Hostile Work Environment Cases

PHYLLIS WAGONER v. ELKIN CITY SCHOOLS’ BOARD OF EDUCATION, BRUCE MORTON, DONALD T. LASSITER, and CHARLIE PARSONS No. 9317SC241 (Filed 15 February 1994) 1. Discovery and Depositions § 7 (NCI4th)— wrongful discharge of teacher alleged —discovery request for personnel and student records —failure to show relevancy and necessity — request properly denied The trial court did not err in denying plaintiff’s motion to compel discovery in her action for intentional infliction of emotional distress, constructive wrongful discharge, malicious interference with contract, and punitive damages, since plaintiff failed to meet her burden of proving that her requests for information as to whether the teacher who replaced her had had a relationship with a high school student during his previous employment, the complete student records at her school, and school personnel records related to information both relevant and necessary to her claims. Am Jur 2d, Depositions and Discovery §§ 21 et seq. 2. Evidence and Witnesses § 2152 (NCI4th)— expert witness-affidavit consisting of legal conclusions The trial court did not err in sustaining defendants’ objection to an expert witness’s affidavit where the entire affidavit consisted of legal conclusions. Am Jur 2d, Expert and Opinion Evidence §§ 136 et seq. 3. Intentional Infliction of Mental Distress § 2 (NCI4th)— intentional infliction of emotional distress —principal’s treatment of teacher —summary judgment for defendants proper The trial court did not err in granting defendants’ motion for summary judgment on plaintiff’s claim for intentional infliction of emotional distress, since evidence that defendants told plaintiff to throw away her health and physical education materials because she would never need them again, removed her from her health and physical education teaching position to the job of ISS coordinator, placed her away from other faculty members in a small room with great humidity and high temperatures, returned a student who had pushed plaintiff to her classroom, stared for “minutes at a time” at plaintiff while she taught, assigned her after school and Saturday work hours, asked her to accompany students on a skiing trip for a good evaluation, told her she had the worst job in school, and denied her the opportunity to attend workshops in her area may well have insulted plaintiff or caused her to suffer indignities, but such actions did not amount to conduct which was atrocious and utterly intolerable in a civilized community. Am Jur 2d, Fright, Shock, and Mental Disturbance §§ 4 et seq., 17. Liability of employer, supervisor, or manager for intentionally or recklessly causing employee emotional distress. 52 ALR4th 853. 4. Contracts § 180 (NCI4th|— malicious interference —action by teacher against board and superintendent —parties to contract Plaintiff teacher could not maintain an action against defendant board of education or defendant superintendent of schools for malicious interference with contract since the board and the superintendent were parties to the contract. Am Jur 2d, Interference §§ 39-48. 5. Contracts § 190 (NCI4th)— malicious interference —motive of principals proper —failure of plaintiff to make prima facie case Because plaintiff teacher admitted on the face of her complaint that defendant principals, by virtue of their positions at her school, had a proper motive for their actions of placing plaintiff in the position of ISS coordinator, plaintiff failed to show that she could make out a prima facie case of malicious interference with contract. Am Jur 2d, Interference §§ 49-48. 6. Labor and Employment § 68 (NCI4th)— career teacher —no employee at will — tort of wrongful discharge inapplicable Plaintiff teacher’s claim based on the tort of wrongful discharge was correctly dismissed by the trial court, since that tort arises only in the context of employees at will, and plaintiff, as a career teacher under N.C.G.S. § 115C-325(c), was not an employee at will. Am Jur 2d, Master and Servant §§ 60-70. Appeal by plaintiff from judgment entered 30 June 1992 in Surry County Superior Court by Judge James M. Long. Heard in the Court of Appeals 6 January 1994. Kennedy, Kennedy, Kennedy & Kennedy, by Harold L. Kennedy, III and Harvey L. Kennedy, for plaintiff-appellant. Tharrington, Smith & Hargrove, by Ann L. Majestic, Alexis C. Pearce, and Jaye P. Meyer, for defendant-appellees. GREENE, Judge. Phyllis Wagoner (plaintiff) appeals from the trial court’s granting of Elkin City Schools’ Board of Education, Bruce Morton, Donald T. Lassiter, and Charlie Parsons’ (defendants) motion for summary judgment in this action for intentional infliction of emotional distress, constructive wrongful discharge, malicious interference with contract, and punitive damages. Plaintiff also appeals from the trial court’s order denying her motion to compel discovery and from the trial court’s sustaining of defendants’ objection to the affidavit of Dr. Melvin F. Gadson (Dr. Gadson). The evidence, viewed in the light most favorable to plaintiff, reveals that the Elkin City Schools’ Board of Education (the Board) hired plaintiff in 1974, and David Thrift, then principal of Elkin High School (EHS), informed her she was being hired to teach health and physical education, the only areas she was certified to teach. The probationary contract between the Board and plaintiff for the 1976-1977 school year and the career contract between the Board and plaintiff for the 1977-1978 school year state plaintiff is “[tentatively assigned to Elkin High School.” Plaintiff signed no other employment contract after signing the 1977 career contract. In 1974, plaintiff began teaching physical education and health. In August 1985, Bruce Morton (Morton), EHS principal from the fall of 1985 until the summer of 1990, asked in front of the entire faculty, “Which one of you is Phyllis Wagoner?” and did not ask for anyone else. Morton visited the gym while she was teaching and stared at her for “minutes at a time,” did not show up for scheduled evaluations of plaintiff, told her once “if I were grading you today, I would give you an F,” switched her from a physical education teacher to an ISS coordinator, told her she could “throw all of [her] health and physical education materials away because [she] would never need them again,” placed her office in a small room in the girls’ locker room with a temperature of 90 to 100 degrees without providing a phone in that room, denied her the opportunity to attend workshops in her area, assigned different working hours than the other teachers, told her that her job was the worst job in the school, told her she would receive a good evaluation if she went on a school skiing trip, filled out an evaluation without a formal observation and claimed that plaintiff had agreed to an interview type observation when she had not, and returned a student that had pushed plaintiff to her classroom. Plaintiff complained to the Board and Donald Lassiter (Lassiter), superintendent of Elkin City Schools, about her position and working hours as ISS coordinator; however, Lassiter and the Board upheld Morton’s assignment of duties and the hours under the Senate Bill 2 plan. After she informed the Board and the new principal, Charlie Parsons (Parsons), that she would work the regular hours, Lassiter suspended plaintiff without pay pending termination for alleged insubordination. After plaintiff appealed this suspension to a Professional Review Committee under N.C. Gen. Stat. § 115C-325, which determined on 23 October 1990 that plaintiff was wrongfully suspended, Lassiter reinstated her. After returning to EHS in November 1990, Parsons placed plaintiff back in the ISS program. On 30 November 1990, she resigned, citing that her work environment from 1989 through November 1990 was intolerable and unbearable, and she had been given “nothing to do” since her return. As a result of these events, plaintiff has suffered severe emotional distress, has been on medication for depression and anxiety, and has been diagnosed by her psychiatrist as having a major psychiatric disorder. During discovery, plaintiff deposed Tony Duncan (Duncan), the teacher who was placed in plaintiff’s position of physical education and health teacher, on 20 February 1992, but Duncan refused to answer questions regarding his relationship with a female high school student at his place of employment before coming to EHS. In written discovery, plaintiff sought personnel records of nine EHS teachers and certain student records. Plaintiff moved to compel discovery of such information on 28 February 1992, which motion was denied by the trial court on 2 April 1992. Sam Tesh, Assistant Principal at EHS from 1983-87, James W. Halsey, Director of Personnel for the Board from 1985-87, Ralph Clingerman, a teacher at EHS, and Laura C. Overbey stated that Morton had told them he was under pressure from the Board to get rid of plaintiff. Morton stated that as principal of EHS, he had the responsibility of making teaching assignments and evaluating each teacher, and switched Duncan and plaintiff because he became “concerned that she was not doing an effective job of teaching the basic skills of various sports to the students” and because switching the responsibilities between Mr. Duncan and [plaintiff] would improve the overall school program.” Plaintiff tendered into evidence at the summary judgment hearing, the affidavit of Dr. Gadson. He stated in his affidavit that in his opinion, (1) defendants’ treatment of plaintiff was an “extreme departure from the normal operation of a public school program,” and that she was forced to work under “extreme and outrageous” conditions; (2) replacing plaintiff with Duncan was a “wrongful interference with her contract because it was motivated not by a legitimate educational purpose, but was