Discrimination Cases

Barbara Holland vs. BLH Electronics, Inc. No. 01-P-1026. Norfolk. April 11, 2003. July 31, 2003. Present: Porada, Kass, & Greenberg, JJ. Anti-Discrimination Law, Race, Termination of employment, Prima facie case. Practice, Civil, Summary judgment. Discussion of the plaintiff’s burden of production, for summary judgment purposes, in an employment discrimination case based on disparate treatment. [681] In an employment discrimination action, the judge erred in granting summary judgment in favor of the defendant employer on the basis that the plaintiff, an African-American, had failed to establish a prima facie case that the defendant had terminated her employment on the basis of race, where the plaintiff had produced evidence that she had performed her job at an acceptable level and, by producing evidence that the defendant imposed less strict hiring standards on a similarly situated white employee, had established a genuine issue of material fact whether the defendant’s purported reason for her termination was a pretext. [682-684] Civil action commenced in the Superior Court Department on December 22, 1999. The case was heard by John S. McCann, J., on a motion for summary judgment. Wendy H. Sibbison for the plaintiff. Jerome H. Somers (Anne M. Gaeta with him) for the defendant. Greenberg, J. The plaintiff, an African-American, brought an action against the defendant, BLH Electronics (BLH), alleging in count I of her complaint discrimination based on her race, in violation of G. L. c. 15IB, and in count II civil rights violations, as defined in G. L. c. 266, § 127B. After what appears to have been extensive discovery, a Superior Court judge, on May 11, 2001, allowed BLH’s motion for summary judgment. He ruled that there was no genuine issue of material fact and that the plaintiff “failed to show that she has a reasonable expectation of making out a prima facie case of race discrimination.” The plaintiff appeals, and we reverse. Our standard of review is relatively straightforward. A judge presented with a motion for summary judgment 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.R 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 a judgment as a matter of law.” Id. Further, “[wjhen a motion for summary judgment is made and supported ... an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” Mass.R.Civ.P. 56(e), 365 Mass. 825 (1974). See Community Natl. Bank v. Dawes, 369 Mass. 550, 554 (1976). With these principles in mind, we sketch the salient facts. Responding to the defendant’s advertisement for unskilled “sensor etchers,” the plaintiff and several other applicants were interviewed on June 20, 1997. After an initial meeting with BLH’s human resources administrator, Dale Mandoni, the plaintiff met with the head of the sensor department, Adelinde Blair, to take some basic math and manual dexterity tests. Blair was “shocked that [the plaintiff] knew basic math,” where other applicants did not. The plaintiff was one of two candidates hired by the defendant that day. The other was Dorothy Foster, who was Caucasian. Blair did not meet with Foster before she was hired and did not require Foster to take any math or dexterity tests. Neither the plaintiff nor Foster had any experience as a sensor etcher, and both participated together in the same six-day training program. Although a trainee usually takes three months to become proficient as a sensor etcher, both women progressed so well that they began production work immediately upon completing their training. Three days later, Blair came to the plaintiff’s and Foster’s work area to observe their work. The two employees sat about five to six feet diagonally across a table from each other, where, according to Foster’s affidavit, they were doing identical work, both doing it “the same way we had been instructed.” Blair watched Foster and made no comment. Next, she observed the plaintiff. Apparently dissatisfied with the plaintiff’s work, Blair began “violently yelling and screaming” at the plaintiff, and slamming her hand on the table. The plaintiff attempted to explain that she was performing the work in the manner she believed the training supervisor had prescribed but was unable to finish her explanation because of Blair’s yelling. The plaintiff started to cry, and Blair left the work area. Later that same day, the plaintiff spoke to the human resources administrator, Mandoni, and recounted to her the incident earlier that day with Blair. Mandoni is then said to have granted the plaintiff permission to leave for the day with full pay, given her obvious distress. In reply, the plaintiff indicated she was able to finish her shift and, in fact, did so. The plaintiff also worked without incident the following two days in the same department. The next Monday, July 21, in a private meeting with Man-doni, Blair expressed the view that the plaintiff had been “insubordinate” to her. Blair also took exception to the fact that the plaintiff, as she saw it, had acted out in the presence of other employees. This led to BLH’s decision to end the plaintiff’s employment effective July 23, 1997, as Blair had recommended. Mandoni informed the plaintiff of the same, citing insubordination in the plaintiff’s obstinate refusal to do the work as Blair had instructed. The next day, July 24, the plaintiff filed a complaint against BLH with the Massachusetts Commission Against Discrimination (MCAD), alleging that BLH had discriminated against her based on her race. After investigation, MCAD determined that the plaintiff’s allegations were credible and found probable cause that an act of discrimination had occurred. The MCAD offered the possibility of a conciliation conference and, absent that, a public hearing and final disposition. The plaintiff filed a related complaint with the Equal Employment Opportunity Commission. However, both administrative cases were dismissed without prejudice when the plaintiff elected to pursue her judicial remedies. Discussion. We start with the proposition that “[sjummary judgment is a disfavored remedy in the context of discrimination cases based on disparate treatment.” Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 439 (1995), and cases cited. Where there is conflicting evidence as to a defendant’s discriminatory motive, courts may not dispose of such cases on the basis of affidavits. Id. at 439-446. The burden of persuasion rests at all times with the plaintiff. Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 139 (1976). For summary judgment purposes, the shifting burden of production in a racial discrimination case follows the three stage order of proof formula of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973), cited and discussed in Wheelock College, supra. Thus, to make out a prima facie case in stage one, the plaintiff must establish that she was a member of a protected class; that she was performing her job in an acceptable way; that she was fired; and that the defendant sought to fill the plaintiff’s position by hiring someone else who was no more qualified than the plaintiff. See Blare, supra at 441. The defendant in stage two must then rebut the presumption of discrimination by producing evidence of some legitimate, nondiscriminatory reason for the employee’s termination. See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 116-117 (2000). Should the defendant satisfy that requirement, the burden then shifts back in stage three to the plaintiff, who must produce evidence that the reason articulated by the employer is a mere pretext. Id. at 117-118. If the fact finder determines that one or more of the defendant’s reasons for its employment decision is false, “it may (but need not) infer that the [defendant] is covering up a discriminatory intent, motive or state of mind.” Lipchitz v. Ray-theon Co., 434 Mass. 493, 501 (2001). Here, the judge concluded that the plaintiff failed to establish a stage one prima facie case of racial discrimination because she failed to show evidence that she was performing her job acceptably. Adequate job performance, according to the judge, assumes the ability to get along with coworkers, including supervisors, and the incident with Blair demonstrated that the plaintiff fell short in that respect. In addition, the judge concluded that the defendant was entitled to summary judgment on the independent ground that the plaintiff failed in her third stage order of proof to offer evidence that the defendant’s purported legitimate, nondiscriminatory reason (insubordination) for terminating her employment was a mere pretext. For her part, the plaintiff argues that the judge erred by failing to accept as true, and even omitted from his decision any reference to, factual statements contained in the affidavit of her coworker, Foster, which refuted allegations that the plaintiff had been insubordinate, disrespectful toward Blair, or disruptive in any way; and also by disregarding the fact that Foster, unlike the plaintiff, was hired without ever meeting Blair and without being asked to take the tests that were required of the plaintiff. We have examined the record in this case and conclude that Foster’s affidavit corroborates in all material respects the plaintiff’s version of the encounter with Blair, thus creating an issue of fact in stage one proof whether the plaintiff had performed her job acceptably. Moreover, the imposition at the hiring stage of stricter standards on the plaintiff than on Foster may also support an inference of discriminatory motive on BLH’s part at the employment termination stage. See Smith College v. Massachusetts Commn. Against Discrimination, 316 Mass. 221, 227-228 (1978); Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 129 (1997) (“The most probative means of establishing that the plaintiffs’ termination was a pretext for racial discrimination is to demonstrate that similarly situated white employees were treated differently”). Prior to terminating the plaintiff, BLH made no attempt to look into her report of Blair’s supposed racial animus and of Blair’s supposed disparate treatment of the plaintiff by interviewing Foster or any other employee who may have overheard the altercation between Blair and the plaintiff. The termination decision appears to have been based solely upon BLH’s acceptance of the accuracy of Blair’s account and its confidence in Blair’s long record of service, which apparently was unmarred by any past reports of discriminatory behavior by her toward other employees under her supervision. Ultimately, a trier of fact might conclude that the treatment experienced by the plaintiff was, as the motion judge concluded, based merely upon her “subjective feelings,” unrelated to any actual discriminatory animus on BLH’s part. However, the motion judge erred by disregarding Foster’s affidavit and also by failing to consider that the plaintiff (who is black) and Foster (who is white) were similarly situated “in terms of performance, qualifications, and conduct without such differentiating or mitigating circumstances that would distinguish [them].” Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. at 130 (internal quotations omitted). In sum, it was the plaintiff’s burden, once BLH demonstrated the absence of disputed issues of material fact, to provide evidence supporting each of the stage one requirements for a prima facie case of discrimination, and in addition to that, to provide evidence in stage three tending to show that BLH’s stated reason (insubordination) for terminating the plaintiff was a pretext. The plaintiff met her burden in stage one with evidence that she had performed her job at an acceptable level. Based on the disparate treatment accorded the defendant as distinct from Foster, the plaintiff also established a genuine issue of material fact for a jury to decide whether the insubordination ground for termination was a pretext. See Smith College v. Massachusetts Comma. Against Discrimination, supra. Where, as here, there are conflicting explanations for an adverse employment decision, a jury must weigh them for credibility. Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 439-440. Judgment reversed. The plaintiff does not appeal from the dismissal of the civil rights claim alleged in the second count of her complaint; she appeals only from the judgment dismissing her discrimination claim. Foster had an unobstructed view of the plaintiffs workstation and could hear clearly what was said by Blair and the plaintiff. Foster and the plaintiff were performing the same task in the same manner that had been taught to them in their recent training. Blair made no comment or criticism to Foster about her work; but, upon observing the plaintiffs work, she “began violently yelling and screaming at [the plaintiff] stating, ‘No, No, No’ and violently and repeatedly banging her hand on the work table right in front of [the plaintiff, who] kept trying to say ‘But this is the way we were taught . . .’ but [the plaintiff] was unable to finish because of Ms. Blair’s yelling ....’’ Foster further observed that, during the encounter, the plaintiff was not disruptive or insubordinate and did not refuse to follow instructions. Nor, by Foster’s observation, did the plaintiff threaten Blair or show disrespect toward Blair. In her deposition, Blair offers a dramatically different account of her exchanges that day with the plaintiff. Unlike Matthews, supra, this is not a case where, on summary judgment, the court must accept as true that the plaintiff was offensive or insubordinate to Blair; it merely must accept that the affidavits create an issue of fact on that score. There is no dispute that the plaintiff, as an African-American, is a member of a protected class or that she was terminated. Nor is there a genuine dispute that BLH needed to fill the position and did so, after the plaintiff had been terminated, with a person of qualifications similar to the plaintiff’s. Possible further indication of pretext is found in evidence from Blair’s own deposition that Blair did not initially consider recommending termination by reason of insubordination but then did so upon learning several days later that the plaintiff had reported the encounter to the human resources administrator who, in turn, asked Blair for a report and recommendations on the incident. It was only at that point that Blair recommended termination.

