Discrimination Cases

Sandy Williams vs. Episcopal Diocese of Massachusetts & another. Suffolk. February 4, 2002. - April 25, 2002. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Church. Religion. Employment, Discrimination. Anti-Discrimination Law, Employment, Termination of employment. Constitutional Law, Establishment of religion, Freedom of religion. Jurisdiction, Ecclesiastical controversy. The First Amendment to the United States Constitution precluded a Superior Court judge’s exercise of jurisdiction over an employment discrimination complaint brought by a priest against the Episcopal Diocese of Massachusetts and its presiding bishop, where resolution of the dispute would involve assessment of the diocese’s priorities of its ministries and require the defendants to defend the church’s policies regarding its ministers. [579-582] This court declined to address the issue, not presented on the facts of an appeal, whether the First Amendment provided a complete barrier to a minister’s complaints of conduct by church superiors that properly could be characterized as sexual harassment in the context of an employment discrimination claim. [582-583] Civil action commenced in the Superior Court'Department on July 21, 2000. A motion to dismiss was heard by Margaret R. Hinkle, J. The Supreme Judicial Court granted an application for direct appellate review. David R Angueira for the plaintiff. L. Martin Nussbaum, of Colorado (William F. Looney, Jr., & Kimberly Y. Jones with him) for the defendants. The presiding Bishop of the Episcopal Diocese of Massachusetts. Greaney, J. The plaintiff, an Episcopal priest, filed an employment discrimination action in the Superior Court, alleging that the defendants, the Episcopal Diocese of Massachusetts (Diocese) and the Right Reverend M. Thomas Shaw (the presiding bishop of the Diocese [Bishop]), discriminated against her based on her gender, in violation of G. L. c. 151B, § 4 (1) and (4), resulting in her constructive discharge when she was forced to resign from her position as an ordained minister and vicar of Saint Andrew’s Episcopal Church of the Deaf in Brookline (St. Andrew’s). The plaintiff’s complaint alleges that (1) throughout her employment, she was paid considerably less than her similarly situated male colleagues; (2) when she complained about the disparate treatment, she was admonished and threatened with termination; and (3) she was constructively discharged as a result of being forced to work in a hostile work environment. The defendants moved to dismiss under Mass. R. Civ. R 12 (b) (6), 365 Mass. 754 (1974), or, alternatively, for summary judgment under Mass. R. Civ. P. 56, 365 Mass. 824 (1974). A Superior Court judge considered the defendants’ motion as one pursuant to Mass. R. Civ. P. 12 (b) (1), 365 Mass. 754 (1974), and allowed the motion on the ground that the First Amendment to the United States Constitution precludes civil courts from adjudicating disputes between a priest and her diocese. We granted the defendants’ application for direct appellate review, and we now affirm the judgment of dismissal. We begin by summarizing the factual background of this dispute, incorporating relevant facts alleged by the plaintiff in her complaint and supporting affidavit, as well as undisputed facts presented in documents submitted by the parties that were considered by the judge. In 1989, the plaintiff was hired by the Diocese to be director of liturgical life at Saint Andrew’s, and to act as liaison between the deaf community and the Diocese. Part of the plaintiff’s job was to advocate for the members of her congregation and defend their rights under civil and canon law. During the eight years of her employment, the plaintiff claims, she was treated disparately as compared to her male counterparts, including, but not limited to, her rate of pay and benefits. When the plaintiff complained of the disparate treatment, she was either ignored, had her salary and benefits frozen or reduced, or was told that she had no civil or ecclesiastical right to question the treatment she received. Specifically, the plaintiff’s affidavit states that, when she interviewed for the position at Saint Andrew’s, she was given an information packet that contained a salary and benefit range that was above the level of compensation she eventually received for her work. Her complaints to the Diocesan treasurer regarding the insufficient travel allowance provided her, according to the plaintiff, marked “the start of a pattern of behavior directed at [her] that was not directed at [her] male counterparts.” The plaintiff’s affidavit states that the presiding bishop of the Diocese at that time (the predecessor to the Bishop who is a defendant in this action) consistently discredited her work and excluded her from important meetings. He once attempted to fire the plaintiff. Shortly after a new presiding bishop (the defendant Shaw) was elected, the plaintiff discussed with him the discriminatory actions taken against her and informed him that she was considering legal action against the Diocese. The Bishop then expressed his desire to work things out with the plaintiff. Although she received regular salary raises for the next two years, the plaintiff states in her affidavit that she “do[es] not believe [she] was ever raised to the Diocesan minimum standard, nor to the level of [her] male counterparts.” The plaintiff continued to feel ignored by the Diocese. When the plaintiff expressed interest in relocating her ministry from Saint Andrew’s, due to the possibility of a gift of land on the North Shore that was adjacent to two institutions for the deaf, the plaintiff felt that the Bishop failed sufficiently to consider the matter. The plaintiff’s affidavit states that “if [she] had not been a woman, [the Bishop] would have taken this issue seriously, which he didn’t.” On April 21, 1997, on learning that the Bishop intended to conduct an evaluation of her ministry by outside consultants, the plaintiff tendered the Bishop her letter of resignation, effective July 31, 1997. The plaintiff’s letter offered the following reasons for her resignation: (1) “the failure of the Episcopacy and the Episcopal staff to recognize and respect the primary role that the members of St. Andrew’s must have in deciding, not only their own destiny, but also the direction of [d]eaf [mjinistry in the Diocese”; (2) the Bishop’s “failure to respect and trust [the plaintiff’s] insights and judgments .... [The Bishop’s] need to bring in [a m]issioner to the [d]eaf from another [d]iocese to evaluate the program here indicates to me that you do not trust the [m]issioner you have”; (3) the lack of “advocacy and support, both tangible and emotional, from the Episcopacy” and the “cloud of distrust and animosity that ha[s] plagued this Diocese since before either [the Bishop or the plaintiff] were ordained”; and (4) the “inequity of salary and benefits” that she was receiving. The judge allowed the defendants’ motion to dismiss the plaintiff’s claims on the ground that the First Amendment deprived the Superior Court of subject matter jurisdiction. The judge recognized that the doctrine known as the “ministerial exception,” adopted by Federal courts in the context of Federal employment discrimination suits, precludes civil courts from adjudicating employment discrimination suits by ministers against their church or religious institution. See McClure v. Salvation Army, 460 F.2d 553, 559-561 (5th Cir.), cert. denied, 409 U.S. 896 (1972) (reviewing cases in which United States Supreme Court had placed matters of church government and administration beyond regulation of civil authorities; holding that application of Title VII of the Civil Rights Act of 1964 to employment relationships between ministers and churches involves prohibited intrusion into matters of ecclesiastical concern). See also Combs v. Central Tex. Annual Conference of the United Methodist Church, 173 F.3d 343, 348-349 (5th Cir. 1999); Schmoll v. Chapman Univ., 70 Cal. App. 4th 1434, 1436, 1438-1440 (1999); Van Osdol v. Vogt, 908 P.2d 1122, 1129, 1132-1133, 1134 (Colo. 1996); Newport Church of the Nazarene v. Hensley, 161 Or. App. 12, 22-23 (1999). The “ministerial exception” doctrine is based on the premise that a minister’s relationship to an organized church is intrinsically religious. Because civil resolution of disputes surrounding a minister’s employment unavoidably would involve investigation and review of the church’s practices and decisions with respect to, among other matters, the minister’s assignment, salary, and duties, allowing jurisdiction of employment discrimination claims would result in governmental intrusion into an area of religious freedom forbidden by the principles of the First Amendment. See McClure v. Salvation Army, supra at 560 (articulating, for first time,- the “ministerial exception” to Title VII claims). In the words of the United States Court of Appeals for the Fifth Circuit in the McClure decision, as quoted by the judge: “The relationship between an organized chinch and its ministers is its lifeblood. The minister is the chief instrument by which the church seeks to fulfill its purpose. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern. Just as the initial function of selecting a minister is a matter of church administration and government, so are the functions which accompany such a selection. It is unavoidably true that these include the determination of a minister’s salary, his place of assignment, and the duty he is to perform in the furtherance of the religious mission of the church.” Id. at 558-559. The judge reasoned that, given the “ministerial exception” doctrine’s widespread acceptance in Federal and State appellate courts, including its application by the United States Court of Appeals for the First Circuit, see Natal v. Christian & Missionary Alliance, 878 F.2d 1575 (1st Cir. 1989), and Dowd v. Society of St. Columbans, 861 F.2d 761 (1st Cir. 1988), the doctrine should be applied to this case. The judge subsequently concluded that the exception “squarely addressed” the plaintiff’s claims. 1. The plaintiff’s primary claim on appeal is that the judge erred in applying the “ministerial exception” to this case, because the challenged employment decisions do not implicate religious beliefs, procedures, or law. She asserts an entitlement to the opportunity to prove that any assertion of a legitimate motive on the defendants’ part is a pretext, and that she was constructively discharged solely because she is female. The plaintiff argues that courts should afford an aggrieved minister the same protections provided to plaintiffs in secular employment settings to investigate claims of illegal discrimination in the workplace. The plaintiff contends that the rule applied by the judge, which arbitrarily excludes employment discrimination claims by a minister against a church regardless of their basis, will lead to a situation where “any church and minister, no matter how outrageous and illegal the conduct, will be granted a license to flagrantly violate the discrimination laws of Massachusetts without repercussions.” It is not necessary that we respond to the plaintiff’s specific contentions regarding the “ministerial exception.” The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The principle that this language precludes jurisdiction of civil courts over church disputes touching on matters of doctrine, canon law, polity, discipline, and ministerial relationships is firmly established in Massachusetts case law. See Parish of the Advent v. Protestant Episcopal Diocese of Mass., 426 Mass. 268, 280 (1997); Fortin v. Roman Catholic Bishop of Worcester, 416 Mass. 781, 785, cert. denied, 511 U.S. 1142 (1994); Murphy v. I.S.K.Con. of New England, Inc., 409 Mass. 842, 850, cert. denied, 502 U.S. 865 (1991); Wheeler v. Roman Catholic Archdiocese of Boston, 378 Mass. 58, 61, cert. denied, 444 U.S. 899 (1979). The facts alleged in the plaintiff’s complaint and supporting affidavit present a quintessential example of such a church dispute. The plaintiff’s resignation appears to have been motivated, essentially, by her frustration over the direction of her ministry and the perceived value placed on it by her superiors. A trial on this matter clearly would involve assessment of the church’s priorities of its ministries and require the defendants to defend the church’s policies regarding its ministers. Thus, jurisdiction is precluded in this case, regardless of whether we adopt the “ministerial exception.” It is true that the plaintiff’s claims do not, on their face, question the verity of religious doctrines or beliefs. It is hard to conceive, however, how a court could inquire into the reasons for the defendants’ decisions regarding the plaintiff’s ministry without intruding into matters of the internal management of the Diocese. Irrespective of whether the defendants’ treatment of the plaintiff and her ministry was based on legitimate or illegitimate grounds, the plaintiff’s claims, by their very nature, implicate the defendants’ First Amendment rights. To argue otherwise diminishes the importance of the constitutional separation of chinch and State. We reject the plaintiff’s contention that a balancing test is appropriate to determine to what extent judicial scrutiny of her claims would offend the defendants’ religious freedoms under either the establishment clause, see Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971), or the free exercise clause, see Sherbert v. Verner, 374 U.S. 398, 407 (1963), of the First Amendment. The application of First Amendment principles, in circumstances such as these, involves no balancing test. If adjudication of the plaintiff’s claims would implicate matters of ecclesiastical relationships, the courts should not intrude. See Madsen v. Erwin, 395 Mass. 715, 722-723 (1985) (“the decision to fire [the plaintiff] can only be construed as a religious one, made by a Church as employer”); Alberts v. Devine, 395 Mass. 59, 72-73, cert. denied sub nom. Carroll v. Alberts, 474 U.S. 1013 (1985) (“It is clear that the assessment of an individual’s qualifications to be a minister, and the appointment and retirement of ministers, are ecclesiastical matters entitled to constitutional protection against judicial or other State interference”); Natal v. Christian & Missionary Alliance, 878 F.2d 1575, 1578 (1st Cir. 1989) (no jurisdiction over minister’s claim of wrongful termination, notwithstanding allegation that organization failed to follow own rules; “[b]y its very nature, the inquiry . . . plunges an inquisitor into a maelstrom of Church policy, administration, and governance”); Dowd v. Society of St. Columbans, 861 F.2d 761, 764 (1st Cir. 1988) (“actions involving] rules, policies, and decisions [] should be left to the exclusive religious jurisdiction of the church”). The plaintiff’s attempts to frame this action as a secular dispute pertaining to the defendants’ “unlawful acts in violation of their own company policies and procedures specifically enacted ... to prohibit discrimination of any type against its employees” is unavailing. That the Diocese may have acted in violation of antidiscrimination policies set forth in its own personnel handbook is irrelevant. We decline to venture into the realm of interpreting internal guidelines and procedures that have been adopted by the Episcopal Church. As discussed above, a church must be free to decide for itself what its obligations to its ministers are, without being subject to court interference. See Dowd v. Society of St. Columbans, supra at 764 (“The [Diocese’s] own internal guidelines and procedures must be allowed to dictate what its obligations to its members are without being subject to court intervention”). 2. One final point merits discussion. The plaintiff’s counsel, at oral argument, suggested that the plaintiff’s claim involves prohibited conduct of a sexual nature. This basis for the plaintiff’s claim was not, apparently, presented to the judge, nor was it developed in the plaintiff’s brief submitted to this court. It is true that the plaintiff’s complaint states a claim of “gender harassment,” as well as for gender discrimination, against the Bishop and the Diocese. In her supporting affidavit, however, although the plaintiff stated that the Bishop’s predecessor treated her in an “uncomfortably ‘friendly’ ” manner and that he “put his arm around [her] several times, something he never did to men,” she also stated that he made no “overt sexual advances.” Importantly, she described his attitude toward her as merely “patronizing and condescending.” There is nothing in the record to support an inference of conduct that could properly be characterized as sexual harassment for purposes of G. L. c. 151B. This case does not present the question, therefore, considered by the United States Court of Appeals for the Ninth Circuit in Bollard v. California Province of the Soc’y of Jesus, 196 F.3d 940 (9th Cir. 1999), whether the First Amendment provides a complete barrier to a minister’s complaints of conduct by church superiors that properly could be characterized as sexual harassment in the context of an employment discrimination claim. See id. at 949-950 (considering plaintiff’s claims of sexual harassment by church; allowing limited inquiry into whether Jesuit order exercised reasonable care to prevent and correct sexual harassment, and whether plaintiff failed to take advantage of opportunities to limit harm). The First Amendment, as applied to the States by the Fourteenth Amendment to the United States Constitution, requires courts of this Commonwealth “to ensure that individuals or organizations are not unjustly deprived of their right to exercise freely their religious beliefs.” Murphy v. I.S.K.Con. of New England, Inc., 409 Mass. 842, 850 (1991). To the extent that this case involves a conflict between the legislative mandate of G. L. c. 15 IB to eliminate discrimination in the workplace and our constitutional mandate to preserve the separation of church and State, the constitutional directive must prevail. 