Discrimination Cases

Massachusetts Association of Minority Law Enforcement Officers vs. Gerald T. Abban & others. Suffolk. March 12, 2001. May 29, 2001. Present: Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Civil Service, Decision of Civil Service Commission, Judicial review, Police, Promotion, Testing, Eligibility list, Failure to raise issue before commission. Practice, Civil, Review respecting civil service. Police, Promotional examination. Constitutional Law, Equal protection of laws. Administrative Law, Agency’s interpretation of statute, Evidence. A judge in the Superior Court did not err in upholding a decision of the Civil Service Commission that a city’s police department improperly promoted certain minority police officers over nonminority police officers with higher test scores, a process known as “bypass,” where the department did not sustain its burden of proving that there was a reasonable justification for the bypasses, as required by G. L. c. 31, § 2 (b); absent such justification, the bypasses, based purely on race, were not consistent with “basic merit principles,” as defined in G. L. c. 31, § 1 (e). [262-265] Ireland, J., dissenting. In an action brought to review a decision of the Civil Service Commission, the trial judge properly denied a motion to supplement the administrative record, brought under G. L. c. 30A, § 14 (6), by an intervener who was not a party to the original proceedings, where the intervener did not, under the plain terms of the statute, show good reason for the failure to present the evidence in question in the proceedings before the commission. [265-267] Ireland, J., dissenting. Civil action commenced in the Superior Court Department on January 15, 1999. The case was heard by John M. Xifaras, J. The Supreme Judicial Court granted an application for direct appellate review. Rheba Rutkowski for the plaintiff. John M. Becker (Alan H. Shapiro with him) for Robert Bums & others. Christopher J. Muse for Gerald T. Abban & others. James F. Lamond was present but did not argue. Briefs were filed in the present appeal on behalf of the following police officers: Gerald T. Abban, James MacDonald, John McLean, Raymond R. Mosher, John T. Pels, and Richard M. Keefe (Abban brief); Robert Bums, Harry Byrne, Jr., Brendan Flynn, Bernard Greene, Brian Latson, Michael Locke, Richard MacDonald, Kelly O’Connell, Michael O’Connor, Norberto Perez, Thomas Settipani, Thomas Shone, Eugene Valliere, Herbert White, and Michael Wosny (Bums brief); Keith Carlson, James Kelly, Thomas Matheson, and John Rice (Carlson brief). Cordy, J. The Massachusetts Association of Minority Law Enforcement Officers (MAMLEO) appeals from a ruling of a judge in the Superior Court upholding a decision of the Civil Service Commission (commission) that the police department of Boston (police department) improperly promoted certain minority police officers to the ranks of sergeant and lieutenant over nonminority defendants with higher test scores. MAMLEO, a plaintiff intervener in the Superior Court proceeding and not a party to the original proceedings before the commission, argues that the judge erred as a matter of law in upholding the commission’s decision, and abused his discretion in denying MAM-LEO’s motion to supplement the administrative record. The police department did not appeal from the Superior Court judge’s decision. We granted MAMLEO’s application for direct appellate review, and now affirm the judgment of the Superior Court. Background. On January 30 and October 2, 1996, the police department made promotions to the ranks of sergeant and lieutenant from certified lists ranking each candidate based on his or her score on a September 12, 1992, civil service promotional examination. The examination had been developed by the State Department of Personnel Administration, now the human resources division (division), in compliance with a 1991 amendment to a Federal consent decree entered in Massachusetts Ass’n of Afro-American Police, Inc. vs. Boston Police Dep’t, No. 78-529-McN (D. Mass. 1980). See note 5, infra. For most of the promotions, the police department selected the highest scoring candidates in rank order. However, the police department departed from strict rank order in promoting six minority officers to sergeant and two minority officers to lieutenant, over various nonminority officers with higher civil service examination scores, a process known as “bypass.” Bielawski v. Personnel Adm’r of the Div. of Personnel Admin., 422 Mass. 459, 460 (1996). See G. L. c. 31, § 27. The examination scores of the minority officers who were promoted were no more than two points lower than those of the nonminority officers who were bypassed. As required by Massachusetts civil service law, the police department provided reasons for these bypasses to the State personnel administrator. See id. The reasons given were: (1) ”to ensure compliance with current EEOC [United States Equal Employment Opportunity Commission] guidelines,”* * (2) “as a result of the [c]onsent [d]ecree between the [police department] and [MAMLEO],” and (3) that the “promotion of a limited number of black officers to sergeant and lieutenant was constitutionally permissible” under the strict scrutiny standard applied to equal protection claims.* *** The personnel administrator approved the bypasses. The bypassed officers appealed to the commission pursuant to G. L. c. 31, § 2 (b), and the police department responded with a motion to dismiss. While the motion was pending before the commission, the United States Court of Appeals for the First Circuit issued its decision in Boston Police Superior Officers Fed’n v. Boston, 147 F.3d 13 (1st Cir. 1998) (Superior Officers), see note 10, infra, ruling that the consent decree relied on by the police department applied only to promotions to the rank of sergeant, not to promotions to lieutenant, and had expired in April, 1995. Id. at 17. The commission invited the parties to submit additional argument addressing the impact, if any, of that ruling on the cases pending before it. The police department and the bypassed officers each submitted supplemental legal memoranda arguing that the Superior Officers decision supported their respective positions. These memoranda were added to the record before the commission, which was not otherwise augmented by the parties. Administrative action. The fundamental purpose of the civil service system is to guard against political considerations, favoritism, and bias in governmental hiring and promotion. Cambridge v. Civil Serv. Comm’n, 43 Mass. App. Ct. 300, 304 (1997), and cases cited. The commission is charged with ensuring that the system operates on “[b]asic merit principles,” as defined in G. L. c. 31, § 1, absent properly documented and supported bases for departing from such principles in particular cases. In the context of carrying out these responsibilities, and after holding hearings on September 11, 1997, and September 2, 1998, the commission ruled that the bypasses proposed by the police department were improper. In reaching its decision, the commission applied the standard of review required by the governing statute, G. L. c. 31, § 2 (b): “to find whether, on the basis of the evidence before it, the appointing authority has sustained its burden of proving [by a preponderance of the evidence] that there was reasonable justification for the action taken by [it]” (i.e., promoting on considerations other than merit). Cambridge v. Civil Serv. Comm’n, supra at 303, citing Mayor of Revere v. Civil Serv. Comm’n, 31 Mass. App. Ct. 315, 320 n.10, 321 n.11, 322 n.12 (1991). In this context, reasonable justification means “done upon adequate reasons sufficiently supported by credible evidence, when weighed by an unprejudiced mind, guided by common sense and by correct rules of law.” Selectmen of Wakefield v. Judge of First Dist. Court of E. Middlesex, 262 Mass. 477, 482 (1928). Applying this standard to the police department’s enumerated reasons for departing from rank order promotions, the commission found them and the police department’s reliance on the Superior Officers case unpersuasive. In addressing two of the three reasons the police department had given for making the bypasses, the commission noted that the Superior Officers decision had made it clear that the consent decree had expired in April, 1995, prior to the 1996 promotions at issue here, see Superior Officers, supra at 17, and that the EEOC guidelines were not enforceable in this context in the absence of the consent decree. See note 4, supra. Therefore, neither the decree nor the EEOC guidelines provided a reasonable justification for bypasses that came after the decree’s expiration. That left only the police department’s constitutional argument to support the bypass promotions, i.e., that those promotions would survive a constitutional challenge under the equal protection clause. The commission found this constitutional argument to be misplaced, because its inquiry in a bypass appeal is very different from that required for an equal protection claim. In deciding bypass appeals, the commission must determine whether the appointing authority has complied with the requirements of Massachusetts civil service law for selecting lower scoring candidates over higher scoring candidates, and not whether those promotions might pass constitutional muster if challenged in some other forum on equal protection grounds. The commission concluded that the police department had failed to justify the challenged promotions as required by State law: “Upon expiration of the consent decree, the bypasses, based purely on race,” a factor listed in G. L. c. 31, § 1 (e), as incompatible with basic merit principles, “no longer comport” with such principles. As a remedy, the commission ordered the division to place the bypassed officers at the top of the list of candidates for promotion, reviving a candidate’s eligibility if necessary, so that the police department would have to consider each officer when it next made promotions to the rank of sergeant or lieutenant. Superior Court ruling. The police department sought review of the commission’s decision in the Superior Court pursuant to G. L. c. 30A, § 14, and G. L. c. 31, § 44, arguing that it properly considered race in the 1996 promotions. The police department reasoned that race-based bypasses were not inconsistent with established merit principles in this particular case, because the bypasses were being used to remedy the police department’s past racial discrimination. MAMLEO was allowed to intervene in the Superior Court action, and filed a motion seeking to supplement the administrative record with extensive evidentiary materials that were not before the commission. Those materials had been part of the underlying record used by the police department and MAMLEO to support their argument in Superior Officers, supra at 23-24, that the promotion in that case was a “sufficiently narrow remedy” to address past racial discrimination by the police department. The materials included expert witness affidavits purportedly demonstrating that the 1992 examination did not validly distinguish among officers scoring within three points of each other, that such officers must therefore be considered functionally equivalent for promotion purposes, and that their functionally equivalent test scores should be “banded” together for the purpose of making promotion decisions. MAMLEO’s