Constructive Discharge Cases

Modern Continental/Obayashi vs. Massachusetts Commission Against Discrimination & another. Suffolk. January 6, 2005. September 7, 2005. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, & Sosman, JJ. Anti-Discrimination Law, Sex. Employment, Discrimination, Sexual harassment. This court concluded that an employer may be held liable for failing to respond reasonably to acts of sexual harassment of which it is aware or reasonably should be aware, even though the harassing acts are perpetrated by someone who is not an agent or employee of the employer [104-108], and that the standard for imposing liability in such an instance is whether the employer took prompt, effective, and reasonable remedial action once it realized or should have realized that one of its employees was being victimized by a third party’s harassment [108-110], In a civil action seeking review of a decision of the Massachusetts Commission Against Discrimination (commission) finding an employer liable for sex discrimination when it failed to protect one of its employees from harassment by employees of one of the employer’s subcontractors, the judge erred in granting judgment on the pleadings in favor of the commission, where, as a matter of law, the remedial steps that the employer undertook satisfied its obligation to take prompt action that was reasonably calculated to end the harassment being perpetrated on its employee. [110-118] Civil action commenced in the Superior Court Department on March 26, 2002. The case was heard by Carol S. Ball, J., on a motion for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Richard D. Wayne for the plaintiff. Beverly I. Ward for Massachusetts Commission Against Discrimination. James B. Cox for Whatleigh Edmands. John D. O’Reilly, III, Karl J. Gross, & James F. Grosso, for Associated General Contractors of Massachusetts, Inc., & others, amici curiae, submitted a brief. Whatleigh Edmands. Sosman, J. Modem Continental/Obayashi (Modem) sought judicial review of a decision by the Massachusetts Commission Against Discrimination (MCAD) finding Modem liable for sex discrimination when Modern failed to protect one of its employees from harassment by employees of one of Modem’s subcontractors. A judge in the Superior Court affirmed the MCAD’s decision, and Modem appealed. We transferred the case to this court on our own motion. Although we reject Modem’s contention that an employer can never be liable for sexual harassment perpetrated by outside third parties, we agree that, on this record, Modern satisfied its obligation to its employee by making reasonable efforts to remedy the harassing conduct. The MCAD’s decision to the contrary is not supported by substantial evidence, and instead reflects the imposition of an erroneous standard higher than reasonableness. We therefore reverse the judgment. 1. Facts and procedural background. On January 18, 1994, Whatleigh Edmands, a female employee of Modern, filed a complaint with the MCAD charging Modem with sex discrimination based on sexual harassment. She subsequently amended her complaint to add Mohawk Construction (Mohawk), one of Modem’s subcontractors, as a respondent, but ultimately settled her claim against Mohawk. She amended her complaint again to add a claim that she was constructively discharged from Modem as a result of a hostile work environment. The investigating commissioner found probable cause to support the claim of sexual harassment, but no probable cause to support the claim of constructive discharge. The matter went forward to a public hearing solely on the sexual harassment claim. The hearing commissioner’s findings on that claim are as follows, supplemented by uncontested details from the record. Modem was the successful bidder on a public works project to prepare the eastern approach to the Ted Williams Tunnel, a portion of the Central Artery/Tunnel project (the so-called “Big Dig”). Modem subcontracted the iron work on the project to Mohawk. As a condition of its contract, Modem and all of its subcontractors entered into a project labor agreement with the construction trades unions, which required, inter alla, that all craft employees (including foremen) be union members, that all such employees be hired through exclusive union hiring halls, and that workers not be disciplined or terminated except for “just cause.” Whatleigh Edmands, an apprentice carpenter, was hired by Modem through the carpenters’ union in October, 1993. She worked with four or five other caipenters on a crew supervised by foreman Charles Cofield. Numerous other tradespeople were on the site, including ironworkers employed by Mohawk. On November 3, 1993, Edmands was using one of the portable toilet facilities on the site when she heard scratching noises outside. Looking up, she saw someone peering through an air vent near the roof. The peeper was wearing a brown hard hat of a type worn exclusively by the ironworkers. When Edmands tried to exit, she found herself unable to open the door, as a tie wire had been fastened around the toilet enclosure. She screamed, and someone cut the tie wire to let her out. As she came outside, she saw approximately twelve men in the area. She yelled at them, demanding to know who had spied on her and tied her in the portable toilet facility. None of them responded. Later that day, Edmands informed Cofield of the incident, and Cofield assured her that he would “take care of this.” The following day, Richard Ell, the steward for the carpenters’ union, came to see Edmands about the incident, and, the next day, returned to see Edmands with Jay Kennedy, the steward for the ironworkers’ union. Ell informed Edmands that one of the ironworkers, Joe Roselli, had admitted responsibility for tie wiring Edmands into the toilet facility. Ell asked Edmands if she wanted to have Roselli apologize in person, suggesting that seeing him might enable her to identify him as the person who had peered in through the vent. Although Edmands said that she did not wish to speak to Roselli, Roselli was brought over and made his apologies to her. He admitted that he was the one who had fastened the tie wire, but claimed it was a prank that he intended to play on another ironworker, and that he had thought someone else was using the toilet facility at the time. Roselli denied that he had looked through the vent. After hearing from Roselli, Ell asked Edmands if she could identify Roselli as the person who had peered in through the vent. She could not. At the hearing, Edmands testified that Roselli was not the peeper. On November 8, five days after the incident, Edmands and Ell met with Modem’s project manager, John McNamara. McNamara indicated that he would speak with the ironworkers’ business agent to have Roselli removed from the site. McNamara also suggested that Edmands view the videotapes of the work site to see if those tapes would help her identify the person who had peered in through the vent. Thereafter, McNamara contacted Mohawk’s president, requesting that Mohawk investigate the matter. He also asked Mohawk to transfer Roselli off the job site, but Mohawk refused to remove him or to discipline him. On November 10, Edmands noticed that the portable toilet facility had been defaced with graffiti, consisting of the word “HERS” written