Wrongful Termination Cases

BRADLEY v PHILIP MORRIS, INC (ON REMAND) Docket No. 155142, 155143. Submitted August 12, 1992, at Lansing. Decided April 5, 1993, at 10:40 a.m. Leave to appeal sought. Ronald Bradley and Cynthia Carsley, former employees of Philip Morris, Inc., brought a wrongful-discharge action in the Oakland Circuit Court against Philip Morris and two of its supervisors, alleging that employment had been terminated in violation of agreements providing for termination only for just cause and that the supervisors had tortiously interfered with the plaintiffs’ contractual relationship with Philip Morris. A jury awarded damages to the plaintiffs. The court, Jessica R. Cooper, J., which earlier had denied directed verdicts for the defendants, denied their motion for judgment notwithstanding the verdicts. The Court of Appeals, Jansen, P.J., and Sullivan and Weaver, JJ., reversed and remanded for a new trial against Philip Morris only, holding that the trial court had abused its discretion in excluding certain evidence of prior misconduct by the plaintiffs and that the claim against the supervisors of tortious interference with a contractual relationship was precluded because they had acted solely as agents of Philip Morris. 194 Mich App 44 (1992). The Supreme Court denied the plaintiffs leave to appeal and, in lieu of granting the defendants leave to cross appeal, remanded the case to the Court of Appeals for consideration of whether the trial court had erred in denying Philip Morris’ motions for a directed verdict and judgment notwithstanding the verdict. 440 Mich 870 (1992). On remand, the Court of Appeals held: The trial court correctly denied Philip Morris’ motions. Where, as in this case, an employer establishes written policies and procedures for the discharge of employees, but does not expressly retain the right to terminate them at will, the existence of a contract providing for just-cause termination is a question of fact properly decided by the jury. Reversed and remanded for a new trial. Sachs, Waldman, O’Hare, Helveston, Hodges & Barnes, P.C. (by Kathleen L. Bogas and Barbara M. Robinson), for the plaintiffs. Miller, Canñeld, Paddock & Stone (by W. Mack Faison, Gerald E. Rosen, Diane Soubly, and Claudia Roberts Ellmann), for the defendants. ON REMAND Before: Jansen, P.J., and Sullivan and Weaver, JJ. Sullivan, J. In a prior per curiam opinion, we reversed a jury verdict in this matter and ordered a new trial. 194 Mich App 44; 486 NW2d 48 (1991). The Supreme Court denied the plaintiffs’ application for leave to appeal; in lieu of granting leave on the defendants’ cross appeal, the Court vacated in part the judgment of this Court. On remand, this Court is ordered to consider defendants’ argument that they should have been awarded a directed verdict or a judgment notwithstanding the verdict on the plaintiffs’ causes of action. 440 Mich 870 (1992). We now consider the defendants’ contention and again remand for a new trial. We repeat, in part, the facts from the prior opinion: The termination of plaintiffs’ employment arose out of events that allegedly occurred on a Detroit Grand Prix weekend in a hotel room paid for by Philip Morris. Philip Morris arranged to have hotel rooms available in the Westin Hotel for its employees and for the purpose of entertaining clients. Plaintiff Ronald Bradley and defendants Graham and Hopkins all were supervisors in Philip Morris’ Farmington Hills office. On the evening in question, two secretaries who worked in the Farmington Hills office — plaintiff Cynthia Carsley and Gina Stauch — met other Philip Morris employees in the Renaissance Center for drinks. Bradley, Carsley, and Stauch ended up in Bradley’s hotel room, which was paid for by Philip Morris. Briefly put, Stauch alleged that she fell asleep in a chair in the room, and when she awoke a few hours later, Bradley and Carsley were having sexual intercourse in the bed located a few feet away. Out of concern over what would happen if they knew she had seen them, Stauch ignored the situation. Eventually, however, Stauch’s allegations were made known to Graham and Hopkins. Stauch’s work performance and attitude had allegedly declined and she no longer respected Bradley or Carsley. Graham testified that he believed Bradley was favoring Carsley by not assigning her work when she did not appear to be busy. Although Bradley and Carsley testified that they did not have sexual intercourse on the night in question, they were both fired for misconduct — offensive action to another employee. [194 Mich App 46-47.] Defendants argue that plaintiffs were in fact at-will employees subject to discharge at any time and that plaintiffs therefore could not establish subjectively or objectively that their contracts of employment were terminable for just cause only. Therefore, the defendants argue that the trial court should have entered a directed verdict of no cause of action or a judgment notwithstanding the verdict. The primary purpose of the Supreme Court’s remand was to consider this question. Snell v UACC Midwest, Inc, 194 Mich App 511, 512; 487 NW2d 772 (1992), states: Oral contracts of employment for an indefinite term are presumed to be terminable at the will of either party. This presumption can be overcome, however, by the existence of an express agreement to the contrary, or by the employee’s legitimate expectations of continued employment absent "just cause” for termination arising from the employer’s established policies and procedures. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980). To infer that an employment contract provides for termination only for just cause, the employee must have an objective expectation of continued employment, not merely a subjective one. Grow v General Product, Inc, 184 Mich App 379, 382-384; 457 NW2d 167 (1990). Wilson v General Motors Corp, 183 Mich App 21, 36; 454 NW2d 405 (1990), stated the well-recognized rule that a motion for judgment notwithstanding the verdict shall be granted only where the evidence presented is insufficient to create an issue for the jury. In deciding a motion for a directed verdict, the evidence and all reasonable inferences are to be viewed most favorably to the nonmoving party. Shipman v Fontaine Truck Equipment Co, 184 Mich App 706, 711; 459 NW2d 30 (1990). Where, as here, the employer has not expressly and unambiguously reserved the right to terminate its employees at will, a question of fact is created that must be decided by a jury. Particularly significant is the fact that four of the defendants’ current and former employees testified at trial that Philip Morris has a policy of just-cause employment, and not an at-will employment policy. Significant, too, is the document entitled "ddd (Discipline Documentation and Discharge),” which states: "Philip Morris does not use the employment at-will doctrine in making employment decisions.” The Michigan Supreme Court has previously ruled that where an employer establishes written policies and procedures by which to discharge employees but does not expressly retain the right to terminate employees at will, the existence of a just-cause contract is a question of fact for the jury. Renny v Port Huron Hosp, 427 Mich 415, 417-418; 398 NW2d 327 (1986). We therefore again remand the matter to the trial court for a new trial.

STOPCZYNSKI v FORD MOTOR COMPANY Docket No. 132931. Submitted December 9, 1992, at Detroit. Decided March 24, 1993; approved for publication June 17, 1993, at 9:10 a.m. Edward Stopczynski brought an action in the Macomb Circuit Court against Ford Motor Company, alleging, in part, wrongful discharge in violation of an alleged contract of employment prohibiting his discharge absent just cause. The court, George R. Deneweth, J., granted summary disposition for the defendant. The plaintiff appealed. The Court of Appeals held: 1. The provisions of the employment agreement were fully disclosed, and the express terms of the contract negate the plaintiff’s claim that a just-cause contract based on oral representations exists. By signing the contract, the plaintiff assented to employment at will, and he may not maintain an action based on alleged prior oral assurances. 2. The defendant’s adoption of disciplinary guidelines did not transform the at-will employment relationship into one prohibiting discharge absent just cause. 3. The defendant complied with the disciplinary procedures outlined in its employee manual before it terminated the plaintiff. The award of summary disposition was proper. 4. The trial court properly found that damages for intentional infliction of emotional distress are not recoverable in an action for breach of an employment contract. In addition, the conduct alleged to have occurred is not so outrageous that it goes beyond all possible bounds of decency. Affirmed. 1. Contracts — Rescission — Failure to Read. A person who signs a contract cannot seek to avoid it on the bases of not having read the contract or of having supposed that it was different in its terms. References Am Jur 2d, Contracts §§ 185, 539, 546; Fright, Shock, and Mental Anguish § 34. See ALR Index under Contracts; Emotional Injury. 2. Master and Servant — Employment at Will — Disciplinary Policies. An employer’s adoption of a disciplinary policy in an employee manual by itself does not transform an at-will employment relationship into one prohibiting discharge absent just cause. 3. Master and Servant — Intentional Infliction of Emotional Distress — Damages — Breach of Employment Contract. Damages for intentional infliction of emotional distress are not recoverable in an action for breach of an employment contract. Roberta Kyselka Sarkis, for the plaintiff. James C. Curtiss and John M. Thomas, Office of the General Counsel, Ford Motor Company, for the defendant. Before: Cavanagh, P.J., and Mackenzie and Griffin, JJ. Per Curiam. This is a wrongful discharge case. Plaintiff alleges that he was fired from his job with defendant in violation of an alleged contract of employment prohibiting his discharge absent just cause. The circuit court entered summary disposition in favor of defendant pursuant to MCR 2.116(0(10), and plaintiff now appeals as of right. We affirm. Plaintiff worked for defendant for twenty-three years before he was fired in March of 1988. Plaintiff began working for defendant in 1965 in an hourly and union-represented position. In 1968, plaintiff was offered a transfer to a salaried position as a nonunion supervisor. Before accepting the transfer, plaintiff inquired whether he would be afforded the same job protection that he had received in his union position. Plaintiff claims that defendant promised him that he would receive the same type of protection and that he could only be discharged for just cause and only after progressive disciplinary measures were followed. However, upon accepting the transfer, plaintiff signed an employment agreement containing the following provisions: I understand that my employment is not for any definite term, and may be terminated at any time, without advance notice, by either myself or Ford Motor Company; that my employment is subject to such rules, regulations, and personnel practices and policies, and changes therein, as Ford Motor Company may from time to time adopt; and that my employment shall be subject to such layoffs, and my compensation to such adjustments, as Ford Motor Company may from time to time determine. I acknowledge that the terms contained herein are the entire terms of my employment agreement, that there are no other arrangements, agreements, or understandings, verbal or in writing, regarding my present or future employment with Ford Motor Company and that any purported arrangements, agreements or understanding made in the future shall not be valid unless evidenced by a writing signed by a properly authorized representative of Ford Motor Company. In granting summary disposition, the circuit court ruled as a matter of law that the contract provided for employment at will. The court further ruled that none of the additional documentation offered by plaintiff was sufficient to create an implied agreement to terminate only for cause. On appeal, plaintiff contends that this ruling was erroneous because genuine issues of material fact exist. After thorough review, we find no merit to any of plaintiffs arguments. At the outset, we reject plaintiffs argument that the provisions of the employment agreement were not fully disclosed. Although the document plaintiff signed contains additional provisions regarding medical insurance, withholding allowances, and the like, the section captioned "Employment Agreement” is plainly disclosed and appears directly above plaintiff’s signature on the back side of the form. The trial court correctly observed that one who signs a contract cannot seek to avoid it on the bases that he did not read it or that he supposed that it was different in its terms. Paterek v 6600 Limited, 186 Mich App 445, 450; 465 NW2d 342 (1990); Moffit v Sederlund, 145 Mich App 1, 8; 378 NW2d 491 (1985). The express terms of the contract also serve to negate plaintiff’s claim that a just-cause contract exists on the basis of oral representations made before his acceptance of the transfer. This Court has expressly observed that the language at issue provides for employment terminable at will. See Schipani v Ford Motor Co, 102 Mich App 606, 610-611; 302 NW2d 307 (1981). Thus, by signing the contract, plaintiff assented to employment at will, and he cannot maintain an action based on prior oral assurances. See Scholz v Montgomery Ward & Co, Inc, 437 Mich 83, 92-93; 468 NW2d 845 (1991). We turn now to what appears to be the crux of plaintiff’s wrongful discharge claim. As noted above, the contract language providing for termination "at any time, without advance notice,” creates employment at will. However, the contract further states that plaintiff’s employment "is subject to such rules, regulations, and personnel practices and policies, and changes therein, as Ford Motor Company may from time to time adopt.” Plaintiff submits that this language incorporates by reference numerous other documents that "qualify” the at-will relationship and give rise to the inference that plaintiff had a legitimate expectation that he could be terminated only for just cause. We disagree with plaintiff’s argument. In his brief, plaintiff relies on several employment manuals that he claims imply the existence of job security. Significantly, however, plaintiff has not pointed out statements within these documents specifically relating to termination only for just cause. Instead, plaintiff relies primarily on a document entitled "Industrial Relations Administration Manual.” This document is approximately twenty-five pages in length and contains extensive and detailed procedures governing employee discipline. Many of these procedures contain mandatory language that the procedures must be employed before an employee can be discharged. Recently in Biggs v Hilton Hotel Corp, 194 Mich App 239; 486 NW2d 61 (1992), this Court squarely addressed the issue whether an employer’s adoption of disciplinary guidelines transforms an at-will employment relationship into one prohibiting discharge absent just cause. Applying the Supreme Court’s recent decision in Rowe v Montgomery Ward & Co, Inc, 437 Mich 627; 473 NW2d 268 (1991), this Court held that an employer could promulgate disciplinary procedures without altering the at-will status of its employees. In pertinent part, the panel in Biggs explained at 241-242: The fact that defendant had established a disciplinary system for its employees and, apparently, obligated plaintiff to abide by that disciplinary system in dealing with his subordinates does not establish unequivocally plaintiffs position that he was a just-cause employee rather than an at-will employee. Certainly, it is not unreasonable to expect that an employer, particularly one such as defendant that employs a large number of individuals, would want a systematic method of dealing with its employees and would provide a consistent set of guidelines under which its managers would deal with subordinates. This does not mean that by doing so an employer establishes just-cause employment rather than at-will employment. The concept of at-will employment means not only that the employer, if it so chooses, may provide a disciplinary system and may terminate only for cause, but also that the employer may terminate for any other reason if the employer believes that that is in the best interests of the employer. Indeed, in this respect, we once again return to Rowe and note that even in Rowe the employer had created a disciplinary system for dealing with its employees, but the Supreme Court nevertheless concluded that the employee could not harbor any legitimate expectation of a policy of discharge for cause by the employer. Id. at 651. [Emphasis added.] We find. Biggs applicable to the present case. We conclude that by simply adopting disciplinary procedures applicable to salaried employees such as plaintiff, defendant did not alter the at-will relationship created when plaintiff signed the employment contract in 1968. Accordingly, we conclude that the trial court did not err in granting summary disposition on the basis that plaintiff was an at-will employee. Furthermore, even assuming a jury could find that defendant’s disciplinary policy constituted a contract prohibiting termination absent just cause, we conclude that plaintiff has failed to show the existence of a genuine issue of material fact regarding whether defendant breached the contract in terminating plaintiff. Plaintiff submits that defendant failed to follow thoroughly all of the detailed procedures outlined in the manual before terminating him. However, the manual does not require meticulous compliance in every instance. In pertinent part, the manual states: Many cases will involve events that are clear cut and all the facts can be developed from established incidents or documents that make the circumstances self-evident and irrefutable. Others will require varying degrees of intensity of investigation. There is no template or formula for measuring the degree of penalty since each case has its distinguishing characteristics. Fairness, consistency, and common sense control in dictating the prescribed penalties. In the present case, plaintiff was fired after he admitted circumventing defendant’s purchasing procedures and directing Ford’s business to certain suppliers he favored. Upon investigation, defendant concluded that plaintiffs actions constituted gross misconduct and a breach of his fiduciary relationship to the company. Plaintiffs own exhibit "F” attached to his brief indicates that he was fired with proper management approval. We conclude that defendant complied with its procedures and was therefore properly awarded summary disposition. See Hale v Comerica Bank-Detroit, 189 Mich App 382, 384-385; 473 NW2d 725 (1991). Finally, plaintiff argues that the trial court erred in dismissing his claim for intentional infliction of emotional distress. We disagree. Damages for intentional infliction of emotional distress are not recoverable in an action for breach of an employment contract. Mourad v Automobile Club Ins Ass’n, 186 Mich App 715, 731; 465 NW2d 395 (1991). Furthermore, the conduct alleged to have occurred is not so outrageous that it goes beyond all possible bounds of decency. See generally Meek v Michigan Bell Telephone Co, 193 Mich App 340, 346-347; 483 NW2d 407 (1992). Affirmed. Plaintiffs reliance upon Schippers v SPX Corp (On Remand), 194 Mich App 52; 486 NW2d 89 (1992), lv gtd 441 Mich 881 (1992), is misplaced. Unlike the present case and Rowe, supra, the express contract in Schippers did not establish an at-will employment relationship: On the other hand, the handbook in this case did not, as did the handbook in Rowe, clearly and unambiguously notify plaintiff of any policy of termination at will. [Schippers, supra at 56.]

Richard Crane vs. Commissioner of the Department of Employment and Training. Essex. January 7, 1993. March 23, 1993. Present: Liacos, C.J., Wilkins. Abrams. Nolan, & Greaney, JJ. Employment Security, Eligibility for benefits, Good cause, Voluntary unemployment. A claimant seeking unemployment benefits, who had left his full-time employment in order to retain Supplemental Security Income (SSI) benefits, did not demonstrate that he left employment for good cause attributable to the employing unit or that his reason for leaving was such as to render his departure involuntary, as set forth in G. L. c. 151 A, § 25 (e); further, the claimant was disqualified from receiving unemployment benefits under G. L. c. 151 A, § 24 (b), where the record warranted the finding that he was not “available for work” as a result of his limiting his availability to work in order to retain his SSI benefits. [661-662] Civil action commenced in the Lawrence Division of the District Court Department on May 7, 1990. The case was heard by Kevin M. Herlihy, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Richard Crane, pro se. Beverly I. Ward, Assistant Attorney General, for the defendant. Abrams, J. Richard Crane, the plaintiff, appeals from the decision of the Lawrence District Court upholding the decision of the Commissioner of the Department of Employment and Training (department) denying Crane unemployment benefits. We transferred the case to this court on our own motion. We affirm. The facts as found by the department’s review examiner include the following. Richard Crane has been receiving Supplemental Security Income (SSI) benefits since 1979. Crane was a client of the Massachusetts Rehabilitation Commission prior to his employment at a department store. Crane is currently enrolled in an accounting program at Northeastern University as part of a vocational rehabilitation program. Regulations governing social security disability payments permit an individual to engage in full-time employment and still receive full SSI benefits for a nine-month “trial work period.” After the nine-month trial work period, SSI benefits cease if the claimant continues full-time employment. 20 C.F.R. § 404.1592 (1992). Some of Crane’s employment prior to his job at the department store counted toward his trial work period calculation. Notwithstanding the “trial work period” restrictions, Social Security policy allows a claimant to work part-time and earn up to $300 a month while retaining full disability benefits. Crane gained employment as a full-time sales associate at the department store (employer) in June, 1989. Crane did not discuss his SSI benefits nor any restrictions on his ability to work full-time with his employer. In October, 1989, Crane’s trial work period was about to end. Crane informed his employer that it would not be in his financial interest to continue working full time as doing so would terminate his SSI benefits. Crane gouged that his net earnings from his full-time position would be less than his SSI benefits alone. Crane concluded that the most profitable course would be to continue his employment on a part-time basis, which would enable him to continue receiving full SSI benefits while continuing his vocational training and supplementing his SSI benefits with income from his employment. After Crane apprised his employer of his circumstances, he was allowed to work part-time through December, 1989, with the understanding that in December his employment situation would be evaluated again. In January, 1990, the employer informed Crane that he would have to return to full-time status in order to continue his employment. Crane decided to leave his job in order to keep his SSI benefits. Crane filed a claim for unemployment compensation, which the department’s local office service representative denied on a finding of voluntary separation without good cause attributable to the employer. Pursuant to G. L. c. 151 A, § 42 (1990 ed.), we review the findings and decision of the department’s board of review (board) in accordance with the standard of review set out in G. L. c. 30A, § 14 (7) (1990 ed.), the State Administrative Procedure Act (Act). General Laws c. 151 A, § 25 (e) (1990 ed.), provides, in relevant part, that no unemployment benefits shall be paid to an individual “[f]or the period of unemployment next ensuing and until the individual has had at least four weeks of work and in each of said weeks has earned an amount equivalent to or in excess of his weekly benefit amount after he has left his work (1) voluntarily without good cause attributable to the employing unit or its agent. ... An individual shall not be disqualified from receiving benefits under the provisions of this subsection, if such individual establishes to the satisfaction of the commissioner that his reasons for leaving were for such an urgent, compelling and necessitous nature as to make his separation involuntary.” Although “the statute expressly provides that the law should be liberally construed to establish its purpose, which is ‘to lighten the burden which now falls on the unemployed worker and his family,’ ” Reep v. Commissioner of the Dep’t of Employ ment & Training, 412 Mass. 845, 847 (1992), Crane bears the burden of proving either that he left his employment for good cause attributable to the employing unit, or that his reason for leaving was of an urgent, compelling, and necessitous nature that would render his departure involuntary. Sohler v. Director of the Div. of Employment Sec., 377 Mass. 785 (1979). The nature of the circumstances of each individual case, and the degree of compulsion that such circumstances exert on a claimant, must be objectively evaluated. See Reep v. Commissioner of the Dep’t of Employment & Training, supra at 848. There was ample evidence to support the conclusion that Crane was capable of continuing his employment on a full-time basis. Crane did not leave his employment because he “was required by his employer to perform work that was ‘clearly antithetical to that for which [he] was initially employed,’ ” Guarino v. Director of the Div. of Employment Sec., 393 Mass. 89, 93 (1984), quoting Sohler v. Director of the Div. of Employment Sec., supra at 789. The board determined that Crane chose to leave his employment not because of a medical reason or inability to work, see, e.g., Uvello v. Director of the Div. of Employment Sec., 396 Mass. 812, 815 (1986) (insurmountable transportation problems can constitute good cause to decline otherwise suitable employment), but as a result of an evaluation of the options open to him. Crane contends he would have suffered financial harm and stress if he had continued at his employment on a full-time basis and lost his SSI benefits. He asserts that that is sufficient basis to conclude that his separation from employment was involuntary. We do not agree. General stress and dissatisfaction with one’s employment do not amount to urgent and compelling reasons adequate to make leaving employment involuntary. See Fanion v. Director of the Div. of Employment Sec., 391 Mass. 848 (1984); D’India v. Director of the Div. of Employment Sec., 387 Mass. 1005 (1982); Sohler v. Director of the Div. of Employment Sec., supra. The full-time hourly wages that the employer offered to Crane exceeded his part-time hourly wages. The change in the terms of Crane’s employment was not one that made Crane incapable of continuing his employment. Crane believed that he would lose his SSI benefits if he continued to work full-time. He chose to retain those benefits. In Bellotti v. Director of the Div. of Employment Sec., 382 Mass. 600 (1981), we stated that, when a claimant limits his or her availability for work in order to retain Social Security benefits, the board could be warranted in finding that the claimant was not “available for work” and was disqualified from receiving unemployment benefits, under G. L. c. 151 A, § 24 (b). Similarly, limiting availability for work to retain SSI benefits does not permit a claimant to obtain unemployment benefits. Crane’s reliance on City Wide Assocs. v. Penfield, 409 Mass. 140 (1991), to support his contention that his employer had agreed permanently to change Crane’s status from full-time to part-time is misplaced. Penfield was decided under § 504 of the Federal Rehabilitation Act of 1973, 29 U.S.C. § 794 (1988); the Rehabilitation Act applies only to the Federal government and programs receiving Federal assistance. It does not apply to private employers not receiving Federal funds. The temporary accommodation that the employer made in allowing Crane to work part-time during November and December was advantageous to Crane and the employer. It was not required by the Rehabilitation Act. The decision of the District Court judge is affirmed. So ordered. Although Crane characterizes his employer’s actions as having terminated his job, and implies that his employer’s offer of full-time employment was insincere and was prompted by Crane’s statement that he would file for unemployment benefits, this characterization contradicts findings of the review examiner adopted by the board. These findings are supported by substantial evidence. Crane for the most part frames his argument in terms of his having left his employment in order to maintain his SSI benefits. Section 14 (7) mandates that we give “due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.’’ Section 14 (7) also allows us to set aside or modify the board’s decision if it was not based on substantial evidence, or if it otherwise violated the law or the board’s statutory authority or jurisdiction. G. L. c. 30A, § 14 (7) (1990 ed.). Crane learned just prior to leaving that his hourly wage would be increased if he continued on a full-time basis.

Colin E. Boothby vs. Texon, Inc., & others. Hampden. November 3, 1992. March 4, 1993. Present: Liacos, C.J.. Wilkins. Abrams. Nolan. & Lynch. JJ. Contract, Employment, Performance and breach, Damages, Interference with contractual relationship. Corporation, Officers and agents. Frauds, Statute of. Employment, Termination. Damages, Termination of employment contract, Interest. Interest. Unlawful Interference. At the trial of a claim for breach of an employment contract the plaintiff produced sufficient evidence for the jury to conclude that a corporation’s board of directors had authorized the corporation’s president to enter into a contract for the plaintiffs permanent employment [476-477], and that the contract was an express contract for his permanent lifetime employment [477-478], The Statute of Frauds did not bar enforcement of an oral contract for permanent employment, where the contract could have been performed within one year. [478-479] At the trial of a claim for breach of an employment contract, the judge did not err in instructing the jury that it should use a “reasonable employer” standard in determining whether the employer had a right to terminate the employee for failing to perform satisfactorily [479-481], and there was sufficient evidence to submit the issue of satisfactory performance to the jury [481-482], At the trial of a claim for breach of an employment contract the plaintiff produced sufficient evidence for the jury to conclude that, at the time of the plaintiffs termination, there was other appropriate work in the defendant’s organization of the nature for which the plaintiff had been hired that he could have done. [482-483] In an action for breach of an employment contract the judge correctly determined that a certain jury instruction proposed by the defendant was not relevant to the facts of the case. [483-484] In an action for breach of a contract for lifetime employment, the plaintiff presented sufficient evidence to support the jury’s finding that he would incur future damages, that is, damages for the term of the contract beyond the date of trial and ample evidence as to the amount of damages, and the defendant’s motion for judgment notwithstanding the verdict was correctly denied. [484-486] At the trial of a claim of intentional interference with an advantageous relationship, the defendant’s motion for a directed verdict was properly granted where the plaintiff's evidence was insufficient to permit a finding that the defendant acted with actual malice in terminating the plaintiff’s employment. [486-488] The judge in a civil action properly denied the plaintiffs motion to amend the judgment to include twelve per cent interest from the date of the breach of contract to the date of the verdict, where the special questions submitted to the jury provided no way to annualize or otherwise make a yearly apportionment of the damages awarded for the purposes of assessing interest. [488] Civil action commenced in the Superior Court Department on October 18, 1984. After trial before Lawrence B. Urbano, J., a motion for a new trial was allowed by him. The case was retried before William H. Welch, J. The Supreme Judicial Court granted a request for direct appellate review. Mark S. Dichter of Pennsylvania (Joseph W. Ambash with him) for Texon, Inc. Charles V. Ryan (Joan C. Steiger with him) for the plaintiff. Thomas Bleasdale, president of the Footwear Industries Group of Emhart Corp., William C. Lichtenfels, executive vice president and a director of Emhart, and A. Peter Clackson, president and chief executive officer of Texon. Abrams, J. The parties have now been through two trials of the same issues. After the first verdict in favor of the plaintiff,. Colin E. Boothby, the judge allowed the motion of Texon, Inc. (Texan), for a new trial, determining that the verdict was against the weight of the evidence. At the second trial with a different judge, the jury again awarded Boothby significant damages. Each party has appealed. Texon challenges, under various theories, the denials in both trials of motions for judgment notwithstanding the verdict and for a third trial. Boothby appeals the judge’s allowance; in the first trial, of Texon’s motion for a directed verdict on his count of promissory estoppel and of A. Peter Clackson’s motion for a directed verdict on Boothby’s allegation of intentional interference with an advantageous relationship. Boothby also claims that the judge in the second trial erred in denying his motion to amend his order to allow for the addition of interest on the judgment. We granted Texon’s application for direct appellate review. We affirm. Texon appeals from the denials of motions for judgment notwithstanding the verdict and for new trials. The standard for reviewing the denial of a motion for judgment notwithstanding the verdict is “whether ‘anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn .in favor of the plaintiff.’ Poirier v. Plymouth, 374 Mass. 206, 212 (1978), quoting Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972).” Dobos v. Driscoll, 404 Mass. 634, 656, cert. denied sub nom. Kehoe v. Dobos, 493 U.S. 850 (1989). We therefore summarize the evidence in the light most favorable to the plaintiff. Coliu Boothby, a British citizen, worked for Bata Corporation for thirty years, beginning when he was sixteen years old. Bata was the biggest shoe company in the world. Boothby worked his way up, eventually serving on the personal staff of the owner and chief executive from 1972 until 1978. In 1978, Boothby became the general manager for Bata’s operation in Thailand where he was in charge of three factories, one hundred retail stores, twelve distribution depots, and almost three thousand employees. Texon, headquartered in South Hadley, Massachusetts, manufactured and sold insoles for shoes. Bata was one of its biggest customers, purchasing over two million dollars worth of insoles each year. From 1972 until 1978, Boothby and Lee Asseo, the president of Texon, handled the transactions between the two companies. In the first trial, Boothby testified that he considered Asseo to be “a man of high integrity and honesty,” For Boothby, Asseo’s “word was his bond.” Because Texon perceived a gap in its senior management, it was interested in recruiting Boothby. Texon had tried to lure Boothby away from Bata in 1976 and again in 1980. In both trials, Asseo said that he discussed the possibility of hiring Boothby with Texon’s board of directors at every board meeting from March, 1980, through August, 1981. Dudley Schoales, the chairman of the board, agreed that there were discussions at the board level about hiring Boothby. When asked if the board had authorized Asseo to meet with Boothby, Schoales said, “We sure pressed him to do it.” When asked what authority the board gave Asseo, Schoales stated, “I said anything that you can do to get him we ought to do.” Asseo met with Boothby in Bangkok, Thailand, in late January, 1981. Boothby communicated his concerns about leaving Bata to Asseo, noting that the promotional expectations he had made him very happy at Bata. Boothby “wasn’t prepared to make any move out of Bata or to even consider making any move out of Bata unless something was going to be attractive, something was going to be a challenge to [him], something was going to be permanent.” Boothby said that he informed Asseo that he had “almost one hundred percent job security with Bata due to [his] record, thirty years’ service, [his] present position and the need” for senior managers like him. In a follow-up letter, Asseo noted that Texon would be “giving [Boothby] an essentially permanent opportunity to spend the rest of your professional career in the so-called totally civilized side of the world.” In response, Boothby sent a return letter, listing the job security he had at Bata as one of his reasons for being wary of leaving. Both Schoales and Asseo stated that they understood that job security was a priority issue for Boothby and that salary alone would not convince Boothby to join Texon. Boothby stated that he wanted all points to be clarified before he actually accepted any position so there would be no problems later. Boothby and Asseo met again in South Hadley in July, 1981. Asseo told Boothby that Texon would be merging with Emhart Corporation (Emhart). Boothby testified that he informed Asseo that he was not going to make a move to Texon unless he had “absolute security.” He also told Asseo that this point was non-negotiable. Asseo assured him that, should he accept the position, Boothby would spend the rest of his working career at Texon. As part of the merger, Texon was required to inform Em-hart of any employees whose compensation was over $75,000. Boothby’s name was not included, on the advice of an attorney, because he had not yet begun work. The attorney suggested that it would be appropriate for Asseo to call the accepted offer of employment to Emhart’s attention. Asseo did discuss the accepted offer with Steven R. Ruffi who was the executive vice president of Emhart and who agreed that Boothby’s name did not belong on the schedule. The merger went through and, effective September 4, 1981, the resultant corporation was known as Texon, Inc. Boothby began working at Texon on October 13, 1981. In February, 1983, there was a reorganization in which Asseo became the president of the Footwear Materials Group (FMG). The rest of the footwear concerns were encompassed in the Footwear Industries Group (FIG), headed by Thomas Bleasdale. Boothby’s title was vice president/North American operations in FMG. On August 31, 1983, Asseo resigned as president of FMG and from Texon. Asseo testified that he had worked with Boothby from October, 1981, through August, 1983, and, at the time he left, knew of no valid reasons for firing Boothby. He also had not noted any inadequacies in Boothby’s performance. Texon had granted Boothby a series of merit raises. Asseo said that he had conversations with Ruffi and Bleasdale concerning the naming of his successor. Asseo explained that he had offered the names of George Oks, vice president in charge of European operations, Boothby, and an individual from outside Texon. Bleasdale suggested A. Peter Clackson and William Scanlon, the president of the Shoe Machinery Group. Asseo did not think that the candidates Bleasdale suggested were as appropriate as his own recommendations. Clackson was chosen as Asseo’s replacement. Boothby testified that Mario del Greco, an employee of twenty-five years, was promoted to regional marketing director for the Americas region. On July 10, 1984, Boothby presented del Greco’s job description to Clackson. Clackson declared that del Greco’s job was a “nothing job” and instructed Boothby to fire him. Boothby declared that this was not proper. They discussed the matter further. Clackson testified that he suggested Boothby demote del Greco to a job below the one from which he had been promoted. Boothby did not want to do this either. In the deposition Clackson said that he then ordered Boothby to fire del Greco. Boothby refused to do so, suggesting that Clackson should do it himself if he felt so strongly about it. Del Greco was not fired. In his deposition, in response to a question, Clackson said: “If I have a manager who reports to me who won’t do what he is told, it isn’t up to me to do what he should have done, it is up to me to rectify that situation.” On August 16, 1984, Clack-son called Boothby into his office to notify him that Clackson was reorganizing FMG and that Boothby’s job was being eliminated. He was told to leave the next day. Asseo stated that Texon’s informal policy was to terminate employees only for cause and that, before terminating them from the organization, Texon would make efforts to place the employees elsewhere in the company. Emhart had a similar policy. The deposition testimony of Royal Cowles, the vice president for human resources of Emhart Corporation, indicated that he and Clackson did not discuss the possibility of placing Boothby elsewhere in the organization. Cowles did, however, confirm that Boothby’s termination was not a discharge. Cowles explained that Boothby’s termination was not for cause, because, in that case, Boothby would not have been eligible for the six months’ severance pay he received. Asseo said that, during his tenure, no manager had ever been fired for failing to achieve the projection of profits indicated in a submitted budget. He also noted that all layers of management would tinker with the budgets, making modifications. The plaintiff sued the corporation and three of the officers on various theories. During the proceedings, the plaintiff waived his allegation of breach of implied contract. The judge dismissed the plaintiff’s allegation of promissory estoppel, granted Bleasdale’s motion for summary judgment of the count of intentional interference with an advantageous relationship, and granted Clackson’s motion for a directed verdict on the same count at the close of the plaintiff’s evidence. Another judge dismissed the plaintiff’s allegation of negligence. Special questions were submitted to the jury on the question of the breach of an express contract. The jury in the first trial found that (1) Boothby sustained the burden of proving that Texon entered into a permanent employment contract with Boothby guaranteeing him employment until death or retirement unless earlier terminated for unsatisfactory performance or lack of appropriate work; (2) he sustained the burden of proving that Texon’s board of directors either authorized or ratified the action of Asseo in entering the employment contract; (3) Texon failed to sustain the burden of proving that it had justifiable cause for terminating Boothby’s employment; and (4) Texon failed to sustain the burden of proving that there was no other appropriate work at Texon for Boothby to undertake at the time of his termination. That jury also returned a verdict as to damages. The jury awarded Boothby $296,100 plus interest as damages from the date of his termination until the date of trial. It also awarded $3,598,866 for future damages. Texon moved for judgment notwithstanding the verdict or in the alternative a new trial. On January 30, 1990, the judge denied the motion for judgment notwithstanding the verdict, but allowed the motion for a new trial. He determined that the evidence made it unlikely that Boothby and Asseo entered into an express contract that was to cover nineteen years. Therefore, he found that “the jury verdict in finding the permanent contract proven is so greatly against the weight of the evidence as to induce the belief that it was not the result of a careful consideration of the evidence but was the ‘product of bias, misapprehension or prejudice.’ Solimene v. B. Grauel & Co., [KG], 399 Mass. 790, 802 [(1987)].” On April 26, 1989, Black & Decker Corporation acquired Emhart. Black & Decker sold off the shoe manufacturing business on March 30, 1990. The case proceeded to a second trial on a count for breach of express contract only. Again, the jury were presented with special questions. The judge noted that the jury “found there was an oral express contract for permanent employment under the principle set forth in Carnig v. Carr, 167 Mass. 544 (1897), that it was authorized by Texon, that Texon, i.e., Emhart did not have justifiable cause to terminate him and there was work of type he was hired to perform available.” The jury awarded Boothby $2,146,560. Boothby moved to amend the order to include provision for interest and costs. The judge denied the motion. Texon moved for judgment notwithstanding the verdict and for a remittitur or a new trial. The judge denied the motions, con-' eluding that “there was evidence on which the jury could find Boothby had an excellent secure job with an international concern, Bata Shoe, that he was one of a small number close to the top, that he had excellent security and pension benefits [and] could have retired at age 60, that he did not want to consider a move unless he was sure the position would be permanent with excellent security, that Texon recruited him strenuously and risked loss of a good customer to get Boothby.” The judge continued: “I cannot say there was no basis for the jury’s verdict particularly when two juries have come out with significant verdicts. It appears they felt there was a contract, that Boothby was wrongfully terminated, that there was work he could have done of [the] type [for which] he was hired, that no other meaningful employment was offered, that what he could make from his own employment was substantially below what he would have made or received in pension and retirement benefits if he had not been terminated.” Texon s Appeal. 1. The existence of an enforceable contract for permanent employment. Both parties discuss Carnig v. Carr, 167 Mass. 544 (1897), a case where an enameller sold his business to the defendant in exchange for which the defendant agreed to employ the plaintiff permanently. Six months later, the defendant wrongfully and without cause terminated the plaintiff, who sued the defendant. “To ascertain what the parties intended by ‘permanent employment,’ it is necessary to consider the circumstances surrounding the making of the contract, its subject, the situation and relation of the parties, and the sense in which, taking these things into account, the words would be commonly understood.” Id. at 547. In Carnig v. Carr, we held that “the words would be commonly understood as meaning that, so long as the defendant was engaged in enamelling and had work which the plaintiff could do and desired to do, and so long as the plaintiff was able to do his work satisfactorily, the defendant would employ him, and that in that sense the employment would be permanent.” Id. a. Evidence of authority of Asseo to enter into a lifetime contract. The defendant, citing Rydman v. Dennison Mfg. Co., 373 Mass. 855 (1977), and Simonelli v. Boston Hous. Auth., 334 Mass. 438 (1956), states that the appellate courts of Massachusetts have narrowed the holding of Carnig v. Carr. What these cases actually do is insist that the plaintiff show that the individual with whom he or she entered into a contract for lifetime employment had the authority to do so. For example, in Rydman v. Dennison Mfg. Co., we held that the defendant’s motion for a directed verdict should have been allowed because “of the plaintiffs failure to produce evidence from which the jury could find or infer (a) that the personnel director and the engineer had implied or apparent authority to bind the defendant to a fourteen-year contract, or (b) that the defendant had ratified the alleged contract.” Id. In Simonelli v. Boston Hous. Auth., we noted that “[tjhere was no evidence that either [the manager] or [the personnel director] had ever made any contracts of permanent employment with any of the employees of the defendant, or that the defendant held them out as possessing such powers, or that it ever knew they or either of them attempted to exercise such powers.” Id. at 441. Boothby introduced evidence tending to prove that the board of directors of Texon had given Asseo the authority to bind Texon to a lifetime contract. Asseo said that the board of directors agreed that Texon needed someone with international experience to direct North American operations. He testified that the board members either knew Boothby personally or by reputation. Asseo reported to the board on his negotiations with Boothby and told the board members that it was job security, not salary, that most concerned Boothby. Asseo and Schoales both said that at one board meeting Schoales, chairman of the board of directors, told Asseo to do whatever necessary to get Boothby to leave Bata and join Texon. No

PATILLO v EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES Docket No. 126992. Submitted August 11, 1992, at Detroit. Decided December 28, 1992; approved for publication April 22, 1993, at 9:15 a.m. Dorris Patillo brought an action in the Wayne Circuit Court against Equitable Life Assurance Society of the United States and Leethel Neal, the manager of Equitable’s Detroit office, alleging wrongful termination of employment, defamation, and tortious interference with an at-will employment contract. The court, Charles Kaufman, J., denied the defendants’ motion for summary disposition and granted the plaintiffs motion to file an amended complaint. The defendants appealed by leave granted. The Court of Appeals held: 1. The court erred in denying the motion for summary disposition with regard to the wrongful termination allegation. The employment agreement between the plaintiff and Equitable Life supports the presumption that the plaintiffs employment was at will, because each party had the power to terminate the agreement by giving thirty days’ notice. A record could not be developed that would cause reasonable minds to differ with regard to whether the plaintiffs employment was at will. 2. Although the plaintiff admitted that he stormed out of Neal’s office, this does not amount to an admission by the plaintiff that he was insubordinate. Therefore, there is no merit to the defendants’ claim that, because the plaintiff admitted that he was insubordinate, summary disposition should have been granted with regard to the claim that the defendants made defamatory statements suggesting that the plaintiff was fired for insubordination. 3. Neal’s allegedly defamatory statements to the plaintiffs fellow agents were not subject to a qualified privilege. An employer’s qualified privilege to defame an employee by making statements to other employees whose duties interest them in the subject matter of the defamatory material is not applicable in this case. The plaintiffs fellow agents did not have a duty that would interest them in knowing the reason for his termination. References Am Jur 2d, Interference § 47; Libel and Slander § 271; Master and Servant §§ 27-42. Defamation: loss of employer’s qualified privilege to publish employee’s work record or qualification. 24 ALR4th 144. 4. The trial court did not abuse its discretion in allowing the plaintiff to amend his complaint to add factual information, uncovered in depositions made during discovery, that would support his claim of defamation. The plaintiff did not add a new and separate defamation claim, and the defendants did not suffer undue delay or prejudice. 5. A plaintiff may maintain an action for tortious interference with an at-will employment contract. The trial court did not err in denying the defendants’ motion for summary disposition of the plaintiffs claim of tortious interference because a record might be developed regarding that claim upon which reasonable minds could differ. Affirmed in part and reversed in part. 1. Master and Servant — Employment at Will. An employment contract providing each party the power to terminate the agreement by giving thirty days’ notice supports the presumption that the employment is at will. 2. Libel and Slander — Master and Servant — Qualified Privilege. An employer has a qualified privilege to defame an employee by making statements to other employees whose duties interest them in the subject matter of the defamatory material, such as supervisors, personnel department representatives, or other company officials. 3. Torts — Employment Contracts — Tortious Interference — Employment at Will. An employee at will may bring an action for tortious interference with the contract of employment; an employee has a manifest interest in the freedom of the employer to exercise its judgment without illegal interference or compulsion, and it is the unjustified interference by third persons that is actionable. Kelman, Loria, Downing, Schneider & Simpson (by Michael L. Pitt), for the plaintiff. Miller, Canñeld, Paddock & Stone (by Walter B. Connolly, Jr., Jerome R. Watson, and John H. Willems), for the defendants. Before: Neff, P.J., and Gribbs and Shepherd, JJ. Per Curiam. Defendants Equitable Life Assurance Society of the United States and Leethel Neal appeal by leave granted from the denial of their motion for summary disposition on February 28, 1990, and from the March 14, 1990, granting of plaintiffs motion to file an amended complaint in this wrongful discharge case. We affirm in part and reverse in part. Plaintiff began working for Equitable in 1972, as a trainee insurance agent. Plaintiff initially worked under the "12th Edition Agreement,” a written contract that provided for compensation, in part, on a salary basis. In 1973, plaintiff became licensed to sell life insurance in the State of Michigan. On February 1, 1976, plaintiff and Equitable entered into the "14th Edition Agents Agreement” that established plaintiff as an independent contractor paid solely on a commission basis. Defendants contend that the trial court erred in denying their motion for summary disposition pursuant to MCR 2.116(0(10) because the employment agreement was terminable at will. We agree. The parties’ employment agreement provided the following regarding termination of employment: XIII. Terminations. A. This Agreement shall be terminable forthwith if the Agent shall enter under contract with or into the service of any other insurance company or if the Agent shall fail to comply with any of the provisions or conditions of this Agreement, or if the Agent shall violate any law in force in the territory in which the Agent is doing business. B. If this Agreement is terminated by reason of violation of Paragraph X or Subparagraphs A and B of Paragraph XIV, or if after termination of this Agreement the Agent engages in acts or practices proscribed by Paragraph X or Subparagraphs A and B of Paragraph XIV, the Agent shall forfeit all commission interest that he might otherwise have acquired under any agreement with The Equitable. C. Unless otherwise terminated, this Agreement may be terminated by either party by a notice in writing delivered personally, or mailed to the other party at the last known address, at least thirty days before the date therein fixed for such termination. Giving the benefit of reasonable doubt to plaintiff, we find that a record could not be developed that would cause reasonable minds to differ regarding whether plaintiffs employment was at will. Hutchinson v Allegan Co Bd of Road Comm’rs (On Remand), 192 Mich App 472, 480; 481 NW2d 807 (1992). Although the 14th Edition Agreement does not expressly state that plaintiffs employment is at will, its provisions clearly support this presumption. Paragraph A of § XIII provides that an agent may be terminated if the agent services another insurance company, if the agent fails to comply with any of the agreement’s provisions, or if the agent violates any law in force in the agent’s territory. Paragraph B provides that if plaintiff is terminated for certain reasons, he will forfeit all commission interest. Paragraph C provides that "[u]nless otherwise terminated,” the agreement may be terminated by either party by notice delivered at least thirty days before termination. Contracts for permanent employment are for an indefinite period of time and are presumptively construed to provide employment at will. Rowe v Montgomery Ward & Co, Inc, 437 Mich 627, 636; 473 NW2d 268 (1991). Clearly, the language of § XIII of the 14th Edition Agreement supports the presumption that the plaintiffs employment is at will because each party has the power to terminate the agreement by giving thirty days’ notice. Defendants also contend that the trial court erred in failing to grant their motion for summary disposition with regard to the defamation claim because truth is an absolute defense to defamation. Plaintiffs complaint alleged that defendants made defamatory statements suggesting that plaintiff was fired because of insubordination. Defendants argue that plaintiff admitted in a deposition that he was insubordinate. We find defendants’ claim to be without merit. Although plaintiff admitted that he stormed out of defendant Neal’s office, this does not amount to an admission on plaintiffs behalf that he was insubordinate. Defendants next claim that even if the statements were defamatory, they were made under a qualified privilege. We disagree. An employer has a qualified privilege to defame an employee by making statements to other employees whose duties interest them in the subject matter. Gonyea v Motor Parts Federal Credit Union, 192 Mich App 74, 78-79; 480 NW2d 297 (1991). In Sias v General Motors Corp, 372 Mich 542, 548; 127 NW2d 357 (1964), our Supreme Court held that no privilege extended to the defendant corporation when it called in fellow employees to explain the circumstances of the plaintiff’s separation. A corporate representative explained to the employees that the plaintiff had been released for misappropriation of company property. The Court found that these men were not supervisors, personnel department representatives, or company officials, but merely fellow employees in identical work. The Court held that although the company was interested in restoring morale and quieting rumors, the privilege did not extend to the employees. In the instant case, fellow agents may have had an interest in the corporation’s standard of conduct and grounds for termination, but they did not have a duty that would interest them in knowing the reason for plaintiffs termination. In other words, the fellow agents were not supervisors, personnel department representatives, or other company officials. Therefore, the statements made by Neal were not made under a qualified privilege. Defendants could have simply communicated to these agents the company’s policy regarding proper conduct and grounds for termination without indicating the reason for plaintiffs release. Next, defendants contend that the trial court erred in granting plaintiff leave to amend his complaint because the amendment did not relate back to the original complaint and was time-barred. We disagree. Plaintiffs original complaint alleged defamation against Neal and Equitable, claiming that Neal told other agents that plaintiff was guilty of insubordination, that plaintiff made racial remarks, and that plaintiff sold fraudulent policies. During discovery, plaintiff deposed Pam Bargon, another agent, who stated that District Manager Darryl Patterson made similar remarks to the agents on the same day that Neal allegedly defamed plaintiff. Approximately sixteen months after the original complaint was filed, plaintiff moved for leave to amend his complaint to indicate that he was also defamed by Patterson. Plaintiffs motion was granted. A court should freely grant leave to amend a complaint when justice so requires. MCR 2.118(A) (2); Taylor v Detroit, 182 Mich App 583, 586; 452 NW2d 826 (1989). The rules pertaining to the amendment of pleadings are designed to facilitate amendment except when prejudice to the opposing party would result. Amendment is generally a matter of right rather than grace. Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 659; 213 NW2d 134 (1973); Boje v Wayne Co General Hosp, 157 Mich App 700, 709; 403 NW2d 203 (1987). Thus, a motion to amend should ordinarily be denied only for particularized reasons. Fyke, at 656. In this case, a review of the record indicates that the trial court did not abuse its discretion when it allowed plaintiff leave to amend his complaint. Plaintiff amended his complaint to add factual information that would more strongly support his claim of defamation. The additional information was uncovered in depositions made during discovery. Plaintiff did not add a new and separate defamation claim. Even if plaintiff had added a second claim of defamation, the cause of action clearly arose from the same occurrence set forth in the original complaint, and, therefore, relates back to the date of the original pleading. MCR 2.118(D); Durant v Dep’t of Ed (On Second Remand), 186 Mich App 83, 99; 463 NW2d 461 (1990). Plaintiffs employment was terminated on Friday, April 11, 1988. On Monday, April 14, 1988, Neal and Patterson made two separate statements to the remaining insurance agents explaining the reason for plaintiffs termination. Both Neal and Patterson allegedly stated that plaintiff was guilty of insubordination, that plaintiff made racial remarks, and that plaintiff sold fraudulent policies. Defendants also contend that plaintiff cannot establish defamation against District Manager Darryl Patterson. However, defendants fail to specifically show in what manner plaintiffs claim is insufficient. Without more, we find defendants’ claim to be without merit. Defendants next claim that the trial court erred in allowing plaintiff to amend his complaint because the amendment caused defendants undue delay and inherent prejudice. We disagree. A review of the record indicates that the trial court did not err in granting plaintiff leave to amend his complaint. Defendants fail to adequately set forth evidence of undue delay and prejudice. Finally, defendants contend that the trial court erred in denying their motion for summary disposition pursuant to MCR 2.116(0(10) with regard to the tortious interference claim, because there was no breach of contract and Neal was an agent for Equitable. We disagree. In the instant case, plaintiff has an at-will employment contract. A plaintiff may maintain an action for tortious interference with an at-will employment contract. Feaheny v Caldwell, 175 Mich App 291, 304; 437 NW2d 358 (1989). An employee has a manifest interest in the freedom of the employer to exercise its judgment without illegal interference or compulsion, and it is the unjustified interference by third persons that is actionable. Id. at 303. Thus, "the third party must intentionally do an act that is per se wrongful or do a lawful act with malice and that is unjustified in law for the purpose of invading the contractual rights or business relationship of another.” Id. A "wrongful act per se” is an act that is inherently wrongful or an act that can never be justified under any circumstances. Prysak v R L Polk Co, 193 Mich App 1, 12-13; 483 NW2d 629 (1992). A review of the record indicates that Neal may have been motivated by animosity toward plaintiff or a personality conflict when he used his authority to recommend that plaintiffs employment be terminated. Plaintiff began working as an insurance agent for Equitable in 1972. In 1983, Neal was transferred to Michigan to manage the Detroit office. Plaintiff alleges that there was a longstanding animosity between Neal and himself. Pamela Bargon testified in a deposition that plaintiff had told her that Neal threatened to fire plaintiff the first day Neal arrived at the Detroit office. At his deposition, Neal characterized the alleged animosity as insubordination on the part of plaintiff. However, Bargon stated that she had never heard plaintiff yell, scream, or act inappropriate at the office. Furthermore, there was no evidence indicating that plaintiff had a history of insubordination, particularly with respect to plaintiff’s conduct before Neal’s transfer to the Detroit office. Bargon also testified that at an agency meeting Neal said that plaintiff thought he was "better than the rest of us.” Bargon elaborated by explaining that Neal was referring to black people when he said "us.” Plaintiff testified that another employee, Mr. Slack, informed him that Neal intended to terminate plaintiff, and that he believed that Neal and plaintiff had a personality conflict. Giving the benefit of reasonable doubt to plaintiff and drawing all inferences in his favor, this Court is persuaded that a record might be developed regarding tortious interference upon which reasonable minds could differ. Farm Bureau Mutual Ins Co of Michigan v Stark, 437 Mich 175, 184-185; 468 NW2d 498 (1991); Dagen v Hastings Mutual Ins Co, 166 Mich App 225, 229; 420 NW2d 111 (1987). Affirmed in part and reversed in part.