WEST v GENERAL MOTORS CORPORATION Docket No. 121003. Decided July 22, 2003. On application by a defendant, General Motors Corporation, for leave to appeal, the Supreme Court, in lieu of granting leave, affirmed in part and reversed in part the judgment of the Court of Appeals, and reinstated the circuit court order of summary disposition in favor of the defendant. Rehearing denied post, 1224. Calvin West, and his wife, derivatively, brought an action in the Wayne Circuit Court against General Motors Corporation and several of its employees, alleging numerous counts relating to his dismissal from employment. The circuit court, Susan Bieke Neilson, J., granted summary disposition for the defendants and dismissed the complaint. The Court of Appeals, Griffin, P.J., and Meter and K F. Kelly, JJ., in an unpublished opinion per curiam, affirmed in part and reversed in part, ordering a remand for trial on the count under the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seq., because the Court could not determine as a matter of law that there was absolutely no causal connection between Calvin West’s police report of a workplace assault against him and his dismissal from employment (Docket No. 224408). General Motors Corporation sought leave to appeal. In an opinion per curiam, signed by Chief Justice Corrigan, and Justices Weaver, Taylor, Young, and Markman, the Supreme Court held-. The plaintiff failed to present evidence that would allow reasonable jurors to find a causal connection between the police report he made and the subsequent employment decisions affecting him. There is no factual issue for a jury to decide. 1. To establish a prima facie case under the wpa, a plaintiff must show that he was engaged in a protected activity under the act, that the plaintiff was discharged or discriminated against, and that a causal connection exists between the protected activity and the adverse employment action. The plaintiff failed to present evidence demonstrating a prima facie case. 2. In this case, the plaintiff reported an alleged assault to the police, a protected activity under the wpa, and then told his supervisors of the report. Because the supervisors were not involved in the decision to discharge the plaintiff, there is no demonstration that the report or the advising of his supervisors of the report was a cause of the adverse employment action. 3. The temporal relationship of the plaintiff’s discharge after the report to the police, standing alone, does not demonstrate a causal connection between the protected activity and any adverse employment action. The plaintiff presented no evidence connecting his discharge to his report to the police. Affirmed in part and reversed in part; circuit court order reinstated. Justice Kelly, joined by Justice Cavanagh, dissenting, stated that the plaintiff did present evidence to support his claim under the Whistleblowers’ Protection Act sufficient to prevent summary disposition for the defendant. If the evidence is viewed in the light most favorable to the plaintiff, the nonmoving party, the plaintiff presented several allegations that, if proven, could allow the jury to infer causation. The lack of action by General Motors relating to time sheet problems of the plaintiff in the year before he filed a police report and his discharge for claimed time sheet problems after the police report support an inference that the report brought about the adverse employment actions. The plaintiff was fired for seeking wages for overtime that gm claims he did not work, but the plaintiff claims he did work. A trier of fact could find that the plaintiff did work the hours in question, leading to the inference that he was wrongfully discharged. A wrongful discharge would show that there was not a legitimate, nondiscriminatory reason for the plaintiff’s firing. If the facts are construed as they must be, in the light most favorable to the plaintiff, it becomes apparent that a question of fact exists in this case. The Court of Appeals judgment should be affirmed and the case should be remanded to the trial court. Labor Relations — Whistleblowers’ Protection Act — Protected Activity — Adverse Employment Action. A causal connection between activity protected by the Whistleblowers’ Protection Act and an adverse employment action, which connection is necessary for a prima facie case under the act, is not established merely because the adverse employment action followed the protected activity; the plaintiff must present evidence that would allow reasonable jurors to find a causal connection between the protected activity and the adverse employment action (MCL 15.362). O’Neal O. Wright & Associates, P.C. (by O’Neal 0. Wright and Lynette M. Bledsaw), for the plaintiffappellee. Hardy, Lewis & Page, P.C. (by Terence V. Page and Kay Rivest Butler), for General Motors Corporation. Per Curiam. The circuit court granted defendant General Motors’ motion for summary disposition and dismissed plaintiff’s complaint, which alleged a count under the Whistleblowers’ Protection Act, MCL 15.361 et seq., and counts of assault and battery, wrongful discharge, race discrimination, retaliation for reporting acts of discrimination, and loss of consortium. The Court of Appeals reversed the dismissal of plaintiff’s whistleblower count and affirmed the remainder of the circuit court’s ruling. Defendant seeks to appeal the part of the Court of Appeals decision reinstating plaintiff’s whistleblower count, while plaintiff seeks to cross-appeal the part of the Court of Appeals decision that affirmed the dismissal of the balance of his complaint. Because plaintiff failed to come forward with evidence supporting the causation element of his whistleblower claim, we reverse that aspect of the Court of Appeals decision and reinstate the circuit court’s order of summary disposition in favor of defendant. We have also considered plaintiff’s application for leave to cross-appeal, and that application is denied because we find no merit in the issues raised by plaintiff. I Plaintiff Calvin West worked as a maintenance supervisor for defendant General Motors. He was a salaried employee and was responsible for completing his own time sheet. Plaintiff was warned several times in 1996 and in February 1997 about misrepresenting the time he actually worked. Nevertheless, plaintiff reported four extra hours of overtime on his time sheet for May 22, 1997. His supervisors learned of this overstatement and, after an investigation, plaintiff was disciplined on June 4, 1997. Plaintiff was prohibited from working any overtime, and he was required to use the salaried-employee entrance and to “swipe” his identification badge at the entrance each time he entered or left the plant. In addition, plaintiff was advised, orally and in writing, that reporting time that was not actually worked constituted fraudulent conduct and could result in termination of his employment. Effective August 11, 1997, plaintiff was transferred from the morning shift to the afternoon shift. Plaintiff accordingly worked for different supervisors. In September 1997, plaintiff was again allowed to work overtime. On October 16, 1997, plaintiff reported two hours of overtime that he did not work. An investigation of this incident led to the termination of plaintiffs employment on January 8, 1998, because of plaintiffs repeated violations of the employer’s policies for reporting time worked. While plaintiff was still working on the morning shift, an incident occurred on May 4, 1997, involving a union committee person named Jim Reeves. Plaintiff entered a room where Reeves and others were in conference. When plaintiff did not leave the room as Reeves ordered, there was physical contact between plaintiff and Reeves. Plaintiff claims that he was shoved by Reeves; Reeves claims that when he stood up from his desk his stomach brushed plaintiff. Plaintiff reported to plant security that Reeves had assaulted him. In addition, plaintiff claims he telephoned the Romulus police and reported the assault. Plaintiff also asserts that he advised his immediate supervisor, Randall Koyal, and his area supervisor, John Tate, that he had reported the assault to the police. Plaintiff characterized Royal’s response to being told about the report to the police as “nonchalant.” Plaintiff said that he could not discern Tate’s response upon learning that plaintiff had contacted the police, but Tate seemed to be upset that the incident between plaintiff and Reeves had occurred. In his complaint, plaintiff claimed that his rights under the Whistleblowers’ Protection Act were violated because he was retaliated against and discriminated against for reporting the Reeves assault to the police. Plaintiffs complaint alleged that after the report, both Tate and Koyal treated him differently and retaliated by, among other things, unfairly accusing him of time-sheet violations, transferring him to a different shift, and terminating his employment. The circuit court granted defendant summary disposition regarding this count, reasoning that plaintiff did not establish a prima facie case because he failed to present evidence of a causal connection between his report to the Romulus police and any adverse employment action. The circuit court also concluded that, even if plaintiff had established a prima facie case, the employer had shown a legitimate reason for its actions. The Court of Appeals found that a factual issue existed regarding whether there was a causal connection between plaintiffs telephone call to the Romulus police and the subsequent adverse employment actions. The Court accordingly reversed the summary-disposition order and remanded the case for further proceedings on plaintiffs whistleblower count. The Court of Appeals did not address the circuit court’s finding that there were legitimate reasons for the employment actions. II Defendants’ summary-disposition motion regarding the whistleblower claim was brought under MCR 2.116(C)(10) (no genuine issue of material fact). Appellate review of the grant or denial of a summary-disposition motion is de novo, and the court views the evidence in the light most favorable to the party opposing the motion. Maiden v Rozwood, 461 Mich 109, 118, 120; 597 NW2d 817 (1999). Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ. Shallal v Catholic Social Services of Wayne Co, 455 Mich 604, 609; 566 NW2d 571 (1997); Quinto v Cross & Peters Co, 451 Mich 358, 369; 547 NW2d 314 (1996). III Plaintiff’s whistleblower claim is brought under MCL 15.362, which states: An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action. To establish a prima facie case under this statute, a plaintiff must show that (1) the plaintiff was engaged in protected activity as defined by the act, (2) the plaintiff was discharged or discriminated against, and (3) a causal connection exists between the protected activity and the discharge or adverse employment action. Chandler v Dowell Schlumberger, Inc, 456 Mich 395, 399; 572 NW2d 210 (1998); Shallal, supra at 610. Plaintiff claims that, because of his report to the police, he was disciplined when he was barred from overtime, required to swipe his identification badge, transferred to the afternoon shift, and discharged. However, our review of the record reveals no evidentiary support from which a reasonable jury could find a causal connection between plaintiffs report to the police and these employment actions. Plaintiff’s case rests on the factual point that he advised supervisors Koyal and Tate that he had reported the assault to the police. That assertion, by itself, is not enough to raise a reasonable inference that plaintiff was retaliated against or discriminated against on the basis of the report. It does nothing to establish a causal nexus between plaintiff’s contacts with his supervisors and any subsequent employment action. Summary disposition for the defendant is appropriate when a plaintiff cannot factually demonstrate a causal link between the protected activity and the adverse employment action. For example, in Shallal, the plaintiff failed to establish the necessary causal connection because she knew her discharge was imminent before the protected activity on which she based her whistleblower claim, and in Roberson v Occupational Health Centers of America, Inc, 220 Mich App 322; 559 NW2d 86 (1996), the plaintiff failed to show a causal connection because the evidence did not show that the employer knew about the plaintiff’s filing of a complaint with the Occupational Safety and Health Administration until after she was discharged. The most that plaintiff demonstrates here is that he was disciplined, and eventually discharged, after he reported to the police that Reeves had assaulted him. To prevail, plaintiff had to show that his employer took adverse employment action because of plaintiff’s protected activity, but plaintiff has merely shown that his employer disciplined him after the protected activity occurred. Plaintiff had to demonstrate that the adverse employment action was in some manner influenced by the protected activity, but has failed to make such a demonstration. The evidence does not show that either of the supervisors, whom plaintiff allegedly informed about the call to the police, viewed the call as a matter of any consequence. Nor was either supervisor involved in the decision to discharge plaintiff. There is no evidence that Koyal or Tate gave even a second thought to plaintiff’s report to the police. Plaintiff did not recall Tate saying anything when he learned about the police report, although he did seem upset that the incident with Reeves occurred, and plaintiff testified that Royal’s reaction was “nonchalant.” Although the employment actions about which plaintiff complains occurred after his report to the police, such a temporal relationship, standing alone, does not demonstrate a causal connection between the protected activity and any adverse employment action. Something more than a temporal connection between protected conduct and an adverse employment action is required to show causation where discrimination-based retaliation is claimed. Nguyen v City of Cleveland, 229 F3d 559 (CA 6, 2000) (retaliation for claim of discrimination based on national origin); Scroggins v Univ of Minnesota, 221 F3d 1042 (CA 8, 2000) (retaliation for race-discrimination claim); Cooper v North Olmsted, 795 F2d 1265 (CA 6, 1986) (retaliation for race-and sex-discrimination claims); Taylor v Modem Engineering, Inc, 252 Mich App 655, 662; 653 NW2d 625 (2002) (retaliation for alleged whistleblower activity). Plaintiff must show something more than merely a coincidence in time between protected activity and adverse employment action. A case in which a close temporal relationship supported the plaintiff’s claim is Henry v Detroit, 234 Mich App 405; 594 NW2d 107 (1999). But unlike plaintiff, the plaintiff in Henry also presented evidence that his superior expressed clear displeasure with the protected activity engaged in by the plaintiff. In contrast to Henry, plaintiff has not shown any reaction or conduct on the part of his supervisors that reasonably suggests that they were upset by the fact that plaintiff reported an assault to the police. Moreover, contrary to the view of the Court of Appeals, the evidence does not show that plaintiffs record was “impeccable” or “unblemished” before the Reeves incident or that the discipline imposed was seemingly undeserved as it was in Henry. The fact that a plaintiff engages in a “protected activity” under the Whistleblowers’ Protection Act does not immunize him from an otherwise legitimate, or unrelated, adverse job action. The only evidence plaintiff has shown other than the temporal sequence of events is that one of the two supervisors he notified was nonchalant. This does not amount to evidence from which a reasonable juror could conclude that any adverse employment action directed at plaintiff was related to the police report lodged by plaintiff. With regard to the employment-discharge decision in particular, plaintiff has presented no evidence connecting his discharge to his report to the police. There is no evidence that the persons conducting the investigation that led to plaintiff’s discharge or the persons who made the discharge decision were even aware that plaintiff called the police. The supervisors (Koyal and Tate), whom plaintiff claims he told about the police report, were not involved in the discharge decision. The Court of Appeals erred in finding that contested facts and permissible inferences present a factual issue for a jury in this case. There is nothing more than pure conjecture and speculation to link plaintiffs call to the police to any subsequent adverse employment action. IV Plaintiff did not present evidence that would allow a reasonable juror to find a causal connection between the police report made by plaintiff and the subsequent employment decisions affecting plaintiff. Plaintiff therefore failed to establish a prima facie case under the Whistleblowers’ Protection Act. We reverse in part the judgment of the Court of Appeals and reinstate the circuit court order granting defendant summary disposition on plaintiff’s whistleblower claim. In all other respects the Court of Appeals decision is affirmed. MCR 7.302(G)(1). Corrigan, C.J., and Weaver, Taylor, Young, and Markman, JJ., concurred. Plaintiff Margo Ann West’s derivative claim is for loss of consortium. For ease of reference, in this opinion we refer to plaintiff in the singular. Defendant General Motors is the only defendant involved in this appeal. According to defendant, plaintiff was transferred to the afternoon shift because the morning shift required a maintenance supervisor who could work overtime. Plaintiff initially acknowledged that he had not worked the overtime on October 16, but said he had worked it the next day. Later, he asserted that he actually worked the overtime hours that he reported on October 16 on that date. However, his supervisor stated that plaintiff left after completing an eight hour shift and did not return. In addition, no one else saw plaintiff during the two hours at issue. According to plaintiff, the police told him to file a written complaint. Plaintiff never filed such a complaint, nor did he otherwise follow up with the police. Koyal testified at his deposition that he did not learn that plaintiff called the police until he received notice of this lawsuit. At his deposition, Tate recalled plaintiff being upset about the incident with Reeves, but Tate was not asked about whether plaintiff said anything about making a report to the police. The adverse employment actions specifically discussed by the circuit court were (1) the “overtime restriction” imposed in June 1997, (2) the transfer to the afternoon shift, and (3) the decision to terminate employment. For the purpose of this opinion, we assume without deciding that plaintiff called the Romulus po

