first impression for this Court, we find that the wpa applies and prohibits discharge under these facts. We also find that the wpa preempts any public policy claim arising out of the same facts. While summary disposition for the defendant on the public policy claim was proper, the trial court improperly granted a directed verdict for the defendant on the wpa claim. Therefore, the judgment for the directed verdict is reversed, and the case is remanded for trial of the wpa claim. I Plaintiff, Michael L. Dudewicz, worked as a parts manager for an automobile dealership, Norris Schmid, Inc., defendant. On the morning of November 4, 1987, Dudewicz attempted to obtain warranty service for a customer who, as a wholesale buyer, did. a lot of business with Norris Schmid. To get better service for the customer, Dudewicz enlisted the aid of one of the dealership’s owners, Samuel Norris. Together, the two men sought the assistance of the service manager, Dick Boehm, who agreed to do the work for the customer under warranty. After Norris. left the service area, Dudewicz alleged that the service manager reached over the service counter and grabbed Dudewicz by the collar and tried to pull him across the. counter. Dudewicz alleged that Boehm told him never to bring the owner into the service area again. During the course of this fracas, Dudewicz alleged that the service manager tore buttons off his shirt, broke a gold chain from around his neck, and left fingerprints on his neck. That same day, Dudewicz told Norris Schmid’s new car sales manager about the incident and also filed criminal charges with the Midland County Prosecutor, alleging assault and battery. Dudewicz testified that upon entering work the morning of December 1, 1987, he was called to Norris’ office and told to drop the criminal charges against the service manager or be fired. He was also told to leave the dealership. Dudewicz left the premises because he believed he had been fired; he also believed he could regain his job if he agreed to drop the criminal charges. Dudewicz then contacted an attorney who counseled him to return to work. When Dudewicz did return to the dealership on December 3, 1987, Norris told him the dealership considered him to have quit and that he had to leave the premises. Dudewicz argued that he had not quit, but had, in fact, been fired. Further, Dudewicz refused to leave unless provided with a letter of termination. Norris refused to comply with this request and called the police to escort Dudewicz from the premises. Subsequently, Dudewicz filed a two-count complaint, alleging that his termination violated Michigan’s Whistleblowers’ Protection Act as well as public policy. Following discovery, Norris Schmid sought and received summary disposition under MCR 2.116(C)(8), on the ground that the public policy argument failed to state a claim upon which relief could be granted. Then, after hearing proofs on the remaining count, Norris Schmid sought and received a directed verdict, under MCR 2.515, on the ground that Dudewicz failed to show that it had violated the Whistleblowers’ Protection Act. The trial court denied a motion to reconsider this verdict. Dudewicz appealed as of right in the Court of Appeals, which reversed. 192 Mich App 247; 480 NW2d 612 (1991). The Court first addressed the public policy claim and found that Dudewicz had alleged an implied cause of action for retaliatory discharge because " 'the reason for a discharge was the employee’s exercise of a right conferred by a well-established legislative enactment.’ ” Id. at 251, quoting Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 696; 316 NW2d 710 (1982). On the basis of federal precedent, Pratt v Brown Machine Co, 855 F2d 1225 (CA 6, 1988), the Court was satisfied that the ability to file a criminal complaint as the victim of a crime was a right conferred by a "well-established legislative enactment.” Therefore, Norris Schmid’s discharge violated a public policy that encouraged victims of crime to file complaints. Otherwise, the Court believed, "[t]o allow the discharge of an at-will employee because of a choice to file a criminal complaint against a fellow employee would force a choice between justice and livelihood. It is the public policy of this state to protect its citizens from such an onerous choice.” 192 Mich App 253. The Court also noted that, as Norris Schmid argued, Dudewicz might have had to choose the wpa as his exclusive remedy over his public policy claim. Because, however, the trial court "expressly stated that it had not granted the motion for summary disposition on the basis that the [wpa] provides the exclusive remedy,” the Court ruled that "consideration of the applicability of the public policy exception to the facts of this case [was] still proper . . . .” 192 Mich App 253. Next the Court considered Dudewicz’ claim that his discharge was in violation of the wpa because he was fired for filing a criminal complaint, alleging that he had been assaulted and battered by a fellow employee. In ruling that the wpa prohibited such conduct, the Court expressly rejected an earlier Court of Appeals holding, Dickson v Oakland Univ, 171 Mich App 68; 429 NW2d 640 (1988), that required, as an element of the applicability of the wpa, that the person accused of breaking the law be the employer. The Court found that the language of the act itself and the accompanying legislative analysis contained no such limitation and, in fact, indicated that violations by fellow employees, as well as by employers, were to be considered within the scope of the wpa. The Court therefore concluded that the trial judge erred in granting both a directed verdict and summary disposition for Norris Schmid. II In deciding whether the trial court erred in directing a verdict for the defendant, we must first decide whether the wpa was intended to protect employees who are fired for reporting violations of the law by fellow employees. Norris Schmid contends that the wpa protects only those employees who are fired for reporting their employers’ violations of law. There is, however, no such limitation in either the express language of the wpa or the analysis of the House Bill that spawned the wpa. Section 2 of the wpa provides in full: An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action. [MCL 15.362; MSA 17.428(2).[] A plain reading of this provision reveals that protection is not limited to employee reports of violations by employers. On its face, the provision only seems to apply to the discharge of an employee who "reports ... a violation or a suspected violation of a law . . . .” Id. Moreover, the legislative analysis of the wpa supports the conclusion that its provisions protect employees who report violations of law by either their employers or fellow employees. The analysis recognizes the problem the wpa was designed to alleviate as the inability to combat corruption or criminally irresponsible behavior in the conduct of government or large businesses. House Legislative Analysis, HB 5088, 5089 (February 5, 1981). The analysis goes on to say that "[t]he people best placed to observe and report violations are the employees of government and business, but employees are naturally reluctant to inform on an employer or a colleague.” Id. (emphasis added). It appears that, at the time the bill was considered, the Legislature intended the protection to apply to employee reports of any and all violations of law by either employers or fellow employees. In any event, we find that the activity at issue here, reporting a fellow employee’s violation of the state’s Criminal Code because of a dispute over the handling of company business, is not so different from traditional notions of whistleblowing. Typically, the activity involves the violation of laws more closely connected with the employment setting, such as Health Code and safety violations, Tyrna v Adamo, Inc, 159 Mich App 592; 407 NW2d 47 (1987), or illegal labor practices, Hopkins v Midland, 158 Mich App 361; 404 NW2d 744 (1987), but there is no limitation in the statute to these types of activities. Moreover, the illegal activity is typically engaged in by an "employee,” even if that employee also happens to own the company. See Tyrna, supra. On the basis of these observations, we are satisfied that the events and individuals involved in this case are consistent with those activities and individuals contemplated by the WPA. In deciding that the wpa did not apply to the facts of this case, the trial judge relied upon a relatively recent Court of Appeals decision, Dickson v Oakland Univ, supra. The trial judge believed himself to be bound by the Dickson Court’s ruling that the wpa applied only to employees fired for reporting violations of law by their employers. We agree with the Court of Appeals, that there is no such limitation on the applicability of the wpa. The plaintiff in Dickson worked as a police officer for the defendant’s department of public safety. 171 Mich App 69. Before his dismissal, the plaintiff alleged that he was repeatedly criticized for enforcing the law against university students. Id. After he was allegedly assaulted by one student, the plaintiff requested that the defendant seek an arrest warrant against that student. Id. The defendant refused, and the plaintiff was subsequently discharged. Id. at 69-70. The trial court and Court of Appeals rejected the plaintiff’s wpa claim, however, because the plaintiff only reported the wrongdoing of students to the defendant. Id. at 71. Nothing in the plaintiff’s complaint alleged that the defendant-employer violated any law or that the plaintiff was fired for reporting the defendant’s violation of law to a higher authority. Id. In support for limiting the wpa to reports of violations of law by employers, the Dickson Court quoted, inter alia, the same portion of the legislative analysis as quoted above. See 171 Mich App 70-71. However, as stated above, nothing in either the wpa itself or its legislative analysis limits protection only to those employees who report violations of law by their employer. On the contrary, the explicit language of the analysis and the broad scope of the statute strongly suggest that the wpa was intended to protect employees who report violations by either employers or fellow employees. Indeed, such an interpretation is also supported by the rule of statutory construction that remedial statutes, such as the wpa, are to be liberally construed in favor of the persons intended to be benefited. See Bierbusse v Farmers Ins Group, 84 Mich App 34, 37; 269 NW2d 297 (1978); Holmes v Haughton Elevator Co, 75 Mich App 198, 200; 255 NW2d 6 (1977), aff’d 404 Mich 36; 272 NW2d 550 (1978). Simply stated, the Dickson Court erred in limiting the applicability of the wpa to employee reports of violations of law by employers. Admittedly, 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. See Tyrna, 159 Mich App 599 (the Court ruled that the wpa "provides a remedy to an employee terminated for reporting to any public body a violation of any law or regulation of this state, a political subdivision, or the United States”) (emphasis added). However, this is not the case and these are not the facts to test the outer limits of this rather broad statute. In concluding that it was intended to bar a discharge of an employee for reporting a crime by a fellow employee under the circumstances of this case does not begin to test those limits. In saying that, we note that not only was this a crime alleged to have been committed by a fellow employee, but the alleged crime arose out of a work incident at the work site. It is, therefore, very much within the employer-employee setting. Accordingly, we find that the trial court erred in granting a directed verdict on this issue. III The Court of Appeals reversed the trial court’s grant of summary disposition on the public policy claim because the trial court did not dismiss the claim on the basis of the fact that the wpa provided an exclusive remedy. While acknowledging the fact that the wpa was probably exclusive, the Court found that, because the trial court did not discuss this issue, it could not do so either. The Court erred in its rationale, however. Because the parties preserved the issue of public policy preemption and because the trial court failed to deal with the issue, the Court of Appeals was not precluded from dealing with the question whether the public policy claim was preempted by the wpa claim. The Court of Appeals, should have considered this issue and should have found that any public policy claim was preempted by the application of the wpa. As a general rule, the remedies provided by statute for violation of a right having no common-law counterpart are exclusive, not cumulative. Pompey v General Motors Corp, 385 Mich 537, 552-553; 189 NW2d 243 (1971). At common law, there was no right to be free from being fired for reporting an employer’s violation of the law. Covell v Spengler, 141 Mich App 76, 83; 366 NW2d 76 (1985). The remedies provided by the wpa, therefore, are exclusive and not cumulative. Shuttleworth v Riverside Hosp, 191 Mich App 25, 27; 477 NW2d 453 (1991). In Suchodolski v Michigan Consolidated Gas Co, supra, this Court recognized that there was an exception to the general rule that either party to an employment at will contract could terminate the agreement at any time for any or no reason. The exception is based on the principle that "some grounds for discharging an employee are so contrary to public policy as to be actionable.” Id. at 695. We also found that these restrictions on an employer’s ability to terminate an employment at will agreement are most often found in explicit legislation. Id. The wpa is such legislation. Id. The existence of the specific prohibition against retaliatory discharge in the wpa is determinative of the viability of a public policy claim. In those cases in which Michigan courts have sustained a public policy claim, the statutes involved did not specifically proscribe retaliatory discharge. Whe