above a drawing of an eye and, below the eye, a cmde caricature of female genitalia. Edmands understood that the graffiti was directed at her, and that it referred to the prior week’s incident. She encountered Cofield and Ell a short time later; Cofield again promised to “take care of this,” and the graffiti was removed. Following up on McNamara’s suggestion about the videotapes, Edmands reviewed the tapes on November 15. However, the camera angle was such that, despite reviewing the tapes twice, Edmands still could not make any identification. Two days later, George Coblyn, Modem’s equal employment opportunity officer, spoke with Edmands and asked her to give him a written statement concerning both the original peeping and tie wiring incident and the graffiti incident. She provided him with such a statement two weeks later. That statement contained no identification of either the perpetrators or of any potential witnesses. Coblyn also contacted employees and officials at Mohawk. They refused to provide him with any information concerning the identity of the perpetrator of either the peeping incident or the subsequent graffiti. On November 23, Coblyn gave a brief presentation on the subject of sexual harassment, including a warning that sexual harassment would not be tolerated at the site, at a regular gathering of workers, managers, and union representatives referred to as “tool box talks.” However, very few persons attended that particular tool box talk. Without Edmands’s knowledge, her union initiated a grievance with respect to these incidents, and on December 7, she was called to attend a step one grievance meeting. In addition to various officials from Modem, the meeting was attended by the ironworkers’ union business agent, Sonny Oliver; the ironworkers’ steward, Jay Kennedy; and Roselli. Oliver, on behalf of the ironworkers, dominated the meeting. Oliver denied that anyone had peered into the toilet facility while Edmands was using it. He also insisted that the facility had been shut with a tie wire in order to prepare for its removal by a crane (a version contrary to Roselli’s prior admission that he had tie wired the facility as a prank). McNamara repeated his request that Roselli be transferred off the project. At that, the ironworkers threatened to strike if Roselli were removed. Oliver also raised issues concerning the cleanliness of the toilet facilities. There ensued some discussion concerning the security and cleaning of the facilities, resulting in a “general agreement” that certain of the toilets would be designated for exclusive use by female workers (instead of being entirely unisex, as they had been until that point), and that they would be separated from the men’s toilets, set off by fencing, and secured with padlocks. However, from the date of the original November 3 incident onward, Edmands had opted to use the bathroom facilities at a building one-quarter mile away, and she continued to do so even after these additional security measures were later instituted. Although unable to convince Mohawk to remove Roselli, and unable to uncover the identity of any other perpetrator, McNamara revised the work schedule at the site so that iron work would be done at a different location (some 500 to 700 yards from where Edmands worked) and on a different shift. Although Edmands still would encounter Roselli (and other ironworkers) at shift changes, she would not be working with ironworkers in the immediate vicinity. McNamara had been skeptical of the efficacy of padlocking the newly-designated female toilet facilities, but he carried through with the ordering of separate facilities, the placement of signage, the installation of padlocks, and the issuance of padlock keys to female employees. Within a few weeks, the padlocks on the women’s toilets disappeared. Some fencing was erected, but quickly fell down or was removed. And, instead of placing the facilities in separate locations, the women’s toilets were frequently placed side by side next to the men’s toilets. In February, 1994, a step two grievance meeting was held, attended by Edmands, officials from the carpenters’ union, and officials from Modem. Although she was not using the facilities in any event, Edmands complained that Modem had failed to carry through on its agreement to separate, fence, and lock the women’s portable toilets. Modem took the position that fencing had been a suggestion at the prior meeting, but not an agreed item. At the step two meeting, it was agreed that the female facilities would be kept separate, surrounded by fencing, and locked. In addition, a security monitor would be hired, assigned to report on any further problems, including any incidents of sexual harassment or graffiti. Finally, Modem confirmed that Roselli had been moved to a different location and different shift. Based on the results of the step two grievance meeting, the carpenters’ union, with Edmands’s agreement, decided not to take the matter to arbitration. On March 21, 1994, as Edmands was entering her work trailer, she encountered her foreman, Cofield, erasing graffiti. Edmands did not see the graffiti, but Cofield informed her that it had consisted of depictions of male and female genitals. By late March or early April, 1994, the task that ironworkers had been assigned at a different location and shift was completed. As a result, Roselli and the ironworkers returned to the day shift, working in a location near Edmands. Shortly thereafter, the monitor hired to patrol the toilet facilities discovered some graffiti in the men’s toilet facilities that referred to Edmands in vulgar terms, and brought it to Coblyn’s attention. (Edmands did not see it.) Coblyn in turn reported this new outbreak of graffiti to McNamara, who instructed him to draft a memorandum, to be distributed to all workers at the site over McNamara’s signature, responding to the incident. Thereafter, Coblyn supplied McNamara with the requested draft memorandum. Instead of distributing the notice drafted by Coblyn, McNamara drafted his own notice, which focused on the specific problem of vulgar graffiti. That notice was distributed to all workers with their paychecks. Later that month, Edmands told Coblyn that she was tired of working in an environment that made her “nervous and scared,” where people were “so angry at [her] for just wanting to work.” She also contacted her union and asked to be transferred to a different job site. Coblyn suggested that she could be transferred to work in a facility referred to as “the mill,” which was part of the same project but at a removed location. Although some workers considered the mill a better assignment (as it was a more comfortable indoor site with more amenities), Edmands considered the work at the mill to be less challenging and a less valuable experience than work in the field. She nevertheless agreed to the transfer. At the mill, Edmands’s foreman, Steve Pema, remarked that, in his view, women working outside the home were adversely affecting the economy. He then clarified that he was referring to women of his own age (i.e., of an age significantly older than Edmands). When Edmands reported these remarks to an equal employment opportunity officer, the officer told her that Pema’s inappropriate comments used to be worse. Edmands quit her job at Modem in May, 1994, and went to work for a technology company as a software engineer. The hearing commissioner found that the incidents were sexual in nature or, even if not explicitly sexual in nature, that they had been directed at Edmands because of her sex; that their cumulative effect was sufficiently severe that it impacted Edmands’s working environment and triggered a duty on the part of Modem to take action; and that Modem’s response to these incidents of harassment was inadequate. He therefore found Modem liable for sex discrimination, awarded Edmands $50,000 in damages for emotional distress, and ordered Modem to submit and implement a plan acceptable to the MCAD to train all of Modem’s Massachusetts employees concerning “the legal requirements of nondiscrimination in the workplace.” Modem appealed to the full commission, which affirmed the hearing commissioner’s decision in all respects and awarded Edmands attorney’s fees and costs. 