Constructive Discharge Cases

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

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

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

RADTKE v EVERETT Docket No. 92582. Argued January 12, 1993 (Calendar No. 4). Decided June 2, 1993. Tamara J. Radtke brought an action in the Grand Traverse Circuit Court against Stuart B. Everett, D.V.M., individually, and Clarke-Everett Dog and Cat Hospital, P.C., alleging sexual harassment by creating a hostile work environment in violation of the Michigan Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., constructive discharge on the basis of sex, and assault and battery. The court, William R. Brown, J., granted summary disposition for the defendants, finding that because the hostile environment claim was based upon a single incident of sexual harassment, as a matter of law, it did not rise to the level of severity and persistence to permit recovery, dismissed the constructive discharge count because it was dependent upon finding a hostile work environment, and found that the exclusive remedy provision of the Workers’ Disability Compensation Act, MCL 418.131; MSA 17.237(131), barred the assault and battery claim because of the failure to allege an intent to harm. The Court of Appeals, Neff, P.J., and Maher and Hood, JJ., reversed the civil rights claim, finding that under the reasonable woman standard a single incident could be sufficiently severe to support a finding of a hostile work environment, and concluded that, in this case, the totality of circumstances was sufficient to permit trial, reversed the dismissal of the constructive discharge claim, and reversed the assault and battery claim because the defendant was named individually as the perpetrator, making the wdca inapplicable (Docket No. 121611). The defendants appeal. In an opinion by Justice Riley, joined by Chief Justice Cavanagh, and Justices Levin, Brickley, Boyle, and Mallett, the Supreme Court held: References Am Jur 2d, Civil Rights §§ 154 et seq; Workers’ Compensation §§ 75, 76, 79. Workers’ compensation law as precluding employee’s suit against employer for third person’s criminal attack. 49 ALR4th 926. 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 sec. 2000e et seq). 78 ALR Fed 252. An objective reasonableness standard must be used in determining whether a hostile work environment exists under the Civil Rights Act. A hostile work environment claim is actionable only when the work environment is so tainted that, in the totality of the circumstances, a reasonable person in the plaintiff’s position would have perceived the conduct at issue as substantially interfering with employment or having the purpose or effect of creating an intimidating, hostile, or offensive employment environment. Although a single incident of sexual harassment generally is insufficient to constitute a hostile work environment, it may be sufficient if severe harassment is perpetrated by an employer in a closely knit working environment. The Court of Appeals improperly reached the issue whether the exclusive remedy provision of the Workers’ Disability Compensation Act bars an alternative claim of assault and battery when the claim does not allege that the defendant intended to harm the plaintiff. 1. The Michigan Civil Rights Act is aimed at the prejudices and biases borne against persons because of membership in certain classes, and seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases. An employer may not discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment because of sex. Under the act, sexual discrimination is defined broadly to include sexual harassment. 2. To establish a prima facie case of a hostile work environment, an employee must have belonged to a protected group, must have been subjected to communication or conduct on the basis of sex, and must have been subjected to unwelcome sexual conduct or communication that was intended to or in fact did substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment, and the employer must be liable under a theory of respondeat superior. Whether a hostile work environment existed is to be determined by whether a reasonable person, in the totality of the circumstances, would have perceived the conduct at issue as substantially interfering with employment or having the purpose or effect of creating an intimidating, hostile, or offensive employment environment. 3. The Civil Rights Act imposes liability whenever sexual harassment creates a hostile work environment, and a single incident may create such an environment. However, a plaintiff usually will be required to prove that the employer failed to rectify a problem after adequate notice and that a continuous or periodic problem existed or a repetition of an episode was likely to occur. 4. In this case, the plaintiff alleged a prima facie case of a hostile work environment. She is a member of a protected class (persons discriminated against on the basis of sex), was subjected to harassment on the basis of sex, and was subjected to unwelcome sexual conduct that a reasonable person would have perceived created a hostile work environment. In addition, because the employer was the perpetrator, the single incident was sufficient to satisfy a theory of respondeat superior and to permit a jury to determine whether the conduct was sufficient to have created a hostile work environment. 5. Because the plaintiff did not appeal the trial court’s application of the wdca to her claim in the Court of Appeals, and because she never requested permission to amend her complaint in the trial court, the issue whether the exclusive remedy provision of the wdca bars an alternative claim of assault and battery where the plaintiff fails to allege that the defendant intended to inflict an injury upon the plaintiff was not preserved for appeal. Affirmed in part and reversed in part. Justice Griffin, dissenting in part, stated that the cause of action for discrimination because of sex contemplated under subsection 103(h)(iii) of the Civil Rights Act requires more than the brief single incident alleged in-this case. For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment. An isolated sexual advance, without more, does not satisfy the requirement. The employer status of the individual defendant or the closely knit working environment in this case did not make the particular conduct more severe or pervasive. Although a separate claim of substantial interference with employment might have been asserted under subsection 103(h)(iii), because the plaintiff resigned rather than return to work, such a claim could be premised only on a theory of constructive discharge, an assertion severely undercut by the plaintiff’s deposition testimony. The trial court correctly ruled that the acts attributed to the defendant did not rise to the level of severity and persistence that would permit recovery under the act. 189 Mich App 346; 471 NW2d 660 (1991) affirmed in part and reversed in part. 1. Civil Rights — Sexual Harassment — Hostile Work Environment — Reasonableness Standard — Single Incident. An objective reasonableness standard must be used in determining whether a hostile work environment exists under the Civil Rights Act; a hostile work environment claim is actionable only when the work environment is so tainted, in the totality of the circumstances, that a reasonable person in the plaintiff’s position would have perceived the conduct at issue as substantially interfering with employment or having the purpose or effect of creating an intimidating, hostile, or offensive employment environment; although a single incident of sexual harassment generally is insufficient to constitute a hostile work environment, it may bé sufficient if severe harassment is perpetrated by an employer in a closely knit working environment (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 2. Workers’ Compensation — Assault and Battery — Exclusive Remedy — Failure to Allege Intent to Harm. The exclusive remedy provision of the Workers’ Disability Compensation Act bars an alternative claim of assault and battery when the claim does not allege that the defendant intended to harm the plaintiff (MCL 418.131; MSA 17.237[131]). Smith, Haughey, Rice & Roegge (by Mark D. Williams) for the plaintiff. Dykema, Gossett (by Seth M. Lloyd and Nancy L. Niemela) and Cunningham, Davison, Beeby, Rogers & Alward (by William M. Davison) for the defendants. Amici Curiae: Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Robert L. Willis, Jr., and Dianne Rubin, Assistant Attorneys General, for Michigan Civil Rights Commission and Michigan Department of Civil Rights. Clark, Klein & Beaumont (by Dwight H. Vincent, J. Walker Henry, Rachelle G. Silberberg, and Patricia Bordman) for Michigan Manufacturers Association. Miller, Canñeld, Paddock & Stone (by Diane M. Soubly and John H. Willems) for American Society of Employers, Motor Vehicle Manufacturers Association, Greater Detroit Chamber of Commerce, and Michigan Chamber of Commerce. Chiamp & Associates, P.C. (by Charlene M. Snow), for Women Lawyers Association of Michigan. Julie Kunce Field and Suellyn Scarnecchia for University of Michigan Women and the Law Clinic and Women Lawyers Association of Michigan. Stark & Gordon (by Sheldon J. Stark) for Michigan Trial Lawyers Association. Riley, J. At issue are the elements of a prima facie case of a hostile work environment under the Michigan Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. We hold that a hostile work environment claim is actionable when the work environment is so tainted that, in the totality of the circumstances, a reasonable person in the plaintiff’s position would have perceived the conduct at issue as substantially interfering with employment or having the purpose or effect of creating an intimidating, hostile, or offensive employment environment. Additionally, we hold that although a single incident of sexual harassment is generally insufficient to constitute a hostile work environment, a single incident may be sufficient if severe harassment is perpetrated by an employer in a closely knit working environment. We also hold that the Court of Appeals improperly reached the issue whether the exclusive remedy provision of the Workers’ Disability Compensation Act, MCL 418.131; MSA 17.237(131), bars an alternative claim of assault and battery when the claim does not allege that the defendant intended to harm the plaintiff. Thus, we affirm the opinion of the Court of Appeals that plaintiff has alleged a prima facie case of a hostile work environment, albeit on different grounds, and we reverse the opinion of the Court of Appeals and reinstate the trial court’s order granting summary disposition regarding the assault and battery claim. i Plaintiff’s sexual harassment, constructive discharge, and assault and battery claims were summarily dismissed by the trial court pursuant to MCR 2.116(C)(8) and (10). The Court of Appeals reversed. Accordingly, we begin our analysis with an examination of the applicable standards for granting summary disposition. A MCR 2.116(C)(8) permits summary disposition when the "opposing party has failed to state a claim on which relief can be granted.” MCR 2.116(C)(8), therefore, determines whether the opposing party’s pleadings allege a prima facie case. Marrocco v Randlett, 431 Mich 700, 707; 433 NW2d 68 (1988). Hence, the court "does not act as a factfinder,” but "accepts as true all well-pleaded facts.” Abel v Eli Lilly & Co, 418 Mich 311, 324; 343 NW2d 164 (1984). Only if the allegations fail to state a legal claim will summary disposition pursuant to MCR 2.116(C)(8) be valid. Macenas v Village of Michiana, 433 Mich 380, 