WILLIAM DWIGHT BOESCHE, Plaintiff v. RALEIGH-DURHAM AIRPORT AUTHORITY, et al., Defendants No. 9215SC23 (Filed 20 July 1993) 1. Labor and Employment § 66 (NCI4th); Constitutional Law § 85 (NCI4th) — employer’s drug testing policy — plaintiff in position to affect public safety or safety of others — constitutional policy The drug testing policy implemented by defendant airport authority was constitutional where plaintiff was authorized to drive a vehicle on the apron of the flight area of Raleigh-Durham airport; he was in a position in which public safety or the safety of others was an overriding concern; and there thus existed a legitimate reason for the implementation of a drug testing program. Am Jur 2d, Constitutional Law §§ 557-573; Master and Servant §§ 49-59. 2. Labor and Employment § 63 (NCI4th)— wrongful discharge — bad faith exception not recognized North Carolina does not recognize an independent tort claim for wrongful discharge under the bad faith exception. Am Jur 2d, Master and Servant §§ 27-33. 3. Labor and Employment § 66 (NCI4th); Constitutional Law § 85 (NCI4th)— random drug testing — testing procedure constitutional — no testing performed on plaintiff — dismissal of constitutional claims proper The trial court properly dismissed plaintiffs constitutional claims against defendant airport authority’s random drug testing procedure policy that afforded plaintiff no prior notice of testing or test procedure, that included no guarantee of confidentiality of test results or immunity from criminal prosecution in the case of a positive result, and that led to plaintiffs termination with no opportunity for a hearing before an impartial tribunal, since (1) defendant’s random drug testing procedure was constitutional, and (2) plaintiff never participated in the testing procedure which effectively precluded any possible constitutional violation. Am Jur 2d, Constitutional Law §§ 557-573; Master and Servant §§ 49-59. * Appeal by plaintiff from order entered 4 November 1991 by Judge Robert H. Hobgood in Orange County Superior Court. Heard in the Court of Appeals 9 December 1992. Loftin and Loftin, by John D. Loftin, for plaintiff-appellant. Walter H. Bennett, Jr. for plaintiff-appellant. Newsom, Graham, Hedrick, Bryson & Kennon, by Lewis A. Cheek, Richard S. Boulden and John R. Long, for defendants-appellees. JOHNSON, Judge. Plaintiff, William D. Boesche, was employed by the defendant, Raleigh-Durham Airport Authority, as a Maintenance Mechanic II on or about 30 August 1987. Plaintiffs employment duties generally consisted of performing preventative maintenance and repairs on airport terminal air conditioning and ventilating and heating systems. Throughout his employment tenure, plaintiff had performed his job duties competently and satisfactorily. Based on this satisfactory performance, plaintiff had received two merit pay raises. On 21 February 1990, plaintiff was approached by defendant’s Airport Maintenance Manager, Mr. Owens, who asked plaintiff to accompany him to Park Medical Center in Wake County to submit to a urine drug test. Mr. Owens did not express that plaintiff was suspected of any individualized wrongdoing. Plaintiff refused to submit to the test. Plaintiff demanded to see defendant Airport Personnel Manager Farrar-Luten who told plaintiff that the new proposed testing policy was implemented pursuant to a Federal Aviation Administration directive requiring that all employees who drive a motor vehicle in the airside of the airport must be tested. Plaintiff asked to see the directive, but Farrar-Luten refused to show him the directive. Plaintiff then saw defendant Airport Director Brantley who told plaintiff that plaintiff must submit to a drug test because that was the airport’s policy. Upon plaintiff’s refusal to submit to the drug test, he was discharged. On 26 April 1991, plaintiff filed a complaint in this action alleging the aforesaid facts and claiming that the actions of the defendants violated his rights to be free from illegal searches and invasion of privacy under the Fourth Amendment to the United States Constitution and Article I, Sections 20, 35 and 36 of the North Carolina Constitution; his rights to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Sections 1, 19, 35 and 36 of the North Carolina Constitution; his right not to be discharged from employment in bad faith or for reasons contravening public policy under the common law of North Carolina; and for the common law tort of intentional/negligent infliction of emotional distress. Defendants moved to dismiss the complaint as amended under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure on the grounds that it failed to state a claim upon which relief could be granted. On 4 November 1991, the motion to dismiss was granted in its entirety. Plaintiff appealed. By plaintiff’s first assignment of error, plaintiff contends that the trial court committed reversible error by dismissing plaintiffs claim for wrongful discharge of a public employee under the public policy and bad faith exceptions to the employment at will doctrine, where plaintiff was discharged for his refusal to waive his rights to due process of law, privacy, and freedom from unreasonable search and seizure of his person by submitting to an unconstitutional drug test. We disagree. On review of a motion to dismiss for failure to state a claim upon which relief can be granted, Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, all allegations of fact are taken as true but conclusions of law are not. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). The trial court’s dismissal of plaintiff’s complaint under Rule 12(b)(6) is proper and must be sustained when (1) the complaint on its face reveals that no law supports plaintiff’s claim; (2) the complaint on its face reveals the absence of fact sufficient to make a good claim; and (3) some facts disclosed in the complaint necessarily defeat the plaintiff’s claim. Jackson v. Bumgardner, 318 N.C. 172, 347 S.E.2d 743 (1986). With this in mind, we now address plaintiff’s claim that by his discharge, defendants violated North Carolina public policy. Generally, North Carolina adheres to the employment-at-will doctrine which holds that absent a contract of employment for a definite term, the employee-employer relationship can be terminated by either party at any time for any reason or no reason. Salt v. Applied Analytical, Inc., 104 N.C. App. 652, 655, 412 S.E.2d 97, 99 (1991); Burgess v. Your House of Raleigh, 326 N.C. 205, 209, 388 S.E.2d 134, 137 (1990); Still v. Lance, 279 N.C. 254, 259, 182 S.E.2d 403, 406 (1971). There have been several exceptions carved out of the employment-at-will rule. The legislature has enacted certain statutory exceptions that place certain limitations on this rule, i.e., prohibiting discharge in retaliation for filing a workers’ compensation claim, North Carolina General Statutes § 97-6.1 (1983); prohibiting discharge for engaging in labor disputes, North Carolina General Statutes § 95-83 (1985); and prohibiting discharge for filing Occupational Safety and Health Act claims, North Carolina General Statutes § 95-130(8) (1985). North Carolina Courts have also placed some limitations on the doctrine by the creation of two public policy exceptions. The first public policy exception was created in Sides v. Duke University, 74 N.C. App. 331, 328 S.E.2d 818, disc. review denied, 314 N.C. 331, 334 S.E.2d 13 (1985). In Sides, the Court was reviewing the dismissal of plaintiff’s complaint for failure to state a claim upon which relief could be granted. The plaintiff in Sides alleged that she was discharged for her refusal to testify untruthfully or incompletely in a court action against her employer. In determining that the plaintiff’s complaint stated a cause of action under a public policy exception, the Sides Court stated: [W]hile there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy. A different interpretation would encourage and sanction lawlessness, which law by its very nature is designed to discourage and prevent. Id. at 342, 328 S.E.2d at 826. A second public policy exception was created in Coman v. Thomas Manufacturing Co., 325 N.C. 172, 381 S.E.2d 445 (1989). In Coman, an employee was discharged for refusing to violate government highway safety rules. The Coman Court held that the defendant’s discharge of plaintiff was in violation of the public policy of North Carolina. Although these two cases seem to have expanded the employment-at-will doctrine, subsequent case law has made it very clear that the decisions in Sides and Coman have only narrowly eroded the employment-at-will doctrine. Burgess, 326 N.C. at 209-10, 388 S.E.2d at 137. Plaintiff in the case sub judice, argues that this Court should create a third public policy exception based on an employee’s exercise of his legal rights and privileges. Plaintiff acknowledges his employment-at-will status but argues that this should not require him to waive his basic constitutional right. Plaintiff further argues that he was terminated when he asserted his basic Fourth Amendment right to be free from unreasonable searches and seizure, invasion of privacy and deprivation of due process. In order to determine whether a third public policy exception should be adopted, we must first determine whether defendant’s random drug testing program was unconstitutional. The Fourth Amendment of the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violatedf.]” The essential purpose of the Fourth Amendment is to “impose a standard of ‘reasonableness’ upon the exercise of discretion by government officials ... in order to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Delaware v. Prouse, 440 U.S. 648, 653-54, 59 L.Ed.2d 660, 667 (1979); Camara v. Municipal Court, 387 U.S. 523, 528, 18 L.Ed.2d 930, 935 (1967). Courts have clearly established that individuals retain an expectation of privacy and a right to be free from government intrusion in the integrity of their own bodies. United States v. Ramsey, 431 U.S. 606, 52 L.Ed.2d 617 (1977). With this premise in mind, Courts have determined that governmental taking of a urine specimen constitutes a search and seizure within the meaning of the Fourth Amendment. Skinner v. Railway, 489 U.S. 602, 103 L.Ed.2d 639 (1989); National Treasury Employees Union v. Von Raab, 816 F.2d 170 (1987). The Supreme Court, however, established that random drug testing of urine in the workplace can be constitutional if the reasonableness of the search is judged by balancing its intrusion on the individual’s Fourth Amendment interests against the promotion of legitimate governmental interests. Skinner, 489 U.S. 602, 103 L.Ed.2d 639. In Skinner, the Court allowed random drug testing where the individual tested was engaged in activity which involved either public safety or safety concerns for others because it was a legitimate governmental interest. Id. The Court in Twigg v. Hercules Corp., 185 W.Va. 155, 406 S.E.2d 52 (1990) stated: Where a business is engaged in an activity which involves either public safety or safety concerns for others, we find that there exists a legitimate reason for the implementation of a drug testing program[.] . . . However, there must be a showing by the employer that the employees required to undergo such testing have responsibilities or duties which are connected to the safety concerns of others. Twigg, 185 W.Va. at 159, 406 S.E.2d at 56. Applying this standard to the facts in the case sub judice, the record showed that plaintiff was in a position in which public safety or the safety of others was an overriding concern. Plaintiffs duties consisted of generally performing preventative maintenance and repairs on airport terminal air conditioning and ventilating and heating systems, but plaintiff also had security clearance to drive a motor vehicle 10 M.P.H. in a designated area on the apron of the flight area in order to get access to the systems located on the outside of the building. We find that plaintiff, if drug impaired while operating a motor vehicle on the apron of the flight area, could increase the risk of harm to others. Accordingly, we find that the drug testing policy implemented by defendants was constitutional and therefore, plaintiff does not state a cognizable claim for relief. Plaintiff next argues that the trial court committed reversible error when it held that plaintiff failed to state a cognizable claim under the bad faith exception to the employment-at-will doctrine. This argument is meritless. The Court in Coman, 325 N.C. 172, 381 S.E.2d 445, noted that North Carolina had not recognized a bad faith exception to the employment-at-will doctrine but stated that other courts in other states “have recognized wrongful discharge theories characterized either as the bad faith exception to the at-will doctrine or under the implied covenant of good faith and fair dealing.” Id. at 177, 381 S.E.2d at 448 (citations omitted). In addition, the Coman Court stated that “[b]ad faith conduct should not be tolerated in employment relations, just as it is not accepted in other commercial relationships.” Coman, 325 N.C. at 177, 381 S.E.2d at 448. However, the statements addressing a bad faith exception were not relied upon in Coman's ultimate holding that plaintiff had stated a valid claim for wrongful discharge based on the public policy exception to the employment-at-will doctrine. Most Courts interpreting Coman have recognized that the discussion in Coman of a bad faith discharge was dicta, but have come to different conclusions. English v. Gen. Elec. Co., 765 F. Supp. 293 (E.D.N.C. 1991) (disallowing tort claim for bad faith exception); Haburjak v. Prudential Bache Sec., Inc., 759 F. Supp. 293 (W.D.N.C. 1991) (disallowing tort claim for bad faith exception); Iturbe v. Wandel & Goltermann, Technologies, Inc., 774 F. Supp. 959 (M.D.N.C. 1991) (allowing claim for bad faith discharge). However, two recent cases, Salt, 104 N.C. App. 652, 412 S.E.2d 97 and Amos v. Oakdale Knitting Co., 331 N.C. 348, 416 S.E.2d 166 (1992), have clarified North Carolina’s position on the issue of a bad faith exception. The Salt Court and the Amos Court both held that North Carolina does not recognize an independent tort claim for wrongful discharge under the bad faith exception. We therefore find plaintiff has not stated a cognizable claim. By plaintiff’s second assignment of error, plaintiff contends that he is not subject to random drug testing because he is neither (1) a sensitive public employee because of either safety or security reasons or (2) an individual suspected of drug use. A discussion of this assignment of error was encompassed in the first argument where we determined that plaintiff was indeed a sensitive public employee because of safety concerns. As such, plaintiff is subject to random drug testing as a legitimate governmental interest. We do not deem it necessary to further address this issue. By plaintiff’s third assignment of error, plaintiff contends that the trial court committed reversible error in dismissing plaintiff’s constitutional claims against defendant’s random drug testing procedure policy that afforded plaintiff no prior notice of testing or test procedure, that included no guarantee of confidentiality of test results or immunity from criminal prosecution in the case of a positive result, and that led to plaintiff’s termination with no opportunity for a hearing before an impartial tribunal. We disagree. After a careful review of the record, we find no violation of plaintiff’s constitutional rights. The arguments raised in this assignment of error are moot in that (1) we found that the defendants’ random drug testing procedure was constitutional and (2) plaintiff never participated in the testing procedure which effectively precluded any possible constitutional violation. As such, plaintiff has failed to raise a cognizable claim. This assignment of error is overruled. By plaintiff’s fourth assignment of error, plaintiff contends that the trial court committed reversible error when it dismissed plaintiff’s claims in his complaint which were based upon defendants’ denial of plaintiff’s right of substantive due process rights. We disagree. “An employment discharge violates substantive due process rights if it is based upon constitutionally impermissible grounds, regardless of whether the employee had a property interest in continued employment.” Privette v. University of North Carolina, 96 N.C. App. 124, 135, 385 S.E.2d 185, 190 (1989). Plaintiff alleged that his substantive due process rights were violated because he was forced to elect between exercise of a constitutional right and the privilege of government employment. As we have made an earlier determination that plaintiff’s constitutional rights were not violated, we find no violation of substantive due process rights. In plaintiff’s fifth assignment of error he argues that the trial court committed reversible error when it dismissed plaintiff’s claims in his complaint which were based upon defendants’ denial of plaintiff’s right to procedural due process. In order to sufficiently state a claim of denial of due process rights, plaintiff must reveal “a colorable claim that a ‘property’ or ‘liberty’ interest was violated by the procedures attendant to plaintiff’s discharge.” Presnell v. Pell, 298 N.C. 715, 723, 260 S.E.2d 611, 616 (1979). In the present case, there has been no dispute and the record clearly reveals that plaintiff is an employee-at-will. “At-will employees have no property interests in their employment cognizable under the due process clause.” Privette, 96 N.C. App. at 137, 385 S.E.2d at 192. This assignment of error is overruled. We have carefully reviewed assignments of error seven and eight and find them to be meritless. The trial court’s decision is affirmed. Chief Judge ARNOLD and Judge ORR concur.

