Hostile Work Environment Cases

REMBERT v RYAN’S FAMILY STEAKHOUSE, INC Docket No. 196542. Released December 2, 1997, at 9:00 am.; vacated December 16, 1997. Before: Corrigan, C.J., and Griffin and Hoekstra, JJ. GRIFFIN, J. Plaintiff appeals as of right an order of the circuit court granting summary disposition in favor of defendants on the basis that plaintiff’s claims are barred by an agreement to arbitrate. MCR 2.116(C)(7). Were we permitted, we would affirm for the reasons set forth in Judge (now Justice) Taylor’s opinion (concurring in part and dissenting in part) in Rushton v Meijer, Inc (On Remand), 225 Mich App 156; 570 NW2d 291 (1997). However, pursuant to MCR 7.215(H) we must follow and apply the holding of the majority opinion in Rushton, supra, which compels us to affirm in part and reverse in part. I Contemporaneously with his hiring by defendants, plaintiff executed a contract in which he agreed to arbitrate all employment-related disputes. Unlike in Heurtebise v Reliable Business Computers, Inc, 452 Mich 405; 550 NW2d 243 (1996), the arbitration agreement here is clearly a contract. Accordingly, the basis found by the Supreme Court in Heurtebise for not enforcing the arbitration provision is not applicable in the present case. However, in Rushton, supra at 170, this Court in a two to one decision adopted Justice Cavanagh’s concurring opinion in Heurtebise. The Rush-ton majority held “that Meyer [the employer] cannot require its employees, as a condition of employment, to waive prospectively their right to pursue direct and immediate review of civil rights claims in a judicial forum.” The Rushton panel based its decision on Michigan’s longstanding public policy of vigorously protecting the civil rights of its citizens. Judge Taylor dissented, arguing the fundamental policy of freedom of contract. Judge Taylor also noted that Michigan’s public policy, as reflected in our arbitration act, MCL 600.5001; MSA 27A.5001, and judicial decisions, favors arbitration and other forms of alternative dispute resolution (adr). The exclusion of all prospective civil rights claims from adr would thwart these important public policy objectives. Further, as Judge Taylor noted in Rushton, supra at 177-178: [T]he whole notion of prospective waivers of important rights is not, as the majority seems to believe, inherently repugnant to our constitutional order. Indeed, it is well established that rights of a higher standing than that of forum selection, i.e., constitutional rights themselves, may be prospectively waived. . . . Given that these highly valued constitutional rights may be prospectively waived without offending public policy, how can it be seriously suggested that, without a statute or provision of the constitution prohibiting it, and, in fact, our state arbitration act allowing it, the right to have a circuit court to resolve a civil rights dispute may not be prospectively waived in favor of having such a claim adjudicated in an arbitral forum? We agree with the reasoning of Judge Taylor and would follow and adopt his opinion.* We find no support for the Rushton majority’s conclusionaiy statement that all employment contracts to arbitrate prospective civil rights claims violate public policy. As noted by Judge Taylor, important rights, even of a constitutional magnitude, may be waived, modified, or limited by contract. Indeed, the Rushton holding contradicts recent federal court decisions, which have routinely ordered employees to arbitrate a wide variety of state and federal statutory claims under the provisions of predispute mandatory arbitration agreements governing employment discrimination claims. In Gilmer v Interstate/Johnson Lane Corp, 500 US 20; 111 S Ct 1647; 114 L Ed 2d 26 (1991), the United States Supreme Court considered whether claims arising under the Age Discrimination in Employment Act (adea), 29 USC 621 et seq., could be the subject of an enforceable arbitration agreement. The Court concluded that there was no evidence of a congressional intent to preclude arbitration of adea claims and allowed enforcement of an agreement to arbitrate such claims. Gilmer, supra at 35. In so holding, the United States Supreme Court, id. at 30, reiterated the significance of arbitration as a viable means of dispute resolution: In arguing that arbitration is inconsistent with the adea, Gilmer also raises a host of challenges to the adequacy of arbitration procedures. Initially, we note that in our recent arbitration cases we have already rejected most of these arguments as insufficient to preclude arbitration of statutory claims. Such generalized attacks on arbitration “rest on suspicion of arbitration as a method of weakening the protections afforded in the substantive law to would-be complainants,” and as such, they are “far out of step with our current strong endorsement of the federal statutes favoring this method of resolving disputes.” Rodriguez de Quijas [v Shearson/American Express, Inc, 490 US 477, 481; 109 S Ct 1917; 104 L Ed 2d 526 (1989)]. Post-Gilmer decisions uniformly have found its rationale to be equally applicable to the arbitration of claims arising under another federal civil rights statute, title VII of the Civil Rights Act of 1964, 42 USC 2000e et seq. See, e.g., Cosgrove v Shearson Lehman Bros, 105 F3d 659 (CA 6, 1997); Willis v Dean Witter Reynolds, Inc, 948 F2d 305, 310 (CA 6, 1991); Cremin v Merrill Lynch Pierce Fenner & Smith, Inc, 957 F Supp 1460, 1471 (ND Ill, 1997) (and cases cited therein). These cases demonstrate that “[b]y agreeing to arbitrate a statutory claim, a party does not forego the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.” Mitsubishi Motors Corp v Soler Chrysler-Plymouth, Inc, 473 US 614, 628; 105 S Ct 3346; 87 L Ed 2d 444 (1985). Were we permitted, we would follow this persuasive line of authority. We apply the holding of the majority opinion in Rushton, supra, only because we are required to do so pursuant to MCR 7.215(H). II Plaintiff’s complaint alleges claims of (1) racial discrimination, (2) handicap discrimination, (3) intentional infliction of emotional distress, and (4) constructive discharge. Plaintiff’s claims of intentional infliction of emotional distress and constructive discharge are clearly covered by the arbitration contract and, therefore, the circuit court’s order subjecting these claims to arbitration is affirmed. However, pursuant to Rushton, supra, plaintiffs claims of racial discrimination and handicap discrimination may not be submitted to arbitration. Accordingly, the lower court’s order regarding plaintiff’s claims of racial discrimination and handicap discrimination is reversed. The remaining issues raised on appeal are without merit. We agree with the ruling of the lower court that plaintiff failed to sustain his burden of submitting any evidence that he was incompetent to enter into the arbitration contract. Further, we agree that the contract for arbitration is clear and unambiguous with regard to the waiver of substantive legal rights and that it applies to defendants. We also hold that summary disposition was not prematurely granted, because further discovery was not necessary for plaintiff to discover his own alleged incompetence. Summary disposition is premature if discovery of a disputed issue is incomplete; however, it is appropriate if there is no fair chance that further discovery will result in factual support for the nonmoving party. Vargo v Sauer, 215 Mich App 389, 401; 547 NW2d 40 (1996). Moreover, there must be a disputed issue before the court. Bellows v Delaware McDonald’s Corp, 206 Mich App 555, 561; 522 NW2d 707 (1994). After having been given approximately six months to conduct discovery with regard to the competency issue and the opportunity to supplement any evidence in this regard, the trial court properly held that plaintiff’s conclusory averments regarding his own incompetency did not raise a genuine issue of fact. SSC Associates Ltd Partnership v General Retirement System of the City of Detroit, 192 Mich App 360, 365-366; 480 NW2d 275 (1991). Finally, during oral argument, defendants argued that the present case is distinguishable from Rushton for the reason that plaintiff’s employment allegedly involved interstate commerce and, therefore, is governed by the federal arbitration act, 9 USC 1 et seq. We disagree. For the reasons stated in the Rushton majority opinion, we hold that plaintiff’s employment contract as a breadmaker at defendant Ryan’s Family Steakhouse, Inc., was not “a contract evidencing a transaction involving [interstate] commerce . . . . “ 9 USC 2. Accordingly, plaintiff’s civil rights claims are not preempted by the federal arbitration act. Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. See, e.g., Detroit v A W Kutsche & Co, 309 Mich 700, 703; 16 NW2d 128 (1944), Grazia v Sanchez, 199 Mich App 582, 584; 502 NW2d 751 (1993), McKain v Moore, 172 Mich App 243, 248; 431 NW2d 470 (1988), Marciniak v Amid, 162 Mich App 71, 76; 412 NW2d 248 (1987), Omega Constr Co, Inc v Altman, 147 Mich App 649, 655; 382 NW2d 839 (1985), and Northland Ins Co v Sny, 98 Mich App 507, 508; 296 NW2d 292 (1980). We would not adopt the unnecessary commentary contained in the footnotes. The notion of unconscionability may be an underpinning of the Rush-ton decision. On this unarticulated issue, we note that, although atypical, many employment contracts are entered into with equal bargaining strength. Furthermore, in contracts involving some corporate executives or famous sport stars, the employee, not the employer, often has the stronger bargaining position. To hold in such situations that the employee cannot contractually agree to arbitrate prospective claims, including civil rights claims, is to deny, without reason, the right to contract. While case by case we might find some employment contracts to arbitrate future claims to be unconscionable, or not arbitrable as gleaned from legislative intent, the all-encompassing rule of law created by Rushton simply goes too far.