387; 446 NW2d 102 (1989). While MCR 2.116(C)(8) tests the legal sufficiency of the pleadings, MCR 2.116(0(10) tests the factual basis underlying a plaintiff’s claim. Velmer v Baraga Area Schools, 430 Mich 385, 389-390; 424 NW2d 770 (1988). MCR 2.116(0(10) permits summary disposition when "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.” A court reviewing such a motion, therefore, must consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the party opposing the motion, and grant the benefit of any reasonable doubt to the opposing party. Stevens v McLouth Steel, 433 Mich 365, 370; 446 NW2d 95 (1989). Accordingly, this Court examines and recites the facts in the instant case in the light most favorable to plaintiff. B Plaintiff Tamara Radtke was employed as an unregistered veterinary technician for defendant Clarke-Everett Dog and Cat Hospital, P.C., beginning in January, 1984. The hospital is owned in equal shares by defendant Dr. Stuart Everett and Dr. James Clarke. As of May, 1988, her duties included supervising staff, assisting the doctors during surgery, scheduling, and performing minor janitorial tasks. She assisted each doctor nearly equally, and possessed a "good [working] relationship” with each. There were no incidents of sexual harassment before the date in issue. As commonly occurred, on Sunday, May 29, 1988, plaintiff was working alone with defendant Everett to provide weekend emergency veterinarian services. In her deposition plaintiff stated that after a lengthy day of work, she suggested that they take a break. Everett agreed. Plaintiff proceeded to the hospital’s lounge and poured them each a cup of coffee. She then relaxed on the couch, with her back leaning into its corner and her legs on the sofa. After finishing a few phone calls, Everett joined her and proceeded to sit next to her. Plaintiff, believing that Everett’s behavior was inappropriate, attempted to leave the couch "the minute he sat down.” Everett, however, physically restrained her by firmly placing his arm around her neck and holding her down. Plaintiff, both frightened and surprised by Everett’s behavior, described what followed during her deposition: I tried to pull my head up three times, and, on the third time, I realized he was not going to let me go. And then finally, when his arm relaxed, I sprung forward, and I told him, "You don’t want to do this.” Although plaintiff forcefully escaped his grip, Everett began to flatter her. Plaintiff rebuffed his newest advances by stating, "You don’t want to do this. I don’t want to do this. You’re married. I’m married.” Everett responded by caressing plaintiff’s neck. Again she protested, but he simply ignored her pleas. Indeed, he then attempted to kiss her by grabbing her neck and pushing his face towards hers. Plaintiff successfully pushed his face away, left the couch, and walked across the room. Plaintiff then stated that she wished to smoke outside, and encouraged Everett to accompany her in public, which he did. The working day was finished without incident. Plaintiff further stated when deposed that she did not know or could not know whether defendant was trying to hurt her, but she stated that he "would have or could have.” She acknowledged that he might have mistakenly believed she wished to kiss him and that he did not condition the terms or conditions of her employment upon the acceptance of his advances. That evening plaintiff discussed the incident with her husband, and she tendered her resignation, along with a list of requests, to Everett’s office the next morning. The following day, Dr. Clarke and plaintiff cursorily discussed the incident. Plaintiff also began psychological counseling that day. Although plaintiff suffered no physical injuries, she alleges severe emotional pain stemming from the incident. C In December, 1988, plaintiff filed a four-count civil suit against Everett and the hospital in the Grand Traverse Circuit Court. Plaintiff alleged that she was (1) sexually harassed in violation of the Civil Rights Act, (2) constructively discharged on the basis of sex, (3) the victim of assault and battery, and (4) denied access to her personnel files in violation of the Employee Right to Know Act, MCL 423.501 et seq.; MSA 17.62(1) et seq. The crux of plaintiff’s case is that Everett’s actions constituted sexual harassment because they created a hostile work environment thereby forcing her resignation. The Employee Right to Know Act count was dismissed by stipulation. In August, 1989, the trial court granted summary disposition regarding the remaining counts pursuant to MCR 2.116(C)(8) and (10). After reviewing plaintiff’s complaint and deposition, the court ruled that she. had failed to state a violation of the Civil Rights Act because her hostile environment claim was based upon a single incident of sexual harassment, which, as a matter of law, did "not rise to the level of severity and persistence which would permit recovery . . . .” Likewise, the court dismissed the constructive discharge count because it was dependent upon finding a hostile work environment. The court also ruled that the exclusive remedy provision of the Workers’ Disability Compensation Act, MCL 418.131; MSA 17.237(131), barred plaintiff’s claim of assault and battery because she failed to allege that Everett intended to harm her. The Court of Appeals reversed on all counts. The Court, sua sponte, rejected its prior utilization of a reasonable person standard to determine whether a hostile work environment exists, and ruled: [A] female plaintiff states an actionable claim for sex discrimination caused by hostile-environment sexual harassment under the state Civil Rights Act where she alleges conduct of a sexual nature that a reasonable woman would consider to be sufficiently severe or pervasive to alter the conditions of employment by substantially interfering with her employment or by creating an intimidating, hostile, or offensive employment environment. [189 Mich App 346, 355; 471 NW2d 660 (1991).] The Court then found that under the reasonable woman standard, a "single incident could be sufficiently severe under some circumstances to support a finding” of a hostile work environment. Id. at 356. The Court concluded that in the instant case, the totality of circumstances were sufficient to permit a trial regarding the issue of a hostile work environment. Id. at 356-357. Accordingly, the Court also reversed the trial court’s dismissal of the constructive discharge claim. Id. at 357. Furthermore, the Court reversed the dismissal of the assault and battery claim, holding that because it named Everett individually, plaintiff was not suing her employer but her perpetrator. Id. at 357-358. The Court reasoned, "[t]he wdca therefore is inapplicable to this claim and does not operate to bar plaintiff’s recovery.” Id. at 358. Leave to appeal was granted by this Court. D Defendants, joined by amici curiae, assert before this Court that (1) the reasonable person standard should be utilized to determine whether a hostile work environment existed, (2) a single incident is insufficient to establish a prima facie case of a hostile work environment, (3) constructive discharge did not occur, and (4) the wdca bars the alternative counts of assault and battery. Plaintiff, and other amici curiae, urge the contrary. Two amici curiae urge the elimination of any reasonableness standard, and at least one urges the adoption of a "reasonable victim” standard. n The Civil Rights Act "is aimed at 'the prejudices and biases’ borne against persons because of their membership in a certain class, and seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases.” Miller v C A Muer Corp, 420 Mich 355, 363; 362 NW2d 650 (1984) (citations omitted). Accordingly, the act declares tha

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

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

Jeffrey Flesner vs. Technical Communications Corporation & others. Middlesex. April 1, 1991. - August 8, 1991. Present: Liacos. C.J.. Wilkins. Abrams, Lynch. O’Connor, & Greaney. JJ. Contract, Employment. Employment, Termination. Public Policy. Emotional Distress. Fraud. Privacy. Civil Rights, Termination of employment. Practice, Civil, Summary judgment. Damages, Emotional distress. A cause of action for wrongful discharge in violation of public policy was stated by a plaintiffs allegation that his discharge from employment was motivated by his employer’s desire to interfere with or retaliate for the plaintiffs cooperation with a United States Customs Service investigation [810-811], and where the motive for the discharge was a contested issue, summary judgment was incorrectly entered for the employer [811-812], In a civil action in which the plaintiff sufficiently alleged and supported a claim of misrepresentation the judge incorrectly dismissed the claim. [814] In a civil action based on an allegation of wrongful discharge from employment, the employer’s contention that the plaintiff was precluded from recovering damages because of alleged misrepresentations on his résumé and in his job interview involved disputed issues of material fact not appropriately resolved at the summary judgment stage of the proceedings. [815-817] In a civil action in which the plaintiff claimed damages for invasion of privacy pursuant to G. L. c. 214, § IB, the judge correctly ordered entry of summary judgment for the defendants where the only evidence on the claim was the plaintiffs hearsay testimony or statements of his personal belief. [817-818] In a civil action based on the plaintiffs alleged wrongful discharge by his employer, the plaintiff failed to identify any “secured right” under the Constitution or laws of the Commonwealth or the United States to entitle him to relief on a claim under the Massachusetts Civil Rights Act, G. L. c. 12, § 111, and summary judgment properly entered for the employer on that claim. [818-819] Civil action commenced in the Superior Court Department on January 25, 1985. The case was heard by Robert J. Hallisey, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Richard L. Neumeier (Paul M. Moretti with him) for the plaintiff. D. Alice Olsen (Thomas M. Elcock with her) for the defendants. Arnold McCalmont and James McCalmont. Abrams, J. Jeffrey Flesner claims that his former employer, Technical Communications Corporation (TCC), constructively discharged him in retaliation for his cooperation in a United States Customs Service investigation of TCC. A Superior Court judge awarded summary judgment in favor of TCC. Flesner now appeals, contending that the judge erred in dismissing his claims for (1) wrongful discharge; (2) misrepresentation; (3) invasion of privacy; and (4) violation of the Massachusetts Civil Rights Act, G. L. c. 12, § 111 (1990 ed.). In addition, the defendants claim that Flesner is precluded from recovering damages by his own misrepresentations. We transferred the case to this court on our own motion. We reverse the summary judgment on the wrongful discharge and misrepresentation claims. We affirm on the other claims. From the materials submitted to the court in conjunction with the summary judgment motion, the undisputed facts are as follows. TCC is a Massachusetts corporation that produces, develops, and sells internationally communications systems, including communications security systems. Arnold McCalmont and his son, James McCalmont, also defendants, are president and sales manager, respectively. Flesner worked as a salesman for TCC from January 31, 1983, until his resignation on September 1, 1983. Flesner planned a sales trip to Argentina in July, 1983, to demonstrate certain TCC security equipment to potential buyers. He claims that