KAUFMAN & PAYTON, PC v NIKKILA Docket No. 133012. Submitted December 3, 1992, at Detroit. Decided June 21, 1993, at 9:25 a.m. The law firm of Kaufman & Payton, P.C., brought an action in the Oakland Circuit Court against Catherine Nikkila, its former billing supervisor, alleging conversion and misappropriation of its files and records. Nikkila filed a counterclaim, alleging retaliatory constructive discharge in violation of the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq., intentional infliction of emotional distress, and defamation. The court, Alice L. Gilbert, J., summarily dismissed the claim brought under the Whistleblowers’ Protection Act, ruling that there existed no genuine issue with respect to the fact that Nikkila or anyone acting on her behalf had not threatened to report the law firm to the Attorney Grievance Commission for billing irregularities before she tendered the resignation she claimed was a constructive discharge in retaliation for her threatened action. Nikkila appealed. The Court of Appeals held: The trial court correctly concluded that an affidavit by Nikki-la’s attorney, in which the attorney contradicted his earlier deposition testimony that there had been no threat of a report of the law firm’s billing practices to the Attorney Grievance Commission before Nikkila’s resignation, was insufficient to create a genuine issue of fact. A party or its attorney may not contrive factual issues merely by asserting the contrary in an affidavit after giving damaging testimony in a deposition. Affirmed. Connor, J., dissenting, stated that discharge in retaliation for a feared imminent report to authorities, as opposed to actual knowledge of an imminent report, is sufficient for application of the Whistleblowers’ Protection Act, that the affidavit of Nikkila’s attorney did not contradict his deposition testimony, and that, if the affidavit and deposition can be considered contradictory, the benefit of reasonable doubt concerning the factual question raised by the contradiction should be given to Nikkila and the question decided at trial. Hyman & Lippitt (by Norman L. Lippitt and H. Joel Newman), for the plaintiff. Temple & Cutler (by Donald M. Cutler), for the defendant. Before: Corrigan, P.J., and Weaver and Con-nor, JJ. Corrigan, P.J. Catherine Nikkila appeals as of right the trial court’s summary dismissal of her counterclaim against the law firm of Kaufman & Payton, P.C., under the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq. We affirm. The circuit court properly granted partial summary disposition pursuant to MCR 2.116(0(10). Nikkila did not raise a genuine issue of material fact concerning her Whistleblowers’ Protection Act claim. The circuit court properly found, considering all the evidence before it, that Nikkila could not prove that either she or her attorney had threatened to report the law firm to the Attorney Grievance Commission before her resignation from the firm. Catherine Nikkila, the billing supervisor at Kaufman & Payton for IV2 years, was scheduled to testify at a deposition in the law firm’s suit for collection of legal fees against a client in February 1989. As she prepared for her testimony with the law firm’s counsel, she became worried about the legality of certain billing procedures that she had executed. She decided to consult outside counsel, Ronald Prebenda. Prebenda advised Nikkila only about the potential criminal aspects of her conduct. Prebenda thereafter sent two letters to Kaufman & Payton on Nikkila’s behalf. The first, dated March 15, 1989, questioned the law firm’s billing practices and sought certain assurances from the firm about Nikkila’s future duties. The second, dated March 29, 1989, complained of the lack of response to the March 15 letter and prescribed unilateral changes in Nikkila’s billing duties. Alan Kaufman, managing partner of the firm, never formally responded to either letter. The evidence on this record is disputed concerning whether Nikkila was reassigned to different duties; in any event, she continued to receive the same salary. On April 19, 1989, Nikkila tendered her letter of resignation to the law firm. Four days later, on April 23, 1989, she sent a request for investigation to the Attorney Grievance Commission (agc) and followed up on May 4, 1989, with a formal complaint. Prebenda assisted her in drafting the formal complaint to the agc. On May 22, 1989, Kaufman & Payton sued Nikkila for conversion and misappropriation of the firm’s files and records. Nikkila answered and also filed a countercomplaint against the law firm, alleging constructive termination, retaliatory discharge, discharge in violation of the Whistleblowers’ Protection Act, intentional infliction of mental distress, and defamation. She also filed a separate complaint against Alan Kaufman, alleging essentially the same claims. The Kaufman proceedings were consolidated with this case in the circuit court. However, Nikkila did not file a claim of appeal in the case against Kaufman. This case, accordingly, relates solely to the circuit court’s grant of partial summary disposition of Nikkila’s countercomplaint against Kaufman & Payton concerning the Whistleblowers’ Protection Act claim. The theory alleged in Nikkila’s countercomplaint was that Kaufman & Payton constructively discharged her because she had reported or was about to report an alleged violation of law, rule, or regulation. The central issue is whether Nikkila or anyone acting on her behalf, threatened, mentioned, or otherwise indicated that Nikkila might report Kaufman & Pay-ton or any of its attorneys to any agency before her April 19 resignation. In deciding that Nikkila had not made out a genuine issue of material fact with regard to this question, the circuit court analyzed the evidence as follows: First, Nikkila testified that she could not remember speaking to her employer about threatened action. (Nikkila deposition, pp 109-111). Second, Nikkila’s husband and attorney Prebenda both testified that they did not know about the grievance request until after Nikkila filed it after she left her employment. (Jeffrey Nikkila deposition, pp 41-42; Prebenda deposition, p 92). Next, the deposition testimony of Defendant Alan Kaufman referred to threats made by Prebenda, not Nikkila. (Kaufman deposition, p 93). Finally, the court notes that the affidavit of Prebenda in support of Nikkila’s claim, which states that Prebenda advised Irwin Alterman of Nikkila’s doings prior to her resignation, wholly contradicts Prebenda’s deposition testimony that he did not notify or threaten anyone on Nikkila’s behalf prior to her resignation. The circuit court did not err in disregarding Prebenda’s affidavit. It is undisputed in the record below that an affidavit dated December 1989 was not filed in this cause until after defendant moved for summary disposition. Prebenda’s later-filed affidavit contradicted his deposition testimony in relevant details. During his deposition, Prebenda testified: Q. Did you assist Ms. Nikkila in filing a grievance against Alan Kaufman? A. Yes, I did. Q. When did you determine that you would file such a grievance? A. She told me — first of all, she filed a grievance without my knowledge. She had filed some preliminary documents of some kind that to this day I have never seen. Q. Did you discuss doing so with her prior to that time? A. I have no present — prior to what time? Q. Prior to filing this document to the grievance board to which you were unaware. A. My understanding was that she had filed something with the grievance commission that I had no knowledge of and there was no discussion of to the best of my knowledge and then at that time she came to me and asked me if I would assist her in filing a complaint, and I read in the rules, and the rules that you must assist a person that request that you file a grievance and I complied with the rule. Q. Do you recall approximately when you assisted her filing this more formal complaint against Mr. Kaufman? A. No, I don’t recall. I assisted her as to form only. Earlier in that deposition, Mr. Prebenda had stated: Q. Do you recall ever telling anyone that you on behalf of Ms. Nikkila intended to file a State Bar grievance against Mr. Kaufman or his law firm? A. No. I have no recollection of telling him that. No. Q. Tell Mr. Kaufman that or anyone else? A. I never talked to Alan Kaufman after I wrote that letter, he chose never to face me. [Emphasis supplied.] The lower court also considered Alan Kaufman’s affidavit, in which he amplified his deposition testimony. In it, he referred to threats by Prebenda after Nikkila resigned that he would file a State Bar Grievance on his own behalf and not as a representative of Catherine Nikkila. Further, Kaufman averred that at no time before Nikkila left her position did Prebenda, Nikkila, or anyone else state that Nikkila was contemplating filing a grievance with the State Bar regarding Kaufman or his firm. Similarly, the law firm administrator’s affidavit averred that she had no conversation regarding this subject with Prebenda before Nikki-la’s departure from the firm. These assertions are all fully consistent with Prebenda’s deposition testimony on these points and further demonstrate the absence of a genuine issue of material fact. Although Prebenda’s deposition testimony in some respects displayed a failure of his memory, on the precise points at issue, his deposition testimony was intelligent, clear, and unequivocal. By contrast, Prebenda’s affidavit averred that he had informed Irwin Alterman, then a partner in the firm, before Nikkila’s resignation that Nikkila had been advised to go to the Attorney Grievance Commission and intended to do so. The circuit court appropriately disregarded Prebenda’s contradictory, later-filed affidavit in deciding whether a genuine issue of material fact existed. In Downer v Detroit Receiving Hosp, 191 Mich App 232; 477 NW2d 146 (1991), this Court observed that the plaintiffs affidavit contradicted testimony she had previously given in a deposition. Downer recognized the principle that parties may not contrive factual issues merely by asserting the contrary in an affidavit after having given damaging testimony in a deposition, and held that a trial court that disregards such testimony does not err. The principle, as discussed in Griffith v Brant, 177 Mich App 583; 442 NW2d 652 (1989), and Peterfish v Frantz, 168 Mich App 43; 424 NW2d 25 (1988), is not limited to parties who make contradictory assertions. The principle that contradictory affidavits should be disregarded stands irrespective of the identity of the maker of the conflicting statements. Even if the Griffith-Peterñsh-Downer principle is somehow limited, a party is bound by representative admissions of counsel. Neither a party nor that party’s legal representative may contrive factual issues by relying on an affidavit when unfavorable deposition testimony shows that the assertion in the affidavit is unfounded. Even if Prebenda’s contradictory assertions would somehow create a genuine issue of material fact as to Kaufman & Payton, they are totally insufficient to make a case against Alan Kaufman personally. At best, Prebenda told Irwin Alterman, a partner in Kaufman & Payton, of Ms. Nikkila’s threat before her resignation. Prebenda concededly never spoke directly to Kaufman. We see no proof in this record that Alterman ever relayed the substance of his discussions with Prebenda to Kaufman. Further, Kaufman acknowledges that he spoke to Prebenda only after Nikkila had already resigned. Finally, we disagree with the dissent’s advocacy of a reduction in the burden of proof in claims under the Whistleblowers’ Protection Act. An employer’s subjective fear of retaliation will not substitute for some form of notice of threatened action. Instead, an employer is entitled to objective notice of a report or a threat to report by the whistleblower. Neither Kaufman’s nor the firm’s knowledge that Nikkila had retained counsel, together with other unspecified evidence, yields an inference that the firm believed before she resigned that she would report her complaints to responsible agencies. Plaintiff did not present adequate evidence that a record might be developed upon which reasonable minds could differ with regard to the whistleblower claim. Affirmed. Weaver, J., concurred. The trial court’s summary disposition left Nikkila with two remaining counterclaims. However, after a hearing, the trial court made an express determination that there was no reason for delay, and made the partial summary judgment a final order pursuant to MCR 2.604(A). We question the circuit court’s certification of this order because the Whistleblowers’ Protection Act claim was but one of several theories upon which Catherine Nikkila sought recovery below. Where only one of several theories has been resolved, certification of a final judgment pursuant to MCR 2.604(A) is improper. Derbeck v Ward, 178 Mich App 38, 41; 443 NW2d 812 (1989), quoting 3 Martin, Dean & Webster, Michigan Court Rules Practice, Rule 2.604, p 417, observed: [I]f a claimant presents merely alternative legal theories, such that he will be permitted to recover on at most one of them, his possible recoveries are mutually exclusive, and he has presented only a single claim for relief. A preliminary disposition of one of his alternative theories cannot be made the subject of a final judgment and resulting appeal under MCR 2.604(A). The plaintiffs only liability claim against the defendant was for personal injuries. Although several theories of negligence were alleged, partial summary disposition of one, but not all, of the theories was not sufficient to qualify this order as a final judgment under MCR 2.604(A). To warrant certification, the undecided claims should be sufficiently independent of the decided claims to justify splitting the case. The theory disposed of here was not sufficiently independent of the remaining theories. The retaliatory discharge, constructive termination, and wrongful discharge claims seem to be interdependent. Moreover, the parties have apparently stipulated to stay further proceedings until the outcome of this appeal. The only reason justifying this stay is that the remaining theories depend on our ruling. More fundamentally, we question the continuing viability of any trial court certifications under MCR 2.604(A). The court below, applying MCR 2.604(A), found "no just reason for delay.” Such pro forma invocation of magic words in reality condemns litigants in this state to years of delay. We urge circuit judges to deny certifications under MCR 2.604(A) as long as the enormous docket backlog of this Court continues to persist. Such certifications are luxuries that the bench and bar of this state can no longer afford. In the early days of this Court, when the backlog was nonexistent, the judges of this Court could usually render a decision well before the trial court could finally render judgment. MCR 2.604(A) certifications served an important and helpful purpose in providing quick and definitive appellate resolutions. Now the situation is reversed. The circuit courts are relatively current, but this Court is buried in cases. The parties here have waited since mid-1990 to learn of this Court’s disposition of but one small aspect in ongoing litigation. The Supreme Court should either act to abolish jurisdiction under MCR 2.604(A), or authorize this Court to decline certification whenever this Court’s backlog precludes speedy disposition of piecemeal claims — a situation that we believe will persist well into the future. Connor, J. (dissenting). I dissent. I believe the trial court erred in granting Kaufman & Payton, P.C., and Alan J. Kaufman summary disposition. I would reverse and remand for further proceedings. A motion for summary disposition brought pursuant to MCR 2.116(0(10) tests whether there is factual support for a claim. Giving the benefit of reasonable doubt to the opponent, the court must determine whether a record might be developed that would leave open an issue upon which reasonable minds might differ. Amorello v Monsanto Corp, 186 Mich App 324, 329-330; 463 NW2d 487 (1990). In this case, the motion tested whether Nikkila could establish retaliation. Kaufman & Payton and Alan J. Kaufman argued below that what they did could not have been retaliation because they did not know Nikkila was going to file a grievance with the Attorney Grievance Commission. I disagree with the majority’s conclusion that showing actual knowledge of an imminent report is required to establish retaliation. The Whistle-blowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq., makes it unlawful for an employer to discriminate against an employee because the employee is about to report a suspected violation of law. MCL 15.362; MSA 17.428(2). Employers do not always wait to discriminate until they have proof that an employee is going to blow the whistle. They may discriminate against an employee they fear may blow the whistle either to nip the problem in the bud, or to give the employee a taste of things to