SNIECINSKI v BLUE CROSS & BLUE SHIELD OF MICHIGAN Docket No. 119407. Argued November 19, 2002 (Calendar No. 6). Decided July 22, 2003. Rehearing denied post, 1224. Marcia Sniecinski brought an action in the Wayne Circuit Court against Blue Cross and Blue Shield of Michigan, alleging that bcbsm’s failure to hire her was based on pregnancy discrimination. The circuit court, Marianne O. Battani, J., denied the defendant’s motions for a directed verdict and a judgment notwithstanding the verdict, and entered judgment on a jury verdict and award of damages for the plaintiff. The Court of Appeals, Gribbs, RJ. (Kelly, J., concurring in result, and Sawyer, J., concurring in part and dissenting in part), affirmed in an unpublished opinion per curiam (Docket No. 212788). The defendant appealed. In an opinion by Chief Justice Corrigan, joined by Justices Taylor, Young, and Markman, the Supreme Court held: The trial court erred in failing to find no cause of action because the plaintiff failed to establish a causal connection between her pregnancy and the defendant’s failure to hire her. 1. The plaintiff’s employment was not transferred to bcbsm from Blue Care Network after the merger of their marketing activities because her employment with bcn had been administratively terminated before the transfer date by plaintiff’s collecting long-term disability benefits occasioned by her usage of medical leave on account of problem pregnancies. An offer of employment from BCBSM expired by plaintiff’s failure to begin performing the bcbsm job functions before collecting long-term disability benefits. 2. The plaintiff failed to present evidence that satisfies the direct-evidence test for discriminatory animus. She also failed to present evidence of discriminatory animus under the indirect or circumstantial evidence method set forth in McDonnell Douglas Corp v Green, 411 US 792 (1973), which requires the plaintiff to show a prima facie case of discrimination, requires the defendant to rebut the prima facie showing by articulating a legitimate, nondiscriminatory reason for the adverse employment action, and requires the plaintiff to show that the reason articulated was merely a pretext for discrimination. Bcbsm was therefore entitled to a finding by the circuit court of no cause of action as a matter of law. Justice Cavanagh concurred in the result only. Justice Weaver, concurring in part and dissenting in part, stated that, relating to noneconomic damages, the trial court did err in denying the defendant’s motion for a directed verdict because the plaintiff failed to present any specific and definite evidence of mental anguish, anxiety, or distress as she was required to do. There was, however, a reasonable inference from the evidence that the defendant’s failure to hire the plaintiff was causally connected to her pregnancy. Reversed; remanded to the circuit court. Justice Kelly, dissenting, stated that the jury was entitled to infer its conclusions from evidence submitted. The plaintiff presented abundant proof to create an inference regarding causation consistent with the jury’s decision. The jury was entitled to believe that the facts precipitating the loss of the position were an extension of discriminatory animus. The defendant’s posttermination actions also support the inference of a causal link between the discrimination alleged and the defendant’s employment actions. Civil Rights —- Civil Rights Act — Employment Discrimination — Evidence. A plaintiff claiming employment discrimination may prove the claim by direct evidence of discrimination or indirect or circumstantial evidence of discrimination; direct evidence is that which requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions; in the case of indirect or circumstantial evidence, the plaintiff must present a prima facie case of discrimination; if the defendant rebuts the presumption by articulating a legitimate, nondiscriminatory reason for the adverse employment action, the plaintiff must show that the defendant’s reasons are a mere pretext for discrimination (MCL 37.2101 et seqj. Hurlburt, Tsiros, AUweil & Perez, PC. (by Mandel I. AUweil), for the plaintiff. Bart M. Feinbaum for the defendant. Amici Curiae: Vercruysse Metz & Murray (by Diane M. Soubly) for the Michigan Chamber of Commerce. Clark Hill PLC (by Duane L. Tamacki, F.R. Damm, and Lira A. Johnson) for the Michigan Manufacturers Association. Kienbaum Opperwall Hardy & Pelton, PLC (by Thomas G. Kienbaum, Theodore R. Opperwall, and Noel D. Massie), for the Automobile Club of Michigan and DaimlerChrysler Corporation. Corrigan, C.J. In this pregnancy discrimination case, we have been asked to decide whether the trial court erred by denying defendant Blue Cross and Blue Shield of Michigan’s (bcbsm) motions for directed verdict and judgment notwithstanding the verdict. We hold that because plaintiff failed to adduce evidence of a causal connection between her pregnancy and bcbsm’s failure to hire her, bcbsm was entitled to a finding of no cause of action as a matter of law. The trial court erred by denying defendant’s motions for directed verdict and judgment notwithstanding the verdict. I. UNDERLYING FACTS AND PROCEDURAL HISTORY Blue Care Network of East Michigan (BCN), a wholly owned subsidiary of bcbsm, employed plaintiff as a telemarketing representative. Plaintiff, a high school graduate, began work at BCN’s predecessor, Group Health Services (GHS), in 1983. She held a variety of positions. In 1987, she became a telemarketing representative. In 1989, GHS merged into BCN. BCN honored the seniority that plaintiff had acquired at GHS. Also in 1989, plaintiff became pregnant. She experienced pregnancy complications that required her to take a medical leave for seven months. In October of that year, plaintiff gave birth to her daughter. In November, she returned to work for bcn. Plaintiff became pregnant again in 1992 while she was supervised by Michael Curdy. Plaintiff testified that after she informed Curdy about her pregnancy, he seemed upset. He referred to plaintiff’s chair as the “pregnancy chair.” He stated that he would not let anyone sit in that chair again. He asked plaintiff whether she was going to experience problems with her pregnancy as she had in 1989. Curdy further told plaintiff that he would not permit her to use either sick time or unpaid leave because of her pregnancy. In January 1993, Curdy placed a memo regarding plaintiff’s attendance in her personnel file. When plaintiff learned about the memo, she complained to Patricia Stone, the Regional Human Resources Manager at bcn. Stone informed Curdy that he had not followed the appropriate procedure for discipline. She advised Curdy to follow the correct procedure to determine whether a problem existed regarding plaintiff’s attendance before a disciplinary memo could be placed in plaintiff’s file. Stone then removed the memo from plaintiff’s file. Plaintiff again experienced pregnancy complications that required her to take one week off from work in February 1993. During that time, she suffered a miscarriage. Plaintiff testified that upon her return to work Curdy spoke to her about future pregnancies and stated, “We’ll have to deal with that problem when it comes.” During 1993, the marketing departments of bcn and bcbsm were merged. Because the merger was going to eliminate the telemarketing positions at BCN, BCN telemarketers seeking to continue their employment were required to interview for a position of account representative at bcbsm. In August 1993, plaintiff interviewed for an account representative position with Donald Whitford, bcbsm Regional Sales Director; Donald Roseberry, bcbsm Sales Team Manager; and Curdy. Plaintiff testified that Curdy asked about her time off from work related to her previous pregnancy complications. He also asked whether plaintiff thought her pregnancies would be a future problem. After a second interview with Whitford and Roseberry only, plaintiff was offered an account representative position at bcbsm. Immediately thereafter, plaintiff told Whitford and Roseberry that she was pregnant. Plaintiff testified that they “seemed surprised” and were “taken aback,” but congratulated her. Plaintiff and other BCN employees expecting to transfer to BCBSM continued to work for bcn until the merger. Plaintiff testified that when Curdy heard about her pregnancy, he remarked, “I’ll have to make sure I don’t hire anybody in child bearing years in the future.” In September 1993, soon after receiving the job offer, plaintiff began experiencing pregnancy-related complications. She was again required to take time off from work. She remained on medical leave from September 1993 until May 1994, six weeks after giving birth to her son. Shortly after plaintiff was offered the account representative position, Whitford and Curdy contacted Stone to discuss placing a disciplinary note in plaintiff’s file regarding her attendance problems during previous pregnancies. Stone testified that Whitford wanted Curdy’s January 1993 memo put back in plaintiffs file because plaintiff was continuing to have attendance problems. Stone advised them that placing a memo in plaintiffs file was inappropriate. On November 22, 1993, while plaintiff was on medical leave, the planned merger of the sales departments of bcn and bcbsm occurred, and all bcn employees who had been offered jobs with bcbsm terminated their employment with bcn and began working for bcbsm. Plaintiff did not report for work at bcbsm because she was on medical leave at that time. Instead, bcbsm held open an account representative position for her. On March 1, 1994, plaintiff’s short-term disability benefits expired, and she began to collect long-term disability (ltd) benefits. Under bcn’s ltd policy, an employee on medical leave converts from short-term to ltd status on the first day of the employee’s sixth month off work. The ltd policy provides that the employee is separated from the company and issued a final pay check, including accrued vacation and personal time. On October 11, 1993, while plaintiff was on short-term disability, she requested an extension of her medical leave. Plaintiff was concerned that the account representative position at bcbsm would no longer be available when she was ready to return to work. Stone informed plaintiff that the position would be held open until plaintiff went on ltd, if plaintiff’s medical leave extended that long. Stone’s notations in her Franklin planner corroborated this account of her conversation with plaintiff. The notes read as follows: Marcia concerned over job security- Advised her that not issue until ltd If ltd -> Blue Cross job not possible. We will attempt to find position similar qualifications/pay. Because plaintiff did not return to work before March 1, 1994, she began collecting ltd benefits. Bcn issued plaintiff a vacation and incentive payout and separated her from the company. In late May 1994, plaintiff informed bcbsm that she was ready to return to work. Because of the 1993 merger, her telemarketing position at bcn had been eliminated. The bcbsm account representative position previously offered to her was not filled because of a company-wide hiring freeze resulting from a loss of Medicare business. Plaintiff thereafter collected