UAW v. GREEN

MICHIGAN STATE AFL-CIO v CIVIL SERVICE COMMISSION Docket No. 102567. Argued April 8, 1997 (Calendar No. 5). Decided July 31, 1997. Michigan State AEL-CIO and several other unions, serving employees in the state classified civil service, and others brought an action in the Wayne Circuit Court against the Civil Service Commission and others, seeking to enjoin enforcement of revised Civil Service Commission Rule 1-5.7, which prohibits the use of union leaves of absence for partisan political activity. The court, John H. Hausner, X, granted summary disposition for the plaintiffs, ruling that they had standing to bring the action and that the commission, in promulgating the rule, had exceeded its authority and violated the Michigan political freedom act, 1979 PA 169, MCL 15.401 et seq.) MSA 4.1702(1) et seq. The Court of Appeals, Griffin, P.J., and Reilly and T. M. Burns, JX, affirmed the standing issue, but reversed with respect to the rule, and remanded the case for consideration of the plaintiffs’ pending constitutional claims (Docket No. 113228). On remand, the court granted summary disposition for the commission, finding that the rule did not violate equal protection or due process, and further that there was no violation of free speech and association. After remand, the Court of Appeals, Michael X Kelly, P.J., and Corrigan and C. D. Corwin, JJ., affirmed the dismissal of the constitutional claims, holding that the revised rule affects the Civil Service Commission’s legitimate ban on partisan political activity during actual-duty hours and that nothing in the rule offends a recognized constitutional right of free speech or assembly (Docket No. 149885). The Supreme Court remanded the case to the Court of Appeals to address the plaintiffs’ argument that Rule 1-5.7 unconstitutionally bans speech and association on the basis of the content of the speech. On remand, the Court of Appeals, Michael X Kelly, P.J., and Corrigan and Bandstra, JX, unable to identify a content-based abrogation of speech or association rights, affirmed in an unpublished opinion per curiam (Docket No. 191523). The plaintiffs appeal. In an opinion by Justice Cavanagh, joined by Chief Justice Mallett, and Justices Boyle and Kelly, the Supreme Court held: Revised Civil Service Rule 1-5.7, prohibiting the use of union leaves of absence for partisan political activity, violates the Michigan political freedom act. 1. The political freedom act extends to employees in state classified civil service the right to engage in partisan political activity while on mandatory leaves of absence. What a state classified civil service employee does during off-duty hours, including political activity, is not of proper concern to the Civil Service Commission unless it is shown to adversely affect job performance. Whether an activity is off duty or actual duty depends on its particular circumstances. The political freedom act allows a state employee to engage in partisan political activity except during those hours when the employee is being compensated for the performance of duties as a public employee. 2. Where the union reimburses the state not only for the wages of an employee, but also the flange benefits, the state may not prohibit that employee from participating in partisan political activities pursuant to thp political freedom act. Because union leave is often antagonistic to an employer’s interest and because an employee on union leave is not doing the duty the employee was employed to perform, the state may not prohibit participation in partisan political activities while on union leave pursuant to the political freedom act unless the activities are shown to adversely affect job performance. Reversed. Justice Brickley, joined by Justices Riley and Weaver, dissenting, stated that, correctly interpreted, the political freedom act does not allow a classified state employee to engage in political activity while being compensated for the performance of the duties of a public employee. The majority determines that these employees were not compensated by the employer because the state was reimbursed for the total costs of their wages and benefits, and, thus, their activity is protected under the act. The source of the compensation is irrelevant, however. The fact that they were compensated merely presents the question whether they were engaged in the performance of their duties as public employees. Employees on union leave are performing their duties as public employees. Employees are assigned to these types of leave by the state. Further, legitimate union activities contribute to a productive relationship between the state and its employees; the state, as employer, derives a benefit from the activities. The majority’s holding to the contrary violates both the political freedom act and the collective bargaining agreement. Therefore, the application of Rule 1-5.7 to these employees did not violate the act. Rule 1-5.7 is neither a content-based restraint on the freedom of speech in violation of the First Amendment of the United States Constitution nor an impermissible regulation of the content of speech during union leave. States have the authority to regulate the speech of their employees under certain conditions. The First Amendment protects a public employee’s speech when that speech involves a matter of public concern and is not outweighed by the interests of the state employer. Rule 1-5.7 is limited to specific conduct while an employee is performing the duties of a public employee. The state’s interest in preventing political activity while on actual duty overrides the employee’s interest in engaging in such activity. It is evenhanded in its application, uniformly prohibiting certain political activities by employees engaged in the performance of their actual duties, defined to include all times when the employee is performing the duties of a state employee. Likewise, it does not violate the protection provided by the Equal Protection Clause of the Michigan Constitution. While employees on occasion will be treated differently than other employees, especially in regard to benefits such as union leave to which they are entitled, the designation of union leave as actual duty does not violate equal protection. Further, the rule is not overbroad. It does not substantially interfere with conduct that the state cannot prohibit. Rather, it addresses a specific political activity by state employees when they are performing their duties as state employees. Under the constitution and the political freedom act, the state can regulate this behavior. This prohibition is consistent with the recognized interest of the state in preventing politics from interfering with the performance of classified state employees. In addition, the rule is not vague. It gives fair notice of the conduct prohibited. It is clear that both partisan and nonpartisan political activity are barred from working hours. Sachs, Waldman, O’Hare, Helveston, Bogas & McIntosh, P.C. (by Andrew Nickelhoff and Theodore Sachs'), for the plaintiffs. Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Deborah Anne Devine, Assistant Attorney General, for the defendants. Amicus Curiae: Robert A. Sedler and Paul Denenfeld for American Civil Liberties Union Fund of Michigan. Cavanagh, J. This is an appeal by the Michigan State AFL-CIO, challenging the validity of Civil Service Rule 1-5.7, modified effective July 14, 1988, prohibiting the use of union leaves of absence for partisan political activity. We hold that the revised rule violates the political freedom act enacted by the Michigan Legislature. i This case presents a rather long, factual and procedural history. In December 1987, the United Auto Workers-Conununity Action Program (UAW-CAP) and the Michigan Democratic Party sponsored a training seminar on election campaign strategies. The Office of the State Employer was given notice of the three-day seminar; however, it was unaware that the seminar would involve partisan political issues. Fifty-six state employees who were members of the UAW Local 6000 attended the seminar. Thirty-seven employees used the union sponsored administrative leave buy-back program, under which the union reimbursed the state the net salary of the employees for the period of absence. Seventeen employees invoked the union officer leave, pursuant to a collective bargain, under which the union reimbursed the state for the gross total cost of the employee’s wages and the employer’s share of insurance premiums and retirement. One employee invoked the administrative leave bank 1, under which the employee suffered no loss of pay or benefits and one employee used his own time, which was not provided for under any leave arrangement. In response to a letter from two Republican legislators, State Representative Frank Fitzgerald and Senator William Sederburg, the Civil Service Commission investigated the December 1987 meeting. As a result of the investigation, the commission issued a strong statement that partisan political activities are not to be engaged in by employees who are on administrative leave or who have been released from work under conditions specified for “union business” in bargaining agreements. The Department of Civil Service stated, “An employee using his or her authorized annual leave is not restricted, but annual leave used for partisan political purposes may not be ‘bought back’ under union business provisions . . . .” As a result of the controversy over the December 1987 meeting, the commission revised its rule relating to the activity prohibited during work hours. The old rule provided: 1-5.7 Prohibited During Work Hours.- — -Activities permitted under Sections 1-5.1 and 1-5.5 shall not be engaged in by a classified employee during the hours the employee is on actual duty.[] The new rule provides: 1-5.7 Prohibited During Work Hours. — Activities permitted under sections 1-5.1 and 1-5.5 shall not be engaged in by a classified employee during the hours the employee is on actual duty. Actual duty includes the employee’s scheduled work hours and overtime. Off duty includes all time outside scheduled work hours and overtime, annual leave, unpaid leave of absence, lost time and leave granted to the employee to become a full time employee of an employee organization holding exclusive representation rights, pursuant to an approved collective bargaining agreement. For purposes of this rule, employees released from their regular state workplace for union activities, union business or any other employee organization purpose under any leave agreement, including “annual leave buy-back” provisions, shall be considered to be on actual duty, assigned by the employer to take part in union activities deemed to be in the best interests of the state and not including partisan political activity. In response to the rule change, an objection was filed by every employee organization exclusively representing state classified employees, representing in the aggregate approximately seventy-two percent of the state classified work force, or roughly 44,600 individuals. The employees’ objections stemmed from the commission’s exclusion of partisan political activities while on union leave, while allowing partisan political activities while on other types of leave. To fully understand the employees’ objections, it is necessary to review the different types of leave of absences that are available to an employee: 1. Leave for Union Business. There are seven types of leave for union business. The employee is compensated by the state in whole or in part. 2. Jury Duty Leave. The employee is granted administrative leave for jury duty, with full pay. 3. Time off for Court Appearances. The employee is entitled to administrative leave with full pay. However, if an employee appears in court in any capacity other than as a witness for the People, he or she will not be considered as being on duty, nor will administrative leave be granted. 4. Sick Leave. The employee may use accrued sick time, annual leave, or lost time to cover periods of approved medical absence. All sick leave must be approved by the employer. 5. Annual Leave. Initial annual leave is available upon approval of the employer, for such purposes of voting, religious observances, and necessary personal business. 6. Paid Leave. The employee is authorized to use paid leave for education and systematic improvement of knowledge or skills required in the performance of their work. The State Personnel Director reviewed the objections filed by the employees; however, it found no basis for delaying the effective date of the enactment of the revised rule. Therefore, on July 14, 1988, the revised rule became effective. The employee unions commenced the instant action in Wayne Circuit Court for a preliminary and permanent injunction restraining enforcement of revised Rule 1-5.7, and for declaratory relief. The parties filed cross-motions for summary disposition. On October 28, 1988, the circuit court granted summary disposition for plaintiffs. It ruled that the plaintiff employee organizations had standing to assert the claims and that the commission had exceeded its authority and violated the Michigan political freedom act. The trial court did not reach the constitutional issues raised in counts I and in of the complaint. The commission appealed, and the Court of Appeals affirmed in part, reversed in part, and remanded the case for further proceedings. 191 Mich App 535; 478 NW2d 722 (1991) (hereinafter AFL-CIO I). The Court of Appeals affirmed the ruling that plaintiffs had standing to seek a declaratory judgment. Id. at 544-549. However, it reversed the ruling that the revised rule violated the political freedom act. Plaintiffs argued that union leave is “off-duty” time that is beyond the scope of regulation by the Civil Service Commission. However, the Court rejected plaintiffs’ characterization of union leave as “off-duty” time because Rule 1-5.7 defines union leave time as “actual-duty.” AFL-CIO I at 550-551. The Court stated that actual duty means on-the-job behavior related to job performance, including activities of classified employees during work hours for which they are being compensated. The Court relied on Council No 11, AFSCME v Civil Service Comm, 408 Mich 385, 408; 292 NW2d 442 (1980), in which this Court stated that “the commission’s ‘sphere of authority’ delimits its rule-making power and confines its jurisdiction over the political activity of classified personnel to on-the-job behavior related to job performance.” The Court of Appeals held that a prohibition against political activity by classified employees is permissible under the political freedom act if three conditions are satisfied: (1) The classified employee receives some form of compensation for the time spent on leave, (2) The employee would be performing duties at the usual job site if the employee were not on leave, and (3) The employee is permitted to leave for a specific purpose approved by the employer. [AFL-CIO I, supra at 550.] The Court concluded that the release of employees under union leave was part of the employees’ duties for which they were compensated, therefore the union leave programs at issue did not implicate classified employees’ off-duty activities. The Court remanded the case for consideration of plaintiffs’ pending constitutional claims. Id. at 552. The parties again filed cross-motions for summary disposition with respect to the constitutional claims. Judge Hausner granted summary disposition for the commission, finding that the rule did not violate equal protection or due process, and further that there was no violation of free speech and association. After remand, plaintiffs appealed, and in a decision issued February 6, 1995, the Court of Appeals affirmed the dismissal of plaintiffs’ constitutional claims. 