before he left he repeatedly asked James McCalmont whether a temporary export license was needed to transport the equipment to Argentina. McCalmont told Flesner that because he was only demonstrating the equipment rather than making a permanent sale, no such license was required. At the time, TCC had applied for a temporary export license for Argentina but the application was returned with no action taken. On the date of departure, Flesner was met at Logan International Airport in Boston by a TCC employee who delivered the equipment to Flesner and handed him a manila envelope containing Customs documents. Flesner checked the equipment through to Argentina. At a stopover in Miami, Flesner was detained by Customs officials. He handed them the documents that TCC had provided him in the manila envelope, but they did not satisfy the officials. The officials told Flesner that if he did not cooperate, he would be handcuffed and arrested on the spot. Flesner said he would cooperate. The officials further questioned Flesner for approximately two and one half hours about TCC’s business, and Flesner’s planned Argentina trip. Afterward, he was told to return to Boston the next day, but the equipment was seized. When Flesner arrived back at Logan, he was met by other Customs officials who also told him that he would not be arrested or handcuffed if he cooperated. Again, he was questioned intensively. The officials instructed Flesner not to tell TCC that he was cooperating with them unless asked directly. They then released him. Later that night, Flesner met with the McCalmonts and Herman Wolz, another TCC employee, to relate the events of the past two days. He did not tell them, because they did not ask, that he was cooperating with Customs. The Customs agents met with Flesner several times after the incident to ask further questions. They also interviewed Arnold McCalmont. At one point, Flesner was summoned to a meeting with Arnold McCalmont and TCC’s lawyer at which Flesner informed them that he was cooperating with Customs. The lawyer advised Flesner that they might become adversaries and that Flesner should watch what he said to them. Flesner claims that the employer-employee relationship deteriorated thereafter. He asserts that he was forbidden to travel until the investigation was cleared up, and that he was not allowed to telephone or telex potential customers. All of his correspondence was to be reviewed by Wolz, and little, if any, of it was approved for mailing. Because he was denied access to his customers, he asserts that he was prevented from making sales or earning commissions, although he had not made any sales prior to the incident either. On August 31, 1983, Flesner told Arnold McCalmont and Wolz that he had met with Customs agents the previous week. Wolz told Flesner to inform them of any further contacts with Customs. Later, Flesner asked Wolz about his future with TCC. Wolz’s response was not positive. He told Flesner that he should resign so that he could receive two weeks’ severance pay or he would be fired the next day. On September 1, 1983, Flesner tendered his resignation. In January, 1985, Flesner filed an eight-count complaint against the defendants. TCC counterclaimed for misrepresentation. In September, 1989, the defendants moved for summary judgment on Flesner’s claims. On September 27, 1989, the judge allowed the motion except as to the counts for misrepresentation, wrongful discharge, and negligence. In October, he allowed the motion for all counts, and filed a memorandum of decision explaining his order. Flesner appeals the order as to five of those counts. 1. Motion for summary judgment. In ruling on a motion for summary judgment, “a judge . . . must consider ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ in determining whether summary judgment is appropriate. Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). The burden on the moving party is to ‘show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ Id.” Madsen v. Erwin, 395 Mass. 715, 719 (1985). This burden need not be met by affirmative evidence negating an essential element of the plaintiff’s case, but may be satisfied by demonstrating that proof of that element is unlikely to be forthcoming at trial. See Kourouvacilis v. General Motors Corp., ante 706 (1991). Where a moving party properly asserts that there is no genuine issue of material fact, “the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). A judge’s mere belief that the movant is more likely to prevail at trial is not a sufficient basis for granting summary judgment. See Byrd v. Roadway Express, Inc., 687 F.2d 85, 87 (5th Cir. 1982); American Int’l Group v. London Am. Int’l Corp. Ltd., 664 F.2d 348, 351 (2d Cir. 1981). 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2725, at 104-105 (1983). In cases where motive, intent, or other state of mind questions are at issue, summary judgment is often inappropriate. See Pederson v. Time, Inc., 404 Mass. 14, 17 (1989) (“the generally accepted rule is that the ‘granting of summary judgment in a case where a party’s state of mind . . . constitutes an essential element of the cause of action is disfavored’ ”), quoting Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass. 81, 86 (1984). See also Sweat v. Miller Brewing Co., 708 F.2d 655, 657 (11th Cir. 1983); Baldini v. Local 1095, UAW, 581 F.2d 145, 151 (7th Cir. 1978). 10A C. Wright, A. Miller, & M. Kane, supra at § 2730. In such cases, “[mjuch depends on the credibility of the witnesses testifying as to their own states of mind. In these circumstances, the jury should be given an opportunity to observe the demeanor, during direct and cross-examination, of the witnesses whose states of mind are at issue.” Croley v. Matson Navigation Co., 434 F.2d 73, 77 (5th Cir. 1971). With these principles in mind, we consider the merits of Flesner’s arguments. 2. Wrongful discharge. Flesner claims that TCC constructively discharged him in violation of public policy because of his cooperation with the Customs officials. We have recognized an exception to the traditional doctrine that at-will employees may be discharged for any reason or no reason at all, where the discharge is for reasons that violate public policy. See DeRose v. Putnam Management Co., Inc., 398 Mass. 205 (1986). We have held, for example, that a cause of action will lie when an employee is fired for disobeying the employer’s instruction to testify falsely at a trial, see id., or for enforcing safety regulations for which she was responsible, see Hobson v. McLean Hosp. Corp., 402 Mass. 413 (1988). In Smith-Pfeffer v. Superintendent of the Walter E. Fernald State School, 404 Mass. 145, 149-150 (1989), we stated that 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).” Flesner claims he was discharged for cooperating with the Customs officials. The law did not require him to cooperate; he had the right to remain silent. Nevertheless, it is the public policy of this Commonwealth to encourage cooperation with ongoing criminal investigations. See, e.g., G. L. c. 262, § 29 (1990 ed.) (providing compensation and travel costs reimbursement for any person who attends the Attorney General or the offices of a district attorney for the purpose of assisting an investigation); G. L. c. 233, § 20D (1990 ed.) (permitting a grant of immunity for specified crimes for witnesses in a grand jury investigation); Correllas v. Viveiros, ante 314 (1991). Cf. 18 U.S.C. § 6002 (permitting a grant of immunity to witnesses testifying or providing information in a proceeding ancillary to an agency of the United States). We think that the reasons for imposing liability in the categories of cases set forth in Smith-Pfeffer also justify legal redress in certain circumstances for employees terminated for performing important public deeds, even though the law does not absolutely require the performance of such a deed. In such a situation, as in the Smith-Pfeffer categories, allowing the employer to terminate employees for reasons that directly contradict the public policy of the Commonwealth would seriously impair that policy. See Petermann v. International Bhd. of Teamsters, 174 Cal. App. 2d 184 (1959). Cooperating with an ongoing governmental investigation is an important public deed which fits this category. See Palmateer v. International Harvester Co., 85 Ill.2d 124 (1981) (cause of action stated where plaintiff claims he was discharged in retaliation for supplying information to law enforcement agency that a fellow employee might have committed a crime and for agreeing to assist in the investigation and trial). The judge, however, granted summary judgment because “TCC never urged Flesner not to cooperate with Customs officials or otherwise hamper an investigation.” This assertion does not demonstrate an absence of evidence on an essential element of the claim. See Kourouvacilis, supra. Flesner’s claim is that the discharge itself was motivated by a desire to interfere with or retaliate for his cooperation with the investigation. Such intentional interference, if found by a jury, would constitute a wrongful discharge in violation of public policy. Moreover, the judge asserted that, while “Flesner may be said to have been fired for participating in an illegal scheme in which the employer was involved, . . . such a termination does not fall within the public policy exception.” Although a reasonable jury may conclude that such was the cause for Flesner’s termination, it would not be required to so con-elude. Where a jury can draw opposite inferences from the evidence, summary judgment is improper. See Anderson v. Liberty Lobby, Inc., supra at 248-250. Flesner’s deposition asserts that he asked about export licenses and TCC told him they were not necessary. Thus, it is permissible to conclude that Flesner left on his trip completely unaware that he was acting in violation of the law. *He describes his ongoing cooperation with Customs authorities and a corresponding deterioration in his working relationship with TCC. He asserts that he was told to resign with two weeks’ pay or be fired. This evidence sufficiently raises a question of material fact as to whether Flesner was discharged in retaliation for his cooperation with a law enforcement investigation. The defendants contend that Flesner was discharged, if at all, for other legitimate business reasons. Thus, the motive for the discharge is a primary contested issue of fact. In such circumstances, the grant of summary judgment on these claims was improper. See Sweat v. Miller Brewing Co., supra (where employer’s intent in discharging plaintiff was contested, summary judgment was improper); Padway v. Palches, 665 F.2d 965, 967 (9th Cir. 1982) (same). 3. Damages. In addition to economic damages, Flesner claims damages for emotional distress and mental anguish as well as punitive damages.* * Punitive damages are not allowed in this Commonwealth unless expressly authorized by statute. See Santana v. Registrars of Voters of Worcester, 398 Mass. 862, 867 (1986); USM Corp. v. Marson Fastener Corp., 392 Mass. 334, 353 (1984). Because no such legislative authorization applies to this case, Flesner’s claim for punitive damages cannot stand. Because the judge ordered summary judgment for the defendants on liability for the wrongful discharge count, he did not decide whether such a cause of action gives rise to tort damages, such as those for emotional distress claimed by Flesner, in addition to contract damages. There is, therefore, no ruling before us to review. The parties focused on liability in the motion for summary judgment. Therefore, the factual background on damages is undeveloped. Indeed, no facts alleged in the complaint or submitted on summary judgment evidence any suffering by Flesner of mental anguish due to the defendant’s conduct in wrongfully discharging him. We decline to adopt a hard and fast rule on whether tort damages in general and emotional distress damages in particular are recoverable in wrongful discharge cases in the absence of a well-developed factual record. See Hobson v. McLean Hosp. Corp., 402 Mass. 413, 417 n.3 (1988). If at trial no facts are brought out supporting damages for emotional distress due to the defendant’s intentional conduct, then the question need not be reached. We therefore decline to address this issue. 