CLERICAL-TECHNICAL UNION OF MICHIGAN STATE UNIVERSITY v. MICHIGAN STATE UNIVERSITY BOARD OF TRUSTEES; CLERICAL-TECHNICAL UNION OF MIHCIGAN STATE UNIVERSITY v. MICHIGAN STATE UNIVERSITY

ANZALDUA v BAND ANZALDUA v MICHIGAN STATE UNIVERSITY Docket Nos. 106469, 106471. Argued January 7, 1998 (Calendar No. 12). Decided June 9, 1998. Sharon Anzaldua brought an action under the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq., in the Ingham Circuit Court against Michigan State University and Professor Rudolph Band, alleging that her contract as a research laboratory worker had not been renewed because she had complained to the university’s Environmental Affairs Office about conditions in a university laboratory. The court, Carolyn Stell, J., granted the defendants’ motion to strike the plaintiff’s demand for a jury trial, determining that the act provided no such right. The Court of Appeals, Markman, P.J., and J. D. Payant, J. (O’Connell, X, concurring in part and dissenting in part), reversed, holding that there is a right to a jury trial in an action brought under the act, and that the right exists even when the defendant is a state entity (Docket No. 168358). The defendants appeal. In an opinion by Justice Kelly, joined by Chief Justice Mallett, and Justices Brickley, Cavanagh, and Boyle, the Supreme Court held-. The Whistleblowers’ Protection Act provides a right to a jury trial, and that right exists in suits against the state and its subdivisions. 1. The Whistleblowers’ Protection Act neither requires nor forbids jury trials. Consistent with civil actions generally, the right to a jury under the act depends on the nature of the claim made and the relief sought. Where an action by its nature does not bar a jury trial, the claim is for money damages, there is a provision for bringing the action in circuit court, and the right to a jury is not denied, a plaintiff properly may demand a trial by jury. Use of the term “actual damages” in the act indicates an intent to provide a right to a jury trial in suits brought under the act. Actual damages is a legal, rather than an equitable, remedy, and legal issues are traditionally tried by a jury. Case law has held that a jury is proper where a statute creates a cause of action for actual damages without specifying before whom the action is to be tried. 2. The state’s sovereign immunity from liability and its immunity from suit are not the same. The Whistleblowers’ Protection Act specifically includes the state and its political subdivisions among the bodies to be regulated. Nothing in the act suggests that the state is not to be treated the same as a business for purposes of the act’s protection of non-civil service employees like the plaintiff. The express language of the act indicates that the state must submit to the jurisdiction of the circuit court and, thus, that the court rules apply. The court rules provide that legal actions for money damages are to be tried by a jury on request. Hence, the state may be tried by a jury in Whistleblowers’ Protection Act cases. Reasoning vacated; result affirmed. Justice Taylor, joined by Justice Weaver, dissenting, stated that the Legislature’s failure to mention that a jury may hear or award damages in a Whistleblowers’ Protection Act lawsuit should be given its obvious meaning, i.e., that it did not intend to provide for jury trials in such lawsuits. Nor does Const 1963, art 1, § 14 provide a basis for finding a right to a jury trial under the act because there was no common-law analogue of a whistleblowers’ action when art 1, § 14 was adopted. The Court of Appeals clearly erred when it ruled to the contrary. 216 Mich App 561; 550 NW2d 544 (1996) affirmed in part. Green, Green & Craig, P.C. (by Christine A. Green), for the plaintiff-appellee. Fraser, Trebileock, Davis & Foster, P.C. (by Michael E. Cavanaugh, Mark R. Fox, and Graham K. Crabtree) for defendant-appellant Band. Michael J. Kiley for defendant-appellant Michigan State University. Amici Curiae: Butzel Long (by Leonard M. Niehoff and John C. Blattner), Scott P. HiU-Kennedy, Elizabeth M. Barry, Gloria A. Hage, and Daniel J. Bernard for Ferris State University, University of Michigan, and Wayne State University. Clark, Hill, P.L.C. (by Duane L. Tamacki and J. Walker Henry), for Michigan Manufacturers Association. Roy, Shecter, Mirer & Vocht, PC. (by Jeanne Mirer) for Michigan Trial Lawyers Association. Rentrop, Vanderkloot, Haynes & Morrison, PC. (by Jeffrey K. Haynes and C. Thomas Ludden), for Michigan Environmental Council. Kelly, J. We granted leave in this case to decide whether there is a right to trial by jury in an action under the Whistleblowers’ Protection Act. MCL 15.361 el seq.