Harassment Cases

ARMSTRONG v YPSILANTI CHARTER TOWNSHIP Docket No. 222924. Submitted June 6, 2001, at Lansing. Decided December 7, 2001, at 9:05 am Duke L. Armstrong brought an action in the Washtenaw Circuit Court against Ypsilanti Charter Township and five individual members of the township board, asserting various claims for damages resulting from the individual defendants’ votes to pass a motion that eliminated the line-item funding for the plaintiff’s position as administrative assistant to the township supervisor. The elected township supervisor, who is the sixth member of the township board, voted against the motion. The court, Donald E. Shelton, J., denied the plaintiff’s motion to disqualify the trial judge, and the chief judge of the circuit court, Timothy P. Connors, affirmed that denial. The court entered a judgment and order granting summary disposition in favor of the defendants on several grounds. The plaintiff appealed, and the individual defendants cross appealed from the denial of their motion to quash the plaintiff’s first amended complaint. The Court of Appeals held: 1. The separation of powers doctrine contained in Const 1963, art 3, § 2 applies to state government only and does not apply to township government. 2. Section 9 of the Charter Township Act, MCL 42.9, allows a township board to abolish any position within township government as long as the position is not the offices of the township clerk or the township treasurer. The plaintiff’s position may be abolished by the township board. 3. MCL 42.9 does not requires the township supervisor’s recommendation before a position may be abolished by the township board. 4. The Charter Township Act gives the township board full and absolute control over the township budget and does not provide that the board can reduce appropriations only when there has been a reduction in income. 5. The court properly dismissed the plaintiff’s tort claims against the individual defendants on the basis that the defendants were protected from liability by governmental immunity provided by state and federal law. 6. The court’s ruling on the motions for summary disposition did not evidence deep-seated favoritism or antagonism toward the plaintiff that would support the plaintiff’s claim of actual bias. 7. The trial judge had no economic, pecuniary, or other financial ties to the individual defendants. There were no grounds to support the motion to disqualify the trial judge. Affirmed. 1. Townships — Constitutional Law — Separation of Powers. The separation of powers doctrine in Const 1963, art 3, § 2 applies to state government only, not to local municipal or township government. 2. Townships — Charter Township Boards. Section 9 of the Charter Township Act allows a township board to abolish any position within the township government other than the township clerk and the township treasurer; the township supervisor’s recommendation is not required before a position may be abolished by the township board (MCL 42.9). 3. Townships — Charter Township Boards. A charter township board has full and absolute control over the township’s budget and may reduce appropriations without a showing that there has been a reduction in income (MCL 42.27, 42.28, 42.29). 4. Judges — Disqualification. Judicial rulings, in and of themselves, generally do not constitute a valid basis for a motion alleging judicial bias unless the rulings display a deep-seated favoritism or antagonism that would make fair judgment impossible and overcome the heavy presumption of judicial impartiality. Jeffrey A. McKeever, P.L.C. (by Jeffrey A. McKeever), for the plaintiff. Garan Lucow Miller, PC. (by Rosalind Rochkind and Thomas F. Myers'), for the defendants. Amicus Curiae: Bauckham, Sparks, Rolfe, Lohrstorfer & Thall, P.C. (by John H. Bauckham), for the Michigan Townships Association. Before: Hood, P.J., and Whitbeck and Meter, JJ. Per Curiam. Plaintiff Duke Armstrong appeals the trial court’s order granting summary disposition to defendants Ypsilanti Charter Township, Ruth Jamnick, Brenda Stumbo, Darcus Sizemore, Karen LovejoyRoe, and William Gagnon. Armstrong also challenges the trial court’s denial of his motion to disqualify the trial judge and the later order of the chief judge affirming that denial. Jamnick, Stumbo, Sizemore, Lovejoy-Roe, and Gagnon cross appeal the trial court’s denial of their motion to quash Armstrong’s first amended complaint. We affirm. 1. basic facts and procedural history A. OVERVIEW Ypsilanti Township is a charter township, organized under the Charter Township Act. Jamnick, Stumbo, Sizemore, Lovejoy-Roe, and Gagnon are all members of the township board. A sixth member of the township board, although not a defendant here, Wesley Prater, was the elected township supervisor. Armstrong had served as Prater’s administrative assistant since 1991, but on May 30, 1996, the township board, with only Prater voting against the motion, eliminated the line-item funding for Armstrong’s administrative assistant position, thereby effectively eliminating his job. It is undisputed that the elimination of the line-item funding was not part of the normal budgetary cycle; rather it occurred during, instead of before or at the commencement of, the township’s fiscal year. B. ARMSTRONG’S COMPLAINT Armstrong’s first amended complaint contained thirteen counts. Count I asserted a claim based on defamation against the board members. Count n asserted a claim based on violation of the Michigan Handicappers’ Civil Rights Act. Armstrong claimed that he had been diagnosed with “stress reaction,” which required a temporary medical leave. Count m asserted a violation of the Michigan Civil Rights Act. Armstrong claimed that his age was at least one factor in the decision to terminate his employment. Count iv asserted a violation of the National Labor Relations Act. Armstrong claimed that his involvement in the attempted organization of his fellow employees in a labor union was at least one factor in the decision to terminate his employment. Count v was a claim of breach of an implied employment contract. Armstrong claimed that the township’s management made statements to him and other employees that it was the township’s policy not to discharge employees as long as the employees performed their jobs. Count VI asserted wrongful discharge contrary to public policy. Armstrong claimed that during his employment, the township established policies and procedures that created a legitimate expectation that his employment could be terminated only for just cause. Count vil asserted interference with a business relationship. Armstrong claimed that the board members interfered with his business relationship with the township, which relationship had a reasonable likelihood of future economic benefit to him. Count vni asserted the board members were grossly negligent concerning their conduct and treatment of Armstrong, including alleged false accusations and statements made by the board members concerning him. Count IX was a claim of intentional infliction of emotional distress concerning defendants’ conduct and treatment of Armstrong during his employment. Count x asserted violation of Armstrong’s constitutional rights. Armstrong claimed that, before his employment was terminated, he engaged in constitutionally protected speech on a matter of public concern by speaking with administrative assistants of various departments regarding forming a union and that his exercise of his constitutional rights was one reason for the termination of his employment. Count XI asserted a separate violation of Armstrong’s constitutional rights. Armstrong claimed that, before depriving him of his constitutionally protected property interest in continued employment, defendants did not conduct a hearing or otherwise afford him either notice of the grounds for the termination of his employment or a meaningful opportunity to respond. Count xn asserted a violation of the Michigan Constitution with respect to due process and fair treatment in investigations. Armstrong claimed that defendants failed to adequately investigate the facts and circumstances surrounding alleged false accusations. Count xttt was a conspiracy claim. Armstrong contended that the tortious conduct asserted in the complaint was done in concert by the board members in order to violate his legal and constitutional rights. In mid-March 1999, the township moved for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10). In early April, the trial court held a hearing on this motion but delayed ruling until a final decision was made on the judicial disqualification matter hereinafter outlined. In late April 1999, the board members filed a motion for summary disposition pursuant to MCR 2.116(C)(7) and (8). In early June 1999, the trial court held a hearing on this motion and took the matter under advisement. C. THE TRIAL COURT’S RULING The trial court addressed and granted both motions for summary disposition in an order and opinion entered on September 29, 1999, stating: Plaintiff... alleges that defendants wrongfully eliminated funding for the Administrative Assistant to the Ypsilanti Township Supervisor, a position which plaintiff held. The four individual defendants were Township board members who voted for the resolution. . . . * * * For his claim against the township, plaintiff argues that the Township Supervisor position is analogous to that of a chief executive position and that [the] board’s action to eliminate funding thereby violates the separation of powers doctrine. He urges the Court to find that the Supervisor is the chief executive with the exclusive authority to abolish plaintiff’s position. The Township of Ypsilanti has adopted the Charter Township Act (“the Act”). Pursuant to that Act, all legislative authority and powers of the township are vested in the township board. MCL 42.5(1). [At this point, the trial court quoted MCL 42.5 and MCL 42.9.] Plaintiff asserts that this section of the statute only allows the board to create a position and does not explicitly grant the board authority to abolish a position. Plaintiff further claims that even if this section is construed to confer authority to abolish a position on the board, that authority would only concomitantly arise at the township supervisor’s recommendation. Plaintiff argues that since in this case the supervisor voted against the elimination of the funding for plaintiff’s position, the board had no authority to do so. The construction of the statute urged by plaintiff is without merit. The legislature clearly provides . . . that the entire elected township board, which by definition includes the supervisor, has the authority to create employment positions at taxpayer expense. That authority is not conferred by the statute on the supervisor. Inherent in the board’s authority to create such a position is its authority to abolish it. The ensuing sentence in this section of the Act fortifies the inteipretation that the board has the power to abolish employment positions in the township. That sentence expressly states that the board may not “abolish” the offices of township clerk or treasurer. The express designation of the offices of township clerk and township treasurer as offices that may not be abolished by the township board is recognition that the legislature intended that the board has the power to abolish other positions not so designated. . . . Plaintiff also claims that the board’s role is to check the power of the supervisor by approving a budget that includes the appropriation of funds for the supervisor’s use. He claims that when [the] board eliminated funding for plaintiff’s position, the board encroached on the executive’s authority. On the contrary, it is the board that has the exclusive authority over budget, appropriation and expenditure for a township under the Act. MCL 42.27, 42.28. There was no usurpation of supervisor authority by the actions of the board in this case. As to plaintiffs tort claims against the individual board members, the defendants assert that they are immune from plaintiffs tort claims under Michigan law. The highest elective officials of all levels of government are immune from tort liability when acting within their authority. Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 633 (1984). The same was codified in 1986 [at this point, the trial court quoted MCL 691.1407(5)]. These defendants are clearly the highest elective officials in the township and are immune if they were acting within their authority when they eliminated plaintiffs position. ... As indicated by the analysis of the board’s actions above, the legislature gave the board as a whole the authority to create, combine, and abolish administrative offices as set forth in MCL 42.9. The actions of the individual trustees were therefore within their legislative authority and they are immune from plaintiffs tort actions by virtue of MCL 691.1407(5). D. DISQUALIFICATION OF THE TRIAL COURT The trial court record does not contain a motion to disqualify the judge, but the record does reflect that a hearing was held on such a motion on April 7, 1999. At the hearing, the following discussion ensued: Mr. McKeever (plaintiff’s counsel]: Judge, as we just mentioned at the bench, I found out yesterday that I think four of the individually named defendants were involved with— as well as Mr. Winters was involved in setting up fundraisers for Your Honor, as well as selling tickets and what have you. And because of those facts— The Court: You mean when I ran for the Supreme Court [in 1996]? Mr. McKeever. That’s right, Judge. And I just — as I mentioned at the bench, due to those facts, at my client’s request, I bring this motion for Your Honor to disqualify himself. And as I mentioned previously, I certainly mean no disrespect, Judge. Armstrong submitted his own affidavit, which asserted that the board members “participated in raising election funds for the Honorable Donald E. Shelton.” The trial court denied Armstrong’s motion for disqualification from the bench and stated: Well, there were a number of people, obviously, who were kind enough to assist in the campaign when I ran for the Supreme Court. But, to my knowledge, the successful candidates do not disqualify themselves from hearing cases in which contributors to their campaigns were involved, nor do I think that I’m required to do so, nor do I think it would be appropriate to punish people for participating in the process in that way. More importantly — so I’m going to deny the motion on the basis of any economic interest. More importantly is the question of whether I have any bias in favor of the defendants. I would gather that, if the Township of Ypsilanti were to — or its officials were to take a vote on whether I was generally in favor of them or generally against them in terms of my rulings, it would be a close issue. It probably would be a divided vote, and as it should be. I have not — I don’t have — I don’t hesitate in my rulings to rule against the local governments or their elected officials when I think that justice of the cause requires that. And I would expect that the township officials in this township as well as other municipal bodies would, with chagrin, agree with that. So I’m going to deny the motion to disqualify. If you would like to appeal that before we take up other matters, you can take it to the chief judge. Shortly thereafter, the chief judge of the circuit court held a hearing to review the trial court’s decision to deny the motion for disqualification, ruling: You have to show actual bias or prejudice. Again, you know, this is — I think the only way you’re ever going to avoid this is if you go to something like the Missouri plan. And I’m not saying that’s necessarily the best way, either, because there’s arguments that, then, you don’t have accountability to the general public. So there’s countervailing public policy reasons to go the way that we are. But as long as we have this system, you’re going to have contributors and you’re going to have people who don’t contribute. And the logical extension of your argument is, literally, be — I mean, we might have just a few lawyers left practicing. And I don’t think you’ve been able to demonstrate, sir, based on that record, that there’s actual bias or prejudice; and, therefore, the appeal of Judge Shelton’s decision to me — the appeal is denied. His decision is affirmed. He’s in the best position to say whether his relationship is such that he would not be able to do that. H. SUMMARY DISPOSITION A. STANDARD OF REVIEW This Court reviews de novo rulings on motions for summaiy disposition. Statutory interpretation is a question of law that we review de novo. We also review constitutional issues de novo. Whether there has been a violation of the separation of powers doctrine is a question of law, which we also review de novo. B. GROUNDS FOR SUMMARY DISPOSITION (1) MCR 2.116(C)(7) MCR 2.116(C)(7) provides, in part, that summary disposition is appropriate when a claim is barred because of immunity granted by law. In reviewing a motion for summary disposition under MCR 2.116(C)(7), this Court accepts a plaintiffs well-pleaded allegations as true and construes them in a light most favorable to the plaintiff. In determining whether a plaintiffs claim is barred by governmental immunity, this Court must consider all documentary evidence, including any pleadings, depositions, admissions, or any other documentary evidence submitted by the parties. In order to survive a motion for summary disposition under MCR 2.116(C)(7), a plaintiff is required to allege facts in the complaint that justify application “ ‘of an exception to governmental immunity.’ ” (2) MCR 2.116(C)(8) MCR 2.116(C)(8) provides for summary disposition of a claim on the ground that the opposing party has failed to state a claim on which relief can be granted. A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone and all factual allegations contained in the complaint must be accepted as trae as well as any reasonable inferences or conclusions that can be drawn from the facts. (3) MCR 2.116(C)(10) MCR 2.116(C)(10) provides for summary disposition where there is no genuine issue regarding any material fact and the moving party is entitled to judgment or partial judgment as a matter of law. The Michigan Supreme Court has held that a trial court “ ‘may grant a motion for summary disposition under MCR 2.116(C)(10) if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law.’ ” In addition, all affidavits, pleadings, depositions, admissions, and other documentary evidence filed in the action or submitted by the parties is viewed “in the light most favorable to the party opposing the motion.” C. ARMSTRONG’S ISSUES ON APPEAL Armstrong’s appeal requires us to address three separate, but interrelated, issues. The first issue is whether defendants’ actions violated the separation of powers doctrine. The second issue is whether defendants’ actions violated the Charter Township Act. The third issue is whether defendants were protected by governmental immunity. We will address each of these issues. D. SEPARATION OF POWERS (1) THE SEPARATION OF POWERS DOCTRINE In Hopkins, this Court, discussing the separation of powers doctrine, stated: The Michigan Constitution provides for the separation of the three branches of government as follows: “The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.”[] This separation of powers intends to preserve the independence of the three branches of government. In re 1976 PA 267, 400 Mi

SHERIDAN v FOREST HILLS PUBLIC SCHOOLS Docket No. 215572. Submitted February 10, 2000, at Grand Rapids. Decided September 25, 2001, at 9:25 A.M. Leave to appeal sought. Vicki S. Sheridan brought an action in the Kent Circuit Court against Forest Hills Public Schools, alleging that the defendant, her employer, is liable to her under the Civil Rights Act, MCL 37.2101 et seq., for sexual harassment in the form of a hostile work environment created by a co-worker. The court, Robert A. Benson, J., granted summary disposition for the defendant, ruling that the defendant lacked actual or constructive notice on which the defendant could have taken prompt remedial action. The plaintiff appealed. The Court of Appeals held-. 1. An employee who seeks to hold the employer responsible under the Civil Rights Act for a hostile work environment created by a supervisor or co-worker must show that the employer knew or should have known of the harassment in question and failed to take remedial action. The employee can demonstrate that the employer knew of the harassment by showing that the employee complained to higher management of the harassment or by showing the pervasiveness of the harassment, which gives rise to the inference of knowledge or constructive knowledge. 2. “Higher management” means those in the employer’s chain of command who possess the ability to exercise significant influence in the decision-making process of hiring, firing, and administering discipline over the alleged harasser. 3. The defendant lacked actual notice of the alleged harassment inasmuch as the plaintiff did not complain of the harassment to anyone in higher management. 4. The defendant lacked constructive notice of the alleged harassment because the harassment was not substantially pervasive enough that constructive knowledge by the defendant can be inferred. Although the defendant knew that the alleged harasser had harassed two other women at work, constructive knowledge by the defendant of the plaintiff’s harassment cannot be inferred inasmuch as the plaintiff complained only that the alleged harasser “bothered” her and she did not disclose to the defendant the sexual nature of the harassment she allegedly endured. 5. The plaintiff’s claim that the defendant had a duty to inform her of the alleged harasser’s sexual harassment of other workers is rejected absent any citation of supporting authority. Affirmed. White, J., dissenting, stated that the grant of summary disposition for the defendant should be reversed because a genuine issue of material fact exists concerning whether the defendant had notice of the alleged hostile work environment. Notice of sexual harassment is adequate if, by an objective standard, the totality of the circumstances were such that a reasonable employer would have been aware of a substantial probability that sexual harassment was occurring, hi this case, the trier of fact could properly conclude that a reasonable employer would have been aware from the complaints made by the plaintiff to her superiors and from the history of the alleged harasser that there was a substantial probability that the plaintiff was being sexually harassed. Civil Rights — Sexual Harassment — Hostile Work Environment — Employer Liability. An employee who seeks to hold the employer responsible under the Civil Rights Act for a hostile work environment created by a supervisor or co-worker must show that the employer knew or should have known of the harassment in question and failed to take remedial action; the employee can demonstrate that the employer knew of the harassment by showing that the employee complained to higher management of the harassment or by showing the pervasiveness of the harassment, which gives rise to the inference of knowledge or constructive knowledge; “higher management” refers to those who possess the ability to exercise significant influence in the decision-making process of hiring, firing, and administering discipline over the alleged harasser (MCL 37.2101 et seq.). Elizabeth S. Holmes, for the plaintiff. Miller, Johnson, Snell & Cummiskey, P.L.C. (by Jon G. March and Susan B. Hoekema), for the defendant. Before: Zahra, P.J., and White and Hoekstra, JJ. Zahra, P.J. Plaintiff Vicki S. Sheridan appeals as of right the circuit court’s order granting defendant Forest Hills Public Schools summary disposition under MCR 2.116(C)(10) in this hostile work environment sexual harassment case brought under the Civil Rights Act (CRA), MCL 37.2101 et seq. We affirm. FACTS This case arises out of the alleged sexual harassment of plaintiff by Vem Knapp. Both