3. We treat the judgment that was entered as a judgment under Mass. R. Civ. P. 12 (b) (1) and, so treated, the judgment is affirmed. So ordered. Although the issue is not raised by either party, we note that the judge properly converted the defendant’s motion under Mass. R. Civ. R 12 (b) (6), 365 Mass. 754 (1974), as one pursuant to Mass. R. Civ. R 12 (b) (1), 365 Mass. 754 (1974). The judge, however, could have decided the motion on the ground of the complaint’s failure to state a claim on which relief can be granted. See Mathias v. Beatrice Foods Co., 23 Mass. App. Ct. 915, 916 n.4 (1986). See also Madsen v. Erwin, 395 Mass. 715, 717 (1985) (jurisdiction preclusion based on First Amendment protection raised in context of motion to dismiss under rule 12 [b] [6]); Natal v. Christian & Missionary Alliance, 878 F.2d 1575, 1576 (1st Cir. 1989) (same issue raised in context of motion to dismiss under Fed. R. Civ. P. 12 [b] [6]). The important point is that consideration of matters outside of the pleadings generally compels a judge to treat a motion to dismiss under rule 12 (b) (6) as a motion for summary judgment. See Watros v. Greater Lynn Mental Health & Retardation Ass’n, Inc., 421 Mass. 106, 109 (1995). Such is not the case when deciding a motion to dismiss under rule 12 (b) (1). See id. Cf. Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551, 555 (1999) (authorized in certain circumstances). This difference is not merely technical — under a rule 12 (b) (1) motion, a plaintiff bears the burden of proving jurisdictional facts, see New Hampshire Ins. Guar. Ass’n v. Markem Corp., 424 Mass. 344, 346 (1997); Brown v. Tobyne,

TREPANIER v NATIONAL AMUSEMENTS, INC Docket No. 224262. Submitted November 13, 2001, at Detroit. Decided April 5, 2002, at 9:00 AM. Leave to appeal sought. Gary Trepanier brought an action in the Genesee Circuit Court against National Amusements, Inc., his former employer, alleging that the defendant’s discharging him from his employment constituted a violation of the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seg., was in violation of public policy, was a breach of his contract with the defendant, and was unlawful because it was gender based. The plaintiff also alleged that the defendant had slandered him. After an intimate relationship between the plaintiff and a coworker had ended, the co-worker began to make threatening telephone calls to the plaintiff and his girlfriend at the plaintiff’s home. The plaintiff contacted the police, who advised him to request a personal protection order (ppo). The plaintiff then requested a ppo for the purpose of trying to stop the co-worker from making threatening telephone calls to the plaintiff’s home. After the plaintiff’s girlfriend contacted the defendant’s corporate headquarters and indicated that the plaintiff was being subjected to a hostile work environment, a corporate representative contacted the plaintiff and advised him to go home from work and to have no contact with the workplace until the representative could investigate. Although the plaintiff did stay away from the workplace, he admitted going to the co-worker’s home to ask her why she was harassing him. The corporate representative, upon learning that the plaintiff had contacted the co-worker at her home, terminated the plaintiffs employment, apparently believing that the plaintiff’s contact with the co-worker at her home violated the instructions that the representative had given to the plaintiff. The plaintiff stipulated the dismissal of the slander claim. The court, Archie L. Hayman, J., granted summary disposition for the defendant with respect to the plaintiff’s claims based on breach of contract and sex discrimination, but denied summary disposition for the defendant with respect the claims based on the wpa and discharge in violation of public policy. The plaintiff agreed to dismiss the claim based on violation of public policy. The defendant appealed by leave granted the trial court’s denial of summary disposition with respect to the wpa claim. The Court of Appeals held: 1. The plaintiff alleged that the defendant violated the provisions of the wpa by discharging him, in part, because he had sought a ppo against the co-worker. The defendant argued that the plaintiff had not been engaged in a protected activity under the wpa because the necessity of the ppo arose out of a personal affair and the plaintiff could neither show any direct connection between the ppo and the defendant’s business nor claim that the ppo was based on a desire to inform the public on a matter of public concern. 2. In order to establish a claim of an unlawful discharge under the WPA, the plaintiff was required to show that he was engaged in a protected activity as delineated in the wpa, that the defendant discharged him, and that a causal connection exists between the protected activity and the discharge. A protected activity under the wpa occurs where a person reports a violation or suspected violation of a law or regulation to a public body, is about to report such a violation to a public body, or is asked by a public body to participate in an investigation. 3. There is no question that the plaintiff’s request for a ppo on the basis of the co-worker’s threatening telephone calls constituted a protected activity under the provisions of the wpa. Although the evidentiary connection between the plaintiff’s protected activity in requesting the ppo and the defendant’s discharge of the plaintiff is a tenuous one, a sufficient evidentiary connection between the protected activity and the discharge was shown to allow a jury to find that the defendant’s discharge of the plaintiff resulted from the plaintiff’s undertaking of an activity protected under the provisions of the wpa. Accordingly, the trial court did not err in denying the defendant’s motion for summary disposition with respect to the wpa claim. Affirmed. Labor Relations — Whistleblowers’ Protection Act — Protected Activity — Personal Protection Orders. A claim of an unlawful discharge under the Whistleblowers’ Protection Act is established by showing that an employee was engaged in a protected activity as set forth in the Whistleblowers’ Protection Act, that the employer discharged the employee, and that a causal connection exists between the protected activity and the discharge; a protected activity under the Whistleblowers’ Protection Act occurs where a person reports a violation or suspected violation of a law or regulation to a public body, is about to report such a violation to a public body, or is asked by a public body to participate in an investigation; the seeking of a personal protection order by an employee against a co-worker in an effort to halt the co-worker’s harassment of the employee, even if the harassment takes place away from the workplace, may constitute a protected activity for the purpose of the Whistleblowers’ Protection Act (MCL 15.362). Law Offices of Glen Lenhoff (by Glen N. Lenhoff and Julie A. Gafkay), for the plaintiff. Collins, Einhom, Farrell & Ulanoff P.C. (by Janice G. Hildenbrand and J. Mark Cooney), for the defendant. Before: Cavanagh, P.J., and Doctoroff and Jansen, JJ. Per Curiam. Defendant appeals by leave granted from the trial court’s order denying its motion for summary disposition of plaintiff’s claim under the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seq. We affirm. Defendant employed plaintiff from 1983 until plaintiff