-, MSA 17.428(1) el seq. If the right does exist, does it obtain when the defendant is the state or one of its political subdivisions? We hold that the act contains a right to a jury trial, and that the right exists in suits against the state of Michigan and its subdivisions. We thus affirm the result reached by the Court of Appeals, but for a different reason. i Plaintiff began an action under the Whistleblowers’ Protection Act in circuit court against Michigan State University and Professor Rudolph Band. She alleged that her contract as a research laboratory worker had not been renewed because she had complained to the university’s Environmental Affairs Office about conditions in a university laboratory. The circuit court granted a defense motion to strike the plaintiff’s jury demand. Plaintiff filed an application for leave to appeal. The Court of Appeals granted the application and held that there is a right to a jury trial in an action brought under the act. 216 Mich App 561; 550 NW2d 544 (1996). It held, also, that the right to jury trial exists even when the defendant is a state entity. We granted defendants’ applications for leave to appeal. 456 Mich 865 (1997). This Court is asked to review the Court of Appeals reversal of the trial court’s decision to deny plaintiff a jury. The trial court granted defendants’ motion to strike plaintiff’s jury demand because it determined that the act provided no right to a jury trial. Defendants pose a question of law, which we review de novo. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991). n A The Legislature designed the Whistleblowers’ Protection Act to protect the public from unlawful conduct by corporations and government bodies. The act protects the public by removing barriers to the reporting of violations of law by employees. Dolan v Continental Airlines, 454 Mich 373, 379; 563 NW2d 23 (1997). It defines “employees” to include essentially all workers except those in state classified civil service. MCL 15.361(a); MSA 17.428(1)(a). It governs “employers.” Under subsection 1(b), the state and its political subdivisions are to be considered employers for its purposes. MCL 15.361(b); MSA 17.428(l)(b). The act forbids employers from retaliating against employees who report, or are about to report, violations of the law. MCL 15.362; MSA 17.428(2). Section 3 describes the steps to be taken by employees who believe that their employers have not complied with the act: (1) A person who alleges a violation of this act may bring a civil action for appropriate injunctive relief, or actual damages, or both within 90 days after the occurrence of the alleged violation of this act. (2) An action commenced pursuant to subsection (1) may be brought in the circuit court for the county where the alleged violation occurred, the county where the complainant resides, or the county where the person against whom the civil complaint is filed resides or has his or her principal place of business. (3) As used in subsection (1), “damages” means damages for injury or loss caused by each violation of this act, including reasonable attorney fees. [MCL 15.363; MSA 17.428(3).] Section 4 delineates the potential remedies that are available to a successful claimant: A court, in rendering a judgment in an action brought pursuant to this act, shall order, as the court considers appropriate, reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages, or any combination of these remedies. A court may also award the complainant all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, if the court determines that the award is appropriate. [MCL 15.364; MSA 17.428(4).] B The foremost rule of statutory construction is to discern and give effect to the intent of the Legislature. Murphy v Michigan Bell Telephone Co, 447 Mich 93, 98; 523 NW2d 310 (1994). See also Nation v W D E Electric Co, 454 Mich 489, 494; 563 NW2d 233 (1997). If statutory language is clear and unambiguous, lawmakers must have intended the meaning they clearly expressed, and the statute must be enforced as written. No further construction is required or permitted. Tryc v Michigan Veterans’ Facility, 451 Mich 129, 135; 545 NW2d 642 (1996). See also Western Michigan Univ Bd of Control v Michigan, 455 Mich 531; 565 NW2d 828 (1997). i There is no express provision in the Whistleblowers’ Protection Act specifying whether an action brought under it is to be tried before a jury or before a judge sitting without a jury. On the basis of this silence, the dissent would hold that no jury right is available in Whistleblowers’ Protection Act actions. The dissent suggests that the Legislature’s failure to specifically state that a jury right exists means the Legislature did not intend whistleblowers’ suits to be tried by a jury. We disagree both with the rule suggested by the dissent and the dissent’s analysis of the jury issue. The rule suggested by the dissent is inappropriate in this case. It could be used alternatively to support a conclusion that the jury right is given, or that it has been withheld. As the dissent suggests, it is clear the Legislature knows how to expressly provide that an action is to be tried to