Hostile Work Environment Cases

Hiram Clifton vs. Massachusetts Bay Transportation Authority. No. 02-P-781. Suffolk. October 20, 2003. September 30, 2004. Present: Armstrong, C.J., Kaplan, & Porada, JJ. Further appellate review granted, 443 Mass. 1104 (2005). Anti-Discrimination Law, Race. Employment, Discrimination, Retaliation. Evidence, Rebuttal. Limitations, Statute of. Practice, Civil, Instructions to jury, Interlocutory Appeal, Report. Damages, Punitive. Interest. Judgment, Interest. Discussion of the applicability of the continuing violation doctrine set forth in Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 541-542 (2001), to claims of a hostile work environment based on racial discrimination in violation of G. L. c. 151B, § 4(1), and of the statute of limitations applicable to such claims [167-170], as well as of the applicability of the continuing violation doctrine to claims of retaliation in the workplace for complaints about discriminatory acts [174-175]. In a civil action for damages arising from a hostile work environment based on race discrimination and retaliation in violation of G. L. c. 15 IB, § 4(1), (4), the judge did not err or abuse his discretion in admitting in evidence, for limited purposes, testimony of sexual and racial discrimination suffered by the plaintiff’s coworkers and a racist flyer that had been posted on a bulletin board at the plaintiff’s place of employment [170-171], or in excluding from evidence reports that had not been proffered or marked for identification [171]; moreover, the judge properly left to the jury the question whether evidence of discriminatory conduct that the plaintiff had suffered more than six months before the plaintiff filed an administrative claim for discrimination was time-barred [171-173]. In a civil action for damages arising from a hostile work environment based on race discrimination and retaliation in violation of G. L. c. 151B, § 4(1), (4), the judge did not impermissibly collapse his instructions defining race discrimination and retaliation [173], nor did he err in using a chalk to indicate the various time periods that the jury could consider in awarding damages [173] or in refusing to give an instruction that did not correctly reflect the law of the Commonwealth [176]; however, although the judge correctly applied the continuing violation rule to the plaintiff’s claim of racial discrimination, he failed to instruct the jury that, if the plaintiff had proved a continuing violation, the claim for earlier conduct would be barred if the plaintiff knew or reasonably should have known, more than six months prior to his filing an administrative claim, that his work sitúatian was pervasively hostile and unlikely to improve [173-174]; moreover, although the judge correctly applied the continuing violation doctrine to the plaintiff’s retaliation claim under the circumstances of this case, the instructions contained errors regarding the time period in which a violation had to have occurred and the ability of the jury to award damages if they found that found that an incident of retaliation within the applicable limitation period could be perceived as a continuation of prior reprisals [175-176]. No error arose from the fact that the jury rather than the judge in a civil action awarded punitive damages for a hostile work environment based on race discrimination and retaliation in violation of G. L. c. 151B, § 4(1), (4). [176] In a civil action for damages arising from a hostile work environment based on race discrimination and retaliation in violation of G. L. c. 151B, § 4(1), (4), the judge did not abuse his discretion or err in concluding that a punitive damage award was excessive and should be reduced [176-177]; moreover, while the judge erred in vacating the award of prejudgment and postjudgment interest on compensatory damages [177-178], he correctly denied the plaintiff’s request for prejudgment interest on the punitive damages award [178-179], This court concluded that while Mass.R.Civ.P. 64, as amended, 423 Mass. 1410 (1996), did not permit the judge in a civil action, after entry of separate judgments for compensatory and punitive damages following a jury trial, to file a report of all matters on the issues of liability and damages during the course of the trial, the judge’s order allowing a new trial on punitive damages following the plaintiff’s rejection of a remittitur of the punitive damages award was properly before this court on report as an interlocutory order. [179] Civil action commenced in the Superior Court Department on May 17, 1995. The case was tried before Ralph D. Gants, J., and was reported by him to the Appeals Court. Walter M. Foster for the defendant. Kevin G. Powers for the plaintiff. Marisa Campagna, Theresa Finn-Dever, & James S. Weliky, for National Employment Lawyers Association, Massachusetts Chapter, amicus curiae, submitted a brief. Porada, J. In 1995 Hiram Clifton brought an action in the Superior Court against the Massachusetts Bay Transportation Authority (MBTA) alleging that, because of his race, he was subjected to a hostile work environment, in violation of G. L. c. 15IB, § 4(1), and was harassed in retaliation for his complaints about discriminatory acts directed at him, in violation of G. L. c. 151B, § 4(4). A jury returned a special verdict against the MBTA and awarded Clifton compensatory damages of $500,000 for emotional distress and $5 million in punitive damages. The MBTA moved for judgment notwithstanding the verdict, a new trial, remittitur of the emotional distress and punitive damage awards, a hearing regarding jury bias, and alteration of the judgment to eliminate any prejudgment or postjudgment interest. Clifton moved to alter the judgment to include prejudgment interest on the punitive damage portion of the award and for reasonable attorney’s fees. In a consolidated memorandum of decision and order on the posttrial motions, the judge allowed the MBTA’s request for a remittitur of the punitive damage award, reducing it from $5 million to $500,000; its motion for a new trial as to punitive damages only if Clifton rejected the remittitur; and its motion to alter the judgment to vacate any prejudgment and postjudgment interest on the award for damages for emotional distress. The judge denied the MBTA’s remaining posttrial motions. The judge also allowed Clifton’s motion for attorney’s fees, but denied his motion for an award of prejudgment interest on the punitive damages. Upon Clifton’s rejection of the remittitur of the punitive damage award, the judge filed a report to this court of “all matters decided in the Consolidated Memorandum of Decision and Order on Post-Trial motions, dated February 3, 2000, and all other matters decided on the issues of liability and damages during the course of the trial of this case.” As his reason for doing so, the judge stated that “[sjince this case involves difficult and important legal issues and since the new trial on the issue of punitive damages would be lengthy, this Court finds (and the parties agree) that the interests of justice are better served by having all relevant issues decided by the Appeals Court before the commencement of the trial on punitive damages.” Neither party has challenged the propriety of the report of the entire case including the postjudgment orders. Instead, each party has briefed the case as if the entire case were here on appeal. We, therefore, defer our discussion of the procedural posture of the appeal until after a discussion of the facts and substantive issues raised. We recite the general background facts, reserving the details concerning the alleged discriminatory acts for our discussion of the particular issues. The plaintiff, an African-American man, started working for the MBTA as a nighttime track laborer in 1983. He did maintenance work on the subway tracks with a group of approximately ten to twelve other employees. In 1984 he became a trackman at the MBTA’s rail shop in the Charlestown section of Boston where he fabricated rails for installation on the MBTA lines. The supervisor in Charlestown was Robert Rooney, a Caucasian man. In 1986 the plaintiff was selected to be a line foreman by Rooney and the manager. He worked in this position until 1988. The plaintiff relocated to a facility in the Jamaica Plain section of Boston from 1988 to 1991. His immediate supervisor was Jerry Romano, a Caucasian man. In late 1991 he returned to Charlestown as a line foreman and again came under the direct supervision of Rooney. When the general foreman retired, the plaintiff took his turn in the rotational sequence used to fill the position. The plaintiff filed internal complaints with the MBTA for discriminatory practices in the workplace in 1990 and 1991. He filed complaints with the Massachusetts Commission Against Discrimination (MCAD) in 1993, alleging discrimination, and in 1994, alleging racial harassment and retaliation for his prior complaint against the MBTA. In 1995 the plaintiff withdrew his two MCAD complaints to file the Superior Court action. We turn now to a discussion of the issues raised. 1. Continuing violation doctrine. In order to pursue his claims, the plaintiff relies on the application of the continuing violation doctrine now set forth in Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 541-542 (2001), to claims of a hostile work environment based on racial discrimination in violation of G. L. c. 151B, § 4(1). In Cuddyer, the Supreme Judicial Court determined that the continuing violation doctrine set forth in the regulations of the MCAD at 804 Code Mass. Regs. § 1.03(2) (1993) applied to claims of a hostile environment based on sexual harassment. The court further held that if a claimant has shown a continuing violation, the claimant will not be barred from recovering for discriminatory acts occurring six months prior to filing a complaint with the MCAD unless the claimant “knew or reasonably should have known, more than six months prior to her MCAD filing, that her work situation was pervasively hostile and unlikely to improve and, therefore, a reasonable person in her position, armed with her knowledge, would have filed a seasonable complaint with the MCAD.” Id. at 541. The MBTA argues that this continuing violation rule is limited to claims of sexual harassment because the definition of “sexual harassment” contained in G. L. c. 151B, § 1(18)(b), as appearing in St. 1987, c. 473, § 2, prohibits conduct with the “purpose [of]” as well as the “effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment” and no comparable definition for racial harassment exists in G. L. c. 151B. We disagree. Unlike “sexual harassment,” racial harassment is not defined in G. L. c. 151B. Nevertheless, G. L. c. 151B, § 4(1), states that it is an unlawful practice for an employer because of race “to discriminate against [an] individual in compensation or in terms, conditions or privileges of employment.” In deciding the Cuddyer case, the Supreme Judicial Court did not base its analysis of the employee’s claim on the statutory definition of sexual harassment. Instead, the court gave deference to the MCAD’s decisions and its rule making authority. Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. at 533-534. The court also observed that, pursuant to G. L. c. 151B, § 9, “the provisions of this chapter [151B] are to be construed liberally” in order to eliminate discriminatory conduct. Ibid., quoting from G. L. c. 151B, § 9. The MCAD has consistently applied the continuing violation rule to claims of hostile work environment based on racial discrimination, see Beldo v. University of Mass. Boston, 20 Mass. Discrimination L. Rep. 105, 111 (1998), in addition to claims based on sex discrimination, Nassab v. Massachusetts Gen. Hosp., 25 Mass. Discrimination L. Rep. 429, 440 (2003). The underpinnings of the continuing violation doctrine set forth in Cuddyer support its application to hostile work environment claims based on racial discrimination. If there had been any doubt about the applicability of this rule to claims of racial discrimination, it was dispelled by Ocean Spray Cranberries, Inc. v. Massachusetts Commn. Against Discrimination, 441 Mass. 632, 642 (2004), in which the Supreme Judicial Court applied the Cuddyer rule to a claim of handicap discrimination. Just as the prohibition against racial discrimination does not parrot the defining discriminatory conduct language for claims of sexual harassment, G. L. c. 151B, § 4(16), simply prohibits an employer from discriminating against a “handicapped” person. Ibid. It strains credulity to suggest that the Supreme Judicial Court would not apply the continuing violation doctrine to a claim based on racial discrimination. Here, the judge did not have the benefit of the Cuddyer decision at the time of the trial. He nevertheless applied the continuing violation rule set forth in the regulations of the MCAD. See note 2, supra. He did not err in instructing the jury in accordance with the regulation, but, as we will discuss in the subsequent section on jury instructions, his application of the continuing violation doctrine was incomplete. See part 3, infra. The defendant also argues that Clifton’s claims for damages under the continuing violation rule are confined to the three-year limitation period set forth in G. L. c. 260, § 5B, or G. L. 151B, § 9. The statute of limitations applicable to Clifton’s case is set forth at G. L. c. 151B, § 9. The MBTA’s argument is foreclosed by our decision in Carter v. Commissioner of Correction, 43 Mass. App. Ct. 212, 222 (1997). As we pointed out in Carter, “[i]t would be anomalous to recognize the applicability of the continuing violation rule in respect to § 5 while precluding its application to § 9.” Ibid. 2. Evidentiary rulings. The MBTA next argues that the judge committed a number of evidentiary errors. At trial, evidence of sexual harassment of one of Clifton’s coworkers was introduced in evidence during the cross-examination of witnesses for the MBTA. The evidence was introduced to rebut testimony of those witnesses who testified that the tension in Clifton’s working environment in 1994 was caused solely by budget constraints and fear of privatization. The judge limited the scope of the questioning to the specific rebuttal of that testimony. The judge did not abuse his considerable discretion, see Anthony’s Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 477 (1991), in allowing this evidence to be admitted for this purpose. The MBTA next argues that the judge erred in allowing testimony regarding racial discrimination suffered by Clifton’s coworker Craig Dias. Dias worked in the Charlestown yard for a short period and visited the yard from time to time thereafter in his work assignments. He relayed to Clifton that he had been the subject of racially discriminatory remarks and conduct. Acts of harassment directed against others that are known to a plaintiff, and the defendant’s failure to discipline anyone for those acts or effectively to remedy them, may be considered as part of the environment in which the plaintiff worked. Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. at 541. The judge specifically instructed the jury that Dias’s testimony was relevant only to the degree that what happened to Dias was made known to Clifton and thus formed part of the alleged hostile environment in which Clifton worked at the MBTA. There was no error in the admission of this evidence for this limited purpose. The plaintiff was allowed to introduce in evidence a racist flyer posted on the MBTA bulletin board in the Charlestown yard. The flyer was entitled “Application for Employment to Jesse Jackson’s Staff” and contained questions such as “Yo’ Daddies name (if known)”; “Length of Last Jail Term”; and “How Fast Can Yo’ Steal & Strip a Car.” The MBTA did not object to Clifton’s testimony about the flyer but objected to the admissibility of the flyer on the ground the flyer was not properly authenticated and its prejudicial effect outweighed its relevancy. Clifton testified that he had shown the flyer to his superiors but that no action was taken about it. The judge ruled correctly that the failure to identify who posted the flyer went to the weight of the evidence and not to its admissibility. The flyer was relevant to paint a picture of Clifton’s workplace and the reaction of his superiors. There was no error in its admission. The MBTA also challenges the exclusion from evidence of incident reports of fellow MBTA workers that were allegedly relevant to explain adverse employment actions taken by the MBTA against Clifton. The record does not disclose that those documents were proffered in evidence or marked for identification. Nor does it appear a proper foundation was laid for their admissibility. There was no error in excluding them. The defendant also contends that the judge erred in allowing the jury to consider evidence of discriminatory conduct prior to the six months that Clifton filed his first claim with the MCAD for discrimination on April 20, 1993, on the ground that Clifton knew or should have known that he was being discriminated against because of his race and had knowledge that his working environment was unlikely to improve. The judge instructed the jury that they could consider evidence of discriminatory conduct prior to October 20, 1992, the date on which the six-month statute of limitations began to run, if they found that the defendant was subjected to a hostile work environment that continued into the limitation period. He further instructed that the discriminatory acts would have to have been of a continuing nature, which he defined as “similar to or reasonably related to the discrimination complained about to the MCAD,” but not earlier than July of 1986, the date on which Clifton was appointed to a foreman’s position, in assessing damages. (See discussion in part 3, infra.) The MBTA argues that this formulation was error because Clifton himself testified that after he became the first black foreman in the Charlestown yard in July, 1986, working conditions became so intolerable that he requested a transfer out of the yard in 1988. The MBTA points to Clifton’s testimony that during this period racial epithets like “Sanford & Son” were consistently sprayed on his locker; the men on his crew frequently threw firecrackers over the stall door when he used the bathroom or sprayed the door with a water hose; his superiors would rig up a cup of water over their office door and call Clifton in for a fake meeting to watch the water spill on him; and his complaints to his supervisors about this conduct went unheeded as illustrative of Clifton’s awareness and knowledge that he was being discriminated against. The MBTA argues that Clifton should also have known at the time of his transfer out of the Charlestown yard in 1988 that his working conditions were unlikely to improve because, although he had a new immediate supervisor, according to Clifton’s testimony, his superiors continued to display discriminatory animus to him by calling him “Roxbury man,” “Sanford,” and referring to Clifton and another black employee as “ding and dong”; failing to follow established seniority practices when it would have benefited Clifton; and giving him more stringent supervision, harsher discipline, and fewer working privileges than his white counterparts. There was also evidence that in 1990 and 1991 Clifton filed complaints with the MBTA’s equal employment opportunity office about the discriminatory treatment of him, but nothing was done to remedy the situation. Although we agree with the MBTA that this evidence presents a serious question whether the discriminatory acts prior to the six-month limitation period are time-barred, we are of the opinion that this is a factual issue that shou

GILBERT v DAIMLERCHRYSLER CORPORATION Docket No. 122457. Argued December 10, 2003 (Calendar No. 11). Decided July 22, 2004. Linda M. Gilbert brought an action in the Wayne Circuit Court against DaimlerChrysler Corporation, her employer, seeking damages for sexual harassments in the workplace. The court, John A. Murphy, Jr., entered a judgment reflecting the jury’s verdict of $21 million plus interest. The Court of Appeals, Whitbeck, C.J., and Fitzgerald and Markey, JJ., affirmed in an unpublished opinion per curiam, concluding that the trial court had not abused its discretion in denying the defendant’s motion for a new trial or remittitur. The Court determined that sexual harassment targeted at the plaintiff had created a hostile work environment, and that the defendant had not taken corrective action upon constructive or actual knowledge of the harassment. The Court affirmed the trial court’s denial of the defendant’s motion for a new trial or remittitur, determining that the plaintiffs counsel had not committed misconduct with inflammatory language and that defendant had not objected during the trial to any such inflammatory language. The Court affirmed the evidentiary admission of the plaintiffs expert opinion testimony, determining that the expert’s relationship with the plaintiffs counsel had been revealed to the jury, that the expert’s actual credentials, though lesser than he had testified about at trial, were adequate for the testimony he gave, and that he could testify about medical records in spite of the records being hearsay and his not being a medical practitioner. The Court also affirmed that, because the $21 million judgment was only about fifteen percent of the amount plaintiffs counsel requested ($140 million), and because the jury exercised its independence without passion, bias, or misunderstanding, deference is due the circuit court’s decision to refuse a new trial or remittitur (Docket No. 227392). The defendant appealed. In an opinion by Justice Young, joined by Chief Justice Corri-gan, and Justices Taylor and Markman, the Supreme Court held: The circuit court abused its discretion by refusing to grant a new trial. The plaintiffs trial counsel engaged in a sustained and deliberate effort to divert the jury’s attention from the facts and the law by interposing misleading argument, prejudice-baiting rhetoric, and pleas for punitive damages. This resulted in an excessive jury verdict that reflected passion rather than reason and prejudice rather than impartiality. 1. The Court unanimously agrees that the verdict in this case is excessive and cannot be affirmed. 