HYDE v UNIVERSITY OF MICHIGAN BOARD OF REGENTS Docket Nos. 181187, 190178. Submitted March 13, 1997, at Detroit. Decided November 25, 1997, at 9:00 a.m. Maurice Hyde, an African-American, brought an action in the Washte-naw Circuit Court against the University of Michigan Board of Regents, alleging disparate treatment in employment, retaliation, and discriminatory discharge on the basis of race. The plaintiff also alleged breach of contract, which count was heard separately by the circuit court sitting by stipulation as the Court of Claims. The court, Patrick J. Conlin, J., granted the defendant’s motion for partial summary disposition with regard to the plaintiff’s claim that his assignment was reduced from full-time to part-time because of his race. A jury heard the disparate treatment, retaliation, and discriminatory discharge claims and found that the plaintiff was not discharged from employment because of his race, that he was not retaliated against because of his complaints of discrimination, and that he was not entitled to any monetary back pay. The jury found that the defendant discriminated against the plaintiff by treating him differently than nonminorities, and awarded him noneconomic damages for outrage, indignation, humiliation, and embarrassment. The jury awarded the plaintiff $20,000, plus court costs and attorney fees. The Court of Claims action was decided adversely to the plaintiff. The plaintiff appealed, and the defendant cross appealed. (Docket No. 181187). The plaintiff also appealed from the trial court’s order awarding the defendant mediation sanctions for the plaintiff’s rejection of the mediation evaluation. (Docket No. 190178). The appeals were consolidated. The Court of Appeals held: 1. Partial summary disposition was properly granted with regard to the plaintiff’s claim that his change from full-time to part-time status was motivated by illegal race discrimination. 2. Where, as here, the plaintiff in an employment discrimination case seeks more than economic damages from an employer, the defendant employer may pursue normal discovery of the plaintiff’s emotional and mental history. A plaintiff who prefers to shield the plaintiff’s mental and emotional history from discovery may do so, but only if all claims for mental or emotional distress damages are withdrawn, including claims for damages arising out of embarrassment, anger, indignation, humiliation, and all similar issues. Where, as here, a plaintiff asserts the physician-patient privilege to shield psychological or mental history from discovery, it is error to allow the plaintiff to seek noneconomic damages or to introduce evidence of noneconomic injury. 3. The court erred in attempting to create two separate categories of psychic injuries: “serious” and “garden variety.” The court properly prevented the plaintiff from presenting more specific and additional evidence of mental anguish. 4. The plaintiff did not preserve for appellate review his allegation that the verdict with regard to the issues of retaliation and termination was contrary to the great weight of the evidence. 5. The mediation sanctions imposed on the plaintiff must be affirmed. 6. The jury’s verdict against the plaintiff regarding the claims of discriminatory discharge and retaliation precludes the retrial of any issues concerning economic damages on remand. The Court of Appeals ruling precluding the claims for noneconomic damages where the privilege has been invoked precludes the retrial of any issues concerning noneconomic damages on remand. Therefore, because there can be no evidence of damages on remand, there is no need for a new trial. The judgment reflecting the jury verdict for noneconomic damages and the award of costs and attorney fees must be reversed and the matter must be remanded for entry of a judgment of no cause of action. The remainder of the court’s rulings in other respects must be affirmed. Affirmed in part, reversed in part, and remanded. 1. Civil Rights — Employment Discrimination — Evidence — Noneconomic Damages — Discovery. A plaintiff in an employment discrimination and wrongful discharge case brought under the Civil Rights Act who seeks recovery for noneconomic damages, such as pain and suffering, mental distress, hurt feelings, or embarrassment, places the plaintiff’s mental condition in issue and consequently open to discovery; a plaintiff who asserts a privilege to prevent discovery with regard to this issue must withdraw, or the court must dismiss, any claim for noneconomic damages (MCR 2.314[A],[B]; MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 2. Civil Rights — Actions — Psychic Injuries. Victims of discrimination may recover for psychic injuries such as humiliation, embarrassment, outrage, disappointment, and other forms of mental anguish that flow from discrimination; Michigan courts have not recognized a two-tiered approach to emotional or psychic injuries that would create separate categories for “serious” and “garden variety” injuries. 3. Pretrial Procedure — Mediation — Appeal — Sanctions. It is the ultimate verdict that the parties are left with after appellate review is complete that should be measured against a mediation evaluation to determine whether sanctions should be imposed on a rejecting party pursuant to MCR 2.403(0). Green, Green & Craig, P.C. (by Philip Green and Christine A. Green), for the plaintiff. Miller, Canfield, Paddock and Stone, P.L.C. (by Richard J. Seryak and Megan P Norris), for the defendant. Before: Sawyer, P.J., and Saad and Gage, JJ. Saad, J. i NATURE OF THE CASE In this case we address several legal issues, but highlight here the key issue of first impression. In an employment discrimination, wrongful discharge case brought under the Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq., may a plaintiff seek more than economic damages yet shield from discovery his mental history? Our answer is clear and simple: no. If a plaintiff, as here, seeks more than economic damages from his employer, the defendant-employer may pursue normal discovery that includes discovery of the plaintiff’s emotional and mental history. If plaintiff prefers to shield his mental and emotional history from discovery, he may do so but only if he withdraws all claims for mental or emotional distress damages, including claims for damages arising out of embarrassment, anger, indignation, humiliation, and all similar issues. Because the trial court erred in allowing plaintiff to seek noneconomic damages after shielding his psychological or mental history from discoveiy by asserting the privilege, we reverse the lower court’s judgment with regard to those damages and the award of costs and attorney fees and affirm the circuit court’s rulings with regard to the other issues raised herein. n FACTS AND PROCEDURAL HISTORY At all times relevant to this case, the University of Michigan School of Social Work had a contract with the UAW-Ford Motor Company National Education, Development & Training Center (UAW-Ford Center) located in Dearborn, to provide academic and career counseling to Ford’s union workers. Plaintiff, an African-American male, was hired by the University of Michigan in 1985 to work as a Regional Life Education Advisor (rlea) with the iife/Education Planning Program (LEPP) for the UAW-Ford Center. Plaintiff’s duties as an rlea required travel to various Ford plants in his region, at which he developed and presented workshops and seminars for Ford employees. Plaintiff testified at trial that although he allegedly enjoyed a good working relationship with his previous supervisors, problems began about a year after Justine Bykowski became his supervisor in 1986 or 1987. Plaintiff filed a formal grievance against Ms. Bykowski in August, 1990, alleging racial discrimination and challenging her alleged “confrontational and inflexible management