208 Mich App 479; 528 NW2d 811 (1995) (hereinafter AFL-CIO II). It held that the revised rule affects the Civil Service Commission’s “legitimate ban on partisan political activity during actual-duty hours. Nothing in this rule offends a recognized Michigan or federal constitutional right to free speech or assembly. The state government, as an employer, most assuredly may restrict the partisan political activity of its employees while they are on duty.” Id. at 491. The Court also disagreed with the plaintiffs that the revised rule is unconstitutionally vague and over-broad, and that it violates equal protection and due process. It affirmed the decision of the trial court on remand. Plaintiffs filed a delayed application for leave to appeal to this Court. In an order dated December 19, 1995, this Court remanded to the Court of Appeals “to address plaintiffs’ argument that Rule 1-5.7 unconstitutionally bans speech and association on the basis of the content of the speech.” The Court of Appeals issued a supplemental opinion on remand on March 8, 1996, unpublished opinion per curiam (Docket No. 191523), which stated in part, “[t]he rule arose out of a specific incident of partisan political activities while employees were on union leave and the Commission amended the rule to address that problem. Unless and until evidence is adduced that the Commission fails to prevent other partisan political activity that comes to its attention in a similar fashion, we cannot identify a content-based abrogation of speech or association rights, much less a violation of equal protection.” The plaintiffs again appealed to this Court, and this Court granted leave on May 22, 1996. 451 Mich 898. n Initially, defendant asserts that plaintiffs failed to appeal the decision of the Court of Appeals in AFL-CIO I to this Court pursuant to MCR 7.301(C)(3) and (4), and instead pursued remand. As a consequence, defendant asserts, this Court is divested of its jurisdiction to review the determinations made in AFL-CIO I, and those determinations are now the law of the case. We reject defendant’s argument. MCR 7.302(C)(4) provides: If the decision of the Court of Appeals remands the case to a lower court for further proceedings, an application for leave may be filed within 21 days after (a) the Court of Appeals decision ordering the remand, or (b) the Court of Appeals decision disposing of the case following the remand procedure, in which case an application may be made on all issues raised in the Court of Appeals, including those related to the remand question. We agree with plaintiffs that MCR 7.302(C)(4) gives the parties the option, after a Court of Appeals judgment ordering remand, of seeking immediate appeal or of waiting until proceedings following remand are completed, before seeking plenary appeal. The commentary to the rule provides guidance: New MCR 7.302(C)(4)-(6) clarifies the parties’ options when a decision of the Court of Appeals remands the case to the trial court for further proceedings. Basically, a party may immediately appeal to the Supreme Court or may await the conclusion of the proceedings in the trial court and in the Court of Appeals following the remand. Therefore, we retain jurisdiction over both AFL-CIO I and AFL-CIO II. m THE POLITICAL FREEDOM ACT The political freedom act is an uncommon exercise of the Legislature’s power to protect and insure the personal freedoms of all citizens, “including the rights of free speech and political association . . . Council No 11, supra at 394. As a unanimous Court stated, the act “undertakes to authorize and extend to a specific class of citizens — employees in the state classified civil service — the right to engage in partisan political activity . . . while on mandatary leave of absence.” Id. at 395. In Council No 11, this Court stated: We do not question the commission’s authority to regulate employment-related activity involving internal matters such as job specifications, compensation, grievance procedures, discipline, collective bargaining and job perfo

HECHT v NATIONAL HERITAGE ACADEMIES, INC Docket No. 150616. Argued March 10, 2016 (Calendar No. 3). Decided July 26, 2016. Craig Hecht brought an action in the Genesee Circuit Court alleging that his employment was terminated by National Heritage Academies, Inc., in violation of the Michigan Civil Rights Act (CRA), MCL 37.2101 et seq. Plaintiff had been employed as a teacher by defendant when he made racially charged comments. When later questioned about the comments by his supervisors, plaintiff provided inconsistent explanations. Plaintiff also allegedly attempted to interfere with his supervisors’ investigation of the incident by asking a witness to change his statement about what had happened. Plaintiff was subsequently terminated. Plaintiff asserted that his attempts to find new employment as a teacher were hampered by defendant’s mandatory statutory disclosures to other schools of his record of unprofessional conduct. Before trial, defendant moved to preclude plaintiff from presenting evidence of the disclosures because the disclosures were required by MCL 380.1230b and a school employer that discloses information in good faith under the statute is immune from civil liability for the disclosure. The court, Geoffrey L. Neithercut, J., ruled that the evidence was admissible. Defendant moved for a directed verdict at the close of plaintiffs case in chief, arguing that this was a disparate-treatment discrimination case and plaintiff had not shown that any of defendant’s other employees engaged in the same or similar conduct. The court denied the motion. The jury returned a verdict in favor of plaintiff, finding that he had proved that race was a factor in his termination, that he had shown $50,120 in past economic loss, and that he had shown $485,000 in future economic loss. Defendant moved for judgment notwithstanding the verdict (JNOV), a new trial, or remittitur. The court denied the motion. The Court of Appeals, Sekvitto, P. J., and Cavanagh, J. (Wilder, J., dissenting), affirmed in an unpublished opinion. The Supreme Court granted defendant’s application for leave to appeal. 