come should the employee actually blow the whistle. If an employer actually discriminates against an employee, it should not matter whether that discrimination is motivated by knowledge or fear. Employers should not be allowed to peremptorily retaliate against employees with impunity. See McLemore v Detroit Receiving Hosp, 196 Mich App 391, 396; 493 NW2d 441 (1992). Both Kaufman & Payton and Alan J. Kaufman, Nikkila’s supervisor, knew that Nikkila thought Alan J. Kaufman’s billing practices were illegal, and both knew that she was very unhappy about being asked to participate in those practices. Giving Nikkila the benefit of reasonable doubt, I believe a reasonable factfinder could decide that Kaufman & Payton and Alan J. Kaufman suspected Nikkila was going to report those billing practices and made Nikkila’s work environment intolerable as a result. Moreover, even if a showing of actual knowledge is required, I would find that Nikkila made such a showing through the affidavit of her former attorney, Ronald Prebenda. Prebenda swore that, before Nikkila left Kaufman & Payton’s employ, he had told a member of Kaufman & Payton that Nikkila intended to file a complaint with the Attorney Grievance Commission. This conclusively demonstrates that Kaufman & Payton knew that she was going to report the billing practices. Considering that Alan J. Kaufman was an officer of Kaufman & Payton, the object of the complaint, and Nikkila’s supervisor, I think a reasonable factfinder could infer that this information would have been passed on to Alan J. Kaufman. I also disagree with the majority that Prebenda’s affidavit is contradicted by his deposition testimony. Prebenda was deposed by Kaufman & Pay-ton and Alan J. Kaufman over his own strong objections based on attorney-client privilege. He answered many questions by saying he had "no present recollection,” and gave responses so unsatisfactory that the trial court later ordered him to be redeposed. Regardless, a careful reading of his testimony shows no direct contradiction with his affidavit. Finally, even if Prebenda’s December 18, 1989, affidavit and his March 15, 1990, deposition testimony were contradictory, I disagree with the majority that the result should be to reject the evidence most favorable to Nikkila and accept the evidence most favorable to Kaufman & Payton and Alan J. Kaufman. When reviewing the supporting materials to determine whether a question of material fact exists, courts are supposed to give the benefit of reasonable doubt to the party opposing a motion for summary disposition, not to the party making the motion. See Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973). There is a longstanding rule, followed in Griffith v Brant, 177 Mich App

JOYCE M. DANIEL, Plaintiff v. CAROLINA SUNROCK CORPORATION, a North Carolina Corporation, and BRYAN PFOHL, Individually, Defendants No. 929SC479 (Filed 1 June 1993) I. Labor and Employment § 77 (NCI4th)— wrongful discharge — public policy exception — sufficient forecast of evidence Plaintiffs forecast of evidence was sufficient to support her claim for wrongful discharge under the public policy exception to the e.mployment-at-will doctrine where plaintiff presented evidence tending to show that her working conditions deteriorated after she was subpoenaed and expressed a willingness to testify honestly about her employer in a former co-employee’s suit against the employer, although she never testified because the lawsuit for which she was subpoenaed was settled out of court; the employer’s president told plaintiff not to say any more than she had to when testifying and to “remember that you work for me and represent me and my company”; after plaintiff told the employer’s attorney that she intended to testify that her former co-employee was a good worker, the employer took away many of plaintiff’s employment responsibilities and moved her to a smaller office with no phone, no typewriter, and no heat; the employer’s president told another employee that plaintiff knew too much and stated an intention to get rid of all of the former co-employee’s “people”; other employees took notes on plaintiff’s activities, counted and screened her personal phone calls, had a key made and inspected the contents of plaintiff’s desk while she attended her father’s funeral, and made harassing phone calls to the homes of plaintiff, her mother and her sister-in-law; and plaintiff was discharged thirteen months after the former co-employee’s case was settled. A reasonable finder of fact could infer from plaintiff’s forecast of evidence that the employer’s president engineered plaintiff’s discharge because he believed she was prepared to testify truthfully as a witness in the former co-employee’s lawsuit. Am Jur 2d, Master and Servant §§ 49-59. 2. Trespass § 2 (NCI3d)— intentional infliction of emotional distress —insufficient forecast of evidence Alleged actions by defendant employer and its president did not rise to the level of extreme and outrageous conduct so as to support plaintiffs claim for the intentional infliction of emotional distress where plaintiffs forecast of evidence tended to show that, after plaintiff was subpoenaed by a former co-worker to testify against defendant employer, defendant’s employees took away many of plaintiffs employment responsibilities, took notes on plaintiffs activities, counted and screened plaintiffs personal phone calls, had a key made and inspected the contents of plaintiffs desk while she attended her father’s funeral, moved plaintiff into a smaller office with no phone and no heat, and made harassing phone calls to the homes of plaintiff, her mother, and her sister-in-law. Am Jur 2d, Trial § 770. Judge LEWIS dissenting. Appeal by plaintiff from judgment entered 30 January 1992 in Granville County Superior Court by Judge Robert H. Hobgood. Heard in the Court of Appeals 15 April 1993. On 17 July 1990, plaintiff filed a complaint in which she asserted claims against defendants for wrongful discharge, breach of employment contract, and tortious interference with contract. On 21 February 1991, plaintiff filed an amendment to the complaint, adding a claim for the intentional infliction of emotional distress. On 1 October 1990, defendants filed an answer to plaintiff’s original complaint, and on 12 April 1991, defendants filed an answer to plaintiff’s amended complaint. Following extensive discovery proceedings, on 16 January 1992, defendants filed a motion for summary judgment as to each of plaintiff’s claims. On 11 February 1992, plaintiff took a voluntary dismissal of her breach of employment contract claim. On that same date, Judge Hobgood entered summary judgment for the defendants on plaintiff’s claims of wrongful discharge, intentional infliction of emotional distress, and tortious interference with contract. Plaintiff filed notice of appeal on 24 February 1992. Pulley, Watson & King, P.A., by Tracy Kenyon Lischer, for plaintiff-appellant. Haynsworth, Baldwin, Johnson & Greaves, P.A., by Gregory P. McGuire, for defendant-appellees. WELLS, Judge. Plaintiff contends that the trial court erred in granting defendants’ motion for summary judgment on plaintiff’s claims of wrongful discharge and intentional infliction of emotional distress. Plaintiff did not appeal the summary judgment order as to her tortious interference with . contract claim. “Summary judgment is properly granted ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.’ N.C.G.S. 1A-1, Rule 56(c) (1983).” Waddle v. Sparks, 331 N.C. 73, 414 S.E.2d 22 (1992). All inferences of fact from the proofs offered must be drawn against the movant and in favor of the party opposing the motion for summary judgment. Id. Applying these guidelines, we shall consider plaintiff’s claims for wrongful discharge and intentional infliction of emotional distress. Wrongful Discharge While employed at Sunrock, plaintiff was an employee-at-will. Generally, in North Carolina, an employee-at-will has no claim for relief for wrongful discharge. Tompkins v. Allen, 107 N.C. App. 620, 421 S.E.2d 176 (1992). Generally, either party to an employment-at-will contract can terminate the contract for no reason at all, or for an arbitrary or irrational reason. Id. However, a valid claim for wrongful discharge may exist in the employment-at-will context if the contract is terminated for an unlawful reason or a purpose that contravenes public policy. Coman v. Thomas Manufacturing Co., 325 N.C. 172, 381 S.E.2d 445 (1989). In Sides v. Duke University, 74 N.C. App. 331, 328 S.E.2d 818, disc. rev. denied, 314 N.C. 331, 335 S.E.2d 13 (1985), this Court recognized a public policy exception to the employment-at-will doctrine in a case where a nurse alleged that her employer pressured her not to testify honestly in a medical malpractice lawsuit and subsequently discharged her because she refused to commit perjury, but rather testified fully and honestly. This Court wrote: Thus, while there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy. ... We hold, therefore, that no employer in this State, notwithstanding that an employment is at will, has the right to discharge an employee and deprive him of his livelihood without civil liability because he refuses to testify untruthfully or incompletely in a court case, as plaintiff alleges happened here. In Williams v. Hillhaven Corp., 91 N.C. App. 35, 370 S.E.2d 423 (1988), following Sides, this Court expanded the same public policy exception to a case where the plaintiff did not allege that her employer pressured her to alter her testimony, but rather alleged that she was wrongfully discharged after honestly testifying in an unemployment compensation hearing. The defendants in Williams attempted to differentiate their case from Sides because they never harassed or threatened plaintiff before she testified, but rather allegedly harassed and fired her after she testified against them. The Williams Court disagreed and found that, because she was discharged for telling the truth, “plaintiff falls into the same narrow exception to the general rule . . . that Sides created.” In the case at bar, plaintiff asks this Court to extend the public policy exception to the employment-at-will doctrine recognized in Sides and Williams to a situation where plaintiff alleges that she was wrongfully discharged after being subpoenaed and expressing a willingness to honestly testify about her employer, but never actually testified because the lawsuit for which she was subpoenaed was settled out of court. At the summary judgment hearing, the trial court considered (in addition to the pleadings) the depositions of plaintiff, H. Braxton Davis, Jr., David A. Eckstine, Jessie Self, Donald Tilley, Ellen Wilkins, and defendant Pfohl, and various exhibits relating to the plaintiff’s employment history. From these materials, the forecast of evidence, viewed in the light most favorable to plaintiff, may be summarized as follows: Carolina Sunrock Corporation [Sunrock] operates a quarry in Butner, North Carolina, producing crushed stone and building materials. Defendant Bryan Pfohl is the owner and President of Carolina Sunrock Corporation. Plaintiff became an employee at Sunrock in September of 1985. Between September of 1985 and January of 1988, plaintiff was an excellent employee and had received favorable reviews from her supervisors, one of whom stated that she was “very very effective” and “did a very good job.” On 28 January 1988, plaintiff was subpoenaed to produce company personnel records and to testify on behalf of Bob Gentry, a former plant superintendent who was suing Sunrock on a breach of contract claim. After learning that she had been subpoenaed, plaintiff immediately informed defendant Pfohl, the company’s president and owner, that she had been served with the subpoena. Upon learning of the subpoena, Mr. Pfohl told plaintiff not to say anymore than she had to when testifying and to “remember that you work for me and represent me and my company.” Plaintiff took Mr. Pfohl’s comments as a threat, pressuring her to alter her testimony, if need be, to advance the company’s best interests. Mr. Pfohl told plaintiff to meet with the company’s attorney. At the meeting with Sunrock’s attorney, plaintiff informed the attorney that she believed that Bob Gentry was a good worker and intended to testify to that effect. After informing Mr. Pfohl of the subpoena and her intention to testify honestly, plaintiff’s working conditions deteriorated significantly. Because she was subpoenaed, Mr. Pfohl became distrustful of plaintiff and believed that she had been leaking company information to Bob Gentry. Mr. Tilley, a heavy equipment operator, testified in deposition that Mr. Pfohl stated that plaintiff knew too much. Mr. Pfohl also expressed an intention to get rid of all of “Gentry’s people.” Mr. Pfohl treated plaintiff in a noticeably different manner after she received the subpoena. He was markedly colder to plaintiff after she received the subpoena. Within one week of plaintiff being served the Gentry subpoena, Ellen Wilkins was hired by Sunrock. Wilkins was assigned many of plaintiff’s duties, for reasons unrelated to plaintiff’s .performance. In February of 1988, Ms. Wilkins began taking notes on plaintiff and reported directly to Mr. Pfohl. Plaintiff was the only employee Ms. Wilkins took notes on and the notes she took were shredded after plaintiff was fired. Mr. Pfohl repeatedly asked Mr. Davis, a supervisor, whether he had “anything on” the plaintiff. In March of 1988, while plaintiff was away from work, attending her father’s funeral, Ms. Wilkins had a key made to plaintiff’s desk on Mr. Pfohl’s instructions. In plaintiff’s absence, Ms. Wilkins went through plaintiffs desk. In May of 1988, Bob Gentry’s lawsuit against Sunrock was settled out of court; hence, plaintiff never testified. On 6 June 1988, Jessie Self was hired as a receptionist. Ms. Wilkins told Ms. Self that there were problems with the plaintiff and instructed Ms. Self to keep a record of the number and source of plaintiff’s personal phone calls. Plaintiff was the only employee whose phone calls were counted. Ms. Self was also instructed to eavesdrop on plaintiff’s conversations with fellow employees and visitors and to keep notes on any violations of company policy by plaintiff. Ms. Self attended secret meetings which Ms. Wilkins called to discuss plaintiff. In December of 1988, David Eckstine was hired by Sunrock. Mr. Eckstine began taking notes on plaintiff in February, and continued taking such notes until he fired her, at which time he shredded his notes. Plaintiff was the only employee which Mr. Eckstine took notes on. After plaintiff was subpoenaed and many of her employment responsibilities were stripped, she was moved to a smaller office with no phone, no typewriter, and no heat. On 20 June 1989, Mr. Eckstine met with plaintiff and suggested that plaintiff resign. Plaintiff was told that if she did not resign, she would be terminated. On 20 June 1989, plaintiff was fired. From this forecast of evidence, a reasonable finder of fact might draw the inference that defendant Pfohl engineered plaintiff’s discharge because he believed she was prepared to testify truthfully as a witness in the Gentry lawsuit. If plaintiff was discharged for such reasons, notwithstanding the fact that she never actually testified, then plaintiff’s discharge violated public policy and would fall under the public policy exception to the employment-at-will doctrine. Therefore, the trial court erred in granting defendants’ motion for summary judgment on the claim of wrongful discharge. Intentional Infliction of Emotional Distress Next, plaintiff contends that the trial court erred in granting defendants’ motion for summary judgment on plaintiff’s claim of intentional infliction of emotional distress. “The essential elements of an action for intentional infliction of emotional distress are ‘1) extreme and outrageous conduct by the defendant 2) which is intended to and does in fact cause 3) severe emotional distress.’ ” Waddle v. Sparks, 331 N.C. 73, 414 S.E.2d 22 (1992). Extreme and outrageous conduct has been described as conduct which exceeds “all bounds usually tolerated by decent society.” Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979). In the case at bar, plaintiff alleged that harassment by Sunrock’s executives and employees constituted extreme and outrageous behavior which was intended to result, and in fact resulted, in her severe emotional distress. Plaintiff’s forecast in support of the “extreme and outrageous behavior” element of her intentional infliction of emotional distress claim included her deposition testimony in which she stated that, after plaintiff was subpoenaed to testify against Sunrock, Sunrock’s employees took away many of plaintiff’s employment responsibilities, took notes on plaintiff’s activities, counted and screened plaintiff’s personal phone calls, had a key made and inspected the contents of plaintiff’s desk while she attended her father’s funeral, moved plaintiff to a smaller office with no phone and no heat, and made harassing phone calls to the home of plaintiff and to the homes of plaintiff’s sister-in-law and mother. In Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 340 S.E.2d 116, cert. denied, 317 N.C. 334, 346 S.E.2d 141 (1986), this Court considered three intentional infliction of emotional distress claims brought against defendant by three former employees. At trial, each plaintiff’s emotional distress claim was dismissed. by summary judgment. On appeal, each plaintiff argued that her forecast of evidence contained sufficient grounds to overcome a summary judgment motion and reach the jury on its merits. While the Court considering plaintiff Hogan’s claim, this Court wrote: Hogan’s evidence tends to show that Pfeiffer [defendant’s agent] screamed and shouted at her, called her names, interfered with her supervision of waitresses under her charge, and on one occasion threw menus at her. She also testified that she shouted back at Pfeiffer. This conduct lasted during the period from 22 June 1983 until her termination on 24 July 1983. The general manager, Clifford Smith, received complaints from both Hogan and Pfeiffer concerning the temper of the other. His attempt to discuss the situation with both employees was unsuccessful because Pfeiffer walked out. While we do not condone Pfeiffer’s intemperate conduct, neither do we believe that his alleged acts “exceed all bounds usually tolerated by a decent society,” Stanback, supra, so as to satisfy the first element of the tort, requiring a showing of “extreme and outrageous conduct.” Dickens, supra. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. The liability clearly does not extend to mere insults, indignities, threats.The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate or unkind. There is no occasion for the law to intervene in every case where some one’s feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam. . . . Restatement (Second) of Torts, §46 comment (d) (1965). We hold Pfeiffer’s conduct, as shown by Hogan’s forecast of evidence, was not such as to be reasonably regarded as “extreme and outrageous” so as to permit Hogan to recover for intentional infliction of mental distress. In the case at bar, plaintiff’s forecast of evidence, taken in the light most favorable to plaintiff, fails to demonstrate that the defendants’ alleged actions “exceed all bounds-- usually tolerated by a decent society.” Guided by the Hogan standards, we hold that defendants’ alleged acts do not rise to the level of extreme and outrageous conduct, so as to support plaintiff’s claim for intentional infliction of emotional distress. Accordingly, we affirm- the trial court’s granting of defendants’ motion for summary judgment as to plaintiff’s claim of intentional infliction of emotional distress. For the reasons stated above, the trial court’s order granting defendants’ motion for summary judgment on plaintiff’s wrongful discharge claim is reversed. The trial court’s granting of defendants’ summary judgment on plaintiff’s claim for intentional infliction of emotional distress is affirmed. Affirmed in part, reversed in part, and remanded. Judge GREENE concurs. Judge LEWIS dissents in a separate opinion. Judge LEWIS dissenting. I must respectfully dissent from the majority’s opinion regarding the issue of wrongful discharge and I would vote to affirm the trial court’s entry of summary judgment. I believe that the majority’s opinion takes the public policy exception to the employment at will doctrine substantially beyond the rationale proclaimed in Sides v. Duke University, 74 N.C. App. 331, 328 S.E.2d 818, disc. rev. denied, 314 N.C. 331, 335 S.E.2d 13 (1985) and Williams v. Hillhaven Corp., 91 N.C. App. 35, 370 S.E.2d 423 (1988). In Sides, this Court first recognized the public policy exception when a nurse was discharged when she refused to commit perjury to protect her employer from liability in a civil suit. In reaching its decision, this Court said that encouraging perjury or incomplete testimony was an affront to our legal system. Sides, 74 N.C. App. at 338, 328 S.E.2d at 823-24. In Williams, we extended the public policy exception to a situation where an individual was harassed and eventually discharged after she testified truthfully. The Williams Court characterized the public policy exception as a “narrow exception” and again reaffirmed the rationale in Sides by stating: “[t]he law must encourage and not discourage truthful testimony.” Williams, 91 N.C. App. at 40, 370 S.E.2d at 426, quoting Petermann v. International Brotherhood of Teamsters, 344 P.2d 25, 27 (Cal. App. 1959). This Court now seeks to extend the public policy exception to a situation w

Robert J. Fontaine vs. Ebtec Corporation & another. Hampden. February 3, 1993. May 21, 1993. Present: Liacos. C J.. Abrams. Nolan, O’Connor, & Greaney, JJ. Anti-Discrimination Law, Age, Damages, Termination of employment. Practice, Civil, Judicial discretion, Continuance, Attorney’s fees. Damages, Under anti-discrimination law, Punitive, Attorney’s fees, Interest. Statute, Retroactive application, Construction. Attorney at Law, Compensation. In an age discrimination case, arising from the termination of the plaintiff’s employment, the jury’s verdict finding the employer and its parent corporation liable for discrimination under State and Federal law was supported by the evidence, and the judge correctly denied the defendant’s motion for judgment notwithstanding the verdict. [312-316] In an age discrimination case, the defendants were not entitled to a new trial on the ground that, due to a scheduling conflict, their principal witness’s testimony was presented through a videotaped deposition, where the scheduling of the trial was properly addressed by the judge under Mass. R. Civ. P. 40 (a) and (c). [316-317] In a civil action, this court declined to consider on appeal an argument not raised at trial. [317] Amendments to G. L. c. 151B, § 9, that provide for awards of enhanced damages in age discrimination cases were not applicable retrospectively to a case pending at the time of the amendments’ effective date, or to conduct occurring prior thereto. [318-321] In age discrimination cases, punitive damages are not available as a remedy, inasmuch as G. L. c. 151B, § 9, 4th par., inserted by St. 1990, c. 395, provides, when appropriate, that multiple damages be awarded. [321-322] A plaintiff in an age discrimination case, asserting claims under both State and Federal law, was entitled to “liquidated damages” for violations of the Federal Age Discrimination in Employment Act where he proved that the defendants’ acts were wilful. [322-323] A fair market rate for time reasonably spent preparing and litigating a case is the basic measure of a reasonable attorney’s fee (“lodestar” award) awarded under G. L. c. 151B. [324-326] In a noncomplex age discrimination case, the appropriate attorney’s fee award, calculated by the lodestar method, was adequate, and enhancement of the fee, in the circumstances, was not warranted. [326] In an age discrimination case the plaintiff was entitled to prejudgment interest on the compensatory damages awarded on his State law claim, dating from the commencement of the action [326-327], and postjudgment interest of the liquidated damages awarded on his Federal claim, dating from the date of the jury’s verdict [327-328]. Civil action commenced in the Superior Court Department on March 3, 1988. The case was tried before William H. Welch, J. The Supreme Judicial Court granted a request for direct appellate review. John J. Egan (Maurice M. Cahillane & David G. Cohen with him) for the plaintiff. Richard D. Hayes for the defendants. Stephen S. Ostrach & Emily R. Livingston, for Associated Industries of Massachusetts, amicus curiae, submitted a brief. George P. Napolitano, for Massachusetts Commission Against Discrimination, amicus curiae, submitted a brief. Thermal Scientific, PLC. Greaney, J. In January, 1988, the plaintiff was discharged from his position as vice president of Ebtec Corporation, an American subsidiary of Thermal Scientific, PLC, a British company (defendants). A jury in the Superior Court found for the plaintiff in his ensuing claims that the defendants had violated G. L. c. 15IB, § 4 (IB) (1990 ed.), the Massachusetts statute which prohibits age discrimination, and 29 U.S.C. §§ 621 et seq. (1988), the Federal Age Discrimination in Employment Act (ADEA). The jury concluded, in response to special questions, that the defendants’ violations had been wilful. The jury awarded the plaintiff actual damages for lost wages and benefits ($270,422) and for emotional distress ($80,000), and also assessed punitive damages ($600,000). On the basis of G. L. c. 15IB, § 9, as amended through St. 1990, c. 395, the judge doubled the award of actual damages, and he also awarded $132,323 in attorney’s fees. See G. L. c. 15IB, § 9 (1990 ed.). An amended judgment was entered which awarded the plaintiff $590,844 in actual damages, and $600,000 in punitive damages, and $132,323 in attorney’s fees on his claims under G. L. c. 15IB, and $1 on his claim under the ADEA. Both sides have appealed, and we granted the plaintiff’s application for direct appellate review. In part I of this opinion, we deal with the issues pertaining to liability and a new trial, concluding that the jury’s liability verdict was warranted and that there is no basis for a new trial. In part II of the opinion, we discuss the issues relating to damages. We conclude that amendments to G. L. c. 15IB, § 9, which provide for punitive and multiple damages, should not have been applied retrospectively in this case and, consequently, that the plaintiff is not entitled to recover enhanced damages under State law. We discuss the appropriate measure of damages in an age discrimination case brought pursuant to G. L. c. 15IB. We conclude that the plaintiff is entitled to enhanced damages for lost wages and benefits under the ADEA. In part III of the opinion, we take up the issues relating to attorney’s fees and interest. I. Liability and New Trial Issues. We first discuss the defendants’ assertions that judgment notwithstanding the verdict (n.o.v.) should have entered in their favor or, at the very least, that they are entitled to a new trial. 1. The defendants argue that their motion for judgment n.o.v. should have been allowed because the evidence was insufficient, as matter of law, to warrant a finding by the jury that they had discharged the plaintiff in violation of age discrimination laws. At the time of his discharge, the plaintiff was fifty-one, and, consequently, within the class of persons (over forty years of age) protected by the age discrimination laws. G. L. c. 15IB, § 1 (8) (1990 ed.). The plaintiff presented evidence, which made out a prima facie case that his discharge was discriminatory. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Smith College v. Massachusetts Comm’n Against Discrimination, 376 Mass. 221, 229 (1978); Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 135 n.5 (1976). The defendants presented evidence which would have warranted a finding that the plaintiff was discharged for unsatisfactory job performance. See McKenzie v. Brigham & Women’s Hosp., 405 Mass. 432, 435 (1989); Wheelock College v. Massachusetts Comm’n Against Discrimination, supra at 138. See also Trustees of Forbes Library v. Labor Relations Comm’n, 384 Mass. 559, 565-566 (1981). On the judgment n.o.v. point, therefore, the issue on appeal comes down to whether the evidence considered in the light most favorable to the plaintiff, and with all reasonable inferences drawn in his favor, see Boothby v. Texon, Inc., 414 Mass. 468, 470 (1993), warranted the jury’s finding that the plaintiff’s allegedly poor job performance was merely a pretext for a discharge actually based on concerns about his age. Under the applicable n.o.v. standard, the jury could have found the following. In August, 1980, the plaintiff joined Ebtec, located in Agawam, as manager of the company’s electron beam welding and laser “job shop.” The company was at that time a closely held corporation, which was owned by two individuals. Under the plaintiff’s management, the shop acquired new customers and sales and profits rose substantially. At the end of 1986, Ebtec was sold to Thermal Scientific, a British conglomerate. Thomas Liebermann was appointed to oversee Ebtec (and six other American operations owned by Thermal Scientific). Liebermann reported to Robert Huddie, who was responsible for all of Thermal Scientific’s American operations. In July, 1987, Liebermann promoted the plaintiff to executive vice president and general manager of Ebtec and gave the plaintiff specific goals in terms of pretax sales and profits. The plaintiff generally met those goals until the stock market “crash” of October, 1987, which had an adverse impact on many of the companies for which Ebtec performed services. In December, 1987, Liebermann evaluated the plaintiff. The evaluation was designed to identify for the plaintiff significant weaknesses in his management skills that would have to be addressed before the plaintiff’s promotion to president of Ebtec could be considered. Liebermann disclaimed any intent of terminating the plaintiff’s employment with Ebtec. According to Liebermann, the question was whether the plaintiff would work for Ebtec as a production manager or whether he would be promoted to president of Ebtec. Also in December, 1987, Liebermann decided that, because of changes in the company’s business goals caused largely by the October stock market crash, he would leave Thermal Scientific. He had conveyed this fact to Huddie by December, 1987, and had begun to disengage himself from the company’s operations. Huddie, not Liebermann, made the decision to terminate the plaintiff. On or about January 15, 1988, the plaintiff attended a meeting at which executives from Thermal Scientific’s American companies presented their budgets. Huddie presided over the meeting. The plaintiff testified that Huddie, reflecting on the reports that had been presented to him, commented that “there was a real problem in [Ebtec and another company] because both managers were old. One was in his fifties and the other was in his sixties, and it was absolutely necessary to get young management into these companies as soon as possible.” The plaintiff became concerned for his job at this meeting. He was terminated ten days later. His replacement, a thirty year old Thermal Scientific executive to whom the plaintiff had given basic courses in the technology that constituted Ebtec’s business, was given the title of president of Ebtec. There was additional evidence from which the jury reasonably could have inferred that Huddie desired to replace older managers with younger ones. Liebermann testified that Hud-die considered American age discrimination laws to be an unnecessary “fuss” and complained to him (Liebermann) about the age of certain managers in American Thermal Scientific companies. Liebermann also testified that he felt compelled to call the age discrimination laws to Huddie’s attention, and to insist that he, Liebermann, would not participate in any adverse employment decision based on an employee’s age. From this evidence, the jury reasonably could have inferred that Huddie had raised with Liebermann the possibility of an age-related discharge at a Thermal Scientific company under Liebermann’s supervision. In addition to this evidence of discriminatory intent, there was evidence from which the jury reasonably could have inferred that Huddie’s stated reason for terminating the plaintiff (unsatisfactory job performance in the sense of a failure to perform in relation to budgets and forecasts) was a pretext. The jury could have concluded that Ebtec’s declining profitability in November and December of 1987 was caused by the stock market crash, an event beyond the plaintiff’s control. There was evidence that the plaintiff’s superiors were fully aware of the effect of the stock market collapse on Ebtec’s business. The plaintiff indicated that he was discouraged from attempting to adjust his forecasts to reflect changed circumstances. The jury also could have concluded that other evidence concerning the plaintiff’s alleged poor performance was of little or no relevance, in light of Hud-die’s reason for the discharge. The jury’s verdict finding liability for discrimination under State and Federal law was supported by the evidence. 