2. Discussion, a. Employer’s liability for harassing acts committed by third parties. Modem contends that, as a matter of law, it cannot be held liable for the conduct of independent third parties over whom it did not have control. The only known perpetrators of the harassing acts at the project site were ironworkers employed by Mohawk; there was no evidence of any such acts committed by employees or agents of Modem. Modem’s argument relies on the literal wording of the statutory prohibition against sexual harassment: it is an unlawful practice “[f]or an employer, personally or through its agents, to sexually harass any employee” (emphasis added). G. L. c. 151B, § 4 (16A). Mohawk was an independent subcontractor, and Mohawk’s offending employees were not the “agents” of Modem. However, in addition to the prohibition set forth in § 4 (16A), Modem is also prohibited from discriminating against its own employees on the basis of sex (including discrimination with respect to the “conditions” of employment), G. L. c. 15IB, § 4 (1); and discrimination on the basis of sex includes sexual harassment, G. L. c. 151B, § 1 (18). An employer who passively tolerates the creation of a hostile working environment implicitly ratifies the perpetrator’s misconduct and thereby encourages the perpetrator to persist in such misconduct, whatever the employer’s precise legal relationship to the perpetrator. Moreover, acquiescence on the part of the employer effectively communicates to the victim of harassment that her employer does not care about the hostile environment in which she must work, a message that can only operate to exacerbate the adverse effects of that hostile environment. In this context, an employer who is not part of the solution inevitably becomes part of the problem. Bearing in mind that the statute “shall be construed liberally for the accomplishment of [its] purposes,” G. L. c. 151B, § 9, we decline to read it in a manner that would absolve an employer of all responsibility for a hostile work environment merely because that hostile work environment is attributable to persons who are not the employer’s own employees or agents. The MCAD guidelines on the subject of sexual harassment provide that an employer may, in some circumstances, be held liable for sexual harassment perpetrated by persons who are not employees of the employer. Massachusetts Commission Against Discrimination Guidelines: Sexual Harassment in the Workplace § IDLC (2002) (MCAD Guidelines). Specifically, liability may be imposed where the employer knew or should have known of the harassing conduct but “failed to take prompt, effective and reasonable remedial action.” Id. The MCAD Guidelines recognize that an employer may have less control over perpetrators who are not its own employees, and the factor of control is to be taken into consideration in determining whether the employer should be held liable: “The primary difference between employer liability for harassment perpetrated by co-workers and harassment committed by non-employees lies in the ability of the employer to control the conduct of the non-employees. The greater the employer’s ability to control the non-employee’s conduct, the more likely it will be found liable for that person’s unlawful harassment.” Id. Where the Legislature has expressly delegated to the MCAD the task of “formulat[ing] policies to effectuate the purposes” of G. L. c. 151B and given it authority to “adopt, promulgate, amend, and rescind rules and regulations” to implement the statute, G. L. c. 151B, §§ 2, 3 (5), we accord substantial deference to the MCAD’s interpretive guidelines. See Dahill v. Police Dep’t of Boston, 434 Mass. 233, 239 (2001), and cases cited. Here, the MCAD’s interpretation is a reasonable one, whereas the interpretation proposed by Modem would seriously undermine the objective of eliminating sexual harassment in the workplace. The MCAD’s interpretation is also consistent with a considerable body of Federal precedent interpreting comparable provisions of Title VII of the Civil Rights Act of 1964. Regulations of the Equal Employment Opportunity Commission (EEOC) interpreting Title VII recognize that an employer may be liable for sexual harassment perpetrated by third parties: “An employer may also b

WENDY WHITT v. HARRIS TEETER, INC. and RANDY SHULTZ No. 416A04 (Filed 1 July 2005) Employer and Employee— constructive wrongful discharge— sexual harassment — public policy — directed verdict for employer The decision by the Court of Appeals that the trial court erred by granting a directed verdict for defendant employer on a claim for constructive wrongful discharge in violation of public policy based upon sexual harassment is reversed for the reasons stated in the dissenting opinion that (1) a claim of constructive discharge based upon either a hostile work environment or in retaliation is not authorized under the public policy exception to the employee-at-will doctrine, and (2) even if a constructive discharge claim is so authorized, plaintiff presented insufficient evidence on the element of the claim that defendant employer’s handling of plaintiff’s complaints of sexual harassment amounted to a deliberate attempted to make her workplace so intolerable that she would resign. Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 165 N.C. App. 32, 598 S.E.2d 151 (2004), reversing a judgment entered upon a directed verdict on 2 April 2002 by Judge Sanford L. Steelman, Jr. in Superior Court, Forsyth County. Heard in the Supreme Court 18 May 2005. Kennedy, Kennedy, Kennedy and Kennedy, L.L.P., by Harvey L. Kennedy, Harold L. Kennedy, III, and Annie Brown Kennedy, for plaintiff-appellee. Womble Carlyle Sandridge & Rice, by Lucretia D. Guia, and J. Mark Sampson, for defendant-appellant Harris Teeter, Inc. Patterson Harkavy LLP, by Burton Craige, for North Carolina Association of Women Attorneys, North Carolina Academy of Trial Lawyers, Southern States Police Benevolent Association, Inc., North Carolina Police Benevolent Association, Inc., and North Carolina Association of Educators; Suzanne Reynolds for North Carolina Association of Women Attorneys, and Charles E. Daye for North Carolina Academy of Trial Lawyers, amici curiae. PER CURIAM. For the reasons stated in the dissenting opinion, the decision of the Court of Appeals is reversed. REVERSED.