4. Misrepresentation. The judge also granted summary judgment on Flesner’s misrepresentation claim because the complaint did not allege damages independent of those alleged in connection with the termination of his employment. “Therefore,” according to the judge, the “plaintiffs cause of action, if one lies, must be for Wrongful Discharge.” Even if the judge were correct that the only damages Flesner alleges are those arising out of his termination, a point we do not decide, the overlap does not justify dismissal of the claim. Flesner, of course, cannot recover double damages for the two claims, but he is entitled to proceed on more than one theory of recovery. See Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 89 (1979); Laurendeau v. Kewaunee Scientific Equip. Corp., 17 Mass. App. Ct. 113, 120-121 (1983). Mass. R. Civ. P. 8 (e) (2), 365 Mass. 749 (1974). The judge does not conclude that Flesner insufficiently alleged or supported his claim of misrepresentation. Summary judgment should not have been allowed on the misrepresentation claim. Cf. Presto v. Sequoia Sys., Inc., 633 F. Supp. 1117 (D. Mass 1986) (claims for breach of employment contract and misrepresentation allowed to go forward; wrongful discharge claim dismissed on other grounds). 5. Flesner’s alleged misrepresentation. The defendants argue that Flesner is precluded from recovering damages because he misrepresented several facts on his résumé and in his job interview leading to his employment with TCC. According to the defendants, TCC would not have hired Flesner had they known these representations were not true. Therefore, they conclude that even though they did not discover these misrepresentations until after Flesner resigned, he cannot recover any damages because TCC would have been justified in firing him even absent any wrongful motives. Because the judge ordered summary judgment for the defendants on all counts, he did not reach this issue. The defendants cite a line of Federal wrongful discharge and employment discrimination cases in support of their argument. See, e.g., East Texas Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395 (1977); Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977); Summers v. State Farm Mut. Auto. Ins. Co., 864 F.2d 700 (10th Cir. 1988); Smallwood v. United Airlines, Inc., 728 F.2d 614 (4th Cir.), cert, denied, 469 U.S. 832 (1984); Murnane v. American Airlines, 667 F.2d 98 (D.C. Cir.), cert, denied, 456 U.S. 915 (1982). These cases all deal with the question of the appropriate remedy once discrimination or a wrongful discharge has been established. In Mt. Healthy, a teacher was fired, in part because of his exercise of rights secured him by the First Amendment to the United States Constitution. Several other permissible reasons could have supported the discharge, however. The Supreme Court remanded the case to the District Court to determine whether the school board in fact would have fired the plaintiff even absent the impermissible reason. The court reasoned that the plaintiff should not be put in a better position than he would have been in had the wrong not b

RADTKE v EVERETT Docket No. 121611. Submitted November 7, 1990, at Grand Rapids. Decided May 20, 1991, at 9:15 a.m. Leave to appeal sought. Tamara J. Radtke brought an action in the Grand Traverse Circuit Court against Stuart B. Everett and Clarke-Everett Dog and Cat Hospital, P.C., claiming, on the basis of a single incident, sexual harassment in the workplace, constructive discharge from her employment, and assault and battery. The court, William R. Brown, J., granted the defendants summary disposition with respect to the sexual harassment and constructive discharge claims on the basis that a single act would not support a finding of sexual harassment within the meaning of the Civil Rights Act, and with respect to the assault and battery claim on the basis that it was precluded by the exclusive remedy provision of the Workers’ Disability Compensation Act. The plaintiff appealed. The Court of Appeals held: 1. Because a standard which views sexual harassment of a female from the perspective of a gender-neutral "reasonable person” has a tendency to have a male bias, claims by women of sex discrimination in the workplace as a result of sexual harassment should be viewed from the perspective of a "reasonable woman.” Under the reasonable woman standard, an actionable claim within the meaning of the Civil Rights Act for sex discrimination caused by sexual harassment in the workplace is stated where a woman alleges conduct of a sexual nature which a reasonable woman would consider to be sufficiently severe or pervasive to alter her conditions of employment by substantially interfering with her employment or to create an intimidating, hostile, or offensive employment environment. Under certain circumstances, the offensive nature may be so severe that a single incident will be sufficient to support a finding of sexual harassment. Because a jury might find that the claimed incident constituted sexual harassment, it was error for the trial court to grant summary disposition of the sexual harassment and constructive discharge claims. References Am Jur 2d, Job Discrimination § 804. See the Index to Annotations under Reasonableness; Sex Discrimination. 2. The exclusive remedy provision of the Workers’ Disability Compensation Act does not bar the plaintiffs assault and battery claim, because it was brought against Dr. Everett individually, rather than against the employer, Clarke-Everett Dog and Cat Hospital, P.C. Reversed and remanded. 1. Civil Rights — Sex Discrimination — Sexual Harassment — Reasonable Woman Standard — Civil Rights Act. In an action for sex discrimination by a woman pursuant to the Civil Rights Act because of sexual harassment, the offensiveness of the claimed conduct should be viewed from the perspective of a "reasonable woman” rather than from that of a "reasonable person,” i.e., the severity or pervasiveness of the claimed conduct should be viewed from the perspective of the actual victim rather than a hypothetical gender-neutral person (MCL 37.2103[h]; MSA 3.548[103][h]). 2. Civil Rights — Sex Discrimination — Sexual Harassment — Hostile Environmental Workplace — Single Incidents — Civil Rights Act. A woman states an actionable claim under the Civil Rights Act of sex discrimination caused by hostile-environment sexual harassment where she alleges conduct of a sexual nature that a reasonable woman would consider to be sufficiently severe or pervasive to alter the conditions of employment by substantially interfering with her employment or by creating an intimidating, hostile, or offensive employment environment; the required showing of the severity of the harassing conduct will vary inversely with the pervasiveness of the conduct; under some circumstances, a single incident may be sufficient to establish a claim of sex discrimination caused by hostile-environment sexual harassment (MCL 37.2103[h]; MSA 3.548[103] M>. Menmuir, Zimmerman, Kuhn & Bearup (by Mark D. Williams), for the plaintiff. Cunningham, Davison, Beeby, Rogers & Alward (by William M. Davison), for the defendants. Before: Neff, P.J., and Maher and Hood, JJ. Hood, J. Plaintiff appeals as of right from a circuit court order granting summary disposition in favor of defendants. Plaintiff’s complaint alleged sexual harassment in violation of the Michigan Civil Rights Act (count i), constructive discharge (count ii), and assault and battery (count hi). Counts i and ii were dismissed by the trial court pursuant to MCR 2.116(C)(10), and count m was dismissed pursuant to MCR 2.116(C)(8). We reverse. Plaintiff began working for defendant Clarke-Everett Dog and Cat Hospital, P.C., as an unregistered veterinary technician in January 1984. Her employment required her to work occasional weekends and holidays with one of the two veterinarians. Because of her personal schedule, plaintiff often worked those days with defendant Everett. That was the case on May 29,1988. That Sunday proved to be busy at the hospital; however, plaintiff and Everett managed to take a break late in the day. While plaintiff was relaxing on the couch in the employee lounge, Everett sat down next to her and placed his arm around her neck. When plaintiff tried to get up, Everett restrained her. After three attempts, plaintiff finally freed herself and sat forward on the couch. Everett proceeded to flatter plaintiff as he moved closer to her. Everett began caressing plaintiff’s back and arms, even after she had indicated her displeasure and unease with his advances. According to plaintiff, Everett continued to caress her back, while moving his hand toward her breasts. He then placed his hand behind her neck and brought his face toward plaintiff’s face in an attempt to kiss her. Plaintiff was able to push Everett’s face away, went across the room, and accused him of wanting to play a "nasty game.” Rattled by the incident, plaintiff requested that they go outside. She did so because they would then be in public. Although plaintiff stayed to finish her shift, she felt compelled to terminate her employment the next day, particularly because she was scheduled to work again with Everett. Plaintiff alleged that when she notified Dr. Clarke of Everett’s conduct, he took no remedial measures and told her that women like her had to watch themselves around men because of their cute, bubbly personalities. In addition to ending her employment, plaintiff immediately sought counseling for the adverse effect the incident had on her psychological well-being. In December 1988, plaintiff instituted this action, alleging that she was the victim of unlawful sexual harassment and assault and battery and that, because of the hostile work environment created by Everett’s sexual advances, her termination of employment constituted a constructive discharge. Defendants moved for summary disposition, claiming that a single incident is not sufiicient to state a cause of action for sexual harassment resulting from a hostile work environment. Accordingly, defendants argued for dismissal of count ii, because the constructive discharge claim was predicated on a deficient sexual harassment claim. Lastly, defendants moved for dismissal of count hi, alleging that the Workers’ Disability Compensation Act (wdca) barred plaintiff’s assault and battery claim. In granting defendants’ motion, the trial court determined that even accepting as true all of plaintiff’s allegations, her claim of sexual harassment and constructive discharge must fail. Relying on Langlois v McDonald’s Restaurants of Michigan, Inc, 149 Mich App 309; 385 NW2d 778 (1986), the trial court determined that a single act does not state a claim of hostile-environment sexual harassment. In addition, the court agreed with defendants that the wdca barred plaintiff’s assault and battery claim. i Plaintiff alleged that defendants violated §202 of the Michigan Civil Rights Act by discriminating against her on the basis of sex. The state Civil Rights Act defines this type of discrimination in § 103(h), MCL 37.2103(h); MSA 3.548(103)(h), which provides: 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.... (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 .... (iii) Such conduct or communication has the purpose or effect of substantially interfering with an individual’s employment ... or creating an intimidating, hostile, or offensive employment . . . environment. In her complaint, plaintiff alleges that Everett’s conduct substantially interfered with her employment and created a hostile work environment; therefore, we focus our analysis on the sufficiency of her claim under § 103(h)(iii). Michigan courts have frequently reviewed sexual harassment claims under the state Civil Rights Act with reference to the persuasive federal precedent developed under the analogous federal legislation, title VII of the Civil Rights Act of 1964. When examining claims of hostile-environment sexual harassment, the court may properly look to the guidelines promulgated by the Equal Employment Opportunity Commission. Meritor Savings Bank, FBS v Vinson, 477 US 57; 106 S Ct 2399; 91 L Ed 2d 49 (1986). The eeoc guidelines describe hostile-environment harassment as "conduct [which] has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.” 