style.” After a hearing, a grievance panel unanimously found no evidence of discrimination, but called for both parties to “communicate clearly.” In 1989 and 1990, Ms. Bykowski wrote three disciplinary memos to plaintiff addressing alleged travel irregularities. Sometime later, plaintiff’s employment was reduced from full-time to half-time by the UAW-Ford Center. Plaintiff filed a second grievance against Ms. Bykowski, again alleging racial discrimination. On April 16, 1992, a panel again found no evidence of discrimination. Indeed, one African-American member that sat on both grievance panels (by plaintiff’s choice) attributed the difficulties between Bykowski and plaintiff to a personality conflict, rather than race. According to plaintiff, after his second grievance his relationship with Bykowski continued to deteriorate until the “Buffalo” incident at the Buffalo, New York, plant on September 1-3, 1992. On August 24, 1992, plaintiff was asked to service the Buffalo plant beginning on September 1, and he agreed to do so. On August 29, 1992, a friend asked plaintiff to sing in Chicago at the funeral of the friend’s father, and plaintiff telephoned Bykowski repeatedly to ask if his schedule could be changed. She made inquiries with the UAW-Ford Center and reviewed schedules of other regional rleas to determine if anyone could take plaintiff’s place. However, when she was unable to find a replacement, she notified plaintiff that he could not alter his schedule. Plaintiff refused to accept Ms. Bykowski’s answer, and he proceeded to contact others in the program, including people at the UAW-Ford Center in Dearborn and the local co-chair at the Buffalo plant, as well as some of Ms. Bykowski’s superiors in an attempt to override her determination. Eventually, plaintiff and Bykowski spoke by telephone again and Bykowski faxed plaintiff a memo telling him to fulfill the Buffalo assignment. Plaintiff did fulfill his obligations in Buffalo, but also sent a reply to Bykowski, in which he included the statement, “Also, at all costs you forego all professional management skills and opt to perform behaviors that border on what I believe are tactics adopted by the white supremacy.” Plaintiff sent copies of his letter to Harold Johnson (the dean of the university’s School of Social Work under which the lepp was administered), Shirley Anderson, the dean’s assistant, Program Director Bob Toronto, as well as Ron Dick and Dan Gamble of the personnel department. Following notification and a hearing, plaintiff was discharged on October 16, 1992. Mr. Toronto and Ms. Anderson recommended plaintiff’s dismissal to Dean Johnson, who himself felt that the discharge was long overdue, and who instructed Toronto to “proceed with all speed.” (Johnson, an African-American, described plaintiff as being noted for irregular expenditures, having difficulty in accepting assignments, and using poor judgment.) After further consultation with Dean Johnson, Mr. Toronto decided that plaintiff’s employment should be terminated and he authorized plaintiffs termination letter, which stated: In the recent episode at Buffalo Stamping, a routine scheduling decision made, in order to meet the needs of the program, was transformed by you into a point of contention which disrupted the work of numerous people. By your involving others in and outside of the University in your attempt to override the scheduling decision, you placed your personal convenience and priorities above those of the University, the Sponsor, the local site and the program as a whole. Your conduct damaged our relationship with the sponsor and the location and disrupted the provision of service to workers. This was inexcusably unprofessional. The Buffalo episode, in and of itself, would have caused me to consider the termination of your employment. In the context of the prior written warnings and your apparent inability to understand and appreciate the negative impact of your actions on the University’s relationship with its Sponsor, such action is inescapable. Your position in the [Disciplinary Review Conference] was that there was nothing wrong with your conduct in this or any other instance. This strengthened my conviction that termination was the only outcome that would meet the long term needs of the Program. Plaintiff brought this suit against the University of Michigan Board of Regents only, not the UAW-Ford Center or any individual (including Bykowski). In summary, plaintiff alleged: (1) disparate treatment on the basis of race in regard to his travel arrangements, assignments, work schedules, and criticisms from his supervisor, (2) retaliation for having filed two grievances alleging race discrimination, (3) termination from employment in October 1992, on the basis of illegal race discrimination, and (4) breach of contract. On March 8, 1994, the trial court granted defendant’s motion for partial summary disposition regarding plaintiffs claim that his assignment was reduced from full-time to part-time because of his race; the court determined that plaintiff had failed to raise a genuine issue of fact for trial that the decision had been made by the defendant, rather than by the uaw-Ford Center, whom plaintiff had not sued. The case proceeded to a jury trial of plaintiffs disparate treatment, retaliation, and discriminatory discharge claims. The jury found that plaintiff was not discharged from employment because of his race, that he was not retaliated against because of his complaints of discrimination, and that he was not entitled to any monetary back pay. The jury found that defendant discriminated against plaintiff by treating him differently than nonminorities, and awarded him noneconomic damages for outrage, indignation, humiliation, and embarrassment. The jury awarded $20,000, plus court costs and attorney fees. On appeal, in Docket No. 181187, plaintiff raises several substantive issues, one of which is cross appealed by defendant. In Docket No. 190178, plaintiff raises certain procedural issues involving mediation sanctions. The appeals were consolidated. m ANALYSIS A Plaintiff first alleges that the circuit court erred in granting partial summary disposition with regard to his claim that his change from full-time to part-time status was motivated by illegal race discrimination. We disagree. As a threshold matter, it is undisputed that it was the UAW-Ford Center, not the defendant university, that made the decision to reduce plaintiffs status. It is similarly undisputed that, in response to the UAW-Ford Center’s request for information, Ms. Bykowski provided the center with statistical information regarding the services actually performed by the RLE As. Plaintiff claims that Ms. Bykowski’s alleged racial animus tainted the center’s ultimate decision. However, plaintiff was unable to present facts to support his contention. In response to defendant’s motion, plaintiff presented no evidence that the statistics compiled by Bykowski were inaccurate or slanted, or that the statistics were not based on the reports actually submitted by the RLEAs themselves. Although plaintiff stated that “further discovery will very likely shed additional light on these questions,” plaintiff failed to show by affidavit that further development would support his claims. MCR 2.116(H). Thus, had Bykowski harbored illegal discriminatory animus, plaintiff was unable to show that it contributed in any way to the UAW-Ford Center’s decision to reduce plaintiff’s hours. See McDonald v Union Camp Corp, 898 F2d 1155, 1161 (CA 6, 1990). We find no error. B The parties next cross appeal various noneconomic damages issues, for which an additional factual discussion is necessary. In his complaint, plaintiff alleged that, as a result of defendant’s racial discrimination, he suffered, inter alia, “mental anguish, outrage, embarrassment and humiliation.” The