2. In February, 1991, the defendants moved for a firm trial date of either February 26, 1991, or on the first trial day in April, 1991, giving as a reason the conflicting travel schedules of their principal witnesses, Liebermann and Huddie. The motion judge scheduled the matter as first trial out in the March, 1991, inventory session. Because Huddie would be unavailable on this date, the defendants moved for reconsideration, seeking an April date, or, in the alternative, permission to videotape Huddie’s testimony. Permission was given to videotape Huddie’s deposition, and the videotape was shown to the jury as part of the. defendants’ case. The defendants nonetheless maintain that the absence of live testimony by Huddie so prejudiced their defense that a new trial is required. The scheduling of a trial is a matter within the sound discretion of a motion or trial judge. See Noble v. Mead-Morrison Mfg. Co., 237 Mass. 5, 16 (1921); Beninati v. Beninati, 18 Mass. App. Ct. 529, 534 (1984); Mass. R. Civ. P. 40 (a), 365 Mass. 802 (1974). “When [a] trial is . . . imminent as it was in this case, a judge may give weight to the public interest in the efficient operation of the trial list and to the interests of other parties who are ready for trial.” Castellucci v. United States Fidelity & Guar. Co., 372 Mass. 288, 292 (1977). Rule 40 (c) of the Massachusetts Rules of Civil Procedure, 365 Mass. 802 (1974), which addresses requests for a trial continuance based on the absence of a material witness, plainly contemplates testimony in the form of a deposition as a substitute for live testimony. Huddie’s videotaped deposition, which permitted the jury to observe his demeanor and tone, represented a reasonable accommodation between the defendants’ need for Huddle’s testimony, the plaintiffs interest in a prompt trial, and the efficient administration of the Superior Court trial list. It was not error to deny the defendants’ motion for a new trial on this basis. 3. The defendants claim that the plaintiffs attorney’s closing argument contained an improper appeal to regional bias. The defendants failed to object at trial to what constituted a relatively minor portion of the argument, despite the well-established rule that a closing argument which is considered to be improper should be called to the attention of the trial judge at once. Commonwealth v. Johnson, 374 Mass. 453, 458 (1978), and cases cited. The content of the criticized argument is not of significance. See Pryor v. Holiday Inns, Inc., 401 Mass. 506, 509 (1988). We decline to exercise our discretion to consider the claim of error now argued. Id. Rice v. James Hanrahan & Sons, 20 Mass. App. Ct. 701, 712 (1985). II. Damages Issues. As has been noted, the plaintiffs discharge occurred in January, 1988. The amendments to G. L. c. 151B, § 9, authorizing the recovery of punitive damages in a discrimination case, and multiple damages in an age discrimination case, were enacted in 1989 and 1990, respectively, subsequent to the plaintiffs discharge. In neither case did the Legislature direct that these amendments were to be given retrospective application. The defendants contend that, in the absence of lánguage mandating retrospective application, the new provisions increasing damages should not be applied to conduct occurring prior to their effective date, and consequently, that the plaintiff’s recovery of both multiple and punitive damages under G. L. c. 15IB, § 9, should be set aside. We agree with this contention. To clarify the damages questions in an age discrimination case under G. L. c. 15IB, we go on to conclude that a plaintiff who proves discrimination because of age is entitled to recover multiple damages only. We also conclude that the plaintiff is entitled to recover additional damages for lost wages and benefits under the provisions of the ADEA. 1. Whether a statute applies retrospectively is a question of legislative intent. In the absence of an express legislative directive, this court has usually applied “[t]he general rule of interpretation •. . . that all statutes are prospective in their operation, unless an intention that they shall be retrospective appears by necessary implication from their words, context or objects when considered in the light of the subject matter, the pre-existing state of the law and the effect upon existent rights, remedies and obligations. Doubtless all legislation commonly looks to the future, not to the past, and has no retroactive effect unless such effect manifestly is required by unequivocal terms. It is only statutes regulating practice, procedure and evidence, in short, those relating to remedies and not affecting substantive rights, that commonly are treated as operating retroactively, and as applying to pending actions or causes of action.” City Council of Waltham v. Vinciullo, 364 Mass. 624, 626 (1974), quoting Hanscom v. Malden & Melrose Gas Light Co., 220 Mass. 1, 3 (1914). See Austin v. Boston Univ. Hosp., 372 Mass. 654, 657 (1977); Kagan v. United Vacuum Appliance Corp., 357 Mass. 680, 683 (1970). Although this rule is easily stated, the distinction between legislation that concerns “substantive rights,” and legislation that concerns “procedures” and “remedies,” has proved to be difficult to draw. City Council of Waltham v. Vinciullo, supra at 627 & n.6. It appears from the context, and from a review of our prior decisions, that the term “remedies,” as it was used in Hanscom v. Malden & Melrose Gas Light Co., supra, has only encompassed essentially procedural legislation which preserves a remedy that might otherwise be lost, or which creates a new enforcement mechanism for remedying the impairment of an existing legal right. For example, retrospective application has been given to legislation extending the time for filing for an application for a tax abatement, Lindberg v. State Tax Comm’n, 335 Mass. 141, 143 (1956); to legislation modifying the requirements for filing an application for a tax abatement, Wynn v. Assessors of Boston, 281 Mass. 245, 249 (1932); and to legislation providing direct access to the courts to enforce preexisting legal rights, Selectmen of Amesbury v. Citizens Elec. St. Ry., 199 Mass. 394, 395 (1908). It would appear to be the rule in other jurisdictions that only this type of remedial legislation is given retrospective effect. See 1A Singer, Sutherland Statutory Construction § 22.36, at 301 (4th ed. 1985) (a statutory amendment “that affect [s] procedural rights — legal remedies — [is] construed to apply to all cases pending at the time of its enactment”). As have other jurisdictions, we have recognized that legislation limiting or increasing the measure of liability, while arguably remedial in the broad sense of that word, generally is considered to impair the substantive rights of a party who will be adversely affected by the legislation. In the absence of a provision mandating retrospective application, we have not assumed that such legislation applies to claims arising prior to enactment. See USM Corp. v. Marson Fastener Corp., 392 Mass. 334, 353 (1984) (suggesting that statute changing the measure of damages after tort has been committed should not be given retrospective effect); Austin v. Boston Univ. Hosp., supra at 657 (recognizing substantive aspect of legislation that imposes costs, and witness, expert, and attorney’s fees on an unsuccessful litigant); Cudlassi v. MacFarland, 304 Mass. 612, 613 (1939) (declining, in the absence of legislative directive, to give retrospective effect to statutory amendment eliminating double damages in tort case). See also Lavieri v. Ulysses, 149 Conn. 396, 402 (1962), and cases cited; LaBarre v. Daneault, 123 N.H. 267, 271-272 (1983). The large amount of the judgment entered in this case clearly demonstrates the force of the amendments to G. L. c. 151B, § 9, on a defendant’s potential liability. If the Legislature had intended the amendments to G. L. c. 15IB, § 9, providing enhanced damages to apply to cases pending at the time of their enactment, or to conduct occurring prior thereto,

BUTZER v CAMELOT HALL CONVALESCENT CENTRE, INC (AFTER REMAND) Docket No. 136247. Submitted January 12, 1993, at Detroit. Decided May 20, 1993; approved for publication August 18, 1993, at 9:00 A.M. Grace L. Butzer brought a wrongful discharge action in the Wayne Circuit Court against Camelot Hall Convalescent Centre, Inc., alleging that termination of her employment was in violation of a policy of termination for just cause only. Mediation concluded in an evaluation of $20,000 for the plaintiff, which was accepted by the plaintiff but rejected by the defendant. The court, Harry J. Dingeman, J., granted summary disposition for the defendant on the basis that there was no genuine issue of material fact. The Court of Appeals, Mackenzie, P.J., and Marilyn Kelly and T.M. Burns, JJ., reversed, holding that a genuine issue of material fact existed regarding whether the plaintiff had a reasonable expectation of employment that was terminable for just cause only. 183 Mich App 194 (1989). On remand, the defendant offered to stipulate the entry of a $3,500 judgment for the plaintiff. The plaintiff rejected the offer, and a jury subsequently returned a verdict of no cause of action. The defendant moved for, and the trial court, Edward M. Thomas, J., denied, attorney fees under MCR 2.405(D) for the plaintiff’s rejection of the defendant’s offer to stipulate the entry of a judgment and sanctions under MCR 2.114(E) for the plaintiff’s filing of pleadings for an improper purpose. The defendant appealed. After remand, the Court of Appeals held: 1. A trial court abuses its discretion by denying a motion for costs and attorney fees under MCR 2.405(D) where, as in this case, the only reason for the denial is that the rejection of the offer of judgment was reasonable. 2. The circumstances of this case do not support a finding that the plaintiffs pleadings were filed for an improper purpose and therefore do not warrant an imposition of sanctions under MCR 2.114(E). References Am Jur 2d New Topic Service, Alternate Dispute Resolution § 24; Attorneys at Law §§ 237, 264. See ALR Index under Attorney or Assistance of Attorney; Attorneys’ Fees; Fines, Penalties, and Forfeitures. Affirmed in part, reversed in part, and remanded for an award of reasonable attorney fees to the defendant. White, J., concurring in part and dissenting in part, stated that the denial of sanctions under MCR 2.114(E) was proper, but the case should be remanded to the trial court for reconsideration of the question of attorney fees under MCR 2.405(D) in light of Gudewicz v Matt’s Catering, Inc, 188 Mich App 639 (1991). Judgments — Offers to Stipulate Entry of Judgment — Rejection — Attorney Fees. A trial court abuses its discretion by denying a motion for attorney fees as a sanction for the refusal of an offer to stipulate the entry of a judgment where the only reason for the denial is that the rejection of the offer of judgment was reasonable (MCR 2.405[D]). Daryle Salisbury, for the plaintiff. Roger H. Leemis, for the defendant. AFTER REMAND Before: Doctoroff, C.J., and Weaver and White, JJ. Per Curiam. Defendant appeals a December 5, 1990, Wayne Circuit Court order denying its motion for attorney fees and costs pursuant to MCR 2.405 and sanctions pursuant to MCR 2.114(E). On appeal, defendant contends that the trial court abused its discretion when it refused to grant its request for reasonable attorney fees and erred in denying its request for sanctions. We affirm in part, reverse in part, and remand the matter to the trial court. Plaintiff was employed by defendant as a nursing supervisor beginning on May 10, 1982. On September 20, 1983, defendant terminated plaintiffs employment on the basis of what it claimed was her failure to provide adequate care for her patients. Plaintiff subsequently filed this wrongful discharge action alleging breach of contract, termination without just cause, and age discrimination. Plaintiff sought damages for loss of wages and loss of employee benefits, and also requested injunctive relief in the form of immediate reinstatement. The case was mediated at $20,000, which plaintiff accepted and defendant rejected. Thereafter, defendant moved for summary disposition pursuant to MCR 2.116(0(10), claiming that there was no genuine issue of material fact. The trial court granted defendant’s motion for summary disposition, but this Court reversed the order on appeal, concluding that there existed a genuine issue of material fact whether plaintiff had a reasonable expectation of employment terminable for just cause only. See Butzer v Camelot Hall Convalescent Centre, Inc, 183 Mich App 194; 454 NW2d 122 (1989). On April 23, 1990, the case having been remanded, defendant submitted an offer to stipulate the entry of a judgment for plaintiff in the amount of $3,500. Plaintiff rejected the offer without filing a counteroffer. Following a seven-day jury trial, a verdict was returned for defendant, the jury concluding that plaintiff had no cause of action. Defendant filed a motion for costs and attorney fees as permitted under MCR 2.405(D)(1) and also requested sanctions under MCR 2.114. Following a hearing, the trial court stated: Recalling this case very well and remembering the facts of it, the emotion that was involved in it, the Court is of the opinion that both parties proceeded to trial and made their rejections in good faith and this Court is of the opinion that Ms. Butzer should not be penalized to a point of having to pay over ten thousand dollars in attorney fees for seeking her day in court. The trial court awarded defendant $1,216.98 in costs, to which plaintiff did not object, but denied the request for attorney fees and sanctions. The purpose of imposing costs under MCR 2.405 is to encourage the parties to settle before trial. Freysinger v Taylor Supply Co, 197 Mich App 349, 353; 494 NW2d 870 (1992); Brooks v Gough, 189 Mich App 623, 625; 473 NW2d 771 (1991). MCR 2.405(D)(3) states that the court may, in the interest of justice, refuse to award a fee under the rule. In Gudewicz v Matt’s Catering, Inc, 188 Mich App 639, 645; 470 NW2d 654 (1991), this Court expressly rejected the trial court’s denial of fees under MCR 2.405 based solely upon an offeree’s "reasonable rejection” of a counteroffer of judgment. This Court concluded that the public policy behind the rule would not be served by denying fees on the basis of an offeree’s reasonable rejection. Id. As in Gudewicz, supra, we conclude that the trial court’s denial of defendant’s motion for reasonable attorney fees in this case was an abuse of discretion. The fact that plaintiff may have proceeded to trial in good faith does not excuse liability for fees when she knowingly denied the offer at the risk of having to pay those fees. See Sanders v Monical Machinery Co, 163 Mich App 689, 693; 415 NW2d 276 (1987). The better position is that a grant of fees under MCR 2.405 should be the rule rather than the exception. Gudewicz, supra at 644-645; Stamp v Hagerman, 181 Mich App 332, 338-339; 448 NW2d 849 (1989). To conclude otherwise would be to expand the "interest of justice” exception to the point where it would render the rule ineffective. See Gudewicz, supra at 644 (quoting 2 Martin, Dean & Webster, Michigan Court Rules Practice [3d ed], pp 455-456). Regarding defendant’s argument that it is entitled to sanctions under MCR 2.114(E), we disagree. The signature requirement under this rule seeks to ensure that pleadings are verified and filed in conformity with MCR 2.114(D). Warden v Fenton Lanes, Inc, 197 Mich App 618, 626; 495 NW2d 849 (1992). Although it is true that the rule provides that the signature is a certification that the pleadings are not filed for an improper purpose, we are not convinced that the pleadings in this case were in violation of this rule. A mediation panel recommended a $20,000 award in favor of plaintiff, and this Court previously determined that plaintiff’s pleadings and other evidence were sufficient to raise a genuine issue of material fact. See Butzer, supra. Under these circumstances, we find unpersuasive defendant’s contention that it is entitled to sanctions under MCR 2.114. Affirmed in part, reversed in part, and remanded for a determination of reasonable attorney fees. We do not retain jurisdiction. No costs are taxable, neither party having prevailed in full. White, J. (concurring in part and dissenting in part). I concur in the majority’s affirmance of the trial court’s denial of sanctions under MCR 2.114(E). I dissent from its reversal of the denial of attorney fees under MCR 2.405. Rather than reversing, I would remand the case to the trial court for reconsideration in light of Gudewicz v Matt’s Catering, Inc, 188 Mich App 639; 470 NW2d 654 (1991). After trial, defendant moved for costs and attorney fees pursuant to MCR 2.405 and 2.114. The trial court awarded defendant $1,216.98 in routine fees and costs, but denied the request for $12,410.07 in attorney fees under both court rules. The court stated: Recalling this case very well and remembering the facts of it, the emotion that was involved in it, the Court is of the opinion that both parties proceeded to trial and made their rejections in good faith and this Court is of the opinion that Ms. Butzer should not be penalized to a point of having to pay over ten thousand dollars in attorney fees for seeking her day in court. I believe that the assessment of attorney fees is discretionary with the Court and under the circumstances of this case, the Court is not going to assess attorney fees in the bill of costs, but will assess the one thousand, two hundred and six dollars and ninety-eight cents. Defendant argues that MCR 2.405 is unambiguous and requires