Discrimination Cases

CREMONTE v MICHIGAN STATE POLICE Docket Nos. 195669, 195670. Submitted September 8, 1998, at Lansing. Decided October 20, 1998, at 9:00 A.M. Leave to appeal sought. Thomas A. Cremonte brought actions in the Livingston Circuit Court and the Court of Claims against the Michigan State Police, his employer, alleging in the circuit court complaint that the defendant, in violation of the Civil Rights Act, MCL 37.2101 et seq.\ MSA 3.548(101) et seq., denied him promotion on the basis of his age or in retaliation for his opposition to policies of the defendant that discriminated against employees on the basis of age, race, and gender, and alleging in the Court of Claims complaint, for the same alleged conduct by the defendant, a violation of “public policy embodied in the Michigan and United States Constitutions” and a violation of equal protection under the state constitution. The parties stipulated to a joint trial, with the circuit court action tried before a jury. After five days of trial, the court, Daniel A. Burress, J., granted a motion by the plaintiff to amend the circuit court complaint to add claims of racial and gender discrimination. The jury found the defendant liable with regard to all claims and awarded the plaintiff damages. In the Court of Claims action, the court found the defendant liable for racial and gender, but not age, discrimination and awarded the plaintiff damages. The defendant appealed the jury verdict in the circuit court action and the award of damages in the Court of Claims action. The appeals were consolidated. The Court of Appeals held: 1. The defendant did not raise at trial, and therefore failed to preserve for appellate review, its claim that the plaintiff did not show that he opposed a violation of the Civil Rights Act, as required under MCL 37.2701(a); MSA 3.548(701)(a). 2. The trial court abused its discretion by allowing the plaintiff to amend his circuit court complaint midtrial. Pleadings may be amended to conform to evidence introduced at trial only where issues not raised by the pleadings are tried by express or implied consent of the parties, MCR 2.118(C)(1), or, if evidence is objected to at trial on the ground that it is not within the issues raised by the pleadings, where the party seeking amendment satisfies the court that the amendment and the admission of evidence will not prejudice the objecting party in its action or defense, MCR 2.118(C)(2). Here, the defendant did not consent to amendment of the complaint and the plaintiff did not show that the defendant would not be prejudiced by amendment. 3. The trial court erred in awarding damages for a violation of the state constitution. While the propriety of an inferred damage remedy arising directly from violations of the state constitution has been recognized in Smith v Dep’t of Public Health, 428 Mich 540 (1987), aff’d sub nom Will v Michigan Dep’t of State Police, 491 US 58; 109 S Ct 2304; 105 L Ed 2d 45 (1989), the availability in this case of a remedy under the Civil Rights Act obviates any need for an inferred damage remedy. Circuit court jury verdict reversed and circuit court case remanded for new trial; Court of Claims award of damages reversed. 1. Pleadings — Midtkial Amendment of Pleadings — Court Rules. A party whose evidence is objected to at trial on the ground that it is not within the issues raised by the pleadings is not allowed to amend its pleadings to conform the pleadings to the evidence unless the party satisfies the trial court that the amendment and the admission of the evidence will not prejudice the objecting party in its action or defense (MCR 2.118[C][2]). 2. Civil Rights — Civil Rights Act — Employment Discrimination — Dam- ages — Michigan Constttution. A damage remedy for violations of the state constitution may be inferred from the constitution in certain cases; no inferred remedy applies to claims of employment discrimination based on age, race, or gender or to claims of retaliation for opposing discriminatory employment practices or policies in view of remedies available under the Civil Rights Act (Const 1963, art 1, § 2; MCL 37.2101 et seq.; MSA 3.548(101) et seq.f Malley & Fett, P.C. (by James K. Fett and Marla A. Linderman), for the plaintiff. Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Richard P. Gartner, Assistant Attorney General, for the defendant. Before: Jansen, P.J., and Neff and O’Connell, JJ. O’Connell, J. This is an employment discrimination and retaliation case. In Docket No. 195669, defendant appeals a jury verdict in favor of plaintiff. We reverse and remand. In Docket No. 195670, defendant appeals the trial court’s damage award in the Court of Claims action. We reverse. The facts relevant to this appeal are fairly straightforward. Plaintiff is a white male and has been a Michigan State Police Trooper since 1977. Although he has been eligible for promotion for a number of years, he has not been promoted. In the years preceding this suit, plaintiff derided his superiors for hiring and promoting employees pursuant to an affirmative action program. He also wrote a memo questioning Ms superiors’ use of seMority as a factor in promotion decisions, arguing that low semority troopers were bemg promoted more often than Mgh seMority troopers. During tMs time, defendant was hiring and promoting pursuant to an affirmative action program. Defendant was also participating in a system of “augmented certification,” that, in certain circumstances, gave favorable treatment to women and minorities. Plaintiff originally filed a complaint in the Livmgston Circuit Court allegmg that the MicMgan State Police failed to promote him on the basis of Ms age or m retaliation for Ms opposition to MicMgan State Police policies that discriminated against certain employees on the basis of their age, race, and gender. Plaintiff also filed a Court of Claims complaint allegmg a violation of “the public policy embodied in the MicMgan and Urnted States Constitutions” and a violation of equal protection under the MicMgan Constitution. The parties stipulated jomder of the two actions, with the circmt court action to be decided by a jury and the Court of Claims action to be decided by the circmt judge. During the trial, plaintiff amended Ms circmt court complaint to add claims of race and gender discrimination. At trial, plaintiff argued that he has not been promoted because he opposed violations of the Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq., and because of Ms age, race, and gender. Defendant argued that plaintiff was not promoted because he did not have the qualities of a leader. Using a special-verdict form, the jury found defendant liable on all claims and awarded plaintiff $850,000 in damages. In the Court of Claims action, the trial court found defendant not hable on plaintiffs public policy and age claims, but found defendant hable for race and gender discrimination in violation of the Michigan Constitution, and awarded plaintiff $850,000. The trial court then added costs and interest to both awards, and attorney fees to the circuit court award. DOCKET NO. 195669 On appeal, defendant first argues that plaintiff failed to prove a prima facie case of retahation. Defendant contends that plaintiff did not show that he opposed a violation of the Civil Rights Act, as required under MCL 37.2701(a); MSA 3.548(701)(a). While it appears that this argument has merit, defendant failed to raise it below. Thus, this issue is unpreserved, and we will not review it. Napier v Jacobs, 429 Mich 222, 237-238; 414 NW2d 862 (1987). Defendant next argues that the trial court abused its discretion in allowing plaintiff to amend his complaint midtrial. We agree. MCR 2.118(C) provides for the amendment of pleadings to conform to the evidence introduced at trial: (1) When issues not raised by the pleadings are tried by express or implied consent of the parties, they are treated as if they had been raised by the pleadings. In that case, amendment of the pleadings to conform to the evidence and to raise those issues may be made on motion of a party at any time, even after judgment. (2) If evidence is objected to at trial on the ground that it is not within the issues raised by the pleadings, amendment to conform to that proof shall not be allowed unless the party seeking to amend satisfies the court that the amendment and the admission of the evidence would not prejudice the objecting party in maintaining his or her action or defense on the merits. The court may grant an adjournment to enable the objecting party to meet the evidence. Our Supreme Court has addressed the difference between amendments before trial and amendments during trial: MCR 2.118(C)(2) establishes strict requirements for amending a pleading during trial. Unless the party requesting amendment “satisfies the court that. . . amendment. . . would not prejudice the objecting party,” amendment “shall not be allowed.” This rule contrasts sharply with the free amendment allowed before trial. [Dacon v Transue, 441 Mich 315, 333; 490 NW2d 369 (1992). ] Here, the trial court allowed plaintiff to amend his complaint on the basis of a motion brought after five days of trial. In granting the motion, the trial court placed a great deal of emphasis on the fact that the parties both referenced race and gender claims in their opening statements. According to the trial court, plaintiff’s counsel “opened the door” to race and gender claims in his opening argument, and defendant failed to object. The trial court also focused on defense counsel's statements at the beginning of the third day of trial. At that time, defense counsel essentially stated that he had always perceived the case as a reverse discrimination case, but, after reviewing the pleadings, he realized that plaintiff was claiming only age discrimination and retaliation. The trial court felt that defense counsel’s statements were crucial: “It appears to me from my recollection now that there was a defining moment in this case, and I can’t remember what day that was, where [defense counsel] came in and said, I had a chance to really look at this case. And I was trying something different than what [plaintiff alleged in his complaint].” The trial court apparently concluded that defense counsel was prepared to defend against claims of race and gender discrimination. After discussing the amendment during the sixth day of trial, a Wednesday, the trial court put the matter off and finished the day’s testimony. There was no action on the case on Thursday, and on Friday morning the parties came in to further argue the motion to amend. Plaintiff’s attorney essentially argued that, on the basis of defense counsel’s statements on the third day of trial, defendant was not “in a position to argue that they were actually prejudiced.” Defense counsel responded: “[W]hen I prepared for that opening statement I had corrected my erroneous belief and no longer thought it was [a race and gender case].” The trial court continued its focus on the opening statements, asking defense counsel: “Do you agree that it was laid out in the opening statements it was clearly laid out in that fashion to the jury?” After listening to both attorneys, the trial court questioned defense counsel: “Mr. Gartner, if I were to grant the motion, tell me how you would be prejudiced and what you would need to cure that prejudice.” After additional arguments, the trial court granted the motion: Rule 2.118 (C)(1) [and] (2) take a liberal approach towards conforming the pleadings to the proofs, and they include safety valves of prejudice, hi this case, it’s clear to me that the issue [sic] of retaliation, age, gender, sex, race was [sic] clearly laid on the table, and in the Plaintiff’s opening statement not objected to by the Defendant; and, in fact, responded to by the Defendant in their [sic] opening statement. The case was really being tried on those issues until what I call the moments of enlightenment came on this record, at least which would be February 2nd, 1996 after we had gone through a number of witnesses when the matter was brought up by [defense counsel], I am satisfied that substantial justice can be achieved and complete relief as it relates to this case can be submitted to the jury. I’m going to allow the amendment as indicated. The trial court went on to describe the remedial measures it would allow defendant to use to “shore up the defense.” The court also noted that the trial was being delayed for one week anyway, because of the judge’s and jurors’ schedules, which would give the defense time to prepare. The trial court applied the wrong analysis and standard in granting plaintiffs motion. In focusing on the opening statements, the trial court was apparently trying to apply MCR 2.118(C)(1). In other words, the trial court was trying to decide whether defendant had impliedly consented to the additional claims. This was improper, because defense counsel made it clear on the third day of trial that he was not consenting to the trial of race and gender issues. In fact, defense counsel vigorously opposed the introduction of evidence on those issues. When plaintiff brought his motion to amend two days later, any “implied consent” had long since been revoked. Thus, MCR 2.118(C)(1) was inapplicable. The trial court’s statement that MCR 2.118(C)(2) “takes a liberal approach” toward amendments was clearly incorrect as a matter of law. As noted above, our Supreme Court has made it clear that MCR 2.118(C)(2) establishes strict requirements that must be met by the party requesting amendment. Dacon, supra at 333. Otherwise, the amendment “shall not be allowed.” Id. The trial court compounded its error by asking defendant to establish the nature and extent of any prejudice, when the court rule clearly places that burden entirely on the party requesting amendment, in this case, plaintiff. After a thorough review of the record, it is clear that plaintiff did not meet the requirements of MCR 2.118(C)(2), and we conclude that the trial court abused its discretion in granting plaintiff’s motion to amend. Plaintiff argues on appeal that defendant could not have been surprised by the amendment and that defendant was not prejudiced by it. First, we note that this argument is not especially convincing coming from the party who had the ability to avoid this issue by simply amending before trial. Second, it is clear that the addition of race and gender claims changed the nature of the case. The added claims placed new factual questions at issue and changed the import of evidence that had already been admitted. Under these circumstances, plaintiff could not have shown an absence of prejudice to defendant. As our Supreme Court has recognized, “ ‘litigation may proceed to a point where the opposing party cannot reasonably be expected to defend against the amendment; this is an especially pertinent factor on the eve of, during, or after trial.’ ” Weymers v Khera, 454 Mich 639, 659; 563 NW2d 647 (1997) (quoting Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 663; 213 NW2d 134 [1973]). In this case, litigation had proceeded well past the point where defendant could reasonably have been expected to defend against plaintiff’s amendment. Therefore, we reverse the jury verdict in Docket No. 195669 and remand for a new trial. DOCKET NO. 195670 Defendant argues that the trial court erred in awarding plaintiff monetary damages for a constitutional violation. We agree. In a splintered opinion, our Supreme Court has addressed the question whether a plaintiff may sue the state for damages for a violation of the Michigan Constitution. Smith v Dep’t of Public Health, 428 Mich 540; 410 NW2d 749 (1987), aff’d sub nom Will v Michigan Dep’t of State Police, 491 US 58; 109 S Ct 2304; 105 L Ed 2d 45 (1989). After a thorough review of United States Supreme Court decisions on point, two justices declined to find such a remedy. Id. at 612-632 (Justice Brickley, joined by Chief Justice Riley). However, four other justices “would recognize the propriety of an inferred damage remedy arising directly from violations of the Michigan Constitution in certain cases.” Id. at 647 (Justice Boyle, joined by Justice Cavanagh), 658 (Justice Archer, joined by Justice Levin). While the Court did not precisely identify which cases would justify an inferred damage remedy, Justice Boyle offered some guidance: We would recognize the propriety of an inferred damage remedy arising directly from violations of the Michigan Constitution in certain cases. As the Bivens [v Six Unknown Federal Narcotics Agents, 403 US 388, 407; 91 S Ct 1999; 29 L Ed 2d 619 (1971)] Court recognized, there are circumstances in which a constitutional right can only be vindicated by a damage remedy and where the right itself calls out for such a remedy. On the other hand, there are circumstances in which a damage remedy would not be appropriate. The absence of any other remedy would, as in Bivens, heighten the urgency of the question. Justice Harlan, concurring in Bivens, states that “[t]he question then, is, as I see it, whether compensatory relief is ‘necessary’ or ‘appropriate’ to the vindication of the interest asserted.” 403 US 407. In answering this question in the positive, Justice Harlan commented, “[f]or people in Bivens’ shoes, it is damages or nothing.” Id., p 410. Where a statute provides a remedy, the stark picture of a constitutional provision violated without remedy is not presented. [Id. at 647.] Justice Boyle went on to look at other factors that might weigh for or against an inferred damage remedy. One of those factors calls for a court “to consider the text, history, and previous interpretations of the specific provision for guidance on the propriety of a judicially inferred damage remedy. The provision itself may commit creation of a remedy to the Legislature rather than the courts.” Id. at 650-651. Art 1, § 2 of the Michigan Constitution of 1963 states: The last line of the section certainly weighs against an inferred damage remedy. Indeed, that sentence alone could be viewed as dispositive of this issue. See Smith, supra at 632 (opinion of Brickley, J.). hi addition, the availability of a remedy under the Civil Rights Act obviates any need for an inferred damage remedy in age, race, or gender discrimination cases, or in retaliation cases. Here, plaintiff could, and did, file a Civil Rights Act action against defendant. Thus, we have no trouble concluding that this was not an appropriate case in which to infer a damage remedy. For this reason, we must reverse the trial court’s damage award in Docket No. 195670. No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation. Docket No. 195669: Reversed and remanded for a new trial. We do not retain jurisdiction. Docket No. 195670: The trial court’s damage award is reversed. Several of plaintiff’s writings were introduced at trial. These writings included statements regarding affirmative action. One statement came from plaintiff’s evaluation of a State Police instructor: Once again our department is using officers with far too little experience to teach programs which relate to patrols. I respect only those that I know in my own mind are qualified to teach those areas. Those promoted under the auspices of “affirmative action” are not worthy of respect, or my attention. Having been a 21 yr resident of Detroit I did not appreciate [the instructor] ridiculing the Detroit Police tactics of the 60’s. When I was a kid I could walk the streets of Detroit and was safe. S.T.R.E.S.S. and the “Big Four,” both of which [the instructor] attacked were responsible for the safe streets. Its [sic] very