rather due to a malicious and calculated design to drive her out of the Elkin school system”; (3) because defendants’ conduct was “so far outside the bounds of human decency and normal standards for the operations of a public school,” plaintiff would have been expected to resign; and (4) defendants violated North Carolina’s public policy by placing Duncan in plaintiff’s position because they knew of his immoral conduct. After defendants objected to the trial court’s consideration of Dr. Gadson’s affidavit on the grounds that the affidavit “purported to offer expert opinions regarding issues of law,” the trial court sustained the objection and ruled those portions offering opinion testimony inadmissible. Defendants then objected to the affidavit on the grounds that Dr. Gadson was not qualified to be an expert in the subject areas in which his affidavit purports to offer expert opinions. The trial court sustained the objection and ruled the affidavit inadmissible. Based on the evidence presented at the summary judgment hearing, the trial court, on 30 June 1992, granted defendants’ motion for summary judgment as to each of plaintiff’s claims and dismissed her action. The issues presented are whether the trial court erred in (I) denying plaintiff’s motion to compel discovery; (II) sustaining defendants’ objection to consideration of Dr. Gadson’s affidavit; and (III) granting defendants’ summary judgment motion on plaintiff’s claims for intentional infliction of emotional distress, malicious interference with contract, constructive wrongful discharge, and punitive damages. I Plaintiff argues that the trial court erred in denying her motion to compel discovery. Plaintiff wished to retake Duncan’s deposition for the “purpose of having him answer questions about those matters which he failed to do” in his deposition on 20 February 1992. Those matters concern the alleged involvement between Duncan and a female student at the high school where Duncan was employed before accepting employment at EHS. Plaintiff also wished, under her Second Request for Production of Documents, for defendants to supply plaintiff “the complete student record, including report cards, discipline records, etc.” of all students in the ISS program and EHS during 1989-90 and 1990-91 school years. Under the rules governing discovery, a party may obtain discovery concerning any unprivileged matter as long as relevant to the pending action and reasonably calculated to lead to the discovery of admissible evidence. N.C.G.S. § 1A-1, Rule 26(b) (1990). If defendant fails to respond or specifically object to a request within forty-five days, or such other time the court states otherwise, Rule 84,/ the serving party, upon reasonable notice, may move to compel discovery under N.C. Gen. Stat. § 1A-1, Rule 37(a) (1990). Whether or not the party’s motion to compel discovery should be granted or denied is within the trial court’s sound discretion and will not be reversed absent an abuse of discretion. In re Estate of Tucci, 104 N.C. App. 142, 152, 408 S.E.2d 859, 865-66 (1991), disc. rev. improvidently allowed, 331 N.C. 749, 417 S.E.2d 236 (1992). Plaintiff has failed to meet her burden of proving that her requests relate to information both relevant and necessary to her claims. Whether or not Duncan had a relationship with a high school student during his previous employment, the complete student records at EHS, and school personnel records are irrelevant to whether defendants intentionally inflicted emotional distress on plaintiff, constructively and wrongfully discharged her, or maliciously interfered with her contract. The trial court did not therefore abuse its discretion in denying her motion to compel discovery. II Plaintiff argues that the trial court erred in sustaining defendants’ objection to Dr. Gadson’s affidavit. We disagree. Whether a witness is competent to testify as an expert is within the sound discretion of the trial judge. State ex rel. Utilities Comm’n v. General Telephone Co., 281 N.C. 318, 373, 189 S.E.2d 705, 740 (1972). Furthermore, expert testimony which suggests whether legal conclusions should be drawn or whether legal standards are satisfied is inadmissible. See Hajmm Co. v. House of Raeford Farms, 328 N.C. 578, 587, 403 S.E.2d 483, 489 (1991). In this case, Dr. Gadson’s entire affidavit consists of legal conclusions; therefore, the trial court did not err in sustaining defendants’ objection to Dr. Gadson’s affidavit. III Intentional Infliction of Emotional Distress In an action for intentional infliction of emotional distress, the essential elements are “0 extreme and outrageous conduct by the defendant 2) which is intended to and does in fact cause 3) severe emotional distress.” Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992) (quoting Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981)). Whether or not conduct constitutes extreme and outrageous behavior is initially a question of law for the court. Briggs v. Rosenthal, 73 N.C. App. 672, 676, 327 S.E.2d 308, 311, cert. denied, 314 N.C. 114, 332 S.E.2d 479 (1985). To meet the essential element of extreme and outrageous conduct, the conduct must go beyond all possible bounds of decency, and “be regarded as atrocious, and utterly intolerable in a civilized community. The liability clearly does not extend to mere insults, indignities, threats.” Daniel v. Carolina Sunrock Corp., 110 N.C. App. 376, 383, 430 S.E.2d 306, 310, rev’d in part, 335 N.C. 233, 436 S.E.2d 835 (1993). Viewing the evidence in the light most favorable to plaintiff, Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992) (all inferences drawn in favor of non-movant in deciding motion for summary judgment), defendants’ conduct of telling her to throw away her health and physical education materials because she would never need them again, removing her from her health and physical education teaching position to the job of ISS coordinator, placing her away from other faculty members in a small room with great humidity and high temperatures, returning a student that pushed plaintiff to her classroom, staring for “minutes at a time” at plaintiff while she taught, assigning her after school and Saturday work hours, asking her to accompany students on a skiing trip for a good evaluation, telling her she had the worst job in school, denying her the opportunity to attend workshops in her area, and asking “[wjhich one of you is Phyllis Wagoner” in front of the entire faculty may very well have “insulted” plaintiff or caused her to suffer “indignities”; however, we do not regard this conduct “as atrocious, and utterly intolerable in a civilized community.” Even assuming that removing plaintiff from her teaching position and placing her in the job of ISS coordinator was not allowed under her contract with the Board or under N.C. Gen. Stat. § 115C, an issue we need not decide, her removal and placement in the ISS position does not constitute extreme and outrageous conduct. Therefore, because plaintiff cannot forecast evidence of extreme and outrageous conduct, the trial court did not err in granting defendants’ motion for summary judgment as to that cause of action. Roumillat, 331 N.C. at 63, 414 S.E.2d at 342 (once summary judgment movant meets burden, burden is on non-movant to show she can make out prima facie case at trial). Malicious Interference With Contract There are five essential elements for an action for malicious interference with contract: (1) a valid contract existed between plaintiff and a third person, (2) defendant knew of such contract, (3) defendant intentionally induced the third person not to perform his or her contract with plaintiff, (4) defendant had no justification for his or her actions, and (5) plaintiff suffered damage as a result. McLaughlin v. Barclays American Corp., 95 N.C. App. 301, 308, 382 S.E.2d 836, 841, cert. denied, 325 N.C. 546, 385 S.E.2d 498 (1989); Uzzell v. Integon Life Ins. Corp., 78 N.C. App. 458, 463, 337 S.E.2d 639, 643 (1985), cert. denied, 317 N.C. 341, 346 S.E.2d 149 (1986). We initially note that plaintiff cannot maintain an action against the Board or Lassiter for malicious interference of contract because the Board and Lassiter, as superintendent of the Board, are parties to the contract. See Smith v. Ford Motor Co., 289 N.C. 71, 87, 221 S.E.2d 282, 292 (1976); Elmore v. Atlantic Coast Line R.R. Co., 191 N.C. 182, 187, 131 S.E. 633, 636 (1926). Therefore, the trial court did not err in granting summary judgment for the Board or Lassiter on plaintiffs claim for malicious interference of contract. Because Morton and Parsons are not parties to the contract between plaintiff and the Board, they may be liable for malicious interference with the contract if they have in fact interfered with the contract and the interference has no relation whatever “to that legitimate business interest which is the source of the defendant’s non-outsider status.” Smith, 289 N.C. at 87, 221 S.E.2d at 292. Therefore, if the actions of Morton and Parsons have a basis related to their legitimate business interest in the contract between plaintiff and the Board, even though there may have also been some reasons for their actions unrelated to their legitimate business interest, plaintiff’s action for malicious interference with contract cannot be sustained. Plaintiff, in her complaint, admits that Morton and Parsons had an interest in her performance at EHS under her contract with the Board by alleging that Morton “was an agent, servant, employee and Principal of Defendant Board” and that Parsons “was and is an agent, servant, employee and Principal of Defendant Board.” In their roles as principals at EHS, Morton and Parsons had a legitimate business interest in plaintiffs performance under her contract with the Board because they were responsible for overseeing, observing, and evaluating the faculty at EHS, and for assigning duties to the teachers. Because plaintiff admits on the face of her complaint that Morton and Parsons, by virtue of their positions as principals of EHS