VIRGINIA P. ABELS, Plaintiff, Appellee v. RENFRO CORPORATION, Defendant-Appellant No. 9117SC839 (Filed 1 December 1992) 1. Evidence and Witnesses § 1380 (NCI4th)— retaliatory discharge claim for filing workers’ compensation —Industrial Commission findings on workers’ compensation claim —not res judicata— excluded The trial court did not err in a retaliatory discharge action arising from a workers’ compensation claim by excluding the Industrial Commission’s findings that plaintiff’s alleged injuries were not compensable. Although defendant contended that the court should have admitted the findings based on res judicata, this was a claim for retaliatory discharge under N.C.G.S. § 97-6.1 and not the same cause of action that plaintiff brought before the Industrial Commission. Am Jur 2d, Evidence §§ 746, 747; Judgments §§ 394 et seq.; Wrongful Discharge §§ 199 et seq. 2. Evidence and Witnesses § 219 (NCI4th)— retaliatory discharge claim — evidence of similarly situated employees —no error The trial court did not err in a retaliatory discharge action arising from a workers’ compensation claim by excluding evidence of similarly situated employees. Defendant’s contention that an action for retaliatory discharge under N.C.G.S. § 97-6.1 is analogous to an action for employment discrimination under federal law would circumvent the intent of the legislature. Am Jur 2d, Job Discrimination §§ 1974 et seq.; Wrongful Discharge §§ 25 et seq. 3. Damages § 21 (NCI4th|— retaliatory discharge —emotional distress —properly submitted to jury The trial court did not err in a retaliatory discharge action by submitting the issue of emotional distress damages to the jury. Emotional distress damages are a form of damages suffered by an employee and accordingly are recoverable as a form of reasonable damages in a civil action brought by an employee under N.C.G.S. § 97-6.1. Am Jur 2d, Job Discrimination § 2421; Wrongful Discharge § 256. Damages recoverable for wrongful discharge of at-will employee. 44 ALR4th 1131. 4. Labor and Employment § 75 (NCI4th)— retaliatory discharge for filing workers’ compensation — evidence sufficient The trial court did not err in a retaliatory discharge action arising from a workers’ compensation claim by denying defendant’s motion for a judgment n.o.v. where plaintiff introduced evidence of the events causing her injuries, the injuries themselves, the treatment she received for the injuries, her filing workers’ compensation claims, and “quality lists” created weekly by defendant, which showed that the quality of plaintiff’s work was at or near the best during July, the month before her discharge. Furthermore, the trial court did not abuse its discretion by denying defendant’s motion for a new trial. Am Jur 2d, Job Discrimination §§ 2003 et seq.; Wrongful Discharge §§ 237, 238. 5. Labor and Employment § 75 (NCI4th)— retaliatory discharge for filing workers’ compensation claim —motion to compel medical exam after verdict —denied The trial court did not err by refusing to order an independent medical examination of plaintiff where plaintiff had won a retaliatory discharge action and the court had ordered reinstatement. Reinstatement is expressly provided as a remedy for a successful retaliatory discharge claimant in N.C.G.S. § 97-6.1(b). Defendant had the right to compel an independent medical examination under N.C.G.S. § 1A-1, Rule 35 during pretrial discovery but chose not to exercise that right, knowing the possible consequences if plaintiff was successful. Am Jur 2d, Workers’ Compensation § 504; Wrongful Discharge § 247. Appeal by defendant from judgment entered 25 March 1991 and order entered 26 March 1991 by Judge James M. Long in Surry County Superior Court. Heard in the Court of Appeals 15 September 1992. Plaintiff first worked for defendant, a hosiery manufacturer, from 1949 until the time of her pregnancy in 1962. Plaintiff resumed her employment as a knitter with defendant in 1972. At the time of her discharge on 19 August 1987, plaintiff’s duties included overseeing approximately 40 knitting machines and inspecting the quality of manufactured socks. Plaintiff claimed that she was injured twice during her employment. Plaintiff alleged that she injured her' back and leg when she slipped and fell on some flat cardboard boxes while attempting to get a spool of yarn on 15 June 1984. Plaintiff reported her injury to defendant but did not file a workers’ compensation claim at that time. Plaintiff alleged that her second injury occurred on 26 June 1987, when one of defendant’s employees, 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 G.S. § 97-6.1 by discharging her in retaliation for her filing the workers’ compensation claims. Defendant argued that plaintiff was discharged because of the poor quality of her work and that prior to her discharge, plaintiff received several warnings from management to either improve the quality of her work or face termination. On 31 October 1988, a Deputy Commissioner of the North Carolina Industrial Commission entered an order denying plaintiff compensation for her alleged injuries, ruling that the 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 North Carolina 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. The trial court further ruled that plaintiff’s testimony before the Deputy Commissioner could be used only for impeachment purposes. On 28 January 1991, the jury returned a verdict finding that plaintiff was wrongfully discharged and awarding 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 ordered plaintiff’s reinstatement to her former position with defendant. On 26 March 1991, the trial court denied defendant’s motion for judgment notwithstanding the verdict, motion for a new trial, and motion to compel plaintiff to undergo a medical examination in the event of reinstatement. On 10 April 1991, the trial court granted defendant’s motion to stay reinstatement of plaintiff as an employee pending appeal and motion to stay execution of the judgment pending appeal. On 29 April 1991, defendant again filed a motion to compel a medical examination of plaintiff. The trial court dismissed this motion on 3 May 1991. Defendant appeals. Franklin Smith and Brian K. Flatley for plaintiff-appellee. Constangy, Brooks & Smith, by W. R. Loftis, Jr. and Robin E. Shea, for defendant-appellant. EAGLES, Judge. Defendant brings forth six assignments of error. After a careful examination of the record before us, we affirm. I. In its first assignment of error, defendant argues that the trial court erred by excluding the Industrial Commission’s findings that plaintiffs alleged injuries were not compensable. Defendant contends that the trial court should have admitted these findings based on the principles of res judicata. We disagree. Regarding the application of the doctrine of res judicata, our Supreme Court has stated: As we recently noted in Duke 1988 [State ex rel. Utilities Commission v. Public Staff, 322 N.C. 689, 370 S.E.2d 567 (1988)]: The doctrine of res judicata treats a final judgment as the full measure of relief to be accorded between the same parties on the same “claim” or “cause of action.” C. Wright, Federal Practice and Procedure, § 4402 (1969). “The essential elements of res judicata are: (1) a final judgment on the merits in an earlier suit, (2) an identity of the cause of action in both the earlier and the later suit, and (3) an identity of parties or their privies in the two suits.” Hogan v. Cone Mills Corporation, 315 N.C. 127, 135, 337 S.E.2d 477, 482 (1985). Duke 1988, 322 N.C. at 692, 370 S.E.2d at 569; see, e.g., In re Trucking Co., 285 N.C. 552, 560, 206 S.E.2d 172, 177-78 (1974). More specifically, in addressing the issue of whether a Commission order can be deemed res judicata this Court has held that “only specific questions actually heard and finally determined by the Commission in its judicial character are res judicata, and then only as to the parties to the hearing.” Utilities Commission v. Area Development, Inc., 257 N.C. 560, 570, 126 S.E.2d 325, 333 (1962) (emphasis added). State ex rel. Utilities Commission v. Thornburg, 325 N.C. 463, 468, 385 S.E.2d 451, 453-54 (1989). Here, defendant’s res judicata arguments fail because this is a claim of retaliatory discharge under G.S. § 97T6.1 and is not the same cause of action that plaintiff brought before the Industrial Commission. A different set of rights was determined in each forum. “North Carolina law has long prohibited the use of a previous finding of a court as evidence of the fact found in another tribunal. Masters v. Dunstan, 256 N.C. 520, 124 S.E.2d 574 (1962).” Reliable Properties, Inc. v. McAllister, 77 N.C. App. 783, 787, 336 S.E.2d 108, 110 (1985), disc. review denied, 316 N.C. 379, 342 S.E.2d 897 (1986). In Masters, 256 N.C. at 524, 124 S.E.2d at 576-77, our Supreme Court held that: An estoppel by judgment arises when there has been a final judgment or decree, necessarily determining a fact, question, or right in issue, rendered by a court of record and of competent jurisdiction, and there is a later suit involving an issue as to the identical fact, question or right theretofore determined, and involving identical parties or parties in privity with a party or parties to the prior suit. Cannon v. Cannon, 223 N.C. 664, 28 S.E.2d 240; Distributing Co. v. Carraway, 196 N.C. 58, 114 S.E.2d 535. The purpose of the Industrial Commission hearing is to determine whether the employee has suffered an injury for which he or she is entitled to receive compensation under the Workers’ Compensation Act. See Hanks v. Utilities Co., 210 N.C. 312, 186 S.E. 252 (1936); Hogan v. Cone Mills Corp., 315 N.C. 127, 337 S.E.2d 477 (1985); G.S. § 97-77; G.S. § 97-91. An employee’s G.S. § 97-6.1 civil case is brought independently of the Industrial Commission hearing in order to protect the employee’s right to file a workers’ compensation claim before the Industrial Commission, notwithstanding the Commission’s adverse findings regarding the employee’s alleged injury. The public policy behind G.S. § 97-6.1 is to promote an open environment in which employees can pursue their remedies under the Workers’ Compensation Act without the fear of retaliation from their employers. See Wright v. Fiber Industries, Inc., 60 N.C. App. 486, 299 S.E.2d 284 (1983); Henderson v. Traditional Log Homes, Inc., 70 N.C. App. 303, 319 S.E.2d 290, disc. review denied, 312 N.C. 622, 323 S.E.2d 923 (1984). II. In its second assignment of error, defendant contends that the trial court erred by excluding defendant’s evidence of similarly situated employees. One set of employees included those who were discharged for the poor quality of their work. Another set of employees included those who returned to their jobs without incident after filing workers’ compensation claims. Defendant argues that the exclusion of this evidence was reversible error. We disagree. Defendant bases its argument on the manner in which “disparate treatment” employment discrimination cases are litigated under federal law. Defendant asserts in its brief that “[a] policy that is applied equally to all employees — even an unfair policy — does not constitute unlawful discrimination.” In this regard, defendant argues that “[a]n action for retaliatory discharge [under G.S. § 97-6.1] is analogous to an action for employment discrimination under federal law.” We disagree. Defendant appears to argue that an employer who treats all employees alike could potentially discharge all employees who file workers’ compensation claims and be free of the sanctions of the Workers’ Compensation Act. Defendant’s interpretation would circumvent the intent of the legislature and must not prevail. Defendant’s reasoning is inconsistent with the legislature’s intent in creating G.S. § 97-6.1 and with the overall goals of the Workers’ Compensation Act. In Wright, 60 N.C. App. at 491, 299 S.E.2d at 287, this Court interpreted the legislature’s intent in enacting G.S. § 97-6.1 as follows: Clearly, G.S. 97-6.1 was intended to prevent employers from firing or demoting employees in retaliation for pursuing their remedies under the Workers’ Compensation Act. If 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. We do not think the legislature intended the statute to be so easily circumvented. The courts of this State have recognized that the Workers’ Compensation Act should be liberally construed so that benefits will not be denied by technical, narrow, or strict interpretation. Stevenson v. City of Durham, 281 N.C. 300, 188 S.E.2d 281 (1972); Johnson v. Asheville Hosiery Co., 199 N.C. 38, 153 S.E. 591 (1930). Liberally construed, the statute encompasses acts by employers intending to prevent employees from exercising their rights under the Workers’ Compensation Act. This assignment of error fails. III. In its third assignment of error, defendant argues that the trial court should not have submitted the issue of emotional distress damages to the jury, because this is not a form of “reasonable damages” that a discharged employee may recover under G.S. § 97-6.1(b). We disagree. Initially, we note that in Johnson v. Ruark Obstetrics, 327 N.C. 283, 296-97, 395 S.E.2d 85, 92-93, reh’g denied, 327 N.C. 644, 399 S.E.2d 133 (1990), our Supreme Court held that emotional distress damages may be based upon a claim for breach of contract or tort. G.S. § 97-6.1(b) provides that, “[a]ny employer who violates any provision of this section shall be liable in a civil action for reasonable damages suffered by an employee as a result of the violation . . .” (emphasis added). The phrase “suffered by an employee,” found in G.S. § 97-6.1(b), has been interpreted by this Court according to its plain meaning. Buie v. Daniel International, 56 N.C. App. 445, 447, 289 S.E.2d 118, 119, disc. review denied, 305 N.C. 759, 292 S.E.2d 574 (1982) (“Punitive damages, by their very nature, are not damages ‘suffered’ by anyone. Rather, they are damages awarded to punish a wrongdoer, over and above the amount required to compensate for the injury.”). Unlike the punitive damages sought by the plaintiff in Buie, emotional distress damages are a form of damages “suffered by an employee” and accordingly are recoverable as a form of “reasonable damages” in a civil action brought by an employee under G.S. § 97-6.1. See also Brown v. Burlington Industries, Inc., 93 N.C. App. 431, 434-35, 378 S.E.2d 232, 234 (1989), review dismissed, 326 N.C. 356, 388 S.E.2d 769 (1990); Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 488-90, 340 S.E.2d 116, 120-21, disc. review denied, 317 N.C. 334, 346 S.E.2d 140 (1986). IV. In its next two assignments of error, defendant argues that the trial court erred by not granting its motion for judgment notwithstanding the verdict, or in the alternative, its motion for new trial. Defendant alleges that there was insufficient evidence to support the verdict. We disagree. Upon review of a motion for judgment notwithstanding the verdict, “[t]he trial court must consider all the evidence in the light most favorable to the non-movant and must resolve in favor of the non-movant contradictions, conflicts and inconsistencies in the evidence.” Williams v. Randolph, 94 N.C. App. 413, 418, 380 S.E.2d 553, 556, disc. review denied, 325 N.C. 437, 384 S.E.2d 547 (1989) (citations omitted). Plaintiff’s recovery was based on G.S. § 97-6.1, which provides in pertinent part: (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. To recover under the statute, 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. Hull v. Floyd S. Pike Electrical Contractor, 64 N.C. App. 379, 307 S.E.2d 404 (1983). Plaintiff provided sufficient evidence at trial to withstand the judgment n.o.v. motion. At trial, plaintiff introduced evidence of: (1) the events causing her injuries; (2) the injuries themselves; (3) the treatment she received for . each of the injuries; and (4) her filing the workers’ compensation claims based upon those injuries. Additionally, plaintiff introduced “quality lists” created weekly by the defendant. These lists ranked each employee according to the percentage of defects that existed in each employee’s work. These lists demonstrated that the quality of plaintiff’s work was at or near the best during July 1987, the month following plaintiff’s second injury. Defendant contends that plaintiff’s discharge was not retaliatory because it has a “neutral” employee discharge policy, based upon an employee’s continuous absence from work for more than six months. Here, plaintiff requested only a one month leave of absence at the time she was discharged. Plaintiff presented a witness, Dr. Joseph Jackson, who testified that “there was no reason to think that she [plaintiff] wouldn’t be able to at least make an attempt to resume her normal employment” after a one month leave of absence. Accordingly, we find no error in the trial court’s denial of defendant’s motions as there was sufficient evidence to support the jury’s verdict. As to defendant’s motion for new trial, we find that the trial court correctly denied the motion. “An appellate court’s review of a trial judge’s discretionary ruling denying a motion to set aside a verdict and order a new trial is limited to a determination of whether the record clearly demonstrates a manifest abuse of discretion by the trial judge. Worthington v. Bynum and Cogdell v. Bynum, 305 N.C. 478, 290 S.E.2d 599 (1982).” Pittman v. Nationwide Mutual Fire Ins. Co., 79 N.C. App. 431, 434-35, 339 S.E.2d 441, 444, disc. review denied, 316 N.C. 733, 345 S.E.2d 391 (1986). The record here does not demonstrate an abuse of discretion by the trial court. V. Finally, defendant contends that the trial court erred by denying defendant’s motion, filed approximately six weeks after trial, to compel plaintiff to undergo an independent medical examination, the purpose of which would be to determine whether she was capable of performing her duties as a knitter. We disagree. G.S. § 97-6.1(b) expressly provides reinstatement as a remedy for a successful retaliatory discharge claimant. “[A]n employee discharged or demoted in violation of this section shall be entitled to be reinstated to his [or her] former position.” Id. During pretrial discovery, defendant had the right to compel plaintiff to undergo an independent medical examination under Rule 35 of the North Carolina Rules of Civil Procedure. G.S. § 1A-1, Rule 35. Knowing the possible consequences of G.S. § 97-6.1 if plain

Dianne M. Brunner vs. Stone & Webster Engineering Corporation & another. Norfolk. March 3, 1992. November 19, 1992. Present: Liacos, C.J., Wilkins, Nolan, Lynch, & O’Connor, JJ. Practice, Civil, Summary judgment, Appeal. Anti-Discrimination Law, Prima facie case, Burden of proof, Termination of employment, Sex. On a claim under G. L. c. 15IB by a former employee of an engineering firm alleging that she had been discharged because of her sex and in retaliation for her having complained of sexual harassment and discrimination, the judge properly granted summary judgment for the engineering firm where, even assuming that the plaintiff had demonstrated a prima facie case of sex discrimination under c. 15 IB, the engineering firm produced evidence that it had legitimate, nondiscriminatory reasons for discharging the plaintiff, and where the record demonstrated that the plaintiff would have no reasonable expectation of proving at trial that the engineering firm’s asserted reasons for discharging the plaintiff were merely pretexts. [699-700, 703-705] Where this court determined, on the record of summary judgment proceedings, that a plaintiff had no reasonable expectation of proving unlawful discrimination against her employer in violation of G. L. c. 15 IB, and this determination was dispositive of a separate claim alleging that plaintiff’s supervisor had unlawfully interfered with her contractural relations with her employer, this court concluded that summary judgment on the unlawful interference claim was correctly ordered for the defendant supervisor. [705-706] Civil action commenced in the Superior Court Department on April 18, 1989. The case was heard by Robert W. Banks, J., on a motion for summary judgment. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Frederick T. Golder for the plaintiff. David J. Kerman for the defendants. Robert C. Wiesel. O’Connor, J. In a seven-count complaint, the plaintiff alleges in count I that Stone & Webster Engineering Corporation (Stone & Webster) discharged her from employment because of her sex and in retaliation for her having complained of sexual harassment and discrimination in violation of G. L. c. 151B (1990 ed.). In count VII, the plaintiff alleges that the defendant Wiesel intentionally interfered with her contractual relations with Stone & Webster. The defendants moved for summary judgment on all seven counts and that motion was allowed in full. The plaintiff appealed from the grant of summary judgment on counts I, II, III, and VII, and the Appeals Court, in an unpublished memorandum and order, reversed the summary judgment on counts I and VII. The Appeals Court affirmed as to counts II and III. 31 Mass. App. Ct. 1113 (1991). We allowed the defendants’ application for further appellate review with respect to counts I (G. L. c. 151B against Stone & Webster) and VII (interference with contract against Wiesel). We hold that the Superior Court judge properly granted summary judgment to the defendants on counts I and VII. We affirm the judgment of the Superior Court. General Laws c. 151B, § 4 (1990 ed.), provides in pertinent part: “It shall be an unlawful practice: 1. For an employer . . . because of the . . . sex ... of any individual... to discharge from employment such individual . . . unless based upon a bona fide occupational qualification.” In a c. 151B case involving an assertion of sexual discrimination in employment, the plaintiff has the burden of persuading the fact finder that the employer intentionally discriminated against him or her on account of sex, and that, but for the discrimination, the employer would not have taken the complained-of action. McKenzie v. Brigham & Women’s Hosp., 405 Mass. 432, 434 (1989). Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 765 (1986). See Smith College v. Massachusetts Comm’n Against Discrimination, 376 Mass. 221, 227 n.8 (1978); Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 139 (1976). The plaintiff may meet his or her burden of proof “by establishing an unanswered prima facie case of discrimination.” McKenzie v. Brigham & Women’s Hosp., supra at 434, quoting Wheelock College v. Massachusetts Comm’n Against Discrimination, supra at 139. A plaintiff would clearly establish a prima facie case, for example, by showing that she is a woman whom the employer discharged despite her qualifications, and that the employer thereafter filled that position, or attempted to fill it, with a man with similar qualifications. “If a plaintiff establishes a prima facie case, but the defendant [employer] answers it by advancing lawful grounds for the action taken and produces evidence of underlying facts in support thereof, the plaintiff, in order to prevail, must persuade the fact finder by a fair preponderance of the evidence that the defendant’s asserted reasons were not the real reasons for the action. Smith College, supra at 229-230. Wheelock College, supra at 139.” McKenzie, supra at 435. In support of their motion for summary judgment, the defendants submitted portions of the deposition testimony of the plaintiff and of Robert Doneski, supervisor of Stone & Webster’s graphic arts group to which the plaintiff was assigned. The defendants also submitted an affidavit of the defendant Wiesel, chief engineer of Stone & Webster’s struc-' tural division, to whom Doneski reported. In addition, the record contains the plaintiff’s answers to interrogatories that had been propounded by a third defendant, a coworker who is no longer a party to this case. The uncontradicted portions of those materials present the facts we set forth below. The plaintiff was first employed by Stone & Webster in 1970 as a drafter. She received several promotions and had been a senior graphic designer in the graphic arts group for six years when her employment was terminated in July, 1988. She was supervised by several tiers of management. The defendant Wiesel, as the chief engineer of Stone & Webster’s structural division, was one of the plaintiff’s supervisors. From mid-1985 until the plaintiff’s layoff, the plaintiff was also supervised by Robert Doneski, who was the supervisor of the graphic arts group. Doneski reported to Wiesel. Mario Rubio-Ospina was the lead senior graphic designer and was in charge of assigning and receiving the plaintiff’s work. In 1974, the plaintiff was denied a promotion and was told that it was because she did not have children and a mortgage to support. The plaintiff pursued the issue and was promoted. Once, the plaintiff and a female coworker overheard two male employees discussing a pornographic movie. When that incident was reported, Stone & Webster addressed the situation through a supervisor. In 1973 and again in 1986, male coworkers made vulgar sexually-oriented statements to the plaintiff. Rubio-Ospina assigned menial work to the plaintiff and did so in a confusing and demeaning manner. In 1988, Rubio-Ospina attempted to persuade the plaintiff to alter her time cards and, when she refused, he stated loudly that she was “not a real help” to the group. On that same day, Ru-bio-Ospina threw a hard-boiled egg at the plaintiff and held up her work and asked, “[Wjhich cow did this job?” In June, 1983, someone put razor blades in and on the plaintiff’s desk, and in September, 1983, her wedding picture was missing from her desk and was later found in her locked desk drawer. The plaintiff reported some of these incidents to Stone & Webster’s management personnel, who responded in a manner designed to be corrective. The plaintiff lacked training on certain automated equipment. Three men and two women in the graphic arts group, not including the plaintiff, were trained on the Autographix machine. Some of the graphic arts group personnel, but not the plaintiff, were trained in the use of the Oxbery and computer graphics machines, which training the plaintiff declined to pursue. During the 1980’s, the graphic arts group of Stone & Webster suffered a significant decline in its workload. Also, during that period, the group increased its use of automated equipment.- As a result, the workforce of the graphic arts group was reduced. The company laid off six employees in 1984, two in 1986, and three in 1987. As the workload continued to decline in 1988, Stone & Webster laid off three more graphic designers in July, 1988. They were the plaintiff, another woman, and a man. Five men and two women were retained. Of the seven graphic designers retained, two, a man and a woman, had more seniority than the plaintiff. Of the remaining five, four were men and one was a woman. They had less seniority than the plaintiff. Of these five employees with less seniority than the plaintiff, three of the men and one woman had received specialized training in automated equipment. One man, F.M. Van Wart, had not. The three individuals who were laid off had not received specialized training. Supervisor Doneski testified in a deposition that the plaintiff had never been rated less than “effective” in her formal performance evaluations, that there was nothing wrong with the quality of her work, and that other company personnel from time to time had commended the plaintiff’s work. He also testified that, while at one time he had felt that the plaintiff’s productivity was high, it had subsequently slipped, and that the plaintiff’s initiative was “average.” Wiesel and Doneski met and discussed who would be laid off. They appraised the capability, technical expertise, job knowledge, initiative, versatility, productivity, and potential contributions of each graphics group member. They decided to retain all the group members who had specialized training in automated equipment. They also decided to retain Van Wart following their discussion of Van Wart’s “high capability and excellent work.” They laid off all the others. On appeal, Stone & Webster says that it laid off its employees because of a shortage of work, and selected the plaintiff for layoff because she lacked the training of, or was a less capable performer than, those individuals with less seniority who were retained. The plaintiff argues that Stone & Webster’s claim is a mere pretext, and that the reasons she was laid off were that she was a woman and she had complained of sexual harassment and discrimination on the job. Ordinarily, as we have suggested early in this opinion, the first question would be whether the plaintiff has established a prima facie case of discrimination. However, in this case, Stone & Webster has not argued that the plaintiff has failed to prove a prima facie case and that therefore Stone & Webster is entitled to summary judgment. Instead, Stone & Webster’s argument is that it has furnished credible evidence that its reasons for discharging the plaintiff were nondiscriminatory, that, as a result, in accordance with the analytical framework of shifting burdens set forth above, the plaintiff will have the burden of proving at trial that Stone & Webster’s stated reasons were no more than pretexts, and that it is apparent from the materials submitted to the judge that the plaintiff will be unable to provide that proof. In those circumstances, contends Stone & Webster, it is entitled to summary judgment. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711-716 (1991). Because Stone & Webster does not argue that the plaintiff has failed to establish a prima facie case for summary judgment purposes, we assume, without deciding, that a prima facie case has been demonstrated. It is clear, too, that Stone & Webster has produced evidence that it had legitimate, nondiscriminatory reasons for laying off the plaintiff. Therefore, we address the question whether the depositions, affidavit, and answers to interrogatories discussed above demonstrate that the plaintiff will be unable to prove at trial that Stone & Webster’s stated reasons were pretexts. We are satisfied that the materials show that the plaintiff will be unable to prevail at trial, and that the judge was correct in ordering summary judgment for Stone & Webster. The plaintiff supports her contention that Stone & Webster’s stated reasons were pretexts by asserting that (1) she was an “excellent,” not merely average, worker; (2) she was deliberately denied training on the automated equipment; and (3) she had been the victim of several incidents of sexual harassment by fellow workers and had repeatedly complained to her supervisors. We reject the plaintiffs first argument because nothing in the materials submitted pursuant to Mass. R. Civ. P. 56, 365 Mass. 824 (1974), refutes the evidence that, when the productivity levels, technical expertise, and skills of all the graphic arts group employees were compared, a good faith judgment was made by those with the responsibility to decide that the plaintiff was less qualified for the job than those who were retained. Nothing in the record suggests that gender-specific factors were used in evaluating the job performances of the several employees. See McKenzie v. Brigham & Women’s Hosp., 405 Mass. 432, 437 (1989); Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 767-768 (1986). The plaintiff’s second argument is that Stone & Webster’s assertion that the plaintiff was less qualified for continued employment because she was untrained in the use of automated equipment was a pretext because Stone & Webster had denied her repeated requests for such training. Nothing in the record shows that the plaintiff’s discharge was discriminatory. Furthermore, nothing in the record contradicts the fact, set forth in Doneski’s deposition, that the plaintiff declined to continue training on the Oxbery machine after a week of working in the photography room, and that the plaintiff turned down an opportunity to be trained on the computer graphics machine. The record does not show that, if this case were to go to trial, there would likely be a genuine issue concerning whether Stone & Webster unlawfully denied the plaintiff’s request for training and then relied on her lack of training to dismiss her. We have set forth in our statement of the uncontroverted facts a series of incidents of harassment of the plaintiff by coworkers during her eighteen years of employment. We point out that these incidents did not directly involve Doneski or Wiesel, the Stone & Webster supervisory personnel who ultimately made the determination to lay off the plaintiff. See Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 10 (1st Cir. 1990) (“The biases of one who neither makes nor influences the challenged personnel decisions are not probative in an employment discrimination case”). Furthermore, the summary judgment materials show that, when the plaintiff reported such incidents to management personnel, Stone & Webster supervisors immediately intervened and took corrective action. We conclude that the defendant has shown by material described in Mass. R. Civ. P. 56 (c), unmet by countervailing materials, that the plaintiff has no reasonable expectation of proving an essential element of her case, namely that, but for her sex, Stone & Webster would not have included her in the layoff. McKenzie v. Brigham & Women’s Hosp., supra at 434. Smith College v. Massachusetts Comm’n Against Discrimination, supra at 227 n.8. See Kourouvacilis v. General Motors Corp., supra at 716. In coming to that conclusion, we recognize that “where motive, intent, or other state of mind questions are at issue, summary judgment is often inappropriate.” Flesner v. Technical Communication Corp., 410 Mass. 805, 809 (1991). That is not to say, however, that, in such cases, summary judgment is always inappropriate. See McKenzie v. Brigham & Women’s Hosp., supra at 438 (racial discrimination); Lewis v. Area II Homecare for Senior Citizens, Inc., supra at 770 (racial discrimination); Godbout v. Cousens, 396 Mass. 254, 258-259, 261-263, 264-265 (1985) (defamation, intentional infliction of emotional distress). We are content that, in this case, summary judgment is appropriate. We turn briefly to count VII, the plaintiff’s claim that the defendant Wiesel intentionally interfered with her employment contract with Stone & Webster. In order to prevail on that claim at trial, the plaintiff would have to prove, among other things, that Wiesel’s actions in terminating her employment were the product of improper motive or means. G.S. Enters., Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 272 (1991). The crux of the plaintiff’s claim is that she was fired at Wiesel’s direction for discriminatory reasons and thus Wiesel was acting with an improper motive. Our determination that the Mass. R. Civ. P. 56 (c) materials demonstrate that the plaintiff has no reasonable expectation of proving unlawful discrimination against Stone & Webster is dispositive of the claim against Wiesel also. The record shows that the plaintiff cannot reasonably expect to show that, in terminating the plaintiff's employment, Wiesel acted with an improper motive. The judge in the Superior Court correctly ordered summary judgment for the defendants on counts I and VII. Judgment affirmed.

Arthur S. Demoulas & others vs. Demoulas Super Markets, Inc. & others. No. 90-P-1284. October 16, 1992. Practice, Civil, Interlocutory appeal, Injunction. Injunction. Evanthea Demoulas, Evan G. Demoulas, Diana D. Merriam, and Fotene Demoulas. Valley Properties, Inc., Lee Drug, Inc., Doric Development Corp., and Market Basket, Inc. When the plaintiff Arthur S. Demoulas obtained a preliminary injunction prohibiting the defendant Demoulas Super Markets, Inc. (DSM), from terminating his employment except for cause, DSM sought relief from a single justice of this court under G. L. c. 231, § 118, first par. The single justice modified the injunctive order to provide that DSM give Arthur a leave of absence pending the litigation with “interim” compensation during the leave at the annual rate of $60,000. Arthur appeals under G. L. c. 231, § 118, second par., arguing that the single justice acted without authority and substituted his discretion for that of the Superior Court judge. We conclude that there was a supportable basis for the single justice’s order, which we affirm. 1. The preliminary injunction. It appears from the materials before us that the parties are involved in numerous lawsuits, one of which concerns an allegation by the plaintiffs that their stock in DMS was fraudulently converted by the president and chief executive officer of DSM to himself and his family members. This is of some relevance to the present complaint by which the plaintiff shareholders seek to inspect the defendants’ books and records under “G. L. c. 156B, § 32, and the common law.” The plaintiffs claim to be shareholders as direct owners, or beneficiaries of a constructive trust, or both. Arthur is a shareholder in and an employee of DSM. He is the assistant produce manager with a claimed annual salary of $500,000. Because he feared that this lawsuit would prompt a retaliatory termination of his employment by DSM, he sought to enjoin DSM from firing him. The Superior Court judge reasoned that Arthur had alleged sufficient facts to show a right to inspect the defendants’ books. See Perry v. Perry, 339 Mass. 470, 480 (1959), holding that a “beneficiary of a trust of shares in a family corporation may in appropriate proceedings force an examination of the corporate affairs, and also the equivalent of a stockholders’ suit.” Inferring that a significant part of Arthur’s annual salary of $500,000 “reflects a beneficial ownership position in a closely held corporation,” the Superior Court judge concluded that termination of his employment by DSM “could be tantamount to a freeze out.” See Wilkes v. Springside Nursing Home, Inc., 370 Mass. 842, 849 (1976), where the court noted that a freeze out is sometimes accomplished by depriving “minority stockholders of corporate offices and of employment with the corporation.” To meet DSM’s concern that Arthur was “invulnerable to reasonable standards of employment” and its allegations that his behavior in the workplace was disruptive to business, the Superior Court judge indicated that upon a showing by DSM that there was cause for terminating Arthur’s employment, he would modify his injunctive order. 2. The petition for relief In acting on a petition for relief brought under G. L. c. 231, § 118, the authority of the single justice is “plenary, with the result that his order will be reviewed on appeal in the same manner as if it were an identical order by the trial judge considering the matter in the first instance.” Jet Line Servs. Inc. v. Selectmen of Stoughton, 25 Mass. App. Ct. 645, 646 (1988). The question before us is “whether the single justice abused his discretion by entering an order without having a supportable basis for doing so.” Highland Tap of Boston, Inc. v. Boston, 26 Mass. App. Ct. 239, 240 (1988), citing Jet Line, supra, and Carabetta Enterprises Inc. v. Schena, 25 Mass. App. Ct. 389, 392 (1988). The expressed basis for the single justice’s order was to provide an “interim solution” without fanning the flames of this intra-family dispute and to preserve judicial resources. A paid leave of absence for Arthur would eliminate possible, if not probable, disputes and interlocutory proceedings concerning his work performance. Such ancillary proceedings would only prolong the litigation and intensify the animosity among the litigants. The leave of absence provided a solution whereby Arthur’s employment position would be protected while the parties proceeded with the true matter at hand, inspection of the defendants’ books and records. To protect Arthur’s right as a shareholder to inspect the defendants’ books and records, the single justice set out detailed provisions for the defendants’ production of specific items and dates by which the presentment was to be made. There is also a very adequate basis in the record for the single justice’s order concerning Arthur’s annual salary of $60,000 during the period of his leave of absence. Although Arthur alleges that his annual salary from DSM is $500,000, there is an affidavit from the comptroller of DSM setting out the circumstances of Arthur’s salary. The comptroller explained that every DSM managerial employee is paid an annual salary and, customarily, a discretionary year-end bonus. As of August, 1990, Arthur’s annual salary was $60,000. His compensation from DSM in 1989 consisted of his annual salary of $48,000, and a year-end bonus of $100,000. In 1988, DSM had changed its fiscal year. As a result of this change, two bonuses were given. Arthur received his annual salary of $48,000, and the two bonuses for a total compensation of $548,000. There was also information before the single justice to show that the “bulk” of Arthur’s annual salary, the bonus, is a distribution “which [DSM], as a Subchapter S corporation, must continue to pay, and will continue to pay Mr. Demoulas even if his employment is terminated.” Judith Ashton (Thomas S. Fitzpatrick with her) for the plaintiffs. Jerome Gotkin (Shepard Davidson with him) for the defendants. In ordering DSM to pay Arthur an annual salary of $60,000, the single justice was aware of but declined to express an opinion on Arthur’s contention that his compensation for the period of 1986 through 1989 should be ascertained from an examination of W-2 forms submitted by DSM or by a comparison of the average compensation paid other shareholders with 300 shares of stock. In view of the comptroller’s affidavit and the explanation of DSM’s distributions of income for tax purposes, we think that the single justice acted reasonably in declining to use the procedure suggested by Arthur in setting his annual salary for the duration of his leave of absence. 3. Conclusion. There is a factual basis for the single justice’s order, which preserves the status quo for the parties while they more wisely expend their energy attempting to bring the case to a resolution in the Superior Court. We see no abuse of discretion. Order of the single justice affirmed. In his notice of appeal from the order of the single justice, Arthur designated those portions of the order pertaining to his leave of absence and his compensation during that period. See Yanolis v. Yanolis, 402 Mass. 470, 472-474 (1988). These figures do not include payment of Arthur’s expenses associated with his use of a “corporate car.”

DAVID TOMPKINS, Plaintiff v. JACK ALLEN and ROSES STORES, INC., Defendants No. 9126SC780 (Filed 6 October 1992) Master and Servant § 10.2 (NCI3d)— employer’s bad faith — -no public policy concern —no wrongful discharge of employee The trial court properly dismissed plaintiff’s claim for unlawful termination of his employment-at-will where plaintiff’s evidence tended to show only that his supervisor temporarily altered inventory records and then used the altered inventory records as an excuse for plaintiff’s discharge, a discharge which could have been carried out absent any reason, and such action on the part of the supervisor, though tending to show bad faith which is not to be condoned, did not rise to the level of public policy concern. Am Jur 2d, Master and Servant § 43. Modern status of rule that employer may discharge at-will employee for any reason. 12 ALR4th 544. Appeal by plaintiff from judgment entered 12 March 1991 in MECKLENBURG County Superior Court by Judge Julia V. Jones. Heard in the Court of Appeals 26 August 1992. On 1 July 1988, plaintiff David Tompkins filed a complaint in Mecklenburg County Superior Court against respondents Jack Allen and Roses Stores, Inc. The complaint alleged unlawful termination and breach of employment contract. Plaintiff took a voluntary dismissal of said action on 17 November 1989 and filed a new complaint on 26 October 1990. Plaintiffs second complaint re-alleged unlawful termination and breach of contract and added claims for negligent infliction of emotional distress and tortious interference with a contract. Defendants filed a motion to dismiss and a motion on the pleadings. On 12 March 1991, Judge Jones signed and filed an order dismissing the action with prejudice. Judge Jones dismissed plaintiffs claims for unlawful termination, breach of employment contract, and negligent infliction of emotional distress. The judge also determined that plaintiffs tortious interference with contract claim was barred by the statute of limitations. Plaintiff gave written notice of appeal to this Court on 11 April 1991. Pamela A. Hunter for plaintiff-appellant. Rayburn, Moon & Smith, P.A., by Matthew R. Joyner, for defendant-appellee Jack Allen. Perry, Kittrell, Blackburn & Blackburn, by Charles F. Blackburn, for defendant-appellee Roses Stores, Inc. WELLS, Judge. Plaintiff brings forward in this appeal the sole question of whether his claim for unlawful termination was properly dismissed. Because the trial court considered matters outside the pleading, the judgment entered there must be considered as one for summary judgment. Long v. Fink, 80 N.C. App. 482, 342 S.E.2d 557 (1986); Kessing v. National Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). This cause of action arises out of plaintiff’s termination as a store manager for a Roses Department Store. At the time of his dismissal, plaintiff was employed by defendant under an employment-at-will contract. Plaintiff alleged in his second complaint that defendant Jack Allen, plaintiffs supervisor, intentionally altered certain inventory records for which plaintiff was responsible and then used the altered records as a reason to terminate plaintiff’s employment with Roses. As a general rule, an employee-at-will has no claim for relief for wrongful discharge. Walker v. Westinghouse Electric Corp., 77 N.C. App. 253, 335 S.E.2d 79, disc. rev. denied, 315 N.C. 597, 341 S.E.2d 39 (1986). Either party to an employment-at-will contract can terminate the contract at will for no reason at all, or for an arbitrary or irrational reason. Privette v. University of North Carolina, 96 N.C. App. 124, 385 S.E.2d 185 (1989). However, this doctrine is not without limits and a valid claim for relief exists for wrongful discharge of an employee at will 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); Sides v. Duke University, 74 N.C. App. 331, 328 S.E.2d 818, disc. rev. denied, 314 N.C. 331, 333 S.E.2d 490 (1985). Following the Coman decision, there was a significant amount of discussion as to how broadly the public policy exception would be applied and whether the Coman Court had recognized a bad-faith exception to the employment-at-will doctrine. In Amos v. Oakdale Knitting Co., 331 N.C. 348, 416 S.E.2d 166 (1992), our Supreme Court clarified North Carolina’s position on the employment-at-will doctrine and its exceptions. In Amos, the Supreme Court made it very clear that North Carolina has not recognized a distinct tort for a bad-faith discharge of an employee at will, nor has North Carolina adopted a bad-faith exception to the employment-at-will doctrine; “To repeat: our discussion of bad faith discharge in Coman was dicta. The issue in Coman was whether to adopt a public policy exception to the employment-at-will doctrine.” Amos, supra. Therefore, in order for a wrongful discharge claim arising out of an employment-at-will setting to withstand a motion for summary judgment, plaintiff must demonstrate that his claim falls under the public policy exception to the employment-at-will doctrine. Taking the forecast of evidence presented in the light most favorable to the plaintiff, it appears, as a matter of law, that plaintiff has failed to establish a claim for wrongful discharge. Taken as true, plaintiffs evidence tends only to show that his supervisor temporarily altered inventory records and then used the altered inventory records as an excuse for plaintiff’s discharge, a discharge which could have been carried out absent any reason. While plaintiff’s evidence tends to show bad faith, not to be condoned, such behavior does not rise to the level of public policy concern. In Privette, supra, a case somewhat similar to the case at bar, the plaintiff was discharged by his employer for failing to keep a clean work area. In his complaint, plaintiff claimed wrongful discharge and alleged that defendants conspired to make plaintiff’s work area appear to be in much worse condition than the other work areas. This Court held that while plaintiff’s allegations possibly asserted an arbitrary reason for discharge, they did not assert an unlawful reason. Similarly, in the case at bar, we hold that plaintiff failed to support his claim for wrongful discharge. Because of our holding, we need not address plaintiff’s other assignments of error. The trial court’s order of dismissal is Affirmed. Judges ORR and GREENE concur.

THURMAN VENABLE, Plaintiff-Appellant v. GKN AUTOMOTIVE, Defendant-Appellee No. 9111SC719 (Filed 6 October 1992) Master and Servant § 10.2 (NCI3d)— refusal of supervisor to punish union organizers —supervisor fired —claims preempted by NLRA Where plaintiff brought an action for wrongful discharge based on defendant’s firing of him because he refused to punish union organizers, the trial court properly concluded that plaintiff’s claims were preempted by federal law under the National Labor Relations Act, even though plaintiff was a supervisor and supervisors are not protected directly by the NLRA, since the NLRA does protect employees who are fired because of any unfair labor practice, and an employer’s discharge of a supervisor for refusal to participate in the commission of an unfair labor practice is itself an unfair labor practice; furthermore, plaintiff failed to allege sufficient facts to establish independent claims under state tort law. Am Jur 2d, Labor and Labor Relations § 917. Discipline of supervisor for failure to support unlawful conduct of employer as unfair labor practice prohibited by § 8(a)(1) of the National Labor Relations Act (29 USCS § 158(a)(1) ). 50 ALR Fed 866. APPEAL by plaintiff from order entered 11 April 1991 by Judge Knox Jenkins in Lee County Superior Court. Heard in the Court of Appeals 13 May 1992. Richard W. Rutherford for plaintiff appellant. Edwards, Ballard, Bishop, Sturm, Clark and Keim, P.A., by Wade E. Ballard and Terry A. Clark; and Love & Wicker, P.A., by Dennis A. Wicker, for defendant appellee. COZORT, Judge. Plaintiff-employee brought an action alleging the following claims against his employer: (1) wrongful discharge in violation of public policy; (2) wrongful discharge based on breach of implied covenant of good faith and fair dealing; and (3) intentional infliction of emotional distress. The trial court granted defendant-employer’s motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction due to federal preemption under the National Labor Relations Act and pursuant to Rule 12(b)(6) for failure to state a claim upon which relief could be granted. We affirm. Defendant GKN Automotive hired plaintiff Thurman Venable in June 1979 to work in defendant’s Sanford automotive plant. Plaintiff subsequently became a supervisor of two departments within the plant and compiled a satisfactory work record over a nine-year period. In March of 1988, the United Auto Workers Union (UAW) began a Union campaign at GKN. During the Union campaign, plaintiff, as a supervisor, indicated to fellow supervisors that he would not mistreat or fire Union sympathizers. On 9 June 1988, plant manager Dave Forkner along with plaintiff’s supervisor, Hulon Brown, called plaintiff into a meeting. Forkner and Brown made pointed inquiries as to plaintiff’s loyalties concerning the Union campaign by asking plaintiff whether he was a member of the management “team,” and whether he would support the company’s efforts to ward off a Union threat. Following the 9 June meeting, plaintiff received his annual review from Mr. Brown. The evaluation was two weeks late and contained negative comments. On 1 August 1988, company managers called all supervisors into a meeting. At this time, management was aware the Union campaign had failed. Mr. Forkner conducted the meeting and explained to the supervisors that he did not want to see nine named employees, who were suspected Union supporters, working in the plant by January 1989. The nine employees had been transferred previously into plaintiff’s department and were his responsibility. When it became time for the nine employees to receive evaluations, Mr. Forkner ordered plaintiff to submit negative reviews for the Union supporters. Plaintiff refused to turn in adverse evaluations and gave all nine employees good ratings. After the evaluations were submitted to the personnel department, the records were changed to reflect negative performances. Mr. Forkner then directed plaintiff to explain to the nine employees that plaintiff had erred. Again, plaintiff refused. On 21 January 1989, plaintiff was moved to the night shift for a ninety-day trial period. Defendant terminated plaintiff’s employment on 17 April 1989. Plaintiff believed he was fired in retaliation for his refusal to violate the rights of Union supporters by falsifying their evaluations or by firing them. Plaintiff thereupon brought an action against GKN on 30 July 1990. Defendant filed a motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(1) and Rule 12(b)(6) on 20 August 1990. On 11 April 1991, the trial court granted defendant’s motion to dismiss and made in part the following conclusions of law: 3. That the Complaint filed by plaintiff fails to state a claim upon which relief may be granted by the Court, and that all of the inter-related causes of action are preempted by Federal law under the National Labor Relations Act in Chapter 29 of the United States Code. 4. That the Court does not have jurisdiction of the subject matter, and that such subject matter is preempted by Federal law under the National Labor Relations Act pursuant to Chapter 29 of the United States Code. Plaintiff asserts five assignments of error on appeal, the first three of which challenge the federal preemption of plaintiffs claim. The National Labor Relations Act (NLRA), codified in 29 U.S.C. § 150 et seq., protects the rights of employees to engage in certain labor activities. The Act vests the National Labor Relations Board (NLRB) with exclusive jurisdiction over questions of Union representation and over unfair labor practices defined in the Act. 29 U.S.C. §§ 159-160 (1988). Thus, in some cases, the NLRB will have exclusive jurisdiction over claims which would otherwise appear appropriate for state jurisdiction. The United States Supreme Court explained the analysis used in determining whether state law claims are preempted by the NLRA in San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 3 L.Ed.2d 775 (1959). The analysis set forth in Garmon was reemphasized more recently in International Longshoremen’s Assoc. v. Davis, 476 U.S. 380, 90 L.Ed.2d 389 (1986): “[D]ue regard for the federal enactment requires that state jurisdiction must yield,” when the activities sought to be regulated by a State are clearly or may fairly be assumed to be within the purview of § 7 or § 8. The [Garmon] Court acknowledged that “[a]t times it has not been clear whether the particular activity regulated by the States was governed by § 7 or § 8 or was, perhaps, outside both these sections.” Even in such ambiguous situations, however, the Court concluded that “courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board.” Thus the Court held that “[w]hen an activity is arguably subject to § 7 and § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.” Id. at 389-90, 90 L.Ed.2d at 400 (citations omitted). Plaintiff contends preemption should not be applied, first arguing that his claims should not be preempted because his rights as a supervisor are peripheral in nature to the NLRA. We recognize that supervisors are not protected directly by the NLRA, because under the Act [t]he term “employee” shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include . . . any individual employed as a supervisor 29 U.S.C. § 152(3) (1988) (emphasis added). Nonetheless, it is clear that an employer’s discharge of a supervisor for refusal to participate in the commission of an unfair labor practice is itself an unfair labor practice. See generally, Kenrich Petrochemicals v. NLRB, 907 F.2d 400, cert. denied, — U.S. —, 112 L.Ed.2d 522 (3rd Cir. 1990); NLRB v. Talladega Cotton Factory, 213 F.2d 209 (5th Cir. 1954); Budget Marketing, Inc., 241 NLRB 1108 (1979). Conduct by an employer which is considered to be an unfair labor practice is defined in 29 U.S.C. § 158(a) and provides in part: (a) Unfair labor practices by employer. It shall be an unfair labor practice for an employer — (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title; (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any Labor organization!.] Section 7 of the NLRA outlines the rights of employees as follows: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title. 29 U.S.C. § 157 (1988). In Budget Marketing, Inc., the NLRB found a violation of the NLRA where an employer discharged a supervisor for failing to discharge another employee under the pretext of poor performance. The NLRB concluded, “[the employer] violated Section 8(a)(1) of the Act by discharging [the supervisor] because of his refusal to engage in unfair labor practices — that is, his refusal to discharge an employee . . . because of his Union activities.” Budget Marketing Inc., 241 NLRB at 1112. Plaintiff argues that the state has subject matter jurisdiction in the present case because the state has a significant interest in discouraging unfair labor practices and because the defendant’s behavior was in violation of state public policy. Although the state does have an interest in discouraging unfair labor practices, it is clear in the case at bar that GKN’s actions constituted an unfair labor practice within the purview of Section 7 of the NLRA. The preemption analysis set forth in Davis is therefore applicable here; the trial court did not err in finding that it lacked jurisdiction over plaintiff’s claims. Plaintiff’s final assignments of error are based on arguments that the trial court failed to find defendant’s action to be in violation of state laws and public policy. Plaintiff’s complaint included the following allegations: 13. Plaintiff’s firing was due to his refusal to violate the rights of Union supporters under the National Labor Relations Act by falsifying evaluations and by firing them. 14. Plaintiff’s termination thus was in violation of the important statutorily codified public policy of this state and nation that Employees should not be fired or adversely treated for exercising protected rights under the National Labor Relations Act against and was made in bad faith and in violation of an implied covenant of good faith and fair dealing between plaintiff and GKN. 15. Plaintiff’s termination has caused him great mental anguish and distress and has damaged him greatly in his relationships with his acquaintances and peers in the community, and has cost him the wages and benefits of his position. Plaintiff’s allegations are conclusory in nature and fail to allege facts sufficient to constitute a claim independent of the unfair labor practice claim. Thus, we hold that plaintiff’s claims are based on allegations of unfair labor practices and are preempted by the NLRA. Furthermore, plaintiff has failed to allege sufficient facts to establish independent claims under state tort law. The trial court correctly dismissed the action under Rule 12(b)(1) and Rule 12(b)(6). Affirmed. Judges Parker and Greene concur.