MAGEE v DAIMLERCHRYSLER CORPORATION Docket No. 126219. Decided March 8, 2005. On application by the defendant for leave to appeal, the Supreme Court, after hearing oral argument on whether the application should he granted and in lieu of granting leave, reversed part of the judgment of the Court of Appeals and remanded the case to the circuit court for reinstatement of the order of summary disposition for the defendant. Jacquelyn V Magee brought an action in the Macomb Circuit Court against DaimlerChrysler Corporation, alleging sexual harassment, sex and age discrimination, retaliation, and constructive discharge from employment. The defendant moved for summary disposition, arguing that the action was barred by the statute of limitations because it was not brought within three years of any of the alleged acts of discrimination or retaliation. The trial court, James M. Biernat, Sr., J., granted the defendant’s motion. The Court of Appeals, Schdette, EJ, and Meter and Owens, JJ., affirmed the grant of summary disposition with regard to the constructive discharge claim and reversed the grant of summary disposition with regard to the other claims. Unpublished memorandum opinion, issued March 2,2004 (Docket No. 243847). The Court’s decision was based on the fact that the action was brought within three years of the date that the plaintiff resigned her employment. The defendant sought leave to appeal. In an opinion per curiam, signed by Chief Justice Taylor, and Justices Corrigan, Young, and Markman, the Supreme Court held,-. The Court of Appeals erred in concluding that the plaintiffs claims accrued on the date she terminated her employment as opposed to her last day of work. No discriminatory conduct is alleged to have occurred after the plaintiffs last day of work. The claims were not timely filed within three years of that date. The part of the Court of Appeals judgment that reversed part of the judgment of the trial court must be reversed and the case must be remanded to the trial court for reinstatement of the order granting summary disposition in favor of the defendant with regard to all the claims brought by the plaintiff. Justice Weaver, concurring, stated that she concurs in the result of the opinion per curiam because the applicable three-year period of limitations began to run when the plaintiff went on medical leave on September 12, 1998, and the plaintiffs claims were not filed within three years of that date. The trial court correctly granted summary disposition in favor of the defendant. Affirmed in part, reversed in part, and remanded to the circuit court. Justice Cavanagh, joined by Justice Kelly, dissenting, stated that the defendant’s failure to stop the harassment after the plaintiff made repeated complaints was discriminatory conduct. The conduct occurred during the three years that preceded the filing of the complaint; therefore, the complaint was timely filed. Tucker & Hughes, PC. (by Juanita Gavin Hughes), for the plaintiff. Cattel, Tuyn & Rudzewicz, PLLC (by Tomas A. Cattel and Debra A. Colby), for the defendant. PER CURIAM. In this case involving the Civil Rights Act, the Court of Appeals held that plaintiffs claims of sexual harassment, sex and age discrimination, and retaliation were timely filed, because the lawsuit was brought within three years of the date she resigned her employment with defendant. We conclude that plaintiffs claims were not filed within the limitations period because none of the alleged discriminatory or retaliatory conduct occurred within the three years that preceded the fifing of the complaint. We therefore reverse that part of the judgment of the Court of Appeals and remand the matter to the trial court for reinstatement of the trial court’s grant of summary disposition to defendant. i Plaintiff Jacquelyn Magee was an hourly production employee who began work for defendant Daimler-Chrysler in 1976. She went on medical leave for emotional distress on September 12, 1998, and, without first returning to work, resigned her job on February 2, 1999. On February 1, 2002, Magee filed a lawsuit under the Civil Rights Act, MCL 37.2101 et seq., claiming that she had been unlawfully discriminated against and harassed during most of her twenty-two years at Daimler-Chrysler. Magee’s complaint lists separate counts for sex harassment based on hostile work environment, sex harassment based on quid pro quo harassment, retaliation, sex discrimination, and age discrimination. In her complaint, Magee alleges that she suffered harassment from the 1980s until her last day of work on September 12, 1998, and that her supervisors periodically retaliated against her during this period as a result of her resistance to the harassment. Magee alleges that this constant harassment caused her to leave her job at DaimlerChrysler on September 12, 1998, and that she decided to resign on February 2, 1999, because she anticipated that the harassment would continue if she returned. DaimlerChrysler moved for summary disposition, asserting that Magee’s February 1, 2002, complaint failed to allege any discriminatory acts after September 12,1998, and that the complaint was therefore not filed within the three-year period of limitations applicable to Civil Rights Act claims, MCL 600.5805(10). The trial court initially denied DaimlerChrysler’s motion without prejudice, allowing Magee to amend her complaint to allege harassment or retaliation occurring up to her February 2, 1999, resignation. However, because Magee’s amended complaint continued to allege only harassment and retaliation through September 12, 1998, her last day of work, the trial court granted DaimlerChrysler’s motion and dismissed Magee’s complaint. Magee appealed the trial court’s ruling to the Court of Appeals, which relied on this Court’s recent decision in Collins v Comerica Bank, 468 Mich 628; 664 NW2d 713 (2003), to reverse the lower court’s dismissal of the harassment, retaliation, and discrimination claims. The Court of Appeals concluded that these claims were timely, because they were filed within three years of the date of Magee’s resignation. DaimlerChrysler then sought leave to appeal to this Court. After hearing oral argument from both parties on the application, this Court has now determined that the Court of Appeals misapplied Collins and erroneously reinstated Magee’s Civil Rights Act claims. ii In the absence of disputed facts, whether a cause of action is barred by the applicable statute of limitations is a question of law, which this Court reviews de novo. Boyle v Gen Motors Corp, 468 Mich 226, 229-230; 661 NW2d 557 (2003). Likewise, this Court reviews de novo rulings on summary disposition motions. Neal v Wilkes, 470 Mich 661, 664; 685 NW2d 648 (2004). hi In Collins, supra at 633, this Court held that a cause of action for discriminatory termination does not accrue until the date of termination. The plaintiff employee, Gwendolyn Collins, was suspended pending an investígation; when the investigation was completed several weeks later, her employment was terminated. Within three years of her termination, Collins filed a complaint alleging that her termination was the result of race and gender discrimination. The Court of Appeals ruled that Collins’s suit was not timely under the three-year period of limitations because her causes of action accrued on the last day that she actually performed employment duties (as opposed to her later termination date). This Court disagreed with the Court of Appeals last-day-worked analysis and reversed, holding that a claim for discriminatory discharge cannot arise until a claimant has actually been discharged. Id. Relying on Collins, the Court of Appeals in this case reasoned that Magee’s claim also accrued on her