a jury. It is also clear that the Legislature knows how to provide that an action is to be tried to a judge. For example, in the Employee Right to Know Act, the Legislature specifically stated that the court was to “award” damages. One could apply the dissent’s rule to the case at hand and legitimately reach the opposite conclusion from the dissent’s: given that the Legislature knew how to provide that the court should “award” damages, but did not, it did not intend for a judge to decide that issue. Defendants argue that the Legislature’s use of “court” rather than “court or jury” is determinative. We disagree. What is important in understanding the Legislature’s intent is not that it used the word “court” instead of “jury,” but, rather, what it provided that the “court” should do. The Legislature described the court’s role in wpa actions in terms of “render[ing] a judgment,” not in terms of “awarding damages.” The expressions are not interchangeable; “awarding damages” and “render[ing] a judgment” have different meanings. When a court renders a judgment, it is entering an order based on previously decided issues of fact. “Rendering judgment” does not mean the judge is making a determination of the entitlement of a party to an award of actual damages. Instead, it is the procedural step the judge takes after the factfinder has made that determination. The difference in the terms is made clear by the statute itself. The wpa provides that the court is to “award attorney fees.” Deciding the entitlement to an award of attorney fees has traditionally been the job of a judge, not a jury. Because the act provides that the court should award attorney fees, it is clear that the Legislature intended that a judge should decide whether a party is entitled to fees, and in what amount. 2 The defendants in the case before us argue that the remedies available in § 4 of the act indicate that a judge, rather than a jury, should decide factual issues. Section 4 empowers a court to order any of several equitable remedies: reinstatement, back pay, reinstatement of fringe benefits and seniority, or a combination of them. Defendants argue that the act provides for an equitable proceeding, only. They urge the Court to adopt the reasoning of a federal district court that construed all actions under the Ohio Whistleblowers’ Protection Act to be equitable proceedings. Rheinecker v Forest Laboratories, Inc, 813 F Supp 1307 (SD Ohio, 1993). Defendants and amici curiae urge that the use of the word “court” in § 3 of the act is determinative. This, too, comes from Rheinecker, because the court there opined that the legislature would have used the word “jury” had it intended a jury to hear claims under the act. However, as the court stated, its decision was based not only on the absence of the word “jury,” but, also, on the remedies that the act provided: Furthermore, although perhaps not controlling, the Act specifically speaks in terms of the Court’s authority, not the jury’s. Thus, in the face of the enumerated equitable remedies and the language of the statute itself, the Court is not persuaded by the Plaintiff’s argument that the Act gives rise to a right to trial by jury. [813 F Supp 1314 (citation omitted; emphasis added).] We do not find that the reasoning in Rheinecker regarding the Ohio act is persuasive authority for construing the Michigan act. The comparison to Rheinecker is inapposite, because our act provides for a legal remedy in the form of actual damages, while the Ohio act does not. In cases involving both equitable and legal issues, juries may decide factual issues relating to money damages, while judges retain the authority to determine the facts involving equitable remedies. C The existence of actual damages is significant because it distinguishes the Michigan act. Also, it indicates that the Legislature intended that the damages issue be tried by a jury, upon request. On its face, the language of the Whistleblowers’ Protection Act does not answer whether a jury right is available in an action brought under it. The statute neither explicitly requires nor attempts to forbid a jury. Where the language of a statute does not answer our questions, we must look behind its words to determine the Legislature’s intent. Therefore, it is necessary to broaden the scope of our inquiry to determine whether the Legislature intended to provide a jury right in suits brought under the act. In Lorillard v Pons, the United States Supreme Court found a statutory right to a jury in the Age Discrimination in Employment Act (ADEA), 29 USC 624 et seq. One of the reasons it concluded that the adea contained the right to a jury was Congress’ inclusion of “legal” relief among the remedies available under the act. The Court explained how it inferred a statutory right to a jury from Congress’ inclusion of the words “legal relief”: This inference [that the adea provides a statutory jury right] is buttressed