2. The trial court abused its discretion in failing to grant a new trial under MCR 2.611(A)(1)(c) on the basis of excessive damages. The jury verdict is so excessive and so clearly the product of passion and prejudice that there can be no justification for the trial court’s denial of the defendant’s motion for a new trial. Three factors to be considered in a judicial review of a purportedly excessive jury verdict are whether the verdict was the result of improper methods, prejudice, passion, partiality, sympathy, corruption, or mistake of fact or law, whether the verdict was within the limits a reasonable mind would deem just relative to the injury, and whether the amount awarded is comparable to awards in other similar cases in the state or in other jurisdictions. Also, punitive damages are available in Michigan only when expressly authorized by law. In this case, the verdict was the product of misleading argument, inflammatory rhetoric, and the improper admission of expert opinion testimony utterly lacking in scientific support. Comparison of damages awarded in similar cases with the damages awarded in this case helps overcome the difficulty of objectively determining recompense for emotional distress and physical pain and suffering. The amount awarded, $21 million, is the largest amount ever awarded for a single-plaintiff sexual harassment claim in the United States, is seventy times the maximum permitted under the federal civil rights act at 42 USC 1981a(b)(3)(D), and is far in excess of cases where the behavior was much more physically predatory. 3. The excessive verdict was the result of passion and prejudice caused by plaintiffs counsel engaging in a systematic effort to divert the jury from its task of appropriately compensating the plaintiff for any losses suffered as a result of defendant’s violation of the Michigan Civil Rights Act (cha). Plaintiffs counsel sought to inflame passion and to incite the jury to punish the defendant, and he succeeded. Counsel’s equating the plaintiffs treatment by the defendant’s employees with the victims of the Holocaust and reminding the jurors of the German ownership of the defendant were attempts to convince the jury to heap upon the defendant moral outrage now reserved for the Nazis. This was a naked appeal to passion and prejudice and an attempt to divert the jury from the facts and the law relevant to this case. 4. A court has a role as a gatekeeper under MRE 702 to ensure that each aspect of an expert witness’s proffered testimony, including the data and methodology behind the testimony, is rehable. In this case, one without medical education, experience, training, skill, or knowledge, and without even the credentials he had testified about having, rendered faux medical opinions. The expert was a social worker, but rendered opinions about neurological changes in brain chemistry and diseases of the pancreas, which opinions were based in part on his analysis of hospital and clinical records and for which testimony he was wholly unqualified. The court erred in admitting such expert opinions. 5. The trial court did not err by denying the defendant’s motion to exclude evidence of any incident of sexual harassment that the plaintiff described for the first time at her deposition. Under the CM, an employer may be hable for an employee’s sexual harassment when the employer has notice of the harassment and fails to take appropriate corrective action. Notice is adequate if, by an objective standard, the totality of the circumstances would demonstrate that a reasonable employer would have been aware of a substantial probability that sexual harassment was occurring. The defendant received actual notice of a number of instances, and the plaintiff identified at deposition additional events demonstrating the unwelcome sexual conduct or communication that was intended to, or did, substantially interfere with her employment or created an intimidating, hostile, or offensive work environment and demonstrating the need for the defendant to take corrective measures. Reversed and remanded for a new trial. Justice Cavanagh, joined by Justices Weaver and Kelly, dissenting, stated that there was substantial admissible evidence for the jury to hold the defendant hable, but that the jury award of damages was excessive. The case should be remanded not for a new trial, but for remittitur. The excessively large verdict is attributable to the conduct of the defendant and defense counsel, and not to any misconduct on the part of the plaintiffs counsel. This case is not about the routine behavior of the plaintiffs attorney before juries. It is about the sexual harassment of a female employee over a long period with the employer having notice of the ongoing harassment and with the employer not making the appropriate investigation and not taking prompt and appropriate remedial action as required by the Michigan Civil Rights Act. The plaintiffs expert was appropriately allowed by the court to testify because he is a clinical social worker, licensed to perform psychotherapy, and he has substantial experience regarding substance abuse disorders and depressive or emotional disorders, both, of which he contended the plaintiff suffered from or were exacerbated by the sexual harassment she suffered while being the first female millwright employed at the defendant’s plant. The defense relied on a trial strategy intended to minimize the harassment or to blame the victim for the harassment. The jury rejected this strategy. The Supreme Court should not assist the defendant in correcting its errors in trial strategy by granting a new trial. 1. Judgments — Tort — Excessive Damages. A reviewing court, in determining whether a verdict or judgment is so excessive that it requires a new trial, should consider whether the verdict was the result of improper methods, prejudice, passion, partiality, sympathy, corruption, or mistake of fact or law, whether the verdict was within the limits a reasonable mind would deem just relative to the injury, and whether the amount awarded is comparable to other similar cases in the state or in other jurisdictions. 2. Evidence — Expert Opinion — Courts — Gatekeeper Role. A court has a role as a gatekeeper to ensure that each aspect of an expert witness’s proffered testimony, including the data and methodology behind the testimony, is reliable; the court must consider the expert’s education, experience, training, skill, and knowledge (MRE 702). 3. Civil Rights — Michigan Civil Rights Act — Sexual Harassment — Constructive Notice. An employer may be hable for an employee’s sexual harassment when the employer has actual or constructive notice of the harassment and fails to take appropriate corrective action (MCL 37.2101 et seq.). Fieger, Fieger, Kenney & Johnson (by Geoffrey N. Fieger, Tammy J. Reiss, and Mark C. Smiley) (.Bendure & Thomas, by Mark R. Bendure, of counsel) for the plaintiff. Kienbaum, Opperwall, Hardy & Felton, P.L.C. (by Thomas G. Kienbaum, Elizabeth Hardy, and Noel D. Massie) (Gibson, Dunn & Crutcher LLP, by Theodore J. Boutrous, Jr., Eugene Scalia, Paul De Camp, and JoanieL. Roeschlein, of counsel) {Patricia J. Boyle, of counsel), for the defendant. Amici Curiae: Robert S. LaBrant for the Michigan Chamber of Commerce. National Chamber Litigation Center, Inc (by Stephen A. Bokat, Robin S. Conrad, and Ellen Dunham Bryant), and Paul, Hastings, Janofsky & Walker LLP (by Paul Grossman, Zachary D. Fasman, and Neal D. Mollen) for the Chamber of Commerce of the United States. Plunkett & Cooney, PC. (by Mary Massaron Ross), for the Michigan Municipal League Liability & Property Pool. YOUNG, J. In this appeal, defendant seeks reversal or remittitur of the largest recorded compensatory award for a single-plaintiff sexual harassment suit in the history of the United States. The $21 million verdict awarded, according to plaintiff, barely compensates her for the lasting effects of the sexual harassment she endured as an employee of defendant, DaimlerChrysler, by whom she is still employed and earning almost $100,000 a year. She contended during her trial that defendant’s failure to deal adequately with sexual harassment in her plant led to a permanent change in her “brain chemistry” and a relapse into substance abuse and depression, and that these conditions will soon lead to her untimely and excruciating death. The foundation for this theory of recovery was laid by the expert opinion testimony of a social worker who had a longstanding relationship with plaintiffs counsel. This witness not only lacked any training, education, or experience in medicine, but also testified falsely about his credentials. Nevertheless, plaintiff asked the jury to treat this witness’s testimony as a “prognosis,” and to compensate plaintiff for the loss of her health and, eventually, her life. Plaintiffs counsel evoked images of physical abuse and torture, compared his client to survivors of the Holocaust, and argued that defendant DaimlerChrysler thought of itself as “God Almighty,” exempt from the legal norms that govern others. Thus, in defendant’s view, the verdict was the product of inflammatory rhetoric, unscientific “expert” testimony, fraud on the court, and attorney misconduct. We granted leave to appeal in order to determine whether the verdict was a legitimate estimate of plaintiffs losses, as plaintiff contends, or whether it was, as defendant argues, an unjust, excessive award procured through systematic misconduct by plaintiffs trial counsel and supported by dubious evidence. The majority and the dissent agree on one fundamental fact: the verdict rendered in this case is excessive and cannot be affirmed. A careful review of the record reveals that plaintiffs trial counsel engaged in a sustained and deliberate effort to divert the jury’s attention from the facts and the law. In their stead, counsel interposed misleading argument, prejudice-baiting rhetoric, and pleas for punitive damages. This rhetoric had its intended result: the jury’s verdict unmistakably reflects passion rather than reason and prejudice rather than impartiality. We conclude that the trial court lacked any justification for denying defendant’s postverdict motion for a new trial under MCR 2.611. Thus, the trial court abused its discretion in denying defendant’s motion for a new trial. We reverse, and we remand to the trial court for further proceedings consistent with this opinion. I. FACTS AND PROCEDURAL HISTORY It is undisputed that plaintiff, Linda Gilbert, has long waged a losing battle with substance abuse. Her personal struggles were thoroughly documented in medical records that plaintiff introduced at trial in order to establish damages. According to those records, Ms. Gilbert began drinking at fourteen and began using cocaine at twenty years of age. Most of her adult life has since been marked by excessive drinking. At one point during her employment with defendant, she reported to her substance abuse counselors that she was consuming a pint to one-fifth gallon of alcohol a day. Her cocaine use also continued during her employment with defendant, as documented by records from St. John Hospital and Sacred Heart Rehabilitation Center. Ms. Gilbert sought professional assistance on a number of occasions and has been treated on both an inpatient and outpatient basis for substance abuse. On the basis of the testimony at trial, however, it appears that none of these treatments has been entirely successful. Indeed, the foundation of plaintiffs claim for $140 million in damages was the assertion that plaintiffs substance abuse would continue until it resulted in her death. Plaintiffs work life contrasts markedly with her personal difficulties. In the mid-eighties, plaintiff began an apprenticeship to train for a career as a millwright. By 1990, plaintiff had become a journeyman millwright and was hired two years later by the Chrysler Corporation. Plaintiff was the first female millwright to work