RASHEED v CHRYSLER MOTORS CORPORATION Docket No. 129620. Submitted July 14, 1992, at Detroit. Decided October 5,1992, at 9:00 a.m. Leave to appeal sought. Muhammad Rasheed brought an action in the Wayne Circuit Court against his former employer, Chrysler Motors Corporation, and former supervisor, James Senart, alleging, inter alia, that his disciplinary discharge and prior suspensions were motivated by religious discrimination. Before filing suit, the plaintiff initiated grievance procedures that resulted in his eventual rejection of an offer of reinstatement with full seniority but without back pay. A jury returned a verdict for the plaintiff and awarded him damages, and the court, Richard P. Hathaway, J., ordered Chrysler to offer the plaintiff employment as a new employee with no seniority. The defendants appealed, and the plaintiff cross appealed. The Court of Appeals held: 1. The trial court did not abuse its discretion in denying the defendants’ motion for a directed verdict. Reasonable jurors could have reached different conclusions with regard to the plaintiff’s claim of religious discrimination after he presented a prima facie case based on disparate treatment and the defendants presented nondiscriminatory reasons for the treatment. 2. The trial court did not abuse its discretion in limiting the admissibility of the plaintiff’s personnel file to that portion that related to the three years immediately preceding his discharge. The ruling was consistent with the parties’ collective bargaining agreement, which provided that only that time period could be considered in deciding whether an employee could be discharged. Furthermore, evidence of the plaintiff’s personnel records before that period would have been more prejudicial than probative. 3. Under the circumstances of this case, the trial court did not abuse its discretion in ordering that the plaintiff be reinstated, but treated as a new employee. Although the plaintiff forfeited any right to back pay when he refused Chrysler’s offer of reinstatement, he did not forfeit the right to reinstatement. References Am Jur 2d, Civil Rights §§ 193, 307-309, 432-435, 438-442; Job Discrimination §§ 1231-1245; 2414. See the Index to Annotations under Backpay; Discharge from Employment or Office; Discrimination; Equal Employment Opportunity. 4. The trial court did not err in limiting the plaintiff’s recovery of damages to injuries that occurred within the statutory period of limitation for his claim. The period was not tolled under the "continuing violations” theory because the plaintiff failed to establish that the last act of discrimination was part of a series of past discrimination of which he became aware only at the time of the last act. Affirmed. J. C. Kingsley, J., dissenting in part, stated that a discharged employee’s refusal of an employer’s unconditional offer of reinstatement, unless reasonable under the circumstances, should forfeit the employee’s right to reinstatement. 1. Civil Rights — Wrongful Discharge — Mitigation of Damages — Offers of Reinstatement — Back Pay. An employer’s unconditional offer to reinstate an employee allegedly discharged in violation of the employee’s civil rights tolls the employer’s liability for back pay because rejection of the offer constitutes a failure to mitigate damages. 2. Civil Rights — Wrongful Discharge — Reinstatement. A discharged employee who prevails against the employer in an action for discrimination under the Civil Rights Act does not automatically forfeit the right to reinstatement for refusing, before the filing of the action, an unconditional offer of reinstatement by the employer (MCL 37.2101 -et seq.; MSA 3.548[101] et seq.). 3. Civil Rights — Limitation of Actions — Continuing Violation. The statute of limitations applicable to actions for discrimination under the Civil Rights Act may be tolled in a case involving a continuing violation, i.e., one where a present violation is suffered within the limitation period and where there is a policy of discrimination, a continuing course of conduct, and present effects of past discrimination (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). Durant & Durant, P.C. (by Kirsten Frank), for the plaintiff. Dickinson, Wright, Moon, Van Dusen & Freeman (by George R. Ashford and Eric J. Pelton), for the defendants. Before: Fitzgerald, P.J., and Hood and J. C. Kingsley, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Hood, J. Plaintiff brought an action for religious and racial discrimination, intentional infliction of emotional distress, religious harassment, and fraud against his employer and immediate supervisor. All claims except the religious discrimination claim were dismissed following defendants’ motion for a directed verdict at the close of plaintiffs proofs. Defendants appeal as of right from a judgment in plaintiffs favor and from the trial court’s order of reinstatement. Plaintiff cross appeals from the trial court’s ruling that prohibited him from collecting damages for discriminatory acts that occurred outside the three-year period of limitation and from the trial court’s refusal to order full reinstatement, with seniority and back pay, to his former position. We affirm. Plaintiff had been employed by defendant Chrysler Motors Corporation since 1967. The parties stipulated that, in 1978, plaintiff became a member of the American Muslim Mission. In 1981, plaintiff transferred from Chrysler’s Hugo Foundry plant to its Trenton plant. Plaintiff asserts that after the transfer he was subjected to daily harassment relating to his religious beliefs from both co-workers and his supervisor, defendant James Senart. Plaintiff produced evidence at trial that he made known the difficulties he was experiencing to his supervisor and other managerial and union personnel but that they failed to rectify the problem. Senart informed plaintiff of his dislike for those who adhere to plaintiff’s religion and often encouraged or participated in the harassment. Plaintiff was involved in three disciplinary incidents shortly before being discharged. The first involved plaintiff’s attempt to participate in the fast of Ramadan, which began near the first of June 1984. During this holy month, plaintiff was required to fast from sunup until sundown. He could not break his fast during his regularly scheduled lunch period (8:00 p.m. until 8:30 p.m.). Although Senart would not accommodate his need to take a later lunch break, plaintiff was able, when Senart went on vacation, to make arrangements with the substitute supervisor, Pat Crowe, to take a later break. When Senart returned, he revoked this privilege and suspended plaintiff for one day for abuse of lunch privileges. Plaintiff denied abusing the lunch break and was eventually reimbursed for this involuntary layoff. Shortly after the one-day suspension, plaintiff received a three-day suspension for disobeying his supervisor’s direct order to retrieve certain script charts. Plaintiff denied disobeying the order and pointed out that the suspension came on the heels of his refusal to work voluntary overtime. Plaintiff was also reimbursed for this suspension. On July 12, 1984, the day of the suspension that led to his discharge, plaintiff was charged with destroying company property, specifically, scrap cylinder heads. Plaintiff maintains that he handled the cylinder heads in the usual manner and tossed them into the divider with the normal amount of force used when handling scrap heads. After tossing the heads into the divider, plaintiff was escorted out of the plant by two guards. A week later, plaintiff was notified by mail of his discharge. Plaintiff availed himself of the grievance procedure provided in his union contract to challenge his discharge. Thirteen months later, pursuant to a settlement between his union and Chrysler, plaintiff was offered his job back with seniority, but without back pay, and with the discharge reduced to a disciplinary layoff. Plaintiff refused the offer because it did not include back pay and because he felt the offer was conditioned upon him admitting that he committed the infraction for which he was discharged. The grievance was not arbitrated. This suit followed. Plaintiff prevailed on his claim of religious discrimination, and the jury awarded him damages in the amount of $61,300. After trial, a hearing was held to determine whether the trial court would use its equitable powers to reinstate plaintiff to his former position. The court ruled that defendant was to offer plaintiff employment as a new employee, that is, with no seniority, within the following sixty days. Defendants first argue that the trial court erred in denying their motion for a directed verdict on plaintiff’s religious discrimination claim. This Court reviews a trial court’s denial of a motion for a directed verdict for an abuse of discretion. Howard v Canteen Corp, 192 Mich App 427, 431; 481 NW2d 718 (1992). This Court reviews all the evidence, including all reasonable inferences that can be drawn from it, in the light most favorable to the nonmoving party to determine whether there existed a question of fact for the jury’s determination. Stoken v J E T Electronics & Technology, Inc, 174 Mich App 457, 463; 436 NW2d 389 (1988). To successfully bring a religious discrimination claim under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., a plaintiff must make a prima facie showing of religious discrimination by demonstrating either disparate treatment or intentional discrimination. Pitts v Michael Miller Car Rental, 942 F2d 1067, 1070 (CA 6, 1991); Smith v Consolidated Rail Corp, 168 Mich App 773, 778; 425 NW2d 220 (1988). To establish disparate treatment, the 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. Singal v General Motors Corp, 179 Mich App 497, 503; 447 NW2d 152 (1989). The employer then has the burden of establishing a legitimate reason for the treatment. If the employer carries its burden, the’ plaintiff must establish that the reason or reasons presented by the employer were a mere pretext. Pitts, supra. The plaintiff may establish pretext by showing either that it is more likely that a discriminatory reason motivated the employer’s action or that the reasons proffered are simply not credible. Pitts, supra at 1071. Plaintiff’s claim is essentially one of disparate treatment. Plaintiff alleges that he was discharged for engaging in conduct that other employees regularly engaged in without being discharged. He further asserts that he was treated differently because he is a Muslim. Plaintiff established through his own testimony as well as the testimony of Larry Allen, Benny Wright, and Terri Williams that he was discharged for tossing a scrap cylinder head into a divider and that others engaging in similar conduct were not fired. In response, defendants offered testimony establishing that plaintiff was fired for destroying company property. There was testimony from Charles Ferns and Senart that the cylinder head was destroyed and there was damage to the plant floor caused by plaintiff’s throwing the head into the divider. It was then necessary for plaintiff to establish that defendants’ reasons for discharging him were a mere pretext. Plaintiff presented testimony from Larry Allen that the cylinder head was not destroyed and that there was no damage to the floor. Further, plaintiff testified about a history of harassment from defendant Senart concerning plaintiff’s religion. In addition, there was testimony from Senart that plaintiff was a good repairman and a productive and capable worker. The resolution of this case rests almost entirely on the jurors’ assessment of each witness’ credibility. The verdict rendered indicates that, in the jury’s estimation, plaintiffs testimony and the testimony of witnesses who supported his version of the events were more credible than defendants’ testimony. If reasonable jurors could reach different conclusions, a motion for a directed verdict should be denied. The trial court cannot substitute its judgment for that of the jury. Jenkins v Raleigh Trucking Services, Inc, 187 Mich App 424, 427; 468 NW2d 64 (1991). The trial court did not commit error requiring reversal when it denied defendants’ motion for a directed verdict. Defendants next argue that the trial court erred in refusing to allow plaintiffs entire personnel file into evidence. The decision to admit evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Michigan Microtech, Inc v Federated Publications, Inc, 187 Mich App 178, 186; 466 NW2d 717 (1991). An abuse of discretion is found only if an unprejudiced person, considering the facts on which the trial court acted, would say that there was no justification or excuse for the ruling made. People v Milton, 186 Mich App 574, 576; 465 NW2d 371 (1990). Only relevant evidence is admissible. MRE 402. However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. MRE 403; Dunn v Nundkumar, 186 Mich App 51, 55; 463 NW2d 435 (1990). The trial court ruled that, under the collective bargaining agreement, defendants were allowed to go back only three years when making a decision to discharge and that, therefore, those were the only relevant years. However, the trial court also determined that, if older information contained in plaintiffs personnel file was needed for impeachment purposes, it would make a ruling at the time the issue arose during trial. The trial court did not abuse its discretion by disallowing the introduction of plaintiff’s entire personnel file. As noted by the trial court, evidence of plaintiffs disciplinary history before the three-year period was not relevant to the decision to discharge. Further, even if marginally relevant, the evidence was substantially more prejudicial than probative. The trial court provided adequate reasons for its ruling on the record and gave defendants an opportunity to use the excluded evidence for impeachment purposes. Next, both plaintiff and defendants find fault with the trial court’s order of reinstatement. At the reinstatement hearing, the trial court ordered defendants to offer plaintiff a position as a new employee within sixty days. Plaintiff had been offered his old job with full seniority and benefits a little over a year after his discharge pursuant to the union’s settlement of his grievance against Chrysler. The discharge was to be reduced to a disciplinary layoff. Defendants argue that plaintiff forfeited his right to back pay and reinstatement because he failed to accept their unconditional offer of reinstatement. Plaintiff argues that he should have been reinstated with back pay and seniority. As stated before, plaintiff declined the offer. An employee who is wrongfully discharged has an obligation to mitigate damages by accepting employment of a "like nature.” In determining whether employment is of a like nature, the trial court looks at the type of work, the hours, the wages, and the working conditions. Hughes v Park Place Motor Inn, Inc, 180 Mich App 213, 220; 446 NW2d 885 (1989). Defendants argue that the trial court erred in reinstating plaintiff when it had ruled earlier, when it limited back pay, that plaintiff had unreasonably rejected an unconditional offer of reinstatement. Plaintiff argues that the trial court should have reinstated him with back pay and seniority. Plaintiff further argues that accepting the initial reinstatement offer would not have made him whole because the religious discrimination would have continued. He also argues that, at the time he rejected the offer, he thought acceptance meant forfeiting his right to pursue other legal remedies. The record, however, does not support plaintiff’s last claim. It is clearly stated in the offer of reinstatement that the settlement of the grievance would not affect the outcome of any other proceeding. In support of his position that he is entitled to reinstatement and back pay, plaintiff cites Ford Motor Co v Equal Employment Opportunity Comm, 458 US 219; 102 S Ct 3057; 73 L Ed 2d 721 (1982), Morvay v Maghielse Tool & Die Co, Inc, 708 F2d 229 (CA 6, 1983), and Boomsma v Greyhound Food Management, Inc, 639 F Supp 1448 (WD Mich, 1986). In Ford, supra at 731, the Court noted that the purpose of the reinstatement rule was to encourage compliance with civil rights laws because reinstatement addresses the discriminatory effect of an unfair discharge. This conclusion is also supported by Morvay, supra. In Boomsma, supra, however, the plaintiff, who was not seeking reinstatement, forfeited his right to back pay because of his refusal to accept the employer’s offer of reinstatement even though earlier in the opinion the court held that the employer had failed to adequately accommodate the plaintiff’s religious beliefs. Plaintiff’s primary complaint in the case at bar was that he was discharged for discriminatory reasons. Reinstatement to his former position would have reversed that discriminatory act. However, none of the cases cited by plaintiff justify his refusal to accept Chrysler’s offer of reinstatement, although they do support the conclusion that reinstatement is a preferred and uniquely effective remedy for a discriminatory discharge. We agree with defendants that plaintiff is not entitled to any back pay that accrued after the date of the first offer of reinstatement. An unconditional offer of reinstatement tolls an employer’s liability for back pay because rejecting it constitutes a failure to mitigate damages. See Hughes, supra at 220; see also Figgs v Quick Fill Corp, 766 F2d 901, 904 (CA 5, 1985); Morvay, supra; O’Donnel v Georgia Osteopathic Hosp, Inc, 748 F2d 1543, 1550-1551 (CA 11, 1984); Fiedler v Indianhead Truck Line, Inc, 670 F2d 806 (CA 8, 1982). However, despite federal precedent to the contrary, including Boomsma, we disagree with defendants’ contention that plaintiff’s rejection of Chrysler’s offer also automatically forfeits his right to reinstatement. See Giandonato v Sybron Corp, 804 F2d 120, 125 (CA 10, 1986) (employee’s refusal of unconditional offer of reinstatement forfeited right to back pay and reinstatement); Stanfield v Answering Service, Inc, 867 F2d 1290, 1296 (CA 11, 1986) (refusal of offer of reinstatement, unless reasonable, forfeits employee’s right to reinstatement). Although federal precedent is persuasive, this Court is not bound to follow it even where there is no Michigan law on point. We feel that following federal precedent in this case would lead to an unduly harsh result. Further, it would unnecessarily interfere with the trial court’s ability to fashion an appropriate remedy. Flexibility in that regard is crucial to implementing justice in light of the jury’s verdict. In this case, on the basis of hotly contested evidence, the jury found that plaintiff had been the victim of religious discrimination. The trial court, although expressing disagreement with that result, had no power to substitute its judgment and overturn the jury’s verdict. The court further had an affirmative obligation to implement the verdict and remedy the discrimination found. The trial court could reasonably conclude that awarding plaintiff only the one year of back pay that accrued before the first offer of reinstatement was insufficient under the circumstances. The trial court did not abuse its discretion in exercising its equitable powers and reinstating plaintiff, albeit without seniority. However, this Court does not hold that reinstatement is required in all similar situations, only that ordering it in this case was not an abuse of discretion. Plaintiff next argues that the trial court erred in limiting his damages to injuries that occurred within the th

ROWRY v UNIVERSITY OF MICHIGAN Docket Nos. 91292, 91293. Argued April 7, 1992 (Calendar No. 2). Decided September 22, 1992. Ezra L. Rowry filed a grievance under a collective bargaining agreement against the University of Michigan, his employer, seeking reinstatement following dismissal as a bus driver. After the grievance had proceeded through the three-step procedure required under the collective bargaining agreement, it was submitted to arbitration. The arbitrator found discharge inappropriate and ordered Rowry reinstated without back pay. While the grievance was pending, the plaintiff filed a workers’ compensation petition, alleging that he was unable to work because of an aggravated hernia condition, blood pressure, and an ulcer condition due to the stress of the job. The petition was denied. Thereafter, he filed another grievance, which resulted in another three-step hearing and a denial of that grievance. The plaintiff then brought an action in the Court of Claims, seeking to enforce the arbitration award. The court, Peter D. Houk, J., granted summary disposition for the defendant on the ground that the lawsuit was barred by a six-month period of limitation. The plaintiff brought a second action in the Court of Claims, alleging breach of contract, discrimination under the Workers’ Disability Compensation and the Civil Rights Acts, and wrongful discharge. The court again granted summary disposition for the defendant, finding the action barred by the decision in the first case. The plaintiff appealed both decisions. The Court of Appeals, Cavanagh, P.J., and Jansen and T. J. Lesinski, JJ., consolidated the appeals and affirmed in an unpublished opinion per curiam, relying on Walkerville Ed Ass’n v Walkerville Rural Communities School, 164 Mich App 341 (1987), applying the six-month period of limitation of the public employees relations act (Docket Nos. 114413, 118325). The plaintiff appeals. In an opinion by Chief Justice Cavanagh, joined by Justices Levin, Brickley, and Mallett, the Supreme Court held: The plaintiff’s cause of action to enforce the arbitration award is not barred by the six-month period of limitation applied by the Court of Appeals. References Am Jur 2d, Arbitration and Award § 165. See the Index to Annotations under Arbitration and Award. 1. MCL 423.1 et seq.; MSA 17.454(1) et seq., the labor-mediation act, provides alternatives to resolve labor disputes through mediation and arbitration. After an arbitration award has been rendered, it is enforceable at law or in equity as the agreement of the parties. The act does not expressly limit the period during which a party may enforce an arbitration award. The public employees relations act’s six-month limitation period applied by the Court of Appeals, MCL 423.9d; MSA 17.454(10.3), pertains only to actions filed with the Employment Relations Commission. Application of that limitation by analogy is not appropriate in this case. Rather than seeking money damages for breach of contract the plaintiff sought specific performance of the arbitration award. Because a suit for the specific performance is purely an equitable remedy, the Court of Appeals erred in applying by analogy the pera six-month period of limitation. 2. Two time limitations are applicable to the enforcement of arbitration awards: the six-year period of limitation for breach of contract, and the equitable doctrine of laches, requiring the exercise of due diligence to ensure the timely prosecution of the claim to avoid undue prejudice. Ordinarily, a plaintiff has six years to seek enforcement of an arbitration award. In certain cases this period may be diminished substantially if the arbitration award grants equitable relief and a delay in its enforcement is shown to prejudice the defendant in a way that evokes laches to bar the claim. In this case, because the defendant failed to raise laches in its responsive pleadings or by motion, this affirmative defense was waived. As a result, the claim is governed solely by the six-year period of limitation applicable to a breach of contract. Because the plaintiff’s complaint was within this six-year period, he may seek enforcement of the arbitration award. Justice Griffin, joined by Justice Boyle, concurring, stated that application of the six-year limitation period in this case will seriously undermine state and federal policies favoring the prompt resolution of labor disputes. Involved here is more than a simple breach of contract or a straightforward refusal to, comply with an arbitration award. The plaintiff’s cause of action arises out of a collective bargaining agreement between his union and his employer, and includes a grievance procedure designed to effect prompt resolution of disputes. If a policy of prompt resolution of labor disputes is to have meaning, a relatively short limitation period should govern resort to the courts after exhaustion of a grievance procedure. Justice Riley, concurring, stated that because the labor mediation act, the collective bargaining agreement, and the arbitration award do not provide a period of limitation for enforcement of an arbitration award, the six-year period of limitation for breach of contract must apply. MCR 2.116(C)(6) is designed to stop parties from litigating matters involving the same questions and claims presented in pending litigation. In this case, the plaintiff filed a second lawsuit against the same party, alleging exactly the same events. Because the same claim was being litigated by the plaintiff in the Court of Appeals and in the Court of Claims, the defendant was entitled to summary disposition pursuant to MCR 2.116(C)(6). Reversed and remanded. Labor Relations — Arbitration — Limitation op Actions — Laches. An action for enforcement of an arbitration award is limited by the six-year period for breach of contract and by the equitable doctrine of laches; application by analogy of the six-month period of limitation provided by the public employees relations act is inappropriate (MCL 600.5807[8], 600.5815; MSA 27A.5807[8], 27A.5815). Hurbis, Cmejrek, Clinton & Fernandez (by James R. Cmejrek) and Kurt Berggren for the plaintiff. Butzel, Long (by Virginia F. Metz and Lynne E. Deitch) for the defendant. Amici Curiae: Dickinson, Wright, Moon, Van Dusen & Freeman (by Noel D. Massie) and Miller, Canñeld, Paddock & Stone (by Diane M. Soubly) for the American Society of Employers and Greater Detroit Chamber of Commerce. Cavanagh, C.J. The plaintiff has appealed to this Court raising two issues: (1) whether the plaintiff’s first complaint to enforce an arbitration award ordering the University of Michigan to reinstate the plaintiff is barred by a period of limitation, and (2) whether the plaintiff’s second complaint, alleging wrongful discharge, breach of contract, discrimination under the Civil Rights Act, and discrimination under the Workers’ Disability Compensation Act, is barred by the first complaint to enforce the arbitration award. We hold that the plaintiff’s cause of action to enforce the arbitration award is not barred by the six-month period of limitation applied by the Court of Appeals. Because we resolve the first issue in favor of the plaintiff, we need not reach the second issue. We reverse the judgment of the Court of Appeals and remand the case to the trial court for further proceedings consistent with this opinion. i The plaintiff, employed by the University of Michigan as a bus driver since 1973, was discharged in November 1986 for negligently operating his bus. He filed a grievance under his collective bargaining agreement. The agreement has a three-step grievance procedure. The first step requires an employee to notify his immediate supervisor of the particular problem. If an unsatisfactory oral answer is received, step two permits the employee to file a written grievance to the department head, or designated representative, for a written answer. If an unsatisfactory written answer is received, step three requires the submission of a written grievance from the chairperson of his union bargaining committee to the university review committee for a hearing and a written answer. After a grievance has proceeded through the three-step procedure, the grievance may be submitted to arbitration. The plaintiff’s grievance went through the three-step procedure and was taken to arbitration. On April 23, 1987, the arbitrator issued a decision, finding that the plaintiff had operated his bus negligently but that discharge was not an appropriate remedy. The arbitrator ordered the plaintiff reinstated without back pay. While the plaintiff’s grievance was pending, in December 1986, the plaintiff filed a workers’ compensation petition, alleging that he was unable to work because of an "aggravated hernia condition, blood pressure and ulcer condition due to stress of job.” The plaintiff listed three doctors who had treated him for his condition, Dr. Person-Brown, Dr. Dew, and Dr. Strasius. On May 5, 1987, the defendant’s doctor, Dr. Stunz, examined the plaintiff and concluded that "[o]n the basis of my evaluation of this man’s hypertension, peptic ulcer disease and hiatus hernia, I do not believe he is disabled from performing any and all duties which might be involved in the performance of his job as a bus driver for the University of Michigan.” Following the examination by the defendant’s doctor, the plaintiff sought reinstatement by the university. On May 12, 1987, the university informed the plaintiff that he would have to submit a university physician’s statement from the three physicians listed on his workers’ compensation petition before he could return to work. The plaintiff submitted a release from Dr. Person-Brown, but not from the other two doctors. Although the defendant had successfully subpoenaed the records of Drs. Strasius and Dew, a further attempt by the plaintiff to be reinstated was again denied. As a result of this denial, the plaintiff filed another grievance on July 24, 1987, which resulted in a third-step hearing being held on August 6, 1987, and a decision being issued on September 18, 1987. The university review committee found that [t]he delays in assessing his ability to return to work are the result of his unwillingness to cooperate in providing the University with necessary medical information on his medical condition. There has been no violation of our Agreement. Therefore, this grievance and requested remedy are denied. On February 29, 1988, the plaintiff filed a complaint in the Court of Claims to enforce the April 23, 1987, arbitration award. The defendant filed a motion for summary disposition on the ground that the lawsuit was barred by a six-month limitation period. The plaintiff responded with two arguments: First, there was no statutory basis for the six-month period of limitation; and second, even if a six-month period of limitation applied, the lawsuit was brought within six months of the September 18, 1987, decision by the university review committee. The Court of Claims granted the defendant’s motion for summary disposition. The plaintiff filed a second complaint in the Court of Claims, alleging breach of contract, discrimination under the Workers’ Disability Compensation Act, discrimination under the Civil Rights Act, and wrongful discharge. The defendant responded with a motion for summary disposition, claiming that another action had been initiated involving the same parties and the same underlying claim. The court granted the defendant’s motion for summary disposition of the plaintiff’s second complaint. The plaintiff appealed both decisions. The Court of Appeals consolidated the appeals and affirmed the decision of the Court of Claims, relying on Walkerville Ed Ass’n v Walkerville Rural Communities School, 165 Mich App 341, 345; 418 NW2d 459 (1987). The plaintiff appealed in this Court, and we granted leave to appeal. 439 Mich 922 (1992). ii The dispositive issue before this Court is whether the plaintiff’s cause of action is barred by a six-month period of limitation. We hold that it is not. The labor-mediation act, MCL 423.1 et seq.; MSA 17.454(1) et seq., is intended to provide alternatives to resolve labor disputes through mediation and arbitration. The act provides procedures for parties to submit disputes to voluntary arbitration. After an arbitration award has been rendered, the award is "enforceable at law or in equity as the agreement of the parties.” Absent from the act is any express legislation that limits the period during which a party may enforce an arbitration award. Attempting to remedy the absence of a period of limitation, the Court of Appeals in Walkerville borrowed a six-month period from the public employees relations act (pera). Specifically, the Court of Appeals in Walkerville stated: An arbitration proceeding, being based on an agreement, is contractual in nature. Bay City School Dist [v Bay City, 425 Mich 426; 390 NW2d 159 (1986)]. The difficulty in this case arises because of MCL 423.9d; MSA 17.454(10.3), which, while allowing public labor disputes to be resolved by arbitration, does not specify a limitation period for enforcing the arbitration award. Rather, the award rendered "shall be enforceable at law or in equity as the agreement of the parties.” MCL 423.9d(4); MSA 17.454(10.3)(4). This requirement suggests that an arbitration award in the public sector should be subject to the six-year limitation period for contracts contained in the Revised Judicature Act, MCL 600.5807(8); MSA 27A.5807(8). This limitation period, although perhaps applicable under strict rules of statutory construction, appears to be an unduly lengthy period for enforcing an arbitration award. This is particularly so when viewed with the statutory declaration that the best interests of the people of this state are served by the prompt settlement of labor disputes. MCL 423.1; MSA 17.454(1). Similar policy considerations, under federal labor law, along with a consideration of competing interests affected by the limitation period, have led federal courts to adopt the six-month limitation period contained in § 10(b) of the National Labor Relations Act, 29 USC 160(b), for arbitration purposes. .See McCreedy v Local Union No 971, UAW, 809 F2d 1232 (CA 6, 1987). We conclude that the trial court did not err in adopting the six-month limitation period. A six-month period is part of pera; it effectuates the state’s express policy in favor of the prompt resolution of labor disputes in the public sector. Adoption of the six-month limitation period also contributes to statute of limitation uniformity. [Walkerville, p 345.] We disagree. By its terms, the pera limitation only applies to actions filed with the Michigan Employment Relations Commission. Additionally, the practice of applying statutes of limitation by analogy does not appear to be applicable in this case. Rather than seeking money damages for breach of contract, the plaintiff in this case seeks specific performance of the arbitration award that orders his reinstatement as an employee of the defendant. In Keys v Hopper, 270 Mich 504, 507; 259 NW 319 (1935), this Court recognized that "[a] suit for the specific performance of a contract [is] a purely equitable remedy . . . .” (Citation omitted.) As this Court stated in Lothian v Detroit, 414 Mich 160, 170; 324 NW2d 9 (1982), [C]ourts traditionally have not bent to the strictures of a statute of limitations where the law does not supply relief analogous to that afforded in equity. Thus, it is said that . . . "where the relief sought is in its nature one of equitable and not of legal cognizance, and the remedy is of a purely equitable nature, equity follows its own rules,” Michigan Ins Co [v Brown, 11 Mich 265, 272 (1863).] Consequently, we find that the Court of Appeals erred in applying the pera six-month period of limitation "by analogy” in this case. iii We do not suggest that an arbitration award can be enforced without limitation. We find two time limitations applicable to the enforcement of arbitration awards. The first time restriction applicable to the enforcement of an arbitration award is the six-year period of limitation for breach of contract. As this Court has previously recognized, arbitration is a matter of contract. It is the agreement that dictates the authority of the arbitrators and the disputes to be resolved through arbitration. In this case, the arbitration agreement provides that "[t]he arbitrator’s decision when made in accordance with his/her jurisdiction and authority established by this Agreement, shall be final and binding upon the University, the Union, and the employee or employees.” The university has never challenged the authority of the arbitrator to resolve this labor dispute. Therefore, the university’s alleged failure to comply with the arbitrator’s decision would constitute a breach of that contractual provision and would be subject to the six-year limitation period for breach of contract. The second time restriction applicable to this case is the equitable doctrine of laches. As previously noted, the plaintiff is seeking specific performance of his arbitration award and specific performance is a "purely equitable remedy.” In defining the scope of the various limitation periods contained in the Revised Judicature Act, MCL 600.5815; MSA 27A.5815 provides: The prescribed period of limitations shall apply equally to all actions whether equitable or legal relief is sought. The equitable doctrine of laches shall also apply in actions where equitable relief is sought. [Emphasis added.] In the context of this case, we interpret this statutory provision to require all actions seeking judicial enforcement of arbitration awards to be commenced within six years after the award is granted. Where the award purports to grant relief that is traditionally equitable in nature, the equitable doctrine of laches also applies, requiring the exercise of due diligence to ensure the timely prosecution of the plaintiif’s claim to avoid unduly prejudicing the defendant. While we find authority for this approach in MCL 600.5815; MSA 27A.5815, we note that this Court had previously recognized that laches can operate to cut short a statutory limitation period when equitable relief is sought. In Olson v Williams, 185 Mich 294, 301; 151 NW 1043 (1915), this Court stated: The omission to do what one is by law required to do to protect his rights, and which justifies a fair presumption that he has abandoned the same, under circumstances which misled or prejudiced an adverse party, may in equity operate as laches which bar[s] the assertion of such right later under changed conditions, even though the statute of limitations has not run. IV We hold that a plaintiif ordinarily has six years to seek enforcement of an arbitration award. We also recognize that in certain cases this time period may be substantially diminished if a plaintiff’s arbitration award grants equitable relief and a delay in its enforcement is shown to prejudice the defendant in a way that evokes laches to bar the plaintiff’s claim. In failing to raise laches in its responsive pleadings or by motion, the defendant has waived this affirmative defense. As a result of this waiver, the plaintiff’s claim in this case is governed solely by the six-year period of limitation applicable to a breach of contract. Because the plaintiff filed his complaint with the Court of Claims well within this six-year period, the plaintiff is entitled to seek enforcement of his arbitration award. Accordingly, we reverse the judgments of the lower courts, and we remand this matter to the trial court for further proceedings consistent with this opinion. Levin, Brickley, and Mallett, JJ., concurred with Cavanagh, C.J. MCR 2.116(C)(6). MCL 423.9d; MSA 17.454(10.3). MCL 423.9d(4); MSA 17.454(10.3X4). See MCL 423.216(a); MSA 17.455(16)(a). MCL 423.216(a); MSA 17.455(16)(a) provides: Whenever it is charged tha

KAMALNATH v MERCY MEMORIAL HOSPITAL CORPORATION Docket No. 128108. Submitted April 8, 1992, at Detroit. Decided June 15, 1992, at 9:15 a.m. Leave to appeal sought. Jacintha F. Kamalnath and Prakash J. Kamalnath, for himself and as next friend of Anthea J. Kamalnath, brought an action in the Monroe Circuit Court against Mercy Memorial Hospital Corporation, alleging breach of contract, wrongful discharge, employment discrimination based on gender and race, fraud, misrepresentation, and intentional infliction of emotional distress after the defendant refused to allow Jacintha F. Kamalnath to continue her medical practice at its clinic. The court, Michael W. LaBeau, J., granted the defendant summary disposition of all claims and denied a subsequent motion for rehearing, in which the plaintiffs first asserted a claim of estoppel. The plaintiffs appealed. The Court of Appeals held: 1. The trial court properly dismissed the claim of breach of contract after it determined that there was no written and signed contract between the defendant and Dr. Kamalnath and that she had commenced her services at the clinic despite the absence of a contract. 2. The claims of quantum meruit and equitable estoppel are without merit because the plaintiff received compensation in the amount specified in the defendant’s contractual offers. 3. The trial court correctly dismissed the employment discrimination claims because the plaintiffs offered no evidence to refute the defendant’s contention that Dr. Kamalnath’s poor performance was the reason for discontinuing her services. 4. The trial court properly dismissed the fraudulent misrepresentation claim because the plaintiffs failed to respond to the defendant’s denial of fraudulent intent. Also, the alleged misrepresentations concerned promises of future action or matters of opinion, neither of which may serve as the basis of an action for fraud. 5. The trial court properly dismissed the claim of intentional infliction of emotional distress because the plaintiffs failed to allege outrageous conduct by the defendant or a breach of duty distinct from contract. Affirmed. Hooper, Hathaway, Price, Beuche & Wallace (by David J. Hutchinson), for the plaintiffs. Kitch, Saurbier, Drutchas, Wagner & Kenney, P.C. (by William A. Tanoury, Susan Healy Zitterman, and Linda M. Garbarino), for the defendant. Before: Weaver, P.J., and Sullivan and Corrigan, JJ. Corrigan, J. Plaintiffs appeal a grant of summary disposition of their complaint of breach of contract, wrongful discharge, employment discrimination, fraud, misrepresentation, and intentional infliction of emotional distress. We affirm. In 1986, defendant decided to open an outpatient family practice clinic in Petersburg in Monroe County. Defendant retained a recruiter to identify a private family practitioner who brought plaintiff Jacintha Kamalnath and defendant together. In June 1986, plaintiff, an endocrinologist, first visited the area and discussed the clinic plan with John Iacoangeli, defendant’s director of planning and development. Plaintiff was unfamiliar with Monroe County and also lacked experience in the "business” aspects of medical practice. Iacoangeli allegedly stated that the hospital would assist plaintiff with marketing. On June 20, 1986, Iacoangeli wrote plaintiff as follows: Thank you for visiting this facility and touring the communities of Monroe and Petersburg on Saturday. As discussed at our meeting, I stated that I would present for your consideration an offer relative to the start-up of a physician office in Petersburg and your retention as a private family practitioner. The following offer is subject to receipt and review of your curriculum vitea [sic]. 1. The hospital will provide a net salary guarantee before taxes for one year in an amount not to exceed Sixty Thousand [$60,000] Dollars. The salary guarantee is determined by subtracting office and equipment rental, insurance, including medical liability, salaries, payroll taxes and workers compensation for office staff, office supplies and medical records, dues to medical organizations (ama, Michigan State Medical Society), fees associated with normal business operations (legal and accounting), and telephone. 2. Underwrite the rental of the physician office for the first year of operation. 3. Provide a Fifty-Thousand [$50,000] Dollar line of credit to be used for operational and professional expenses. The interest rate for using these funds will be seven percent. This line of credit will be available for two years. 4. The hospital will assist you with your relocation costs to a home within Monroe County at a cost not to exceed $1,500. As I mentioned, the salary guarantee is associated with the primary care aspect of the Peters-burg Physician Office. Consultation and other fees associated with your speciality in Endocrinology are separate. This offer is based on your availability to serve the Petersburg market area as a primary care physician and maintain regular office hours four [4] full days and two [2] half-days a week. If you have any further questions, please feel free to contact me. /s/ John R. Iacoangeli Plaintiff did not accept this written offer. Instead, she suggested various changes and additions, principally an increase in the term from one year to three years and a provision that the hospital handle marketing. On June 30, 1986, Iacoangeli sent plaintiff a second letter, which provided in part: It was a pleasure speaking with you again regarding the physician opportunity in Petersburg. As I mentioned, the following revisions to my June 20 letter, are outlined as follows: 1. The net salary-guarantee before taxes in an amount not to exceed Sixty Thousand [$60,000] dollars will be offered for three [3] years, subject to an annual performance review. 2. In addition to those expenses that are subtracted from gross receipts as outlined previously, medical education relating to primary care has been added. 3. Cost of relocation will be increased to a cost not to exceed $2,750. 4. The hospital administration will assist in providing coverage for the office when you are on vacation. Also, I have enclosed an application for appointment to the Medical Staff. Please complete this as soon as possible. . . . Defendant subsequently prepared several drafts of a proposed contract, but none of them proved satisfactory to plaintiff, who testified: "[T]here were so many things that was [sic] not acceptable, I saw it [the contract] as not acceptable and that’s the whole thing.” Plaintiff, however, moved to Petersburg and began work, although she had no signed contract and the clinic was not yet completed. Various problems then developed with equipping and staffing the clinic. Defendant allegedly did not provide promised equipment, office staff, and advertising and did not timely bill the patients. In addition, although the hospital arranged a line of credit, plaintiff allegedly was not informed that the Nine of credit” was actually a personal loan. The Petersburg clinic was not as successful as the parties had hoped. Relations between them deteriorated. A white male physician, who is allegedly less qualified than plaintiff, was added to the clinic staff. In November 1987, defendant formally notified plaintiff to vacate the clinic after a breakdown in their relationship. In early 1988, plaintiff filed suit, claiming breach of contract, wrongful discharge, sex and race discrimination in employment, fraud and misrepresentation, negligent misrepresentation, and intentional infliction of emotional distress. Defendant sought summary disposition pursuant to MCR 2.116(C)(8) and (10), asserting that the statute of frauds barred plaintiff’s contract claim, that plaintiff’s sex and race discrimination claims had no factual basis, that the alleged fraud and misrepresentation involved matters of opinion and future promises, that the claim of intentional infliction of emotional distress lacked any basis, and that plaintiff was an independent contractor who could not sue for wrongful discharge. The motion was supported by a detailed affidavit from John Iacoangeli. Plaintiff’s response brief lacked any citations to authority. The support filed by plaintiff’s counsel consisted of an "Affidavit of Unavailability of Affidavits,” the material portions of which read: 2. The Motion was filed while I was on vacation, and my schedule did not permit me to have the necessary communications with potential witnesses that would have been necessary prerequisites to the preparation of specific affidavits. 3. The persons from whom affidavits might have been obtained would include Plaintiffs, who would have been able to support everything contained in the Complaint, as well as the testimony of Dr. Omana Menon relating to damages, the testimony of Dr. Bruce Feyz and Dr. Amba Krishnan regarding the discrimination claim.[] The court granted defendant’s motion, finding that the June 20 and June 30, 1986, letters were mere offers outside the statute of frauds, that plaintiff was not defendant’s employee, that no genuine issue of fact existed as to the discrimination claims, that the fraud and misrepresentation claims involved promises and matters of opinion with no evidence of intent to deceive, and that no "outrageous conduct” supported plaintiff’s claim of intentional infliction of emotional distress. Plaintiff sought rehearing, rearguing her earlier points and newly claiming promissory and equitable estoppel. She also sought for the first time recovery in quantum meruit. The court denied the motion for rehearing. I. THERE WAS NO ENFORCEABLE CONTRACT BETWEEN THE PARTIES. It is hornbook law that a valid contract requires a "meeting of the minds” on all the essential terms. In order to form a valid contract, there must be a meeting of the minds on all the material facts. A meeting of the minds is judged by an objective standard, looking to the express words of the parties and their visible acts, not their subjective states of mind. [Stanton v Dachille, 186 Mich App 247, 256; 463 NW2d 479 (1990), citing Heritage Broadcasting Co v Wilson Communications, Inc, 170 Mich App 812, 818; 428 NW2d 784 (1988).] "Meeting of the minds” is a figure of speech for mutual assent. Goldman v Century Ins Co, 354 Mich 528, 534; 93 NW2d 240 (1958). See also, e.g., Stark v Kent Products, Inc, 62 Mich App 546, 548; 233 NW2d 643 (1975). An offer is a unilateral declaration of intention, and is not a contract. Western Michigan Univ Bd of Trustees v Slavin, 381 Mich 23, 31; 158 NW2d 884 (1968); Eastern Michigan Univ Bd of Control v Burgess, 45 Mich App 183, 187; 206 NW2d 256 (1973). A contract is made when both parties have executed or accepted it, and not before. Brown v Considine, 108 Mich App 504, 507; 310 NW2d 441 (1981), citing Holder v Aultman, Miller & Co, 169 US 81, 89; 18 S Ct 269; 42 L Ed 669 (1898). A counterproposition is not an acceptance. Harper Bldg Co v Kaplan, 332 Mich 651, 655; 52 NW2d 536 (1952). Mere discussions and negotiation, including unaccepted offers, cannot be a substitute for the formal requirements of a contract. Kirchhoff v Morris, 282 Mich 90, 95; 275 NW 778 (1937). A mere expression of intention does not make a binding contract, Hammel v Foor, 359 Mich 392, 400; 102 NW2d 196 (1960): The burden is on plaintiffs to show the existence of the contract sought to be enforced, and no presumption will be indulged in favor of the execution of a contract since, regardless of the equities in a case, the court cannot make a contract for the parties when none exists. In this case, the parties did not have a sufficient "meeting of the minds” regarding the essential terms of the contract. Plaintiff rejected the June 20 offer, as the June 30 offer makes plain. Plaintiff herself admitted that she did not approve any of the proposed contracts after her move to Peters-burg. Important differences remained between the parties as to basic contractual duties such as the responsibility for certain major expenses. The parties had exchanged a series of offers and counteroffers, not an offer and an acceptance. Even if the June 20 and 30 letters were considered a binding contract, defendant reserved the right to terminate plaintiff. She had no guarantee of continuation after the first year. The June 30 letter expressly provided that "[t]he net salary-guarantee . . . will be offered for three [3] years, subject to an annual performance review.” [Emphasis supplied.] Plaintiff’s performance was subjected to an annual performance review and found deficient. Iacoangeli averred that defendant terminated plaintiff’s employment "based on her poor performance in operating the Petersburg Clinic in terms of her office hours, patient relations, patient charges, accounting and general management responsibilities.” As noted, plaintiff never countered the Iacoangeli affidavit. Further, under the statute of frauds, MCL 566.132(a); MSA 26.922(a), "[a]n agreement that, by its terms, is not to be performed within 1 year from the making thereof’ must be in writing and "signed by the party to be charged.” The proposed contract was for three years. The only document signed by defendant’s agent that refers to a three-year term is the June 30 letter. That letter, however, is not a contract; the author refers to "revisions to my June 20 letter.” The June 20 letter was merely "an offer relative to the start-up of a physician office in Petersburg and your retention as a private family practitioner.” Thus, plaintiff’s claim is defeated by the statute of frauds. Plaintiff cannot avoid the effect of the statute by claiming partial performance of the terms of the purported contract. In Michigan, the partial-performance doctrine does not apply to employment contracts for more than one year. McMath v Ford Motor Co, 77 Mich App 721, 725; 259 NW2d 140 (1977). Plaintiffs alternative argument, seeking compensation under some other theory, was presented to the court below only on plaintiffs motion for rehearing. The trial court did not rule on it. Generally, questions not ruled on below cannot be presented to or considered by a reviewing court, absent a miscarriage of justice. Bajis v Dearborn, 151 Mich App 533, 536; 391 NW2d 401 (1986); Petrus v Dickinson Co Bd of Comm’rs, 184 Mich App 282, 288; 457 NW2d 359 (1990). We see no miscarriage of justice here. Nevertheless, we find plaintiffs alternative argument to have no merit. Because she has been compensated, she cannot seek recovery in quantum meruit. She was paid for her services at the clinic in 1986 and 1987 at the proposed contract rate of $60,000 a year. The doctrine of quantum meruit allows a party to recover the reasonable value of services rendered. A contract, though void under the statute of frauds, may be admissible to show the value placed on a plaintiffs services by the parties. Ordon v Johnson, 346 Mich 38, 49; 77 NW2d 377 (1956). Plaintiff is not entitled to any additional payment under a quantum meruit analysis. Nor does the doctrine of equitable estoppel support plaintiff. "[A]s an equitable remedy, [estoppel] is employed to alleviate an unjust result of strict adherence to established legal principles.” Ass’n of Hebrew Teachers v Jewish Welfare Federation, 62 Mich App 54, 60; 233 NW2d 184 (1975). Defendant has not been unjustly enriched at plaintiffs expense. Even assuming a three-year contract for plaintiffs services, plaintiffs contractual rate of compensation ($60,000 a year) was identical to what she was actually paid. Plaintiffs apparent suggestion that clinic revenues increased because of her activity lacks any merit since her compensation was not tied to clinic income. She would not have received any more than $60,000 a year from defendant had she remained at the Petersburg clinic longer than she did. Had defendant refused to pay plaintiff at all for services rendered or paid her at a lower rate, the case might be different. But plaintiff herself admitted that she was paid appropriately. Moreover, to support a claim of estoppel, a promise must be definite and clear. McMath, supra at 726, citing Ass’n of Hebrew Teachers, supra at 59. The promises upon which plaintiff allegedly relied are certainly not definite and clear. The only promise mentioned in the complaint was defendant’s "promise to use business expertise and experience.” The doctrine of estoppel should be applied only where the facts are unquestionable and the wrong to be prevented undoubted. Commercial Union Ins Co v Medical Protective Co, 136 Mich App 412, 421; 356 NW2d 648 (1984), rev’d in part on other grounds 426 Mich 109; 393 NW2d 479 (1986). This vague promise does not qualify. ii. plaintiff’s remaining claims do not warrant REVERSAL. Plaintiff’s remaining allegations require minimal discussion. A. EMPLOYMENT DISCRIMINATION Plaintiff alleges violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., because defendant engaged a white male physician to replace her, a female of Indian origin. MCL 37.2202; MSA 3.548(202) prohibits "discriminat[ion] . . . because of . . . national origin . . . [or] sex.” Plaintiff failed to adduce any evidence whatsoever to support this claim in response to defendant’s properly supported motion for summary disposition. As noted, Iacoangeli averred that he terminated defendant’s relationship with plaintiff solely on the basis of her poor performance. When a motion under subrule (C)(10) is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, judgment, if appropriate, shall be entered against him or her. [Emphasis supplied; MCR 2.116(G)(4).] Plaintiff did not come forward with any facts at all. Instead, counsel presented the previously described "Affidavit of Unavailability of Affidavits.” A mere promise to offer factual support at trial is insufficient. McCart v J Walter Thompson USA, Inc, 437 Mich 109, 115, n 4; 469 NW2d 284 (1991). Summary disposition was properly granted pursuant to MCR 2.116(G)(4). Further, plaintiffs employment discrimination claim fails because plaintiff was not defendant’s employee. The trial court properly found that plaintiff was an independent contractor, not an employee. An independent contractor is one who, carrying on an independent business, contracts to do work without being subject to the right of control by the employer as to the method of work but only as to the result to be accomplished. [Parham v Preferred Risk Mut Ins Co, 124 Mich App 618, 622-623; 335 NW2d 106 (1983), citing Marchand v Russell, 257 Mich 96; 241 NW 209 (1932).] The proposed agreement renders plaintiff an independent contractor rather than an employee. The clinic staff were to be plaintiff’s employees, not defendant’s. Plaintiff would be required to pay all expenses from clinic receipts, including insurance, supplies, most business expenses, transportation, and depreciation. Plaintiff would also be liable for rent to defendant. We find no error. B. FRAUD AND MISREPRESENTATION We affirm the lower court’s dismissal of the counts of fraud and misrepresentation because plaintiff did not comply with MCR 2.116(G)(4). She failed to produce any affidavits or other evidence to counter lacoangeli’s affidavit denying any intent to defraud or mislead plaintiff. Moreover, an action for fraudulent misrepresentation must be predicated upon a statement relating to a past or an existing fact. Future promises cannot constitute actionable fraud. State Bank of Standish v Curry, 190 Mich App 616, 623; 476 NW2d 635 (1991), citing Hi-Way Motor Co v Int'l Harvester Co, 398 Mich 330, 336; 247 NW2d 813 (1976). The actions plaintiff complained of principally relate either to promises of future action (e.g., the division of expenses between plaintiff and d

SCHULTES v NAYLOR Docket No. 129828. Submitted May 7, 1992, at Detroit. Decided June 2, 1992; approved for publication September 3, 1992, at 9:15 A.M. Karen L. Rapp Schultes brought a wrongful discharge action in the Wayne Circuit Court against Michael A. Naylor, General Motors Corporation, and others, alleging breach of contract, intentional infliction of emotional distress, and unlawful sexual discrimination. The court, Richard P. Hathaway, J., granted summary disposition for the defendants. The plaintiff appealed. The Court of Appeals held: 1. Both the written employment contract between the plaintiff and General Motors and the employee handbook clearly indicated that the plaintiff’s employment was to be month to month. Therefore, her employment was terminable at will, as opposed to for just cause only, and her discharge for insubordination, which was preceded by reprimands for excessive tardiness, inability to work with fellow employees, and abuse of telephone privileges, was consistent with the terms of employment. 2. The plaintiff failed to establish a prima facie case of sexual discrimination in the absence of a showing of disparate treatment or intentional discrimination. None of the male employees with whom the plaintiff compared herself refused, as did the plaintiff, to reimburse General Motors for the cost of personal telephone calls. The plaintiff failed to show that the reasons stated for her discharge were mere pretext for intentional discrimination. Affirmed. 1. Master and Servant — Employment Contracts — Employee Handbooks. An employment relationship is terminable at will by either party where the employee signs an agreement that employment will be month to month and receives an employee handbook so stating. References Am Jur 2d, Civil Rights §§ 154 et seq.; Job Discrimination §§ 138 et seq.; Master and Servant §§ 27 et seq.. See the Index to Annotations under Discharge From Employment or Office; Equal Employment Opportunity; Sex Discrimination. 2. Civil Rights — Sexual Discrimination — Disparate Treatment. A prima facie case of sexual discrimination is established on the basis of disparate treatment upon a showing that the plaintiff is a member of a class deserving of protection under the Civil Rights Act and that, for the same conduct, the plaintiff was treated differently than a person of the opposite sex (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 3. Civil Rights — Sexual Discrimination — Intentional Discrimination. A prima facie case of intentional sexual discrimination in the termination of employment is established upon a showing that the plaintiff was a member of an affected class, that the plaintiff was discharged, that the defendant was predisposed to discriminate against persons in the class, and that the defendant actually acted upon that disposition in deciding to terminate employment (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). Christensen & Bannigan, P.C. (by Thomas H. Bannigan), for the plaintiff. Bodman, Longley & Dahling (by Joseph A. Sullivan and Martha B. Goodloe), for the defendants. Before: Sawyer, P.J., and Neff and Fitzgerald, JJ. Per Curiam. Plaintiff appeals from a May 24, 1990, order dismissing her claims of sexual discrimination, breach of contract, and intentional infliction of emotional distress. MCR 2.116(C)(10). We affirm. This appeal arises out of an employment relationship between plaintiff and defendant, General Motors Corporation. In November 1982, plaintiff was hired by gm and placed in the Risk Management Department. Initially, management was dissatisfied with plaintiff’s job performance becáuse of her consistent tardiness, inability to deal with other workers effectively, and failure to complete work in a timely fashion. In 1985, plaintiff applied for a new position in the Corporate Strategic Planning Group of gm. Notwithstanding the interviewers’ concerns about her past job performance, plaintiff was given a transfer to the cspg, and worked there until her termination. In August 1987, plaintiff took a leave of absence in order to have a child. When she returned to work, she was consistently reprimanded for tardiness. In February and March 1988, plaintiff’s absences and tardiness became excessive. When the supervisors’ efforts to reconcile the problem failed, they consulted with the personnel department to seek a solution. As part of the investigation into plaintiff’s performance, an employee in personnel requisitioned plaintiff’s phone records for her office extension. These phone records revealed that plaintiff made nearly $1,700 in phone calls at gm’s expense. Gm management sent plaintiff a letter informing her that she would be billed for the phone calls that were not related to her employment responsibilities with gm. The letter also reprimanded plaintiff for her excessive tardiness, inability to deal with her co-workers, and abuse of her phone privileges. Management sent an additional letter to plaintiff asking that she submit a payment plan for her personal phone calls by the following day. Plaintiff responded to the letter with a note that stated, in part, as follows: I have discontinued efforts to review the bills. For the following reasons, my plan for repayment of the phone bills of [plaintiff’s extension] is as follows: I will pay zero amount of such telephone bills. Plaintiff was subsequently discharged from her duties with gm and thereafter filed this action. Plaintiff first argues that it was error for the trial court to summarily dismiss count i of her complaint, which alleged breach of contract. We disagree. When she was hired, plaintiff was interviewed by Wayne Morrison, a gm employee. Plaintiff alleged that Morrison told her that she would remain at gm as long as she did her job. However, on the day she was hired, plaintiff signed an employment agreement stating that she was employed month to month only. The agreement contains a total integration clause and indicates that oral modifications are not permitted. Plaintiff also signed a number of subsequent compensation statements that acknowledged that the terms of the original employment agreement controlled her relationship with gm. Finally, the employee handbook, a copy of which plaintiff received, describes the employment terms as month to month. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), stands for the proposition that employment contracts terminable only for cause are enforceable to the same degree as other contracts. Id. at 610. See also Valentine v General American Credit, Inc, 420 Mich 256, 258; 362 NW2d 628 (1984). It is clear from Toussaint that an employer who makes oral representations that employment may be terminated only for cause may be bound contractually if those representations are supported by company policy. Toussaint, supra at 598. Our Supreme Court has held that oral manifestations by an employer that an employee’s job is secure must be clear and unequivocal. Rowe v Montgomery Ward & Co, Inc, 437 Mich 627, 645; 473 NW2d 268 (1991). The representation must be based upon more than just an employer’s statement regarding hopes for a long relationship. Id. at 640. This Court has evaluated the same form contract and gm handbook involved in this case and concluded that they create an at-will employment relationship. See Singal v General Motors Corp, 179 Mich App 497, 504-505; 447 NW2d 152 (1989) (relying on Taylor v General Motors Corp, 826 F2d 452 [CA 6, 1987]). Plaintiff has not produced any evidence corroborating her claim that gm made oral manifestations regarding a just-cause employment relationship. Accordingly, plaintiff has failed to rebut the clear indication in her employment agreement that she was terminable at will. Count ii of plaintiffs complaint alleges sexual discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. This claim is based on plaintiffs comparison of herself with male employees who also "abused” their phone privileges. The trial court concluded that "this is a case where it really is not one that centers on sexual discrimination but, rather, it is one without any factual dispute and I believe it is one of insubordination.” We agree with the trial court. A motion for summary disposition under MCR 2.116(0(10) tests the factual sufficiency of the claim at issue. Marsh v Dep’t of Civil Service (After Remand), 173 Mich App 72, 77; 433 NW2d 820 (1988). Under MCR 2.116(G)(5), the court must consider the affidavits, pleadings, depositions, and other documentary evidence presented by the parties. The benefit of doubt is to be given to the nonmoving party. If the trial court determines that there is a significant deficiency in the claim that cannot be cured by a full development of the factual record, then summary disposition under MCR 2.116(0(10) is appropriate. In order to avoid summary disposition in this case, plaintiff had to establish a genuine issue of material fact regarding whether a prima facie case of discrimination exists. See Meeka v D & F Corp, 158 Mich App 688, 694; 405 NW2d 125 (1987). To establish a prima facie case of sexual discrimination under the disparate-treatment theory, a plaintiff must show that she was a member of a class deserving of protection under the statute, and that, for the same conduct, she was treated differently than a man. Marsh, supra at 79. The crux of the sexual discrimination case is that there are similarly situated individuals who have been treated differently because of their sex. Id. It is plaintiff’s burden to establish a prima facie case of sexual discrimination with evidence that is legally admissible and sufficient to state a prima facie claim. Id. at 80. Our review of plaintiff’s proofs reveals a factual deficiency that cannot be overcome. None of the male employees to whom plaintiff compared herself refused to reimburse gm for their phone usage. If plaintiff had shown that these men did refuse to pay, but were not terminated, her case would be much stronger. In light of her failure to make this showing, none of the men were similarly situated and, thus, the trial court properly dismissed this claim. Finally, plaintiff contends that she was not terminated for insubordination. Specifically, plaintiff contends that defendants’ insubordination justification was merely a pretext for discriminating against her on the basis of sex. We disagree. A second way to make a prima facie showing of discrimination based upon sex is to prove that the discrimination was intentional. Hickman v W-S Equipment Co, Inc, 176 Mich App 17, 21; 438 NW2d 872 (1989). In order to succeed under this theory, a plaintiff must show that she was a member of an affected class, that she was discharged, that the defendant was predisposed to discriminate against persons in the class, and that the defendant actually acted upon that disposition when the termination decision was made. Id. In this case, plaintiff is obviously a member of a protected class and was discharged. The only question is whether she has made the requisite showing of a pretext for intentional discrimination in order, to sustain the action. This question must be answered in the negative. All the incidents to which plaintiff points are actions taken by defendants in order to extract from plaintiff compliance with the rules under which all employees of gm were expected to work. Plaintiff did not produce any evidence at the hearing on the motion for summary disposition that indicated a pattern of discrimination against women within gm. Rather, plaintiff made unsubstantiated allegations of discrimination against her that were insufficient to create a genuine issue of material fact regarding intentional discrimination. Affirmed. A good portion of the calls were made to plaintiff's relatives in Rhode Island and New Jersey. In addition, the records revealed that plaintiff used her GM-issued phone credit card to make calls from California while she was on vacation. It is also clear that none of the individuals named as defendants are liable because they were not parties to either the express or implied contract plaintiff alleges was formed on the day she was hired. Plaintiff’s contention that she followed gm’s directive to submit a plan for reimbursement for the phone calls is without merit. Plaintiff’s letter, which indicated that her plan was to pay zero, was nothing more than an enticement for gm to take action.