termination date as opposed to her last day of work. The Court acknowledged that Magee resigned, and was not terminated. But it found significant that “her last day of work was followed by a period in which she was on a medical leave of absence” and that she was employed by DaimlerChrysler while on leave. Accordingly, it concluded that her causes of action, if any, arose on February 2, 1999. The Court of Appeals reliance on Collins to reinstate Magee’s claims of sexual harassment, sex and age discrimination, and retaliation is misplaced. Magee was never terminated from her employment and does not allege discriminatory termination. She bases her Civil Rights Act claims on alleged discriminatory conduct that occurred before her leave of absence. Indeed, when given a chance to amend her complaint to plead claims falling within the period of limitations, Magee was unable to do so. Collins, a discriminatory termination case, simply does not apply in this situation. To determine whether Magee’s claims were timely filed, we look to MCL 600.5805(10), which establishes that the applicable period of limitations is three years from the date of injury. Because Magee alleged no discriminatory conduct occurring after September 12, 1998, the period of limitations on Magee’s claims expired, at the latest, three years from that date, or by September 12, 2001. Accordingly, as the trial court held, Magee’s February 1, 2002, complaint was not timely filed. The dissent argues that the defendant violated the Civil Rights Act within the three years preceding the filing of plaintiffs claim by failing to “prevent future harassment.. ..” Post at 115. This interpretation of the Civil Rights Act amounts to a continuing violations doctrine in which an employer is continuously liable from the time it or its agent violates the act until the time that violation is remedied by the employer. Thus, in Justice CAVANAGH’s view, a plaintiff subjected to a hostile work environment on December 31, 2005, may file a timely complaint in December 2030 if the employer has failed to remedy the sexual harassment in the ensuing twenty-five years. This theory renders nugatory the period of limitations established by the Legislature in MCL 600.5805(10). It is therefore a theory we must reject. For these reasons, we reverse the relevant part of the judgment of the Court of Appeals and remand this case to the Macomb Circuit Court for reinstatement of the order granting DaimlerChrysler’s motion for summary disposition. Taylor, C. J., and Corrigan, Young, and Markman, JJ., concurred. Unpublished memorandum opinion, issued March 2, 2004 (Docket No. 243847). Magee’s complaint also includes a separate count alleging constructive discharge. The trial court dismissed this count, and the Court of Appeals affirmed the trial court’s ruling. Magee did not appeal, and the dismissal of that claim is not before this Court. Wickens v Oakwood Healthcare Sys, 465 Mich 53, 60; 631 NW2d 686 (2001). WEAVEE, J. (concurring). I concur in the result of the opinion per curiam that reverses the Court of Appeals judgment in part and remands the matter to the trial court for reinstatement of the trial court’s grant of summary disposition to defendant. Under the facts pleaded by plaintiff, the three-year period of limitations began to run when plaintiff went on medical leave on September 12, 1998, for emotional distress. Plaintiffs claims were required to be filed within three years of September 12, 1998. Because they were not, the trial court was correct to grant summary disposition to defendant. Therefore, I concur in the result of the opinion per curiam. MCL 600.5805(10). CAVANAGH, J. (dissenting). I disagree with the majority’s contention that defendant engaged in no discriminatory conduct during the three years that preceded the filing of plaintiffs complaint. Therefore, I must respectfully dissent. Plaintiff began working for defendant in 1976. Over the years, plaintiff complained of various incidents of harassment. Plaintiff complained that her foreman was making sexual advances toward her. When plaintiff was assigned to a different supervisor, her former foreman still worked in the same complex and continued to harass her. Because of the harassment, plaintiff was ordered by her psychiatrist to take an approximately four-month medical leave. When plaintiff returned from her medical leave, her former foreman was still working in the same complex as plaintiff. A subsequent foreman of plaintiffs also made sexual advances toward her, including intentionally touching plaintiffs breast. For an entire year, plaintiff also complained to defendant about a sign in the men’s restroom that referred to plaintiff in a derogatory and sexually suggestive manner. Because of the stress of the harassment she continued to suffer, plaintiff was ordered to take another medical leave of absence. While she was employed by defendant, plaintiffs union steward also made sexually suggestive comments about plaintiffs “ass” and touched her in an inappropriate manner. Plaintiffs coworkers made sexually suggestive comments about her body and began hitting her with cardboard sticks. When plaintiff asked her union steward to intercede, he just laughed and said, “Yea, hit that ass.” Plaintiff repeatedly complained to defendant, yet nothing was done. When plaintiff requested a transfer, her union steward told her that she could transfer if she had sex with him. Once plaintiff was transferred, the union steward told her that she “owed” him and he wanted her to have sex with him. He later stopped plaintiff from training for another position because she was not having sex with him. Plaintiff again complained to a foreman, but he said there was nothing he could do. Because of the stress plaintiff was suffering as a result of the harassment, plaintiff was then ordered to take a third medical leave. Because defendant took no steps to stop the harassment while plaintiff was on her third medical leave, she was forced to decide not to return to the harassing environment. Defendant’s discriminatory conduct in failing to take steps to prevent future harassment continued throughout plaintiffs medical leave. Requiring plaintiff to return to the harassing setting to work in the unchanged environment would be unreasonable and possibly dangerous to plaintiffs health, considering that her doctor had ordered three medical leaves because of the stress of the harassment. As plaintiff explained, in order to have even been considered for a possible transfer to another plant after having been out on her third harassment-related medical leave, she would have had to return to the plant she left and hope for a transfer, despite that her multiple complaints had garnered no response before or during her medical leave. Thus, for plaintiff to be able to try and leave the harassing environment, she would have had to return to work with the same men who harassed her and whose conduct necessitated that plaintiff take medical leaves in the first place, without any assurance that defendant would protect her. This case presents a unique set of circumstances because plaintiffs doctor-ordered medical leave was directly related to the harassment. Plaintiffs final medical leave was actually her third leave related to the stress of the harassment she suffered. Defendant maintained a hostile work environment despite plaintiffs repeated complaints. Defendant’s failure to stop the harassment after these complaints is, under the facts of this case, discriminatory conduct. Because this conduct occurred during the three years that preceded the filing of plaintiffs lawsuit, I find that her complaint was timely filed. Accordingly, I respectfully dissent. Kelly, J., concurred with Cavanagh, J.