by an examination of the language Congress chose to describe the available remedies under the ADEA. Section 7(b) empowers a court to grant “legal or equitable relief” and § 7(c) authorizes individuals to bring actions for “legal or equitable relief” (emphasis added). The word “legal” is a term of art: In cases in which legal relief is available and legal rights are determined, the Seventh Amendment provides a right to jury trial. “[W]here words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country they are presumed to have been used in that sense unless the context compels to the contrary.” We can infer, therefore, that by providing specifically for “legal” relief, Congress knew the significance of the term “legal,” and intended there would be a jury trial on demand to “enforc[e] . . . liability” .... [434 US 583 (citations omitted).] We find the Court’s reasoning in Lorillard persuasive, and apply that reasoning to the whistleblowers’ act. Using this analysis, we conclude that the Legislature’s use of the term “actual damages” is significant. It indicates the Legislature’s intent to provide for a jury right in suits brought under the act. While the ADEA provides a “legal” remedy, analogous language in the whistleblowers’ act provides for “actual damages.” “Actual damages” is also a term of art. Actual damages is a legal, rather than an equitable, remedy, and legal issues are traditionally tried to a jury. Moreover, the notion that the Legislature might intend a jury trial without explicitly so stating is not new. More than one hundred and forty years ago, the Legislature provided a statutory cause of action for actual damages that contained the right to a jury. However, the act itself did not expressly provide for jury trials. It was an 1875 cause of action for the benefit of wives and children of certain persons to whom liquor was sold. It provided: Every wife, child, ... or other person who shall be injured in person or property, means of support, by any intoxicated person, . . . shall have a right of action in his or her own name against any person or persons who . . . have caused . . . the intoxication and in any such action, the plaintiff shall have a right to recover actual and exemplary damages. [1875 PA 231, § 3 (emphasis added).] In Friend v Dunks, this Court considered the appropriate form of action under the statute, stating, “The statute does not prescribe the form of remedy, so that the party seeking to recover under either of these provisions must resort to the common law for an appropriate form of action.” Id. at 27. The Court held that the cause of action for actual and exemplary damages was an action on the case, and was properly tried by a jury. Ironically, the Court relied on an Ohio Supreme Court decision that held under one of that state’s statutes, “ ‘What those damages are, in any given case, the legislature have seen proper to leave in these broad terms to a jury to determine.’ ” Id. at 32, quoting Mulford v Clewell, 21 Ohio St 191, 196 (1871). Like Congress, when it adopted the Age Discrimination in Employment Act and included “legal remedies,” the Michigan Legislature created a cause of action in the wpa and provided for “actual damages.” As far back as 1877, the Court has held that a jury is proper where a statute creates a cause of action for actual damages without specifying before whom the action is to be tried. The Legislature is deemed to be aware of the meaning given to the words it uses, including the jury right that accompanies actual damages. Our holding recognizes that the Legislature imported into the wpa the meaning of actual damages, just as Congress had imported the jury right into the adea by providing for legal relief in Lorillard. We hold that, by including that term, the Legislature intended that the act contain a right to a trial by jury. d There is another aspect of the Supreme Court decision in Lorillard supportive of our conclusion that the whistleblowers’ act provides a right to trial by jury. In addition to Congress’ use of the term “legal remedy,” the Court’s conclusion in Lorillard was based on an historical analysis of the ADEA. Upon examining the adea and its history, the Court found that Congress intended to import into the ADEA the procedures and practices of the Fair Labor Standards Act. This contributed to the Court’s conclusion that the structure of the adea provided a right to a jury trial. The Court noted that Congress had selectively adopted provisions from the flsa by choosing to include those consistent with the adea scheme, and to exclude those not appropriate for the adea. Id. at 578-580. The ADEA specifically stated that suits brought under it were to be tried in a manner similar to suits brought under the flsa. “Long before Congress enacted the adea, it was well established that there was a right to a jury trial in private actions pursuant to the ELSA.” Id. at 580. Where it “adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to th