unemployment benefits for six months while making periodic efforts to find another job. In December 1994, bcn offered, and plaintiff accepted, a position as a marketing representative that was unrelated to her previous job. After resuming work, plaintiff learned that bcbsm had recently hired an account representative who was a college graduate. Both before and after the merger, the BCBSM account representative position required a college degree. The degree requirement had been waived only for those BCN employees transferring to BCBSM during the merger. Plaintiff had no college degree. In March 1996, while still employed at BCN, plaintiff sued bcbsm, alleging sex (pregnancy) discrimination in violation of Michigan’s Civil Rights Act (cra), MCL 37.2101 et seq. In August 1996, plaintiff saw a posting for an account representative with bcbsm. The position still required a college degree. Upon her inquiry, the BCBSM human resources department informed her that the degree requirement could not be waived. On September 20, 1996, plaintiff resigned from her position with BCN. She did not seek employment, instead opting to enroll in college to attend classes part-time. Plaintiffs lawsuit proceeded to trial. The jury rendered a verdict for plaintiff, awarding her $125,000 for past economic loss, $136,000 for future economic loss, and $90,000 in noneconomic damages. Defendant moved for judgment notwithstanding the verdict (jnov), a new trial, and remittitur of plaintiffs economic damages. The trial court denied the motions. The Court of Appeals affirmed the verdict. We granted bcbsm’s application for leave to appeal. H. STANDARD OF REVIEW Defendant contends that the trial court erred by denying its motions for directed verdict or JNOV. We review de novo the trial court’s denial of both motions. Forge v Smith, 458 Mich 198, 204; 580 NW2d 876 (1998); Smith v Jones, 246 Mich App 270, 273-274; 632 NW2d 509 (2001). We “review the evidence and all legitimate inferences in the light most favorable to the nonmoving party.” Wilkinson v Lee, 463 Mich 388, 391; 617 NW2d 305 (2000); Forge, supra at 204, quoting Orzel v Scott Drug Co, 449 Mich 550, 557; 537 NW2d 208 (1995). A motion for directed verdict or jnov should be granted only if the evidence viewed in this light fails to establish a claim as a matter of law. Wilkinson, supra at 391; Forge, supra at 204. III. ANALYSIS Section 202 of the cra, MCL 37.2202, provides in part: (1) An employer shall not do any of the following: (A) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status. [Emphasis added.] The CRA defines “sex,” within the meaning of the above section, as “ ‘[s]ex’ includes, but is not limited to, pregnancy, childbirth, or a medical condition related to pregnancy or childbirth . . . .” MCL 37.2201(d). Plaintiff claims that defendant discriminated against her in violation of the CRA by refusing to hire her because she was pregnant. Proof of discriminatory treatment in violation of the CRA may be established by direct evidence or by indirect or circumstantial evidence. DeBrow v Century 21 Great Lakes, Inc (After Remand), 463 Mich 534, 539; 620 NW2d 836 (2001); Harrison v Olde Financial Corp, 225 Mich App 601, 606-607; 572 NW2d 679 (1997). In cases involving direct evidence of discrimination, a plaintiff may prove unlawful discrimination in the same manner as a plaintiff would prove any other civil case. Hazle v Ford Motor Co, 464 Mich 456, 462; 628 NW2d 515 (2001). We have previously cited with approval the United States Court of Appeals for the Sixth Circuit’s definition of “ ‘direct evidence’ as ‘evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions.’ ” Hazle, supra at 462, quoting Jacklyn v Schering-Plough Healthcare Products Sales Corp, 176 F3d 921, 926 (CA 6, 1999); Harrison, supra at 610. In a direct evidence case involving mixed motives, i.e., where the adverse employment decision could have been based on both legitimate and legally impermissible reasons, a plaintiff must prove that the defendant’s discriminatory animus was more likely than not a “substantial” or “motivating” factor in the decision. Price Waterhouse v Hopkins, 490 US 228, 244; 109 S Ct 1775; 104 L Ed 2d 268 (1989); Harrison, supra at 612-613. In addition, a plaintiff must establish her qualification or other eligibility for the position sought and present direct proof that the discriminatory animus was causally related to the adverse decision. Harrison, supra at 612-613. Stated another way, a defendant may avoid a finding of liability by proving that it would have made the same decision even if the impermissible consideration had not played a role in the decision. Price Waterhouse, supra at 244-245. In cases involving indirect or circumstantial evidence, a plaintiff must proceed by using the burden-shifting approach set forth in McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973). Hazle, supra at 462; DeBrow, supra at 540. This approach allows “a plaintiff to present a rebuttable prima facie case on the basis of proofs from which a factfinder could infer that the plaintiff was the victim of unlawful discrimination.” DeBrow, supra at 538. To establish a rebuttable prima facie case of discrimination, a plaintiff must present evidence that (1) she belongs to a protected class, (2) she suffered an adverse employment action, (3) she was qualified for the position, and (4) her failure to obtain the position occurred under circumstances giving rise to an inference of unlawful discrimination. Hazle, supra at 463; Lytle v Malady (On Rehearing), 458 Mich 153, 172-173; 579 NW2d 906 (1998) (opinion by Weaver, J.); see also McDonnell Douglas, supra at 802. Once a plaintiff has presented a prima facie case of discrimination, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Hazle, supra at 464; Lytle, supra at 173 (opinion by Weaver, J.). If a defendant produces such evidence, the presumption is rebutted, and the burden shifts back to the plaintiff to show that the defendant’s reasons were not the true reasons, but a mere pretext for discrimination. Hazle, supra at 465-466; Lytle, supra at 174 (opinion by Weaver, J.). Under either the direct evidence test or the McDonnell Douglas test, a plaintiff must establish a causal link between the discriminatory animus and the adverse employment decision. Because a prima facie case under the McDonnell Douglas test creates a presumption of unlawful discrimination, causation is presumed. Texas Dep’t of Community Affairs v Bur dine, 450 US 248, 254; 101 S Ct 1089; 67 L Ed 2d 207 (1981). A defendant may rebut the presumption of causation by articulating a legitimate, nondiscriminatory reason for the employment decision. Under the direct evidence test, a plaintiff must present direct proof that the discriminatory animus was causally related to the adverse employment decision. Price Waterhouse, supra at 244-245; Harrison, supra at 612-613. In support of her claim, plaintiff relied in part upon the following alleged statements regarding her pregnancies: (1) Curdy referred to plaintiff’s chair as the “pregnancy chair” and stated that he was not going to allow anyone else to sit in the chair; (2) Curdy informed plaintiff that she would not be permitted to use sick time or unpaid leave in connection with her second pregnancy; (3) When discussing possible complications with future pregnancies, Curdy stated, “We’ll have to deal with that problem when it comes”; (4) Curdy asked plaintiff whether she was going to have complications with her second pregnancy “like she had in 1989”; (5) Curdy asked plaintiff about her pregnancy complications at the interview for the bcbsm account representative position; and (6) Curdy stated that he would never hire anyone in child-bearing years again. Bcbsm argued that the above statements were merely “stray remarks” and not direct evidence of discrimination. We need not determine whether the cited comments were mere “stray remarks.” Regardless of whether these were “stray remarks” or direct evidence of a discriminatory animus, plaintiff failed as a matter of law to prove that the remarks were causally related to bcbsm’s failure to hire her. Stated another way, plaintiff failed

COLLINS v COMERICA BANK Docket No. 121563. Decided July 2, 2003. On application by the plaintiff for leave to appeal, the Supreme Court, in lieu of granting leave, affirmed in part and reversed in part the judgment of the Court of Appeals and remanded the case to that Court for further proceedings. Rehearing denied 469 Mich 1223. Gwendolyn Collins brought an action in the Wayne Circuit Court against Comerica Bank, her employer, and another employee of the bank, alleging, in part, that the termination of her employment was the product of race and gender discrimination. The circuit court, Amy Patricia Hathaway, J., denied the defendants’ motion for summary disposition based on the statute of limitations, ruling that the date of cessation of employment was the day the causes of action accrued. The Court of Appeals, Wiiitbeck, C.J., and Wilder and Zarra, JJ., in an unpublished opinion per curiam, reversed, relying on the decision in Parlcer v Cadillac Gage Textron, Inc, 214 Mich App 288 (1995), for the premise that the date of termination was the last day worked (Docket No. 227834). The plaintiff sought leave to appeal. In an opinion per curiam, signed by Chief Justice Corrigan, and Justices Weaver, Taylor, Young, and Markman, the Supreme Court held: The plaintiffs causes of action for discriminatory termination did not arise until the date her employment was terminated, so the trial court properly denied the defendants’ motion for summary disposition on this ground. If a discharge from employment has yet to occur, the last day worked does not represent the date of discharge. A claim for discriminatory discharge cannot arise until a claimant has been discharged. When a claimant’s last day actually worked precedes the date of actual discharge, the last day worked cannot represent the date of discharge for the purpose of the period of limitation. Justices Cavanagh and Kelly concurred in