was discharged on September 21, 1998. From 1995 until his termination, plaintiff was the managing director of defendant’s Showcase West Theater in Flint. In October or November 1996, plaintiff began a sexual relationship with Coleen Heathcoat, who was also employed by defendant. After the relationship ended in January 1997, Heathcoat began to make threatening telephone calls to plaintiff at his home, prompting plaintiff to change his telephone number. Heathcoat also complained to plaintiff’s supervisor, Brad Wick, who told plaintiff that he would have to work with Heathcoat in a businesslike manner and advised plaintiff not to let the personal relationship affect his work. In the fall of 1997, plaintiff and Heathcoat resumed their sexual relationship, which lasted until July 1998. In August 1998, Heathcoat again made threatening telephone calls to plaintiffs home. At the time, plaintiff had a live-in girlfriend, Linda Ptacek, who was unaware of plaintiff’s sexual relationship with Heathcoat. On August 27, 1998, plaintiff contacted the police, who recommended that plaintiff request a personal protection order (ppo). Plaintiff then requested a ppo to try to stop Heathcoat from calling his home and threatening his girlfriend. Plaintiff admitted that the ppo pertained to Heathcoat’s harassment at his home and did not have anything to do with her conduct at work. On August 31, 1998, Wick met with plaintiff again and offered to arrange a transfer for plaintiff. During this period, Ptacek contacted a senior vice president at defendant’s corporate office and reported that plaintiff was being subjected to a hostile work environment because of Heathcoat’s conduct and that plaintiff had applied for a ppo. At that point, Cindy Montgomery, an employee from defendant’s headquarters, told plaintiff to go home until she was able to arrive in Michigan to investigate. Plaintiff was assured that he would be paid, but was asked not to have any contact with the theater. On September 4, 1998, plaintiff went to Heathcoat’s home to ask her why she was harassing him. During a meeting with Montgomery, plaintiff admitted that he had gone to Heathcoat’s home. Although plaintiff did stay away from the theater as requested, Montgomery apparently believed that plaintiff’s contact with Heathcoat violated her instruction. At a meeting on September 21, 1998, Montgomery informed plaintiff that he was terminated. Montgomery admitted that among the factors she considered in recommending plaintiff’s termination were the second incident of threatening telephone calls by Heathcoat and plaintiff’s relationship with Heathcoat. In October 1998, plaintiff filed a complaint alleging several claims, including that defendant violated the wpa by discharging him in part because he sought a ppo against Heathcoat. Defendant moved for summary disposition of plaintiff’s claims. Regarding the wpa claim, defendant argued that plaintiff was not engaged in a protected activity under the wpa because the necessity for a ppo arose out of a personal affair between plaintiff and the co-worker and that plaintiff neither could show any direct connection between the ppo and defendant’s business nor could claim that his need for a ppo was based on any desire to inform the public on a matter of public concern. The court granted summary disposition for the defendant with respect to plaintiff’s claims of breach of contract and sexual discrimination; however, the court denied summary disposition with respect to plaintiff’s claims under the wpa and of discharge in violation of public policy. Plaintiff subsequently agreed to dismiss the latter claim. Defendant sought and was granted leave to appeal the trial court’s denial of its motion for summary disposition regarding plaintiff’s wpa claim. This Court reviews de novo a trial court’s decision regarding a motion for summary disposition. Baker v Arbor Drugs, Inc, 215 Mich App 198, 202; 544 NW2d 727 (1996). Because the trial court looked beyond the pleadings in deciding defendant’s motion, we review the motion under MCR 2.116(C)(10). A motion under MCR 2.116(C)(10) tests the factual support for a claim. The court considers the pleadings, affidavits, depositions, admissions, and other documentary evidence filed in the action or submitted by the parties in the light most favorable to the nonmoving party. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996); MCR 2.116(G)(5). Summary disposition may be granted if, except with regard to the amount of damages, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Babula v Robertson, 212 Mich App 45, 48; 536 NW2d 834 (1995). In order to establish a claim of an unlawful discharge under the WPA, plaintiff was required to show that (1) he was engaged in protected activity as defined by the act, (2) the defendant discharged him, and (3) a causal connection exists between the protected activity and the discharge. Chandler v Dowell Schlumberger Inc, 456 Mich 395, 399; 572 NW2d 210 (1998). A person is engaged in “protected activity” under the WPA where the person (1) reports a violation or suspected violation of a law or regulation to a public body, (2) is about to report such a violation to a public body, or (3) is asked by a public body to participate in an investigation. Id.) MCL 15.362. The principal issue in this case is whether plaintiff was involved in a protected activity, as that concept is delineated in the WPA, that was causally connected with his discharge from his employment. There is no question that plaintiff reported a violation or suspected violation of the law to a public body when he sought the ppo against his co-worker. Moreover, our Supreme Court has held that the wpa protects reports made against a co-worker, not just an employer. Dudewicz v Norris Schmid, Inc, 443 Mich 68, 74-75; 503 NW2d 645 (1993). However, defendant maintains that the finding that plaintiff engaged in protected activity by requesting a PPO regarding a matter that was not related to defendant’s business is not consistent with the intent behind the WPA. The wpa was enacted to encourage employees to assist in law enforcement and to protect employees who participate in whistleblowing activities. Dolan v Continental Airlines/Continental Express, 454 Mich 373, 378; 563 NW2d 23 (1997). The underlying purpose of the act was to protect the public and to promote public health and safety by removing barriers that may interfere with employee efforts to report violations or suspected violations of the law. Id. at 378-379. A plain reading of the wpa reveals that employees who report violations or suspected violations of the law to a public body are entitled to protection under the act. As interpreted, the act provides protection to employees who report violations of law by either their employers or fellow employees. . . . Frequently, a close connection exists between the reported violation and the employment setting, although no such limitation is found in the statute. [Id. at 381 (citations omitted).] In Dolan, the plaintiff alleged that she was fired for reporting to the Drug Enforcement Agency the names of two airline passengers who fit a suspect profile after the defendant adopted a policy against employees directly contacting the dea without prior management approval. The Supreme Court found that the reported violation was sufficiently related to the plaintiffs employment setting to be protected under the wpa, commenting: “This is not to say that only those violations that are connected to the employment setting are contemplated under the WPA, only that the reported violation in the present case was sufficiently connected to the employment setting to be contemplated under the majority opinion in Dudewicz.” Dolan, supra at 382. In Dudewicz, supra at 70-71, the plaintiff was assaulted by a co-worker while on the job as the result of the plaintiffs having involved one of the owners of the business in a customer service dispute. The plaintiff filed criminal charges against the coworker and was told to drop the charges or he would be fired. The Supreme Court concluded that the activity at issue, reporting a co-worker’s violation of the Criminal Code resulting from a dispute over the handling of company business, fell within the WPA. Id. at 75-76. The Court stated: Admittedly, a strictly liberal interpretation of the statute without an analysis of legislative intent arguably could lead to an interpretation that would bar discharge of an employee for reporting a crime by anyone under any circumstances. ... However, this