applicable Michigan Court Rule regarding discovery provides: (1) When a mental or physical condition of a party is in controversy, medical information about the condition is subject to discovery under these rules to the extent that (a) the information is otherwise discoverable under MCR 2.302(B), and (b) the party does not assert that the information is subject to a valid privilege. [MCR 2.314(A)(1).] Pursuant to MCR 2.314, defendant sought discovery of plaintiffs mental histoiy. Plaintiff refused this request, asserted the physician-patient privilege, and contended: Plaintiff states [in his complaint] that he is seeking damages for mental anguish, humiliation, embarrassment, and the like, which are psychic damages. He is not claiming psychiatric injury or exacerbation of a pre-existing psychological or psychiatric condition. Because plaintiff asserted the privilege to shield his mental history from discovery, defendant asked the trial court by a motion in limine to preclude plaintiff from introducing any evidence of emotional distress at trial, pursuant to MCR 2.314(B)(2): Unless the court orders otherwise, if a party asserts that the medical information is subject to a privilege and the assertion has the effect of preventing discovery of medical information otherwise discoverable under MCR 2.302(B), the party may not thereafter present or introduce any physical, documentary, or testimonial evidence relating to the party’s medical history or mental or physical condition. Plaintiff argued to the circuit court that MCR 2.314(A)(1) did not apply because “as long as the claim for non-economic damages is restricted to embarrassment, humiliation, outrage and indignation, which some courts are referring to as the garden variety of emotional injuries, . . . the medical and psychological] records are not relevant and are not likely to lead to any relevant or admissible evidence.” The trial court incorrectly ruled that it would permit plaintiff to introduce evidence regarding embarrassment, humiliation, outrage, and indignation, but not mental anguish and emotional distress. In an August 12, 1994, opinion, the trial court refused plaintiffs request to expand the ruling to permit evidence of damages for mental anguish. At trial, the court attempted to limit plaintiffs evidence to his feelings of indignation, embarrassment, humiliation, and outrage and to prohibit testimony regarding emotional distress or mental anguish. Thus, plaintiff testified that he felt disgusted, frustrated, and embarrassed, that he felt angry, disrespected, and very insignificant as a person, and that he felt like “a broke forty-one year old man living with his mother.” At one point, the trial court sustained defendant’s objection that plaintiff’s testimony was invading the province of emotional/mental anguish. As previously stated, the jury ultimately awarded plaintiff $20,000 in noneconomic damages for outrage, indignation, humiliation, or embarrassment resulting from racial discrimination in his employment. We reverse this award because it was predicated on evidence of damages that should have been excluded by the trial court. It is well established that victims of discrimination may recover for psychic injuries such as humiliation, embarrassment, outrage, disappointment, and other forms of mental anguish that flow from discrimination. Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785, 799; 369 NW2d 223 (1985). See also Phillips v Butterball Farms Co, Inc (After Second Remand), 448 Mich 239, 250-253; 531 NW2d 144 (1995). However, the trial court clearly erred in attempting to create two separate categories of psychic injuries: (1) “serious” injuries such as “emotional distress” and “mental anguish,” and (2) “garden variety” injuries, such as hurt feelings, outrage, embarrassment, and humiliation. Such a distinction cannot be realistically maintained. In Veselenak v Smith, 414 Mich 567, 576; 327 NW2d 261 (1982), which addressed the duplication between ordinary damages and exemplary damages, the Court rejected the contention that “ordinary damages for shame and mortification” and “exemplary damages for humiliation and indignity” compe

JULI DENNING-BOYLES, Plaintiff v. WCES, INC., and HOWARD GEBEAUX, Defendants No. COA94-1231 (Filed 6 August 1996) 1. Intentional Infliction of Mental Distress § 2 (NCI4th)— intentional infliction of emotional distress — summary judgment improper In an action for intentional infliction of emotional distress and punitive damages, the trial court erred in entering summary judgment for defendants when plaintiff offered a forecast of evidence that the editor of the newspaper for which she worked made numerous sexual comments and advances toward her; plaintiffs psychologist stated that plaintiff experienced severe, extreme, and disabling emotional distress as a result of this conduct; and the employer was given notice of the editor’s behavior but took no action to stop it and thus ratified the employee’s acts. Am Jur 2d, Damages §§ 789-797; Employment Relationship § 248; Job Discrimination §§ 964, 966, 967; Labor and Labor Relations §§ 638, 3292; Master and Servant § 440. On-the-job sexual harassment as violation of state civil rights law. 18 ALR4th 328. When is work environment intimidating, hostile, or offensive, so as to constitute sexual harassment in violation of Title VII of Civil Rights Act of 1964, as amended (42 USCS §§ 2000e et seq.). 78 ALR Fed. 252. Individual liability of supervisors, managers, or officers for discriminatory actions — cases postdating the Civil Rights Act of 1991. 131 ALR Fed. 221. 2. Pleadings § 378 (NCI4th)— amendment of complaint to add party — denial proper The trial court did not err in refusing to allow plaintiff to amend her complaint in order to add the individual owner of a newspaper, which had employed her, as defendant, since, if the individual had any liability toward her, she knew it prior to filing suit, and adding the individual at the time of her motion would result in a delay of trial. Am Jur 2d, Damages § 824; Job Discrimination § 2545; Labor and Labor Relations § 4589; Parties § 102. Order with respect to motion for joinder of parties. 16 ALR2d 1023. Amendment of pleading as to parties or their capacity as ground for continuance. 67 ALR2d 477. Necessity of leave of court to add or drop parties by amended pleading filed before responsive pleading is served, under Federal Rules of Civil Procedure 15(a) and 21. 31 ALR Fed. 752. Appeal by plaintiff from judgment and order entered 21 July 1994 by Judge Donald L. Smith in Harnett County Superior Court. Heard in the Court of Appeals 23 August 1995. Brenton D. Adams for plaintiff appellant. Bain & McRae, by Edgar R. Bain and Patrick H. Pope, for defendant appellee WCES, Inc. JOHN, Judge. Plaintiff appeals entry of summary judgment precluding claims against her former employer, defendant WCES, Inc. (WCES), for intentional infliction of emotional distress and punitive damages. She also appeals denial of her motion to amend her complaint. We conclude that summary judgment was improvidently granted. Pertinent facts and background information include the following: in December 1992, plaintiff left her job as advertising manager of the Harnett County News to take a similar position with The Harnett Leader, a newspaper being established at that time in Harnett County by WCES. The same month, WCES also hired defendant Howard Gebeaux (Gebeaux) as editor of the fledgling publication. According to allegations in plaintiffs complaint, very soon after Gebeaux was hired, he “began making uninvited and unwel-comed sexual advances toward the plaintiff which increased in their frequency and intensity throughout the entire time the plaintiff was employed” by WCES. Further, although plaintiff informed William A. Johnson and Rebecca Johnson Davidson, members of the board