SHARON AMOS, KATHY HALL and EARLINE MARSHALL v. OAKDALE KNITTING COMPANY AND WALTER MOONEY, III No. 278A91 (Filed 8 May 1992) 1. Master and Servant § 8.1 (NCI3d) — minimum wage — employees required to work for less — violation of public policy Defendants violated the public policy of North Carolina by firing plaintiffs for refusing to work for less than the statutory minimum wage. Although the definition of “public policy” approved by the Supreme Court does not include a laundry list of what is or is not “injurious to the public or against the public good,” at the very least public policy is violated when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes. Am Jur 2d, Labor and Labor Relations §§ 2559, 2567, 2571. 2. Master and Servant § 10.2 (NCI3d)— wrongful discharge — refusal to accept less than minimum wage — alternative remedies The availability of alternative remedies does not prevent a plaintiff from seeking tort remedies for wrongful discharge based on the public policy exception to the employment at will doctrine, absent federal preemption or the intent of our state legislature to supplant the common law with exclusive statutory remedies. The availability of alternative common law and statutory remedies supplements rather than hinders the ultimate goal of protecting employees who have been fired .in violation of public policy. Am Jur 2d, Master and Servant §§ 48.7, 60. 3. Master and Servant § 10.2 (NCI3d)— wrongful discharge — public policy exception —federal preemption —state statutory preclusion The issue of whether the federal Fair Labor Standards Act preempted a state action for wrongful discharge for refusal to work for less than minimum wage was a constitutional question which was not passed upon by the trial court or the Court of Appeals and was not properly before the Supreme Court. Moreover, the North Carolina legislature, by enacting the Wage and Hour Act, did not intend to preclude wrongful discharge actions based on violation of the state’s public policy requiring employers to pay their employees at least the statutory minimum wage. Am Jur 2d, Labor and Labor Relations §§ 2545, 2546, 2559; Master and Servant §§ 48.7, 66. 4. Master and Servant § 10.2 (NCI3d)— wrongful discharge— separate claim for bad faith discharge — not recognized The discussion of bad faith discharge by the North Carolina Supreme Court in Coman v. Thomas Manufacturing Co., 325 N.C. 172, was dicta. The issue in Coman was whether to adopt a public policy exception to the employment at will doctrine and the Court did not recognize a separate claim for wrongful discharge in bad faith. Am Jur 2d, Master and Servant § 48.7. On appeal by plaintiffs pursuant to N.C.G.S. § 7A-30(2) from a decision of a divided panel of the Court of Appeals, 102 N.C. App. 782, 403 S.E.2d 565 (1991), affirming an order of Morgan, J., at the 3 April 1989 Session of Superior Court, SURRY County, dismissing plaintiffs’ complaint pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6). Plaintiffs’ petition for discretionary review as to additional issues was allowed by the Supreme Court on 14 August 1991. Heard in the Supreme Court 13 February 1992. Kennedy, Kennedy, Kennedy and Kennedy, by Harvey L. Kennedy and Harold L. Kennedy, 111, for plaintiff-appellants. Allman Spry Humphreys Leggett & Howington, P.A., by W. Thomas White, David C. Smith and W. Rickert Hinnant, for defendant-appellees. J. Wilson Parker, Deborah Leonard Parker, J. Michael McGuinness, Lisa A. Parlagreco, Gayle C. Wintjen and McGuiness S. Parlagreco for North Carolina Academy of Trial Lawyers; and Elliot, Pishko, Gelbin & Morgan, by Robert M. Elliot, for North Carolina Civil Liberties Union Legal Foundation, amici curiae. Pamela R. DiStefano and Maureen A. Sweeney for Farmworkers Legal Services of North Carolina, amicus curiae. FRYE, Justice. For the first time since our decision in Coman v. Thomas Manufacturing Co., 325 N.C. 172, 381 S.E.2d 445 (1989), we examine the contours of the public policy exception to the employment-at-will doctrine. Three issues are presented: (1) does firing an employee for refusing to work for less than the statutory minimum wage violate the public policy of North Carolina? (2) does the availability of alternative remedies prevent a plaintiff from seeking tort remedies for wrongful discharge based on the public policy exception to the employment-at-will doctrine? and (3) did Coman recognize a separate and distinct exception to the employment-at-will doctrine based on “bad faith” termination? For the reasons outlined below, we hold that firing an employee for refusing to work for less than the statutory minimum wage violates the public policy of North Carolina. Furthermore, we hold that absent (a) federal preemption or (b) the intent of our state legislature to supplant the common law with exclusive statutory remedies, the availability of alternative federal or state remedies does not prevent a plaintiff from seeking tort remedies for wrongful discharge based on the public policy exception. Based on these two holdings, we conclude that plaintiffs in this case have stated a valid claim for wrongful discharge in violation of public policy. Finally, we hold that Coman did not recognize a separate and distinct “bad faith” exception to the employment-at-will doctrine. On 27 January 1989, plaintiffs Amos, Hall, and Marshall filed a complaint in Surry County Superior Court alleging the following facts. In February 1988, plaintiffs, employees at defendant Oakdale Knitting Company, learned that their pay had been reduced to $2.18 per hour, below the statutory minimum wage. When they inquired of their supervisor, Herbert Bowman, as to why their pay had been reduced below the minimum wage, they were instructed to talk with defendant Walter Mooney, III, one of the owners of Oakdale Knitting. When Mooney arrived at the plant, he told the plaintiffs that they either had to work for the reduced pay or they were fired. Plaintiffs refused to work for $2.18 per hour and were terminated. Plaintiffs’ complaint alleges that their firing violates the public policy of North Carolina as set forth in N.C.G.S. § 95-25.3 — the minimum wage section of the state’s Wage and Hour Act. Plaintiffs sought actual damages, including lost wages, and special damages for “great worry, embarrassment, humiliation, anxiety and mental and emotional distress.” Plaintiffs also sought punitive damages. Defendants filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted pursuant to N.C. R. Civ. P. 12(b)(6). On 6 April 1989, Judge Morgan granted defendants’ motion and dismissed the action. Plaintiffs appealed to the Court of Appeals, which affirmed the trial court, holding that plaintiffs had not stated a valid claim for wrongful discharge. Amos v. Oakdale Knitting Co., 102 N.C. App. 782, 403 S.E.2d 565 (1991). Judge Johnson dissented on the narrow ground that plaintiffs’ complaint had stated a claim pursuant to N.C.G.S. § 95-25.22 (recovery of unpaid wages under the Wage and Hour Act). Plaintiffs appealed to this Court based on the dissenting opinion; on 14 August 1991 we allowed plaintiffs’ petition for discretionary review as to additional issues. We now reverse the Court of Appeals. I. This case comes to us, via the Court of Appeals, on a motion to dismiss for failure to state a claim upon which relief can be granted. For purposes of this appeal, therefore, all allegations of fact are taken as true. Jackson v. Bumgardner, 318 N.C. 172,174-75, 347 S.E.2d 743, 745 (1986). In Coman v. Thomas Manufacturing Co., 325 N.C. 172, 381 S.E.2d 445, plaintiff Coman alleged that he was discharged from his job as a long-distance truck driver after refusing to violate federal transportation regulations. Coman brought suit for wrongful discharge. This Court reversed the Court of Appeals, which had agreed with the trial court’s dismissal of the action, and allowed Coman’s suit to proceed. In so doing, we explicitly recognized a public policy exception to the well-entrenched employment-at-will doctrine, quoting with approval the following language from the Court of Appeals’ opinion in Sides v. Duke Hospital, 74 N.C. App. 331, 328 S.E.2d 818, disc. rev. denied, 314 N.C. 331, 333 S.E.2d 490 (1985): “[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.” Coman, 325 N.C. at 175, 381 S.E.2d at 447 (quoting Sides, 74 N.C. App. at 342, 328 S.E.2d at 826). We then said that public policy “has been defined as the principle of law which holds that no citizen can lawfully do that which has a tendency to be injurious to the public or against the public good.” Id. at 175 n.2, 381 S.E.2d at 447 n.2 (citing Petermann v. International Brotherhood of Teamsters, 174 Cal. App. 2d 184, 344 P.2d 25 (1959)). The first issue in this case, then, is whether defendants’ alleged decision to fire plaintiffs for refusing to work for less than the statutory minimum wage is injurious to the public or against the public good. Stated differently, has defendants’ conduct as alleged by plaintiffs violated the public policy of North Carolina? We note at the outset that both courts below indicated that defendants had, indeed, violated this state’s stated public policy that employees such as plaintiffs be paid at least the statutory minimum wage. Judge Morgan, in his order granting defendants’ 12(b)(6) motion, said defendants’ conduct “offends this Court, and also appears to violate the public policy of this State as set out in N.C.G.S. 95-25.3.” Judge Morgan, however, felt constrained by the Court of Appeals' decision in Coman, which had yet to be reversed by this Court. See Coman v. Thomas Manufacturing Co., 91 N.C. App. 327, 371 S.E.2d 731 (1988), rev’d, 325 N.C. 172, 381 S.E.2d 445 (1989). Under Coman, as decided by the Court of Appeals and interpreted by Judge Morgan, the public policy exception was limited to instances in which an employer attempted to interfere with an employee’s testimony in a legal proceeding. The Court of Appeals in this case also expressed its strong disapproval of defendants’ alleged conduct: “By this opinion we do not in any way condone an employer’s violation of the minimum wage law with the resultant hardship and inconvenience to its employees, and we expressly denounce such unlawful coercive attempts to deprive employees of the wages to which they are lawfully entitled.” Amos, 102 N.C. App. at 786, 403 S.E.2d at 567. The Court of Appeals, however, affirmed the trial court’s dismissal of plaintiffs’ complaint, holding that in order to state a valid claim for wrongful discharge, there must be no other remedy available. Id. at 787, 403 S.E.2d at 568. We address this issue later in the opinion. Defendants argue in their brief that they did not violate public policy, as that term is defined in Coman, because the “alleged acts are peculiar to the plaintiff, are not injurious to the public, and do not in any way affect the public good.” Defendants then suggest that in order to state a valid claim for wrongful discharge in violation of public policy an employee must either be required to engage in unlawful conduct or the employer’s conduct must threaten public safety. Defendants read Coman too narrowly. Although the definition of “public policy” approved by this Court does not include a laundry list of what is or is not “injurious to the public or against the public good,” at the very least public policy is violated when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes. Article 2A of Chapter 95 of the North Carolina General Statutes, the Wage and Hour Act, provides: (b) The public policy of this State is declared as follows: The wage levels of employees, hours of labor, payment of earned wages, and the well-being of minors are subjects of concern requiring legislation to promote the general welfare of the people of the State without jeopardizing the competitive position of North Carolina business and industry. The General Assembly declares that the general welfare of the State requires the enactment of this law under the police power of the State. N.C.G.S. § 95-25.1(b) (1989). Accordingly, the legislature' set a minimum wage of $3.35 per hour effective 1 January 1983, with subsequent increases through 1 June 1989 to coincide with those of the federal Fair Labor Standards Act (FLSA) up to a maximum hourly wage of $4.00. N.C.G.S. § 95-25.3. Businesses covered by the FLSA are exempt from the state Wage and Hour Act. N.C.G.S. § 95-25.14(a)(l). Remedies under the FLSA are similar to those provided in the state statute. Thus, as recognized by the Court of Appeals, “[without question, payment of the minimum wage is the public policy of North Carolina.” Amos, 102 N.C. App. at 785, 403 S.E.2d at 567. We hold therefore that, taking plaintiffs’ allegations as true, defendants violated the public policy of North Carolina by firing plaintiffs for refusing to work for less than the statutory minimum wage. II. Defendants argue that, even if their conduct violates public policy, plaintiffs have alternative remedies available and therefore should not be permitted to proceed under the common law theory of wrongful discharge. Defendants ask this Court to uphold the decision of the Court of Appeals, which established a two-part test for employees wishing to proceed under a theory of wrongful discharge in violation of public policy. Quoting a federal district court from Pennsylvania, the Court of Appeals held that the “ ‘application of the public policy exception requires two factors: (1) that the discharge violate some well-established public policy; and (2) that there be no remedy to protect the interest of the aggrieved employee or society.’ ” Amos, 102 N.C. App. at 787, 403 S.E.2d at 568 (quoting Wehr v. Burroughs Corp., 438 F. Supp. 1052, 1055 (E.D. Pa. 1977), aff’d as modified, 619 F.2d 276 (3d Cir. 1980)). On the facts of this case, the Court of Appeals held that the state legislature had provided plaintiffs an adequate statutory remedy: Plaintiffs thus had two options: (i) to continue working and pursue their remedy [for backpay] under N.C.G.S. § 95-25.22, which would have made them whole, or (ii) to refuse to work and be fired. Plaintiffs chose the latter. They were not terminated in retaliation for filing a complaint. N.C.G.S. § 95-25.20(a), therefore, has no applicability. Amos, 102 N.C. App. at 786, 403 S.E.2d at 567. The Court of Appeals then held that because plaintiffs had an adequate remedy at their disposal, they could not proceed under a theory of wrongful discharge in violation of public policy. Id. at 787, 403 S.E.2d at 568. Although the Court of Appeals decided this case on the basis of a state statutory remedy, both parties now assert that the applicable statutory scheme may be the FLSA, 29 U.S.C. §§ 201-219 (1978), not the North Carolina Wage and Hour Act. If, as the parties now believe, defendant Oakdale Knitting is covered by the FLSA, it would be exempt from the state statute. N.C.G.S. § 95-25.14(a)(l). Because the record on appeal in this case does not contain sufficient information to determine whether Oakdale Knitting is covered by the FLSA or the state Wage and Hour Act, we will address both statutory schemes. In Coman, we held that an employee who has been fired in violation of public policy has a claim for wrongful discharge notwithstanding this state’s allegiance to the employment-at-will doctrine. The issue now before this Court is whether Coman is limited to situations in which the fired employee has no other available remedy. The Court of Appeals added this limitation. Amos, 102 N.C. App. at 786-87, 403 S.E.2d at 567-68. Several courts in other jurisdictions have also limited the public policy exception, arguing that the rationale behind the exception is to provide a remedy for discharges in violation of public policy “which otherwise would not be vindicated by a civil remedy.” Makovi v. Sherwin-Williams Co., 316 Md. 603, 605, 561 A.2d 179, 180 (1989) (and cases cited therein); see also Crews v. Memorex Corp., 588 F. Supp. 27, 29 (D. Mass. 1984) (wrongful discharge action recognized “in order to fill [a] legislative gap. When a statutory remedy is available, there is no gap, and the justification for judicial creativity is absent.”) (citation omitted). Other courts have chosen not to add this limitation. See Broomfield v. Lundell, 159 Ariz. App. 349, 767 P.2d 697 (1988); Holien v. Sears, Roebuck & Co., 298 Or. 76, 689 P.2d 1292 (1984); see also Harrison v. Edison Bros. Apparel Stores, Inc., 924 F.2d 530, 533 (4th Cir. 1991), rev’g 724 F. Supp. 1185 (M.D.N.C. 1989) (Fourth Circuit, interpreting post-Coman North Carolina law, reversed district court’s limitation of wrongful discharge claims to instances in which there was no alternative remedy, stating that it found “no North Carolina authority” for the addition of this limitation). If the sole rationale for the adoption of the public policy exception in Coman was to provide a remedy where no other remedy existed, then the reasoning of the Court of Appeals would be persuasive. Coman, however, was not predicated on the “no alternative remedy” theory. Indeed, we noted in Coman that the fired employee arguably had an “additional remedy in the federal courts.” Coman, 325 N.C. at 174, 381 S.E.2d at 446 (footnote omitted). Whether the plaintiff in Coman was without an additional state remedy was not the key factor behind this Court’s adoption of the public policy exception. The underlying rationale was the recognition that the judicially created employment-at-will doctrine had its limits and it was the role of this Court to define those limits. See id. at 177 n.3, 381 S.E.2d at 448 n.3 (“[t]his Court, not the legislature, adopted the employee-at-will doctrine in the first instance, [and thus] it is entirely appropriate for this Court to further interpret the rule.”). Accordingly, we held that although “ ‘there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy.’ ” Id. at 175, 381 S.E.2d at 447 (quoting Sides, 74 N.C. App. at 342, 328 S.E.2d at 826). The public policy exception adopted by this Court in Coman is not just a remedial gap-filler. It is a judicially recognized outer limit to a judicially created doctrine, designed to vindicate the rights of employees fired for reasons offensive to the public policy of this State. The existence of other remedies, therefore, does not render the public policy exception moot. Although we now hold that the existence of an alternative remedy does not automatically preclude a claim for wrongful discharge based on the public policy exception, we also hold that under certain circumstances a legislative remedy may be deemed exclusive. If federal legislation preempts state law under the Supremacy Clause, U.S. Const. art. VI, cl. 2, then state claims, such as one for wrongful discharge, will be precluded. See English v. General Electric Co., 496 U.S. 72, 110 L. Ed. 2d 65 (1990). Additionally, if our state legislature has expressed its intent to supplant the common law with exclusive statutory remedies, then common law actions, such as wrongful discharge, will be precluded. See Biddix v. Henredon Furniture Industries, 76 N.C. App. 30, 331 S.E.2d 717 (1985) (vitality of common law actions for nuisance and continuing trespass dependent upon federal preemption and whether state Clean Water Act precludes

SCHIPPERS v SPX CORPORATION (ON REMAND) Docket No. 147499. Submitted January 16, 1992, at Lansing. Decided May 4, 1992, at 9:00 a.m. Leave to appeal sought. Joseph Schippers brought an action in the Muskegon Circuit Court against SPX Corporation and Ryder Truck Rental, Inc., claiming wrongful discharge and negligent evaluation. The court, Michael E. Kobza, J., granted summary disposition in favor of SPX Corporation, ruling that there were no genuine issues of material fact and that spx was entitled to judgment as a matter of law. The plaintiif appealed. The Court of Appeals, Neff, P.J., and Mahek and Murphy, JJ., reversed and remanded, holding that the grant of summary disposition was improper because a material issue of fact existed regarding whether an employment contract providing for termination only for just cause existed between the plaintiff and spx. 186 Mich App 595 (1990). The Supreme Court, in lieu of granting leave to appeal, vacated the judgment of the Court of Appeals and remanded to the Court of Appeals for reconsideration in light of Rowe v Montgomery Ward & Co, Inc, 437 Mich 627 (1991). 439 Mich 891 (1991) On remand, the Court of Appeals held: The grant of summary disposition was improper. There are facts and circumstances that are contradicted and upon which reasonable minds can differ. There is a genuine issue of material fact regarding the existence of an employment contract providing for termination only for just cause. 1. The plaintiff’s concerns about job security were met with assurances from three spx employees that raise a question of fact concerning whether he reasonably believed he could be fired only for just cause. 2. The employee handbook issued by spx offers objective support for the oral representations allegedly made to the plaintiff with regard to his concerns about job security. 3. Other factors indicating that a question of material fact existed sufficient to send the case to a jury are that the plaintiffs position was unique and that there were alleged references to the duration of his employment in response to his concerns about job security. Reversed and remanded. McCroskey, Feldman, Cochrane & Brock, P.C. (by John P. Halloran), for the plaintiff. Culver, Lague & McNally (by William F. Mc-Nally and Kevin B. Even), for SPX Corporation. ON REMAND Before: Neff, P.J., and Michael J. Kelly and Reilly, JJ. Neff, P.J. This case is before us for a second time after our Supreme Court, in lieu of granting leave to appeal, vacated our prior judgment and remanded to us for reconsideration in light of the decision in Rowe v Montgomery Ward & Co, Inc, 437 Mich 627; 473 NW2d 268 (1991). 439 Mich 891 (1991). In our original opinion we reversed an order granting summary disposition in favor of defendant SPX Corporation (hereafter defendant) and remanded to the trial court for trial. Schippers v SPX Corp, 186 Mich App 595; 465 NW2d 34 (1990). We now reevaluate whether, under the standards expressed in Rowe, there is a genuine issue of material fact regarding the existence of an employment contract between plaintiff and defendant providing for termination only for just cause. i We start from the premise that there is a presumption of employment at will that plaintiff has the burden to overcome by convincing the court that it should supply an omitted term or that the circumstances are such that the jury is entitled to do so. Rowe, supra, pp 638-639._ In Rowe, the Supreme Court took pains to explain what it was not holding: We do not decide that the words and conduct of parties cannot, as a matter of law, create an issue submissible to a jury regarding the existence of a contract implied in fact. Moreover, we do not suggest that a contract of employment is too indefinite to be enforced where the employee’s consideration is the work performed in response to a unilateral offer. [Id., p 638.] As noted, this case was decided in the trial court on defendant’s motion for summary disposition. When ruling on a motion for summary disposition made pursuant to MCR 2.116(C)(10), courts are liberal in finding that a genuine issue exists, drawing all inferences in favor of the nonmovant and granting the motion only when the court is satisfied that it is impossible for the claim to be supported at trial because of some deficiency that cannot be overcome. Rizzo v Kretschmer, 389 Mich 363, 371; 207 NW2d 316 (1973); Langeland v Bronson Methodist Hosp, 178 Mich App 612, 615-616; 444 NW2d 146 (1989). When we examine this case within this framework, we are led to the same conclusion we reached initially, to wit, material issues of fact exist on the basis of defendant’s employee handbook and testimony concerning oral representations made by spx personnel to plaintiff. ii According to plaintiff’s deposition testimony, he was hired by the defendant’s Sealed Power Division in 1973 as an over-the-road truck driver. At the time he transferred to the Hy-Lift Division, there were six over-the-road truck drivers at Sealed Power and he was second in seniority. At Hy-Lift, there was only one truck and one driver, plaintiff. When plaintiff was approached by his superiors to transfer from Sealed Power to Hy-Lift, he was concerned about job security because Hy-Lift had only one truck and he would be the only driver in that division. Plaintiff was worried because if the one truck at Hy-Lift were to be eliminated for any reason, he would be out of work. He therefore sought assurances of continued availability of work and of his own job security. According to his testimony, plaintiff received assurances from three of defendant’s employees, including plaintiff’s immediate supervisor, that his job was secure, as long as they had a truck and until plaintiff was ready for retirement. m Careful review of the opinion in Rowe leads us to the conclusion that this case is more nearly consonant with Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), the seminal Michigan case in the law of employment contracts. As in Toussaint, plaintiff in this case expressed concerns about job security and engaged in discussions about his concerns before accepting the transfer to Hy-Lift. His concerns were met with assurances that raise a question of fact concerning whether he had a reasonable belief that he could be fired only for cause. This conclusion is further bolstered by the existence of the employee handbook that, as we noted in our original opinion, at the very least, raised the possibility of an illusory promise of an employment contract providing for termination only for just cause meant to benefit the employer by inferring job security while retaining the benefit of denying such security at the whim of the employer. Rowe, supra, p 655; Schippers, supra, pp 598-599; Diggs v Pepsi-Cola Metropolitan Bottling Co, Inc, 861 F2d 914 (CA 6, 1988). While the handbook issued by defendant in this case does not contain the same type of language specifically providing for termination only for just cause as the one at issue in Toussaint, it does offer objective support for the oral representations allegedly made to plaintiff with regard to his concerns involving job security. Like in Toussaint, plaintiff engaged in preemployment discussions concerning job security and he specifically inquired about that issue. On the other hand, the handbook in this case did not, as did the handbook in Rowe, clearly and unambiguously notify plaintiff of any policy of termination at will. Another way in which this case more closely resembles Toussaint than Rowe is that the position into which plaintiff transferred was unique. He was the only driver of the only truck in the division. These factors, according to the opinion in Rowe, are important considerations in determining whether a question of material fact exists sufficient to send the case to a jury. Rowe, supra, p 643. The concurring opinion of Justice Boyle, which agrees with the bulk of the reasoning in the plurality opinion of Justice Riley, also contains some language that we believe supports the conclusions we reach here. There was reference to a "durational term” to plaintiff’s employment with the mention that plaintiff would be employed until retirement. Rowe, supra, p 664. This further bolsters the argument that a fact question exists concerning whether there was a commitment that could reasonably be understood to be a promise of employment in which termination would be only for just cause, because plaintiff testified that defendant’s employees told him his job was safe until he was ready to retire. As Justice Boyle noted in footnote 5 to the concurring opinion on p 664: Where the parties’ intention is not apparent and the facts and circumstances advanced by the plaintiff are sufficient to show it is more likely than not that a reasonable promisee would believe that the employer was making a commitment that amounted to a promise of job security, the court will conclude, as a threshold matter, that the presumption has been overcome. Where facts and circumstances are contradicted and reasonable minds can differ, the jury will determine the facts and circumstances that actually obtained, whether there was a commitment amounting to a promise, and whether the promise was breached. Where the facts and circumstances produced would not warrant a reasonable juror in finding a promise of job security, the question cannot be put to the jury, Leslie v Mendelson, 302 Mich 95, 104; 4 NW2d 481 (1942). IV We specifically find that there are facts and circumstances that are contradicted and upon which reasonable minds can differ. As a result, it is for the jury to determine the facts and circumstances that actually occurred, whether there was a commitment amounting to a promise, and whether the promise was breached. Accordingly, we reverse and remand for further proceedings consistent with this opinion. We do not retain jurisdiction. Reversed and remanded. This presumption is "a rule of construction rather than a substantive limitation.” Rowe, supra, p 638.

WOLFF v AUTOMOBILE CLUB OF MICHIGAN Docket No. 120283. Submitted December 5, 1991, at Detroit. Decided April 21, 1992, at 9:25 a.m. Leave to appeal sought. Robert F. Wolff brought an action in the Wayne Circuit Court against the Automobile Club of Michigan and the Auto Club Insurance Association, claiming wrongful discharge from employment. The jury returned a verdict for the plaintiff, finding breach of contract and age discrimination, and the court, Lucile A. Watts,. J., granted the defendants’ motion for remittitur, finding that the jury’s verdict did not reflect the plaintiff’s failure to mitigate damages. The defendants appealed, and the plaintiff cross appealed. The Court of Appeals held: 1. Viewed in a light most favorable to the plaintiff, the evidence was sufficient to support the jury’s verdict. The trial court properly denied the defendants’ motion for a judgment notwithstanding the verdict. 2. The trial court did not abuse its discretion in admitting the testimony of four former' employees of the defendants concerning the circumstances under which each was hired. Any prejudicial effect was outweighed substantially by its probative value. 3. Whether the plaintiff was constructively discharged from the member advisor position he took after he had been terminated from his position as a commissioned sales representative was a question for the jury. Accordingly, the trial court properly denied the defendants’ motion for a judgment notwithstanding the verdict with respect to this issue. 4. Whether the defendants proved that the plaintiff was unreasonable in not seeking other employment was a question the jury; accordingly, it was an abuse of discretion for the trial court to enter remittitur, because the jury properly could have found that the plaintiff did not act unreasonably. References Am Jur 2d, Civil Rights §§ 226 et seq.; Constitutional Law § 770; Job Discrimination §§ 98 et seq., §§ 1337 et seq., §§ 2076 et seq., § 2112, §§ 2171 et seq. See the Index to Annotations under Age Discrimination; Equal Employment Opportunity. Affirmed in part and reversed in part. Civil Rights — Employment Discrimination — Age Discrimination — Disparate Treatment — Evidence. The finder of fact in an action for wrongful discharge in which age discrimination based on disparate treatment is alleged may consider whether the transfer of the plaintiff’s work to another job classification evidences age discrimination where the members of the two job classifications perform similar duties but the average age of persons with the job classification to which the plaintiff’s work was transferred is significantly less than the average age of persons with the job classification from which the work was transferred. Law Offices of John W. Mason, P.C. (by John W. Mason), for the plaintiff. Fox & Grove, Chartered (by Kalvin M. Grove and Steven L. Gillman), and Finkel, Whiteñeld & Selik (by Robert J. Finkel), for the defendants. Before: Holbrook, Jr., P.J., and Brennan and Cavanagh, JJ. Per Curiam. Plaintiff brought this wrongful discharge suit against his former employers, Automobile Club of Michigan and the Auto Club Insurance Association (which hereinafter will be treated as a single defendant). Following trial, the jury returned a verdict in favor of plaintiff on claims of breach of contract, age discrimination, and mental distress, for a total award of $300,500. The trial court granted defendant’s motion for remittitur and reduced the award by $80,000. Defendant appeals as of right from the jury verdict. Plaintiff cross appeals as of right from the order of remittitur. Plaintiff worked for defendant for thirty-one years, from 1952 until 1983, as a commissioned sales representative (csr) before he was terminated for failing to meet defendant’s sales quota. He then worked for defendant for approximately IV2 months as a member advisor before taking an early retirement. Plaintiff was fifty-seven years old when he retired. In 1951, Park Zickel, the general manager of defendant at that time, approached plaintiff and offered him a job as a csr. Zickel told plaintiff that in the thirty-six years that Zickel had worked for defendant, he had been paid a seven-percent commission on all new sales of auto insurance and a seven-percent commission on all renewals. Zickel never said anything about reserving the right to change the method of compensation, and plaintiff never expected the method to be changed. Zickel also said that the only people that were ever fired were those who withheld company funds. When plaintiff was hired by defendant, the sales manual characterized the csr position as a "well-paid career position.” It also stated that "though the major portion of [a csr’s] income comes from the creditable handling of existing accounts, he is expected to prospect and solicit new business and establish and maintain an acceptable ratio of new business to the existing business he is assigned.” There was no express statement that a csr was terminable at will. Plaintiff started working for defendant in 1952. He immediately began to sell automobile insurance and memberships to the Auto Club, and his "book of business” began to grow. A book of business is the list of customers to whom a csr sold an insurance policy. Plaintiff received a seven-percent commission on the original sale of an automobile insurance policy and seven percent each time it was renewed. As plaintiff’s book of business grew, so did his income. In 1978, defendant instituted a new system of pay for the csrs. Instead of paying on a commission basis, defendant paid csrs a fixed sum of money for each sale, or "unit compensation.” Plaintiffs income began to decline. In 1980, defendant established a new category of workers, called member advisors, who performed many of the same functions as the csrs. Like csrs, member advisors sold automobile insurance, other insurance, and memberships. Member advisors serviced their customers in the same manner as did csrs. Member advisors were different from csrs in that they worked regular hours, were paid a salary, were not required to recruit new customers, and were not subject to a production quota. In September 1981, defendant implemented a new minimum production system that required selling specified numbers of new memberships and life insurance policies each month. Failure to meet the new quota resulted in an oral warning, a written warning, probation, and then termination. Plaintiff did not meet the quota in the final months of 1981. Plaintiff then expressed his interest in the new position of general agent developed by defendant. The general agent position would have permitted plaintiff to establish his own office and to service his own book of business without being subject to the quota system. However, plaintiff eventually turned down the general agent position because of start-up costs, defendant’s requirement that he waive any legal action against defendant, his uncertainty of what the job responsibilities were, and his lack of trust of defendant. After plaintiff turned down the general agent position, he received a letter terminating his employment as a csr, effective January 15, 1983. The letter also offered him a job as a member advisor n at a salary of $26,000, which was approximately $6,000 less than his 1982 salary as a csr. Despite his reservations about the job, plaintiff accepted the member advisor position, pending notice of the details of defendant’s early retirement program. Plaintiff received information of the retirement plan in January 1983, and he chose to retire. In his complaint, plaintiff alleged breach of contract, age discrimination, unjust enrichment, promissory estoppel, and conversion. The jury awarded plaintiff $300,000 damages for loss of income due to age discrimination and breach of contract, and $500 for mental distress. i The dispositive issue on appeal is whether the trial court erred in denying defendant’s motion for judgment notwithstanding the verdict with respect to plaintiff’s claim of age discrimination. Defendant argues that plaintiff failed to establish as a matter of law the disparate treatment theory of age discrimination. Defendant maintains that the production standards were applied equally to all csrs. Defendant claims that it is inappropriate to prove disparate treatment by comparing the csrs to the member advisors, because of the differences in the responsibilities of the positions. Plaintiff, on the other hand, states that a reasonable jury could conclude that he was discharged because of his age. We agree with plaintiff. We examine the testimony and all legitimate inferences that may be drawn in a light most favorable to the plaintiff when reviewing a trial court’s failure to grant a defendant’s motion for judgment notwithstanding the verdict. Matras v Amoco Oil Co, 424 Mich 675, 681; 385 NW2d 586 (1986); Michigan Microtech, Inc v Federated Publications, Inc, 187 Mich App 178, 186; 466 NW2d 717 (1991). If reasonable minds could differ concerning whether the plaintiff has met his burden of proof, a judgment notwithstanding the verdict is inappropriate. Byrne v Schneider’s Iron & Metal, Inc, 190 Mich App 176, 179; 475 NW2d 854 (1991). We will not disturb a trial court’s decision on a motion for judgment notwithstanding the verdict absent a clear abuse of discretion. Michigan Microtech, supra, pp 186-187. A prima facie case of age discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., can be made by showing either intentional discrimination or disparate treatment. Schipani v Ford Motor Co, 102 Mich App 606, 617; 302 NW2d 307 (1981). Because plaintiff attempted at trial to prove disparate treatment, he was required to 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. Reisman v Wayne State University Regents, 188 Mich App 526, 538; 470 NW2d 678 (1991). A prima facie case of age discrimination can also be made by showing that plaintiff (1) was a member of the protected class, (2) was discharged, (3) was qualified for the position, and (4) was replaced by a younger person. Ewers v Stroh Brewery Co, 178 Mich App 371, 380; 443 NW2d 504 (1989). Because defendant failed to claim that it was making cutbacks because of economic necessity, plaintiff did not have a greater burden of proof. Compare Matras, supra, p 684. Viewing the evidence in a light most favorable to plaintiff, we find that he established a prima facie case of age discrimination under the Reisman standard. Plaintiff was a member of a protected class, because he was fifty-seven years old when he was discharged. The parties differ regarding whether there was sufficient evidence that plaintiff was treated differently than persons of a different class who were engaged in the same or similar conduct. Defendant argues that plaintiff was treated no differently than other csrs. Although this might be true, we believe that the member advisors were the comparable group of employees for age discrimination purposes. First, the average age of the member advisors was more than twelve years less than the average age of the csrs. Second, the csrs were treated differently than the member advisors for the same or similar conduct. Although both groups sold insurance and memberships and serviced customers, and the member advisors typically performed the duties of the csrs when the csrs left the company, including handling the books of business of the former csrs, the member advisors, unlike the csrs, worked regular hours, were paid a salary, and were not required to recruit new customers. Nevertheless, from the similarity of job responsibilities, it may be legitimately inferred that the member advisors and the csrs were comparable groups for determining whether the csrs were treated differently for the same or similar conduct. Evidence was presented at trial that showed that the csrs were treated differently than the member advisors. Even though the member advisors and the csrs both sold insurance, the csrs were subject to a quota and were demoted to member advisor n positions if they failed to meet it. We believe that reasonable minds could differ concerning whether the plaintiff met his burden of proof. Alternatively, plaintiff met his burden of proof under the Ewers standard of a prima facie case of age discrimination. Plaintiff was a member of a protected class. Plaintiff was discharged (see Issue iv). A reasonable juror could conclude that plaintiff was qualified for the position, having built a considerable book of business. Plaintiff was then replaced by a younger person working as a member advisor. Age might not have been the main reason for plaintiff’s discharge, but a reasonable jury could find that age was one of the reasons that made a difference in defendant’s determining whether to discharge plaintiff. Accordingly, the trial court did not abuse its discretion in denying defendant’s motion for judgment notwithstanding the verdict. ii Because we find that sufficient evidence was presented at trial to justify sending the age discrimination claim to the jury, we need not address the contract issues raised by defendant. The jury awarded plaintiff damages for loss of income on the basis of age discrimination and breach of contract. Even if we were to find merit in defendant’s arguments concerning the breach of contract claim, the age discrimination claim would still support the jury’s award of damages for loss of income. iii We next consider whether the trial court improperly admitted the testimony of four former employees concerning the circumstances of how each individual was hired by defendant. Defendant moved to exclude the testimony of these four individuals, contending that any testimony about oral statements made to them at their own times of hire was irrelevant because it did not shed light on plaintiffs hiring experience. The trial court summarily denied defendant’s motion. Defendant argues on appeal that this testimony was prejudicial, confusing, and misleading regarding the issue whether a contract existed between plaintiff and defendant. We disagree. The decision whether to admit evidence is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Reisman, supra, p 543; Brunson v E & L Transport Co, 177 Mich App 95, 104; 441 NW2d 48 (1989). Generally, all relevant evidence is admissible, and irrelevant evidence is inadmissible. MRE 402. Even if relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. MRE 403; Dunn v Nundkumar, 186 Mich App 51, 55; 463 NW2d 435 (1990). In this case, the testimony of the other employees concerning the promises made to them when they were hired, if substantially similar to what plaintiff testified he was promised, would have the tendency to corroborate plaintiffs testimony. See Schippers v SPX Corp, 186 Mich App 595, 597; 465 NW2d 34 (1990). Any danger of prejudice in admitting this evidence, because what was promised to these witnesses was not necessarily promised to plaintiff, did not substantially outweigh its probative value. Defense counsel had the opportunity to highlight the differences between plaintiffs hiring experience and those of the other employees by pointing out that they were hired at different times by different people. Thus, the trial court did not abuse its discretion in admitting the testimony of the four former employees. IV Defendant further contends that the trial court erred in denying its motion for judgment notwithstanding the verdict with respect to plaintiffs claim of constructive discharge. Defendant argues that plaintiff submitted insufficient evidence to establish that defendant made plaintiffs working conditions so intolerable that he was forced to leave the job. Plaintiff responds that the issue was a proper question for the jury. Plaintiff states that the fact that defendant offered and he accepted a lesser job does not preclude the jury from finding constructive discharge. We utilize the standard of review set forth in Issue i. In Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785, 796; 369 NW2d 223 (1985), this Court ruled that constructive discharge may be found where working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign. A finding of constructive discharge depends on the facts of each case. Id. In Jenkins, the plaintiff was told to either accept a new position or resign. The new position not only paid the same salary as plaintiffs former job, but also included a car and an expense account. Nevertheless, this Court held that a reasonable factfinder in that case could find constructive discharge because the new job was not the substantial equivalent of the position from which the plaintiff was discharged. The new position was a demotion and the job responsibilities were severely reduced. In the present case, plaintiff was terminated from his position as a csr and then offered a job as a member advisor. Viewing the evidence again most favorably toward plaintiff, we note that accepting the member advisor position required plaintiff to relinquish his book of business and receive $6,000 less than what he earned the previous year. The member advisor position carried less status than the csr position. Under these circumstances, a reasonable jury could find that plaintiff was constructively discharged. Moreover, the fact that plaintiff initially accepted the member advisor position for IV2 months does not preclude him from claiming constructive discharge, especially because he accepted the position on a temporary basis so as to take advantage of the early retirement program. After receiving details of the program, he decided to retire. Consequently, the trial court did not abuse its discretion in denying defendant’s motion for judgment notwithstanding the verdict against plaintiff’s claim of constructive discharge. v Turning to the issue before us on cross appeal, we next consider whether the trial court abused its discretion in granting defendant’s motion for remittitur. The trial court reduced the jury verdict by $80,000 and ruled that the jury’s verdict did not reflect plaintiff’s failure to mitigate his damages. The trial court determined that plaintiff could have earned wages over the eight-year period before he turned sixty-five years old, and thereby reduced the jury verdict $10,000 for each year. MCR 2.611(E)(1) authorizes a trial court to reduce a jury verdict when the amount awarded is greater than the highest amount of damages that the evidence at trial would support. A trial court’s decision on a motion for remittitur is reviewed for an abuse of discretion. Palenkas v Beaumont Hosp, 432 Mich 527, 531; 443 NW2d 354 (1989); Byrne, supra, p 183. The jury awarded plaintiff $300,000 in lost wages. Unlike the trial court, we find that this amount is not greater than the highest amount of damages that the evidence at trial supported. Plaintiff’s expert testified that plaintiff suffered damages in the amount of $696,056. Defendant’s expert calculated that plaintiff could have earned $353,188 if he had worked until he reached sixty-five years of age. Although it is undisputed that plaintiff did not seek employment after leaving defendant’s employ, the question whether defendant carried its burden of proving plaintiff was unreasonable in not seeking other employment was within the province of the jury. Hughes v Park Place Motor Inn, Inc, 180 Mich App 213, 220; 446 NW2d 885 (1989). Defendant argues that plaintiff should have accepted either the member advisor ii position or the general agent position to mitigate his damages. However, the member advisor position could reasonably be considered a demotion (see Issue iv). Mo

HOLDEN v FORD MOTOR COMPANY WEISS v JEWISH HOME FOR THE AGED Docket Nos. 90345, 90144. Argued November 6, 1991 (Calendar Nos. 8-9). Decided April 21, 1992. Rehearing denied in Weiss, post, 1241. Emaline F. Holden sought workers’ compensation death benefits after her husband, Carl Holden, a Ford employee, died at work. Following a hearing, at which the plaintiff’s experts testified that Carl Holden died of a job-related myocardial infarction and the defendant testified that his death resulted from an arrhythmia unrelated to the job, the magistrate denied benefits on the ground that the plaintiff failed to establish the requisite nexus between the claimed injury to the heart and work. The Workers’ Compensation Appellate Commission, acknowledging the limited scope of administrative appellate review, concluded that because the magistrate had failed to find whether the deceased sustained cardiac damage it was incumbent on the wcac to do so, found the requisite relationship between the cardiac damage and the deceased’s work, and ruled the death compensable. The Court of Appeals, Reilly, P.J., and Gillis and Cynar, JJ., reversed in an opinion per curiam (Docket No. 118813). The claimant appeals. Vera Weiss sought workers’ disability compensation benefits for a work-related injury to her back arising out of her employment as a registered nurse for the Jewish Home for the Aged. Following a hearing, at which conflicting evidence was presented regarding her ability to return to work, the magistrate found that she had been temporarily disabled and entered a closed award of benefits. The Workers’ Compensation Appellate Commission, acknowledging the limited scope of administrative appellate review, concluded that the magistrate’s finding was unsupported by substantial evidence and modified the decision to provide an open award of benefits. The Court of Appeals, Danhof, C.J., and Murphy and T. M. Burns, JJ., affirmed (Docket No. 115339). The defendant appeals. In a unanimous opinion by Justice Levin, the Supreme Court held: The Workers’ Compensation Appellate Commission, on appellate review, did not exceed its authority in reversing the decisions of the magistrates and in awarding benefits. 1. 1985 PA 103 eliminated review de novo by the Workers’ Compensation Appeal Board in workers’ compensation cases, beginning October 1, 1986. Findings of fact by a workers’ compensation magistrate are now considered conclusive, on administrative appellate review by the Workers’ Compensation Appellate Commission, if supported by competent, material, and substantial evidence on the whole record. The findings of fact made by the wcac, not the findings of the magistrate, are to be conclusive on judicial appellate review, in the absence of fraud, if there is any evidence to support them. The standard for judicial review was not changed by 1985 PA 103. 2. The substantial evidence standard, like the standard for judicial appellate review, is rooted in Const 1963, art 6, § 28, which provides that administrative agency decisions subject to judicial review following a hearing are to be minimally reviewed to determine whether they are supported by competent, material, and substantial evidence on the whole record. Review of the evidence by the wcac must include both a qualitative and quantitative analysis to ensure a full, thorough, and fair review. The wcac may adopt, in whole or in part, the order and opinion of the magistrate as its order and opinion. 3. The question on judicial appellate review is whether the wcac acted in a manner consistent with the concept of administrative appellate review that is less than review de novo in finding that magistrate’s decision was supported by competent, material, and substantial evidence on the whole record. To judge whether it acted properly, consideration is given to the issues of credibility regarding live witnesses determined by the magistrate, the evidence considered and ignored, the care taken, and the reasoning and analysis of the magistrate and the wcac, with due deference given to the administrative expertise of both the wcac and the magistrate. Recognition that the wcac brings the administrative expertise of more than one person, may be appropriate depending on the factual or legal issue. A carefully constructed opinion by the wcac enables appellate courts to determine whether it duly recognized and observed the limitations on its reviewing function contemplated by the substantial evidence standard. A reviewing court should ordinarily defer to the collective judgment of the wcac unless it is manifest that it exceeded its reviewing power. 4. In these cases, the wcac panels did not exceed the legislatively prescribed reviewing function. Both panels, after acknowledging that their review of the magistrates’ decisions were limited by the "substantial evidence on the whole record” standard, gave adequate reasons, grounded in the records, for reversing the fact finding of the magistrates. Holden, reversed. Weiss, affirmed. 185 Mich App 305; 460 NW2d 316 (1990) reversed. 185 Mich App 687; 462 NW2d 821 (1990) affirmed. Thomas J. Bertino (.Daryl Royal, of counsel) for the plaintiff in Holden. Sachs, Nunn, Kates, Kadushin, O’Hare, Helveston & Waldman, P.C. (by A. Donald Kadushin and Granner S. Ries), for the plaintiff in Weiss. John M. Thomas for the defendant in Holden. Murray R. Feldman (Conklin, Benham, Ducey, Listman & Chuhran, P.C., by Martin L. Critchell, of counsel) for the defendant in Weiss. Amici Curiae: Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, and Caleb B. Martin, Jr., and Ray W. Cardew, Jr., Assistant Attorneys General, for the Attorney General. Mark Granzotto, Monica Farris Linkner, and Charles P. Burbach for the Michigan Trial Lawyers Association. Levin, J. The question presented concerns the scope of administrative appellate review by the Workers’ Compensation Appellate Commission of a decision of a magistrate, and the scope of judicial appellate review on leave granted by the Court of Appeals or this Court. We conclude that the wcac did not, on administrative appellate review, exceed its authority in reversing the decisions of the magistrates and in awarding benefits, and that the Court of Appeals panel in Holden erred in reversing, and the panel in Weiss did not err in affirming, the wcac. I Before the reforms enacted in 1985, hearings in workers’ compensation cases were conducted by a referee, also referred to as an administrative law judge, with de novo review by the Workers’ Compensation Appeal Board. Judicial review was obtainable on application, not as of right, in the Court of Appeals and this Court. In an effort to address the large number of backlogged appeals, the Department of Labor considered proposals for changes in the administrative appellate review process. In 1980, the Lesinski Report, summarizing the results of the department’s Workers’ Compensation Adjudication Project, proposed that decisions of a magistrate be made conclusive "unless fraudulently obtain[ed] or contrary to the great weight of the evidence.” No procedural reform legislation was, however, enacted. In 1984, Theodore J. St. Antoine, the Governor’s Special Counsel on Workers’ Compensation, recommended significant changes in the decision-making process. Like the Lesinski Report, St. Antoine recommended that de novo review of the hearing officer’s decision be eliminated. He proposed that the question, on administrative appellate review, should be whether the decision of the hearing officer is supported by "substantial . . . evidence on the whole record.” He said that this standard was "deliberately designed to allow the Appeal Board a bit more latitude” than it would have had under the "great weight of the evidence” standard proposed in the Lesinski Report. St. Antoine said this would enable the reviewing panel to "remedy any serious misstep by [a hearing officer] in assessing the evidence and making factual findings.” St. Antoine’s proposals were in general adopted by the Legislature when it enacted 1985 PA 103. Magistrates replaced referees, and the wcac replaced the wcab. A Under Act 103, beginning October 1, 1986, de novo review was eliminated. Henceforth, findings of fact by a workers’ compensation magistrate were to be considered conclusive, on administrative appellate review by the wcac, if supported by "competent, material, and substantial evidence on the whole record.” MCL 418.861a(3); MSA 17.237(861a)(3). This substantial evidence standard provides for administrative appellate review more deferential to the hearing officer’s decision than de novo review, but for more searching review by the wcac than judicial review under the "any evidence standard.” The constitution provides for such limited judicial review: Findings of fact in workmen’s compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law. [Const 1963, art 6, § 28.] Act 103 did not change the standard for judicial review of final decisions in workers’ compensation proceedings. The Legislature had provided, under former law, that it was the findings of fact made by the wcab that were to be conclusive on judicial appellate review, in the absence of fraud. Act 103 provides that the findings of fact made by the wcac, not the findings of the magistrate, are to be conclusive, on judicial appellate review, in the absence of fraud. The Legislature, by employing the language of the constitution in stating that the fact finding of the wcac is final subject to limited judicial review, made clear that judicial review by the Court of Appeals or this Court of a wcac decision is to be of the findings of fact made by the wcac and not the findings of fact made by the magistrate. And the findings of fact made by the wcac are conclusive if there is any competent evidence to support them. As under prior law, judicial review is obtainable on application, not as of right, to the Court of Appeals and this Court. B The substantial evidence standard, like the standard for judicial appellate review, is rooted in Const 1963, art 6, § 28, which provides that administrative agency decisions subject to judicial review following a hearing shall be minimally reviewed to determine whether the decision is "supported by competent, material and substantial evidence on the whole record.” (Emphasis added.) As originally introduced in the Senate, the 1985 legislation would not have defined what constitutes "substantial evidence on the whole record.” The House Substitute, which became Act 103, retained the "substantial evidence on the whole record” standard, but added definitions of "substantial evidence” and "whole record” taken from MERC v Detroit Symphony Orchestra, Inc, 393 Mich 116; 223 NW2d 283 (1974), where this Court considered the meaning of "substantial evidence” in the context of judicial review of findings of fact by the Michigan Employment Relations Commission pursuant to the labor mediation act. The House Substitute also added language, again taken from Detroit Symphony, providing that the wcac’s review of a magistrate’s decision should include both a "qualitative and a quantitative” analysis of the evidence to ensure a full, thorough, and fair review. As enacted, the "substantial evidence on the whole record” standard largely parallels the description of substantial evidence in MERC v Detroit Symphony Orchestra. The statute provides that findings of fact made by a magistrate shall be considered "conclusive by the commission if supported by competent, material, and substantive evidence on the whole record”: —" '[Substantial evidence’ means such evidence, considering the whole record, as a reasonable mind will accept as adequate to justify the conclusion.” (Emphasis added.) —" '[W]hole record’ means the entire record of the hearing including all of the evidence in favor and all the evidence against a certain determination.” (Emphasis added.) —Wcac review of the evidence "shall include both a qualitative and quantitative analysis of that evidence and ensure a full, thorough, and fair review thereof.” (Emphasis added.) —The wcac "may adopt, in whole or in part, the order and opinion of the worker’s compensation magistrate as the order and opinion of the commission.” (Emphasis added.) In apparent recognition of the difference between judicial appellate review of an administrative agency’s decision, and administrative appellate review by the wcac of a magistrate’s decision, the Legislature did not enact, as part of the substantial evidence standard for workers’ compensation administrative appellate review purposes, the merc language that review by the wcac is to be "undertaken with considerable sensitivity” to provide "due deference to administrative expertise” and to avoid displacing a "choice between two reasonably differing views.” MERC v Detroit Symphony Orchestra, supra, p 124. C The question on judicial appellate review is, in each case, whether the wcac acted in a manner consistent with the concept of administrative appellate review that is less than de novo review in finding that the magistrate’s decision was or was not supported by competent, material, and substantial evidence on the whole record. In judging, on judicial appellate review, whether the wcac acted .properly, this Court and the Court of Appeals begin with the words of the Legislature. This Court and the Court of Appeals consider whether there are issues of credibility of live witnesses to be determined by the magistrate, the evidence considered and ignored by the magistrate and the wcac, the care taken by the magistrate and the wcac, and the reasoning and analysis of the magistrate and the wcac. We agree with the Court of Appeals in Weiss that the stringent constitutional and statutory limitations on judicial appellate review suggest that some latitude must be given the wcac, should it find that the magistrate’s findings of fact are not supported by "competent, material, and substantial evidence on the whole record,” if there is to be any effective appellate review, administrative or judicial, at all. And that if the appellate courts were not to allow such latitude to the wcac, they would find that they were increasingly called upon to perform the appellate reviewing function so that there would be effective appellate review at some level. Due deference should be given to the administrative expertise of the wcac, as well as to the administrative expertise of the magistrate. Recognition that a wcac panel brings to the table the administrative expertise of more than one person may, depending on the factual or legal issue, be appropriate. A carefully constructed opinion by the wcac enables the Court of Appeals and this Court to determine whether the wcac duly recognized and observed the limitations on its reviewing function contemplated by the substantial evidence standard. If the opinion is carefully constructed, a reviewing court should ordinarily defer to the collective judgment of the wcac unless it is manifest that it exceeded its reviewing power. We do not now offer a judicial standard in exegesis of the legislatively stated standard. If it appears on judicial appellate review that the wcac carefully examined the record, was duly cognizant of the deference to be given to the decision of the magistrate, did not "misapprehend or grossly misapply” the substantial evidence standard, and gave an adequate reason grounded in the record for reversing the magistrate, the judicial tendency should be to deny leave to appeal or, if it is granted, to affirm, in recognition that the Legislature provided for administrative appellate review by the seven-member wcac of decisions of thirty magistrates, and bestowed on the wcac final fact-finding responsibility subject to constitutionally limited judicial review. II In Holden, the magistrate denied death benefits to the widow of a Ford employee who suffered a cardiac episode at work, and died shortly thereafter. The wcac reversed the magistrate, and was in turn reversed by the Court of Appeals which reinstated the magistrate’s decision. A Carl Holden managed food service operations in three dining rooms and four cafeterias for Ford Motor Company. He oversaw the cafeteria and dining rooms in Ford’s Renaissance Center facility and managed dining facilities in four other metropolitan Detroit locations. In addition to overseeing daily lunch preparation and service for over 1,000 Ford executives and employees, Holden was responsible for executive dinners and company-sponsored parties. Holden’s supervisor testified that Holden was very conscientious. On July 11, 1986, Holden arrived around 8:30 a.m. at his office in the Renaissance Center. First cook Daniel Micallef testified that he was in Holden’s office when he arrived. Holden took off his coat and "made like a sigh.” Holden did not look well and "[h]is color was like a gray, grayish color.” Holden said that "he had just took [sic] the stairs and he wasn’t feeling well. His hands were clammy and his chest hurt.” Micallef left Holden sitting in his chair. He returned shortly thereafter to speak to Holden. Holden was lying on his desk, gasping for air. Emergency medical personnel were called; Holden was taken to the hospital, where he died within an hour. Holden was assigned a parking space in Renaissance Center "m” lot. To reach the elevators, Holden had to climb three flights of approximately ten stairs each. While Holden could have parked in another lot, this too would have required him to climb three flights of stairs to reach an elevator. Dr. Werner Spitz, then the Wayne County Medical Examiner, board certified in pathology and forensic pathology, and plaintiff’s expert witness, testified that Holden suffered a myocardial infarction caused by job-related stress and precipitated by stair climbing. Dr. Donald L. Newman, board certified in family practice and Holden’s personal physician, testified on the basis of his review of records, including Spitz’ autopsy report, the death certificate, a job description and witness statements. Newman opined that Holden suffered a myocardial infarction precipitated by stair climbing. Dr. Robert A. Gerisch, board certified in internal medicine and specializing in cardiology, testified for Ford. He said that he had examined the tissue slides from the autopsy, hospital records, Spitz’ deposition testimony and Holden’s job description. He opined, on the basis of his examination of the tissue slides and the record of an ekg taken at the hospital shortly before Holden died, that Holden did not suffer a myocardial infarction. Gerisch said that the tissue slides did not evidence scarring that would indicate either a recent or an old myocardial infarction. He also testified, however, that the characteristic scarring that occurs after a myocardial infarction is not reflected in the heart muscle tissue for six to eight hours after the infarction occurs. He added that the ekg indicated "an acute infarction type of pattern or ischemia which, if it persists, could develop into an infarction.” Gerisch opined that, given the condition of Holden’s heart, there was a one hundred percent probability that he would eventually suffer a myocardial infarction, but that he actually died of ischemia that brought on arrhythmia. He said that the heart was depleted of all oxygen by the ischemia, caused by narrowed arteries, which brought about the arrhythmia which, corrected only temporarily at the hospital, resulted in Holden’s death. B The magistrate found that the claimant failed to establish the requisite nexus between the claimed injury to the heart and work. The magistrate found that there was almost no testimony concerning specific episodes of job stress that might be related to Holden’s death. He rejected testimony that Holden was a worrier as "grossly speculative and without foundation.” He reviewed Micallef’s testimony and concluded th