is not the case and these are not the facts to test the outer limits of this rather broad statute. In concluding that it was intended to bar a discharge of an employee for reporting a crime by a fellow employee under the circumstances of this case does not begin to test those limits. In saying that, we note that not only was this a crime alleged to have been committed by a fellow employee, but the alleged crime arose out of a work incident at the work site. It is, therefore, very much within the employer-employee setting. [Dudewicz, supra at 77-78.] While the appellate courts of this state have opined that there are “outer limits” to a claim under the wpa, neither this Court nor the Supreme Court has defined those outer limits, leaving the issue to be decided case by case. See Terzano v Wayne Co, 216 Mich App 522, 528-529, 532; 549 NW2d 606 (1996). Although this case presents a close question, we conclude that summary disposition was properly denied. It is apparent that the plain language of the WPA does not limit protected activity to that which has a close connection to the work environment or to the employer’s business practices. MCL 15.362; Dolan, supra at 381. Moreover, remedial statutes, such as the WPA, should be “liberally construed in favor of the persons intended to be benefited.” Dudewicz, supra at 77. Therefore, we decline to interpret the wpa so as to create a limitation that is not apparent in the unambiguous language of the statute. Further, the submitted evidence established some connection, albeit a tenuous one, between plaintiff’s request for a ppo and defendant’s employment setting. Plaintiff showed that once he obtained the PPO, it became more difficult for him to work with Heathcoat. Further, there was evidence that, in firing plaintiff, defendant took into account the ongoing problems between plaintiff and his co-worker and how it was affecting defendant’s operations. Even if we were to conclude that the wpa only protects activity that is related to the conduct of the employer’s business, we would find that the evidence in this case meets that test. Defendant argues that plaintiff obtained the PPO for purely personal reasons, not out of concern for the public and, therefore, was not engaged in a protected activity, citing Shallal v Catholic Social Services of Wayne Co, 455 Mich 604, 621; 566 NW2d 571 (1997). However, the facts of Shallal are clearly distinguishable from the present case. In Shallal, the plaintiff told her agency’s president that she would report his alleged wrongdoing “if [he didn’t] straighten up.” Id. at 614. Our Supreme Court found that the threat was sufficient evidence that the plaintiff was “about to report” a violation or suspected violation of the law. Id. at 621. However, the Court concluded that the plaintiff failed to establish a causal connection between her actions and her firing because she used the threat of a report to prevent her termination. Id. at 622. [I]t is clear that plaintiff used her own situation to extort defendant not to fire her. . . . Furthermore, it is clear that the decision to fire plaintiff was made before her threat to [the agency president] and that plaintiff knew of this decision .... Plaintiff cannot use the whistleblowers’ act as a shield against being fired where she knew she was going to be fired before threatening to report her supervisor. To hold otherwise “would encourage other employees to hold off blowing the whistle until it becomes most advantageous for them to do so. Plaintiff has offered no evidence which suggests that the Michigan Legislature intended the Whistleblowers Act to be used as an offensive weapon by disgruntled employees.” [Id. at 622 (citations omitted).] Although plaintiff’s decision in this case to obtain a PPO may have been motivated by personal reasons, plaintiff did not use his protected activity to extort his employer, as did the plaintiff in Shallal. Further, although plaintiff’s primary purpose may have been to protect himself and his girlfriend from harassment, reasonable jurors could conclude that plaintiff was acting in the public’s interest, in addition to his own. Assuming the truth of plaintiffs assertions, Heath-coat’s threatening telephone calls could constitute aggravated stalking, a felony and a serious public safety issue. See MCL 750.41 li. Moreover, in this case there is evidence of a causal connection between plaintiff’s protected activity and his termination, namely, Montgomery’s admission that plaintiff was discharged because of circumstances surrounding Heathcoat’s harassment. Accordingly, we believe that the evidence, viewed most favorably to plaintiff, was sufficient to create a genuine issue of fact regarding whether plaintiff engaged in a protected activity for purposes of the wpa. Therefore, the trial court did not err in denying defendant’s motion for summary disposition. Affirmed. Plaintiff also alleged that (1) defendant terminated him in violation of public policy, (2) his discharge was in breach of a contract with defendant under which he could not be terminated without good cause, (3) defendant discharged him because of his gender in violation of MCL 37.2202, and (4) defendant slandered him. Plaintiff later stipulated the dismissal of his slander claim.

Messing, Rudavsky & Weliky, P.C. vs. President and Fellows of Harvard College. Suffolk. November 8, 2001. - March 19, 2002. Present: Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Supreme Judicial Court, Superintendence of inferior courts, Practice of law. Attorney at Law, Attorney-client relationship, Canons of ethics, Communication with organization represented by counsel. A law firm was entitled to review under G. L. c. 211, § 3, of a Superior Court judge’s order sanctioning the firm for violations of Mass. R. Prof. C. 4.2, and its predecessor, S.J.C. Rule 3:07, Canon 7, DR 7-104 (A) (1), where little guidance currently existed for attorneys in the area of professional responsibility at issue, resolution of the issue would have widespread implications for attorneys through the Commonwealth, and the issue might not be presented in the ordinary course of litigation. [350-351] Discussion of the application of Mass. R. Prof. C. 4.2, prohibiting an attorney from communicating with a represented party in the absence of that party’s attorney, to a situation in which the attorney’s ex parte communication is to the employees of an organization represented by counsel. [351-354] Discussion of various judicial interpretations in other jurisdictions that have adopted the same or similar versions of Mass. R. Prof. C. 4.2, prohibiting an attorney from communicating with a represented party in the absence of that party’s attorney, as to whether their own versions of the rule are properly linked to the admissions exception to the hearsay rule, and as to the precise scope of the rule as applied to organizations. [354-356] This court interpreted Mass. R. Prof. C. .4.2, prohibiting an attorney from communicating with a represented party in the absence of that party’s attorney, to ban contact only with those employees of an organization, when that organization is the represented party, who have the authority to commit the organization to a position regarding the subject matter of the attorney’s representation, who exercise managerial responsibility in the matter, or whose act or omission in connection with the matter could be imputed to the organization for purposes of civil or criminal liability. [356-360] Cordy, J., concurring in part and dissenting in part. A law firm did not violate Mass. R. Prof. C. 4.2, prohibiting an attorney from communicating with a represented party in the absence of that party’s attorney, where the five employees of a represented organization interviewed by the law firm were not involved in directing the litigation at bar or authorizing the organization to make binding admissions; where the employees were not employees whose act or omission in connection with the matter could be imputed to the organization for purposes of civil or criminal liability, but rather were mere witnesses to the events that occurred; and where none of the employees had managerial responsibility on behalf of the organization with regard to the subject of the representation. [360-361] Cordy, J., concurring in part and dissenting in part. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on May 17, 2001. The case was reported by Spina, J. Wendy H. Sibbison for the plaintiff. David C. Casey (Scott Moriarty with him) for the defendant. The following submitted briefs for amici curiae: John Leubsdorf, of New York, for Teachers of Professional Responsibility. Jonathan J. Margolis & Paula A. Brantner for National Employment Lawyers Association. Mary T. Sullivan & Donald J. Siegel for AFL-CIO & others. Elaine R. Jones, Theodore M. Shaw, Norman J. Chachkin, James L. Cott & Robert H. Stroup for NAACP Legal Defense & Educational Fund, Inc., & others. William C. Newman & Sarah R. Wunsch for American Civil Liberties Union of Massachusetts. Luz Arevalo, Monica Halas, Carol R. Mallory, Allan G. Rodgers & Ernest Winsor for Greater Boston Legal Services & another. Arthur G. Telegen, Jennifer W. Corinis, Richard Alfred, Sey-farth Shaw & Cynthia Amara for Boston Area Management Attorneys Group & another. Thomas F. Reilly, Attorney General, Laura Maslow-Armand, Pamela L. Hunt & Hilary Weinert Hershman, Assistant Attorneys General, for the Attorney General. Cowin, J. The law firm of Messing, Rudavsky & Weliky, P.C. (MR&W), appeals from an order of the Superior Court sanctioning the firm for violations of Mass. R. Prof. C. 4.2, 426 Mass. 1402 (1998), and its predecessor, S.J.C. Rule 3:07, Canon 7, DR 7-104 (A) (1), as appearing in 382 Mass. 786 (1981). Both versions of the rule prohibit attorneys from communicating with a represented party in the absence of that party’s attorney. This appeal raises the issue whether, and to what extent, the rule prohibits an attorney from speaking ex parte to the employees of an organization represented by counsel. A judge in the Superior Court interpreted the rule to prohibit communication with any employee whose statements could be used as admissions against the organization pursuant to Fed. R. Evid. 801 (d) (2) (D), and sanctioned MR&W for its ethical breach. We vacate the order and remand for entry of an order denying the motion for sanctions. On appeal, MR&W contends that the judge’s construction of the rule is overly broad and results from an incorrect interpretation of the rule’s commentary. In addition, MR&W contends that the judge lacked authority to issue sanctions for ethical violations, and that even if he had such authority, the attorney’s fees sanction imposed by the judge constituted an abuse of discretion. Because we vacate the Superior Court judge’s order on the basis that his interpretation of rule 4.2 and DR 7-104 (A) (1) was overly broad, we need not address MR&W’s other contentions. 1. Facts and procedural history. From the stipulated facts, we distill the following. In August of 1997, MR&W filed a complaint against the President and Fellows of Harvard College (Harvard) with the Massachusetts Commission Against Discrimination (commission) on behalf of its client, Kathleen Stanford. Stanford, a sergeant with the Harvard University police department (HUPD), alleged that Harvard and its police chief, Francis Riley, discriminated against her on the basis of gender and in reprisal for earlier complaints of discrimination. MR&W represented Stanford, and Harvard was represented before the commission by in-house counsel, and thereafter by a Boston law firm. Following the institution of the suit, MR&W communicated ex parte with five employees of the HUPD: two lieutenants, two patrol officers, and a dispatcher. Although the two lieutenánts had some supervisory authority over Stanford, it was not claimed that any of the five employees were involved in the alleged discrimination or retaliation against her or exercised management authority with respect to the alleged discriminatory or retaliatory acts. In response to a motion by Harvard, the commission ruled that MR&W’s ex parte contacts with all five employees violated rule 4.2, but declined to issue sanctions for these violations. MR&W removed the case to the Superior Court, where Harvard filed a motion seeking sanctions for the same violations of mle 4.2 on which the commission had previously ruled. The Superior Court judge then issued a memorandum of decision and order holding that MR&W violated the rule with respect to all five employees, prohibiting MR&W from using the affidavits it had procured during the interviews, and awarding Harvard the attorney’s fees and costs it had expended in litigating the motion, in a later order calculated as $94,418.14. MR&W and Stanford appealed both orders to a single justice of the Appeals Court pursuant to G. L. c. 231, § 118, first par. The single justice denied the petition and declined to report the matter to the full bench of the Appeals Court. MR&W filed a complaint with the single justice of this court pursuant to G. L. c. 211, § 3, who reserved and reported the matter to the full court. 2. Jurisdiction. As a threshold matter, Harvard asserts that MR&W is not entitled to relief under G. L. c. 211, § 3. General Laws c. 211, § 3, provides: “The supreme judicial court shall have general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided . . . .” G. L. c. 211, § 3. This power of review is discretionary with the court and will be “exercised only in ‘the most exceptional circumstances.’ ” Planned Parenthood League of Mass., Inc. v. Operation Rescue, 406 Mass. 701, 706 (1990), quoting Costarelli v. Commonwealth, 374 Mass. 677, 679 (1978). Generally, parties seeking review under G. L. c. 211, § 3, must demonstrate both a violation of their substantive rights and the unavailability of adequate relief through the ordinary appellate process. Id. Although Harvard asserts othat MR&W has failed to demonstrate either of these requirements, G. L. c. 211, § 3, grants us “general superintendence of the administration of all courts of inferior jurisdiction.” This provision permits us to proceed on the merits where a party raises “an important issue with implications for the administration of justice, and one that is not likely to be presented in the ordinary course of litigation.” Bradford v. Knights, 427 Mass. 748, 750 (1998). Because the language of the rule leaves open “just which employees of an entity are or are not out of bounds,” Wilkins, The New Massachusetts Rules of Professional Conduct: An Overview, 82 Mass. L. Rev. 261, 265 (1997), little guidance currently exists for lawyers as to what contact is appropriate. Our resolution of the issue will have widespread implications for attorneys throughout the Commonwealth. Further, the issue may not be presented in the ordinary course of litigation. Given the Superior Court’s decision, attorneys, apprehensive about crossing ethical boundaries, may refrain from contacting employees of a represented organization. Therefore, we resolve the merits of MR&W’s claim. 3. Interpretation of Rule 4.2 of the Massachusetts Rules of Professional Conduct. a. An overview. Disciplinary Rule 7-104 (A) (1) provides: “During the course of his representation of a client a lawyer shall not: . . . Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.” As of January 1, 1998, DR 7-104 (A) (1) was superseded by rule 4.2. Massachusetts, like most States, adopted this rule verbatim from the American Bar Association (ABA) Model Rules of Professional Conduct. Rule 4.2 provides: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” The rule has been justified generally as “preserving] the mediating role of counsel on behalf of their clients . . . protecting] clients from overreaching by counsel for adverse interests,” Pratt v. National R.R. Passenger Corp., 54 F. Supp. 2d 78, 79 (D. Mass. 1999), and “protecting the attorney-client relationship.” In re Air Crash Disaster near Roselawn Ind., 909 F. Supp. 1116, 1121 (N.D. Ill. 1995). See Orlowski v. Dominick’s Finer Foods, Inc., 937 F. Supp. 723, 727 (N.D. Ill. 1996); Brown v. St. Joseph County, 148 F.R.D. 246, 249 (N.D. Ind. 1993); Wright v. Group Health Hosp., 103 Wash. 2d 192, 196 (1984). Neither version of the rule explicitly addresses the scope of the prohibition when the represented person is an organization. When the represented person is an individual, there is no difficulty determining when an attorney has violated the rule; the represented person is easily identifiable. In the case of an organization, however, identifying the protected class is more complicated. Because an organization acts only through its employees, the rule must extend to some of these employees. However, most courts have rejected the position that the rule automatically prevents an attorney from speaking with all employees of a represented organization. See Terra Int’l, Inc. v. Mississippi Chem. Corp., 913 F. Supp. 1306, 1320 (N.D. Iowa 1996) (noting rule banning ex parte contacts with all current employees has been rejected by courts that have considered it); Shearson Lehman Bros. v. Wasatch Bank, 139 F.R.D. 412, 416 (D. Utah 1991); State v. CIBA-GEIGY, 247 N.J. Super. 