498 Mich 877 (2015). In an opinion by Chief Justice Young, joined by Justices Markman, Zahra, McCormack (as to Parts I, II, and III), Viviano, Bernstein (as to Parts I, II, and III), and Larsen, the Supreme Court held,'. In light of the circumstantial evidence presented and all the inferences that could have been reasonably drawn from that evidence in favor of the jury’s liability verdict, a reasonable jury could have concluded that defendant violated the CRA. However, because MCL 380.1230b afforded defendant complete immunity from civil liability flowing from the mandatory disclosures compelled by that statute, the trial court erred by allowing the jury to consider the disclosure evidence. Accordingly, the award of future damages had to be vacated and the case remanded for further proceedings. 1. When reviewing a motion for JNOV, an appellate court must construe all the evidence and the inferences arising from the evidence in the nonmoving party’s favor. If reasonable jurors could have honestly reached different conclusions, the jury verdict must stand. Under MCL 37.2202(1) of the CRA, an employer may not discharge or otherwise discriminate against an individual with respect to employment because of race. A claim under the CRA requires proof of “but for” causation. There are multiple ways to prove that a plaintiff was the victim of unlawful discrimination, including direct evidence of discrimination, i.e., evidence that proves impermissible discriminatory bias without additional inference or presumption. In this case, however, contrary to the conclusion of the Court of Appeals majority, defendant failed to present direct evidence of discrimination. One way of proving unlawful discrimination without direct evidence is by showing that the plaintiff was treated unequally to a similarly situated employee who did not have the characteristic protected under the CRA. Thus, an employer’s differing treatment of employees who were similar to the plaintiff in all relevant respects, except for their race, can give rise to an inference of unlawful discrimination. In order for this type of evidence to give rise to such an inference, the similarly situated employee must be nearly identical to the plaintiff in all relevant respects. In this case, plaintiff presented a different kind of circumstantial evidence: circumstantial evidence that his employer considered his race in its decision to discharge him. Plaintiff argued that the black employees routinely engaged in racial banter, but were not disciplined. There were distinctions between the comments made by plaintiff and those made by defendant’s black employees that, if credited by the jury, might have allowed the jury to find for defendant. However, plaintiff presented additional evidence that defendant considered plaintiffs race in terminating him. Specifically, plaintiff also presented evidence that defendant’s management employees were aware of and tolerated the unequal enforcement of defendant’s stated zero-tolerance policy. The evidence, if believed, suggested that defendant’s management employees prohibited negative stereotyping in the workplace except when negative stereotyping comments were made by defendant’s black employees. The jury was thus shown the difference between defendant’s policy in theory and its racially biased application. This was potent circumstantial evidence of defendant’s allegedly racially biased decision-making. This evidence could have allowed a reasonable jury to conclude that defendant applied a different standard to plaintiffs conduct based on his race. Accordingly, the jury could reasonably have found that race was a ‘Tut for” cause in defendant’s decision to investigate plaintiff and escalate punishment for his racial comments. Similarly, while defendant presented nondiscriminatory reasons for its decision to terminate plaintiff, plaintiff presented sufficient evidence for a reasonable juror to reject those race-neutral reasons as unbelievable. The jury’s verdict, finding a violation of the CRA, was supported by the totality of the evidence presented and the reasonable inferences in plaintiffs favor that could be drawn from that evidence. 2. Generally, all relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the state of Michigan, the rules of evidence, or other rules adopted by the Supreme Court. Evidence may also be prohibited by statute. MCL 380.1230b provides that before hiring an applicant for employment, school employers must request that the applicant sign a statement (1) authorizing the applicant’s current or former employer or employers to disclose to the school employer any unprofessional conduct by the applicant, and (2) releasing the current or former employer from any liability for providing that information. Before hiring an applicant for employment, a school employer must request that the applicant’s current or prior employer provide information concerning the applicant’s unprofessional conduct, if any. After receiving such a request, a school employer must provide the information requested and make available to the requesting school employer copies of all documents in the employee’s personnel record relating to the unprofessional conduct. A school employer that discloses information in good faith under the statute is immune from civil liability for the disclosure. In this case, plaintiff argued that he was not precluded from presenting evidence of the mandatory disclosure because he did not sue for the disclosure itself—he sued for a violation of the CRA and presented evidence of the adverse impact of the disclosure to establish future damages. Plaintiffs belief was that only a direct action for the disclosure, e.g., a defamation claim, was precluded by MCL 380.1230b(3), but the admission of evidence of the disclosures in a case such as this was permissible. The term “civil liability’ is defined as being legally obligated for civil damages. The trial court’s decision to admit evidence and argument regarding the mandatory disclosures for the purpose of assessing damages allowed the jury to impose against defendant legal obligations arising from the disclosure. This violated the plain language of the statute. There can be no damages without liability. A legislative decision to preclude liability necessarily precludes damages on the same basis. There is no textual support for the view that immunity under the statute depends on the nature of the claim underlying the civil liability. The improper admission of the disclosure evidence tainted the jury’s future damages award, which had to be vacated. Court of Appeals judgment is affirmed to the extent it held that plaintiff presented sufficient circumstantial evidence to sustain the jury’s verdict finding that defendant violated the CRA; Court of Appeals judgment is reversed to the extent it held that the trial court properly admitted evidence of defendant’s mandatory disclosures of plaintiffs unprofessional conduct; jury award of future damages is vacated; case is remanded to the trial court for further proceedings. Justice McCormack, joined by Justice BERNSTEIN, concurring in part and dissenting in part, agreed with the majority that plaintiff presented sufficient evidence of discrimination such that the trial court did not err by denying defendant’s motion for JNOV, but disagreed with the majority’s decision to vacate the jury award for future damages. MCL 380.1230b(3) confers immunity from liability, i.e., the state of being legally obligated for damages, “for the disclosure,” not from paying money as compensation for a state of legal responsibility unrelated to the disclosure. Because the statutory immunity is tied to the liability and not the remedy, MCL 380.1230b(3) only precludes imposing liability (and damages flowing therefrom) on a defendant when the liability arises from an injury caused by the disclosure itself. Disclosing plaintiffs unprofessional conduct did not create additional legal responsibility for which defendant was on the hook; rather, it was the alleged illegal act of discharging plaintiff based on his race that gave rise to defendant’s liability. The injury from which the liability arose was the discriminatory discharge, not the disclosures. Introducing evidence of defendant’s disclosures of plaintiffs conduct merely assisted the jury in determining the appropriate remedy for the discriminatory discharge. Because plaintiffs injury was the discriminatory discharge rather than defendant’s disclosures, and because it was the discriminatory discharge for which defendant was held liable, the future damages award did not constitute civil liability for the disclosure, and the award of future damages should have been affirmed. 