29 CFR 1604.11(a)(3). We note that the language of this guideline is nearly identical to that of § 103(h)(iii) of the state Civil Rights Act quoted above. Title VII affords employees the right to work in an environment that is free from discriminatory intimidation, insult, and ridicule. Meritor Savings Bank, 477 US 65. However, not all harassment affects a "term, condition, or privilege” of employment within the meaning of title VII. In order to maintain a claim under title VII, the sexual harassment must be sufficiently severe or pervasive to alter the conditions of the victim’s employment. Id. at 67. See also Henson v City of Dundee, 682 F2d 897, 904 (CA 11, 1982). In Langlois, supra, this Court determined that the single incident experienced by the plaintiff was not sufficiently severe and pervasive to constitute the substantial interference required under the state Civil Rights Act. Defendants urge us to follow Langlois and the cases cited therein, and conclude that a single incident is not sufficient to state a claim of hostile-environment harassment under the state Civil Rights Act. In addition, defendants ask us to apply the "reasonable person” standard announced in Rabidue v Osceola Refining Co, 805 F2d 611 (CA 6, 1986), from which the totality of the circumstances should be viewed. We do not agree with the standards or principles announced in Rabidue and Langlois, and we choose not to follow them. In Rabidue, the Sixth Circuit Court of Appeals declined to find that a hostile environment was created where there was a display of posters of naked and partially dressed women and where male employees customarily referred to women by derogatory sexual names, referred to the plaintiff as "fat ass,” and specifically stated that "all that bitch needs is a good lay.” Over a strong dissent, the majority concluded that the remarks and posters did not seriously affect plaintiff’s psychological well-being. The court stated that the trier of facts was required to "adopt the perspective of a reasonable person’s reaction to a similar environment under essentially like or similar circumstances.” 805 F2d 620. A plaintiff could prevail only if a hypothetical reasonable person’s work performance was interfered with and the conduct seriously affected the psychological well-being of the reasonable employee. Id. Among the circumstances to be considered by the factfinder is "the lexicon of obscenity that pervaded the environment of the workplace both before and after the plaintiff’s introduction into its environs.” Id. However, we believe that in a sexual harassment case involving a woman, the proper perspective to view the offensive conduct from is that of the "reasonable woman,” not that of the "reasonable person.” Thus, the severity or pervasiveness of the conduct should be viewed from the perspective of the victim, not that of a hypothetical employee irrespective of gender. Ellison v Brady, 924 F2d 872, 878-879 (CA 9, 1991); King v Bd of Regents of University of Wisconsin System, 898 F2d 533, 537 (CA 7, 1990). We believe that a standard which views harassing conduct from the "reasonable person” perspective has the tendency to be male-biased and runs the risk of reinforcing the prevailing level of discrimination which the state Civil Rights Act and title VII were designed to eliminate. In such a case, harassers could continue to discriminate merely because such harassment was the norm at the workplace. See Ellison, supra at 878; Abrams, Gender discrimination and the transformation of workplace norms, 42 Vand L Rev 1183 (1989). We believe that the adoption of the reasonable person standard, coupled with the consideration of the level of "obscenity” that pervaded the workplace before and after plaintiff’s arrival, strips the provisions of the state Civil Rights Act of their effect. In essence, the principles in Rabidue prevent the state Civil Rights Act from achieving its purpose of eliminating sexual harassment from the workplace and ensuring employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult. Accordingly, we adopt the "reasonable woman” perspective. This standard, which ensures a gender-conscious review of sexual harassment, will help enable women to participate in the work force on an equal footing with men, and prevent the trivializing of the effects of sexual harassment that has previously occurred under the gender-neutral "reasonable person” standard. Ellison, supra at 879, 880. By adopting a gender-conscious standard that views the harassment from the victim’s perspective, it is important to analyze and understand the different perspectives of men and women. See, e.g., Yates v Arco Corp, 819 F2d 630, 637, n 2 (CA 6, 1987); Lipsett v Univ of Puerto Rico, 864 F2d 881, 898 (CA 1, 1988); Abrams, Gender discrimination and the transformation of workplace norms, 42 Vand L Rev 1183 (1989). For example, because of their historical vulnerability in the work force, women are more likely to regard a verbal or physical sexual encounter as a coercive and degrading reminder that the woman involved is viewed more as an object of sexual desire than as a credible coworker deserving of respect. Such treatment can prevent women from feeling, and others from perceiving them, as equal in the workplace. We hold, therefore, that a female plaintiff states an actionable claim for sex discrimination caused by hostile-environment sexual harassment under the state Civil Rights Act where she alleges conduct of a sexual nature that a reasonable woman would consider to be sufficiently severe or pervasive to alter the conditions of employment by substantially interfering with her employment or by creating an intimidating, hostile, or offensive employment environment. Under this standard, the required showing of the severity of the harassing conduct will vary inversely with the pervasiveness of the conduct under the totality of the circumstances. Ellison, supra at 878; King, supra at 537. Accordingly, we hold that a single incident could be sufficiently severe under some circumstances to support a finding that a reasonable woman’s employment was substantially interfered with or that an intimidating, hostile, or offensive employment environment had been created. We believe that in some situations the mere presence of the harasser who has engaged in particularly offensive conduct can create a hostile work environment. We therefore reject the conclusions in Langlois that a single incident is insufficient, as a matter of law, to state a claim for hostile-environment sexual harassment. We must now turn to the specific case at hand and determine whether plaintiff’s complaint was properly dismissed. We are presented with a situation in which plaintiff, a married woman, often worked alone with defendant Everett, who is also married, in a small veterinarian hospital in a relatively small community. The acts complained of included repeated physical contact and restraint, verbal remarks of a sexual nature, and an admitted attempt for a romantic kiss. Further, when she informed Dr. Clarke of the incident, no remedial measures were taken, and plaintiff was "warned” that women like her had to be careful around men because of their cute, bubbly personalities. Under the totality of the circumstances, we cannot say as a matter of law that plaintiff’s reaction was idiosyncratic or hypersensitive, particularly where she was scheduled to work with Everett the very next day. Consequently, we reverse the trial court’s grant of summary disposition to defendants on count i of plaintiff’s complaint. Accordingly, count n of plaintiff’s complaint, which alleged constructive discharge arising from the creation of a hostile work environment and from Dr. Clarke’s comment and failure to take remedial measures, was likewise improperly granted and is reversed. See Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785, 796; 369 NW2d 223 (1985). ii Plaintiff’s complaint also alleged assault and battery. The trial court dismissed this claim, finding that it was barred by the Workers’ Disability Compensation Act. On appeal, plaintiff argues that the dismissal was improper where the court did not provide her an opportunity to amend her complaint as provided in MCR 2.116(I)(5) to allege that defendant intended her injuries. We find that summary disposition was improperly granted as a result of the trial court’s erroneous application of the exclusive remedy provision of the wdca, MCL 418.131; MSA 17.237(131). The wdca applies to bar claims brought by employees against their employers for injuries sustained in the course of work, unless such claims fall within the intentional tort exception to the exclusive remedy provision of the act. However, we have reviewed plaintiff’s complaint and note that the claim of assault and battery was brought against defendant Everett individually, and not against plaintiff’s employer, defendant Clarke-Everett Dog and Cat Hospital. Plaintiff is not suing her employer for the assault and battery, but rather the perpetrator, defendant Everett. The wdca therefore is inapplicable to this claim and does not operate to bar plaintiffs recovery. Accordingly, we reverse the grant of summary disposition of this claim. Reversed and remanded for proceedings consistent with this opinion. MCL 37.2101 et seq.; MSA 38.548(101) et seq. Plaintiffs fourth count, which alleged a violation of the Employee Right to Know Act, MCL 423.501 et seq.; MSA 17.16(1) et seq., was dismissed with prejudice by stipulation of the parties and is not a subject of this appeal. Defendant Everett admitted that he did attempt to kiss plaintiff. In Langlois, the plaintiff based her claim of hostile-work-environment sexual harassment on a single incident that occurred while she worked at one of the defendant’s fast-food restaurants. The plaintiff was instructed by "first assistant” Ivan Forney to take a break, and he whispered to her, "Hi, baby, let’s have some fun.” Once on break, Forney again asked her if she wanted to "have some fun,” and moved his hips back and forth in a crude manner. He then placed his hand on her breast and grabbed her buttocks. The plaintiff then left the crewroo