the result only. Affirmed in part, reversed in part, and remanded. Civil Rights — Employment Discrimination — Termination — Period of Limitation. For the purpose of the period of limitation, in cases where the last day worked precedes the discharge, a cause of action for discharge arises on the date of termination. Jeanne VanderHeide, P.C. (by Jeanne M. VanderHeide), for the plaintiff-appellant. Vercruysse Metz & Murray (by Robert M. Vercruysse and William E. Altman) and Comerica Incorporated (by Terri L. Renshaw) for the defendantsappellees. Per Curiam. The issue presented in this case concerns when the period of limitation begins to run for a claim of discriminatory termination of employment under the Civil Rights Act, MCL 37.2101 el seq. I. BACKGROUND Plaintiff Gwendolyn Collins was employed by defendant Comerica Bank as a customer-service representative. In August 1996, defendant notified plaintiff that an investigation was being conducted to determine whether she had accepted cash gifts from customers or disclosed customer account balances to third parties. On September 5, 1996, defendant suspended plaintiff, apparently for failing to cooperate with the investigation. While suspended, plaintiff was required to be available during normal working hours. After the investigation was completed, defendant terminated plaintiffs employment on September 25, 1996. On September 24, 1999, plaintiff filed a complaint alleging, inter alia, that the termination of her employment was the product of race and gender discrimination. Defendant moved for summary disposition on several grounds. One of the arguments advanced by defendant was that plaintiff failed to meet the applicable three-year period of limitation on filing discrimination claims, MCL 600.5805(10). The circuit court denied the motion, concluding that plaintiffs causes of action for discriminatory termination arose on the date of termination, September 25, 1996. Therefore, plaintiffs filing of the complaint on September 24, 1999, satisfied the statute of limitations. The Court of Appeals granted defendant interlocutory leave to appeal. Relying primarily on Parker v Cadillac Gage Textron, Inc, 214 Mich App 288; 542 NW2d 365 (1995), the Court reversed the judgment of the circuit court, concluding that plaintiffs causes of action for discriminatory termination accrued on the last day plaintiff actually worked, September 5, 1996. Because plaintiff’s complaint was filed on September 24, 1999, the Court of Appeals held that it was time-barred. Plaintiff sought leave to appeal with this Court. n. standard of review Whether a cause of action is barred by a statute of limitations is a question of law, which we review de novo. Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 62; 642 NW2d 663 (2002). Similarly, we review de novo decisions on summary disposition motions. First Pub Corp v Parfet, 468 Mich 101, 104; 658 NW2d 477 (2003). m. DISCUSSION In Parker, the plaintiffs were advised on December 3, 1990, that they would be among the next group of employees to be laid off pursuant to a work force reduction plan. On December 21, 1990, the plaintiffs worked their last day. However, the defendant’s records indicated that the plaintiffs’ “effective date of separation” was January 7, 1991. The plaintiffs filed claims for discriminatory termination on January 7, 1994, and the defendant moved for summary disposition on the ground that the period of limitation had expired. The Court of Appeals in Parker rejected the proposition that the period of limitation on a discriminatory employment termination claim begins to run on the “effective date of separation,” writing: A claim of discriminatory discharge accrues on the date the plaintiff is discharged. The last day worked is the date of discharge. Subsequent severance or vacation pay does not affect the date of discharge. In this case, plaintiffs filed their case more than three years after the date they were discharged. Despite the fact that January 7, 1991, may have been plaintiffs’ “effective” date of separation, it is undisputed that the last day they actually worked was December 21, 1990. [Parker, supra at 290 (internal citations omitted).] Relying on Parker, the Court of Appeals in the present case held that plaintiffs causes of action for discriminatory termination accrued on the last day she actually performed work for defendant. Because plaintiff was a suspended employee on the date of her termination, the Court of Appeals held that the day of her suspension served as her last day worked and, according to Parker, the date of her discharge. Accordingly, the Court reversed the trial court’s denial of defendant’s motion for summary disposition, disagreeing with the trial court that the applicable period of limitation began to run on the date plaintiff was actually terminated from employment as a result of the investigation. The Court of Appeals concluded: Because plaintiff’s last day of work was September 5, 1996, claims of race and gender discrimination were required to be filed on or before September 5, 1999. Since plaintiff’s complaint was not filed until September 24, 1999, her discrimination claims were time-barred and the trial court erred when it denied defendant’s motion for summary disposition on these claims. [Unpublished opinion per curiam, issued April 30, 2002 (Docket No. 227834), p 3.] In sum, the Court of Appeals held that the limitation period for plaintiff’s discrimination claims began to run on the date of her suspension, September 5, 1996, even though plaintiff’s employment was not terminated until September 25, 1996. The Court did so because the last day plaintiff “actually worked” was the date of her suspension on September 5, 1996, and the Court read Parker as instructing that the last day worked is always the date of discharge. We disagree. Properly understood, Parker's “last day worked” holding is limited to situations where a discriminatory discharge claim has already surfaced. We agree with Parker's holding because the “effective date of separation” there was not the date of discharge. Rather, where a plaintiff has already been subjected to an alleged discriminatory termination, a cause of action naturally accrues on the last day an employee worked. However, if a discharge has yet to occur, it cannot be said that the last day worked represents the discharge date. Simply put, a claim for discriminatory discharge cannot arise until a claimant has been discharged. Accordingly, the “last day worked” cannot represent the date of discharge, as held in Parker, where a claimant’s last day actually worked precedes the discharge. In the present case, even though plaintiff was suspended on September 5, 1996, and in retrospect that date represents the last day she actually worked, it was not until September 25, 1996 that she was actually discharged, or terminated, from employment. Unlike the plaintiffs in Parker who knew on the last day they worked that their employment had been terminated and that they were being discharged as employees on that date, on September 5, 1996, plaintiff in this case only knew that she had been suspended indefinitely. On September 5, 1996, plaintiff had not been terminated and thus had no causes of action based on her discharge on that date. In fact, although it may have been a foregone conclusion that the investigation would lead to plaintiff’s termination, it is clear that plaintiff’s official status as an employee was nothing other than “suspended” until September 25, 1996, when her employment was terminated as a result of the investigation. “Suspended” does not equate with “terminated” or “discharged,” and, thus, being suspended does not create a cause of action for discharge or termination. Accordingly, plaintiffs causes of action for discriminatory termination had yet to arise on the date of her suspension, September 5, 1996, and the limitation period does not begin to run before a cause of action accrues. Plaintiff had no causes of action for discriminatory termination on September 5, 1996. Because we hold that plaintiffs causes of action for discriminatory termination did not arise until the date she was discharged as an employee, September 25, 1996, plaintiffs filing of her complaint on September 24, 1999 satisfied the three-year period of limitation. Accordingly, the trial court properly denied defendant’s motion for summary disposition on this ground. IV. CONCLUSION For these reasons, we reverse in part the judgment of the Court of Appeals and remand to that Court for further proceedings consistent with this opinion. In all other respects, leave to appeal is denied. Corrigan, C.J., and Weaver, Taylor, Young, and Markman, JJ., concurred. Cavanagh and Kelly, JJ., concurred in the result only. For ease of reference, defendants Comerica Bank and Cathy Masalskis will collectively be referred to as “defendant.” Plaintiff signed the following agreement: I, Gwen Collins, understand effective Thursday, Sept. 5, 1996, I am being suspended indefinitely with pay pending further investigation. I understand that I must be available to the bank during my normal scheduled working hours. We note that Sumner v The Goodyear Tire & Rubber Co, 427 Mich 505; 398 NW2d 368 (1986), does not compel a different result. Sumner concerned the “continuing violation theory,” which is not relevant to a cause of action for discriminatory termination of employment, because a termination occurs at a fixed time and is not susceptible to being a continuing violation. Plaintiff has filed suit for discriminatory termination, not discriminatory suspension. Because the Court of Appeals dismissed plaintiff’s discrimination claims on .the basis of a statute of limitations analysis, it did not address defendant Masalskis’s alternative issue concerning whether she was properly served. Accordingly, the Court of Appeals should address this matter on remand. We do not disrupt the judgment of the Court of Appeals regarding the timeliness of plaintiffs claims for tortious interference of contract and business relations and invasion of privacy.