PEGGY S. BRYANT, Plaintiff v. THALHIMER BROTHERS, INC. and SCRUGGS COLVIN, Defendants No. 9121SC814 (Filed 21 December 1993) 1. Intentional Infliction of Mental Distress § 2 (NCI4th)— statute of limitations — acts more than three years before claim filed Evidence of sexual harassment and retaliation which occurred more than three years prior to the filing of plaintiff’s claim against her supervisor and employer for intentional infliction of emotional distress did not constitute evidence of complete and separate torts but was evidence of elements of the claim itself and was not barred by the three-year statute of limitations. Furthermore, plaintiff’s claim was not barred by the statute of limitations where she presented evidence of specific incidents which occurred within three years of the filing of her claim and of medical treatment for emotional distress that she received during that time as a result of her supervisor’s conduct. Am Jur 2d, Fright, Shock, and Mental Disturbance § 17. 2. Evidence and Witnesses § 1174 (NCI4th) — summary judgment hearing —statements by attorney — not judicial admissions Statements made by plaintiff’s counsel to the trial court during a summary judgment hearing to the effect that plaintiff was not seeking damages for events occurring more than three years before the complaint was filed did not constitute judicial admissions and were not binding on the plaintiff in the subsequent trial. Am Jur 2d, Evidence §§ 597, 615, 665. 3. Intentional Infliction of Mental Distress § 3 (NCI4th) — sufficiency of evidence against supervisor — employer’s ratification of supervisor’s acts Plaintiff’s evidence of conduct and intent was sufficient for submission to the jury of plaintiff’s claim against her former supervisor for intentional infliction of emotional distress where it tended to show that when plaintiff rebuffed sexual advances by defendant supervisor, he began treating plaintiff unfairly, repeatedly threatened her and her job, and created situations in which she could not effectively do the work assigned to her; plaintiff received unfavorable evaluations, was required to hire staff persons she felt were unqualified, and was called names such as “Nazi,” “Rambo,” and “Gestapo” by defendant supervisor; and defendant supervisor’s conduct caused plaintiff to seek medical attention from two doctors and to resign from her job. Furthermore, the evidence supported plaintiff’s claim that defendant employer ratified the acts of defendant supervisor so that the employer was liable for his actions where it tended to show that plaintiff submitted twenty-two complaints about her supervisor to the employer’s personnel manager and held conversations with other management personnel about defendant’s conduct; plaintiff’s discussions with management personnel which she thought were held in confidence were reported to defendant supervisor; management personnel told plaintiff that complaints of that nature were not welcome from employees; nothing was ever done about defendant supervisor’s conduct toward plaintiff; plaintiff was told that she had a bad attitude and was placed on probation; and plaintiff thereafter resigned her job. Am Jur 2d, Fright, Shock, and Mental Disturbance § 17. 4. Jury § 68 (NCI4th)— jury less than twelve —stipulation — excusal of jurors for “guilty” rather than “innocent” reasons Where the parties in an action for intentional infliction of emotional distress stipulated at the beginning of the trial that the trial could proceed with a jury of ten persons if necessary, the trial court did not abuse its discretion in the denial of defendants’ motions for a mistrial and a new trial because the verdict was rendered by a ten-person jury after the trial court excused two jurors who had read a newspaper article reporting that the court had allowed defendants’ pretrial motion to suppress evidence of the individual defendant’s sexual involvement with other women employed by defendant employer. There was no merit to defendants’ argument that their agreement to a jury of ten persons was only to allow the trial to proceed in the event of illness or emergency of jurors, an “innocent” reason, and not to allow a jury of less than twelve for the “guilty” reason that two jurors had read a newspaper article about evidence excluded by pretrial motion, since an agreement to have a verdict by less than twelve jurors does not depend on whether the jurors are excused for an “innocent” rather than a “guilty” reason. Am Jur 2d, Jury § 124 et seq. Appeal by defendants from judgment entered 25 January 1991 in Forsyth County Superior Court by Judge James A. Beaty, Jr. Heard in the Court of Appeals 15 September 1992. This action arises out of a female employee’s complaints against a male supervisor at Thalhimer Brothers in Winston-Salem. Plaintiff was employed by Thalhimers from September 1982 until her resignation in February 1987. The plaintiff filed suit on 5 December 1989, seeking damages for intentional infliction of emotional distress, wrongful termination, and negligent retention. The complaint alleged that the defendant Scruggs Colvin, who was employed by Thalhimers as the regional manager in loss prevention in 1984, began harassing her sexually in early 1985. The plaintiff further alleged that when she rebuffed the sexual advances of her supervisor, he began treating her unfairly in an attempt to force her resignation. From 1986 until her resignation, the complaint alleged that he repeatedly threatened her and her job, while creating situations in which she could not effectively do the work assigned to her. She received unfavorable evaluations, she was required to hire staff persons that she felt were unqualified, and she was called names such as “Nazi”, “Rambo”, and “Gestapo” by the defendant. Plaintiff contended that during this period she complained to supervisory personnel with the corporation about these incidents of harassment and retaliation. The defendants’ answer denied the material allegations of the complaint and raised, inter alia, the affirmative defense of the three-year statute of limitations. The defendants asserted that the statute barred recovery for damages for events which occurred prior to 5 December 1986. Defendants moved for summary judgment on that basis. The motion was denied on 15 November 1990. Just prior to trial, the defendants filed motions in limine seeking to exclude evidence of Defendant Colvin’s prior sexual relationships with other employees of Thalhimers and to exclude evidence of events that was barred by the statute of limitations. Additionally, they filed a motion to compel admissions based on representations made by plaintiff’s counsel during the earlier summary judgment hearing to the effect that the plaintiff was not seeking damages for events occurring prior to 5 December 1986. The motion to exclude the evidence of past relationships was allowed, while the motion to exclude the incidents prior to December 1986 and the motion to compel admissions were denied. Jury selection was completed on 9 January 1991. The next day, an article appeared in the Winston-Salem Journal which reported the evidence of the prior sexual relationships of Defendant Colvin and that it had been excluded from the trial. Two of the jurors had read the article and were excused by the judge. Three other jurors were aware of the article, and one juror had been told by her husband not to read the article. Defendants moved for a mistrial, having produced evidence that the plaintiff’s counsel had released the excluded evidence to the newspaper. That motion was denied. The trial proceeded with ten jurors. At the close of plaintiff’s evidence, defendants moved for a directed verdict which was denied and subsequently renewed at the close of all the evidence. At that time, the trial court allowed the motion with respect to the wrongful termination claim. The claim for intentional infliction of emotional distress went to the jury on 23 January 1991. The trial judge denied the defendants’ request for an instruction on the three-year statute of limitations. The following day, the jury returned a verdict for the plaintiff of $25,000.00 in compensatory damages and $225,000.00 in punitive damages. On 1 February 1991, the defendants filed motions for judgment notwithstanding the verdict and a new trial. These motions were denied by the trial judge. Defendants appeal from the judgment entered upon the jury verdict. Kennedy, Kennedy, Kennedy & Kennedy, by Harold L. Kennedy, III, Harvey L. Kennedy and Annie Brown Kennedy, for plaintiff-appellee. Haynsworth, Baldwin, Johnson and Greaves, P.A., by Charles P. Roberts III and Gregory P. McGuire, for defendant-appellants. ORR, Judge. We note at the onset that we are in our discretion addressing the merits of the defendants’ first argument pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure. The issue has not been raised properly. As a result of incorrect pagination, the page stating the argument and referencing the assignment of error has been omitted. Ordinarily, if a party fails to include references to the assignment of error, the question is deemed abandoned and will not be considered on appeal. However, “[t]o prevent manifest injustice to a party, or to expedite a decision in the public interest . . .”, Rule 2 allows us to waive this requirement and proceed to the merits. See State v. Shelton, 53 N.C. App. 632, 635, 281 S.E.2d 684, 688 (1981), appeal dismissed and cert. denied, 305 N.C. 306, 290 S.E.2d 707 (1982). I. The defendants have raised eight assignments of error for review by this Court. Initially, we address those issues which revolve around the applicable statute of