BURCHETT v RX OPTICAL Docket No. 196681. Submitted January 13, 1998, at Grand Rapids. Decided October 9, 1998, at 9:15 AM. Leave to appeal denied 459 Mich_. Lisa and John Burchett and their minor son, Jacob Burchett, by his next friend, Lisa Burchett, brought an action in the Kalamazoo Circuit Court against Rx Optical, Lisa Burchett’s former employer. The plaintiffs alleged that the defendant terminated Lisa Burchett’s employment after she went on disability for a medical condition related to her pregnancy with Jacob Burchett and after she complained to the Michigan Department of Labor that the defendant was docking her pay for mistakes made on the job. The plaintiffs alleged that the termination violated the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seq.; MSA 17.428(1) et seq., the Civil Rights Act (cra), MCL 37.2101 et seq.; MSA 3.548(101) et seq., the Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq., and the Family and Medical Leave Act (fmla), 29 USC 2601 et seq. John Burchett claimed loss of consortium, and Jacob Burchett claimed that the defendant’s actions caused Lisa Burchett to suffer stress while pregnant, resulting in the premature birth and injury of Jacob Burchett. The defendant moved for summary disposition. The court, Philip D. Schaefer, J., denied the motion with respect to Lisa and John Burchett, but granted the motion with respect to Jacob Burchett. The parties settled the claims of Lisa and John Burchett. Jacob Burchett, by his next friend, appealed the order summarily dismissing his claims under the cra, the hcra, and the wpa. The Court of Appeals held: 1. Jacob Burchett cannot maintain a cause of action under the cra for damages for injuries allegedly sustained as a result of the alleged violation of Lisa Burchett’s civil rights. The language of subsection 801(1) and § 202 of the cra indicate legislative intent that only the person whose civil rights were violated in a given case may bring an action under the cra. 2. Jacob Burchett cannot maintain a cause of action under the hcra for damages for injuries allegedly sustained as a result of the alleged violation of Lisa Burchett’s rights under the hcra. The purposes and goals of the hcra are the same as those of the cra, and language in the hcra similarly indicate legislative intent that only the person whose rights under the hcra were violated in a given case may bring an action under the hcra. 3. Jacob Burchett cannot maintain a cause of action under the wpa for damages for injuries allegedly sustained as a result of alleged retaliatory actions taken against Lisa Burchett. Although the wpa has purposes and goals that are distinct from those of the cra and the hcra, all three acts are given like treatment. Jacob Burchett cannot maintain an action under the wpa for the same reasons that he cannot maintain an action under the cra and the hcra. Affirmed. Neff, P.J., concurring in part and dissenting in part, stated that Jacob Burchett cannot maintain an action under the wpa, but should be allowed to proceed under the cra and the hcra. Regardless of whether Jacob Burchett’s action under the cra and the hcra is derivative or independent of his mother’s action under the cra and the hcra, nothing in the cra and the hcra precludes Jacob Burchett’s claim. 1. Civil Rights — Civil Rights Act — Handicappers’ Civil Rights Act —• Infants. An action under the Civil Rights Act or the Handicappers’ Civil Rights Act may be brought and maintained only by those whose rights under either act are violated; an infant who claims injury only from discriminatory conduct directed at its mother while pregnant with the infant cannot maintain an action under either act (MCL 37.1101 et seq., 37.2101 et seq.; MSA 3.550[101] et seq., 3.548[101] et seq.). 2. Master and Servant — Whistleblowers’ Protection Act — Infants. An action under the Whistleblowers’ Protection Act may be brought and maintained only by those employees who report violations or suspected violations of law by their employers; an infant who claims injury only from retaliatory conduct directed at its mother while pregnant with the infant cannot maintain an action under the act (MCL 15.361 et seq.; MSA 17.428[1] et seq.). Durant, Piper & Sorei (by William F. Piper), for the plaintiff. Mary E. Delehanty, for the defendant. Before: Neff, P.J., and Sawyer and Murphy, JJ. Murphy, J. Plaintiff appeals as of right from the order granting in part and denying in part defendant’s motion for summary disposition. We affirm. This case arises out of Lisa Burchett’s termination of employment as an optician with defendant. However, this appeal only addresses the claims involving plaintiff’s son, Jacob. Lisa began working at Rx Optical in 1992. In December 1994, she became pregnant and informed her supervisor. On January 1, 1995, Lisa received a paycheck from which defendant had deducted money pursuant to its policy that its opticians would be responsible for mistakes made on accounts. On January 4, 1995, plaintiff contacted the Michigan Department of Labor to report defendant’s policy of requiring opticians to reimburse defendant for mistakes that they made on certain accounts. Upon discovering that defendant’s policy was illegal, Lisa informed both the owner and the president of Rx Optical. That same day, Lisa experienced vaginal bleeding and her doctor instructed her to go home. The next day, she was placed on a two-week disability leave; however, before the end of this two-week period she was terminated from her job for allegedly having a bad attitude. On March 16, 1995, Lisa and John Burchett, her husband, filed an action alleging that Lisa’s termination violated the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seq.; MSA 17.428(1) et seq., the Civil Rights Act (CRA), MCL 37.2101 et seq.; MSA 3.548(101) et seq., the Michigan Handicappers’ Civil Rights Act (hora), MCL 37.1101 et seq.; MSA 3.550(101) et seq., and the Family and Medical Leave Act (fmla), 29 USC 2601 et seq. John Burchett alleged that because of Lisa’s termination, he suffered loss of consortium. Following the premature birth of their son, Jacob, the Burchetts amended their complaint to add Jacob as a party, alleging that defendant’s actions caused Lisa to suffer stress, which resulted in Jacob’s premature birth and associated injuries. Defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and (10). Although plaintiff may very well have had considerable problems establishing that defendant’s alleged violations of the statutes proximately caused the alleged injuries to Jacob, the trial court did not reach the issue of proof. Rather, the trial court granted the motion with respect to the claims involving Jacob under MCR 2.116(C)(8) (failure to state a claim on which relief can be granted). The trial court denied defendant’s motion for summaiy disposition with respect to John and Lisa Burchett’s claims; however, the parties settled those claims after the trial court’s order. Plaintiff appeals from the trial court’s dismissal of Jacob’s claims. We review de novo a trial court’s decision to grant a motion for summary disposition. Citizens Ins Co v Bloomfield Twp, 209 Mich App 484, 486; 532 NW2d 183 (1995). A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of a claim and only permits consideration of the pleadings. Wade v Dep’t of Corrections, 439 Mich 158, 162; 483 NW2d 26 (1992). A trial court should grant a motion for summary disposition under MCR 2.116(C)(8) only where a claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Id. Plaintiff argues that Jacob should be allowed to maintain a cause of action under the cra, the hcra, and the wpa. Plaintiff does not challenge the trial court’s decision with respect to the fmla. The fundamental purpose of statutory construction is to discover and give effect to the intent of the Legislature. Ansell v Dep’t of Commerce (On Remand), 222 Mich App 347, 355; 564 NW2d 519 (1997). Once discovered, the Legislature’s intent must prevail, any existing rule of construction to the contrary notwithstanding. Id. Where reasonable minds may differ about the meaning of the statute, we look to the objective of the statute and the harm it is designed to remedy and apply a reasonable construction that best accomplishes the Legislature’s purpose. Id. Although we appreciate the remedial nature of these acts and recognize that appellate courts have consistently construed these acts liberally, see Chmielewski v Xermac, Inc, 457 Mich 593; 580 NW2d 817 (1998) (the HCRA); Chandler v Dowell Schlumberger Inc, 456 Mich 395, 398; 572 NW2d 210 (1998) (the wpa); Reed v Michigan Metro Girl Scout Council, 201 Mich App 10, 15; 506 NW2d 231 (1993) (the CRA), we are not prepared to say that the Legislature, by its adoption of these acts, intended to create a cause of action for physical injuries to an infant, allegedly resulting from a stress-induced premature birth caused by unlawful employment discrimination directed at the infant’s mother. We first address whether Jacob can maintain a cause of action under the CRA. In Eide v Kelsey-Hayes Co, 431 Mich 26; 427 NW2d 488 (1988), our Supreme Court addressed a distinctly different question. In that case, the Court addressed whether a derivative cause of action for loss of consortium is precluded by the CRA. Id., 28. According to the majority in Eide, “a claim for loss of consortium is simply one for loss of society and companionship,” which needs no independent statutory authority for it to be brought. Id., 29-30. What is necessary is that the impaired spouse has sustained some legally cognizable harm or injury — in Eide, injuries from sexual harassment in violation of the CRA — resulting in a loss of society and companionship to the unimpaired spouse. Id., 29. Because “courts have consistently treated loss of consortium not as an item of damages, but as an independent cause of action,” Justice Boyle, writing for the majority, framed the issue before the Court as “not whether a cause of action [for loss of consortium] is available under the Civil Rights Act, but whether there is anything in the act which would preclude this independent cause of action.” Id., 29-30 (emphasis added). Stated differently, a loss of consortium claim is not a claim under the CRA at all, but a claim at common law. Id., 33-34, citing Prosser & Keeton, Torts (5th ed), § 125, pp 931-934. Our Supreme Court concluded that neither the plain language of the CRA nor conventional rules of statutory construction support the argument that the Legislature intended to preclude a cause of action for loss of consortium. Id., 31, 34. In our view, the question before this Court is entirely different. Unlike the loss of consortium claim, the claim presented here is not an independent cause of action rooted in the common law. While it is true that Michigan common law recognizes a claim of negligence on behalf of a fetus for prenatal injury if (1) the fetus is later bom alive, or (2) the fetus was viable at the time of injury, Jarvis v Providence Hosp, 178 Mich App 586, 591; 444 NW2d 236 (1989), the cause of action presented in this case is not a negligence claim. Rather, the claim made by lisa Burchett, as next friend of her son Jacob, can only be perceived as a civil rights claim brought directly under the CRA. In other words, we are asked to decide not whether there is anything in the CRA that would preclude an infant’s independent cause of action for physical injuries, resulting from a premature birth that was allegedly caused by employment discrimination against the infant’s pregnant mother, but whether the infant can maintain such a cause of action directly under the CRA. We believe that the CRA cannot be so broadly construed as to authorize such a claim. Statutory analysis necessarily begins with the language of the statute in question. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993). The civil enforcement provision of the CRA provides: A person alleging a violation of this act may bring a civil action for appropriate injunctive relief or damages, or both. [MCL 37.2801(1); MSA 3.548(801)(1).] Although remedial statutes are to be liberally construed to suppress the evil and advance the remedy, Eide, supra, 34, we are not convinced that the Legislature intended to allow an infant to pursue a cause of action for injuries that the infant has incurred as a result of a civil rights violation inflicted upon the infant’s mother, irrespective of whether the infant has alleged that prenatal or postnatal injuries were incurred as a result of the civil rights violation. Enacted by the Michigan Legislature in 1976 to supplant the Fair Employment Practices Act, the CRA prohibits discrimination based on sex, race, national origin, religion, height, weight, or marital status in employment, housing, use of public accommodations, public service, and educational facilities. With respect to discrimination in employment, the CRA provides: (1) An employer shall not do any of the following: (a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status. (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. (c) Segregate, classify, or otherwise discriminate against a person on the basis of sex with respect to a term, condition, or privilege of employment, including, but not limited to, a benefit plan or system. [MCL 37.2202; MSA 3.548(202).] In our view, when this portion of the CRA is read with the civil enforcement provision of the act, we are compelled to conclude that the Legislature intended to authorize only the person whose civil rights were violated to bring a cause of action under the CRA. Because plaintiff does not claim that defendant violated Jacob’s civil rights but, rather, alleges that Jacob suffered damages as a result of the violation of the civil rights of Jacob’s mother, we conclude that Jacob cannot maintain a cause of action directly under the CRA. Plaintiff next argues that Jacob should be allowed to maintain a cause of action under the HCRA. However, the HCRA has the same purposes and goals as the CRA, and this Court has held that claims under the hcra should be treated similarly to those under the cra. Milnikel v Mercy-Memorial Medical Center, Inc, 183 Mich App 221, 223-224; 454 NW2d 132 (1989). Further, the civil enforcement provision of the hcra is identical to that of the CRA. See MCL 37.1606(1); MSA 3.550(606)(1). Therefore, for the reasons set forth above, we likewise decline to interpret the hcra as authorizing Jacob’s claim. Plaintiff also argues that Jacob should be allowed to maintain a cause of action under the wpa. Although the wpa and the civil rights acts do not share identical purposes and goals — the wpa is designed to protect the public by protecting employees who report violations or suspected violations of the law to a public body, Dolan v Continental Airlines, 454 Mich 373, 