MARY WILLIAMS, Plaintiff v. BLUE CROSS BLUE SHIELD OF NORTH CAROLINA, Defendant v. ORANGE COUNTY, ORANGE COUNTY BOARD OF COMMISSIONERS, and ORANGE COUNTY HUMAN RELATIONS COMMISSION, Counterclaim Defendants No. 277PA01 (Filed 13 June 2003) 1. Statutes of Limitation and Repose— constitutionality of statute — continuing violation runs from enforcement The statute of limitations did not bar a counterclaim for a declaratory judgment that challenged the constitutionality of an Orange County anti-discrimination ordinance and its enabling legislation because the alleged wrong constitutes a continuing violation. Although Orange County asserts that the statute of limitations ran from the effective date of the ordinance or the enabling legislation, this suit and a companion case were the first two suits brought pursuant to the ordinance and BCBSNC had no certainty that it would run afoul of the ordinance until it was enforced. 2. Laches— constitutionality of statute — runs from enforcement A counterclaim challenging the constitutionality of an Orange County anti-discrimination ordinance was not barred by laches, even though it was filed five and one-half years after the ordinance was adopted and eight and one-half years after the enabling legislation and Orange County had expended large amounts of money, time, and administrative effort in the creation and enforcement of the legislation and the ordinance, because this suit and a companion case were the first two suits brought pursuant to the ordinance and BCBSNC moved expeditiously once the suits were filed. 3. Constitutional Law— North Carolina — local act — anti-discrimination ordinance The employment discrimination provision of an Orange County anti-discrimination ordinance and its enabling legislation constituted local acts within the meaning of Article II, Section 24 of the North Carolina Constitution because, using the reasonable classification test, it could not be concluded that conditions in Orange County are suspect to such an extent that the legislature could legally create a separate classification to address employment discrimination in that county only. 4. Constitutional Law— North Carolina — local act prohibition — labor and trade The employment discrimination provisions of an Orange County anti-discrimination ordinance and its enabling legislation regulated labor and trade and violated the local act provisions of the North Carolina Constitution because the effect was to govern labor practices even though the intent was to prohibit discrimination. 5. Constitutional Law— North Carolina — local act — permissive — invalid Legislation enabling an Orange County anti-discrimination ordinance was invalid (as applied to employment) as a prohibited local act regardless of whether Orange County chose to act on the legislation. A statute’s validity is judged by what is possible rather than by what has been done. 6. Counties— delegation of power from state — ordinance exceeding state and federal standard — employment discrimination Orange County did not possess the inherent authority to pass an employment discrimination ordinance under N.C.G.S. § 153A-121(a), which gives counties the power to enact ordinances protecting the health and welfare of its citizens and the peace and dignity of the county, and N.C.G.S. § 160A-174, which provides that state and federal law making an act unlawful do not preclude city ordinances requiring a higher standard of conduct. The ordinance in this case goes beyond requiring a higher standard of conduct and creates a new and independent framework for litigation which substantially exceeds the leeway permitted by these statutes. Justices Martin and Brady did not participate in the consideration or decision of this case. On discretionary review pursuant to N.C.G.S. § 7A-31, prior to a determination by the Court of Appeals, of an order for partial summary judgment entered 13 November 2000 and an amended order for partial summary judgment entered 23 January 2001 by Judge Steven A. Balog in Superior Court, Orange County. Heard in the Supreme Court 11 December 2001. Maupin Taylor & Ellis, P.A., by Thomas A. Farr, M. Keith Kapp, Kevin W. Benedict, and Terence D. Friedman, for defendantappellee Blue Cross Blue Shield of North Carolina. Coleman, Gledhill & Hargrave, PC., by Geoffrey E. Gledhill and S. Sean Borhanian; and The Brough Law Firm, by Michael B. Brough, for defendant-appellants Orange County, Orange County Board of Commissioners, and Orange County Human Relations Commission. Office of the City Attorney, by Emanuel McGirt, for City of Durham, amicus curiae. Elliot, Pishko, Gelbin <6 Morgan, P.A., by Robert M. Elliot and J. Griffin Morgan, on behalf of the North Carolina Academy of Trial Lawyers; and Seth H. Jaffe, for the American Civil Liberties Union of North Carolina Legal Foundation, Inc., amici curiae. Van Hoy, Reutlinger & Adams, by Philip Marshall Van Hoy and Stephen John Dunn, on behalf of Employers Association and Capital Associated Industries, Inc., amici curiae. Edwards, Ballard, Clark, Barrett and Carlson, P.A., by Kenneth P. Carlson, Jr., on behalf of North Carolina Society of Human Resource Management, amicus curiae. North Carolina Association of County Commissioners, by C. Ronald Aycock, Counsel and Executive Director; and S. C. Kitchen, Durham County Attorney, amicus curiae. Office of the County Attorney, by E. Holt Moore, III, for New Hanover County Human Relations Commission, amicus curiae. City of Asheville, by Robert W. Oast, Jr., City Attorney, amicus curiae. City of Durham, by Emanuel McGirt, City Attorney, amicus curiae. Moore & Van Allen, PLLC, by George M. Teague, on behalf of North Carolina Citizens for Business and Industry; and P. Andrew Ellen for the North Carolina Retail Merchants Association, amici curiae. EDMUNDS, Justice. In this action, we are called upon to determine: (1) whether the North Carolina General Assembly violated Article II, Section 24 of the North Carolina Constitution by ratifying enabling legislation permitting Orange County, the Orange County Board of Commissioners, and the Orange County Human Relations Commission (collectively, counterclaim defendants) to enact and enforce the employment provisions of an antidiscrimination ordinance entitled the Orange County Civil Rights Ordinance (the Ordinance); and (2) whether counterclaim defendants acted illegally in enacting and enforcing the employment provisions of that Ordinance. For the reasons that follow, we affirm the trial court’s grant of partial summary judgment to defendant Blue Cross Blue Shield of North Carolina (BCBSNC) and denial of summary judgment to counterclaim defendants. Pursuant to N.C.G.S. § 160A-492, the Orange County Board of Commissioners (the Board of Commissioners) in 1987 established the Orange County Human Relations Commission (the HRC). See N.C.G.S. § 160A-492 (2001) (“[t]he governing body of any city, town, or county is hereby authorized to undertake . . . human relations, community action and manpower development programs . . . [and] may appoint such human relations, community action and manpower development committees or boards and citizens’ committees, as it may deem necessary in carrying out such programs and activities”). The Board of Commissioners’ mandate to the HRC was that it (1) study and make recommendations concerning problems in the field of human relationships; (2) anticipate and discover practices and customs most likely to create animosity and unrest and to seek solutions to problems as they arise; (3) make recommendations designed to promote goodwill and harmony among groups in the County irrespective of their race, color, creed, religion, ancestry, national origin, sex, affectional preference, disability, age, marital status or status with regard to public assistance; (4) monitor complaints involving discrimination; (5) address and attempt to remedy the violence, tensions, polarization, and other harm created through the practices of discrimination, bias, hatred, and civil inequality; and (6) promote harmonious relations within the county through hearings and due process of law.... Orange County Civil Rights Ordinance, art. II, sec. 2.1(a), at 1 (effective 1 January 1995) [hereinafter Ordinance]. Thereafter, the HRC advertised and conducted public hearings on discrimination in the areas of employment, housing, and public accommodation and determined that discrimination in those areas existed in Orange County on the basis of race, color, religion, sex, national origin, age, disability, familial status, marital status, sexual orientation, and veteran status. See Ordinance, art. II, sec. 2.1(b), (c). As a result of these findings, the Board of Commissioners requested that the North Carolina General Assembly adopt enabling legislation allowing Orange County to enact a comprehensive civil rights ordinance. In response, the General Assembly ratified chapter 246 of the 1991 Session Laws on 10 June 1991, effective that same day. Act of June 10, 1991, ch. 246, sec. 6, 1991 N.C. Sess. Laws 456, 460. This legislation was passed both to aid Orange County in addressing the concerns raised by the HRC and to authorize Orange County to create or designate a commission to assist in the implementation of the Ordinance. Section 6 of chapter 246 authorized the Board of Commissioners to adopt an ordinance to be referred to either as a “Civil Rights Ordinance” or a “Human Rights Ordinance.” Id. On 23 March 1993, the Board of Commissioners adopted a resolution requesting that the Orange County delegation to the General Assembly introduce a rewrite of the 1991 legislation to provide for “local administration of federal and [s]tate laws prohibiting discrimination on the basis of race, color, religion, sex, national origin, age, disability, marital status, familial status, and veteran status.” The General Assembly made the requested amendments by enacting section 14 of chapter 358 of the 1993 Session Laws, effective upon ratification on 16 July 1993. Act of July 16, 1993, ch. 358, sec. 14, 1993 N.C. Sess. Laws 1158, 1169. After the General Assembly passed this enabling legislation, the Board of Commissioners, on 6 June 1994, adopted the Ordinance. On 18 April 1995, the Board of Commissioners adopted another resolution requesting from the General Assembly an amendment to the enabling legislation authorizing the HRC to serve as a deferral agency for cases deferred by the Equal Employment Opportunity Commission (EEOC) and the Department of Housing and Urban Development (HUD), pursuant to planned “worksharing agreements” with those agencies. These agreements would authorize transfer by the EEOC to Orange County of employment discrimination complaints filed with it originating in the county and transfer by HUD to Orange County of housing