at Chrysler’s Jefferson North Assembly Plant in Detroit. To our knowledge, plaintiff continues to work for defendant and, according to her attorney, earns “nearly $100,000 per year” with overtime pay. Plaintiff initiated the present sexual harassment action against defendant on March 25, 1994, complaining that a hostile work environment existed in defendant’s Jefferson North plant. At that time, plaintiff had reported two specific instances of harassment through defendant’s formal discrimination reporting procedure. The first incident took place on May 22, 1993, a little over a year after plaintiff began working for defendant. Plaintiff reported that she found a lewd cartoon taped to her toolbox. It depicted a woman in a bar engaged in an “arm-wrestling” match with a man’s penis. Plaintiffs name was written above the woman in the cartoon, and the name of a coworker was written on the man whose penis was being wrestled. After receiving plaintiffs oral report of this cartoon, plaintiffs supervisor and area coordinator apologized to plaintiff, stated that defendant “did not condone such action” and that they would address the problem by speaking with employees in the area and distributing copies of defendant’s written policy against sexual harassment. Defendant’s internal memo notes that an employee in Chrysler’s human resources department and several other employees spoke with the workers in plaintiffs area and distributed the company’s sexual harassment guidelines following plaintiffs report. The second reported incident took place on June 5, 1993, when plaintiff found a Polaroid photograph of a penis on her toolbox. She informed her supervisor about the picture. Defendant’s internal memo concerning the complaint indicates that its supervisory employees apologized to plaintiff and reassured her that “[Chrysler did] not approve of such action, and that [Chrysler was] doing everything possible to prevent such harassment.” On the basis of these two incidents, plaintiff initiated a lawsuit against defendant alleging breach of contract, violations of the Michigan Civil Rights Act, MCL 37.2101 et seq., and negligence in addressing plaintiffs concerns about sexual harassment in the workplace. After filing her lawsuit, plaintiff formally reported to management several other incidents of harassment that occurred while the suit was pending. Plaintiff reported that, on October 10, 1994, she found a vulgar cartoon entitled “Highway Signs You Should Know” taped to her locker; she also reported that she had found an article by “Dr. Ruth” taped to her locker one week earlier. In response, Maya Baker, a human resources facilitator for defendant, personally patrolled plaintiffs work area on occasion and also asked union leaders to share with union members that the responsible party could be terminated. Next, plaintiff reported that on March 12, 1995, she found a lewd and misogynistic “poem” on a bulletin board in a work area adjacent to hers. Defendant investigated these latter two incidents and, being unable to determine the responsible party, removed the bulletin board. Finally, on September 2, 1997, plaintiff formally reported that a coworker made references to his “big meat” in front of her. In response to plaintiffs complaint about her coworker’s apparent reference to his genitals, defendant reprimanded the responsible employee. These are the only sexual harassment incidents that plaintiff made known to defendant through the formal procedures established by defendant for such matters. However, plaintiff contends that defendant had actual notice of other incidents because of her description of those incidents during her deposition testimony given after the commencement of this suit and that defendant had “constructive notice” of other incidents. Before trial, defendant moved to exclude “evidence regarding incidents that were never reported.” After hearing argument on this motion, the court denied defendant’s request and admitted testimony and evidence on these unreported incidents. At trial, plaintiff offered the testimony of social worker Carol Katz and of certified social worker and substance abuse counselor Steven Hnat. Mr. Hnat had counseled plaintiff regarding her substance abuse problems before the initiation of her lawsuit against Daim-lerChrysler. He therefore testified as both a fact witness and an expert witness. His testimony proved to be the linchpin of plaintiffs case. Mr. Hnat opined that the harassment experienced by plaintiff had caused irreversible changes in her brain chemistry, causing her to relapse into alcoholism and to develop “major depressive disorder.” He testified that he had reviewed medical records prepared by other health professionals and, in his opinion, those records read “like a preview of [plaintiffs] death certificate.” He further opined that plaintiffs body was beginning to “decompensat[e],” and that she was “clearly dying.” Mr. Hnat’s theory was that plaintiff would develop a fatal case of pancreatitis, a disease that Mr. Hnat testified was “the most painful way to die.” In the end, he told the jury that plaintiff was likely to die relatively soon because of “medical complications,” and that he “wouldn’t bet on her living very long.” Thus, plaintiffs theory of the case, as introduced through Mr. Hnat, was that the sexual harassmen

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

CORLEY v DETROIT BOARD OF EDUCATION Docket No. 119773. Decided June 17, 2004. On application by the defendants for leave to appeal, the Supreme Court, in lieu of granting leave, reversed the decision of the Court of Appeals relating to sexual harassment claims and reinstated the circuit court order granting summary disposition for the defendants. Patricia M. Corley brought a civil rights action in the Wayne Circuit Court against the Detroit Board of Education, Joseph Smith (the plaintiffs former supervisor), and Barbara Finch (the plaintiffs former coworker), claiming a hostile work environment and adverse employment actions suffered as a consequence of the plaintiffs romantic relationship with Smith, who later had a romantic relationship with Finch. The court, Wendy M. Baxter, J., granted summary disposition for the defendants. The Court of Appeals, Neff, EJ., and Holbrook, Jr., and Jansen, JJ., reversed, determining that the alleged persistent and hostile communications could reasonably be considered communications of a sexual nature because of the past relationship between the plaintiff and Smith, and that the alleged threats, offensive remarks, and adverse working conditions established sufficient evidence of sexual harassment. 246 Mich App 15 (2001). The defendants sought leave to appeal. In an opinion per curiam, signed by Chief Justice Corrigan, and Justices Weaver, Taylor, Young, and Markman, the Supreme Court held.-. The plaintiff failed to establish that she was subjected to unwelcome sexual advances, requests for sexual favors, or conduct or communication of a sexual nature. MCL 37.2103(i). She therefore failed to meet the threshold requirements for establishing sexual harassment under a hostile work environment theory or quid pro quo theory. The plaintiffs allegations that Smith warned her not to interfere with his relationship with Finch, and threatened her with consequences if she did, concerned hostile, but not sexual, matters. Allegations of Finch’s conversations about the plaintiff and Finch’s relocation of the plaintiffs work station conveyed nothing more than enmity between romantic rivals, not conduct or communication of a sexual nature. Reversed; circuit court order reinstated. Justice Cavanagh, joined by Justice Kelly, dissenting, stated that the issue in this case is sufficiently closely drawn and jurisprudentially significant that the Supreme Court and the parties would benefit from full briefing and argument, instead of the case being settled by an opinion per curiam after a perfunctory fifteen minutes of oral argument on the application seeking leave to appeal. Civil Rights — Sexual Harassment — Pleading. A plaintiff in a civil rights action for sexual harassment must plead, as a threshold matter, unwelcome sexual advances, requests for sexual favors, or conduct or communication of a sexual nature (MCL 37.2301[i]). Plunkett & Cooney, PC. (by Christine D. Oldani and Kenneth L. Lewis), for the defendants. PER CURIAM. In this sexual harassment action, plaintiff claims to have suffered an adverse employment action as a consequence of a prior romantic relationship with one of the defendants, MCL 37.2103(i) (ii), and a hostile work environment, MCL 37.2103(i) (iii). We conclude that plaintiffs complaint does not allege facts sufficient to show sexual harassment under either theory and, therefore, fails as a matter of law. We reverse the Court of Appeals decision pertaining to plaintiffs sexual harassment claims and reinstate the trial court’s order granting summary disposition for defendants. I. FACTS AND PROCEDURAL HISTORY Plaintiff and defendant Joseph Smith were employed by the Detroit Board of Education to work in its adult education program at the Golightly Vocational Center. Plaintiff was employed part-time as a counselor, and defendant Smith was her supervisor. During the course of their employment, plaintiff and Smith became romantically involved in a relationship that lasted three or four years. The relationship ended when Smith started dating another employee, defendant Barbara Finch. Plaintiff alleges that after Smith and Finch became involved, defendant Smith repeatedly threatened plaintiff with adverse employment action if she said or did anything that interfered with his relationship with Finch. Plaintiff also alleges that Finch taunted, embarrassed, and humiliated her by causing plaintiffs work station to be moved and by engaging in “catty” conversations with others that were about plaintiff and intended to be overheard by her. According to plaintiff, the alleged harassment culminated when she was discharged at the conclusion of the 1995-1996 school year. Plaintiff filed suit, claiming sexual harassment, breach of contract, and intentional infliction of emotional distress. Regarding the sexual harassment claim, plaintiff alleged that she was subjected to two species of harassment prohibited by the Michigan Civil Rights Act: a hostile working environment, MCL 37.2103(i)(iii), and quid pro quo sexual harassment, MCL 37.2103(i)(ii). Pursuant to MCR 2.116(C)(8) and (10), the circuit court granted defendants’ motion for summary disposition, ruling that plaintiff failed to state a claim on which relief could be granted and that there was no genuine issue of material fact. The Court of Appeals affirmed in part and reversed in part. The panel reversed the trial court’s order granting summary disposition regarding the sexual harassment claims, reasoning that the alleged persistent and hostile communications could reasonably be considered communications of a sexual nature because defendants “disliked” plaintiffs “continued presence in the workplace as Smith’s former paramour.” Furthermore, the Court determined that plaintiff submitted sufficient evidence of quid pro quo sexual harassment because she suffered adverse employment actions as a result of “her ‘submission’ to Smith’s prior” romantic overtures. The panel additionally reasoned that the alleged threats, offensive remarks, and adverse working conditions established sufficient evidence of a hostile work environment. Defendants