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

GARNER v MICHIGAN STATE UNIVERSITY Docket No. 116980. Submitted April 3, 1990, at Lansing. Decided October 15, 1990. Leave to appeal applied for. David Garner brought a wrongful discharge action in the Ingham Circuit Court against Michigan State University and its Board of Trustees, the College of Human Medicine and Department of Psychiatry. Plaintiff filed a complaint for mandamus and other relief. After a show cause hearing, the trial court, Lawrence M. Glazer, J., found that plaintiff had been granted tenure status by the university and that the Board of Trustees’ policy on dismissal of tenured faculty for cause governed the dispute. The court issued a writ of mandamus ordering defendants to return plaintiff to his employment and the employment to continue until such time as action is taken pursuant to the university’s policy on dismissal of tenured faculty for cause. Defendants appealed by leave granted. The Court of Appeals held: 1. Plaintiff had constitutional property rights which could only be terminated by procedures that met due process. Defendants’ reliance on the rescission doctrine is a "retrospective fiction” that cannot be interposed to justify a deprivation of property without due process. Plaintiff had a clear right to be returned to his employment and to be terminated only in conformity with defendants’ policy on dismissal of tenured faculty for cause. 2. Plaintiff was denied, without due process, his property right to continued employment because he received no posttermination hearing. 3. The writ of mandamus was properly issued. 4. The use of mandamus to enforce a property right was appropriate. Alternate legal remedies available to plaintiff would not have been truly adequate. _5. Defendants’ claim that the courts should defer, on public policy grounds, to those responsible for academic administration was denied. References Am Jur 2d, Mandamus §§ 4, 64, 69, 248. Construction and effect of tenure provisions of contract or statute governing employment of college or university faculty member. 66 ALR3d 1018. Affirmed. 1. Mandamus — Duty — Legal Remedies. A plaintiff must have a clear legal right to the performance of the specific duty sought to be compelled and the defendants must have a clear legal duty to perform the same in order for the plaintiff to obtain a writ of mandamus; in addition, the plaintiff must be without an adequate legal remedy. 2. Mandamus — Appeal. A trial court’s decision to grant a writ of mandamus will not be reversed absent an abuse of discretion, nor will the trial court’s findings of fact underlying the granting of the writ be disturbed unless they are clearly erroneous. 3. Master and Servant — Public Employees — Due Process. A public employee, including a tenured professor employed by a public university, enjoys a property right in continued employment which the state may only take away in accordance with due process. 4. Master and Servant — Public Employees — Due Process. A posttermination hearing may be required in order to afford a tenured public employee due process where, prior to his termination, the employee was entitled to no more than oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story. 5. Mandamus — Disputed Facts. A writ of mandamus may not be issued when based on disputed facts; the writ may be issued when some facts are in dispute where the only facts relevant to the determination whether the writ should be issued are undisputed. 6. Mandamus — Contracts — Property. Where a right or duty sought to be enforced rests wholly on contract, mandamus cannot issue to enforce it, because legal and equitable remedies afford relief; mandamus may lie, under appropriate circumstances, to enforce a property right. 7. Actions — Constitutional Rights — Remedies. The temporary loss of a constitutional right constitutes irreparable harm which cannot be adequately remedied by an action at law. White, Beekman, Przybylowicz, Schneider & Baird, P.C. (by Arthur R. Przybylowicz), for plaintiff. Office of the General Counsel, Michigan State University (by Michael J. Kiley and Kurt E. Krause), for defendants. Before: Wahls, P.J., and Marilyn Kelly and G. S.. Allen, JJ. Former Court of Appeals judge, sitting on the Court of Appeals by assignment. G. S. Allen, J. In this suit for wrongful discharge, we are asked to decide the propriety of a writ of mandamus issued April 24, 1989, by the Ingham Circuit Court, ordering defendants to reinstate plaintiff, although not to "any particular position,” and further ordering defendants not to dismiss plaintiff without a hearing as mandated by defendant university’s policy on the dismissal of tenured faculty for cause. We find the writ properly issued and, therefore, affirm. Plaintiff is a psychologist and renowned expert in the field of "eating disorders,” primarily anorexia and