1. Actions — Violations of the Civil Rights Act — Sufficiency of the Evidence — Causation. Under MCL 37.2202(1) of the Civil Rights Act, an employer may not discharge or otherwise discriminate against an individual with respect to employment because of race; a claim under the act requires proof of “but for” causation; there are multiple ways to prove that a plaintiff was the victim of unlawful discrimination, including through proofs of either direct or circumstantial evidence of discrimination. 2. Schools — Disclosures of Unprofessional Conduct — Immunity from Civil Liability for Disclosures — Inadmissibility of Evidence of Disclosures to Assess Damages in a Discrimination Case. Under MCL 380.1230b, before hiring an applicant for employment a school employer must request that the applicant’s current or prior employer provide information concerning the applicant’s unprofessional conduct, if any; after receiving such a request, a school employer must provide the information requested and make available to the requesting school employer copies of all documents in the employee’s personnel record relating to the unprofessional conduct; a school employer that discloses information in good faith under the statute is immune from civil liability for the disclosure; evidence of such a disclosure is not admissible for the purpose of assessing the plaintiffs damages arising out of the disclosure in a case brought by a plaintiff alleging that he or she was fired in violation of the Michigan Civil Rights Act, MCL 37.2101 et seq. Law Office of Glen N. Lenhoff (by Glen N. Lenhoff and Robert D. Kent-Bryant) and Rizik & Rizik, PC (by Michael B. Rizik, Jr.), for plaintiff. Warner Norcross & Judd LLP (by John J. Bursch, Dean F. Pacific, and Matthew T. Nelson) for defendant. Amici Curiae: Bill Schuette, Attorney General, Aaron D. Lind-strom, Solicitor General, Matthew Schneider, Chief Legal Counsel, Kathryn M. Dalzell, Assistant Solicitor General, and Mark G. Sands, Assistant Attorney General, for the Attorney General. Miller, Canfield, Paddock and Stone, PLC (by Clifford W. Taylor, Paul D. Hudson, and Brian M. Schwartz), for the Michigan Manufacturers Association. YOUNG, C.J. In this race discrimination case, we must decide whether the trial court erred by denying defendant’s motion for judgment notwithstanding the verdict (JNOV) and determine the propriety of the admission of evidence of defendant’s mandatory reporting under MCL 380.1230b. We hold that the Court of Appeals did not err by affirming the trial court’s denial of defendant’s motion for JNOV on plaintiffs claim of discrimination under the Civil Rights Act (CRA), MCL 37.2101 et seq. Contrary to the Court of Appeals, we conclude that there was no direct evidence of discriminatory animus concerning the firing of plaintiff. This case turned on circumstantial evidence—on the credibility of plaintiffs proofs that suggested there were racial reasons for his treatment and on the credibility of defendant’s nonracial justifications for firing him. We conclude, based on the evidence presented and all the inferences that could be reasonably drawn from that evidence in favor of the jury’s liability verdict, that a reasonable jury could have concluded that defendant violated the CRA. Finally, because MCL 380.1230b afforded defendant complete immunity from civil liability flowing from the mandatory disclosures compelled by this statute, we hold that the trial court erred by allowing the jury to consider evidence of defendant’s statutorily mandated disclosures of plaintiffs wrongdoing to other schools, and the Court of Appeals erred by affirming the trial court’s decision in that regard. For these reasons, we reverse in part and affirm in part the judgment of the Court of Appeals, vacate the jury award for future damages, and remand to the trial court for further proceedings consistent with this opinion. I. FACTS AND PROCEDURAL HISTORY Defendant, National Heritage Academies, Inc., is a company that owns and operates a number of public, independently operated schools, including Linden Charter Academy (LCA) located in Flint, Michigan. The student body at LCA is predominantly black. Plaintiff, Craig Hecht, is a white teacher who had been employed by defendant at LCA for approximately eight years, most recently serving as a third-grade teacher. We draw from the evidence adduced at trial the following narrative concerning the events that led to plaintiffs termination. On November 3, 2009, Lisa Code, a white library aide at LCA, entered plaintiffs classroom during class time to return a computer table she had borrowed. Upon her arrival, however, Code realized that she had brought back the wrong table— the one she borrowed was white, whereas the one she returned was brown. Noting her error, Code asked plaintiff if he would prefer to have a white table, like the one she borrowed, or the brown one she had returned. Plaintiff responded, “[Y]ou know I want a white table, white tables are better.” He continued, “[W]e can take all these brown tables and we can burn the brown tables.” Also present for this exchange was Floyd Bell, a black paraprofessional assigned to plaintiffs classroom. After hearing plaintiffs comments, Bell and Code both “called a foul” on plaintiff, in accordance with the school’s informal procedures for addressing inappropriate personal conduct. Plaintiff denied hearing either Bell or Code call a foul on him, but later acknowledged that his comments were meant to imply that “white” people are better than “brown” people. Later that same day, Code reported the incident to Corrine Weaver, the dean of LCA. Weaver, in turn, reported the incident to her supervisor, Linda Caine-Smith, the principal of LCA, who initiated an investigation. Caine-Smith and Weaver each separately interviewed plaintiff, Bell, and Code and took written statements from all three. Although Code’s testimony at trial emphasized that plaintiff made the statements in front of a child, plaintiffs counsel also elicited testimony from Code that her November 4th written statement did not include that allegation. When questioned, plaintiff provided varying explanations regarding what had happened. At first, plaintiff confirmed to Weaver the general discussion about white and brown tables, but he denied that he meant