limitations and the exclusion of evidence of conduct of Defendant Colvin which occurred prior to 5 December 1986. Defendants first contend that the trial court committed reversible error in denying their motions for directed verdict and judgment notwithstanding the verdict because the plaintiff’s claim arising out of the defendants’ conduct prior to 5 December 1986 was barred by the three-year statute of limitations applying to claims of intentional infliction of emotional distress. Secondly, they argue that plaintiff’s counsel made admissions during the arguments on preliminary motions that effectively foreclosed plaintiff seeking damages for events occurring prior to 5 December 1986. Third, they argue that the trial judge committed error in refusing to instruct the jury on the applicable statute of limitations. Finally, they assert that the trial court’s denial of the defendants’ motion in limine to exclude evidence of events prior to 5 December 1986 was reversible error. We hold that the evidence of conduct occurring prior to the 5 December 1986 date was not evidence of complete and separate torts, but rather was evidence of the elements of the claim itself and therefore, was not barred by the statute of limitations. Accordingly, we overrule the defendants’ assignments of error based on the statute of limitations. A. The defendants assert that the plaintiffs claim for intentional infliction of emotional distress is barred by the three-year statute of limitations found at N.C. Gen. Stat. § 1-52(5). See also Waddle v. Sparks, 100 N.C. App. 129, 394 S.E.2d 683 (1990), aff’d in part and reversed in part on other grounds, 331 N.C. 73, 414 S.E.2d 22 (1992). It is well settled 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 plaintiffs favor. Hornby v. Pennsylvania National Mutual Casualty Insurance Co., 62 N.C. App. 419, 303 S.E.2d 332, cert. denied, 309 N.C. 461, 307 S.E.2d 364 (1983). Where more than a scintilla of evidence has been presented by the plaintiff which supports each element of his prima facie case, a directed verdict should be denied. Snead v. Holloman, 101 N.C. App. 462, 400 S.E.2d 91 (1991). A motion for a judgment notwithstanding the verdict is essentially the renewal of the directed verdict motion, and the standards are the same. Miller v. Cannon Motors, Inc., 40 N.C. App. 48, 257 S.E.2d 925 (1979). Both motions serve to test the sufficiency of the evidence presented at trial, first after the plaintiff’s case in chief and then again after the jury’s decision. In order to prove a claim for intentional infliction of emotional distress, the plaintiff is required to show that the defendant (1) engaged in extreme and outrageous conduct, (2) which was intended to cause and did cause (3) severe emotional distress. Hogan v. Forsyth Country Club, 79 N.C. App. 483, 340 S.E.2d 116, review denied, 317 N.C. 334, 346 S.E.2d 140 (1986). The tort may also lie where a “defendant’s actions indicate a reckless indifference to the likelihood that they will cause severe emotional distress.” Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 330 (1981). The statute of limitations for the tort of intentional infliction of emotional distress is three years. Id. at 444, 276 S.E.2d at 330. “Civil actions can only be commenced . . . [within the three-year period], after the cause of action has accrued, . . . .” N.C. Gen. Stat. § l-15(a) (1983). The recent decision by the North Carolina Supreme Court, Waddle, 331 N.C. 73, 414 S.E.2d 22, held that where the plaintiff could not show that “any of the specific incidents” took place within the statutory period, she could not survive a motion for summary judgment. In Waddle, suit was filed on 20 April 1988. Both plaintiffs alleged intentional infliction of emotional distress in response to repeated harassment and sexual innuendoes by the defendant Sparks. The purported harassment began sometime in 1983. Both the defendants pleaded the statute of limitations as an affirmative defense in their answer and moved for summary judgment on that basis after depositions of the plaintiffs were taken. The co-plaintiff, Simpson, could not produce evidence of any specific acts of harassment within three years of the filing of the suit. “Not only could she not remember a day or month when any of defendant’s alleged comments of a sexually suggestive nature occurred, but she also failed to recall the year they occurred.” Waddle, 331 N.C. at 86, 414 S.E.2d at 29. “If plaintiff Simpson could have testified that any of the specific incidents with Sparks occurred as late as February of 1986, her evidentiary forecast . . . would have been sufficient to survive a summary judgment motion based on the statute of limitations.” Id. at 87, 414 S.E.2d at 29. The issue in Waddle, as to the plaintiff Simpson, was whether there was sufficient evidence of each element of the tort to create an issue for the jury to decide at trial. Simpson could not show any evidence of one of the elements of the tort, and therefore, summary judgment was appropriate. However, the Court in no way suggested that the prior occurrences would have been excluded at trial, nor was the issue of exclusion of evidence before the Court. Moreover, in the case at bar, there were two incidents occurring on or after 5 December 1986. Therefore, there was sufficient evidence to create an issue to be decided at trial, certainly when combined with evidence of the incidents of alleged conduct which took place in 1985. The defendants rely on the rule of Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325, which established that three years is the applicable statute of limitations for claims of intentional infliction of emotional distress and that evidence of the defendants’ intentional torts against the plaintiff which took place prior to the applicable limitations period may not be considered in determining damages. However, both the law and the facts of Dickens are distinguishable from the case at bar. In Dickens, the plaintiff alleged intentional infliction of emotional distress in his complaint which was filed more than one year and less than three years after the incident complained of took place. The action arose out of a single occurrence during which the defendant not only committed an assault and battery (governed by the one-year statute of limitations of G.S. § 1-54(3)) against the plaintiff, but also made significant threats of future harm. The defendant argued that the action was only one for assault and battery, although cast as one for intentional infliction of emotional distress. They further argued that even if the plaintiff had alleged a cause of action for emotional distress, that it, too, was governed by the one-year statute. The Supreme Court disagreed, finding that the more general language of G.S. § 1-52(5) controlled the intentional infliction claim and that the plaintiff’s showing was sufficient to create an actionable claim for emotional distress. The Court concluded that “[although the assaults and batteries serve to color and give impetus to the future threat and its impact on plaintiff’s emotional condition, plaintiff may not recover damages flowing directly from the assaults and batteries themselves.” Dickens, 302 N.C. at 455, n. 11, 276 S.E.2d at 336 (emphasis added). The Court further stated that, “[although plaintiff’s recovery for injury, mental or physical, directly caused by the assaults and batteries is barred by the statute of limitations, these assaults and batteries may be considered in determining the outrageous character of the ultimate threat and the extent of plaintiff’s mental or emotional distress caused by it.” Id. Thus, while the Court did not allow damages for the separate torts, it did allow the evidence of the extreme and outrageous conduct of the defendant as an element of the plaintiffs emotional distress claim, even though an assault and battery claim was barred. In the case sub judice, the evidence presented at trial tended to indicate that incidents between the plaintiff and Defendant Colvin began in early 1985, soon after he was hired by Thalhimers in 1984. According to the plaintiffs testimony, the first conversation of a sexual nature was-on a trip to Sears in Hanes Mall in Winston-Salem to pick up supplies for the Hanes Mall Thalhimers location. The defendant asked her if she’d ever had an affair with anyone. She responded that she had not. The plaintiff also testified to the following: A. He told me he liked women with large breasts. Q. When he made that statement to you, can you tell the ladies and gentlemen of the jury what he was looking at? A. He was looking down at my breast area. On another occasion of sexually related conduct, the plaintiff testified that [w]e were moving the desk. And I was on one side and he was on the other. And I had hold of the desk and he came around on my side and he rubbed his penis across my hand. And I don’t know how, but it got caught in my ring and I jerked my hand away because was — it just flew all over me, embarrassed me. I was just humiliated. I mean it just — it just embarrassed me to death. The plaintiff also testified that the next day he called me down to the office. And he was sitting on my desk facing me. And he told me to pull my pants down because he wanted to see a bee sting. And he didn’t smile. He had that same dirty grin on his face. She told him at that time that he made her sick to her stomach. He then “jerked my door open and slammed it and left.” Except for the last incident, which plaintiff testified could have been an accident, the defendant never physically touched the plaintiff. On 24 September 1985, the plaintiff submitted some twenty-two complaints about Mr. Colvin to Tida Williams, personnel manager. She told Ms. Williams that she would be hiring an attorney to bring harassment, charges against Colvin. Ms. Williams recorded the complaints