378; 563 NW2d 23 (1997) — case law nonetheless supports the conclusion that the wpa, the cra, and the HCRA deserve like treatment. See Stewart v Fairlane Community Mental Health Centre (On Remand), 225 Mich App 410, 421; 571 NW2d 542 (1997); Anzaldua v Band, 216 Mich App 561, 580-581; 550 NW2d 544 (1996). Further, the civil enforcement provision of the wpa is substantively the same as those of both the CRA and the HCRA. See MCL 15.362; MSA 17.428(2). Accordingly, for the reasons discussed above, we are also satisfied that the Legislature, by its adoption of the wpa, did not intend to establish a cause of action for a person other than the person against whom a violation of the WPA was directed. Because the alleged violation of the wpa in this case was directed at Jacob’s mother and not Jacob, we conclude that Jacob cannot maintain a cause of action against defendant under the statutory scheme established in the WPA. In sum, a court’s decision regarding whether a statute creates a private right of action must be consistent with legislative intent while furthering the Legislature’s purpose in enacting the statute. See Gardner v Wood, 429 Mich 290, 301; 414 NW2d 706 (1987). We conclude that the Legislature, by its adoption of the cra, the hcra, and the wpa did not intend to create the private right of action brought in this case by lisa Burchett, as next friend of her son Jacob. Further, because these areas of law have been so extensively addressed by the Legislature, we are not prepared to recognize a new derivative cause of action in the area of civil rights or the wpa for prenatal injuries allegedly inflicted on the child of the person whose rights were violated. Such recognition is best left to the Legislature, if it is so inclined. Accordingly, the trial court did not err in granting defendant’s motion for summary disposition with respect to Jacob’s claims. Affirmed. Sawyer, J., concurred. Neff, P.J., ([concurring in part and dissenting in part). I concur with the majority that the trial court properly granted defendant’s motion for summary disposition with respect to plaintiff’s attempt to seek redress on Jacob’s behalf under the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq. However, I would hold that plaintiff is entitled to proceed under the Civil Rights Act (CRA), MCL 37.2101 et seq.; MSA 3.548(101) et seq., and the Michigan Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq., and write separately to address the issue of derivative liability, which, because of the unique relationship between an unborn child and its mother, and the particular allegations set forth in plaintiffs complaint, is critical to the resolution of this case. Although the concept of derivative liability is not always clearly articulated, it generally refers to a claim in which the plaintiff seeks damages for a wrong done to the plaintiff that is proximately caused by a wrong done to another. Generally, the inquiry whether a claim is “derivative” focuses not on how the injury occurred but on whether the claimed damages are based on the plaintiffs own injury, or that of another. A common example of derivative liability is that of loss of consortium, which cannot exist without a prior injury to a spouse. See Berryman v Kmart Corp, 193 Mich App 88, 94; 483 NW2d 642 (1992). The alleged damages are separate and distinct from any damages to the physically injured spouse, yet they are dependent both legally and causally on the latter. Our Supreme Court has recognized that a claim for loss of consortium is derivative “but only in the sense that it does not arise at all unless the other, impaired spouse has sustained some legally cognizable harm or injury,” and treats such a claim not as an item of damages, but as a separate cause of action. Eide v Kelsey-Hayes Co, 431 Mich 26, 29; 427 NW2d 488 (1988). The facts alleged in the present case do not fit neatly into a recognized category. Unlike a loss of consortium claim, plaintiffs complaint on Jacob’s behalf does not seek compensation for damages suffered by or on account of an injury to plaintiff. Neither is Jacob a mere assignee of plaintiff’s cause of action. Rather, plaintiff in her representative capacity seeks to recover for various injuries allegedly sustained by Jacob as a result of statutory violations involved in the termination of plaintiff’s employment. Plaintiff alleges that de

JOHNNY E. BREWER, Plaintiff v. CABARRUS PLASTICS, INC., Defendant No. COA97-200 (Filed 15 September 1998) 1. Employer and Employee— racial discrimination — prima facie case — directed verdict — improper The trial court’s grant of defendant’s directed verdict motion in an employment discrimination action was improper where plaintiff had alleged racial discrimination under 42 U.S.C. § 1981 and established a prima facie case of discrimination. Bearing in mind that plaintiff’s burden in establishing a prima facie case is not an onerous one and that the trial court must examine the evidence in the light most favorable to the nonmoving party on a motion for directed verdict, plaintiff’s evidence on qualifications was sufficient. Directed verdict for defendant would have been appropriate only if defendant conclusively satisfied as a matter of law its burden of producing evidence of legitimate nondiscriminatory reasons for plaintiff’s discipline and termination; viewing the evidence in the light most favorable to plaintiff, a genuine issue of fact existed as to whether plaintiff actually accumulated three “written” warnings as defendant claimed. 2. Employer and Employee— retaliatory discharge — racial discrimination complaint — directed verdict Directed verdict was improperly granted for defendant on a retaliatory discharge claim arising from a racial discrimination complaint where defendant challenged only the third element of retaliatory discharge, causal connection, but plaintiff presented more than a scintilla of evidence. Although defendant contended that the lapse of time between the filing of the first EEOC charge and plaintiff’s termination obviated any causal connection, plaintiff’s proper reliance on evidence of the sequence of events raises a factual issue sufficient to preclude grant of a directed verdict. Appeal by plaintiff from judgment entered 28 May 1996 by Judge James C. Davis in Cabarrus County Superior Court. Heard in the Court of Appeals 8 October 1997. Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A., by John Gresham, and Sharpe & Fosbinder, P.A., by Julie H. Fosbinder, for plaintiff-appellant. Robinson, Bradshaw & Hinson, PA., by Richard A. Vinroot and Frank H. Lancaster, for defendant-appellee. JOHN, Judge. Plaintiff appeals the trial court’s grant of defendant’s directed verdict motion on plaintiff’s claims of racial discrimination and retaliatory discharge. Plaintiff also contends the trial court erred by (1) excluding certain portions of his testimony and that of other witnesses, (2) admitting irrelevant and highly prejudicial evidence, and (3) precluding during jury voir dire “questions reasonably designed to explore jurors’ potential racial bias and bias toward racial discrimination claims.” For the reasons set forth below, we award plaintiff a new trial. Evidence presented at trial included the following: Plaintiff, an African-American male, began work for defendant Cabarrus Plastics, Inc. (CPI) in April 1989 as a machine operator. CPI manufactures molded plastic parts. In October 1989, plaintiff transferred to the position of material handler and received an increase in pay. His duties included filling machines with plastic pellets, collecting materials from machines that had completed a particular job, cleaning machines, assembling boxes for finished parts, and substituting for other machine operators during their breaks. During plaintiff’s first one and one-half years of employment, it appeared to him that white employees were receiving overtime opportunities denied to him and that his wage increases lagged behind those of white employees. In addition, a junior white employee was promoted over plaintiff to the position of set-up technician. Plaintiff recalled that plant manager Russell Hayes said to him during this period, “Johnny Brewer, what are you doing — what the hell you think you’re doing, boy?” Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in November 1990, alleging wrongful denial of promotion, wage increases and overtime based on his race. The first two allegations were resolved against plaintiff. The EEOC determined plaintiff “was not as qualified as the selectee” for promotion and that CPI “properly followed” its promotion and wages practice. However, the EEOC found plaintiff had been denied overtime because of his race and pursued a lawsuit on his behalf. CPI paid plaintiff $200.00 to settle the suit. According to plaintiff, a few weeks after filing his complaint with EEOC, David Brewer (Brewer), a white supervisor, called plaintiff into Brewer’s office on more than one occasion. During those discussions, Brewer attempted to dissuade plaintiff from pursuing the racial discrimination allegation. William Cook (Cook), also a supervisor at CPI, testified Brewer remarked that the plaintiff “[d]idn’t get what he wanted so he’s trying to make a little trouble.” Cook also testified Brewer used the pejorative term “n — ” in his presence, including the protestation, “I ain’t kin to no damn n — ,” when another employee jokingly suggested Brewer and plaintiff were related. Former CPI employee Trina Emrich Wright (Wright) stated that Brewer asserted on more than one occasion “it was a shame that a ‘N’ had to have the same last name as him.” Plaintiff testified a number of changes occurred in his work environment following his EEOC complaint and that his “job got harder” after he made the claim. For example, prior to the charge, plaintiff had been working five or six machines. After the charge, plaintiffs supervisor regularly scheduled him to work eight or nine machines, more than the similarly placed employee on either the preceding or succeeding shifts. Further, plaintiff’s obligation to substitute for machine operators during, their break times also increased, consuming up to three hours of his work day. Wright, plaintiff’s co-worker who was employed by CPI from 1989 through 1992, indicated that after plaintiff filed his charge of discrimination, “he had an extra workload” which “doubled the load in all aspects.” CPI, on the other hand, maintained that plaintiff’s work performance deteriorated during his final year of employment. Plaintiff received three warnings that year and as a result, was terminated pursuant to CPI’s “three strikes” procedure. CPI maintained a two-tier disciplinary policy under which certain offenses might result in immediate termination, while accumulation of three written warnings for certain other offenses also mandated termination. As CPI’s employee handbook stated: Receipt of three written warnings from either section [describing offenses], in any categories, within the same twelve month period will result in discharge. On 17 July 1991, plaintiff was warned for “not doing his job properly” after letting a press run out of material. In documenting the incident, Brewer wrote, under the heading “Action Taken,” “[a]ny other negligence in this matter will result in disciplinary action.” After plaintiff allowed another press to run out of material, a second warning was issued 4 February 1992 for “willful failure to perform work assigned.” Brewer memorialized the action taken on this occasion as a “written warning.” Finally, plaintiff received a “written warning” on 17 March 1992 for “not wearing safety glasses in designated area.” Plaintiff disputed the legitimacy of the three warnings that led to his termination. With respect to the first occurrence, plaintiff explained that the automatic feeder was broken and he was unable to ascertain that material was not being drawn up into the machine. More significantly, however, while acknowledging the warning had been placed into his record in written form, plaintiff testified it was company practice to write down verbal warnings to place in the reprimanded employee’s file. Plaintiff emphasized that the first incident was not classified as being a “written warning,” which designation had been recited in reports of the second and third occurrences. In addition, he offered into evidence other employee records containing written “verbal warnings.” Regarding the second and third warnings, plaintiff asserted they likewise were unwarranted and that he was treated differently from white employees with respect to the issuance of warnings. In any event, plaintiff was terminated the day following receipt of the third warning, and he was replaced by a white employee. Plaintiff thereafter filed a second EEOC complaint, alleging the termination was in retaliation for his first EEOC charge. The EEOC determined that: Examination of the evidence indicates [plaintiff] was discharged because he received three written disciplinary actions within a twelve month period. There was no evidence to show that [CPI] discharged [plaintiff] in retaliation for filing a previous charge of discrimination against [CPI]. Plaintiff filed the instant complaint 31 March 1995, alleging violation of 42 U.S.C. § 1981 (1994 & Supp. 1998) (§ 1981) and wrongful discharge based on the public policy expressed in the Equal Employment Practices Act, N.C.G.S. § 143-422.1 (1996). CPI’s motion for summary judgment was denied 6 November 1995. At the close of plaintiffs evidence during trial before a jury, CPI moved for directed verdict pursuant to N.C.G.S. § 1A-1, Rule 50 (Supp. 1997) (Rule 50). The motion was granted in an “Order and Judgment” entered 28 May 1996, both as to plaintiffs claim of violation of § 1981 and his wrongful discharge and discipline claim. Plaintiff filed timely notice of appeal. Our Supreme Court has written that [a] motion for directed verdict tests the sufficiency of the evidence to take the case to the jury. In making its determination of whether to grant the motion, the trial court must examine all of the evidence in a light most favorable to the nonmoving party, and the nonmoving party must be given the benefit of all reasonable inferences that may be drawn from that evidence. If, after undertaking such an analysis of the evidence, the trial judge finds that there is evidence to support each element of the nonmoving party’s cause of action, then the motion for directed verdict . . . should be denied. Abels v. Renfro Corp., 335 N.C. 209, 214-15, 436 S.E.2d 822, 825 (1993), disc. review denied, 347 N.C. 263, 493 S.E.2d 450 (1997) (citations omitted). If more than a scintilla of evidence supports each element of the non-movant’s claim, the directed verdict motion should be denied. Ace Chemical Corporation v. DSI Transports, Inc., 115 N.C. App. 237, 242, 446 S.E.2d 100, 103 (1994). Finally, a directed verdict should not be granted when conflicting evidence has been presented on contested issues of fact. Id. Plaintiff alleged CPI violated § 1981 because it “discriminated against [him] on the basis of race and retaliation for filing a complaint of discrimination.” In pertinent part, § 1981 provides all persons .... [shall have the] same right in every State and Territory to make or enforce contracts . . . and to the full and equal benefits of all laws and proceedings for the security of persons and property as is enjoyed by white citizens .... The Civil Rights Act of 1991, 42 U.S.C. § 1981 (1994 & Supp. 1998) broadened the scope of § 1981 “to include essentially all forms of racial discrimination in employment.” Percell v. International Business Machines, Inc., 785 F. Supp. 1229, 1231 (E.D.N.C. 1992), aff’d, 23 F.3d 402 (4th Cir. 1994). Therefore, § 1981 encompasses plaintiff’s claims for wrongful termination and wrongful discipline. See Williams v. Carrier Corp., 889 F. Supp. 1528, 1530-31 (M.D. Ga. 1995), aff’d, 130 F.3d 444 (11th Cir. 1997) (plaintiff may establish prima facie case of racially biased discipline under § 1981 by showing he or she did not violate work rule or that he or she engaged in conduct similar to individual outside protected group who was disciplined less severely). Plaintiffs retaliation claim is likewise actionable under § 1981. See Skeeter v. City of Norfolk, 681 F. Supp. 1149, 1154 (E.D. Va. 1987), aff’d 898 F.2d 147 (4th. Cir. 1990), cert. denied, 498 U.S. 838, 112 L. Ed. 2d 81 (1990) (retaliatory discharge actionable under § 1981). The models and standards developed in jurisprudence under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1994 & Supp. 1997) (Title VII) also apply to claims under § 1981. Patterson v. McLean Credit Union, 491 U.S. 164, 181-82, 105 L. Ed. 2d 132, 153 (1989), aff’d 39 F.3d 515 (4th Cir. 1994). The ultimate purpose of both Title VII and G.S. § 143-422.2 is to eliminate “discriminatory practices in employment.” North Carolina Department of Correction v. Gibson, 308 N.C. 131, 141, 301 S.E.2d 78, 85 (1983). In analyzing state claims, our Supreme Court has adopted the evidentiary standards and principles developed under Title VII. Id. Two primary models have developed: (1) the circumstantial evidence model, see McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 677-78 (1973), aff’d 528 F.2d 1102 (8th Cir. 1976) (under circumstantial evidence model as applied to discriminatory discharge claim, plaintiff must establish prima facie case by showing a) he was member of protected class, b) was terminated, c) was qualified to perform assigned job duties, and d) was replaced by a member of non-protected class or treated more harshly than similarly situated non-protected employees), and (2) the direct evidence model, see McCarthy v. Kemper Life Insurance Company, 924 F.2d 683, 686 (7th Cir. 1991) (direct evidence, such as racially derogatory comments, is proof of discriminatory motive on part of employer). In a racial discrimination case, our Supreme Court has set forth the standards as follows: (1) The claimant carries the initial burden of establishing a prima facie case of discrimination. (2) The burden shifts to the employer to articulate some legitimate nondiscriminatory reason for the applicant’s rejection. (3) If a legitimate nondiscriminatory reason for rejection has been articulated, the claimant has the opportunity to show that the stated reason for rejection was, in fact, a pretext for discrimination. Gibson, 308 N.C. at 137, 301 S.E.2d at 82. “The burden of establishing & prima facie case of discrimination is not onerous,” and may be accomplished by a variety of means, id. at 137, 301 S.E.2d at 83, including showing (1) a claimant is a member of a minority group, (2) he was qualified for the position, (3) he was discharged, and (4) the employer replaced him with a person who was not a member of a minority group. Id. Alternatively, a claimant may show discharge of a black employee and retention of a white employee under apparently similar circumstances. Id. Establishment of a prima facie case gives rise to a presumption that “the employer unlawfully discriminated against the employee.” Id. at 138, 301 S.E.2d at 83. The employer then has the “burden of producing evidence to rebut the presumption of discrimination.” Id. The employer’s burden of production is satisfied “if he simply explains what he has done or produces evidence of legitimate nondiscriminatory reasons.” Id. Upon production by the employer of an “explanation . . . legally sufficient to support a judgment” in its favor, “the [employee] is then given the opportunity to show that the employer’s stated reasons are in fact a pretext for intentional discrimination.” Id. at 139, 301 S.E.2d at 83-84. In doing so, the employee may rely on evidence offered to establish a prima facie case “to carry his burden of proving pretext.” Id. In the case sub judice, we believe plaintiff met his burden of establishing aprima facie case of discrimination, thereby precluding the grant of defendant’s directed verdict motion on grounds he failed to do so. See Ace Chemical Corporation, 115 N.C. App. at 242, 446 S.E.2d at 103 (if more than scintilla of evidence supports each element of non-movant’s claim, motion should be denied). Defendant does not dispute that plaintiff presented evidence satisfying three of the four elements recited in Gibson: plaintiff was an African-American discharged from his position at CPI and replaced by a white worker. See Gibson, 308 N.C. at 137, 301 S.E.2d at 82-83. CPI contends, however, that plaintiff failed to present prima facie evidence of his qualification for the position. See Hughes v. Bedsole, 48 F.3d 1376, 1383 (4th Cir. 1995), cert. denied, 516 U.S. 870, 133 L. Ed. 2d 126 (1995) (“[plaintiff] must. . . eliminate concerns that she was fired because of her performance or qualifications, two of the most common nondiscriminatory reasons for any adverse employment decision”). Bearing in mind that plaintiffs burden in establishing a prima facie case was “not an onerous one,” see Gibson, 308 N.C. at 137, 301 S.E.2d at 82, and that on a motion for directed verdict the trial court must examine the evidence in the light most favorable to the nonmoving party, Abels, 335 N.C. at 214-15, 436 S.E.2d at 825, we conclude plaintiffs evidence on the qualifications prong of Gibson was sufficient to withstand defendant’s motion. Plaintiff presented evidence he was hired 3 April 1989 at a pay rate of $6.50 per hour and terminated 17 March 1992 when he was receiving $8 per hour. He received merit pay increases while employed at CPI. See Gomez v. Trustees of Harvard University, 677 F. Supp. 23, 25 (D.D.C. 1988) (plaintiff’s burden in making out prima facie case is “de minimis,” and salary increases are indicative of qualification). Plaintiffs evidence also included positive performance evaluations and a relative lack of disciplinary actions prior to filing the EEOC complaint. Finally, plaintiff performed additional duties following his initial EEOC complaint. We believe this evidence, viewed in the light most favorable to plaintiff, is sufficient to indicate plaintiff’s qualifications for the job. At a minimum, plaintiff presented the necessary “scintilla of evidence” supporting the element of qualification for his position. See Ace Chemical Corporation, 115 N.C. App. at 242, 446 S.E.2d at 103. In response, CPI points to the three warnings received by plaintiff, insisting they reveal inadequate work performance and consequent lack of qualification for promotion. We cannot say this evidence overcame plaintiff’s prima facie case as a matter of law so as to justify verdict being directed in favor of CPI. See Abels, 335 N.C. at 214-15, 436 S.E.2d at 825 (nonmoving party must be given benefit of all reasonable inferences that may be drawn). CPI cites Karpel v. Inova Health System Services, 134 F.3d 1222 (4th Cir. 1998) as supporting its contention plaintiff failed to present sufficient evidence of satisfactory job performance. We disagree. In affirming summary judgment for the defendant-employer, the Fourth Circuit in Karpel noted the record therein “clearly demonstrate^] that [plaintiff’s] job performance was unsatisfactory.” Karpel, 134 F.3d at 1128. The plaintiff-employee had been repeatedly tardy, accumulated multiple inadequate performance reviews, and failed to complete required monthly summaries. Id. By contrast, the record in the case sub judice does not “clearly” demonstrate plaintiffs lack of qualifications for the job. For example, we note plaintiff disputed the warnings, testified they resulted in part from his increased workload, and asserted the first warning was “verbal” as opposed to “written.” Wright corroborated the testimony regarding plaintiffs increased workload. A directed verdict is not proper when there is conflicting evidence on contested issues of fact. Ace Chemical Corporation, 115 N.C. App. at 244, 446 S.E.2d at 104. CPI also relies on McCarthy, 924 F.2d 683. CPI accurately relates that plaintiff in McCarthy, like plaintiff herein, filed suit against his employer alleging racial discrimination and retaliation in violation of Title VII and § 1981. Id. at 685. McCarthy had filed an EEOC charge and was subsequently discharge

BUCHANAN v CITY COUNCIL OF FLINT Docket No. 193153. Submitted May 5, 1998, at Grand Rapids. Decided September 11, 1998, at 9:10 A.M. Leave to appeal sought. Darryl Buchanan brought an action in the Genesee Circuit Court against the City Council of Flint. When two female employees filed complaints alleging sexual harassment by the plaintiff, Flint’s ombudsman, the city attorney’s office undertook an investigation. A panel reviewed the investigation undertaken by an assistant city attorney and forwarded to the city council for its independent review and action a recommendation for remedial and disciplinary action. The city council placed the plaintiff on administrative leave with pay pending the outcome of an investigation of a special counsel that it had appointed. The plaintiff then filed his complaint, alleging disparate treatment, false light defamation, and intentional infliction of emotional distress and seeking judicial review, injunctive relief, and damages. The court, Donald R. Freeman, J., revoked the administrative leave and ordered that the plaintiff be reinstated as ombudsman, finding that the city charter made no provision for a suspension of or imposing administrative leave on the ombudsman, but held that the city’s policy regarding harassment and discrimination applied to the ombudsman and that the city council could conduct an investigation of those charges levied against the plaintiff. The city council conducted an impeachment hearing, hearing the testimony of numerous witnesses, and, thereafter, determined that the plaintiff should be removed as ombudsman, holding specifically that the plaintiff had wilfully caused citizens’ complaints not to be worked on, had permitted a conflict of interest in a specified case, had created a difficult work environment through erratic personnel policies, had delegated personnel matters to an advisory board and to consultants, and had failed to train and supervise staff appropriately. The plaintiff amended his complaint in the circuit court, challenging the city council’s removal of him from office. The parties agreed that the proper standard of review by the court was review de novo, but agreed that the court did not have to review all the testimony presented before the city council and rather could render its decision on the basis of an extract of the testimony that would be supplied by the parties. Following its review, the court set aside the city council’s decision and ordered the plaintiff reinstated. The city council moved for reconsideration, asking the court to review the entire record of the hearing before the city council. The court agreed to review the entire record and, following its review of that record, denied the motion for reconsideration. The city council appealed by leave granted. The Court of Appeals held: 1. The city council argues that the standard of review that the court should have used is the substantial evidence standard found in Const 1963, art 6, § 28, rather than the review de novo standard contained in Flint Charter, § 1-603(C), because the standard set forth in the constitution takes precedence over the standard set forth in the city charter. The court properly used the review de novo standard of review required by the city charter, because the substantial evidence standard of art 6, § 28 sets forth the minimum standard that must be observed for judicial review of an administrative determination, but does not preclude the setting of a stricter standard of review. Here the city charter sets a stricter standard of review for judicial review of the city council’s decisions, review de novo, and the court properly used that stricter standard in reviewing the decision of the city council. 2. The court erred in finding that there was insufficient evidence to support the decision of the city council to remove the plaintiff. The city charter provides for-removal of an appointee “for good cause.” Under either the substantial evidence standard or the review de novo standard, there was clearly sufficient evidence to support the city council’s finding that the plaintiff purposefully delayed the investigation of citizens’ complaints to apply pressure on the city council to secure more funding for the ombudsman’s office, and the court’s finding that there was not sufficient evidence to support that finding of the city council was clearly erroneous. Because the plaintiff’s actions in this regard controverted the essential mission of the ombudsman’s office, sufficient cause for the plaintiff’s removal from office was shown, and the court erred in setting aside the city council's decision to remove the plaintiff from office. 3. Because the only matter at issue in these proceedings was the review of the propriety of the city council’s decision to remove the plaintiff torn office, the court did not err as a matter of law in its determination not to make findings of fact concerning the questions whether the plaintiff discriminated or retaliated against employees or whether the plaintiff had a claim for wrongful discharge. 4. The court did not err in denying the city council’s motion to disqualify the plaintiff’s attorney because of alleged conflicts of interests. The court’s finding that there was no continuing attorney-client relationship between the city council and the plaintiff’s attorney or between the ombudsman’s office and that attorney was not clearly erroneous. Reversed in part and affirmed in part. Administrative Law — Findings op Fact — Judicial Review — Standard op Review. The substantial evidence standard set forth in the state constitution for judicial review of the findings of fact of an administrative agency sets a minimum standard of judicial review but does not preclude the adoption of a stricter standard of review, such as review de novo (Const 1963, art 6, § 28). George R. Hamo, for the plaintiff. Patrick L. Rose, for the defendant. Amicus Curiae: Vamum, Riddering, Schmidt & Howlett (by Peter Armstrong and George B. Davis'), for the Michigan Municipal League. Before: Sawyer, P.J., and Kelly and Smolensk, JJ. Kelly, J. Defendant, the City Council of Flint appeals by leave granted from the February 20, 1996, order of the Genesee Circuit Court that set aside the city council’s decision to remove plaintiff, Darryl Buchanan, from the office of ombudsman and reinstated him to the position. The city council also appeals from the June 10, 1996, order that reiterated plaintiff’s reinstatement as ombudsman and denied the city council’s motion to disqualify his attorney. By order of this Court, plaintiff was not permitted to return to his position as ombudsman during the pendency of this appeal. We reverse in part and affirm in part. Plaintiff, who had been with the ombudsman’s office for approximately fourteen years, starting as an investigative trainee and working his way up to assistant ombudsman and director of investigations, was appointed ombudsman by the city council on August 17, 1994. Almost immediately, problems began. In January of 1995, Deborah Milling, plaintiff’s former girlfriend and an employee of the ombudsman’s office, filed a sexual harassment and gender discrimination complaint with the Michigan Department of Civil Rights. In April of 1995, she filed a complaint against plaintiff with the Flint city attorney’s office, alleging sexual harassment. In May of 1995, Rose Fizer, another employee of the ombudsman’s office, also filed a sexual harassment complaint against plaintiff with the city attorney’s office. The city’s policy statement relative to harassment and discrimination requires an independent investigation of complaints. Therefore, the complaints were investigated by an assistant city attorney who took statements from all the employees of the ombudsman’s office regarding the allegations against plaintiff. Thereafter a panel was formed to conduct a review of the investigation. On June 26, 1995, the panel issued its decision finding that plaintiff had violated the city’s policy on harassment and discrimination. Because the city charter provides that only the city council has authority over the office of the ombudsman, the panel forwarded its recommendation for remedial and disciplinary action to the city council for independent review and action. The city council appointed Charles Forrest, a former city attorney, as special counsel to investigate whether there was evidence of official misconduct that would justify removal of plaintiff from office. The city council placed plaintiff on administrative leave with pay pending the outcome of the investigation. Thereafter, plaintiff retained attorney George Hamo and filed a complaint in the Genesee Circuit Court against the city council, alleging disparate treatment, false light defamation, and intentional infliction of emotional distress and requesting judicial review, injunctive relief, and damages. Following a hearing on July 11, 1995, the trial court, after interpreting the city charter to contain no provision for the suspension of or the imposition of administrative leave on the ombudsman, revoked the administrative leave imposed by the city council and ordered plaintiff reinstated as ombudsman. However, the trial court found that the city’s policy regarding harassment and discrimination applied to the ombudsman, and, therefore, the city council could conduct an investigation of those charges levied against plaintiff. An impeachment hearing commenced before the city council on August 23, 1995. After five days of hearings and numerous witnesses, the city council determined that plaintiff should be removed as ombudsman, finding five different specific acts by plaintiff that were cause for his removal. The specific cause for removal was set forth in the August 28, 1995, city council resolution as follows: Be it further resolved, that the specific cause for removal is that the testimony indicates that the Ombudsman did wilfully cause complaints not be worked on or to be backed up for budgetary purposes; permitted a conflict of interest in the Steverson Davis case; created a difficult work environment through erratic personnel policies; delegated personnel matters to the Ombudsman’s Advisory Board and to consultants; and failed to train and supervise staff appropriately. On