WENDY WHITT, Plaintiff v. HARRIS TEETER, INC., and RANDY SHULTZ, Defendants No. COA03-335 (Filed 6 July 2004) Employer and Employee— wrongful discharge — sexual harassment — constructive discharge The trial court erred by granting a directed verdict for defendant on a claim for constructive wrongful discharge in violation of public policy based upon sexual harassment. Such a claim exists in North Carolina even though the discharge is constructive, and plaintiff presented sufficient evidence to survive a motion for a directed verdict. Judge McCullough dissenting. Appeal by plaintiff from judgment entered 2 April 2002 by Judge Sanford L. Steelman, Jr. in Superior Court, Forsyth County. Heard in the Court of Appeals 13 January 2004. Kennedy, Kennedy, Kennedy & Kennedy, L.L.P, by Harvey L. Kennedy and Harold L. Kennedy, III, for plaintiff appellant. Womble Carlyle Sandridge & Rice, PLLC, by Lucretia D. Guia and J. Mark Sampson, for defendant appellee Harris Teeter, Inc. WYNN, Judge. Plaintiff Wendy Whitt appeals from final judgment of the trial court entered upon directed vérdict in favor of Defendant Harris Teeter, Inc. Plaintiff argues she presented sufficient evidence that Defendant terminated her employment in violation of public policy, and that the trial court therefore erred in granting directed verdict to Defendant on her wrongful discharge claim. We conclude Plaintiff presented sufficient evidence to withstand Defendant’s motion for directed verdict, and we therefore reverse the judgment of the trial court. The pertinent facts of the instant appeal are as follows: On 20 November 2000, Plaintiff filed a complaint in Forsyth County Superior Court against Defendant and one of its employees, Randy Schultz. The complaint alleged that Schultz sexually harassed Plaintiff during her employment with Defendant, and that Defendant failed to take appropriate action to protect Plaintiff from such misconduct. Plaintiff further alleged that after she reported the sexual harassment, Defendant took retaliatory action against her, resulting in her eventual termination. Plaintiff set forth claims against Defendant for (1) intentional infliction of emotional distress; (2) negligent retention and supervision; (3) wrongful discharge in violation of public policy based on retaliation; and (4) wrongful discharge in violation of public policy based upon a hostile workplace environment. Plaintiffs case came for trial on 11 February 2002. In support of her claim for wrongful discharge, Plaintiff presented the following evidence: Plaintiff worked as a cashier at Defendant’s grocery store in Kernersville, North Carolina. Schultz, a fellow employee at the grocery store, began sexually harassing Plaintiff in July of 1999. Specifically, Schultz approached Plaintiff at her cash register several times per day on a daily basis and whispered in her ear such statements as: 1. “Let’s go get naked and rub down in baby oil.” 2. “That bright polish you’re wearing is giving me a hard-on.” 3. “I bet you could f — k like hell when you’re that mad.” 4. “If I catch you bent over like that again I might have to come and throw my rod.” 5. “If I’m Santa Claus, I have a lifetime lollipop when you want to sit on my lap.” Plaintiff could feel Schultz’s lips touching her ear as he made these comments. Plaintiff informed Schultz she was married, asked him to stop, and told him she thought he was “sick.” Schultz persisted in his objectionable behavior toward Plaintiff. Plaintiff testified that, whenever possible, she “would push [Schultz] off and try to move away from him.” Plaintiff could not always avoid Schultz, however, as he sometimes approached her while she assisted customers. Another cashier, Nell Williamson, regularly observed Schultz “leaning over up on [Plaintiff] and talking in her ear.” Williamson testified Plaintiff “would pull away or push the groceries down [the] side to get him away from her. If she didn’t have any customers, she would turn around and walk off.” According to Plaintiff, Schultz’s actions humiliated and degraded her and made her feel “helpless [and] trashy.” In October of 1999, Schultz approached Plaintiff from behind while she was standing near the time clock and “took his hand down the back of [her] back down, over [her] bra, down to the top of [her] pants, and threatened [her],” by stating “I’ll get you sooner or later.” Following this incident, Plaintiff became “frightened” and informed her family of Schultz’s behavior. After discussing the situation with her family, Plaintiff decided to report Schultz’s behavior to management. On 26 October 1999, Plaintiff informed her front-end manager, Jenny Poff, that Schultz had been sexually harassing her. Poff informed her that two other female employees had filed sexual harassment charges against Schultz, and she advised Plaintiff to contact the store manager, Mike Turner. Plaintiff met with Turner in his office later that afternoon, who told her “he would have to contact the Field Specialist, Shirley Morgan.” Turner told Plaintiff “he was sorry that [she] had to go through this and that this type of behavior would not be tolerated.” Turner did not ask Plaintiff for the details of the sexual harassment. Later that day, Plaintiff met with the field specialist, Shirley Morgan, who requested Plaintiff “write down the statements that had been said, the remarks” and informed her there would be an investigation, stating the store did “not tolerate this type of behavior.” Despite these meetings, Schultz continued making sexual comments to Plaintiff over the next several days. One week later, Schultz was promoted and entered a manager trainee program at a different store location in Charlotte, North Carolina. However, Schultz continued to regularly visit the Kemersville store and harass Plaintiff by whispering sexual remarks in her ear, winking at her, and licking his lips. Schultz told Plaintiff, “I’ll get you sooner or later” and “The green polish you’re wearing is making me homy.” On several occasions, Schultz followed Plaintiff to her home. As a result, Plaintiffs father, Jack Hodge, began accompanying Plaintiff to and from work. Hodge testified he observed Schultz following his daughter home on three occasions. Plaintiff met again with Turner and informed him of the continued harassment. She also informed Turner that Schultz had followed her home and had threatened her. Turner told Plaintiff “Well, as far as I know he’s not been banned from the store.” Turner informed Plaintiff he would contact Morgan, the field specialist. Later in November, Morgan met with Plaintiff and informed her that the investigation was over, that Schultz had denied everything, and that she could not corroborate Plaintiffs allegations. Morgan gave Plaintiff a copy of Defendant’s sexual harassment policy. Morgan did not discuss the details of her investigation with Plaintiff, nor did she acknowledge or discuss the continued additional instances of harassment of which Plaintiff had informed Turner. Following her meeting with Morgan, Plaintiff arranged to have a third meeting with Turner, which both Plaintiffs father and the store’s assistant manager, Mike Streicher, attended. After informing Turner that Schultz was still making the sexual comments, stalking her, following her home, physically touching her and making threatening phone calls, Turner replied, “harsh[ly] and unconcerned, ‘Wendy, what do you want me to do about it?’ ” Her father then asked Turner, “What are you going to do about it?” Turner “just raised up in his seat and stared out the front out of the glass window of his office.” Plaintiff testified Schultz again approached her in November as she stood at the store’s time clock. He pressed his entire body tightly against Plaintiff, reached around her and attempted to touch her breasts. Before he could touch her breasts, Plaintiff “slung him off.” Instead of going to Turner, Plaintiff contacted the field specialist directly. She told Morgan the sexual harassment was continuing and described the threats and stalking. Morgan informed her that the matter had been “thoroughly investigated” and the investigation was complete. Morgan offered no further assistance. As a result, Plaintiff filed a complaint with the Equal Opportunity Employment Commission. Between the third week of November 1999 and the end of December 1999, Defendant reduced Plaintiffs employment hours from thirty-seven hours to twenty-seven hours per week. Schultz continued to visit the store in December, making sexually offensive comments to Plaintiff several times per week. By this time, Plaintiff was experiencing panic attacks, crying spells, suicidal thoughts, depression, withdrawal, insomnia, nightmares, nervousness and felt “hopeless, helpless, and just totally degraded.” She was “an emotional basketcase.” Plaintiff sought medical treatment and was prescribed Prozac and Xanax. Her condition worsened, however, causing Plaintiff to resign from her position with Defendant in February of 2000. Upon giving her notice of resignation to the assistant manager, he stated “Well, we figured this is going to happen.” At the close of the evidence, the trial court granted Defendant’s motion for a directed verdict on Plaintiffs wrongful discharge claim pursuant to Rule 50(a) of the North Carolina Rules of Civil Procedure. On 27 February 2002, the jury rendered a verdict finding that Defendant was not liable for intentional infliction of emotional distress and negligent retention, and the trial court entered judgment accordingly. Plaintiff appealed. Plaintiff contends the trial court improperly granted Defendant’s motion for directed verdict in that she presented more than a “scintilla” of evidence to support her claim. For the reasons stated herein, we agree that directed verdict was improperly granted, and we reverse the judgment of the trial court. It is well established in North Carolina that in determining whether the evidence is sufficient to withstand a motion for a directed verdict, “the plaintiff’s evidence must be taken as true and all the evidence must be viewed in the light most favorable to her, giving her the benefit of every reasonable inference which may be legitimately drawn therefrom, with conflicts, contradictions, and inconsistencies being resolved in the plaintiff’s favor.” Bryant v. Thalhimer Brothers, Inc., 113 N.C. App. 1, 6, 437 S.E.2d 519, 522 (1993), disc. review denied, 336 N.C. 71, 445 S.E.2d 29 (1994). The trial court should deny the motion for directed verdict if there is more than a scintilla of evidence to support all the elements of the plaintiffs prima facie case. Id. In reviewing the grant of a directed verdict pursuant to Rule 50(a) of the Rules of Civil Procedure, our task is to determine whether the evidence, taken in a light most favorable to the plaintiff, was sufficient for submission to the jury. Stallings v. Food Lion, Inc., 141 N.C. App. 135, 136-37, 539 S.E.2d 331, 332 (2000). We must therefore determine whether Plaintiff presented sufficient evidence to support the elements of her claim for wrongful discharge in violation of public policy. I. Wrongful Discharge in Violation of Public Policy In Coman v. Thomas Manufacturing Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989), our Supreme Court adopted a public policy exception to the employee-at-will doctrine. Although at-will employment may be terminated “ ‘for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy. A different interpretation would encourage and sanction lawlessness, which law by its very nature is designed to discourage and prevent.’ ” Id. at 175, 381 S.E.2d at 447 (quoting Sides v. Duke University, 74 N.C. App. 331, 342, 328 S.E.2d 818, 826, disc. review denied, 314 N.C. 331, 333 S.E.2d 490 (1985), overruled in part on other grounds, Kurtzman v. Applied Analytical Industries, Inc., 347 N.C. 329, 493 S.E.2d 420 (1997)). To state a claim for wrongful discharge in violation of public policy, an employee has the burden of pleading that his “dismissal occurred for a reason that violates public policy.” Considine v. Compass Grp. USA, Inc., 145 N.C. App. 314, 317, 551 S.E.2d 179, 181, affirmed per curiam, 354 N.C. 568, 557 S.E.2d 528 (2001). “Public policy has been defined as the principle of law which holds that no citizen can lawfully do that which has a tendency to be injurious to the public or against the public good.” Coman, 325 N.C. at 175 n.2, 381 S.E.2d at 447 n.2. Although this definition of public policy “does not include a laundry list of what is or is not ‘injurious to the public or against the public good,’ at the very least public policy is violated when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes.” Amos v. Oakdale Knitting Co., 331 N.C. 348, 353, 416 S.E.2d 166, 169 (1992) (footnote omitted). There is no question that “the right to be free of sexual harassment in the workplace ... is implicated in our State declaration of public policy.” Guthrie v. Conroy, 152 N.C. App. 15, 19-20, 567 S.E.2d 403, 407 (2002); see also N.C. Gen. Stat. § 143-422.2 (2003) (declaring that “[i]t is the public policy of this State to