Constructive Discharge Cases

CLINE v AUTO SHOP, INC Docket No. 213165. Submitted September 14, 1999, at Lansing. Decided May 16, 2000, at 9:00 A.M. James M. Cline, an agnostic, brought an action in the Jackson Circuit Court against The Auto Shop, Inc., and others, alleging employment discrimination based on religion and in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. The court, Charles A. Nelson, X, granted summary disposition for the defendants, ruling that the act affords no protection to an agnostic claiming discrimination by a person with whose religious beliefs the agnostic does not agree. The plaintiff appealed. The Court of Appeals held: Subsection 202(1) of the Civil Rights Act, MCL 37.2202(1); MSA 3.548(202)(1), prohibits an employer from disfavoring an employee “because of religion.” An employer that disfavors an employee because the employee is not in religious conformity with the employer disfavors the employee because of religion. The trial court erred in concluding that an employee who does not allege a religious belief has failed to state a prima facie case of religious discrimination as a matter of law. Reversed and remanded. Civil Rights — Employment Discrimination — Religion. An employer that disfavors an employee because the employee does not share the employer’s religious beliefs disfavors the employee because of religion in a manner prohibited by the Civil Rights Act (MCL 37.2202[1]; MSA 3.548[202][1]). Robison & Sims, RC. (by John M. Sims'), for the plaintiff. Marcoux, Allen, Abbott, Schomer & Bower, P.C. (by Robert T. Kendall, III), for the defendants. Before: Talbot, P.J., and Fitzgerald and Markey, JJ. Fitzgerald, J. Plaintiff appeals as of right the order granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(8) in this religious discrimination case. We reverse and remand. Plaintiff alleged that he was employed by defendant, The Auto Shop, Inc., from August 1994 until his constructive discharge in April 1996. Defendantappellee Phillip E. Tripp, Jr. (Tripp), is the owner of the business. Defendant Barbara Tripp is Tripp’s wife. Plaintiff, who was agnostic, alleged that Tripp’s treatment of plaintiff and the terms of his employment, such as compensation, job assignments, and the ability for advancement, were dependent on plaintiff’s attendance at Tripp’s church. Tripp is a “born-again Christian” and attends Cherish Christian Church. Specifically, plaintiff testified in his deposition that he was told that his compensation would be increased if he attended church, and that he in fact received pay raises after attending church. He also testified that if he did not attend church he was given more difficult assignments and was given less time to complete assignments than those employees who attended Tripp’s church. Plaintiff indicated that his supervisor told him that he would have a better chance for advancement if he attended church with Tripp. Barbara Tripp told plaintiff that he should go to church, to pray to the Lord, and to accept the Lord in plaintiff’s soul. Plaintiff testified that he could not work with the pressures of having to go to church and terminated his employment. He subsequently filed suit against defendants, alleging religious discrimination under the Civil Rights Act (CRA), MCL 37.2101 et seq.) MSA 3.548(101) et seq., on the ground that he was discriminated against because he does not share Tripp’s religious beliefs. Defendants moved for summary disposition on the ground that “attempts to proselytize plaintiff” did not interfere with plaintiff’s religious practices. The trial court granted summary disposition in favor of defendants on a different ground, finding that the CRA does not provide protection for an atheist or agnostic who does not have a bona fide religious belief. Subsection 202(1) of the CRA, MCL 37.2202(1); MSA 3.548(202)(1), provides that an employer shall not: (a) Fañ or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment because of religion.... (b) Limit, segregate, or classify an employee . . . for employment in a way that deprives or tends to deprive the employee ... of an employment opportunity, or otherwise adversely affects the status of an employee . . . because of religion.... The goal of statutory construction is to ascertain and give effect to the intent of the Legislature. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). If the language of the statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written. No further judicial construction is required or permitted. People v Morris, 450 Mich 316, 325; 537 NW2d 842 (1995). Here, the plain text of the statute provides no basis to limit the protections of § 202 to those individuals who allege a bona fide religious belief. On the contrary, the statute refers to “religion” without limiting its reach to the religious beliefs of the employee. If an employer disfavors an employee because the employee is not in religious conformity with the employer, the employer has plainly disfavored that employee “because of religion.” Accordingly, we conclude that the trial court erred in concluding that an employee who does not allege a religious belief has failed to state a prima facie case of religious discrimination as a matter of law. Because the trial court did not address the merits of defendants’ motion for summary disposition, we remand to the trial court for consideration of defendants’ motion. Reversed and remanded. Jurisdiction is not retained. This case was held in abeyance pending the resolution of the conflicting opinion in Zanni v Medaphis Physician Services Corp, 240 Mich App 472; 612 NW2d 845 (2000).

WILCOXON v MINNESOTA MINING & MANUFACTURING COMPANY Docket No. 204431. Submitted April 7, 1999, at Detroit. Decided April 23, 1999, at 9:15 am. Leave to appeal sought. Dallias E. Wilcoxon brought an action in the Wayne Circuit Court against Minnesota Mining & Manufacturing Company (3M) and two 3M employees, alleging race and sex discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.\ MSA 3.548(101) et seq., and other claims. The court, Deborah A. Thomas, J., in response to the defendants’ first motion for summary disposition, found that the plaintiff had not demonstrated any of the criteria necessary to show that her transfer from one position to another had been an adverse employment action. The court determined that the only issue left pertained to the plaintiff’s separation from 3M. The court dismissed the claim that was based on the alleged wrongful transfer and dismissed one of the individual defendants from the action. In response to the defendants’ second motion for summary disposition, the court held that the plaintiff had failed to show that, with regard to her termination from employment, the plaintiff was treated differently from other employees similarly situated, the basis for such treatment was discriminatory, that 3M’s stated reason for the discharge from employment was a pretext, and that the reason for the discharge was based on a factor that violated the laws of the state. The court entered an order that dismissed the action in its entirety. The plaintiff appealed. The Court of Appeals held: 1. The claim regarding the transfer is a disparate treatment claim under MCL 37.2202(l)(a); MSA 3.548(202)(l)(a ). Regardless of the approach the plaintiff employed to establish her claim, she had to prove that she suffered an adverse employment action. 2. In order for an employment action to be adverse for purposes of a discrimination action, the action must be materially adverse in that it is more than mere inconvenience or an alteration of job responsibilities and there must be some objective basis for demonstrating that the action is adverse. The employee’s subjective impressions regarding the desirability of one position over another are not controlling. 3. The plaintiff failed to make any showing that her transfer was a materially adverse employment action, other than advancing her own subjective views. The court properly dismissed the claim with regard to the transfer. 4. There is no dispute that the plaintiff’s termination from employment qualifies as an adverse employment action. The plaintiff could have established that claim under a mixed motive theory or a pretextual theory. 5. The plaintiff, a black female, falls into two protected classes contemplated by the Civil Rights Act and, thus, meets the first element of the test applicable to actions under the mixed motive theory. She meets the second element because her termination from employment is an adverse employment action. The plaintiff therefore had to prove that the defendants were predisposed to discriminate against members of the protected class, the third element, and that the defendants actually acted on the predisposition in terminating the plaintiff’s employment, the last element. 6. The occurrences of which the plaintiff complains, if believed, would not require a conclusion that the defendants acted with discriminatory animus. The plaintiff’s claim cannot be proved under the mixed motive theory. 7. The plaintiff meets the first three elements of the test applicable to actions under the pretextual theory because she is a member of a protected class who suffered an adverse employment action and was qualified for the job. Therefore, the plaintiff had to show that she suffered the adverse employment action under circumstances that give rise to an inference of unlawful discrimination, the last element. 8. The court did not err in finding that the plaintiff failed to show that similarly situated male or white employees were not terminated from employment under like circumstances. Summary disposition was properly granted with regard to the pretextual theory of proof. The court properly granted summary disposition in favor of the defendants with regard to the rest of the plaintiff’s claims, which alleged intentional infliction of emotional distress. Affirmed. 1. Civil Rights — Master and Servant — Employment Discrimination — Disparate Treatment — Adverse Employment Actions. A necessarily included element of an action alleging disparate treatment of an employee by an employer in violation of subsection 202(l)(a) of the Civil Rights Act is a demonstration that the employee suffered an adverse employment action; for an employment action to be adverse for purposes of a discrimination action, the action must be materially adverse in that it is more than mere inconvenience or an alteration of job responsibilities and there must be some objective basis for demonstrating that the change is adverse; the employee’s subjective impressions regarding the desirability of one position over another are not controlling in determining whether a change of positions is adverse (MCL 37.2202[l][a]; MSA 3.548[202][l][aD. 2. Civil Rights — Master and Servant — Employment Discrimination — Disparate Treatment — Mixed Motive Evidentiary Method — Elements. The elements of an action under subsection 202(l)(a) of the Civil Rights Act alleging disparate treatment in employment and proceeding under the “mixed motive” evidentiary method are the plaintiff’s membership in a protected class, an adverse employment action, a showing that the defendant was predisposed to discriminating against members of the plaintiff’s protected class, and a showing that the defendant actually acted on that predisposition in visiting the adverse employment action on the plaintiff (MCL 37.2202[l][a]; MSA 3.548[202][l][a]). 3. Civil Rights — Master and Servant — Employment Discrimination — Disparate Treatment •— Pretextual Evidentiary Method — Elements. The elements of an action under subsection 202(l)(a) of the Civil Rights Act alleging disparate treatment in employment and proceeding under the “pretextual” evidentiary method are the plaintiff’s membership in a protected class, and showings that the plaintiff suffered an adverse employment action, the plaintiff was qualified for the position, and the plaintiff suffered the adverse employment action under circumstances that give rise to an inference of unlawful discrimination; circumstances give rise to an inference of discrimination when the plaintiff was treated differently than persons of a different class for the same or similar conduct; being qualified for a job, for purposes of establishing a prima facie case of discrimination, requires minimal qualification only; to create an inference of disparate treatment, the plaintiff must prove that all the relevant factors were nearly identical to those of a differently treated person (MCL 37.2202[l][a]; MSA 3.548[202][l][a]). Dallias E. Wilcoxon, in propria persona. Barris, Sott, Derm & Driker, P.L.L.C. (by Sharon Woods and Claudia D. Orr), for the defendants. Before: Hood, P.J., and Holbrook, Jr., and Whitbeck, JJ. Whitbeck, J. Plaintiff-appellant Dallias E. Wilcoxon contests the dismissal, by summary disposition, of her claims of unlawful race and sex discrimination in her former employment. The trial court dismissed portions of Wilcoxon’s complaint relating to a transfer on the basis of her failure to produce any objective evidence that the transfer was an adverse employment action. Just before trial, the trial court dismissed the remainder of Wilcoxon’s action, primarily on the basis of her inability to identify any similarly situated members of another class who were treated differently. Wilcoxon now appeals as of right. We affirm. I. BASIC FACTS AND PROCEDURAL HISTORY Wilcoxon, a black female with a master’s degree in Public Administration and a law degree, began working in the govemment/community affairs department of the outdoor advertising subsidiary of defendantappellee Minnesota Mining & Manufacturing Company (3M National) in 1989 as the first minority or female in that capacity. From 1990 through 1992, she received promotions, raises, and above-average performance evaluations. However, these evaluations noted a need for her to improve her working relationship with field management. As the govemment/community affairs manager in 3M National’s Detroit area offices, Wilcoxon monitored legislative and regulatory matters affecting outdoor advertising (i.e., billboards) in the northeastern portion of the United States and worked to improve or preserve her employer’s position in that regard. Additionally, Wilcoxon provided information regarding these matters as necessary to support field managers who procured and marketed the available billboard space. During Wilcoxon’s tenure with 3M National, she experienced difficulty dealing with defendant-appellee David Horton, who was the market manager and, later, district manager of the marketing department for the same territory, and at least one other market manager. Although Horton was not Wilcoxon’s superior and Wilcoxon concedes that people in general found Horton difficult to work with, Wilcoxon attributed her problems relating to field management to racism and sexism. By Horton’s account, however, Wilcoxon was difficult to talk to and her attitude was both condescending and offensive as perceived by him and staff members who complained to him. Defendant-appellee Edward Kenevan became Wilcoxon’s direct supervisor in May 1992. The following March, Kenevan gave Wilcoxon a below-average performance appraisal, ostensibly on the basis of her poor relationship with field management and an insufficient familiarity with the industry. In the section of the evaluation for comments by the next level of supervision, Kenevan’s own supervisor observed that Wilcoxon had always been professional in his presence and that perhaps she needed a new challenge in another department. According to Kenevan, he decided to transfer Wilcoxon to the newly created position of public service/community affairs manager, in order to take advantage of her strengths, while minimizing her role in her areas of weakness. In this new position, which Wilcoxon was charged with developing, Wilcoxon was to oversee 3M National’s public service and charitable activities nationwide. Wilcoxon resisted the transfer, which did not entail any loss of pay or benefits, but apparently was not afforded a choice in the matter. Her replacement, whom she helped train for a month or two, was a white male. Although Wilcoxon continued to work out of the Detroit area offices for seven months, her new supervisor, John Provost, made it clear that eventually Wilcoxon would have to relocate to Chicago. In January 1994, Wilcoxon went on sick leave and applied for short-term disability benefits, which she initially began receiving. Her physician described her symptoms as headache, stress/anxiety, and chest pain. Consistent with company policy, Wilcoxon’s application for short-term disability benefits was submitted to physicians retained by 3M’s benefits department for review. The reviewing physicians found nothing disabling about Wilcoxon’s condition and reported this to 3M’s benefits department personnel, who in turn advised Wilcoxon that continued benefits would be denied and that she should return to work by February 28, 1994. Wilcoxon appealed within the sixty days allotted for that purpose and forwarded additional documentation to the reviewing physicians who, again, found nothing disabling about Wilcoxon’s condition. Disability benefits were again denied. Thereafter, Provost informed Wilcoxon that if she did not return to work by April 18, 1994, she would be presumed to have resigned. Wilcoxon did not return to work by that date and was thereafter notified that she was no longer employed at 3M National. In June 1994, Wilcoxon filed a complaint alleging race and sex discrimination in violation of the Civil Rights Act (CRA), MCL 37.2101 et seq.; MSA 3.548(101) et seq. According to Wilcoxon, she was (1) provided less training than white males in similar employment positions, (2) provided less support staff than similarly situated white males, (3) undermined by defendants’ employees while attempting to accomplish necessary employment functions, (4) denied reimbursement for continuing education courses, while similarly situated white males enjoyed such a benefit, and (5) demoted and replaced by a white male. In February 1996, defendants filed their first motion for summary disposition. Defendants argued that Wilcoxon could not maintain race or sex discrimination claims because her transfer did not constitute an adverse employment action, since she suffered no loss in pay or benefits. Furthermore, defendants asserted a legitimate business reason for both Wilcoxon’s transfer and her termination from employment. Defendants maintain that Wilcoxon was unable to produce any evidence that she was treated any differently than white or male employees who refused to return to work following a disability leave. Defendants contended that, because Wilcoxon was unable to establish that 3M National’s reasons were a mere pretext for discrimination, Wilcoxon’s race and sex discrimination claims must fail. Finally, defendants claimed that Horton could not be individually liable for the alleged discrimination because Horton did not qualify as an agent of 3M National. In November 1996, the trial court issued its ruling from the bench. First, the trial court found that Wilcoxon had not demonstrated any of the criteria necessary to show that her transfer had been an adverse employment action. Second, the trial court declined to decide whether Wilcoxon had resigned or had been constructively discharged by intolerable discriminatory conditions inasmuch as “there are several questions of fact that must be resolved.” Third, the trial court found that the question whether there was a legitimate nondiscriminatory reason for plaintiffs transfer was an issue for the finder of fact. Fourth, the trial court addressed whether Horton, who was not Wilcoxon’s supervisor but who exercised control over her worksite, could be held personally liable for Wilcoxon’s claims. The trial court stated, “even viewing it in the light most favorable to the Plaintiff” there was not a “sufficient legal basis upon which to hold Mr. Horton personally liable.” According to the trial court, because Wilcoxon’s transfer was not an adverse employment action, the only issue left was with regard to Wilcoxon’s ultimate separation from 3M National. By a subsequent order, the trial court deemed the transfer not to be an adverse employment action and dismissed Wilcoxon’s claims based on that action; the trial court dismissed Horton from the action as well. In April 1997, defendants brought three motions in limine to (1) preclude, on the basis of the trial court’s prior ruling, Wilcoxon from characterizing her transfer as a demotion, (2) preclude Wilcoxon from mentioning discreet incidents of allegedly unfavorable treatment unless she laid a foundation by showing that at some point she was discriminated against by being treated differently than similarly situated white or male employees, and (3) preclude Wilcoxon from mentioning acts that preceded the filing of her complaint by more than three years. During a hearing regarding these motions, it was revealed that Wilcoxon had yet to identify another individual who had been treated differently when the individual failed to return to work from medical leave. In response, the trial court adjourned trial to a date that would allow sufficient time for defendants to bring another motion for summary disposition. In May 1997, defendants brought their second motion for summary disposition pursuant to MCR 2.116(C)(10). Defendants argued that it was incumbent on Wilcoxon to show that “but for” her race or sex, she would not have been discharged. Moreover, defendants argued that because defendants asserted a legitimate nondiscriminatory reason for the employment separation, Wilcoxon would also have to establish that this was a pretext. Defendants asserted that, because Wilcoxon had not come forward with any evidence of either disparate treatment or pretext concerning her termination from employment, summary disposition in favor of defendants was proper. Defendants supported this motion by, among other things, the affidavits of Barbara Warner, supervisor of 3M’s health care and disability program, and Provost. Warner averred that in performing her