August 30, 1995, plaintiff filed an amended complaint in the circuit court, challenging the city council’s vote to remove him from office. Subsequently, a hearing was held concerning the matter. At the hearing, the parties agreed that, on the basis of the requirements of the city charter, review de novo was the appropriate standard of review to be used to evaluate the city council’s removal of plaintiff. The parties also agreed that the trial court need not review all the testimony presented before the city council and that the parties would provide the court with the testimony necessary to render its opinion. At the conclusion of the hearing, the trial court determined that the city council was without cause to remove plaintiff from his position as ombudsman. By order entered on February 20, 1996, the trial court set aside the city council’s decision to remove plaintiff from the office of ombudsman and reinstated him to that position. A motion for reconsideration followed. At the March 21, 1996, hearing regarding city council’s motion for reconsideration, the city attorney requested that the trial court review the entire record of the hearing before the city council. The circuit court agreed to do so and spent the next few days listening to the testimony presented before the city council. After reviewing the entire record, the trial court denied the city council’s motion for reconsideration, and this appeal followed. Subsequently, this Court ordered that plaintiff could not return to office during the pendency of this appeal or until further order of this Court. i On appeal, the city council first argues that the circuit court erred in applying a review de novo standard of review with regard to the city council’s decision to remove plaintiff from the office of the ombudsman. The city council claims that the circuit court should have applied the “substantial evidence” standard of review. The city council also argues that the circuit court erred in finding that “cause” for plaintiff’s removal was lacking. We hold that under either a review de novo standard or a substantial evidence standard, there was sufficient evidence to support the city council's action. Const 1963, art 6, § 28 provides that a judicial review should determine whether an administrative ruling was supported by competent, material, and substantial evidence on the whole record. Birmingham School Dist v Buck (On Remand), 211 Mich App 523, 525; 536 NW2d 297 (1995). In In re Payne, 444 Mich 679, 692-693; 514 NW2d 121 (1994), our Supreme Court stated, in pertinent part: When reviewing the decision of an administrative agency for substantial evidence, a court should accept the agency’s findings of fact if they are supported by that quantum of evidence. A court will not set aside findings merely because alternative findings also could have been supported by substantial evidence on the record. “Substantial evidence” has a classic definition: the amount of evidence that a reasonable mind would accept as sufficient to support a conclusion. While it consists of more than a scintilla of evidence, it may be substantially less than a preponderance. . . . [T]he substantial evidence standard found in Const 1963, art 6, § 28, does not depart from this definition, at least according to its drafters. [Citations omitted.] The city council claims that Payne is controlling and that the “substantial evidence” standard should have been the standard of review used by the circuit court. However, according to the comments made at the Constitutional Convention in 1961, in reference to Const 1963, art 6, § 28, the provision was intended only to ensure “ ‘minimum rights so far as appeals are concerned,’ ” In re Payne, supra at 692-693, n 9, quoting 1 Official Record, Constitutional Convention 1961, p 1467 (emphasis supplied), and a more rigorous standard is required by the Flint city charter. Flint Charter, § 1-603 provides for removal of an elected or appointed city employee for cause. Subsection C provides in pertinent part: Decisions made by the city council under this section are not reviewable by the mayor but are subject to judicial review in a hearing de novo. [Emphasis supplied.] Const 1963, art 6, § 28 requires the substantial evidence standard “as a minimum.” By carefully providing for “minimum” standards, it is clear the drafters did not preclude an administrative agency from requiring a stricter standard of review. In this case, the city charter clearly provides for review de novo and both sides requested review de novo before the circuit court. We believe that the Michigan Constitution clearly gives the city freedom to impose a stricter standard of review and to require review de novo of a decision to remove the ombudsman. Therefore, when the circuit court reviewed de novo the city council decision, it was not violating the Michigan Constitution. The Flint charter established the standard of review required in these proceedings, and the circuit court merely followed the requirements set forth in the city charter. In any event, under either standard of review we find sufficient evidence to support the city council's decision to remove Buchanan from office. n Flint Charter, § 1-603 provides that the “city council shall declare the forfeiture of the office of any elective officer or appointee and may remove for cause any person appointed to an office for a fixed term.” Flint Charter, § 3-502(B) provides that the ombudsman may be removed for cause by three-fourths of the city council members elect. Black’s Law Dictionary (6th ed), p 221 defines “cause” “[a]s a reason for an action.” In a similar vein, we note that this Court has recently indicated that “good cause” generally means “ ‘a substantial reason amounting in law to a legal excuse for failing to perform an act required by law.’ ” Franchise Management Unlimited, Inc v America’s Favorite Chicken, 221 Mich App 239, 246; 561 NW2d 123 (1997), quoting Black’s Law Dictionary (6th ed), p 692. In this case, in its resolution adopted August 28, 1995, the city council gave the following reasons for the removal of the ombudsman: Now be it resolved, that based on the testimony and the evidence presented during the hearings, that the Ombudsman, Darryl Buchanan, be removed for cause: Be it further resolved, that the specific cause for removal is that the testimony indicates that the Ombudsman did wilfully cause complaints not be worked on or to be backed up for budgetary purposes; permitted a conflict of interest in the Steverson Davis personnel policies; delegated personnel matters to the Ombudsman’s Advisory Board and to consultants; and failed to train and supervise staff appropriately.[] After conducting its review, the trial court found insufficient evidence to support the stated reasons for Buchanan’s removal. We review the trial court’s factual findings for clear error, which occurs if an appellate court is left with a firm and definite conviction that a mistake has been made. MCR 2.613(C); Ghidotti v Barber (On Remand), 222 Mich App 373, 377; 564 NW2d 141 (1997). We have such a conviction. Even were we to agree with the trial court that there was scant evidence supporting other stated reasons for removal, the evidence, through the testimony of senior investigator Joseph Valu and investigators Barbara Burdette and Ramona Sain, did clearly establish that plaintiff purposefully delayed the assignment and investigation of citizen complaints to apply pressure upon the city council to secure more funding for the ombudsman’s office. The trial court’s finding that there was insufficient evidence to support this stated reason for removal was clearly erroneous. Plaintiff’s actions in this regard controverted the essential mission of the office, which was to investigate and resolve citizen complaints, and, in our opinion, constituted cause for his removal. Because we find that there was sufficient cause for his removal, we believe the circuit court erred in setting aside the city council’s decision to remove plaintiff from office. Having found that the trial court erred in setting aside the city council’s decision to remove plaintiff from office, we need only briefly address some of the other issues raised by the city council. The circuit court did not err as a matter of law in its determination not to make findings of fact concerning the questions whether plaintiff discriminated or retaliated against employees Debra Milling and Rose Fizer or whether plaintiff had a claim for wrongful discharge. The only matter before the circuit court was a review of the decision of the city council to remove plaintiff from his position as the ombudsman. The circuit court was acting in the role of an appellate court for this hearing. Its task was to determine whether the stated reasons for plaintiffs removal constituted sufficient cause based on the evidence before the council. The city council did not state that discrimination or retaliation was a reason for plaintiffs removal as ombudsman, and Milling’s and Fizer’s claims of sexual harassment, sexual discrimination, retaliation and so on are the subject of separate pending circuit court actions. Moreover, in his amended complaint, plaintiff did not state a claim for wrongful discharge. Hence, the claims of wrongful discharge, sexual discrimination, or retaliation were not before the circuit court, and, therefore, the court did not err in its determination that it would not make findings of fact regarding these issues. Lastly, we do not believe that the trial court erred in denying the city council’s motion to disqualify plaintiff’s attorney, George Hamo, on the ground that by Hamo’s

SANCHEZ v LAGOUDAKIS (AFTER REMAND) Docket No. 106764. Argued April 8, 1998 (Calendar No. 11). Decided July 31, 1998. Dorene Sanchez brought an action in the Branch Circuit Court against her employer, Kostas Lagoudakis, doing business as Paradise Family Restaurant, alleging discrimination under the Handicappers’ Civil Rights Act for requiring her to prove that she was healthy enough to continue working after the employer heard a rumor that she had aids. The court, Michael H. Cherry, J., granted summary disposition for the defendant on the ground that because the plaintiff did not have aids, she was not handicapped, and the hcra was not applicable. The court conditioned the grant on the payment of the plaintiff’s lost wages and tips, costs, and attorney fees. The Court of Appeals, Gillis, P.J., and McDonald and J. W. Fitzgerald, JJ., affirmed in an opinion per curiam (Docket No. 115526). The Supreme Court reversed and remanded the case to the circuit court, holding that aids can be a handicap, and that the hcra prohibits discriminatory treatment based on an erroneous perception of a handicap. 440 Mich 496 (1992). On remand, the circuit court granted summary disposition for the plaintiff, while again awarding lost wages and tips, and increased the award for costs and attorney fees. On remand, the Court of Appeals, Doctoroff, C.J., and Neff and Fitzgerald, JJ., affirmed, holding that, with regard to a food-service employee, a severely compromised immune system associated with aids is a determinable physical characteristic of an individual that may result from disease. It held further that, in and of itself, the compromised system is unrelated to an individual’s ability to perform the duties of a waitress or qualification for such employment, as long as the characteristic is not accompanied by an opportunistic infection in a communicable form that can be transmitted through contact with food (Docket No. 189094). The defendant appeals. In an opinion by Justice Boyle, joined by Chief Justice Mallett, and Justices Brickley, Cavanagh, Weaver, and Taylor, the Supreme Court held-. For the purpose of balancing the Handicappers’ Civil Rights Act and the Public Health Code, if a food-service employer has a reasonable suspicion that an employee has aids, the employer may refuse to continue to assign the employee, pending testing for communicable diseases; the employer must have a reasonable basis for the request, and the testing requested must also be reasonable. 1. Under the Handicappers’ Civil Rights Act, a handicap is a determinable physical characteristic unrelated to a person’s ability to perform the duties of a particular job. A compromised immune system is a determinable characteristic, subject to definite and objective identification. In the context of the food-service industry, depending on the nature of the underlying opportunistic infections, aids may or may not be unrelated to the employee’s ability to perform requisite duties. 2. The Public Health Code and related administrative regulations are to be read as legislative and administrative policy that define communicable diseases that may be transmitted through food as being related to an employee’s duties in a food-service establishment, if the employee works in any capacity in which there is a likelihood that food or food-contact surfaces will be contaminated, or disease transmitted to another person. Under the code and regulations, employers are to exclude from their premises any employee suspected of having a communicable disease. Thus, to the extent that a food-service employee with aids suffers from an opportunistic infection that is a communicable disease, and reasonable accommodation will not eliminate the likelihood of contamination of food or food-contact surfaces, or transmission of the disease to another person, the employee is not protected under the hcra from exclusion. The existence of a severely compromised immune system, or a reasonable suspicion that an employee’s immune system has been so compromised, in the context of food handling, will allow an employer to request reasonable testing for communicable diseases, transmissible in a manner described under § 3-101 of the United States Department of Public Health Service, Food Service Sanitation Manual, adopted by 1981 AACS, R 325.25103(b), to ensure compliance with the Public Health Code, to prevent the spread of such diseases, and to determine the employee’s status as well as the employer’s rights and obligations under the hcra. 3. In this case, the defendant reasonably requested that the plaintiff prove that she was sufficiently healthy to continue working in the restaurant. The fear that the plaintiff presented a health threat because she might introduce other diseases into the workplace was objectively reasonable because, viewed from the employer’s perspective, the plaintiff was the source of the defendant’s information. Thus, the suspicion was based on comments bearing inherent indicia of reliability. As a matter of equity, the plaintiff is entitled to lost wages and tips as a result of this request. 