William S. Reilly vs. Massachusetts Bay Transportation Authority & another. No. 90-P-1098. Suffolk. December 9, 1991. April 16, 1992. Present: Dreben, Fine, & Ireland, JJ. Labor, Fair representation by union, Action against labor union, Judicial relief, Arbitration, Collective bargaining. Practice, Civil, Motion in limine. Administrative Law, Primary jurisdiction. Jurisdiction, Labor case, Primary jurisdiction. Arbitration, Scope of arbitration, Authority of arbitrator, Parties. Damages, Fair representation by union. At the jury-waived trial of an employee’s claims against his employer and a labor union, arising from his discharge pursuant to a requirement in the applicable collective bargaining agreement that employees “become and remain members of the Union,” the judge appropriately admitted evidence of the union’s prior unfair actions toward the plaintiff. [414-415] An employee seeking judicial relief from an arbitrator’s order that he be discharged pursuant to a requirement in the applicable collective bargaining agreement that employees “become and remain members of the Union” was not precluded either by his failure to participate in the arbitration between the union and his employer, where the agreement gave him no such right, or, in the circumstances, by his not having pursued administrative or internal union remedies. [415-417] A judge was not clearly in error in finding that a labor union’s treatment of a certain employee, who was seeking reinstatement to union membership as a condition of employment under the applicable collective bargaining agreement, was unfair and constituted wrongful exclusion from membership. [417] Where a labor union’s bad faith actions in excluding from full membership an employee within its collective bargaining unit led to arbitration between the union and his employer, culminating in the employee’s discharge pursuant to a requirement in the collective bargaining agreement requiring employees to “become and remain members of the Union,” the employee had standing to challenge the arbitrator’s award in an action against the union and the employer. [417-418] Where a labor union’s wrongful exclusion of an employee from full membership had resulted in the employee’s discharge pursuant to a requirement in the applicable collective bargaining agreement that employees “become and remain members of the Union,” a judgment ordering the employee’s reinstatement was clearly appropriate [418-419]; the union was to be liable for intervening wage loss [419]; and the union was to be ordered to refrain from further action against the employee before giving him the opportunity of full membership and benefits upon payment of back dues [419-420], Civil action commenced in the Superior Court Department on February 27, 1986. The case was heard by John C. Cratsley, J. Phinorice J. Boldin for Massachusetts Bay Transportation Authority. John McMahon for Boston Carmen’s Union, Division 589, Amalgamated Transit Union. Richard W. Murphy {Jon R. Maddox with him) for the plaintiff. Local 589, Amalgamated Transit Union. Dreben, J. This is the third time that a dispute among William S. Reilly; Local 589, Amalgamated Transit Union (union); and the Massachusetts Bay Transportation Authority (Authority) has reached this court. See Reilly v. Local 589, Amalgamated Transit Union, 22 Mass. App. Ct. 558 (1986) (Reilly I), and Reilly v. Local 589, Amalgamated Transit Union, 31 Mass. App. Ct. 633 (1991) (Reilly II). Footnote 27 of Reilly I, supra at 580, describes the beginning of the present controversy. Both prior appeals grew out of the 1972 discharge of Reilly by the Authority and the union’s refusal to represent his interests in arbitration. Ultimately, the union acknowledged that its refusal was “for reasons other than the merits of his cases,” and, by order of the Superior Court, the matter was sent to arbitration. The arbitrator ruled Reilly’s discharge inappropriate and ordered that he be “made whole for all benefits lost” as a result of the Authority’s actions. Reilly II, supra at 635. On March 20, 1981, a Superior Court judge confirmed the arbitrator’s award and ordered the Authority to reinstate Reilly to his position as a motorman “forthwith.” Reilly was reinstated in 1981. Section 101C of the collective bargaining agreement between the union and the Authority required all employees to “become and remain members of the Union” and also provided that any employee who “fails to maintain membership in the Union to the extent of paying regular membership dues and assessments shall not be retained in the employ of the Authority. . . .” Beginning with his reemployment, Reilly and the union could not agree on the terms of his reinstatement as a union member. Reilly wanted full reinstatement with all benefits, but the union refused to consider him a member in good standing since 1975, the time when Reilly had previously stopped paying dues. When they failed to reach agreement, the union insisted that he be fired for failure to pay dues, the Authority refused, and the union brought the matter to arbitration on December 18, 1985. Reilly, although given notice of the impending arbitration, did not participate in the proceedings. The Authority did not present evidence to the arbitrator, and an award was made which upheld the union’s position and ordered Reilly discharged. The Authority complied with the arbitral award in 1986. Reilly then brought this action in the Superior Court, alleging that he should have been made a party to the arbitration and that his discharge was in violation of the March, 1981 court order reinstating him as an employee. After a jury-waived trial, the trial judge found that the union, rather than accepting responsibility for Reilly’s suspension from membership in 1975, *refused to offer him full and unqualified membership. In particular, while the union gave Reilly the option of paying all back dues or joining as a new member, it also, citing the constitution of the international union, insisted that Reilly could not run for union office until he was again a member in good standing for two years. Reilly rejected both options and did not pay dues. The judge found the action of the union to be a “slavish adherence to formal requirements at the expense of fair play,” that waivers of the rule requiring membership for the preceding two years before seeking union office were possible, and that there was no evidence that the union even tried to seek from the international union permission to waive the rule. The judge ruled “that in the highly unusual circumstances of this case — where the union’s own failure to represent Mr. Reilly brought about the very problem, cessation of Reilly’s membership, of which the union now complains — the union’s failure to reinstate Reilly ‘whole’ constitutes wrongful exclusion from membership on its part. . . . [I]ts invocation of the Authority’s contractual obligation to adhere to the requirements of Section 101C of the Agreement effectively calls upon the Authority to legitimize the union’s own unjust treatment of Reilly.” The judge, after citing Vaca v. Sipes, 386 U.S. 171, 186 (1967), and Balsavich v. Local Union 170, Intl. Bhd. of Teamsters, 371 Mass. 283, 286 (1976), both cases discussing a union’s violation of its duty of fair representation, ruled “[i]t is impermissible for the Authority to discharge Reilly for no other reason than that he has not paid his union dues when the union had failed, after a judicial determination of its own wrongful actions, to reinstate fully its former member, thereby causing that non-payment. Under these circumstances, the discharge of Reilly essentially constitutes a violation of [the] order that Reilly be re-employed by the Authority as if he never were terminated.” A judgment was entered ordering that (1) the arbitration award be vacated; (2) the Authority reinstate Reilly forthwith with all the rights and benefits he held at the time of his discharge; (3) the Authority restore to Reilly “all salary and benefits lost, plus interest, from the daté of his discharge in 1986 to the date of his reinstatement”; and (4) the union “refrain from any further action against [Reilly] based on the fact that he is not, as yet, a dues-paying member of Local 589.” Before us are appeals by the union and the Authority. We are in basic agreement with the judge’s rulings but deem it appropriate to modify the remedy. Our discussion will first consider certain procedural claims of the appellants before turning to the merits. 1. Denial of motion in limine. The union and the Authority claim error in the introduction by Reilly of evidence of the union’s actions which took place before his 1981 reinstatement. This evidence, they urge, allowed Reilly’s action to encompass a claim of wrongful expulsion from union membership. Prior to trial, the union and the Authority moved to limit Reilly’s evidence to the two claims alleged in his complaint, namely (1) whether Reilly should have been made a party to the 1985 arbitration and (2) whether the 1986 award that Reilly be discharged violated the 1981 order that the Authority reinstate Reilly. A trial court has wide discretion to determine the relevancy of evidence. Commonwealth v. Tobin, 392 Mass. 604, 613 (1984). Commonwealth v. Good, 409 Mass. 612, 621-622 (1991). Even where the issues raised are not within the scope of the pleadings, a judge, in the absence of prejudice (that is, an inability by the opposing party to prepare an adequate case or defense), is encouraged by the Massachusetts Rules of Civil Procedure freely to allow amendments to the pleadings to conform to such evidence as serves the merits of the action. See Mass.R.Civ.P. 15(b), 365 Mass. 761-762 (1974). Moreover, here the evidence could reasonably be viewed as within the matters pleaded. The unfair treatment by the union of Reilly’s earlier grievance led to his ceasing to pay dues in 1975. The resulting break in continuous union membership underlay Reilly’s claim that the union unfairly deprived him of union benefits including the provision of the international union’s constitution, see note 5, supra, and thus procured his wrongful discharge in 1986. His 1986 firing was alleged to be a violation of the 1981 court order. 2. Failure to exhaust administrative remedies. Pointing to the fact that Reilly knew of the time, place and purpose of the arbitration, the union and the Authority argue that Reilly’s failure to participate in the arbitration proceedings precludes him from challenging its results. If his claim was that § 101C of the collective bargaining agreement (requiring maintenance of union membership) did not apply because he was excluded from the union (§ 101D of the agreement), they urge that he was required to participate in the proceedings once arbitration had been invoked by the parties to the collective bargaining agreement. Reilly did not have a statutory right to intervene, nor was he given such a right by the collective bargaining agreement. Indeed, § 104 of the agreement provided that the grievance procedure “shall apply to all disputes between the Union and the Authority, whether any such dispute occurs as the result of a complaint by an individual member of the Union or a complaint by the Union itself’ (emphasis supplied). There is nothing in the collective bargaining agreement requiring Reilly to intervene or lose his legal rights. Moreover, as the judge was warranted in finding, the notice given to Reilly was inadequate. It did not explicitly invite him to attend nor did it inform him of his rights in the arbitration process. It did not tell him whether he could have a lawyer, bring witnesses, or cross-examine the parties. That in some other instances, involving other issues, employees had participated in arbitration proceedings did not require a finding that there was a waiver by Reilly or an obligation binding on him to attend. The Authority’s additional argument that Reilly, if not required to arbitrate, was obliged by G. L. c. 161 A, § 19, “to submit his grievance to the state board of conciliation and arbitration or other board having similar powers and duties” does not appear to have been made to the judge prior to the Authority’s postjudgment motion for reconsideration. It is doubtful that the State board has the same authority as given to the Labor Relations Commission in Leahy v. Local 1526, Am. Fedn. of State, County, & Mun. Employees, 399 Mass. 341 (1987). See Massachusetts Bay Transp. Authy. v. Labor Relations Commn., 356 Mass. 563, 567 (1970). See also G. L. c. 161 A, § 19A, which makes applicable to the Authority and its employees only c. 150A, § 5. Moreover, even if the legislative scheme of G. L. c. 161 A, § 19, were interpreted to give the State Board of Conciliation and Arbitration such authority, where, as here, the case was brought prior to the decision in Leahy v. Local 1526, Am. Fedn. of State, County, & Mun. Employees, supra, Reilly is entitled to rely “on Federal and State precedent indicating that the courts had concurrent jurisdiction [with administrative agencies] over cases concerning the duty of fair representation.” Id. at 350-351. Graham v. Quincy Food Serv. Employees Assn. & Hosp., Library & Pub. Employees Union, 407 Mass. 601, 611 (1990). Vaca v. Sipes, 386 U.S. at 181-183. Breininger v. Sheet Metal Wkrs. Intl. Assn. Local Union No. 6, 493 U.S. 67, 73-84 (1989). See also Pattison v. Labor Relations Commn., 30 Mass. App. Ct. 9, 10, 21 (1991). Reilly also did not need to exhaust internal union procedures. The dispute between Reilly and the union remained unresolved from 1981 to 1985. To have prolonged it further would, in our opinion, have “unreasonably delay [ed] [his] opportunity to obtain a judicial hearing on the merits of his claim.” Clayton v. International Union, United Auto., Aerospace, & Agric. Implement Wkrs. of America, 451 U.S. 679, 689 (1981). The union procedure also may have been inadequate to award full relief. Ibid. 3. Wrongful exclusion from union membership. Urging that it was bound by the constitution of the international union, which was not a party to this proceeding, see Donahue v. Kenney, 327 Mass. 409, 413 (1951), the union claims the judge’s finding of wrongful exclusion is plain error. In view of the international union’s determination that the one-year limitation on reinstatement rule was inapplicable under the “highly unusual” facts applicable to Reilly, see note 6, supra, and in view of the evidence of earlier hostility by some union members to Reilly’s election attempts, see also Reilly I, 22 Mass. App. Ct. at 563 n.7, the judge’s finding — that the failure by the union even to request from the international union a determination of inapplicability or waiver of the two-year “good standing” rule for eligibility for election was unfair and constituted wrongful exclusion from membership — was not clearly erroneous. 4. Duty of fair representation and claim that Reilly cannot challenge the 1986 arbitration award. Under both State and Federal law, a union has the responsibility and duty of fair representation. Leahy v. Local 1526, Am. Fedn. of State, County, & Mun. Employees, 399 Mass. at 348. Vaca v. Sipes, 386 U.S. at 177. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 564 (1976). Breininger v. Sheet Metal Wkrs. Intl. Assn. Local Union No. 6, 493 U.S. at 73. Even if not required by statute, “the courts would infer [such a duty] as a constitutional requirement.” Leahy, supra. McCormick v. Labor Relations Commn., 412 Mass. 164, 169 n.9 (1992). See generally A Judicial Guide to Labor and Employment Law § 18-4.1 (Walsh ed. 1990). Where the union has breached this duty, the foregoing authorities permit an employee, at least in cases brought prior to Leahy, to bring directly an action against his employer. See Balsavich v. Local Union 170, Intl. Bhd. of Teamsters, 371 Mass. at 286. “The union’s breach of duty relieves the employee of an express or implied requirement that disputes be settled through contractual grievance procedures; if it seriously undermines the integrity of the arbitral process the union’s breach also removes the bar of the finality provisions of the contract.” Hines v. Anchor Motor Freight, Inc., 424 U.S. at 567. The circumstances of this case are unusual: Reilly offered to pay all back dues; the union’s previous violation of the duty of fair representation had reasonably led Reilly to cease paying dues in 1975, causing him to lose his status as a member “in good standing”; despite its earlier wrongful behavior, the union refused to seek full benefits for Reilly upon his reinstatement; and union membership and payment of dues under the collective bargaining agreement was required as a condition of employment. We hold that the union, by excluding Reilly from full union membership, was in breach of its duty of fair representation in administering § 101C, the discharge provision of the collective bargaining agreement. In wielding the power of obtaining a discharge for failure to pay dues, the union had a duty to exercise that power fairly. See Breininger v. Sheet Metal Wkrs. Intl. Assn. Local Union No. 6, 493 U.S. at 82-83. This it has not done. Accordingly, the argument that Reilly lacks standing to challenge the award has no merit. See the cases previously cited discussing the duty of fair representation. We need not consider whether the arbitrator’s decision also superseded the prior court order. It is enough that the union’s bad faith actions in representing Reilly led to the arbitration decision and Reilly’s wrongful discharge. 5. Remedy against the Authority. Since Reilly was wrongfully discharged, the order requiring -the Authority to reinstate him was clearly appropriate. The assessment against the Authority of back pay from the time of the “tainted decision” of the arbitrator to the date of the judicial determination that the discharge was wrongful, however, presents difficulty. “If an employer relies in good faith on a favorable arbitral decision, then his failure to reinstate discharged employees cannot be anything but rightful, until there is a contrary determination. ... To hold an employer liable for back wages for the period during which he rightfully refuses to hire discharged employees would be to charge him with a contractual violation on the basis of conduct precisely in accord with the dictates of the collective agreement.” Hines v. Anchor Motor Freight, Inc., 424 U.S. at 572-573 (Stewart, J., concurring). For the reasons set forth by Justice Stewart in the Hines case, and implicitly by the Court in Bowen v. United States Postal Serv., 459 U.S. 212, 225-228 (1983), we vacate that portion of the judgment which assessed the Authority with an award of. back pay for the period prior to the judgment of the Superior Court. 6. Remedy against the union. The concurring opinion of Justice Stewart in Hines v. Anchor Motor Freight, Inc., supra, also sets forth the appropriate remedy against the union. “Liability for the intervening wage loss must fall not on the employer but on the union. Such an apportionment of damages is mandated by Vaca’[ ] holding that ‘damages attributable solely to the employer’s breach of contract should not be charged to the union, but increases if any in those damages caused by the union’s refusal to process the grievance should not be charged to the employer.’ 386 U.S. at 197-198.” 424 U.S. at 573. We again agree with Justice Stewart’s reasoning, see also Bowen v. United States Postal Serv., 459 U.S. at 223, and hold that the union is responsible for Reilly’s back pay from the time of the arbitrator’s decision to the date the judgment was entered in the Superior Court. The trial judge explained in his memorandum that, because the international union was not a party, see Donahue v. Kenney, 327 Mass. at 413, and because the union cannot unilaterally contravene a rule in the international union’s constitution, McDermo

Anita Wright vs. Shriners Hospital for Crippled Children & another. Suffolk. October 7, 1991. April 16, 1992. Present: Liacos. C.J. Wilkins. Lynch. O’Connor. & Greanly. JJ. Employment, Termination. Contract, Employment. Public Policy. Unlawful Interference. Nurse. The action of a hospital corporation in terminating the at-will employment of a registered nurse would not, as matter of law, have violated public policy, even if the termination were shown to have been in reprisal for the employee’s criticism of the hospital during interviews with members of a survey team representing the national organization to which the hospital belonged. [472-476] Liacos, J., dissenting. In an action by a nurse who was discharged from her at-will employment by a hospital corporation, the administrator of the hospital was entitled to judgment notwithstanding the verdict on the plaintiffs claim of intentional interference with contractual relations, where the corporation was legally entitled to discharge the plaintiff, and where there was no evidence that the administrator’s purpose in effecting her discharge was unrelated to a legitimate corporate interest. [476] Civil action commenced in the Superior Court Department on July 1, 1988. The case was tried before John C. Cratsley, J. The Supreme Judicial Court granted a request for direct appellate review. William F. Joy, Jr. (.Benjamin Smith with him) for the defendants. Kevin G. Powers for the plaintiff. Salvatore Russo. O’Connor, J. In this case, which is here on direct appellate review, we consider the sufficiency of the evidence to warrant a jury’s verdict of $100,000 in favor of the plaintiff, Anita Wright, against her employer, the defendant Shriners Hospital for Crippled Children (Shriners Hospital), on Wright’s claim that Shriners Hospital wrongfully terminated her at-will employment in violation of public policy. We also consider the sufficiency of the evidence to warrant the jury’s verdict of $50,000 against the defendant Salvatore Russo, the hospital administrator, for tortious interference with Wright’s employment relationship with Shriners Hospital. We hold that the evidence was insufficient to warrant either verdict and that the trial judge should have allowed the defendants’ motion for judgment notwithstanding the verdict. We reverse the judgments for the plaintiff and remand this case to the Superior Court for the entry of judgments for the defendants. We summarize the evidence in the light most favorable to the plaintiff. Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 146 (1989). Shriners Hospital hired Wright, a registered nurse, in 1976. Subsequently, she became assistant director of nursing-, and she held that position until she was discharged in late February of 1987. At all times, she was an employee at will. Wright received excellent evaluations throughout her employment, including an evaluation in December, 1986, two months before her discharge. In June, 1986, a former assistant head nurse wrote a letter to the director of clinical affairs for the Shriners national headquarters detailing her concerns about the medical staff and administration at Shriners Hospital. Shriners Hospital is a separate corporation, but it is one of many Shriners facilities that are affiliated with the national headquarters. As a result of the letter, the national headquarters notified the defendant hospital administrator, Russo, that a survey team would visit Shriners Hospital in November, 1986. Russo was visibly upset. He spoke to the director of nursing about the letter and asked her: “Are you behind this? Is Anita Wright behind this?” The director of nursing denied that she was responsible for the letter. She did not address the question whether Wright was “behind” the letter. The survey team visited the hospital in November and interviewed Wright and other employees. Wright told the survey team that there were communication problems between the medical and nursing staffs. She detailed problems with the assistant chief of staff and gave specific examples of patient care problems. The survey team reported Wright’s comments to the assistant chief of staff. Two members of the survey team prepared reports. In his report issued on December 22, 1986, Dr. Newton C. McCollough, director of medical affairs for the national organization, wrote: “The relationships between nursing administration, hospital administration, and chief of staff are much less than satisfactory, and significant friction exists both as regard nursing/administration relationships and nursing/medical staff relationships. Communication and problem solving efforts in this relationship are poor to nonexistent.” A report issued on January 5, 1987, by Jack D. Hoard, executive administrator for the national Shriners organization, also documented the problematic relationship between the nursing and medical staff. Both reports recommended a follow-up site survey to determine the impact of this conflict on patient care. McCollough’s report stated that during her interview, Wright had made severe criticisms of the medical staff and had expressed concern over a lack of consistent procedures and standards for patient care. Hoard’s report stated that Wright discussed the breakdown in communication between the nursing staff and the attending medical staff, which she said was leading to deteriorating morale among nurses. Upon reading the survey team’s reports, Russo again became upset and told the director of nursing that it was the nursing department’s fault that the team was making another visit. He also stated at a department managers’ meeting in December, 1986, “It seems there are people who spend their time trying to find fault with everything that everyone does, and those kinds of people we don’t need here.” Russo testified that, when he said that, he “possibly” was referring to statements made to the survey team. After the survey team’s November, 1986, visit, Russo stopped speaking to Wright or even acknowledging her presence. The survey team returned on February 18 and 19, 1987, specifically to review the problems between the medical and nursing staffs. On February 26, after consulting with the chairman and several officers of the board of governors of Shriners Hospital and with national corporate counsel, Russo ordered that Wright’s employment be terminated for “patient care issues that had arisen as a result of the surveys.” Wright contends, and the defendants dispute, that the jury would have been warranted in finding that Shriners Hospital fired her from her employment at will in retaliation for her having criticized the hospital, specifically in regard to the quality of care rendered to patients, to the Shriners national headquarters survey team. Wright further asserts that-such a retaliatory firing violates public policy and is therefore actionable. See Hobson v. McLean Hosp. Corp., 402 Mass. 413, 416 (1988); DeRose v. Putnam Management Co., 398 Mass. 205, 210 (1986). It is a question of law for the judge to decide whether a retaliatory firing in these circumstances would violate public policy. Mello v. Stop & Shop Cos., 402 Mass. 555, 561 n.7 (1988). We hold that a termination of Wright’s employment at will in reprisal for her critical remarks to the survey team would not have violated public policy. Therefore, we need not address the disputed matter of the sufficiency of the evidence to warrant a finding that the firing was indeed in retaliation for the criticism. We begin with the general rule that “[ejmployment at will is terminable by either the employee or the employer without notice, for almost any reason or for no reason at all.” Jackson v. Action for Boston Community Dev., Inc., 403 Mass. 8, 9 (1988). We have recognized exceptions to that general rule, however, when employment is terminated contrary to a well-defined public policy. Thus, “[rjedress is available for employees who are terminated 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 that which the law forbids (e.g., committing perjury).” Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., supra at 149-150. We have also held that redress was available to an at-will employee who was discharged in retaliation for his cooperation with a law enforcement investigation concerning his employer. Flesner v. Technical Communications Corp., 410 Mass. 805, 811 (1991). Although the employee in Flesner was not required by law to cooperate, we reasoned that the Legislature had clearly expressed a policy encouraging cooperation with criminal investigations as indicated by statutes providing for reimbursement of expenses for persons assisting in investigations and immunity for witnesses testifying in grand jury investigations. Id. at 810. The trial judge’s view of the law was that public policy was violated if Shriners Hospital fired Wright in reprisal for her having criticized the hospital in interviews with the survey team. As is clear from his instructions to the jury, the judge’s view was based in part on “the duty of doctors and nurses, found in their own code of ethics, to report on substantial patient care issues.” We would hesitate to declare that the ethical code of a private professional organization can be a source of recognized public policy. We need not consider that question, however, because no code of ethics was introduced in evidence in this case. It is also clear from his instructions that the judge’s view was based in part on “various state laws of the commonwealth, requiring reports on patient abuse.” The judge did not identify the State laws he had in mind. General Laws c. 119, § 51A (1990 ed.), requires nurses and others to make a report to the Department of Social Services concerning any child under eighteen years of age who they have reason to believe is suffering from physical or sexual abuse or neglect. Similarly, G. L. c. 19A, §15 (a) (1990 ed.), requires nurses and others who have reasonable cause to believe that an elderly person is suffering from abuse to report it to the Department of Elder Affairs. Subsection (d) of that provision provides that no employer or supervisor may discharge an employee for filing a report. Finally, G. L. c. 111, § 72G (1990 ed.), requires nurses and others to report to the Department of Public Health (department) when they have reason to believe that any patient or resident of a facility licensed by the department is being abused, mistreated, or neglected and provides a remedy of treble damages, costs, and attorney’s fees for any employee who is discharged in retaliation for having made such a report. None of these statutes applies to Wright’s situation, however, and we are unaware of any statute that does. Also, we are unaware of any statute that clearly expresses a legislative policy to encourage nurses to make the type of internal report involved in this case. In fact, Wright testified that she did not consider the patient care that caused her concern to be abuse, neglect, or mistreatment warranting a report to the department, nor did she feel that there was an issue of physician incompetence warranting a report to the board of registration in medicine as required by G. L. c. 112, § 5F (1990 ed.). Wright urges us to recognize a regulation promulgated by-the Board of Registration in Nursing as a source of public policy sufficient to create an exception to the general rule regarding termination of at-will employment. Title 244 Code Mass. Regs. § 3.02 (3) (f) (1986) describes the responsibilities and functions of a registered nurse, including the responsibility to “collaborate, communicate and cooperate as appropriate with other health care providers to ensure quality and continuity of care.” Even if that regulation called for Wright to report perceived problems or inadequacies to the survey team, a doubtful proposition, we have never held that a regulation governing a particular profession is a source of well-defined public policy sufficient to modify the general at-will employment rule, and we decline to do so now. Furthermore, as we have noted above, Wright’s report was an internal matter, and “[i]nternal matters,” we have previously said, “could not be the basis of a public policy exception to the at-will rule.” Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., supra at 151, citing Mello v. Stop & Shop Cos., supra at 560-561. We agree with the dissent that the provision of good medical care by hospitals is in the public interest. It does not follow, however, that all health care employees should be immune from the general at-will employment rule simply because they claim to be reporting on issues that they feel are detrimental to health care. In Smith-Pfeffer, supra, we held that there was no violation of a well-established public policy by. an employer who discharged an employee for her actions in opposing a management restructuring plan proposed by the defendant acting superintendent as well as the possible appointment of the defendant to the position of permanent superintendent. Smith-Pfeffer, supra at 147-150. The employee’s opposition to the plan and appointment were based, in part, on her perception that the restructuring would significantly alter the management relationships such that it would “compromise service delivery to the residents” and “constitute[ ] a threat to the well-being of the institution and its residents.” Id. at 148, 151. The defendant conceded that the jury could have found that the “plaintiff had performed her duties in a superior manner” and that her “actions were motivated by a sincere commitment to the mentally retarded residents in her unit,” and that the defendant terminated her “to get rid of an employee he regarded as a trouble maker, and one with whom he personally did not get along.” Id. at 149. Although there is no less of a public interest in the provision of good quality care to the residents of a public facility for the retarded than in good care for patients in a hospital, we rejected the plaintiffs argument that the public policy exception to the at-will rule should extend to protect employees who were performing “appropriate, socially desirable duties” from being subject to discharge without cause. Id. at 150. We reasoned, “Essentially, the plaintiffs argument would require us to convert the general rule 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], into a rule that requires just cause to terminate an at-will employee. The public policy exception to the at-will employment rule is not that broad” (footnote omitted). Id. We conclude in this case, as we did in Smith-Pfeffer, that the evidence did not warrant a verdict for the plaintiff. We turn to the case-against the defendant hospital administrator, Russo. “In an action for intentional interference with contractual relations, the plaintiff must prove that: (1) he had a contract with a third party; (2) the defendant knowingly induced the third party to break that contract; (3) the defendant’s interference, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant’s actions.” G.S. Enters., Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 272 (1991), citing United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 812-817 (1990). Even if the evidence would have warranted a finding that Russo fired Wright in retaliation for her having complained to the survey team, a matter we are not deciding, that evidence alone would not have warranted a finding of improper motive, because, as we have' held, the corporation had a right to discharge Wright for such a reason. As Wright’s supervisor, Russo had a right to fire Wright unless he did so “malevolently, i.e., for a spiteful, malignant purpose, unrelated to the legitimate corporate interest.” Sereni v. Star Sportswear Mfg. Corp., 24 Mass. App. Ct. 428, 432-433 (1987). The record is devoid of evidence that Russo’s purpose in discharging Wright was unrelated to a legitimate corporate interest. We conclude that the evidence was insufficient to warrant a verdict against the defendant Russo. We reverse the judgments for the plaintiff and remand to the Superior Court for the entry of judgments for the defendants. So ordered. Liacos, C.J. (dissenting). I disagree with the court’s conclusion that a hospital employer violates no public policy when it fires an employee for alerting supervisors to matters detracting from good patient care. The court has construed far too narrowly the public policy exception to the doctrine of employment at will. Moreover, in demanding a statutory basis for public policy, the court has relinquished to the Legislature its role in shaping the common law. I dissent. It is well-established that “an at-will employee has a cause of action for wrongful discharge if the discharge is contrary to public policy.” DeRose v. Putnam Management Co., 398 Mass. 205, 210 (1986). We have perceived clear violations of public policy when an employer terminates an employee for: (1) asserting a legal right, see Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 149 (1989) (citing example of filing a workers’ compensation claim); (2) doing what the law requires, see Hobson v. McLean Hosp. Corp., 402 Mass. 413, 416 (1988) (enforcing safety laws); and (3) refusing to do what the law forbids, see DeRose, supra at 210 (giving false testimony at trial). In addition, we have established “legal redress in certain circumstances for employees terminated for performing important public deeds, even though the law does not absolutely require the performance of such a deed.” Flesner v. Technical Communications Corp., 410 Mass. 805, 810-811 (1991) (cooperating with ongoing government investigation). “[T]he Achilles heel of the [public policy exception] lies in the definition of public policy.” Palmateer v. International Harvester Co., 85 Ill. 2d 124, 130 (1981). It is a proper rolé of the courts to construe the boundaries of “public policy” and thereby develop common law remedies available to at-will employees who are terminated. Cf. Schofield v. Merrill, 386 Mass. 244, 245, 247-248 (1982) (based on social values and customs, and lack of community consensus, court refused to abolish “common law rule that a landowner is not liable to an adult trespasser for injuries resulting from the landowner’s negligence”). I find it disturbing, therefore, that the court would relinquish this role, by requiring a statutory basis for public policy. The court reads Flesner too narrowly. In that case, we provided relief because the plaintiff was fired for performing an important public deed, not because the plaintiff was acting in accordance with a legislatively determined public policy. The court also declines to say whether public policy arises from such nonstatutory sources as regulations or the ethical codes of private professional organizations. It thus defers unduly to the Legislature in defining the contours of the public policy exception. This deferral in the realm of common law is inappropriate. The court must determine the boundaries of public policy, by looking not only to statutory law, but also to administrative law, judicial opinions, and even professional codes of conduct (where those codes serve a public interest, not merely the interests of the profession). See Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72 (1980). In the instant case, the court should begin by acknowledging the undisputable public interest in the provision of good medical care by hospitals. We have long recognized that hospitals “conduct enterprises greatly affected with a general public interest.” Springfield Hosp. v. C

FEELEY v ACCIDENT FUND OF MICHIGAN Docket Nos. 129699, 140116. Submitted March 11, 1992, at Lansing. Decided April 6, 1992, at 9:20 A.M. Frank M. Feeley, O. William Rye, and Lee McAllister brought an action in the Court of Claims against the Accident Fund of Michigan, alleging wrongful discharge and breach of employment contracts. The court, Peter D. Houk, J., granted summary disposition for the Accident Fund, finding the contracts not legally enforceable. The plaintiffs appealed. The plaintiffs also filed an action in the Ingham Circuit Court against the Accident Fund, seeking an order compelling arbitration of the contract dispute under the arbitration clause in the contracts. The court, Peter D. Houk, J., granted summary disposition for the Accident Fund, concluding that the state could not be compelled to submit to arbitration. The plaintiffs appealed. The appeals were consolidated. The Court of Appeals held: 1. Neither the advisory board of the Accident Fund nor its manager were authorized to hire employees. Therefore, the contracts, which were executed by the manager and authorized by the advisory board, were not enforceable. 2. The Commissioner of Insurance did not delegate hiring ■ authority to the manager. The mere appointment of a manager does not imply the delegation of authority specifically vested by statute in the commissioner. 3. The commissioner’s authority to hire Accident Fund employees is restricted to hiring employees into positions within the classified civil service pursuant to the rules of the Civil Service Commission. Not even the commissioner could enter into the contracts at issue because they did not appoint the plaintiffs to positions within the classified civil service. References Am Jur 2d, Arbitration and Award §§ 11, 19; Civil Service §§ 8, 13, 14, 27; Master and Servant §§ 43 et seq. Damages recoverable for wrongful discharge of at-will employee. 44 ALR4th 1131. Modern status of rule that employer may discharge at-will employee for any reason. 12 ALR4th 544. 4. The plaintiffs did not have implied contracts providing for termination only for just cause. 5. Because the contracts were invalid, the arbitration clause of the contracts also was invalid. Therefore, the issue whether the state can be compelled to arbitrate is moot. Affirmed. 1. Civil Service — Accident Fund — Commissioner of Insurance. Only the Commissioner of Insurance has the authority to hire employees of the Accident Fund of Michigan; employees of the Accident Fund must be classified in the civil service, unless hired into positions exempt from civil service classification as provided in the constitution (Const 1963, art 11, § 5). 2. Master and Servant — Breach of Contract of Employment. An employee who is never lawfully hired cannot be unlawfully fired. Adkins & Garcia (by James D. Adkins and Richard J. Garcia), for the plaintiffs. Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, and George H. Weller, Assistant Attorney General, for the defendant. Before: Shepherd, P.J., and Sawyer and Con-nor, JJ. • Sawyer, J. In this consolidated appeal, plaintiffs appeal from an order of the circuit court (Docket No. 129699) that granted summary disposition in favor of defendant of plaintiffs’ claim to compel arbitration under an employment contract and from an order of the Court of Claims (Docket No. 140116) that granted summary disposition in favor of defendant of plaintiffs’ breach of contract claim. We affirm. This case has its roots in action by the Attorney General to regain state control of the Accident Fund of Michigan. The Accident Fund was created by statute in 1912. Sometime between then and 1976, it began to act as if it were a private, mutual insurance company that was merely authorized by statute and, at some point, believed that to be true. In 1976, the Attorney General issued an opinion that concluded that the Accident Fund was, in fact, a state agency. OAG, 1975-1976, No 5147, p 695 (December 7, 1976). Thereafter, the Attorney General (and the Commissioner of Insurance) endeavored to regain control of the Accident Fund as a state agency under the control of the Commissioner of Insurance and to have the Accident Fund’s employees classified into the state civil service. This culminated with an opinion by this Court affirming the circuit court’s determination that the Accident Fund was, in fact, a state agency subject to the control of the Commissioner of Insurance and that the fund’s employees were state employees required to be classified into the state civil service. Comm’r of Ins v Advisory Bd of the Michigan State Accident Fund, 173 Mich App 566; 434 NW2d 433 (1988). On September 21, 1989, the day after the Supreme Court denied the advisory board leave to appeal from this Court’s decision, the Attorney General and the Commissioner of Insurance arrived at the Accident Fund and assumed control pursuant to this Court’s decision. Thereafter, on November 2, 1989, plaintiffs, who held various positions with the Accident Fund, walked off their jobs, claiming that they had been constructively discharged. The basis of their claim of constructive discharge lies in statements by officials of the offices of the Attorney General, Commissioner of Insurance, and Department of Civil Service concerning plaintiffs’ future pay cuts, transfers, and reduction in job responsibilities. While the original dispute between the Commissioner of Insurance and the advisory board was pending before this Court, plaintiffs entered into employment contracts with the Accident Fund that provided for termination only for just cause and that contained "golden parachute” clauses. These clauses provided for severance pay in the amount of two years’ salary upon discharge. After leaving their jobs at the Accident Fund, plaintiffs instituted an action in the Court of Claims claiming wrongful discharge and breach of employment contracts. The trial court granted summary disposition in favor of defendant, concluding that the employment contracts were not legally enforceable. Although plaintiffs were permitted to amend their complaints to add an implied-contract claim, the trial court granted summary disposition in favor of defendant of the amended complaint as well. Meanwhile, plaintiffs had also filed an action in the circuit court seeking an order compelling arbitration of the contract dispute under an arbitration clause in the contracts. The trial court granted summary disposition in favor of defendant, concluding that the state could not be compelled to submit to arbitration. Separate appeals were filed with regard to these disputes. The matters have been consolidated. As will be explained below, resolution of the appeal from the Court of Claims decision will be dispositive and render the circuit court decision moot. Plaintiffs first claim that their written contracts with the Accident Fund are enforceable and have been breached, and, therefore, they are entitled to severance pay in the amount of two years’ salary, which ranges from $138,100 to $209,000. Defendant takes the position that the trial court correctly determined that the employment contracts at issue were not legally enforceable. In light of the procedural posture of this case, this Court must assume that plaintiffs were, in fact, discharged and that their employment contracts, if enforceable, were breached. Thus, the crux of the question is, Are plaintiffs’ employment contracts legally enforceable? That question must be answered in the negative. The question that must be answered is whether the advisory board or the manager of the Accident Fund who entered into the contracts on behalf of the Accident Fund had the authority to do so and thus legally bind the Accident Fund (i.e., the State of Michigan). The contracts were entered into in the name of the Accident Fund by Edwin B. Lancaster, the putative manager and chief executive officer of the Accident Fund. As might be expected, plaintiffs contend that Lancaster had the actual authority to run the Accident Fund, including the power to enter into employment contracts, while defendant maintains that Lancaster did not. This issue may be resolved by reference to this Court’s decision in Comm’r of Ins, supra. In Comm’r of Ins, this Court concluded that, except to the extent that a position within the Accident Fund may be exempt from civil service classification as provided in the constitution, employees of the Accident Fund must be classified in the civil service. Id. at 582. More directly to the point, this Court specifically stated: In the case at bar, the disability act does not grant the Advisory Board . . . the authority to hire employees .... The hiring authority is granted to the Commissioner of Insurance, subject to the authorization of the Advisory Board, under MCL 418.741; MSA 17.237(741). . . . Simply put, the Advisory Board has no authority other than to authorize the hiring of employees by the commissioner and to advise the commissioner in the administration of the affairs of the fund. [Id. at 586.] It is thus clear that the Commissioner of Insurance, not the advisory board or the fund manager, had the authority to hire employees. Plaintiffs do not allege, however, that they were hired by the Commissioner of Insurance or that the commissioner had entered into the contracts with plaintiffs. Rather, plaintiffs specifically state in their brief on appeal that this action is based upon "contracts executed by the then Manager of the Accident Fund and authorized by the Advisory Board.” Because the statutory authority to hire employees is vested in the Commissioner of Insurance, not the manager or the advisory board, the employment contracts at issue were not legally enforceable against the Accident Fund because the Commissioner of Insurance was not a signatory to them. Plaintiffs do, however, argue that the putative manager of the Accident Fund, Lancaster, had the authority to act on behalf of the Commissioner of Insurance because he had been appointed by the commissioner to the position of manager. This argument must fail for a number of reasons. First, and foremost, plaintiffs make no showing that the commissioner had ever delegated to the fund manager the statutory authority to hire employees. While, arguably, the Commissioner of Insurance could delegate his statutory authority, it is necessary to show that that has been done. The mere appointment of a manager does not imply the delegation of authority specifically vested by statute in the commissioner. Second, Lancaster himself has previously disavowed that he is an agent of the commissioner. In an April 3, 1986, letter to the commissioner, Lancaster stated that he does not recognize the commissioner’s authority over the Accident Fund or the employment of its manager: I have been designated Manager of the Accident Fund by the Advisory Board. ... You should further be advised that the Advisory Board of the Accident Fund has not authorized you to employ a manager for the Accident Fund which, as you know, is a statutory prerequisite to any involvement on your part. We will proceed on the basis that your memorandum is a request for such authorization and will make that request known to the Advisory Board on the occasion of its next meeting. Even more to the point, in an April 24, 1986, letter, Lancaster specifically disavowed that the commissioner had appointed him, or had authority to appoint him: For purposes of the record, I must again take issue with your statement that you orally appointed me to the position of "acting manager” of the Accident Fund. To my knowledge, no such action, either oral or written, was ever taken by you. I was employed manager of the Accident Fund by action of the Advisory Board and serve at its pleasure. It is our current mutual expectation that I will continue to so serve through December of 1987. Any action you might take to appoint a new manager for the Accident Fund, or any other employee for that matter, without authorization of the Advisory Board, would be illegal and in violation of Section 741 of the Accident Fund enabling statute. Thus, even if the commissioner had endeavored to delegate authority to Lancaster, it is clear that Lancaster refused to accept that delegation from the commissioner and that he exercised only that authority that was delegated by the advisory board. Because, as discussed above, the advisory board had no authority to hire employees, it could not delegate such authority to Lancaster. Finally, even if this Court were to reach the conclusion that the Commissioner of Insurance delegated to Lancaster the authority to hire the commissioner had no authority to hire plaintiffs on the terms expressed in the contracts. More specifically, the contracts do not appoint plaintiffs to civil service positions. As explained in Comm’r of Ins, Const 1963, art 11, § 5 requires that all state executive branch employees be classified into the civil service, except for a limited number of employees that may be exempted from the civil service. Those exempted from civil service classification include heads of departments, members of boards and commissions, and the principal executive officer of boards and commissions heading principal departments. None of the plaintiffs fall within these categories. Const 1963, art 11, § 5 also authorizes two exempt positions within each department as requested by the department head and three exempt positions within each department as authorized by the Civil Service Commission. There is no indication that plaintiffs fall into this latter group. Thus, as explained in Comm’r of Ins, supra at 582, employees of the Accident Fund, such as plaintiffs, had to be classified into the state civil service. Further, the commissioner’s authority to hire Accident Fund employees is restricted to hiring employees into the classified civil service pursuant to the rules of the Civil Service Commission. Id. at 583-584. Thus, even the commissioner could not lawfully enter into the contracts at issue because they did not appoint plaintiffs into positions within the classified civil service. In sum, plaintiffs look to the advisory board as the hiring authority who entered into the employment contracts with plaintiffs. The advisory board had no such authority to hire. Furthermore, although the Commissioner of Insurance did have the authority to hire, plaintiffs have made no showing that the commissioner, or his duly authorized subordinate, exercised that authority with respect to plaintiffs. Finally, even the commissioner lacked the authority to hire plaintiffs under the terms of the contracts at issue because those contracts do not constitute an appointment to a position within the classified civil service, which is the limit of the commissioner’s authority. Plaintiffs next argue that, at a minimum, they had an implied contract of employment that provided for termination only for just cause. However, this argument does not overcome the deficiencies of their argument under the express-contract issue above. Plaintiffs point to the written contracts, the Personnel Policy Manual, and the verbal assurances given by Lancaster as the basis for their reasonable expectation that their employment could be terminated only for cause. Plaintiffs’ argument, however, does not address the fact that they were never lawfully hired into their positions. As discussed above, only the commissioner had the authority to hire employees of the Accident Fund, and plaintiffs have not shown that the commissioner hired them. In fact, plaintiffs take the position that they were hired by the advisory board. Second, at most they could have been hired into a classified civil service position, which never occurred because they left their jobs before being classified into the civil service. An employee who is never lawfully hired cannot be unlawfully fired. Turning to the specifics of plaintiffs’ allegations of an implied contract, it can be seen that plaintiffs had no reasonable basis for believing that they were anything other than employees at will. First they point to the written contracts. However, as discussed above, these contracts are invalid and, thus, cannot give rise to any employment expectations. Second, plaintiffs point to the Personnel Policy Manual, yet this actually defeats plaintiffs’ position. By plaintiffs’ own statement in their brief, the policy manual provided that all Accident Fund employees were employees at will unless they had a written contract to the contrary. Because the written contracts at issue are invalid, plaintiffs had no such contracts and were, even under the terms of the Personnel Policy Manual, employees at will. Finally, plaintiffs point to representations by Lancaster. However, as discussed at length above, Lancaster had no authority to hire employees or to deviate from the civil service requirements. Moreover, the date of the contracts, April 15, 1988, is illuminating. The contracts were entered into after the entry of the circuit court’s decision on October 5, 1987, in the litigation between the advisory board and the Commissioner of Insurance at issue in Comm’r of Ins, supra. In the circuit court decision, Judge Stell held, inter alia, as follows: The Court declares that the Michigan State Accident Fund is a state agency, and its employees are subject to Civil Service classification under Const 1963, art 11, sec 5. Thus, at the time of the making of the contracts, the circuit court had opined that Accident Fund employees had to be classified into the civil service, a finding that was upheld on appeal. Certainly plaintiffs cannot claim that they had any reasonable expectation of termination only for just cause emanating from the written contracts and related representations when, several months before the signing of the contracts at issue, the circuit court had declared that they were required to be classified civil service employees. For the above reasons, we conclude that summary disposition was properly granted. Turning to the appeal from the circuit court decision, plaintiffs sought injunctive relief in circuit court to compel arbitration of the breach of contract dispute under an arbitration clause contained in the contracts. The trial court ruled that a state agency could not be compelled to arbitrate. However, this issue need not be addressed because it has been determined above that the contracts at issue were invalid. Because the contracts were invalid, the arbitration clause was invalid and it matters not whether the state can be compelled to arbitrate. The issue is moot. Affirmed. Defendant may tax costs. In fact, the employment contracts at issue provide that the employee would be deemed to have been "involuntarily and constructively discharged” if, inter alia, there was an "involuntary and material reduction in duties, compensation, or benefits” that, plaintiffs allege, was threatened. Even more to the point, plaintiffs would be considered constructively discharged in the event of a final resolution by "court decision . . . pursuant to which the Accident Fund of Michigan is finally determined to be subject to control or regulation by any agency of the State of Michigan, except as is customary for casualty insurance carriers doing business in Michigan.” Thus, under the terms of the contract, plaintiffs were constructively discharged when the Supreme Court declined to review this Court’s decision in the earlier appeal.

SNELL v UACC MIDWEST, INC Docket No. 138335. Submitted March 10, 1992, at Grand Rapids. Decided March 30, 1992; approved for publication June 10, 1992, at 9:00 a.m. Robert Snell brought an action in the Kent Circuit Court against UACC Midwest, Inc., alleging wrongful termination from employment. The court, Donald A. Johnston, J., entered judgment consistent with a jury verdict for the plaintiff and denied the defendant’s motions for judgment notwithstanding the verdict, a new trial, and remittitur. The defendant appealed. The Court of Appeals held: 1. The court properly denied the defendant’s motion for a directed verdict with regard to the issue whether the plaintiff was employed pursuant to an express or implied contract of employment providing for termination only for just cause. A genuine issue of material fact existed regarding the existence of an employment contract provided for termination only for just cause. 2. Denial of the defendant’s motion for judgment notwithstanding the verdict was proper. The plaintiff presented sufficient evidence to justify submitting to the jury the issue of the existence of an employment contract providing for termination only for just cause. 3. The court properly denied the defendant’s motion for judgment notwithstanding the verdict, which had alleged erroneous factual findings by the jury. 4. The plaintiff presented sufficient evidence to create an issue for the jury with regard to whether he failed to mitigate his damages. Denial of the motion for judgment notwithstanding the verdict in this regard was proper. 5. There were questions of fact with regard to the issues concerning just cause for termination and mitigation of damages. The trial court therefore did not abuse its discretion in denying the defendant’s motion for a new trial with regard to these issues. 6. The jury’s award is supported by the evidence. The trial court did not abuse its discretion in denying the defendant’s request for remittitur. 7. The court did not abuse its discretion in granting the plaintiffs motion to sever the defendant’s counterclaims for trial. Affirmed. Buchanan & Bos (by Bradley K. Glazier), for the plaintiff. Keywell & Rosenfeld (by Gary W. Klotz, Denise S. Gold, Elaine A. Parson, and Eric B. Gaabo), for the defendant. Before: Fitzgerald, P.J., and Hood and Cavanagh, JJ. Per Curiam. Defendant appeals as of right from a circuit court order granting judgment consistent with a jury verdict in favor of plaintiff and from the court’s denial of defendant’s motions for judgment notwithstanding the verdict, a new trial, and remittitur. We affirm. i Defendant first argues that the trial court erred in failing to grant its motion for a directed verdict with regard to the issue whether plaintiff was employed pursuant to an express or implied contract of employment that prohibited his termination except for just cause. We disagree. Oral contracts of employment for an indefinite term are presumed to be terminable at the will of either party. This presumption can be overcome, however, by the existence of an express agreement to the contrary, or by the employee’s legitimate expectations of continued employment absent "just cause” for termination arising from the employer’s established policies and procedures. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980). To infer that an employment contract provides for termination only for just cause, the employee must have an objective expectation of continued employment, not merely a subjective one. Grow v General Products, Inc, 184 Mich App 379, 382-384; 457 NW2d 167 (1990). Whether an employer’s policies and procedures constitute sufficient bases for the creation of an objective expectation of employment terminable only for just cause is a question for the jury. Toussaint, supra, pp 620-621. See also Renny v Port Huron Hosp, 427 Mich 415, 417; 398 NW2d 327 (1986). Further, in determining whether a reasonable finder of fact can conclude that a promise of job security is implied, this Court must look at all the facts and circumstances to evaluate the intent of the parties. Rowe v Montgomery Ward & Co, Inc, 437 Mich 627, 639; 473 NW2d 268 (1991). With respect to oral statements, this requires a determination of the meaning that reasonable persons might have attached to the language given the circumstances presented. Id., p 640. The statements must "clearly permit a construction which supports the asserted meaning.” Id., p 641. We have carefully reviewed the record and remind defendant that plaintiff has not based his claim solely on the preemployment statements made by Alan Bigelow. Rather, plaintiff points to other statements made by Bigelow as well as the apparent practice of progressive discipline engaged in by Bigelow and other supervisors. Viewing all the evidence in a light most favorable to plaintiff, and according plaintiff all reasonable inferences, we conclude that a genuine issue of material fact existed upon which reasonable minds could differ regarding the existence of an employment contract providing for termination only for just cause. Stoken v J E T Electronics & Technology, Inc, 174 Mich App 457, 463; 436 NW2d 389 (1988). The trial court, therefore, did not err in denying defendant’s motion for a directed verdict. ii Defendant next argues that the trial court should have granted its motion for judgment notwithstanding the verdict because (1) plaintiff failed to prove he was employed pursuant to an employment contract providing for termination only for just cause, (2) defendant had just cause for terminating plaintiff, (3) defendant did not have a policy requiring three warnings before discharging for "really screwing up,” (4) plaintiff received at least three warnings before termination, (5) defendant had the right to terminate plaintiff without further warning for his dishonesty, and (6) plaintiff failed to mitigate his damages. A motion for judgment notwithstanding the verdict should be granted only where the evidence presented is insufficient to create an issue for the jury. Wilson v General Motors Corp, 183 Mich App 21, 36; 454 NW2d 405 (1990). As with a motion for a directed verdict, the evidence and all reasonable inferences are to be viewed most favorably to the nonmoving party. Shipman v Fontaine Truck Equipment Co, 184 Mich App 706, 711; 459 NW2d 30 (1990). A As discussed previously, plaintiff presented sufficient evidence of defendant’s statements and procedures to justify submitting to the jury the issue of the existence of an employment contract providing for termination only for just cause. Denial of defendant’s motion for judgment notwithstanding the verdict on this basis was therefore proper. B Once the jury determined that plaintiff was employed pursuant to a contract that entitled him to the protection of termination only for just cause, the question whether his discharge was in breach of that contract was also one for the jury. Toussaint, supra, pp 620-621. In connection with this duty, the jury is permitted to determine the employer’s true reason for the discharge and whether the stated reason amounts to good cause. Id., p 622-623. The various arguments raised by defendant on appeal all focus on factual decisions required to be made by the jury in order to render a verdict. Plaintiff claimed that his employment contract provided for three warnings (possibly written) as part of the progressive discipline policy apparently in effect. Plaintiff offered evidence explaining, in part, his failure to adequately perform his duties on September 16, 1988, and presented the jury with his theory that his discharge was spurious because the job assignment was designed to give defendant the means to the desired end. Whether the employment contract provided for the warnings plaintiff claims and whether he did in fact receive such warnings were clearly issues of fact to be resolved solely by the jury. Further, the jury was entitled to determine defendant’s true motive for discharging plaintiff and whether its stated reason amounted to good cause. Moreover, the jury was able to view the demeanor of the witnesses and assess credibility. The trial court therefore properly denied defendant’s motion for judgment notwithstanding the verdict on the basis of the jury’s factual findings. c Lastly, defendant claims that the trial court should have granted judgment in its favor because plaintiff failed to mitigate his damages. We disagree. Although the principle of mitigation obligates the plaintiff to accept employment of like nature, whether the plaintiff is reasonable in not seeking or accepting particular employment is a question for the trier of fact. Hughes v Park Place Motor Inn, Inc, 180 Mich App 213, 220; 446 NW2d 885 (1989); Brewster v Martin Marietta Aluminum Sales, Inc, 145 Mich App 641, 663; 378 NW2d 558 (1985); Higgins v Kenneth R Lawrence, DPM, PC, 107 Mich App 178, 181; 309 NW2d 194 (1981). Upon review of the record, we are convinced that the trial court properly denied defendant’s motion for judgment notwithstanding the verdict. Plaintiff presented sufficient evidence to create an issue for the jury’s resolution. iii Defendant also contends that the trial court erred in denying its motion for a new trial or remittitur because the evidence overwhelmingly preponderated in its favor. Again, we disagree. A A motion for a new trial may be granted when the jury’s verdict was against the overwhelming weight of the evidence. The trial court’s decision with regard to the motion will not be reversed absent an abuse of discretion. Bosak v Hutchinson, 422 Mich 712, 737; 375 NW2d 333 (1985); Wilson, supra. The record appears to support defendant’s argument that no reasonable jury could have found that defendant lacked just cause to terminate plaintiff on the basis of his falsification of documents and dishonesty or because plaintiff failed to mitigate his damages. Nevertheless, as the trial court recognized, the standard is not whether the reviewing court would have reached a different result, but whether the evidence was such that reasonable minds could differ. Keeping in mind that the jury was in a position to judge the credibility of the witnesses, our review of the evidence leads us to conclude that a question of fact was created with regard to the issues of just cause and mitigation of damages. The trial court did not abuse its discretion in denying defendant’s motion for a new trial. On appeal, defendant also argues that a new trial should have been granted because of certain statements made by plaintiff’s counsel during closing arguments. However, defendant did not object to any of these statements. Appellate review is thus precluded unless the failure to do so would result in a miscarriage of justice. Upon careful review of the statements in context, we are persuaded that any prejudice defendant now perceives to have occurred could have been corrected by a timely objection and request for a curative instruction. See Reetz v Kinsman Marine Transit Co, 416 Mich 97, 100-103; 330 NW2d 638 (1982). B As for defendant’s request for remittitur, the trial court’s denial will be reversed only if an abuse of discretion has been shown. Palenkas v Beaumont Hosp, 432 Mich 527, 531; 443 NW2d 354 (1989); Wilson, supra, p 38. The trial court is not to decide whether the award "shocks the conscience,” but whether the jury’s award is supported by the evidence. Id.; MCR 2.611(E)(1). Our review of the record convinces us that the trial court did not abuse its discretion in denying remittitur. iv Finally, we find no abuse of discretion in the trial court’s decision to grant plaintiff’s motion to sever defendant’s counterclaims for trial. Jemaa v MacGregor Athletic Products, 151 Mich App 273, 278-279; 390 NW2d 180 (1986). Affirmed.