of directors of WCES, by February 1993 that she was being sexually harassed by Gebeaux, WCES took no action to prevent further misconduct by Gebeaux. Eventually, on 4 June 1993, plaintiff resigned her position with The Harnett Leader due to “intolerable conditions” on the job and her employer’s alleged refusal to alleviate them. Plaintiff filed suit against Gebeaux and WCES 22 June 1993, claiming she had “suffered severe mental and emotional distress” as the result of sexual harassment by Gebeaux, and that she “ha[d] been required to seek medical attention for this problem.” Plaintiff sought compensatory and punitive damages for intentional infliction of emotional distress and also treble damages for unfair and deceptive trade practices under N.C.G.S. Chapter 75. Following answers by both defendants and a motion for summary judgment by WCES filed 14 March 1994, plaintiff moved on 4 April 1994 to amend her complaint to add William A. Johnson (Johnson), president and chairman of the board of WCES, as an additional defendant. On 21 July 1994, the trial court granted summary judgment in favor of WCES on plaintiffs claims of intentional infliction of emotional distress, punitive damages, and unfair and deceptive trade practices. The court certified its judgment for immediate appeal pursuant to N.C.R. Civ. P. 54(b), finding that “even though fewer than all claims have been adjudicated in this ‘final judgment,’ there is no just reason for delaying the appeal.” The trial court also denied plaintiff’s motion to amend her complaint. Plaintiff filed notice of appeal to this Court 21 July 1994. Plaintiff first contends summary judgment was improper because “plaintiff presented á forecast of evidence which raised a genuine issue of material fact concerning the liability of [WCES] for intentional infliction of emotional distress and punitive damages.” Plaintiff makes no argument regarding her claim for unfair and deceptive trade practices, and it is deemed abandoned pursuant to N.C.R. App. P. 28(a). Summary judgment is to be entered only where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. N.C.R. Civ. P. 56(c). The burden of establishing absence of a triable issue rests with the moving party, and the facts will be viewed in a light most favorable to the non-moving party. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). “Because the forecast of evidence as to the factual basis of each [claim of intentional infliction of emotional distress] is unique, each claim must be decided on its own merits.” Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 490, 340 S.E.2d 116, 121, disc. review denied, 317 N.C. 334, 346 S.E.2d 140 (1986). The elements of intentional infliction of emotional distress are: “(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress.” Hogan, 79 N.C. App. at 487-88, 340 S.E.2d at 119. It is a question of law whether the alleged conduct on the part of defendant “may be reasonably regarded as extreme and outrageous;” however, once shown, “it is for the jury to determine . . . whether the conduct complained of is, in fact, sufficiently extreme and outrageous to result in liability.” Id. at 490-91, 340 S.E.2d at 121. The conduct must “exceed[] all bounds of decency tolerated by society.” West v. King’s Department Store, Inc., 321 N.C. 698, 704, 365 S.E.2d 621, 625 (1988). WCES makes no argument that plaintiffs evidentiary forecast was insufficient to support plaintiffs claim for intentional infliction of emotional distress against Gebeaux. Indeed, in its appellate brief WCES concedes that “[t]he only issue before the trial judge in considering defendant’s motion for summary judgment” was whether the record before the court “would entitle plaintiff to recover against WCES.” Although liability of Gebeaux is essential if WCES is to be held responsible under a theory of respondeat superior, a brief review of the record reveals an evidentiary forecast more than sufficient to take plaintiffs claims against Gebeaux to the jury. Without setting out the crudest vulgarities contained in the record, we note it indicates that Gebeaux made repeated sexual comments to plaintiff at the newspaper office on almost a daily basis. For example, plaintiff alleges that Gebeaux “many, many times” made remarks such as “I want to screw you and watch you beg for more;” that, on a Saturday when both were working, Gebeaux begged the plaintiff to go home and spend the day with him .... He would come back and forth to the plaintiffs office saying things like: “This is the last chance for the best sex you’ll ever have . . . ;” that, on 22 April, Gebeaux asked plaintiff to “go to his house” for a sexual encounter; and that, when plaintiff consistently rejected him, he accused her of having lesbian relationships. Other employees indicated Gebeaux asked plaintiff: “How’s your sex life with Ray [plaintiffs husband]? How many times a week do you have sex?” and “Where’s the best place to rent a good ‘porno movie’?” Further, Gebeaux stated to plaintiff that “I’m so sexually frustrated around you, I’ve a ‘good might’ to get you fired;” that “I like married women better. Take them home; take them to bed; and let them go;” that “[w]e could all go down to the beach and have a big orgy;” and that “[i]t turns me on when you wear your hair down like that.” Further, the affidavit of plaintiff’s clinical psychologist stated, inter alia, that plaintiff experienced “severe, extreme and disabling” emotional distress as a result of Gebeaux’s conduct, and that her prognosis was “guarded at best and may be poor if she does not receive appropriate evaluation and treatment including psychotherapy. ” Gebeaux’s evidence, consisting in part of categorical denials and in part of depicting plaintiff as initiator of conversations connoting a sexual context and of personal contact with Gebeaux, conflicted with that presented by plaintiff. However, the acts and statements of Gebeaux outlined above, in addition to numerous others found in the record, without question constitute conduct which “may reasonably be regarded,” Hogan, 79 N.C. App. at 491, 340 S.E.2d at 121, to “exceedf] all bounds of decency tolerated by society,” West, 321 N.C. at 704, 365 S.E.2d at 625, thereby placing the question of his liability in the hands of the jury. Hogan, 79 N.C. App. at 491, 340 S.E.2d at 121. As the evidentiary materials before the trial court reflect plaintiff met her burden of production regarding the individual liability of Gebeaux, we proceed to examine whether the trial court properly allowed the summary judgment motion of Gebeaux’s employer, defendant WCES. An employer may be held liable for the .torts of an employee under the doctrine of respondeat superior in circumstances where: (1) the employer expressly authorizes the employee’s act; (2) the tort is committed by the employee in the scope of employment and in furtherance of the employer’s business; or (3) the employer ratifies the employee’s tortious conduct. Stanley v. Brooks, 112 N.C. App. 609, 613, 436 S.E.2d 272, 274 (1993), disc. review denied, 335 N.C. 772, 442 S.E.2d 521 (1994). For plaintiff to have survived summary judgment as to WCES, therefore, the evidence must necessarily have tended to show that the acts of Gebeaux and the conduct of WCES “f[e]ll into one of the aforementioned categories.” Brown v. Burlington Industries, Inc., 93 N.C. App. 431, 436, 378 S.E.2d 232, 235, disc. review allowed, 325 N.C. 270, 384 S.E.2d 513, cert. tiff presented a sufficient forecast of the evidence to move forward on the theory of ratification, and thus do not discuss the remaining categories. This Court has held that: In order to show that the wrongful act of an employee has been ratified by his employer, it must be shown that the employer had knowledge of all material facts and circumstances relative to the wrongful act, and that the employer, by