bulimia. From early 1978 until December, 1987, he was employed by the University of Toronto, first as a lecturer and later as a full professor. In November, 1987, plaintiff’s certification to practice clinically was suspended for two years for professional misconduct involving sexual contact with one of his former patients at the University of Toronto. He was subsequently asked to resign from the university and he did so in December, 1987. In early 1988, Lionel Rosen, M.D., a professor of psychiatry at the Michigan State University College of Human Medicine, contacted plaintiff regarding possible appointment to the university. Rosen advised plaintiff to write W. Donald Weston, Dean of the College of Human Medicine, and explain the circumstances regarding his suspension from clinical practice and his resignation from the University of Toronto. Plaintiff did so by letter February 28, 1988. In April and May of 1988 plaintiff was interviewed by Weston and Donald Williams, chairman of the university’s Department of Psychiatry, and on June 21, 1988, was offered a tenured position as a professor of psychiatry in the Colleges of Human and Osteopathic Medicine at a beginning annual salary of $56,000. At a meeting of the university’s Board of Trustees on July 30, 1988, the board approved plaintiff’s appointment as professor "with Tenure, effective September 1, 1988.” On January 16, 1989, plaintiff informed Weston and Williams that a new charge of sexual misconduct had been filed against him in Ontario. On January 20, 1989, Weston wrote Provost David Scott recommending that plaintiff’s employment with Michigan State University be terminated. The letter stated in pertinent part: In preemployment discussions with both me and Dr. Williams, the focus was on Dr. Garner’s professional and ethical fitness. Dr. Williams and I each inquired of Dr. Garner regarding the possibility of other outstanding complaints of sexual inpropriety [sic]. He denied the same and steadfastly maintained that the complaint which led to his resignation from the University of Toronto and the professional discipline meted out by the obep [Ontario Board of Examiners in Psychology] was an isolated instance and that his gorss [sic] misjudgment was an aberration in an otherwise unblemished career as a psychologist. Dr. Williams specifically asked Dr. Garner whether he had ever had sexual relations with any other of his patients and Dr. Garner was unequivocal in his denial. He was clear in this point, the only point of concern that really mattered in our evaluation as to the viability of his candidacy. On Monday, January 16, 1989, Dr. Garner advised me that the obep had, on December 29, 1988, notified him of a new hearing of a charge of professional misconduct relating to an alleged sexual relationship with another of his former patients. He did not deny the charges. Dr. Garner further stated that he had intimate relations with a number of other former patients over the years. On the same date Williams wrote to Weston recommending plaintiffs dismissal. In the letter, Williams stated that he telephoned plaintiff on the evening of January 16, inquiring about the new allegation of sexual misconduct, and that plaintiff admitted to him that the new allegations were true. The letter continued as follows: I then reminded him that during his preemployment interviews I had asked him if he had had any other instances of sexual contact with his patients and he told me no. Dr. Garner then said that he thought I was asking if he had any other charges of sexual misconduct pending. I then asked him again whether he has had additional sexual contact with his patients. Dr. Garner then told me he had had sexual contact with a patient in 1983 and numerous sexual contact [sic] with patients in the 1970’s. Many of these contacts in the 1970’s occurred 3-6 months after he had terminated treatment. I then asked him if I was to conclude that he had engaged in sexual relations with most of his patients or former patients he treated in the 1970’s. Dr. Garner replied my conclusion was correct. I then asked him why he had not told me these facts when I had, in fact, asked him about his sexual contact last Spring. Dr. Garner replied, "I was afraid I wouldn’t get the job.” I replied, "You’re right—you wouldn’t have.” Provost Scott requested that plaintiff attend a meeting on January 26, 1989, to discuss the letters which he had received regarding the new allegations of sexual misconduct. Present at the meeting were plaintiff, his attorney, Provost Scott and two members of the university’s general counsel. Neither Weston nor Williams attended the meeting. According to plaintiff, the meeting consisted of plaintiff’s being asked a series of questions which he answered to the best of his ability. He may have been asked for his side of the story. At no time, however, was plaintiff given the opportunity to confront his accusers, to cross-examine