motion to supplement the record was denied. The judge’s review of the commission’s decision was therefore based solely on the record that had been before the commission. “In reviewing [the commission’s] action under G. L. c. 30A, § 14 (7), it was not open to the Superior Court judge to substitute his judgment for that of the commission.” Thomas v. Civil Serv. Comm’n, 48 Mass. App. Ct. 446, 451 (2000). Instead, the judge was required by § 14 (7) to “give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.” Iodice v. Architectural Access Bd., 424 Mass. 370, 375-376 (1997); School Comm. of Brockton v. Civil Serv. Comm’n, 43 Mass. App. Ct. 486, 490 (1997). Here, the judge affirmed the decision of the commission: “This Court is satisfied that the administrative record fails to support plaintiffs’ contention that the [cjommission committed an error of law. Nor is the argument that the [cjommission’s ruling is arbitrary, capricious, or an abuse of discretion supported by the record. Rather ... the record indicates that the [cjommission acted lawfully and within its discretion by finding the [police department’s] bypasses lacked a sound and sufficient reason and clashed with basic merit principles.” The judge’s evaluation of the commission’s ruling is a sound one, “setting forth his reasoning . . . in a full and clear discussion,” Iodice v. Architectural Access Bd., supra at 371, and we employ it as the basis for our own brief analysis of the commission’s ruling. Like the Superior Court, we review the commission’s decision under G. L. c. 31, § 44, “to determine if it violates any of the standards set forth in G. L. c. 30A, § 14 (7),[] and cases construing those standards.” Plymouth v. Civil Serv. Comm’n, 426 Mass. 1, 5 (1997). The plaintiff bore the burden of demonstrating the invalidity of the commission’s ruling. Coggin v. Massachusetts Parole Bd., 42 Mass. App. Ct. 584, 587 (1997). Merisme v. Board of Appeals on Motor Vehicle Liab. Policies & Bonds, 27 Mass. App. Ct. 470, 474 (1989). This is a heavy burden, for we also give due weight to the commission’s expertise, as required by § 14 (7). See Iodice v. Architectural Access Bd., supra at 375-376; Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 618 (1997) (“In general, we grant substantial deference to an interpretation of a statute [e.g., the civil service statutes] by the administrative agency charged with its administration”); Boston Police Superior Officers Fed’n v. Labor Relations Comm’n, 410 Mass. 890, 892 (1991) (considerable deference generally accorded agency decision, unless agency commits error of law). The commission properly placed the burden on the police department to establish a reasonable justification for the bypasses, see Cambridge v. Civil Serv. Comm’n, 43 Mass. App. Ct. 300, 303 (1997), and properly weighed those justifications against the fundamental purpose of the civil service system, id. at 304, to ensure decision-making in accordance with basic merit principles. G. L. c. 31, § 1 (e). See note 9, supra. In rejecting the three reasons given by the police department for the challenged race-based bypasses — the consent decree (that had expired), the EEOC guidelines (that were no longer enforceable after the consent decree expired), and a constitutional rationale (that was inapposite) ■— the commission acted well within its discretion. In the circumstances of this case, the reasons proffered by the police department simply failed to justify the 1996 promotions at issue. The commission, and the Superior Court judge on review, correctly concluded that without the consent decree’s mandate, race, a consideration specifically identified by the Legislature in G. L. c. 31, § 1 (e), as inconsistent with basic merit principles, cannot be used to justify a bypass. While civil service law allows consideration of race in promotion decisions as part of an approved affirmative action plan (see note 12, supra), there was no such plan here and therefore the police department improperly based these promotions on race. We have examined the entire administrative record, see Mayor of Revere v. Civil Serv. Comm’n, 31 Mass. App. Ct. 315 322 (1991) (“we must inquire whether there is substantial evidence in the record before the commission to support the commission’s decision”), and taken into account whatever in the record would fairly detract from the supporting evidence’s weight. Cobble v. Commissioner of the Dep’t of Social Servs., 430 Mass. 385, 390 (1999). We conclude that the commission’s ruling is grounded in substantial evidence found in the administrative record. Its conclusion that the challenged bypasses are unjustified, and inconsistent with basic merit principles, is neither arbitrary, capricious, an abuse of discretion, nor a legal error. Denial of MAMLEO’s motion to supplement the administrative record. Each of MAMLEO’s contentions in this appeal relies on MAMLEO’s assertion that the 1992 promotional examination was invalid for use in a strict rank order promotion system. There was, however, nothing in the record of the proceeding before the commission that supported this contention. Therefore, MAMLEO moved to supplement the administrative record with evidence it contended would demonstrate that a more valid scoring system for the 1992 promotional examination, which treated candidates who scored within a three-point band as functionally equivalent (banding), would have eliminated any bypass challenges. (As noted above, no minority candidate who was promoted in 1996 based on that examination scored more than two points less than a nonminority candidate who was bypassed.) We therefore need only assess the validity of the judge’s denial of that motion, as this issue decides MAMLEO’s appeal. A motion for leave to present supplemental evidence pursuant to G. L. c. 30A, § 14 (6), is addressed to the sound discretion of the judge. Northeast Metro. Regional Vocational Sch. Dist. Sch. Comm. v. Massachusetts Comm’n Against Discrimination, 35 Mass. App. Ct. 813, 817 (1994). In assessing whether a judge has abused his discretion, “we do not simply substitute our judgment for that of the judge, rather, we ask whether the decision in question ‘rest[s] on whimsy, caprice, or arbitrary or idiosyncratic notions.’ ” Boulter-Hedley v. Boulter, 429 Mass. 808, 811 (1999), quoting Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 642 (1986). See Long v. George, 296 Mass. 574, 578-579 (1937), quoting Davis v. Boston Elevated Ry., 235 Mass. 482, 497, 502 (1920) (abuse of discretion defined as view or action “that no conscientious judge, acting intelligently, could honestly have taken”). Section 14 (6) provides: “If application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material to the issues in the case, and that there was good reason for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon such conditions as the court deems proper. The agency may modify its findings and decision by reason of such additional evidence and shall file with the reviewing court, to become part of the record, the additional evidence, together with any modified or new findings or decision” (emphasis added). MAMLEO argues that the additional evidence proffered is material to the issues presented in this case, see note 18, supra, but fails, under the plain terms of the statute, to show good reason for failure to present the evidence in the proceeding before the commission. MAMLEO explains that it was not a party to the proceedings before the commission, and thus cannot account for “why the underlying record [concerning promotional test validation and banding] was not presented along with the Superior Officers decision.” MAMLEO protests, however, that “the proper interpretation of c. 31 should not turn on a purported requirement that MAMLEO intervene in every agency proceeding involving the [police department].” The plain language of the statute imposes no such requirement. The police department has not provided a “good reason” for its “failure” to present the banding evidence to the commission, and MAMLEO “cannot account” for the police department’s failure to present such evidence, so the statutory requirements for supplementing the admin

Richard Dahill vs. Police Department of Boston. Suffolk. March 5, 2001. May 25, 2001. Present: Marshall, C.J., Greanby, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Anti-Discrimination Law, Employment, Handicap. Employment, Discrimination. Police Officer. Words, “Handicap.” This court concluded that G. L. c. 15 IB, the antidiscrimination statute, does not require consideration of mitigating or corrective devices in determining whether a person has a “handicap” as defined by G. L. c. 151B, § ,1(17). [236-244] Certification of a question of law to the Supreme Judicial Court by the United States District Court for the District of Massachusetts. Harold. L. Lichten (Shannon Liss-Riordan with him) for the plaintiff. William V. Hoch for the defendant. The following submitted briefs for amici curiae: Stanley J. Eichner, Jane Alper & Bennett H. Klein for Disability Law Center & others. Cynthia L. Amara & Loretta M. Smith for Associated Industries of Massachusetts. Arthur G. Telegen, Anjali Parekh Prakash, Robert A. Fisher, Sharon R. Burger & Marc A. Polk for Boston Area Management Attorneys Group. Thomas F. Reilly, Attorney General, Catherine C. Ziehl & Louisa M. Terrell, Assistant Attorneys General, for the Attorney General. Marshall, C.J. This case is here on certification from the United States District Court for the District of Massachusetts, pursuant to S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981). The question certified, which concerns the definition of the term “handicap” in the Massachusetts antidiscrimination statute, G. L. c. 151B, is as follows: “Whether Massachusetts General Laws c. 151B requires consideration of mitigating or corrective devices in determining whether a person has a handicap.” I The relevant background is contained in the memorandum and order of the District Court judge in which he denied in part and granted in part a motion for summary judgment of the police department of Boston. See S.J.C. Rule 1:03, § 3 (2). We summarize only those facts that illuminate our resolution of the certified question. Richard Dahill was bom with a severe hearing impairment. At the age of three he began receiving medical care for his hearing loss and wearing hearing aids. He continued to receive medical care until the age of thirteen, when his hearing stabilized. Without the use of hearing aids, Dahill’s hearing remains significantly impaired. With the use of hearing aids, his hearing is corrected to within normal limits. It is his use of hearing aids that raises the question we must answer. Despite his severe hearing impairment, Dahill has achieved a wide range of academic and vocational success. His childhood medical records, which document extensive audiological evaluations and assessments, report above-average performance in school. He is a certified high school English teacher, and has worked as a lifeguard and health club worker. Dahill attende'd and has graduated from college and law school. In 1996, he applied for a position as a Boston police officer. In February, 1997, he received a conditional offer of employment, subject to meeting the medical standards promulgated by the Commonwealth’s human resources division. After conducting an auditory examination, the department’s physician, Dr. Luther