words or conduct, shows an intention to ratify the act. Hogan, 79 N.C. App. at 492, 340 S.E.2d at 122. In addition, “ [t]he jury may find ratification from any course of conduct on the part of the principal which reasonably tends to show an intention on his part to ratify the agent’s unauthorized acts.” Such course of conduct may involve an omission to act. Brown, 93 N.C. App. at 437, 378 S.E.2d at 236 (quoting Equipment Co. v. Anders, 265 N.C. 393, 401, 144 S.E.2d 252, 258 (1965)). Finally, although the employer must have knowledge of all material facts relative to its employee’s acts in order to effect ratification, [i]f the purported principal is shown to have knowledge of facts which would lead a person of ordinary prudence to investigate further, and he fails to make such investigation, his affirmance without qualification is evidence that he is willing to ratify upon the knowledge which he has. Restatement (Second) of Agency § 91, Comment e, p. 235 (1958). See also Equipment Co., 265 N.C. at 401, 144 S.E.2d at 258 (“[W]hen [principal] has such information that a person of ordinary intelligence would infer the existence of the facts in question, the triers of fact ordinarily would find that he had knowledge of such fact.” (citing Restatement (Second) of Agency, § 91, Comment c, p. 232 (1958))). Unrefuted evidence in the record indicates WCES received letters from plaintiff and Susan White, a reporter for the newspaper, in mid-February 1993 informing it that Gebeaux had been making sexual advances towards plaintiff. White included in a lengthy, detailed letter to WCES the following: I have heard [Gebeaux] make numerous comments to Juli, with respect to the clothes she might be wearing that day, her hair and just her overall looks, comments which I, as well as others who have heard them, believe to be stepping over the line and considered as sexual harassment. Since I began working with Mr. Gebeaux, I immediately noticed his attraction to Juli. The attraction became even clearer after hearing him make comments to her such as “Um, you look good today,” and “It turns me on when you wear your hair down like that.” Plaintiff wrote to WCES: Monday, February 1st Howard made the comment to me “I am so sexually frustrated by you I think I am going to get you fired.” This has not been the first time these remarks have been made . . . however, I do not want to be involved in ANY problems such as this. I will admit it has greatly affected my job performance. (emphasis in the original). WCES points to a second letter received from plaintiff, shortly after receipt of the first, in which she praised efforts of WCES in helping to resolve her problems with Gebeaux. Admittedly, plaintiff’s evidence may fairly be characterized as containing contradictions on the question of whether any representative of WCES was explicitly informed that Gebeaux’s sexual harassment of plaintiff continued after the February letter. However, plaintiffs affidavit also suggests Johnson failed to take the allegations set out in the first letter seriously. Plaintiff relates that Johnson said, upon patting her on the shoulder during a meeting soon after WCES received the first letter, “Now, Juli, this is not sexual harassment.” At the same meeting, according to plaintiff, I told W. A. Johnson and Rebecca Johnson Davidson of some of the things Howard Gebeaux had said to me, including “It turns me on when you wear your hair down,” but was interrupted by W. A. Johnson stating that was in the past and we must go on. W. A. Johnson would not allow me to continue to tell him about further acts of sexual harassment. In addition, plaintiff maintains in her affidavit that: In early April of 1993, W. A. Johnson saw flowers in my office . . . and asked who sent them. I replied, “Howard did. He’s still up to his same old tricks.” In late April of 1993, I met with Rebecca Davidson, tried to discuss sexual harassment by Howard Gebeaux, but she told me we would not discuss Mr. Gebeaux unless Howard Gebeaux was present. Moreover, plaintiff asserts that on 4 June 1993, when she and four other female employees of the newspaper went to Johnson’s office to protest the behavior of Gebeaux, plaintiff told Johnson three times that she could “no longer work with sexual harassment from Howard Gebeaux.” Plaintiff claims that after briefly hearing from the employees, Johnson told them to return to the newspaper office to await his decision on whether Gebeaux would be fired. Johnson then called Gebeaux to his office; following a discussion with Gebeaux, Johnson went to the newspaper office where he announced to the staff that Gebeaux would be staying on as editor. Johnson informed plaintiff that WCES would like her and one other employee who had protested to remain with the paper. Plaintiff alleges she said at that point, “I will no longer stay and work with sexual and mental harassment.” According to plaintiff, Johnson responded, “Gather your things and be out of the office before five o’clock.” WCES maintains it at no time received sufficient knowledge of material facts regarding Gebeaux’s sexual harassment of plaintiff so as to satisfy the first element of ratification. See Hogan, 79 N.C. App. at 492, 340 S.E.2d at 122 (“it must be shown that the employer had knowledge of all material facts and circumstances relative to the wrongful act”). However, we believe plaintiff presented a sufficient forecast of evidence upon which a jury could find that WCES learned of facts regarding Gebeaux’s sexual harassment of plaintiff which would have led a reasonable person “to investigate further,” Restatement (Second) of Agency, supra, at p. 235, and that its failure to do so showed WCES was “willing to ratify upon the knowledge which [it had].” Id. Further, a jury could find the requisite element of intent on the part of WCES to ratify Gebeaux’s actions through its “words [and] conduct,” Hogan, 79 N.C. App. at 492, 340 S.E.2d at 122, in declining to hear complaints from plaintiff or intervene on her behalf, or in retaining Gebeaux in the face of plaintiff’s insistence she could “no longer work with sexual harassment from Howard Gebeaux.” See Hogan, 79 N.C. App. at 492-93, 340 S.E.2d at 122 (whether manager’s actions consisting, inter alia, of “retaining [harasser] in defendant’s employ, [and] declining to intervene to prevent his further offensive behavior toward [plaintiff]” amounted to “a course of conduct signifying an intention to . . . ratify [harasser’s] acts is a question for the jury”). Finally, we briefly examine plaintiffs contention the trial court erred by refusing to permit amendment of her complaint under N.C.R. Civ. P. 15(a) in order to add Johnson as defendant. Denial of a motion to amend ordinarily is not reviewable in the absence of a clear showing of abuse of discretion. Caldwell’s Well Drilling, Inc. v. Moore, 79 N.C. App. 730, 731, 340 S.E.2d 518, 519 (1986). In the case sub judice, the trial court’s order contained the factual findings that (1) “if William A. Johnson had any liability to the plaintiff, such fact was obvious to the plaintiff as early as February of 1993, and this action was instituted without making him a party,” and (2) adding Johnson would make further discovery necessary at a point in the case where discovery was almost complete, thereby causing undue delay of the trial. We find no abuse of discretion in the court’s order. In sum, the trial court’s award of summary judgment in favor of WCES on the issues of intentional infliction of emotional distress and punitive damages, see Brown, 93 N.C. App. at 438, 378 S.E.2d at 236-37 (“existence of an outrageous act supports submission of an issue pertaining to punitive damages to the jury”), is reversed; the order denying plaintiff’s motion to amend her complaint is affirmed. Reversed in part; affirmed in part. Judges EAGLES and LEWIS concur.