Ruth V. Kolodziej vs. Warren Smith & another. Hampden. October 9, 1991. March 16, 1992. Present: Liacos, C.J., Wilkins, Lynch, O’Connor, & Greaney, JJ. Practice, Civil, Directed verdict. Civil Rights, Availability of remedy, Termination of employment. Constitutional Law, Freedom of religion. Employment, Termination, Discrimination. Contract, Employment. Public Policy. Evidence that an employer required all of its management level employees to attend a week-long seminar that, while nondenominational, used references to Scriptural texts to reinforce and illustrate teachings in the resolution of conflicts in interpersonal relationships was insufficient as a matter of law to warrant recovery under G. L. c. 12. § 111, on a management employee’s claim that the employer interfered with her rights of religious freedom under the First Amendment to the United States Constitution and art. 2 of the Declaration of Rights of the Massachusetts Constitution. [219-221] A judge in a civil action correctly allowed an employer’s motion for a directed verdict on a claim by a management employee that week-long seminar for all management level employees was an unlawful discriminatory practice in violation of G. L. c. 15IB, § 4 (1A), where the employee provided no evidence that the employer’s condition for her continuing in her management-level position, attendance at the seminar, required her to miss any religious service or to compromise her faith. [221] There was no merit to an employee’s claim that she was entitled to damages because her employer terminated her at-will employment in violation of public policy, that is, she was fired because she refused to attend a “religion seminar,” where there was no evidence that attending the seminar inhibited her in the exercise of her religion, or that her employer fired her because of her religion. [221-222] In the circumstances, this court remanded a case to the trial judge solely ■ to give the plaintiff an opportunity to file a motion in the Superior Court to amend her complaint to assert a claim under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (1988). [222-223] Civil action commenced in the Superior Court Department on August 17, 1988. The case was tried before James P. Lynch, Jr., J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Raymond R. Randall (Deborah D. A. Jeffrey with him) for the plaintiff. Douglas R. Dagarin for the defendants. Steven J. Schwartz, for Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief. Robert G. Caprera, for Institute in Basic Life Principles, amicus curiae, submitted a brief. Electro-Term, Inc. O’Connor, J. At all relevant times, the defendant Warren Smith was the president and sole shareholder of the corporate defendant Electro-Term, Inc. The plaintiff asserts in her complaint that the defendants interfered with her rights of religious freedom guaranteed by the Federal and State Constitutions, entitling her to damages and other relief under G. L. c. 12, § 11I (1990 ed.). She seeks similar relief on the ground that the defendants made her retention of employment conditional on her forgoing the practice of her “creed or religion as required by that creed or religion” in violation of G. L. c. 151B, § 4 (1 A) (1990 ed.). Finally, the plaintiffs complaint alleges that she is entitled to damages because Electro-Term, Inc., terminated her at-will employment in. violation of public policy, that is, Electro-Term, Inc., fired or demoted her because she refused to attend a religion seminar. Other claims set forth in the complaint are not in issue in this appeal. The case was tried to a jury. At the close of the plaintiffs evidence, the defendants moved for directed verdicts. Recognizing “the wisdom, normally, of submitting cases to juries for their decision rather than directing verdicts at the close of the plaintiffs evidence or of all the evidence, as recommended by Soares v. Lakeville Baseball Camp, Inc., 369 Mass. 974 (1976) and its several progeny,” the judge nevertheless “was of the strong belief that the plaintiff clearly had failed to make out a case which warranted submission to the jury,” and therefore he allowed the motion for directed verdicts in its entirety. The plaintiff appealed to the Appeals Court and we transferred the case here on our own motion. We affirm the judgment entered in the Superior Court. In reviewing a directed verdict, we summarize the evidence in the light most favorable to the party having the burden of proof, who ordinarily, as here, is the plaintiff. Narine v. Powers, 400 Mass. 343, 344-345 (1987). The jury would have been warranted in finding the following facts. Electro-Term, Inc., manufactures and sells electrical connectors. Begun in 1976 by the defendant Smith, the company considers itself a “Christian company.” It espouses Christian principles and offers a weekly Bible reading session to employees at which attendance is voluntary. In 1988, when the plaintiff’s legal action was commenced, Electro-Term, Inc., employed approximately forty-one people. The plaintiff, a Roman Catholic, was initially hired as a temporary employee by the company in August, 1987. In October, 1987, she was hired permanently and promoted to the position of controller, a management position. At all times she was an employee at will. Smith considered it very beneficial for the company’s employees annually to attend a week-long seminar put on by the Institute in Basic Life Principles entitled “Institute in Basic Youth Conflicts.” Attendance was mandatory for management level employees. The seminar offered instruction in several areas including the resolution of conflicts in interpersonal relationships, dealing with anger, and responding to authority. The seminar was nondenominational, but it used references to Scriptural texts to reinforce and illustrate its teachings. On the first night, the 1988 seminar, which was held in Symphony Hall in Springfield, focused on the family and its relationship to “the church.” A workbook was distributed that referred to Biblical passages. The workbook was prefaced with an extensive list of passages, separated by topic headings, which those in attendance were encouraged to read at home. A representative sampling of topic headings is as follows: “Wisdom and Understanding,” “Discerning Levels of Conflict,” “Responding to Enemies,” “Basic Steps of Maturity,” “Acceptance of God’s Design,” “Abnormal Social Developments,” “Discerning God’s Guidance,” “Basic Structures of Authority — Family, Government, Church,” “Reverence,” “Gratefulness,” “Forgiveness,” “Basic Steps to Walk in God’s Spirit,” “Consequences of Sensual Material,” and “Consequences of Alcohol.” On the second night of the 1988 seminar, a videotape presentation centered on a woman’s proper place in the family. The plaintiff testified, “This whole thing was done by video cassette, a screen up on the auditorium stage. There was no person giving the seminar. You watched the video on a screen, and there was this great big triangle and there was a man up at the top and the wife underneath him and the family underneath that, and I kind of looked at that situation where the woman was — I was told the woman was under the man’s influence in the family, that she should follow everything that he says, that she should not concern herself with financial matters in the family, that was his area, that she made the home a pleasant place to be; that she made the home, that he financed the home, in essence.” Scriptural passages were offered in support of this concept and the workbook contained a diagram showing a man in a superior position to the woman in the family. The plaintiff further testified: “They were telling me that I was a second class citizen — my husband’s first class, I’m second class — and yet they are using the Bible to tell me that this is true, which I didn’t believe was true, they are telling me that I shouldn’t know anything about financial matters, and here I am supposedly the controller of Electro-Term and the president is supposed to be digesting what I tell him. It just — the whole thing bothered me terribly.” On Wednesday, the plaintiff told Smith that she would not attend the rest of the seminar. On the following day, she explained to Smith that it was personally offensive, “religious,” and not work-related. He told her that, if she did not attend the seminar, she could no longer be part of management. He offered her a position as bookkeeper. The plaintiff refused either to attend the seminar or to accept what she considered to be a demotion to the nonmanagement position of bookkeeper. The plaintiff left the company’s employ. For our purposes it makes no difference whether we consider the plaintiff as having been demoted or discharged for her refusal to attend the seminar. In either event, she was penalized. The Massachusetts Civil Rights Act, G. L. c. 12, § 11H (1990 ed.), authorizes the Attorney General to bring a civil action in the Superior Court “[w]henever 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 . . . .” Section 11I grants a private cause of action to any individual whose exercise or enjoyment of such rights has been interfered with, or attempted to be interfered with, as described in § 11H. Batchelder v. Allied Stores Corp., 393 Mass. 819, 821 (1985). The plaintiff contends that the defendants interfered with her rights of religious freedom under the First Amendment to the United States Constitution and under art. 2 of the Declaration of Rights of the Massachusetts Constitution. The First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” Article 2 provides in relevant part, “[N]o subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping GOD in the manner and season most agreeable to the dictates of his own conscience, or for his religious profession or sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship.” General Laws c. 12, §§ 11H and 11I, provide remedies for interference with civil rights either by the State or by private individuals. O’Connell v. Chasdi, 400 Mass. 686, 692 (1987). Bell v. Mazza, 394 Mass. 176, 181-182 (1985). Batchelder v. Allied Stores Corp., supra at 821, 822-823. The question we must answer is whether the evidence set forth above is sufficient to warrant a finding that either defendant or both defendants interfered with the plaintiffs Federal or State constitutional right to believe and profess the religious doctrine of her choice. This right includes the right to assemble, or abstain from assembling, with others to engage in religious activity, Employment Div., Dep’t of Human Resources of Or. v. Smith, 494 U.S. 872, 877-878 (1990), and it includes the right to refrain from professing a particular religious belief. Torcaso v. Watkins, 367 U.S. 488, 495 (1961). “Only beliefs rooted in religion are protected . . . .” Frazee v. Illinois Dep’t of Employment Sec., 489 U.S. 829, 833 (1989), quoting Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 713 (1981). “Purely secular views do not suffice.” Frazee, supra. However, in order for a belief to be a protected religious belief, it is not necessary that it be shared by an organized sect or church. Id. The plaintiff argues that the principle taught at the seminar, that Scripture says that husbands have authority superior to that of their wives within the family context, is a belief rooted in religion, as is her contrary belief. Frequently, as here, making a proper distinction between religious and secular beliefs is difficult. Nevertheless, we accept the plaintiff’s contention that these two contrary beliefs are religious beliefs. It follows that the plaintiff would have had a right to abstain from attendance at the seminar if, as a result of the advocacy of that belief, the seminar constituted a religious activity. We hold, however, that it did not. We have no doubt that an employer’s requirement of an employee’s attendance at devotional services at which prayer is offered would constitute unlawful compulsion to participate in religious activity. This would be true regardless of whether the employee was told she could ignore what was going on. Young v. Southwestern Sav. & Loan Ass’n, 509 F.2d 140 (5th Cir. 1975), and EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610 (9th Cir. 1988), cited by the plaintiff, stand for that proposition. However, the seminar at issue here was in no sense a devotional service despite the fact that it promoted Scriptural passages as support for the lessons it sought to promote. No case has come to our attention in which a court has held on facts comparable to the facts here that an employer has interfered with an employee’s religious freedom, and we are not willing to go that far. Surely, there is no evidence -in this case that would warrant a finding that the defendants have forced the plaintiff to alter her religious convictions or her profession of belief, or to give the appearance of supporting a particular tenet of religion. We conclude that the evidence was insufficient as a matter of law to warrant recovery under G. L. c. 12, § 11I, and that the judge correctly directed verdicts for the defendants on those claims. Next, the plaintiff argues that compulsory attendance at the seminar violated G. L. c. 151B, § 4 (1A), which makes it an “unlawful discriminatory practice for an employer to impose upon any individual as a condition of obtaining or retaining employment any terms or conditions, compliance with which would require such individual to violate, or forego the practice of, his creed or religion as required by that creed or religion .... The employee shall have the burden of proof as to the required practice of his creed or religion.” In Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 771 (1986), we observed that this “statute does not deal with the full panoply of religious beliefs, practices, preferences, and ideals,” but focuses instead on required religious practices. The plaintiff produced no evidence that the defendants’ condition for her continuing as controller, attendance at the seminar, required her to miss any religious service or to compromise her faith. There was no evidence that Roman Catholic dogma forbade her attendance at the seminar. The judge correctly allowed the motion for directed verdicts on the G. L. c. 151B, § 4 (1A), claim. We turn to the plaintiff’s claim that she was discharged or demoted in violation of public policy. As an employee at will the plaintiffs employment was subject to termination or modification at any time for any reason or no reason at all. Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 150 (1989). We have allowed exceptions to this general at-will employment rule in cases where employees have been, discharged for doing what the law requires, see Hobson v. McLean Hosp. Corp., 402 Mass. 413, 416 (1988), for performing important public deeds such as cooperating with law enforcement officials, see Flesner v. Technical Communications Corp., 410 Mass. 805, 811 (1991), and for refusing to commit unlawful acts, see DeRose v. Putnam Management Co., 398 Mass. 205, 209-210 (1986). Of course, it is a public policy of this State to allow free exercise of religion. The plaintiffs claim fails, however, because there was no evidence that attending the seminar inhibited her in the exercise of her religion, or that ElectroTerm, Inc., fired her because of her religion. A verdict for Electro-Term, Inc., was properly directed. It appears that before commencing this action the plaintiff had filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) and MCAD then filed that complaint with the Equal Employment Opportunity Commission as required for a plaintiff to bring a Title VII (Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. [1988]) action. See Lewis v. Area II Homecare for Senior Citizens, Inc., supra at 770 n.11, citing 2 A. Larson, Employment Discrimination § 48.31 (1985). Beyond the averment in her Superior Court complaint that she had filed a complaint with MCAD, the plaintiffs complaint did not set forth a specific count asserting a violation of Title VII. Apparently, this was because counsel believed that Title VII actions were required to be brought in a Federal court. See Bradshaw v. General Motors Corp., 805 F.2d 110, 112 (3d Cir. 1986); Jones v. Intermountain Power Project, 794 F.2d 546, 553 (10th Cir. 1986); Valenzuela v. Kraft, Inc., 739 F.2d 434, 436 (9th Cir. 1984). Subsequent to the bringing of this action, approximately one month before the trial, the United States Supreme Court held that State courts have jurisdiction to adjudicate Title VII claims. Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820, 825 (1990). We think that the plaintiff should have an opportunity to file a motion in the Superior Court to amend her complaint to assert a Title VII claim. We affirm the judgments entered below except that we remand this case solely to give the plaintiff an opportunity within thirty days of the issuance of the rescript of this court to move to amend her complaint as discussed above. So ordered.

HAMMOND v UNITED OF OAKLAND, INC Docket No. 121694. Submitted August 13, 1991, at Detroit. Decided March 2, 1992, at 9:05 A.M. John Hammond brought a wrongful discharge action in the Oakland Circuit Court against United of Oakland, Inc., and others. The court, Fred M. Mester, J., denied the defendants’ motion for summary disposition of claims of breach of contract, constructive discharge, and breach of a covenant of good faith and fair dealing. The defendants appealed by leave granted. The Court of Appeals held: 1. The trial court, in denying summary disposition of the claim of breach of contract, did not err in ruling that the plaintiff was not required to return the severance pay and the postemployment fringe benefits he received before bringing an action. Where an employee, upon leaving employment and in exchange for consideration, has released the employer from liability for claims arising out of the employment, the employee must return the consideration before commencing any action against the employer relating to the employment. In this case, because the severance pay and postemployment benefits received by the plaintiff were not paid as consideration for his release of the defendants from liability, the plaintiff did not have to return them in order to commence his action. 2. The trial court, in denying summary disposition of the claim of constructive discharge, did not err in ruling that there remains a genuine issue of material fact concerning whether the defendants deliberately made the plaintiffs working conditions so intolerable that he was forced into an involuntary resignation. 3. The court erred in denying summary disposition of the claim of breach of a covenant of good faith and fair dealing. A cause of action for breach of such a covenant has not been recognized in Michigan in cases involving termination of employment, regardless of whether the employment is terminable at will or only for just cause. Affirmed in part, reversed in part, and remanded for further proceedings. Alan R. Miller, P.C. (by Stephen B. Foley), for the plaintiff. Keywell & Rosenfeld (by Gary W. Klotz), for the defendants. Before: Jansen, P.J., and Sullivan and Marilyn Kelly, JJ. Marilyn Kelly, J. This is a wrongful discharge case between plaintiff, John Hammond, and his former employers, defendants United Cable Television of Oakland County and others. Defendants appeal by leave granted from a circuit court order granting in part and denying in part their motion for summary disposition. Defendants argue on appeal that plaintiff is precluded from bringing a breach of contract action, because he failed to tender back severance benefits he received upon resigning. They further contend that the trial court erred in finding a factual issue existed over whether plaintiff was constructively discharged. Lastly, defendants argue error in the court’s recognition of a cause of action for breach of a covenant of good faith and fair dealing. We affirm in part and reverse in part. i Plaintiff was employed by defendants from February, 1983 to April, 1986. At the time he left, plaintiff was manager of programming services. Plaintiff alleged that, when he was hired, Jim Anderson, defendants’ then-general manager, promised him that he would be a long-term employee; he would have a position with defendants as long as he did a good job. Plaintiff also alleged that defendants’ employee handbook established a policy under which he could be discharged only for just cause. In October, 1985, Anderson was replaced by a new general manager, John Gash. Gash dismissed several managers hired by Anderson. On April 20, 1986, after hearing rumors that Gash might fire him, plaintiff asked Gash if his job was secure. According to plaintiff, Gash assured him that, because his performance was good, he would not be discharged. However, the next day, Gash called plaintiff into his office and advised him that his position was being eliminated. Plaintiff alleged that Gash coerced him into signing a resignation document by "brandishing a knife.” Plaintiff further alleged that, after he resigned, his position was not eliminated; other individuals later served as manager of programming services. Plaintiff filed a complaint alleging multiple theories of liability including: breach of contract; breach of covenant of good faith and fair dealing; constructive discharge; discharge in violation of public policy; negligent discharge; fraud; and retaliatory discharge. The trial court granted defendants’ motion for summary disposition except for the claims of breach of contract, constructive discharge and breach of covenant of good faith and fair dealing. MCR 2.116(C)(8) and (10). With respect to the good faith and fair dealing theory, the court explained: [Although Defendant cites numerous cases holding that Michigan does not recognize such a cause of action, all those cases refer to at will employment. Thus, if Plaintiff can prove at trial that his employment was a just cause situation, he may also establish a breach of covenant of good faith and breach in the contract. On appeal, defendants argue that the trial court should have dismissed all of plaintiffs claims. Plaintiff has not filed a cross appeal, and therefore review of the decision regarding those claims which were dismissed is not before us. ii Defendants assert that plaintiffs breach of contract claim should have been dismissed; plaintiff failed to rescind his resignation by tendering back the severance pay and benefits he received as consideration. We disagree. If an employee, upon leaving a job, releases his employer from liability in exchange for consideration, he must tender back the consideration before suing the employer. Stefanac v Cranbrook Educational Community (After Remand), 435 Mich 155, 163; 458 NW2d 56 (1990); Leahan v Stroh Brewery Co, 420 Mich 108, 112; 359 NW2d 524 (1984). The employee must place the employer in the position it was in prior to the settlement. Stefanac, 164 (quoting Kirl v Zinner, 274 Mich 331, 334-335; 264 NW 391 [1936]). A plaintiff is not entitled to retain the benefit of an agreement and at the same time bring suit in contravention of it. Id., 177. For example, in Stefanac, the plaintiff signed a release stating that in exchange for two weeks’ severance pay, she would fully and forever release, acquit and discharge Cranbrook, its agents, servants and representatives of and from any and all claims, demands, actions and causes of action of. every kind, nature and description which Stefanac may have had, may now have or may hereafter have of any matter, cause, act or omission arising out of or in connection with Stefanac’s employment with and/ or resignation from Cranbrook. [Id., 160.] Since Stefanac did not tender back the severance pay prior to, or simultaneous with, the filing of her lawsuit, our Supreme Court held that her complaint was properly dismissed. Id., 176-178. The other cases on which defendants rely contained similar settlement agreements releasing the employer from liability. See, e.g., Leahan, supra, 111; Davis v Bronson Methodist Hosp, 159 Mich App 251; 406 NW2d 201 (1986). In the instant case, the document that plaintiff signed on his last day of work did not release defendants from liability. It simply provided that plaintiff was submitting his resignation and that he understood that he would receive two months’ severance pay plus extended insurance benefits. It stated: I, John Hammond, hereby submit my resignation from United Cable Television of Oakland County, effective immediately. I understand that I will receive two months severance pay. . . . Additionally, I understand that my insurance benefits will expire on June 30, 1986. Since there was no provision in the document releasing defendants from a potential lawsuit, there was no requirement that plaintiff tender back the severance pay before filing a lawsuit. Defendants do not contend that the money was paid in exchange for an agreement that plaintiff not sue. Therefore, defendants remain in the position they were in prior to the signing of the document. Stefanac, 164. Furthermore, plaintiff is not bringing an action in contravention of the document; he never agreed not to sue. Stefanac, 177. iii We also reject defendants’ contention that the trial court erred in finding that a genuine issue of fact remained over whether plaintiff was constructively discharged. A constructive discharge occurs when an employer deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation. Mourad v Auto Club Ins Ass’n, 186 Mich App 715, 721; 465 NW2d 395 (1991). In the instant case, plaintiff presented an affidavit stating that, at the time Gash fired him, Gash "was agitated and brandishing a knife and told me that I had no choice but to sign the [resignation] document.” He further alleged that his resignation was not voluntary. Viewing these allegations in the light most favorable to plaintiff, a juror could reasonably conclude that plaintiff was forced to resign. MCR 2.116(0(10); Farm Bureau Mutual Ins Co v Stark, 437 Mich 175, 184-185; 468 NW2d 498 (1991); Mourad, 721. At trial, defendants may introduce the resignation document and the fact that plaintiff received severance pay as evidence that he was not constructively discharged but rather resigned voluntarily. However, the fact that plaintiff received severance pay or that he never returned his severance pay does not, as a matter of law, defeat his constructive discharge claim. iv We turn next to defendants’ argument that plaintiff failed to state a claim for breach of the covenant of good faith and fair dealing. MCR 2.116(C)(8). Initially, we note that neither plaintiff nor defendants define this covenant. It has been said that the covenant of good faith and fair dealing is an implied promise contained in every contract "that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.” Fortune v National Cash Register Co, 373 Mass 96, 104; 364 NE2d 1251 (1977); see also Dumas v Auto Club Ins Ass’n, 437 Mich 521, 529, n 3; 473 NW2d 652 (1991), (concurring opinion by Boyle, J.) 554-555, n 14; (dissenting opinion by Levin, J.) (citing Fortune, supra); Aragon-Hass v Family Security Ins Services, Inc, 231 Cal App 3d 232, 237; 282 Cal Rptr 233 (1991); Foley v Interactive Data Corp, 47 Cal 3d 654; 254 Cal Rptr 211; 765 P2d 373 (1988); 2 Restatement Contracts, 2d, § 205, p 99. This Court has been unwilling to recognize a cause of action for breach of an implied covenant of good faith and fair dealing in cases involving at-will employment relationships. See Cockels v Int’l Business Expositions, Inc, 159 Mich App 30, 36-37; 406 NW2d 465 (1987), and cases cited therein. Moreover, contrary to the trial court’s holding, we have refused to recognize the cause of action in cases involving just cause employment relationships as well. Dahlman v Oakland University, 172 Mich App 502; 432 NW2d 304 (1988). Accordingly, to the extent that the trial court held that plaintiff properly stated a cause of action for breach of the covenant of good faith, we reverse. MCR 2.116(C) (8). Although Michigan has not recognized the covenant in the employment context, an employer’s attempt to injure an employee’s rights may be highly relevant in a standard breach of contract case. As suggested in the seminal case of Toussaint v Blue Cross & Blue Shield of Michigan, the promise to act in good faith may be encompassed by a just cause contract: Where the employee has secured a promise not to be discharged except for causé, he has contracted for more than the employer’s promise to act in good faith or not to be unreasonable. . . . In addition to deciding questions of fact and determining the employer’s true motive for discharge, the jury should, where such a promise was made, decide whether the reason for discharge amounts to good cause: Is it the kind of thing that justifies terminating the employment relationship? Does it demonstrate that the employee was no longer doing the job? If, in this case, it is established that a just cause employment contract existed, the jury will be required to determine what Gash’s true motive was in discharging plaintiff. If the jury determines that Gash was not acting in good faith when alleging that he was eliminating plaintiff’s position, plaintiff may be entitled to damages for breach of contract. Affirmed in part, reversed in part and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. 408 Mich 579, 623; 292 NW2d 880 (1980).

BIGGS v HILTON HOTEL CORPORATION Docket No. 131470. Submitted December 3, 1991, at Detroit. Decided February 20, 1992; approved for publication May 14, 1992, at 9:10 a.m. Raymond Biggs brought an action in the Wayne Circuit Court against the Hilton Hotel Corporation, alleging wrongful discharge and breach of a contract not to terminate his employment except for just cause. The court, John H. Hausner, J., granted summary disposition for the defendant, holding that the plaintiff had failed to plead an adequate factual basis to raise a genuine issue of material fact concerning whether his employment could be terminated only for just cause. The plaintiff appealed. The Court of Appeals held: The trial court correctly held that the pleadings failed to establish the plaintiff’s claim that his employment was permanent and terminable only for just cause. The mere publication by the defendant of a disciplinary policy in an employee manual does not create an employment relationship that can be terminated only for just cause. The employee manual specifically provided that it was not an employment contract. The oral statements made to the plaintiff at the time he was hired did not constitute an offer of permanent employment, but rather were mere expressions of the employer’s hope of a long successful employment relationship. Affirmed. Marilyn Kelly, J., concurring in the result only, stated that there was just cause to discharge the plaintiff and that there was no genuine issue of material fact to prevent summary disposition. Sommers, Schwartz, Silver & Schwartz, P.C. (by Joseph A. Golden and Lionel J. Postic), for the plaintiff. Seyfarth, Shaw, Fairweather & Geraldson (by John W. Powers, Kathleen M. Paravola and Jeffrey C. Kauffman), for the defendant. Before: Sawyer, P.J., and Gillis and Marilyn Kelly, JJ. Per Curiam. Plaintiff appeals from an order of the circuit court granting summary disposition in favor of defendant on plaintiff’s wrongful discharge claim. Summary disposition was granted pursuant to MCR 2.116(0(10) (no genuine issue of material fact). We affirm. Plaintiff was employed by defendant as the director of housekeeping of the Novi Hilton. Plaintiff began his employment on February 19, 1988, and was discharged approximately eight months later, apparently because of poor work performance. Plaintiff contends that the terms of his employment with defendant provided for termination only for "just cause” and that, pursuant to the provisions of an employee policy manual issued by defendant, the appropriate level of discipline would have been a verbal or written warning concerning plaintiff’s deficiencies in performance rather than termination. Defendant maintains that plaintiff was an at-will employee. We agree with the trial court that there is no genuine issue of material fact that plaintiff was other than an at-will employee. This case may be resolved by considering the Supreme Court’s recent decision in Rowe v Montgomery Ward & Co, Inc, 437 Mich 627; 473 NW2d 268 (1991). As the Court explained in Rowe, contracts for permanent employment are for an indefinite period of time and are presumptively construed to provide for employment at will. Id. at 636. The employee may overcome this presumption by proof of an express contract for a definite term or a provision forbidding discharge in the absence of just cause, or by proof that there was a promise implied in fact of employment security, such as employment for a particular period of time or to terminate only for just cause. Id. Plaintiffs reliance in this case on the disciplinary scheme established in the employment manual does not establish a promise of termination for just cause only. Nothing in the employment manual states that an employee would not be terminated except for one of the reasons listed in the disciplinary section. This is similar to the facts in Rowe, where the employment manual listed prohibited conduct that would result in dismissal but did not suggest that the enumerated conduct was the only basis for dismissal. The Court concluded that this was not evidence that would form a reasonable basis for finding a promise of job security. Id. at 645. Furthermore, the employment manual at issue explicitly stated that it was not an employment contract, but only a guideline of the policies and benefits provided by defendant. We do not find it to be of any moment that the manual may not have explicitly stated that employment was at-will and that termination was not limited to those instances where just cause is shown. As stated above, the presumption is that employment is at-will, and the proper inquiry is whether the employer, through its employment manual or otherwise, made representations or promises that termination would be only for just cause. No such representations were contained in this employment manual, and the manual did, in fact, explicitly state that it was not a contract but merely a guideline. The fact that defendant had established a disciplinary system for its employees and, apparently, obligated plaintiff to abide by that disciplinary system in dealing with his subordinates does not establish unequivocally plaintiffs position that he was a just-cause employee rather than an at-will employee. Certainly, it is not unreasonable to expect that an employer, particularly one such as defendant that employs a large number of individuals, would want a systematic method of dealing with its employees and would provide a consistent set of guidelines under which its managers would deal with subordinates. This does not mean that by doing so an employer establishes just-cause employment rather than at-will employment. The concept of at-will employment means not only that the employer, if it so chooses, may provide a disciplinary system and may terminate only for cause, but also that the employer may terminate for any other reason if the employer believes that that is in the best interests of the employer. Indeed, in this respect, we once again return to Rowe and note that even in Rowe the employer had created a disciplinary system for dealing with its employees, but the Supreme Court nevertheless concluded that the employee could not harbor any legitimate expectation of a policy of discharge for cause by the employer. Id. at 651. With respect to any oral representations made during the preemployment interview, we are also unpersuaded that any such representations form the basis for finding a just-cause contract in this case. Oral statements of job security must be clear and unequivocal to overcome the presumption of employment at will. Id. at 644. The oral statements related by plaintiff in his brief were comments made during preemployment interviews by the general manager to the effect that he saw plaintiff as a person who would go places with the Hilton Corporation and that he felt the relationship would be a good one in which there would be an opportunity to grow and maintain some type of long-term relationship. We fail to see how these comments could induce a belief by plaintiff that termination would be for just cause only. Rather, they merely reflect the general manager’s belief that plaintiff would be an appropriate person to hire and that he was optimistic about plaintiff’s future performance and ability to advance with the company. Certainly, one would not expect the general manager to hire as his director of housekeeping someone whom he expected to have poor job performance and to be terminated within a year. Id. at 640 (an orally grounded contractual obligation for permanent employment must be based on more than an expression of a hope for a long-term relationship). For the above reasons, we conclude that plaintiff has failed to bring forth any facts to support his claim that he was a just-cause employee and, therefore, the trial court properly granted summary disposition in favor of defendant. In light of this resolution, we need not consider plaintiff’s other argument, whether there was a question of material fact concerning whether defendant had just cause to discharge plaintiff. Affirmed. Defendant may tax costs. Marilyn Kelly, J. (concurring). I concur in the result only. The trial court should be affirmed on the basis that there was just cause to discharge plaintiff, and no genuine issue of material fact existed to prevent summary disposition.

Diane Cherella vs. Phoenix Technologies Ltd. No. 90-P-827. February 13, 1992. Anti-Discrimination Law, Termination of employment, Sex. Employment, Discrimination. Practice, Civil, Complaint, Summary judgment. Civil Rights, Termination of employment. Massachusetts Commission Against Discrimination. Limitations, Statute of. Contract, Employment. On its face, the plaintiff’s complaint of gender discrimination filed with the Massachusetts Commission Against Discrimination (MCAD) was late because it was brought in excess of six months after the alleged act of discrimination. See G. L. c. 151B, § 5. A subsequent action which the plaintiff initiated in Superior Court was dismissed on a motion for summary judgment of the defendant Phoenix Technologies Ltd. (Phoenix). Impliedly (he gave no reasons for his decision), the motion judge rejected the plaintiff’s contention that she was so impaired by a back ailment as to cause an equitable tolling of the statute of limitations which had otherwise run against her. We affirm. Resort to the courts is not available for a complaint of discrimination within the jurisdiction of the MCAD unless the person claiming to have been the object of unlawful discrimination first makes a timely complaint to that agency. Melley v. Gillette Corp., 19 Mass. App. Ct. 511, 512-513 (1985), S.C., 397 Mass. 1004 (1986). Sereni v. Star Sportswear Mfg. Corp., 24 Mass. App. Ct. 428, 430 (1987). The acts of discrimination alleged were a failure to promote the plaintiff to chief financial officer of Phoenix and her discharge from employment after she had ceased to work because of her back difficulty. Those events occurred in February, March, and April of 1987. The plaintiff filed the complaint with the MCAD on April 28, 1989, a bit more than two years after the asserted discriminatory acts. Obviously, the six-month limitation period of G. L. c. 15IB, § 5, had been greatly exceeded. That limitations period, however, is subject to equitable tolling. Christo v. Edward G. Boyle Ins. Agency, Inc., 402 Mass. 815, 817 (1988). For example, if the potential defendant encourages or cajoles the potential plaintiff into inaction, that conduct may be a basis of extending the limitations period as matter of equity. Id. at 817-819. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393-398 (1982), decided in connection with analogous Federal rights under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (1988). The ground offered for tolling the statute in the instant case is the plaintiff’s mental incapacity due to the extreme pain and physical disability brought on by her hurt back. Only back surgery in January, 1989, and consequent alleviation of pain, enabled the plaintiff to reflect on the circumstances of her having been passed over as chief financial officer of Phoenix and her subsequent discharge. Mental disability has been accepted — sparingly — as a ground for tolling a statute of limitations but then in circumstances where a person literally could not act, as when in a coma because of alleged malpractice. See, e.g., Clifford v. United States, 738 F.2d 977, 980 (8th Cir. 1984). See more generally Lopez v. Citibank, N.A., 808 F.2d 905, 906-907 (1st Cir. 1987). Mental disability of the sort which would cause the tolling of a statute of limitations is described in G. L. c. 260, § 7, as in effect at relevant times, as insanity, which we have defined for that purpose as “any mental condition which precludes the plaintiff’s understanding the nature or effects of his acts.” Hornig v. Hornig, 6 Mass. App. Ct. 109, 111 (1978), and cases there cited. See also Pederson v. Time, Inc., 404 Mass. 14, 16 (1989). In her complaint, the plaintiff alleges that she “experienced diminished mental capacity as a result of extreme pain.”. In an affidavit, she stated “[w]ith regard to the physical disability and chronic pain mentioned in my complaint, I have seen, and continue to see, a variety of medical professionals for treatment of my underlying back problem and chronic pain management.” Letters from three physicians who attended the plaintiff speak to her physical problems and discomfort; they do not mention or allude to consequential mental disability of any kind, let alone of a gravity which would preclude the plaintiff from understanding the nature or effects of her acts. Nothing offered by the plaintiff in opposition to the motion for summary judgment provided evidence of mental incapacity as the phrase is understood for tolling purposes. The plaintiff’s unsupported allegation to the contrary did not create a material dispute of fact. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711-715 (1991). Compare Boudreau v. Landry, 404 Mass. 528, 530 (1989). Of the other counts in the complaint, most are an attempt to bypass the procedures established in c. 15IB and fail on that ground. See Melley v. Gillette Corp., 19 Mass. App. Ct. at 514. We think the equal employment opportunity policy announced in an employee handbook issued by Phoenix in the fall of 1986 (the plaintiff had first been employed at Phoenix in June, 1985) did not establish contractual rights which would support an action for breach of contract. See Jackson v. Action for Boston Community Dev., Inc., 403 Mass. 8, 12-15 (1988); Menard v. First Sec. Serv. Corp., 848 F.2d 281, 289-290 (1st Cir. 1988). Compare Garrity v. Valley View Nursing Home, Inc., 10 Mass. App. Ct. 822 (1980). Elizabeth Shackford Reinhardt for the plaintiff. Joan A. Lukey for the defendant. Judgment affirmed. Phoenix had filed a motion to dismiss under Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), and a motion in the alternative, for summary judgment. As the judge accepted materials (affidavits) outside the complaint, the motion is treated as one for summary judgment. Taplin v. Chatham, 390 Mass. 1, 2 (1983). Davidson v. Commonwealth, 8 Mass. App. Ct. 541, 542 n.2 (1979).

PRYSAK v R L POLK COMPANY Docket No. 119770. Submitted May 7, 1991, at Detroit. Decided February 3, 1992, at 9:35 A.M. Daniel T. Prysak brought an action in the Wayne Circuit Court against the R. L. Polk Company, alleging breach of an employment contract and wrongful discharge, and Crestwood Dodge, Inc., alleging tortious interference with a contractual relationship and libel. Polk terminated the plaintiff’s employment after Crestwood informed it that the plaintiff had allegedly threatened to use information available to him through his employment to contact Chrysler Corporation customers to complain about his car and the service he had received from Crestwood unless Crestwood dropped a small claims matter it had brought against him. The court, Thomas J. Foley, J., granted the defendants’ motions for summary disposition. The plaintiff appealed. The Court of Appeals held: 1. Summary disposition of the claims against Polk was properly granted because no genuine issue of material fact existed regarding the existence of a contract providing for termination only for just cause. The plaintiff did not receive a clear and unequivocal promise of job security from Polk or receive an employee policy manual or information about the contents of the manual. The plaintiff therefore cannot claim an express agreement or legitimate expectation that he would be terminated only for just cause. 2. Because Polk, a private employer, is not bound by the constitutional provisions guaranteeing freedom of speech, the alleged termination of the plaintiff’s employment for exercising his constitutional right to free speech is not actionable under the public policy exception to employment at will. 3. The granting of summary disposition before Polk answered _interrogatories designed to provide the plaintiff with information regarding Polk’s policies or criteria regarding hiring and termination practices was not premature. The plaintiff admitted that he had no knowledge of the policies or criteria and, therefore, could not claim reliance thereon, and further discovery would not have provided a fair chance of uncovering factual support for the existence of a contract providing for termination only for just cause. References Am Jur 2d, Interference §§ 45, 47; Libel and Slander §§ 195-200, 484; Master and Servant §§ 20, 27, 48.7. Modern status of rule that employer may discharge at-will employee for any reason. 12 ALR4th 544. 4. Summary disposition of the claim of tortious interference with a contractual relationship against Crestwood was proper. Crestwood’s action was not wrongful conduct per se or lawful conduct that was done with malice, and there is no evidence that Crestwood intended to interfere with plaintiffs contractual relationship with Polk. 5. The trial court correctly determined that a letter Crest-wood sent to Polk was subject to a qualified privilege. Because the plaintiff does not allege that the letter was written with actual malice, he did not overcome the privilege. Summary disposition of the libel claim against Crestwood was proper. Affirmed. Michael J. Kelly, J., dissenting in part, stated that summary disposition for Crestwood was improper because a question of fact existed whether the plaintiff threatened to use Polk’s lists to communicate his grievance to Crestwood’s customers. 1. Master and Servant — Employment at Will — Termination of Employment — Termination for Cause. A contract for permanent employment is for an indefinite period of time and is presumed to provide employment at will; a contract providing for termination for only just cause may be created by an express agreement or as a result of an employee’s legitimate expectations grounded in the policy statements of the employer. 2. Master and Servant — Employment at Will — Oral Contracts. Oral statements of job security must be clear and unequivocal in order to overcome the presumption of employment at will. 3. Master and Servant — Employment at Will — Public Policy Exception — Free Speech — Private Employers. Although employment at will generally may be terminated at any time and for any reason, an exception exists where the grounds for termination are so contrary to public policy as to be actionable; the public policy exception does not apply where an employee at will of a private employer is terminated for exercising the constitutional right to free speech because the private employer is not bound by the constitutional provisions guaranteeing freedom of speech (US Const, Am I; Const 1963, art 1, § 3). 4. Motions and Orders — Summary Disposition. Summary disposition generally is premature if it is granted before discovery on a disputed issue is complete; it may be appropriate, however, if further discovery does not stand a fair chance of uncovering factual support for the position of the party opposing the motion. 5. Torts — Interference With Contractual Relationship. A plaintiff may maintain an action for tortious interference with a contract for employment at will. 6. Torts — Interference With Contractual Relationship — Wrongful Acts Per Se. A plaintiff who alleges tortious interference with a contractual or business relationship, in order to withstand a motion for summary disposition, must allege the intentional doing of an act that is wrongful per se or the doing of a lawful act with malice and unjustified in law for the purpose of invading the plaintiff’s contractual rights or business relationship; an act that is wrongful per se is an act that is inherently wrongful or an act that can never be justified under any circumstances. 7. Libel and Slander — Privilege — Questions of Law. The initial determination whether a privilege exists is one of law for the court. 8. Libel and Slander — Qualified Privilege — Malice. The essential elements of a qualified privilege 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 to proper parties only; a plaintiff may overcome a qualified privilege only by showing that the statement was made with actual malice. Poplar & Kalis, P.C. (by John Poplar and Anrico D. Pinto), for the plaintiff. Clark, Klein & Beaumont (by Fred W. Batten and Nancy J. Gordon), for R.L. Polk Company. Abbott, Nicholson, Quilter, Esshaki & Young- blood, P.C. (by Carl F. Jarboe), for Crestwood Dodge, Inc. Before: Reilly, P.J., and Gillis and Michael J. Kelly, JJ. Reilly, P.J. Plaintiff appeals as of right from circuit court orders granting defendants’ motions for summary disposition pursuant to MCR 2.116(C) (10). We affirm. Plaintiff was employed as a computer operator by defendant R. L. Polk Company (Polk), a publishing and market research company, from November 1985 to March 1988. Plaintiff was discharged from his job in March 1988 for allegedly threatening a customer, defendant Crestwood Dodge. Before his termination, plaintiff had experienced problems with his car and took it to Crestwood for repair. A dispute arose between plaintiff and Crestwood regarding the amount owed for use of a replacement car. Crestwood brought a small claims action to recover this amount. Plaintiff participated in mediation of the action with two representatives of Crestwood. During the course of the mediation, the mediator left the room so that the parties could resolve the matter between themselves. What happened when the mediator left is disputed by the parties. Plaintiff asserts that he told the Crestwood representatives that he would take a day off from work and stand out in front of the dealership to pass out letters indicating that his Dodge Shadow was a "lemon.” The Crestwood representatives asserted that plaintiff stated that he worked for Polk and that if the small claims matter was not dropped he would send letters stating that his car was a "lemon” to all of Chrysler’s customers. The representatives believed that the mailing was to be accomplished by using information available to plaintiff through his employment at Polk. Crestwood sent a letter informing Polk of plaintiffs alleged threat. In the letter, Crestwood expressed concern regarding the improper use of its customer lists and requested assurance from Polk that "Mr. Prysak’s stated plan does not come to fruition.” On the day his employment was terminated, plaintiff was called into the personnel office and was shown the letter. Plaintiff was informed that he was being discharged for threatening a customer. In his complaint, plaintiff alleged that he was employed pursuant to a contract providing for termination for just cause only that was breached by Polk when his employment was terminated. Plaintiff also claimed that his termination was against public policy and constituted an intentional infliction of emotional distress. Additionally, it was alleged that Crestwood had intentionally interfered with the contractual relationship between plaintiff and Polk and that Crestwood’s letter to Polk contained libelous statements regarding plaintiff. Both Polk and Crestwood brought motions for summary disposition pursuant to MCR 2.116(C) (10). The circuit court granted both motions. On appeal, plaintiff asserts that the trial court improperly granted defendants’ motions for summary disposition. A motion for summary disposition premised on MCR 2.116(C)(10) tests the factual support for a claim. The court must consider the pleadings, affidavits, depositions, and other documentary evidence available to it and grant summary disposition if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. A party opposing a motion brought under C(10) may not rest upon the mere allegations or denials in the pleadings, but must by affidavit, deposition, admission, or other documentary evidence set forth specific facts showing that there is a genuine issue for trial. MCR 2.116(G)(4). Panich v Iron Wood Products Corp, 179 Mich App 136, 139; 445 NW2d 795 (1989). This Court is liberal in finding a genuine issue of material fact. St Paul Fire & Marine Ins Co, v Quintana, 165 Mich App 719, 722; 419 NW2d 60 (1988). Nonetheless, where the opposing party fails to come forward with evidence, beyond the allegations or denials in the pleadings, to establish the existence of a material factual dispute, the motion is properly granted. SSC Associates v General Retirement System of the City of Detroit, 192 Mich App 360; 480 NW2d 275 (1991); Morganroth v Whitall, 161 Mich App 785, 788; 411 NW2d 859 (1987); MCR 2.116(G)(4). i Plaintiff first claims that summary disposition was improper in regard to his claims of breach of an employment contract and wrongful discharge because there was a genuine issue of material fact whether plaintiff was employed pursuant' to a contract providing for termination for just cause only. Plaintiff asserts that his claim of a just-cause contract is supported by the employee handbook issued by Polk and statements made to him by a supervisor at Polk. Generally, a contract for permanent employment is for an indefinite period of time and is presumed to provide for employment at will. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 596; 292 NW2d 880 (1980). However, a contract providing for termination for just cause only may be created by an express agreement or as a result of an employee’s legitimate expectations grounded in the policy statements of the employer. Id. at 598. An employee’s legitimate expectations may be based on the employer’s written policy statements set forth in an employee manual or handbook. Id. at 599. While plaintiff argues that the existence of Polk’s employee manual creates an issue of fact regarding the existence of a just-cause contract, he admits in his brief on appeal and in his deposition testimony that he does not recall ever receiving an employee policy manual. Nor does he claim that he was told of its contents. Therefore, we fail to see how plaintiff can assert that his interpretation or understanding of the manual or handbook gave rise to an expectation either subjective or objective, that he would be terminated only for just cause. Compare Stoken v J E T Electronics & Technology, Inc, 174 Mich App 457, 465; 436 NW2d 389 (1988). Accordingly, we reject plaintiff’s argument that statements made in Polk’s employee manual or handbook create an issue of fact regarding the existence of a just-cause contract. Plaintiff also asserts that oral representations made to him by an agent of Polk create a genuine issue of material fact in regard to the existence of a just-cause contract. In his deposition, plaintiff stated that he had a discussion with a manager at Polk regarding another employee who was not "working out.” Plaintiff testified that the manager told him "you just can’t go firing people for no reason . . . you got [sic] to have a reason.” In order to overcome the presumption of employment at will, oral statements of job security must be "clear and unequivocal.” Rowe v Montgomery Ward & Co, Inc, 437 Mich 627, 644; 473 NW2d 268 (1991). The Court in Rowe determined that oral statements made to the plaintiff at her initial interview that as long as she sold, she would have a job at Montgomery Ward did not clearly indicate an intent to form a contract to terminate only for cause. Id. at 645. It was noted by the Court that the statements made to Mrs. Rowe were similar to the statement considered in Toussaint, supra. However, the Court found lacking objective evidence that would permit a reasonable juror to find that a reasonable promisee would interpret the statements as a promise of termination for cause only. Rowe, supra at 643. In making this determination, the Court noted that the statement was not made in response to any inquiry by the plaintiff regarding job security or during the course of negotiating the terms of employment. The statement relied on by plaintiff in this case is not a "clear and unequivocal” promise of job security. Furthermore, the circumstances surrounding the statement do not provide objective evidence that a just-cause contract existed. The statement was not made in the context of negotiating plaintiff’s terms of employment or in response to inquiries regarding his job security. Rather, they were made during the course of a discussion regarding the job performance of another employee. Under these circumstances, a reasonable juror could not find that the statements made to plaintiff could be reasonably interpreted as a promise of termination for cause only. On the basis of the foregoing, we conclude that no issue of fact existed regarding the existence of a just-cause contract. Polk’s motion for summary disposition of the claims of wrongful termination and breach of contract was properly granted. ii Next, plaintiff argues that summary disposition was improper because facts existed to support his claim that the termination of his employment was contrary to public policy. Specifically, plaintiff claims that he was discharged for stating that he was going to exercise his constitutional right to free speech by standing in front of Crestwood Dodge and expressing his dissatisfaction with Crestwood’s product and service. Generally, at-will employment may be terminated at any time, for any reason. Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 694-695; 316 NW2d 710 (1982). However, there is an exception to the general rule based on the principle that some grounds for termination are so contrary to public policy as to be actionable. Id. at 695. These proscriptions have been found in explicit legislative statements that prohibit the discharge, discipline, or other adverse treatment of employees acting in accordance with a statutory right or duty. Id. at 695. See, e.g., MCL 37.2701; MSA 3.548(701) (Civil Rights Act), and MCL 15.362; MSA 17.428(2) (Whistleblowers’ Protection Act). Additionally, courts have implied a prohibition on retaliatory discharge where the reason for the discharge was the employee’s exercise of a statutory right, Sventko v Kroger Co, 69 Mich App 644; 245 NW2d 151 (1976) (employee discharged in retaliation for filing a workers’ compensation claim), or the employee’s refusal to violate a law. Trombetta v Detroit, T & I R Co, 81 Mich App 489; 265 NW2d 385 (1978). While this Court has recognized that it may be a violation of the First Amendment for a county employer to discipline or discharge an employee for engaging in certain types of speech, Pilarowski v Brown, 76 Mich App 666; 257 NW2d 211 (1977), plaintiff has not cited, and we have not found, any Michigan authority that addresses the issue whether an employee of a private employer who is terminated for exercising his constitutional right to free speech may maintain an action under the public policy exception to at-will employment. Both the United States and Michigan Constitutions guarantee the plaintiff’s right to free speech. However, unlike the statutory provisions that have provided the basis for the public policy exception in the above-noted cases, the federal and the Michigan constitutional provisions guaranteeing free speech do not extend to private conduct, but have been limited to protection against state action. US Const, Am I; Const 1963, art 1, § 3; Hudgens v NLRB, 424 US 507, 513; 96 S Ct 1029; 47 L Ed 2d 196 (1976); Woodland v Michigan Citizens Lobby, 423 Mich 188, 212; 378 NW2d 337 (1985). Because Polk is a private employer, it is not bound by the constitutional provisions guaranteeing freedom of speech. Accordingly, plaintiff has failed to state a claim upon which relief can be granted, MCR 2.116(C)(8), and summary disposition was properly granted with regard to the claim, albeit for the wrong reason. Griffey v Prestige Stamping, Inc, 189 Mich App 665, 669; 473 NW2d 790 (1991). hi Plaintiff’s next argument is that summary disposition was premature because it was granted before Polk answered interrogatories submitted by plaintiff. Plaintiff claims that the interrogatories were vital to discovery because they were designed to reveal Polk’s past employment and termination policies and practices. Generally, summary disposition granted before discovery on a disputed issue is complete is considered premature. Kassab v Michigan Basic Property Ins Ass’n, 185 Mich App 206, 216; 460 NW2d 300 (1990), lv gtd 439 Mich 864 (1991). However, summary disposition may be proper before discovery is complete where further discovery does not stand a fair chance of uncovering factual support for the position of the party opposing the motion. Id. In the present case, Polk’s motion for summary disposition was not granted prematurely. The motion was granted after the discovery period had expired. See MCR 2.301(A). Although plaintiff told the court at the time the motion was granted that Polk had not answered the interrogatories, our review of the lower court record shows that there is no indication that plaintiff ever filed a motion to compel Polk to respond to the interrogatories before or after the expiration of the period for discovery. Furthermore, summary disposition was appropriate because further discovery would not have provided a fair chance of uncovering factual support for plaintiff’s claim. Plaintiff claims that the answers to interrogatories would have provided him with information regarding Polk’s policies regarding hiring and termination practices. However, as was discussed previously, plaintiff’s claim that he had a just-cause employment contract was based on the oral representations made by a superior and the statements of policy made in the employee handbook. However, as we concluded previously, because plaintiff did not remember ever receiving the handbook and he does not claim he was informed of the contents of the handbook, he could not rely on any policy statements made therein. Furthermore, plaintiff stated in his deposition that he did not know Polk’s criteria for firing someone or even if Polk had such criteria. As