plaintiff and Knapp were custodians employed by defendant when the alleged sexual harassment occurred. The genuine and material facts viewed in a light most favorable to plaintiff establish the following. On August 26, 1993, plaintiff informed defendant’s assistant superintendent of personnel that she was sexually harassed on the job. In a follow-up meeting on August 31, 1993, plaintiff complained that, in the course of her employment on August 23, 1993, Knapp propositioned her and physically exposed himself to her. Defendant immediately began an investigation that culminated in the termination of Knapp’s employment on October 4, 1993. After reporting the incident, plaintiff took a leave of absence and was subsequently placed on a medical leave. Plaintiff never returned to work. On February 28, 1996, plaintiff brought this suit, specifically alleging that Knapp raped her in defendant’s Community and Aquatic Center (the “pool building”) in the spring of 1991. Plaintiff also alleged that Knapp repeatedly harassed and abused her with “sexual demands, unconsented touchings and propositions to engage in sexual activities.” Plaintiff maintained that defendant was liable pursuant to the cra for Knapp’s actions under a theory of respondeat superior. Defendant brought a motion for summary disposition, arguing, in relevant part, that plaintiff never reported any acts of assault or sexual harassment to defendant before August 1993. Defendant maintained that there was no evidence that it failed to take prompt remedial action against Knapp. In the absence of such evidence, defendant argued, it could not be held liable for the actions of Knapp. The trial court granted defendant’s motion for summary disposition. This appeal followed. A. THE MANAGEMENT STRUCTURE OF FOREST HILLS PUBLIC SCHOOLS Defendant is a suburban Grand Rapids school district that is operated under the supervision of a superintendent. Employee matters are administered through the assistant superintendent for personnel. Both plaintiff and Knapp were custodians for defendant. Custodians are supervised by the director of buildings and grounds who reports to the director of operations. The director of operations reports directly to the assistant superintendent for personnel. Custodial crews are divided by facility. At each facility, one custodian is designated the “head custodian.” The head custodian is responsible for noting attendance and insuring that custodial work is properly completed. When a custodial crew consists of more than one custodian per shift, one member of the shift is designated a “lead custodian,” who assumes the duties of the head custodian for that shift. All custodians are members of a collective bargaining unit. The director of buildings and grounds and all persons above him are not members of the collective bargaining unit. The lead and head custodians do not have authority to hire, fire, or discipline employees or to render recommendations regarding pay, hours, or job transfers. Such decisions are made by the superintendent on the basis of recommendations from the director of buildings and grounds, the director of operations, and the assistant superintendent for personnel. B. CLAIMS OF HARASSMENT BEFORE AUGUST 1993 1. KNAPP’S HARASSMENT OF PLAINTIFF Plaintiff testified that in April 1990 Knapp entered the pool building and raped her. Plaintiff admitted that she did not report the rape to anyone. Plaintiff also testified that after the rape, Knapp harassed her by calling her pager repeatedly and by loitering outside the pool building while plaintiff worked. Plaintiff informed Donald Finch, the director of buildings and grounds, and Kathy Knapp, the head custodian at the pool building, that she did not feel safe working nights. Plaintiff asked that security be provided during her shift. However, plaintiff did not complain to anyone that Knapp was harassing her. Plaintiff also testified that in 1991 Knapp entered the pool building and assaulted her in the boiler room by kissing her on the lips and touching her inappropriately. Again, plaintiff admitted that she did not report this incident to anyone. Later in 1991, plaintiff met with Finch and Terri Handlin, director of the community education program and pool building administrator, to discuss job-related problems, including plaintiffs security concerns and plaintiffs conduct of bringing her children to work. Handlin’s handwritten notes from the meeting indicate that plaintiff believed Knapp was calling her pager and loitering outside the pool building while plaintiff worked. The notes also indicate, however, that plaintiff did not want Finch or Handlin to assist plaintiff in dealing with Knapp. Plaintiff’s recollection of the meeting is consistent with Handlin’s notes. Plaintiff testified that Handlin and Finch offered to assist her if Knapp was causing her problems. However, plaintiff declined their help, indicating that she “will take care of it [and] handle it” herself. Plaintiff admitted that she did not tell Finch or Handlin about the rape, and she did not provide them with any specifics about the assault in the boiler room. Handlin discussed the matter with a number of people, including Linda VanderJagt, the assistant superintendent for personnel. Plaintiff also met with VanderJagt, Paul Northuis, the director of operations, and a union representative sometime in the summer of 1991 to discuss her work situation. VanderJagt testified that she asked plaintiff to attend the meeting to discuss plaintiff’s claims that Knapp was making noises outside the pool building and calling plaintiff’s pager. VanderJagt asked plaintiff if Knapp was bothering her. Plaintiff responded that it was none of their business. Plaintiff claimed that she and Knapp were friends. Plaintiff indicated that she did not want the school involved in her personal life. VanderJagt focused on Knapp because it was brought to her attention that plaintiff had mentioned his name as being the person calling her pager and loitering outside the pool building while she worked. Additionally, VanderJagt was aware that Knapp was previously disciplined because of a 1988 complaint of sexual harassment by another employee. After VanderJagt met with plaintiff, she met with Knapp. Because plaintiff did not make any complaint against Knapp, VanderJagt merely informed Knapp that there had been rumors that Knapp had made “inappropriate statements or gestures.” VanderJagt reminded Knapp that, pursuant to the 1988 discipline, any farther acts of harassment would result in the termination of his employment. VanderJagt did not discipline Knapp at that time. In September 1991, plaintiff was assigned to work at Northern High School (Northern). Shortly thereafter, Knapp applied for and received a custodial position at Northern. Plaintiff testified that after Knapp received the position she told Mark Scoby, the head custodian at Northern, that “[Knapp] better not come on my side of the building.” Scoby specifically inquired about what had happened at the pool building. Plaintiff informed Scoby that the pool incident “was bad.” However, plaintiff admitted that she did not provide Scoby with specifics and did not tell Scoby that she had been raped or sexually assaulted. Plaintiff testified that Scoby told her not to worry and that if anything happened at Northern, “we’ll take care of it.” Plaintiff claimed that in the summer of 1993 Knapp tried to communicate with her and “rubbed up” against her when she and Knapp were assigned to work together at Northern. Plaintiff complained to Scoby about Knapp making physical contact with her. Scoby confronted Knapp and told plaintiff that she could work in a different area. Neither Scoby nor plaintiff informed their immediate supervisor, Finch, or anyone else about the incident of physical contact. 2. PRIOR COMPLAINTS AGAINST KNAPP In 1988, a female employee claimed that she was sexually harassed by Knapp in the course of her employment. Defendant immediately investigated the complaint and found it to be meritorious. Knapp was disciplined. The discipline included a five-day suspension without pay. Additionally, Knapp was ordered to stay away from the employee who was the victim of his harassment, reassigned, and placed on probation. Shortly after Knapp was suspended in 1988, another female employee informed Finch that she had “problems” with Knapp three years earlier. No specifics were provided to Finch and no formal complaint was made. ANALYSIS We review de novo a motion for summary disposition based on MCR 2.116(C)(10). Motions brought under this court rule test the factual support of a claim. Quinto v Cross & Peters Co, 451 Mich 358, 362-363; 547 NW2d 314 (1996). The moving party has the initial burden of supporting its position with documentary evidence such as affidavits, depositions, admissions, or interrogatory responses. Smith v Globe Life Ins Co, 460 Mich 446, 454-455; 597 NW2d 28 (1999). The burden then shifts to the opposing party to establish the existence of a factual dispute. Id. at 455. If the party opposing the motion fails to present documentary evidence establishing the existence of a genuine and material fact, the motion should be granted. Id.; Aetna Casualty & Surety Co v Ralph Wilson Plastics Co, 202 Mich App 540, 548; 509 NW2d 520 (1993). Under the CRA, a prima facie case of hostile work environment sexual harassment includes the following five elements: “(1) the employee belonged to a protected group; (2) the employee was subjected to communication or conduct on the basis of sex; (3) the employee was subjected to unwelcome sexual conduct or communication; (4) the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment; and (5) respondeat superior.” [Chambers v Trettco, Inc, 463 Mich 297, 311; 614 NW2d 910 (2000), quoting Radtke v Everett, 442 Mich 368, 382-383; 501 NW2d 155 (1993).] The last element is at issue here. As a general rule, “an employer may avoid liability ‘if it adequately investigated and took prompt and appropriate action upon notice of the alleged hostile work environment.’ ” Radtke, id. at 396, quoting Downer v Detroit Receiving Hosp, 191 Mich App 232, 234; 477 NW2d 146 (1991). Thus, an employer must have actual or constructive notice of the alleged harassment before liability will attach to the employer. Radtke, supra at 397, n 44, citing Downer, supra at 235; Grow v W A Thomas Co, 236 Mich App 696, 702-703; 601 NW2d 426 (1999), citing Downer, supra; Kauffman v Allied Signal, Inc, 970 F2d 178, 183 (CA 6, 1992). In McCarthy v State Farm Ins Co, 170 Mich App 451; 428 NW2d 692 (1988), this Court explained what was meant by actual or constructive knowledge. “Where . . . the plaintiff seeks to hold the employer responsible for the hostile environment created by the plaintiff’s supervisor or co-worker, she must show that the employer knew or should have known of the harassment in question and failed to take prompt remedial action. . . . The employee can demonstrate that the employer knew of the harassment by showing that she complained to higher management of the harassment... or by showing the pervasiveness of the harassment, which gives rise to the inference of knowledge or constructive knowledge.” [Id. at 457, quoting Henson v Dundee, 682 F2d 897, 905 (CA 11, 1982).] See Hartleip v McNeilab, Inc, 83 F3d 767, 776-777 (CA 6, 1996). Courts must apply an objective standard of review when considering whether the employer was provided adequate notice. Chambers, supra at 319. “[N]otice of sexual harassment is adequate if, by an objective standard, the totality of the circumstances were such that a reasonable employer would have been aware of a substantial probability that sexual harassment was occurring.” Id. (emphasis added). A. DEFENDANT DID NOT HAVE ACTUAL NOTICE OF A HOSTILE WORKPLACE Applying these legal principles to this case, we conclude that defendant did not have actual knowledge of the sexual harassment before August 1993 because plaintiff did not complain about the harassment to higher management. The term “higher management” is not defined in McCarthy or any subsequent