anything racial by his statements. The following day, plaintiff told Caine-Smith that he never said “brown should burn.” However, later that day, plaintiff sent Caine-Smith a written statement in which he admitted to saying, “white tables are better than brown tables” and “all brown tables should burn.” He also admitted that he involved a third-grade student in the “jok[e]” after he made the comments. Plaintiff subsequently met with Bell, apologized to him, and shook his hand. At this point in the investigation, Caine-Smith contacted Courtney Unwin, defendant’s employee relations manager, to discuss plaintiffs conduct and Caine-Smith’s belief that plaintiff had lied during their initial conversation regarding the incident. Unwin then spoke directly to plaintiff, who, despite the admissions made in his earlier written statement, told her that his remark was simply a “tasteless joke,” denied involving a student in the joke, and claimed that none of his students heard the exchange. Unwin also claimed that plaintiff called her later that day, stated that he could not even remember saying anything about brown tables burning, and then justified his conduct by reference to racial banter he suggested was regularly engaged in by black teachers at LCA. Plaintiff claimed that he told Unwin he was just kidding around, that similar joking happened all the time at the school, and that he would do anything to make it better. Caine-Smith and Unwin met to discuss plaintiffs comments in the classroom and his versions of the incident. They discussed several disciplinary options, including a final written warning and termination. After that meeting, Caine-Smith called plaintiff to her office and told him he was being placed on immediate leave pending further investigation. Instead of leaving the building, plaintiff went into a room in which Bell was tutoring students. Plaintiff asked the students to leave the room so that he and Bell could speak privately. He then asked Bell to change the statement he gave defendant. Bell declined the request and explained that he would not lie for plaintiff. Plaintiff also tried to contact Code by calling both her home and cellular phones. Code did not answer either call, but plaintiff left a voicemail stating that he was “desperate” to speak to her. Code testified that plaintiff had never before tried to contact her. Code further testified that plaintiff never asked her to change her statement. The following day, Bell told Caine-Smith that plaintiff had asked him to lie. After receiving this information, Caine-Smith worried that plaintiff had similarly contacted Code. When asked, Code told Caine-Smith about the voicemail, causing Caine-Smith to consult with Unwin again.

HENRY v LABORERS’ LOCAL 1191 RAMSEY v LABORERS’ LOCAL 1191 Docket Nos. 145631 and 145632. Argued October 8, 2013 (Calendar No. 2). Decided May 5, 2014. Anthony Henry and Keith White brought an action in the Wayne Circuit Court against Laborers’ Local 1191 (a labor union that represents construction workers), Michael Aaron (the union’s business manager), and Bruce Ruedisueli (the union’s president), alleging that their indefinite layoff from employment at the union was unlawful retaliation under the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq. Henry and White had worked as business agents for the union until their terminations. They alleged that defendants asked several union members to repair the fagade of the Trade Union Leadership Council building. The union recorded payments for the work as picket duty even though the members did not engage in picket duty on those days. Henry and White believed that Aaron was involved in criminal activity, including fraud, an illegal kickback scheme, and misappropriation of union funds. They also believed that the union had required members to work without proper safety precautions and without receiving union wages. Henry circulated an unsigned open letter to the union’s leadership and distributed it to the union’s membership, the union’s parent leadership, and local news outlets. The letter asked why the union was paying members out of its picket fund to work on a for-profit establishment and suggested that Aaron had received illegal kickbacks from the council in exchange for providing the council free construction labor. Henry and White subsequently contacted the United States Department of Labor with their suspicions and informed the union of their decision to report the allegations. The Department of Labor investigated the allegations and interviewed several union employees and officials. It referred the matter to an assistant United States attorney, who declined to intervene. Aaron later notified Henry and White that they had been indefinitely laid off from employment at the union. During the pendency of Henry and White’s action, Michael Dowdy and Glenn Ramsey (also business agents for the union) were terminated from their employment. Dowdy and Ramsey filed a separate WPA action in the Wayne Circuit Court against the union, Aaron, and Ruedisueli, claiming that they had been terminated for their cooperation in the Department of Labor’s investigation and disclosing to investigators facts substantiating the allegations of criminal misconduct. Defendants moved for summary disposition in the Henry/White lawsuit and for partial summary disposition in the Dowdy/Ramsey lawsuit, alleging that the Labor-Management Reporting and Disclosure Act (LMRDA), 29 USC 401 et seq., preempted plaintiffs’ WPA claims and that, as a result, the court lacked subject-matter jurisdiction to hear them. The court, Jeanne Stempien, J., denied both motions, concluding that the WPA’s protection of an employee against an employer’s retaliatory employment actions does not contravene the LMRDA because the LMRDA only protects from retaliation the rights afforded union members. Defendants appealed in each case, reasserting their claim of LMRDA preemption and raising the new defense that the National Labor Relations Act (NLRA), 29 USC 151 et seq., independently preempted the circuit court from exercising subject-matter jurisdiction. The Court of Appeals, Ronayne Krause, RJ., and Saad and Wilder, JJ., consolidated the appeals and affirmed in an unpublished opinion per curiam, issued July 3, 2012 (Docket Nos. 302373 and 302710), agreeing that plaintiffs had not alleged any infringement of their membership rights and that, as a result, the LMRDA’s protections did not cover their claims. The panel also held that the WPA did not undermine the LMRDA’s purpose of giving elected union officials the discretion to implement policies that reflect the wishes of union membership because claims of wrongful discharge for refusing to commit or aid in committing a crime did not infringe the union leaders’ discretion Finally, the panel held that the NLRA did not preempt plaintiffs’ claims because a claim for retaliatory discharge arising out of an employee’s report of suspected illegal activity or participation in an investigation of it is only of peripheral concern to the NLRA’s purpose of protecting employees’ rights to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. The Supreme Court granted defendants’ applications for leave to appeal. 