protect. . . the right. . . of all persons to seek, obtain and hold employment without discrimination or abridgement on account of . . . sex”); Russell v. Buchanan, 129 N.C. App. 519, 500 S.E.2d 728 (employee suit alleging wrongful discharge in violation of Title VII and North Carolina public policy), disc. review denied, 348 N.C. 501, 510 S.E.2d 655 (1998). Our Supreme Court has ruled that the “ultimate purpose of . . . G.S. 143-422.2 and Title VII (42 U.S.C. 2000(e), et seq.) is the same,” and thus the statute is co-extensive with the federal statute, evaluated under the same standards of evidence and principles of law. Dept. of Correction v. Gibson, 308 N.C. 131, 141, 301 S.E.2d 78, 85 (1983). Title VII prohibits sexual harassment in the workplace. See 42 U.S.C. § 2000(e)(2)(a)(l) (providing that “it shall be an unlawful employment practice for an employer to fail or refuse to hire, discharge, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of such person’s gender”). Various state statutes provide protection against sexual harassment in the workplace and elsewhere. See, e.g., N.C. Gen. Stat. § 143-422.2 (above); N.C. Gen. Stat. § 115C-335.5 (2003) (prohibiting retaliation by any local board of education member against an employee who reports sexual harassment); N.C. Gen. Stat. § 115C-325 (2003) (addressing sexual harassment by career education employees); N.C. Gen. Stat. § 14-395.1(a) (2003) (classifying sexual harassment as a Class 2 misdemeanor). A discharge based on sexual harassment therefore offends the public policy of this State and may properly support a wrongful discharge claim in violation of public policy. Guthrie, 152 N.C. App. at 19-20, 567 S.E.2d at 407; Russell, 129 N.C. App. at 521, 500 S.E.2d at 730; see also Harrison v. Edison Bros. Apparel Stores, Inc., 924 F.2d 530, 534 (4th Cir. 1991) (holding that North Carolina’s public policy wrongful discharge doctrine was applicable to prohibit sexual harassment); Phillips v. J.P. Stevens & Co., Inc., 827 F. Supp. 349, 352-53 (M.D.N.C. 1993) (recognizing wrongful discharge claim in violation of public policy on the basis of sexual harassment). In the instant case, Plaintiff presented evidence tending to show that (1) she was sexually harassed in the workplace by a fellow employee; (2) she repeatedly reported such harassment to Defendant; (3) Defendant promoted the employee responsible for the sexual harassment; (4) the sexual harassment continued after Plaintiff reported the behavior to Defendant; (5) Defendant reduced Plaintiff’s employment hours by ten hours per week after she reported the harassment; (5) Plaintiff developed depression and other psychological conditions as a result of the sexual harassment, Defendant’s failure to effectively address such harassment, and Defendant’s actions following the report of sexual harassment; and (5) Plaintiff’s condition ultimately forced her to resign from her employment with Defendant. We conclude Plaintiff presented sufficient evidence that her termination of employment was predicated upon sexual harassment in violation of public policy. We must now examine whether Plaintiff’s evidence supports her claim that she was wrongfully discharged, where termination of employment was constructive rather than explicit. II. Constructive Discharge Whether an at-will employee may be constructively discharged in contravention of the public policy of our State remains unsettled. See Graham v. Hardee’s Food Systems, 121 N.C. App. 382, 385-86, 465 S.E.2d 558, 560-61 (1995) (indicating that although “North Carolina courts have yet to adopt the employment tort of constructive discharge,” assuming arguendo such a claim exists, the plaintiff’s evidence failed to establish an element of constructive discharge). In Coman, however, our Supreme Court implicitly recognized the viability of a wrongful discharge claim in violation of public policy where termination was constructive. The plaintiff-employee in Coman who refused to violate federal trucking regulations was not fired by his employer; rather, the employer reduced his salary by fifty percent. The Coman Court determined that the reduction in pay was “tantamount to a discharge” of the plaintiff, and went on to recognize the plaintiff’s termination as a wrongful discharge in violation of public policy. Id. at 173-74, 381 S.E.2d at 446. After Coman, our Supreme Court ostensibly confirmed this interpretation of Coman in Garner v. Rentenbach Constructors, Inc., 350 N.C. 567, 515 S.E.2d 438 (1999), by describing the plaintiff’s termination in Coman as a “constructive discharge.” Id. at 570, 515 S.E.2d at 440. Decisions by this Court have left open the possibility of a constructive discharge claim. See, e.g., Doyle v. Asheville Orthopaedic Assocs., P.A., 148 N.C. App. 173, 177, 557 S.E.2d 577, 579 (2001) (“We recognize the viability of [the plaintiff’s claim for constructive discharge] in the context of interpreting whether constructive termination by her employer triggered the termination payment provision of the employment contract.”), disc. review denied, 355 N.C. 348, 562 S.E.2d 278 (2002); Russell, 129 N.C. App. at 524, 500 S.E.2d at 731-32 (affirming, although not directly addressing, jury verdict for plaintiff who brought suit alleging wrongful constructive discharge in violation of Title VII and North Carolina public policy based on sexual harassment); Graham, 121 N.C. App. at 385-86, 465 S.E.2d at 560-61; Wagoner v. Elkin City Schools’ Bd. of Education, 113 N.C. App. 579, 588, 440 S.E.2d 119, 125 (stating that, “[assuming that plaintiff was wrongfully constructively discharged, she is nonetheless not entitled to assert the tort of wrongful discharge because the tort of wrongful discharge arises only in the context of employees at will.”), disc. review denied, 336 N.C. 615, 447 S.E.2d 414 (1994). Further support for the proposition that North Carolina recognizes the validity of wrongful discharge claims in violation of public policy where termination is constructive is found in the principles announced by our Supreme Court in the seminal case of Coman. As explained in Coman, an at-will employee may not be terminated for a reason violating the public policy of our State because “ ‘[a] different interpretation would encourage and sanction lawlessness, which law by its very nature is designed to discourage and prevent.’ ” Coman, 325 N.C. at 175, 381 S.E.2d at 447 (quoting Sides, 74 N.C. App. at 342, 328 S.E.2d at 826). Moreover, our Supreme Court acknowledged in Coman that “[b]ad faith conduct should not be tolerated in