DR. ALVIS L. CORUM v. UNIVERSITY OF NORTH CAROLINA through its Board of Governors; C. D. SPANGLER, President of the UNIVERSITY OF NORTH CAROLINA in his official capacity; APPALACHIAN STATE UNIVERSITY; and JOHN THOMAS, Chancellor of Appalachian State University, and HARVEY DURHAM No. 163PA90 (Filed 31 January 1992) 1. Constitutional Law § 86 (NCI4th)— § 1983 claims —UNC, ASU and university officials — official capacities — damages claims barred Plaintiff was barred from seeking damages under 42 U.S.C. § 1983 from the University of North Carolina, Appalachian State University, the president of the University of North Carolina in his official capacity, and the chancellor and a vice chancellor of Appalachian State University in their official capacities because .neither a state nor its officials acting in their official capacities are “persons” under § 1983 when the remedy sought is monetary damages. Am Jur 2d, Civil Rights §§ 17, 264. Public institutions of higher learning as “persons” subject to suit under 42 USCS sec. 1983. 65 ALR Fed 490. 2. Constitutional Law § 86 (NCI4th) — § 1983 claims — UNC, ASU and university officials — official capacities — injunctive relief permissible Plaintiff could properly bring actions under 42 U.S.C. § 1983 for injunctive relief against UNC, ASU, and the individual defendants in their official capacities because state institutions or employees acting in their official capacities are “persons” reachable under § 1983 when sued for prospective equitable relief. Am Jur 2d, Civil Rights §§ 17, 264. Public institutions of higher learning as “persons” subject to suit under 42 USCS sec. 1983. 65 ALR Fed 490. 3. Constitutional Law § 86 (NCI4th)— § 1983 claims — official capacities — sovereign and qualified immunity inapplicable Sovereign immunity alleged under state law is not a permissible defense to § 1983 actions. Nor is the defense of qualified immunity available under § 1983 to one sued in his official capacity. Insofar as Truesdale v. University of North Carolina, 91 N.C. App. 186, 371 S.E.2d 503, states that § 1983 claims against state institutions are barred by the doctrine of sovereign immunity, it is overruled. Am Jur 2d, Constitutional Law §§ 283, 713, 717. 4. Constitutional Law § 86 |NCI4th)— § 1983 claims — individual capacities — damages—qualified immunity State government officials may be sued in their individual capacities for damages under 42 U.S.C. § 1983, but officials sued as individuals may raise a defense of qualified immunity. Am Jur 2d, Civil Rights §§ 268, 269. 5. Constitutional Law § 86 (NCI4th)— § 1983 claims — individual capacities — objective test for qualified immunity — motivation State officials sued for constitutional violations under 42 U.S.C. § 1983 will be protected from liability by qualified immunity where their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Where the existence of a constitutional violation depends on proof of motivation, proof of the official’s intent is required to determine whether the qualified immunity defense is appropriate. Am Jur 2d, Civil Rights §§ 268, 269. 6. Constitutional Law § 115 (NCI4th)— public official — free speech limitations A public employee’s right to free speech is limited by the government’s need to preserve efficient governmental functions. Furthermore, only speech on a matter of “public concern” is constitutionally protected, and in determining whether speech fits in this category, the court must examine the content, form and context of the public employee’s speech. Am Jur 2d, Constitutional Law §§ 496, 497. 7. Constitutional Law § 115 (NCI4th)— free speech — relocation of Appalachian Collection — matter of public concern Speech by plaintiff, the Dean of Learning Resources at ASU, concerning the relocation of the Appalachian Collection at ASU addressed a matter of public concern for free speech purposes. Am Jur 2d, Constitutional Law §§ 496, 497. 8. Constitutional Law § 115 (NCI4th)— relocation of Appalachian Collection — free speech right of plaintiff Plaintiff, the Dean of Learning Resources at ASU, had a constitutionally protected right to speak out in 1984 about a vice chancellor’s directive for relocation of the Appalachian Collection which would separate the artifacts from the written materials and to propose an alternate plan which would keep the entire Collection intact when it was moved, since such speech did not impede plaintiff’s duties or interfere with the regular operation of ASU; the speech did not affect the vice chancellor’s decision to relocate the Appalachian Collection and its danger to the organization was de minimus-, and plaintiff’s interest in speaking out on this public issue thus outweighed any negative effect it might have had on the efficient functioning of ASU. Am Jur 2d, Constitutional Law §§ 496, 497. 9.Constitutional Law § 115 (NCI4th)~ § 1983 claim —ASU vice chancellor — demotion of plaintiff — free speech — evidence of motive —summary judgment improper In plaintiff’s 42 U.S.C. § 1983 action against a vice chancellor of ASU in his individual capacity based on plaintiff’s claim that his right to free speech was violated when he was removed as Dean of Learning Resources of ASU because of statements he made at a staff meeting concérning the vice chancellor’s plan for relocation of the Appalachian Collection, plaintiff presented sufficient evidence of improper motive to raise a material question as to whether a reasonable vice chancellor would have believed that demoting plaintiff was lawful where the vice chancellor’s evidence indicates that his motive for demoting plaintiff was to promote discipline and efficient administration and to punish insubordination, but plaintiff presented specific evidence indicating that defendant’s motive was to stifle debate about where to relocate the Appalachian Collection, to carry out his decision to split the Collection quickly, and to punish plaintiff. Therefore, defendant vice chancellor’s motion for summary judgment based upon the defense of qualified immunity was properly denied by the trial judge. Am Jur 2d, Civil Rights §§ 19, 20. 10. Constitutional Law § 86 (NCI4th>- § 1983 claims-UNC, ASU and university officials — summary judgment proper Summary judgment should have been entered in favor of UNC, ASU, the president of UNC, and the chancellor of ASU on all of plaintiff’s 42 U.S.C. § 1983 claims based on his removal as the Dean of Learning Resources at ASU where plaintiff failed to present a forecast of evidence as to any improper action or motive by these defendants. Am Jur 2d, Civil Rights § 287. 11. Constitutional Law § 115 (NCI4th)— free speech violation by state official — direct claim under N.C. Constitution A plaintiff has a direct cause of action under the N.C. Constitution against state officials in their official capacities for alleged violations of plaintiff’s right of free speech, and the common law will provide the appropriate remedy for the adequate redress of a violation of that right. Therefore, plaintiff had a direct cause of action under the N.C. Constitution against a vice chancellor of ASU for an alleged violation of his free speech rights based on his removal as Dean of Learning Resources at ASU. Am Jur 2d, Civil Rights § 261; Constitutional Law § 496. 12. Constitutional Law § 115 (NCI4th); Courts § 3 (NCI4th)~ violation of free speech right — common law remedy — limitations on judiciary It will be a matter for the trial judge to craft the necessary relief for a violation of a plaintiff’s free speech right under the N.C. Constitution. When called upon to exercise its inherent constitutional power to fashion a common law remedy for a violation of a particular constitutional right, however, the judiciary must recognize two critical limitations: (1) it must bow to established claims and remedies where those provide an alternative to the extraordinary exercise of its inherent constitutional power, and (2) in exercising that power, it must minimize the encroachment upon other branches of government — in appearance and in fact — by seeking the least intrusive remedy available and necessary to right the wrong. Am Jur 2d, Constitutional Law § 316. 13. Constitutional Law § 115 (NCI4th); State § 4.2 |NCI3d)— free speech violation —sovereign immunity inapplicable The doctrine of sovereign immunity is inapplicable to a plaintiff’s claim for violation of his free speech rights or other rights protected by the Declaration of Rights of the N.C. Constitution. When there is a clash between these constitutional rights and judge-made sovereign immunity, the constitutional rights must prevail. Art. I, § 14 of the N.C. Constitution. Am Jur 2d, Civil Rights § 261; Constitutional Law § 496. 14. Constitutional Law § 115 (NCI4th)— free speech violation —no direct claim under N.C. Constitution against individual A plaintiff has no direct cause of action for monetary damages under the N.C. Constitution against persons sued in their individual capacities for violations of plaintiff’s free speech rights. Am Jur 2d, Civil Rights § 261; Constitutional Law § 496. 15. Constitutional Law § 115 (NCI4th) — free speech claims under N.C. Constitution —UNC, ASU and university officials — summary judgment proper Plaintiff failed to present a forecast of evidence sufficient to defeat the motion for summary judgment on behalf of UNC, ASU, the president of UNC, and the chancellor of ASU as to plaintiff’s claims under the N.C. Constitution for violation of his free speech rights based on his removal as Dean of Learning Resources at ASU. Am Jur 2d, Civil Rights § 261; Constitutional Law § 496. Justice WEBB dissents. On appeal and discretionary review of an opinion by the Court of Appeals, 97 N.C. App. 527, 389 S.E.2d 596 (1990), reversing an order entered 21 October 1988 by Gray, J., which denied defendants’ motion for summary judgment. Heard in the Supreme Court 11 February 1991. Ferguson, Stein, Watt, Wallas, Adkins & Gresham, P.A., by John W. Gresham, for plaintiff-appellant/appellee. Lacy H. Thornburg, Attorney General, by Thomas J. Ziko, Special Deputy Attorney General, and Laura E. Crumpler, Assistant Attorney General, for defendant-appellants/appellees. William G. Simpson, Jr., John Vail, Travis Payne, J. Michael McGuinness, for amicus curiae North Carolina Civil Liberties Union Legal Foundation; and M. Jackson Nichols, for amicus curiae North Carolina Association of Educators. MARTIN, Justice. For the reasons stated below, we reverse in part and affirm in part the decision of the Court of Appeals. Plaintiff filed this action on 20 February 1987 seeking injunctive relief and damages' for the defendants’ alleged retaliation against plaintiff for his exercise of certain free speech rights. Plaintiff’s claims were brought under the North Carolina Constitution Article I, Sections 14, 19, and 35 and 42 U.S.C. § 1983. After filing an answer containing defenses, which included sovereign immunity and qualified immunity, defendants moved for summary judgment. Defendants’ motion for summary judgment was denied on 21 October 1988. Defendants appealed the denial of their motion for summary judgment to the Court of Appeals. The Court of Appeals properly reasoned that a denial of a summary judgment motion is normally not immediately appealable; however, under the case of Mitchell v. Forsyth, 472 U.S. 511, 86 L. Ed. 2d 411 (1985), when a motion for summary judgment based on immunity defenses to a section 1983 claim is denied, such an interlocutory order is immediately appealable before final judgment. The Court of Appeals went on to hold that the trial court erred in denying defendants’ summary judgment motion with respect to plaintiff’s 42 U.S.C. § 1983 claims, except for the motion pertaining to plaintiff’s claims against individual defendants Spangler, Thomas, and Durham in their official capacities only for prospective injunctive relief. The Court of Appeals further held that the trial court erred in failing to grant defendants’ motion for summary judgment with respect to plaintiff’s claims brought under the State Constitution regarding the University of North Carolina, Appalachian State University, and the three individual defendants in their official capacities. The Court of Appeals also held that the defendants’ motion was properly denied insofar as it concerned plaintiff’s claims for monetary damages against the two individually named defendants for violation of plaintiff’s state constitutional rights. Viewing the record in the light most favorable to plaintiff, as we must when evaluating a summary judgment motion, the following facts arise upon the record. In early summer 1984, the plaintiff, a tenured faculty member at Appalachian State University, was the Dean of Learning Resources, a position he had held for approximately fourteen years. As Dean, Dr. Corum’s responsibilities included supervising Appalachian State University’s academic support units, including the library, the audiovisual services, and the Appalachian Collection. The Appalachian Collection, a diversified collection of books, research reports, music, and artifacts, represents the mountain culture of the Southern Appalachian Region. Until mid-summer 1984 the Appalachian Collection was housed in the Daughtery Library. Beginning in September 1983 and continuing for several months, various administrators at Appalachian State University (“ASU”) discussed the possibility of moving the Appalachian Collection out of the Daughtery Library into different facilities. The plaintiff’s chief concern regarding this move was that the Appalachian Collection remain intact so that the artifacts would not be split off from the books, manuscripts, and other materials. In the administrative chain of command at ASU the person responsible for deciding where the Appalachian Collection would be moved and whether it would be broken up was defendant, Dr. Harvey Durham. Dr. Durham was the Vice Chancellor for Academic Affairs and Dr. Corum’s immediate supervisor. In December 1983 Dr. Durham decided to split up the Collection and move the artifacts to University Hall, a building on the campus where the artifacts would form the basis of a new museum. The decision to split the artifacts off from the rest of the Collection was not communicated to Dr. Corum at this time; however, the decision was documented by a memorandum written at or near the time of the decision. On 21 June 1984 Dr. Durham informed Dr. Corum that the Appalachian Collection would be moved to University Hall and that the move would need to be completed within a two-week period. On that same day, Dr. Durham informed Dr. Corum that the relocation of the Collection also entailed removing the personnel and budget supporting the Collection from Dr. Corum’s purview to a new administrative home. While Dr. Corum expressed concern over this transfer, he accepted the decision as one which was workable because, in his understanding, it would at least maintain the physical integrity of the Collection. Dr. Durham did not inform Dr. Corum at this time that the artifacts would be separate from the rest of the Collection. Dr. Corum proceeded to set up a subsequent meeting with relevant administrators in order to work out the details of the moving of the Collection; the next meeting was scheduled for 25 June 1984. At the 25 June meeting, Dr. Corum met with Dr. Barker, ASU’s Librarian; Ms. Ball, the library staff member associated with the Appalachian Collection; and Dr. Clinton Parker, an Associate Vice Chancellor of Academic Affairs. Dr. Parker attended the meeting as Dr. Durham’s representative because Dr. Durham had gone out of town. At the outset of the meeting on 25 June, Dr. Parker announced to those assembled that the written materials in the Appalachian Collection would be moved to University Hall, while the artifacts would be stored in Belk Library. Dr. Corum later testified that he saw this announcement as a dramatic shift from the directions previously given to him by defendant Durham. The day after this meeting, plaintiff sought to present an alternative plan for the relocation of the Appalachian Collection, a plan that would keep the Collection secure and physically intact. Dr. Corum read aloud his proposal for an alternate location during a meeting held 26 June 1984 that was attended by Dr. Parker and Dr. William Strickland, Dean of Arts and Sciences at ASU. In the memorandum that he read to those assembled, Dr. Corum claimed that Dr. Durham’s decision to move the Collection to University Hall presented many problems. Dr. Corum proposed instead to move the Collection into Belk Library and intershelve the holdings with the regular university library. To this proposal Dr. Parker responded that he had no authority to change Dr. Durham’s decision. However, Dr. Parker volunteered to try to contact Dr. Durham to let him know of Dr. Corum’s concerns. Dr. Parker did contact Dr. Durham later in the evening regarding Dr. Corum’s concerns. There is a material issue of fact in dispute as to whether at the 26 June meeting Dr. Corum refused to implement the move as per Dr. Durham’s 21 June directive or whether he encouraged his staff to go ahead with the move. The defendants’ position is that Dr. Corum announced at the meeting that he would not go through with the move until he could talk to Dr. Durham. Dr. Corum’s account is that he did not resist the move and cooperated fully despite his misgivings about the decision. Dr. Corum actually physically helped in the packing and moving. When Dr. Parker called Dr. Durham after the 26 June meeting, Dr. Durham responded by immediately returning to ASU. Dr. Durham met at 6:30 a.m. on 27 June with defendant Dr. Thomas, the Chancellor of ASU. At 8:30 a.m. Dr. Durham met with Dr. Corum and informed him that he was being removed from his deanship. There is no evidence that Dr. Durham gave Dr. Corum an opportunity to explain his proposal or to comment on the events of the previous day. Chancellor Thomas subsequently affirmed Dr. Durham’s decision to remove Dr. Corum from his duties as Dean of Learning Resources. Dr. Corum has, however, retained his position as a tenured faculty member. Plaintiff contends that defendants discharged him from his deanship in retaliation for his speaking freely about the moving of the Appalachian Collection. Plaintiff contends that Dr. Durham’s concealment of the fact that the Collection was to be split was intended to make the move administratively easier by preventing vocal opposition to the decision. When this “ruse” was discovered and exposed by Dr. Corum in his speaking out, defendants improperly removed him in retaliation for his speech. Plaintiff seeks damages and, among other things, reinstatement as Dean of Learning Resources as a result of this impermissible retaliatory removal. It is defendants’ position that the sole reason Dr. Corum was removed from his deanship was because he refused to carry out the move, and this insubordination justified his demotion. Plaintiff filed a grievance proceeding with the University of North Carolina (“UNC”) which resulted in a decision that Dr. Corum had failed to prove that his removal from the deanship was impermissibly based on his exercise of his right to freedom of speech. After this proceeding was completed Dr. Corum filed the instant case on 20 February 1987. I. 42 U.S.C. § 1983 Claims Plaintiff’s complaint alleges: 24. In relieving plaintiff of his duties as Dean and in denying plaintiff salary increases in retaliation for plaintiff having exercised his First Amendment rights, defendants violated plaintiff’s rights protected by the First and Fourteenth Amendments of the Constitution of the United States. Such acts are in violation of 42 U.S.C. § 1983. Under 42 U.S.C. § 1983, plaintiff sought a preliminary and permanent injunction, additional equitable relief including reinstatem

MARK R. COMAN, Plaintiff-Appellant v. THOMAS MANUFACTURING COMPANY, INC., Defendant-Appellee No. 9122SC204 (Filed 7 January 1992) Evidence and Witnesses §§ 842, 1932 (NCI4th)— wrongful discharge-summaries from trip reports — additional information— inadmissible to show contents of reports In an action for damages for wrongful 'discharge from plaintiff’s at-will employment as a long distance truck driver where plaintiff alleged that he was discharged because he refused to violate federal law by driving in excess of federally mandated time periods, plaintiff’s purported summaries of trip reports were not admissible to explain the contents of the trip reports where the summaries also contained additional information as to hourly times of departure and arrival of the drivers which was not shown on the trip reports but was based on speculation by plaintiff. Nor were_ the summaries admissible as summaries of voluminous writings under N.C.G.S. § 8C-1, Rule 1006 since they do not accurately represent the underlying documents. Am Jur 2d, Evidence §§ 458, 470. APPEAL by plaintiff from judgment entered 4 September 1990 by Judge Joseph John in DAVIDSON County Superior Court. Heard in the Court of Appeals 2 December 1991. Larry L. Eubanks for plaintiff appellant. Constangy, Brooks & Smith, by W. R. Loftis, Jr. and Robin E. Shea, for defendant appellee. WALKER, Judge. Plaintiff Mark R. Coman brought this action against defendant Thomas Manufacturing Company, Inc. seeking damages for wrongful discharge from his at-will employment. On 25 January 1988, at the initial hearing on this matter, the trial court dismissed the action upon defendant’s Rule 12(b)(6) motion. The Supreme Court reversed the dismissal. See Coman v. Thomas Manufacturing Co., Inc., 325 N.C. 172, 381 S.E.2d 445 (1989). The Court’s decision recognized that a cause of action may lie against an employer for the discharge of an “at-will” employee when the employee is discharged because he refuses to commit some act in violation of the law. Accordingly, the case was remanded for trial to determine whether plaintiff was actually discharged for his refusal to violate federal law. After trial, a jury decided defendant was not discharged “for a wrongful purpose or reason.” Pursuant to the verdict, judgment was entered denying plaintiff any relief. Plaintiff appeals this judgment. Evidence presented at trial indicates plaintiff began working for defendant as a part-time employee in 1978. From 1984 until his discharge in 1987, he was employed as a long-distance truck driver, hauling goods for defendant between Thomasville, North Carolina and such distant points as Michigan. The driving operations of defendant are governed by regulations of the United States Department of Transportation (DOT). These regulations provide that a driver cannot drive for a longer period than a 10 hour shift followed by a rest period of at least 8 hours. Plaintiff alleged defendant required plaintiff and other drivers to operate their vehicles for periods longer than the regulations allow. According to plaintiff, when he informed defendant he would not drive in excess of the DOT mandated time periods, he was discharged. In support of his contention, plaintiff produced certain evidence in the form of documents. This evidence included: (1) a road atlas showing routes used by plaintiff and the other drivers; and (2) certain “trip reports” for the twelve weeks prior to plaintiff’s discharge. These trip reports were the business records of Hertz-Penske who leased the long-distance trucks to defendant. Defendant’s drivers were required to fill out a trip report for each round-trip journey they undertook. The information on these one page trip reports included the truck number, driver’s name, dates of the trip, mileage of the trip, destination (including date arrived), date returned home, and route taken on the trip. However, these trip reports did not include the time (hour) of departure and arrival. From these trip reports, plaintiff prepared certain “summaries” (Exhibits L-l through L-13). The trial court sustained defendant’s objection to these summaries. In preparing these summaries, plaintiff obtained certain information from the Hertz-Penske reports. In addition, the summaries also contained the “actual” hourly time of arrival and departure and the “legal” hourly time of arrival and departure. These times were not included in the information from the Hertz-Penske trip reports, but rather were reconstructed from plaintiff's memory. In Ray D. Lowder, Inc. v. North Carolina State Highway Commission, 26 N.C.App. 622, 217 S.E.2d 682, cert. denied, 288 N.C. 393, 218 S.E.2d 467 (1975), this Court was presented with a situation similar to the present controversy. In that case, plaintiff had been sent many damage reports over a long period of time. These reports related to injuries Lowder, Inc. had purportedly incurred in conducting its business. Plaintiff sought to introduce, as a business record, its own compilation of these damage reports. Our Court held the compilations inadmissible since they were: (1) not prepared in the regular course of business; (2) prepared for litigation; (3) not prepared contemporaneously with the events recorded in the damage reports; and (4) a product of the compiler’s personal judgment, discretion and memory after a lapse of four years. Id. at 650-651, 217 S.E.2d at 699-700. Plaintiff suggests that Lowder should not control this situation, but rather that the holding in State v. Rhodes, 202 N.C. 101, 161 S.E. 722 (1932), should control. In that case the Court held that parol evidence was admissible to explain the contents of a large number of documents. Thus, the person who makes the examination of the documents can properly testify as to the contents thereof, since the production of the documents and the privilege of cross-examination afford the opposing party ample protection. Id. at 104, 161 S.E. at 723. Rhodes does not address the situation presented in the present case, the accuracy of the summaries of the underlying materials. Plaintiff also contends the summaries are admissible as summaries of voluminous writings under Rule 1006, N.C. Rules of Evidence. This rule provides: The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court. The official comment to Rule 1006 states that North Carolina Rule 1006 is identical to Rule 1006 of the Federal Rules of Evidence. Under decisions of the federal courts, summaries are admissible if they are an accurate summarization of the underlying materials involved. Davis & Cox v. Summa Corp., 751 F.2d 1507, 1516 (9th Cir. 1985); Needham v. White Laboratories, Inc., 639 F.2d 394, 403 (7th Cir.), cert. denied, 454 U.S. 927, 70 L.Ed.2d 237 (1981); White Industries, Inc. v. Cessna Aircraft Co., 611 F. Supp. 1049, 1070 (D.C.Mo. 1985). However, a “summary” is properly excluded from evidence if it does not fairly represent the underlying document. Davis & Cox v. Summa Corp., supra; United States v. Drougas, 748 F.2d 8 (1st Cir. 1984). In particular, a “summary” should be excluded if the basis for the summary is a party’s unsupported speculation. United States v. Sorrentino, 726 F.2d 876 (1st Cir. 1984). Here, plaintiff could have properly summarized the Hertz-Penske trip reports which provided a lot of information on the travels of defendant’s long-distance truck drivers. However, since the summaries of these trip reports also contained additional information as to the hourly time of departure and arrival of the drivers, such information was based upon speculation by plaintiff and was not an accurate summarization of the underlying material. The trial court properly excluded the summaries, and in the trial of this case, we find . No error. Judges WELLS and LEWIS concur.

SYLVIA ADAIRE FOGL SALT v. APPLIED ANALYTICAL, INC. No. 915SC336 (Filed 17 December 1991) 1. Master and Servant § 10.2 (NCI3d)— employee discharge-violation of personnel manual —no breach of contract The trial court properly granted summary judgment for defendant employer on plaintiff’s claim for breach of her employment contract based on defendant’s failure to follow the disciplinary procedures outlined in its personnel manual when it terminated plaintiff’s employment where the evidence before the court showed that the personnel manual cannot be considered as part of plaintiff’s contract of employment. Am Jur 2d, Master and Servant §§ 48.3, 48.5. Right to discharge allegedly “at-will” employee as affected by employer’s promulgation of employment policies as to discharge. 33 ALR4th 120. 2. Master and Servant § 10.2 (NCI3d)— employment handbook — no unilateral contract An employment handbook does not constitute a unilateral contract which will give rise to a breach of contract action. Am Jur 2d, Master and Servant §§ 48.3, 48.5. Right to discharge allegedly “at-will” employee as affected by employer’s promulgation of employment policies as to discharge. 33 ALR4th 120. 3. Master and Servant § 10.2 (NCI3d)— wrongful discharge — no additional consideration — employment at will applicable Plaintiff did not contribute additional consideration which would remove her employment from the scope of the employment at will doctrine where she failed to show that her move from Greenville to accept employment by defendant in Wilmington was induced by assurances concerning the duration of her employment or the discharge policies of defendant employer. Am Jur 2d, Master and Servant §§ 32, 33. 4. Master and Servant § 10.2 (NCI3d)— wrongful discharge — bad faith — insufficient allegations Plaintiff’s allegations that defendant breached its covenant of good faith and fair dealing by disregarding its promise of a permanent job and by giving third parties false reasons for discharging plaintiff were insufficient to sustain a claim for wrongful discharge. Am Jur 2d, Master and Servant § 43. Modern status of rule that employer may discharge at-will employee for any reason. 12 ALR4th 544. 5. Master and Servant § 10.2 (NCI3d)— wrongful discharge — bad faith — necessity for public policy violation There is no independent tort action for wrongful discharge of an at-will employee based solely on allegations of discharge in bad faith in the absence of a public policy violation. Furthermore, even if prior decisions created a wrongful discharge action based solely on bad faith in failing to follow personnel manual procedures, plaintiff has no cause of action against defendant because the policy manual given to her was not made an express part of her contract or made otherwise applicable to her, and her termination was not governed by the policy manual. Am Jur 2d, Master and Servant §§ 48.3, 48.5, 48.7. Modern status of rule that employer may discharge at-will employee for any reason. 12 ALR4th 544. APPEAL by plaintiff from Order entered 22 January 1991 by Judge Herbert 0. Phillips, III, in NEW HANOVER County Superior Court. Heard in the Court of Appeals in Wilmington on 17 October 1991. Patterson, Harkavy, Lawrence, Van Noppen & Okun, by Martha A. Geer, for plaintiff appellant. Stevens, McGhee, Morgan, Lennon & O’Quinn, by Robert A. O’Quinn, for defendant appellee. COZORT, Judge. Plaintiff employee brought an action for breach of employment contract and for wrongful discharge allegedly based on breach of implied covenant of good faith and fair dealing. The trial court granted summary judgment for defendant employer. We affirm. The depositions and other materials in the record demonstrate that, in 1985, plaintiff was employed at Burroughs Wellcome Company in Greenville, North Carolina, as a chemist testing pharmaceutical products. She held 11V2 years of seniority, earned $22,000 a year, and received many company benefits. An employee of the defendant, Applied Analytical, Inc. (“AAI”), approached plaintiff about taking a chemist’s position with AAI at a salary of $17,500-$18,500 per year. She declined the initial offers, but following negotiations, plaintiff accepted a position with defendant. One of the main topics discussed during the negotiations was plaintiff’s need for job security. She informed defendant that if the job with AAI turned out to be unsatisfactory for either party, she would be unable to return to her job at Burroughs Wellcome, or any other pharmaceutical company, because she did not hold a four-year degree in chemistry. In response, the general manager at AAI discussed career growth with plaintiff and talked of plaintiff’s future with the company in general terms. The letter from AAI’s general manager confirming defendant’s offer of employment stated: This letter is to confirm in writing my verbal offer to you of a Chemist position at Applied Analytical Industries, with an initial annual salary of $17,500.00. All of us at AAI are impressed with your qualifications and believe you can make significant contributions to our company. We hope you will accept our offer and believe you will find the position challenging and rewarding. As I indicated today during our telephone conversation, I believe the position which we are offering you will allow opportunities for your continued career growth in new areas involving method development for pharmaceutical dosage forms and bioanalytical assays for drugs in biological fluids. We would appreciate a response to our offer by April 8, 1985. Plaintiff accepted defendant’s offer and moved to Wilmington, North Carolina, where she began working for defendant in August 1985. In January, 1986, defendant granted plaintiff early tenure in the company, increased her salary by $2,000.00, and made her eligible for profit-sharing and a bonus. Plaintiff received positive evaluations from AAI supervisors after six months of employment, and again after one year with the company. On 14 November 1986, AAI’s president, Frederick Sancilio, called plaintiff into his office and presented her with a letter of termination. The letter stated plaintiff was being discharged for low productivity and for bothering other employees. Plaintiff adamantly protested the grounds for termination, reluctantly signed the letter, packed her personal belongings, and left the same day. Plaintiff filed a complaint against defendant on 9 November 1988, alleging a claim for breach of contract. On 26 July 1989, the North Carolina Supreme Court handed down its decision in Coman v. Thomas Mfg. Co., Inc., 325 N.C. 172, 381 S.E.2d 445 (1989). Based on the Coman decision, plaintiff moved to amend her complaint on 7 September 1989 to include a tort claim for breach of implied covenant of good faith and fair dealing. Defendant’s responsive pleadings included a motion for summary judgment. The trial court granted summary judgment for defendant on 18 January 1991, and plaintiff filed timely notice of appeal. The question before the Court when reviewing a summary judgment motion is whether 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 a material fact and that a party is entitled to judgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c) (1990); Meadows v. Cigar Supply Co., 91 N.C. App. 404, 371 S.E.2d 765 (1988). We consider first whether the trial court properly granted summary judgment on plaintiff’s breach of contract claim. It is clear in North Carolina that, in the absence of an employment contract for a definite period, both employer and employee are generally free to terminate their association at any time and without any reason. Still v. Lance, 279 N.C. 254, 182 S.E.2d 403 (1971). This Court has held, however, that in some circumstances employee manuals setting forth reasons and procedures for termination may become part of the employment contract even where an express contract is nonexistent. Walker v. Westinghouse Electric Corp., 77 N.C. App. 253, 335 S.E.2d 79 (1985), disc. review denied, 315 N.C. 597, 341 S.E.2d 39 (1986). Plaintiff argues initially that defendant’s personnel manual constituted part of her employment contract. She contends the contract was breached because defendant failed to follow the disciplinary procedure outlined in the manual. In her deposition, plaintiff testified she was given a copy of AAI’s personnel manual on or about her first day of work at the company. Each employee, including plaintiff, was required to sign a statement verifying the receipt of the manual. Employees were also required to sign periodic verifications acknowledging they had read revisions to the manual. According to the defendant’s manual, employees were classified as either “probationary” or “tenured.” An employee would be classified as probationary for the first six months of satisfactory performance. The employee then is classified as a tenured employee. The manual made no specific reference to “employment at-will.” The section of the manual describing disciplinary procedures provided: “[T]he Company reserves the right, with or without guideline notification to: Terminate an employee at any time. Suspend from work any employee . . . [or] [r]eturn to probationary status from tenured status any employee . . . .” These rights were reserved for a “severe violation” of standards or rules by a “permanent” or “tenured” employee. The handbook’s illustrations of “severe violations” included, but were not limited to: “blatant safety rule violations which endanger the health and safety of the employee and/or his fellow workers, falsification of Company records or data, misappropriation or misuse of Corporate assets, soliciting or engaging in outside activities of any kind or for any purposes on Company property at any time.” For non-severe violations committed by a “tenured” employee, the manual provided for a verbal warning upon the first violation and written notices for the second and third violations. A tenured employee would be terminated after a fourth non-severe violation. Plaintiff contends she never received a verbal or written notice prior to termination, in violation of the prescribed disciplinary procedure. It is clear that “unilaterally promulgated employment manuals or policies do not become part of the employment contract unless expressly included in it.” Walker, 77 N.C. App. at 259, 335 S.E.2d at 83-84. In Rosby v. General Baptist State Convention, 91 N.C. App. 77, 370 S.E.2d 605, disc. review denied, 323 N.C. 626, 374 S.E.2d 590 (1988), this Court found no breach of contract by an employer when the employer’s personnel policies were not incorporated into the oral contract for employment. The plaintiff received the employment manual when he was hired, and was told it would be his “work bible.” The manual included a salary scale, conditions of employment, expected conduct of employer and the employee, and procedures to be followed for disciplinary actions. Id. at 81, 370 S.E.2d at 608. The Rosby court stated: While we are sensitive to the “strong equitable and social policy reasons militating against allowing employers to promulgate for their employees potentially misleading personnel manuals while reserving the right to deviate from them at their own caprice” as enunciated in Westinghouse, supra, at 259, 335 S.E.2d at 83 (1985), we find that in the case sub judice, the material contained within the manual was neither inflexible nor all-inclusive on the issue of termination procedures. The manual, although presented as plaintiff’s “work bible” when he was hired, was not expressly included within his terminable-at-will contract. Id. In contrast, in Trought v. Richardson, 78 N.C. App. 758, 338 S.E.2d 617, disc. review denied, 316 N.C. 557, 344 S.E.2d 18 (1986), this Court held that plaintiff stated a claim for breach of contract based on her allegation that the employer’s policy manual was part of her employment contract. There the plaintiff was required to sign a statement indicating she had read the defendant’s policy manual which provided she could be discharged “for cause” only and which stated that certain procedures must be followed in order for her to be discharged. Id. at 760, 338 S.E.2d at 618. The plaintiff alleged she was discharged without cause and without the benefit of the personnel manual procedures. Id. The Court concluded that “on hearing on a Rule 12(b)(6) motion the plaintiff has sufficiently alleged that the policy manual was a part of her employment contract which was breached by her discharge to survive her motion.” Id. at 762, 338 S.E.2d at 620. In Harris v. Duke Power Co., 319 N.C. 627, 356 S.E.2d 357 (1987), the North Carolina Supreme Court limited the rule in Trought to those specific facts. The plaintiff in Harris contended that his employment manual was part of his contract for employment with defendant and that he was entitled to recover for breach of contract when he was discharged in violation of the manual’s provisions. Id. at 630, 356 S.E.2d at 358. The Court distinguished Trought, finding that Harris had not been told that he could be discharged only “for cause.” Id. The Court also noted that the employment manual in Harris provided rules of conduct which were directed specifically toward management and not targeted at employees. Id. It is clear from the evidence below that the handbook given plaintiff by defendant cannot be considered part of her original contract. As a result, plaintiff’s breach of contract claim based on this theory must fail. Plaintiff next argues that the employment handbook was an independent unilateral contract made by defendant to her. She argues she is entitled to recover for defendant’s breach of that unilateral contract. We disagree. North Carolina has recognized a unilateral contract theory with respect to certain benefits relating to employment. In Brooks v. Carolina Telephone, 56 N.C. App. 801, 290 S.E.2d 370 (1982), the Court found severance payments part of a unilateral contract. In Welsh v. Northern Telecom, Inc. 85 N.C. App. 281, 354 S.E.2d 746, disc. review denied, 320 N.C. 638, 360 S.E.2d 107 (1987), the court acknowledged vacation and retirement benefits. In White v. Hugh Chatham Memorial Hosp. Inc., 97 N.C. App. 130, 387 S.E.2d 80, disc. review denied, 326 N.C. 601, 393 S.E.2d 890 (1990), the Court accepted disability payments. However, in Rucker v. First Union Nat’l Bank, 98 N.C. App. 100, 389 S.E.2d 622, disc, review■ denied, 326 N.C. 801, 393 S.E.2d 899 (1990), the Court declared, “We decline to apply a unilateral contract analysis to the issue of wrongful discharge. . . . [T]o apply a unilateral contract analysis to the situation before us would, in effect, require us to abandon the ‘at-will’ doctrine which is the law in this State. This we cannot do.” Id. at 103, 389 S.E.2d at 625. We find Rucker to be dispositive in this case. Plaintiff next alleges she contributed additional consideration which would remove the contract from the scope of the employment at-will doctrine. In Sides v. Duke University, 74 N.C. App. 331, 328 S.E.2d 818, disc. review denied, 314 N.C. 331, 335 S.E.2d 13 (1985), this Court carved out a significant exception from the employment at-will rule. There the plaintiff did not have an employment contract and thus was employed at-will. The plaintiff’s complaint alleged that she was assured by Duke she could be discharged only for “incompetence,” and these assurances induced her to move from Michigan to accept a job in Durham. Id. at 333, 328 S.E.2d at 821. The Court stated: Generally, employment contracts that attempt to provide for permanent employment, or “employment for life,” are terminable at will by either party. Where the employee gives some special consideration in addition to his services, such as relinquishing a claim for personal injuries against the employer, removing his residence from one place to another in order to accept employment, or assisting in breaking a strike, such a contract may be enforced. (Emphasis added.) Id. at 345, 328 S.E.2d at 828 (quoting Burkhimer v. Gealy, 39 N.C. App. 450, 454, 250 S.E.2d 678, 682, disc. review denied, 297 N.C. 298, 254 S.E.2d 918 (1979)). The Court then determined: The additional consideration that the complaint alleges, her move from Michigan, was sufficient, we believe, to remove plaintiff’s employment contract from the terminable-at-will rule and allow her to state a claim for breach of contract since it is also alleged that her discharge was for a reason other than the unsatisfactory performance of her duties. Id. We find the facts below distinguishable from Sides. In Sides, the defendant assured the plaintiff “both at her job interview and again when the job was offered to her that nurse anesthetists at [the hospital] could only be discharged for incompetence.” Id. at 333, 328 S.E.2d at 821. In the case at bar, the plaintiff cannot point to any specific assurances given to her which compare to the assurances given to the plaintiff in Sides that she would not be discharged except for “incompetence.” The assurances upon which plaintiff here bases her breach of contract theory do not contain any specific terms or conditions, as in Sides. Plaintiffs deposition reveals: Q. When you had your discussions with [the general manager], did you tell him that you would not take the job unless you understood that you had a permanent position there? A. Not in those particular words, but— Q. What did you tell him? A. —I feel like we established the fact that if I were leaving my job at Burroughs Wellcome then I was going into a job — well, he told me he felt like I could have some career growth there, that there were things that they wanted me to do in the future as far as their microbiology lab and at the time it didn’t exist but they wanted me to help them with the microbiology lab. And, we just talked about things that were far into the future that I couldn’t just go to work there and just do. And, he felt like I had a chance for some real career growth there and, you know, that it was for a permanent job. Furthermore, a reading of defendant’s letter confirming plaintiff’s employment indicates no assurances concerning the duration of plaintiff’s employment or relating to the discharge policies of the company. The letter’s reference to “continued career growth” does not suffice. Plaintiff can show no more than an offer of employment for an undetermined time. The trial court’s entry of summary judgment on plaintiff’s breach of contract claim was properly granted. We now turn to the claims plaintiff raised by the amendment to her complaint. Plaintiff asserts a claim against defendant for breach of implied covenant of good faith and fair dealing implicit in her employment contract. Plaintiff contends that defendant breached its implied covenant of good faith and fair dealing by discharging plaintiff in violation of defendant’s personnel policy, by breaching defendant’s assurance of permanent employment and by communicating to third parties false reasons for discharging plaintiff. We conclude the trial court properly granted summary judgment on this claim. In Coman v. Thomas Mfg. Co., Inc., 325 N.C. 172, 381 S.E.2d 445 (1989), the North Carolina Supreme Court created an exception to the employment at-will doctrine by authorizing a tort claim for wrongful discharge for an at-will employee whose discharge is in violation of a public policy. The Court specifically approved language from Sides v. Duke University, 74 N.C. App. 331, 328 S.E.2d 818, disc. review denied, 314 N.C. 331, 335 S.E.2d 13 (1985). The Court, quoting Sides, 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 int

DUDEWICZ v NORRIS SCHMID, INC Docket No. 126212. Submitted June 5, 1991, at Lansing. Decided December 16, 1991, at 9:35 a.m. Leave to appeal sought. Michael L. Dudewicz brought an action in the Saginaw Circuit Court against his former employer Norris Schmid, Inc., for wrongful discharge, alleging that he had been discharged because he had refused to drop criminal assault charges against a fellow employee and that his discharge for that reason was contrary to public policy and violative of the provisions of the Whistleblowers’ Protection Act. The trial court, Robert S. Gilbert, J., granted the defendant’s motion for summary disposition with respect to the public policy count, finding that the public policy exception to the right to fire an employee at will was not applicable to the facts of the case. Following the close of the plaintiff’s proofs, the court granted the defendant’s motion for a directed verdict, holding that the Whistleblowers’ Protection Act was not applicable. The plaintiff appealed. The Court of Appeals held: 1. The right to bring a criminal complaint against a fellow employee is the type of protected right necessary to invoke the public policy exception to the right of an employer to discharge an employee at will. The trial court erred in granting summary disposition for the defendant with respect to the public policy count. 2. The Whistleblowers’ Protection Act is applicable in situations where an employee reports to a law enforcement agency the criminal act of a fellow employee; it is not limited merely to situations where an employee reports a violation of a law or regulation by the employer. The trial court erred in granting the motion for a directed verdict with respect to the count based on the Whistleblowers’ Protection Act. Reversed. 1. Master and Servant — Wrongful Discharge — Public Policy. The discharge of an employee at will because of the employee’s filing of a criminal complaint against a fellow employee or refusal to withdraw such a charge is an act that is contrary to public policy and is sufficient to establish a prima facie claim of wrongful discharge. References Am Jur 2d, Master and Servant § 48.5. Modern status of rule that employer may discharge at-will employee for any reason. 12 ALR4th 544. 2. Master and Servant — Whistleblowers’ Protection Act. The discharge of an employee at will because of the employee’s filing of a criminal complaint against a fellow employee constitutes a violation of the prohibition of the Whistleblowers’ Protection Act of termination for reporting to any public body a violation of any law or regulation; the provisions of the act are not limited to situations in which an employee reports ,a violation of a law or regulation by the employer (MCL 15.361 et seq.; MSA 17.428[1] et seq.). Jensen, Smith & Clark, P.C. (by Peter C. Jensen), for the plaintiff. Smith & Brooker, P.C. (by Robert A. Jarema), for the defendant. Before: Cavanagh, P.J., and Holbrook, Jr., and Cynar, JJ. Former Court of Appeals judge, sitting on the Court of Appeals by assignment. Holbrook, Jr., J. In this wrongful-discharge case, plaintiff sought to be reinstated to his former position and to receive full back wages, including monthly bonuses, and attorney fees. On December 18, 1989, defendant’s motion for partial summary disposition was granted with respect to the count that claimed plaintiff’s discharge violated public policy. The parties then went to trial on plaintiff’s claim that his discharge violated the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq. Following the close of plaintiff’s proofs, the trial court granted defendant’s motion for a directed verdict. The order granting this motion was entered January 5, 1990. Plaintiff now appeals as of right. We reverse._ Plaintiff was employed as a parts manager for defendant, an automobile dealership. Plaintiff testified that on November 4, 1987, he was manhandled when another employee, the service manager, reached over the counter and grabbed plaintiff by his shirt collar, breaking a gold chain and several buttons on plaintiff’s shirt. That day, plaintiff informed defendant’s new car sales manager about the incident. Plaintiff also filed criminal charges against the service manager with the Midland County Prosecutor, alleging assault and battery. Plaintiff testified that on December 1, 1987, he was called to the office of Sam Norris, owner of defendant, and was told by Mr. Norris to drop the charges or be fired. Plaintiff was also told to leave the premises. Plaintiff left the premises believing that he had been fired but could regain his job if he decided to drop the charges against the service manager. Plaintiff then contacted an attorney, who told him to return to work. Plaintiff did so on December 3, 1987, but was told by Mr. Norris that he had quit and had to leave the premises or the police would be called. Plaintiff told Mr. Norris he had not quit and would leave only if given a statement of termination. The police were then called, and plaintiff was escorted from the premises. Plaintiff first argues that it is a violation of public policy for an employer to fire an employee who files a criminal charge against a supervisor for an assault that occurred during the course of employment. We agree. A motion for summary disposition under MCR 2.116(C)(8) should be reviewed to determine whether the claim is so clearly unenforceable that as a matter of law no factual development could possibly justify a right of recovery. Scameheorn v Bucks, 167 Mich App 302, 306; 421 NW2d 918 (1988). The day before trial, the trial court granted defendant’s motion for partial summary disposition. A colloquy between the court and plaintiffs counsel indicates that plaintiffs attorney believed that the trial court was dismissing the "public policy” count on the basis that the Whistleblowers’ Protection Act provided the exclusive remedy. Plaintiffs counsel moved for reconsideration on the basis that the public policy exception to an employer’s right to discharge at will an employee not covered by contract provided a ground for relief separate from that provided by the act. The court declined to rule on the motion for reconsideration until after receiving proofs. Following plaintiffs proofs, the court denied plaintiffs motion for reconsideration and granted defendant’s motion for a directed verdict on the basis that the Whistleblowers’ Protection Act was not applicable to the case. The court stated that it had earlier dismissed the public policy count because it considered the public policy exception to discharge to be inapplicable to the instant case, not because it believed the Whistleblowers’ Protection Act was the exclusive remedy. The public policy exception to discharge in an employment at will situation was introduced in Sventko v Kroger Co, 69 Mich App 644; 245 NW2d 151 (1976), where the discharge of an employee in retaliation for filing a workers’ compensation claim was found to be against public policy. In Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692; 316 NW2d 710 (1982), the Supreme Court elaborated on this exception. The Suchodolski Court first recognized prohibitions against discharging employees who act in accordance with some explicitly granted statutory right or duties. The Court referred to four such statutes that granted explicit rights: the Civil Rights Act, the Handicappers’ Civil Rights Act, the Occupational Safety and Health Act, and the Whistleblowers’ Protection Act. Id., p 695. The Court also recognized a "sufficient legislative expression of policy to imply a cause of action for wrongful termination, even in the absence of explicit prohibition on retaliatory discharges.” Id. An implied cause of action for discharge exists in two situations: first, when a discharge occurs because an employee refuses to violate a law in the course of employment, and second, when "the reason for a discharge was the employee’s exercise of a right conferred by a well-established legislative enactment.” Id., p 696. Defendant argues that plaintiffs statutory right to bring a criminal complaint against a fellow employee does not come within the Court’s meaning of a "well-established legislative enactment.” We strongly disagree. Defendant argues that there must be a nexus between the statute violated and the employment relationship and points to the four statutes enumerated in Suchodolski as examples of this type of statute. Defendant argues that the Sventko opinion required a nexus between the statute violated and the employment relationship. Our reading of that case, however, reveals no such requirement. The discussion by the Supreme Court in Suchodolski did note four statutes that gave explicit rights to employees. But the discussion went on to focus on implied causes of action, showing that the four statutes mentioned by the Court were not meant to be an exhaustive description of the public policy exception. In Suchodolski, the plaintiff sought to establish a public policy exception based on the regulation of the accounting system of public utilities. The Supreme Court rejected this claim on the basis that the statute regulating the accounting systems of utilities was not aimed at conferring rights on an employee. Suchodolski, supra, p 696. Thus, the central requirement of the public policy exception is that there be an expressed legislative enactment that gives an employee an individual right, not that there be a direct nexus between the purpose of the statute and the employment relationship. This view finds support in the case of Pratt v Brown Machine Co, 855 F2d 1225, 1237 (CA 6, 1988). In Pratt, the plaintiff was discharged for refusing to discontinue an investigation into harassing phone calls that he was receiving. The district court found a violation of public policy because the employer’s action conflicted with Michigan’s compounding and aiding and abetting statutes. In Pratt, supra, p 1236, the district court stated: The public policy is the same, whether the underlying criminal offense is the maker [sic] of obscene phone calls or bank robbery or arson or any other crime. It matters not whether one of its employees or some other person is suspected of having committed the crime. In affirming the decision of the lower court, the Sixth Circuit Court of Appeals stated that, for the public policy exception to exist, "[i]t is sufficient that the company requested the plaintiff to drop his investigation into criminal wrongdoing, and terminated him for his refusal to do so.” Id., p 1237. This view is not contradictory to the language of existing case law and serves the purpose of the public policy exception. It serves " 'what is naturally and inherently just and right between man and man.’ ” Skutt v Grand Rapids, 275 Mich 258, 264; 266 NW 344 (1936), quoting Pittsburgh, C, C & St L R Co v Kinney, 95 Ohio St 64; 115 NE 505, 507 (1916). To 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. The trial court’s decision that the public policy exception did not apply to the instant case was erroneous, and the partial summary disposition for defendant is reversed. Defendant correctly points out that plaintiff may have to choose the remedy of the Whistleblowers’ Protection Act, rather than the remedy of the public policy exception to an employer’s right to terminate an at-will employee, as the exclusive remedy available in this case. Covell v Spengler, 141 Mich App 76, 83; 366 NW2d 76 (1985). However, the trial court expressly stated that it had not granted the motion for summary disposition on the basis that the Whistleblowers’ Protection Act provides the exclusive remedy; therefore, the consideration of the applicability of the public policy exception to the facts of this case is still proper, and reversal of the partial summary disposition is required. Plaintiff next argues that defendant violated the Whistleblowers’ Protection Act by discharging an employee who filed a formal complaint with a county prosecutor for assault and battery and obtained a warrant for the arrest of an employee. Once this report was filed, plaintiff argues the Whistleblowers’ Protection Act became applicable and he should have been protected by it. We agree. In deciding whether the trial court erred in granting or denying a motion for a directed verdict, this Court reviews all the evidence to determine whether a question of fact existed. In doing so, we view the evidence in a light most favorable to the nonmoving party and grant every reasonable inference and resolve any conflicts in the evidence in that party’s favor. Stoken v JET Electronics & Technology, Inc, 174 Mich App 457, 463; 436 NW2d 389 (1988). However, in the case at bar, the trial court found, on the basis of an interpretation of a statute by an earlier panel of this Court, that plaintiff had failed to present a prima facie case. The determination of what satisfies a prima facie case of a statutory cause of action is a question of law that this Court may determine without deference to the lower court. Beason v Beason, 435 Mich 791, 805; 460 NW2d 207 (1990). The Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq., "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.” Tyrna v Adamo, Inc, 159 Mich App 592, 599; 407 NW2d 47 (1987). The statute defines "public body” as including "[a] law enforcement agency or any member or employee of a law enforcement agency.” MCL 15.361(d)(v); MSA 17.428(1)(d)(v). The clear language of the statute would seem to include the facts of the case at bar where plaintiff reported a violation of the law to the local prosecutor’s office. However, the case of Dickson v Oakland University, 171 Mich App 68; 429 NW2d 640 (1988), relied upon by the trial court below, employed the language of a house legislative analysis to conclude that the act was applicable only when an employer was in violation of the law and an employee sought to report the violation. Id., p 71. The trial court indicated that, but for the Dickson ruling, it would not have granted the directed verdict in this case. We now believe the Dickson Court erred in concluding that the purpose of the Whistleblowers’ Protection Act was only to protect employees who reported violations of the law by their employers. While appellate courts have a duty to ascertain and effectuate the intent of the Legislature, a house bill analysis prepared before passage of a proposed bill is not persuasive authority of legislative intent embodied in an enacted statute. It is only an analysis and a description of the content of a proposed bill. The language of the bill analysis cited by the Dickson Court does not explicitly describe the Whistleblowers’ Protection Act as being limited to violations of employers. Rather, the section of the legislative analysis quoted by the Dickson Court stated that one reason for the Whistleblowers’ Protection Act would be that "employees are naturally reluctant to inform on an employer or a colleague.” Dickson, supra, p 71. This portion of the analysis could reasonably be read to indicate that violations by fellow employees were also to be considered within the scope of the act. The Whistleblowers’ Protection Act itself does not limit its application only to violations of employers but, rather, states that an employee shall not be terminated for reporting "a violation or suspected violation of the law ... of this state.” MCL 15.362; MSA 17.428(2). When resolving disputed interpretations of statutory language to effectuate the legislative intent, it is presumed that when the language of the statute is clear the Legislature intended the meaning plainly expressed. Ripley v Drivers Services, Inc, 151 Mich App 91, 94; 390 NW2d 690 (1986). In the case at bar, the language of the statute is inclusive of all violations, not just those of employers. We therefore find that the act is not limited to violations of employers and hold that the trial court erred in granting a directed verdict against plaintiff. Reversed. The author of this opinion was a member of the panel in Dickson and now believes that case to have been wrongly decided.