RADTKE v EVERETT Docket No. 92582. Argued January 12, 1993 (Calendar No. 4). Decided June 2, 1993. Tamara J. Radtke brought an action in the Grand Traverse Circuit Court against Stuart B. Everett, D.V.M., individually, and Clarke-Everett Dog and Cat Hospital, P.C., alleging sexual harassment by creating a hostile work environment in violation of the Michigan Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., constructive discharge on the basis of sex, and assault and battery. The court, William R. Brown, J., granted summary disposition for the defendants, finding that because the hostile environment claim was based upon a single incident of sexual harassment, as a matter of law, it did not rise to the level of severity and persistence to permit recovery, dismissed the constructive discharge count because it was dependent upon finding a hostile work environment, and found that the exclusive remedy provision of the Workers’ Disability Compensation Act, MCL 418.131; MSA 17.237(131), barred the assault and battery claim because of the failure to allege an intent to harm. The Court of Appeals, Neff, P.J., and Maher and Hood, JJ., reversed the civil rights claim, finding that under the reasonable woman standard a single incident could be sufficiently severe to support a finding of a hostile work environment, and concluded that, in this case, the totality of circumstances was sufficient to permit trial, reversed the dismissal of the constructive discharge claim, and reversed the assault and battery claim because the defendant was named individually as the perpetrator, making the wdca inapplicable (Docket No. 121611). The defendants appeal. In an opinion by Justice Riley, joined by Chief Justice Cavanagh, and Justices Levin, Brickley, Boyle, and Mallett, the Supreme Court held: References Am Jur 2d, Civil Rights §§ 154 et seq; Workers’ Compensation §§ 75, 76, 79. Workers’ compensation law as precluding employee’s suit against employer for third person’s criminal attack. 49 ALR4th 926. 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 sec. 2000e et seq). 78 ALR Fed 252. An objective reasonableness standard must be used in determining whether a hostile work environment exists under the Civil Rights Act. A hostile work environment claim is actionable only when the work environment is so tainted that, in the totality of the circumstances, a reasonable person in the plaintiff’s position would have perceived the conduct at issue as substantially interfering with employment or having the purpose or effect of creating an intimidating, hostile, or offensive employment environment. Although a single incident of sexual harassment generally is insufficient to constitute a hostile work environment, it may be sufficient if severe harassment is perpetrated by an employer in a closely knit working environment. The Court of Appeals improperly reached the issue whether the exclusive remedy provision of the Workers’ Disability Compensation Act bars an alternative claim of assault and battery when the claim does not allege that the defendant intended to harm the plaintiff. 1. The Michigan Civil Rights Act is aimed at the prejudices and biases borne against persons because of membership in certain classes, and seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases. An employer may not discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment because of sex. Under the act, sexual discrimination is defined broadly to include sexual harassment. 2. To establish a prima facie case of a hostile work environment, an employee must have belonged to a protected group, must have been subjected to communication or conduct on the basis of sex, and must have been subjected to unwelcome sexual conduct or communication that was intended to or in fact did substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment, and the employer must be liable under a theory of respondeat superior. Whether a hostile work environment existed is to be determined by whether a reasonable person, in the totality of the circumstances, would have perceived the conduct at issue as substantially interfering with employment or having the purpose or effect of creating an intimidating, hostile, or offensive employment environment. 3. The Civil Rights Act imposes liability whenever sexual harassment creates a hostile work environment, and a single incident may create such an environment. However, a plaintiff usually will be required to prove that the employer failed to rectify a problem after adequate notice and that a continuous or periodic problem existed or a repetition of an episode was likely to occur. 4. In this case, the plaintiff alleged a prima facie case of a hostile work environment. She is a member of a protected class (persons discriminated against on the basis of sex), was subjected to harassment on the basis of sex, and was subjected to unwelcome sexual conduct that a reasonable person would have perceived created a hostile work environment. In addition, because the employer was the perpetrator, the single incident was sufficient to satisfy a theory of respondeat superior and to permit a jury to determine whether the conduct was sufficient to have created a hostile work environment. 5. Because the plaintiff did not appeal the trial court’s application of the wdca to her claim in the Court of Appeals, and because she never requested permission to amend her complaint in the trial court, the issue whether the exclusive remedy provision of the wdca bars an alternative claim of assault and battery where the plaintiff fails to allege that the defendant intended to inflict an injury upon the plaintiff was not preserved for appeal. Affirmed in part and reversed in part. Justice Griffin, dissenting in part, stated that the cause of action for discrimination because of sex contemplated under subsection 103(h)(iii) of the Civil Rights Act requires more than the brief single incident alleged in-this case. For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment. An isolated sexual advance, without more, does not satisfy the requirement. The employer status of the individual defendant or the closely knit working environment in this case did not make the particular conduct more severe or pervasive. Although a separate claim of substantial interference with employment might have been asserted under subsection 103(h)(iii), because the plaintiff resigned rather than return to work, such a claim could be premised only on a theory of constructive discharge, an assertion severely undercut by the plaintiff’s deposition testimony. The trial court correctly ruled that the acts attributed to the defendant did not rise to the level of severity and persistence that would permit recovery under the act. 189 Mich App 346; 471 NW2d 660 (1991) affirmed in part and reversed in part. 1. Civil Rights — Sexual Harassment — Hostile Work Environment — Reasonableness Standard — Single Incident. An objective reasonableness standard must be used in determining whether a hostile work environment exists under the Civil Rights Act; a hostile work environment claim is actionable only when the work environment is so tainted, in the totality of the circumstances, that a reasonable person in the plaintiff’s position would have perceived the conduct at issue as substantially interfering with employment or having the purpose or effect of creating an intimidating, hostile, or offensive employment environment; although a single incident of sexual harassment generally is insufficient to constitute a hostile work environment, it may bé sufficient if severe harassment is perpetrated by an employer in a closely knit working environment (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 2. Workers’ Compensation — Assault and Battery — Exclusive Remedy — Failure to Allege Intent to Harm. The exclusive remedy provision of the Workers’ Disability Compensation Act bars an alternative claim of assault and battery when the claim does not allege that the defendant intended to harm the plaintiff (MCL 418.131; MSA 17.237[131]). Smith, Haughey, Rice & Roegge (by Mark D. Williams) for the plaintiff. Dykema, Gossett (by Seth M. Lloyd and Nancy L. Niemela) and Cunningham, Davison, Beeby, Rogers & Alward (by William M. Davison) for the defendants. Amici Curiae: Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Robert L. Willis, Jr., and Dianne Rubin, Assistant Attorneys General, for Michigan Civil Rights Commission and Michigan Department of Civil Rights. Clark, Klein & Beaumont (by Dwight H. Vincent, J. Walker Henry, Rachelle G. Silberberg, and Patricia Bordman) for Michigan Manufacturers Association. Miller, Canñeld, Paddock & Stone (by Diane M. Soubly and John H. Willems) for American Society of Employers, Motor Vehicle Manufacturers Association, Greater Detroit Chamber of Commerce, and Michigan Chamber of Commerce. Chiamp & Associates, P.C. (by Charlene M. Snow), for Women Lawyers Association of Michigan. Julie Kunce Field and Suellyn Scarnecchia for University of Michigan Women and the Law Clinic and Women Lawyers Association of Michigan. Stark & Gordon (by Sheldon J. Stark) for Michigan Trial Lawyers Association. Riley, J. At issue are the elements of a prima facie case of a hostile work environment under the Michigan Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. We hold that a hostile work environment claim is actionable when the work environment is so tainted that, in the totality of the circumstances, a reasonable person in the plaintiff’s position would have perceived the conduct at issue as substantially interfering with employment or having the purpose or effect of creating an intimidating, hostile, or offensive employment environment. Additionally, we hold that although a single incident of sexual harassment is generally insufficient to constitute a hostile work environment, a single