seek leave to appeal to this Court. II. STANDARD OF REVIEW This Court reviews de novo the resolution of a summary disposition motion. A motion “under MCR 2.116(C)(8) tests the legal sufficiency of the complaint on the basis of the pleadings alone.” “The purpose of such a motion is to determine whether the plaintiff has stated a claim upon which relief can be granted. The motion should be granted if no factual development could possibly justify recovery.” “A motion under MCR 2.116(0(10) tests the factual sufficiency of the complaint.” In evaluating such a motion, a court considers the entire record in the light most favorable to the party opposing the motion, including affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. III. ANALYSIS We turn initially to whether plaintiff alleges facts sufficient under MCR 2.116(0(10) to establish a claim of sexual harassment actionable under either a quid pro quo theory or a hostile work environment theory, MCL 37.2103(i)(ii), (iii). “Sexual harassment” is defined in MCL 37.2103(i) as: [UJnwelcome 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, public accommodations or public services, education, or housing. (iii) The conduct or communication has the purpose or effect of substantially interfering with an individual’s employment, public accommodations or public services, education, or housing, or creating an intimidating, hostile, or offensive employment, public accommodations, public services, educational, or housing environment. Thus, as a threshold matter, plaintiff must allege facts showing that she was subjected to “unwelcome sexual advances,” “requests for sexual favors,” or “conduct or communication of a sexual nature” before she can establish actionable sexual harassment under a hostile work environment theory or a quid pro quo theory. MCL 37.2103(i). Plaintiff does not contend that defendants made either unwelcome sexual advances or requests for sexual favors. We thus turn to the third element of MCL 37.2103(i) to determine if she was subjected to “conduct or communication of a sexual nature.” “Sexual nature” is not defined in the statute. Where a term is not defined in the statute, we will review its ordinary dictionary meaning for guidance. “Sexual” is defined, in part, as “of or pertaining to sex” or “occurring between or involving the sexes: sexual relations” “Nature” is defined as a “native or inherent characteristic.” Utilizing these two commonly understood definitions, we conclude that actionable sexual harassment requires conduct or communication that inherently pertains to sex. The conduct and communication alleged by plaintiff do not meet this definition. Plaintiff contends that defendant Smith repeatedly warned plaintiff not to interfere with his relationship with Finch and threatened her with consequences if she did. The Court of Appeals, viewing the evidence in a light most favorable to plaintiff, concluded that the threats could constitute unwelcome sexual communications because they stemmed from Smith’s past intimate relationship with plaintiff. 'We disagree. After their intimate relationship ended, their working relationship became difficult, but defendant Smith’s alleged threats that he would fire plaintiff if she interfered with his new relationship were not inherently sexual in nature. Verbal or physical conduct or communication that is not sexual in nature is not sexual harassment. For this reason, we conclude that plaintiff cannot meet the threshold requirement to establish either a quid pro quo sexual harassment claim or hostile work environment sexual harassment claim against defendant Smith. Regarding defendant Finch, plaintiff alleges that Finch contributed to a hostile work environment by engaging in “catty” conversations about plaintiff and by causing plaintiffs work station to be relocated. As discussed above, plaintiff must establish that the asserted conduct or communication were of a sexual nature. That is, that Finch’s conduct or communication inherently pertained to sex. Here, the asserted communication by Finch conveyed nothing more than Finch’s personal animosity towards plaintiff. MCL 37.2103(i) does not forbid the communication of enmity between romantic rivals, even if the predicate for the dislike is sexual competition, as long as the conduct or communication is not inherently sexual. In summary, what may have been sexual in this case did not involve harassment, while what did involve harassment was not sexual. It cannot be said by any understanding of the language of MCL 37.2103 that plaintiff was subject to “sexual harassment.” Thus, we conclude that plaintiff has failed to meet the threshold requirement to establish sexual harassment by Finch because this connection between sex and the alleged conduct and communication is missing. IV CONCLUSION Plaintiffs claim fails as a matter of law because she has not established evidence of conduct or communication of a “sexual nature” as required to support a claim of sexual harassment. Therefore, we reverse the decision of the Court of Appeals with respect to plaintiffs sexual harassment claims and reinstate the circuit court’s order granting summary disposition for defendants under MCR 2.116(0(10). Corrigan, C.J., and Weaver, Taylor, Young, and MARKMAN, JJ., concurred. . Plaintiff simultaneously held full-time employment with the Detroit Board of Education. The facts relevant to this case involve only plaintiffs part-time employment at Golightly. Defendants Smith and Finch have since married. The Court of Appeals affirmed summary disposition regarding breach of contract and intentional infliction of emotional distress. 246 Mich App 15, 25-26; 632 NW2d 147 (2001). Plaintiff did not appeal those rulings. 246 Mich App 22. 246 Mich App 23. Stanton v Battle Creek, 466 Mich 611, 614; 647 NW2d 508 (2002). Mack v Detroit, 467 Mich 186, 193; 649 NW2d 47 (2002). Beaudrie v Henderson, 465 Mich 124, 129-130; 631 NW2d 308 (2001). Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). Id. at 118-120. Cox v Bd ofHosp Managers, 467 Mich 1, 18; 651 NW2d 356 (2002). Random House Webster’s College Dictionary (1990). Id. See Haynie v Dep’t of State Police, 468 Mich 302, 312; 664 NW2d 129 (2003); see also Barrett v Kirtland Community College, 245 Mich App 306, 321; 628 NW2d 63 (2001) (reiterating that the Civil Rights Act is not so broad as to bar all conduct that is in any way related to sex). Haynie, supra at 310. Because plaintiff has failed to plead sufficient facts under MCR 2.116(C)(10), we need not decide the legal sufficiency of plaintiff’s complaint under MCR 2.116(C)(8). CAVANAGH, J. (dissenting). I respectfully dissent. While the majority sees fit to dispose of this case by an opinion per curiam after a perfunctory fifteen minutes of oral argument on the application, I believe that defendant’s application for leave should be granted and this case should be decided only after full briefing and argument. The Court of Appeals opinion in this case is published. Further, the issue presented is jurispruden-tially significant and is more closely drawn than the majority would have the reader believe. I am unclear whether the result reached by the majority is correct. Additionally, I am troubled by the majority’s quick resort to the dictionary, without any consideration of the purpose or principles underlying Michigan’s Civil Rights Act and without any examination of the federal cases that have considered this issue. Therefore, I must respectfully dissent because this Court, and the parties, would be better served by granting defendant’s application for leave. KELLY, J., concurred with CAVANAGH, J.

RYMAL v BAERGEN Docket Nos. 243795, 248124. Submitted March 9, 2004, at Detroit. Decided June 8, 2004, at 9:05 A.M. Penny Rymal brought an action against Herman Baergen, MTD Systems, Inc., Clark Products, Inc., and Clark Foodservice, Inc., in the Macomb Circuit Court, alleging quid pro quo sexual harassment, hostile work environment sexual harassment, and retaliation in violation of the Civil Rights Act (cra), MCL 37.2101 et seq., as well as a claim for wrongful withholding of sales commissions, MCL 600.2961. At the time of the alleged conduct, the plaintiff and Baergen were employed by Clark Products and Clark Foodservice (collectively Clark), and Baergen was her supervisor. Also, during that time, the plaintiff and Baergen were working for MTD, and Baergen was the plaintiffs supervisor. Clark entered into a financial settlement with the plaintiff with respect to all claims. Baergen and MTD, however, filed a motion for summary disposition with respect to all the plaintiffs claims. The circuit court, Mary A. Chrzanowski, J., granted summary disposition in favor of Baergen on the basis that there could not be individual, supervisor liability for sexual harassment, sex discrimination, or retaliation under the cra, and the plaintiff failed to establish her retaliation claim against MTD because she failed to show that she engaged in a protected activity and that, if she did participate in a protected activity, the plaintiff failed to show that there was a causal connection to MTD’s employment action against her. Regarding the claims of sexual harassment and hostile work environment against MTD, the court held that the plaintiff failed to show that her rejection of defendant Baergen’s sexual proposition was a factor in MTD’s employment action against the plaintiff or that the rejection created an intimidating, hostile, or offensive work environment. Finally, with respect to the wrongful withholding of sales commissions claim, the court ruled that the plaintiff failed to prove she acted as a sales representative for MTD. The plaintiff appealed only the court’s rulings on her quid pro quo sexual harassment, hostile work environment sexual harassment, and retaliation claims. As a related matter, before the settlement between Clark and the plaintiff, Baergen and MTD brought a cross-motion against Clark that sought to disqualify Clark’s counsel for a conflict of interest. Baergen and MTD claimed that during the initial procedural aspects of the litigation, Clark’s counsel also represented Baergen and MTD, and that subsequent events established that Clark’s interests were materially adverse to those of Baergen and MTD, and Clark’s counsel used privileged information obtained during the common representation against the defendants with respect to Clark’s cross-claim against Baergen and MTD. Therefore, a conflict of interest existed, which Baergen and MTD did not waive, and required the disqualification of Clark’s counsel. After an evidentiary hearing, the court granted Baergen and MTD’s cross-motion. Clark filed an appeal. The plaintiffs appeal and Clark’s appeal were consolidated. The Court of Appeals held: 1. The circuit court erred, in part, in ruling on the basis of the decision in Jager v Nationwide Truck Broker, Inc, 252 Mich App 464 (2002), that the CRA precludes any claim of individual liability under the CRA. The Jager ruling must be kept in its context. To the extent that Jager addressed specifically the antidiscrimination provision in the CRA, MCL 37.2202, along with MCL 37.2103(i), and considered the terms “employer” and “agent” to reach the conclusion that the CRA provides only for employer liability, and that a supervisor engaging in prohibited activity could not be held individually liable for violating a plaintiffs civil rights, that decision supports the circuit court’s ruling that Baergen could not be held individually hable for sexual harassment claims asserted by the plaintiff. The Jager decision does not extend to support the circuit court’s decision that Baergen could not be held individually hable for retaliation under the CRA, MCL 37.2701, because the Jager Court did not address the unambiguous language used in that section, and that Court’s broad brush language is not implicated with respect to the antiretabation provision, § 2701. Section 2701 clearly prohibits a “person” from retaliating against another person who opposes a violation of the CRA, and MCL 37.2103(g), for purposes of the entire CRA, defines a “person” to include an “individual” like Baergen. 