314, 323-324 (1991) (noting only one decision had adopted blanket rule prohibiting contact with all former and current employees, and that other cases which had applied that approach were later vacated and withdrawn); Niesig v. Team I, 16 N.Y.2d 363, 371 (1990); Strawser v. Exxon Co. U.S.A., 843 P.2d 613, 619-620 (Wyo. 1992). Most of MR&W’s contacts with the Harvard employees took place in late 1997, when DR 7-104 (A) (1) was still the operative rule. However, the Superior Court found that MR&W also made “minimal communication” in early 1998, and sanctioned MR&W for violations of both the old and new versions of the rule. Rule 4.2 uses the phrase “person the lawyers knows to be represented,” while DR 7-104 (A) (1) uses the phrase “party [a lawyer] knows to be represented.” By replacing the word “party” with “person,” the drafters of rule 4.2 arguably intended to prohibit contact with a broader class than did DR 7-104 (A) (1). However, both versions of the rule consider an organization to be a “person” or “party,” and thus prohibit ex parte contact with at least some of the organization’s employees. See, e.g., Niesig v. Team I, supra; Mass. R. Prof. C. 9.1 (h), 426 Mass. 1432 (1998) (defining “[p]erson” to include a corporation, association, trust, partnership, and any other organization or legal entity). In the context of contact with the employees of a represented organization, courts have interpreted the two versions of the rule to prohibit the same conduct. See Hurley vs. Modem Cont. Constr. Co., Civil Action No. 94-11373-RBC (D. Mass. Feb. 19, 1999); Johnson v. Cadillac Plastic Group, Inc., 930 F. Supp. 1437, 1440 (D. Colo. 1996); Strawser v. Exxon Co., U.S.A., supra at 617 n.5. The comment to rule 4.2 provides guidance in the case of a represented organization. Because both versions of the rule prohibit essentially the same conduct, the comment is instructive (although not controlling) in determining the scope of both the old and new versions of the rule. See Mass. R. Prof. C. Scope [9], 426 Mass. 1305 (1998) (“The Comments are intended as guides to interpretation, but the text of each Rule is authoritative”). According to comment [4] to rule 4.2, an attorney may not. speak ex parte to three categories of employees: (1) “persons having managerial responsibility on behalf of the organization with regard to the subject of the representation”; (2) persons “whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability”; and (3) persons “whose statement may constitute an admission on the part of the organization.” Mass. R. Prof. C. 4.2 comment [4], 426 Mass. 1403 (1998). b. The Superior Court judge’s decision. The judge held that all five employees interviewed by MR&W were within the third category of the comment. He reached this result by concluding that the phrase “admission” in the comment refers to statements admissible in court under the admissions exception to the rule against hearsay. The Commonwealth’s version of this rule was defined in Ruszcyk v. Secretary of Pub. Safety, 401 Mass. 418 (1988), where we held that a couit may admit a “statement by [the party’s] agent or servant concerning a matter within the scope of [the] agency or employment, made during the existence of the relationship.” Id. at 420, quoting Proposed Mass. R. Evid. 801 (d)(2)(D). This rule is identical to Fed. R. Evid. 801 (d)(2)(D). Because the comment includes any employee whose statement may constitute an admission, this interpretation would prohibit an attorney from contacting any current employees of an organization to discuss any subject within the scope of their employment. This is, as the Superior Court judge admitted, a rule that is “strikingly protective of corporations regarding employee interviews.” c. Other interpretations of rule 4.2. Harvard contends that the third category of the comment is an unambiguous reference to the admissions exception to the hearsay rule. However, other jurisdictions that have adopted the same or similar versions of rule 4.2 are divided on whether their own versions of the rule are properly linked to the admissions exception to the hearsay rule, and disagree about the precise scope of the rule as applied to organizations. See, e.g., Orlowski v. Dominick’s Finer Foods, Inc., 937 F. Supp. 723, 728 (1996) (“Courts have debated at length which current corporate employees constitute represented parties . . .”); Niesig v. Team I, 76 N.Y.2d 363, 371 (1990) (“The many courts, bar associations and commentators that have balanced the competing considerations have evolved various tests, each claiming some adherents, each with some imperfection . . .”). Some jurisdictions have adopted the broad reading of the rule endorsed by the judge in this case. See, e.g., Weibrecht v. Southern III. Transfer, Inc., 241 F.3d 875 (7th Cir. 2001); Cole v. Appalachian Power Co., 903 F. Supp. 975 (S.D.W. Va. 1995); Brown v. St. Joseph County, 148 F.R.D. 246, 254 (N.D. Ind. 1993). Courts reaching this result do so because, like the Superior Court, they read the word “admission” in the third category of the comment as a reference to Fed. R. Evid. 801 (d)(2)(D) and any corresponding State rule of evidence. Id. This rule forbids contact with practically all employees because “virtually every employee may conceivably make admissions binding on his or her employer.” In re Air Crash Disaster near Roselawn, Ind., 909 F. Supp. 1116, 1121 (N.D. Ill. 1995). However, some of the courts that have adopted this interpretation have expressed reservations. See Pratt v. National R.R. Passenger Corp., 54 F. Supp. 2d 78, 80 (D. Mass. 1999) (“This [cjourt has previously highlighted some of the negative aspects of ethical rules prohibiting ex parte communications with individuals in the corporate context”); Hurley vs. Modem Cont. Constr. Co., supra (stating that linking rale to rule of evidence may frustrate “truth-seeking process”). At the other end of the spectrum, a small number of jurisdictions have interpreted the rule narrowly so as to allow an attorney for the opposing party to contact most employees of a represented organization. These courts construe the rule to restrict contact with only those employees in the organization’s “control group,” defined as those employees in the uppermost echelon of the organization’s management. See Johnson v. Cadillac Plastic Group, Inc., 930 F. Supp. 1437, 1442 (D. Colo. 1996); Fair Automotive Repair, Inc. v. Car-X Serv. Sys., Inc., 128 111. App. 3d 763, 771 (1984) (applying rule only to “top management persons who had the responsibility of making final decisions”); Wright v. Group Health Hosp., 103 Wash. 2d 192, 200 (1984) (applying rule only to “those employees who have the legal authority to ‘bind’ the corporation in a legal evidentiary sense, i.e., those employees who have ‘speaking authority’ for the corporation”). Other jurisdictions have adopted yet a third test that, while allowing for some ex parte contacts with a represented organization’s employees, still maintains some protection of the organization. The Court of Appeals of New York articulated such a rule in Niesig v. Team I, 76 N.Y.2d 363 (1990), rejecting an approach that ties the rule to Fed. R. Evid. 801 (d)(2)(D). Instead, the court defined a represented person to include “employees whose acts or omissions in the matter under inquiry