incident may be sufficient if severe harassment is perpetrated by an employer in a closely knit working environment. We also hold that the Court of Appeals improperly reached the issue whether the exclusive remedy provision of the Workers’ Disability Compensation Act, MCL 418.131; MSA 17.237(131), bars an alternative claim of assault and battery when the claim does not allege that the defendant intended to harm the plaintiff. Thus, we affirm the opinion of the Court of Appeals that plaintiff has alleged a prima facie case of a hostile work environment, albeit on different grounds, and we reverse the opinion of the Court of Appeals and reinstate the trial court’s order granting summary disposition regarding the assault and battery claim. i Plaintiff’s sexual harassment, constructive discharge, and assault and battery claims were summarily dismissed by the trial court pursuant to MCR 2.116(C)(8) and (10). The Court of Appeals reversed. Accordingly, we begin our analysis with an examination of the applicable standards for granting summary disposition. A MCR 2.116(C)(8) permits summary disposition when the "opposing party has failed to state a claim on which relief can be granted.” MCR 2.116(C)(8), therefore, determines whether the opposing party’s pleadings allege a prima facie case. Marrocco v Randlett, 431 Mich 700, 707; 433 NW2d 68 (1988). Hence, the court "does not act as a factfinder,” but "accepts as true all well-pleaded facts.” Abel v Eli Lilly & Co, 418 Mich 311, 324; 343 NW2d 164 (1984). Only if the allegations fail to state a legal claim will summary disposition pursuant to MCR 2.116(C)(8) be valid. Macenas v Village of Michiana, 433 Mich 380, 387; 446 NW2d 102 (1989). While MCR 2.116(C)(8) tests the legal sufficiency of the pleadings, MCR 2.116(0(10) tests the factual basis underlying a plaintiff’s claim. Velmer v Baraga Area Schools, 430 Mich 385, 389-390; 424 NW2d 770 (1988). MCR 2.116(0(10) permits summary disposition when "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.” A court reviewing such a motion, therefore, must consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the party opposing the motion, and grant the benefit of any reasonable doubt to the opposing party. Stevens v McLouth Steel, 433 Mich 365, 370; 446 NW2d 95 (1989). Accordingly, this Court examines and recites the facts in the instant case in the light most favorable to plaintiff. B Plaintiff Tamara Radtke was employed as an unregistered veterinary technician for defendant Clarke-Everett Dog and Cat Hospital, P.C., beginning in January, 1984. The hospital is owned in equal shares by defendant Dr. Stuart Everett and Dr. James Clarke. As of May, 1988, her duties included supervising staff, assisting the doctors during surgery, scheduling, and performing minor janitorial tasks. She assisted each doctor nearly equally, and possessed a "good [working] relationship” with each. There were no incidents of sexual harassment before the date in issue. As commonly occurred, on Sunday, May 29, 1988, plaintiff was working alone with defendant Everett to provide weekend emergency veterinarian services. In her deposition plaintiff stated that after a lengthy day of work, she suggested that they take a break. Everett agreed. Plaintiff proceeded to the hospital’s lounge and poured them each a cup of coffee. She then relaxed on the couch, with her back leaning into its corner and her legs on the sofa. After finishing a few phone calls, Everett joined her and proceeded to sit next to her. Plaintiff, believing that Everett’s behavior was inappropriate, attempted to leave the couch "the minute he sat down.” Everett, however, physically restrained her by firmly placing his arm around her neck and holding her down. Plaintiff, both frightened and surprised by Everett’s behavior, described what followed during her deposition: I tried to pull my head up three times, and, on the third time, I realized he was not going to let me go. And then finally, when his arm relaxed, I sprung forward, and I told him, "You don’t want to do this.” Although plaintiff forcefully escaped his grip, Everett began to flatter her. Plaintiff rebuffed his newest advances by stating, "You don’t want to do this. I don’t want to do this. You’re married. I’m married.” Everett responded by caressing plaintiff’s neck. Again she protested, but he simply ignored her pleas. Indeed, he then attempted to kiss her by grabbing her neck and pushing his face towards hers. Plaintiff successfully pushed his face away, left the couch, and walked across the room. Plaintiff then stated that she wished to smoke outside, and encouraged Everett to accompany her in public, which he did. The working day was finished without incident. Plaintiff further stated when deposed that she did not know or could not know whether defendant was trying to hurt her, but she stated that he "would have or could have.” She acknowledged that he might have mistakenly believed she wished to kiss him and that he did not condition the terms or conditions of her employment upon the acceptance of his advances. That evening plaintiff discussed the incident with her husband, and she tendered her resignation, along with a list of requests, to Everett’s office the next morning. The following day, Dr. Clarke and plaintiff cursorily discussed the incident. Plaintiff also began psychological counseling that day. Although plaintiff suffered no physical injuries, she alleges severe emotional pain stemming from the incident. C In December, 1988, plaintiff filed a four-count civil suit against Everett and the hospital in the Grand Traverse Circuit Court. Plaintiff alleged that she was (1) sexually harassed in violation of the Civil Rights Act, (2) constructively discharged on the basis of sex, (3) the victim of assault and battery, and (4) denied access to her personnel files in violation of the Employee Right to Know Act, MCL 423.501 et seq.; MSA 17.62(1) et seq. The crux of plaintiff’s case is that Everett’s actions constituted sexual harassment because they created a hostile work environment thereby forcing her resignation. The Employee Right to Know Act count was dismissed by stipulation. In August, 1989, the trial court granted summary disposition regarding the remaining counts pursuant to MCR 2.116(C)(8) and (10). After reviewing plaintiff’s complaint and deposition, the court ruled that she. had failed to state a violation of the Civil Rights Act because her hostile environment claim was based upon a single incident of sexual harassment, which, as a matter of law, did "not rise to the level of severity and persistence which would permit recovery . . . .” Likewise, the court dismissed the constructive discharge count because it was dependent upon finding a hostile work environment. The court also ruled that the exclusive remedy provision of the Workers’ Disability Compensation Act, MCL 418.131; MSA 17.237(131), barred plaintiff’s claim of assault and battery because she failed to allege that Everett intended to harm her. The Court of Appeals reversed on all counts. The Court, sua sponte, rejected its prior utilization of a reasonable person standard to determine whether a hostile work environment exists, and ruled: [A] female plaintiff states an actionable claim for sex discrimination caused by hostile-environment sexual harassment under the state Civil Rights Act where she alleges conduct of a sexual nature that a reasonable woman would consider to be sufficiently severe or pervasive to alter the conditions of employment by substantially interfering with her employment or by creating an intimidating, hostile, or offensive employment environment. [189 Mich App 346, 355; 471 NW2d 660 (1991).] The Court then found that under the reasonable woman standard, a "single incident could be sufficiently severe under some circumstances to support a finding” of a hostile work environment. Id. at 356. The Court concluded that in the instant case, the totality of circumstances were sufficient to permit a trial regarding the issue of a hostile work environment. Id. at 356-357. Accordingly, the Court also reversed the trial court’s dismissal of the constructive discharge claim. Id. at 357. Furthermore, the Court reversed the dismissal of the assault and battery claim, holding that because it named Everett individually, plaintiff was not suing her employer but her perpetrator. Id. at 357-358. The Court reasoned, "[t]he wdca therefore is inapplicable to this claim and does not operate to bar plaintiff’s recovery.” Id. at 358. Leave to appeal was granted by this Court. D Defendants, joined by amici curiae, assert before this Court that (1) the reasonable person standard should be utilized to determine whether a hostile work environment existed, (2) a single incident is insufficient to establish a prima facie case of a hostile work environment, (3) constructive discharge did not occur, and (4) the wdca bars the alternative counts of assault and battery. Plaintiff, and other amici curiae, urge the contrary. Two amici curiae urge the elimination of any reasonableness standard, and at least one urges the adoption of a "reasonable victim” standard. n The Civil Rights Act "is aimed at 'the prejudices and biases’ borne against persons because of their membership in a certain class, and seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases.” Miller v C A Muer Corp, 420 Mich 355, 363; 362 NW2d 650 (1984) (citations omitted). Accordingly, the act declares tha