imposition of reasonable attorney fees except in very limited circumstances. Defendant asserts that this case is unremarkable and presents no special circumstances to justify the court’s decision not to award attorney fees. In Sanders v Monical Machinery Co, 163 Mich App 689, 693; 415 NW2d 276 (1987), this Court affirmed the trial court’s award of attorney fees to the defendant under MCR 2.405. The Court stated that the purpose of MCR 2.405 is to encourage parties to settle matters before trial. If an offer to settle is made and the offer is not patently frivolous, the rule creates an obligation to accept, make a counteroffer, or reject. A litigant who rejects or fails to respond and goes on to lose before a jury is at risk of paying costs and attorney fees as provided in MCR 2.405. In Stamp v Hagerman, 181 Mich App 332; 448 NW2d 849 (1989), this Court affirmed the court’s refusal to award attorney fees to the defendant under MCR 2.405(D)(1). The Court said: However, MCR 2.405(D)(3) provides that the "court may, in the interest of justice, refuse to award an attorney fee under this rule.” In Sanders, supra, this Court concluded that the trial court’s decision to allow attorney fees under this subrule is discretionary, although the grant of attorney fees was thought to be preferred under the subrule as indicated by the language requiring that the trial court’s refusal to grant the attorney fees be in the "interest of justice.” The Sanders Court went on to uphold the trial court’s grant of attorney fees to the defendant as a reasonable exercise of discretion where the plaintiffs failed to respond to the defendant’s offer of judgment of $5,000 and a jury subsequently returned a verdict of no cause of action. The Sanders Court rejected the plaintiffs’ claim that the discretionary language "in the interest of justice” only permits attorney fees in exceptional circumstances where there has been bad faith or unreasonable conduct. Finally, the Sanders Court expressed its opinion that attorney fees should be routinely granted under this subrule. In the instant case, by contrast, the trial court refused to award attorney fees for the reason that plaintiffs had not rejected either of the mediation evaluations and thereafter negotiated reasonably and in good faith in an effort to reach a settlement. The trial court concluded that these facts did not indicate that the discretionary sanction against plaintiffs in the form of attorney fees was appropriate. Hence, on its face, the trial court appeared to apply the very standards of good faith and reasonable conduct that the Sanders Court suggests would not preclude an award of attorney fees to the opposing party. We are, however, of the opinion that what constitutes "in the interest of justice” must be decided on a case-by-case basis. While not controlling, a trial court may properly consider the good faith or reasonable conduct of the parties in resolving whether attorney fees are appropriate. [181 Mich App 338-339.] The Court went on to discuss cases dealing with the concept of judicial discretion. The Court concluded: Given the fact that plaintiffs proceeded to trial only after rejecting an offer which was substantially less than the prior two mediation evaluations, we conclude that the trial court did not abuse its discretion in refusing to award attorney fees to defendants. Although an award of attorney fees is favored under MCR 2.405(D)(3), we do not find that a consideration of the "interest of justice” standard precluded the trial court from refusing to award attorney fees to defendants under the circumstances of this case. [Id. at 342.] In Gudewicz, supra, this Court reversed the trial court’s ruling that under MCR 2.405(D)(3) attorney fees should be denied to the defendant in the interest of justice. The basis for the trial court’s decision was that the plaintiff’s decision to reject the counteroffer was reasonable in view of the mediation. The Gudewicz Court quoted from 2 Martin, Dean & Webster, Michigan Court Rules Practice (3d ed), pp 455-456: As to attorney fees, the rule itself gives no guidance as to the kinds of situations in which a court may determine that the interests of justice preclude an award of attorney fees. . . . [S]hould the courts liberally interpret the subrule, and routinely deny the imposition of attorney fees, trial counsel will quickly realize that the cost provisions and monetary sanctions imposed by rule 2.403(0) [mediation sanctions] may be readily negated by the submission of an offer of settlement under 2.405. See MCR 2.405(D)(6). If the imposition of sanctions under rule 2.403 is mandatory (which it is), but only discretionary under rule 2.405 (which they are), the authors have little doubt as to which rule the parties will elect to control in the action. Unless the imposition of costs under rule 2.405 is equally as certain as they are [sic] under rule 2.403, Michigan’s mediation rule will quickly be rendered useless. [188 Mich App 644.] The Court discussed Sanders and Stamp, supra:. Similar concerns were expressed by this Court in Sanders, supra. The Sanders panel concluded that the sanctions provisions of the court rule should be routinely enforced and attorney fees granted, except in the event of an unusually large verdict, or in the event of a defense verdict rendered in the face of catastrophic damages. 163 Mich App 692-693. In Stamp v Hagerman, 181 Mich App 332, 339; 448 NW2d 849 (1989), another panel concluded that, while not controlling, the good faith or reasonable conduct of the parties properly may be considered by a trial court in resolving the question whether attorney fees are appropriate. [188 Mich App 644-645.] The Court concluded: In this case, the sole reason given by the trial court for denial of attorney fees was that plaintiffs reasonably refused the counteroffer. This was insufficient justification under Stamp and Sanders, supra, and runs contrary to the policy of Sanders and the commentators which favors the award of attorney fees absent unusual circumstances. [188 Mich App 645.] While the Gudewicz Court recognized the rule set forth in Stamp, supra, it applied a far more stringent standard for determining when attorney fees can properly be denied under MCR 2.405(D) (3). In the instant case, the trial court’s decision not to grant attorney fees would not constitute an abuse of discretion under Stamp, because the facts are very similar to those in Stamp and the decision apparently was based on plaintiffs good faith and reasonable conduct. The enunciation of the decision on the record in November 1990, after Stamp had been decided but before Gudewicz, would have been sufficient under Stamp. However, Gudewicz, which is controlling under Administrative Order No. 1990-6, requires more. It is unclear whether the trial court would have awarded or denied attorney fees under Gudewicz. In other words, had Gudewicz been decided before the trial court rendered its decision, it may have granted fees or denied fees, setting forth reasons believed to be sufficient under Gudewicz. Because the trial court did not have the benefit of Gudewicz when it made the decision and because we do not know how it would have applied the Gudewicz standard to the instant case, I think a remand for reconsideration, rather than a reversal, is appropriate. I would remand to the trial court for reconsideration in light of Gudewicz, with instructions that if the trial court continues to be of the view that attorney fees should be denied under MCR 2.405(D)(3) and Gudewicz, it should fully set forth its reasons on the record.

BRENDA GRAVITTE, Plaintiff v. MITSUBISHI SEMICONDUCTOR AMERICA, INC., Defendant No. 9114SC967 (Filed 6 April 1993) 1. Handicapped Persons § 1 (NCI4th) — back problems —inability to do particular job —no major life activity limited —plaintiff not handicapped —employer not required to reasonably accommodate “handicap” Plaintiff was not a “handicapped person” within the meaning of N.C.G.S. § 168A-1 et seq. (the “North Carolina Handicapped Persons Protection Act”), and the trial court therefore properly granted defendant’s summary judgment motion on plaintiffs claim that defendant employer failed to make reasonable accommodation to her handicap in violation of N.C.G.S. § 168A-4, since plaintiff would be unable to show at trial that her physical impairment limited a “major life activity” where evidence in the record indicated that plaintiff experienced some pain in her lower back and that she was under a physician’s order not to lift more than 40 pounds, to avoid repetitive bending at the waist, and to avoid prolonged sitting or standing without changing position; the activities which caused plaintiff pain and discomfort were not those essential tasks one must perform on a regular basis in order to carry on a normal existence; and plaintiff was not “handicapped” merely because she could not perform one particular type of job. N.C.G.S. § 168A-3(4)(i). 2. Labor and Employment § 63 (NCI4th)— at-will employee — resignation —no claim for wrongful discharge The trial court properly granted defendant’s motion for summary judgment on plaintiff’s claim for wrongful discharge where plaintiff, an at-will employee, tendered her resignation after asking to be transferred to another position and being told that none was currently available, since a plaintiff who voluntarily resigns defendant’s employ cannot bring a claim for wrongful discharge. Am Jur 2d, Master and Servant §§ 27-33. Modern status of rule that employer may discharge at-will employee for any reason. 12 ALR4th 544. Modern status as to duration of employment where contract specifies no term but fixes daily or longer compensation. 93 ALR3d 659. Right of corporation to discharge employee who asserts rights as stockholder. 84 ALR3d 1107. Reduction in rank or authority or change of duties as breach of employment contract. 63 ALR3d 539. Employer’s termination of professional athlete’s services as constituting breach of employment contract. 57 ALR3d 257. Appeal by plaintiff from order entered 15 May 1991 by Judge J.B. Allen, Jr., in Durham County Superior Court. Heard in the Court of Appeals 13 October 1992. McCreary & Read, by Daniel F. Read, for plaintiff-appellant. Poyner & Spruill, by Cecil W. Harrison, Jr. and Laura ■Broughton Russell, for defendant-appellee. JOHN, Judge. Plaintiff appeals from summary judgment dismissing her claims against defendant for violation of G.S. § 168A-1 et seq. (the “North Carolina Handicapped Persons Protection Act”) and for wrongful discharge. We affirm the trial court. The pleadings, depositions, answers to interrogatories, affidavits, and other materials before the trial court indicate the following: While working for defendant in 1988, plaintiff sustained a back injury and subsequently took several leaves of absence. During her absence, plaintiff received worker’s compensation benefits and defendant paid her medical bills. According to plaintiff, defendant “put me on leave until their doctor, the physical therapist, and my doctor agreed that it was okay for me to come back.” By letter dated 20 March 1990, Dr. Peter Bronec (plaintiff’s physician) advised defendant that plaintiff could return to work if certain restrictions were followed. In pertinent part his letter provides: Brenda Gravitte is suffering from chronic musculoligamentous strain of the lumbar spine which is also associated with mild degenerative disease o[f] the lumbar spine. This is usually the result of excessive stress to the lower lumbar region as is encountered with heavy lifting and repetitive bending at the waist. She is able to do well as long as she stays within certain activity restrictions. Specifically, I have recommended that she not lift more than 40 pounds, avoid repetitive bending at the waist, and avoid prolonged sitting or standing in one place .... I expect her to remain under these restrictions permanently. As long as she can remain within these restrictions, I see no reason why she cannot work. It is my understanding that there is an aspect of her current job which requires more lifting than the restrictions. This seems to have been giving her the most trouble. I understand . . . that this weight could be broken up into smaller weights. However this has apparently caused some discord among the other employees, therefore Brenda has felt compelled to lift the entire weight. If this problem cannot be rectified then she would not be able to continue performing that job. If there is no other job currently available under these guidelines, than [sic] it might be appropriate to place her on medical leave until such time that a satisfactory job becomes available. I do not feel that any length of medical leave will allow her to return to a job which exceeds these restrictions as she has proven in the past. On 6 April 1990 plaintiff returned to her position as an Operator in defendant’s Plating Department. Before doing so, plaintiff, as well as Sheila Barnes, her supervisor, and E. L. Fricke, defendant’s human relations supervisor, signed a “Memorandum of Understanding” which provided inter alia that plaintiff’s return was “contingent upon [her] compliance with the stipulations as set down by Dr. Peter Bronec” and listed several “restrictions and conditions” which comport with those set forth in the physician’s letter. Plaintiff thereafter sought transfer to other positions, but was told there were no openings. On 18 May 1990 she resigned. In her letter of resignation plaintiff stated: It is with regret that I am turning in my two weeks’ notice. As you and human resources are aware and have been, the medical problems that I have had in plating [sic]. After coming back from medical leave this last time I was informed that modifications were made in plating to accom[mo]date my situation with working in the plating department. The only modifications were two temporary people were added, only one remains. One was discharged 4-26-90. With the amount of work that we have it’s hard for the other operator to stop what she’s doing and do the heavy part of my job. Also if I lift one magazine at the time to load the oven or carry it ... to plating the increased amount of twisting at the waist gives me a lot of pain in my back. I’ve discussed this with Dr. Bronec and he has advised me that if the problems with this particular job cannot be rectified then if the company does not see fit to put me in another job that is not so strenuous on me that I should seek employment else where [sic]. As I have stated I’ve been through channels and ask[ed] for something else but have been told there is nothing else in the plant for me to do. I had planned to stay with MSAI until retirement, being as I have been employed here 5 years [on] May 13, 1990. But my health will not permit me to remain in this job, and the company says there’s nothing else that I can do. Plaintiff contends the trial court erred by granting defendant’s motion for summary judgment. Under Rule 56(c), N.C. Rules of Civil Procedure, summary judgment should be granted only “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 any party is entitled to a judgment as a matter of law.” The party moving for summary judgment bears the burden of establishing the lack of any triable issue, Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 414 S.E.2d 339 (1992), and may meet this burden by (1) proving that an essential element of the opposing party’s claim is nonexistent; (2) showing through discovery that the opposing party cannot produce evidence to support an essential element; or (3) showing that the opposing party cannot surmount an affirmative defense. Roumillat at 63, 414 S.E.2d at 342. I. In her first claim, brought under the North Carolina Handicapped Persons Protection Act, G.S. § 168A-1, et seq. [hereinafter the Act], plaintiff alleges that she is a “qualified handicapped person” within the meaning of the Act and that defendant failed to make reasonable accommodation to her handicap in violation of G.S. § 168A-4. The question of whether one is a “qualified handicapped person” under the Act must be preceded by a determination that one is a “handicapped person.” G.S. § 168A-30). The Act defines a “handicapped person” as “any person who (i) has a physical or mental impairment which substantially limits one or more major life activities-, (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment. G.S. § 168A-3(4) (emphasis added). “Major life activities” are defined as “functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, and learning.” G.S. § 168A-3(4)b. In Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 388 S.E.2d 134 (1990), the North Carolina Supreme Court recently considered what constitutes a “major life activity” under the Act. In Burgess, the plaintiff was discharged from his position as a short order cook after testing positive for the Human Immunodeficiency Virus (HIV), the agent currently recognized as responsible for Acquired Immune Deficiency Syndrome (AIDS). Although the plaintiff was asymptomatic for the AIDS disease itself, he nevertheless contended that, because he was