case involving a claim under the CRA. We define this term to mean someone in the employer’s chain of command who possesses the ability to exercise significant influence in the decision-making process of hiring, firing, and disciplining the offensive employee. This definition is consistent with our Supreme Court’s analysis of harassment alleged by “supervisors.” See Chambers, supra at 318-319; Champion v Nation Wide Security, Inc, 450 Mich 702, 705; 545 NW2d 596 (1996); Radtke, supra at 396-397. By defining “higher management” as we have, we are identifying management employees who have actual authority to effectuate change in the workplace. These are the type of employees implicitly referred to as “higher management” in McCarthy. Moreover, the purpose of defining the term “higher management” is to identify the employees whose knowledge may fairly be imputed to the employer. In Chambers, our Supreme Court observed that the term “employer” is statutorily defined under the cra to include the employer and its agents. Chambers, supra at 311. Because these “higher management” employees are vested by the employer with actual authority to effectuate change in the workplace, principles of agency law support the conclusion that the knowledge they possess regarding conditions in the workplace would properly be imputed to the employer. We reject plaintiff’s contention that defendant possessed actual knowledge of a hostile workplace because plaintiff informed the head custodian at Northern of some of her concerns regarding Knapp. AH recommendations regarding hiring, firing, pay, job assignments, hours, and discipline of custodians were made by Northuis, Finch, and VanderJagt. Therefore, Northuis, Finch, and VanderJagt are the only individuals involved that could reasonably have their knowledge imputed to defendant. Significantly, plaintiff did not teU any of these individuals about the assaults or sexual harassment until August 1993. Plaintiff testified that before August 1993, she simply complained that Knapp “bothered” her. She concedes that she did not directly state to her “recognized” supervisors that she felt the harassment was of a sexual nature. Our conclusion that plaintiff did not report any aHeged sexual harassment so as to impute knowledge to defendant is not altered when considered in Hght of defendant’s express sexual harassment pohcy. Defendant’s sexual harassment pohcy states, in pertinent part: Any employee who has been subject to or witnessed sexual harassment in the workplace is requested and encouraged to report the sexual harassment to an appropriate supervisor or to the Assistant Superintendent for Personnel and to cooperate in any subsequent investigation. Under Michigan law, an employer may enhance its employment relationship with its employees through express policies and practices. See In re Certified Question, 432 Mich 438, 453-454; 443 NW2d 112 (1989), quoting Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 613; 292 NW2d 880 (1980); see also Heurtebise v Reliable Business Computers, Inc, 452 Mich 405, 412-

Carol Perkins vs. Commonwealth & others. No. 98-P-1988. Worcester. October 5, 2000. July 31, 2001. Present: Laurence, Dreben, & Celinas, JJ. Negligence, Employer. Workers’ Compensation Act, Exclusivity provision, To whom act applies. Common Law. Employment, Constructive discharge, Termination. Public Employment, Police. Public Policy. Anti-Discrimination Law, Employment. A claim by a cadet at the State police academy alleging negligence — premised upon allegations that academy personnel exacerbated an existing medical condition by misdiagnosing her condition and by negligently denying her requests for water, rest, and medication — was precluded by the exclusivity provisions of the workers’ compensation act, where, if the claims were sustained at trial, the harm caused by the defendants’ conduct would be compensable under G. L. c. 152, § 1(7A), as such conduct was at least a major cause of her disability or need for treatment [176-177]; further, there was no merit to the cadet’s contention that her negligence claims were not barred because of the so-called “dual persona” doctrine [177-178], A claim by a cadet at the State police academy that academy personnel, by allowing her to be hazed, constructively discharged her in violation of public policy, namely G. L. c. 269, § 17, was precluded by the workers’ compensation act, where there was no Legislative directive or enunciated public policy that prevented the academy, a quasi military training institution, from discharging a cadet who could not tolerate the rigors and discipline required of other recruits or from discharging a cadet without any cause at all. [178-181] A claim by a cadet at the State police academy that an employee of the academy refused to allow her to obtain sufficient water during training, and violated the Massachusetts Civil Rights Act by hazing and depriving her of a safe work environment and appropriate medical care was barred, where the cadet was unable to clearly identify any secured right with which the academy employee interfered. [181-182] Civil action commenced in the Superior Court Department on May 5, 1995. The case was heard by James P. Donohue, J., on motions for summary judgment. Gary H. Goldberg for the plaintiff. Brian Rogal (Sheila E. McCravy with him) for Johanna Lawlor & others. Howard R. Meshnick, Assistant Attorney General, for the Commonwealth & others. Dreben, J. While training as a cadet at the State Police Academy (Academy), the plaintiff became ill with a severe cold. She brought this action against three agencies of the Commonwealth and three employees of the Academy, alleging that during her illness she was required to participate in physical activities contrary to a physician’s advice, was deprived of sufficient water, and suffered other humiliations and hazing. As a result, she became fearful for her health and found it necessary to resign. She contends that the defendant agencies were negligent in providing her with medical care and, citing G. L. c. 269, § 17, see note 7, infra, that the defendants, by allowing her to be hazed by Academy personnel, constructively discharged her in violation of public policy. She also claims that one of the individual defendants, Trooper Cambria, violated her civil rights. She sought damages for physical and emotional distress, loss of compensation and benefits, attorneys’ fees, and reinstatement as a cadet at the Academy. A judge of the Superior Court granted motions for summary judgment for all the defendants. We affirm. Although the defendants deny that the plaintiff was deprived of rest, water or medicine, for purposes of reviewing the motion judge’s ruling, we assume the facts to be as alleged by the plaintiff and make all logically permissible inferences in her favor. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202, 203 (1991). 1. Negligence. The plaintiff recognizes that under G. L. c. 152, § 24, unless an employee expressly preserves his or her common law rights of action, a claim alleging negligence of an employer or of a coemployee is foreclosed by the exclusivity provisions of the workers’ compensation act (act). Foley v. Boston Housing Authy., 407 Mass. 640, 641 n.3 (1990). The plaintiff, however, argues that her common law claim of negligence is not barred because her illness, initially a severe cold, may have arisen from sources outside her employment and hence is not compensable under the act. This argument is without merit, as her negligence claims are premised upon allegations that Academy personnel exacerbated her medical condition by misdiagnosing her condition and by negligently denying her requests for water, rest, and medication. If these claims were sustained at trial, the harm caused by the defendants’ conduct would be compensable under G. L. c. 152, § 1(7A), as such conduct was at least a major cause of her disability or need for treatment. The exclusivity provisions of the act would, therefore, control and preclude her negligence claim. The plaintiff also urges that her negligence claims are not barred because of the “dual persona” doctrine which provides that an employer’s conduct may in some instances be regarded as conduct of a third party and be subject to liability despite the exclusivity provisions of G. L. c. 152. Under this theory, an employer may be subject to suit if its “liability to the injured employee ‘derives from a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person.’ ” Barrett v. Rodgers, 408 Mass. 614, 617 (1990), quoting from Gurry v. Cumberland Farms, Inc., 406 Mass. 615, 620-621 (1990), in turn quoting from 2 A. Larson, Workmen’s Compensation § 72.80, at 14-229 (1988). That doctrine, which has not been explicitly adopted in Massachusetts, although it has been alluded to favorably, Barrett v. Rodgers, supra at 617, does not aid the plaintiff’s cause. The acts and omissions of the medical personnel claimed to be wrongful were an integral part of the Academy’s role of providing medical assistance to cadets. The plaintiff did not see the medical personnel as a private patient, but rather as a cadet entitled to medical services. See Scott v. Wolf Creek Nuclear Operating Corp., 23 Kan. App. 2d 156, 160 (1996) (malpractice action against company medical personnel barred by workers’ compensation statute). 2. Constructive discharge. Claims for emotional or physical injuries because of wrongful termination or constructive discharge are also precluded by the workers’ compensation act, Simmons v. Merchants Mut. Ins. Co., 394 Mass. 1007, 1007-1008 (1985); see Anzalone v. Massachusetts Bay Transp. Authy., 403 Mass. 119, 124-125 (1988), unless they are sustained in connection with claims that are not barred by the exclusivity provisions of the workers’ compensation act. Green v. Wyman-Gordon Co., 422 Mass. 551, 560-561 (1996). For this reason, the plaintiff argues that her claim of constructive discharge seeks contract damages. Although it is dubious that she can show that she was constructively discharged, that is, that her employer created “working conditions ... so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign,” GTE Prods. Corp. v. Stewart, 421 Mass. 22, 34-36 (1995), quoting from Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir. 1977), we will again assume for purposes of reviewing the summary judgment motion that she can sustain the claim. Recognizing that an at-will employee may be terminated at any time for any reason or for no reason at all, Upton v. JWP Businessland, 425 Mass. 756, 757 (1997), the plaintiff points out that liability may be imposed on the employer if the employee is terminated “for a reason that violates a clearly established public policy.” Ibid. The plaintiff claims that G. L. c. 269, § 17, is such a policy. That statute, set out fully in the margin, defines “hazing” as “any conduct or method of initiation into any student organization, whether on public or private property, which wilfully or recklessly endangers the physical or mental health of any student or other person” (emphasis supplied). The “brutal treatment or forced physical activity” made criminal by the statute is directed at student organizations, not at the educational institutions themselves. The “lengthy statement” of Attorney General Shannon mentioned in Shepard v. Attorney Gen., 409 Mass. 398, 400 (1991), and made a part of the record on this appeal, also considers the statute as applying solely to student organizations. Compare Shepard, supra at 400 n.3, where the trial judge found that State troopers and employees of the Massachusetts Criminal Justice Training Council may have violated the hazing statute. Our cases interpret the public policy exception narrowly. King v. Driscoll, 418 Mass. 576, 582 (1994). For example, in Upton v. JWP Businessland, 425 Mass. at 759, a mother was not permitted to invoke public policy to bring an action for wrongful discharge where, because of childcare commitments, she could not work the long hours required by her employer. The court so held despite the strong policy favoring the care and protection of children, which is reflected in the possible eligibility for unemployment compensation in such circumstances. Moreover, “the internal administration, policy, functioning and other matters of an organization cannot be the basis for a public policy exception to the general rule that at-will employees are terminable at any time with or without cause.” King v. Driscoll, 418 Mass. at 583. The requirements of police training and the rigors to which cadets are subjected are internal matters of the Academy. See the portion of the Police Academy Handbook set out in the margin. Here, there is no Legislative directive or enunciated public policy that precludes the Academy, a quasi military training institution, from discharging a cadet who cannot tolerate the rigors and discipline required of other recruits or from discharging a cadet without any cause at all. The Academy need not “adjust its expectations, based on a case-by-case analysis of an at-will employee’s [fears for her or his health], or face liability for having discharged the employee.” Upton v. JWP Businessland, 425 Mass. at 760. 