LINEBAUGH v SHERATON MICHIGAN CORPORATION Docket No. 126717. Submitted November 5, 1992, at Grand Rapids. Decided March 1, 1993, at 9:10 a.m. Leave to appeal sought. Sherry and Russell Linebaugh brought an action in the Cheboygan Circuit Court against Sheraton Michigan Corporation, Sherry’s employer, and Rick Herring, one of her co-workers, alleging defamation, sexual harassment, and intentional or reckless infliction of emotional distress resulting from the circulation in Sherry’s workplace of a cartoon drawn by Herring that allegedly depicted Sherry and a male co-worker engaged in a sexual act. The court, Robert C. Livo, J., granted summary disposition for the defendants. The plaintiffs appealed. The Court of Appeals held: 1. The trial court erred in granting summary disposition for Herring with regard to the defamation claim. A reasonable trier of fact could conclude that the cartoon, whether captioned or uncaptioned, imputes a want of chastity to Sherry Linebaugh. A drawing that imputes a lack of chastity to a female is actionable per se, irrespective of special harm. 2. Summary disposition for Sheraton with regard to the defamation claim was proper. The cartoon was not drawn by Herring while he was in the discharge of his duties as an agent for Sheraton, nor was it done in relation to a matter about which his duties as an agent required him to act. 3. The trial court properly granted summary disposition for the defendants with regard to the claim of sexual harassment. The plaintiffs did not demonstrate that the cartoon was gender-oriented or that the harassment complained of was based on gender, an element of a claim for sexual harassment. The cartoon, allegedly depicting Sherry Linebaugh and a male coworker engaging in a sexual act, is gender neutral and could be considered equally offensive both to male and female employees of Sheraton. In addition, upon receiving Sherry’s complaint of harassment, Sheraton conducted an investigation and gave written warnings to Herring and a co-worker who posted the cartoon on a bulletin board. References Am Jur 2d, Depositions and Discovery §§ 21-49, 153; Fright, Shock, and Mental Disturbance §§ 1-12, 53; Job Discrimination §§ 789-816; Libel and Slander §§ 60-61; Master and Servant §§ 404, 426-440. Libel and slander: defamation by cartoon. 52 ALR4th 424. Modern status of intentional infliction of mental distress as independent tort; "outrage”. 38 ALR4th 998. On-the-job sexual harassment as violation of state civil rights law. 18 ALR4th 328. 4. The trial court erred in granting summary disposition for Herring with regard to the claim of intentional or reckless infliction of emotional distress. A reasonable factfinder could conclude that the depiction of Sherry engaged in a sexual act with a co-worker constituted conduct so outrageous in character and so extreme in degree that it went beyond all bounds of common decency in a civilized society. Furthermore, Herring’s creation of the cartoon and his delivery of it to the co-worker who posted it may constitute reckless behavior. The question whether Herring’s conduct was sufficiently outrageous and extreme was a matter for determination by the trier of fact. 5. Summary disposition was properly granted for Sheraton with regard to the claim of intentional infliction of emotional distress. An employer is liable for the tortious acts of its employee only when the acts are committed within the scope of employment. Even if Herring were found to have intentionally inflicted emotional distress upon Sherry Linebaugh, Sheraton would not be vicariously liable. 6. The trial court abused its discretion in denying the plaintiffs’ motion to compel Herring to answer a question asked by the plaintiffs’ attorney during his deposition and to which defense counsel objected on the basis of relevancy. 7. The trial court did not err in ordering the plaintiffs to answer the defendants’ interrogatories regarding the subject matter and substance of their lay witnesses’ expected testimony at trial. The scope of discovery with regard to a party’s lay witness is limited only by the provisions of MCR 2.302(B)(1). Because the interrogatories may relate to matters that may be the subject of inquiry pursuant to MCR 2.302(B), the trial court did not abuse its discretion in ordering the plaintiffs to answer. Affirmed in part, reversed in part, and remanded. 1. Libel and Slander •— Drawings Imputing Female’s Lack of Chastity — Actions. A drawing that imputes a lack of chastity to a female is actionable per se, irrespective of special harm (MCL 600.2911[1]; MSA 27A.2911[1]). 2. Civil Rights — Sexual Harassment — Civil Rights Act. In order for a claim of sexual harassment in violation of the Civil Rights Act to be stated properly, the plaintiff must allege that the harassment was based on the plaintiff’s gender (MCL 37.2101 et seq.; MSA 3.548[101] et seq.l 3. Torts — Intentional Infliction of Emotional Distress. Liability for the intentional infliction of emotional distress may be found only where the conduct complained of has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community. 4. Torts — Employer’s Liability for Employee’s Torts. An employer is liable for the tortious acts of its employee only when the acts are committed within the scope of the employee’s employment. 5. Pretrial Procedure — Depositions — Objections Based on Relevancy. Where a relevancy objection is made at a deposition, the proper procedure is to note the objection on the record and then take the deponent’s answer subject to the objection (MCR 2.306[C] W). 6. Pretrial Procedure — Discovery — Lay Witnesses — Expert Witnesses. The scope of discovery with regard to lay witnesses is limited only by MCR 2.302(B)(1); the provisions of MCR 2.302(B)(4) relating to the discovery of facts known and opinions held by expert witnesses apply to expert witnesses only. Sumpter, Perry & McDonald, P.C. (by Thomas E. McDonald), for the plaintiffs. Bodman, Longley & Dahling (by Kathleen A. Lieder), for the defendants. Before: Hood, P.J., and Sawyer and Jansen, JJ. Jansen, J. Plaintiffs, Sherry and Russell Linebaugh, appeal as of right from the Cheboygan Circuit Court’s March 5, 1990, order granting defendants’ motion for summary disposition with regard to plaintiffs’ claims of defamation, sexual harassment, and intentional or reckless infliction of emotional distress. This case emanates from the circulation of a cartoon in Sherry Linebaugh’s workplace. The cartoon, which can be interpreted as depicting Sherry Linebaugh (hereafter plaintiff) and a male co-worker in a sexually compromising position, was drawn by defendant Rick Herring. We affirm in part and reverse in part the order of the trial court. Plaintiffs first contend that the trial court erred in dismissing their defamation claim because the cartoon, allegedly depicting plaintiff and a male co-worker engaged in a sexual act, is actionable by its very nature. The trial court found the cartoon to be "ambivalent as to who is doing what to whom.” We are of the opinion that summary disposition was improperly granted to Herring on this claim. Dep’t of Social Services v Aetna Casualty & Surety Co, 177 Mich App 440, 444-445; 443 NW2d 420 (1989). The elements of a cause of action for libel are: (1) a false , and defamatory statement concerning the plaintiff; (2) an unprivileged communication to a third party; (3) fault amounting to at least negligence on the part of the publisher; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by publication. Locricchio v Evening News Ass'n 438 Mich 84, 115-116; 476 NW2d 112 (1991); Rouch v Enquirer & News of Battle Creek (After Remand), 440 Mich 238, 251; 487 NW2d 205 (1992); Royal Palace Homes, Inc v Channel 7 of Detroit, Inc, 197 Mich App 48; 495 NW2d 392 (1992). A drawing that imputes a lack of chastity to a female is actionable per se, irrespective of special harm. MCL 600.2911(1); MSA 27A.2911(1). Prior established case law suggests that lack of chastity may be imputed by reference to acts other than promiscuous sexual intercourse, such as the sexual activity allegedly depicted by the cartoon at issue. Cf. Maciejewski v Rychart, 192 Mich 530; 159 NW 479 (1916); Loranger v Loranger, 115 Mich 681; 74 NW 228 (1898). We first note that in ruling on defendants’ motion, the trial court did not state whether it was considering the cartoon as captioned or uncaptioned. Herring admittedly drew the cartoon, but he strongly denies adding the caption to the cartoon. John Dunn, the union bargaining chairman, testified that there was some debate regarding who added the caption to the cartoon. Dunn also testified, however, that most of the employees he spoke with stated that the writing was on the cartoon when first posted. Although this creates a factual question precluding summary disposition, this does not constitute the sole basis for our resolution of this issue. We are of the opinion that a reasonable trier of fact could conclude that the cartoon, whether captioned or uncaptioned, imputes a want of chastity to Sherry Linebaugh. The captioned cartoon is not ambiguous with regard to either its sexual connotations or the identity of the participants depicted therein. Both plaintiff and her co-worker, Carl Schaefer, are identified by name, and defendants do not assert that some "Sherry” other than plaintiff was the clear and intended victim of the cartoon. Because the cartoon could be interpreted as depicting plaintiff engaged in a sexual act with a male other than her husband, a reasonable trier of fact could conclude that the cartoon imputes to plaintiff a lack of chastity, which is actionable irrespective of special harm. We are also of the opinion that a rational trier of fact could conclude that the cartoon, if construed uncaptioned, is defamatory and actionable per se. If uncaptioned, the viewer of the cartoon would have to possess knowledge of extrinsic facts in order to trigger its defamatory effect. As stated in Prosser, Torts (4th ed), § 111, p 749: He [the plaintiff] need not, of course, be named, and the reference may be an indirect one, with the identification depending upon circumstances known to the hearers, and it is not necessary that every listener understand it, so long as there are some who reasonably