discharged due to his affliction, he was regarded as having an impairment that limited a major life activity, “working.” In upholding the trial court’s grant of defendant’s motion to dismiss made pursuant to Rule 12(b)(6), N.C. Rules of Civil Procedure, the Burgess Court noted that the Act is narrower in scope than the federal act which specifically encompasses “working.” Burgess at 213-214, 388 S.E.2d at 138-139. “As an asymptomatic carrier of HIV, plaintiff has failed to show that he has any condition that would substantially limit his ability to perform any of the physical or mental tasks listed in the . . . Act as major life activities.” Id. at 214, 388 S.E.2d at 139. The Court also rejected the argument that (1) the ability to bear a healthy child or (2) the ability to engage in sexual relationships constitute “major life activities.” Id. “Major life activities” encompass only those “essential tasks one must perform on a regular basis in order to carry on a normal existence.” Id. Under Burgess then, plaintiff’s condition must limit more than her mere ability to work a particular job in order for it to affect a “major life activity.” The functions which are limited must be those listed in G.S. § 168A-3(4)b or “of the same nature as those listed.” Burgess at 214, 388 S.E.2d at 139. Evidence in the record here indicates that plaintiff experienced some pain in her lower back and that she was under a physician’s order not to “lift more than 40 pounds, [to] avoid repetitive bending at the waist, and [to] avoid prolonged sitting or standing in one place without the opportunity to move around and change position.” In her deposition, plaintiff asserted that repetitive lifting of objects weighing 40 pounds did not bother her, but rather it was the repetitive “twisting, turning, reaching, stooping, bending.” Of further note is a physician’s evaluation from 29 May 1990, 11 days after plaintiff’s employment ceased, that “[s]ince she has been out of work . . . the discomfort is slowly improving.” This physician assessed plaintiff’s condition as “[mjild recurrent low back pain. Probable musculoligamentous strain.” Based upon the foregoing, we conclude that plaintiff at trial will be unable to produce evidence in support of an essential element of her claim, that is, that her physical impairment limits a “major life activity” so as to bring her under the purview of G.S. § 168A-3(4)(i). The activities which cause plaintiff pain and discomfort simply are not those “essential tasks one must perform on a regular basis in order to carry on a normal existence.” Plaintiff is not “handicapped” merely because she cannot perform one particular type of job. We further note there is no evidence indicating plaintiff is a “handicapped person” as defined in either G.S. §§ 168A-3(4)(ii) or (iii). Since plaintiff is not a “handicapped person” as contemplated in the Act, the trial court properly granted defendant’s motion for summary judgment as to plaintiff’s first claim. II. Plaintiff’s second contention is that the trial court erred in dismissing her claim for wrongful discharge. We disagree. In North Carolina, the general rule is that, absent an employment contract for a definite period of time, both employer and employee are generally free to terminate their association at any time and without reason. Salt v. Applied Analytical, Inc., 104 N.C.App. 652, 655, 412 S.E.2d 97, 99 (1991), disc. review denied, 331 N.C. 119, 415 S.E.2d 200 (1992). This typical working relationship is known as “employment-at-will.” It is uncontroverted that plaintiff was an “at-will” employee. An exception to the employment-at-will doctrine exists where an employee is discharged for “an unlawful reason or purpose that contravenes public policy.” Coman v. Thomas Manufacturing Co., Inc., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989), quoting Sides v. Duke Hospital, 74 N.C.App. 331, 342, 328 S.E.2d 818, 826, disc. review denied, 314 N.C. 331, 333 S.E.2d 490 (1985). Plaintiff argues this exception is applicable to her. We disagree. To proceed under this exception, plaintiff must allege facts which indicate that she was in fact “discharged.” If plaintiff voluntarily resigned defendant’s employ, she cannot bring a claim for wrongful discharge. Here, plaintiff tendered her resignation after asking to be transferred to another position and being told that none was currently available. There is no evidence that she was ever subjected to a reduction in wages, and there is no indication that defendant suggested, much less threatened, that she would be terminated for any reason. Instead, the record shows: (1) that defendant paid plaintiff workers’ compensation benefits including medical bills and disability compensation; and (2) that defendant attempted to accommodate plaintiff’s medical condition. On these facts, it is clear plaintiff was not “discharged” by any act of defendant. Accordingly, the trial court properly granted defendant’s motion for summary judgment on plaintiff’s claim for wrongful discharge. The trial court’s order granting defendant’s motion for summary judgment is affirmed. Judges EAGLES and ORR concur.

GTE Products Corporation vs. Jefferson Davis Stewart, Third. Essex. December 10, 1992. April 6, 1993. Present: Abrams, Lynch, O’Connor, & Greaney, JJ. Injunction. Practice, Civil, Discovery, Preliminary injunction. In litigation between an attorney and a corporation that formerly had employed him as its in-house counsel, the record supported the judge’s denial of preliminary injunctive relief that would have required the attorney to return to the corporation certain documents containing confidential information, where the corporation made no showing of irreparable harm, other than its claim that possession of the documents might give the attorney an advantage in the litigation, and where the judge granted an injunction prohibiting the attorney from disclosing the information contained in the documents. [724-726] Civil action commenced in the Superior Court Department on October 16, 1991. A motion for preliminary injunctive relief was heard by John T. Ronan, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Arthur G. Telegen (Nina Joan Kimball with him) for the plaintiff. Earle C. Cooley (Paul F. Beckwith with him) for the defendant. Abrams, J. GTE Products Corporation (GTE) commenced this action against Jefferson Davis Stewart, III, its former in-house counsel, seeking preliminary and permanent injunctive relief, as well as damages. GTE claimed that (1) Stewart violated the attorney-client privilege, his ethical obligations as a member of the Kentucky bar, and the disciplinary rules of this court by disclosing certain documents to his own attorney; and (2) by removing or not returning the documents, Stewart unlawfully converted them to his own use. Stewart counterclaimed against GTE, alleging (1) wrongful discharge; (2) breach of the implied covenant of good faith and fair dealing; (3) conspiracy to commit wrongful discharge; and (4) intentional infliction of emotional distress. A Superior Court judge, after hearing, declined to issue a preliminary injunction ordering the return of the documents but did enter an order prohibiting Stewart from any further disclosure. Pursuant to G. L. c. 231, § 118, second par. (1990 ed.), GTE appeals from the portion of the interlocutory order in which the judge declined to order Stewart to return the documents. We transferred this case on our own motion. We affirm. Standard of review. In reviewing a denial of a request for a preliminary injunction, we determine whether the judge abused his discretion. Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615 (1980). “[Wjhile weight will be accorded to the exercise of discretion by the judge below, if the order was predicated solely on documentary evidence we may draw our own conclusions from the record.” Id. at 616. The judge heard argument but did not take any evidence. We therefore review the record to determine whether it “supports the judge’s resolution of the factual questions before him.” Id. at 622. Standard for preliminary injunction. “[W]hen asked to grant a preliminary injunction, the judge initially evaluates in combination the moving party’s claim of injury and chance of success on the merits. If the judge is convinced that failure to issue the injunction would subject the moving party to a substantial risk of irreparable harm, the judge must then balance this risk against any similar risk of irreparabie harm which granting the injunction would create for the opposing party. . . . Only where the balance between these risks cuts in favor of the moving party may a preliminary injunction properly issue.” (Footnote omitted.) Packaging Indus. Group, Inc. v. Cheney, supra at 617. “In an appropriate case, the risk of harm to the public interest also may be considered.” Brookline v. Goldstein, 388 Mass. 443, 447 (1983). We summarize the facts. GTE Service Corporation, an affiliate of the plaintiff, employed Stewart as in-house counsel. At some point in August, 1991, Stewart’s employment at GTE terminated. Stewart retained an attorney who wrote to GTE informing it of Stewart’s claim of wrongful discharge. Through this letter, GTE became aware that Stewart had various documents. GTE brought suit to recover these documents and Stewart counterclaimed for wrongful discharge. At GTE’s request, the action has proceeded under seal. In his order on GTE’s motion for a preliminary injunction, the judge determined that “it appears that . . . upon leaving his employment Stewart took with him certain documents containing privileged and confidential information.” In his order, the judge noted that there was “a serious dispute factually as to whether Stewart voluntarily and unilaterally severed his employment or whether he was effectively pushed out the door as too confrontational, unsuited for advancement and terminated in retaliation for his strong stand on issues of public safety regarding plaintiff’s products.” The judge declined to order the return of the documents. He did, however, issue “an interlocutory order - prohibiting the defendant Stewart, his agents, servants and any person acting in concert with Stewart from any further disclosure of any, every, and all communications [,] documents, materials, that has occurred between plaintiff corporation and the defendant employee-attorney Stewart [see note 2, supra] which arose out of the employment relationship which had to do with the defendant rendering legal services, advices, or opinions.” Harm to the plaintiff. GTE claims that denial of so much of the request for a preliminary injunction as would have ordered Stewart to return the privileged documents causes irreparable harm to the confidence and trust GTE has placed in its in-house counsel. GTE cites various cases where courts issued injunctions prohibiting lawyers from disclosing confidential information. This is precisely what the judge ordered in this case. A plaintiff experiences irreparable injury if there is no adequate remedy at final judgment. See Leubsdorf, The Standard for Preliminary Injunctions, 91 Harv. L. Rev. 525, 551 (1978). In determining the harm to the plaintiff, the court need consider only the harm that would not be redressed by final relief. Id. at 541. In awarding preliminary injunctive relief, a court is justified in requiring the plaintiff to bear a slightly heavier burden, given the problems of enforcing injunctions. See id. at 547. The judge prohibited any further disclosure of the documents, thereby eliminating any chance of harm to GTE from public disclosure. GTE has not shown that allowing Stewart simply to retain the documents until either the hearing on the merits or a pretrial motion challenging the use of any document or requesting that a deposition not take place would create any irreparable harm. GTE’s main claim is that allowing Stewart to retain the documents gives Stewart a litigational advantage that a suppression order would not cure. GTE states that, even if the judge refused to admit the documents as evidence, it has been injured because Stewart’s attorneys in the wrongful discharge case may use the privileged communications to identify witnesses to depose and to learn additional facts about the case. GTE does not cite any cases supporting this proposition. The inference drawn from GTE’s claim is that it has a right to a long and expensive discovery procedure and that allowing Stewart to bypass that process gives him a litigational advantage. “The conduct and scope of discovery is within the sound discretion of the judge.” Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 799 (1987). We reject the claim that there is a right to compel long and expensive discovery and that loss of that litigational advantage is an irreparable injury. The purposes for which the discovery rules exist “are to avoid surprise and the possible miscarriage of justice, to disclose fully the nature and scope of the controversy, to narrow, simplify, and frame the issues involved, and to enable a party to obtain the information needed to prepare for trial. In this way it was sought to put an end to the ‘sporting theory of justice,’ by which the result depends on the fortuitous availability of evidence or the skill and strategy of counsel.” (Footnote omitted.) 8 C.A. Wright & A.R. Miller, Federal Practice & Procedure § 2001, at 17-19 (1970). Stewart has an interest in a full hearing and in the “freedom to act in ways not yet shown to be unlawful.” Laycock, The Death of the Irreparable Injury Rule, 103 Harv. L. Rev. 688, 732 (1990). GTE, as “the moving party [,] must show that, without the requested relief, it may suffer a loss of rights that cannot be vindicated should it prevail after a full hearing on the merits.” Packaging Indus. Group, Inc. v. Cheney, supra at 616. We do not perceive a litigational advantage that the judge could not cure through judicial control of discovery. We reject the inference in GTE’s brief that it will suffer irreparable harm because it cannot control and delay discovery. GTE did not carry its burden of showing it would suffer an irreparable harm absent an injunction requiring Stewart to return the documents. Therefore there was no error in not ordering the defendant to return documents to the plaintiff. Order affirmed. In its notice of appeal, GTE also suggested it was appealing from the judge’s ruling to the extent it did not prohibit Stewart from disclosing further documents to his attorneys. Because GTE has not argued this issue on appeal, it is deemed waived. See Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975); Walsh v. Chestnut Hill Bank & Trust Co., ante 283, 285 n.2 (1993). The defendant appears to raise a factual dispute as to whether he had an attorney-client relationship with the plaintiff itself. The judge assumed that there was such a relationship and, on appeal, we also make that assumption. At oral argument, Stewart represented that he kept copies of all his files at home and that his superiors knew it. In his answer to GTE’s complaint, he admitted retaining documents, but denied that his possession of the documents was actionable. We accept the judge’s findings for the purposes of this review, although we do not decide whether every document reproduced in the record is privileged or contains privileged information. For example, GTE cites an unreported Connecticut Superior Court case dealing with the question of irreparable harm. International Business Mach. Corp. vs. Murray, Conn. Super. Ct., CV 90-0107445 (June 29, 1990). In that case, the plaintiff (IBM) claimed that “there would be severe damage to the proper functioning of the company if its executives believe that there is no confidentiality between themselves and IBM lawyers.” Murray wished to disseminate various documents to area newspapers, and in fact previously had done so in violation of a temporary restraining order. In finding Murray in contempt, the judge agreed that “disclosure constitutes irreparable harm.” We need not decide whether we would be guided by a Connecticut lower court’s ruling because the case is inapposite. The judge issued an order prohibiting disclosure other than to Stewart’s attorneys. GTE has not argued on appeal that Stewart should not be able to disclose to his attorneys. See note 1, supra. Counsel for Stewart has not challenged the breadth of the judge’s order. This is particularly true where, as here, there is a factual dispute as to whether the documents were retained by Stewart with the knowledge and consent of his superiors or were converted wrongfully. In Packaging Indus. Group, Inc. v. Cheney, supra at 616 n.10, we noted: “The risk that a party will suffer irreparable harm during the time between the hearing on the preliminary injunction and final adjudication on the merits may be minimized by consolidating the trial on the merits with the preliminary hearing.” On the record before us, GTE did not request such consolidation. Because we conclude that the plaintiff has failed to show irreparable harm, we do not consider or address any other issues raised.