3. Civil rights claims. Claims under the Massachusetts Civil Rights Act (MCRA), G. L. c. 12, § 11I, are not barred by the exclusivity provisions of the workers’ compensation act. Foley v. Polaroid Corp., 381 Mass. 545, 553 (1980). The claim here is that the defendant Trooper Cambria refused to allow the plaintiff to obtain sufficient water, and violated the MCRA by hazing and by depriving her of a safe work environment and appropriate medical care. To establish a claim under the MCRA, a plaintiff must prove that “(1) [her] exercise or enjoyment of rights secured by the Constitution or laws of either the United States or of the Commonwealth, (2) have been interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by ‘threats, intimidation or coercion.’ Swanset Dev. Corp. v. Taunton, 423 Mass. 390, 395 (1996).” Brunelle v. Lynn Pub. Schools, 433 Mass. 179, 182 (2001). The plaintiff’s claims founder on the first requirement and we need not reach the other two. She has not, as required, “clearly identified any ‘secured right’ with which [Trooper Cambria] interfered.” See Flesner v. Technical Communications Corp., 410 Mass. 805, 818 (1991). As indicated earlier, G. L. c. 269, § 17, the hazing statute, is not applicable to the Academy, as it is not a student organization, but rather a school, an educational institution. Moreover, even if the statute were applicable, in order “to seek redress through [MCRA as under its Federal analog, 42 U.S.C.] § 1983 ... a plaintiff must assert the violation of a federal [or State] right, not merely a violation of federal [or State] law.” Blessing v. Freestone, 520 U.S. 329, 340 (1997) (emphasis in original). Our courts are “reluctant to infer a private cause of action from a statute in the absence of some indication from the Legislature supporting such an inference.” Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 544 (1998). Moreover, “penal statutes [G. L. c. 269, § 17, is such a statute] have been construed as creating a new cause of action ... if, and only if, that appears by express terms or by clear implication to have been the legislative intent.” Johnson v. United States Steel Corp., 348 Mass. 168, 169-170 (1964), quoting from Mezullo v. Maletz, 331 Mass. 233, 238 (1954). No such intent is evident in the hazing statute. “[I]t would be anomalous, on the facts of this case, to allow a remedy under the State Civil Rights Act where a legislative remedy was not made available under [c. 269, § 17].” Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. at 210 n.11. In addition to the hazing statute, the plaintiff cites to G. L. c. 149, §§ 3, 5, and 6, to sustain her claim that she has a secured right to a safe working environment. Section 3 provides for “inspection and investigation” by the Attorney General of “all places of employment,” and § 5 permits him or her to investigate conditions existing in any industry, and to receive complaints “concerning alleged violations of any laws enforced under his direction.” Section 6 permits “any person aggrieved” by the violation of any “rule, regulation or requirement made by the department” of labor and workforce development to file a complaint in the District Court. Assuming, without deciding, that such a violation creates a secured right, but see Loffredo v. Center for Addictive Behaviors, 426 Mass. at 545-546, the plaintiff has not pointed to any rule or regulation that has been violated. See Collins v. Harker Heights, 503 U.S. 115, 126-129 (1992) (no Federal due process right to a safe working environment; such a claim is “unprecedented”). The plaintiff has made no argument within the meaning of Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), in support of her contention that she is entitled to appropriate medical care under the MCRA, and, accordingly, we do not reach that claim. Since there are here no genuine issues of material fact, and the record as presented shows that the defendants are entitled to judgment as matter of law, the motion judge was correct in granting summary judgment for the defendants. Judgments affirmed. Executive Office of Public Safety, Massachusetts Criminal Justice Training Council, and Department of State Police. Leslie Bodor, Johanna Lawlor, and Lorraine Cambria. The parties, and hence we, proceed on the premise that cadets at the Academy are employees covered by the workers’ compensation act. No party argues that G. L. c. 152, § 69, applies to exclude the plaintiff. The first sentence of G. L. c. 152, § 24, as amended by St. 1991, c. 398, § 43, provides in relevant part: “An employee shall be held to have waived his right of action at common law or under the law of any other jurisdiction in respect to an injury that is compensable under this chapter, to recover damages for personal injuries, if he shall not have given his employer, at the time of his contract of hire, written notice that he claimed such right. ...” “To be compensable [under the workers’ compensation act], injury must arise . . . from an identifiable condition that is not common . . . to all or a great many occupations.” Zerofski’s Case, 385 Mass. 590, 594-595 (1982). General Laws c. 152, § 1(7A), provides: “If a compensable injury . . . combines with a pre-existing condition, which resulted from an injury or disease not compensable under this chapter, to cause or prolong disability or a need for treatment, the resultant condition shall be compensable only to the extent such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment.” Apparently, where physical or mental harm is incidental and not an indispensable ingredient of the contract claim, damages for such harms may be recovered. Green v. Wyman-Gordon Co., 422 Mass. at 560-561. General Laws c. 269, § 17, provides: “Whoever is a principal organizer or participant in the crime of hazing, as defined herein, shall be punished by a fine of not more than three thousand dollars or by imprisonment in a house of correction for not more than one year, or both such fine and imprisonment. “The term ‘hazing’ as used in this section and in sections eighteen and nineteen, shall mean any conduct or method of initiation into any student organization, whether on public or private property, which wilfully or recklessly endangers the physical or mental health of any student or other person. Such conduct shall include whipping, beating, branding, forced calisthenics, exposure to the weather, forced consumption of any food, liquor, beverage, drug or other substance, or any other brutal treatment or forced physical activity which is likely to adversely affect the physical health or safety of any such student or other person, or which subjects such student or other person to extreme mental stress, including extended deprivation of sleep or rest or extended isolation. “Notwithstanding any other provisions of this section to the contrary, consent shall not be available as a defense to any prosecution under this action.” For an enumeration of cases where the public policy exception made redress available to an at-will terminated employee and a list of cases where termination did not warrant recovery, see Upton v. JWP Businessland, 425 Mass. at 757-758. On page two of an undated publication of the Department of State Police contained in the record appendix, issued under the names of William F. Weld, Governor, Thomas C. Rapone, Secretary, and Charles P. Henderson, Colonel, and entitled Massachusetts State Police, Academy Handbook, the following is stated: “To prepare recruits for this function, military drill and civil disturbance training are essential components of the State Police Academy recruit training program. Recruits learn to recognize rank, follow orders, practice facing movements, and become familiar with formations and techniques for responding to civil disturbances. In addition, recruits leam to keep their emotions in check and perform under pressure. “The academy atmosphere is purposefully designed to develop these capabilities, build esprit de corps, and assist the recruit in making the challenging transition from civilian to disciplined Trooper. During the early phases of training, recruit behavior is tightly controlled and strictly directed to instill military discipline.” “[T]he Legislature intended to provide a remedy under G. L. c. 12, § 11I, coextensive with 42 U.S.C. § 1983 . . . , except that the Federal statute requires State action whereas its State counterpart does not.” Batchelder v. Allied Stores Corp., 393 Mass. 819, 822-823 (1985).

JOHN S. RENEGAR, Plaintiff v. R.J. REYNOLDS TOBACCO COMPANY, Defendant No. COA00-450 (Filed 17 July 2001) Statute of Limitations— wrongful discharge — filing state action after voluntary dismissal of federal action The trial court did not err in a wrongful discharge action by granting summary judgment in favor of defendant employer based on the expiration of the three-year statute of limitations under N.C.G.S. § 1-52(5) even though plaintiff filed the instant state action within one year of the voluntary dismissal without prejudice of his non-diversity federal complaint under Federal Rule 41, because: (1) plaintiffs voluntary dismissal of a non-diversity case failed to implicate the savings provision of N.C.G.S. § 1A-1, Rule 41(a) and Federal Rule 41 contains no savings provision; (2) plaintiffs federal complaint reveals no basis upon which the federal court might have assumed supplemental jurisdiction under 28 U.S.C.A.