Arnold, determined that Dahill had a “Category B Condition,” which does not automatically disqualify a person from employment as a police officer. Dr. Arnold certified that Dahill met the Commonwealth’s hearing requirements with the use of his hearing aids. Dahill subsequently entered the Boston Police Academy for a twenty-six week training program required of all new police officers. At the academy, several episodes occurred that raised concerns on the part of the department that Dahill’s hearing might make him unfit to be a police officer. In one incident Dahill did not respond to an oral instruction to retrieve water bottles after a training run. On another occasion he did not respond to a radio call. He also did not hear a gunshot during a firearms training exercise. Dahill has offered explanations for these incidents, but they are not germane to the issue before us. After receiving reports of the episodes, Dr. Arnold again evaluated Dahill’s hearing, and sent Dahill to another specialist for auditory tests. On the basis of his examination, the specialist’s report, and the instructors’ reports of Dahill’s training, Dr. Arnold sent a report to the police commissioner of Boston stating that “[t]here remains a major question [of] safety” regarding Dahill’s ability to perform the duties of a police officer. The department then terminated Dahill, explaining to him that his “auditory deficiencies” rendered him “incapable of effectively and safely performing the essential duties of a Police Officer.” Dahill sued, claiming that his termination violated the Massachusetts antidiscrimination statute, G. L. c. 151B, § 4; the Massachusetts equal rights statute, G. L. c. 93, § 103; the Federal Rehabilitation Act, 29 U.S.C. § 794 (2000), and the Americans with Disabilities Act (ADA), 29 U.S.C. §§ 12101 et seq (2000). n We are asked to decide only whether a person who brings a claim pursuant to G. L. c. 151B, § 4 (16),* *** has a “handicap” as defined by G. L. c. 151B, § 1 (17), if the person’s impairment has been or can be alleviated by the use of corrective devices or other mitigating measures. The department urges that we be guided by the decision of the United States Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), where the Court concluded that, under the ADA, “if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures — both positive and negative — must be taken into account when judging whether that person is ‘substantially limited’ in a major life activity and thus ‘disabled.’ ” Id. at 482. The ADA defines “disability,” in part, as: “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” 42 U.S.C. § 12102 (2). Because the definition of “handicap” contained in G. L. c. 151B, § 1 (17) (“a physical or mental impairment which substantially limits one or more . . . major life activities”), is essentially identical, the department suggests that the interpretation of the Federal statute by the Supreme Court compels a similar reading of the Massachusetts statute. We must first ascertain what the Massachusetts Legislature intended in 1983 when it amended our antidiscrimination statute to prohibit unlawful employment discrimination of handicapped persons, G. L. c. 151B, § 1 (17), § 4 (16), inserted by St. 1983, c. 533, §§ 2, 6, before we consider the Supreme Court’s interpretation of a Federal statute enacted in 1990, seven years later. See Pub. L. 101-336, § 2, 104 Stat. 328 (1990). The language of the Massachusetts statute is not dispositive. Cf. Acting Superintendent of Bournewood Hosp. v. Baker, 431 Mass. 101, 104 (2000). The statute draws a distinction between persons who have a physical or mental impairment, and those whose impairment “substantially limits” a “major life” activity. G. L. c. 151B, § 1 (17) (a). Only the latter are protected by the Massachusetts statute. But the statute is silent as to whether mitigating measures or corrective devices must be considered in determining whether a person with an impairment falls into the protected or nonprotected category. A person with a hearing impairment might experience no “substantial limit” of a “major life activity,” even though he uses no corrective device: he would not be protected under the statute. A person with a hearing impairment might, even while using his corrective hearing aids, still suffer a “substantial limit,” and thus would be protected. Finally, a person with a hearing impairment might experience a “substantial limit” of a “major life activity” when not using his hearing aids, but not experience any such “substantial limit” while the corrective devices were in use. The statute does not resolve whether this last person would be protected. Because the language of the statute does not end our inquiry, we turn to other sources to discern the Legislature’s intent. Acting Superintendent of Bournewood Hosp. v. Baker, supra at 104. The legislative history of G. L. c. 151B is instructive. In 1983, when the Legislature amended G. L. c. 151B to extend protection from unlawful employment discrimination to “handicapped” persons, St. 1983, c. 533, § 2, the Legislature explicitly patterned the definition of “handicap” on the definition of “handicap” contained in a Federal statute enacted ten years earlier, the Federal Rehabilitation Act of 1973, 29 U.S.C. § 706 (6) (2000). See Talbert Trading Co. v. Massachusetts Comm’n Against Discrimination, 37 Mass. App. Ct. 56, 60 (1994). At that time no court had determined, or, to our knowledge considered, whether “handicapped” referred to a person’s impairment in its corrected or mitigated condition; corrective devices or other mitigating measures were simply not relevant. See, e.g., Strathie v. Department of Transp., 716 F.2d 227, 228-230 (3d Cir. 1983) (bus driver with controlled hearing impairment assumed to be “handicapped”); Davis v. Ohio Barge Line, Inc., 535 F. Supp. 1324, 1325 (W.D. Pa. 1982), vacated on other grounds, 697 F.2d 549 (3d Cir. 1983) (“controlled epileptic” assumed to be handicapped). We presume that in 1983 the Legislature was aware of the then-existing case law interpreting the Federal statute, and that it must have intended the term “handicap” in the Massachusetts statute to be interpreted in a manner that was consistent with the then-existing Federal jurisprudence. See Duarte v. Healy, 405 Mass. 43, 47 (1989) (Legislature presumed to be aware of United States Supreme Court case interpreting 42 U.S.C. § 1983 when it patterned Civil Rights Act after § 1983). Guidance provided by the Massachusetts Commission Against Discrimination (MCAD) on this issue is also illuminating. In 1998, the MCAD issued guidelines that provide that “[t]he existence of an impairment is generally determined without regard to whether its effect can be mitigated by measures such as medication, auxiliary aids or prosthetic devices.” Massachusetts Commission Against Discrimination Guidelines: Employment Discrimination on the Basis of Handicap Chapter 151B § II.A.7 (1998). The guidelines explain that “an employee who is legally blind, but whose vision is correctable with glasses, may be considered ‘handicapped’ because his impairment substantially limits his ability to perform the major life activity of seeing.” Id. The Legislature has delegated to the MCAD the authority to “formulate policies to effectuate the purposes” of G. L. c. 151B and to “adopt, promulgate, amend and rescind rules and regulations” to implement those policies. G. L. c. 151B, §§ 2, 3 (5). The guidelines represent the MCAD’s interpretation of G. L. c. 151B, and are entitled to substantial deference, even though they do not carry the force of law. See Berrios v. Department of Pub. Welfare, 411 Mass. 587, 595 (1992), quoting A. Celia, Administrative Law and Practice § 747 (1986) (administrative agency “has considerable leeway in interpreting a statute it is charged with enforcing”); Bynes v. School Comm. of Boston, 411 Mass. 264, 269 (1991) (interpretations of G. L. c. 151B offered by MCAD are “entitled to substantial deference”); Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (MCAD, not courts, has primary responsibility to determine scope of G. L. c. 151B). It is particularly appropriate to defer to the MCAD’s interpretation where, as here, the legislative policy is “only broadly set out in the governing statute.” Id. at 204, quoting School Comm. of Wellesley v. Labor Relations Comm’n, 376 Mass. 112, 116 (1978). The public policies underlying G. L. c. 151B, § 4 (16), are clear: to protect “handicapped individuals from deprivations based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to such legitimate concerns of [employers] as avoiding exposing others to significant health and safety risks.” Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 383-384 (1993), quoting School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 (1987). An interpretation that the term “handicap” does not require consideration of corrective devices is consistent with that broad mandate. An alternative interpretation excludes from the statute’s protection numerous persons who may mitigate serious physical or mental impairments to some degree, but who may nevertheless need reasonable accommodations to fulfil the essential functions of a job. The Legislature has directed that the provisions of G. L. c. 151B “shall be construed liberally” for the accomplishment of the remedial purposes of the statute. G. L. c. 151B, § 9. Surely one aspect of that remedial purpose is to encourage impaired persons to overcome or mitigate their disabilities. Advancements in medicine and the biological sciences, as well as rehabilitative technologies, now offer new hope to many individuals who previously may have been totally or significantly incapacitated by an impairment. The broad prohibition against the discrimination of qualified handicapped individuals contained in the 1980 amendment to the Massachusetts Constitution and the enactment three years later of legislation extending protection in employment to handicapped persons are recognition that persons who are physically or mentally impaired are nevertheless capable of becoming productive and successful members of the workforce. We construe G. L. c. 151B, § 4, to give the fullest effect to that recognition. The department suggests that the interpretation we find persuasive is not compelled because a handicapped person, such as Dahill, who has availed himself of corrective measures may nevertheless seek protection from discrimination under the third prong of the definition of “handicap,” as one who is “regarded as” having an “impairment that substantially limits one or more major life activities.” The Legislature identified three avenues by which a person can establish that he falls within the statute’s protection: the person (a) has an “impairment” that substantially limits a major life activity, (b) has a “record” of such impairment, or (c) is “regarded” as having such impairment. See note 6, supra. Loosely speaking, the first prong protects only those persons with actual physical or mental limitations, while the third prong protects those persons who, whether actually impaired or not, may be the victims of stereotypic assumptions, myths, and fears regarding such limitations. A plaintiff may prove that he is a handicapped person under one, two, or all of the three statutory definitions. The question we are asked to answer is whether our antidiscrimination statute requires “consideration of mitigating or