4. Because the plaintiff has not prevailed under the hcra, she is not entitled to attorney fees as an item of damages under MCL 37.1606(3); MSA 3.550(606)(3) or as an item of costs under MCR 2.625. Reversed and remanded. Justice Kelly, dissenting, stated that an employer is expected to send an employee home from work where there is evidence of a communicable disease that is transmitted through food or in the process of preparing and serving food or beverages. Also, an employer may require medical clearance to return to the workplace. However, requiring an employee to be tested on the basis of a suspicion of being afflicted with aids runs afoul of the hcra and ada’s proscription against medical examinations that are not job-related and not required by business necessity. Requiring only those suspected of having aids and other compromised immune system diseases to be tested for communicable diseases, absent some discernible evidence of a food-borne illness, clearly is a violation of the hcra. Whether an action is reasonable is not a matter of law, but is a question for the jury. The trial court and the Supreme Court err in resolving the question on a motion for summary disposition. If the question is resolved as a matter of law, it must be found that the defendant’s request that Sanchez be tested was not based on a reasonable suspicion that she harbored some AIDS-associated communicable disease; rather, it was based on rumor and innuendo and his own fears. This is insufficient to justify the type of discriminatory behavior that the defendant perpetrated in this case. 217 Mich App 535; 552 NW2d 472 (1996) modified. Granzotto & Nicita, P.C. (by Mark Granzotto'), and Michael J. Steinberg for the plaintiff-appellee. George James Platsis for the defendant-appellant. Amici Curiae: Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Cynthia M. Núñez, Assistant Attorney General, for Department of Civil Rights. Chris E. Davis and Kendra S. Kleber for Michigan Protection & Advocacy Service, Inc., AIDS Partnership Michigan, HIWAIDS Wellness Networks Grand Traverse Area, Inc., HIWAIDS Resource Center, FRIENDS Alliance, Michigan Jewish AIDS Coalition, AIDS Resource Center, and AIDS Consortium of Southeastern Michigan, Inc. AFTER REMAND Boyle, J. We granted leave in this case to decide whether the Court of Appeals properly determined the parties’ rights under the Handicappers’ Civil Rights Act (hcra) and certain provisions of the Public Health Code. We hold that the Court of Appeals failed to properly balance the interests underlying the applicable statutes and regulations. We also hold that the Court of Appeals erred in sustaining the trial court’s award of attorney fees. We emphasize at the outset that the lengths to which we go in limiting this opinion by explaining what it is not about, are made necessary by the dissent’s accusation that “the opinion permits discrimination” against persons affected or suspected of being affected by aids. Post at 729. This characterization of our holding raises the specter of alarming a segment of the community already subjected to unnecessary hysteria. That possibility is the inherent consequence of the dissent’s unfortunate failure to recognize that what divides us is (1) whether the Public Health Code and regulations address solely food-borne illnesses, (2) whether a food-service employer must wait for physical symptoms to manifest before refusing to assign an employee where there is a reasonable suspicion of aids, and (3) that this case involves a reasonable suspicion having inherent indicia of reliability as opposed to mere rumor and innuendo. We have done everything possible from the judicial perspective to define a path by which employers and employees may in good faith navigate two complex and difficult sets of statutory obligations. Mindful of Cardozo’s admonition that we are not knights-errant, roaming at will in pursuit of our own ideal of truth and goodness, we refrain from attempting to redefine these obligations in favor of a particular group or personal perspective. Cardozo, The Nature of the Judicial Process, p 141. Our focus here is limited and does not concern the transmission of aids. Rather, our decision addresses the obligations of food-service employers and employees in the presence of the potential spread of underlying communicable diseases that may be associated with aids. A food-service employer is not free to terminate any employee with a suspected illness, pending evidence that the employee is disease free. The employer is not free to terminate an employee for a suspected illness that is unrelated to the employee’s ability to perform a job, and, ipso facto, is not free to require an employee to present evidence of being disease free. However, where a food-service employer has a reasonable suspicion that a food-service employee has aids, which by definition is a syndrome that involves a compromised immune system that renders the employee highly susceptible to diseases that might be communicable in a manner described under the relevant regulations, the food-service employer may refuse to continue to assign the employee, pending testing for such communicable diseases. In this unique setting, where one accepted definition of aids is that it involves certain associated diseases, some of which are infectious and possibly food borne or airborne, our result is consistent with the fact-specific inquiry dictated by the need to avoid significant health risks to the public while protecting the handicapped from sweeping generalizations based on prejudice or unfounded fears. We reverse the decision of the Court of Appeals and remand this case for further proceedings consistent with this opinion. I Plaintiff Dorene Sanchez was working as a server at defendant Kostas Lagoudakis’ Paradise Family Restaurant in Coldwater. A rumor circulated in late 1987 that she had aids. Mr. Lagoudakis directed Ms. Sanchez to prove that she was healthy enough to continue working in the restaurant. He told her that she was free to return if she proved she was healthy. Plaintiff returned with proof that she did not have AIDS, and defendant told her she could return to work. However, she complains that his action was a discharge. Ms. Sanchez filed suit, alleging discrimination in violation of the Handicappers’ Civil Rights Act (HCRA). However, the circuit court granted summary disposition in favor of Mr. Lagoudakis on the ground that, because Ms. Sanchez did not have aids, she was not handicapped and the HCRA was inapplicable. Citing “equitable” powers, the circuit court conditioned the grant of summary disposition on payment by Mr. Lagoudakis of $491.25 for Ms. Sanchez’ lost wages and tips, $316.24 in costs, and $500 for attorney fees, for a total of $1,307.49. Both parties appealed, and the Court of Appeals affirmed. 184 Mich App 355; 457 NW2d 373 (1990). On appeal to this Court, the grant of summary disposition in favor of Mr. Lagoudakis was reversed. 440 Mich 496; 486 NW2d 657 (1992). This Court said that aids can be a handicap, and that the hcra prohibits discriminatory treatment based on an erroneous perception of a handicap. We remanded the case for further proceedings: Because aids can be found to be a handicap under the Handicappers’ Civil Rights Act, and because the act prohibits discriminatory treatment, even when based on erroneous perception, we reverse the decision of the Court of Appeals and remand this case to the circuit court for further proceedings. On remand the circuit court shall determine whether the condition Sanchez was perceived to have was a determinable physical characteristic resulting from disease unrelated to her ability to perform the duties of her job or her qualifications for employment or promotion. Both of these questions are for further factual development and determination. No record is presented on which we might express an opinion. [440 Mich 506-507.][] In the opinion, we emphasized that this Court was not considering the propriety of the “equitable” award in favor of Ms. Sanchez, 440 Mich 498, n 5, and that we were expressing no opinion with regard to whether AIDS is unrelated to Ms. Sanchez’ food-service employment. 440 Mich 502, n 14. On remand, the circuit court granted summary disposition in favor of Ms. Sanchez, while again awarding $491.25 in damages. The court increased the costs from $316.24 to $725.24, and awarded the plaintiff $32,501.34 in attorney fees. Mr. Lagoudakis appealed, and the Court of Appeals affirmed in a lengthy opinion. 217 Mich App 535; 552 NW2d 472 (1996). We granted Mr. Lagoudakis’ application for leave to appeal, and we now directly address the issue whether AIDS, or the perception thereof, was unrelated to Ms. Sanchez’ employment. n In its opinion affirming the decision of the trial court, the Court of Appeals offered a detailed analysis of the central issues presented in this case. 217 Mich App 538-557. However, the Court’s holdings are well summarized in these passages: For the foregoing reasons, we hold that, with regard to a food-service employee, a severely compromised immune system associated with aids is a determinable physical characteristic of an individual that may result from disease and that is unrelated to an individual’s ability to perform the duties of a waitress or to an individual’s qualification for such employment as long as this characteristic is not accompanied by an opportunistic infection in a communicable form that can be transmitted through contact with food. In other words, a food service employee with aids has a handicap within the meaning of the hcra. [217 Mich App 552.] On the record before us, we conclude that defendant’s suspension of plaintiff violated the hcra because the suspension constituted an unlawful discriminatory act taken in response to a handicap that was unrelated to plaintiff’s abilities to perform her duties as a waitress. Accordingly, we reject defendant’s claim that plaintiff did not establish, as a matter of law, a prima facie case of discrimination under the HCRA and his corresponding claim that he was entitled to summary disposition with regard to plaintiff’s HCRA claim. [217 Mich App 554.] The Court of Appeals has held that “with regard to a food-service employee, a severely compromised immune system associated with aids is a determinable physical characteristic of an individual that may result from disease and that is unrelated to an individual’s ability to perform the duties of a waitress or to an individual’s qualification for such employment as long as this characteristic is not accompanied by an opportunistic infection in a communicable form that can be transmitted through contact with food.” 217 Mich App 552. We agree. However, there is only one method by which a typical restaurateur will be able to determine reliably whether an employee’s condition is “accompanied by an opportunistic infection in a communicable form that can be transmitted through contact with food.” That method would be to send the employee to a physician for testing. And that is precisely what the employer did in this case. The Court of Appeals has attempted to balance a food-service employer’s statutory obligation not to discriminate against an employee* and the employer’s statutory obligation to provide a healthy environment for diners and other patrons. However, to accomplish this balance — to assure continued employment opportunity in the absence of “an opportunistic infection in a communicable form that can be transmitted through contact with food” — we hold that where a food-service employer has a reasonable suspicion that an employee has aids, the employer has the right to ask that employee to undergo testing to determine whether an opportunistic infection in a communicable form is, in fact, present. We restrict our holding to the task of balancing the hcra and the Public Health Code. A The applicable legislation and administrative rules support our holding. MCL 37.1103(b)(i); MSA 3.550(103)(b)(i), at the relevant time, defined “handicap” as a determinable physical or mental characteristic of an individual or a history of the characteristic which may result from disease, injury, congenital condition of birth, or functional disorder which characteristic ... is unrelated to the individual’s ability to perform the duties of a particular job or position, or is unrelated to the individual’s qualifications for employment or promotion. We agree with the Court of Appeals that “a compromised immune system constitutes a ‘determinable’ characteristic . . . subject to definite and objective identification by serological, histological, and cultural techniques.” 217 Mich App 542. However, “[a] disability that is related to one’s ability to perform the duties of a particular position is not a ‘handicap’ within the meaning of the [HCRA].” Under the hcra in the context of the food service industry, AIDS is unique because, depending on the nature of the underlying opportunistic infections that present themselves as the syndrome’s natural process destroys the immune system, AIDS may or may not be unrelated to the employee’s ability to perform duties in the food service industry. Surgeon General’s Report on Acquired Immune Deficiency Syndrome (1986). The Public Health Code and administrative regulations promulgated thereunder mandate certain procedures if a food-service employee is suspected of having a “cornitmnicable disease.” MCL 333.12909(1); MSA 14.15(12909)(1) provides: The department shall promulgate rules to prescribe criteria for programs by local health departments and procedures for the administration and enforcement of this part. The department may promulgate rules to prescribe minimum standards of sanitation for the protection of the public health and otherwise provide for the implementation of this part. The department in promulgating these rules shall seek the advice and counsel of local health departments and the food service industry. The Michigan Department of Public Health, pursuant to its authority to promulgate administrative regulations, adopted most provisions of the United States Department of Public Health Service, Food Service Sanitation Manual. See 1981 AACS, R 325.25103(b). Section 3-101 of that manual states: No person, while infected with a disease in a communicable form that can be transmitted by foods or who is a carrier of organisms that cause such a disease or while afflicted with a boil, an infected wound, or an acute respiratory infection, shall work in a food service establishment in any capacity in which there is a likelihood of such person contaminating food or food-contact surfaces with pathogenic organisms or transmitting disease to other persons!1 1981 AACS, R 325.25909(3) further provides: The owner, operator, or person in charge of a food

LAMORIA v HEALTH CARE & RETIREMENT CORPORATION Docket No. 199795. Released July 10, 1998, at 9:00 A.M.; vacated July 24, 1998. Before: Fitzgerald, P.J., and O’Connell and Whitbeck, JJ. Per Curiam. Plaintiff Barbara Lamoria appeals as of right the trial court’s grant of summary disposition. Lamoria filed this action after she was discharged from her employment at defendant Sun Valley Manor, Inc., a retirement home owned by defendant Health Care & Retirement Corporation (hcr). Defendant Marilyn K. Martin was, at the time of Lamoria’s discharge, the administrator of Sun Valley. In pertinent part, Lamoria alleges that her discharge (1) violated the prohibition of the state Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., against weight and age discrimination, (2) violated the Handicappers’ Civil Rights Act, MCL 37.1202(l)(b); MSA 3.550(202)(l)(b), with respect to handicap discrimination related to an injury that Lamoria suffered in the course of her employment, and (3) constituted illegal retaliation for plaintiffs seeking worker’s compensation benefits. Lamoria advanced additional claims on which the trial court also granted summary disposition to defendants, but Lamoria does not challenge the grant of summary disposition on those claims. In contrast, defendants assert that Lamoria was discharged in accordance with hcr’s policy of discharging employees who do not return to work after having been on a medical leave of absence for six months. We reverse the grant of summary disposition with respect to the claims at issue in this appeal and remand for further proceedings consistent with this opinion. But for MCR 7.215(H), we would affirm the trial court’s decision with respect to issue iv. However, as we will discuss more fully in this opinion, MCR 7.215(H) requires us to reverse with regard to issue iv. I. FACTS Lamoria has been a registered nurse since 1959 and was employed in that capacity (including time spent on leave) for nearly twenty years at Sim Valley, from September 9, 1975, until July 7, 1994. However, Lamoria stated in an affidavit that she was not officially notified that her employment had been terminated until October 1994. Lamoria alleged in her complaint that, at the time her employment was terminated, she was fifty-five years old, 5’ 7” tall and weighed about 240 pounds and that, previously, she had weighed as much as 311 pounds. Lamoria stated that she began working at Sun Valley as a staff nurse and was promoted in 1991 to the position of “Nurse (Unit) Manager.” According to Lamoria, her “last evaluation in August, 1993, stated that [she] had a ‘demonstrated loyalty’ to Sun Valley Manor and that [she] had the potential for promotion within hcr.” Ruth Wilcox, who also had worked at Sun Valley, testified in her deposition that she had the opportunity to review Lamoria’s work or watch her interact with patients. When asked for her opinion of Lamoria’s work performance as a nurse, Wilcox testified: I respect her. She has good standards. She’s honest and credible and trustworthy. She expressed and demonstrated a lot of behaviors that are consistent with a high degree of caring. I would describe her as dedicated. Wilcox did not recall having any problems with Lamoria during the time that Wilcox was serving as the internal administrator or director of nursing at Sun Valley. Lamoria stated in her affidavit that Martin was hired as the administrator of Sun Valley by Dan Livy, a regional manager for hcr in December 1993. Lamoria suffered a knee injury as a result of a fall at Sun Valley on August 9, 1993, during the course of her employment. Lamoria went on a medical leave from her emplpgnent in January 1994. Faith Hall indicated in her affidavit that she worked at Sun Valley as a “Nurse Consultant” when Martin was hired as the administrator for Sun Valley. Hall stated that, in her first meeting with Martin at Sun Valley, Martin proclaimed that she was going to “clean house” and that she intended to get rid of the employees who had been at Sun Valley the longest because they “would be the hardest to change.” Hall also stated that “Martin said that hcr sought her out for this position and brought her in specifically to clean out the older employees.” According to Hall, “Martin made comments about immediately terminating the director of nursing, several dietary department personnel, and some of the older nurses.” Hall stated that Martin and Livy referred to a “hit list” of employees whom they sought to terminate and that “in several instances [they] would ‘target’ an employee for termination, then begin to build a case for termination or instead force the person to resign.” Hall also stated that Martin and Livy “made critical and harsh remarks in [Hall’s] presence about the weight of some Sun Valley Manor personnel, including Annette Smith and Barbara Lamoria, in a manner that suggested to [Hall] that they intended to terminate people who they perceived as overweight.” Brenda LaVigne, who was employed by Sun Valley as a social worker, stated that, while she was at Sun Valley, Martin became the administrator. LaVigne made the following statements about Martin in her affidavit: 4. Marilyn Martin threatened to fire me on several occasions without justification. 