duties she made the ultimate decision to deny Wilcoxon benefits while unaware of Wilcoxon’s race, and race or sex was not used in the decision. Warner also averred that Wilcoxon’s employment status was not within the scope of her decision. Provost averred that, as Wilcoxon’s supervisor at the time, after learning that Wilcoxon was ineligible for disability leave, he notified her that she must return to work by April 18, 1994, or she would be considered as having resigned. When Wilcoxon did not so return, Provost stated that he terminated her employment. In response to defendant’s motion, Wilcoxon named a white female office supervisor, a white male sales representative, two other white males, and a white female as similarly situated employees who were not discharged when their illnesses caused their extended absences from work. Further, Wilcoxon argued that a race or sex discrimination case can be established either by showing disparate treatment or by showing intentional discrimination. Wilcoxon contended that she had established a case of intentional discrimination by showing that defendants were predisposed to discriminate against women or blacks and had acted on that disposition in terminating her employment. At a June 1997 hearing regarding this motion, defendants argued that they conducted a last-minute record search with regard to the supposedly similarly situated people identified in Wilcoxon’s brief. According to defendants, two individuals could not be found, there was no record of disability leaves for two more, and the other (who had been on extended leave after a complicated pregnancy) had, unlike Wilcoxon, voluntarily returned to work at the expiration of her leave. Moreover, defendants argued, the decisionmaker with regard to Wilcoxon’s disability leave did not know Wilcoxon’s race and Wilcoxon had conceded that the decisionmaker with regard to the termination of Wilcoxon’s employment had never discriminated against her. The trial court issued the following ruling: Discovery in this matter has been closed, witness lists have been filed and there’s no opportunity that these five individuals were made witnesses in this matter. The individual who made the decision with regard to the termination, would be the individual in the personnel office. Who would send out the communication, the questioned returned date that the decision-maker determines whether or not to terminate. For failure to return to work, which is the matter that remains before this Court. The burden lies upon the plaintiff to show that somehow she was treated differently than other employees similarly situated. And that the basis for such treatment was discriminatory. She does not have either the individuals who were treated differently than herself, nor has she been able to establish that the employer[’]s stated reason for the discharge was a pretext. And that there was any evidence to establish that the reason for discharge was based on a factor which violated the laws of [this] state, established to protect those individuals who have historically been treated unfairly because of race. The trial court entered an order the same day that dismissed Wilcoxon’s action in its entirety with prejudice. Wilcoxon timely appealed as of right. II. STANDARD OF REVIEW This Court reviews a trial court’s decision regar

REMBERT v RYAN’S FAMILY STEAK HOUSES, INC Docket No. 196542. Submitted June 1, 1998, at Lansing. Decided April 9, 1999, at 9:15 A.M. Leave to appeal sought. John Rembert brought an action in the Genesee Circuit Court against Ryan’s Family Steak Houses, Inc., his employer, and another, seeking damages for race discrimination under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and handicap discrimination under what is now known as the Persons With Disabilities Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq. The plaintiff thereafter resigned from his employment and amended his complaint to include claims of constructive discharge and intentional infliction of emotional distress. The court, Geoffrey L. Neithercut, X, after finding that the plaintiff had failed to establish that he was incompetent to understand the arbitration agreement that he had signed at the time of his employment, granted summary disposition for the defendants on the basis that the claims raised by the plaintiff were subject to, and thus barred by, the arbitration agreement. The plaintiff appealed. The Court of Appeals, Corrigan, C.J., and Griffin and Hoekstra, JX, in an opinion released December 2, 1997, affirmed the trial court’s order with respect to the claims of constructive discharge and intentional infliction of emotional distress, but reversed the trial court’s order with respect to the two statute-based discrimination claims on the basis of the holding of the majority in Rushton v Meijer, Inc (On Remand), 225 Mich App 156 (1997), which was binding precedent pursuant to MCR 7.215(H). The panel further indicated that in the absence of the requirement that it follow the holding of the majority in Rush-ton, it would have affirmed the order of the trial court for the reasons set forth in Judge (now Justice) Taylor’s opinion in Rushton. 226 Mich App 822 (1997). By its order of December 16, 1997, the Court of Appeals vacated the December 2 opinion and convened a special panel pursuant to MCR 7.215(H) to resolve the conflict between the position taken by the panel in this case and the position taken by the majority in Rushton. 226 Mich App 821 (1997). After consideration by the conflict resolution panel, the Court of Appeals held-. 1. The Michigan Legislature, by enacting the Michigan arbitration act, MCL 600.5001 et seq.; MSA 27A.5001 et seq., has expressed a strong public policy favoring private voluntary arbitration, and Michigan courts have historically enforced agreements to arbitrate disputes. Michigan law has upheld predispute agreements to arbitrate statutory claims where the agreements have not diminished the effect of the statute. 2. Because of this state’s strong public policy favoring arbitration, predispute agreements to arbitrate statutory employment discrimination claims are valid if there is a valid binding contract to arbitrate the statutory claims, the statute itself does not prohibit an agreement to arbitrate claims under the statute, the arbitration agreement does not waive the substantive rights and remedies set forth in the statute, and the arbitration procedures are fair so that an employee may effectively assert the statutory rights. 3. If an agreement to arbitrate a statutory employment discrimination claim does not waive any statutory rights and provides a procedurally fair method of resolving such claims, it is reasonable as a matter of law and is not an unenforceable contract of adhesion. Accordingly, on remand the trial court must make findings of fact concerning whether the agreement in this matter waives any statutory rights and provides a procedurally fair method of resolving the statutory claims. 4. Neither the Civil Rights Act nor the Persons With Disabilities Civil Rights Act contains a provision that precludes an employer and employee from entering into a predispute agreement to arbitrate employment discrimination claims that may arise under those acts. Further, because the Michigan arbitration act gives broad approval to arbitration agreements and expressly excludes collective labor contracts and certain real estate disputes from its provisions while containing no similar exclusion with respect to statutory employment discrimination claims, the act implicitly includes agreements to arbitrate employment discrimination claims within the scope of its provisions. 5. In order to ensure that an employee has a fair opportunity to vindicate effectively any statutorily protected rights, a predispute agreement to arbitrate employment discrimination claims must give clear notice to the employee that the right to adjudicate discrimination claims in a judicial forum is being waived and that such claims will be arbitrated, must inform the employee of the right to representation by counsel, must provide that the arbitration proceedings will be before a neutral arbitrator, must provide for reasonable discovery, and must provide for a fair arbitral hearing. Fairness does not require that the employer must pay the fees of an arbitrator or an arbitration service. 6. Judicial review of an arbitral award is pursuant to the provisions of MCR 3.602(J)(1), which provides for the vacation of an award where, among other things, the arbitrator has exceeded the powers granted to the arbitrator. The powers granted to the arbitrator are exceeded where the arbitrator makes an error of law that is so material or so substantial as to have governed the award and but for which the award would have been substantially otherwise. To allow for sufficient review, arbitral awards must be in writing and contain findings of fact and conclusions of law. Remanded. Cavanagh, J., dissenting, stated that the decision of the trial court that direct judicial construction of the statutory claims was precluded by the predispute arbitration agreement should be reversed because Michigan’s longstanding public policy entitling persons seeking to protect their civil rights to direct review of their claims by the courts cannot be abrogated by contract. 1. Arbitration — Employment Discrimination — Employment Contracts — Agreement to Arbitrate. Predispute agreements to arbitrate statutory employment discrimination claims are valid if there is a valid binding contract to arbitrate the statutory claims, the statute itself does not prohibit an agreement to arbitrate claims under the statute, the arbitration agreement does not waive the substantive rights and remedies set forth in the statute, and the arbitration procedures are fair so that an employee may effectively assert the statutory rights. 2. Arbitration — Civil Rights Act — Persons With Disabilities Civil Rights Act — Employment Contracts — Agreement to Arbitrate — Public Policy. An agreement in an employment contract requiring any subsequent dispute involving a claim under the Civil Rights Act or the Persons With Disabilities Civil Rights Act to be submitted to binding arbitration is not contrary to any express provision of either act and is not contrary to the public policy of the state of Michigan (MCL 37.1101 et seq., 37.2101 et seq.; MSA 3.550[101] et seq., 3.548[101] et seq.). 3. Arbitration — Employment Discrimination — Employment Contracts — Agreement to Arbitrate — Contracts of Adhesion. An agreement to arbitrate a statutory employment discrimination claim that does not waive any statutory rights and provides a procedurally fair method of resolving such a claim is reasonable as a matter of law and is not an unenforceable contract of adhesion. 4. Arbitration — Employment Contracts — Employment Discrimination — Agreement to Arbitrate. An agreement in an employment contract to arbitrate any subsequent employment discrimination claims that may arise must give clear notice to the employee that the right to adjudicate discrimination claims in a judicial forum is being waived and that such claims will be arbitrated, must inform the employee of the right to representation by counsel, must provide that the arbitration proceedings will be before a neutral arbitrator, must provide for reasonable discovery, and must provide for a fair arbitral hearing; fairness does not require that the employer must pay the fees of an arbitrator or an arbitration service. Stark and Gordon (by Sheldon J. Stark and Carol A. Laughbawn) and (Kenneth Ivan Brown, of Counsel), for the plaintiff. Bodman, Longley & Dahling LLP (by Diane L. Akers, and Paul R. Bernard), for the defendants. Amici Curiae: Jeffrey S. Reuble and Miller, Canfield, Paddock and Stone, PL.C. (by Charles S. Mishkind), for Meijer, Inc. Jackson, Lewis, Schnitzler & Krupman (by Stephen X. Munger and by J. Steve Warren and Stephen F. Fisher), for Employment Dispute Services, Inc. Clark Hill PL.C. (by Duane L. Tamacki and J. Walker Henry), for Michigan Manufacturers Association. Dykema Gosssett PLLC (by Laurence D. Connor and Rosemary G. Schikora) and Richard L. Hurford, for Masco Corporation, Masco Tech, and TriMas. Patrick L. Rose, Thomas Donnellan, Sheldon J. Stark, and Michael J. Steinberg, for American Civil Liberties Union Fund of Michigan. Amberg, McNenly, Zuschlag, Firestone and Lee, PC. (by Joseph H. Firestone), for Michigan Education Association. Sachs, Waldman, O’Hare, Helveston, Bogas & McIntosh, PC. (by John R. Runyan, Jr., Mary Katherine Norton, and Elizabeth A. Cabot), for Michigan State AFL-CIO, International Union UAW, and Wolverine Bar Association. Kelman, Loria, Simpson, Will, Harvey & Thompson (by Janet M. Tooley), for Michigan Trial Lawyers Association. Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Robert L. Willis, Jr., Assistant Attorney General, for Michigan Department of Civil Rights. Before: Gage, P.J., and Kelly, Hood, McDonald, Cavanagh, Saad, and O’Connell, JJ. Saad, J. I. NATURE OF THE CASE This conflicts panel was convened to decide if a predispute agreement to arbitrate statutory employment discrimination claims arising under the Michigan Civil Rights Act (cra) and the Persons With Disabilities Civil Rights Act (pwdcra) is valid and enforceable. In Rushton v Meijer, Inc (On Remand), 225 Mich App 156; 570 NW2d 271 (1997), this Court held that this kind of predispute agreement is invalid as a matter of public policy. Contrary to Rushton’s holding, the overwhelming majority of federal and other state courts have held that these agreements are enforceable, provided that the arbitration procedures are fair and the agreement waives no substantive rights and remedies. We join the majority of courts and hold that as long as no rights or remedies accorded by the statute are waived, and as long as the procedure is fair, employers may contract with their employees to arbitrate statutory civil rights claims. Our holding breaks no new ground, but rather is consistent with our state’s public policy, and federal public policy, both of which increasingly and overwhelmingly favor arbitration as an inexpensive and expeditious alternative to litigation. Specifically, our holding furthers the objectives of the Michigan arbitration act (maa), which is a strong and unequivocal legislative expression of Michigan’s proarbitration public policy. In accordance with the maa’s endorsement of arbitration, and the cra’s and the pwdcra’s silence regarding the matter, we will not interfere with private parties’ contractual undertakings to arbitrate these claims. Our opinion is also consistent with the traditional principles of freedom of contract in the employment context. Clearly, employers are free to condition employment on employer-drafted wage and benefit structures and work rules as long as they comply with applicable statutory and common-law mandates. Similarly, we hold that employers are also free to require arbitration of claims as a condition of employment, provided that the agreement complies with our holding here. While our decision upholds the principle of freedom of contract and advances the public policy that strongly favors arbitration, it does so subject to two conditions generally accepted in the common law: that the agreement waives no substantive rights, and that the agreement affords fair procedures. These conditions are rooted in two critically important bases: (1) our Supreme Court’s decision in Renny v Port Huron Hosp, 427 Mich 415; 398 NW2d 327 (1986), which held that agreements to arbitrate employment claims must have fair procedures, and (2) Michigan and federal decisions (which generally have been held to be persuasive authority in Michigan employment discrimination cases) that uniformly hold that these arbitration agreements may not waive any substantive rights or remedies provided by the statute and must provide for fair procedures. With regard to procedural fairness, we will also detail below the specific procedural safeguards that we believe are mandated by Penny's requirement of fair procedures. Additionally, as we discuss below, contracts providing for compulsory arbitration of discrimination claims must, of course, meet the general rules regarding the validity of contracts. Although other contractual issues raised in this case are beyond the scope of this conflicts panel, we do hold, as a matter of law, that an arbitration agreement that does not diminish the rights and remedies guaranteed by the relevant employment discrimination statute and that is fair procedurally is not an unenforceable contract of adhesion. After discussing the facts, we will analyze the issues in the following sequence. We begin by discussing the prevailing public policy favoring arbitration that is evidenced in both Michigan and federal law. We then address how this proarbitration policy developed to include claims arising under public interest statutes and trace that development to judicial approval of predispute agreements to arbitrate statutory civil rights claims. Thereafter, we examine the necessary conditions for enforcement of these agreements: (1) a valid arbitration contract, (2) the absence of statutory prohibition against arbitrating particular statutory claims, and (3) the requirements of procedural fairness. Finally, we set forth the specific requirements for procedural fairness and define the standard of review. II. FACTS AND PROCEEDINGS Defendant Ryan’s Family Steak Houses, Inc., hired plaintiff as a bread maker in October 1993. At the time he was hired, plaintiff signed an arbitration agreement with Employment Dispute Services, Inc. (eds). The arbitration agreement provided, in pertinent part: Your potential Employer (“signatory company” or “Company”) has entered into an agreement with Employment Dispute Services, Inc. (eds) to arbitrate and resolve any and all employment-related disputes between the Company’s employees (and job applicants) and the Company. The following Agreement between You and eds is a “selection of forum” agreement by which you agree that employment-related disputes between You and the Company shall be resolved through arbitration. Any arbitration matter shall be heard and decided under the provisions and the authority of the Federal Arbitration Act, 9 USC sec. 1, as applicable. The purpose of this agreement is to provide You and the Company a forum in which claims or disputes with the Company and any other signatories may be resolved by arbitration rather than litigation. This Agreement does not restrict you from filing a claim or charge with any state or federal agency, for example, Equal Employment Opportunity Commission, state unemployment agency, state workers’ compensation commission, where applicable. Rather, the Agreement applies only to State or Federal court proceedings. While an employee with Ryan’s Family Steak Houses, Inc., plaintiff sued defendants in the circuit court for race discrimination under the CRA and handicap discrimination under the pwdcra (then known as the Michigan Handicappers’ Civil Rights Act). Plaintiff alleged that he suffers from epilepsy and cognitive defects resulting from a head injury. Plaintiff made a variety of allegations relating to discrimination in the terms of his employment. Plaintiff subsequently resigned his employment and amended his complaint to include a charge of constructive discharge. Plaintiff also raised a common-law claim of intentional infliction of emotional distress. Defendants moved for summary disposition pursuant to MCR 2.116(C)(7) (agreement to arbitrate) based on the signed arbitration agreement. After ruling that plaintiff had failed to establish that he was incompetent to understand the agreement he had signed, the trial court granted defendants’ motion. Plaintiff appealed. Meanwhile, a majority of a panel of this Court decided in Rushton, supra, that agreements to arbitrate employment-related discrimination claims were unenforceable as a matter of public policy. A panel of this Court therefore reversed the trial court’s order in this case because it was obligated to follow Rushton under MCR 7.215(H)(1). Rembert v Ryan’s Family Steakhouse, Inc, 226 Mich App 821; 575 NW2d 287 (1997) (Rembert I). The Rembert I panel opined that it reversed the trial court’s order only because it was obligated to follow Rushton and that it would have held otherwise if free to do so. The Court thereby invoked the conflicts panel provision under MCR 7.215(H). Pursuant to MCR 7.215(H), Rembert I was vacated, 226 Mich App 821-822, and this special conflicts panel was convened to resolve the conflict. III. ANALYSIS A. MICHIGAN AND FEDERAL LAW ENDORSE ARBITRATION 1. MICHIGAN COMMON LAW AND STATUTORY LAW STRONGLY FAVOR ARBITRATION Our Legislature has expressed a strong public policy favoring private voluntary arbitration, and our courts have historically enforced agreements to arbitrate disputes. As early as the nineteenth century, our Supreme Court held: “A parol submission to arbitration is good at common law, and is not forbidden by any statute. ... If [the parties submitted their agreement to a common arbiter], it would be a valid award.” Cady v Walker, 62 Mich 157, 159; 28 NW 805 (1886). See also Hoste v Dalton, 137 Mich 522, 526; 100 NW 750 (1904) (rejecting various arguments against enforcement of arbitration), and Detroit v A W Kutsche & Co, 309 Mich 700, 703; 16 NW2d 128 (1944) (“The general policy of this State is favorable to arbitration. ... If parties desire arbitration, courts should encourage them.”). Judicial approval of arbitration has broadened and strengthened in recent decades. This Court stated in EE Tripp Excavating Contractor, Inc v Jackson Co, 60 Mich App 221, 246-247; 230 NW2d 556 (1975): The heavily case-loaded courts are no longer jealous of their jurisdiction. Where the parties, by a fair agreement, have adopted a speedy and inexpensive means by which to have their disagreements adjusted, we see no public policy reasons for the courts to stand in their way. On the contrary we have a clear expression of public policy in the legislative enactments which provide for statutory arbitration. [Emphasis supplied.] Judicial approbation of arbitration has grown and now applies to many fields. For example, in the important area of medical malpractice, our Court, in Cox v D'Addario, 225 Mich App 113, 129-130; 570 NW2d 284 (1997), upheld an arbitration agreement as valid under Michigan’s medical malpractice act because “the public policy of this state favors the enforcement of valid arbitration agreements.” Further, in Moss v Dep’t of Mental Health, 159 Mich App 257, 264; 406 NW2d 203 (1987), involving statutory and contract rights of mental health provider employees, our Court held that arbitration was not an “unconstitutional intrusion upon the powers of the judiciary,” but rather is a “well-established mechanism for dispute resolution which is highly favored by the courts.” In FJ Siller & Co v City of Hart, 400 Mich 578, 581-582; 255 NW2d 347 (1977), our Supreme Court declined to interpret an agreement to arbitrate a construction contract dispute as meaning that arbitration was merely a “condition precedent”