493 Mich 934 (2013). In an opinion by Justice Kelly, joined by Chief Justice Young and Justices Cavanagh, Markman, McCormack, and Viviano, the Supreme Court held: Neither the National Labor Relations Act nor the Labor-Management Reporting and Disclosure Act preempts Whistleblowers’ Protection Act claims premised on retaliation for reporting suspected criminal misconduct, and state courts have subject-matter jurisdiction over those claims. 1. Preemption is fundamentally a question of congressional intent. Congress can preempt state law either explicitly or implicitly. In the absence of explicit statutory language, state law is preempted when it regulates conduct in a field that Congress intended the federal government to occupy exclusively or when it actually conflicts with federal law. There is no single formula to apply preemption principles in all contexts. Rather, a court must examine congressional intent to preempt state law in the specific context of the statute or statutes at issue, in this case how the WPA operates against the background of the NLRA and the LMRDA. 2. With respect to the NLRA, § 7 of that act, 29 USC 157, states that employees have the rights to self-organization; form, join, or assist labor organizations; bargain collectively through representatives of their own choosing; and engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. Section 8(a)(1), 29 USC 158(a)(1), states that it is an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by § 7. The NLRA both creates federal rules regarding labor relations and delegates enforcement of that policy to an administrative agency, the National Labor Relations Board (NLRB). When am activity is arguably subject to § 7 or § 8 of the act, the states and the federal courts must defer to the exclusive competence of the NLRB to avert the danger of state interference with national policy. “Arguably subject” means that the party asserting preemption must advance an interpretation of the act that is not plainly contrary to its language and has not been authoritatively rejected by the courts or the board. There are two related exceptions to preemption of state law regulations that are arguably subject to § 7 or § 8. The first is when the activity regulated is merely a peripheral concern of the NLRA. The second is when the regulated conduct touches interests so deeply rooted in local feeling and responsibility that in the absence of compelling congressional direction, a court could not infer that Congress had deprived the states of the power to act. Courts must consider whether there exists a significant state interest in protecting the citizen from the challenged conduct and whether the exercise of state jurisdiction over the state claim entails little risk of interference with the regulatory jurisdiction of the NLRB. When the conduct at issue in the state litigation is arguably prohibited by the NLRA and thus within the exclusive jurisdiction of the NLRB, the critical inquiry in determining whether an exception applies is whether the controversy presented to the state court is identical with that which could he presented to the board. When it is identical, states cannot subject violators to a supplemental sanction for violations of the NLRA. 3. With respect to the LMRDA, 29 USC 411(a)(2) protects union members’ freedom of expression and assembly by giving every member the right to meet and assemble freely with other members; express any views, arguments, or opinions; and express at meetings the member’s views on any business properly before the meeting. It also gives union members procedural protections against discipline by the union. When a plaintiff has dual status as both an employee and a member of the union, the LMRDA only provides protection from discipline in the member’s capacity as a member, not in his or her capacity as an employee. This limitation ensures the freedom of elected union leaders to choose staff whose views are compatible with their own, which is an integral part of the LMRDA’s purpose of ensuring a union administration’s responsiveness to the mandate of a union election. Because conduct protected under the LMRDA does not extend to a union member’s rights as an employee, a state-law retaliation claim brought by a union employee as an employee is preempted to the extent that it conflicts with the LMRDA’s purposes. Likewise, the LMRDA preempts state law that would unduly limit the discretion of union officials to select their employees. As a result, when a union employee brings a state-law retaliation claim as an employee, a court must analyze whether the claim conflicts with the LMRDA’s purpose and goal of protecting democratic processes in union leadership. A state-law retaliation claim is not preempted when it does not conflict with the purposes of the LMRDA. The discretion the LMRDA affords unions to choose their employees is not limitless. The act does not preempt state wrongful-termination claims in cases in which elected union officials attempt to use their discretion as a shield to hide alleged criminal misconduct. Any other conclusion would undermine the explicit purpose of the LMRDA to eliminate or prevent improper practices on the part of labor organizations, employers, labor-relations consultants, and their officers and representatives. In fact, protecting union employees from retaliation when they raise claims of criminal wrongdoing helps to protect the interests of rank-and-file union members and safeguard union democracy and, as a result, achieve the purposes of the LMRDA. 4. The WPA specifically regulates an employer’s retaliation against employees who report a violation or suspected violation of law. MCL 15.362 provides that an employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee reports or is about to report a violation or a suspected violation of a law or regulation or rule to a public body or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body or a court action. 5. When assessing claims of NLRA preemption, it is the conduct being regulated, not the formal description of governing legal standards, that is the proper focus. The specific conduct plaintiffs alleged in their WPA claims is that defendants unlawfully retaliated against them for reporting suspected wrongdoing to the Department of Labor. Plaintiffs’ allegations of wrongdoing fell into two general categories: (1) improper working conditions (that workers were paid unfairly and were not provided with necessary safety precautions) and (2) criminality (that defendants were engaged in fraud, embezzlement, and misuse of union funds). Basic to the right guaranteed to employees in § 7 of the NLRA to form, join or assist labor organizations is the right to engage in concerted activities to persuade other employees to join for their mutual aid and protection. The mutual-aid-or-protection clause in § 7 protects employees from retaliation by their employers when they seek to improve working conditions through resort to administrative and judicial forums, among other activities intended to improve working conditions. Similarly, the relevant inquiry when examining whether activity is concerted is whether the employee acted with the purpose of furthering group goals. 