William S. Reilly vs. Local 589, Amalgamated Transit Union & another (and a companion case). Nos. 89-P-713 & 90-P-366. Suffolk. April II, 1991. December 9, 1991. Present: Warner. C.J., Dreben, & Ireland. JJ. Labor, Fair representation by union, Apportionment of damages. Laches. Indemnity. Practice, Civil, Appeal. In a civil action based on a claim of wrongful discharge from employment, the judge properly apportioned the damages assessed between the employer and the employee’s union, having found no merit in the plaintiffs assertion that the equitable doctrines of loches and “unclean hands” or that the provisions of G. L. c. 23IB, § 4, barred allocation of damages against the union. [638-639] In circumstances in which an employee had released his union from liability in an action based on his wrongful discharge from employment, no principle set forth in Bowen v. United States Postal Serv., 459 U.S. 212 (1983), supported the employee’s claim that his employer was secondarily liable for damages allocated against the union for the union’s breach of duty of fair representation. [640] In a civil action, the judge did not abuse his discretion by basing the apportionment of damages between the plaintiffs employer and his union on a hypothetical arbitration award date. [640-641] There was no merit to a plaintiffs claim that the trial judge had excluded portions of the plaintiffs testimony. [641] This court declined to reconsider an issue decided in an earlier appeal in the same case. [641-642] Bill in equity filed in the Superior Court on August 3, 1973. Civil action commenced in the Superior Court Department on May 8, 1981. After review reported in 22 Mass. App. Ct. 558 (1986), the cases were consolidated for trial in the Superior Court Department and were heard by Thomas R. Morse, Jr., J. Edward B. Ginn for William S. Reilly. Harrison A. Fitch {Phinorice J. Boldin with him) for Massachusetts Bay Transportation Authority. Massachusetts Bay Transportation Authority. Massachusetts Bay Transportation Authority vs. John J. Gallahue, Jr., & others. Ireland, J. This is an appeal by the plaintiff, William S. Reilly, from an award of damages by a Superior Court judge acting after this court held that damages may be apportioned between an employer and a union where the employer wrongfully discharged an employee and the union violated its duty to fairly represent him. See Reilly v. Local 589, Amalgamated Transit Union, 22 Mass. App. Ct. 558 (1986) (hereinafter Reilly T). In his appeal, Reilly claims that the judge erred in (1) assessing damages against the union; (2) basing the apportionment in part upon a hypothetical date; (3) excluding testimony offered by Reilly; (4) upholding the arbitrator’s award excluding preaward interest; and (5) assessing contributions to the retirement fund. We affirm. The facts pertaining to this dispute are set out in full in Reilly I. We therefore summarize only the facts relevant to this appeal. On January 12, 1972, Reilly, then an employee of the Massachusetts Bay Transportation Authority (MBTA) and a member of the Boston Carmen’s Union, Division 589, the Amalgamated Transit Union (union), was suspended for five days and demoted from motorman to collector for allegedly violating certain rules of employee conduct. Thereafter, instead of returning to work, Reilly took sick leave. On September 7, 1972, by letter, the MBTA requested that Reilly report to the MBTA’s doctor for a physical examination to determine if he was qualified “to return to work as a [cjollector.” Reilly failed to do so and, on September 26, the MBTA’s general manager notified him by certified letter that he was discharged from employment. Reilly’s Equity Case Reilly filed a grievance based on his suspension, demotion, and discharge; When the union refused to submit his claim to arbitration, Reilly brought an action in the Superior Court to: (1) compel the union and MBTA to arbitrate; (2) recover damages froin the union for breach of its duty of fair representation; and (3) recover damages from the MBTA for wrongful discharge. On June 22, 1979, Reilly and the union signed: (1) a “Release and Indemnity Agreement,” whereby Reilly agreed to indemnify the union for liability resulting from Reilly’s complaint; and (2) a “Stipulation and Agreement for Judgment” that Reilly had effectively demanded arbitration and that Reilly’s grievances “were not processed to arbitration for reasons other than the merits of his cases.” Pursuant to the stipulation, on August 3, 1979, a Superior Court judge entered findings, order and judgment as to the union and directed the union to arbitrate Reilly’s grievances if the MBTA were subsequently ordered by the court to arbitrate. On March 12, 1980, the second day of Reilly’s Superior Court trial, the trial judge ordered the MBTA and the union to arbitration and stayed Reilly’s equity case pending the final arbitration award. Thereafter, an arbitrator found there was “not sufficient cause” for Reilly’s suspension, demotion and discharge and reduced Reilly’s discharge to a two-day suspension. On January 14, 1981, the arbitrator ordered that Reilly be “made whole for all benefits lost” due to his suspension, demotion, and discharge, “including back pay, less the two-day suspension and less interim, outside earnings and other appropriate deductions.” Despite the MBTA’s urgings, the arbitrator found it was beyond his authority “to render a determination on the question of apportionment of damages.” On March 20, 1981, a Superior Court judge confirmed the arbitrator’s award and returned the case for assessment of “damages due [Reilly] without respect to the question of apportionment.” On September 27, 1982, the arbitrator awarded and, on January 31, 1985, a judgment was entered ordering the MBTA to pay Reilly $189,278.67 with interest from December 20, 1982, and costs. The MBTA’s Civil Action On May 8, 1981, based on the union’s wrongful refusal to pursue Reilly’s grievances, the MBTA filed an action against the union seeking indemnity or contribution for all or part of any judgment for Reilly. The union answered on July 2, 1981, and, on March 7, 1984, brought a third-party action against Reilly to enforce the June 22, 1979, release and indemnity agreement. A Superior Court judge ruled that under the release and indemnity agreement, amounts the union owed the MBTA should be deducted from Reilly’s recovery. Unsure whether Massachusetts law permitted apportionment of damages between the MBTA and the union, the judge reported that issue to this court. In Reilly I, we upheld the propriety of apportionment of damages between an employer and a union under Massachusetts law. Id. at 580. However, as there was insufficient evidence to determine whether Reilly’s damage award should be apportioned between the MBTA and the union, we remanded the MBTA’s civil action and directed the judge to apply the principles of Bowen v. United States Postal Serv., 459 U.S. 212 (1983) (hereinafter Bowen), in assessing damages (if any) against the union. Reilly I, 22 Mass. App. Ct. at 580. We also remanded Reilly’s equity case to the Superior Court, with leave to vacate the judgment to provide for Reilly’s indemnification of the union (under the release and indemnity agreement) and to consolidate that case with the MBTA’s action, if appropriate. Ibid. On August 10, 1987, the two remanded actions were consolidated for trial. At trial, the MBTA offered evidence of five other arbitration proceedings between the union and the MBTA. Based on the average length of those prior proceedings, the MBTA argued that, had the union pursued Reilly’s grievances in a timely manner, the probable length of his arbitration would have been ten months. The union’s deadline to request arbitration of Reilly’s grievance under the collective bargaining agreement was February 26, 1973 (sixty days after the MBTA denied Reilly’s grievance). The MBTA asserted that had the union requested arbitration by February 26, an award would have issued by December 31, 1973, ten months thereafter. Therefore, the MBTA argued, the union was responsible for Reilly’s damages from December 31, 1973, to January 14, 1981, when the arbitration award actually issued. Reilly contested use of a hypothetical award date, arguing that twenty-eight months, “the actual length of arbitration” (i.e., October 31, 1978 [union notified MBTA of its wrongful failure to pursue Reilly’s grievance] to March 20, 1981 [award confirmed]), should determine the MBTA’s liability. The trial judge agreed with the MBTA and set a hypothetical arbitration award date of December 31, 1973. The judge concluded that: (1) the MBTA was liable for any damages suffered by Reilly from January 12, 1972 (the date of Reilly’s suspension) through December 31, 1973; (2) the union was liable from January 1, 1974, through October 31, 1978 (when the union notified the MBTA of its error in failing to pursue Reilly’s grievance to arbitration); (3) the MBTA and the union were equally liable from November 1, 1978, through July 31, 1979 (the date of the stipulation for judgment in the equity case); (4) the MBTA was liable from August 1, 1979, through March 31, 1981 (when the arbitration award was confirmed); and (5) the union was entitled to indemnity under the release and indemnity agreement. Discussion 1. Apportionment of damages. In Reilly I, supra at 580, we ordered the trial judge to apply the principles of Bowen to apportioning Reilly’s damages. In Bowen, the Supreme Court held that a union could be held liable for back pay if the union’s breach of its duty of fair representation increased the employee’s loss beyond that caused by the employer’s wrongful discharge. Id. at 230. On appeal, Reilly argues certain equitable principles preclude any assessment of damages against the union in this case. Although the judge addressed none of those principles specifically, we conclude from the entry of judgment allocating some damages against the union that the judge found Reilly’s equitable arguments to be without merit. Fales v. Glass, 9 Mass. App. Ct. 570, 575 (1980). We agree. Reilly first argues allocation against the union is barred by loches due to the MBTA’s lengthy failure (from at least 1973, when Reilly filed his equity case, to 1981) to seek contribution or indemnification. While the MBTA’s delay in asserting its contribution claim was considerable, see, e.g., Myers v. Salin, 13 Mass. App. Ct. 127, 139 (1982) (loches established on delay of two years); Stokes v. Commissioner of Correction, 26 Mass. App. Ct. 585, 590 (1988) (three years); and Chiuccariello v. Building Commr. of Boston, 29 Mass. App. Ct. 482, 487-489 (1990) (six months), in order to establish loches, Reilly was also required to demonstrate that he relied on that substantial delay to his detriment. Kenny v. Commissioner of Correction, 399 Mass. 137, 140 (1987). Matter of Kerlinsky, 406 Mass. 67, 75-76 (1989). Myers, supra at 137-138. This he did not do. While in an affidavit in support of summary judgment based on loches, Reilly averred that had the MBTA “asserted any claim whatsoever alleging apportionment, contribution or indemnity against the Union before June 22, 1979, [he] certainly would not have entered into the Release and Indemnity Agreement,” at trial he testified he signed the indemnity agreement because he “knew that if there was ever a judgment against the Carmen’s Union . . . [Reilly] could never go back and run for office.” Based on that testimony, the trial judge could properly have found that Reilly exeouted the indemnity agreement to further his political aspirations rather than because of the MBTA’s inaction. Myers, supra at 138 (“A finding concerning loches, based upon oral evidence, however, will not be disturbed unless clearly erroneous”). Reilly next argues apportionment is barred by the MBTA’s “unclean hands.” Specifically, he argues that because the MBTA “inequitably” failed to settle his case before arbitration, it should not be permitted the equitable remedy of apportionment. The question whether to deny relief based on “unclean hands” is committed to the broad discretion of the trial judge. Fales v. Glass, 9 Mass. App. Ct. at 575. As the trial evidence suggested the MBTA relied on the union’s decision not to pursue Reilly’s grievance, the judge, in the proper exercise of his discretion, could conclude there was nothing inequitable in the MBTA’s decision not to settle prior to the order to arbitrate. Reilly I, supra at 576 (MBTA not bound to correct Reilly’s grievances where evidence suggested that union did not press those grievances). See also Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 572-573 (1976) (Stewart, J., concurring); Bowen, supra at 225-228; and Niro v. Fearn Intl., Inc., 827 F.2d 173, 179 (7th Cir. 1987) (recognizing employer’s justifiable reliance on union’s arbitral decision). Finally, based on G. L. c. 23IB, § 4, as appearing in St. 1962, c. 730, § 1, Reilly urges apportionment is barred by the release and indemnity agreement. However, G. L. c. 23IB, § 4, applies only to tortfeasors jointly and severally liable. See, e.g., Scannell v. Ed. Ferreirinha & Irmao, Lda., 401 Mass. 155, 165 (1987); Grace v. Buckley, 13 Mass. App. Ct. 1081, 1082 (1982). As neither the union nor the MBTA participated in the other’s breach, see Bowen, supra at 223 n.11; Vaca v. Sipes, 386 U.S. 171, 197 (1967); and Pitts v. Frito-Lay, Inc., 700 F.2d 330 (6th Cir. 1983), Reilly’s reliance on G. L. c. 23IB, § 4, is misplaced. In the event that assessment against the union is not barred, Reilly contends that, under Bowen, the MBTA is secondarily liable for damages assessed against the union. While there is some language in Bowen which supports Reilly’s contention, where, as here, Reilly voluntarily released his union from liability, no principle set forth, in Bowen allows Reilly to collect the union’s apportioned damages from the MBTA. 2. Use of a hypothetical date. Reilly also argues the judge erred in basing apportionment of damages on a hypothetical arbitration award date. In particular, Reilly argues that as arbitration actually occurred in his case, the trial judge erred in not apportioning damages based on the full twenty-eight month arbitration period rather than on a “hypothetical” ten-month period. We do not agree. Determination of a fair apportionment of damages between employer and union necessarily involves the exercise of discretion. See Reilly I, supra at 575-576 & n.22. See also San Francisco Web Pressmen & Platemakers’ Union No. 4 v. NLRB, 794 F.2d 420, 424 (9th Cir. 1986) (recognizing NLRB’s broad discretion in fashioning back pay award in wrongful discharge/breach of fair representation cases). Indeed, while Bowen did not expressly legitimize use of a hypothetical arbitration period in apportioning damages, it left “considerable flexibility as to methods of making an apportionment between an employer and a union of the expense caused by each in an unfair representation case.” Reilly I, supra at 576 n.22. Several courts since Bowen have approved the use of a hypothetical award date in apportionment cases. See, e.g., Camacho v. Ritz-Carlton Water Tower, 786 F.2d 242, 245 (7th Cir. 1986); San Francisco Web Pressmen & Platemakers’ Union No. 4, supra; Velez v. Puerto Rico Marine Mgt., Inc., 693 F. Supp. 1335, 1344-1346 (D. Puerto Rico 1988); Martino v. Transport Wkrs. Union, 505 Pa. 391, 409 (1984). In keeping with our order “to appraise the extent to which the award was caused by the [ujnion’s failure to press promptly and reasonably a fair adjustment of Reilly’s grievances,” Reilly I, supra at 576, the trial judge found, based on evidence of other arbitrations between the union and the MBTA, that had the union properly pursued arbitration of Reilly’s grievances, Reilly would have been reinstated by December 31, 1973. As the period between the court order for arbitration of Reilly’s grievance (March 12, 1980) and the arbitrator’s award (January 14, 1981) was ten months, we cannot say the judge abused his considerable discretion in imposing a ten-month hypothetical period (February 26 through December 31, 1973). Bowen, supra at 230. 3. Exclusion of testimony offered by Reilly. Reilly also suggests that the judge erred in “disallowing” his testimony of the MBTA’s “outrageous” conduct to establish the MBTA’s long-standing pattern of his mistreatment and the MBTA’s intent to get rid of him at all costs. Our review of the trial transcript, however, shows that, after extended argument, the judge did not exclude Reilly’s testimony but rather admitted the testimony de bene, subject to a motion to strike. As the MBTA made no such motion, the testimony was admitted and given full probative effect. Peterson, petitioner, 354 Mass. 110, 115 & n.l (1968). Palmer v. Palmer, 23 Mass. App. Ct. 245, 249 (1986). 4. Other claims. Reilly’s remaining claims, for interest on the damage award “from the date of the breach established by the arbitrator” and for an additional $13,817.20 retirement contribution award, were disposed of in Reilly I. “Reilly is entitled to no other prejudgment interest or attorney’s fees than what the arbitrator included in his award.” Id. at 577. “[T]he judgment entered on February 1, 1985 [awarding Reilly $189,278.67], should be taken as establishing the aggregate award to Reilly to be met by the MBTA and the Union . . . .” Id. at 578. As is our practice, we “decline [] to reconsider questions which have been decided in an earlier appeal in the same case . . . [unless] we are persuaded that a previous holding in the same case was in error.” New England Merchants Natl. Bank v. Old Colony Trust Co., 385 Mass. 24, 26 (1982). See also Frank D. Wayne Assocs., Inc. v. Lussier, 394 Mass. 619 (1985). This is not such a case. See Sansone v. Metropolitan Property & Liab. Ins. Co., 30 Mass. App. Ct. 660 (1991). Judgment affirmed. Reilly’s equity case and the MBTA’s civil action had previously been consolidated on June 2, 1983. However, the consolidation order was vacated on November 22, 1983, pursuant to a stipulation entered into by the parties. Reilly I, supra at 578 n.25. The MBTA has neither appealed from the judgment nor argued error in the apportionment of damages. See Hartford Ins. Co. v. Hertz Corp., 410 Mass. 279, 287-288 (1991). On appeal, Reilly claims the MBTA’s action for contribution or indemnification was waived or is barred by the statute of limitations. As those affirmative defenses were not pressed at trial, they are not open on appeal. See, e.g., Leahy v. Local 1526, AFSCME, 399 Mass. 341, 351-352 (1987). “When a release or covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury ...(b) [i]t shall discharge the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.” Bowen, supra at 223 n.12. We note also that in discussing the prospect of secondary liability, the Bowen Court did not eliminate the possibility that the employer might still seek contribution from the union. See Bowen, supra at 223 & n.12. “We need not decide whether the District Court’s instructions on apportionment of damages were proper. The Union objected to the instructions only on the ground that no back wages at all could be assessed against it. It did not object to the manner of apportionment if such damages were to be assessed.” Bowen, 459 U.S. at 230 n.19.

MEEK v MICHIGAN BELL TELEPHONE COMPANY Docket No. 123240. Submitted January 8, 1991, at Detroit. Decided November 26, 1991; approved for publication March 25, 1992, at 9:10 A.M. Leave to appeal denied, 440 Mich —. Gloria and Fred Meek brought an action in the Wayne Circuit Court against the Michigan Bell Telephone Company and Richard Schulz, alleging violation of Gloria Meek’s civil rights and intentional infliction of emotional distress as a result of alleged sexual and religious harassment during her employment with Michigan Bell from 1977 through 1984. The court, Thomas J. Foley, J., granted partial summary disposition for the defendants, finding that an action for conduct predating March 19, 1984, was barred by the applicable statute of limitations. The court also granted summary disposition for the defendants with regard to the claim of intentional infliction of emotional distress, and granted the defendants’ motion in limine, finding that evidence concerning most of the pre-March 19, 1984, incidents was not admissible. The plaintiffs appealed. The Court of Appeals held: 1. The acts of defendant Michigan Bell’s employees before March 19, 1984, constituted a continuous course of discriminatory conduct sufficient to invoke the continuing-violations exception to the statutory limitation period. Plaintiffs’ claim based on the pre-March 19, 1984, violations therefore was not barred by the statute of limitations. The conduct of defendant Schulz amounted to a present violation that occurred within the limitation period and therefore was not barred. 2. The trial court abused its discretion in granting the defendants’ preliminary motion to suppress the introduction of evidence of any actions predating March 19,1984. 3. The court did not err in concluding that the plaintiffs did _not allege extreme and outrageous conduct by the defendants sufficient to support a claim of intentional infliction of emotional distress. References Am Jur 2d, Fright, Shock, and Mental Disturbance §§4-7; Job Discrimination § 2292. Modem status of intentional infliction of mental distress as independent tort; "outrage”. 38 ALR4th 998. Affirmed in part, reversed in part, and remanded. 1. Limitation of Actions — Civil Rights — Employment Discrimination — Continuing Violations. The statute of limitations applicable in actions alleging employment discrimination in violation of the Civil Rights Act will not bar an action for earlier acts of discrimination that would otherwise be barred where an act of discrimination occurs within the limitation period and there is a continuous course of discriminatory conduct sufficient to constitute a continuing violation; factors to be considered in determining whether such a course of conduct exists include the subject matter, frequency, and degree of permanence of the alleged discriminatory acts (MCL 600.5805[8]; MSA 27A.5805[8]). 2. Torts — Intentional Infliction of Emotional Distress. Liability for intentional infliction of emotional distress may be found only where the conduct has been so outrageous in character, and so extreme in degree, that it goes beyond all possible bounds of decency and may be regarded as atrocious and utterly intolerable in a civilized community. Kelman, Loria, Downing, Schneider & Simpson (by Alan B. Posner), for the plaintiffs. Dickinson, Wright, Moon, Van Dusen & Freeman (by Thomas G. Kienbaum and Robert W. Powell) (Laura D. White, Michigan Bell Telephone Company, of Counsel), for the defendants. Before: Jansen, P.J., and Wahls and Hood, JJ. Per Curiam. Plaintiffs filed the present action against defendants for alleged violations of plaintiff Gloria Meek’s civil rights under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. On April 9, 1987, defendants answered plaintiffs’ complaint, alleging that the complaint was barred by the applicable statute of limitations. On November 3, 1989, the trial court granted defendants’ motion for partial summary dispositiom on the ground that the statute of limitations barred recovery for alleged conduct predating March 19, 1984; granted defendants’ motion for summary disposition in regard to allegations of intentional infliction of emotional distress; and granted defendants’ motion in limine, finding that evidence concerning most of the actions predating March 19, 1984, was not admissible. Plaintiffs appeal as of right, alleging that an action regarding the pre-1984 incidents was not time-barred because they fell within the continuing-violation doctrine and that the trial court erred in dismissing the claim of intentional infliction of emotional distress. We affirm in part and reverse in part. Gloria Meek (hereafter plaintiff) claims that from 1977 through 1984, she was subjected to instances of sexual and religious harassment. Specifically, plaintiff complains that in 1977 a supervisor indicated to her that he did not want a female working for him and gave her a cartoon drawn by other employees that berated women. The cartoon was eventually posted on employee bulletin boards and on employees’ desks. In 1978, plaintiff was transferred and placed under the supervision of another supervisor, who told plaintiff that there was no need for her to make a lot of money because she had a working spouse, that she should work inside or at home, and that plaintiff, like all Jews, was rich. This supervisor also commented that because plaintiff was a woman she should show more compassion in disciplining the crews and that she should not fill out an injury report after she broke her nose on the job. Following an uneventful transfer, plaintiff was transferred to another office, where the supervisor told her that she should be home caring for the kids, that she was taking jobs away from men, and that Jews have lots of money and fancy homes. In 1981, following a maternity leave, plaintiff was denied a raise allegedly because of the pregnancy. Plaintiff claims that later in 1981 and in 1982 another supervisor told her that Jewish women do not work, that plaintiff should be at home, that he did not like women in men’s positions, and that plaintiff failed his expectations of a Jewish woman. In 1983, another supervisor told plaintiff that he did not want her ideas, but rather those ideas submitted by the guys. After May of 1984, plaintiff was supervised by defendant Schulz. Plaintiff claims that defendant Schulz told her to put her purse away or he would take disciplinary action, to wear pants with pockets so that she could keep a wallet in them like men do, and to wear shoes like the other guys. Defendant Schulz also called plaintiff "chubbly,” a combination of chubby and ugly, and described a ring given to her by her husband as a Jewish-American-princess ring. Further, other employees under defendant Schulz’ supervision called her a Jewish-American princess and asked who she had slept with in order to get her job. After plaintiff was terminated from employment, she filed suit against defendants Michigan Bell and Schulz. First, we address plaintiffs’ allegation that the trial court erred in granting defendants’ motion for partial summary disposition on the basis that an action concerning the conduct occurring before March 19, 1984, was barred by the statute of limitations. An action alleging employment discrimination under the Civil Rights Act must be brought within three years after the cause of action accrued. MCL 600.5805(8); MSA 27A.5805(8), Mair v Consumers Power Co, 419 Mich 74, 77; 348 NW2d 256 (1984). Our Supreme Court in Sumner v Goodyear Tire & Rubber Co, 427 Mich 505; 398 NW2d 368 (1986), recognized an exception to the statute of limitations for continuing violations. The Sumner Court stated that an exception exists where an employee challenges a series of allegedly discriminatory acts so sufficiently related as to constitute a pattern where only one of the acts occurred within the limitation period. Id. at 528. The Sumner Court also set forth the factors to be considered in determining whether a continuing course of discriminatory conduct exists: The first is subject matter. Do the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation? The second is frequency. Are the alleged acts recurring (e.g., a biweekly paycheck) or more in the nature of an isolated work assignment or employment decision? The third factor, perhaps of most importance, is degree of permanence. Does the act have the degree of permanence which should trigger an employee’s awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate. [Id. at 538, quoting Berry v LSU Bd of Supervisors, 715 F2d 971, 981 (CA 5,1983).] In the present case, we hold that the prior actions of the employees of defendant Michigan Bell constituted a continuing violation sufficient to avoid the statutory limitation period. All the discriminatory events alleged by plaintiff involved the same subject matter: gender and religion. Also, the derogatory remarks made to plaintiff were not isolated to work assignments or employment decisions, but, rather, were recurring with nearly every new supervisor she was employed under. It was these same supervisors who denied plaintiff merit raises and favorable evaluations. Lastly, their acts did not have such a degree of permanence that plaintiff should have asserted her rights earlier. Over approximately nine years, plaintiff had several supervisors. It was reasonable for plaintiff to believe that with each transfer and chanjge in supervision the discriminatory conduct would cease. However, with almost each new supervisor came a new wave of harassment. We believe that the acts of defendant Michigan Bell’s employees exhibited a continuous course of discriminatory conduct sufficient to invoke the continuing-violations exception to the statutory limitation period. We also hold that the conduct of defendant Schulz amounted to a present violation that occurred within the limitation period. The mere existence of continuing harassment is insufficient if none of the relevant conduct occurred within the limitation period. Sumner, p 539. Defendants do not contest the allegedly discriminatory conduct of defendant Schulz, and we believe that the post-March 1984 actions of Schulz were intrinsically connected to the pre-March 1984 violations. Therefore, we hold that plaintiffs’ claim alleged a continuing violation and that an action' concerning the pre-March 1984 violation is not barred by the statute of limitations. Considering our holding that the prior incidents constitute a part of a continuing violation and, thus, are not barred by the statute of limitations, we must now consider whether the trial court erred in granting defendants’ preliminary motion to suppress the introduction of evidence of any actions predating March 19,1984. The decision whether to admit certain evidence is within the trial court’s sound discretion and will not be disturbed absent an abuse of discretion. Brunson v E & L Transport Co, 177 Mich App 95, 104; 441 NW2d 48 (1989). The trial court held that because there was no connection between the acts themselves and no relationship between the parties involved, evidence of these prior acts had no probative value and had potential for prejudice. Considering that we have found the existence of a continuing violation sufficient to avoid the application of the limitation period, we hold that the trial court abused its discretion by precluding the admission of this testimony. Finally, we address whether the trial court erred in granting defendants’ motion for summary disposition of the claim of intentional infliction of emotional distress. Liability for the separate cause of action of intentional infliction of emotional distress 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.” Roberts v Auto-Owners Ins Co, 422 Mich 594, 602-603; 374 NW2d 905 (1985), quoting 1 Restatement Torts, 2d, § 46, comment d, pp 72-73. Plaintiffs deposition alleged that defendant Schulz told plaintiff to put her purse away, to wear pants with pockets so she could keep a wallet in them like men do, and to wear shoes like the other guys. Defendant Schulz also called defendant chubbly, a combination of chubby and ugly, in front of the crew and described a ring given to her by her husband as a Jewish-American-princess ring. In addition, employees under defendant Schulz’ supervision called plaintiff a Jewish-American princess and asked plaintiff who she had slept with to get her job. Accepting these factual allegations as true, we hold that the trial court did not err in concluding that these allegations clearly do not rise to the level of extreme and outrageous conduct to support a claim of intentional infliction of emotional distress. MCR 2.116(C)(8), Scameheorn v Bucks, 167 Mich App 302, 306; 421 NW2d 918 (1988). Affirmed in part, reversed in part, and remanded to the trial court for proceedings consistent with this opinion.

Willie Bynes, Jr., & another vs. School Committee of Boston & others. Suffolk. October 8, 1991. November 21, 1991. Present: Liacos, C.J.. Wilkins. Nolan. Lynch. & Greaney. JJ. School and School Committee, Transportation of students. Criminal Offender Record Information. Anti-Discrimination Law, Employee, Termination of employment. Statute, Construction. General Laws c. 15IB, § 4 (9), prohibiting employers from requesting certain criminal record information from employees and potential employees does not prohibit employers from requesting such information from other sources. [266-269] A school committee that requested Criminal Offender Record Information (CORI) from the Criminal History Systems Board did not violate G. L. c. 6, § 172, when it received and used certain CORI that was not requested or authorized by the school committee’s certification under the statute. [270-271] Civil action commenced in the Superior Court Department on January 21, 1987. The case was heard by Barbara J. Rouse, J. The Supreme Judicial Court granted a request for direct appellate review. Harold L. Lichten for the plaintiffs. Stephanie S. Lovell, Special Assistant Corporation Counsel, for School Committee of Boston & another. E. Susan Garsh for National School Bus Service, Inc. Joan S. Dyott. National School Bus Service, Inc., and the superintendent of the Boston public schools. Nolan, J. The plaintiffs, Willie Bynes, Jr., and Joan Dyott, commenced this action against the defendants who terminated their employment as school bus drivers in the city of Boston because of their criminal records. They are appealing from a judgment of the Superior Court which determined, inter alia, that the defendants had not violated G. L. c. 151B, § 4 (9) (1990 ed.), and G. L. c. 6, § 172 (1990 ed.), in discharging the plaintiffs. This court granted the plaintiffs’ application for direct appellate review. We affirm the judgment. The school committee of Boston (school committee) provides bus transportation for approximately 25,000 Boston public school students through vendor contracts with private companies. Pursuant to such a contract, ARA Transportation, Inc. (ARA), provided school bus services from 1978 through the end of the 1984-1985 school year. In September of 1985, National School Bus Service, Inc. (National), succeeded ARA and undertook the transportation of the students through a vendor contract with the school committee. As part of the school committee’s contract with both ARA and National, it had “the right to reject... at any time prior to or during employment, any person deemed ... to be unfit for such employment.” In early 1985, as a result of the concerns of certain members of the school committee about the past criminal records of school bus drivers, school department staff requested the Criminal History Systems Board (board) to conduct background investigations on all Boston public school bus drivers pursuant to the Criminal Offenders Record Information (CORI) Act, G. L. c. 6, §§ 167-172 (1990 ed.). In accordance with the provisions of G. L. c. 6, § 172 (c), the board certified the school committee for access to criminal record information pertaining to convictions of individuals seeking employment or employed as school bus drivers. The board, consistent with its responsibility under G. L. c. 6, §§ 168, 171, reviews criminal records before releasing them to determine that only relevant information is released. Pursuant to the committee’s certification, school department staff requested CORI on the bus drivers by stating: “I request that you furnish me with CORI on each of the drivers.” Bynes and Dyott had been school bus drivers since 1978 and 1977, respectively, until their dismissals in 1985. The board sent the school committee information which indicated that Bynes had a 1972 conviction for assault by means of a dangerous weapon and a 1983 charge for assault and battery by means of a dangerous weapon. The 1983 charge was dismissed in 1984 after Bynes paid court costs and restitution to the victim, his wife. The information that the board sent to the school committee also indicated that Dyott was arrested and convicted in 1975 for possession of a controlled substance, marihuana, with intent to distribute, for which she received a suspended sentence and was placed on probation. On or about May 24, 1985, pursuant to the contract between the school committee and ARA, the school committee directed ARA to discharge twelve bus drivers, including Bynes. On June 20, 1985, the school committee promulgated a mandatory disqualification regulation, which was incorporated into the contract between the school committee and National, as well as the collective bargaining agreement between National and the bus drivers’ union. The regulation provided, in relevant part, that an individual would not be eligible for employment as a school bus driver if he or she either had been convicted at any time of possession with intent to distribute a controlled substance or had been convicted of a violent felony within the past five years. As a result of this policy, on August 23, 1985, the school committee instructed National not to hire certain drivers, including Bynes and Dyott, and National complied with the school committee’s instructions. Although the plaintiffs’ lawsuit initially contained four counts, their appeal concerns only their claims under G. L. c. 151B, § 4 (9), and c. 6, § 172, as to which judgment entered for the defendants. 1. G. L. c. 151B, § 4 (9) claim. The plaintiffs argue that the Superior Court judge misinterpreted G. L. c. 15IB, § 4 (9), by failing to give it its plain meaning and also by failing to construe § 4 (9) in light of G. L. c. 6, § 172. The plain- tiffs first contend that § 4 (9) bans all requests by an employer. for the prohibited information from any source. The plaintiffs assert, therefore, that both dismissals violated § 4 (9), because the requested CORI on Bynes included an arrest without a conviction, and the information on Dyott included a misdemeanor conviction more than five years prior to the request. Additionally, the plaintiffs argue that, in order to read c. 15IB, § 4 (9), and c. 6, § 172, harmoniously, an employer should be limited in seeking CORI to that which the employer can seek under § 4 (9). We disagree with the plaintiffs’ interpretation of § 4 (9) for a variety of reasons. The plain language of the statute rebuts the plaintiffs’ contention. “It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, . . . the sole function of the courts is to enforce it according to its terms.” Massachusetts Community College Council v. Labor Relations Comm’n, 402 Mass. 352, 354 (1988), quoting James J. Welch & Co. v. Deputy Comm’r of Capital Planning & Operations, 387 Mass. 662, 667 (1982). If we were to read the phrase in § 4 (9) (“to request any information”) as broadly as the plaintiffs read that phrase, to apply to any request from any source, we would render the subsequent phrase “to use any form of application or application blank which requests such information” superfluous." Surely the plaintiffs’ interpretation of “request any information” would include such requests on application forms. It is another elementary rule of statutory construction that a statute should not be read in such a way as to render its terms meaningless or superfluous. Globe Newspaper Co. v. Commissioner of Revenue, 410 Mass. 188, 192 (1991). International Org. of Masters, Mates & Pilots v. Woods Hole, Martha’s Vineyard & Nantucket S.S. Auth., 392 Mass. 811, 813 (1984). The Legislature’s intent was merely to protect employees from such requests from their employers and not to proscribe employers from seeking such information elsewhere. The legislative history of § 4 (9) supports this interpretation. See Quincy City Hosp. v. Rate Setting Comm’n, 406 Mass. 431, 443 (1990) (“Statutes are to be interpreted not based solely on simple, strict meaning of words, but in connection with their development and history, and with the history of the times and prior legislation”). As originally enacted, G. L. c. 151B, § 4 (9), inserted by St. 1969, c. 314, and as amended by St. 1972, c. 428, prohibited discrimination against employees or applicants who failed to furnish certain criminal history information, and it also placed restrictions on application forms. The relevant change in the 1974 revision of § 4 (9) prohibited requests for this information and the maintenance of records including this information. St. 1974, c. 531. The Superior Court judge’s reading of § 4 (9), as amended, that it is limited to an employer’s request for information from an employee or prospective employee, is consistent with the original purpose of the statute, which was to protect employees from discrimination for their failure to provide their employers with restricted criminal history information. Nothing indicates that the Legislature intended that the limited provisions of the 1974 version of § 4 (9) would have the broad reach envisioned by the plaintiffs. The plaintiffs’ interpretation of § 4 (9) would turn that limited prohibition against an employer’s request to an employee or prospective employee into a general prohibition against an employer’s use of such information. If that were the Legislature’s intent, surely the Legislature might have utilized the broader anti-discrimination language already utilized in G. L. c. 151B, § 4 (1) (1990 ed.), concerning employment discrimination, or even might have just amended § 4 (1) to include the protections envisioned by the plaintiffs'. The Massachusetts Commission Against Discrimination (commission), the agency responsible for enforcing c. 151B, has also construed the protection afforded by § 4 (9) to be “quite narrow in scope” and “directed primarily at the preemployment inquiry, particularly the application form.” McGowan v. Stoneham Police Dep’t, 6 M.D.L.R. 1639, 1648 (1984), quoting LeBoeuf v. Lodding Eng’g, 2 M.D.L.R. 1381, 1383 (1980). The commission’s interpretation of its governing statute is entitled to substantial deference. Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 204 (1981). In McGowan, the commission specifically upheld a hearing commissioner’s determination that the use of an individual’s arrest record, not directly obtained from that individual, in making employment decisions does not violate § 4 (9). McGowan, supra at 1647. The commission also stated that an interpretation of § 4 (9) which would prohibit the mere use of arrest records by employers “is against the weight of the authority on this point.” Id. Having determined that G. L. c. 151B, § 4 (9), only affects an employer’s ability to request certain criminal record information from employees and potential employees, we have no need to consider the relationship between § 4 (9) and the CORI statute. Therefore, we need not determine whether the school committee is an employer of the school bus drivers for § 4 (9) purposes. 2. The CORI claim. The next claim raised by the plaintiffs is that the defendants violated the CORI statute by requesting, obtaining, and then utilizing CORI in the dismissal of the plaintiffs. The relevant portion of G. L. c. 6, § 172, is set out in the margin. Because the board limited the school committee’s CORI access to criminal charges that resulted in convictions, and because the school committee received and used information concerning Bynes’s 1983 assault charge, allegedly in violation of the school committee’s certification, the plaintiffs contend that the defendants violated § 172. Bynes initially claims that the school committee’s request for and receipt of CORI was illegal because its request was too broad and not limited to its restricted authorization. It is the board, however, and not the recipient, which “has the duty to assure the accuracy and completeness of CORI, as well as to prevent its unauthorized disclosure.” Police Comm’r of Boston v. Municipal Court of the Dorchester Dist., 374 Mass. 640, 648 (1978). There is no language within the CORI statute which would lead us to the conclusion that the school committee, or any other certified individual or agency, shares this responsibility with the board. Bynes also asserts that the school committee violated G. L. c. 6, § 172, by using CORI that exceeded its certification, even if it was without fault in receiving unauthorized CORI. Bynes appears to read the clause “in violation of the provisions of this statute” in § 172, as modifying the antecedent clause “that receives or obtains criminal offender information.” In other words, Bynes finds a form of strict liability within the statute whereby the school committee can be liable for the use of unauthorized CORI, even if it is blameless, merely if its receipt of the information is in violation of § 172. We recognize “the general rule of statutory as well as grammatical construction that a modifying clause is confined to the last antecedent unless there is something in the subject matter or dominant purpose which requires a different interpretation.” Moulton v. Brookline Rent Control Bd., 385 Mass. 228, 230-231 (1982), quoting Druzik v. Board of Health of Haverhill, 324 Mass. 129, 133 (1949). Because the statute delegates to the board the responsibility for preventing unauthorized disclosures of CORI, any interpretation of the statute that would require individuals or agencies who have been certified by the board for access to information to undertake their own investigations of the lawfulness of their receipt of information from the board would be inconsistent with the dominant purpose of the statute. We believe that the better reading of the statute, a reading more consistent with the Legislature’s intent, is that the clause “in violation of the provisions of this statute” refers to “[a]ny individual or agency” at the beginning of the sentence. Under this reading, the plaintiff must prove that the individual or agency is in violation of the statute and at fault. Assuming, without deciding, that the school committee received unauthorized CORI on Bynes, he asserts no facts which would create any inference that the school committee violated the statute or was at fault in its CORI request. The simple statement — “I request that you furnish me with CORI on each of the drivers” — where the board bears the responsibility for unauthorized disclosures, hardly constitutes fault on the part of the school committee. In addition, each letter from the board to the school committee that contained CORI on the bus drivers included the statement that it was “[pjursuant to the certification issued by the Criminal History Systems Board on March 2, 1982.” For the-foregoing reasons, the judgment of the Superior Court is affirmed. So ordered. While the school committee based its initial termination of Bynes on both the 1972 conviction and the 1983 charge, the later decision not to rehire Bynes, resulting from the mandatory disqualification regulation, relied only on the 1983 charge. General Laws c. 151B, § 4 (9), states, in relevant part, that it is an unlawful practice “[f]or an employer ... in connection with an application for employment... or discharge of any person ... to request any information, to make or keep a record of such information, to use any form of application or application blank which requests such information, or to exclude, limit or otherwise discriminate against any person by reason of his or her failure to furnish such information through a written application or oral inquiry or otherwise regarding: (i) an arrest ... in which no conviction resulted ... or (iii) any conviction of a misdemeanor where the date of such conviction . . . occurred five or more years prior to the date of such application for employment or such request for information .... “No person shall be held under any provision of any law to be guilty of perjury or of otherwise giving a false statement by reason of his failure to recite or acknowledge such information as he has a right to withhold by this subsection.” Contrary to the plaintiffs’ contention, McGowan does not support their interpretation of § 4 (9). Without expressing our opinion on the merits of the commission’s decision, we note that the commission merely determined that it was inappropriate for a police department to use its ability to obtain criminal offender information under G. L. c. 6, § 172 (a), to effectuate its role as an employer. McGowan, supra at 1651. That is not the issue in this case. General Laws c. 6, § 172, states in relevant part: “Any individual or agency, public or private, that receives or obtains criminal offender record information, in violation of the provisions of this statute, whether directly or through any intermediary, shall not collect, store, disseminate, or use such criminal offender record information in any manner or for any purpose.” Because the school committee was certified to receive the information that it received concerning Dyott, this claim applies only to Bynes.

GONYEA v MOTOR PARTS FEDERAL CREDIT UNION Docket No. 118351. Submitted May 22, 1991, at Detroit. Decided November 19, 1991, at 9:30 a.m. Tena Gonyea brought an action in the Oakland Circuit Court against her former employer, Motor Parts Federal Credit Union, and her former supervisor, Donald Major, claiming defamation, intentional infliction of emotional distress, negligent termination of employment, and wrongful discharge. The court, Alice L. Gilbert, J., granted summary disposition for the defendants with respect to all claims. The plaintiff appealed. The Court of Appeals affirmed, granted a rehearing on its own motion, and issued an order amending its original opinion. In its amended opinion, the Court of Appeals held: 1. The trial court did not err in granting summary disposition of the defamation claims, which related to alleged statements by Major to the Employment Security Commission that the plaintiff had been discharged for dishonesty, alleged statements by Major to certain credit union employees that plaintiff was a thief and should not be trusted, and information transmitted to prospective employers that caused them not to hire the plaintiff. The statements made to the Employment Security Commission were not actionable because they were subject to an absolute privilege pursuant to MCL 421.11(b); MSA 17.511(b). The statements made to other credit union employees were subject to the employer’s qualified privilege to defame an employee by publishing statements to other employees whose duties interest them in the subject matter, and the statements to the prospective employers were subject to the employer’s qualified privilege to divulge information regarding a former employee to prospective employers. In both instances of qualified privilege, the plaintiffs general allegations of actual malice were insufficient to defeat the privilege. 2. Summary disposition of the claim of intentional infliction of emotional distress was proper. Even if the tort of intentional infliction of emotional distress is a viable cause of action in Michigan, the plaintiffs factual allegations were not sufficient to establish that the defendants’ conduct was outrageous and constituted intentional infliction of emotional distress. References Am Jur 2d, Libel and Slander §§ 270, 271, 273-275. Libel and slander: privileged nature of communication to other employees or employees’ union of reasons for plaintiffs discharge. 60 ALR3d 1080. 3. The trial court did not err in granting summary disposition of the claim of negligent termination of employment. A breach of an employment contract does not give rise to a tort claim where, as in this case, the alleged breach of duty is indistinguishable from the alleged breach of contract. 4. Summary disposition of the wrongful discharge claim was proper. That claim was based on the plaintiffs belief that, on the basis of conversations with former fellow employees, her employment had been pursuant to a contract providing for discharge only for just cause. However, an employee’s expectation of termination only for just cause must be grounded on representations by the employer. Affirmed. Libel and Slander — Qualified Privilege — Employers — Actual Malice. An employer has a qualified privilege to divulge information regarding a former employee to a prospective employer and a qualified privilege to defame an employee by publishing a statement to other employees whose duties interest them in the subject matter of the defamatory material; such qualified privileges can be overcome only by showing that the information was given or the statement was uttered with actual malice, i.e., with knowledge of its falsity or with reckless disregard of the truth; the issue of actual malice is generally one of fact for the jury; general allegations of malice are insufficient to establish a genuine issue of material fact. Ronald J. Gricius, P.C. (by Jeffrey W. Rentschler), for the plaintiff. Harvey, Kruse, Westen & Milan, P.C. (by Thomas R. Bowen and Lisa T. Milton), for the defendants. Before: Holbrook, Jr., P.J., and Sullivan and Doctoroff, JJ. Per Curiam. Plaintiff appeals as of right two orders of the Oakland Circuit Court, one granting defendants summary disposition of plaintiffs breach of employment contract claim and the other granting summary disposition of her claims of negligent termination, intentional infliction of emotional distress, and defamation. We affirm. Plaintiff was employed by defendant credit union as a teller beginning on September 16, 1986, and defendant Major was designated her immediate supervisor. Upon commencement of her employment, plaintiff received from the credit union written material that was identified as an employee handbook. Plaintiff alleges, however, that the written material she received dealt only with hours of work, overtime, insurance, vacation, and benefits. Plaintiff admitted that although no one from management ever told her she would be terminated for cause only, she believed this to be the case. On September 17, 1987, Mr. Major approached plaintiff around 2:30 p.m. and instructed her to determine the balance of the contents of her cash drawer. Plaintiff took her cash drawer to the back room, where she was joined by Major and Sandra Sullivan, the credit union’s bookkeeper. Mr. Major, in Ms. Sullivan’s presence, told plaintiff that she was fired because of allegations of theft made against her by two credit union members. i Plaintiff first argues that it was error to grant summary disposition of the defamation count for failure to specifically plead dates and places of defamation where defendants did not raise the issue and where plaintiffs trial counsel orally moved for leave to amend. We disagree. The elements of a claim of defamation are (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged publication to a third party, (3) fault amounting to at least negligence on the part of the publisher, and (4) either actionability of the statements irrespective of special harm, or. the existence of special harm caused by the publication. Hodgins Kennels, Inc v Durbin, 170 Mich App 474, 479-480; 429 NW2d 189 (1988). These elements must be specifically pleaded, including the allegations with respect to the defamatory words, the connection between the plaintiff and the defamatory words, and the publication of the alleged defamatory words. Ledl v Quik Pik Food Stores, Inc, 133 Mich App 583, 589; 349 NW2d 529 (1984). Plaintiff alleges three instances of defamation by defendants: (1) that on or about November 12, 1987, defendant Major defamed her by stating to the Michigan Employment Security Commission that she was "discharged for dishonesty” when it requested employment information; (2) that on September 19, 1987, Major told numerous individuals that plaintiff was a thief and should not be trusted; and (3) that information transmitted to two prospective employers caused them not to hire plaintiff. Pursuant to MCL 421.11(b); MSA 17.511(b), any statement made to the mesc in the course of its administrative functions is absolutely privileged and the party making it is immune from suit. Annabel v C J Link Lumber Co, 115 Mich App 116, 122; 320 NW2d 64 (1982), modified 417 Mich 950 (1983). Thus, Major’s statements to the mesc were not actionable given the statutory grant of absolute privilege. Regarding plaintiff’s second and third claims of defamation, the pleadings for each of those claims are in some way deficient. The claim concerning Mr. Major’s statements to credit union employees that plaintiff was a thief and should not be trusted fails to state to whom publication was made. Plaintiffs claim concerning Major’s alleged statements to two prospective employers is insufficient because it fails to state the substance of the defamatory statements. Although plaintiff argues here, as she did below, that she should have been granted leave to amend her complaint, we do not believe that plaintiff could have overcome the deficiencies through amendment of the complaint. While leave to amend is to be freely granted absent undue delay, bad faith, or dilatory motive, leave may be denied where an amendment would be futile. McNees v Cedar Springs Stamping Co, 184 Mich App 101, 103; 457 NW2d 68 (1990). An amendment is futile where, ignoring the substantive merits of the claim, it is legally insufficient on its face. Formall, Inc v Community Nat’l Bank of Pontiac, 166 Mich App 772, 783; 421 NW2d 289 (1988). We believe that although plaintiff could amend her claim by naming the specific parties to whom Major made statements, she could not be specific about the statements with respect to the two prospective employers because she admitted in her deposition that she was unsure about what was said and just presumed it was defamatory because she did not get either job. Moreover, even if plaintiff could accumulate sufficient facts to amend the complaint, the amendments would still be futile for lack of the element requiring the communications to be unprivileged. The statements plaintiff alleges Major made to other employees were protected by a qualified privilege. An employer has the qualified privilege to defame an employee by making statements to other employees whose duties interest them in the subject matter. Smith v Fergan, 181 Mich App 594, 597; 450 NW2d 3 (1989). The only person plaintiff could identify as having heard the statements made by Major at the credit union was Ms. Sullivan, the credit union’s bookkeeper. Sullivan’s position obviously gave her an interest in the allegations against plaintiff; therefore, the statements by Major were made under a qualified privilege. Likewise privileged were the statements made by Major to the two prospective employers; an employer has a qualified privilege to divulge information regarding a former employee to a prospective employer. Moore v St Joseph Nursing Home, Inc, 184 Mich App 766, 768; 459 NW2d 100 (1990). The elements of a qualified privilege are (1) good faith, (2) an interest to be upheld, (3) a statement limited in scope to this purpose, (4) a proper occasion, and (5) publication in a proper manner and to proper parties only. Bufalino v Maxon Bros, Inc, 368 Mich 140, 153; 117 NW2d 150 (1962). Plaintiff may overcome this qualified privilege only by showing that the statement was made with actual malice, that is, knowledge of its falsity or reckless disregard of the truth. Smith, supra, p 597. There is a conflict in this Court regarding whether general allegations of malice are sufficient to establish a genuine issue of material fact. Grostick v Ellsworth, 158 Mich App 18; 404 NW2d 685 (1987), held that malice can be alleged generally and that a plaintiff should be given ample opportunity to demonstrate actual malice. Id., p 23. Trial courts therefore should be reluctant to prevent the issue from reaching the jury. Id. Smith v Fergan, supra, held that because the issue of actual malice is one for the jury, supporting facts must be given and general allegations of malice are therefore insufficient to establish a genuine issue of material fact. Smith, supra, p 594. We believe that Smith represents the better view and adopt it as our own. In the case before us, plaintiff made general allegations that statements made by defendant Major were false, malicious, and slanderous, and were made after repeated denials of plaintiff’s request for some sort of hearing so that she could clear her name. These general allegations were not a sufficient allegation of malice. We therefore hold that summary disposition of the defamation claims was proper. ii Plaintiff next argues that it was error for the trial court to grant summary disposition of the claim of intentional infliction of emotional distress where the allegations were made in addition to and separate from plaintiff’s alternate count of breach of contract and wrongful discharge. Although the Michigan Supreme Court considers the existence of this tort an open question, Roberts v Auto-Owners Ins Co, 422 Mich 594; 374 NW2d 905 (1985), this Court has recognized such a cause of action since Warren v June’s Mobile Home Village & Sales, Inc, 66 Mich App 386; 239 NW2d 380 (1976), and continuing at least through McCahill v Commercial Ins Co, 179 Mich App 761, 768; 446 NW2d 579 (1989). No decision of this Court that binds other panels pursuant to Administrative Order No. 1990-6 has been issued with respect to this issue after November 1, 1990. We consider it unnecessary to determine in this case whether the tort of intentional infliction of emotional distress remains viable as an independent cause of action. Because we have already held that plaintiff has failed to plead actionable malice and that the defendants’ actions giving rise to the alleged tort were subject to at least a qualified privilege, the facts of the case establish that defendants merely "have done no more than to insist upon their legal rights in a permissible way, even though they are well aware that such insistence is certain to cause emotional distress.” Warren, supra, p 391, citing Restatement Torts, 2d, § 46, Comment g, p 76. Accord Roberts, supra. We note that defendants’ conduct occurred in the presence of only a small coterie of business principals and allegations of wrongdoing by plaintiff were not bandied about unnecessarily in a manner "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” such that, upon "recitation of the facts to an average member of the community,” resentment would be aroused so as to lead that hypothetical person "to exclaim, 'Outrageous!’ ” Restatement Torts, 2d, § 46, Comment d, pp 72-73. in Next, plaintiff argues that the trial court erred in granting summary disposition of the count alleging negligence by defendants in discharging her where she had pleaded no loss or damage as a result of any personal injury. In making her argument, plaintiff asserts that the exclusive remedy provision of the Workers’ Disability Compensation Act was the basis for the grant of summary disposition and that the trial court erred in its reliance upon this provision because plaintiff made no allegation of industrial injury. Rather, plaintiff argues that defendants were negligent in failing to investigate the charges alleged against her. We begin by noting that plaintiff is correct in her assertion that the exclusive remedy provision of the workers’ compensation act does not apply to the case at bar. Her claim is nonetheless barred. This Court adheres to the rule that a breach of an employment contract does not give rise to a tort claim where the breach of duty is indistinguishable from the breach of contract. See Kostello v Rockwell Int’l Corp, 189 Mich App 241; 472 NW2d 71 (1991); Mitchell v General Motors Acceptance Corp, 176 Mich App 23; 439 NW2d 261 (1989); Dahlman v Oakland University, 172 Mich App 502; 432 NW2d 304 (1988); Brewster v Martin Marietta Aluminum Sales, Inc, 145 Mich App 641; 378 NW2d 558 (1985). Plaintiff bases her allegation of negligent discharge on her claim that defendants had a duty to act in good faith toward her and a duty not to discharge her without cause. Because her claim of negligence is based on duty she claims existed as part of her employment contract, plaintiff has not alleged a breach of duty separate and distinct from the alleged breach of contract, and her claim therefore fails as a matter of law. There was no error in the trial court’s grant of summary disposition. IV Lastly, plaintiff argues that the trial court erred when it granted summary disposition of her wrongful discharge claim, because it made findings of fact rather than allowing the matter to go to the jury. We disagree. In her argument, plaintiff asserts that because of statements made to her by supervisors and the employment relationships she observed between defendant credit union and other employees, she was justified in believing that she was employed pursuant to a contract providing for discharge for just cause only. A just-cause employment contract may be created by an express agreement or as a result of an employee’s legitimate expectations grounded in the policy statements of the employer. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 598; 292 NW2d 880 (1980), reh den 409 Mich 1101 (1980). The employee’s legitimate expectations may be based on stated employment policies and established procedures. Id., pp 618-619. The expectation, however, must be based on both a subjective and objective belief that the employee is employed under a just-cause contract. Stoken v J E T Electronics & Technology, Inc, 174 Mich App 457, 465; 436 NW2d 389 (1988). Although statements made by management personnel to employees, as alleged by plaintiff, may create a legitimate expectation of termination for cause only, Richards v Detroit Free Press, 173 Mich App 256, 257; 433 NW2d 320 (1988), a review of the record below clearly contradicts plaintiff’s assertion that these statements were made to her by management personnel. Rather, in her deposition testimony, plaintiff testified that nothing was discussed at either of her two interviews regarding the terms and conditions of her employment other than job duties; the nature of termination of employment was not discussed. She specifically stated that during the time she was employed at the credit union, neither defendant Major nor any management personnel ever discussed the reasons or conditions for termination or told her she would be terminated for just cause only. She testified that she gained this understanding only through her conversations with her fellow employees. Her sole basis for believing she was a just-cause employee were these discussions with her fellow employees. This is insufficient to create a genuine issue of fact regarding whether plaintiff had a legitimate expectation of employment with termination for cause only. Summary disposition was therefore properly granted. Affirmed.