JACOBSON v PARDA FEDERAL CREDIT UNION Docket No. 105050. Argued November 4, 1997 (Calendar No. 16). Decided May 19, 1998. Rehearing denied 458 Mich 1201. G. Marie Jacobson brought an action in the Oakland Circuit Court against Parda Federal Credit Union and some of its board members under the Whistleblowers’ Protection Act, MCL 15.361 et seq.-, MSA 17.428(1) et seq., alleging that she had been constructively discharged from employment. Following a jury verdict for the plaintiff, the court, Robert C. Anderson, X, directed a verdict for the defendants, finding that the claim was barred because it had not been filed within the requisite period of limitation. The Court of Appeals, Murphy, P.J., and Jansen and R. L. Kaczmarek, JX, reversed in part in an unpublished opinion per curiam, finding that the defendant had engaged in a pattern of discriminatory conduct amounting to a continuing violation, and that the action was filed within the limitation period (Docket No. 162885). The defendant credit union appeals. In an opinion by Justice Cavanagh, joined by Chief Justice Mallett, and Justices Boyle and Kelly, the Supreme Court held: Because the plaintiff has alleged and proven an act by her employer in violation of the Whistleblowers’ Protection Act within the limitation period, her action is not barred. 1. While an employer’s action may lead to a constructive discharge, the discharge itself generally cannot become evident until the employee, in fact, has left the employment. To say that a discharge occurred whenever an employer’s action that resulted in the discharge occurred would be to set a date of occurrence in retrospect. Until the employee resigns, the employer’s action has yet to prove to be one of discharge. A discharge, be it constructive or otherwise, must have in place all the events necessary to determine its existence. 2. A constructive discharge occurs only where an employer or its agent’s conduct is so severe that a reasonable person in the employee’s place would feel compelled to resign. The focus is on the moment of resignation. In this case, the employee’s resignation occurred on October 21, 1989. A jury later agreed that it was reasonable for her to resign at that time. Thus, she was constructively discharged on October 21, 1989. The law does not differentiate between employees who were constructively discharged and those who were actually discharged. At the time plaintiff filed her claim, any act that occurred on October 21, 1989, could timely be addressed. The filing was timely on the basis of her constructive discharge. Affirmed. Justice Taylor, joined by Justices Brickley and Weaver, dissenting, stated that in the context of a constructive discharge claim, it is not an employee’s tender of resignation that triggers the ninety-day limitation period under MCL 15.363(1); MSA 17.428(3)(1); rather, it is the employer’s adverse action. Because the plaintiff alleges no adverse actions by the defendant that occurred within ninety days of the filing of her complaint, subsection 3(1) bars her claim. Constructive discharge is not in itself a cause of action, but rather is a defense against an employer’s argument that the employee is precluded from bringing suit because of voluntary termination of employment. An underlying cause of action is necessary to support maintenance of the employee’s suit. It is the time of the employer’s alleged discriminatory act giving rise to the underlying cause of action that signals the start of the statutory limitation period, not the date the employee eventually resigns. In this case, the relevant event for purposes of the limitation period was the defendant’s alleged discriminatory action in August 1989, not the resignation itself. The majority’s position places control over accrual of a cause of action in the hands of the employee. If the statute of limitations in constructive discharge cases is not triggered until an employee actually resigns, the employer reasonably cannot be viewed as having any control over when the action accrues and, accordingly, has no protection from stale claims. Morganroth & Morganroth (by Mayer Morganroth and Jeffrey B. Morganroth) for the plaintiff. Bowen, Radabaugh, Milton & Brown, RC. (by Thomas R. Bowen, Susan Leigh Brown, and Evelyn C. Tombers), for the defendant. Amicus Curiae: Plunkett & Cooney, P.C. (by Ernest R. Bazzana), for Michigan Defense Trial Counsel, Inc. Cavanagh, J. The case calls on us to decide whether the plaintiffs action, which was successful on the merits before a jury, was barred by the statute of limitations prescribed by the Whistleblowers’ Protection Act. Because the plaintiff has alleged and proven an act by her employer in violation of the Whistleblowers’ Protection Act within the limitation period, we find that her action is not barred. The plaintiff filed her action on January 19, 1990, ninety days after writing and sending her letter of resignation to her employer. Her complaint alleged, inter alia, that she had been constructively discharged from her employment in violation of the act. Following a jury verdict for the plaintiff, the trial court granted defendant’s motion for directed verdict, agreeing with defendant’s contention that the plaintiff’s claim was barred because the plaintiff had not filed her claim within the ninety-day statutory period for claims under the act. The Court of Appeals reversed in part, finding a continuing pattern of discriminatory conduct, with most acts outside the statutory period, but at least one act within it. The Court of Appeals concluded that this fit within an exception to the limitation period for continuing violations, and that the plaintiff’s complaint was therefore timely filed. We granted defendant’s application for leave to appeal. We find that the plaintiff has shown that she was constructively discharged on the date of resignation in retaliation for conduct protected by the act. It is undisputed that when the plaintiff filed her action, the period of limitation covering any actions on the date of her resignation, October 21, 1989, had not expired. Accordingly, we affirm the result reached by the Court of Appeals, but on different grounds. i Plaintiff G. Marie Jacobson worked for defendant Parda Federal Credit Union from 1972 until her resignation on October 21, 1989. Beginning as a temporary employee, she eventually rose to the position of executive vice president and chief operating officer. While serving in this position, plaintiff, after consulting with her private attorney, contacted the Federal Bureau of Investigation on February 28, 1989, to report her suspicions regarding a bond claim filed by the defendant with its insurer. Plaintiff believed that this bond claim was unsupported and, therefore, improper and perhaps fraudulent. That same day, the board of directors of the credit union learned of plaintiff’s action. Thereafter, plaintiff noted a dramatic decline in her relationship with the board. The plaintiff testified that the board was upset and outraged that she had reported the credit union to the FBI. Joseph Abate was president and CEO of the credit union during this time, but had announced his retirement effective April 1, 1989. Plaintiff believed herself to be generally considered to be Abate’s successor. Shortly before Abate’s retirement, she was assured by members of the board that no search was being conducted for a replacement for Abate, and that, even if there was to be a search, she would have a “fair chance” in any search to fill Abate’s position. Following Abate’s retirement, however, the chairman of the credit union’s board, Herman Armstrong, was named acting interim CEO. From there, the plaintiff detailed at trial an extensive collection of actions adverse to her taken by the board, including the placing of a blind advertisement for the CEO position, the offering of the position to another candidate (who declined it), the failure of the board to inform her of its eventual decision to appoint her CEO, and the rescission of that decision before it in fact took effect. It is undisputed that all these actions occurred well outside the statutory limitation period present when the plaintiff filed her action. Eventually, on August 16, 1989, the credit union hired Katie Stone as interim president and CEO. Simultaneously, plaintiffs staff was assigned to report to Stone, and plaintiff was relieved of her previous job duties. Plaintiff testified that from this point forward she was ostracized and ignored by the board. On October 21, 1989, plaintiff typed out a letter of resignation and mailed it to the board members, leaving an additional copy on Stone’s desk. It is undisputed that plaintiff was alone at work that day, a Saturday. Plaintiff reported to work on the following Monday, October 23, 1989, and was instructed by Stone to clean out her desk and leave at once. Plaintiff complied with Stone’s instructions. On January 19, 1990, exactly ninety days after the day plaintiff wrote and mailed her letter of resignation, she filed this action. The defendant moved for a directed verdict at the close of plaintiff’s proofs and again at the close of its proofs. The trial court took both motions under advisement. Following a jury verdict in favor of the plaintiff, the trial court granted a directed verdict (judgment notwithstanding the verdict) in favor of the defendant on all counts. The Court of Appeals reversed in part, with respect to the finding that plaintiffs whistleblowers’ action was barred by the statute of limitations. It is from this portion of the Court of Appeals decision that the defendant appeals. We now affirm, for reasons other than those stated by the Court of Appeals. n The issue whether a claim is within the period of limitation is one of law, Solowy v Oakwood Hosp Corp, 454 Mich 214, 216; 561 NW2d 843 (1997), and hence reviewed de novo, Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991). Here, because a jury has found in favor of the plaintiff, and the trial court entered a directed verdict, plaintiff on appeal is entitled to all factual issues being viewed in the light most favorable to her, along with the drawing of reasonable favorable inferences from them. Caldwell v Fox, 394 Mich 401; 231 NW2d 46 (1975). Plaintiff filed her action on January 19, 1990. Under the act, the period of limitation for an action alleging unlawful retaliatory conduct is ninety days. Therefore, the first step in any analysis of this claim is to determine whether the plaintiff has stated a claim regarding events within the limitation period. Even if we were to agree with the analysis of the Court of Appeals of the events that were otherwise barred by the statute of limitations, the analysis must nevertheless begin at those times within the period of limitation. Simply stated, if the plaintiff has alleged an action within the period of limitation, and the trier of fact has found in favor of the plaintiffs claims, we need look no further. Here the plaintiff resigned on October 21, 1989. She was admittedly alone at work on that day, a Saturday. Plaintiff testified that her working conditions had become intolerable, and offered considerable testimony in support of her claims that the conditions had steadily deteriorated in response to her reporting certain actions of the board of directors of her employer to the FBI. The question when a constructive discharge occurs has been previously addressed by this Court only in the context of a Michigan Civil Rights Act claim. Champion v Nation Wide Security, Inc, 450 Mich 702; 545 NW2d 596 (1996). Noting that “a constructive discharge occurs only where an employer or its agent’s conduct is so severe that a reasonable person in the employee’s place would feel compelled to resign,” we found that the supervisor’s conduct in Champion was severe enough to compel the plaintiff to resign. Defendant argues that Champion stands for the proposition that the act of an employer constitutes the action that results in the “discharge” in a constructive discharge situation, and that, therefore, the timing of the action of the employer controls. We disagree. The act of the employer and the constructive discharge were inseparable in Champion. Our analysis did not deviate from the standard expressed in Vagts, that is, would a reasonable person in plaintiff’s position have felt compelled to resign as a result of the employer’s sexual assault? Applying that same standard, the defendant’s motion for judgment notwithstanding the verdict should not have been granted if, viewing the evidence in a light most favorable to the plaintiff, jurors could have reached different conclusions whether plaintiff’s working conditions were so intolerable that a reasonable person in plaintiff’s position would have felt compelled to resign. Champion, 450 Mich 710; Vagts v Perry Drug Stores, Inc, 204 Mich App 481, 487; 516 NW2d 102 (1994). m In this case, the plaintiff alleged that her work conditions, as a result of retaliatory action prohibited by the act, became intolerable as of October 21, 1989, and she submitted her resignation on that day. The trier of fact accepted this contention. While an employer’s action may lead to a constructive discharge, such a discharge itself generally cannot become evident until the employee has, in fact, left the employment. It seems, therefore, that to say that a discharge occurred whenever an employer’s action that resulted in the discharge occurred would be to set a date of occurrence in retrospect. Until the employee resigns, the employer’s action has yet to prove to be one of discharge. A discharge, be it constructive or otherwise, must have in place all the events necessary to determine its existence. On the day she resigned, plaintiff found her working conditions to finally be intolerable. As we have noted above, “a constructive discharge occurs only where an employer or its agent’s conduct is so severe that a reasonable person in the employee’s place would feel compelled to resign.” Champion at 710-711, citing Vagts at 487-488, and Young v Southwestern Savings & Loan Ass’n, 509 F2d 140 (CA 5, 1975). Our approach historically has been to apply an objective standard of reasonableness to the action of the employee. We decline the defendant’s invitation to depart from our longstanding rule that a discharge occurs when a reasonable person in the employee’s place would feel compelled to resign. In analyzing such circumstances, we cannot know what place the employee is in, and hence evaluate her conduct, until she actually resigns. It seems, therefore, that our focus in these far more common situations must be on the moment of resignation. Here, the employee’s resignation occurred on October 21, 1989. A jury later agreed that it was reasonable for her to resign at that time. She was constructively discharged on October 21, 1989. “[O]nce individuals establish their constructive discharge, they are treated as if their employer has actually fired them.” Champion at 710. The law does not differentiate between employees who were constructively discharged and those who were actually discharged. Id. At the time plaintiff filed her claim, any act that occurred on October 21, 1989, could timely be addressed. If the plaintiff had been fired by her employer on October 21, 1989, her claim would be timely. We, therefore, would find it timely on the basis of her constructive discharge. Because reasonable jurors could differ regarding whether plaintiff was constructively discharged in violation of the act at the time she resigned, we affirm the result of the Court of Appeals, which reversed the directed verdict, and reinstate the jury’s award on the basis of the reasoning herein. Mallett, C.J., and Boyle and Kelly, JJ., concurred with Cavanagh, J. MCL 15.361 et seq.; MSA 17.428(1) et seq. While plaintiffs suit initially named several individual members of her employer’s board of directors as defendants, the trial court dismissed these claims pursuant to MCR 2.116(C)(8), finding the individual directors not to be employers within the meaning of the Whistleblowers’ Protection Act. The Court of Appeals affirmed this dismissal, and the plaintiff has not filed a cross appeal on this issue. The jury awarded the plaintiff $277,000 in present economic damages and $128,000 in future economic damages. The jury also awarded $100,000 in noneconomic damages on the plaintiff’s claim of intentional infliction of emotional distress. The trial court granted a directed verdict on this claim, and the Court of Appeals affirmed. Plaintiff has not filed a cross appeal on this issue. Now a judgment notwithstanding the verdict, MCR 2.610. MCL 15.363(1); MSA 17.428(3)(1). Unpublished opinion per curiam, issued November 17, 1995 (Docket No. 162885). The Court of Appeals cited Sumner v Goodyear Tire & Rubber Co, 427 Mich 505, 528; 398 NW2d 368 (1986), for this proposition. 454 Mich 905 (1997). Constructive discharge is not, itself, a cause of action, but rather a defense to a claim of the voluntary leaving of the employee. See Vagts v Perry Drug Stores, Inc, 204 Mich App 481, 487; 516 NW2d 102 (1994). However, discharge is among the retaliatory actions prohibited by the act. Plaintiff alleged she was constructively discharged. The actual posturing of her claim, accordingly, is one of discharge in violation of the act. In reviewing a motion for judgment notwithstanding the verdict, we examine the testimony and all legitimate inferences that may be drawn in a light most favorable to the nonmoving party. If reasonable jurors could have reached different conclusions, the motion should have been denied. Matras v Amoco Oil Co, 424 Mich 675, 681-682; 385 NW2d 586 (1986). As will be seen, we find no need to reach the issue of a possible “continuing violation” encompassing acts beyond the limitation period. It is apparent that, before the plaintiff contacted the FBI, she had brought her concerns regarding the bond claim to the board of directors, which nonetheless authorized the filing of the claim. While it is apparent that the board decided to promote plaintiff to ceo after the other candidate refused the position, the plaintiff testified she was never informed of that decision and learned of it by way of a third-party’s congratulatory letter a month later. When confronted by the plaintiff, the board informed her that it had already rescinded her promotion, and thereafter hired Katie Stone as interim CEO. A motion for judgment notwithstanding the verdict should be granted only if the evidence, viewed in a light most favorable to the nonmoving party, fails to establish a claim as a matter of law. Orzel v Scott Drug Co, 449 Mich 550, 557-558; 537 NW2d 208 (1995). Our decision rests on a claim of constructive discharge within the limitation period. Plaintiff also alleged numerous discriminatory acts by the defendant outside the limitation period. While those allegations do not, by themselves, form the basis we decide this matter on, they are nonetheless relevant to determining the reasonableness of the plaintiff’s resignation, a determination required in addressing a claim of constructive discharge. See Vagts, n 9 supra at 487-488. MCL 37.2101 et seq.-, MSA 3.548(101) et seq. Subsection 103 of the act provides: (i) Discrimination because of sex includes sexual harassment which means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature when: (ii) Submission to or rejection of such conduct or communication by an individual is used as a factor in decisions affecting such individual’s employment, public accommodations or public services, education, or housing. Champion at 710, citing Vagts, n 9 supra at 487-488, and Young v Southwestern Savings & Loan Ass’n, 509 F2d 140 (CA 5, 1975). In Champion, the plaintiff was forcibly raped by her supervisor while at wo