§ 1367(a) for plaintiff’s wrongful discharge claim; and (3) plaintiffs state court action was not a new action based upon the same claims as those asserted in the prior action so as to bring N.C.G.S. § 1A-1, Rule 41(a) into play. Appeal by plaintiff from order entered 29 November 1999 by Judge Peter M. McHugh in Forsyth County Superior Court. Heard in the Court of Appeals 30 January 2001. Herman L. Stephens for plaintiff-appellant. Gonstangy, Brooks & Smith, L.L.C., by W.R. Loftis, Jr. and Virginia A. Piekarski, for defendant-appellee. JOHN, Judge. Plaintiff John S. Renegar appeals the trial court’s 29 November 1999 order granting summary judgment in favor of defendant R.J. Reynolds Tobacco Company (RJR). We affirm the trial court. Our disposition of plaintiff’s appeal renders a lengthy recitation of the underlying facts unnecessary. Plaintiff began employment with RJR on 2 June 1984 and was terminated 15 April 1996. In June 1998, plaintiff filed a pro se civil action (plaintiff’s federal action) against RJR in the United States District Court for the Middle District of North Carolina. Plaintiff amended his complaint 7 July 1998, alleging the following six separate causes of actions: (1) discrimination against plaintiff in violation of title VII of the federal Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq. (1994); (2) discrimination against plaintiff in violation of 42 U.S.C.A. § 12101 et seq. (1995), the Americans With Disabilities Act; (3) violation of plaintiff’s rights under the federal Family and Medical Leave Act, 29 U.S.C.A. § 2601 et seq. (1999); (4) violation of plaintiffs federal constitutional rights to privacy and speech under the First, Fourth and Fourteenth Amendments to the United States Constitution; (5) “infliction of daily emotional distress” as a result of discrimination, harassment and retaliation; (6) and discrimination against plaintiff in violation of 29 U.S.C.A. § 621 et seq. (1999), the Age Discrimination in Employment Act. On 29 August 1998, plaintiff filed a voluntary dismissal without prejudice, pursuant to Rule 41(a) of the Federal Rules of Civil Procedure (Federal Rule 41), as to each of the foregoing claims. See Fed. Rules Civ. Proc. Rule 41(a), 28 U.S.C.A. (1992). Precisely one year later, on 29 August 1999, plaintiff filed a complaint against RJR in Forsyth County Superior Court (plaintiffs state action) asserting a claim of wrongful discharge in violation of public policy. RJR thereupon moved to dismiss plaintiffs complaint pursuant to N.C.G.S. § LA-1, Rule 12(b)(6) (1999) on grounds “it fail[ed] to state a claim upon which relief can be granted because the claim asserted by Plaintiff therein is time-barred” (RJR’s motion). The trial court treated RJR’s motion as one for summary judgment and, by order dated 29 November 1999, granted the motion on the basis that the applicable statute of limitations had expired. Plaintiff appeals. It is undisputed that the statute of limitations for a wrongful discharge action under North Carolina law is three years from the date of discharge. See N.C.G.S. § 1-52(5) (1999). In the case sub judice, therefore, the statute began to run 15 April 1996, the date of plaintiff’s termination, and thus ordinarily would have expired 15 April 1999, several months prior to the filing of plaintiff’s state action. Rule 41 of the North Carolina Rules of Civil Procedure differs from its federal counterpart in that it contains the following additional provision: If an action commenced within the time prescribed therefor, or any claim therein, is dismissed without prejudice under this subsection, a new action based on the same claim may be commenced within one year after such dismissal unless a stipulation filed under (ii) of this subsection shall specify a shorter time. G.S. § 1A-1, Rule 41(a)(1) (1999). “The effect of this provision is to extend the statute of limitations by one year after a voluntary dismissal.” Staley v. Lingerfelt, 134 N.C. App. 294, 298, 517 S.E.2d 392, 395, disc. review denied, 351 N.C. 109, 540 S.E.2d 367 (1999). Disposition of the instant appeal therefore turns upon the applicability of the one-year savings provision of N.C. Rule 41 to plaintiffs state action. Plaintiff argues the trial court erred in allowing RJR’s motion in light of the savings provision of N.C. Rule 41. According to plaintiff, the federal court had supplemental or “pendent” jurisdiction over his wrongful discharge claim. See 28 U.S.C.A. § 1367(a) (1993) (when federal district court has original jurisdiction over a civil action, it may also exercise “pendent” or “supplemental” jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy). As such, plaintiff maintains “state substantive law governs all pendent jurisdiction North Carolina state law claims” in a federal case. Because he commenced the instant state action within one year of the voluntary dismissal of his federal complaint, plaintiff concludes his state action was timely filed under N.C. Rule 41(a). However, regarding his initial federal action, plaintiff concedes “[t]here was no diversity of citizenship between plaintiff and [RJR],” and that “[t]he federal court’s jurisdiction was based on the federal questions he presented in his federal complaint.” Accordingly, plaintiff’s first complaint was not predicated upon diversity of citizenship jurisdiction, i.e., it was a “non-diversity” case. This is significant because determination of the law to be applied in federal court is governed by the source of the right or issue being adjudicated. 19 C. Wright, A. Miller & E. Cooper, Fed. Prac. & Proc. 2d § 4520 (1996). For example, “[t]he tolling of a state statute of limitation in a diversity case is strictly a substantive matter of state law,” Kahn v. Sturgill, 66 F.R.D. 487, 491 (M.D.N.C. 1975) (emphasis added), which the federal court must follow, id.; see Erie Railroad v. Tomkins, 304 U.S. 64, 78, 82 L. Ed. 1188, 1194 (1938) (federal court in diversity case is to apply substantive provisions of state law), and Guaranty Trust Co. v. York, 326 U.S. 99, 108, 89 L. Ed. 2079, 2086 (1945) (“federal court adjudicating a state-created right solely because of the diversity of citizenship of the parties is for that purpose, in effect, only another court of the State”). Conversely, where a federal court gains jurisdiction over state claims supplementally, pursuant to 28 U.S.C.A. § 1367(a), because the action was . . . brought based on federal or constitutional law, the [federal] court is not bound to state substantive law only. Harter v. Vernon, 139 N.C. App. 85, 94, 532 S.E.2d 836, 841, appeal dismissed and disc. review denied, 453 N.C. 263, 546 S.E.2d 97 (2000), cert. denied,-U.S.-,-L. Ed. 2d - (2001). In response to plaintiffs arguments, RJR maintains that plaintiffs voluntary dismissal under Federal Rule 41 of a non-diversity case failed to implicate the savings provision of N.C. Rule 41(a), and further that plaintiffs state court action in any event was not “a new action based upon the same claims as those asserted in the prior action” (emphasis in original) so as to bring N.C. Rule 41(a) into play. In sum, the issue before us is whether plaintiff, after having first filed a voluntary dismissal without prejudice under Federal Rule 41 of his federal action, a non-diversity case, was improperly precluded, in light of the one-year savings provision of N.C. Rule 41(a)(1), from pursuing a claim in state court after the statute of limitations had run on that claim. Previous decisions of our appellate courts indicate this issue must be resolved against plaintiff. In Bockweg v. Anderson, 328 N.C. 436, 402 S.E.2d 627 (1991), the plaintiffs filed a complaint in federal court sitting in diversity jurisdiction alleging various state malpractice claims. Id. at 437, 402 S.E.2d at 628. Plaintiffs subsequently stipulated to a voluntary dismissal without prejudice as to one of the claims, refiling that claim in state court within one year of the voluntary dismissal, but beyond the applicable limitations period for the dismissed claim. Id. The trial court rejected the suit as untimely and plaintiffs appealed. Our Supreme Court characterized the issue on appeal as the effect of the dismissalf] on plaintiffs’ subsequent attempt to refile the action in state court within the one-year savings provision in N.C.G.S. § 1A-1, Rule 41(a)(1), but outside the period of limitations that controls unless N.C.G.S. § 1A-1, Rule 41(a)(1) applies. Id. at 438, 402 S.E.2d at 628. Citing decisions from the federal courts, the Court stated that the effect of a voluntary dismissal under Federal Rule 41 was dependent upon “whether the federal court’s jurisdiction was based on the existence of a federal question or on diversity of citizenship.” Bockweg, 328 N.C. at 441, 502 S.E.2d at 630. Further, [fjederal courts ordinarily need not consider the applicability of a savings provision, as the federal rule contains no such provision. This applies to cases in federal court in which jurisdiction is not based on diversity of citizenship and in which there is no occasion for the federal court to apply state substantive law. Id. at 438, 402 S.E.2d at 629 (emphasis added). Finally, relying on Humphreys v. United States, 272 F.2d 411 (9th Cir. 1959), the Court stated that “a voluntary dismissal under the Federal Rules in a nondi-versity case in federal court does not toll the statute of limitations or invoke [the] savings provision.” Bockweg, 328 N.C. at 439, 402 S.E.2d at 629. The Court also pointed out that federal courts sitting in diversity, and thus following North Carolina law, have applied the one-year savings provision of N.C. Rule 41 to diversity cases dismissed in federal court and recommenced in that court. Id. at 439-40, 402 S.E.2d at 629-30; see Haislip v. Riggs, 534 F. Supp. 95 (W.D.N.C. 1981); Shuford v. K.K. Kawamura Cycle Co., 649 F.2d 261 (4th Cir. 1981); and Webb v. Nolan, 361 F. Supp. 418 (1972), aff’d, 484 F.2d 1049 (4th Cir. 1973), cert. denied, 415 U.S. 903, 39 L. Ed. 2d 461 (1974). Accordingly, [i]n diversity cases in which state law concerning voluntary dismissal is different from federal law, the federal court will conduct an analysis under Erie and its progeny to determine the applicable law. Further, federal courts sitting in diversity applying North Carolina substantive law have concluded that when a plaintiff voluntarily dismisses in federal court and recommences in federal court, he is entitled to the benefit of the North Carolina savings provision as a matter of state substantive law. Bockweg, 328 N.C. at 441, 402 S.E.2d at 630. Applying the foregoing reasoning to the case before it, the Court held that a plaintiff who stipulates to a voluntary dismissal, without prejudice, of a timely filed action in a federal court sitting in diversity and applying North Carolina law, and refiles the action in North Carolina state court, may invoke the one-year savings provision in N.C.G.S. § 1A-1, Rule 41. Id. at 450, 402 S.E.2d at 635 (emphasis added). However, as in Clark v. Velsicol Chemical Corp., 110 N.C. App. 803, 807, 431 S.E.2d 227, 229 (1993), aff'd, 336 N.C. 599, 444 S.E.2d 223 (1994) (plaintiffs federal case involuntarily dismissed because of lack of diversity, Bockweg inapplicable, and plaintiffs subsequent state action filed outside the appropriate statute of limitations properly dismissed as time barred), Bockweg is inapposite to the case sub judice. Unlike the plaintiffs in Bockweg, plaintiff by his own admission brought his federal action pursuant to the court’s federal question jurisdiction as opposed to its diversity of citizenship jurisdiction. Under Bockweg, therefore, the effect of the voluntary dismissal of plaintiffs federal action upon his state action was governed by Federal Rule 41 which contains no savings provision. See Bockweg, 328 N.C. at 438, 402 S.E.2d at 629; see also Harter v. Vernon, 139 N.C. App. 85, 93-4, 532 S.E.2d 836, 841 (2000) (voluntary dismissal under federal Rule 41 in a nondiversity case does not toll the statute of limitations or implicate the savings provision of N.C. Rule 41(a)). Accordingly, because plaintiffs state action was filed outside North Carolina’s three year statute of limitations for a wrongful discharge claim, see G.S. § 1-52(5), and the savings provision of N.C. Rule 41 was inapplicable to plaintiff’s state action, the trial court did not err in entering summary judgment against plaintiff. Notwithstanding, plaintiff advances the proposition that the federal court maintained “supplemental” jurisdiction, see 28 U.S.C.A § 1367(a), over his wrongful discharge claim in plaintiff’s federal action, thereby necessitating application of North Carolina substantive law, including N.C. Rule 41, to that claim. We do not agree. First, Bockweg did not address supplemental jurisdiction of a federal court over a state action, but rather held that a federal court sitting in diversity and applying North Carolina law, i.e., N.C. Rule 41(a)(1), would allow up to one-year for refiling an action which had been voluntarily dismissed. Bockweg, 328 N.C. at 450, 402 S.E.2d at 635. We reiterate that plaintiff has conceded that jurisdiction over his federal action was based upon “federal question jurisdiction rather than diversity of citizenship jurisdiction.” Perhaps more significantly, careful review of plaintiff’s federal complaint reveals no basis upon which the federal court might have assumed supplemental jurisdiction of plaintiffs wrongful discharge claim. Assuming arguendo plaintiffs claim of wrongful discharge may have been “so related to claims in the action within [the] original jurisdiction [of the federal court] that [it] form[ed] part of the same case or controversy,” 28 U.S.C.A. § 1367(a), plaintiffs federal complaint alleged six claims of action based solely upon federal statutes and the federal constitution and set forth no specific claim under North Carolina substantive law, and specifically no North Carolina wrongful discharge claim, such that the federal court would have been accorded supplemental jurisdiction over that claim. It is well established, moreover, that [t]o benefit from the one year extension of the statute of limitation, the second action must be “substantially the same, involving the same parties, the same cause of action, and the same right. ...” Cherokee Ins. Co. v. R/I, Inc., 97 N.C. App. 295, 297, 388 S.E.2d 239, 240 (citation omitted), disc. review denied, 326 N.C. 594, 393 S.E.2d 875 (1990). Assuming arguendo North Carolina Rule 41(a)(1) was applicable to plaintiffs state action, therefore, plaintiff was not entitled to invoke the one-year savings provision because that action and his prior federal action were not “based on the same claim[s].” G.S. § 1A-1, Rule 41(a)(1). In Stanford v. Owens, 76 N.C. App. 284, 332 S.E.2d 730, disc. review denied, 314 N.C. 670, 336 S.E.2d 402 (1985), a claim of fraud, first alleged during re-filing of a previously voluntarily dismissed negligence claim, was held to have been time-barred by the statute of limitations. The plaintiffs maintained the fraud claim was properly filed within one year of the dismissal in that it ha[d] in effect been before the court all along, since it rest[ed] upon somewhat the same allegations that were made in support of the negligent misrepresentation claim when the action was first filed .... Id. at 289, 332 S.E.2d 733. This Court disagreed, concluding that “[a] claim for fraud is fundamentally different from a claim for negligence,” id., and that plaintiffs original allegations of negligence “did not in effect or otherwise,” id., allege fraud. In Staley v. Lingerfelt, 134 N.C. App. 294, 517 S.E.2d 392, this Court considered the circumstance wherein the plaintiffs’ first complaint [filed 4 August 1995] arose out of the [collision] on 11 June 1993, but alleged on a section 1983 claim and a claim of loss of consortium. Id. at 298, 517 S.E.2d at 395. Plaintiffs subsequently voluntarily dismissed that action and thereafter instituted an action 5 September 1995 alleging the two original claims as well as claims of assault and battery, false arrest and imprisonment, malicious prosecution, intentional infliction of emotional distress, negligent infliction of emotional distress, trespass by a public officer, violations of the North Carolina Constitution, and a claim for punitive damages. Id. at 296, 517 S.E.2d at 394. This Court held the latter claims, filed within one year after voluntarily dismissal of the first complaint but outside the applicable limitations period, did not fall within the one year savings provision of North Carolina Rule 41(a)(1) and thus were barred. Id. at 299, 517 S.E.2d at 396. We reasoned that [although the claims [in plaintiffs’ second complaint] ar[o]se from the same events as the section 1983 and loss of consortium claims, defendants were not placed on notice that they would be asked to defend these claims within the time required by the statute of limitations. Id. In the case sub judice, the claims set forth in plaintiff’s federal and state actions arose from the same event, his discharge by RJR. However, the claim of wrongful discharge alleged in the state action and the federal statutory and constitutional claims alleged in the federal action each constitute “independent cause [s] of action with unique elements which must be proven by plaintiff[],” id., and RJR thus was not placed on notice by plaintiff’s federal action that it would be asked to defend plaintiff’s state wrongful discharge claim “within the time required by the statute of limitations,” id. In short, plaintiff’s state action thus was not “based on the same claims,” G.S. § 1A-1, Rule 41(a)(1), alleged in his federal action. To conclude, plaintiff’s state action, filed 20 August 1999, was not timely filed, and the trial court properly granted summary judgment in favor of RJR. Affirmed. Judges GREENE and TYSON concur.

Grace Cuddyer vs. The Stop & Shop Supermarket Company. Norfolk. March 8, 2001. July 12, 2001. Present: Marshall, C.J., Grbaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Anti-Discrimination Law, Sex, Employment. Massachusetts Commission Against Discrimination. Limitations, Statute of. Practice, Civil, Summary judgment. Discussion of the effect of the continuing violation doctrine on the statute of limitations governing G. L. c. 151B claims of sexual harassment. [530-532] Discussion of the theory of sexual discrimination based on a hostile work environment. [532-534] Statement of the Federal interpretation (“revelatory” standard) that a continuing violation claim of sexual harassment will fail if the plaintiff was, or should have been, aware that she was being unlawfully discriminated against while earlier acts, now untimely, were taking place [534-536], and the reasons why, in construing G. L. c. 151B, this court frequently does not follow the reasoning of Federal appellate decisions applying Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(a)(l) [536-539], On a claim against the defendant employer seeking damages for discrimination by means of sexual harassment in the workplace in violation of G. L. c. 151B, § 4(1) and (16A), alleging that the plaintiff employee had been subjected to a hostile work environment, this court held that the plaintiff had set forth an actionable case of sexual harassment and that, based on the continuing violation doctrine, her claim was not barred by the six-month limitation period set forth in G. L. c. 15 IB, § 5, for complaints filed with the Massachusetts Commission Against Discrimination. [539-540] This court, stating that a female employee had set forth a prima facie claim against her employer of discrimination based on sexual harassment, vacated the grant of summary judgment for the employer and remanded the case to the Superior Court for proceedings consistent with guidelines set forth in this opinion. [540-542] Civil action commenced in the Superior Court Department on September 23, 1997. The case was heard by Judith Fabricant, J., on a motion for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Leonard H. Kesten (Deidre Brennan Regan & Steven C. Sharaf with him) for the plaintiff. Lisa J. Damon (Kent D.B. Sinclair with her) for the defendant. The following submitted briefs for amici curiae: Marisa A. Campagna & Deborah M. Silva for the Massachusetts Chapter of the National Employment Lawyers Association. Simone Liebman for the Massachusetts Commission Against Discrimination. Loretta M. Smith for the Associated Industries of Massachusetts & another. Greaney, J. The plaintiff, Grace Cuddyer, was employed as a line worker in the commissary of the defendant, The Stop & Shop Supermarket Company. She brought a complaint in the Superior Court against the defendant seeking damages for discrimination by means of sexual harassment in the workplace in violation of G. L. c. 151B, § 4 (1) and (16A), alleging that she had been subjected to a hostile work environment. A judge in the Superior Court granted summary judgment for the defendant. The judge primarily concluded that the plaintiff’s, claim was barred by the six-month statute of limitations set forth in G. L. c. 151B, § 5, for complaints filed with the Massachusetts Commission Against Discrimination (MCAD). The plaintiff appealed, and we granted her application for direct appellate review to examine the application of the six-month statute of limitations in a claim of sexual harassment of the type alleged here. We conclude that the plaintiff has set forth an actionable case of sexual harassment and that, based on the continuing violation doctrine, her claim is not barred by the six-month limitation period. Accordingly, we vacate the grant of summary judgment and remand the case to the Superior Court for trial. We set out the background of the case by reciting the facts in the summary judgment record as viewed in the plaintiff’s favor, see Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 459 (1997), and the reasoning of the judge in concluding that the defendant was entitled to summary judgment. The plaintiff has been employed by the defendant in the manufacturing division of its Readville facility since 1973. Since her hire, the plaintiff has worked in the commissary as a line worker on a variety of production lines, including the soda and the cold kitchen lines. The commissary staff includes employees at three levels: supervisors; foremen; and line workers. Supervisors are salaried, nonunion employees, whose job responsibilities include directing manufacturing operations, assigning personnel to the production lines, and addressing disciplinary and other problems. Foremen are union members, paid on an hourly basis, whose function is to implement the supervisors’ instructions and generally to run the production line. Their responsibilities include instructing line workers as to specific production requirements, directing where on the line they work, scheduling the workers’ breaks, acting on workers’ requests to leave the line during their shift (such as to visit the restroom), and, in the event of problems on the line, calling maintenance or the supervisor. Each production line has one or two foremen. As of 1998, of the twelve foremen employed in the commissary, only one was female, and, out of approximately 120 employees working on production lines, only six or seven were female. The events relevant to this case began shortly after the outset of the plaintiff’s employment. The plaintiff alleges that, from “day one,” she was subject to both verbal and physical sexual conduct by her then supervisor Billy Leach. According to the plaintiff, Leach subjected her to harassment, by constantly seeking dates and asking her “can I touch you once, can I kiss you in your ear, can I kiss your belly button, stuff like that.” The plaintiff did not report Leach’s behavior to management, because “Billy does it to everybody” (although the plaintiff also indicated that Leach treated her differently from other females in the company), and because she felt that, if she complained, he could make her work harder. The plaintiff also testified that, a couple of times in the past, Leach had made her work harder after she had told him to leave her alone. The plaintiff is not specific as to when Leach’s offensive conduct occurred. Beginning in 1986 or 1987, and continuing until September, 1994, a line worker, Pedro Cordero, continually would rub against or bump into the plaintiff. On at least one occasion, Cordero bent over and “hit his fanny against [the plaintiff’s].” More than once, Cordero purposefully banged his arm into the plaintiff’s breasts. He also repeatedly made comments to the plaintiff about her body, telling her she had a “beautiful body, nice boobs, [and] nice fanny.” Sometime before September, 1994, while the plaintiff was working on the cold kitchen line, Cordero approached the plaintiff and said, “Grace, I had a dream about you. ... I had a dream of you sticking your finger up my ass, and, boy it felt good.” The plaintiff did not report this incident because she did not want to cause trouble. The plaintiff also perceived, from prior experience of reporting unwelcome advances of one foreman, Henry Sanchez (to be set forth shortly), and having Sanchez deny the conduct, that nothing would come of her complaints. The plaintiff finally reported the dream incident to management during a meeting on September 23, 1994, and to Jimmy Beggan, her union representative, who spoke with Cordero. The conduct subsequently ceased. The plaintiff often worked under the direction of foremen A1 Pearson and David Arce on the soda line. Pearson regularly used vulgar language (such as “f-you,” “Mother —and “cunt”); repeatedly approached female employees, moving in a