5. Shortly after she started in December, 1993, Martin began to terminate several of the department heads[,] including musing supervisors. These employees were then replaced with younger employees. 6. Among the department heads or supervisors fired by Martin or forced to resign were Annette Smith, Director of Nursing; Sharon DeWhale, Director of Nursing; Donna Hair, Social Worker; Dennis Fox, Nurse Supervisor; and Belda Denzer, Nurse Supervisor. * * * 8. Martin did not like over-weight people. Martin made disparaging comments about heavy people, including Sun Valley Manor employees. 9. Annette Smith, Donna Hair and Barbara Lamoria were all overweight by Martin’s standards, and all were fired or forced to resign while Martin was Administrator. According to LaVigne, “Martin hired younger, more attractive people to enhance the ‘coiporate image’ of hcr and to replace the people that Martin wanted to terminate.” LaVigne also stated that Martin knew that Lamoria needed surgery to repair her knee and that Martin would be off work for a long time rehabilitating her knee. According to LaVigne, Martin did not want hcr to pay for the cost of this surgery or rehabilitation. Annette Smith-Jones indicated in her affidavit that she was employed as the director of nursing when Martin was hired as the administrator. According to Smith-Jones, Martin along with Livy “almost immediately began trying to fire [Smith-Jones] from [her] job.” SmithJones stated that, at meetings, “Martin often stated how she had no use for certain people, targeting in particular some of the muse unit managers and African-American licensed practical muses.” Defendants stress a provision of the “hcr Employee Handbook” regarding medical leaves that includes the statement, “Normally, a Medical Leave of Absence with extensions may not exceed six months.” However, Lamoria stated that she went to Sun Valley each month from February to August 1994 to complete the necessary forms to extend her leave of absence “for another month while HCR delayed my surgery.” Lamoria further stated that no one advised her during any of these visits that her leave would expire at some point or that she had to return to work by a certain date or face termination. Each time, Lamoria filled out a form on which she stated that her leave of absence was “work related” and that her estimated date of return to work was “undetermined.” Lamoria stated that, each time, Martin approved the leave form without modification. Further, according to Lamoria, neither Martin nor hcr ever stated on the form that the leave would expire at some point, although there is a space on the form to designate the end of a leave period. Lamoria also stated that she visited Sun Valley about ten times during her leave period to complete various paperwork and that she was given no notice of her impending termination during those visits. Kenneth Distler, M.D., an orthopedic surgeon, stated in an affidavit that he performed an arthroscopic procedure on Lamoria on January 10, 1994. The costs associated with this procedure, as well as benefits for partial wage loss and medical bills, were paid by ITT Hartford, which administered worker’s compensation claims for hcr. However, Dr. Distler stated that he thereafter determined that Lamoria’s left knee was not responding to treatment and that a total knee replacement was needed to restore her knee to “functionality” Dr. Distler stated that, in his opinion, Lamoria’s problem with her knee was caused by degenerative arthritis that was aggravated by the August 1993 injury. According to Dr. Distler, he requested authorization from Lamoria’s employer to have the cost of the surgery paid under an insurance policy covering work-related injuries “as the cause of [Lamoria’s] condition was at least partially related to a fall [Lamoria] had while on the job in August, 1993.” Dr. Distler stated that the surgery was not scheduled because of the uncertainty regarding Lamoria’s insurance coverage. He said that hcr never contacted his office to advise him whether hcr would pay for the cost of the surgery. Dr. Distler stated that, “[i]f Ms. Lamoria has surgery, [he] would expect her to return to a normal life, including productive work as a nurse, although she will have some restrictions on her work and activities for a brief period of time.” He stated that “Ms. Lamoria’s knee would improve with surgery because a replacement knee would have corrected not only the problems brought about by her fall, but also any of the degenerative arthritic problems that she has experienced.” Lamoria stated in her affidavit that she contacted hcr and ITT Hartford on several occasions from March to June 1994 “trying to get answers to why the surgery was not being done and about [her] condition, and each time [her] questions largely went unanswered or [she] was told that no decisions had yet been made.” Lamoria stated that she was told by Sun Valley personnel in May 1994 that her file had been “taken over” by Martin and Livy and that Martin had been in contact with hcr personnel who were in charge of worker’s compensation claims. Lamoria stated that it was about this time that her file was transferred within rTT Hartford from Susan Billiett to Wayne Beechum and that Beechum told her that he was taking over her file because hcr was not satisfied with the way that Billiett was handling her case. Lamoria stated that on June 29, 1994, she was finally told by Beechum that a decision had been made to deny her worker’s compensation coverage for her surgery. Lamoria further stated that Beechum told her, on June 29, 1994, that he was being pressured by hcr to deny the claim, that “he had ‘no alternative’ but to stop compensation payments because hcr had told him to do it” and that “hcr was ‘self funded’ for worker’s compensation insurance, thus hcr could tell him to stop payments, a fact noted in [Lamoria’s] records of the conversation.” n. REVIEW OF A GRANT OF SUMMARY DISPOSITION We review a trial court’s grant of summary disposition de novo. Paul v Lee, 455 Mich 204, 210; 568 NW2d 510 (1997). In reviewing a motion for summary disposition based on MCR 2.116(C)(10), we review the documentary evidence and determine whether a genuine issue of material fact exists. Paul, supra at 210. In doing so, we draw all reasonable inferences in the nonmovant’s favor and give the nonmovant the benefit of any reasonable doubt. Id. “Summary disposition is appropriate only if the court is satisfied that it is impossible for the nonmoving party to support his claim at trial because of a deficiency that cannot be overcome.” Id. However, a party opposing a motion for summary disposition under MCR 2.116(C)(10) may not rest on its pleadings, but must come forward with evidence to show the existence of a material factual dispute. Paul, supra at 210-211. If the nonmoving party fails to show that a material fact is at issue, the motion would be properly granted. Id. at 211. Granting a motion for summary disposition is especially suspect where motive and intent are at issue or where the credibility of a witness or deponent is crucial. Vanguard Ins Co v Bolt, 204 Mich App 271, 276; 514 NW2d 525 (1994). m. LAMORIA’S CLAIMS UNDER THE STATE CIVIL RIGHTS ACT A. GENERAL PRINCIPLES MCL 37.2202; MSA 3.548(202) provides in part: (1) An employer shall not do any of the following: (a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status. [Emphasis added.] The trial court in its written opinion provided the following explanation for its grant of summary disposition to defendants with regard to Lamoria’s claims that her discharge was based on weight and age discrimination contrary to the state Civil Rights Act: In a discrimination case, the plaintiff has the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence. If the plaintiff is successful, then the burden of proof shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. The plaintiff then has the burden to prove that defendants!’] reason for its actions was a mere pretext. Plieth v St Raymond Church, 210 Mich App 568, 571 [534 NW2d 164] (1995); Bamell v Taubman Co, Inc, 203 Mich App 110, 120 [512 NW2d 13] (1993). To establish a prima facie case of employment discrimination, the plaintiff must demonstrate, as a threshold matter, that she was qualified for the position. Ackerman v Diamond Shamrock Corp, 670 F2d 66, 69 (CA 6, 1982). In Baughey v Tecumseh Country Club, 778 F Supp 354 (ED Mich, 1991), vacated 989 F2d 498 (CA 6, 1993), aff’d 1 F3d 1240 (CA 6, 1993), the court found that a former employee failed to establish a prima facie case of age or sex discrimination where she was unable to perform her job due to an on-the-job injury prior to her discharge. While Ms. LaMoria may have all necessary state licensures and other qualifications for the position of Nurse Manager or Staff Nurse, it is not disputed that she cannot physically perform either position. Therefore, she has failed to establish a prima facie case of employment discrimination. Defendants!’] motion for summary disposition is granted as there is no evidence to establish a material factual dispute. Since plaintiff has not established a prima facie case, the court need not consider the disparate treatment nor the intentional discrimination claims. With regard to Lamoria’s claims of weight and age discrimination, the trial court’s analysis overlooks that the prima facie case, as part of a mechanism for shifting the burden of producing evidence, is merely one method that an alleged victim of illegal discrimination may use in attempting to show disparate treatment in violation of the state Civil Rights Act. The “prima facie case” derives from the construct established in McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), for analysis of employment discrimination claims under title VII of the federal Civil Rights Act that involve only circumstantial evidence of discrimination. See Harrison v Olde Financial Corp, 225 Mich App 601, 606-607; 572 NW2d 679 (1997). However, where a plaintiff offers direct evidence of discriminatory animus by a decisionmaker in connection with a claim of employment discrimination, the prima facie case construct, as part of the McDonnell Douglas framework, is inapplicable: [W]hile the McDonnell Douglas burden-shifting analysis is appropriate in cases without direct evidence of discrimination, this case presents a different situation. Federal case law holds, and we agree, that the McDonnell Douglas evidentiary framework does not apply when a plaintiff presents direct evidence of discriminatory animus. Kresnak v Muskegon Heights, 956 F Supp 1327 (WD Mich, 1997); see also Moiras v Amoco Oil Co, 424 Mich 675, 683-684; 385 NW2d 586 (1986). “Direct evidence and the McDonnell Douglas formulation are simply different evidentiary paths by which to resolve the ultimate issue of [the] defendant’s discriminatory intent.” Blalock v Metals Trades, Inc, 775 F2d 703, 707 (CA 6, 1985). [Harrison, supra at 609-610; see also Downey v Charlevoix Co Bd of Co Rd Comm’rs, 227 Mich App 621, 633; 576 NW2d 712 (1998).] Accordingly, where a plaintiff presents direct evidence of discriminatory animus, it is erroneous for a trial court to use the McDonnell Douglas framework. Harrison, supra at 613. This Court in Harrison, id. at 610, further described what constitutes direct evidence of discrimination: “Direct evidence” has been defined in the Sixth Circuit Court of Appeals as evidence that, if believed, “ ‘ “requires the conclusion that unlawful discrimination was at least a motivating factor.” ’ ” Kresnak, supra at 1335 (citations omitted). For example, racial slurs by a decisionmaker constitute direct evidence of racial discrimination that is “ ‘sufficient to get the plaintiff’s case to the jury.’ ” Id. (citation omitted). Cases involving direct evidence of discriminatory animus are sometimes called “mixed motives” cases in light of the presentation of such evidence by the alleged victim of discrimination ordinarily coupled with the presentation of other evidence by the employer of legally permissible motives for an adverse employment-related decision: Thus, when direct evidence of discrimination is involved, we believe that federal case law provides appropriate guidance for analyzing discrimination claims arising under the Michigan Civil Rights Act. In the instant case, plaintiff testified in her deposition that defendant’s employees made derogatory comments about her race. Because of plaintiff’s direct evidence of discrimination, this case presents a question of mixed motives, one in which defendant’s decision not to hire plaintiff could have been based on several factors, legitimate ones as well as legally impermissible ones. [Harrison, supra at 610.] Direct proof of discriminatory animus ordinarily precludes a grant of summary disposition: To summarize, we hold that the following principles of proof apply in a typical single-plaintiff, mixed-motive employment discrimination case. First, as with circumstantial discrimination cases, in a case involving direct evidence of discrimination, the plaintiff always bears the burden of persuading the trier of fact that the employer acted with illegal discriminatory animus. Second, whatever the nature of the challenged employment action, the plaintiff must establish evidence of the plaintiff’s qualification (or other eligibility) and direct proof that the discriminatory animus was causally related to the decisionmaker’s action. Upon such a presentation of proofs, an employer may not avoid trial by merely “articulating” a nondiscriminatory reason for its action. Under such circumstances, the case ordinarily must be submitted to the factfinder for a determination whether the plaintiffs claims are true. [Id. at 612-613; (emphasis added).] In this case, viewing the evidence favorably to Lamoria, she was as “eligible” to be on a medical leave as was any other employee who was, as a practical matter, unable to perform the employee’s job duties because of an injury. In the context of alleged discrimination against an incumbent employee with regard to medical leave, it is not sensible that the employee should have to show that the employee was “qualified” to physically perform the job at the time of discharge. Otherwise, an employer would be free to discriminate against an individual in denying a medical

LYTLE v MALADY (ON REHEARING) Docket No. 102515. Argued January 6, 1998 (Calendar No. 11). Decided July 1, 1998. Rehearing denied 459 Mich 1203. Nancy Lytle brought an action in the Muskegon Circuit Court against Michael Malady, her supervisor, and the Howmet Corporation, her employer, after she was discharged from her employment. She alleged breach of a contract providing for termination of employment for just cause only, and age and sex discrimination. Howmet asserted that the discharge was the result of a company-wide reduction in its work force. The court, R. Max Daniels, J., granted summary disposition for the defendants on all counts. The Court of Appeals, D. E. Holbrook, Jr., P.J., and Murphy and J. C. Kingsley, JJ., reversed (Docket No. 157627). The Supreme Court affirmed in part, finding that the plaintiff reasonably could have had a legitimate expectation of just-cause employment, but reversed the Court of Appeals by finding that the plaintiff failed to present evidence demonstrating the existence of bad faith on behalf of the defendant in conducting its reduction in force. The Supreme Court further affirmed the Court of Appeals in holding that the plaintiff raised a genuine issue of fact with respect to whether the defendant discriminated against her on the basis of her age and gender. 456 Mich 1 (1997). On motion by both parties, the Supreme Court subsequently granted rehearing. 456 Mich 1202 (1997). In an opinion by Justice Weaver, joined by Justices Boyle and Taylor, and an opinion by Chief Justice Mallett, the Supreme Court held: Even when an employer’s decision to reduce its work force is deemed bona fide, a discharged employee claiming age or gender discrimination may survive a motion for summary disposition by presenting sufficient admissible evidence to create a reasonable factual dispute that the employer’s proffered reason for discharge was a mere pretext and that age or gender discrimination was a true motivation underlying the plaintiff’s discharge. In this case, the plaintiff failed to provide sufficient evidence, direct or circumstantial, to allow a reasonable trier of fact to find that the defendant-employer’s reduction in force was a mere pretext for discriminatory animus. The Court further held that the plaintiff cannot assert a legitimate expectation of just-cause employment on the basis of the employer’s policy to terminate only for proper cause, particularly where an employer’s policy handbook specifically disclaims any intent to create contractual obligations with employees. 