MOURAD v AUTOMOBILE CLUB INSURANCE ASSOCIATION Docket No. 109985. Submitted April 11, 1990, at Detroit. Decided January 8, 1991, at 9:35 a.m. Roger Mourad, after he was demoted from head of the legal department to executive attorney, brought an action in the Wayne Circuit Court against the Automobile Club Insurance Association, his former employer, and three of its employees, alleging breach of an employment contract providing for termination for just cause only, retaliatory demotion and constructive discharge, intentional infliction of emotional distress, and conspiracy. The court, Henry J. Szymanski, J., entered judgment consistent with a jury verdict awarding the plaintiff compensatory damages for breach of contract and retaliatory demotion and exemplary damages for retaliatory demotion, but overturned an award of exemplary damages for intentional infliction of emotional distress. The defendants appealed. The plaintiff cross appealed. The Court of Appeals held: The plaintiff can maintain a cause of action against Auto Club for breach of a contract providing termination for just cause only as a result of retaliatory demotion and constructive discharge. However, because the cause of action for retaliatory demotion and constructive discharge merges with the breach of contract claim, that award must be set aside. Damages for intentional infliction of emotional distress are not recoverable in an action for breach of an employment contract. 1. The jury did not err in finding that there was a contract providing termination of employment for just cause only and that the defendants breached the contract when they constructively discharged the plaintiff by demoting him for his failure to take action which he claimed would have violated the Code _of Professional Responsibility. Accordingly, the trial court did not err in denying the defendants’ motion for a directed verdict regarding the claim of constructive discharge. References Am Jur 2d, Damages § 118; Master and Servant §§ 44, 62, 63. See the Index to Annotations under Attorney or Assistance of Attorney; Discharge from Employment or Office; Emotional Injury. 2. The plaintiffs breach of contract claim is not precluded by the general rule that an attorney’s client has a right to discharge an attorney at any time, with or without cause. The plaintiffs relationship with the defendants was more than merely that of attorney and client. 3. The plaintiff cannot properly recover damages for breach of contract and retaliatory demotion and discharge because each cause of action is an alternative type of wrongful discharge. Thus, the award of damages for retaliatory demotion must be vacated. 4. The trial court erred in instructing the jury with regard to the availability and adequacy of defendants’ internal appeal procedures upon the plaintiffs demotion inasmuch as the defendants did not assert that the plaintiff was precluded from maintaining his action because an internal appeal procedure was available. The error, however, does not require reversal because the verdict was consistent with substantial justice. 5. Damages for intentional infliction of emotional distress are not recoverable in an action for breach of an employment contract. The trial court erred in submitting the claim of intentional infliction of emotional distress to the jury, but properly refused to grant judgment with regard to the jury’s award of exemplary damages for intentional infliction of emotional distress. 6. The trial judge, an Auto Club policyholder, did not abuse his discretion in failing to disqualify himself as an interested party. The defendants failed to show actual bias sufficient for disqualification. The trial judge’s comments and questions at trial were not improper or prejudicial, nor did they deny the defendants a fair and impartial trial. Affirmed in part, reversed in part, and remanded. 1. Master and Servant — Attorney and Client — Wrongful Discharge. An action for wrongful discharge by an in-house attorney against an insurer-employer, claiming breach of a just-cause employment contract was not barred by the general rule that an attorney’s client has a right to discharge an attorney at any time, with or without cause, where the attorney, aside from serving as counsel for the insurer, also served as counsel for the insurer’s policyholders and as administrator for the insurer. 2. Master and Servant — Termination of Employment — Wrongful Discharge. A jury, having found a breach of a just-cause contract of employment, cannot rely on the same factual basis to award additional damages for a claim of retaliatory demotion and retaliatory constructive discharge. 3. Damages — Emotional Distress — Breach of Employment Contracts. Damages for infliction of emotional distress are not recoverable in an action for breach of an employment contract. Weinstein, Gordon & Hoffman, P.C. (by William J. Weinstein and Joel L. Hoffman), for the plaintiff. Dykema Gossett (by Donald S. Young, Kathleen McCree Lewis, and Suzanne Sahakian), for the defendants. Before: Holbrook, Jr., P.J. and McDonald and Jansen, JJ. Jansen, J. Defendants appeal as of right from a March 3, 1988, Wayne Circuit Court jury verdict in the amount of $1,773,000 for breach of an employment contract, demotion without cause, constructive discharge, retaliatory demotion, intentional infliction of emotional distress, and conspiracy. Plaintiff cross appeals the trial court’s refusal to enter an additional $500,000 in exemplary damages which the jury had awarded on a special verdict form for intentional infliction of emotional distress. We hold that plaintiff, an attorney, can maintain a cause of action against defendant, Automobile Club Insurance Association (Auto Club), his former client and employer, for breach of a just-cause contract. However, we reverse the jury verdict regarding the claims of retaliatory demotion, intentional infliction of emotional distress, and conspiracy. We therefore affirm in part and reverse in part. In 1980, plaintiff was named legal area manager and in that capacity headed Auto Club’s in-house legal department from August 1980 until March 1983 when he was demoted to an executive attorney position. Auto Club’s legal department represents the insurance association in first-party cases and represents policyholders in third-party cases. The legal department attorneys supervise outside counsel and provide legal counsel and advice to Auto Club’s claims staff regarding nonlitigation matters. As legal area manager, plaintiff served as the attorney who advised management regarding the implementation of Auto Club’s policies within the department. Specifically, plaintiff formulated budget requests and administered the legal department within the budget approved by Auto Club. Plaintiff also supervised the attorney staff in its representation of insureds in pending litigation. Specifically, plaintiff gave settlement authority in certain cases, dealt with personnel problems and questions from attorneys and staff, evaluated executive attorneys, and reviewed senior attorneys’ evaluations of associate attorneys. Plaintiff described his function as a "managing lawyer.” As legal area manager he did not directly handle individual third-party cases. It appears that plaintiff was an excellent lawyer. However, Thomas Bowman, Auto Club’s claims director and plaintiff’s direct supervisor, concluded that plaintiff was unable to implement Auto Club’s policies and did not have the "administrative talents” necessary to effectively implement cost-containment measures in the legal department. In September 1982, Bowman assigned defendant Leonard Bach, who is not a lawyer, but who had twenty years of claims experience, to oversee the legal department. On March 16, 1983, plaintiff was removed as legal area manager and demoted to executive attorney. Plaintiff lost his use of a company car and approximately $700 in annual salary. Following his demotion, plaintiff was an executive attorney who handled first-party catastrophic claims. On March 16, 1984, plaintiff resigned his employment with Auto Club and opened a sole practice. On July 11, 1984, plaintiff filed a complaint alleging breach of a just-cause contract, retaliatory demotion and constructive discharge, intentional infliction of emotional distress, and conspiracy to commit the tort of retaliatory demotion or intentional infliction of emotional distress. Plaintiff claimed that his demotion was the result of his refusal to comply with alleged unethical and illegal orders from the individual defendants who were not attorneys. Plaintiff further claimed that had he complied with such orders and instructions he would have violated the Code of Professional Responsibility and Canons. On March 3, 1988, the jury returned its verdict. As compensatory damages, the jury awarded $1,250,000 as past, present, and future loss of wages and employment benefits for the breach of contract claim and $23,000 as past, present, and future loss of wages and employment benefits for the retaliatory demotion claim. For retaliatory demotion, the jury added $500,000 as compensatory damages for mental anguish. The jury also awarded $500,000 as exemplary damages for intentional infliction of emotional distress. Following an April 15, 1988, hearing, the court entered a judgment on the jury verdict, less the exemplary damages for intentional infliction of emotional distress, which the court found inconsistent, duplicative and punitive. Defendants argue that plaintiff cannot sustain a cause of action for wrongful termination, because plaintiff was defendants’ attorney. Specifically, defendants allege that a just-cause contract as established in Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), reh den 409 Mich 1101 (1980), cannot exist under these circumstances. We disagree. The issue before us is whether plaintiff can maintain an action for wrongful termination of a just-cause employment contract. In Toussaint, supra, our Supreme Court held that an employer’s statements of company policy and procedure that an employee will be terminated only for cause can give rise to an enforceable contract right. The existence of a just-cause contract and whether defendants’ actions constituted a breach of that contract is a question for the jury to determine. Stoken v J E T Electronics & Technology, Inc, 174 Mich App 457, 464; 436 NW2d 389 (1988); Struble v Lacks Industries, Inc, 157 Mich App 169, 175; 403 NW2d 71 (1986). Initially, we note that the jury did not err in finding that there was a just-cause contract and that defendants, by demoting plaintiff for his failure to comply with policy decisions which plaintiff claimed would have violated the code of professional conduct, breached that contract. In a special jury form, the jury found that defendants’ policy manual and pamphlets had in fact created a contract to terminate for just cause. The jury also found that defendants did not have just cause to demote plaintiff and that defendants constructively discharged plaintiff by making the conditions of plaintiff’s work so intolerable that plaintiff felt compelled to leave. We are unpersuaded by defendants’ argument that the trial court erred in failing to direct a verdict for defendants on the constructive discharge claim. A constructive discharge occurs when an employer deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation or, stated differently, when working conditions become so difficult or unpleasant that a reasonable person in the employee’s shoes would feel compelled to resign. Fischhaber v General Motors Corp, 174 Mich App 450, 454-455; 436 NW2d 386 (1988). In reviewing a trial court’s ruling on a motion for a directed verdict or judgment notwithstanding the verdict, the testimony and all legitimate inferences that may be drawn from that testimony are viewed in the light most favorable to the plaintiff. Matras v Amoco Oil Co, 424 Mich 675, 681; 385 NW2d 586 (1986). If reasonable jurors could honestly reach different conclusions, the motion should be denied, and the case should be