discrimination complaints arising in the county. Accordingly, the General Assembly enacted section 2, chapter 339 of the 1995 Session Laws, effective upon ratification on 28 June 1995. Act of June 28, 1995, ch. 339, sec. 2, 1995 N.C. Sess. Laws 802, 803. In its current form, the Ordinance is an antidiscrimination law applicable only in Orange County and administered by counterclaim defendants. The employment provisions of the Ordinance provide in pertinent part: (a) It is unlawful for an employer: (1) To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to that individual’s compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, national origin, age, disability, familial status, or veteran status. Ordinance, art. IV, sec. 4.1(a)(1), at 9 (effective 1 January 1996). The Ordinance is enforceable by a private cause of action that permits those affected to recover injunctive relief, back pay, and compensatory and punitive damages up to $300,000. Ordinance, art. VIII, sec. 8.3.2, at 50-53; art. X, at 54-55. Different sections of the Ordinance prohibit discrimination in employment, housing, and public accommodations, as well as the infliction of bodily injury or property destruction on account of the factors listed above. The employment discrimination provision of the Ordinance became effective 1 January 1996 and applies to all employers engaged in an industry affecting commerce who have fifteen or more employees in Orange County. Ordinance, art. Ill, at 4. Specifically excepted employers include the State of North Carolina and the United States. Id. at 4-5. The Ordinance provides that when the HRC receives individual complaints of employment discrimination, it may begin its investigation by requesting a statement of the employer’s position regarding the allegations. Ordinance, art. VIII, sec. 8.1, at 39-42. HRC may also issue subpoenas to obtain documents and materials from the employer. Id. After completing its investigation, the HRC issues either a finding of cause to believe discrimination occurred or a finding that reasonable cause does not exist. Ordinance, art. VIII, sec. 8.2, at 42-46. If the HRC finds cause to exist, attempts are made to resolve the complaint by conference, conciliation, and/or persuasion. Ordinance, art. VIII, sec. 8.1, at 42. If these efforts fail, the HRC issues a right-to-sue letter, Ordinance, art. VIII, sec. 8.2, at 45, allowing the complainant to litigate the matter in the Superior Court, Orange County, within one year of receipt of the letter, Ordinance, art. X, at 54. As an alternative if cause is found to exist, the HRC itself can instead choose to litigate the employment discrimination claim before a state administrative law judge (ALJ). Ordinance, art. VIII, sec. 8.2(j)(l), at 45. In such a case, the employer has no opportunity to opt out of the administrative process and demand a jury trial in state court. Ordinance, art. VIII, sec. 8.3.1(a), at 46. Any decision by the AU is automatically reviewed by a three-member panel of the HRC commissioners. Ordinance, art. VIII, sec. 8.3.l(j)(l), at 48. A reviewing panel has the discretion to review all aspects of the AU’s findings, including findings of fact, credibility determinations, and legal findings, and may affirm, modify, or reverse the ALJ’s recommended decision. Id. In the case at bar, plaintiff Mary Williams filed claims with the HRC and the EEOC alleging discrimination on the grounds that she had been forced to resign from her employment with BGBSNC because of her age and sex, and also alleging that BCBSNC had retaliated against her for filing the discrimination claim. Following an investigation, the HRC found reasonable cause to believe that BCBSNC had discriminated against plaintiff based on her age and gender, and issued a right-to-sue letter. Plaintiff filed the suit giving rise to the instant appeal in Superior Court, Orange County, on 23 March 1999, claiming that BCBSNC fired her because of her age and also in retaliation for filing a claim of discrimination with the HRC and the EEOC. Specifically, plaintiff alleged four causes of action: (1) that BCBSNC wrongfully discharged plaintiff because of her age, in violation of North Carolina public policy as set forth in the Equal Employment Practices Act (EEPA), N.C.G.S. ch. 143, art. 49A (2001), and the Ordinance; (2) that BCBSNC wrongfully discharged plaintiff because she filed a charge of age discrimination with the HRC and the EEOC, in violation of North Carolina public policy as set forth in the EEPA and the Ordinance; (3) that BCBSNC discharged plaintiff because of her age, in violation of the Ordinance; and (4) that BCBSNC discharged plaintiff in retaliation for filing a complaint with the HRC in violation of the Ordinance. BCBSNC removed the suit to the United States District Court for the Middle District of North Carolina, asserting that plaintiffs claims raised substantial questions of federal law. On 29 July 1999, the federal court remanded the case to Superior Court, Orange County, holding that because plaintiff had chosen to assert only state law claims, she was entitled to proceed in state court. After the trial court on 1 November 1999 approved BCBSNC’s motion to add a counterclaim, BCBSNC filed its amended answer and counterclaim. This new filing contained a declaratory judgment action (denominated as the counterclaim), asserting that the enabling legislation and the Ordinance violated Article II, Section 24(l)(j) of the North Carolina Constitution, which prohibits “any local, private, or special act or resolution . . . [r]egulating labor, trade, mining, or manufacturing.” N.C. Const, art. II, § 24(l)(j). On 31 July 2000, BCBSNC filed a further amended answer and first amended counterclaim, adding a claim that the Ordinance denied BCBSNC equal protection of the law. Beginning on 6 November 2000, the trial court heard cross-motions for summary judgment. BCBSNC’s motion was based upon a claim that the Ordinance’s employment discrimination provisions were unconstitutional, while counterclaim defendants’ motion argued that the Ordinance was constitutional in its entirety but that, even if it were not, BCBSNC was precluded from attacking the Ordinance based on the affirmative defenses of laches and the statute of limitations. After hearing arguments and reviewing the parties’ briefs, the trial court on 13 November 2000 entered an order declaring the employment provisions of the Ordinance to be in violation of Article II, Section 24 of the North Carolina Constitution, and in violation of the equal protection guarantees of the Fourteenth Amendment to the United States Constitution and Article I, Section 19 of the North Carolina Constitution. The trial court also enjoined counterclaim defendants from enforcing the unlawful employment discrimination provisions of the Ordinance as well as any civil rights investigations and civil actions thereunder. Pursuant to the request of counterclaim defendants, and with the consent of BCBSNC, the trial court on 23 January 2001 amended its order to certify its decision for interlocutory appeal under Rule 54(b) of the North Carolina Rules of Civil Procedure and section 1-277 of the North Carolina General Statutes. N.C. R. Civ. P. 54(b); N.C.G.S. § 1-277 (2001). Counterclaim defendants filed notice of appeal on 19 February 2001. This Court allowed discretionary review on 19 July 2001, prior to determination by the Court of Appeals pursuant to section 7A-31. N.C.G.S. § 7A-31 (2001). As a preliminary matter, we observe that the only issues before us pertain to the employment provisions of the enabling legislation and the Ordinance. Because the parties had no occasion to brief or argue the constitutionality of the provisions of the enabling legislation and the Ordinance relating to housing and public accommodation and because the following analysis consequently focuses only on the employment provisions, we express no opinion as to the legality of any aspect of either the enabling legislation or the Ordinance unrelated to employment. We first consider whether the trial court erred in concluding that BCBSNC’s declaratory judgment action against counterclaim defendants was not barred by the statute of limitations. Summary judgment may be granted in a declaratory judgment proceeding, N. C. Farm Bureau Mut. Ins. Co. v. Briley, 127 N.C. App. 442, 444, 491 S.E.2d 656, 657 (1997), disc. rev. denied, 347 N.C. 577, 500 S.E.2d 82 (1998), where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law,” N.C.G.S. § 1A-1, Rule 56(c) (2001). “When the statute of limitations is properly pleaded and the facts of the case are not disputed[,] resolution of the question becomes a matter of law and summary judgment may be appropriate.” Marshburn v. Associated Indem. Corp., 84 N.C. App. 365, 369, 353 S.E.2d 123, 126, disc. rev. denie

<bold>1. Pleadings — 12(b)(6) motion to dismiss — consideration of documents</bold> <bold>not attached to complaint — motion not converted to summary judgment</bold> <block_quote> A motion to dismiss for failure to state a claim was not converted into a motion for summary judgment where the court considered documents not attached to the complaint. Those documents were referred to in the complaint and formed the procedural basis for the complaint.</block_quote><page_number>Page 253</page_number> <bold>2. Employer and Employee — retaliatory discharge — time limit for claim</bold> <block_quote> The 180-day time limit for filing a Retaliatory Employment Discrimination Act claim with the North Carolina Department of Labor is mandatory even though there is no express statutory consequence for failing to file within the time limit.</block_quote> <bold>3. Statutes of Limitations and Repose — retaliatory discharge —</bold> <bold>time limits for filing</bold> <block_quote> There is no merit in the argument that the 3-year limitations period of N.C.G.S. § <cross_reference>1-52</cross_reference> should control the 180-day filing limit of the Retaliatory Employment Discrimination Act.</block_quote> <bold>4. Employer and Employee — retaliatory discharge — motion to amend —</bold> <bold>additional claim — responsive pleading not filed — futile motion</bold> <block_quote> The trial court properly denied plaintiff's motion to amend his complaint to assert an additional claim under the Retaliatory Employment Discrimination Act based on an alleged post-complaint incident of discrimination where the original claim was time-barred and plaintiff failed to file his additional claim with the N.C. Department of Labor before seeking to add it to his complaint so that allowance of the amendment would have been futile.</block_quote> <bold>5. Employer and Employee; Workers' Compensation — wrongful discharge —</bold> <bold>assertion of workers' compensation rights — amen