DURANCEAU v ALPENA POWER COMPANY Docket No. 226825. Submitted February 6, 2002, at Lansing. Decided February 26, 2002, at 9:15 A.M. Deedra Duranceau brought an action in the Apena Circuit Court against her employer, Apena Power Company, alleging gender discrimination under the Civil Rights Act, MCL 37.2101 et seq., and a violation of the Equal Pay Act, 29 USC 206(d)(1), relating to a wage freeze whose effect was limited to the single job classification in which the defendant employed females in its male-dominated unionized work force. The court, Joseph P. Swallow, J., granted summary disposition for the defendant. The plaintiff appealed. The Court of Appeals held: 1. The plaintiff failed to make a prima facie case of gender discrimination under the disparate treatment theory. Males in the plaintiff’s job classification were subject to the same wage freeze. 2. The plaintiff failed to make a prima facie case of gender discrimination under the disparate impact theory. The facially neutral policy embodied by the wage freeze did not result in similarly situated males being paid a higher wage than females. 3. Summary disposition of the claim based on the Equal Pay Act was proper. The plaintiff failed to meet her burden of proving that a male worker was paid more for work substantially similar to her job. Affirmed. Civil Rights — Employment Discrimination — Disparate Treatment — Disparate Impact. A prima facie case of discrimination under the Civil Rights Act can be made by proving either disparate treatment or disparate impact; disparate treatment requires a showing of intentional discrimination against protected employees or against an individual plaintiff; disparate impact requires a showing that an otherwise facially neutral employment policy has a discriminatory effect on members of a protected class (MCL 37.2101 et seq.). Boyce, White, Werth & Mack (by Richard G. Boyce), for the plaintiff. The Fishman Group (by Steven J. Fishman, Paul D. Kramer, and Thomas A. Pinch), for the defendant. Before: Fitzgerald, P.J., and Hood and Sawyer, JJ. Per Curiam. Plaintiff Deedra Duranceau appeals as of right the order granting summary disposition pursuant to MCR 2.116(C)(10) in favor of defendant Alpena Power Company in this gender discrimination action brought pursuant to the Civil Rights Act, MCL 37.2101 et seq., and the Equal Pay Act, 29 USC 206(d)(1). We affirm. Defendant hired plaintiff into the general labor/meter reader classification in 1990. She started at $7.50 an hour and received regular increases until she reached the $10.50 maximum for her classification. When defendant and the union could not agree on a new contract in 1992, defendant instituted the terms of its last best offer and union members worked without a contract. Defendant’s last best offer contained the basic structure of its 1989 collective bargaining agreement insofar as it maintained the maximum wage for the general labor/meter reader classifications while providing increases for other classifications. The effect of these terms was to freeze the wages of the three female union members, all of whom were in the general labor/meter reader classification, while granting increases for the remaining classifications, which were populated by male union members. However, nonunion female employees also received pay increases during this period. In 1993, plaintiff, together with two other female employees who were employed as meter readers at the time the 1989 collective bargaining agreement was ratified, and the union filed suit against defendant, alleging sex discrimination in violation of the Civil Rights Act and Equal Pay Act. The trial court granted summary disposition of the discrimination claims. In an earlier appeal, this Court reversed the trial court’s order awarding summary disposition to defendant and dismissing with prejudice plaintiff’s claims. See Donajkowski v Alpena Power Co, 219 Mich App 441; 556 NW2d 876 (1996), aff’d on other grounds 460 Mich 243; 596 NW2d 574 (1999). This Court concluded that the trial court erred in granting summary disposition of the then plaintiffs’ discrimination claim because the plaintiffs established a prima facie case of discrimination under the disparate treatment theory and the disparate impact theory. Thus, this Court reversed the grant of summary disposition and remanded for further proceedings consistent with the opinion. On remand, defendant conducted additional discovery and again moved for summary disposition. Following a hearing on defendant’s motion, the trial court granted summary disposition in favor of defendant pursuant to MCR 2.116(C)(10). A prima facie case of discrimination under the Civil Rights Act can be made by proving either disparate treatment or disparate impact. Reisman v Regents of Wayne State Univ, 188 Mich App 526, 538; 470 NW2d 678 (1991). Disparate treatment requires a showing of either intentional discrimination against protected employees or against an individual plaintiff. Disparate impact requires a showing that an otherwise facially neutral employment policy has a discriminatory effect on members of a protected class. Lytle v Malady (On Rehearing), 458 Mich 153, 177, n 26; 579 NW2d 906 (1998). Plaintiff alleged that defendant’s act of freezing the wages of the one job classification in which all the female union employees were employed resulted in discrimination toward female employees. To avoid summary disposition under the disparate treatment theory, the plaintiff must present sufficient evidence to permit a reasonable juror to find that for the same or similar conduct the plaintiff was treated differently from a similarly situated male employee. Id. at 181-182. Gender must be proved to be a determining factor in the allegedly discriminatory decision. Town v Michigan Bell Telephone Co, 455 Mich 688, 706; 568 NW2d 64 (1997). Here, plaintiff primarily relies on two comments allegedly made by defendant’s president to establish a motive to discriminate on the basis of gender. However, one comment occurred three to four years before the pay scale modification and four to five years before plaintiff accepted employment with defendant. The statement was too vague and remote in time to raise a triable issue of fact. Phelps v Yale Security, Inc, 986 F2d 1020, 1026 (CA 6, 1993). The second comment, made five months after plaintiff was hired, recognized that those employees in the general labor classification were all women at the time the statement was made. Plaintiff asserts that this comment supports the allegation that defendant moved the male employees out of the meter reader positions before implementing the pay freeze for a combined general labor/meter reader classification so that only females would be affected by the pay freeze. However, plaintiff was the only female of seven employees hired in the general labor classification after the implementation of the wage freeze. Hence, similarly situated male employees were subject to the same pay scale as was plaintiff. Plaintiff failed to raise a triable issue of fact that gender was a determining factor in defendant’s decision to freeze the pay scale of the general labor/meter reader classification. Betty v Brooks & Perkins, 446 Mich 270, 281; 521 NW2d 518 (1994). To avoid summary disposition under the disparate impact theory, plaintiff had to show that female employees were burdened on account of their gender by some facially neutral practice. Roberson v Occupational Health Centers of America, Inc, 220 Mich App 322, 329-330; 559 NW2d 86 (1996). Here, the pay scale modifications challenged by plaintiff applied equally to employees in the classification, regardless of gender. Plaintiff’s allegation that defendant intentionally eliminated male employees from the general labor classification in order to reduce the compensation paid to female employees is not supported by plaintiff’s own testimony that six of the seven employees hired into the classification following the implementation of the wage freeze were male. Plaintiff failed to show that a facially neutral policy, that is, the pay range modification, resulted in similarly situated male employees being paid a higher wage than female employees. Plaintiff also contends that summary disposition of her equal pay claim was inappropriate. To avoid summary disposition of the equal pay claim, plaintiff needed to show that defendant paid lower wages to her than to male employees for equal work on jobs. However, plaintiff admitted that no comparable male employee hired into her job classification was paid more than she was. Hence, she failed to meet her burden of proving that a male worker was paid more for performing substantially similar work. Corning Glass Works v Brennan, 417 US 188; 94 S Ct 2223; 41 L Ed 2d 1 (1974). Affirmed. The two other female employees are no longer part of this lawsuit. They both stipulated an order dismissing their claims with prejudice. Plaintiff argued on remand that the law of the case doctrine precluded the trial court from considering defendant’s motion for summary disposition. On appeal, plaintiff does not specifically make this argument. Nonetheless, we note that additional discovery was taken that unveiled new facts and that the case that this Court previously relied on in its decision was reversed by the Supreme Court. See Lytle v Malady (On Rehearing), 458 Mich 153; 579 NW2d 906 (1998). Under these circumstances, the law of the case doctrine did not prevent the trial court from entertaining defendant’s motion for summary disposition.