SHERRY G. RUSSELL, Plaintiff v. JERRY E. BUCHANAN and CAROLINA MACHINE AND ASSOCIATES, INC., Defendants No. COA97-1001 (Filed 19 May 1998) 1. Evidence and Witnesses § 350 (NCI4th)— civil sexual harassment claim — previous relationship with employee— admissible The trial court did not err in a civil sexual harassment action by allowing plaintiff to present evidence concerning alleged prior misconduct by defendant with an employee. The statement by defendant-Buchanan could suggest an intent to sexually prey on female subordinates; under N.C.G.S. § 8C-1, Rule 404(b), prior “bad acts” evidence is admissible if it tends to show a defendant’s motive, opportunity, intent, preparation, plan, knowledge, or identity. Defendants failed to raise Rule 403 at trial and, in any event, Rule 403 does not preclude admission of this evidence. 2. Discovery and Depositions § 5 (NCI4th)— civil sexual harassment claim — number of employees in company— records gathered night before testimony — not admissible Defendants failed to establish that the trial court abused its discretion in a civil sexual harassment claim where the trial court did not allow defendants to introduce payroll and W-2 records that had been gathered the night before to show the number of employees, a matter of jurisdiction under Title VII and N.C.G.S. § 143-422.2. The imposition of sanctions for failure to supplement discovery is within the discretion of the trial judge. 3. Trial § 422 (NCI4th)— civil sexual harassment claim— instructions — burden of establishing number of employees — no prejudice There was no prejudicial error in a sexual harassment trial where defendants contended that the trial court erred by modifying a jury instruction, after the jury had retired, concerning the burden of establishing the number of employees at the company Assuming that the trial court improperly shifted the burden of persuasion, a new trial should not be granted for error in the charge where the jury could draw but one inference. 4. Appeal and Error § 156 (NCI4th)— civil sexual harassment — testimony of plaintiff’s mother — failure to timely object The argument of defendants in a civil sexual harassment action that the trial court erred by allowing plaintiffs mother to testify that she was afraid for plaintiff was without merit because defendants failed to timely object to the testimony. 5. Labor and Employment § 119 (NCI4th)— sexual harassment — attorneys’ fees — no findings that fees unjust The trial court erred in a sexual harassment action by not making proper findings showing the special circumstances relied on by the trial court in denying attorneys’ fees. A prevailing plaintiff in a Title VII action is normally entitled to attorneys’ fees unless special circumstances render such an award unjust. Appeal by defendants from judgment and order, and by plaintiff from order, entered 1 May 1997 by Judge James U. Downs in Gaston County Superior Court. Heard in the Court of Appeals 30 March 1998. Sharpe & Fosbinder, P.A., by Julie H. Fosbinder, for plaintiff - appellee/appellant. Don H. Bumgardner for defendant-appellants/appellees. MARTIN, Mark D., Judge. Defendants appeal from judgment and order of the trial court awarding plaintiff damages for sexual harassment. Plaintiff appeals from order of the trial court denying attorneys’ fees. Sherry G. Russell (plaintiff} was employed by Carolina Machine & Associates (CMA) and Jerry Buchanan (Buchanan), president and major shareholder (collectively defendants), from 7 June 1993 to 25 June 1993. Plaintiff testified that during her time with the company plaintiff was constantly subjected to sexual harassment by Buchanan, including statements that he would make her a vice-president if she left her husband, unwanted touches on her buttocks, requests that she wear suggestive clothing, and requests that she have sex with him. According to plaintiff, when she resisted these advances, Buchanan cut her wages and effectively forced her to resign because she could not work for the smaller wages. Buchanan testified he hired her in good faith, but quickly realized there was not enough work to justify her original wages, and accordingly adjusted her salary to conform to her work-load. He denied any acts of sexual harassment. Plaintiff filed her complaint on 23 July 1995, alleging sexual harassment and seeking relief under Title VII of the Civil Rights Act of 1964, and common law torts based on the public policies expressed in N.C. Gen. Stat. § 143-422.1, et seq. The case came on for trial during the 17 March 1997 term of Gaston County Superior Court. On 19 March 1997 the jury returned a verdict for plaintiff and awarded her $38,343.20, which included $30,000 for punitive damages. Plaintiffs request for attorneys’ fees was denied. Both parties appeal. Defendants appeal from judgment and order, and plaintiff from order denying attorneys’ fees. I. Defendants’ Appeal Defendants first contend the trial court erred in allowing plaintiff to present evidence concerning alleged prior misconduct of Buchanan. Specifically, defendants argue it was improper to allow plaintiff to testify about an alleged statement made by Buchanan concerning a previous sexual relationship he had with a prior employee. Although “[a]dultery is not the type of conduct which falls under Rule 608(b),” State v. Woodard, 102 N.C. App. 687, 692, 404 S.E.2d 6, 9 (1991), under rule 404(b) prior “bad acts” evidence is admissible if it tends to show a defendant’s “motive, opportunity, intent, preparation, plan, knowledge, [or] identity . . . .” N.C. Gen. Stat. § 8C-1, Rule 404(b) (Supp. 1997). Buchanan’s statement regarding a sexual relationship with a prior employee could suggest an intent to sexually prey on female subordinates, and as such was properly admitted by the trial court. See Pinckney v. Van Damme, 116 N.C. App. 139, 153, 447 S.E.2d 825, 834 (1994) (evidence regarding defendant’s prior acts in engaging in excessive conduct with other co-employees probative of defendant’s motive and intent). Defendants, for the first time on appeal, cite Rule 403 for the proposition that this evidence should have been excluded because its probative value was “substantially outweighed by the danger of unfair prejudice.” N.C. Gen. Stat. § 8C-1, Rule 403 (1992). As defendants failed to make this argument at trial, they cannot “swap horses between courts in order to get a better mount [on appeal].” State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)). In any event, Rule 403 does not preclude admission. Accordingly, defendants’ argument is without merit. Defendants also contend the trial court erred in refusing to allow defendants to present certain information showing the number of employees employed by CMA during the times alleged in the complaint. Specifically, defendants argue they should have been allowed to present payroll histories and W-2 forms allegedly proving CMA employed less than the threshold number of employees required for jurisdiction under Title VII and N.C. Gen. Stat. § 143-422.2. Under Title VII, jurisdiction is present where an employer “has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year . . . .” 42 U.S.C. § 2000e(b) (1994). Similarly, North Carolina sexual harassment law applies to those employers “which regularly employ fifteen or more employees.” N.C. Gen. Stat. § 143-422.2 (1&96). The United States Supreme Court recently concluded that to count an individual as an employee under section 2000e(b), “all one needs to know about a given employee for a given year is whether the employee started or ended employment that year and if so, when. He is counted as an employee for each working day after arrival and before departure.” Walters v. Metropolitan Educational Enterprises, 519, U.S. 202, -, 117 S. Ct. 660, 665-666, 136 L. Ed. 2d 644, 654 (1997). Whether the employee is actually working or receiving pay for each day is irrelevant, so long as he or she appears on the company payroll. Id. at -, 117 S. Ct. at 666, 136 L. Ed. 2d at 654. Thus, if fifteen or more individuals appear on the company payroll for 20 or more weeks during the year, jurisdiction is appropriate. Id. During defendants’ presentation they attempted to introduce payroll and W-2 records that had been gathered the night before from defendants’ accountant. Plaintiff objected, stating she had unsuccessfully requested such information from defendants during discovery. Since plaintiff did not have a chance to examine the information, she asked that it be excluded. The trial court agreed, stating, “[i]t is a little too late to go into something that you obtained last night from somebody that is not a party to this lawsuit.” Defendants argue they did not have this information when plaintiff made the request, and only recently obtained access. Even if this were true, the duty to supplement discovery may be enforced through sanctions imposed by the trial court, “including exclusion of evidence, continuance, or other action, as the court may deem appropriate.” A party’s failure to comply with the limited duty imposed by Rule 26(e) is a ground for the trial court to impose such sanctions as exclusion of evidence, continuance, or other appropriate measures on the defaulting party. Bumgarner v. Reneau, 332 N.C. 624, 630, 422 S.E.2d 686, 689-690 (1992) (citations omitted). “The imposition of sanctions under Rule 37 for failure to [supplement discovery] is within the sound discretion of the trial judge.” Id. at 630, 422 S.E.2d at 690. Defendants have failed to establish an abuse of discretion. In addition, a review of the excluded evidence shows that the records contained therein are incomplete, and may, under Walters, actually support a finding in favor of jurisdiction. Accordingly, defendants’ argument is without merit. Defendants also contend the trial court erred in modifying a jury instruction, after the jury had already retired, concerning the burden of establishing the number of employees during the applicable time period. Assuming, without deciding, that the trial court improperly shifted the burden of persuasion, we conclude no prejudice occurred. During the trial, plaintiff testified that more than fifteen employees worked for CMA. In addition, CMA’s office manager provided testimony regarding records which showed that during 1993 CMA had at least thirty employees. Our review of the transcript shows that approximately seventeen of these employees were employed by CMA for periods exceeding twenty weeks in 1993. “[W]here ‘the jury can draw but one inference, a new trial shall not be granted on account of error in the charge of the trial judge.’ ” Watkins v. Hellings, 321 N.C. 78, 80, 361 S.E.2d 568, 570 (1987) (quoting Brannon v. Sprinkle, 207 N.C. 398, 407, 177 S.E. 114, 119 (1934)). In addition, as indicated previously, defendants’ own excluded documents appear to provide further circumstantial evidence that jurisdiction was proper. Accordingly, defendants’ argument is without merit. Finally, defendants contend the trial court erred in allowing plaintiff’s mother to testify she was afraid for plaintiff. Defendants claim such evidence was irrelevant and prejudicial. Because defendants failed to timely object to this statement, their argument is without merit. See Muse v. Charter Hospital of Winston-Salem, 117 N.C. App. 468, 478, 452 S.E.2d 589, 597 (1995), reh’g denied, 342 N.C. 666, 467 S.E.2d 718 (1996) (admission of testimony over objection was not prejudicial error where first time testimony of that type was offered party failed to object). We have carefully reviewed defendants’ remaining assignments of error and find them to be without merit. II. Plaintiffs Appeal Plaintiff contends the trial court erred in denying her request for attorneys’ fees. Specifically, plaintiff argues that as the prevailing party in a Title VII action, she should have been granted attorneys’ fees absent a showing of special circumstances to militate against the award. The statutory language of Title VII provides “[i]n any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee ... as part of the costs ....” 42 U.S.C. § 2000e-5(k) (1994). The 4th Circuit Court of Appeals has indicated that “ ‘[t]he discretion of a [trial] court in deciding whether to award attorneys’ fees to a prevailing party is narrowly limited.’ ” Mammano v. Pittston Co., 792 F.2d 1242, 1244-1245 (4th Cir. 1986) (quoting Young v. Kenley, 641 F.2d 192, 194 (4th Cir. 1981)). “A prevailing plaintiff in a Title VII action is normally entitled to attorneys’ fees unless special circumstances render such an award unjust.” Id. In its order denying attorneys’ fees, the trial court made no findings of special circumstances that would render such an award unjust. Our review of the record indicates the trial court may have felt plaintiff was adequately compensated by her damage award. If so, the trial court erred in denying attorneys’ fees to plaintiff. See Sasaki v. Class, 92 F.3d 232, 243 (4th Cir. 1996) (fact that former employee received generous award of damages in sexual harassment action against former employer was not proper rationale for denying her award of attorneys’ fees). In any event, without proper findings showing the special circumstances relied on by the trial court in denying its award of attorneys’ fees, we axe unable to properly review this issue. Accordingly, we remand for findings of fact to support the trial court’s denial. In summary, we find no prejudicial error in trial, and remand the order denying attorneys’ fees for additional findings. No error in part; remanded in part. Judges McGEE and SMITH concur.

REMBERT v RYAN’S FAMILY STEAKHOUSE, INC Docket No. 196542. Released December 2, 1997, at 9:00 am.; vacated December 16, 1997. Before: Corrigan, C.J., and Griffin and Hoekstra, JJ. GRIFFIN, J. Plaintiff appeals as of right an order of the circuit court granting summary disposition in favor of defendants on the basis that plaintiff’s claims are barred by an agreement to arbitrate. MCR 2.116(C)(7). Were we permitted, we would affirm for the reasons set forth in Judge (now Justice) Taylor’s opinion (concurring in part and dissenting in part) in Rushton v Meijer, Inc (On Remand), 225 Mich App 156; 570 NW2d 291 (1997). However, pursuant to MCR 7.215(H) we must follow and apply the holding of the majority opinion in Rushton, supra, which compels us to affirm in part and reverse in part. I Contemporaneously with his hiring by defendants, plaintiff executed a contract in which he agreed to arbitrate all employment-related disputes. Unlike in Heurtebise v Reliable Business Computers, Inc, 452 Mich 405; 550 NW2d 243 (1996), the arbitration agreement here is clearly a contract. Accordingly, the basis found by the Supreme Court in Heurtebise for not enforcing the arbitration provision is not applicable in the present case. However, in Rushton, supra at 170, this Court in a two to one decision adopted Justice Cavanagh’s concurring opinion in Heurtebise. The Rush-ton majority held “that Meyer [the employer] cannot require its employees, as a condition of employment, to waive prospectively their right to pursue direct and immediate review of civil rights claims in a judicial forum.” The Rushton panel based its decision on Michigan’s longstanding public policy of vigorously protecting the civil rights of its citizens. Judge Taylor dissented, arguing the fundamental policy of freedom of contract. Judge Taylor also noted that Michigan’s public policy, as reflected in our arbitration act, MCL 600.5001; MSA 27A.5001, and judicial decisions, favors arbitration and other forms of alternative dispute resolution (adr). The exclusion of all prospective civil rights claims from adr would thwart these important public policy objectives. Further, as Judge Taylor noted in Rushton, supra at 177-178: [T]he whole notion of prospective waivers of important rights is not, as the majority seems to believe, inherently repugnant to our constitutional order. Indeed, it is well established that rights of a higher standing than that of forum selection, i.e., constitutional rights themselves, may be prospectively waived. . . . Given that these highly valued constitutional rights may be prospectively waived without offending public policy, how can it be seriously suggested that, without a statute or provision of the constitution prohibiting it, and, in fact, our state arbitration act allowing it, the right to have a circuit court to resolve a civil rights dispute may not be prospectively waived in favor of having such a claim adjudicated in an arbitral forum? We agree with the reasoning of Judge Taylor and would follow and adopt his opinion.* We find no support for the Rushton majority’s conclusionaiy statement that all employment contracts to arbitrate prospective civil rights claims violate public policy. As noted by Judge Taylor, important rights, even of a constitutional magnitude, may be waived, modified, or limited by contract. Indeed, the Rushton holding contradicts recent federal court decisions, which have routinely ordered employees to arbitrate a wide variety of state and federal statutory claims under the provisions of predispute mandatory arbitration agreements governing employment discrimination claims. In Gilmer v Interstate/Johnson Lane Corp, 500 US 20; 111 S Ct 1647; 114 L Ed 2d 26 (1991), the United States Supreme Court considered whether claims arising under the Age Discrimination in Employment Act (adea), 29 USC 621 et seq., could be the subject of an enforceable arbitration agreement. The Court concluded that there was no evidence of a congressional intent to preclude arbitration of adea claims and allowed enforcement of an agreement to arbitrate such claims. Gilmer, supra at 35. In so holding, the United States Supreme Court, id. at 30, reiterated the significance of arbitration as a viable means of dispute resolution: In arguing that arbitration is inconsistent with the adea, Gilmer also raises a host of challenges to the adequacy of arbitration procedures. Initially, we note that in our recent arbitration cases we have already rejected most of these arguments as insufficient to preclude arbitration of statutory claims. Such generalized attacks on arbitration “rest on suspicion of arbitration as a method of weakening the protections afforded in the substantive law to would-be complainants,” and as such, they are “far out of step with our current strong endorsement of the federal statutes favoring this method of resolving disputes.” Rodriguez de Quijas [v Shearson/American Express, Inc, 490 US 477, 481; 109 S Ct 1917; 104 L Ed 2d 526 (1989)]. Post-Gilmer decisions uniformly have found its rationale to be equally applicable to the arbitration of claims arising under another federal civil rights statute, title VII of the Civil Rights Act of 1964, 42 USC 2000e et seq. See, e.g., Cosgrove v Shearson Lehman Bros, 105 F3d 659 (CA 6, 1997); Willis v Dean Witter Reynolds, Inc, 948 F2d 305, 310 (CA 6, 1991); Cremin v Merrill Lynch Pierce Fenner & Smith, Inc, 957 F Supp 1460, 1471 (ND Ill, 1997) (and cases cited therein). These cases demonstrate that “[b]y agreeing to arbitrate a statutory claim, a party does not forego the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.” Mitsubishi Motors Corp v Soler Chrysler-Plymouth, Inc, 473 US 614, 628; 105 S Ct 3346; 87 L Ed 2d 444 (1985). Were we permitted, we would follow this persuasive line of authority. We apply the holding of the majority opinion in Rushton, supra, only because we are required to do so pursuant to MCR 7.215(H). II Plaintiff’s complaint alleges claims of (1) racial discrimination, (2) handicap discrimination, (3) intentional infliction of emotional distress, and (4) constructive discharge. Plaintiff’s claims of intentional infliction of emotional distress and constructive discharge are clearly covered by the arbitration contract and, therefore, the circuit court’s order subjecting these claims to arbitration is affirmed. However, pursuant to Rushton, supra, plaintiffs claims of racial discrimination and handicap discrimination may not be submitted to arbitration. Accordingly, the lower court’s order regarding plaintiff’s claims of racial discrimination and handicap discrimination is reversed. The remaining issues raised on appeal are without merit. We agree with the ruling of the lower court that plaintiff failed to sustain his burden of submitting any evidence that he was incompetent to enter into the arbitration contract. Further, we agree that the contract for arbitration is clear and unambiguous with regard to the waiver of substantive legal rights and that it applies to defendants. We also hold that summary disposition was not prematurely granted, because further discovery was not necessary for plaintiff to discover his own alleged incompetence. Summary disposition is premature if discovery of a disputed issue is incomplete; however, it is appropriate if there is no fair chance that further discovery will result in factual support for the nonmoving party. Vargo v Sauer, 215 Mich App 389, 401; 547 NW2d 40 (1996). Moreover, there must be a disputed issue before the court. Bellows v Delaware McDonald’s Corp, 206 Mich App 555, 561; 522 NW2d 707 (1994). After having been given approximately six months to conduct discovery with regard to the competency issue and the opportunity to supplement any evidence in this regard, the trial court properly held that plaintiff’s conclusory averments regarding his own incompetency did not raise a genuine issue of fact. SSC Associates Ltd Partnership v General Retirement System of the City of Detroit, 192 Mich App 360, 365-366; 480 NW2d 275 (1991). Finally, during oral argument, defendants argued that the present case is distinguishable from Rushton for the reason that plaintiff’s employment allegedly involved interstate commerce and, therefore, is governed by the federal arbitration act, 9 USC 1 et seq. We disagree. For the reasons stated in the Rushton majority opinion, we hold that plaintiff’s employment contract as a breadmaker at defendant Ryan’s Family Steakhouse, Inc., was not “a contract evidencing a transaction involving [interstate] commerce . . . . “ 9 USC 2. Accordingly, plaintiff’s civil rights claims are not preempted by the federal arbitration act. Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. See, e.g., Detroit v A W Kutsche & Co, 309 Mich 700, 703; 16 NW2d 128 (1944), Grazia v Sanchez, 199 Mich App 582, 584; 502 NW2d 751 (1993), McKain v Moore, 172 Mich App 243, 248; 431 NW2d 470 (1988), Marciniak v Amid, 162 Mich App 71, 76; 412 NW2d 248 (1987), Omega Constr Co, Inc v Altman, 147 Mich App 649, 655; 382 NW2d 839 (1985), and Northland Ins Co v Sny, 98 Mich App 507, 508; 296 NW2d 292 (1980). We would not adopt the unnecessary commentary contained in the footnotes. The notion of unconscionability may be an underpinning of the Rush-ton decision. On this unarticulated issue, we note that, although atypical, many employment contracts are entered into with equal bargaining strength. Furthermore, in contracts involving some corporate executives or famous sport stars, the employee, not the employer, often has the stronger bargaining position. To hold in such situations that the employee cannot contractually agree to arbitrate prospective claims, including civil rights claims, is to deny, without reason, the right to contract. While case by case we might find some employment contracts to arbitrate future claims to be unconscionable, or not arbitrable as gleaned from legislative intent, the all-encompassing rule of law created by Rushton simply goes too far.