QUINTO v CROSS AND PETERS COMPANY Docket No. 99057. Argued October 12, 1995 (Calendar No. 10). Decided May 14, 1996. Elena Quinto brought a civil rights action in the Wayne Circuit Court against Cross and Peters Company, her employer, alleging that her supervisor demeaned and humiliated her, made discriminatory decisions, and created a hostile work environment on the basis of her age, sex, and national origin. The court, Lucile A. Watts, J., granted summary disposition for the defendant, finding that the plaintiff failed to sufficiently document a prima facie case of hostile work environment. The Court of Appeals, Corrigan, P.J., and Gribbs and G. E. Montgomery, JJ., affirmed in an unpublished memorandum opinion (Docket No. 151198). The plaintiff appeals. In an opinion by Justice Boyle, joined by Chief Justice Brickley, and Justices Cavanagh, Riley, and Mallett, the Supreme Court held: The plaintiff failed to sufficiently support a prima facie case of hostile work environment with documentary evidence. To survive summary disposition, the plaintiff was required to present documentary evidence to the trial court that a genuine issue existed whether a reasonable person, in the totality of the circumstances, would find the supervisor’s comments to her sufficiently severe or pervasive to create a hostile work environment. The plaintiff’s affidavit did not satisfy her burden under MCR 2.116(C)(10) as the opposing party to respond with specific facts. Rather, the affidavit contained mere conelusory allegations and was devoid of detail that would permit the conclusion that there was such conduct or communication of a type or severity that a reasonable person could find that a hostile work environment existed. Affirmed. Justice Levin, dissenting, stated that the defendant’s motion for summary disposition under MCR 2.116(C)(10) did not specifically identify the issues it asserted raised no genuine issue of material fact, nor was it based on the absence of a genuine issue of material fact under subrule (C)(10). The plaintiff thus was not obliged under MCR 2.116(G)(4) to file an affidavit setting forth specific facts showing that there was a genuine issue for trial. She could properly rest on the allegations in her amended complaint without further elaboration or affidavit because a motion under subrule (C)(10) had not been filed, and the defendant’s unsworn brief did not constitute an amended or supplemental motion. Summary disposition was improvidently granted because, if all the facts alleged by the plaintiff are accepted as true, as MCR 2.116(0)(10) mandates, a genuine issue remains. The circuit court erred in relying on deposition testimony because the plaintiff’s account of factual events must be accepted as true. It is not the function of the circuit judge to weigh credibility. While one or two incidences of name-calling may not be actionable, insults that amount to ridicule and that cause intimidation are. Further, the plaintiff was not required to show before trial, to any degree of certainty, that her claim ultimately would be successful. Rather, the test is whether the kind of record that might be developed, giving the benefit of reasonable doubt to the opposing party, would leave open an issue upon which reasonable minds might differ. Although worded without complete specificity, her complaint and affidavits clearly meet this threshold. Summary disposition may not be granted where the credibility of a witness or deponent is crucial. The defendant failed to properly put in issue whether there is a genuine issue of material fact. Neither the court nor the plaintiff was on notice of the need to respond to the motion under subrule (C)(10) with regard to the hostile work environment claim. Justice Weaver took no part in the decision of this case. Bendure & Thomas (by Mark R. Bendure and Sidney A. Klingler) for the plaintiff. Musilli, Baumgardner, Wagner & Parnell, PC. (by Ralph Musilli), for the defendant. Boyle, J. In this case, the trial court dismissed plaintiffs claim pursuant to the Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq., on defendant’s motion for summary disposition. We hold that the trial court properly found that plaintiff had failed to sufficiently support a prima facie case of hostile work environment with documentary evidence and therefore affirm the decision of the Court of Appeals, which upheld the findings of the trial court. FACTS Plaintiff Elena Quinto was employed by defendant Cross and Peters Company, the maker of Better Made Potato Chips, for eighteen years. Plaintiffs first amended complaint sought judgment against Cross and Peters and John Kujawski, alleging that during four years at Cross and Peters, Kujawski, her supervisor, “demeaned and humiliated” and made “discriminatory decisions” concerning her that created a hostile work environment on the basis of her age, sex, and national origin. The complaint further alleged that, on one occasion, after a co-worker made obscene gestures, Kujawski asked her what happened “in a demeaning manner” and pushed her. Plaintiff was sixty years old and held the position of potato chip inspector when she left defendant’s employ. Plaintiff filed a two-count complaint against Cross and Peters and Kujawski. In her first count, she alleged an assault and battery by Kujawski. The second count alleged that defendant created a hostile work environment by demeaning and humiliating her in violation of the Civil Rights Act, MCL 37.2101 et seq.\ MSA 3.548(101) et seq. Summary disposition was requested on behalf of both Cross and Peters and Kujawski on both counts. The trial judge stated that the two dispositive questions were whether plaintiff’s intentional tort claim was barred by the exclusive remedy provision of the Worker’s Disability Compensation Act, MCL 418.131; MSA 17.237(131), and whether plaintiff had established a prima facie case of age, sex; or national origin discrimination. The trial court ultimately held that no intentional tort existed to take count I, plaintiffs assault and battery claim against defendant Cross and Peters, outside the worker’s compensation act because “[t]he evidence . . . does not establish that Defendant, Cross and Peters, her employer, had actual knowledge that any injury was certain to occur . . . Summary disposition was denied with respect to Kujawski. Regarding count n, the discrimination claim, the trial court found that, accepting plaintiff’s allegations of harassment as true, there were no specific facts in plaintiff’s affidavit sufficiently severe or pervasive to create a question of fact regarding Cross and Peters’ creation of a hostile work environment. The Court of Appeals affirmed the lower court in an unpublished memorandum opinion. Plaintiff appealed to this Court. We granted leave, limited to the issue whether the trial court erred in granting summary disposition on plaintiff’s claim of discrimination under the Civil Rights Act with regard to Cross and Peters. 448 Mich 868 (1995). i MCR 2.116 is modeled in part on Rule 56(e) of the Federal Rules of Civil Procedure. As pointed out by Justice Brennan in Celotex v Catrett, 477 US 317; 106 S Ct 2548; 91 L Ed 2d 265 (1986), the initial burden of production is on the moving party, and the moving party may satisfy the burden in one of two ways. First, the moving party may submit affirmative evidence that negates an essential element of the nonmoving party’s claim. Second,, the moving party may demonstrate to the court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim. If the nonmoving party cannot muster sufficient evidence to make out its claim, a trial would be useless and the moving party is entitled to summary judgment as a matter of law. [477 US 331 (citations omitted).] In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), a trial court considers affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10), (G)(4). In presenting a motion for summary disposition, the moving party has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary evidence. Neubacher v Globe Furniture Rentals, 205 Mich App 418, 420; 522 NW2d 335 (1994). The burden then shifts to the opposing party to establish that a genuine issue of disputed fact exists. Id. Where the burden of proof at trial on a dis-positive issue rests on a nonmoving party, the non-moving party may not rely on mere allegations or denials in pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists. McCart v J Walter Thompson, 437 Mich 109, 115; 469 NW2d 284 (1991). If the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly granted. McCormic v Auto Club Ins Ass’n, 202 Mich App 233, 237; 507 NW2d 741 (1993). Plaintiff alleged that her supervisor, John Kujawski, created a hostile work environment contrary to the Civil Rights Act, MCL 37.2101 et seq.] MSA 3.548(101) et seq., by “continually” demeaning her in front of coemployees. Although the main thrust of defendant’s initial motion was the exclusive remedy issue, defendant also briefly addressed the hostile work environment claim. Plaintiff’s brief in reply responded to defendant’s claim that summary disposition should be granted in respect to the discrimination claim. Defendant’s responsive brief asserted that plaintiff had failed to provide specific facts to support allegations of discriminatory treatment. It referenced exhibits, attached deposition testimony and other evidence that refutes Plaintiff’s claims of alleged discrimination by Defendant Kujawsld resulting in the creation of a hostile working environment. Plaintiff has come forth with no evidence to establish a genuine issue of factual dispute; therefore, Defendant’s motion for Summary Disposition should be granted. Whatever the procedural peculiarities of the prior pleading and responses, it is clear that at the time of hearing on November 1, 1991, the parties knew that the civil rights claim was in issue. After the hearing and before the decision, plaintiff filed a reply brief and an affidavit in support, disputing the credibility of the deposition testimony regarding whether Ms. Quinto had been pushed by her supervisor. The affidavit also contained allegations regarding plaintiffs discrimination claim, stating in pertinent part: 9. . . . [M]y supervisor, John Kujawski, had continually harassed me by demeaning and humiliating me in front of fellow employees. 