corrective devices in determining whether a person has a handicap.” It does not, regardless of whether a plaintiff can prevail under the first prong of the definition, as well as under the third. We return to the holding of the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999). There are sound reasons why our interpretation of the Massachusetts statute diverges from the Court’s interpretation of similar language in the Federal statute. First, the Supreme Court attributed little weight to guidelines issued by the Equal Employment Opportunity Commission (EEOC) that “the determination of whether an individual is substantially limited in a major life activity [should] be made without regard to mitigating measures [under the ADA]” (emphasis added). Sutton v. United Air Lines, Inc., supra at 481, citing 29 C.F.R. Part. 1630, App. at 1630.2(j) (1998). Because Congress has not granted to the EEOC the authority to issue regulations interpreting or implementing the generally applicable provisions of the ADA, including the statutory definition of “disability,” the Court said that it had no need to decide what deference the regulations were due. Sutton v. United Air Lines, Inc., supra at 479-480. In contrast, as we have explained, the General Court has expressly authorized the MCAD to interpret and implement the provisions of the Massachusetts antidiscrimination statute. Second, in the preamble to the Federal legislation, Congress had estimated that forty-three million Americans have disabilities. See id. at 484-485. This number would have been far larger, the Supreme Court reasoned, if Congress had intended the ADA to cover people with “corrected physical limitations.” See id. at 487. The Massachusetts statute, in contrast, contains no such estimate of the number of people in the Commonwealth with handicaps, nor does it contain any analogous provision suggesting that the Legislature intended to exclude from coverage the many persons with significant, but correctable, impairments. While Federal precedents can be “most helpful” in the resolution of cases involving G. L. c. 151B, Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 384 (1993), because the Massachusetts nondiscrimination statute differs from the ADA in at least the two critical respects we have discussed, it is not appropriate to follow the Federal jurisprudence in this case. We are not persuaded that our decision today will open the floodgates of litigation, as the department fears. Our interpretation of G. L. c. 151B, § 1 (17), heralds no change in Massachusetts jurisprudence: since 1983, when the Legislature made the relevant amendment to G. L. c. 151B, judges and litigants in Massachusetts have assumed that a person with a significant physical or mental impairment met the threshold definition of “handicap,” whether the person used corrective devices or took other mitigating measures. See, e.g., Labonte v. Hutchins & Wheeler, 424 Mass. 813 (1997) (no discussion of mitigation); Wooster v. Abdow Corp., 46 Mass. App. Ct. 665, 667 (1999) (controlled asthma); Handrahan v. Red Roof Inns, Inc., 43 Mass. App. Ct. 13, 15-16 (1997) (controlled epilepsy). Additionally, the determination whether Dahill has a “handicap” is a threshold inquiry under G. L. c. 151B: does he fall within the class of persons the Legislature sought to protect? If he meets that threshold test, he must still prove that he can perform the essential functions of a police officer, with or without reasonable accommodations. See Cox v. New England Tel. & Tel. Co., supra at 383. Reasonable accommodation by the department to his handicap need only be made if it would impose no “undue hardship” on the employer. G. L. c. 151B, § 4 (16). Dahill must also demonstrate that his handicap was the cause of the department’s allegedly unlawful discrimination. See Labonte v. Hutchins & Wheeler, supra at 821. These legislative criteria constrain any possibility that recovery for Dahill will be automatic. See Arnold v. United Parcel Serv., Inc., 136 F.3d 854, 861 (1st Cir. 1998) (under analogous Federal provisions, even with earlier “broad view” of disability, concerns and interests of employers are still “amply protected”). We answer the certified question, “No.” The Reporter of Decisions is to furnish attested copies of this opinion to the clerk of this court. The clerk in turn will transmit one copy, under seal of this court, to the clerk of the United States District Court for the District of Massachusetts, as answer to the question certified, and will also transmit a copy to each party. We acknowledge amicus curiae briefs filed by the Attorney General; Associated Industries of Massachusetts; Boston Area Management Attorneys Group; and Disability Law Center, Gay & Lesbian Advocates & Defenders, AIDS Action Committee of Massachusetts, AIDS Project Worcester, Inc., and American Association of Retired Persons. A “Category B Condition” is defined as “a medical condition that, based upon its severity or degree, may or may not

CORLEY v DETROIT BOARD OF EDUCATION Docket No. 218528. Submitted January 9, 2001, at Detroit. Decided May 15, 2001, at 9:05 A.M. Leave to appeal sought. Patricia M. Corley brought an action in the Wayne Circuit Court against the Detroit Board of Education, Joseph Smith, and Barbara Finch, alleging discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq., breach of contract, and intentional infliction of • emotional distress. The court, Wendy M. Baxter, J., granted summary disposition in favor of the defendants, finding, in part, that the alleged adverse employment action against the plaintiff that was based on the plaintiff’s former intimate relationship with Smith, her supervisor, did not present a cognizable claim of sex discrimination under the act. The plaintiff appealed. The Court of Appeals held: 1. Adverse employment action against an employee based on the employee’s former intimate relationship with the employee’s supervisor presents a cognizable claim of sex discrimination under the act. The court erred in granting summary disposition in favor of the defendants with regard to the plaintiffs sexual harassment claim. That part of the court’s order must be reversed and the matter must be remanded for further proceedings. 2. The plaintiff established sufficient facts for her claims of sexual harassment and hostile work environment to survive a motion for summary disposition. 3. The plaintiff failed to present sufficient facts to support her theories of intentional sex discrimination or disparate treatment. Summary disposition of those claims of sex discrimination was proper and must be affirmed. 4. Reasonable minds could not find that the defendants’ conduct was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community. The court did not err in dismissing the claim of intentional infliction of emotional distress. 5. The court properly dismissed the breach of contract claim, which alleged an implied contract, on the basis that the claim concerned subject matter expressly covered by the plaintiff’s union contract. Affirmed in part, reversed in part, and remanded. Civil Rights — Sex Discrimination — Adverse Employment Actions. Alleged adverse employment action against an employee that is based on the employee’s former intimate relationship with the employee’s supervisor presents a cognizable claim of sex discrimination under the Civil Rights Act (MCL 37.2101 et seg.). Ernest L. Jarrett, for the plaintiff. Plunkett & Cooney, PC. (by Christine D. Oldani, Kenneth L. Lewis, and Venessa Peterson Williams'), for the defendants. Before: Neff, P.J., and Holbrook, Jr., and Jansen, JJ. Neff, P.J. Plaintiff appeals as of right the trial court’s grant of summary disposition in favor of defendants on her claims of sex discrimination, breach of contract, and intentional infliction of emotional distress, following the termination of her adult education job with defendant Detroit Board of Education. We affirm in part, reverse in part, and remand. i This appeal presents an issue of first impression regarding whether alleged adverse employment action against an employee based on the employee’s former intimate relationship with the employee’s supervisor presents a cognizable claim of sex discrimination under the Civil Rights Act (cra), MCL 37.2101 et seq. We conclude that it does, and, therefore, summary disposition of plaintiff’s sexual harassment claim in favor of defendants was improper. However, we affirm the trial court’s grant of summary disposition in favor of the defendants regarding plaintiff’s other claims of sex discrimination and her claims of breach of contract and intentional infliction of emotional distress. n Plaintiff was employed by defendant Detroit Board of Education as a full-time counselor at Cass Technical High School and, following a divorce in 1991, she took an additional part-time position in the adult education program at the Golightly Vocational Center operated by the board. An intimate, romantic relationship developed between plaintiff and her supervisor at Golightly, defendant Joseph Smith, that lasted nearly four years, but ended in 1995, when Smith became involved with defendant Barbara Finch, another Golightly administrator, whom he married in the spring of 1996. Because of plaintiffs past intimate relationship with Smith, problems arose at Golightly between plaintiff, Smith, and Finch. Following the 1995-96 school year, Smith informed plaintiff that her counseling job at Golightly would not be continued. Following the termination of her adult education position, plaintiff filed a lawsuit alleging discrimination in violation of the CRA, breach of contract, and intentional infliction of emotional distress. In her claims, plaintiff alleged that she was subjected to a hostile work environment, sexual harassment, disparate treatment, and the unlawful termination of her employment because of her gender and her prior relationship with defendant Smith. The trial court initially granted summary disposition in favor of the defendants with regard to all claims except the breach of contract claim against the board and Smith. The court subsequently granted summary disposition in favor of the board and Smith regarding plaintiffs breach of contract claim, concluding that it was barred by the applicable collective bargaining agreement. m This Court reviews a trial court’s grant of a motion for summary disposition de novo as a question of law. Ardt v Titan Ins Co, 233 Mich App 685, 688; 593 NW2d 215 (1999). The trial court granted summary disposition pursuant to MCR 2.116(C)(8) and MCR 2.116(C)(10). motion for summary disposition under MCR 2.116(C)(10) tests the factual basis underlying a claim. Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993). We consider all relevant documentary evidence in a light most favorable to the nonmoving party. Id.; Ardt, supra. Summary disposition under MCR 2.116(C)(10) is proper only when there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. Id. Summary disposition under MCR 2.116(C)(8) is proper when “the claim is so clearly unenforceable as a matter of law that no- factual development could establish the claim and justify recovery.” Smith v Stolberg, 231 Mich App 256, 258; 586 NW2d 103 (1998). In reviewing a motion under MCR 2.116(C)(8), this Court does not act as a factfinder, but, instead, accepts all well-pleaded facts as true. Radtke, supra at 373. Statutory construction is also a question of law, requiring review de novo. Haworth, Inc v Wickes Mfg Co, 210 Mich App 222, 227; 532 NW2d 903 (1995). A Under Michigan law, freedom from discrimination in employment because of a person’s sex is a civil right. MCL 37.2102; Chambers v Trettco, Inc, 463 Mich 297, 309; 614 NW2d 910 (2000). Subsection 202(1)(a) of the cra provides that an employer may not “discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of . . . sex . . . .” MCL 37.2202(1)(a). Discrimination because of a person’s sex includes sexual harassment of the person. MCL 37.2103(i); Chambers, supra at 309. The CRA defines sexual harassment to include unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature under the following conditions: :|: * * (ii) Submission to or rejection of the conduct or communication by an individual is used as a factor in decisions affecting the individual’s employment.... (hi) The conduct or communication has the purpose or effect of substantially interfering with an individual’s employment, ... or creating an intimidating, hostile, or offensive employment . . . environment. [MCL 37.2103(i)(i), (ii), (iii).] To establish a claim of harassment under subsection 103(i)(n), generally termed “quid pro quo” harassment, an employee must show “(1) that she was subject to any of the types of unwelcome sexual conduct or communication described in the statute, and (2) that her employer or the employer’s agent used her submission to or rejection of the proscribed conduct as a factor in a decision affecting her employment.” [Chambers, supra at 310-311, quoting Champion v Nation Wide Security, Inc, 450 Mich 702, 708-709; 545 NW2d 596 (1996).] To establish an harassment claim under subsection 103(i)(m), referred to as “hostile work environment” harassment, an employee must prove (1) the employee belonged to a protected group; (2) the employee was subjected to communication or conduct on the basis of sex; (3) the employee was subjected to unwelcome sexual conduct or communication; (4) the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment; and (5) respondeat superior. [Chambers, supra at 311, quoting Radtke, supra at 382-383.] In her complaint, plaintiff set forth claims of both “sexual harassment” (presumably quid pro quo sexual harassment) and “hostile work environment.” On the evidence presented, we conclude that plaintiff established sufficient facts for her claim to survive a motion for summary disposition under either theory. B The threshold issue for a claim of quid pro quo sexual harassment is that submission to or rejection of the proscribed conduct was “a factor in decisions affecting [the plaintiffs] employment . . . .” MCL 37.2103(i)(n); Chambers, supra at 317. Because it is undisputed that plaintiffs employment at Golightly was terminated, and because plaintiff averred various actions by Smith and Finch affecting plaintiffs job at Golightly, plaintiff has established a genuine issue concerning whether the alleged adverse actions were factors in decisions affecting her employment. Thus, we first consider whether plaintiff established a claim of quid pro quo sexual harassment under subsection 103(i)(w). Plaintiff argues that defendants’ adverse actions against her constituted sexual harassment because they were rooted in the reactions of Smith and Finch to a past consensual intimate relationship between plaintiff and Smith, who was plaintiff’s supervisor and a department head at Golightly. In her complaint, plaintiff averred that after their breakup, Smith confronted her at work with thinly veiled threats either expressly or implicitly warning her that she would lose her job unless she promised to do nothing to adversely affect his subsequent relationship with Finch. Further, Smith repeatedly raised the issue in the form of threats throughout the school year, despite plaintiff’s reassurances that she had no intention of interfering with Smith’s relationship with Finch. Plaintiff, an evening-school counselor, further averred that defendant Finch, a day-school administrator at Golightly, was aware of the former relationship between Smith and plaintiff, and that Finch, through conduct and indirect communications, exhibited hostility toward plaintiff and made her displeasure with plaintiff’s regular presence at the school known to plaintiff. Plaintiff testified during her deposition that Finch, through Smith, interceded in the directing of plaintiff’s employment to impose work conditions specific to plaintiff, such as assigning her a particular desk in the counseling center within Finch’s area of responsibility, thus preventing plaintiff from working away from Finch. No one else was given an assigned seat. In Barrett v Kirtland Community College, 245 Mich App 306, 322; 628 NW2d 63 (2001), this Court recently held that the cra does not “prohibit conduct based on romantic jealousy,” and therefore no claim of sex discrimination could be made where the male plaintiff alleged that his male supervisor subjected him to adverse employment actions because they were both pursuing a romance with the same female employee. However, Barrett can be distinguished from this case in that the defendants’ conduct in Barrett did not emanate from a prior sexual/romantic relationship between the plaintiff and his supervisor and there was no claim or evidence that the plaintiff was required to submit to sexual harassment as a condition of employment. Id. at 319, 323. Plaintiff’s allegations that defendants targeted her for persistent and hostile communications and other adverse actions because they disliked her continued presence in the workplace as Smith’s former paramour may reasonably be considered allegations of conduct or communication “of a sexual nature,” MCL 37.2103(i)(i), in that they emanated from the romantic/sexual relationship between plaintiff and Smith. Similarly, plaintiff’s allegation that she suffered adverse employment actions and was discharged for reasons stemming from her status as Smith’s former girlfriend may reasonably be considered an allegation that plaintiff’s employment was terminated because of her “submission” to Smith’s prior romantic/sexual advances. The Civil Rights Act is a “remedial statute” of “manifest breadth and comprehensive nature . . . .” Eide v Kelsey-Hayes Co, 431 Mich 26, 36; 427 NW2d 488 (1988). “[R]emediai statutes are to be liberally construed to suppress the evil and advance the remedy.” Id. at 34. The provisions of the cra covering sexual harassment in the workplace should be read to broadly protect an employee against adverse employment action taken by an employer acting in furtherance of personal animosity toward the employee as the result of the employer’s sexual advances. Under the circumstances of this case, we conclude that plaintiff has presented a genuine issue of fact concerning whether she was subjected to quid pro quo sexual harassment. c With regard to plaintiff’s claim of a hostile work environment, we conclude on the same facts that plaintiff presented sufficient evidence for that claim to survive a motion for summary disposition. Our reasoning with regard to quid pro quo harassment applies similarly to establish that plaintiff belonged to a protected group, was subjected to communication or conduct on the basis of her sex, and that the conduct or communication was unwelcome. See Radtke, supra at 383-385 (analyzing the first three elements of a claim of hostile work environment). Viewing the evidence in a light most favorable to plaintiff, as a female, former girlfriend of her supervisor, plaintiff was the object of unwelcome sexual conduct or communication, in the form of remarks and offensive actions by Smith and Finch. She informed Smith that she considered his actions to be harassment and told him to cease threatening her; plaintiff also expressed her resentment to Finch for complaining about plaintiff. With respect to the fourth element of a claim of hostile work environment, plaintiff presented evidence to create a genuine issue of fact concerning whether the conduct or communication substantially interfered with her employment or created an intimidating, hostile, or offensive work environment. “[W]hether a hostile work environment existed shall be determined by whether a reasonable person, in the totality of circumstances, would have perceived the conduct at issue as substantially interfering with the plaintiff’s employment or having the purpose or effect of creating an intimidating, hostile, or offensive employment environment.” Id. at 394. Plaintiff was subjected to threats, numerous offensive remarks, adverse working conditions, and ultimately replaced as a counselor because of her past relationship with her supervisor. Finally, plaintiff presented evidence to establish the element of respondeat superior. Plaintiff testified during her deposition that Smith telephoned plaintiff at Cass Technical on the day she was to return to work at Golightly and told her that she was being replaced by another counselor, although her counterpart, a Ms. Watts, was not being replaced. Plaintiff received no other notice that her position at Golightly, which she had had for the past five years, was terminated. On that same day, plaintiff contacted Dr. Lucille Peoples, the Golightly adult education director, concerning the termination of her employment and whether there was any problem with her work, but plaintiff was not thereafter assigned to a counseling position. Mindful of the standards by which a court must view the evidence in deciding a motion for summary disposition, accepting all well-pleaded facts as true, MCR 2.116(C)(8), and viewing the evidence in a light most favorable to the nonmoving party, MCR 2.116(C)(10), we conclude that summary disposition of plaintiff’s sexual harassment claims was improper. We find no error in the summary dismissal of plaintiff’s other claims of sex discrimination. We conclude that plaintiff failed to present sufficient facts to support her theories of intentional sex discrimination or disparate treatment. See Lytle v Malady (On Rehearing), 458 Mich 153, 181, n 31; 579 NW2d 906 (1998) (disparate treatment requires evidence that a female plaintiff was treated differently than a similarly situated male employee); Schultes v Naylor, 195 Mich App 640, 646; 491 NW2d 240 (1992) (intentional discrimination requires a showing that the defendant was predisposed to discriminate against persons in the affected class). IV We also find no error in the trial court’s dismissal of plaintiff’s claims of intentional infliction of emotional distress and breach of contract. We conclude that reasonable minds could not differ that the complained-of conduct was not “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community.” Haverbush v Powelson, 217 Mich App 228, 234; 551 NW2d 206 (1996). We also conclude that the trial court properly dismissed plaintiffs implied contract claim on the ground that it concerned subject matter expressly covered by her union contract. Wallace v Recorder’s Court of Detroit, 207 Mich App 443, 446-447; 525 NW2d 481 (1994). Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. Plaintiff also characterizes these actions as discrimination based on marital status, contending that her status as a single mother was a factor in her harassment because Smith knew that she could not afford to lose her job. However, plaintiff presents only cursory argument on this claim, and we find plaintiffs argument too tenuous to form a basis for relief.