STEWART v FAIRLANE COMMUNITY MENTAL HEALTH CENTRE (ON REMAND) Docket No. 191460. Submitted June 3, 1997, at Detroit. Decided September 16, 1997, at 9:00 A.M. Carol Stewart brought an action in the Wayne Circuit Court against Fairlane Community Mental Health Centre, alleging violation of the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq., as a result of her alleged constructive discharge from employment. The defendant sought summary disposition, alleging that, through the defendant’s personnel policies manual, the plaintiff had agreed to binding arbitration with regard to any issues relating to her employment. The court, Michael J. Callahan, J., denied the defendant’s motion. The Court of Appeals, in lieu of granting the defendant’s application for leave to bring an interlocutory appeal, entered an unpublished order on February 3, 1995, reversing the trial court’s order and remanding the matter with instructions that the court enter an order directing the parties to proceed to arbitration. (Docket No. 180776). The Supreme Court, in lieu of granting leave to appeal, vacated the order of the Court of Appeals and remanded the matter to the Court of Appeals for plenary consideration. 450 Mich 943 (1995). On remand, the Court of Appeals held: The defendant’s personnel policy manual did not create an enforceable arbitration agreement. An agreement or provision in an employee manual is not mutual or binding where, as between a private employer and a nonunion employee, an employer may unilaterally amend at any time every policy contained in its employee manual. In the absence of a binding contract to arbitrate, the defendant is not entitled to summary disposition. Affirmed. 1. Arbitration — Master and Servant — Contracts. An employer’s personnel policy manual does not create an enforceable arbitration agreement with regard to employment-related issues where it is not a binding contract; an agreement or provision in an employee manual is not mutual or binding where, as between a private employer and a nonunion employee, the employer may unilaterally amend at any time every policy contained in its employee manual. 2. Arbitration — Contracts — Unilateral Revocation. Neither party to an arbitration agreement under the Michigan arbitration act may revoke the agreement without the other party’s consent; a party’s reservation of the right to change the agreement unilaterally at any time is inconsistent with the arbitration act (MCL 600.5011; MSA 27A.5011). Berkley, Mengel & Vining, P.C. (by Christopher E. Mengel and Guy C. Vining), for the plaintiff. Collins, Einhom, Farrell & Ulanoff, P.C. (by Janice G. Hildenbrand and Barbaa H. Goldman), for the defendant. ON REMAND Before: Mackenzie, P.J., and Neff and Markey, JJ. Per Curiam. Defendant appeals as of right from the trial court’s November 1994 order denying its motion for summary disposition regarding plaintiff’s cause of action under the Michigan Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq.; MSA 17.428(1) et seq. In light of our Supreme Court’s decision in Heurtebise v Reliable Business Computers, Inc, 452 Mich 405, 413-414; 550 NW2d 243 (1996), we affirm. I This is the second time that this Court has addressed the instant matter. The facts are not in dispute. Plaintiff is a registered nurse who began working at defendant’s outpatient psychiatric facility in 1989. In 1993, defendant unilaterally amended its personnel policies manual that plaintiff was given in 1989 to include a binding arbitration provision, which states in pertinent part: XI. BINDING ARBITRATION: Pursuant to the Federal Arbitration Act (faa) the following procedure and practice will serve as an agreement between the Centre and all employees to arbitrate any dispute which may arise during the period of employment with the Centre. Both parties agree to the following: Terms of agreement. 1. A signed statement agreeing to this will be executed between both parties prior to employment or prior to the enactment of this policy of which is a separately signed document from the contractual agreement.[] 2. This agreement covers all terms, aspects, and potential disputes that may arise as a result of employment between the Centre and all employees unless otherwise stated below and includes claims that may be brought toward [sic] a third party such as fellow employees. 3. This agreement specifically covers all disputes that may occur that relate to the Age Discrimination in Employment Act (adea). 4. This agreement does however exclude all workers’ compensation claims. 5. This agreement is considered mutual. In as much that this agreement binds the employee to arbitrate claims against the employer, it also obligates the employer to arbitrate the' employee’s claims. 6. It is clearly understood between all parties that no dispute may be litigated in a court of law and that arbitration of all covered by this agreement shall be final and binding. 7. This agreement binds both parties to waive all rights to a jury trial with regard to employment disputes covered by the agreement. * * * 13. At the onset of this agreement all prospective employees shall be entitled to 7 days to consider whether to enter into this agreement and 21 days to revoke it. The arbitration agreement was adopted on January 13, 1993, and signed by defendant’s executive director. Plaintiff signed a document entitled “Acknowledgement of Receipt of the Centre’s Personnel Policies” acknowledging her receipt of the new policy manual containing the arbitration agreement, although she disputes that she actually received it. She also claims that she was induced to sign it in order to receive her paycheck. The document plaintiff signed, which was witnessed on January 27, 1993, did not contain language mentioning the new arbitration policy or indicating whether she agreed to the binding arbitration provision. Rather it contained the following disclaimer: Not a Contract of Employment: I understand the Personnel Policies Manual is neither an “employment agreement,” nor a “contract of employment.” It is a guide for the employer to provide, to the extent possible, a more uniform (though [sic] not precisely equal) approach to personnel practices and policies among Employees. [Emphasis added.][] According to plaintiffs complaint, in mid-1993, plaintiff became aware that members of defendant’s nonmedical staff were putting together and distributing medication without supervision and possibly breaking the law with respect to the dispensing of prescription drugs. When plaintiff informed her superiors of her concern and the fact that these activities should be reported to the proper authorities, plaintiff was told that her position may be compromised. In February 1994, plaintiff refused to prepare medication for a patient, despite her supervisor’s orders, because the medication order needed physician approval and a nonmedical staff member could not administer the medication. Instead, she consulted a physician, who altered the medications, and then gave them to her supervisor to administer to the patient. Plaintiff was thereafter suspended for two weeks for “unwillingness to obey a directive by [her] supervisor” and was placed on disciplinary probation for six months. When defendant refused to return plaintiff to work without the disciplinary conditions, plaintiff considered herself constructively discharged. In April 1994, plaintiff filed her complaint alleging a violation of the wpa. In response, defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(7) claiming that, through defendant’s personnel policies manual, plaintiff had agreed to binding arbitration regarding any issues related to her employment. Rejecting defendant’s motion, the trial court found that the arbitration provision did not apply to the statutorily created tort alleged in plaintiffs complaint. Defendant filed a timely application for leave to bring an interlocutory appeal. Rather than grant leave, this Court, in an unpublished order entered February 3, 1995 (Docket No. 180776), reversed the trial court’s order and remanded the case with instructions that the trial court enter an order directing the parties to proceed to arbitration, citing this Court’s decision in Heurtebise v Reliable Business Computers, Inc, 207 Mich App 308; 523 NW2d 904 (1994). Plaintiff sought leave to appeal this Court’s order to the Michigan Supreme Court. In a December 19, 1995, order, 450 Mich 943 (1995), the Supreme Court, in lieu of granting leave to appeal, vacated this Court’s order and remanded the case to this Court for plenary consideration. n Defendant’s sole issue on appeal is whether the arbitration agreement in the personnel policies manual is enforceable with regard to plaintiff’s claim under the wpa. We believe that it is not enforceable but for different reasons than those cited by the trial court. As a preliminary matter, we review de novo the trial court’s ruling regarding summary disposition. Guerra v Garratt, 222 Mich App 285, 288; 564 NW2d 121 (1997). We must accept as true the plaintiff’s well-pleaded factual allegations, construing them in the plaintiffs favor, and consider the pleadings and other documentary evidence to determine if there is a genuine issue of material fact. Id. at 289. If no facts are in dispute and reasonable minds could not differ regarding the legal effect of those facts, however, the question whether the plaintiffs claim is barred presents a question of law for the court. Id. A The question whether an employee may validly waive her right to a judicial forum with respect to pursuing a claim under the wpa is an issue of first impression in Michigan. The Supreme Court in Heurtebise, 452 Mich 413-414, addressed this question in the civil rights context, and we believe that the same analysis applies to this wpa case. In Heurtebise, the plaintiff filed suit against her employer alleging she had been unlawfully terminated from her employment in violation of the Michigan Civil Rights Act (cra), MCL 37.2101 et seq.; MSA 3.548(101) et seq. 452 Mich 408. The plaintiff, a woman, claimed that she and her male co-worker took longer than the permitted one-hour lunch periods while working together on a project. After returning from a working lunch that lasted over an hour, she was terminated, but her male co-worker was not. The plaintiff filed suit alleging unlawful gender discrimination. The defendant filed its motion for summary disposition seeking, in part, to compel arbitration and stay the proceedings on the basis of a written acknowledgment that the plaintiff signed. The acknowledgment stated that she had received the defendant’s employee handbook and she agreed to be bound by its terms and policies. Heurtebise, 452 Mich 408-409. The handbook provided that all disputes involving money damages would be resolved by final and binding arbitration. Id. at 409, n 3. Refusing to enforce the arbitration agreement because it was against public policy and because the other clauses in the handbook made the arbitration provision ambiguous, the trial court denied the defendant’s motion. On appeal, this Court reversed the order of the trial court. Heurtebise, 207 Mich App 310-312. Without the benefit of the defendant’s entire policy manual, this Court found that the. plaintiff signed the acknowledgment regarding the arbitration agreement even though mutual assent was not required, citing In re Certified Question, 432 Mich 438; 443 NW2d 112 (1989). Heurtebise, 207 Mich App 311. Further, this Court found that the “[p]laintiff’s argument that the handbook specifically states that it does not create an enforceable contract is misguided. The provision plaintiff relies on addresses the at-will nature of plaintiff’s employment, not the handbook in its entirety.” Id. at 311. This Court also found that public policy did not prohibit the enforcement of a valid arbitration agreement in matters involving civil rights questions. Heurtebise, 452 Mich 411-412, citing Heurtebise, 207 Mich App 310-311. In reversing the decision of the Court of Appeals, the Michigan Supreme Court found that the parties were not bound by a valid arbitration agreement. “It is undisputed that an arbitration provision is unenforceable if it is not a binding contract.” Heurtebise, 452 Mich 413; accord Rushton v Meijer, Inc (On Remand), 225 Mich App 156, 161; 570 NW2d 271 (1997). The Supreme Court reviewed the opening statement in the defendant’s employee handbook, which stated: This document is intended to establish and clarify certain employment policies, practices, rules and regulations (hereinafter collectively referred to as “Policies”) of reliable business computers, inc., (hereinafter referred to as the “company”). ... It is important to recognize and clarify that the Policies specified herein do not create any employment or personal contract, express or implied, nor is it intended nor expected that the information provided in this document will provide sufficient detail to answer any and all questions which may arise. Notwithstanding any of the specific POLICIES HEREIN, EACH EMPLOYEE HAS THE ABSOLUTE RIGHT TO TERMINATE HIS/HER OWN EMPLOYMENT AT ANY TIME, WITHOUT NOTICE, AND FOR ANY REASON WHATSOEVER, AND THE COMPANY HAS THE SAME RIGHT. From time to time, the COMPANY specifically reserves the right, and may make modifications to any or all of the Policies herein, at its sole discretion, and as future conditions may warrant. . . . . . . Upon receipt, all employees will sign the Employee Acknowledgement [sic], acknowledging receipt of this document. [Emphasis added.] [Heurtebise, 452 Mich 413-414.] Without more, the Supreme Court set forth its findings and conclusions: This demonstrates that the defendant did not intend to be bound to any provision contained in the handbook. Consequently, we hold that the handbook has not created an enforceable arbitration agreement with respect to this dispute. We note that the above opening statement was not part of the record before the Court of Appeals. Had the Court of Appeals been able to examine the entire handbook, we are confident that it would have reached the same conclusion. We hold that the defendant was not entitled to summary disposition. [Id. at 414. Emphasis added.] Notably, the majority opinion did not address whether private employers can require employees, as a condition of employment, to waive their rights to pursue any future civil rights claims in a judicial forum. Nevertheless, Justice Cavanagh, the author of the majority opinion, opined that the right to pursue civil rights violations is of the highest priority, and the state constitution, as well as longstanding public policy, guaranteed direct access to a judicial forum in civil rights cases, despite an otherwise enforceable arbitration agreement. Id. at 414-438; see also Rushton, supra 158-164. B Applying the Supreme Court’s opinion in Heurtebise to the case at bar, we must reach the same conclusion with respect to plaintiff’s wpa claim: defendant’s personnel policy manual did not create an enforceable arbitration agreement. Heurtebise, 452 Mich 414. First, in January 1993, plaintiff signed a document acknowledging that she received a copy of defendant’s revised personnel policies manual that contained, in bold-faced type, the words "Not a Contract of Employment" and specifically stated that the manual is neither an “employment agreement” nor a “contract of employment.” The acknowledgment also noted that the personnel policies may be amended from time to time. “This demonstrates that the defendant did not intend to be bound to any provision contained in the handbook,” Heurtebise, 452 Mich 414, even though the arbitration provision referred to itself as a “mutual” agreement. We cannot conclude that an agreement or provision is mutual or binding where, as between a private employer and a nonunion employee, an employer may unilaterally amend at any time every policy contained in its employee manual. In the absence of a binding contract to arbitrate, defendant is not entitled to summary disposition. Id. Notably, the Supreme Court also believed that this Court’s reliance on In re Certified Question, supra, which held that an employer could unilaterally change a written policy, was misplaced. See Heurtebise, 207 Mich App 311. Under the Michigan arbitration act, neither party to an arbitration agreement can revoke the agreement without the other party’s consent, MCL 600.5011; MSA 27A.5011, which is contrary to the defendant’s reserving its right to change its employment policies at any time. Heurtebise, 452 Mich 411, n 5. We agree that defendant’s reservation is inconsistent with the Michigan arbitration act. Second, although the record is silent regarding why plaintiff did not sign the acknowledgment sheet entitled “Agreement to Binding Arbitration” that was attached to her brief on appeal, her failure to sign is pivotal. Indeed, this acknowledgment was identical to the one she did sign except that the headings on the documents differed and the one plaintiff signed made no reference to the arbitration agreement. Further, the unsigned acknowledgment states that. the employee had seven days to consider whether to enter into the binding arbitration agreement. Given that plaintiff, unlike the plaintiff in Heurtebise, did not sign the acknowledgment agreeing to the employer’s new binding-arbitration policy set forth in the revised manual, we believe that defendant is in a weaker position to attempt enforcement of the arbitration provision than was the defendant in Heurtebise. Third, although Heurtebise addressed the issue of enforcing a binding arbitration policy in the employment setting to resolve civil rights claims, we believe that the same analysis applies to plaintiff’s wpa claim. Case law supports the conclusion that the CRA and the wpa protect similar statutorily recognized interests and deserve like treatment. For example, in Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 695; 316 NW2d 710 (1982), our Supreme Court recognized that ah exception to the rule of at-will employment exists where the reasons for discharging an employee are so contrary to public policy as to be actionable at law. The Court stated: “Most often these proscriptions are found in explicit legislative statements prohibiting the discharge, discipline, or other adverse treatment of employees who act in accordance with a statutory right or duty.” Id. In support of this proposition, the Court cited the CRA, MCL 37.2701; MSA 3.548(701), the Handicappers’ Civil Rights Act (hcra), MCL 37.1602; MSA 3.550(602), the Occupational Safety and Health Act, MCL 408.1065; MSA 17.50(65), and the wpa, MCL 15.362; MSA 17.428(2). Suchodolski, supra at 695, n 2. Moreover, in determining that the Legislature that drafted the wpa in 1980 expected that litigants under the wpa would retain the right to a jury trial, particularly given that the same right was preserved under the CRA and the hcra, this Court in Anzaldua v Band, 216 Mich App 561, 580; 550 NW2d 544 (1996), found that [t]he wpa bears substantial similarities to Michigan civil rights statutes under which the right to a jury trial is retained. Actions under the wpa are analyzed using the “shifting burdens” framework utilized in retaliatory discharge actions under the cra. We also note that the wpa is similar to Michigan’s civil rights statutes in that all three acts may be broadly characterized as civil rights acts, all three appear directed at protecting employees from wrongful treatment by employers, and actions brought under each of the three acts involve similar factual questions of employer motivation. [Emphasis added (citations omitted).] Finally, in concluding that the “continuing violations doctrine” applies to claims filed not only under title VII of the federal 1964 Civil Rights Act, 42 USC 2000e et seq., the CRA, and the HCRA but also under the wpa, ther

TOWN v MICHIGAN BELL TELEPHONE COMPANY McCONNELL v ROLLINS BURDICK HUNTER OF MICHIGAN, INCORPORATED Docket Nos. 102845, 103476. Argued January 15, 1997 (Calendar Nos. 10-11). Decided July 31, 1997. Rehearing denied in Town, 456 Mich 1202. Veronica Town brought an action in the Wayne Circuit Court against Michigan Bell Telephone Company, alleging constructive discharge and age and sex discrimination. The plaintiff had declined to accept a transfer when her position was consolidated, and, instead, resigned and accepted early retirement. The court, James E. Mies, J., directed a verdict for the defendant. The Court of Appeals, Michael J. Kelly and W. J. Caprathe, JJ. (White, P.J., dissenting), in an unpublished opinion per curiam, affirmed, concluding that although the plaintiff had been constructively discharged, she had not proven that age was a determining factor (Docket No. 144980). The plaintiff appeals. Ted McConnell brought an action in the Wayne Circuit Court against Rollins Burdick Hunter of Michigan, Incorporated, and Miller, Mason & Dickenson, Inc., alleging breach of employment contract, promissory estoppel, and age discrimination after being discharged from his employment. The court, William J. Giovan, X, granted summary disposition for the defendant. The Court of Appeals, Marilyn Kelly, P.J., and Shepherd and L. P. Borrello, JX, affirmed in an unpublished opinion per curiam (Docket No. 146449). On rehearing, the Court, Marilyn Kelly, P.J., and L. P. Borrello, X (Shepherd, X, not participating), affirmed in an unpublished opinion per curiam, but remanded the case for trial of the plaintiff’s age-discrimination claim (Docket No. 146449). The defendants appeal. In an opinion by Justice Brickley, joined by Justices Boyle and Weaver, and an opinion by Justice Riley, the Supreme Court held: The plaintiffs failed to present sufficient evidence that discrimination was a determining factor in their employers’ decisions to terminate their employment. 1. A claim of age discrimination may be shown by the use of direct or indirect evidence. Alternatively, in evaluating age-and sex-discrimination claims, courts have used the prima facie test articulated in McDonnell Douglas Corp v Green, 411 US 792 (1973), requiring a showing that the employee was a member of a protected class, was subject to an adverse employment action, and was qualified for the position, and that others, similarly situated and outside the protected class, were unaffected by the employer’s adverse conduct. The purpose of the prima facie test is to remove the most common nondiscriminatory reasons for the employer’s action, such as poor employee performance, and to force the employer to articulate a nondiscriminatory reason for the discharge. Once the employer produces evidence of a nondiscriminatory reason for the discharge, even if that reason later turns out to be incredible, the presumption of discrimination evaporates. 2. After the employer has met its burden of production, the employee must proceed without the benefit of the earlier presumptions. However, elimination of the presumption does not imply that the trier of fact no longer may consider evidence previously introduced to establish a prima facie case. To prevail, the employee must submit admissible evidence that the employer’s nondiscriminatory reason was not the true reason for the discharge and that the plaintiff’s age was a motivating factor in the employer’s decision, i.e., the employee must prove that the employer’s explanation was a pretext for discrimination. The proofs offered in support of the prima facie case may be sufficient to create a triable issue of fact that the employer’s stated reason is a pretext, as long as the evidence would enable a reasonable factfinder to infer that the employer’s decision had a discriminatory basis. When viewed in the light most favorable to the plaintiff, the evidence must create a material issue of fact on which reasonable minds could conclude that the employer’s stated reason is a pretext for discrimination for summary judgment to be precluded. That there may be a triable question of falsity does not necessarily mean that there is a triable question of discrimination. 