10. His conduct included comments regarding my age, my sex, my national origin and my ability to speak English. 11. That all of these incidents took place while I was at work. 12. That I reported these incidents to my superiors at work. Thus, the narrow issue before us is whether the affidavit raised a genuine issue of material fact sufficient to permit a reasonable jury to find a hostile work environment. The trial court concluded that plaintiff failed to present specific facts to support a prima facie case of discrimination. In particular, it found that plaintiffs allegations, taken as true, did not “rise to the level of severity necessary to sustain an actionable claim of hostile environment discrimination” against Cross and Peters. The Court of Appeals agreed. A We have not had occasion to address whether a claim of discrimination based on hostile environment, when the allegations of discrimination involve conduct or communication that is not “of a sexual nature,” is encompassed by the Civil Rights Act. MCL 37.2103(i)(iii); MSA 3.548(103)(i)(iii); Radtke v Everett, 442 Mich 368; 501 NW2d 155 (1993). Nor do we decide that issue today. Rather, we assume without deciding that plaintiff is within the class protected and that a hostile environment claim may be maintained on conduct involving a plaintiffs gender, age, or national origin. In Radtke, supra at 382-383, we set forth the five elements necessary to establish a prima facie case of discrimination based on hostile work environment: (1) the employee belonged to a protected group; (2) the employee was subjected to communication or conduct on the basis of [her protected status]; (3) the employee was subjected to unwelcome . . . conduct or communication [involving her protected status]; (4) the unwelcome . . . conduct 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. MCL 37.2103(h); 37.2202(l)(a); MSA 3.548(103)(h); 3.548(202)(l)(a). Our review centers on the third and fourth elements — whether Kujawski’s actions involved conduct or communication involving her protected status, and whether the conduct toward plaintiff was intended to, or in fact did, substantially interfere with her employment or created an intimidating, hostile, or offensive work environment. Under Radtke, whether a hostile work environment was created by the unwelcome conduct “shall be determined by whether a reasonable person, in the totality of circumstances, would have perceived the conduct at issue as substantially interfering with the plaintiff’s employment or having the purpose or effect of creating an intimidating, hostile, or offensive employment environment.” 442 Mich 394. Consequently, to survive summary disposition, plaintiff had to present documentary evidence to the trial court that a genuine issue existed regarding whether a reasonable person would find that, in the totality of circumstances, Kujawski’s comments to plaintiff were sufficiently severe or pervasive to create a hostile work environment. B There is no serious claim that plaintiff was not on notice of the need to respond to the (C)(10) motion with regard to count H or that the motion was prematurely filed or prematurely granted. Despite plaintiffs burden to respond with “specific facts showing that there is a genuine issue for trial,” MCR 2.116(G)(4), plaintiff responded with conclusory allegations. At the stage where all that was before the court with respect to count n was the deposition testimony and the affidavit of the plaintiff, the only evidence of record supporting the plaintiffs claim of discrimination by Cross and Peters was inadequate under this standard. Had plaintiff testified in conclusory form at trial that her supervisor’s conduct was “continually” demeaning and humiliating regarding her age, sex, national origin, and ability to speak English, a reasonable jury could not have found from a preponderance of the evidence that the comments were of a type, severity, or duration to have created an objectively hostile work environment. Plaintiff’s affidavit disclosed no specific instances of ethnic, sexist, or “ageist” remarks hostile to a protected class from which an inference of a hostile work environment could be drawn. It did not describe with particularity when, where, or how plaintiff was harassed. Although, as the trial judge recognized, a single act by an employer may so poison the environment as to constitute discrimination, it does not follow that allegations of a push without evidence of conduct or communication violative of the act presents a claim to submit to a jury. Plaintiffs affidavit conclusorily states that Kujawski subjected her to harassing comments regarding her age, sex, national origin, and ability to speak English. As a consequence, the trial court properly found that plaintiff did not establish the existence of a genuine issue of material fact on an essential element of her claim. In conclusion, we hold that once defendant supported its motion for summary disposition under MCR 2.116(C)(10) with documentary evidence, plaintiff, as the opposing party, had the duty to rebut with documentary evidence defendant’s contention that no genuine issue of material fact existed. Plaintiff’s affidavit did not satisfy her burden as the opposing party; rather, it constituted mere conclusory allegations and was devoid of detail that would permit the conclusion that there was such conduct or communication of a type or severity that a reasonable person could find that a hostile work environment existed. The Court of Appeals properly affirmed the trial court’s grant of summary disposition in favor of defendant. Brickley, C.J., and Cavanagh, Riley, and Mallett, JJ., concurred with Boyle, J. Kujawski is now deceased. The only defendant before this Court is Cross and Peters. Issued February 17, 1994 (Docket No. 151198). Although writing in dissent, Justice Brennan did “not disagree with the Court’s legal analysis.” 477 US 329. On this point, his views harmonized with the majority. See 477 US 322-324. The deposition testimony of three co-workers and two upper-level employees indicated that defendant KryawsM treated plaintiff the same as everyone else, that he was a tough but fair boss, and that, if anything, it was plaintiff who was antagonistic and hypersensitive. The following deposition testimony from Senoia Waters, a co-worker, is relevant. Q. Did [plaintiff] have any problems with Mr. KujowsM [sic]? A. Not as I know of. Q. Was he [KujawsM] a tough guy to get along with at all? A. None of them are, no. Q. Was he an aggravating guy in any way? A. No. Q. Would he try and aggravate people? A. No. Q. Would John [Kujawsld] at any time get frustrated with [plaintiff]? A. Frustrated — you can get frustrated with all of us. Q. When he would get frustrated, would he — how would he respond? . . . Was he somebody who yelled? . . . A. No, he didn’t yell. When we were making him angry and not doing what we was supposed to do, he got frustrated with all of us, but it was never at the point where he would yell at you or none of that land of stuff, no. Co-worker Warner Scott stated: Q. Had he [Kryawsld] had any problems with Mrs. Quinto up to this point that you’re aware of? A. I’m sure he have [sic]. Q. Why do you say you’re sure he had? A. Because she’s just a bossy lady. She’s bossy. Q. Have you seen them argue before? A. No, not — I can’t say I have. A. She [plaintiff] always talk in — sometimes she talk in Italian and nobody understands her. She don’t talk English that well to me and she gets mad sometimes because you don’t understand that. Q. Was he [Kujawsld] ever tough with Mrs. Quinto? A. He was tough with all of us. Q. Was he ever sarcastic? Do you know what that means? A. Yeah, I know what it means. He wasn’t to me, no. Q. Was he to Mrs. Quinto? A. I don’t believe so. Q. Was he ever antagonistic with Mrs. Quinto? A. I don’t think so. Q. Was he a demanding boss? A. He’s demanding. Q. Did John Kujowski [sic] treat all the employees the same? A. Yes. Q. Was he fair? A. Very fair. Co-worker Rene Meservey stated: A. . . . She [plaintiff] had been in so many arguments with so many people. Q. . . . Was this kind of an argumentative lady or what, or was she the butt of everybody’s jokes? A. Yeah, or she would be afraid somebody was talking about her or picking on her or something like that, which especially — well, I can say, you know, a black person, because she was extremely prejudiced. Q. . . . [S]he had difficulty speaking English from what I understand. A. Yes. Q. Would anybody make fun of her or taunt her or anything like that? A. No, but I know she was always worried about that. ... It was just stuck in her head that people were talking about her. Why, I don’t know. That’s the type of woman she was, I guess

Public employees' collective bargaining - Ohio public employer commits unfair labor practice in violation of R.C. 4117.11(A)(5) when it unilaterally terminates bargaining with an incumbent union, when .