2. The circuit court erred by granting summary disposition of plaintiffs claims of sexual harassment and hostile work environment against MTD and of her claim of retaliation against Baergen on the basis of an insufficiency in the documentary evidence. The plaintiff submitted sufficient documentary evidence to show a significant causal connection between a protected activity and the alleged quid pro quo sexual harassment, hostile work environment sexual harassment, and retaliatory acts. In this regard, Baergen’s actions toward the plaintiff while at Clark is circumstantial evidence available to support her claims against the defendants because Baergen was the significant actor for both Clark and MTD, and work for MTD was conducted on Clark premises, using Clark assets and employees, and while on the clock for Clark. The documentary evidence showed that the plaintiff and Baergen worked together, in an employee-supervisor relationship, at Clark, that they worked together to launch and run MTD, that Baergen propositioned the plaintiff, that the plaintiff rejected the sexual advance, and that Baergen, after the rejection of the sexual advance, initiated a campaign of hostility towards the plaintiff and made adverse decisions with respect to the plaintiffs job duties, responsibilities, and pay. Further, the plaintiff complained to a Clark executive that Baergen was harassing her and being abusive and discriminatory, but the executive failed to meet with the plaintiff as he had promised. 3. There is a factual issue with respect to the plaintiffs claim of quid pro quo sexual harassment against MTD sufficient to survive summary disposition, in particular, whether the plaintiffs rejection of Baergen’s advances was a significant factor in the adverse employment decisions respecting the plaintiff. The documentary evidence shows that there was a close temporal proximity between the rejection of the sexual overture and the reduction of the plaintiffs duties for MTD and pay. Also, there was extensive evidence showing a significant causal connection between the verbal abuse after the rejection, a letter written by Baergen that could be construed as threatening, and Baergen’s adverse employment actions against the plaintiff with respect to her work for MTD. 4. There is a factual issue, sufficient to survive a motion for summary disposition, with respect to the plaintiffs claim of a hostile work environment at MTD. There is sufficient evidence to show a hostile environment based on the abusive behavior closely following the plaintiffs rejection of Baergen’s unwelcome communication and based on Baergen’s numerous sexually oriented comments and questions directed at the plaintiff. For the purpose of establishing a hostile MTD work environment, evidence of Baergen’s conduct and communications that occurred on Clark premises could be considered because there was evidence that MTD work was regularly conducted on Clark premises, and Baergen was the significant supervisory actor for both Clark and MTD. 5. There is sufficient evidence to survive summary disposition in regard to the plaintiffs retaliation claim against Baergen and MTD. With respect to Baergen, there was a close temporal proximity between the plaintiffs complaint to the Clark executive and Baergen’s verbal abuse and adverse employment actions directed at the plaintiff, whether related to MTD or Clark, which together with Baergen’s letter threatening retribution provided circumstantial evidence of a significant causal connection to the adverse employment actions sufficient to show that any reasons for those employment decisions were a pretext. Similarly, with respect to MTD, although the evidence is more attenuated, when the totality of the circumstances are considered, there is a connection between the complaint to the Clark executive and the reduction in the plaintiffs MTD duties and pay. 6. The plaintiffs complaint to the Clark executive was a protected activity under the CRA even though she did not specify the sexual nature of Baergen’s conduct. Regardless of the plaintiffs failure to formally invoke the protection of the cra, her claims of demeaning conduct, harassment, and discrimination by a male boss when made to the executive, who was an attorney, created a factual issue concerning whether she raised the specter of a discrimination complaint and was engaged in protected activity. 7. Clark has standing to challenge the circuit court’s order disqualifying its counsel on the basis of a conflict of interest. Although Clark settled the litigation with the plaintiff, Clark’s right to select counsel has been invaded and therefore it is an aggrieved party to the circuit court’s order. The order of disqualification was not limited just to the current litigation, but precluded counsel from representing Clark in any matter against the defendants. Consequently, if Clark failed to challenge the order, the doctrine of collateral estoppel would require in any future litigation that Clark’s counsel be disqualified. 8. Clark’s counsel limiting its representation of the defendants to filing an answer and affirmative defenses was proper. MRPC 1.2(b). 9. The circuit court erred by finding that there was a conflict of interest. Clark’s counsel obtained Baergen and MTD’s consent to continue representing Clark after consultation in accordance with MRPC 1.9. Clark’s counsel fully explained the nature of the limited representation and that continuing representation required a lack of any conflict of interest with Clark. Baergen signed an agreement providing that if a conflict were discovered, counsel could continue to represent Clark. While the consent was given before the conflict was discovered, the agreement fully anticipated that event. Also, although counsel did not discuss any specific conflict of interest, Baergen was aware of MTD and its activities and his noncompete agreement with Clark when he executed the agreement approving Clark’s continued representation by counsel in the event of a conflict. Finally, there was no evidence that counsel used confidential information obtained during the limited representation to the disadvantage of Baergen and MTD because Clark’s cross-claim against them was filed several months after the limited representation ceased and after Baergen’s deposition testimony. Therefore, Baergen and MTD failed to meet their burden of proving grounds for disqualification. Affirmed in part, reversed in part, and remanded for further proceedings. Kelly, J., concurred in part and dissented with respect to the majority’s decision that the circuit court erred in granting summary disposition of the plaintiffs retaliation claim against Baergen and MTD. The plaintiffs fairly cursory complaint used the term “retaliation” merely to describe the sexual discrimination that violated the CRA. Although there is no requirement that a complaint contain a specific statutory reference to MCL 32.2701 in order to put the defendants on notice of a retaliation claim, the plaintiff failed to allege that she engaged in a protected activity or that there was a causal connection between that activity and the adverse employment action. With respect to MTD, the plaintiffs contact with the Clark executive was not protected activity. She never indicated that she was being sexually harassed, and generic nonsex-based allegations are insufficient to raise the specter of unlawful discrimination under the CRA. The plaintiff also failed to show that her participation in a protected activity was a significant factor in the adverse employment action. Baergen’s conduct, which had preceded the plaintiffs contact with the Clark executive and which had begun after the plaintiffs rejection of defendant Baergen’s sexual proposition, merely continued in a similar and like fashion after that contact. Thus, the evidence indicates that the adverse employment action was directly attributable to the rejection. In the context of employment discrimination, articles 2 and 7 of the CRA do not permit actions for retaliation against an individual. The Jager decision affects the application of article 7 of the CRA within the context of employment discrimination. The use of the term “person” in MCL 37.2701 must be viewed in light of its purpose in the CEA as a whole. Article 7 uses the term “person” because it protects people in pursuance of claims brought under the other articles of the CRA, i.e., against employers, places of accommodation, educational institutions, persons engaged in real estate transactions, etc. Therefore, the use of the term “person” in article 7 in relation to a claim brought under article 2, which prohibits employers from discriminating, must be construed to apply only to an employer. This conclusion is buttressed by the observation that, in the context of this case, a retaliation claim cannot exist independently of a discrimination claim brought under article 2. Because article 2 does not permit a sexual harassment claim against an individual, article 7 likewise cannot provide a cause of action for retaliation against an individual. Civil Rights - Civil Rights Act - Retaliation - Employer and Individual Liability. The antiretaliation provision of the Civil Rights Act defines the term “person” to include an individual; therefore, a plaintiff can bring a cause of action against her supervisor, individually, for retaliation for the plaintiffs opposition to a violation of the act, or for making a charge, filing a complaint, testifying, assisting, or participating in an investigation, proceeding, or hearing under the act (MCL 37.2701). Mazur, Morgan, Meyers & Kittel, PLLC (by Linda M. Galante and Courtney E. Morgan, Jr.), for Penny Rymal. Vercruysse Murray & Calzone, PC. (by Daniel J. Bernard and Susan Hartmus Hiser), for Herman Baergen and MTD Systems, Inc. Butzel Long, EC. (by Marcia L. Proctor) and Kienbaum, Opperwall, Hardy & Pelton, P.L.C. (by Elizabeth Hardy and Robert Bruce Brown), for Clark Products, Inc., and Clark Foodservice, Inc. Before: KELLY, PJ., and MURPHY and NEFF, JJ. MURPHY, J. In Docket No. 248124, plaintiff appeals as of right the trial court’s order granting summary disposition in favor of defendants Herman Baergen and MTD Systems, Inc., with respect to plaintiffs claims of sexual harassment and retaliation in the workplace brought pursuant to the Civil Rights Act (CRA), MCL 37.2101 et seq. In Docket No. 243795, defendants Clark Products, Inc., and Clark Foodservice, Inc., (hereinafter collectively referred to as Clark) appeal by leave granted an order disqualifying Clark’s counsel for a conflict of interest. Because there exists genuine issues of material fact in regard to all of plaintiffs claims against defendants Baergen and MTD, and because Baergen can be held individually liable solely