3. In McConnell, the plaintiff did not submit evidence of pretext sufficient to enable a reasonable factfinder to infer that the employer’s decision had a discriminatory basis. In Town, the plaintiff failed to introduce sufficient evidence for a reasonable jury to conclude that age or sex discrimination was a determining factor in Michigan Bell’s decision to transfer her. Town, affirmed. McConnell, reversed. Justice Brickley, joined by Justices Boyle and Weaver, would further hold that under McDonnell Douglas an employee who was performing a job at a level that met the employer’s legitimate expectations is qualified for the job. In McConnell, rather than evaluating the plaintiffs case at the prima facie stage, it may be presumed that the plaintiff established a prima facie case. The purpose of the prima facie case is to force the defendant to provide a nondiscriminatory explanation for the adverse employment action. That purpose was served. However, under the circumstances, the plaintiff did not submit evidence of pretext sufficient to enable a reasonable factfinder to infer that the employer’s decision had a discriminatory basis. In Town, the defendant presented sufficient evidence to sustain its burden of production and dissolve the plaintiff’s prima facie case. The comparison was not between an unqualified employee and a qualified employee, but instead between two qualified employees. The plaintiff’s proofs, at most, merely raise questions about the defendant’s business judgment. The plaintiff did not create an issue of fact regarding whether the defendant’s nondiscriminatory explanation for the plaintiff’s transfer was a pretext, much less a pretext for discrimination. Further, the plaintiff never overcame the defendant’s allegation that she had taken too long to develop her staff and had not spent adequate time visiting customers at their places of business. Justice Riley, concurring, would further hold that employers should be given wide discretion in setting job standards and requirements and in deciding whether employees meet those standards. The job standards and requirements, however, are to be reasonable and consistently applied. Qualification obviously depends on the nature of business at any given time. To ignore the shifting nature of qualification from time to time would make the qualification requirement meaningless and would encourage the harassment of small businesses having informal personnel practices, with unfounded suits. Therefore, when evaluating its employees, employers are to evaluate them on the basis of their merits, in conjunction with the nature of their businesses at the time of the evaluation, and not on the basis of any discriminatory criterion. In McConnell, reviewing the plaintiff’s proofs and drawing any reasonable inferences in his favor, it may be concluded that he presented evidence establishing a question of fact regarding whether he was minimally qualified. He established a prima facie case of age discrimination. However, there is no evidence that the employer’s proffered explanation is unworthy of credence. The record amply demonstrates that the plaintiff had a full and fair opportunity to prove age discrimination. Justice Cavanagh, joined by Chief Justice Malleit, and by Justice Kelly in Town only, concurring in part and dissenting in part, stated that in McConnell, the defendant’s reason for firing the plaintiff was that he was not performing well, not that he was unqualified. The same-actor inference should not be used by the defendant as a shield from liability, but as mere evidence in support of the defendant’s claim. Inference of nonbias is an evidentiary matter for the finder of fact, and should not provide a basis for decision as a matter of law. In Town, the plaintiff presented sufficient evidence to permit reasonable minds to conclude that a motivating factor in involuntarily transferring her was age, as evidenced by the jury verdict in her favor. It was up to the jury to decide whether the defendant discriminated against plaintiff. The majority has improperly assumed the role of the jury by concluding that the defendant, as a matter of law, did not discriminate against plaintiff. Sommers, Schwartz, Silver & Schwartz, P.C. (by Donald J. Gasiorek and Patrick Burkett), for plaintiff Town. Pitt, Dowty & McGehee, P.C. (by Michael L. Pitt), for plaintiffs McConnell. Dickinson, Wright, Moon, Van Dusen & Freeman (by Thomas G. Kienbaum, Robert W. Powell, and Jennifer A. Zinn) for the defendant-appellee in Town. Dickinson, Wright, Moon, Van Dusen & Freeman (by Elizabeth Hardy and Julia Turner Baumhart) for the defendants-appellants in McConnell. Amicus Curiae: Clark, Hill, P.L.C. (by Duane L. Tamacki and J. Walker Henry), for Michigan Manufacturers Association. Brickley, J. The issue presented in these consolidated cases is whether the plaintiffs, McConnell and Town, have presented sufficient evidence of age or sex discrimination to surmount a motion for summary disposition and a motion for a directed verdict, respectively. We conclude in both cases that the plaintiffs failed to present sufficient evidence that discrimination had been a determining factor in their employers’ decisions. i McCONNELL v. ROLLINS BURDICK HUNTER In July of 1988, Ted McConnell accepted a job as a sales representative with Rollins Burdick Hunter (rbh). Rbh sold health insurance and provided insurance-related consulting services. At the time that he was hired, McConnell was fifty-five years old. In January of 1989, the plaintiff was informed that he needed to improve his sales production. The plaintiff’s next review was in September of 1989. Because the plaintiff’s sales revenue had not significantly improved by that time, he was informed that if his revenue did not increase that “there will have to be some adjustment made.” The plaintiff was unable to improve his production. Rbh discharged McConnell in January of 1990. At that time, the plaintiff was fifty-seven years old. The plaintiff brought suit against defendants RBH and Miller, Mason, and Dickenson, Inc., alleging breach of employment contract, promissory estoppel, and age discrimination. The trial court granted summary disposition for the defendants on each of the plaintiff’s claims. On appeal, the Court of Appeals initially affirmed the decision of the trial court. The plaintiff then moved for a rehearing on the age discrimination claim which was granted. On rehearing, the Court affirmed, but remanded the case for trial of the plaintiff’s age discrimination claim in an unpublished opinion per curiam. The defendants appealed that decision in this Court. We granted leave and consolidated this case with Town v Michigan Bell. TOWN v MICHIGAN BELL TELEPHONE COMPANY In 1980, Veronica Town sought a departmental transfer from her position of product-line manager with the Michigan Bell Telephone Company. She was interviewed by the assessment center and was offered á position. She turned it down, however, when she learned of the assessment center’s schedule, which consisted of a four-day work week, with twelve-hour shifts. This schedule was unacceptable to her because she needed to be home in the evenings to care for her husband, who was suffering from severe health problems. Instead, the plaintiff accepted a position as manager of market administrators. After one year, the plaintiff’s supervisor notified her that she was being transferred to the assessment center because her position was being consolidated with that of another manager. The person who held the other position was leaving the company. A thirty-five-year-old male, James Aveck, assumed the consolidated position. Still under the impression that the assessment center’s schedule was incompatible with her husband’s needs, the plaintiff resigned and accepted early retirement. The plaintiff was forty-nine years old at the time she resigned. The plaintiff filed suit against Michigan Bell in 1983, alleging constructive discharge and age and sex discrimination. After removal to federal court, reinstatement in state circuit court, summary disposition motions, and mediation, the case was tried by a jury in April, 1991. At the close of the plaintiff’s proofs, the defendant moved for a directed verdict, which was taken under advisement by the trial court. After the jury returned a verdict for the plaintiff, defendant renewed its motion for directed verdict, which the trial court granted. The Court of Appeals affirmed the trial court’s directed verdict. Although it concluded that the plaintiff had been constructively discharged, it agreed with the trial court that the plaintiff had not proven that age was a determining factor in the defendant’s decision. One judge dissented, arguing that the plaintiff had presented adequate evidence of discrimination by discrediting the defendant’s explanation of its decision. Citing St Mary’s Honor Center v Hicks, the dissenting judge argued that, once the employer’s explanation was discredited, the jury could, but was not required to, find that the real explanation for the employer’s decision was discriminatory. We granted leave to appeal and consolidated this case with McConnell v Rollins Burdick Hunter. n A claim of age discrimination may be shown under ordinary principles of proof by the use of direct or indirect evidence. Alternatively, many courts, including this one, have used the prima facie test articulated by the United States Supreme Court in McDonnell Douglas Corp v Green as a framework for evaluating age-discrimination claims. Originally applied to cases of race discrimination, the test has been modified to accommodate cases of age and sex discrimination. The modified McDonnell Douglas prima facie approach requires an employee to show that the employee was (1) a member of a protected class, (2) subject to an adverse employment action, (3) qualified for the position, and that (4) others, similarly situated and outside the protected class, were unaffected by the employer’s adverse conduct. The purpose of the prima facie test is to 1) remove the most common nondiscriminatory reasons for the employer’s action, such as poor employee performance, and 2) to force the employer to articulate a nondiscriminatory reason for the discharge. Once the employer produces evidence of a nondiscriminatory reason for the discharge, even if that reason later turns out to be incredible, the presumption of discrimination evaporates. After the employer has met its burden of production, the employee must proceed without the benefit of the earlier presumptions. However, elimination of the presumption does “not imply that the trier of fact no longer may consider evidence previously introduced by the plaintiff to establish a prima facie case.” As the United States Supreme Court explained: A satisfactory explanation by the defendant destroys the legally mandatory inference of discrimination arising from the plaintiff’s initial evidence. Nonetheless, this evidence and inferences properly drawn therefrom may be considered by the trier of fact on the issue of whether the defendant’s explanation is pretextaal. Indeed, there may be some cases where the plaintiff’s initial evidence, combined with the effective cross-examination of the defendant, will suffice to discredit the defendant’s explanation. [] Therefore, “the evidence and inferences that properly can be drawn from the evidence presented during the plaintiff’s prima facie case may be considered in determining whether the defendant’s explanation is pretextual.” Once the presumption drops out of the case, the plaintiff retains the ultimate burden of proving discrimination. Plaintiff has the opportunity to come forward with evidence, including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that the discrimination was defendant’s true motive in making the adverse employment decision. To prevail, the employee must submit admissible evidence to prove that the employer’s nondiscriminatory reason was not the true reason for the discharge and that the plaintiff’s age was a motivating factor in the employer’s decision. Thus, the employee must prove that the employer’s explanation was a pretext for discrimination. The proofs offered in support of the prima facie case may be sufficient to create a triable issue of fact that the employer’s stated reason is a pretext, as long as the evidence would enable a reasonable factfinder to infer that the employer’s decision had a discriminatory basis. “The strength of the prima facie case and the significance of the disbelieved pretext will vary from case to case depending on the circumstances. In short, everything depends on the individual facts.” Ultimately, the plaintiff will have the burden of producing evidence, whether direct or circumstantial, that proves that discrimination was a determining factor in the employer’s decision. Although the majority decision in Hicks appeared to be unambiguous, “many readers have found it to be otherwise.” The effect of Hicks on employer-brought summary judgment motions has been a matter of particular debate. Some employers have argued that, in order to defeat an employer’s motion for summary judgment, Hicks requires plaintiffs to offer substantial evidence both that the employer’s articulated reason was false and that the employer’s true reason was discriminatory — i.e., a “pretext-plus” standard. Some plaintiffs, on the other hand, have argued that once a prima facie case of discrimination is put forward, summary judgment for the employer never is appropriate, even if no evidence is put forward to refute the employer’s articulated nondiscriminatory reason, because the factfinder’s disbelief alone should be enough to permit a finding of pretext.[] We decline to adopt either extreme, and, instead, favor an intermediate position, which is the predominant view among the federal circuits. We would hold that when viewed in the light most favorable to the plaintiff, the evidence must create a material issue of fact on which reasonable minds could conclude that the employer’s stated reason is a pretext for discrimination for summary judgment to be precluded. Thus, plaintiff will not always present a triable issue of fact merely by rebutting the employer’s stated reason(s); “put differently, that there may be a triable question of falsity does not necessarily mean that there is a triable question of discrimination.” Furthermore, we note that in accordance with nine other federal circuits, “evidence sufficient to discredit a defendant’s proffered nondiscriminatory reasons for its actions, taken together with the plaintiff’s prima facie case, [may be] sufficient to support (but not require) a finding of discrimination.’’ “Where . . . either direct or circumstantial evidence from which a fact-finder could rationally conclude that the employer’s stated reason is a pretext for discrimination, summary judgment normally should be denied.” m In light of these principles, we turn to McConnell’s case. Defendants RBH and MMD argue that the plaintiff was not qualified to perform his job, and is therefore unable to satisfy the qualification element of the prima facie case. An employee is qualified if he was performing his job at a level that met the employer’s legitimate expectations. By all accounts, the plaintiff’s performance was less than stellar. Indeed, the plaintiff failed to generate enough revenue to pay his own salary. In his first full year, 1989, the plaintiff generated $70,505.11 in revenue while drawing a salary of $84,351.25 during the same period. He was terminated at the end of that year. Rather than evaluate plaintiff’s case at the prima facie stage, h

JULI DENNING-BOYLES, Plaintiff v. WCES, INC., and HOWARD GEBEAUX, Defendants No. COA94-1231 (Filed 6 August 1996) 1. Intentional Infliction of Mental Distress § 2 (NCI4th)— intentional infliction of emotional distress — summary judgment improper In an action for intentional infliction of emotional distress and punitive damages, the trial court erred in entering summary judgment for defendants when plaintiff offered a forecast of evidence that the editor of the newspaper for which she worked made numerous sexual comments and advances toward her; plaintiffs psychologist stated that plaintiff experienced severe, extreme, and disabling emotional distress as a result of this conduct; and the employer was given notice of the editor’s behavior but took no action to stop it and thus ratified the employee’s acts. Am Jur 2d, Damages §§ 789-797; Employment Relationship § 248; Job Discrimination §§ 964, 966, 967; Labor and Labor Relations §§ 638, 3292; Master and Servant § 440. On-the-job sexual harassment as violation of state civil rights law. 18 ALR4th 328. When is work environment intimidating, hostile, or offensive, so as to constitute sexual harassment in violation of Title VII of Civil Rights Act of 1964, as amended (42 USCS §§ 2000e et seq.). 78 ALR Fed. 252. Individual liability of supervisors, managers, or officers for discriminatory actions — cases postdating the Civil Rights Act of 1991. 131 ALR Fed. 221. 2. Pleadings § 378 (NCI4th)— amendment of complaint to add party — denial proper The trial court did not err in refusing to allow plaintiff to amend her complaint in order to add the individual owner of a newspaper, which had employed her, as defendant, since, if the individual had any liability toward her, she knew it prior to filing suit, and adding the individual at the time of her motion would result in a delay of trial. Am Jur 2d, Damages § 824; Job Discrimination § 2545; Labor and Labor Relations § 4589; Parties § 102. Order with respect to motion for joinder of parties. 16 ALR2d 1023. Amendment of pleading as to parties or their capacity as ground for continuance. 67 ALR2d 477. Necessity of leave of court to add or drop parties by amended pleading filed before responsive pleading is served, under Federal Rules of Civil Procedure 15(a) and 21. 31 ALR Fed. 752. Appeal by plaintiff from judgment and order entered 21 July 1994 by Judge Donald L. Smith in Harnett County Superior Court. Heard in the Court of Appeals 23 August 1995. Brenton D. Adams for plaintiff appellant. Bain & McRae, by Edgar R. Bain and Patrick H. Pope, for defendant appellee WCES, Inc. JOHN, Judge. Plaintiff appeals entry of summary judgment precluding claims against her former employer, defendant WCES, Inc. (WCES), for intentional infliction of emotional distress and punitive damages. She also appeals denial of her motion to amend her complaint. We conclude that summary judgment was improvidently granted. Pertinent facts and background information include the following: in December 1992, plaintiff left her job as advertising manager of the Harnett County News to take a similar position with The Harnett Leader, a newspaper being established at that time in Harnett County by WCES. The same month, WCES also hired defendant Howard Gebeaux (Gebeaux) as editor of the fledgling publication. According to allegations in plaintiffs complaint, very soon after Gebeaux was hired, he “began making uninvited and unwel-comed sexual advances toward the plaintiff which increased in their frequency and intensity throughout the entire time the plaintiff was employed” by WCES. Further, although plaintiff informed William A. Johnson and Rebecca Johnson Davidson, members of the board of directors of WCES, by February 1993 that she was being sexually harassed by Gebeaux, WCES took no action to prevent further misconduct by Gebeaux. Eventually, on 4 June 1993, plaintiff resigned her position with The Harnett Leader due to “intolerable conditions” on the job and her employer’s alleged refusal to alleviate them. Plaintiff filed suit against Gebeaux and WCES 22 June 1993, claiming she had “suffered severe mental and emotional distress” as the result of sexual harassment by Gebeaux, and that she “ha[d] been required to seek medical attention for this problem.” Plaintiff sought compensatory and punitive damages for intentional infliction of emotional distress and also treble damages for unfair and deceptive trade practices under N.C.G.S. Chapter 75. Following answers by both defendants and a motion for summary judgment by WCES filed 14 March 1994, plaintiff moved on 4 April 1994 to amend her complaint to add William A. Johnson (Johnson), president and chairman of the board of WCES, as an additional defendant. On 21 July 1994, the trial court granted summary judgment in favor of WCES on plaintiffs claims of intentional infliction of emotional distress, punitive damages, and unfair and deceptive trade practices. The court certified its judgment for immediate appeal pursuant to N.C.R. Civ. P. 54(b), finding that “even though fewer than all claims have been adjudicated in this ‘final judgment,’ there is no just reason for delaying the appeal.” The trial court also denied plaintiff’s motion to amend her complaint. Plaintiff filed notice of appeal to this Court 21 July 1994. Plaintiff first contends summary judgment was improper because “plaintiff presented á forecast of evidence which raised a genuine issue of material fact concerning the liability of [WCES] for intentional infliction of emotional distress and punitive damages.” Plaintiff makes no argument regarding her claim for unfair and deceptive trade practices, and it is deemed abandoned pursuant to N.C.R. App. P. 28(a). Summary judgment is to be entered only where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. N.C.R. Civ. P. 56(c). The burden of establishing absence of a triable issue rests with the moving party, and the facts will be viewed in a light most favorable to the non-moving party. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). “Because the forecast of evidence as to the factual basis of each [claim of intentional infliction of emotional distress] is unique, each claim must be decided on its own merits.” Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 490, 340 S.E.2d 116, 121, disc. review denied, 317 N.C. 334, 346 S.E.2d 140 (1986). The elements of intentional infliction of emotional distress are: “(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress.” Hogan, 79 N.C. App. at 487-88, 340 S.E.2d at 119. It is a question of law whether the alleged conduct on the part of defendant “may be reasonably regarded as extreme and outrageous;” however, once shown, “it is for the jury to determine . . . whether the conduct complained of is, in fact, sufficiently extreme and outrageous to result in liability.” Id. at 490-91, 340 S.E.2d at 121. The conduct must “exceed[] all bounds of decency tolerated by society.” West v. King’s Department Store, Inc., 321 N.C. 698, 704, 365 S.E.2d 621, 625 (1988). WCES makes no argument that plaintiffs evidentiary forecast was insufficient to support plaintiffs claim for intentional infliction of emotional distress against Gebeaux. Indeed, in its appellate brief WCES concedes that “[t]he only issue before the trial judge in considering defendant’s motion for summary judgment” was whether the record before the court “would entitle plaintiff to recover against WCES.” Although liability of Gebeaux is essential if WCES is to be held responsible under a theory of respondeat superior, a brief review of the record reveals an evidentiary forecast more than sufficient to take plaintiffs claims against Gebeaux to the jury. Without setting out the crudest vulgarities contained in the record, we note it indicates that Gebeaux made repeated sexual comments to plaintiff at the newspaper office on almost a daily basis. For example, plaintiff alleges that Gebeaux “many, many times” made remarks such as “I want to screw you and watch you beg for more;” that, on a Saturday when both were working, Gebeaux begged the plaintiff to go home and spend the day with him .... He would come back and forth to the plaintiffs office saying things like: “This is the last chance for the best sex you’ll ever have . . . ;” that, on 22 April, Gebeaux asked plaintiff to “go to his house” for a sexual encounter; and that, when plaintiff consistently rejected him, he accused her of having lesbian relationships. Other employees indicated Gebeaux asked plaintiff: “How’s your sex life with Ray [plaintiffs husband]? How many times a week do you have sex?” and “Where’s the best place to rent a good ‘porno movie’?” Further, Gebeaux stated to plaintiff that “I’m so sexually frustrated around you, I’ve a ‘good might’ to get you fired;” that “I like married women better. Take them home; take them to bed; and let them go;” that “[w]e could all go down to the beach and have a big orgy;” and that “[i]t turns me on when you wear your hair down like that.” Further, the affidavit of plaintiff’s clinical psychologist stated, inter alia, that plaintiff experienced “severe, extreme and disabling” emotional distress as a result of Gebeaux’s conduct, and that her prognosis was “guarded at best and may be poor if she does not receive appropriate evaluation and treatment including psychotherapy. ” Gebeaux’s evidence, consisting in part of categorical denials and in part of depicting plaintiff as initiator of conversations connoting a sexual context and of personal contact with Gebeaux, conflicted with that presented by plaintiff. However, the acts and statements of Gebeaux outlined above, in addition to numerous others found in the record, without question constitute conduct which “may reasonably be regarded,” Hogan, 79 N.C. App. at 491, 340 S.E.2d at 121, to “exceedf] all bounds of decency tolerated by society,” West, 321 N.C. at 704, 365 S.E.2d at 625, thereby placing the question of his liability in the hands of the jury. Hogan, 79 N.C. App. at 491, 340 S.E.2d at 121. As the evidentiary materials before the trial court reflect plaintiff met her burden of production regarding the individual liability of Gebeaux, we proceed to examine whether the trial court properly allowed the summary judgment motion of Gebeaux’s employer, defendant WCES. An employer may be held liable for the .torts of an employee under the doctrine of respondeat superior in circumstances where: (1) the employer expressly authorizes the employee’s act; (2) the tort is committed by the employee in the scope of employment and in furtherance of the employer’s business; or (3) the employer ratifies the employee’s tortious conduct. Stanley v. Brooks, 112 N.C. App. 609, 613, 436 S.E.2d 272, 274 (1993), disc. review denied, 335 N.C. 772, 442 S.E.2d 521 (1994). For plaintiff to have survived summary judgment as to WCES, therefore, the evidence must necessarily have tended to show that the acts of Gebeaux and the conduct of WCES “f[e]ll into one of the aforementioned categories.” Brown v. Burlington Industries, Inc., 93 N.C. App. 431, 436, 378 S.E.2d 232, 235, disc. review allowed, 325 N.C. 270, 384 S.E.2d 513, cert. tiff presented a sufficient forecast of the evidence to move forward on the theory of ratification, and thus do not discuss the remaining categories. This Court has held that: In order to show that the wrongful act of an employee has been ratified by his employer, it must be shown that the employer had knowledge of all material facts and circumstances relative to the wrongful act, and that the employer, by words or conduct, shows an intention to ratify the act. Hogan, 79 N.C. App. at 492, 340 S.E.2d at 122. In addition, “ [t]he jury may find ratification from any course of conduct on the part of the principal which reasonably tends to show an intention on his part to ratify the agent’s unauthorized acts.” Such course of conduct may involve an omission to act. Brown, 93 N.C. App. at 437, 378 S.E.2d at 236 (quoting Equipment Co. v. Anders, 265 N.C. 393, 401, 144 S.E.2d 252, 258 (1965)). Finally, although the employer must have knowledge of all material facts relative to its employee’s acts in order to effect ratification, [i]f the purported principal is shown to have knowledge of facts which would lead a person of ordinary prudence to investigate further, and he fails to make such investigation, his affirmance without qualification is evidence that he is willing to ratify upon the knowledge which he has. Restatement (Second) of Agency § 91, Comment e, p. 235 (1958). See also Equipment Co., 265 N.C. at 401, 144 S.E.2d at 258 (“[W]hen [principal] has such information that a person of ordinary intelligence would infer the existence of the facts in question, the triers of fact ordinarily would find that he had knowledge of such fact.” (citing Restatement (Second) of Agency, § 91, Comment c, p. 232 (1958))). Unrefuted evidence in the record indicates WCES received letters from plaintiff and Susan White, a reporter for the newspaper, in mid-February 1993 informing it that Gebeaux had been making sexual advances towards plaintiff. White included in a lengthy, detailed letter to WCES the following: I have heard [Gebeaux] make numerous comments to Juli, with respect to the clothes she might be wearing that day, her hair and just her overall looks, comments which I, as well as others who have heard them, believe to be stepping over the line and considered as sexual harassment. Since I began working with Mr. Gebeaux, I immediately noticed his attraction to Juli. The attraction became even clearer after hearing him make comments to her such as “Um, you look good today,” and “It turns me on when you wear your hair down like that.” Plaintiff wrote to WCES: Monday, February 1st Howard made the comment to me “I am so sexually frustrated by you I think I am going to get you fired.” This has not been the first time these remarks have been made . . . however, I do not want to be involved in ANY problems such as this. I will admit it has greatly affected my job performance. (emphasis in the original). WCES points to a second letter received from plaintiff, shortly after receipt of the first, in which she praised efforts of WCES in helping to resolve her problems with Gebeaux. Admittedly, plaintiff’s evidence may fairly be characterized as containing contradictions on the question of whether any representative of WCES was explicitly informed that Gebeaux’s sexual harassment of plaintiff continued after the February letter. However, plaintiffs affidavit also suggests Johnson failed to take the allegations set out in the first letter seriously. Plaintiff relates that Johnson said, upon patting her on the shoulder during a meeting soon after WCES received the first letter, “Now, Juli, this is not sexual harassment.” At the same meeting, according to plaintiff, I told W. A. Johnson and Rebecca Johnson Davidson of some of the things Howard Gebeaux had said to me, including “It turns me on when you wear your hair down,” but was interrupted by W. A. Johnson stating that was in the past and we must go on. W. A. Johnson would not allow me to continue to tell him about further acts of sexual harassment. In addition, plaintiff maintains in her affidavit that: In early April of 1993, W. A. Johnson saw flowers in my office . . . and asked who sent them. I replied, “Howard did. He’s still up to his same old tricks.” In late April of 1993, I met with Rebecca Davidson, tried to discuss sexual harassment by Howard Gebeaux, but she told me we would not discuss Mr. Gebeaux unless Howard Gebeaux was present. Moreover, plaintiff asserts that on 4 June 1993, when she and four other female employees of the newspaper went to Johnson’s office to protest the behavior of Gebeaux, plaintiff told Johnson three times that she could “no longer work with sexual harassment from Howard Gebeaux.” Plaintiff claims that after briefly hearing from the employees, Johnson told them to return to the newspaper office to await his decision on whether Gebeaux would be fired. Johnson then called Gebeaux to his office; following a discussion with Gebeaux, Johnson went to the newspaper office where he announced to the staff that Gebeaux would be staying on as editor. Johnson informed plaintiff that WCES would like her and one other employee who had protested to remain with the paper. Plaintiff alleges she said at that point, “I will no longer stay and work with sexual and mental harassment.” According to plaintiff, Johnson responded, “Gather your things and be out of the office before five o’clock.” WCES maintains it at no time received sufficient knowledge of material facts regarding Gebeaux’s sexual harassment of plaintiff so as to satisfy the first element of ratification. See Hogan, 79 N.C. App. at 492, 340 S.E.2d at 122 (“it must be shown that the employer had knowledge of all material facts and circumstances relative to the wrongful act”). However, we believe plaintiff presented a sufficient forecast of evidence upon which a jury could find that WCES learned of facts regarding Gebeaux’s sexual harassment of plaintiff which would have led a reasonable person “to investigate further,” Restatement (Second) of Agency, supra, at p. 235, and that its failure to do so showed WCES was “willing to ratify upon the knowledge which [it had].” Id. Further, a jury could find the requisite element of intent on the part of WCES to ratify Gebeaux’s actions through its “words [and] conduct,” Hogan, 79 N.C. App. at 492, 340 S.E.2d at 122, in declining to hear complaints from plaintiff or intervene on her behalf, or in retaining Gebeaux in the face of plaintiff’s insistence she could “no longer work with sexual harassment from Howard Gebeaux.” See Hogan, 79 N.C. App. at 492-93, 340 S.E.2d at 122 (whether manager’s actions consisting, inter alia, of “retaining [harasser] in defendant’s employ, [and] declining to intervene to prevent his further offensive behavior toward [plaintiff]” amounted to “a course of conduct signifying an intention to . . . ratify [harasser’s] acts is a question for the jury”). Finally, we briefly examine plaintiffs contention the trial court erred by refusing to permit amendment of her complaint under N.C.R. Civ. P. 15(a) in order to add Johnson as defendant. Denial of a motion to amend ordinarily is not reviewable in the absence of a clear showing of abuse of discretion. Caldwell’s Well Drilling, Inc. v. Moore, 79 N.C. App. 730, 731, 340 S.E.2d 518, 519 (1986). In the case sub judice, the trial court’s order contained the factual findings that (1) “if William A. Johnson had any liability to the plaintiff, such fact was obvious to the plaintiff as early as February of 1993, and this action was instituted without making him a party,” and (2) adding Johnson would make further discovery necessary at a point in the case where discovery was almost complete, thereby causing undue delay of the trial. We find no abuse of discretion in the court’s order. In sum, the trial court’s award of summary judgment in favor of WCES on the issues of intentional infliction of emotional distress and punitive damages, see Brown, 93 N.C. App. at 438, 378 S.E.2d at 236-37 (“existence of an outrageous act supports submission of an issue pertaining to punitive damages to the jury”), is reversed; the order denying plaintiff’s motion to amend her complaint is affirmed. Reversed in part; affirmed in part. Judges EAGLES and LEWIS concur.

CHAMPION v NATION WIDE SECURITY, INC Docket No. 100521. Argued November 8, 1995 (Calendar No. 6). Decided March 19, 1996. Rehearing denied 451 Mich 1240. Cheryl Champion brought an action in the Wayne Circuit Court against Nation Wide Security, Inc., and its agent, Eddie Lee Fountain, alleging that Nation Wide, through Mr. Fountain, had violated her civil rights by engaging in sexual harassment, i.e., raping her, and that this discrimination led to her constructive discharge. The court, Richard P. Hathaway, J., granted Nation Wide’s motion for summary disposition, reasoning that Mr. Fountain was not the plaintiff’s supervisor, and thus not an agent of his employer as required for recovery under the Civil Rights Act. The Court of Appeals, Wahls, P.J., and Reilly and R. M. Daniels, JJ., affirmed, but found that a question of fact existed regarding whether Fountain was given the necessary authority to be Nation Wide’s agent, thus subjecting Nation Wide to liability under the theory of respondeat superior. It upheld the lower court decision, however, concluding that the plaintiff had not shown that the defendants used her response to Fountain’s conduct as a factor in a decision affecting her employment, and specifically rejected her claim that her constructive discharge constituted a requisite employment decision (Docket No. 149365). The plaintiff appeals. In an opinion by Chief Justice Bkickley, joined by Justices Riley, Mallett, and Weaver, the Supreme Court held: An employer is strictly liable for quid pro quo sexual harassment where its supervisor rapes a subordinate through the exercise of managerial powers over the victim and causes the subordinate to be constructively discharged. 1. The Michigan Civil Rights Act outlaws quid pro quo sexual harassment. Under MCL 37.2103(i)(ii); MSA 3.548(103)(i)(ii), an employee must establish subjection to unwelcome sexual conduct and that the employer or the employer’s agent used the employee’s submission to or rejection of the proscribed conduct as a factor in a decision affecting employment. In this case, the supervisor’s decision to rape the victim constituted the requisite decision affecting employment and was taken in response to the plaintiff’s refusal to voluntarily submit to her supervisor’s sexual requests. The lack of consent is the gravamen of a sexual assault. 2. The law does not differentiate between active and constructive discharge. The decision to terminate in a constructive discharge case is imputed to the employer. Constructive discharge occurs only where an employer’s or its agent’s conduct is so severe that a reasonable person in the employee’s place would feel compelled to resign. Rape is conduct severe enough to compel a resignation. In this case, the discharge did not occur following the rape, but contemporaneously with it. The decision to use force was the equivalent of a decision to discharge because Fountain should have expected that it would lead to the plaintiff’s resignation. This decision affecting employment is actionable because the plaintiff’s refusal to comply with Fountain’s request for sexual favors led to his decision to use force. 3. When an employer gives its supervisors certain authority over other employees, it also must accept responsibility to remedy the harm caused by a supervisor’s unlawful exercise of that authority. In this case, Fountain used his supervisory power to put the plaintiff in the vulnerable position that led to her rape, and he would have been unable to rape her but for his exercise of supervisory authority. Strict liability is imposed on employers for quid pro quo sexual harassment committed by supervisory personnel. Quid pro quo harassment occurs only where an individual is in a position to offer tangible job benefits in exchange for sexual favors, or alternatively, to threaten job injury for a failure to submit. That individual is most often a person with supervisory powers. Justice Boyle, joined by Justices Levin and Cavanagh, concurring, stated that because facts that the Supreme Court could not anticipate may unfold upon further development of the lower court record or, unknown to the Supreme Court, already may have been developed, the trial court should not be directed to enter judgment in favor of the plaintiff. If the state of the record is such that judgment should be entered for the plaintiff, the directive to remand the case to the trial court for further proceedings consistent with the Supreme Court’s opinion will authorize the trial court to enter judgment. The trial court is in the best position to make the determination. Reversed. 205 Mich App 263; 517 NW2d 777 (1994) reversed. Chambers, Steiner (by Angela J. Nicita, Louis G. Corey, and Michelle J. Harrison) for the plaintiff. Plunkett & Cooney, P.C. (by Ernest R. Bazzana), for defendant Nation Wide Security, Inc. Amici Curiae: Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Robert L. Willis, Jr., Assistant Attorney General, for the Michigan Civil Rights Commission and the Michigan Department of Civil Rights. Stark & Gordon (by Sheldon J. Stark, Carol A. Laughbaum, and Martha I. Seijas) for National Lawyers Guild, Paul J. Denenfeld for American Civil Liberties Union, James Schuster for Michigan Employment Lawyers Association, Jeffrey Meyers for Michigan Trial Lawyers Association, Julie Field for University of Michigan Women and the Law Clinic, and Elizabeth K. Bransdorfer for Women Lawyers Association of Michigan. Miller, Canfield, Paddock & Stone, P.L.C. (by Alison B. Marshall and Charles S. Mishkind), for Michigan Manufacturers Association and Employers’ Association. Brickley, C.J. In this case, we must decide whether an employer is liable for quid pro quo sexual harassment under MCL 37.2103(i); MSA 3.548(103)(i) where one of its employed supervisors rapes a subordinate and thereby causes her constructive discharge. We hold that an employer is liable for such rapes where they are accomplished through the use of the supervisor’s managerial powers. We believe that this result best effectuates the remedial purpose of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. The opinion of the Court of Appeals is reversed insofar as it denies relief under the act. Furthermore, because defendant has made sufficient admissions to establish liability under the rule we announce today, pursuant to MCR 7.316(A)(7), we order the trial court to render judgment in favor of plaintiff under MCR 2.116(30(2). i The incidents giving rise to plaintiff Cheryl Champion’s claim began shortly after she returned from a maternity leave to resume her position as a security guard with defendant, Nation Wide Security Services, Inc. At that time, the company assigned Ms. Champion to a new supervisor, Eddie Lee Fountain. There is no dispute that Mr. Fountain scheduled plaintiff’s work, trained her, and oversaw and evaluated her performance. He also played a role in disciplining her. During her first days back at work, Mr. Fountain made sexually suggestive remarks to Ms. Champion, including an admission that he was "flirtatious” and that he found her "attractive.” Other remarks and sexually suggestive conduct followed. One Saturday, less than a month after her return, Mr. Fountain unexpectedly contacted Ms. Champion, who was not previously scheduled to work until the following Monday. He asked her if she would be available to report for duty at Deaconess Hospital in Detroit. Ms. Champion agreed to the assignment and prepared to report for work. However, while getting ready, Ms. Champion accidentally burned her uniform trousers while pressing them. She .called Fountain to inform him of the accident, and he gave her permission to use regular black or navy blue trousers. Minutes later, however, he called back with the unusual request that she wear a black or blue dress instead. When Ms. Champion informed Mr. Fountain that she did not have a dress and that she was running late, he allowed her to wear her regular trousers. When Ms. Champion arrived at her post, she learned that Mr. Fountain had dismissed all other security personnel. Ms. Champion and Mr. Fountain were then the only two security guards at the hospital. After Ms. Champion reported to Mr. Fountain, he informed her that he had a state trooper check into her background to find out if she "had a clean medical background.” He then remarked that he thought she was "ready” because she had just had a baby. He also stated that he wanted to go home with her to find out if she had a boyfriend. Finally, Mr. Fountain suggested that her future job security and success were tied to his approval or disapproval. Mr. Fountain asserted that if Ms. Champion went along with him, she would have nothing to worry about as long as she worked for him. He said he would "take care of” her and that she would never have to "worry” about her job. At this point, Ms. Champion flatly rejected Mr. Fountain’s offer. Later that same day, the hospital closed and Mr. Fountain and Ms. Champion were the only two people on the premises. At that time, Mr. Fountain told Ms. Champion to accompany him on security rounds. His stated purpose was to train her. However, after Mr. Fountain had ordered Ms. Champion into a remote part of the building, he locked a door to an examination room and trapped her. He then demanded that she have sex with him. When she refused, he raped her. Ms. Champion immediately left work and returned home. She then reported the rape to police and was rushed by ambulance to the hospital. She never returned to Nation Wide after the attack. Ms. Champion filed the present action in the Wayne Circuit Court on February 14, 1991. Central to this appeal, she alleged that Nation Wide, through its agent, Mr. Fountain, had violated her civil rights by engaging in sexual harassment. She further alleged that this discrimination led to her constructive discharge. However, the trial court granted Nation Wide’s motion for summary disposition of Ms. Champion’s sexual harassment claim. The court reasoned that Mr. Fountain was not Ms. Champion’s supervisor and, thus, not an "agent” of his employer as required by the Civil Rights Act for recovery. While agreeing with the result, the Court of Appeals correctly reversed the trial court’s finding that Mr. Fountain was not Ms. Champion’s supervisor. Indeed, the Court of Appeals found that a "question of fact existed regarding whether Fountain was given the necessary authority to be Nation Wide’s agent, thus subjecting Nation Wide to liability under the theory of respondeat superior.” 205 Mich App 263, 267; 517 NW2d 777 (1994). However, the Court of Appeals upheld the lower court because it concluded that Ms. Champion had not shown that Nation Wide or Mr. Fountain used her response to Mr. Fountain’s conduct as a factor in a decision affecting her employment. Specifically, it rejected the plaintiff’s claim that her constructive discharge constituted the requisite employment decision. As this opinion makes clear, the Court’s reasoning was in error._ II Unlike its federal counterpart, the Michigan Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., contains a provision specifically designed to outlaw two forms of sexual harassment: hostile work environment sexual harassment and "quid pro quo sexual harassment.” Radtke v Everett, 442 Mich 368; 501 NW2d 155 (1993); see also Meritor Savings Bank, FSB v Vinson, 477 US 57, 64-65; 106 S Ct 2399; 91 L Ed 2d 49 (1986). This case involves quid pro quo harassment. The act clearly sets forth two separate theories under which a party may make out a claim for quid pro quo harassment: (i) Discrimination because of sex includes sexual harassment which means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature when: (i) Submission to such conduct or communication is made a term or condition either explicitly or implicitly to obtain employment, public accommodations or public services, education, or housing; (ii) Submission to or rejection of such conduct or communication by an individual is used as a factor in decisions affecting such individual’s employment, public accommodations or public services, education, or housing. [MCL 37.2103(i)(i), (ii); MSA 3.548(103)0)0), (ii).] A party pursuing a claim under the second subsection must establish two things: (1) that she was subject to any of the types of unwelcome sexual conduct or communication described in the statute, and (2) that her employer or the employer’s agent used her submission to or rejection of the proscribed conduct as a factor in a decision affecting her employment. See also Kauffman v Allied Signal, Inc, 970 F2d 178 (CA 6, 1992). It is this second requirement that forms the basis of dispute in the present case and we find that Ms. Champion has satisfied that requirement. It is this Court’s opinion that Mr. Fountain’s decision to rape Ms. Champion constituted the requisite "decision affecting . . . employment.” In addition, this was a decision taken in response to Ms. Champion’s refusal to voluntarily submit to Mr. Fountain’s sexual requests. Indeed, lack of consent is the gravamen of a sexual assault. In reaching our conclusion that plaintiff has satisfied all the requirements under MCL 37.2103(i)(ii); MSA 3.548(103)(i)(ii), we reject two theories that defendant' claims absolves it of liability. First, defendant asserts that, because it did not actively terminate plaintiff, it made no employment decision in response to her rejection of Mr. Fountain’s advances. Second, defendant claims that Mr. Fountain was not acting as its agent when he raped Ms. Champion because defendant did not authorize the rape. We deal with each of these arguments in turn. We find that the Court of Appeals acceptance of defendant’s first argument to be in error because it misinterprets the law of constructive discharge. It is well established that the law does not differentiate between employees who are actually discharged and those who are constructively discharged. In other words, once individuals establish their constructive discharge, they are treated as if their employer had actually fired them. Lopez v S B Thomas, Inc, 831 F2d 1184, 1188 (CA 2, 1987). The decision to terminate in a constructive discharge case, therefore, is imputed to the employer. The Court of Appeals, however, somehow attributes responsibility for the discharge to Ms. Champion. This result unjustly blames the victim, especially because a constructive discharge occurs only where an employer or its agent’s conduct is so severe that a reasonable person in the employee’s place would feel compelled to resign. Vagts v Perry Drug Stores, Inc, 204 Mich App 481, 487-488; 516 NW2d 102 (1994). Young v Southwestern Savings & Loan Ass’n, 509 F2d 140 (CA 5, 1975). Mr. Fountain’s rape of Ms. Champion was certainly conduct severe enough to compel her to resign. Indeed, we would hesitate to expect any rape victim to return to the setting in which her sexual assault occurred. However, the conclusion that Nation Wide’s agent constructively