decided by the jury, because no court under such circumstances has authority to substitute its judgment for that of the jury. Id.; Feaheny v Caldwell, 175 Mich App 291, 299-300; 437 NW2d 358 (1989). We hold that the trial court did not err in refusing to grant defendants’ motion for a directed verdict. Evidence presented at trial indicated that plaintiff was demoted from the highest position in the legal staff to a lesser position with the resultant loss of authority and various benefits. Evidence indicated that plaintiff was essentially isolated from the operation of the law department. Further, after plaintiff’s demotion, plaintiff alleged that defendants continued to make unethical requests and demands concerning plaintiff’s representation of insureds. Under these facts, we find that a reasonable juror could find that plaintiff was constructively discharged. Defendants claim that plaintiff’s cause of action should be precluded by the general rule that a client has a right to discharge his attorney at any time, with or without cause. See comments to MRPC 1.16, formerly DR 2-110; Brown v Brown, How NP 94, 95 (Wayne CC, 1876). We disagree. In support of their position, defendants cite Herbster v North American Co, 150 Ill App 3d 21; 103 Ill Dec 322; 501 NE2d 343 (1986), and Willy v Coastal Corp, 647 F Supp 116 (SD Tex, 1986), rev’d on other grounds 855 F2d 1160 (CA 5, 1988). In Herbster, the plaintiff brought suit for retaliatory discharge against his employer, North American Company, stemming from the plaintiff’s refusal to destroy or remove inculpatory documents requested in lawsuits pending in federal court. The plaintiff was North American’s chief legal officer and vice-president in charge of the legal department under an employment-at-will contract. In Illinois the tort of retaliatory discharge is an exception to the general rule that an employee at will has no recourse for discharge. The tort requires that the employer discharge the employee in retaliation for the employee’s activities and that the discharge be in contravention of clearly mandated public policy. The Illinois court granted summary judgment for North American on the basis of the attorney-client relationship. The Illinois Court of Appeals affirmed, refusing to extend the tort of retaliatory discharge to cases involving general in-house counsel. The Illinois Court of Appeals noted that the right to terminate is a necessary aspect of the attorney-client relationship and a preventive measure against the evils created by any friction or distress between an attorney and his client. Likewise, in Willy, the federal district court held that an in-house attorney is required to withdraw from employment when a client elects to terminate the attorney-client relationship. In that case, the court granted the defendant’s motion to dismiss a cause of action for wrongful termination from the plaintiffs employment as in-house counsel. The plaintiff alleged that he was fired because he required the defendant to comply with environmental laws. The Willy court held that the public policy exception, which creates a cause of action for retaliatory discharge in the context of an employment-at-will contract, does not apply to the termination of in-house attorneys. The Willy court noted that the ethical canons and the disciplinary rules set forth the standards for attorneys to follow and that they require an attorney presented with ethical conflicts to withdraw from representation. Thus, the Willy Court declined to extend the retaliatory discharge claim to include the wrongful termination of in-house attorneys. However, the appeals court of New Jersey, in Parker v M & T Chemicals, Inc, 236 NJ Super 451; 566 A2d 215 (1989), held that the New Jersey Whistleblower’s Act compels an employer to pay damages to an employee-attorney who is wrongfully discharged or mistreated for any reason which is violative of law, fraudulent, criminal, or incompatible with a clear mandate of New Jersey public policy concerning public health, safety, or welfare. Id. at 220. Thus, Parker held that the attorney-client relationship was not a bar to recovery on the basis of a retaliatory discharge claim. We distinguish the Willy, Herbster, and Parker opinions. These cases dealt with the question whether the state will recognize a public policy exception to the typical employment-at-will contract. In the present case, the jury found a just-cause contract and a breach of that contract. The determination of the existence of a public policy exception to an employment-at-will contract, as discussed in Willy, Herbster, and Parker, is a different inquiry from the establishment of a breach of a just-cause contract. The present case involves the creation of contractual rights by the parties, not the imposition of restrictions on employment termination on the basis of public policy grounds. Further, we decline to adopt a complete bar to suits brought by an attorney for wrongful termination and breach of a just-cause contract on the basis of the attorney-client relationship. The general rule that a client has the right to discharge his attorney at any time, with or without cause, does not affect the present action for breach of contractual rights. Although at the time of plaintiffs demotion and constructive discharge DR 2-110 required that an attorney withdraw from employment if he knows or if it is obvious that his continued employment will result in a violation of a disciplinary rule, the present case does not simply involve an attorney-client relationship between plaintiff and Auto Club. In many ways, plaintiff, in his relationship as supervisor of the legal staff and subsequently as supervisor over lawsuits involving catastrophic injury, was an attorney for the insureds. As such, he had a duty of loyalty and zealous representation to the insured client alone. American Employers’ Ins Co v Medical Protective Co, 165 Mich App 657, 660; 419 NW2d 447 (1988). In this role, plaintiffs "sole loyalty and duty is owed to the client alone.” Atlanta Int’l Ins Co v Bell, 181 Mich App 272, 274; 448 NW2d 804 (1989). The Bell Court summarized: [T]he fact remains that an insurance defense attorney represents the insured and not the insurance company. The only attorney-client relationship which exists is between the attorney and the insured client. Indeed, whenever the interests of the insured and the insurance company differ, the attorney’s ethical obligation is to pursue the interests of the insured client the attorney is representing and not the interests of the insurance company who pays the bill. . . . Indeed, the insurance company’s relationship is, in reality, with its insured; that is, the insurance company is obligated to pay the attorney fee incurred by its insured in defending litigation covered by an applicable insurance policy. The fact that an insurance company may directly pay the attorney fee rather than merely reimbursing its insured does not affect the nature of the attorney-client relationship nor does it change the fact that the attorney represents the insured client and only owes a duty to that insured client. [Bell, supra at 274-275, citation omitted.] However, it should also be noted that in some respects plaintiffs relationship with Auto Club was as counsel for Auto Club. Auto Club’s legal department represented Auto Club in first-party cases, i.e., where a policyholder sues Auto Club, seeking benefits under an insurance contract. Plaintiff also acted as in-house counsel who advised management on the operation of the legal department in supervising attorneys who represented various policyholders in separate actions. Finally, we note that plaintiff was also a supervisor acting in an administrative role. In this sense, plaintiff did not

CARLSON v HUTZEL CORPORATION OF MICHIGAN Docket No. 102776. Submitted February 5, 1990, at Detroit. Decided May 7, 1990. Patricia Carlson and other nonunion nursing administrators for Hutzel Corporation of Michigan doing business as Hutzel Hospital brought an action against the hospital in the Wayne Circuit Court, alleging constructive discharge from employment in breach of their just-cause employment contracts and in violation of public policy. Defendant hospital laid off several unionized licensed practical nurses and reassigned plaintiffs, who were registered nurses, to jobs of performing or supervising patient care. Plaintiffs resigned rather than accept reassignment. Following the presentation of plaintiffs’ case, the court dismissed the claim of violation of public policy. The jury returned a verdict for plaintiffs and the court, Charles S. Farmer, J., entered a judgment for plaintiffs. Defendant appealed and plaintiffs cross appealed the dismissal of their public policy claim. The Court of Appeals held: 1. Plaintiffs’ claims are not preempted by the National Labor Relations Act. 2. Defendant’s unilateral change of a written policy statement to provide for binding arbitration in cases of disputes over discharge of employees was effective upon notice to employees and did not require the assent of the employees to become part of the employment contract. Thus, plaintiffs should have submitted their claims to arbitration. Reversed. 1. Conflict of Laws — Preemption — Labor Relations. State law is not preempted by the National Labor Relations Act where the conduct at issue is of only peripheral concern to the federal law or touches interests deeply rooted in local feeling and responsibility; in determining whether state law is preempted by the National Labor Relations Act, the court should balance the state’s interest in regulating or promoting a remedy for the conduct against the intrusion into the National Labor Relations Board’s jurisdiction and the risk that the state’s determination will be inconsistent with provisions of the National Labor Relations Act. References Am Jur 2d, Labor and Labor Relations §§ 922, 940, 1727, 1830, 1894-1896, 2003. See the Index to Annotations under Arbitration and Award; Discharge from Employment or Office; Labor and Employment; Preemption. 