for the retaliation claim in spite of this Court’s decision in Jager v Nationwide Truck Brokers, Inc, 252 Mich App 464; 652 NW2d 503 (2002), we affirm in part and reverse in part the grant of summary disposition in Docket No. 248124 and remand for further proceedings. Because there was a lack of evidence showing a conflict of interest or improper use of confidential information requiring disqualification, and because Baergen expressly consented to counsel’s continued participation should a conflict be discovered, we reverse the order disqualifying Clark’s counsel in Docket No. 243795. I. FACTUAL ALLEGATIONS and PROCEDURAL HISTORY A. PLAINTIFF’S COMPLAINT On July 26, 2001, plaintiff filed a two-count complaint against all defendants. The complaint alleged that plaintiff commenced her employment with Clark in 1983 as an accounts receivable manager. She later became an office manager, assistant division manager, acting division manager, and subsequently, in 1993, a sales manager. Baergen was an employee-supervisor of Clark having authority over plaintiff. During plaintiffs and Baergen’s tenure with Clark, they formed MTD Systems, which plaintiff refers to as her employer, along with Clark. MTD is in the business of picking up movies from distribution points and delivering the movies to various theaters. Plaintiff alleged that in October 1999, Baergen propositioned plaintiff to have a sexual relationship, and she declined. Shortly thereafter, Baergen asked plaintiff to sign a noncompete agreement that would reflect a promise not to engage in any business that was competitive with Clark. Plaintiff alleged that the request was an act of harassment and was made because of plaintiffs refusal to comply with Baergen’s sexual advances. Plaintiff did not sign the noncompete agreement. Further, plaintiff averred that, beginning in November 1999, Baergen started reassigning plaintiffs duties to other persons. These duties included creation of advertisements, approval of vacation requests, and assignment of new account leads to sales people. Additionally, plaintiff alleged that Baergen removed her as liaison with several customers, thereby interfering with sales commissions, questioned her about her work hours, and pressured plaintiff to relinquish her management position. Moreover, Baergen became verbally abusive and once became so enraged, because he thought plaintiff was on the phone too long, that he punched a wall in plaintiffs office, requiring him to seek medical attention. Plaintiff averred that Baergen started accusing her of having sexual relations with customers to obtain their business and that she spent her lunch hours having sex with various men. The complaint alleged that in January 2000, plaintiff demanded a sales review and a formal description of her job duties and responsibilities in response to a complaint that she was inadequately performing, but Baergen refused. It was asserted that plaintiff contacted a Clark executive about her ongoing problems with Baergen and that the executive promised to, but did not, meet with plaintiff. After this failed attempt by plaintiff to rectify the situation, Baergen refused to pay an expense voucher for plaintiff and removed her expense account entirely. Her duties were lowered to those of an administrator. Plaintiff additionally averred that the claimed reasons for these actions were that, on March 1, 2000, she had been demoted to a sales person. In July 2000, Baergen informed plaintiff that the sales manager job was given to a male. Plaintiff alleged that she left her employment on July 27, 2000, as she had been constructively discharged. We note that with respect to the alleged retaliatory actions, discriminatory practices, and other events, plaintiffs complaint does not distinguish whether the actions were in the context of her employment with Clark or MTD Systems. Count I of the complaint, which is fairly cursory, asserted a cause of action predicated on the CRA. The count provided, in relevant part: 22. Plaintiff was sexually harassed and retaliated against by defendants’ agent and employee, Defendant Baergen, throughout the course of her employment. 23. This sexual harassment and retaliation included, but is not limited to, unwelcome comments and conduct of an offensive and sexual nature directed at plaintiff, the creation of a hostile work environment, as described herein[,] and constructively terminating plaintiff s employment and withholding pay commissions due to her, based on her refusal to engage in a sexual relationship .... Count II of the complaint alleged violations of

ELEZOVIC v FORD MOTOR COMPANY Docket No. 236749. Submitted August 7, 2003, at Detroit. Decided October 23, 2003, at 9:10 A.M. Leave to appeal sought. Lula Elezovic brought an action in the Wayne Circuit Court against her employer, Ford Motor Company, and her supervisor, Daniel P. Bennett, alleging liability under the Civil Rights Act, MCL 37.2101 et seq., for sexual harassment and gender discrimination. Following the presentation of proofs at a jury trial, the court, Kathleen I. MacDonald, J., directed verdicts in favor of the defendants. The plaintiff appealed, and the defendants cross-appealed to raise a statute of limitations issue about an allegation of sexual harassment. The Court of Appeals held: 1. The trial court did not err in directing a verdict in favor of Ford on the claim of “hostile work environment” sexual harassment. In order to be liable for not adequately investigating and taking prompt and remedial action against an employee’s being subjected to unwelcome sexual conduct or communication by another employee, the employer must have notice of the alleged harassment. In this case, the trial court correctly determined that Ford did not have actual or constructive notice of the alleged sexual harassment by Bennett. Although the plaintiff complained to other supervisors about sexual harassment by Bennett, she asked those supervisors not to tell anyone else and not to pursue the matter further with the Ford department responsible for investigating claims of sexual harassment. Communications made to Ford by others on the plaintiffs behalf conveyed matters not related to the alleged sexual harassment by Bennett and were therefore insufficient to provide Ford with actual notice of the alleged harassment. Other evidence presented by the plaintiff was not sufficient to show that Bennett’s alleged harassment was so pervasive that it gave rise to constructive notice on the part of Ford. 2. The trial court erred in concluding that the plaintiff failed to establish a hostile environment sexual harassment claim against Bennett. However, MCR 7.215(J) binds the Court of Appeals to follow the holding in Jager v Nationwide Track Brokers, Inc, 252 Mich App 464 (2002), that liability under the Civil Rights Act for sexual harassment by a workplace supervisor may not be imposed on the supervisor individually because liability is limited to the employer only. Jager requires a conclusion that Bennett has no individual liability for sexual harassment. Were it not for Jager, the Court of Appeals would reverse the trial court’s grant of a directed verdict for Bennett on the claim of hostile environment sexual harassment. The Jager panel’s reliance on federal law and precedent for its holding was misplaced. Unlike federal law, the Michigan Civil Rights Act expressly establishes a cause of action for sexual harassment, and employer liability under the Civil Rights Act is based on traditional agency principles. The Civil Rights Act defines “employer” to include an agent of the employer. Employer liability for sexual harassment under the Civil Rights Act extends to the harassing employee himself. 3. The trial court did not err in directing verdicts for the defendants on the claim of gender discrimination. The trial court correctly concluded that the plaintiff failed to prove that a similarly situated male employee had been treated more favorably. 4. The trial court did not eix in directing verdicts for the defendants on the claim of quid pro quo sexual harassment. The plaintiff presented no evidence that she suffered an adverse employment action as a result of the alleged harassment. 5. The trial court did not abuse its discretion in excluding evidence of Bennett’s conviction of indecent exposure. The plaintiff failed to establish a proper purpose for the admission of the evidence pursuant to MRE 404(b) inasmuch as indecent exposure outside the workplace was not sufficiently similar to workplace sexual harassment to establish a common plan, scheme, or system. The evidence was not admissible against Ford as proof that Ford had notice of the alleged sexual harassment by Bennett. The prejudicial nature of the evidence outweighed its probative value. 6. The trial court did not abuse its discretion in excluding evidence of other sexual harassment complaints at the plant where the plaintiff worked. Contrary to the plaintiff’s contention, such evidence was not necessary for consideration of the totality of circumstances in the plaintiff’s particular work environment. 7. The trial court did not abuse its discretion in disallowing the plaintiff to add a witness who was not identified on her witness list within the time established by the trial court. 8. The defendants’ cross-appeal need not be considered in light of the disposition of the plaintiff’s appeal. Affirmed. Kelly, J., concurring, disagreed that Jager was wrongly decided. The inclusion of “agent” within the Civil Rights Act definition of “employer” does not signal an intent by the Legislature to make individuals as well as employers liable under the act. Granzotto & Nicita, P.C. (by Mark Granzotto), and Edwards & Jennings, P.C. (by Alice B. Jennings), for Lula Elezovic. Kienbaum Opperwall Hardy & Pelton, P.L.C. (by Julia Tamer Baumhart), and Robert W. Powell for Ford Motor Company. Sommers, Schwartz, Silver & Schwartz, P.C. (by Sam G. Morgan and Patrick Burkett), for Daniel P. Bennett. Before: Jansen, P.J., and Neff and Kelly, JJ. Neff, J. Plaintiff Lula Elezovic appeals as of right the trial court’s grant of a directed verdict in favor of defendant Ford Motor Company and defendant Daniel Bennett, a former supervisor at Ford, on plaintiff’s claims of sexual harassment and gender discrimination. We affirm the grant of the directed verdict in favor of Ford. We also affirm the grant of a directed verdict in favor of Bennett, but only because we are bound to do so by the recent holding in Jager v Nationwide Truck Brokers, Inc, 252 Mich App 464, 478; 652 NW2d 503 (2002), in which a panel of this Court decided that under the Michigan Civil Rights Act (cra), MCL 37.2101 et seq., an individual supervisor cannot be held liable, separate from his employer, for hostile environment sexual harassment. MCR 7.215(J). Were we not bound by the holding in Jager, we would reverse the grant of a directed verdict in favor of Bennett on plaintiff’s hostile environment claim, MCL 37.2103(i)(iii). I Plaintiff, an hourly production worker at Ford’s Wixom Assembly Plant, filed this action in November 1999 against Ford and Bennett, alleging claims of sexual harassment, gender discrimination, and retaliation. At the core of plaintiff’s claims was alleged conduct by Bennett from 1995 through 1999 that included Bennett exposing his penis and masturbating when alone with plaintiff in the Wixom plant rail yard, obscene gestures and lewd facial expressions simulating oral sex, a