them, or to call witnesses in his own defense. After reviewing plaintiff’s remarks made during the January 26, 1989, meeting, conferring with Weston and Williams, consulting with the university’s counsel, and meeting with the university’s Board of Trustees, Provost Scott, under authorization from the board, rescinded plaintiff’s employment contract on February 6, 1989. It is undisputed that the university established a policy, approved by the Board of Trustees on June 24, 1977, entitled "Dismissal of Tenured Faculty for Cause.” The policy provides for full adversarial proceedings before termination, which the university in the instant case did not provide. Instead, the university chose to rescind plaintiffs contract. When plaintiffs attempts to have the dispute resolved by the university’s Committee on Faculty Tenure were rejected, plaintiff filed a complaint for mandamus and other relief in the Ingham Circuit Court on March 21, 1989. At a show cause hearing held April 17, 1989, plaintiff testified that at no time was he given an opportunity to cross-examine his accusers or call witnesses on his own behalf. He also testified that, if granted a hearing, he would deny that he lied in his preemployment interviews or made any misrepresentations during the initial interviews. Finally, plaintiff testified that, if granted a hearing, he would contest the allegation of Williams that, in a telephone conversation with Williams on January 16, 1989, plaintiff admitted to sexual misconduct with numerous former patients. At the conclusion of the show cause hearing, the trial court found that plaintiff was granted tenure status by the university and that the Board of Trustees’ policy on dismissal of tenured faculty for cause governed the dispute. Accordingly, the court issued a writ of mandamus ordering defendants to return plaintiff to his employment and the employment to continue until such time as action is taken pursuant to the university’s policy on dismissal of tenured faculty for cause. By order dated June 16, 1989, this Court granted defendants’ application for leave to appeal but denied stay of the trial court’s order._ On appeal, defendants raise four issues which we have reformulated as five issues, hereinafter addressed. i WERE DEFENDANTS RELIEVED OF THEIR DUTY TO AFFORD PLAINTIFF DUE PROCESS BECAUSE PLAINTIFF ALLEGEDLY LIED IN HIS PREEMPLOYMENT INTERVIEW, THEREBY AFFORDING DEFENDANTS THE RIGHT TO RESCIND PLAINTIFF’S EMPLOYMENT CONTRACT? We begin our analysis by stating the rules of law governing the issuance of mandamus. To obtain a writ of mandamus, "the plaintiff must have a clear legal right to the performance of the specific duty sought to be compelled and the defendants must have a clear legal duty to perform the same.” State Bd of Ed v Houghton Lake Community Schools, 430 Mich 658, 666; 425 NW2d 80 (1988). In addition, the plaintiff must be without an adequate legal remedy. Cyrus v Calhoun Co Sheriff, 85 Mich App 397, 399; 271 NW2d 249 (1978). A trial court’s decision to grant a writ of mandamus will not be reversed absent an abuse of discretion. The trial court’s findings of fact underlying the granting of the writ will not be disturbed unless clearly erroneous. Michigan Waste Systems, Inc v Dep’t of Natural Resources, 157 Mich App 746, 760; 403 NW2d 608 (1987), lv den 428 Mich 900 (1987). Defendants argue that plaintiff’s otherwise existing right to a tenure hearing was abrogated because, under common law, defendants had the right to rescind plaintiff’s contract upon learning that plaintiff had lied during his preemployment interviews. In support of this position defendants rely primarily oh Morgan v American University, 534 A2d 323 (DC App, 1987). In Morgan, the plaintiff applied for a "tenure-track” faculty position with American University but failed to disclose that he already held a position at another university. Upon discovering this fact, American University rescinded the plaintiff’s contract without complying with the contractual notice and hearing procedures set forth in the faculty manual. Id., p 324. The Morgan court held that the common-law right to rescission was not abrogated by the notice and hearing provisions in the plaintiff’s contract. Therefore, the university could rescind the plaintiff’s contract. Id., pp 330-331. Morgan is distinguishable in two material respects. First, in Morgan the plaintiff conceded that, in his preemployment interview, he did not inform the university that he was employed at another school. In the instant case, plaintiff denied that he ever admitted to his accusers that, while employed at the University of Toronto, he had sexual relations with numerous former patients. Thus, unlike in Morgan, in the instant case a dispute exists as to the underlying facts relied upon by defendants to justify an exercise of the common-law right of rescission. Second, Morgan involved a private university, whereas the instant case