6. The NLRA preempted plaintiffs’ WPA claims related to improper working conditions. Plaintiffs unquestionably acted with the purpose of furthering group goals when they disputed the working conditions for union members. Their claims of unfair wages and an unsafe work environment were prototypical issues of dispute under the NLRA. Therefore, plaintiffs’ conduct to improve unfair wages and an unsafe work environment was arguably protected under § 7 of the NLRA, and § 8 specifically prohibited defendants from retaliating against plaintiffs for engaging in conduct protected under § 7. Neither of the two exceptions to NLRA preemption applied to plaintiffs’ concerted activity regarding working conditions because those conditions are of central, not peripheral, concern to the NLRA’s purposes. Because this protection has been central to the NLRA’s purposes for nearly 80 years, the more recent attempt of the WPA to regulate retaliation for an alleged unfair labor practice does not touch interests so deeply rooted in local feeling and responsibility that a court could not infer that Congress intended the NLRB to have exclusive jurisdiction over a state whistleblower claim arising out of complaints regarding an employer’s improper working conditions. 7. The NLRA did not preempt the WPA with respect to plaintiffs’ claims alleging retaliation for reporting defendants’ criminal wrongdoing. While the NLRA regulates employees’ concerted activities for their mutual aid or protection, it does not regulate the reporting of federal and state crimes. Section 7 is not so broad that it protects all concerted activities by employees. At some point the relationship between the concerted activity and the employees’ interests as employees becomes so attenuated that an activity cannot fairly be deemed to come within the mutual-aid- or-protection clause. The allegations of criminal misconduct that plaintiffs communicated to the Department of Labor did not relate to the employer’s labor practices. Rather, a state court can adjudicate the underlying allegations of embezzlement and other criminal misconduct without having to consider an employer’s labor practices or whether employees engaged in protected activity when reporting those allegations. Moreover, Michigan has a deeply rooted and substantial interest in enforcing its criminal laws, which the NLRB has no authority to enforce and which the WPA assists by protecting employees who report allegations of criminal misconduct, interests that are separate from the interests articulated in the NLRA. 8. Plaintiffs’ WPA claims premised on reporting defendants’ alleged criminal misconduct also survived defendants’ assertion of LMRDA preemption. Although the LMRDA does not provide union employees who have been terminated a cause of action for retaliation taken against them as employees, states are not completely forbidden from restricting a union leader’s discretion to terminate a union employee. If a union retaliates against a union employee as an employee, any underlying state-law retaliation claim is preempted only to the extent that it conflicts with the purposes of the LMRDA. States are afforded considerably more freedom to supplement the LMRDA federal scheme as long as no conflict arises between state law and the LMRDA. A union employer’s discretion in employment decisions must yield in cases in which elected union officials attempt to use that discretion as a shield to hide alleged criminal misconduct. As a result, the LMRDA allows state-law retaliation claims to proceed in state courts. Affirmed in part and remanded. Justice Zahra, concurring in part and dissenting in part, joined the majority’s opinion in Parts I, II, 111(A), (C), (D), and IV(B), but dissented from Parts III(B) and IV(A) and the outcome of the case. Justice Zahra agreed that the LMRDA did not preempt plaintiffs’ WPA claims but disagreed with the majority’s conclusion that the NLRA did not preempt those claims. Conduct is arguably prohibited by the NLRA if the underlying activity that is the subject matter of the litigation is arguably subject to the protections of § 7 or the prohibitions of § 8. Plaintiffs’ WPA claims were arguably subject to the NLRA because plaintiffs’ reporting of alleged wrongful conduct was done to assist their labor organization by revealing that the organization’s assets might be subject to depletion through fraud, embezzlement, and misuse of union funds. The union officials, in their capacity as employers, were prohibited by the NLRA from discharging their employees simply because the employees reported their suspicions of illegal activity that would harm the union. Moreover, plaintiffs’ claims did not fall within what is effectively one exception to NLRA preemption for deeply rooted state interests that are of peripheral concern to the NLRA. In general, when courts determine the applicability of the exception, they effectively presume that claims grounded in state law reflect deeply rooted state interests and inquire instead whether the conduct at issue is of peripheral concern to the NLRA, engaging in a fact-intensive inquiry to decide whether both the NLRA and the state statute, as applied, prohibit the complained-of activity. When the NLRA and state law do not prohibit the same conduct, the preemption exception will apply. Plaintiffs’ claims here sounded in retaliatory discharge. They reported alleged criminal conduct that triggered protection under the WPA and simultaneously assisted a labor organization, which entitled their activity to NLRA protection. Thus, both the WPA and the NLRA prohibited discharge for the protected action, and the NLRA preempted the WPA. In addition, plaintiffs’ WPA claims represented a classic example of unacceptable NLRA circumvention through artful pleading. Justice Zahra would have reversed the judgment of the Court of Appeals and dismissed plaintiffs’ WPA claims because they were preempted by the NLRA. Employers and Employees — Whistleblowers’ Protection Act — National Labor Relations Act — Labor-Management Reporting and Disclosure Act — Federal Preemption of Whistleblower Claims — Criminal Conduct. Neither the National Labor Relations Act, 29 USC 151 et seq., nor the Labor-Management Reporting and Disclosure Act, 29 USC 401 et seq., preempts claims brought under the Whistleblowers’ Protection Act, MCL 15.361 et seq., that are premised on retaliation for reporting suspected criminal misconduct, and state courts have subject-matter jurisdiction over those claims. Joel B. Sklar and Robert Dinges for Anthony Henry and Keith White. Giarmarco, Mullins & Horton, PC (by Ben M. Gonek) for Michael Ramsey and Glenn Dowdy. Legghio & Israel, PC (by Christopher P. Legghio and Michael J. Bommarito) for Laborers’ Local 1191 and Michael Aaron. Law Offices of J. Douglas Korney (by J. Douglas Korney) for Bruce Ruedisueli. Amicus Curiae: Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, and Susan Przekop-Shaw, Jason Hawkins, and Bradley A. Fowler, Assistant Attorneys General, for the Attorney General. KELLY, J. This case involves whether, and the extent to which, plaintiffs’ claims asserted under the Michigan Whistleblowers’ Protection Act (WPA) are preempted by the National Labor Relations Act (NLRA) and the Labor-Management Reporting and Disclosure Act (LMRDA). Plaintiffs allege that defendants violated the WPA when they discharged plaintiffs in retaliation for reporting to the United States Department of Labor their suspicions of fraud, embezzlement, improper wages, and unsafe working conditions or for participating in the Department of Labor’s ensuing investigation. Defendants argue that the NLRA and LMRDA preempt plaintiffs’ WPA claims and, as a result, the state court must dismiss those claims. Congress