2. Labor Relations — Policy Statements — Unilateral Changes. Where policy statements by an employer give rise to enforceable contract' rights of employees without mutual consent, an employer may unilaterally change his policy and it will be effective upon notice to the employees. Mueckenheim & Mueckenheim, P.C. (by Robert C. Mueckenheim), for plaintiffs. Dykema Gossett (by Charles C. DeWitt, Terrence E. Haggerty and Susan E. Mason), for defendant. Before: Sullivan, P.J., and Doctoroff and J. W. Fitzgerald, JJ. Former Supreme Court justice, sitting on the Court of Appeals by assignment. Sullivan, P.J. This is a wrongful discharge case. Plaintiffs were nonunion nursing administrators at defendant Hutzel Hospital. The only claims pertinent to this appeal are plaintiffs’ claims that defendant constructively discharged them in breach of their alleged just-cause employment contracts and in violation of public policy. Only the former claim was submitted to the jury, which returned verdicts in favor of plaintiffs. The latter claim was dismissed by the trial court on defendant’s motion for a directed verdict following plaintiffs’ case in chief. Defendant now appeals, raising several issues. We reverse the jury verdicts because we conclude that the grievance and arbitration procedure was a part of plaintiffs’ employment contract and, as such, was plaintiffs’ sole remedy. Because of our resolution of that issue, we need not reach plaintiffs’ issues on cross appeal. Defendant hospital was experiencing severe financial problems in 1983. To help alleviate these problems to some extent, Frank Iacobell, president and chief executive officer at defendant hospital, devised a plan whereby several unionized licensed practical nurses would be laid off. In turn, the nursing administrators and educators who were registered nurses, including plaintiffs, would be assigned to work on hospital floors either caring for patients or overseeing patient care. Plaintiffs resigned rather than implement what they believed to be Iacobell’s plan because they did not feel competent to care for patients. i The first issue raised by defendant is whether plaintiffs’ claims are preempted by the National Labor Relations Act, 29 USC 151 et seq. We conclude that they are not. Defendant argues that plaintiffs’ claims are preempted because they concern an activity that is actually or arguably protected or prohibited by the nlra. San Diego Building Trades Council v Garmon, 359 US 236, 245; 79 S Ct 773; 3 L Ed 2d 775 (1959). However, if the conduct at issue "is of only peripheral concern to the federal law or touches interests deeply rooted in local feeling and responsibility,” Belknap, Inc v Hale, 463 US 491, 498; 103 S Ct 3172; 77 L Ed 2d 798 (1983), then the state law claims survive. See also 359 US 243-244. "The court balances the state’s interest in regulating or promoting a remedy for the conduct against the intrusion in the nlrb’s jurisdiction and the risk that the state’s determination will be inconsistent with provisions of the nlra.” Bullock v Automobile Club of Michigan, 432 Mich 472, 493; 444 NW2d 114 (1989), reh den 433 Mich 1201 (1989). Moreover, in Sears, Roebuck & Co v Carpenters, 436 US 180, 197; 98 S Ct 1745; 56 L Ed 2d 209 (1978), the United States Supreme Court announced the following focus for a preemption analysis: The critical inquiry, therefore, is not whether the State is enforcing a law relating specifically to labor relations or one of general application but whether the controversy presented to the state court is identical to ... or different from . . . that which could have been, but was not, presented to the Labor Board. For it is only in the former situation that a state court’s exercise of jurisdiction necessarily involves a risk of interference with the unfair labor practice jurisdiction of the Board which the arguably prohibited branch of the Garmon doctrine was designed to avoid. Here, even though defendant’s conduct is arguably prohibited by the nlra, it nevertheless can be challenged in state court to the extent that it forms the basis of plaintiffs’ claims. Plaintiffs’ breach of contract claim involves a significant state interest because this state has a substantial interest in adjudicating contractual disputes arising within its jurisdiction. See Belknap, 463 US 511-512, and Roberts v Automobile Club of Michigan, 138 Mich App 488, 497; 360 NW2d 224 (1984), lv den 424 Mich 867 (1986), cert den sub nom Automobile Club of Michigan v Roberts, 479 US 889; 107 S Ct 289; 93 L Ed 2d 263 (1986). Furthermore, because plaintiffs’ public policy claim alleges that defendant’s conduct violated Michigan public policy and threatened the health, safety and welfare of patients at defendant hospital, that claim also concerns a significant state interest. On the other side of the scale, we note that exercise of this state’s jurisdiction would not interfere with the jurisdiction of the nlrb. We so conclude because the controversy presented to the state court was different from that which might have been, but was not, presented to the nlrb. Plaintiffs’ breach of contract claim required the jury to determine whether plaintiffs’ employment contract with defendant provided that they could be discharged only for just cause, whether defendant had just cause to discharge plaintiffs and whether defendant made plaintiffs’ working conditions so intolerable that they justifiably resigned. See, e.g., Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), reh den 409 Mich 1101 (1980), and Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785, 796; 369 NW2d 223 (1985). Plaintiffs’ public policy claim, had it gone to the jury, would have required the jury to determine whether defendant’s conduct violated the public policy of this state. On the other hand, the controversy which could have been presented to the nlrb under the nlra would have required the nlrb to determine whether the act of replacing laid-off union employees with their nonunion supervisors was an unfair labor practice. In other words, the issue in the state law controversy was not whether defendant’s conduct was an unfair labor practice, the unfair labor practice having to do with the fact that the laid-off lpns were unionized but, rather, was whether defendant’s conduct violated an alleged employment contract or public policy, which issue is unrelated to the fact that the lpns were unionized. Therefore, we conclude, plaintiffs’ claims were not preempted by federal law. n The second issue defendant raises on appeal is whether an employer can unilaterally change a written policy statement to provide for a binding arbitration procedure without having first obtained the consent of the existing employees to whom the procedure applies. We answer in the affirmative. Therefore, plaintiffs’ wrongful discharge claims were barred because plaintiffs failed to use the arbitration procedure. The trial court thus erred by failing to grant defendant’s motion for accelerated judgment on this basis. (Prior to trial, defendant had moved for accelerated judgment under GCR 1963,116.1[2].) In Toussaint, supra, our Supreme Court held that "an employer’s express agreement to terminate only for cause, or statements of company policy and procedure to that effect, can give rise to rights enforceable in contract.” Id., p 610. See also id., pp 598-599, 613, 614-615, 618-619, 620-621. Although those rights are enforceable in contract, they do not necessarily arise under general contract principles. As the Toussaint Court explained, once an employer establishes personnel policies or procedures and makes them known to employees, the employment relationship is presumably enhanced. Preemployment negotiations need not take place. Nor do the parties’ minds have to meet on the subject. It is enough that the employer opted to create an environment in which the employee believes that the personnel policies and practices, whatever they may be, are "established and official at any given time, purport to be fair, and are applied consistently and uniformly to each employee. The employer has then created a situation 'instinct with an obligation.’ ” Toussaint, supra, p 613. The policy statements can give rise to contractual rights even though the parties did not mutually agree that the policy statements would create contractual rights in the employee. Toussaint, supra, pp 613-615. Moreover, our Supreme Court recently held that, when contract rights have arisen outside the operation of normal contract principles, the application of strict rules of contractual modification may not be appropriate. In re Certified Question, 432 Mich 438, 447-448; 443 NW2d 112 (1989). In In re Certified Question, the plaintiff argued that the employer’s attempt to change an existing discharge-for-cause policy to an at-will policy was no more than a proposal for modification of the contract for which mutual assent was required. Our Supreme Court rejected this argument because the contractual obligation which the plaintiff argued may not be modified without mutual assent could have arisen without mutual assent under a Toussaint theory. Under Toussaint, written policies are enforceable because of the benefit the employer derives by establishing such policies. When the employer changes its discharge-for-cause policy to one of employment at will, the employer’s benefit is correspondingly extinguished, as is the rationale for the court’s enforcement of the discharge-for-cause policy. In re Certified Question, supra, pp 447, 453-454. Therefore, the In re Certified Question Court held, an employer can unilaterally change a written discharge-for-cause policy to one of termination at will, provided the employer gives affected employees reasonable notice of the policy change. Id., p 441. An employer can provide a procedure for resolution of disputes concerning the discharge of employees. Toussaint, supra, p 624; Dahlman v Oakland University, 172 Mich App 502, 505; 432 NW2d 304 (1988), lv den 431 Mich 911 (1988). Defendant herein provided for such a procedure by way of a written supplement amending the previously issued employee manual. This procedure was a part of the employment contract of employees hired after the effective date of the procedure by virtue of the fact that it was included in the employee manual. Mutual assent was not necessary. See, e.g., Dahlman, supra, p 505, and Vander Toorn v Grand Rapids, 132 Mich App 590, 598; 348 NW2d 697 (1984), lv den 424 Mich 886 (1986). Under the reasoning of In re Certiñed Question, it also became a term of employment of existing employees as soon as they received notice of the change. Mutual assent was not required. Therefore, the trial court erred by failing to grant defendant’s motion for accelerated judgment. We therefore reverse the jury verdicts which were rendered in favor of plaintiffs. Reversed._ The evidence presented at trial with regard to what Iacobell’s plan actually was and the reason plaintiffs resigned was conflicting. However, for the purpose of the issues we address on appeal, it is not necessary to note and explain the conflicts. Our brief statement of facts is suiflcient. We agree with the trial court that the arbitration procedure was mandatory notwithstanding the fact that the court ultimately sent the issue to the jury and the jury found that the plaintiffs did not have to follow the procedure.

<p>Error to the Court of Common Pleas of Yorlc county: Of May Term 1879, No. 114.</p> <p>Trover and conversion by F. E. Metzgar and Rufus Krug against John M. Hershey, Henry Swartz and George T. Forrey. The defendants pleaded “not guilty.”</p> <p>In 1870 Forrey purchased from Metzgar and Krug, a farm in York county, and gave to them, in part payment of purchase-money, a judgment-note for $4000. A writ of fi. fa. was issued to January Term 1874, and all the defendant’s stock of horses, cattle, farming implements and grain in the ground, and also the real estate, were levied upon. When the sheriff came with his writ, the defendant claimed the benefit of the exemption law, demanded an appraisement of $300 worth of personal property, and elected to take one field of wheat growing in the ground and one field, partly wheat and partly rye, growing in the ground, as part of his exemption. These growing crops had been levied on under the fi. fa., and they were appraised by the appraisers summoned by the sheriff, and set apart to him. Krug, one of the plaintiffs, was present and made no objection, nor was any motion made afterwards in court to set aside the appraisement. All the grain growing on the premises was levied upon as personal property, and the remaining field of wheat, not taken by Forrey, was sold at the sale of the personal property. After the condemnation of the real estate, a venditioni was issued and the real estate was sold to Metzgar and Krug.for $4000, the amount of their judgment as entered. When in the following summer, Forrey went to cut his wheat and rye, he was met by the claim of Metzgar and Krug, to the growing grain, which had been appraised to them. Nevertheless, along with Hershey and Swartz, Forrey cut the grain and removed it from the premises. The plaintiffs below then brought this suit to recover the value, alleging that the grain passed to them by the sale of the land.</p> <p>At the trial, before Eisher, P. J., the plaintiffs submitted the fol