MICHALSKI v BAR-LEVAV Docket No. 114107. Argued January 16, 2001 (Calendar No. 1). Decided May 1, 2001. Claudia Michalski and her husband brought an action in the Oakland Circuit Court against her employer, Reuven Bar-Levav, M.D., for damages under the Handicappers’ Civil Rights Act, alleging harassment after she informed the defendant of a tentative diagnosis of suspected multiple sclerosis. The court, Barry L. Howard, J., after discovery, granted summary disposition for the defendant, concluding that there was no evidence that the condition the plaintiff was perceived to have was a condition that substantially limits one or more major life activities, and that there was no evidence to suggest that during the time at issue the defendant had any knowledge that one or more of the plaintiff’s major life activities was limited. The Court of Appeals, Markey, RJ., and Sawyer, J. (Whitbeck, J., concurring in part and dissenting in part), reversed in an unpublished opinion per curiam, holding that the plaintiff had presented sufficient evidence of handicap discrimination and that the mere fact that she was symptom-free should not preclude her cause of action (Docket No. 204033). The defendant appeals. In an opinion by Justice Weaver, joined by Chief Justice Corrigan, and Justices Taylor, Young, and Markman, the Supreme Court held: The plaintiff did not present sufficient evidence to create a question of fact concerning whether the defendant regarded her as having a determinable physical or mental characteristic that substantially limited one or more of her major life activities. 1. Under the hcra, an employer may not discharge or otherwise discriminate against an employee with respect to compensation or the terms, conditions, or privileges of employment because of a handicap unrelated to the ability to perform the duties of a particular job or position. To establish a prima facie case of handicap discrimination, a plaintiff must demonstrate a handicap as defined by the hcra that is unrelated to the ability to perform the duties of the job, and discrimination as enumerated in the statute. 2. To qualify for protection under subsection (iii), an employee must be regarded as having a determinable physical or mental characteristic that substantially limits one or more major life activities. While a plaintiff need not actually have a determinable physical or mental characteristic, to qualify as handicapped under subsection (iii), the plaintiff must prove that he was regarded as having a determinable physical or mental characteristic, that the perceived characteristic was regarded as substantially limiting one or more of the plaintiff’s major life activities, and that the perceived characteristic was regarded as being unrelated either to the plaintiff’s ability to perform the duties of a particular job or position or to the plaintiff’s qualifications for employment or promotion. Moreover, depending on whether the claim is brought under subsection (i) (actual handicap) or subsection (iii) (perceived handicap), because of the present-tense language used in the statute, courts must evaluate the physical or mental characteristic at issue either as it actually existed at the time of the plaintiff’s employment, or as it was perceived at the tune of the plaintiff’s employment. 3. Because the plaintiff did not present sufficient evidence to create a question of fact with respect to whether the defendant regarded her as having a condition that substantially limited one or more of her major life activities, reversal and reinstatement of the summary disposition is required. Reversed and remanded. Justice Kelly, joined by Justice Cavanagh, dissenting, stated that the majority’s use of a narrow present-tense standard in interpreting the scope of subsection (iii) gives a meaning that the Legislature could not have intended. The well-settled purpose of the Handicappers’ Civil Rights Act is that a plaintiff need not display symptoms of a handicap to be protected. Rather, subsection (iii) is violated if an employer discriminates because it believes the employee is handicapped, even if the belief is erroneous. Under the majority’s rendering, a subsection (iii) claim becomes virtually indistinguishable from a claim under subsection (i). A better view would recognize that it is immaterial whether an employer who perceives an employee as having a substantial limitation, believes it to be present or future. If the employer discriminates because it perceives the employee to be handicapped or is becoming handicapped, it violates subsection (iii). Thus, subsection (iii) should be interpreted to contemplate a finding of discrimination for adverse acts against an employee arising from an employer’s perception of a handicap and the perception that the handicap threatens work, even in the future. The plaintiffs have submitted sufficient evidence to create a genuine issue of fact whether the defendant discriminated against Ms. Michalski because he thought she was handicapped. A jury could infer that the defendant regarded Ms. Michalski as handicapped on the basis of her informing him that she had been tentatively diagnosed with multiple sclerosis and that he believed this might substantially limit her major life activities in the future. Considering the factual allegations and supporting documents in a light most favorable to the plaintiffs, a jury also could conclude that she was not handicapped and that the defendant acted on his faulty perception in violation of the civil rights act. Gary A. Kozma for the plaintiffs-appellees. John A. Zick for the defendants-appellants. Amici Curiae: Kienbaum, Opperwall, Hardy & Pelton, P.L.C. (by Thomas G. Kienbaum, Theodore R. Opperwall, and Noel D. Massie), for Blue Cross and Blue Shield of Michigan. Clark Hill, P.L.C. (by Duane L. Tamacki, F.R. Damm, and Mary C. Dirkes), for Michigan Manufacturers Association. Weaver, J. Following a motion for summary disposition brought pursuant to MCR 2.116(C)(10), plaintiff’s Handicappers’ Civil Rights Act claim was dismissed by the circuit court. The Court of Appeals reversed. The issue before this Court is whether the Court of Appeals properly concluded that plaintiff presented sufficient evidence to create a question of fact with respect to whether defendant regarded her as having a determinable physical or mental characteristic that substantially limited one or more of her major life activities. We hold that plaintiff did not present sufficient evidence to create such a question, and we reverse the judgment of the Court of Appeals on this issue. i On September 1, 1995, plaintiff signed an employment contract with defendant to begin work as an executive secretary on September 11, 1995. On September 4, 1995, plaintiff experienced numbness and tingling on her left side, which persisted for four days. She was seen by her family doctor, who referred her to Dr. Green, a neurologist. Plaintiff was able to begin work as scheduled. On September 23, 1995, plaintiff saw Dr. Green, who told her he suspected multiple sclerosis, but was unable to make a positive diagnosis at that time. Plaintiff testified at her deposition that she told defendant and others at the office about this tentative diagnosis. Plaintiff maintains that, after she revealed her condition, defendant undertook a course of harassment, which she attributed to his perception of her medical condition. Dr. Green saw plaintiff again on October 28, 1995. At this time, plaintiff had no symptoms of multiple sclerosis, and Dr. Green indicated on her medical record that she was “doing fine, feels great.” Plaintiff continued to work without incident until December 28, 1995, when she left work, experiencing a loss of vision in one eye. She was seen by Dr. Green, who diagnosed multiple sclerosis. She was hospitalized for three days, and her vision improved after treatment. However, she did not return to work. Plaintiff brought this action alleging a violation of the Handicappers’ Civil Rights Act (HCRA) and a claim for intentional infliction of emotional distress. After discovery, defendant moved again for summary disposition pursuant to MCR 2.116(C)(10). The circuit court granted the motion, concluding: [T]here is no evidence that the condition that Plaintiff was perceived to have was a condition which substantially limits one or more for [sic] major life activities. And no evidence to suggest that the Defendant had any knowledge that one or more of the major life activities was limited. On January 26, 1999, the Court of Appeals issued a two-to-one decision affirming the dismissal of the intentional infliction of emotional distress count, but reversing the dismissal of plaintiffs handicap discrimination claim because it believed that plaintiff had presented sufficient evidence to establish a prima facie case of handicap discrimination. Relying on Sanchez v Lagoudakis, plaintiff argued that one could find that her condition was a handicap as defined by the statute because the HCRA prohibits discrimination, even when an individual does not exhibit symptoms of a handicap. A majority of the Court of Appeals agreed. Noting that under Sanchez, the focus is on the employer’s conduct and belief or intent, and not merely on the employee’s condition, the majority reasoned that the mere fact that plaintiff was symptom free should not preclude her cause of action. The Court of Appeals explained that an “individual with multiple sclerosis can lead a normal life until the next exacerbation, which occurs with varying frequency and degree.” Similarly, individuals with handicaps such as epilepsy and asthma may have periods of time where they are symptom free. Although plaintiff was not definitively diagnosed with multiple sclerosis, the Court of Appeals reasoned that applying Sanchez, in which the defendant based his employment decision on rumors that the plaintiff had aids, there was sufficient evidence to establish that in the present case, defendant may have regarded plaintiff as handicapped. The Court of Appeals noted that plaintiff’s deposition testimony established that she informed defendant from the beginning of her employment that her doctors suspected she had multiple sclerosis. Further, plaintiff periodically took some time off during September and October 1995 to undergo testing for multiple sclerosis and to receive treatment to lessen the side effects of some of the testing procedures. Therefore, the Court of Appeals concluded that the trial court had erred in granting summary disposition in defendant’s favor. Judge Whitbeck dissented. His dissent focused on the fact that the definition of “handicap” was altered by a 1990 amendment to the HCRA to require that the physical or mental characteristic in question substantially limit one or more major life activities of the individual. The version of the statute in effect at the time of the events in Sanchez did not include this requirement; thus, it was improper for the majority to rely on that case as support for its conclusion. The dissent reasoned that, under the applicable version of the hcra, the plain language of the statute required defendant to perceive plaintiff as having a characteristic that substantially limited a major life activity. Because plaintiff did not present any evidence that defendant regarded her as having a condition that substantially impaired a major life activity, the dissent concluded that summary disposition was properly granted. ' This Court granted leave to appeal. 461 Mich 1020 (2000). ii A motion for summary disposition brought pursuant to MCR 2.116(C) (10) tests the factual support of a plaintiff’s claim and is subject to de novo review. Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999). In reviewing a motion for summary disposition under MCR 2.116(C)(10), the court considers the pleadings, affidavits, and other documentary evidence filed in the action or submitted by the parties in the light most favorable to the nonmoving party. The motion is properly granted if the documentary evidence presented shows that there is no genuine issue with respect to any material fact and the moving party is therefore entitled to judgment as a matter of law. The hcra provides that “[a]n employer shall not . . . [discharge or otherwise discriminate against an individual with respect to compensation or the terms, conditions, or privileges of employment, because of a handicap[] that is unrelated to the individual’s ability to perform the duties of a particular job or position.” MCL 37.1202(l)(b); MSA 3.550(202)(l)(b). To establish a prima facie case of handicap discrimination, a plaintiff must demonstrate that (1) he is handicapped as defined by the hcra, (2) the handicap is unrelated to his ability to perform the duties of his job, and (3) he was discriminated against in one of the ways described in the statute. Chmielewski v Xermac, Inc, 457 Mich 593, 602; 580 NW2d 817 (1998). The act, as amended in 1990, defines handicap for employment related purposes as follows: (i) A determinable physical or mental characteristic of an individual, which may result from disease, injury, congenital condition of birth, or functional disorder, if the characteristic: (A) For purposes of article 2, substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s ability to perform the duties of a particular job or position or substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s qualifications for employment or promotion. * * * (ii) A history of a determinable physical or mental characteristic described in subparagraph (i). (iii) Being regarded as having a determinable physical or mental characteristic described in subparagraph (i). [MCL 37.1103(e); MSA 3.550(103)(e).][] Relying on subsection (iii), plaintiff argued that defendant undertook a course of harassment because he perceived her as handicapped. Thus, resolution of this matter requires us to construe this subsection of the statute. Where statutory language is clear and unambiguous, its plain meaning reflects legislative intent, and judicial construction is not permitted. McKenzie v Auto Club Ins Ass’n, 458 Mich 214, 217; 580 NW2d 424 (1998). In this case, we find that the statutory language is clear and unambiguous. Considering the statute in its entirety, to qualify for protection under subsection (iii), an employee must be “regarded as having a determinable physical or mental characteristic,” as that characteristic is described in subsection (i) (emphasis added). Subsection (i)(A) describes the determinable physical or mental characteristic as one that “substantially limits 1 or more of the major life activities of that individual . . . .” (Emphasis added.) The characteristic must also be unrelated either to “the individual’s ability to perform the duties of a particular job or position” or to “the individual’s qualifications for employment or promotion.” Thus, while a plaintiff need not actually have a determinable physical or mental characteristic, to qualify as handicapped under subsection (iii), the plain statutory language does require that the plaintiff prove the following elements: (1) the plaintiff was regarded as having a determinable physical or mental characteristic; (2) the perceived characteristic was regarded as substantially limiting one or more of the plaintiff’s major life activities; and (3) the perceived characteristic was regarded as being unrelated either to the plaintiff’s ability to perform the duties of a particular job or position or to the plaintiff’s qualifications for employment or promotion. Only the first two elements are at issue in this case. We agree with the Court of Appeals dissent that reliance on Sanchez as support for the conclusion reached by the Court of Appeals majority is misplaced. The version of the hcra in effect at the time of the events in Sanchez contained no requirement that the determinable physical or mental characteristic substantially limit a major life activity. Thus, under the pre-1990 version of the statute, a plaintiff only needed to be regarded as having a determinable physical or mental characteristic. Finally, we note that the phrase “regarded as having,” found in subsection (iii), and the phrases “substantially limits” and “is unrelated” found in subsection (i)(A), all appear in the present tense. Depending on whether a plaintiff is proceeding under the “actual” or “regarded as” portions of the statute, because of the Legislature’s choice of present tense language in defining the term handicap, we must evaluate the physical or mental characteristic at issue either (1) as it actually existed at the time of the plaintiff’s employment, or (2) as it was perceived at the time of the plaintiff’s employment. Thus, to qualify for coverage under subsection (iii), plaintiff must be regarded as presently having a characteristic that currently creates a substantial limitation of a major life activity. In this case, plaintiff did not present any evidence to create a question of fact regarding whether defendant regarded her as having a characteristic that substantially limited a major life activity at the time she was his employee. She presented no evidence that Dr. Bar-Levav regarded her as unable to perform basic tasks of ordinary life. Indeed, from all indications, she was physically capable of performing her job duties. At most, plaintiff presented evidence that she informed defendant that she had been tentatively diagnosed with multiple sclerosis and that he believed that this might substantially limit her major life activities in the future. Thus, the trial court properly granted summary disposition on plaintiffs claim that she was regarded as handicapped under the hcra. Although plaintiff also argued in the Court of Appeals that she was actually handicapped pursuant to subsection (i) of the hcra, the Court of Appeals did not address this argument. Therefore, we remand this case to the Court of Appeals for consideration of plaintiffs actual handicap theory. m In conclusion, we find that, in order to succeed on a claim brought under subsection (iii), the plain language of the statute requires an employee prove (1) that the employee was regarded as having a determinable physical or mental characteristic, (2) that the perceived characteristic was regarded as substantially limiting one or more of the plaintiffs major life activities, and (3) that the perceived characteristic was regarded as being unrelated either to the plaintiffs ability to perform the duties of a particular job or position or to the plaintiffs qualifications for employment or promotion. Moreover, depending on whether the claim is brought under subsection (i) (“actual” handicap) or subsection (iii) (“perceived” handicap), because of the present-tense language used in the statute, courts must evaluate the physical or mental characteristic at issue either (1) as it actually existed at the time of the plaintiffs employment, or (2) as it was perceived at the time of the plaintiffs employment. Because plaintiff failed to present sufficient evidence to create a question of fact regarding whether the defendant regarded her as having a characteristic that substantially limited one or more of her major life activities, we reverse the Court of Appeals and reinstate the trial court’s ruling granting summary disposition in defendant’s favor on plaintiffs claim that she was regarded as handicapped pursuant to subsection (iii). We remand to the Court of Appeals for consideration of plaintiff’s actual handicap theory. Corrigan, C.J., and Taylor, Young, and Markman, JJ., concurred with Weaver, J. In 1998, after plaintiff filed her claim, the name of the act was changed to the Persons with Disabilities Civil Rights Act. 1998 PA 20, MCL 37.1101; MSA 3.550(101). This opinion will refer to the act as the Handi

BARRETT v KIRTLAND COMMUNITY COLLEGE Docket No. 217040. Submitted October 17, 2000, at Lansing. Decided April 10, 2001, at 9:00 AM. Leave to appeal sought. Brent Barrett brought an action in the Roscommon Circuit Court against Kirtland Community College, alleging, among other things, breach of contract and retaliation that violated the Civil Rights Act (cra), MCL 37.2101 et seq., after his employment at the college was terminated. The plaintiff presented evidence at a jury trial that his employment was terminated before the expiration of a one-year employment contract and after he lodged with the president of the college and with the Michigan Department of Civil Rights complaints concerning his treatment by an immediate supervisor who discovered that the plaintiff was romantically involved with a college employee in whom the supervisor had expressed a romantic interest. The defendant presented evidence that the plaintiff was discharged for insubordination and for abandoning his position. The jury rendered a verdict in favor of the plaintiff with respect to the claims of breach of contract and retaliation under the cra. Damages were awarded to the plaintiff by the jury on the retaliation claim and, pursuant to the parties’ agreement, by the trial court, Michael J. Matuzak, X, on the breach of contract claim. The trial court denied the defendant’s motion for judgment notwithstanding the verdict or for a new trial, and awarded costs and attorney fees to the plaintiff with respect to the retaliation claim. The defendant appealed. The Court of Appeals held: The trial court erred in denying the defendant’s motion for judgment notwithstanding the verdict with respect to the claim of retaliation, but did not err in denying the defendant’s motion for judgment notwithstanding the verdict or for a new trial with respect to the claim of breach of contract. The judgment for the plaintiff on the retaliation claim must be reversed and the award of attorney fees and costs in connection with that claim must be vacated. On remand, the trial court shall enter a judgment for the defendant with respect to the retaliation claim. 1. A plaintiff seeking to establish unlawful employment-related retaliation under subsection 701(a) of the CRA, MCL 37.2701(a), must show, among other things, that the plaintiff’s participation in activity protected by the cra was a significant factor in the adverse employment action taken by the defendant. Here, although the plaintiffs filings of complaints with the Department of Civil Rights constituted protected activity, the plaintiff cannot establish a causal connection between the filings and the termination of his employment in view of evidence indicating that, before the plaintiff filed the complaints, the president of the college had already considered and recommended to the board of trustees that the plaintiff be fired for not accepting direction and responsibility and for having a poor attitude. 2. The plaintiff, in complaining to the president of the college about the supervisor’s treatment of the plaintiff based on romantic jealously, did not make a charge under the CRA or oppose a violation of the CRA such that the plaintiff can establish that the defendant retaliated against him for making a charge or opposing a violation. The plaintiff did not make a charge under the cra because he did not raise a specter of a claim of unlawful gender discrimination or sexual harassment by the supervisor when he complained of the way tire supervisor treated him after the supervisor learned of the plaintiff’s romantic involvement with the college employee. The plaintiff did not oppose a violation of the CRA in complaining about the supervisor’s treatment because that treatment, being devoid of gender-based discrimination or sexual harassment, did not constitute “discrimination because of sex” under the cra. 3. The defendant, in reporting to the police that the plaintiff had taken items owned by the college after his employment was terminated, did not retaliate against the plaintiff for filing complaints with the Department of Civil Rights. A causal connection between the plaintiffs filing of complaints and the defendant’s reporting to the police is lacking because the plaintiff acknowledged that he took college-owned property and because of the defendant’s interest in recovering its properly. 4. The trial court did not abuse its discretion in excluding evidence of several incidents of the plaintiff’s work-related misconduct. The decision to exclude such evidence was not palpably and grossly violative of fact and logic, given that the trial court correctly concluded that the evidence would be a waste of time and would likely confuse the jurors because the evidence that was admitted included enough evidence of the plaintiff’s conduct to allow the jury to infer that the plaintiff was fired for poor job performance and insubordination. Affirmed in part, reversed in part, and remanded. 1. Civil Eights — Civil Rights Act — Employment — Retaliation. A plaintiff seeking to establish a prima facie case of unlawful employment-related retaliation under the Civil Rights Act must show that the plaintiff engaged in a protected activity, that this was known by the defendant, that the defendant took an employment action adverse to the plaintiff, and that the plaintiffs participation in protected activity was a significant factor in the defendant’s adverse employment action (MCL 37.2701[a]). 2. Civil Rights — Civil Rights Act — Employment — Discrimination Because op Sex. Employment discrimination because of sex, as proscribed by the Civil Rights Act, is limited to instances of gender-based discrimination or instances where the employee is required to submit to sexually-based harassment (MCL 37.2103[i], 37.2201[d], 37.2202[1]). Robert J. Krwpka and Michael J. Forster, for the plaintiff. Thrun, Maatsch and Nordberg, P.C. (by Martha J. Marcero and Roy H. Henley), for the defendant. Before: Holbrook, Jr., P.J., and Sawyer and Zahra, JJ. Zahra, J. Defendant Kirtland Community College (kcc) appeals as of right from an order denying its motion for judgment notwithstanding the verdict (jnov) or a new trial. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. I. FACTS Plaintiff was hired by KCC in February 1992 as part-time cultural events coordinator. In September 1992, plaintiff signed a one-year contract to serve as KCC’s full-time coordinator of cultural events/activities. In September 1993, plaintiff signed another one-year contract to remain in that position. That second contract was to expire on September 17, 1994. Plaintiff’s duties as full-time coordinator of cultural events/ activities included planning performances at kcc’s theater, running the theater’s box office, contracting with performers, producing shows at the theater, and completing accounting duties with respect to the performances. Plaintiff’s coordinator position was not a faculty position. Defendant Cary Vajda was KCC’s dean of student services and plaintiff’s immediate supervisor at all times pertinent to this case. Defendant Katherine Grosser was kcc’s dean of business services and defendant Dorothy Franke was president of kcc during plaintiff’s employment. In October 1993, Vajda asked KCC employee Allison Goshom on a date. Vajda did not know Goshom was romantically involved with plaintiff at the time he asked her out. Plaintiff claimed that the quality of his working relationship with Vajda declined once Vajda discovered the nature of Goshom’s relationship with plaintiff. As a result, plaintiff filed three complaints with the Michigan Department of Civil Rights (mdcr), charging gender discrimination and retaliation under the Civil Rights Act (cra), MCL 37.2101 et seq. Plaintiff claimed that he suffered psychological and physical problems as a result of continual adverse treatment by Vajda. Those problems prompted plaintiff to take a personal leave from his job in May 1994 and a later unpaid leave under the Family Medical Leave Act (fmla), 29 USC 2601 et seq. During the time plaintiff was on leave, the coordinator of cultural events/activities position was reconfigured by KCC administrators into a faculty position. Plaintiff applied for the new position, but was not hired. On September 13, 1994 (four days before the expiration of his employment contract), plaintiff returned from his leave and was discharged by Franke after a short meeting. In a letter Franke wrote to plaintiff on the date of his discharge, she stated that plaintiffs “[c]ontinued insubordination” and his “[abandonment of position” were the reasons for his discharge. Franke specified that plaintiffs insubordination included failing to return keys to KCC facilities despite being directed to do so on four separate occasions and refusing to provide proof of attendance at a meeting for which plaintiff sought travel expenses. Franke further specified that plaintiff abandoned his position by failing to return to work after his doctor indicated he was able to return on September 6, 1994, and by failing to notify KCC personnel to discuss returning to his job. In October 1995, plaintiff filed this lawsuit, alleging breach of employment contract, violation of the fmla, gender discrimination under the CRA, retaliation under the CRA, and defamation. Plaintiffs retaliation, breach of contract, and FMLA claims went to trial. The jury found no violation of the fmla. However, the jury found that KCC retaliated against plaintiff and assessed damages of $99,960 in regard to that claim. The jury also found that KCC breached plaintiffs employment contract. Pursuant to the parties’ agreement, the trial court assessed damages in connection with the breach of contract verdict, determining damages in the amount of $750. Kcc brought a motion for jnov or, alternatively, for a new trial, arguing that there was no evidence of a causal link between protected activity by plaintiff and adverse actions taken by kcc, nor evidence that plaintiff was terminated without just cause or that his employment contract was otherwise breached. The trial court denied kcc’s motion. Thereafter, the court assessed $46,500 in attorney fees and $986 in costs with respect to the retaliation claim. H. LEGAL ANALYSIS A. RETALIATION IN VIOLATION OF MCL 37.2701(A) On appeal, kcc argues that the trial court erred in denying its motion for jnov with respect to plaintiffs retaliation claim. We agree. A trial court’s decision to grant or deny a motion for jnov is reviewed de novo. Attard v Citizens Ins Co of America, 237 Mich App 311, 321; 602 NW2d 633 (1999); Farm Credit Services of Michigan’s Heartland, PCA v Weldon, 232 Mich App 662, 672; 591 NW2d 438 (1998). In reviewing a decision on a motion for jnov, this Court must view the testimony and all legitimate inferences in the light most favorable to the nonmoving party. Forge v Smith, 458 Mich 198, 204; 580 NW2d 876 (1998). If reasonable jurors honestly could have reached different conclusions, the jury verdict must stand. Central Cartage Co v Fewl-ess, 232 Mich App 517, 524; 591 NW2d 422 (1998). Only if the evidence fails to establish a claim as a matter of law is jnov appropriate. Forge, supra. The CRA provides, in part: 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. (b) Limit, segregate, or classify an employee or applicant for employment in a way that deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, height, weight, or marital status. [MCL 37.2202(l)(a) and (b).] The cra also prohibits an employer from retaliating against an employee for pursuing rights under the CRA, stating: Two or more persons shall not conspire to, or a person shall not: (a) Retaliate or discriminate against a person because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act. [MCL 37.2701(a).] 1. claims of pretermination retaliation In the trial court, plaintiff asserted that his job was reconfigured and he was eventually discharged in retaliation for complaining to Franke about Vajda’s adverse treatment of him and for filing complaints with the mdcr. On appeal, kcc claims that plaintiff did not engage in protected activity under the CRA that could be said to have led to any adverse employment action. We read the CRA in light of the primary goal of judicial interpretation, which is to ascertain and give effect to the intent of the Legislature. Radtke v Everett, 442 Mich 368, 386; 501 NW2d 155 (1993). If the plain and ordinary meaning of a statute is clear, judicial construction is neither necessary nor permitted. Cherry Growers, Inc v Agricultural Marketing & Bargaining Bd, 240 Mich App 153, 166; 610 NW2d 613 (2000). We may not speculate about the probable intent of the Legislature beyond the words expressed in the statute. In re Schnell, 214 Mich App 304, 310; 543 NW2d 11 (1995). If a statute provides its own glossary, the terms must be applied as expressly defined. Tryc v Michigan Veterans’ Facility, 451 Mich 129, 136; 545 NW2d 642 (1996). When reasonable minds may differ with respect to the meaning of a statute, the courts must look to the object of the statute and the harm it is designed to remedy and apply a reasonable construction that best accomplishes the purpose of the statute. Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich 638, 644; 513 NW2d 799 (1994). In interpreting provisions of the CRA, we are guided by federal court interpretations of the counterpart federal statute. Chambers v Trettco, Inc, 463 Mich 297, 313; 614 NW2d 910 (2000); see title VII of the federal Civil Rights Act of 1964, 42 USC 2000e et seq. While we are not bound by federal precedent based on title VII, those precedents analogous to questions presented under the CRA are persuasive and will be afforded substantial consideration by this Court. DeFlaviis v Lord & Taylor, Inc, 223 Mich App 432, 437; 566 NW2d 661 (1997), citing McCalla v Ellis, 180 Mich App 372, 377-378; 446 NW2d 904 (1989). However, we are always primarily obligated when interpreting Michigan law to ascertain and give effect to the intent of the Michigan Legislature. Chambers, supra at 314. Therefore, while we may look for guidance in federal interpretations of similar laws, we must not defer to federal interpretations when doing so would be inconsistent with any portion of our Legislature’s enactment. Id.-, Chiles v Machine Shop, Inc, 238 Mich App 462, 472-473; 606 NW2d 398 (1999). This Court has interpreted the retaliation provision of the CRA, MCL 37.2701(a), to require that a plaintiff prove a prima face case by showing: (1) that the plaintiff engaged in a protected activity, (2) that this was known by the defendant, (3) that the defendant took an employment action adverse to the plaintiff, and (4) that there was a causal connection between the protected activity and the adverse employment action. [Meyer v Center Line, 242 Mich App 560, 568-569; 619 NW2d 182 (2000), citing DeFlaviis, supra at 436.] To establish causation, the plaintiff must show that his participation in activity protected by the CRA was a “significant factor” in the employer’s adverse employment action, not just that there was a causal link between the two. Jacklyn v Schering-Plough Healthcare Products Sales Corp, 176 F3d 921, 929 (CA 6, 1999); Polk v Yellow Freight System, Inc, 801 F2d 190, 199 (CA 6, 1986). (a) RETALIATION BASED ON THE FILING OF FORMAL COMPLAINTS WITH THE MDCR In the present case, plaintiff’s conduct of filing complaints with the mdcr on March 11, 1994, May 12, 1994, and September 16, 1994, charging gender discrimination and retaliation was “protected activity” for purposes of a retaliation claim. See MCL 37.2701(a) (prohibiting retaliation “because the person has . . . filed a complaint . . . under this act”). These complaints became known to KCC. Subsequently, plaintiff’s employment was terminated. Thus, plaintiff presented sufficient evidence to satisfy the first three elements of his claim of retaliation. In order for plaintiff to prevail on his retaliation claim, he must establish causation. The record is void of any evidence of causation with respect to the MDCR complaints. The undisputed evidence establishes that Franke considered discharging plaintiff and had definitely decided not to renew plaintiff’s contract before plaintiff filed any of the three complaints. Plaintiff did not dispute Franke’s trial testimony that she was the only KCC administrator with authority to discharge employees. A memo written by Franke, dated March 3, 1994, and sent to KCC’s board of trustees, stated that plaintiff was having problems accepting direction and responsibility and had a generally “poor attitude.” Franke specified: “If all this spells ‘fire’ to you, it does to me, also. ... I can tell you for sure that I won’t be recommending renewal for his contract which ends in September.” Given the content of that memo, plaintiffs filing of the MDCR complaints commencing on Maxch 11, 1994, cannot be said to have been a “significant factor” in Franke’s decision not to renew plaintiff’s contract or to discharge plaintiff. See Jacklyn, supra, and Polk, supra. Consequently, those filings cannot form the basis of a retaliation claim. Meyer, supra. (b) RETALIATION BASED ON AN ORAL COMPLAINT The relevant question, therefore, is whether plaintiff engaged in any protected activity before Franke’s drafting of the March 3, 1994, memo. Plaintiff presented evidence that soon after Vajda became aware of his relationship with Goshom, Vajda severed direct communication with him, created new employment policies pertaining only to him, and enforced old policies that were not previously enforced with respect to other employees. Plaintiff claims that he disclosed Vajda’s adverse treatment to Franke during a meeting in January 1994. He contends that Franke’s failure to put a stop to Vajda’s adverse treatment of him was, itself, an adverse employment action sufficient to support a retaliation claim. Plaintiff cannot prevail on a claim of retaliation in violation of the CRA without establishing that he engaged in activity protected under the act. Meyer, supra. MCL 37.2701(a) specifically defines the type of activity protected under the cra. As it relates to this action, the cra specifically prohibits retaliation or discrimination because “the person has opposed a violation of this act, or because the person has made a charge . . . under this act.” Applying MCL 37.2701(a) to the facts of this case, we must determine whether plaintiff’s oral complaint to Franke in January 1994 amounted to a charge made under the CRA or opposition to a violation of the CRA. We conclude that it did not. (i) PLAINTIFF DID NOT MAKE A CHARGE UNDER THE CRA Plaintiff did not take any action that could be construed as a “charge” under tae act. An employee need not specifically cite the CRA when making a charge under the act. However, the employee must do more than generally assert unfair treatment. See Mitan v Neiman Marcus, 240 Mich App 679, 682; 613 NW2d 415 (2000) (holding complaints amounting to generic claims of “job discrimination” did not qualify as a charge made under the Persons with Disabilities Act, MCL 37.1101 et seq.'). The employee’s charge must clearly convey to an objective employer that the employee is raising the specter of a claim of unlawful discrimination pursuant to the CRA. McLe