involves a public university. This distinction is crucial. Procedural due process guarantees apply only in the presence of a "property” or "liberty” interest within the meaning of the Fifth or Fourteenth Amendment. Williams v Hofley Mfg Co, 430 Mich 603, 610; 424 NW2d 278 (1988), reh den 431 Mich 1202 (1988), app dis 489 US 1001; 109 S Ct 1102; 103 L Ed 2d 168 (1989). Any right to continued employment enjoyed by an employee of a private employer arises out of the employment contract. Such contractual rights do not rise to the level of a protected property interest. Morgan, 534 A2d 331; See also Matulewicz v Governor, 174 Mich App 295, 304; 435 NW2d 785 (1989), lv den 434 Mich 866 (1990). However, a public employee enjoys a property right in continued employment which the state may only take away in accordance with due process. Michigan State Employees Ass’n v Dep’t of Mental Health, 421 Mich 152, 160-161; 365 NW2d 93 (1984). This includes tenured professors employed by a public university. Bd of Regents of State Colleges v Roth, 408 US 564; 92 S Ct 2701; 33 L Ed 2d 548 (1972). Therefore, plaintiff, as a public employee and tenured professor, enjoyed a greater right to continued employment than did the privately employed plaintiff in Morgan. Having distinguished Morgan, we find the United States Supreme Court’s decision in Cleveland Bd of Ed v Loudermill, 470 US 532; 105 S Ct 1487; 84 L Ed 2d 494 (1985), dispositive. In Loudermill, the plaintiff, a public employee, was terminated from his position as a security guard after the school board discovered he had falsely stated on his employment application that he had not been convicted of a felony. He received no pretermination hearing. However, a posttermination hearing was held. Id., p 535. The Supreme Court held that some kind of pretermination hearing was required to comply with due process. Id., pp 542-548. The board of education’s argument that Louder-mill had no property right because he obtained his employment by lying was rejected in a footnote early on in the opinion: The Cleveland Board of Education now asserts that Loudermill had no property right under state law because he obtained his employment by lying on the application. It argues that had Loudermill answered truthfully he would not have been hired. He therefore lacked a "legitimate claim of entitlement” to the position. For several reasons, we must reject this submission. First, it was not raised below. Second, it makes factual assumptions—that Loudermill lied, and that he would not have been hired had he not done so—that are inconsistent with the allegations of the complaint and inappropriate at this stage of the litigation, which has not proceeded past the initial pleadings stage. Finally, the argument relies on a retrospective ñction inconsistent with the undisputed fact that Loudermill was hired and did hold the security guard job. The Board cannot escape its constitutional obligations by rephrasing the basis for termination as a reason why Louder-mill should not have been hired in the first place. [470 US 539, n 5. Citation omitted.] Accordingly, we conclude that plaintiff in the instant case, like Loudermill, had constitutional property rights which could only be terminated by procedures that met due process. Defendants’ reliance on the rescission doctrine is a "retrospective fiction” that cannot be interposed to justify a deprivation of property without due process. Therefore, plaintiff had a clear right to be returned to his employment and to be terminated only in conformity with defendants’ policy on dismissal of tenured faculty for cause. Defendants had a concomitant duty to perform the same. ii DID THE PRETERMINATION PROCEDURE FOLLOWED IN THE INSTANT CASE AFFORD PLAINTIFF DUE PROCESS? Defendants next argue that even if they were required to afford plaintiff due process, they were not necessarily required to afford plaintiff the due process set forth in that portion of the faculty handbook entitled "Dismissal of Tenured Faculty for Cause.” According to defendants, the nearly three-hour meeting between Provost Scott and plaintiff and his attorney satisfied the due process required by Loudermill. We disagree. In support of their claim, defendants cite the following language from Loudermill: The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story. To require more than this prior to termination, would intrude to an unwarranted extent on the government’s interest in quickly removing an unsatisfactory employee. [470 US 546. Citations omitted.] The flaw in defendants’ claim is the conclusion that, in so ruling, the Court in Loudermill held no posttermination hearing need be provided. The Loudermill decision clearly provides that the minimal pretermination procedure which it outlined is not alone adequate to satisfy due process. The Court noted that it had formerly stated that " '[t]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature