Harassment Cases

HECKMANN v DETROIT CHIEF OF POLICE Docket No. 260115. Submitted June 14,2005, at Detroit. Decided July 26, 2005, at 9:05 a.m. Eric C. Heckmann brought an action in the Wayne Circuit Court against the Detroit Chief of Police and others, alleging a violation of the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., and intentional infliction of emotional distress relating to his treatment as an employee of the police department after he sent a letter to the police chief and the mayor of Detroit detailing allegations of financial mismanagement in the police department. The court, John H. Gillis, Jr., J., granted summary disposition for the defendants, ruling that the WPA claim is precluded because the plaintiff failed to exhaust administrative remedies available through grievance procedures provided under a collective bargaining agreement, and that the plaintiff failed to establish the existence of a genuine issue of material fact concerning outrageous and extreme conduct to avoid summary dismissal of the claim of intentional infliction of emotional distress. The plaintiff appealed. The Court of Appeals held-. 1. The circuit court erred by ruling that the plaintiff must have exhausted his administrative remedies, that is, by the filing of a union grievance, before he could invoke his rights under the WPA. The plaintiffs administrative remedies are separate and distinct from his rights and remedies under the WPA. To apply the doctrine of exhaustion of remedies to the WPA claim would frustrate the purpose of the act, particularly when the act provides that relief must be sought within ninety days after the occurrence of the alleged violation of the act. That span obviates the possibility of the exhaustion of administrative remedies. 2. The circuit court erred as a matter of law by ruling that the plaintiff must show that he was fired, demoted, or transferred in order to state a viable WPA claim. The allegation that a supervisor told the plaintiff to start looking for a job elsewhere if he kept “making waves” and wasting the supervisor’s time, and evidence supporting that allegation, support the inference that the supervisor-defendant threatened the plaintiff with discharge in retaliation for his letter. MCL 15.362 provides that an employer shall not threaten or otherwise discriminate against an employee for protected activities. Material questions of fact exist regarding whether the comment was made by the supervisor, whether it was a threat of discharge, and whether it was causally related to the plaintiffs letter. Summary disposition was inappropriate. 3. Ostracism or social isolation is not the sort of conduct that rises to the level of an adverse employment action barred by the WPA. In this case, the plaintiff communicated regularly with his supervisor and maintained working relationships with his supervisor and coworkers. These negate the allegation related to ostracism and social isolation. 4. To the extent that the WPA requires that a whistleblower report to a public body other than the whistleblower’s employer, the plaintiff satisfied the requirement by sending a copy of his letter to the mayor. 5. The circuit court properly dismissed the claim for the intentional infliction of emotional distress. Reasonable minds could not differ and would conclude that the defendants’ alleged conduct that formed the basis of the plaintiffs claim was not outrageous. Affirmed in part, reversed in part, order of summary disposition for the defendants vacated, and case remanded for further proceedings. 1. Master and Servant — Whistleblowers’ Protection Act — Exhaustion of Administrative Remedies. The Whistleblowers’ Protection Act does not require that administrative remedies be exhausted before relief is sought under the act (MCL 15.361 et seq.). 2. Master and Servant — Whistleblowers’ Protection Act — Protected Activities — Adverse Employment Actions. A threat of discharge from employment following an employee’s report of a violation or suspected violation of law may support a claim by the employee that the employer threatened the employee in violation of the Whistleblowers’ Protection Act (MCL 15.362). 3. Master and Servant — Whistleblowers’ Protection Act — Protected Activities — Ostracism — Social Isolation. Ostracism and social isolation are not the sorts of conduct that rise to the level of an adverse employment action barred by the Whistleblowers’ Protection Act (MCL 15.362). 4. Master and Servant — Whistleblowers’ Protection Act — Public Body. The Whistleblowers’ Protection Act requires that a whistleblower report to a public body; where an employee of a city’s police department sends a report to the city’s mayor, the requirement of reporting to a public body is satisfied (MCL 15.361 et seq.). Stefani & Stefani, P.C. (by Michael L. Stefani and Frankie J. Rivers), for the plaintiff. Andrew R. Jarvis, Senior Assistant Corporation Counsel, for the defendants. Before: SAWYER, P.J., and MARKEY and MURRAY, JJ. Per Curiam. Plaintiff Eric Heckmann is a civilian employee of the fiscal operations section (FOS) of the Detroit Police Department. On September 11,2002, plaintiff wrote a five-page letter to the then newly appointed chief of police detailing allegations of gross mismanagement and fraud within the department, including the hiring of unnecessary employees who performed no meaningfiil work, misuse of overtime, falsification of time records, misuse of government properly, and premature payments of invoices. Plaintiff claims that as a result of this letter, defendants threatened or otherwise discriminated against him in violation of the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq. Plaintiff sued and also alleged in a second count that defendants intentionally inflicted emotional distress. The trial court granted defendants’ motion for summary disposition, and plaintiff appeals by right. Because we find that plaintiff pleaded and factually supported some of his WPA claims, we reverse in part, affirm in part, and remand for further proceedings in the trial court. I. SUMMARY OF FACTS AND PROCEEDINGS Plaintiff is a longtime city of Detroit employee who has worked for the city’s police department since 1992. In 2002, plaintiff was a principal accountant in the department’s FOS. Plaintiff claims that in August 2002, he sent a memorandum to Deputy Chief Brenda Goss Andrews, supervisor of the department’s management services bureau, requesting a meeting to discuss his observations of financial misconduct within the FOS. Upon receiving no response from Andrews, plaintiff sent his September 2002 letter to newly appointed chief of police, Jerry Oliver. Plaintiff also forwarded a copy of the letter to Detroit Mayor Kwame Kilpatrick and to the president of the Association of Professional and Technical Employees, a union in which plaintiff was a member. Plaintiff acknowledged that beginning in January 2003 the union had initiated approximately five grievance procedures on his behalf. Plaintiff asserts that he did not receive a response to his September 2002 letter until being called to a meeting in Andrews’s office on April 8, 2003. Defendants Marlene Hobbs and Hasumati Patel, the manager of the FOS also attended. After Patel’s appointment in January 2003, plaintiff initiated the first of his grievances, which alleged that Patel had been appointed to her position contrary to the union contract and the city’s own rules regarding promotional opportunities. Plaintiff also had criticized Hobbs in his September 2002 letter, but Hobbs was promoted in April 2003 to the position of head governmental analyst in charge of the accounts payable unit of the FOS. Plaintiff claims that, during the April meeting, Andrews discussed his September 2002 letter and that Andrews told plaintiff that he should “start looking for a job elsewhere” if he kept “making waves” and forcing Andrews to waste her time. Plaintiff asserts that Andrews’s comment to him at the April meeting was a “threat” within the meaning of MCL 15.362. Plaintiff further alleges that after the April meeting, defendants “otherwise discriminated” against him by reducing his duties and socially isolating him. With respect to the former claim, plaintiff testified that Patel authored a memorandum on April 10, 2003, outlining the respective work assignments of various FOS personnel. According to plaintiff, although others were assigned ten or more duties, he was assigned only four. Plaintiff acknowledged, however, that his four assigned responsibilities entailed accounting for approximately $65 million to $80 million. Regarding social isolation, plaintiff testified that his supervisors would ignore him but make a point of saying hello to every other person in the office. But plaintiff acknowledged that he had a working relationship with Patel, with whom he communicated regularly by e-mail. Plaintiff also admitted that no acrimony existed between him and his coworkers, with whom he also maintained a working relationship. In moving for summary disposition, defendants argued that plaintiff’s September 2002 letter was not a “report” within the meaning of the WPA because it was not made to an outside agency; rather, it was merely an intra-agency complaint sent up the normal chain of command. Defendants also argued that plaintiff had not suffered an adverse employment, action because he had not been fired, demoted, or transferred to a different job; plaintiff retained the same job classification he had held, albeit with some altered job assignments. Defendants further noted that although plaintiff was a union member, he had not initiated a grievance regarding his WPA claims. In opposing defendants’ motion for summary disposition, plaintiff alleged that he was passed over for promotion in January 2003 when the position of supervisor was filled without being posted or through other normal procedures. Plaintiff also pointed to his claim that in April 2003 Andrews told him to start looking for another job if he continued to “make waves.” Plaintiff also argued that his duties had been significantly reduced and that being ignored had created hostility. In granting defendants summary disposition, the trial court stated: Okay, in this case the Plaintiff is a member of a union and subject to a collective bargaining agreement and has not exhausted his administrative remedies. Secondly, he was not fired. He was not demoted. He was not transferred. Because he didn’t get a promotion is not the basis for [a] cause of action. The motion is granted on all counts. On appeal, plaintiff challenges the trial court’s ruling that dismissal of the WPA claim was proper because plaintiff had not suffered an adverse employment action for the purposes of the act and had failed to exhaust union remedies, and that, in fact, he should have received summary disposition on that claim because he established without rebuttal a prima facie case. Plaintiff further asserts that he established the existence of a genuine issue of material fact concerning whether he had suffered outrageous and extreme conduct for the purposes of his emotional distress claim. Plaintiff additionally argues that defendants were not entitled to summary disposition because they failed to comply with the rules of discovery. II. STANDARD OF REVIEW We review de novo a trial court’s decision on a motion for summary disposition. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). A motion for summary disposition brought under MCR 2.116(C)(10) tests the factual sufficiency of a complaint and must be supported by affidavits, depositions, admissions, or other documentary evidence. MCR 2.116(G)(3)(b); Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). The trial court and this Court must view the substantively admissible evidence submitted at the time of the motion in the light most favorable to the party opposing the motion. Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817 (1999). “Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West, supra at 183. We also review de novo questions of law, including statutory construction. Anzaldua v Band, 457 Mich 530; 578 NW2d 306 (1998). III. WPA ANALYSIS A. EXHAUSTION OF ADMINISTRATIVE REMEDIES We first hold that the trial court erred as a matter of law by applying the doctrine of exhaustion of administrative remedies to plaintiffs statutory WPA claim. Plaintiffs administrative remedies are separate and distinct from his rights and remedies under the WPA. To apply the doctrine of exhaustion of administrative remedies would frustrate the purpose of the statute, particularly when the statute provides that relief must be sought “within 90 days after the occurrence of the alleged violation of [the] act” or be lost. MCL 15.363(1). We are guided by the following principles of statutory construction set forth by our Supreme Court in Shallal v Catholic Social Services of Wayne Co, 455 Mich 604, 611; 566 NW2d 571 (1997): The cardinal rule of all statutory construction is to identify and give effect to the intent of the Legislature. The first step in discerning intent is to examine the language of the statute in question. We read the language according to its ordinary and generally accepted meaning. Judicial construction is authorized only where it lends itself to more than one interpretation. We also consider that remedial statutes, such as the Whistleblowers’ Protection Act, are to be liberally construed, favoring the persons the Legislature intended to benefit. [Citations omitted.] Nowhere in the statute has the Legislature either expressly or impliedly limited its protection to whistle-blowers who have exhausted other possible remedies, whether those possible remedies are statutory, contractual, or administrative. Indeed, when the WPA duplicates possible common-law remedies, the statute provides the exclusive remedy. Dudewicz v Norris Schmid, Inc, 443 Mich 68, 78-79; 503 NW2d 645 (1993). The purpose of the statute is “to alleviate . . . the inability to combat corruption or criminally irresponsible behavior in the conduct of government or large businesses,” id. at 75, by removing the barrier of fear of retribution that prevents employees in the best position to report corruption from reporting it, Shallal, supra at 612. We thus further the purpose of the WPA of protecting whistleblowers by not reading into the statute limitations the Legislature did not express. Our reading of the statute is also consistent with prior case law applying the WPA and comparable employment discrimination statutes. See, e.g., Shallal, supra at 617, quoting Rouse v Farmers State Bank of Jewell, Iowa, 866 F Supp 1191, 1204 (ND Iowa, 1994) (“ ‘ [W]histleblower statute[s] [are] analogous to antiretaliation provisions of other employment discrimination statutes and . . . the policies underlying these similar statutes warrant parallel treatment. . . .’ ”)• See also Roulston v Tendercare (Michigan), Inc, 239 Mich App 270, 280; 608 NW2d 525 (2000) (the WPA bears substantial similarities to Michigan’s civil rights statutes). This Court first addressed the WPA in Hopkins v Midland, 158 Mich App 361; 404 NW2d 744 (1987). At issue in Hopkins was whether a union grievance resulting in an arbitration decision in favor of the employer barred the plaintiffs subsequent WPA action. The Court held “that [the] plaintiffs failure to submit [his WPA] claims to arbitration does not act as res judicata or collateral estoppel....” Id. at 366. The Hopkins Court reasoned that the rights and remedies accorded by the WPA are different from those of a collective bargaining agreement, noting that “the act creates rights belonging to individual employees, not collectively represented groups.” Id. at 374-375. Consequently, “the arbitration proceeding [in Hopkins] was brought by [the] plaintiffs union, as is the usual case, to assert rights created under a collective bargaining agreement.” Id. at 375. But, “a civil action may be required to achieve the act’s goals.” Id. This Court reviewed Hopkins when faced with the question whether a whistleblower who reports a violation of the Michigan Occupational Safety and Health Act (MIOSHA), MCL 408.1001 et seq., must bring the retaliation claim under MIOSHA. Tyrna v Adamo, Inc, 159 Mich App 592, 600; 407 NW2d 47 (1987). The Tyrna Court determined that the whistleblower did not have to do so and held “that an employee who reports a public health or safety violation to appropriate local authorities may maintain an action under the whistle-blowers’ act notwithstanding the fact that the employer’s wrongful conduct also violates MIOSHA.” Id. at 594. Although MIOSHA provides its own antiretaliation provision, the Tyrna panel reasoned that the WPA had broader application and provided a wider panoply of legal and injunctive remedies. Tyrna, supra at 598-600. Because the Court found no conflict between MIOSHA and the WPA, the Court held that, without further legislative direction, the plaintiff could pursue his claim under either statute. Tyrna, supra at 600-601. This Court applied similar reasoning in concluding that a settlement of a union grievance filed on behalf of a discharged employee did not bar an action alleging wrongful termination under the Persons With Disabilities Civil Rights Act (formerly the Handicappers’ Civil Rights Act), MCL 37.1101 et seq., and the Civil Rights Act (CRA), MCL 37.2101 et seq. Florence v Dep’t of Social Services, 215 Mich App 211, 216-217; 544 NW2d 723 (1996). The Court observed that a union has a duty to speak for its members with respect to the terms of a collective bargaining agreement, but a union does not have a similar duty to uphold rights its members possess independently of the collective bargaining agreement. Id. at 214. The Court held that because the employee’s contractual rights and statutory rights were distinctly separate, the employee had a right to proceed on her statutory claims regardless of the agreement that her union reached with respect to the contractual grievance. Id. at 214-216. In sum, we hold that the trial court erred by ruling that plaintiff must have exhausted his administrative remedies, that is, by the filing of a union grievance, before he could invoke his statutory WPA rights. Our conclusion is consistent with the WPA’s requirement that claims be brought promptly or not at all, with the statute’s lack of any express or implied requirement for exhaustion of administrative remedies, and with a construction of the WPA “favoring the persons the Legislature intended to benefit.” Shallal, supra at 611. B. ADVERSE EMPLOYMENT ACTION We also hold that the trial court erred as a matter of law by implicitly ruling that plaintiff must show that he was fired, demoted, or transferred in order to state a viable WPA claim and that other bases, such as not getting a promotion or being threatened with employment action including discharge, were not sufficient. Plaintiff alleged, and supported by his deposition testimony, that Andrews referenced his September 2002 letter to the chief of police and told him to start looking for a job elsewhere if he kept “making waves” and wasting Andrews’s time. Viewed in the light most favorable to plaintiff, this allegation and evidence support inferences that defendant Andrews threatened plaintiff with discharge in retaliation for his September letter. MCL 15.362 provides: An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employ

McCLEMENTS v FORD MOTOR COMPANY Docket No. 126276. Argued April 13, 2005 (Calendar No. 9). Decided July 26, 2005. Amended and rehearing denied 474 Mich 1201. Milissa McClements brought an action in the Oakland Circuit Court against Ford Motor Company and Daniel E Bennett, a supervisor employed by Ford, alleging violations of the Civil Rights Act (CRA), MCL 37.2101 et seq., specifically that she was exposed to a sexually hostile work environment as a result of actions by Bennett. The plaintiff, an employee of a company that operates cafeterias at a Ford plant, also alleged that Ford was negligent in retaining Bennett as an employee. The court, Wendy Eotts, J., granted summary disposition in favor of the defendants. The plaintiff appealed, and the Court of Appeals, Boerello, EJ., and White and Smolensk, JJ., reversed the trial court’s dismissal of the common-law negligent retention claim and affirmed with regard to the remaining claims. Unpublished opinion per curiam, issued April 22, 2004 (Docket No. 243764). The Supreme Court granted Ford’s application for leave to appeal and the plaintiffs application for leave to file a cross-appeal. 471 Mich 937 (2004). In an opinion by Justice Markman, joined by Chief Justice Taylor, and Justices Corrigan and Young, the Supreme Court held,-. A common-law claim for negligent retention cannot be premised on workplace sexual harassment. Further, the plaintiff has failed to establish a genuine issue of material fact that Ford affected or controlled the terms, conditions, or privileges of her employment and, therefore, she cannot bring a claim against Ford under the CRA. The part of the Court of Appeals judgment that holds that the plaintiff has failed to establish a claim under the CRA against Ford must be affirmed, the part of the Court of Appeals judgment that holds that the plaintiff has an actionable claim for negligent retention must be reversed, and the circuit court’s order of judgment in favor of Ford must be reinstated. 1. The CRA provides the right to be free from workplace sexual harassment and accords an aggrieved worker the remedy of a civil action for appropriate injunctive relief, damages, or both. The plaintiffs protections against workplace sexual harassment are wholly creatures of statute and, therefore, the plaintiff’s remedy is limited to those provided by the CEA. Accordingly, there is no common-law claim for negligent retention in the context of workplace sexual harassment. 2. A worker can only bring an action under the CEA for discriminatory acts, including sexual harassment, against a non-employer defendant if the worker can establish that the nonemployer affected or controlled the terms, conditions, or privileges of the worker’s employment. In this case, however, the plaintiff failed to establish that Ford affected or controlled the terms, conditions, or privileges of her employment by the company that operated the cafeterias at Ford’s plant. Justice Weaver, concurring in part and dissenting in part, agreed that a worker may bring a claim against a nonemployer defendant under the Civil Eights Act if the worker can establish that the nonemployer defendant affected or controlled a term, condition, or privilege of the worker’s employment. Justice Weaver dissented from the majority’s conclusion that the plaintiff failed to present a genuine issue of material fact regarding that question, however, believing that statements made to the plaintiff raise a question whether the defendant had the ability to affect or control a term, condition, or privilege of the plaintiffs employment. The parties should be allowed to present evidence on the issue, and the question should go to the jury. Justice Weaver also dissented from the majority’s conclusion that the plaintiff may not pursue a common-law claim for negligent retention. The plaintiffs claim is not premised solely on the statutorily based tort of sexual harassment, but implicates other torts such as assault and battery. The plaintiff should have the opportunity to establish her negligent retention claim. Affirmed in part and reversed in part; circuit court order of judgment for Ford reinstated. Justice Cavanagh, joined by Justice Kelly, dissenting, stated there is ample evidence for a jury to decide whether the defendant had adequate notice of Bennett’s sexual harassment and assault of women, including information and reports provided by other women who were the defendant’s employees. The jury should be allowed to determine whether the defendant adequately investigated these claims and took appropriate remedial action. With regard to the plaintiffs claim under the Civil Eights Act for sex discrimination in the form of sexual harassment, Bennett allegedly affected a condition of the plaintiffs employment by creating a sexually hostile work environment at the plaintiffs workplace and the defendant was the only one that had the authority to control Bennett, who was the defendant’s employee. The plaintiff can also bring a claim for negligent retention. The Civil Rights Act did not abolish this claim. Bennett’s behavior allegedly was assaultive in addition to being sexual harassment. The jury should be allowed to determine whether the defendant acted reasonably in retaining Bennett. The decision of the Court of Appeals should be reversed in part and affirmed in part, and the plaintiff should be allowed to proceed on her claim for negligent retention and her claim under the Civil Rights Act. 1. Civil Rights - Civil Rights Act — Sexual Harassment. , The Civil Rights Act provides the sole remedy for alleged acts of sexual harassment in the workplace; there is no common-law claim for an employer’s negligent retention of an offending employee in the context of workplace harassment (MCL 37.2101 et seq.). 2. Civil Rights — Civil Rights Act — Actions — Nonemployer Defendants. An employer’s liability for discrimination under the Civil Rights Act does not require an employment relationship with a plaintiff worker; a worker is entitled to bring an action against a nonemployer defendant if the worker can establish that the defendant affected or controlled a term, condition, or privilege of the worker’s employment (MCL 37.2202). Scheff & Washington, PC. (by George B. Washington and Miranda K.S. Massie), for the plaintiff. Kienbaum Opperwall Hardy & Pelton, P.L.C. (by Elizabeth Hardy and Julia Turner Baumhart) (.Patricia J. Boyle, of counsel), for Ford Motor Company. MARKMAN, J. We granted leave to appeal in this case to resolve two questions: (1) whether a common-law claim of negligent retention can be premised on sexual harassment in light of the remedies provided by the Civil Rights Act (CRA), MCL 37.2101 et seq.; and (2) whether an employer can be held liable under the CRA for sexual harassment against a nonemployee. The trial court granted summary disposition to defendant on both issues, ruling that there was insufficient notice to Ford to support the negligent retention theory, and that plaintiff could not pursue a claim under the CRA without demonstrating at least a “quasi-employment” relationship. The Court of Appeals affirmed with respect to the CRA claim, but reversed with respect to plaintiffs negligent retention claim. We hold that: (1) a common-law claim for negligent retention cannot be premised upon workplace sexual harassment; and (2) because plaintiff has failed to establish a genuine issue of material fact that defendant affected or controlled a term, condition, or privilege of her employment, she cannot bring a claim against defendant under the CRA. Accordingly, we affirm in part and reverse in part the judgment of the Court of Appeals, and reinstate the. trial court’s order of summary disposition in favor of defendant. I. FACTS AND PROCEDURAL HISTORY Defendant Ford Motor Company hired AVI Food Systems to operate three cafeterias at its Wixom assembly plant. Plaintiff Milissa McClements was hired by AVI as a cashier at the Wixom plant in March 1998. Plaintiff testified that Daniel Bennett, then a superintendent in the predelivery department of the plant, had in November 1998 invited her on “three or four” occasions to meet him at a local fast food restaurant. On each occasion, plaintiff rebuffed his invitation. According to plaintiff, Bennett “seemed very persistent, like he didn’t understand that I wasn’t interested.” Plaintiff acknowledged that, at this point, Bennett was polite, and there was no testimony that he used sexual or foul language. Bennett denies making any such invitations. Plaintiff described two additional encounters with Bennett that occurred during this same time period. During the first of these encounters, Bennett allegedly entered the cafeteria while it was closed, and approached plaintiff from behind. Plaintiff testified that “I was facing the opposite way. He came up and just grabbed me and turned me around and stuck his tongue in my mouth.” After “a few days,” plaintiff allegedly had a second encounter with Bennett in the closed cafeteria. According to plaintiff, Bennett again grabbed her from behind, attempted to stick his tongue in her mouth, and stated, “Come on, I know you want it. Isn’t there somewhere we can go and have sex?” Plaintiff refused this advance, and Bennett left the cafeteria. Plaintiff allegedly reported the incidents to her union steward, but claims that she was advised that if she reported the incident to defendant, it would “turn around and stab you in the back and you [would] end up losing your job.” Plaintiff did not report the incident to either defendant or AVI until the instant lawsuit was filed. In 2000, plaintiff was approached by another Ford employee, Justine Maldonado, who claimed that she had also been sexually harassed by Bennett. Specifically, Maldonado claimed that in January or February 1998, Bennett exposed himself to her and demanded oral sex in the parking lot of the Wixom plant. Bennett also allegedly followed Maldonado in his car, got out after she had stopped at a floral shop, and reached into her car and tugged on her blouse. In late-October 1998, Maldonado told Joe Howard, her uncle and a production manager at Wixom, about the incidents. During “the last couple days” in October, Maldonado told David Ferris, a former Ford superintendent who was on temporary assignment to her union, about the incidents. Maldonado testified that she spoke with Ferris just before undergoing knee surgery on November 2, 1998. Ferris testified that “two or three days” later, he confronted Bennett about Maldonado’s accusations. The next day, Ferris informed Jerome Rush, Wixom’s director of labor relations, about the alleged incidents of sexual harassment. Ferris testified that the conversation lasted a minute “at the most.” Rush allegedly told Ferris that he “need not be involved in these types of issues” and took no further action. Even after learning of the Maldonado incidents, plaintiff did not come forward with her allegations. However, plaintiffs attitude changed after Maldonado informed her in August 2001 that Bennett had exposed himself to three teenage girls. In 1995, Bennett was convicted of misdemeanor indecent exposure, for exposing himself to three teenage girls on 1-275 while he was driving a company car. Defendant was aware of the incident, because the police determined Bennett’s identity by tracing the car through Ford. After learning about the indecent exposure arrest and conviction, plaintiff filed the instant lawsuit in September 2001. Plaintiff claimed that defendant: (1) negligently retained Bennett, whom it knew had a propensity to sexually harass women; and (2) breached its obligation under the CRA to prevent Bennett from sexually harassing her. The trial court granted defendant’s motion for summary disposition. First, the trial court found that there was no evidence that defendant knew of Bennett’s propensity to sexually harass women in the workplace. Maldonado’s complaints to her uncle and friend were not sufficient to give defendant notice of Bennett’s sexually harassing behavior and the 1995 conviction alone is insufficient to establish that propensity. Thus, defendant could not be held liable under the negligent retention theory. Second, the trial court found that plaintiff as a nonemployee could not hold defendant liable under the CRA. However, even if defendant were potentially liable under the CRA, it could not be held liable under these circumstances, because its higher management was never made aware of the allegedly sexually harassing behavior. In an unpublished opinion, the Court of Appeals affirmed in part and reversed in part the judgment of the trial court. Unpublished opinion per curiam of the Court of Appeals, issued April 22, 2004 (Docket No. 243764). The Court of Appeals held that defendant’s knowledge of the indecent exposure arrest and Maldonado’s allegations created a genuine issue of material fact whether defendant “knew or should have known of Bennett’s sexually derogatory behavior toward female employees.” However, the Court of Appeals also applied the “economic reality test,” Ashker v Ford Motor Co, 245 Mich App 9, 14; 627 NW2d 1 (2001), and held that defendant was not plaintiffs employer. As a result, the Court of Appeals concluded that plaintiff could not maintain a CRA complaint against an entity that is not her employer. This Court granted defendant’s application for leave to appeal, as well as plaintiffs application for leave to file a cross-appeal. 471 Mich 937 (2004). II. STANDARD OF REVIEW We review de novo the grant or denial of a motion for summary disposition. Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004). A motion under MCR 2.116(C)(10) tests the factual support of a plaintiffs claim. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Summary disposition is only permitted if the evidence, while viewed in a light most favorable to the plaintiff, fails to establish a claim as a matter of law. Wilkinson v Lee, 463 Mich 388, 391; 617 NW2d 305 (2000). We review de novo the questions whether the CRA displaces a common-law claim for negligent retention based upon sexual harassment in the workplace and whether an employer can be held liable under the CRA for sexual harassment against a nonemployee because they are questions of law. Morales v Auto-Owners Ins Co (After Remand), 469 Mich 487, 490; 672 NW2d 849 (2003). III. ANALYSIS The issue in this case is not whether Bennett has engaged in reprehensible conduct either inside or outside the workplace. Rather, the issues are: (1) whether defendant negligently retained Bennett as a supervisor as of the time Bennett allegedly sexually harassed plaintiff, despite the fact that it knew or should have known of his propensity to sexually harass women; and (2) whether defendant is responsible under the CRA for failing to prevent sexual harassment of plaintiff even though plaintiff was not a direct employee of defendant. A. NEGLIGENT RETENTION CLAIM Plaintiffs first theory is that defendant negligently retained Bennett as a supervisor aftef learning of his propensity to sexually harass women. In general, an employer is not responsible for an intentional tort in the workplace committed by its employee acting outside the scope of employment. Martin v Jones, 302 Mich 355, 358; 4 NW2d 686 (1942). However, this Court has previously recognized an exception to this general rule of liability when the employer “ ‘knew or should have known of his employee’s propensities and criminal record before commission of an intentional tort by [that] employee ....’” Hersh v Kentfield Builders, Inc, 385 Mich 410, 412; 189 NW2d 286 (1971) (citation omitted). Plaintiff argues that defendant knew of Bennett’s “propensity” to engage in sexually harassing behavior because of: (1) Bennett’s 1995 indecent exposure conviction; and (2) Maldonado’s complaints to defendant’s supervisor (Howard) and labor relations representative (Rush) concerning Bennett’s harassment. Plaintiff concludes that defendant breached its duty of reasonable care by retaining Bennett despite its knowledge of his previous actions. The Court of Appeals held that whether defendant “knew or should have known” of Bennett’s propensities was a question of fact for the jury. However, in those cases in which we have held that an employer can be held liable on the basis of its knowledge of an employee’s propensities, the underlying conduct comprised the common-law tort of assault. See Hersh, supra at 412; Bradley v Stevens, 329 Mich 556, 563; 46 NW2d 382 (1951). In the instant case, however, the entire premise for plaintiffs negligent retention claim is the statutorily based tort of sexual harassment. Before passage of the CRA, Michigan did not provide a common-law remedy for workplace discrimination. Pompey v Gen Motors Corp, 385 Mich 537, 552; 189 NW2d 243 (1971). Plaintiffs protections against being sexually harassed in the workplace are wholly creatures of statute. “ ‘Where a statute gives new rights and prescribes new remedies, such remedies must be strictly pursued; and a party seeking a remedy under the act is confined to the remedy conferred thereby and to that only.’ ” Monroe Beverage Co, Inc v Stroh Brewery Co, 454 Mich 41, 45; 559 NW2d 297 (1997), quoting Lafayette Transfer & Storage Co v Pub Utilities Comm, 287 Mich 488, 491; 283 NW 659 (1939). Here, the CRA provides the right to be free from sexual harassment, MCL 37.2103(i), and accords an aggrieved worker the remedy of “a civil action for appropriate injunctive relief or damages, or both.” MCL 37.2801(1). Plaintiffs remedy, then, for any act of sexual harassment is limited to those provided by the CRA. Accordingly, there is no common-law claim for negligent retention in the context of workplace sexual harassment. Plaintiff invokes MCL 37.2803, which states that the CRA “shall not be construed to diminish the right of a person to direct or immediate legal or equitable remedies in the courts of this state.” However, contrary to the dissent’s theory, post at 397, this statutory language does not allow a worker to bring a CRA claim under the guise of a negligent retention claim. Rather, this provision simply allows a worker to bring suit under any legal theory that existed before the passage of the CRA. Thus, a worker would not be barred by the CRA from bringing a common-law negligent retention claim, as long as the premise for that claim is a tort that existed before passage of civil rights legislation. Therefore, because the CRA provides the exclusive remedy for a claim based on sexual harassment, plaintiff has failed to establish a claim of negligent retention, and no inquiry into whether defendant possessed sufficient notice that Bennett was engaged in sexual harassment is necessary. B. CIVIL RIGHTS ACT CLAIM Plaintiffs second theory is that defendant failed to prevent sexual harassment in the workplace. MCL 37.2202(1) states in pertinent part: An employer shall not do any of the following: (a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status. (b) Limit, segregate, or classify an employee or applicant for employment in a way that deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, height, weight, or marital status. (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. Discrimination based on sex includes sexual harassment. MCL 37.2103(i). The statute defines sexual harassment as follows: Sexual harassment m

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

ELEZOVIC v FORD MOTOR COMPANY Docket No. 125166. Argued December 8, 2004 (Calendar No. 4). Decided June 1, 2005. Lula and Joseph Elezovic brought an action in the Wayne Circuit Court against Ford Motor Company and Daniel R Bennett, seeking, under the Civil Rights Act (CRA), MCL 37.210 et seq., damages for alleged sexual harassment resulting from a hostile work environment. The plaintiffs alleged that Bennett, a supervisor at the Ford plant where Lula Elezovic (plaintiff) worked, exposed himself to the plaintiff, requested oral sex, and repeatedly engaged in other sexually offensive conduct. The court, Kathleen Macdonald, J., granted the defendants’ joint motion in limine to exclude evidence of Bennett’s prior criminal misdemeanor conviction of indecent exposure, which involved conduct that did not occur on Ford property and did not involve Ford employees. The court later granted directed verdicts in favor of the defendants. The Court of Appeals, Jansen, EJ., and Neff, J. (Kelly, J., concurring), affirmed. 259 Mich App 187 (2003). The Court of Appeals held that it was bound to follow the decision in Jager v Nationwide Truck Brokers, Inc, 252 Mich App 464 (2002), that a supervisor engaging in activity prohibited by the CRA may not be held individually liable for violating a plaintiffs civil rights. The Court stated that, were it not bound by MCR 7.215(J)(1) to follow Jager, it would reach the opposite result. The Court also found that Ford did not have sufficient notice of the alleged harassment. The plaintiff appealed. 470 Mich 892 (2004). In an opinion by Chief Justice Taylor, joined by Justices Corrigan, Young, and Markman, the Supreme Court held: An agent of an employer may be held individually liable under the CRA. Ford did not have sufficient reasonable notice of the alleged harassment. The judgment of the Court of Appeals must be reversed in part and affirmed in part, and the case must be remanded to the circuit court for further proceedings regarding Bennett. 1. The CRA defines an “employer” as a “person,” which is defined to include a corporation. The CRA also states that an “employer” includes an “agent of that person.” The Legislature, by including “agent” within the definition of “employer” did not intend to only provide vicarious liability for the agent’s employer, but also created individual liability for an employer’s agent. Bennett may be sued individually under the CRA. 2. Federal decisions construing Title VII of the federal civil rights act and holding that there is no individual liability under the federal act should not be followed because it would lead to a result contrary to the text of the CRA. The history of amendments of the CRA does not preclude a finding of individual liability on the part of an agent of an employer. 3. The fact that the plaintiff told two low-level supervisors, in confidence, that Bennett had exposed himself did not constitute reasonable notice to Ford. Letters sent to Ford by the plaintiffs psychologist and attorney mentioning “harassment” or “hostile environment” were insufficient to give Ford reasonable notice of sexual harassment, given the plaintiffs prior complaints against Bennett that were not sexual in nature. A reasonable employer would not, under the totality of the circumstances in this case, have been on notice of a substantial probability that sexual harassment was occurring. 4. The trial court did not abuse its discretion in precluding evidence of Bennett’s prior indecent exposure conviction. The conviction had been expunged before the trial in this matter and under MCL 780.623(5) the evidence was not admissible. The trial court did not err in holding that the prejudice to Ford that would result from the evidence would substantially outweigh any probative value it might have. 5. The opinion in Jager must be overruled. The part of the judgment of the Court of Appeals that affirmed the directed verdict in favor of Ford must be affirmed and the part of the judgment that affirmed the directed verdict in favor of Bennett must be reversed. The matter must be remanded to the trial court for further proceedings regarding Bennett and consistent with the Supreme Court’s opinion. Justice Cavanagh, joined by Justice Kelly, concurring in part and dissenting in part, dissented from the opinion of the majority with regard to the issues whether the CRA provides for individual liability against an agent of an employer and whether sufficient evidence was presented to allow the jury to decide whether Ford had notice of the alleged sexual harassment. The CRA does not provide for individual liability against an agent of an employer, and the plaintiff provided sufficient evidence to allow the jury to decide the notice issue. The majority reached the correct result in this case when it determined that the trial court did not abuse its discretion by excluding evidence of the alleged sexual harasser’s expunged indecent exposure conviction. Justice Weaver, concurring in part and dissenting in part, concurred in the majority’s conclusions that the trial court’s ruling on the defendants’ motion in limine was not an abuse of discretion and that the trial court’s decision to exclude the evidence of Bennett’s expunged conviction should be affirmed. She dissents, however, from the majority’s conclusion that the CBA provides for individual liability against an agent of an employer and from its conclusion that Ford was entitled to a directed verdict because the plaintiff failed to establish that Ford had notice of the sexual harassment. The Legislature included the word “agent” in the definition of “employer” to denote respondeat superior liability, not individual liability. The conclusion of the Cotut of Appeals that there is no individual liability under the act should be affirmed. The opinion in Jager v Nationwide Truck Brokers, Inc, should not be overruled. Considering all the evidence and the reasonable inferences that may be drawn from it, there are factual questions about which reasonable jurors could differ regarding whether Ford had notice of the sexual harassment. Therefore, the directed verdict in favor of Ford with regard to the question of notice should be reversed. Affirmed in part, reversed in part, and remanded. Civil Rights — Workplace Sexual Harassment — Supervisors. An agent of an employer may be held individually hable under the Civil Rights Act for sexually harassing an employee in the workplace (MCL 37.2101 et seq.). Mark Granzotto, EC. (by Mark Granzotto), and Edwards & Jennings, EC. (by Alice B. Jennings), for the plaintiff. Kienbaum Opperwall Hardy & Eelton, P.L.C. (by Elizabeth Hardy and Julia Turner Baumhart) {Patricia J. Boyle, of counsel), for the defendants. Amici Curiae: . Scheff & Washington, EC. (by George B. Washington and Miranda K.S. Massie), for Justine Maldonado, Milissa McClements, and Pamela Perez. Carol Hogan for Michigan Conference of the National Organization for Women. TAYLOR, C.J. At issue in this case is (1) whether the Michigan Civil Rights Act (CRA) provides a cause of action against an individual agent of an employer and (2) whether plaintiffs employer, Ford Motor Company, was entitled to a directed verdict in plaintiffs sexual harassment lawsuit against it. We hold that an agent may be individually sued under § 37.2202(1) (a) of the CRA. Thus, we overrule Jager v Nationwide Truck Brokers, Inc, 252 Mich App 464, 485; 652 NW2d 503 (2002), because it held to the contrary, and reverse the Court of Appeals judgment in favor of Daniel Bennett that followed Jager. We also hold, consistently with the lower courts, that Ford was entitled to a directed verdict. Thus, we affirm the trial court and Court of Appeals judgments in favor of Ford. I. FACTS AND PROCEEDINGS BELOW Plaintiff filed a lawsuit in November 1999 pursuant to the CRA against Ford Motor Company and Daniel Bennett, a supervisor at Ford’s Wixom assembly plant where she worked. As relevant here, her claim was that she had been sexually harassed as a result of a hostile work environment. The CRA allows such a lawsuit against an employer. Plaintiffs lawsuit named Bennett as an individual defendant consistently with the then-controlling case of Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785; 369 NW2d 223 (1985), which held that individual supervisors could be liable under the CRA. Regarding the specifics in her complaint, plaintiff alleged that, while she was on the job in the summer of 1995, Bennett exposed himself to her while masturbating and requested she perform oral sex. Further, she claimed that after that he repeatedly continued to harass her by grabbing, rubbing, and touching his groin and licking his lips and making sexually related comments. Before trial, defendants filed a joint motion in limine to exclude from evidence an unrelated, prior criminal misdemeanor conviction of Bennett for indecent exposure. Defendants pointed out that the incident did not occur on Ford property and involved non-Ford employees. Plaintiff, however, argued that the indecent exposure conviction was evidence of a scheme or plan Bennett had of exposing himself to women and that it provided notice to Ford that Bennett engaged in inappropriate sexual acts. The trial court ruled that the indecent exposure conviction was inadmissible with regard to Bennett under MRE 404(b)(1) because it was not offered for any purpose other than to show that he had a propensity to expose himself. The court also held it was inadmissible with regard to Ford pursuant to MRE 403 because any probative value would be substantially outweighed by the danger of unfair prejudice. The case was tried before a jury for three weeks. Plaintiff testified consistently with the allegations in her complaint against Bennett. While it was uncontested that she had not filed a formal written complaint of sexual harassment pursuant to Ford’s anti-harassment policy, plaintiff attempted to establish that Ford was otherwise aware, or on notice, of the sexual harassment for several reasons. She claimed that she told two first-line supervisors (friends of hers who were under Bennett in the chain of command) that Bennett had exposed himself to her, but admitted that she had pledged them to secrecy. She also introduced two letters her psychologist had written to the Wixom plant physician, one indicating that in his view plaintiff was descending into mental illness “[d]ue to the harassment she perceived from Mr. Bennett” and a second stating that plaintiff continued “to feel uncomfortable with Dan Bennett.” These letters were offered with a third letter from the same psychologist to the Wixom plant manager regarding complaints against a different coworker in which it was said “there has been harassment going on for the past year and a half at her Wixom plant job.” Also introduced was testimony from an employee to a Ford Labor Relations Department representative to the effect that the employee would remain on medical leave until someone did something about the situation between plaintiff and Bennett. Finally, reference was made to a letter from plaintiffs attorney (her son-in-law) to the Ford Labor Relations Department in which he asserted he might take legal action “to insure that our client [plaintiff] is not subjected to working in a hostile environment.” At the close of plaintiffs proofs, defendants filed a joint motion for a directed verdict, arguing that plaintiff had not presented a prima facie case against them. Ford emphasized that plaintiff had not established that it had notice of the alleged sexual harassment by Bennett and, thus, it could not be held liable for any improper acts by him. The trial court took the joint motion under advisement, with defendants continuing to present their cases to the jury. Bennett testified that he had not sexually harassed the plaintiff and that her claims were false. Ford presented evidence showing that the only time plaintiff had ever filed a sexual harassment complaint was in 1991, involving a UAW committeeman, and that none of the several grievances and complaints plaintiff filed against Bennett had mentioned sexual harassment. Rather, with regard to Bennett, her complaints concerned having her shift changed from days to afternoons and disputes regarding overtime. She also filed a complaint alleging that a female coworker had physically threatened her. Upon the close of defendants’ proofs, the trial court granted directed verdicts to the defendants. The trial court held that plaintiff had failed to establish a prima facie case of sexual harassment with regard to either defendant and, in particular, found that Ford could not be liable because it had no notice of Bennett’s alleged harassment. Plaintiff, asserting that she had established a prima facie case against Bennett and Ford, appealed to the Court of Appeals. That Court, however, affirmed the orders of the trial court in a published opinion. In ruling for Bennett, the majority in Elezovic relied on the then-recent holding in Jager, supra at 485, that “a supervisor engaging in activity prohibited by the CRA may not be held individually liable for violating a plaintiffs civil rights.” The Jager Court had reached its conclusion by relying largely on federal court holdings that under Title VII of the federal civil rights act, the federal analogue to our CRA, there is no individual liability. While it was obligatory that the majority, in Elezovic follow Jager pursuant to MCR 7.215(J)(1), the majority indicated at the same time that, but for that court rule, it would have reached the opposite result. It was the majority’s view that Jager was wrongly decided simply because it was not consistent with the actual language of our CRA, which it concluded made agents individually liable. Moreover, it believed Jager was inconsistent with Chambers v Trettco, Inc, 463 Mich 297; 614 NW2d 910 (2000), which it read as recognizing that an individual may be held liable for sexual harassment under the CRA. With regard to the directed verdict for Ford, the Court -of Appeals rejected plaintiffs claim that her evidence regarding notice had been sufficient to enable her to reach the jury. The Court held that plaintiffs report of Bennett’s conduct to her supervisors did not constitute actual notice to Ford because of her request at the same time that this information not be conveyed to their supervisor or other appropriate persons. Elezovic v Ford Motor Co, 259 Mich App 187, 194; 673 NW2d 776 (2003). As for the letters that had been sent to Ford, the Court of Appeals concluded that these also did not provide notice because, importantly, none of them referred to sexual conduct. The Court held that this fact, when viewed in the context that plaintiffs previous harassment complaints had not been sexual in nature, but were explicitly nonsexual concerning Bennett and others (with the exception of the 1991 complaint against a UAW committeeman that plaintiff did not rely on as part of her case), meant Ford would not reasonably have been put on notice. Id. at 195. Finally, the Court also affirmed the trial court’s decision to exclude evidence regarding Bennett’s indecent exposure conviction. It was the Court’s conclusion that plaintiff failed to establish that the evidence was offered for a proper purpose because Bennett’s act of indecent exposure outside the workplace was not sufficiently similar to sexually harassing an employee in the workplace to establish a common plan, scheme, or system. Id. at 206. The Court further concluded that the trial court had not abused its discretion, concerning defendant Ford, in holding that the probative value of this evidence would have been substantially outweighed by the danger of unfair prejudice. Id. at 207-208. Plaintiff applied for leave to appeal in this Court, and we granted leave to appeal and directed the parties to include among the issues briefed whether a supervisor engaging in activity prohibited by the Michigan Civil Rights Act, MCL 37.2101 et seq., may be held individually liable for violating a plaintiffs civil rights. 470 Mich 892 (2004). II. STANDARDS OF REVIEW We review de novo the question whether our CRA authorizes a cause of action against an individual agent for workplace sexual harassment because it is a question of law. Morales v Auto-Owners Ins Co (After Remand), 469 Mich 487, 490; 672 NW2d 849 (2003). In reviewing the statute, if its language is clear, we conclude that the Legislature must have intended the meaning expressed, and the statute is enforced as written. Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995). We also review de novo a trial court’s ruling regarding a motion for a directed verdict, viewing the evidence and all legitimate inferences in the light most favorable to the nonmoving party. Sniecinski v Blue Cross & Blue Shield of Michigan, 469 Mich 124, 131; 666 NW2d 186 (2003); Meagher v Wayne State Univ, 222 Mich App 700, 707-708; 565 NW2d 401 (1997). Finally, the decision whether to admit or exclude evidence is reviewed for an abuse of discretion. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). III. INDIVIDUAL AGENT LIABILITY UNDER THE CRA The CRA prohibits an employer from discriminating on account of sex, which includes sexual harassment. MCL 37.2202(l)(a); MCL 37.2103(i) (“Discrimination because of sex includes sexual harassment.”). As previously set forth, the statute expressly defines an “employer” as a “person,” which is defined under MCL 37.2103(g) to include a corporation, and also states that an “employer” includes an “agent of that person.” MCL 37.2201(a). This statutory language uncontroversially means that Ford Motor Company is an “employer” under the CRA. What is contested is whether an agent of the corporation is also subject to individual liability. Bennett and Ford have argued that the statutory definition of “employer,” which includes an “agent of that person,” should not be read as providing individual liability because (1) inclusion of the term “agent” in the statutory definition of “employer” operates solely to confer vicarious liability on the employer, (2) federal courts of appeals have all held that Title VII — the analogous federal sexual discrimination statute with its similar definition of “employer” — does not allow individual liability, and (3) the amendment history of our CRA suggests a different intention on the part of the Legislature. Regarding the first of these arguments, that this statute should not be read to expand the class of potential defendants to include agents, defendants assert that Chambers, supra at 310, supports this narrowing conclusion because it held that the inclusion of an “agent” within the definition of an “employer” in MCL 37.2201(a) served to confer vicarious liability on the agent’s employer. We disagree with this analysis. While Chambers held that this language establishes vicarious liability, our discussion did not limit it to that function. The reason is that, when a statute says “employer” means “a person who has 1 or more employees, and includes an agent of that person,” it must, if the words are going to be read sensibly, mean that the Legislature intended to make the agent tantamount to the employer so that the agent unmistakably is also subject to suit along with the employer. (Emphasis added.) Indeed, when we said in Chambers, supra at 320, that categorizing a given pattern of misconduct allows the Court “to determine whether the sexual harasser’s employer, in addition to the sexual harasser himself, is to be held responsible for the misconduct,” we believe we said as much. (Emphasis in original.) Accordingly, we reject the argument that including “agent” within the definition of “employer” serves only to provide vicarious liability for the agent’s employer and we conclude that it also serves to create individual liability for an employer’s agent. With respect to defendants’ second argum

GARG v MACOMB COUNTY COMMUNITY MENTAL HEALTH SERVICES Docket No. 121361. Argued November 9, 2004 (Calendar No. 1). Decided May 11, 2005. Amended 473 Mich 1205. Sharda Garg, a person of Asian Indian ancestry, brought an action in the Macomb Circuit Court against Macomb County Community Mental Health Services, her employer, alleging violations of the Civil Rights Act, MCL 37.2101 et seq., specifically that she was denied promotions and subjected to poor treatment because of national-origin discrimination and in retaliation for engaging in activities protected by the act. A jury awarded damages, finding retaliation but not discrimination. The court, Roland L. Olzark, J., entered a judgment consistent with the verdict and denied the defendant’s motion for judgment notwithstanding the verdict or a new trial. The Court of Appeals, Griffin, EJ, and Meter and Kelly, JJ., affirmed in an unpublished opinion per curiam, issued March 29, 2002 (Docket No. 223829). The Supreme Court granted the defendant’s application for leave to appeal. 469 Mich 1042 (2004). In an opinion by Justice Markman, joined by Chief Justice Taylor, and Justices Corrigan and Young, the Supreme Court held: The plaintiff failed to present sufficient evidence that she was subjected to retaliation either for her alleged opposition to sexual harassment or for filing a grievance claiming national-origin discrimination. The judgment of the Court of Appeals must be reversed and the matter must be remanded to the trial court for entry of a judgment in favor of the defendant. 1. There is insufficient evidence either that plaintiff opposed sexual harassment or that defendant knew that plaintiff was engaged in opposition to sexual harassment in the workplace. The plaintiff claimed that she observed a supervisor sexually harass women in the workplace and that she engaged in activity protected by the Civil Rights Act by opposing such harassment in striking an unknown person who had touched her back and who turned out to be the same supervisor. However, the supervisor was not sexually harassing the plaintiff when she struck him, the plaintiff never characterized her reaction to the touching as opposing sexual harassment until she filed her action, and the plaintiff never told or gave any indication to the supervisor or anyone else that striking the supervisor was an act of opposing sexual harassment. 2. The “continuing violations” doctrine of Sumner v Goodyear Tire & Rubber Co, 427 Mich 505 (1986), which allows consideration of acts falling outside the three-year limitations period of MCL 600.5805(1) and (10) applicable to actions under the Civil Rights Act, is inconsistent with the statute of limitations and must be overruled. 3. The plaintiff engaged in activity protected by the Civil Rights Act in filing a grievance alleging violation of the act. The defendant was aware of this activity. However, absent evidence of acts occurring outside the period of limitations, the plaintiff failed to establish a causal link between the filing of the grievance and the subsequent alleged adverse employment actions. There is no evidence to suggest any distinction between denials of promotion by the supervisor who received the grievance and by other supervisors who were not aware of the grievance. Also lacking was evidence that the plaintiff was treated any differently at work by the supervisor who received the grievance and by other supervisors who were not aware of the grievance. Reversed and remanded to the circuit court. Justice Cavanagh, joined by Justice Kelly, dissenting, agreed with the majority’s conclusion that there was insufficient evidence of retaliation based on the plaintiffs alleged opposition to the sexual harassment of her coworkers, but disagreed with the conclusion that the plaintiff presented insufficient evidence that she was retaliated against for filing a grievance. Further, Sumner should not be overruled and the continuing violations doctrine should not be abolished. The majority also erred in concluding that because the continuing violations doctrine no longer applies, evidence of prior acts must be excluded from consideration. In this case, the continuing violations doctrine should be applied and should result in a conclusion that all of the adverse employment actions taken by the defendant against the plaintiff are actionable. A review of the four principles to be considered before established precedent is overruled, as detailed in Pohutski v City of Mien Park, 465 Mich 675, 694 (2002), shows that none of the factors weighs in favor of overruling Sumner and abolishing the continuing violations doctrine. Even if Justice Cavanagh were to agree with the majority that the continuing violations doctrine is no longer viable, the natural consequence of abolishing that doctrine is not to exclude untimely acts from consideration. Rather, abolishing the doctrine simply means that untimely acts are not actionable. Justice Weaver, joined by Justice Kelly, dissenting, agreed with the reasoning and conclusions in Justice Cavanagh’s dissenting opinion. She wrote separately to state that she is not persuaded that the unanimous adoption of the continuing violations doctrine in Sumner v Goodyear Tire & Rubber Co, 427 Mich 505 (1986), was unwarranted or that the doctrine should be abandoned. 1. Civil Rights — Employment Discrimination — Retaliation. A plaintiff seeking to establish a prima facie case of unlawful employment-related retaliation under the Civil Rights Act must show that the plaintiff engaged in a protected activity, that this was known by the defendant, that the defendant took an employment action adverse to the plaintiff, and that there was a causal connection between the protected activity and the adverse employment action (MCL 37.2701). 2. Civil Rights — Employment Discrimination — Limitation of Actions — Continuing Violations Doctrine. The continuing violations doctrine announced in Sumner v Goodyear Tire & Rubber Co, 427 Mich 505 (1986), which allows consideration of acts falling outside the three-year limitations period of MCL 600.5805(1) and (10) applicable to actions under the Civil Rights Act, is inconsistent with the language of the statute of limitations and may no longer be applied. Pitt, Dowty, McGehee, Mirer & Palmer, PC. (by Beth M. Rivers and Robert W. Palmer), and Monica Farris Linkner and Allyn Carol Ravitz for the plaintiff. Kitch Drutchas Wagner DeNardis & Valitutti (by Susan Healy Zitterman and Karen B. Berkery) for the defendant. Amici Curiae: Michael A. Cox, Attorney General, and Susan I. Leffler, Ron D. Robinson, and Suzanne D. Sonneborn, Assistant Attorneys General, for the Michigan Civil Rights Commission and the Department of Civil Rights. Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Patrick J. O’Brien and Heather S. Meingast, Assistant Attorneys General, for the Attorney General. Sachs Waldman, PC. (by Mary Katherine Norton), for the Michigan State AFL-CIO, the Michigan Trial Lawyers Association, and the Michigan Employment Lawyers Association. MARKMAN, J. We granted leave to appeal to consider whether there was sufficient evidence to support plaintiffs claims of retaliatory discrimination and whether the “continuing violations” doctrine of Sumner v Goodyear Tire & Rubber Co, 427 Mich 505; 398 NW2d 368 (1986), should be preserved, modified, or abrogated in light of the language of the statute of limitations, MCL 600.5805(1). The jury found that plaintiff was not discriminated against on the basis of national origin, but was retaliated against on the basis of either her opposition to sexual harassment or because she filed a grievance claiming national-origin discrimination. The Court of Appeals affirmed. Because we conclude that, once, evidence of acts that occurred outside the statute of limitations period is removed from consideration, there was insufficient evidence of retaliation based on either plaintiffs alleged opposition to sexual harassment or her filing of a grievance, we reverse the judgment of the Court of Appeals and remand to the trial court for entry of a judgment in favor of defendant. In so holding, we overrule the “continuing violations” doctrine of Sumner, supra, as inconsistent with the language of the statute of limitations, MCL 600.5805(1) and (10). As a result, we do not reach the other issues raised on appeal or the issues raised in plaintiffs cross-appeal. i. pacts and procedural history Plaintiff Sharda Garg is of Asian Indian ancestry. She began her employment as a staff psychologist with defendant Macomb County Community Mental Health Services in 1978. Plaintiff testified that Donald Habkirk, the director of defendant’s disability section, which included the facility where plaintiff worked, had during 1981 engaged in what plaintiff characterized as “sexually harassing” behavior with female coworkers. Specifically, plaintiff observed Habkirk pull one coworker’s bra strap and snap the elastic panties of another. Plaintiff acknowledges that she herself was never treated in this manner or otherwise sexually harassed, and that she never reported to anyone the incidents she allegedly observed. Habkirk denied engaging in such conduct. At “around the same time,” plaintiff, while walking down an office corridor, felt someone’s hand touch her upper back, near her shoulder. Plaintiff reacted as follows: “I felt somebody touching me, and I just turned around and swung at him.” She farther observed, “it was a very automatic reaction on my part.” It was only after she hit this person that she realized it was Habkirk whom she had hit. She and Habkirk stared at each other for a moment before she proceeded into her office. Plaintiff did not file a grievance, tell anyone about the incident, or offer any explanation to anyone regarding why she had struck Habkirk. In response to a question concerning whether the touching was “improper,” plaintiff did not characterize it as such. While Habkirk never took any formal action against plaintiff for striking him, and indeed testified that he could not even remember the incident, plaintiff claims that her formerly cordial relationship with Habkirk deteriorated as he became increasingly cold and distant. While plaintiff generally enjoyed a good employment relationship with defendant and its management initially, she asserted that she began to perceive changes in this relationship following the touching incident. After six years of being rated as either “outstanding” or “very good,” plaintiffs 1983 performance review was downgraded to “satisfactory.” It was also at this point that plaintiff applied for several job promotions, in each case unsuccessfully. The first position she applied for in 1983 was given to someone from outside the organization, despite a general inclination by defendant in favor of internal promotions. Two other promotion applications in 1983 were also rejected. Over the next three years, plaintiff applied unsuccessfully for four more promotions. Plaintiff was denied a total of eighteen promotion opportunities, including eleven during the period of 1983 through 1987. During this period, Habkirk always served in plaintiffs chain of command. Once at a dinner party with plaintiffs immediate supervisor, Robert Slaine, plaintiffs husband asked why plaintiff had not been promoted. Slaine responded that, in his opinion, it was because Habkirk did not like plaintiff. Slaine denied making this statement, and Habkirk denied telling Slaine that he disliked plaintiff. In 1986, Kent Cathcart was chosen by Habkirk as the new program director in plaintiffs facility. However, little changed for plaintiff because she failed to receive any of the next three promotions for which she applied. In December 1986, she was denied a promotion in favor of a contract employee with less seniority. Following this rejection in February 1987, plaintiff filed her first promotion-related grievance with the union representing defendant’s employees. When plaintiff was again denied a promotion in early 1987, this time in favor of a person from outside the company, she filed a second promotion-related grievance with the union in June 1987, alleging that the denial was due to discrimination based on her national origin and color. The grievance was forwarded to Cathcart, and was denied without investigation. Plaintiff next applied for a promotion in 1989, but was again denied. Plaintiff was denied seven promotions during the period of 1989 through 1997. Plaintiff claims that the “retaliation” against her for filing these grievances also took the form of poor overall treatment by defendant. Specifically, she claims that Cathcart, and the two supervisors who succeeded Cathcart after plaintiff was transferred to defendant’s First North facility in 1995, treated her “in a degrading and humiliating manner.” Plaintiff claims that Cathcart would criticize her for not participating in agency activities, but would then deny her requests to participate in meetings, conferences, and committees. In addition, plaintiff testified that Cathcart would reprimand her for being even two minutes late for work, but would let her coworkers “come and go as they pleased.” Plaintiff also testified that Cathcart once chastised her for going outside to look at a rainbow, but that her coworkers were routinely allowed to go outside for cigarette breaks on company time. Cathcart also refused to give her keys to the facility. Finally, when she moved to First North, plaintiff was given an office that was formerly a storage closet. The office was uncarpeted and had no windows. In addition, it was located next to a bathroom, forcing plaintiff to hear “people defecating and urinating” throughout the day. Plaintiff was assigned to this office despite her seventeen years of seniority and the availability of more desirable office spaces. Plaintiff also claims that Cathcart demonstrated a predisposition against “people of color” during the period that she was employed by defendant under his supervision. Specifically, plaintiff testified regarding four separate displays of this predisposition. First, when Cathcart learned that plaintiffs son had been accepted to medical school, he allegedly stated that “there are enough Indian doctors already.” Second, Cathcart allegedly complained about the accent of an Indian psychiatrist, stating that “these people have been here long enough, they ought to speak good English.” Third, Cathcart allegedly stated that he would not have hired an African-American nurse if a white candidate had been available. Finally, Cathcart allegedly used a racially derogatory term when referring to African-Americans. Cathcart denies making any of these statements. On -July 21,1995, plaintiff brought this action under the Civil Rights Act, MCL 37.2101 et seq., claiming that her promotion denials and poor treatment were due to national-origin discrimination and were in retaliation for engaging in activities protected by the aGt. Plaintiff originally claimed retaliatory discrimination based solely on the union grievance claiming national-origin discrimination. She later amended her complaint to allege that she was also retaliated against for opposing sexual harassment. Defendant denied the allegations and asserted that some of the allegations were barred by the three-year period of limitations. MCL 600.5805(1) and (10). Defendant moved for partial summary disposition on that basis, but the trial court denied the motion, citing the “continuing violations” doctrine adopted in Sumner. Following a three-week trial, the jury found that plaintiff was not discriminated against because of national origin or color. However, the jury also found that defendant had retaliated against plaintiff because she “opposed sexual harassment or because she filed a complaint or charge about being discriminated against.” The jury awarded plaintiff $250,000 in damages. Defendant filed a motion for judgment notwithstanding the verdict or a new trial. The trial court noted that “physical acts can convey a message better than words,” and that plaintiffs physical response to the touching by Habkirk was sufficient to inform defendant that she opposed Habkirk’s sexually harassing behavior. The trial court further held that sufficient evidence was presented to allow a reasonable juror to find a causal connection between plaintiffs striking Habkirk and her failure to be promoted. Because the evidence supported at least one of the retaliation theories, defendant’s motion was denied. In an unpublished opinion, the Court of Appeals affirmed the jury’s verdict. Unpublished opinion per curiam of the Court of Appeals, issued March 29, 2002 (Docket No. 223829). The Court of Appeals held that the “continuing violations” doctrine allowed the introduction of factual allegations going back more than three years before plaintiff filed her lawsuit and thus the statute of limitations was not a bar to the facts plaintiff presented to the jury. With regard to the merits, the Court of Appeals held that when plaintiff struck Habkirk, a reasonable juror could have concluded that she “ ‘raise[d] the specter,’ ” quoting Mitan v Neiman Marcus, 240 Mich App 679, 682; 613 NW2d 415 (2000), that she was opposing Habkirk’s sexual harassment. The Court of Appeals also determined that there was sufficient evidence to allow a reasonable juror to conclude that plaintiff established both of her retaliation claims. After this Court directed the parties to present oral argument on whether to grant leave to appeal or take other action permitted by MCR 7.302(G)(1), 469 Mich 983 (2003), and having heard such argument, we granted defendant’s application for leave to appeal, directing briefing regarding whether the “continuing violations” doctrine of Sumner was consistent with the statute of limitations, MCL 600.5805(1). 469 Mich 1042 (2004). II. STANDARD OF REVIEW The denial of a motion for judgment notwithstanding the verdict is subject to review de novo. Sniecinski v Blue Cross & Blue Shield of Michigan, 469 Mich 124, 131; 666 NW2d 186 (2003). Reversal is permitted only if the evidence, while viewed in a light most favorable to plaintiff, fails to establish a claim as a matter of law. Wilkinson v Lee, 463 Mich 388, 391; 617 NW2d 305 (2000). Whether the “continuing violations” doctrine is consistent with MCL 600.5805(1) and (10) is a question of law that we review de novo. Jenkins v Patel, 471 Mich 158, 162; 684 NW2d 346 (2004). III. ANALYSIS The issue in this case is not whether plaintiff was treated poorly or insensitively by defendant. Nor is it whether defendant “retaliated” against plaintiff for her conduct in hitting Habkirk. Instead, the issue is whether defendant retaliated against plaintiff specifically for conduct on her part protected by the Civil Rights Act. MCL 37.2701 provides, in pertinent part: Two or more persons shall not conspire to, or a person shall not: (a) Retaliate or discriminate against a person because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act. To establish a prima facie case of retaliation, a plaintiff must show: (1) that he engaged in a protected activity; (2) that this was known by the defendant; (3) that the defendant took an employment action adverse to the plaintiff; and (4) that there was a causal connection between the protected activity and the adverse employment action. [DeFlaviis v Lord & Taylor, Inc, 223 Mich App 432, 436; 566 NW2d 661 (1997).] A. RETALIATION BASED ON OPPOSITION TO SEXUAL HARASSMENT Plaintiffs first theory is that defendant retaliated against her because she opposed Habkirk’s sexual harassment. At “around the same time” that plaintiff allegedly observed sexually harassing behavior by Habkirk toward female employees, she felt someone touch her on the ba

HICKS v EPI PRINTERS, INC Docket No. 251832. Submitted April 5, 2005, at Lansing. Decided April 12, 2005. Approved for publication June 23, 2005, at 9:00 a.m. Carol L. Hicks brought an action in the Calhoun Circuit Court against EPI Printers, Inc., her former employer, claiming sexual harassment. The action was filed more than one year after the alleged harassment but within the three-year period of limitations for such an action. The court, James C. Kingsley, J., granted summary disposition for the defendant, ruling that the action was barred by an agreement to arbitrate, which agreement was contained in the employment manual and provided for a one-year period of limitations. The plaintiff appealed. The Court of Appeals held-. 1. The employment manual created an agreement between the parties that sexual harassment claims would be arbitrated. The defendant’s reservation of the right to modify the manual and the at-will nature of employment did not render the manual unenforceable. Even if the manual did not create binding arbitration, the form that the plaintiff signed upon receiving the manual included a specific provision for arbitration. 2. The one-year period of limitations is reasonable. The plaintiff did not demonstrate that the one-year limitation imposed a hardship on her ability to bring a claim. 3. The plaintiff knowingly, intelligently, and voluntarily waived the statutory three-year period of limitations when she accepted the employment manual with its arbitration provision clearly stated. Affirmed. 1. Master and Servant — Employment Manuals — Modification by Employers. An employee manual that sets the terms and conditions of at-will employment, including a provision for mandatory arbitration of sexual harassment claims, is not rendered unenforceable by the employer’s reservation of the right to modify the manual and the at-will nature of employment. 2. Civil Rights — Employment Discrimination — Arbitration. An employer and an employee may agree to arbitrate employment discrimination claims and may provide for a period of limitations within which to arbitrate a claim that is shorter than the statutory three-year period of limitations applicable to actions for employment discrimination as long as the shorter period is reasonable and the employee has voluntarily, knowingly, and intelligently waived the longer period (MCL 600.5805[10]). Silverman, Smith, Bingen & Rice, P.C. (by Robert W. Smith), for the plaintiff. Stephen D. Ihrig PC (by Stephen D. Ihrig) and Kreis, Enderle, Callander & Hudgins, P.C. (by Douglas L. Callander), for the defendant. Before: CAVANAGH, P.J., and JANSEN and GAGE, JJ. Per Curiam. Plaintiff Carol L. Hicks sued defendant EPI Printers, Inc., her former employer, claiming sexual harassment. The circuit court granted summary disposition in favor of defendant and dismissed plaintiffs action with prejudice, ruling that plaintiffs claims were barred by an agreement to arbitrate. Subsequently, the circuit court entertained plaintiffs motion for reconsideration and affirmed its original order. Plaintiff appeals as of right. We affirm. Plaintiff began working for defendant as a temporary employee in 1990. She was hired as an at-will full-time employee on November 15, 1996. Plaintiff continued her employment until June 25,2001, when she resigned because of alleged sexual harassment at the workplace and defendant’s failure to respond to her complaints. The details of the harassment are irrelevant to the issues on appeal. What is relevant is language appearing in the employment manual plaintiff received when she became a full-time employee, as well as a receipt form she signed acknowledging that she received, read, and understood the manual. The manual opens with a letter from defendant’s president, which provides in part: This Employment Manual provides answers to most of the questions [sic]. It provides answers concerning [defendant’s] benefit programs, company policies and procedures, our responsibilities to you, and your responsibilities to [defendant].... From time to time, the information included in our Employment Manual may change. Every effort will be made to keep you informed by appropriate means of communication. This may include postings on the company bulletin boards and/or notices sent directly to you in-house. Under the heading “Purpose of this Employment Manual,” defendant reiterated that the manual may change: [Defendant’s] policies, benefits, and rules, as explained in this Employment Manual, may be changed as business, employment legislation, and economic conditions dictate. If provisions are changed, you will be given replacement pages for those that have become outdated. A copy will also be placed on our bulletin boards. Immediately under the above text and under the heading “Notice” appeared the following provision: The policies in this employment manual are to be considered as guidelines. [Defendant] at its option, may change, delete, suspend, or discontinue any part or parts of the policies in this Employment Manual.... No one other than the President of [defendant] may alter or modify any of the policies in this Employment Manual.. . . In the event that any provision in this Employment Manual is found unenforceable and invalid, the finding will not invalidate the entire Employment Manual, but only the subject provision. Under “Employment Policies,” the manual urges new hires to carefully read the manual, which “is designed to answer many of your questions about the practices and policies of [defendant], what you can expect from [defendant], and what [defendant] can expect from you.” Defendant did not make any changes to the manual between when plaintiff signed it and when she resigned. The manual contains a number of references in capital letters to employment “At Will.” All defendant’s employees are at will, which according to the manual means that the employee “can be terminated with or without cause, and with or without notice, any time, at the option of either [defendant] or [the employee], except as otherwise provided by law.” Section 4.07 contained the following lengthy arbitration provision that appeared in bold and in capital letters as follows: ANY DISPUTE, MATTER, OR CONTROVERSY INVOLVING CLAIMS FOR MONETARY DAMAGES AND/OR EMPLOYMENT RELATED MATTERS INCLUDING, BUT NOT LIMITED TO, ANY AND ALL CLAIMS RELATING TO TERMINATION OF EMPLOYMENT AND DISCRIMINATION SHALL BE ARBITRATED PURSUANT TO THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION. EITHER PARTY MUST DEMAND ARBITRATION WITHIN ONE YEAR AFTER THE CONTROVERSY ARISES BY SENDING A NOTICE OF DEMAND TO ARBITRATE TO THE AMERICAN ARBITRATION ASSOCIATION ALONG WITH A COPY TO THE OTHER PARTY. THE DISPUTE SHALL THEN BE ARBITRATED BY AN ARBITRATOR PURSUANT TO THE EMPLOYMENT DISPUTE RESOLUTION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. THE ARBITRATION SHALL TAKE PLACE AT THE OFFICE OF [DEFENDANT] IN BATTLE CREEK, MICHIGAN. IN THE DISPOSITION OF THE DISPUTE, THE ARBITRATOR SHALL BE GOVERNED BY THE EXPRESS TERMS OF THIS EMPLOYMENT MANUAL AND OTHERWISE BY THE LAWS OF THE STATE OF MICHIGAN WHICH SHALL GOVERN THE INTERPRETATION OF THE EMPLOYMENT MANUAL. THE DECISION OF THE ARBITRATOR SHALL BE FINAL AND SHALL BAR ANY SUIT, ACTION, OR PROCEEDING INSTITUTED IN ANY FEDERAL, STATE, OR BEFORE ANY ADMINISTRATIVE TRIBUNAL. JUDGMENT ON ANY AWARD BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION. On November 15, 1996, plaintiffs date of hire as a permanent employee, she signed a one-page receipt form. The following text appeared at the top of the page: This Employment Manual will serve as a guide; it is not always the final word. Individual circumstances may call for individual attention. Because the general business atmosphere of [defendant] and economic conditions are always changing, the contents of this Employment Manual may change at any time at the discretion of [defendant]. No changes in any benefit, policy, or rule will be made without due consideration of the mutual advantages, disadvantages, benefits, and responsibilities on you as an employee and on [defendant] as an employer. The receipt form then directs the employee to read six bullet-pointed statements. The first five concern receipt and understanding of the manual, at-will employment (two provisions), confidentiality, and that defendant may require new signatures if the manual has any changes. The sixth bullet point concerns arbitration and specifically provides, “I understand that any dispute, matter, or controversy as set forth in Section 4.07, shall be settled by arbitration.” The bottom of the form states, “The signed original copy of this agreement must be given to your supervisor to be filed in your personnel file.” Plaintiff raised the following issues on appeal: (1) whether the parties entered an agreement to arbitrate, (2) whether the language of the agreement bars claims over a year old, and (3) whether by operation of law the shortened period of limitations is invalid. The second and third issues are relevant because plaintiff filed her claim after the one-year period under the arbitration agreement, but before the three-year statutory period for her civil rights claim under MCL 600.5805(10). A trial court’s decision to grant or deny a motion for summary disposition under MCR 2.116(C)(7) is reviewed de novo. Watts v Polaczyk, 242 Mich App 600, 603; 619 NW2d 714 (2000). Whether an arbitration agreement exists and is enforceable is a question for the court that is also reviewed de novo. Id. “[A]n arbitration provision is unenforceable if it is not a binding contract.” Heurtebise v Reliable Business Computers, Inc, 452 Mich 405, 413; 550 NW2d 243 (1996) (opinion by Cavanagh, J.). In Heurtebise, the Court held that the terms of the employment manual that the plaintiff signed, which included an arbitration provision, were unenforceable because the language of the manual demonstrated that defendant employer did not intend to be bound by the manual. Id. at 413-414. The opening statement of the manual in Heurtebise contained the following express disclaimer: “It is important to recognize and clarify that the policies specified herein do not create any employment or personal contract, express or implied . ...” Id. at 413 (emphasis deleted from Heurtebise). The plaintiff signed a form acknowledging receipt of the manual and that she agreed to have its terms and policies bind her. Id. at 409. The manual in this case differs in some important respects from the one in Heurtebise. Importantly, the manual in the present case contains no express language stating that its terms are not intended to create an enforceable agreement. Although the manual states that it will not answer all questions, “[i]t provides answers concerning [defendant’s] benefit programs, company policies and procedures, our responsibilities to you, and your responsibilities to [defendant].” A fair reading of the manual leads to the conclusion that the responsibilities intended are contractual. Additional language about what to expect bolsters the conclusion. The manual encourages employees to carefully read the manual, which “is designed to answer many of your questions about the practices and policies of [defendant], what you can expect from [defendant], and what [defendant] can expect from you.” The manual states that terms may change, but it notes measures to inform employees of the change, such as replacement pages and company postings. Furthermore, it never states that any changes made without notice will have retroactive effect. That silence, coupled with the manual’s repeated references to the at-will nature of employment, led plaintiff to believe that defendant did not intend a contract and could have refused arbitration if she were the one demanding it instead. Defendant disagrees with plaintiffs legal interpretation and, relying on Rushton v Meijer, Inc (On Remand), 225 Mich App 156; 570 NW2d 271 (1997), overruled on other grounds by Rembert v Ryan’s Family Steak Houses, Inc, 235 Mich App 118 (1999), contends that the manual was an enforceable agreement. We agree with defendant that reliance on Rushton is proper in this case. The Court’s holding on the binding nature of the manual, unlike its holding invalidating the arbitration provision on public policy grounds, was not overturned by the conflict panel in Rembert and applies to future cases. See Rembert, supra. The Court in Rushton held that the employer’s reservation of the right to modify the manual and the at-will nature of employment did not render the manual unenforceable. Rushton, supra at 161-164. Specifically, this Court in Rushton provided: By its clear terms, [plaintiff and defendant] are both bound by [the manual] unless and until the employer chooses to change it. Even then, the employer cannot retroactively escape from its requirements. Any change can only take effect prospectively. *** The fact that [the employer] could later change the agreement does not vitiate the fact that, as things currently stand, these parties are contractually bound. [Id. at 162-163.] The holding in Rushton requires the same outcome in this case. In Rushton, as in this case, there is an at-will employment relationship, a manual with contractual terms that included mandatory arbitration and the employer’s exclusive right to prospectively alter the terms of the relationship, and the fact that the employer made no changes between the beginning and the end of the relationship. The parties in this case had a contract that included a detailed arbitration provision. The provision appeared in large bold-faced text. Finally, the manual’s severability clause reflects the understanding that the terms of the manual are meant to be enforceable: “In the event that any provision in this Employment Manual is found unenforceable and invalid, the finding will not invalidate the entire Employment Manual, but only the subject provision.” Underlying this language is the presumption that the manual contains enforceable terms. This provision seeks to protect as many of those terms as possible in the event that some terms are invalidated. For all these reasons, the parties intended the manual, including the arbitration provision, to contractually bind them to certain employment terms. Even if the manual itself does not create binding arbitration, which we find it does, defendant prevails because plaintiff signed the receipt form, which included a specific provision for arbitration. Specifically, the receipt form provided, “I understand that any dispute, matter, or controversy as set forth in Section 4.07, shall be settled by arbitration.” (Emphasis added.) Admittedly, the top of the form refers to the manual as a guide that “is not always the final word,” but the next paragraph references the “mutual. . . responsibilities” of the parties. Furthermore, the bottom of the form states, “The signed original copy of this agreement must be given to your supervisor to be filed in your personnel file.” (Emphasis added.) While the manual and receipt form may leave some questions unanswered, arbitration is not one of them. The receipt form in plain and forceful language requires the settlement of all employment disputes by arbitration. The circuit court in this case relied on McAlindon v Clio Golf Course, Inc, unpublished opinion per curiam of the Court of Appeals, issued November 9, 2001 (Docket No. 225236). McAlindon distinguished Heurtebise in the following manner: [Although the arbitration clause and other provisions are contained within the body of the employee handbook, defendant created a separate document containing the provisions signed by plaintiff. The arbitration clause was made the subject of a specific agreement separate from the terms, conditions and policies of the handbook. This clearly indicates an intent by defendant to be bound by the arbitration provision, and plaintiff executed that agreement. [McAlindon, slip op at 2-3.] There were three separate signature lines, one for each paragraph, on the form. Id. at 1. In contrast, there was only one signature line at the bottom of defendant’s form beneath the six bullet points. This difference should in no way dilute the separate agreement in this case. One signature may indicate assent to many terms. Otherwise the vast majority of the terms of all contracts are invalid. What matters is whether the parties intended an agreement, not how formalistic that agreement was. The only relevant difference between this case and McAlindon is that in this case the separate agreement incorporates the arbitration provision of the manual by reference and not by directly spelling out all the terms. Again, this distinction should make no difference. The receipt form clearly states that arbitration will settle all disputes. Section 4.07 appears in the manual in large bold text. Nothing about how the agreement was presented to plaintiff was misleading or confusing. Plaintiff could have easily read the receipt form in conjunction with the employment manual. Both documents straightforwardly described what to expect in terms of dispute resolution by arbitration. Even without reading the two in tandem, the receipt form on its face is an agreement to arbitrate subject to the details appearing in the employment manual. For these reasons, the receipt form, when read together with the employment manual, is an independent agreement requiring arbitration. On review de novo, we find that the circuit court did not err in finding that the parties entered into an agreement to arbitrate claims. Plaintiff also challenges the apparent one-year period of limitations under the arbitration agreement, which would bar her claim. She argues that the language of § 4.07, the arbitration provision, allows her to bring suit after one year. Section 4.07 provides in relevant part: ANY DISPUTE, MATTER, OR CONTROVERSY INVOLVING CLAIMS FOR MONETARY DAMAGES AND/OR EMPLOYMENT RELATED MATTERS INCLUDING, BUT NOT LIMITED TO, ANY AND ALL CLAIMS RELATING TO TERMINATION OF EMPLOYMENT AND DISCRIMINATION SHALL BE ARBITRATED PURSUANT TO THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION. EITHER PARTY MUST DEMAND ARBITRATION WITHIN ONE YEAR AFTER THE CONTROVERSY ARISES . Plaintiff argues that because the language above does not expressly prohibit filing suit after one year, she is free to do so. This interpretation is too strained. A reading of § 4.07 clearly leads to the conclusion that all claims must be arbitrated within a year: (1) all claims must be arbitrated; (2) parties must bring all arbitrations within a year; and, therefore, (3) parties must bring all claims within a year. Under the agreement, arbitration subsumes all claims; thus, the one year period of limitations for arbitration must apply to all claims. Therefore, plaintiff should have demanded arbitration within one year of the sexual harassment she alleged led her to resign. Plaintiff argues in the alternative that a one-year period of limitations is unreasonable. Typically, the applicable period of limitations for her sexual harassment claim is three years. MCL 600.5805(10). Parties may contract for a period of limitations shorter than the default statutory period as long as the shorter period is reasonable. Timko v Oakwood Custom Coating, Inc, 244 Mich App 234, 239; 625 NW2d 101 (2001). “The period ‘is reasonable if (1) the claimant has sufficient opportunity to investigate and file an action, (2) the time is not so short as to work a practical abrogation of the right of action, and (3) the action is not barred before the loss or damage can be ascertained.’ ” Id. at 239-240 (citations omitted). A one-year period of limitations for plaintiffs sexual harassment claim is reasonable. By its very nature, sexual harassment is a claim of which a plaintiff must be aware at an early stage. In this case, plaintiffs awareness of the alleged misconduct of her supervisor and the failure of management to

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

Lois J. Ayash vs. Dana-Farber Cancer Institute & others. Suffolk. October 6, 2004. February 9, 2005. Present: Marshall, C.J., Greaney, Ireland, Spina, Sosman, & Cordy, JJ. Privacy. Doctor, Employment. Hospital, Peer review, Appointment to staff. Contract, Implied covenant of good faith and fair dealing, Physician, Employment, Interference with contractual relations. Employment, Retaliation. Charity. Corporation, Charitable corporation, Non-profit corporation. Damages, Employment contract, Libel. Libel and Slander. Contempt. A doctor seeking damages against a hospital (her former employer), among others, in connection with a series of events that occurred in the aftermath of the discovery that two patients at the hospital had been administered an overdose of a highly toxic chemotherapy drug, which resulted in the death of one of the patients, was not entitled to relief under G. L. c. 214, § IB, on the ground that her right to privacy had been invaded by the hospital’s public disclosure that peer review action was proceeding against the plaintiff or by the hospital’s actions in providing to a newspaper reporter confidential peer review documents that suggested some responsibility on the plaintiff’s part for the overdoses, where the disclosures were limited to the plaintiff’s professional involvement in a matter that already was the focus of a high degree of public scrutiny and interest and were not, in any event, of an exceedingly personal or intimate nature [382-385]; further, even assuming that the hospital breached its implied covenant of good faith and fair dealing by failing to follow the procedure described in its bylaws before restricting the plaintiff’s clinical privileges following the overdoses, the plaintiff failed to demonstrate that she suffered compensable loss as a result of the breach [385-388]; however, where a reasonable jury could conclude that the hospital’s decision not to renew the plaintiff’s appointment was motivated by retaliatory animus fueled by the plaintiff’s filing of a lawsuit against the hospital alleging gender discrimination, judgment in favor of the plaintiff on her claim of retaliation in violation of G. L. c. 151B, § 4 (4), was warranted [388-389]. This court concluded, based on the legislative history and plain language of the statutes in question, that the charitable cap on damages under G. L. c. 231, § 85K, limiting the tort liability of a charitable entity to $20,000, was not applicable to limit damages awarded pursuant to a successful claim of unlawful retaliation in the employment context under G. L. c. 151B, § 4 (4). [389-392] In an action where undifferentiated lump sum damages were awarded against a hospital for invasion of privacy, breach of the implied covenant of good faith and fair dealing, and retaliation, but where the verdicts on the first two claims were vacated on appeal, this court remanded the issue of damages for a new trial. [392-393] In an action brought by a doctor seeking damages against a hospital’s physician-in-chief (defendant), among others, claiming that the defendant intentionally interfered with the contractual relationship between the plaintiff and the hospital by wrongfully inducing the hospital not to extend the plaintiff’s employment in the aftermath of the discovery that two patients at the hospital had been administered an overdose of a highly toxic chemotherapy drug, which resulted in the death of one of the patients, the judge erred in denying the defendant’s motion for judgment notwithstanding the verdict, where the verdict against the defendant was tainted by the improper admission in evidence of confidential peer review documents protected under G. L. c. Ill, § 204 (a), and where, in the absence of such evidence, the defendant’s challenged conduct could not be said to be improper in motive or means. [393-399] A Superior Court judge did not abuse his discretion in finding that the ongoing refusal of certain defendants (a newspaper and a newspaper reporter) to comply with a discovery order directing them to disclose certain confidential sources to the plaintiff warranted, as a sanction pursuant to Mass. R. Civ. R 37 (b) (2), that judgments of liability enter in favor of the plaintiff on all of her remaining claims against the defendants, where the defendants’ refusal to comply resulted in the plaintiff’s inability to proceed against other defendants on certain claims, and where the judge left open to the defendants the option to remove the default by complying with the discovery order [399-404]; further, the jury’s award of damages on those default judgments was not clearly excessive in relation to what the plaintiff’s evidence had demonstrated damages to be [404-407]. Civil action commenced in the Superior Court Department on February 1, 1996. After certain discovery matters were heard by Peter M. Lauriat, J., the case was tried before Catherine A. White, J. The Supreme Judicial Court granted an application for direct appellate review. Kenneth W. Salinger (Steven L. Schreckinger with him) for Dana-Farber Cancer Institute & another. Joan A. Lukey (Gabrielle R. Wolohojian with her) for the plaintiff. Jonathan M. Albano (George Freeman, of New York, & Martin F. Murphy with him) for Globe Newspaper Company, Inc., & another. The following submitted briefs for amici curiae: Carl Valvo for Professional Liability Foundation, Ltd., & others. Steven S. Locke for Massachusetts Commission Against Discrimination. Robert S. Mantell, Jonathan J. Margolis, & James E. Fitzgerald for Massachusetts Employment Lawyers Association. Laura R. Handman & Jeffrey L. Fisher, of the District of Columbia, for ABC, Inc., & others. David M. Livingston, Globe Newspaper Company, Inc., and Richard A. Knox (the latter two collectively referred to as the Globe defendants). Greaney, J. The plaintiff, Dr. Lois J. Ayash, commenced this action in the Superior Court against the defendants, the DanaFarber Cancer Institute (Dana-Farber or the hospital); Dr. David M. Livingston; Globe Newspaper Company, Inc., publisher of the Boston Globe (Globe); and Globe reporter Richard A. Knox, seeking damages in connection with a series of events that occurred in the aftermath of the discovery that two patients enrolled in an experimental breast cancer treatment study at Dana-Farber had mistakenly been administered a four-fold overdose of a highly toxic chemotherapy drug. One of the patients, Globe health columnist Betsy A. Lehman, died as a result of the overdose. In her complaint, the plaintiff accused the Globe and Knox (together, Globe defendants) of publishing a series of scathing and inaccurate articles about the overdoses and an alleged coverup by Dana-Farber that erroneously attributed culpability to the plaintiff, thereby destroying her reputation and her well-being. The plaintiff’s complaint also accused Dana-Farber and Livingston (who was physician-in-chief at Dana-Farber at the time of the overdoses and their discovery) of inappropriately focusing public attention on her, by issuing press releases containing confidential peer review information and by secretly providing to Knox other confidential peer review information. This was done, the plaintiff alleges, in order to deflect attention from widespread deficiencies in the hospital that led to the overdoses and in order to protect other physicians at the hospital. The plaintiff’s amended complaint, as far as now relevant, states claims against (1) Dana-Farber for invasion of privacy, breach of the implied covenant of good faith and fair dealing, and unlawful retaliation in violation of G. L. c. 151B, § 4 (4); (2) Livingston for intentional interference with contractual relations; (3) the Globe defendants for libel and defamation; and (4) Knox for intentional interference with contractual relations and for intentional or negligent infliction of emotional distress. During the discovery stage of the litigation, the plaintiff sought the identities of sources consulted by Knox before writing articles, subsequently published in the Globe, that formed, at least in part, the basis of the plaintiff’s lawsuit. After the Globe defendants’ steadfast refusal to provide information that would lead to the identities of Knox’s confidential sources, despite a court order to disclose their identities, a judgment of civil contempt was entered in the Superior Court against the Globe defendants. The Appeals Court vacated the order to disclose and the contempt order, concluding that the defendants had made “some showing” that disclosure of Knox’s confidential sources presented a danger to the free flow of information that was more than theoretical or speculative. See Ayash v. Dana-Farber Cancer Inst., 46 Mass. App. Ct. 384 (1999). On remand, the judge allowed the plaintiff’s renewed motion to compel the Globe defendants to disclose the identities of their confidential sources. When the Globe defendants continued to refuse, the judge ultimately entered, as a sanction pursuant to Mass. R. Civ. P. 37 (b) (2), as amended, 390 Mass. 1208 (1984), pretrial default judgments of liability in favor of the plaintiff on her claims against the Globe defendants. After five weeks of trial (presided over by a different judge than the judge who had dealt with discovery), a jury in the Superior Court found Dana-Farber liable for (1) violation of the plaintiff’s statutory right to privacy under G. L. c. 214, § 1B; (2) breach of the covenant of good faith and fair dealing implied in its employment contract with the plaintiff; and (3) unlawful retaliation in violation of G. L. c. 151B, § 4. The jury also returned a verdict in favor of the plaintiff on her claim that Livingston intentionally had interfered with her employment relationship with Dana-Farber. The jury awarded damages against Dana-Farber in the amount of $180,000 for lost compensation and injury to business reputation, $1,080,000 for emotional distress, and $5,000 in punitive damages; the jury also awarded damages against Livingston in the amount of $120,000 for lost compensation and injury to business reputation, and $720,000 for emotional distress. For the plaintiff’s defaulted claims against the Globe defendants, the jury awarded her the sum of $1,680,000 against the Globe (reflecting $240,000 in economic damages and $1,440,000 in emotional distress damages) and $420,000 against Knox (reflecting $60,000 in economic damages and $360,000 in emotional distress damages). The judge heard motions filed by Dana-Farber and Livingston for the entry of judgment notwithstanding the verdicts; a motion filed by Dana-Farber requesting that the charitable cap, G. L. c. 231, § 85K, be applied to the judgment against it; a motion filed by the Globe defendants challenging the default judgments; and motions for a new trial (or, alternatively, for remittitur) based on excessive damages submitted by all of the defendants. The judge upheld the verdicts against Dana-Farber and Livingston, but agreed that the charitable cap applied to the damages awarded against Dana-Farber. The judge declined to revisit the default judgment (which, as noted, had been entered by another judge). Finally, the judge concluded that damages awarded by the jury, although high, were not excessive and denied all of the defendants’ motions for remittitur. An amended judgment was entered allowing the plaintiff to recover the sum of $20,000 (plus costs and interest) from Dana-Farber. The case is before us on cross appeals. The plaintiff appeals the judge’s application of the charitable cap. Dana-Farber appeals the denial of its motion for judgment notwithstanding the verdicts on the retaliation, privacy and implied contract claims. Livingston appeals the denial of his motion for judgment notwithstanding the verdict on the intentional interference claim. The Globe defendants appeal the imposition of the sanction of default judgment against them. All of the defendants appeal the denial of their motions for remittitur, or for a new trial, on the issue of excessive damages. We granted the parties’ applications for direct appellate review. For reasons that follow, we vacate the judgments against Dana-Farber for invasion of privacy and for breach of the implied covenant of good faith and fair dealing, and against Livingston for interference with employment relations, and direct the entry of judgments for Dana-Farber and Livingston on those claims. We affirm the verdict against Dana-Farber for the G. L. c. 151B unlawful retaliation claim and conclude that the charitable cap set forth in G. L. c. 231, § 85K, does not apply to damage awards for unlawful retaliation under G. L. c. 151B. We affirm the default judgments, and the corresponding damage awards, against the Globe defendants. Vacating the judgments against Dana-Farber for invasion of privacy and breach of the implied covenant creates a defect in the damages awarded against Dana-Farber that necessitates a retrial on damages. Accordingly, we remand the case to the Superior court for a new trial on the damages to be awarded against Dana-Farber. 1. We begin with an overview of the facts in the light most favorable to the plaintiff. See Situation Mgt. Sys., Inc. v. Malouf, Inc., 430 Mass. 875, 876 (2000); Cambridgeport Sav. Bank v. Boersner, 413 Mass. 432, 438 (1992). Additional facts will be discussed as they relate to the parties’ claims of error. a. The overdoses and the immediate aftermath of their discovery. In November, 1994, a research fellow at Dana-Farber, Dr. James Foran, accidentally ordered four-fold overdoses of cyclophosphamide, a powerful chemotherapy drug with well known heart toxicity, for two patients in an experimental protocol for breast cancer patients (protocol 94-060) administered under the auspices of Dana-Farber’s Solid Tumor Autologous Marrow Program (STAMP). The plaintiff was protocol chair and principal investigator for protocol 94-060. The overdoses were separately administered to two patients, Betsy Lehman and Maureen Bateman, over the course of four days beginning on November 14 and November 16, respectively. The attending physician on duty at the time the orders were written, and the overdose administered to Lehman, was Dr. Gary N. Schwartz. The attending physician on duty at the time the overdose was administered to Bateman was Dr. Anthony Elias, the director of STAMP. Both patients suffered almost immediate adverse reactions to the cyclophosphamide treatment. Bateman survived the overdose but experienced severe cardiac damage. Lehman died on December 3 as a result of the overdose. An autopsy failed to uncover the cause of her death. The plaintiff began a rotation as the attending physician for Lehman and Bateman on December 1. On the morning after Lehman’s death, the plaintiff inquired of another STAMP team physician, Dr. Richardson, whether the correct chemotherapy dose had been administered to Lehman. Richardson responded in the affirmative. As protocol chair and co-director of the STAMP team, the plaintiff informed the director of protocol administration at Dana-Farber of Lehman’s death and provided him with pharmacological data about the blood levels of cyclophosphamide and its metabolite in Lehman and in other patients participating in protocol 94-060. To the plaintiff, and to other STAMP team physicians, the data appeared inconclusive. At a meeting approximately two weeks later, the plaintiff, based on her earlier conversation with Richardson, informed a group of STAMP team physicians and members of Dana-Farber’s pharmacology department that the cyclophosphamide administered to Lehman had been the correct dosage. During a medical staff retreat, the plaintiff presented the pharmacological data and clinical scenario of all four patients who had undergone protocol 94-060 and stated her view that Lehman’s death most probably reflected a modulation of cyclophosphamide. Those present voiced no disagreement. It was not until on or about February 8, 1995, that a Dana-Farber data manager discovered the overdosing errors. The plaintiff reported the errors to Dana-Farber’s human protection committee on the following day. The hospital immediately notified both patients’ families of the tragic error and suspended all clinical work under protocol 94-060. Livingston, as the hospital’s physician-in-chief, began his own informal investigation into the incident by inquiring of other physicians, including Dr. Schwartz and Dr. Foran, as to their version of events. Livingston, however, did not seek the plaintiff’s view as to what had occurred. Dana-Farber established three committees to investigate the circumstances of the overdoses and the hospital’s subsequent failure to discover them. First, it convened an internal peer review committee, chaired by Dr. Steven E. Sallan (Sallan committee), to focus on how the overdoses occurred and to recommend steps to prevent a similar tragedy in the future. Dana-Farber also appointed an external peer review committee (Devita committee), headed by Dr. Vincent T. Devita, a national leader in oncology and former director of the National Cancer Institute, to review the Sallan committee report and, if necessary, independently investigate circumstances leading to the overdose. Finally, an internal Dana-Farber audit team was established to perform an in-depth investigation of protocol 94-060 itself. On March 22, 1995, Livingston issued two statements. First, in a statement to hospital staff, he described the overdose incidents and the steps that had been, or would be, taken by Dana-Farber in response. Second, in a statement to the news media, Livingston admitted that the overdoses resulted from “human error” and announced that Dana-Farber had “taken additional precautions to ensure that they do not happen again,” including the establishment of “two internal review committees and an external review committee” that had been “asked to examine all issues related to this situation.” Livingston stated that “once all the facts have been fully analyzed, and the causes of the errors identified,” Dana-Farber would “make available to the public the conclusions and recommendations of the committees.” The next day, two physicians and three pharmacists were placed on administrative duty and restricted from clinical practice. The plaintiff was not one of those whose clinical privileges were restricted. b. Reporting of the overdoses by the Globe. The discovery of the overdoses was of considerable public interest. Dana-Farber became the subject of intense media coverage, including that in the Globe. On March 23, 1995, the day after Livingston issued the hospital’s first press release on the overdoses, the Globe published a front page article, authored by Knox, entitled “Doctor’s orders killed cancer patient.” With respect to the overdose administered to Lehman, the article ascribed the erroneous order to a “physician working as a research fellow,” but noted that “[f]ive or six other doctors and nurses countersigned the mistaken order, including Dr. Lois J. Ayash, leader of the team.” The plaintiff was the only physician named in the article as having any connection to the overdose. Moreover, contrary to what was stated in the article, the plaintiff had not countersigned the overdose order, nor was she the “leader of the team.” Despite this error in reporting, no effort was made by Dana-Farber, or by Livingston, to correct the impression that the plaintiff shared responsibility for the overdose error. On March 24, 1995, the Globe published an editorial concerning the overdoses. The editorial characterized the overdose error as “so glaring that any first-year medical student should have spotted it.” The following day, the Globe published an article written by another Globe columnist, Bella English. The column did not mention the plaintiff by name, but described the overdoses as “an appalling series of errors that would make The Three Stooges look like brain surgeons” and stated tha

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