1. Generally, Michigan law presumes that employment relationships are terminable at the will of either party. The presumption can be rebutted, however, so that contractual obligations and limitations are imposed on an employer’s right to terminate an employment at will. The presumption is overcome with proof of either a contract provision for a definite term of employment, or one that forbids discharge absent just cause; an express agreement, either written or oral, regarding job security that is clear and unequivocal; or a contractual provision, implied at law, where an employer’s policies and procedures instill a legitimate expectation of job security in the employee. Provisions in a handbook will not create enforceable rights, particularly when the handbook expressly states that such provisions are not intended to create an employment contract; nor will oral assurances of job security create such rights, unless they are clear and unequivocal. On the basis of the facts of this case, the plaintiff cannot assert a legitimate expectation of just-cause employment. Moreover, the oral assurances given to the plaintiff were unclear and equivocal. Thus, the plaintiff failed to raise a triable issue with respect to whether she had just-cause employment with the defendant. 2. To establish a prima facie case of discrimination under the Civil Rights Act, a plaintiff must prove by a preponderance of the evidence that the plaintiff was a member of a protected class, suffered an adverse employment action, was qualified for the position, and was discharged under circumstances that give rise to an inference of unlawful discrimination. Once a plaintiff has sufficiently established a prima facie case, a presumption of discrimination arises. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the plaintiff’s termination. Once the employer produces such evidence, even if later refuted or disbelieved, the presumption drops away, and the burden of proof shifts back to plaintiff. The plaintiff then must show, by a preponderance of admissible, direct, or circumstantial evidence, that there is a triable issue that the employer’s proffered reasons were not true reasons, but were a mere pretext for discrimination. Disproof of an employer’s articulated reason for an adverse employment decision defeats summary disposition only if such disproof also raises a triable issue that discriminatory animus was a motivating factor underlying the employer’s adverse action. Thus, in the context of summary disposition, a plaintiff must prove discrimination with admissible evidence, either direct or circumstantial, sufficient to permit a reasonable trier of fact to conclude that discrimination was a motivating factor for the adverse action. 3. To establish a prima facie case of age discrimination, the plaintiff must prove, by a preponderance of the evidence, that the plaintiff was a member of a protected class, suffered an adverse employment action, was qualified for the position, and was replaced by a younger person. In this case, the plaintiff failed to raise a genuine issue of fact that the employer’s proffered reason for discharge, a reduction in force, was a mere pretext for discrimination. To prove that the reduction in force was a mere pretext and that age was a determining factor, the plaintiff had to show that she was treated differently from similarly situated employees. However, her proofs cannot sustain a reasonable inference that economic necessity was really a pretext for discriminatory animus on the part of the employer. 4. To prevail in a claim of gender discrimination over a motion for summary disposition, a plaintiff must raise a triable question of fact that a demotion and eventual discharge were motivated by gender discrimination, not economic or business judgment. In this case, the plaintiff met her burden of establishing a prima facie case with proof that she was a female, was a member of a protected class, and was qualified for her position, but nonetheless was demoted and then discharged under circumstances giving rise to an inference of discrimination. However, she failed to provide evidence sufficient to raise a reasonable, triable question of fact that she was similarly situated to her replacement, the new employer manager of her department, that the reduction in force was a mere pretext for discriminatory animus, and that gender was a determining factor in the employer’s decision to demote and then discharge her. Mere disproof of an employer’s proffered nondiscriminatory reason is insufficient to survive summary disposition, unless such disproof also raises a triable question of discriminatory motive, not mere falsity. The plaintiff merely provided evidence to reasonably suggest that she and her supervisor had a personality conflict. Therefore, she has not raised a triable issue with regard to whether gender discrimination was a cause of her demotion or eventual discharge. Justice Brickley, concurring, stated that the plaintiff created a question of fact whether she was a just-cause employee because she had a legitimate expectation of just-cause employment under Rood v General Dynamics Corp, 444 Mich 107 (1993). However, summary disposition for the defendant should be upheld because the plaintiff failed to raise a question of material fact that the defendant had just cause to terminate her as part of its reduction in force. Reversed. Chief Justice Mallett, concurring in part and dissenting in part, further stated that the plaintiff cannot assert a legitimate expectation of just-cause employment because the handbook specifically disclaims any intent to create contractual or binding obligations to employees. Even when an employer demonstrates a bona fide reduction in force, a plaintiff may survive a motion for summary disposition by presenting sufficient evidence that the reduction in work force was a mere pretext and that discriminatory animus was a true motivation behind the discharge. In this case, the plaintiff has not presented sufficient evidence to survive summary disposition of her age discrimination claim; however, a reasonable person could find that her demotion was motivated by gender discrimination. Justice Cavanagh, joined by Justice Kelly, dissenting, stated that reasonable minds could conclude that the employee handbook created a legitimate expectation of just-cause employment; thus, a question of fact existed precluding summary disposition in favor of the defendants. A disclaimer of contractual intent should have no effect on a policy contained in a handbook that gives rise to legitimate expectations of just-cause employment that are outside the operation of normal contract principles. In this case, the employer’s policy statement that no employee would be terminated without proper cause or reason is reasonably capable of instilling a legitimate expectation of just-cause employment, and the employer’s contractual disclaimer did not contradict that expectation, raising a question of fact regarding whether the plaintiff had a legitimate expectation of just-cause employment. While the defendant asserted that it was conducting a reduction in force, and while it appears the reduction was genuine, factual questions remain regarding whether the plaintiff was terminated as a result of the reduction in force or as a result of unlawful discrimination. 209 Mich App 179; 530 NW2d 135 (1995) reversed. Bott & Spencer, P.C. (by Timothy J. Bott and Karen M. Spencer), for the plaintiff. Vamum, Riddering, Schmidt & Howlett, L.L.P. (by Joseph J. Vogan and Paul M. Kara), for the defendants. Amicus Curiae: Miller, Canfield, Paddock & Stone (by Charles S. Mishkind) for Michigan Chamber of Commerce. ON REHEARING Weaver, J. We granted rehearing in this case to clarify the evidentiary standard that plaintiff, alleging age and gender discrimination, must satisfy to survive summary disposition under MCR 2.116(C)(10). We hold that even when an employer’s decision to reduce its work force is deemed bona fide, a plaintiff may survive a motion for summary disposition by presenting sufficient admissible evidence to create a reasonable factual dispute that the employer’s proffered reason was a mere pretext and that age or gender discrimination was a true motivation behind plaintiff’s discharge. In this case, we find that plaintiff failed to provide sufficient evidence, direct or circumstantial, to allow a reasonable trier of fact to find that the Howmet Corporation’s (defendant-employer’s) reduction in work force (rif) was a mere pretext for discriminatory animus. We also granted rehearing to decide whether the employer’s policy handbook provisions could reasonably have created a legitimate expectation of just-cause employment. We hold that plaintiff cannot assert a legitimate expectation of just-cause employment based on the employer’s policy to terminate only for cause, particularly where the handbook specifically disclaims any intent to create contractual or binding obligations to employees. Moreover, we reject plaintiff’s claim that her supervisor’s assurances regarding secure employment were sufficient to allow a reasonable juror to find just-cause employment. Accordingly, we reverse the decision of the Court of Appeals with regard to defendant-employer, and affirm the trial court’s grant of summary disposition for the employer with regard to plaintiff’s wrongful discharge claim and her age and gender discrimination claims. i A On January 29, 1973, plaintiff Lytle was hired by the employer as a general clerk in the human resources department at its Whitehall site. Plaintiff’s first immediate supervisor was John Ozar. While plaintiff worked with Ozar, she received several favorable performance evaluations and two promotions, one in 1976 and another in 1979, when she was promoted to manager of the entire Whitehall human resources department. About this time, Ozar hired Walter Boczkaja as plaintiff’s subordinate trainee, a position he held for ten years until 1989, when he assumed plaintiff’s position as department manager. Boczkaja received a series of departmental promotions during his first two years of employment while working under plaintiff’s direction. During 1984-85, Ozar retired and was replaced by William Roof, who then decided to decentralize the department, thereby allowing the Whitehall division to have its own human resources representative. Roof also hired defendant Malady as head of the Whitehall Machined Products Division and, therefore, as plaintiffs new supervisor. Plaintiff and her new supervisor, Malady, developed a personality conflict. Plaintiff claimed the conflict stemmed from a June 1987 incident when she refused to wear a dress to a company “open house.” Plaintiff alleged that Malady told her all the “girls” should wear dresses to this company picnic event. Shortly thereafter, Malady gave her an unfavorable job evaluation, her first in her time with the company. Plaintiff claimed other similar incidents followed. Plaintiff received her second critical performance evaluation in September 1987. Two years later, in January 1989, Malady recommended, and Roof approved, a change in plaintiffs job title. Although her salary and job duties remained the same, plaintiff claimed this change constituted a demotion. Plaintiff retained this newly entitled position until her November 1, 1991, discharge. The day plaintiff was demoted in 1989, Boczkaja, her subordinate and one-time trainee, assumed her position as “employer manager” of the department. In November 1991, when plaintiff was forty-four years of age, she was notified that her position was being eliminated pursuant to the employer’s reduction in force. To rebut the presumption of discrimination, the employer showed that the company-wide rif was prompted by a projected significant decline in company sales. The employer provided statistical data to establish that between 1987 and 1992 the number of employees in Whitehall was reduced by almost fifty percent (from 4,100 to 2,450) and that in 1991 the rif resulted in termination of ninety-one employees, only fifty-four of whom were under the age of forty and sixty-eight of whom were male. Six months before plaintiff’s discharge, the employer hired Andrea Achterhoff as human resources manager of a different department. About that same time, the employer also effected a transfer of Jeff Billingsley to the training section of plaintiff’s department. Billingsley was specifically transferred to facilitate training of a new manufacturing concept, a job he had been performing for the previous two years in another department. Boczkaja completed plaintiffs termination evaluation on November 22, 1991. Her supervisor, Malady, accepted the evaluation, which indicated that plaintiff should be rehired should a nonsupervisory, administrative position become available. Meanwhile, upon discharge, plaintiffs duties were distributed among other departmental employees. Roughly two months later, on January 7, 1992, plaintiff filed a complaint against the employer and her supervisor, alleging wrongful discharge, or breach of a “just-cause” employment contract, and age and gender discrimination in violation of Michigan’s Civil Rights Act, MCL 37.2202; MSA 3.548(202). B Plaintiff’s breach of contract claim was premised on two theories. First, plaintiff asserted that she legitimately expected that her employment would not be terminated except for just cause, given certain employee handbook provisions and verbal assertions. Second, plaintiff further claimed that in 1979 she told Ozar that she was considering resigning, in response to which he assured plaintiff that her employment was not only secure, but subject to further advancement. With respect to the legitimate-expectation claim, at the time she was hired in 1973, plaintiff received an employee handbook that set forth all the employer’s employment policies and procedures. Specifically the handbook provided: The contents of this booklet are not intended to establish, and should not be interpreted to constitute any contract between the Misco Whitehall Division, Product Support Operations, Reactive Metal Operations or the Technical Center of Howmet Turbine Components Corporation and any employee, or group of employees. For over twenty years we have concentrated on the production of the finest investment castings, with the development of policies and principles which aim at the attainment of pride in every day’s work for every employee, plus the satisfaction of finding opportunities for individual growth and security. [Emphasis added.] Regarding employment status, the handbook stated that a probationary period existed during which both employer and employee could evaluate whether to continue the employment relationship. That same section also included the following statement: No employee will be terminated without proper cause or reason and not until management has made a careful review of the facts. In 1981, the employer added the following disclaimer to the handbook: “[T]he Company reserves the right to terminate employees without assigning cause; therefore, the employee serves at the will of the employer.” Generally, only new employees received direct notification of this disclaimer, which was affixed to handbooks distributed to new employees. Plaintiffs job duties, however, included supervising employees who actually placed such notices in the new handbooks. When she noticed the policy, plaintiff claims she asked a co-worker if it applied to her and was told it only applied to new employees. c Pursuant to MCR 2.116(C)(10), both defendants moved for summary disposition, which the circuit court granted with respect to all counts. The Court of Appeals partially reversed and remanded. 209 Mich App 179; 530 NW2d 135 (1995). This Court granted leave to appeal, and issued a divided opinion in which the majority affirmed the decision of the Court of Appeals, finding that plaintiff reasonably could have had a legitimate expectation of just-cause employment. The majority reversed the Court of Appeals, however, by finding that plaintiff failed to present evidence demonstrating the existence of bad faith on behalf of defendant-employer in employer’s decision to conduct an RIF. The majority further affirmed the Court of Appeals holding that plaintiff raised a genuine issue of fact with respect to whether the defendant-employer discriminated against her on the basis of her age and gender. 456 Mich 1; 566 NW2d 582 (1997). We granted the reconsideration motions filed by both parties to again consider the issues presented in this case. 456 Mich 1202 (1997). n Plaintiff claimed she was wrongfully discharged because her employment could only be terminated for just cause. Generally, and under Michigan law by presumption, employment relationships are terminable at the will of either party. Lynas v Maxwell Farms, 279 Mich 684, 687; 273 NW 315 (1937). However, the presumption of employment at will can be rebutted so that contractual obligations and limitations are imposed on an employer’s right to terminate employment. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980). See also Edwards v Whirlpool Corp, 678 F Supp 1284, 1291 (WD Mich, 1987). The presumption of employment at will is overcome with proof of either a contract provision for a def