physical attack at a plant bathroom, and repeated sexual remarks such as asking plaintiff if her “boobs [were] real,” saying that he “would like to stick [his] dick in between [her] boobs,” and licking his lips and asking for a “blow job.” According to plaintiff, she did not complain to Ford of Bennett’s sexual harassment because of her Albanian cultural background and fear of reprisals or further intimidation by Bennett. However, plaintiff complained about nonsexual matters involving Bennett and her work conditions at Ford. She also sought psychological counseling and medical care, which she said were made necessary by the harassment at work. Following a three-week jury trial in August 2001, the trial court directed a verdict in favor of defendants, finding that plaintiff had failed to establish a prima facie case of discrimination or retaliation by Ford or Bennett. Plaintiff appeals the grant of directed verdict on her claims of sexual harassment and gender discrimination. She also alleges error requiring reversal in the court’s evidentiary rulings. n The sexual conduct alleged by plaintiff formed the basis of separate claims of sex discrimination under the CRA. We find error only with regard to the claim of hostile environment sexual harassment, and only with regard to defendant Bennett. We therefore first address plaintiff’s claim that the court erred in directing a verdict for defendants on her hostile environment sexual harassment claim. A This Court reviews de novo a trial court’s decision on a motion for a directed verdict. Derbabian v S & C Snowplowing, Inc, 249 Mich App 695, 701; 644 NW2d 779 (2002). A directed verdict is appropriate only when no factual question exists upon which reasonable minds could differ. Cacevic v Simplematic Engineering Co (On Remand), 248 Mich App 670, 679-680; 645 NW2d 287 (2001). We view all the evidence admitted up to the time of the motion, in the light most favorable to the nonmoving party, granting that party every reasonable inference, to determine whether a question of fact existed. Id. at 679; Tobin v Providence Hosp, 244 Mich App 626, 651-652; 624 NW2d 548 (2001). When the evidence could lead reasonable jurors to disagree, the court may not substitute its judgment for that of the jury. Id. at 652. B The CRA prohibits an employer from discriminating because of sex, which includes sexual harassment. MCL 37.2202(1); MCL 37.2103(i); Chambers v Trettco, Inc, 463 Mich 297, 309; 614 NW2d 910 (2000); Chambers v Trettco, Inc (On Remand), 244 Mich App 614, 617; 624 NW2d 543 (2001). MCL 37.2103(i) provides: Discrimination because of sex includes sexual harassment. Sexual harassment means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature under the following conditions: (i) Submission to the conduct or communication is made a term or condition either explicitly or implicitly to obtain employment.... (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.... (iii) 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. When sexual harassment falls under one of the first two subsections, it is commonly referred to as quid pro quo harassment; when it falls under the third subsection, it is commonly labeled hostile environment harassment. Chambers, supra, 463 Mich 310. To establish a claim of hostile environment harassment, an employee must prove the following elements by a preponderance of the evidence: “(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.” [Id. at 311, quoting Radtke v Everett, 442 Mich 368, 382-383; 501 NW2d 155 (1993).] With regard to the respondeat superior element of a claim of hostile environment harassment, the Chambers Court explained: “Under the Michigan Civil Rights Act, an employer may avoid liability [in a hostile environment case] ‘if it adequately investigated and took prompt and appropriate remedial action upon notice of the alleged hostile work environment.’ . . . Such prompt and appropriate remedial action will permit an employer to avoid liability if the plaintiff accuses either a co-worker ... or a supervisor of sexual harassment. An employer, of course must have notice of alleged harassment before being held liable for not implementing action.” [Id. at 312, quoting Radtke, supra at 396-397.] Thus, an employer may avoid liability for a claim of sexual harassment if it does not have actual or constructive notice of the alleged harassment. Radtke, supra at 396 n 44. In this case, the trial court granted a directed verdict on the basis that plaintiff had failed to establish that Ford had notice of the alleged sexual harassment. Even viewing the evidence in the light most favorable to plaintiff, we find no error in the court’s conclusion. In McCarthy v State Farm Ins Co, 170 Mich App 451, 457; 428 NW2d 692 (1988), this Court explained what is meant by actual or constructive notice: “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).] In Sheridan v Forest Hills Pub Schools, 247 Mich App 611, 622; 637 NW2d 536 (2001), this Court defined the term “higher management” 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. With regard to actual notice, plaintiff asserts that she told two of her supervisors of the 1995 incident in which Bennett masturbated in front of her. However, plaintiff asked them as friends to keep this confidential and to not tell anyone. She admitted that she did not want them to report Bennett’s conduct to labor relations, the department responsible for investigating complaints of sexual harassment. Under these circumstances, plaintiff’s report of Bennett’s conduct to her supervisors does not constitute actual notice to Ford, such that it could investigate the matter and take remedial action. Our conclusion regarding actual notice is not altered by the fact that Ford’s antiharassment policy sets forth procedures requiring supervisors to report complaints of sexual harassment. “[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 séxual harassment was occurring.” Chambers, supra, 463 Mich 319. Given that plaintiff asked her supervisors to keep the information in confidence and not tell anyone about Bennett’s unwanted advances, there was not a “substantial probability” that Ford would have been aware of the hostile work environment claim so as to trigger “prompt and adequate remedial action” on its part. We also reject plaintiff’s argument that actual notice was provided by other communications to Ford made on behalf of plaintiff. Contrary to plaintiff’s contention, there is no evidence that the letters from her psychologist, Dr. Parker, provided Ford with adequate notice that plaintiff was being subjected to sexual harassment by Bennett or to a work environment made hostile by sexual harassment. These letters make no reference to sexual conduct, and, as plaintiff herself admitted, she filed various grievances and labor relations complaints over the years against Bennett, but never once complained about sexual harassment by him. Plaintiff claims that she presented additional evidence that she complained to Ford officials that Bennett was harassing her, that she was frightened of him, and, further, that her son-in-law, Paul Lulgjuraj, wrote a letter to Ford’s supervisor of labor relations, Jerome Rush, asserting that Lulgjuraj might take legal action “to insure that our client is not subjected to working in a hostile environment.” The letter did not mention that plaintiff was being subjected to sexual harassment. Although the letter from Lulgjuraj referenced a “hostile environment,” plaintiff admitted that its purpose was to notify Ford that she was accusing her co-worker, Tami Holcomb, of threatening her life and she also admitted that the letter was not communicating anything to Ford about there being sexual harassment at Ford. This additional evidence does not, under the objective standard of Chambers, establish that Ford would have been aware that sexual harassment was occurring. Chambers, supra, 463 Mich 319. Plaintiff failed to show that Ford had actual notice of the alleged sexual harassment. We also find no error in the court’s conclusion that plaintiff failed to establish constructive notice of the alleged sexual harassment. The trial court held that plaintiff had not adduced sufficient evidence showing that Bennett’s conduct was so pervasive that it gives rise to the inference of knowledge or constructive knowledge. Sheridan, supra at 627; McCarthy, supra at 457. In addition to the incidents involving Bennett’s sexual harassment, plaintiff provided testimony that other supervisors sexually harassed her and that other female employees were sexually harassed. Nonetheless, this evidence did not establish that the sexual harassment was such that Ford had constructive notice. Plaintiff indicated that there were no witnesses to the alleged incidents of sexual harassment against her. Further, the complaint of alleged sexual harassment of plaintiff’s coworker cannot be said to establish notice with respect to plaintiff’s claim of harassment. Sheridan, supra at 627-628. Because plaintiff failed to show that she provided actual or constructive notice to Ford concerning the existence of a sexually hostile working environment, Ford cannot be vicariously liable for her hostile environment claim. Chambers, supra, 463 Mich 312; Radtke, supra at 395 n 41. Thus, the trial court did not err in directing a verdict for Ford on plaintiffs hostile environment claim. c We find error in the trial court’s conclusion that plaintiff failed to establish a hostile environment sexual harassment claim against Bennett; however, we are nonetheless obligated to affirm the court’s decision in light of Jager, supra. As Bennett notes, and plaintiff concedes on appeal, this Court recently held that the CRA imposes liability only on employers, and not on individual employees of employers, with regard to sexual harassment claims. Id. at 478, 485. Thus, the Jager Court concluded that “a supervisor engaging in activity prohibited by the CRA may not be held individually liable for violating a plaintiff’s civil rights.” Id. at 485. Accordingly, Jager requires a conclusion that Bennett has no individual liability for sexual harassment. Nonetheless, we conclude that Jager was wrongly decided. The Court in Jager relied on federal precedent and analyses under title VII in deciding that the CRA does not allow for individual liability for sexual harassment, stating: “We believe that, like title VII, the language in the definition of ‘employer’ concerning an ‘agent’ of the employer was meant merely to denote respondeat superior, rather than individual liability.” Jager, supra at 484. We find Jager’s reliance on federal law misplaced. The Michigan Supreme Court has recognized that unlike the federal law, the cra expressly establishes a cause of action for sexual harassment and that employer liability under the CRA for sexual harassment is based on traditional agency principles. Chambers, supra at 311, 315-316, 326. Thus, this Court has observed that the theories of liability underlying federal sexual harassment cases must be distinguished from those underlying the CRA: To the extent that the dissent relies on federal cases involving sexual harassment claims under title VII, that reliance is misplaced. In Chambers, our Supreme Court held that federal principles of vicarious liability related to sexual harassment claims brought under the federal title VII do not apply to claims brought under Michigan’s cra. The Court reasoned that federal principles are contrar