sexually suggestive manner; and frequently asked the plaintiff about her menstrual cycle. She complained of the vulgar language to Beggan, who discouraged her from bringing Pearson’s behavior to the attention of management. On February 16, 1991, the plaintiff was working on the soda line. When she asked Pearson for permission to go to the restroom, he replied, “Oh, it’s that time of the month again. . . . Go ahead.” After the plaintiff returned to the fine, Arce crept up behind her and attached a sanitary pad spotted with raspberry syrup to her back. Other employees laughed and the plaintiff felt humiliated and angry. She immediately informed the supervisor about the incident, telling him, “I can take a joke, but this is ridiculous. This has just gone too far.” During a meeting in the supervisor’s office, Arce apologized and both the plaintiff and Arce returned to work. Although Arce was fired by the defendant for his part in the incident, he was reinstated, after four months unpaid leave, by an arbitrator. In the wake of the sanitary pad incident, both Pearson and Arce treated the plaintiff with hostility. On his return from unpaid leave, Arce had resumed his position as a foreman on the soda line. He once told the plaintiff that it was her fault that he had lost four months pay and also made false reports about the plaintiff’s work performance to her supervisor. The plaintiff perceived that Pearson and Arce’s behavior toward her was motivated by a desire to get her removed from the soda line. The plaintiff told Beggan, who advised her not to complain to management. She followed that advice (although continuing to complain to the union on a weekly basis), except on one occasion, when she and another woman complained that Arce and Pearson were giving them a “hard time.” Discussion ensued regarding alleged inadequacies in the plaintiff’s work, and no disciplinary action resulted. During this time, other workers as well expressed anger that the plaintiff had caused trouble for Arce. The hostility directed at the plaintiff continued until Arce left as foreman of the soda fine in December, 1994, or January, 1995. In 1993, the plaintiff frequently worked on the cold kitchen line under the direction of foreman Henry Sanchez. Sanchez several times asked her for a date and offered to take care of her and give her money. Once he pulled her hair, telling her that he would take her strands of hair to a witch doctor to make her fall in love with him. When the plaintiff refused Sanchez’s advances, he would get angry and scream at her, or falsely accuse her of doing something she had not done. Once Sanchez told the plaintiff that “[he was] going to have [her] taken out of the cold kitchen [line].” At times, after Sanchez complained to the supervisor about the plaintiff’s work performance, she would be taken out of the cold kitchen line. The plaintiff complained to the union and to management, and Sanchez (who denied the plaintiff’s accusations) was warned. Because of management’s failure to take action against Sanchez, the plaintiff was left with the impression that her complaints to management were useless. On September 14 or 15, 1994, a glue machine, used to attach labels to bottles on the soda line, jammed. Following customary procedure for this frequent occurrence, Pearson put on disposable surgical gloves and reached into the pail of glue to remove any labels stuck inside. He then stood behind the plaintiff with glue dripping from his gloves and jerked his hands back and forth to simulate masturbation. The plaintiff turned around and saw him pretending to masturbate behind her. Shocked and dumbfounded, she reported this incident to her supervisor. On September 23, 1994, at a meeting with management and union representatives, the plaintiff became so upset while recounting the incident that she had to be helped out of the room. Pearson denied that he had done anything except wipe excess glue from the gloves before removing them. He was not disciplined for the incident, but was warned that he would be terminated if any future sexual harassment occurred. The next day, Pearson wore a hat on which was affixed a fluorescent sign, reading “Beware.” The plaintiff believed that this message was directed at her. After this incident, Pearson continued to give the plaintiff a “very hard time,” and often yelled at her on the job. Other employees also gave the plaintiff a hard time. On one occasion, approximately six months after the glue incident, a male coworker told her, “Don’t worry, I’m not going to touch you. You’re nothing but trouble anyway.” On another occasion, the same coworker made the sign of a cross as she walked by him. Although the plaintiff spoke with Beggan about the matter, the male coworker continued to bother her. The offensive conduct directed at the plaintiff by Pearson, however, stopped when Pearson became aware that the plaintiff had taken legal action. On March 6, 1995, the plaintiff filed a complaint with the MCAD, charging the defendant with unlawful discrimination based on sexual harassment in violation of G. L. c. 151B, § 4 (1). Her complaint alleged that Arce had created a hostile work environment because of past complaints of discrimination made by her, and that the hostile work environment had continued until December, 1994. In the body of her complaint, the plaintiff specifically referred to the glue incident involving Pearson (described as occurring in September, 1994), and the dream incident involving Cordero (for which the plaintiff did not give an approximate date). On September 13, 1996, a commissioner of the MCAD entered a finding of probable cause on the plaintiff’s complaint and determined both that the plaintiff had established a prima facie case of discrimination and that the defendant had established a legitimate nondiscriminatory defense that the conduct alleged did not constitute discrimination. The plaintiff filed her complaint in the Superior Court on September 23, 1997. Sometime during the same month, Sanchez was standing behind the plaintiff, who was leaning over a table on which some boxes were stacked. Sanchez drew a sketch, which he showed to another worker and then to the plaintiff. To the plaintiff, the drawing appeared to represent a portion of her (unclothed) body. When questioned about the drawing by Alan Goodman, plant manager of the Readville facility, Sanchez denied that he had intended to portray the plaintiff and insisted instead that the drawing was of a dog. Goodman examined the drawing and commented that it looked like a camel or a dog. He ordered that the plaintiff and Sanchez be separated, but took no other action. With respect to the effects of the workplace experience on the plaintiff, a psychologist, Dr. John Daignault, testified at a depositian that the plaintiff suffers from recurrent major depression and posttraumatic stress disorder, which, as stated in a written psychological evaluation, are “directly causally related to persistent episodes of sexual harassment and its sequelae allegedly perpetrated upon her in her workplace.” Although Dr. Daignault did not identify a particular incident, or group of incidents, from among all of those related to him by the plaintiff as causing her medical condition, or attempt to pinpoint the time when the plaintiff’s condition arose, he rejected the possibility that experiences other than work-related ones might have contributed to the plaintiff’s condition. The record also indicates that the defendant first adopted a written sexual harassment policy in the 1980’s. The policy was contained in a corporate policy guide given to upper management, and was posted in work areas such as the break room and employee bulletin boards. The defendant held informal meetings in the late 1980’s with groups of employees to discuss its policy on sexual harassment, and conducted training on sexual harassment for all salaried management employees. During the plaintiff’s employment, the Readville manufacturing plant had a personnel representative who managed human resource issues, including concerns about workplace harassment. In early 1995, the defendant conducted one-hour meetings with groups of employees and supervisors from the Readville plant, which were prompted, in part, by the plaintiff’s allegations, and in which harassment and discrimination issues were discussed. The defendant moved for summary judgment, asserting that only two of the incidents that the plaintiff alleged (the September, 1994, glue incident involving Pearson and the September, 1997, incident involving Sanchez’s drawing) were timely and that these were not sufficiently egregious or pervasive to constitute actionable sexual harassment under G. L. c. 151B. The defendant also argued that the plaintiff’s failure to assert the 1997 drawing incident in a complaint to the MCAD barred its consideration. Finally, the defendant asserted that its response to the glue incident protected it from liability for that event, even if that incident standing alone would suffice to constitute sexual harassment. The judge, in her written memorandum of decision, determined that only the glue and drawing incidents could be considered as evidence of a hostile work environment. These two incidents, she concluded, did not rise to the level of an actionable claim of sexual harassment. The judge rejected the plaintiff’s argument that, because her claim of sexual harassment constituted a continuing violation, the MCAD’s six-month statute of limitations for filing a claim as to the earlier incidents was not applicable. Relying on Federal law interpreting the continuing violation doctrine under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2 (a)(1) (Title VII), the judge concluded that the plaintiff was barred from asserting the doctrine because the plaintiff’s testimony indicated that she was aware that she was the subject of unlawful discrimination while acts prior to the six-month cutoff were taking place. See Provencher v. CVS Pharmacy, Div. of Melville Corp., 145 F.3d 5, 14 (1st Cir. 1998); Sabree v. United Bhd. of Carpenters & Joiners, Local No. 33, 921 F.2d 396, 401 (1st Cir. 1990). The judge concluded that, although the continuing violation doctrine “permit[s] the inclusion of acts whose character as discriminatory was not apparent at the time they occurred,” Speer v. Rand McNally, 123 F.3d 658, 663 (7th Cir. 1997), it does not obviate the general rule that “a knowing plaintiff has an obligation to file promptly or lose his [or her] claim.” See Provencher v. CVS Pharmacy, Div. of Melville Corp., supra at 15. The judge next considered the evidence of the two incidents of harassment within the statutory limitations period, the 1994 glue incident and the 1997 drawing incident. (The judge apparently did not consider Pearson’s wearing of the hat with a “Beware” sign as an incident of harassment). She determined that neither incident involved any physical contact, request for sexual favors, vulgar or demeaning language, or threat or intimidation. She concluded that evidence of the two incidents, three years apart, even when considered in the context of what the judge considered to be the earlier time-barred incidents, was insufficient to support the plaintiff’s claim of sexual harassment. Based on the reasoning described, the judge granted summary judgment for the defendant. 1. We first consider the effect of the continuing violation doctrine on the statute of limitations governing G. L. c. 151B claims of sexual harassment. Specifically, we inquire whether the plaintiff’s awareness that she was being sexually harassed by incidents occurring before September 6, 1994 (the date six months prior to her filing of her complaint with MCAD), bars her from asserting a substantive claim in court based on those incidents. In evaluating the issue, we keep in mind that a defendant seeking summary judgment has the burden of establishing that the plaintiff “has no reasonable expectation of proving an

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

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