discharged Ms. Champion does not, by itself, establish a violation of MCL 37.2103(i)(ii); MSA 3.548(103)(i)(ii). The Court of Appeals correctly ruled that liability under the provision occurs only where the constructive discharge is a result of the plaintiff’s response to the sexual conduct. However, in ruling that the constructive discharge in this case did not result from Ms. Champion’s refusal to submit to Mr. Fountain’s sexual conduct, the Court of Appeals misapprehends the point when the constructive discharge occurred. The discharge did not occur following the rape, but contemporaneously with it. The decision to use force, in other words, was the equivalent of a decision to discharge because Mr. Fountain should have expected that it would lead to Ms. Champion’s resignation. This "decision affecting . . . employment” is actionable under MCL 37.2103(i)(ii); MSA 3.548(103)(i)(ii) because Ms. Champion’s refusal to comply with Mr. Fountain’s requests for sexual favors led to his decision to use force. Therefore, we reject defendant’s first argument against liability. We also reject defendant’s second argument. Defendant has suggested that the Civil Rights Act will not impose liability on defendant because it never authorized Mr. Fountain to rape Ms. Champion. Thus, the defense has asserted, even if Mr. Fountain acted as Nation Wide’s agent while performing his other supervisory duties, he did not act as its agent during the rape. This construction of agency principles is far too narrow. It fails to recognize that when an employer gives its supervisors certain authority over other employees, it must also accept responsibility to remedy the harm caused by the supervisors’ unlawful exercise of that authority. Henson v City of Dundee, 682 F2d 897, 909 (CA 11, 1982). From his scheduling decisions that allowed him to work alone with Ms. Champion to his ordering of her into a remote part of the building, Mr. Fountain used his supervisory power to put Ms. Champion in the vulnerable position that led to her rape. In fact, there is little doubt that Mr. Fountain would have been unable to rape Ms. Champion but for his exercise of supervisory authority. Therefore, we adopt the nearly unanimous view that imposes strict liability on employers for quid pro quo sexual harassment committed by supervisory personnel. The rationale supporting this rule recognizes that most employers are corporate entities that cannot function without delegating supervisory power. Allowing employers to hide behind a veil of individual employee action will do little, if anything, to eradicate discrimination in the workplace. Id. at 909. Indeed, immunizing an employer where it did not authorize the offending conduct would create an enormous loophole in the statute. Such a loophole would defeat the remedial purpose underlying this state’s civil rights statute and would lead to a construction that is inconsistent with the well-established rule that remedial statutes are to be liberally construed. Eide v Kelsey-Hayes Co, 431 Mich 26, 34; 427 NW2d 488 (1988); Reed v Michigan Metro Girl Scout Council, 201 Mich App 10; 506 NW2d 231 (1993); 3 Singer, Sutherland Statutory Construction (5th ed), § 60.01, pp 147-152. In fact, under defendant’s construction, an employer could avoid liability simply by showing that it did not authorize the sexually offensive conduct. Because employers rarely, if ever, authorize such conduct, employees would no longer have a remedy for quid pro quo sexual harassment. Furthermore, the party engaged in quid pro quo harassment is almost always, by definition, a supervisor. That is, quid pro quo. harassment occurs only where an individual is in a position to offer tangible job benefits in exchange for sexual favors or, alternatively, threaten job injury for a failure to submit. That individual is most often a person with supervisory powers. in Our ruling today does not extend unlimited liability to employers whose supervisors rape subordinates. However, we hold an employer strictly liable where the supervisor accomplishes the rape through the exercise of his supervisory power over the victim. The rule we fashion is fully consistent with the results reached by other courts addressing this issue and with the legislative intent that employers, not the victims of sexual harassment, bear the costs of remedying and eradicating discrimination. Riley, Mallett, and Weaver, JJ., concurred with Brickley, C.J. Defendant Fountain is not a party tó this appeal. Similarly, as soon as Nation Wide found out about the attack, Mr. Fountain was suspended from employment. He, too, has never returned to work for Nation Wide. The first prong of this test was obviously met since Champion did not encourage nor desire the sexual overtures made by Fountain. Q. He did what now? A. He loc

GTE Products Corporation vs. Jefferson Davis Stewart, Third; Dean T. Langford & others, defendants-in-counterclaim. Essex. May 3, 1995. August 1, 1995. Present: Abrams, Lynch, O’Connor, & Greaney, JJ. Employment, Constructive discharge. Contract, Employment. Public Policy. Attorney at Law, In-house counsel. Discussion of out-of-State cases considering whether an attorney employed as in-house counsel to a corporation is barred from maintaining any action for wrongful discharge. [26-29] This court concluded that an in-house attorney should be permitted to pursue a claim for wrongful discharge against the attorney’s corporate employer in the narrow circumstances where the claim is founded on allegations that the employer’s demands would have required violation of statutory or ethical rules, embodying important public policy, and where the claim can be proved without violation of client confidences and secrets. [29-32] Discussion of State and Federal cases addressing the elements for proof of constructive discharge. [34-35] In an action for wrongful discharge in which there was no claim of formal termination, summary judgment was correctly entered for the employer where the employee did not demonstrate that he could prove he was constructively discharged by being forced to work under conditions so intolerable that a reasonable person would have felt compelled to resign. [32-34, 35-36] Civil action commenced in the Superior Court Department on October 16, 1991. A motion for summary judgment was heard by John P. Forte, J., sitting under statutory authority. The Supreme Judicial Court granted an application for direct appellate review. Arthur G. Telegen for the plaintiff. Earle C. Cooley (Paul F. Beckwith with him) for Jefferson Davis Stewart, III. Earl E. Lawson and Rolfe D. Trevisan. Greaney, J. We granted the defendant’s application for direct appellate review in this case to decide whether summary judgment was properly granted to GTE Products Corporation (GTE), and individual officers and officials of the company on counterclaims brought by Jefferson Davis Stewart, III, a former in-house counsel for the lighting companies of GTE. Stewart’s counterclaims were raised in his answer to an action brought by GTE seeking the return of documents, papers, and other materials taken or retained by Stewart when he left GTE’s employment. (Some of the background of the case is reported in the appeal concerning GTE’s seeking injunctive relief and damages, 414 Mass. 721 [1993].) The counterclaims were based on the assertion by Stewart that he had been wrongfully discharged in retaliation for his continual attempts to convince GTE management to warn the public about safety risks associated with the use of certain GTE products, and his insistence that GTE comply with Federal law governing the disposal of hazardous waste. We conclude that summary judgment properly was ordered in favor of GTE and the remaining defendants in counterclaim, and we direct the entry of an appropriate judgment. The facts, stated in the light most favorable to Stewart based on the materials in the summary judgment record, see Alioto v. Marnell, 402 Mass. 36, 37 (1988), are as follows. Stewart began working for GTE in March, 1980, as an attorney in GTE’s electrical equipment group. In 1986, he was named general counsel to GTE’s lighting businesses, which included U.S. Lighting and Sylvania Lighting. In his capacity as general counsel, Stewart wrote a series of communications to corporate officers and officials concerning safety and liability issues related to three products manufactured by GTE’s lighting businesses. In these communications, he advocated that the company take aggressive and (presumably) costly measures to protect consumer safety and guard against possible corporate liability. In addition, when new Federal regulations on the disposal of hazardous waste were adopted, he advised GTE that a subsidiary of the company which provided lighting maintenance services would have to take the costly step of treating fluorescent and incandescent light bulbs as hazardous waste for purposes of disposal. Stewart asserts that his advice was disregarded on some occasions and generally was not well received. Stewart’s immediate supervisor was Rolfe Trevisan, general counsel for GTE. Trevisan had consistently given Stewart high annual performance ratings, raised his salary each year, and recommended that he receive substantial bonuses. A few months before Stewart left the company, Trevisan told Stewart that his performance was “above expectations” and gave him a good rating, a raise and a bonus of over $30,000. At some point during 1991, however, Trevisan lowered Stewart’s confidential promotability rating on the law department’s executive continuity charts from “promotable immediately” to the lowest promotability rating of “not promotable for three to five years.” According to Stewart, it became clear to him that he was being “squeezed out” of the company after a meeting he had with Trevisan on August 7, 1991. Trevisan told him that Earl Lawson, a corporate officer and manager, had become dissatisfied with Stewart’s domineering and “confrontational” style and that Stewart was going to have to learn to get along with Lawson or his future with GTE would be at risk; that Stewart should stop being the “social conscience” of the company; and that Trevisan intended to develop a set of performance objectives to “rehabilitate” Stewart as a productive member of the law department. Based on his experience advising the company on how to terminate employees, Stewart believed that Trevisan’s actions likely were intended as a precursor to discharge. Concluding that he would have to abandon unpopular but (in his opinion) legally sound positions were he to remain, Stewart resigned from his employment with GTE on August ,8, 1991. After Stewart left, Trevisan tried unsuccessfully to persuade him to return. 1. As a threshold question, we must decide whether Stewart’s status as an attorney and in-house counsel for GTE should bar him from maintaining any action for wrongful discharge. As a general rule, an employee at will (Stewart was employed at will) may be terminated by an employer, without notice, “for almost any reason or for no reason at all.” Jackson v. Action for Boston Community Dev., Inc., 403 Mass. 8, 9 (1988). In company with a majority of other jurisdictions, however, this court has recognized that an at-will employee may sue a former employer for wrongful discharge when that discharge can be shown to be in violation of a clearly defined public policy. “Redress is available for employees who are terminated for asserting a legally guaranteed right (e.g.,- filing workers’ compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury).” Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 149-150 (1989). In limited circumstances, we also have permitted redress “for employees terminated for performing important public deeds, even though the law does not absolutely require the performance of such a deed.” Flesner v. Technical Communications Corp., 410 Mass. 805, 810-811 (1991) (employee terminated for cooperating with criminal investigation of employer permitted to sue for retaliatory discharge). It has been suggested that a “whistleblower” might be entitled to protection on this basis. See id. at 811 n.3. Courts in jurisdictions which generally recognize an employee’s action for wrongful or retaliatory discharge have, however, differed on the question whether an attorney, employed as in-house counsel, should be permitted the same right to sue for wrongful discharge as that enjoyed by other corporate employees. In Balla v. Gambro, Inc., 145 Ill. 2d 492, 501 (1991), the Supreme Court of Illinois concluded “that, generally, in-house counsel do not have a claim ... of retaliatory discharge.” The court based its decision on the destructive impact recognition of the claim would have on the attorney-client relationship that exists between an employer and in-house counsel, id., and on its conclusion that the policy of preserving public health and safety, the basis for recognizing an employee’s wrongful discharge claim, is protected adequately without recognition of the claim by the attorney’s obligations under the Illinois Rules of Professional Conduct to attempt to prevent his employer from committing an illegal or harmful act and to withdraw from employment if he is requested to engage in conduct that would violate those obligations. Id. at 501-502, 504. It has also been noted that ethical canons and disciplinary rules give to a client the unfettered right to discharge an attorney in whom the client has lost confidence, and it has been reasoned that this precept should apply with full force to an attorney employed as in-house counsel. See Willy v. Coastal Corp, 647 F. Supp. 116, 118 (S.D. Tex. 1986) (applying Texas law), rev’d on other grounds, 855 F.2d 1160 (5th Cir. 1988), affd, 503 U.S. 131 (1992). See also Herbster v. North Am. Co. for Life & Health Ins., 150 Ill. App. 3d 21, 28-30 (1986), cert, denied, 484 U.S. 850 (1987). The judge granted GTE’s motian for summary judgment largely on the basis of the reasoning in these decisions. In contrast, in the case of General Dynamics Corp. v. Rose, 7 Cal. 4th 1164 (1994), decided after the judge in this case ruled on GTE’s motion for summary judgment, the Supreme Court of California concluded that there were sound reasons for recognizing the right of in-house counsel to sue for wrongful discharge in certain limited situations. The court noted that a claim of wrongful discharge protects more than the private interests in job security and professional reputation of the claimant. Protection of the policy expressed in the statute or rule claimed to have been violated by the employer is equally at stake, and the claimant’s status as an attorney does not diminish the public interest in the furtherance of that policy. Id. at 1181. In the view of the Supreme Court of California, certain mandatory obligations and prohibitions in the ethical rules of California governing an attorney’s professional conduct embody “by their nature and goals . . . important values affecting the public interest at large.” Id. at 1181-1182. The court observed that “[ajmong other strictures on their conduct, [attorneys] may not be a party to the commission of a crime, destroy evidence or suborn perjury.” Id. at 1186. Thus, “[t]he case for shielding the in-house attorney . . . from retaliation by the employer for either insisting on adhering to mandatory ethical norms of the profession or for refusing to violate them is . . . clear,” id. at 1182, and in-house counsel should be permitted to pursue a claim for wrongful discharge if the claim is “founded on allegations that an in-house attorney was terminated for refusing to violate a mandatory ethical duty embodied in [California’s code of professional conduct].” Id. at 1188. In addition, the court reasoned, in-house counsel should be permitted to pursue a claim in the “limited circumstances in which in-house counsel’s nonattorney colleagues would be permitted to pursue a [wrongful] discharge claim and governing professional rules or statutes expressly remove the requirement of attorney confidentiality” (emphasis in original). Id. The court pointed out, however, that instances in which disclosure of client confidences is permissible are rare, and emphasized that it would not condone any dilution of the obligation of secrecy in the context of the attorney-client relationship between a corporate employer and in-house counsel. We find the latter approach more persuasive. We would be reluctant to conclude that an employee, solely by reason of his or her status as an attorney, must be denied all protection from wrongful discharge arising from the performance of an action compelled by a clearly defined public policy of the Commonwealth. As was pointed out in a treatise critical of the decision in the Balia case, “[i]t is clear that there would have been a right of action had the employee not been a lawyer. It thus seems bizarre that a lawyer employee, who has affirmative duties concerning the administration of justice, should be denied redress for discharge resulting from trying to carry out those very duties” (footnote omitted). 1 G.C. Hazard & W.W. Hodes, Law of Lawyering § 1.16:206, at 477 (Supp. 1994). We agree with the Supreme Court of California that public interest is better served if in-house counsel’s resolve to comply with ethical and statutorily mandated duties is strengthened by providing judicial recourse when an employer’s demands are in direct and unequivocal conflict with those duties. See General Dynamics Corp. v. Rose, supra at 1188. We stress, however, that a claim for wrongful discharge brought by in-house counsel will be recognized only in narrow and carefully delineated circumstances. To the extent that in-house counsel’s claim depends on an assertion that compliance with the demands of the employer would have required the attorney to violate duties imposed by a statute or the disciplinary rules governing the practice of law in the Commonwealth, that claim will only be recognized if it depends on (1) explicit and unequivocal statutory or ethical norms (2) which embody policies of importance to the public at large in the circumstances of the particular case, and (3) the claim can be proved without any violation of the attorney’s obligation to respect client confidences and secrets. See S.J.C. Rule 3:07, Canon 4, DR 4-101 (A) and (B), as appearing in 382 Mass. 778 (1981). “Except in those rare instances when disclosure is explicitly permitted ... [by the disciplinary rules governing the practice of law in the Commonwealth], it is never the business of the lawyer to disclose publicly the secrets of the client.” General Dynamics Corp. v. Rose, supra at 1190. The exceptions to an attorney’s obligation to guard client confidences under S.J.C. Rule 3:07, Canon 4, DR 4-101 (C), as appearing in 382 Mass. 778 (1981), are extremely limited. While confidentiality concerns may to some degree be ameliorated by a trial court’s use of protective orders and other protective devices, the circumstances in which in-house counsel may pursue a claim for wrongful discharge will, of necessity, be limited by the broad obligation to guard client confidences. See G.M. Tuoni, Massachusetts Attorney Conduct Manual § 4-12 (1992) (discussing breadth of definition of client confidences). Similarly, if the claim for wrongful discharge is one that might be brought by a nonattorney colleague, based on the public policy exception as delineated in the Smith-Pfeffer and Flesner cases, it must be established that the claim can be proved without any violation of the attorney’s obligation to respect client confidences and secrets. 2. Having concluded that we shall, in limited circumstances, recognize the right of in-house counsel to bring suit for wrongful discharge, we turn to whether summary judgment was, nonetheless, properly granted. GTE, as the moving party, having met its initial burden of demonstrating by indicia of admissible evidence, see Mass. R. Civ. P. 56 (b) and (c), 365 Mass. 824 (1974), that Stewart cannot prevail, we inquire whether Stewart has established that there exists a genuine dispute as to essential factual elements of his claim. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711, 716 (1991). Stewart maintains that officials at GTE plotted his dismissal in retaliation for the tenor of the legal advice he offered with respect to product safety in three specific instances, and for advising the company that it must comply with Federal regulations despite the cost entailed by compliance. For the most part, Stewart’s claims appear to rest on his advice relating to the avoidance of possible legal liability, rather than with compelling issues of product design directly affecting public health and safety. His insistenpe that GTE conduct its business “in compliance with the highest ethical business standards,” by doing more than was absolutely required by law, met some resistance from others legitimately concerned about profitability. We would be reluctant to conclude that disagreements over the wording of a product warning label, or the hypothetical risk posed by a product, which are matters committed to the business judgment of a company and do not rise to the requisite level of public concern, could be the basis for a wrongful discharge claim. See King v. Driscoll, 418 Mass. 576, 583 (1994) (“internal administration, policy, functioning, and other matters of an organization cannot be the basis for public policy exception”); Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 474 (1992); Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., supra at 151; Mello v. Stop & Shop Cos., 402 Mass. 555, 560-561 (1988); Mistishen v. Falcone Piano Co., 36 Mass. App. Ct. 243, 245-246 (1994). However, we need not decide whether Stewart’s allegations are sufficient in this regard because we conclude, as matter of law, that Stewart has failed to present sufficient proof of constructive discharge. Stewart has not claimed that he was formally terminated from his position at GTE. Thus, to sustain his claim for wrongful discharge, it must appear that he will be able to prove that he was constructively discharged from his position as general counsel. A “[cjonstructive discharge occurs when the employer’s conduct effectively forces an employee to resign. Although the employee may say, T quit,’ the employment relationship is actually severed involuntarily by the employer’s acts, against the employee’s will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation.” Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1244-1245 (1994). We have not had occasion to address what an employee must prove to establish a constructive discharge. The elements for proof of constructive discharge have been discussed in a number of cases decided by Federal and State appellate courts, however, and there is general agreement on the elements pertinent to a decision in this case. See, e.g., id. at 1247. See also Slack v. Kanawha County Hous. & Redevelopment Auth., 188 W. Va. 144, 153 (1992) (collecting cases). In a frequently cited decision, the United States Court of Appeals for the First Circuit has stated that in order for a constructive discharge to be found, “the trier of fact must be satisfied that the new working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.” Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir. 1977). The test is met if, based on an objective assessment of the conditions under which the employee has asserted he was expected to work, it could be found they were so difficult as to be intolerable. See Turner v. Anheuser-Busch, Inc., supra at 1248. See also Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 481 (1st Cir. 1993); Aviles-Martinez v. Monroig, 963 F.2d 2, 6 (1st Cir. 1992); Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983). A single, isolated act of an employer (or an agent of the employer) usually will not be enough to support a constructive discharge claim. Thus, evidence of a single unfavorable performance review or even of a demotion generally will not be deemed sufficient to support a claim. See Turner v. Anheuser-Busch, Inc., supra at 1247. “In order to amount to a constructive discharge, adverse working conditions must be unusually ‘aggravated’ or amount to a ‘continuous pattern’ before the situation will be deemed intolerable.” Id. For example, in Aviles-Martinez v. Monroig, supra at 6, the court held that an employee had present

Public employees' collective bargaining - Ohio public employer commits unfair labor practice in violation of R.C. 4117.11(A)(5) when it unilaterally terminates bargaining with an incumbent union, when .

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