do; but the understanding that the plaintiff is meant must be a reasonable one, and if it arises from extrinsic facts, it must be shown that these were known to those who heard. The testimony indicates that in referring to plaintiff, Carl Schaefer told Paul Freeman "to leave his mashed potatoes and gravy alone.” Thereafter, Herring drew the cartoon in question and Robert Shorkey posted the cartoon on a bulletin board in the workplace. According to Herring’s own testimony, most of the people on the afternoon shift had knowledge of the "mashed potatoes” story. Herring testified that if other employees had heard the story and saw the cartoon, they could possibly relate the cartoon to the story. One viewer of the cartoon testified that the male figure depicted in the drawing resembled Schaefer with sufficient detail to lead her to believe that it was Schaefer. Also, the buttocks depicted in the cartoon are wearing Lee brand jeans, and plaintiff testified that she customarily wore jeans to work. In light of the above considerations, we hold that the trial court erred in granting summary disposition to Herring with regard to plaintiffs’ defamation claim. However, we reach a different result with regard to the corporate defendant, Sheraton Michigan Corporation. See Poledna v Bendix Aviation Corp, 360 Mich 129, 139-140; 103 NW2d 789 (1960); Grist v Upjohn Co, 368 Mich 578, 583; 118 NW2d 985 (1962). We cannot say that the cartoon was drawn by Herring while in the discharge of his duties as an agent for Sheraton, or that it was done in relation to a matter about which his duties as an agent required him to act. Therefore, we affirm the trial court’s grant of summary disposition to the corporate defendant on plaintiffs’ defamation claim. Plaintiffs next contend that the trial court erred in dismissing their sexual harassment claim brought pursuant to the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. We disagree with plaintiffs. Plaintiffs’ sexual harassment claim is based upon a hostile work environment theory, MCL 37.2103(h)(iii); MSA 3.548(103)(h)(iii). This Court, in Langlois v McDonald’s Restaurants of Michigan, Inc, 149 Mich App 309; 385 NW2d 778 (1986), recognized as one element of a sexual harassment claim the necessity that the harassment complained of be based on the complainant’s gender. Id., p 313. In the present case, plaintiff has not demonstrated that the cartoon was gender-oriented or that the harassment complained of was based on her gender. The cartoon allegedly depicts both plaintiff and a male co-worker as engaging in a sexual act and, therefore, is gender neutral. The cartoon could be considered equally offensive to both male and female employees. Additionally, upon receiving plaintiff’s complaint of harassment, an investigation was conducted and Herring and Robert Shorkey were given written warnings. Therefore, we find that the trial court properly granted summary disposition for defendants with regard to plaintiffs’ sexual harassment claim. Downer v Detroit Receiving Hosp, 191 Mich App 232, 234; 477 NW2d 146 (1991). Plaintiffs next argue that the trial court erred in dismissing their claim of intentional or reckless infliction of emotional distress. Plaintiffs assert that there are few things more outrageous than a cartoon depicting a woman engaged in a sexual act with a male other than her husband. We agree with plaintiffs. The elements of the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct; (2) intent or recklessness; (3) causation; and (4) severe emotional distress. Roberts v Auto-Owners Ins Co, 422 Mich 594, 602; 374 NW2d 905 (1985); Runions v Auto-Owners Ins Co, 197 Mich App 105; 495 NW2d 166 (1992). Liability for the intentional infliction of emotional distress has been found only where the conduct complained of has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Roberts, p 603; Meek v Michigan Bell Telephone Co, 193 Mich App 340, 346; 483 NW2d 407 (1992). However, liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Roberts, p 603. We are of the opinion that the trial court erred in granting summary disposition to Herring with regard to this claim. Once having viewed the cartoon at issue, a reasonable factfinder could conclude that the depiction of plaintiff engaged in a sexual act with a co-worker constitutes conduct so outrageous in character and so extreme in degree that it goes beyond all bounds of common decency in a civilized society. We note that a number of plaintiff’s co-workers testified that the cartoon was offensive. Furthermore, Herring’s creation of the cartoon and his delivery of it to Shorkey may well constitute reckless behavior. The question whether Herring’s conduct was sufficiently outrageous and extreme so as to render him liable for intentional infliction of emotional distress is a matter for determination by the trier of fact. With regard to the corporate defendant, Sheraton, we reach a different conclusion. Even if Herring were found to have intentionally inflicted emotional distress upon plaintiff, Sheraton would not be vicariously liable. An employer is liable only for the acts of its employee committed within the scope of employment. McCalla v Ellis, 129 Mich App 452, 460-461; 341 NW2d 525 (1983). Summary disposition was properly granted to the corporate defendant with regard to this claim. Plaintiffs also assert that the trial court erred in refusing to compel Herring to answer a question put to him during the course of his deposition. Defense counsel instructed Herring not to answer a question asked by plaintiffs’ attorney during the deposition. Defense counsel objected to the question on the basis of relevancy. The trial court subsequently denied plaintiffs’ motion to compel discovery. A motion to compel discovery is a matter within the trial court’s discretion, and the court’s decision to grant or deny a discovery motion will be reversed only if there has been an abuse of that discretion. Williams v Logan, 184 Mich App 472, 476; 459 NW2d 62 (1990). Evidence objected to at a deposition, on grounds other than privilege, shall be taken subject to the objection. MCR 2.306(C)(4). When a relevancy objection is made at a deposition, the proper procedure is to note the objection on the record, and then take the deponent’s answer subject to the objection. In this case, the trial court abused its discretion in denying plaintiffs’ motion to compel Herring to answer the question. Lastly, plaintiffs contend that the trial court erred in ordering them to answer defendants’ interrogatories regarding the subject matter and substance of their lay witnesses’ expected testimony at trial. Plaintiffs argue that the court rules only allow inquiry into a party’s expectations about the testimony of expert witnesses, and that an inquiry into the expected testimony of lay witnesses exceeds the bounds of discovery permitted under the court rules. Plaintiffs further argue that such an inquiry would result in revealing plaintiffs’ attorney’s mental theories, impressions, and work product. We disagree with plaintiffs. We first point out that plaintiffs’ second amended witness list named fifty-eight potential witnesses, including an unspecified number of "nurses” and "therapy personnel.” Plaintiffs argued that it was necessary to list all the witnesses or else they would "lose them.” Defendants argued that the magnitude of the list was inappropriate and amounted to an abusive practice. Defendants further argued that if the subject matter and substance of the testimony of the witnesses listed by plaintiffs was made known to them, they could better determine which witnesses should be deposed. The trial court found that "if you have a witness, you have to disclose whether you’re going to use him — for what purpose, and what you believe he will testify to.” Generally, parties may obtain discovery regarding any matter not privileged that is relevant to the subject matter involved in the pending action. MCR 2.302(B)(1). It is true, as plaintiffs assert, that the court rules do permit discovery of facts known and opinions held by expert witnesses, but only as provided in the court rule. MCR 2.302(B)(4). We find instructive the author’s comment to MCR 2.302, 2 Martin, Dean & Webster, Michigan Court Rules Practice, Rule 2.302, comment 8(g), p 182, which states: The provisions of subrule 2.302(B)(4) restrict discovery of facts known and opinions held by experts acquired or developed in anticipation of litigation or in preparation for trial to only the situations and methods provided for by that sub-rule. As to this one particular class of persons, experts, the rule is a direct restriction on the scope of discovery permitted by 2.302(B)(1). . . . Conversely, however, if the expert witness acquired his or her information not in anticipation of litigation or for trial, but rather as a witness to the incident or occurrence in question, or as a result or consequence of his or her normal business activities and duties, no restrictions are placed upon discovery relating to these persons at all. They are treated just as if they were any other potential witness, and the scope of discovery as to them is limited only by the provisions of rule 2.302(B)(1). [Emphasi

RASHEED v CHRYSLER MOTORS CORPORATION Docket No. 129620. Submitted July 14, 1992, at Detroit. Decided October 5,1992, at 9:00 a.m. Leave to appeal sought. Muhammad Rasheed brought an action in the Wayne Circuit Court against his former employer, Chrysler Motors Corporation, and former supervisor, James Senart, alleging, inter alia, that his disciplinary discharge and prior suspensions were motivated by religious discrimination. Before filing suit, the plaintiff initiated grievance procedures that resulted in his eventual rejection of an offer of reinstatement with full seniority but without back pay. A jury returned a verdict for the plaintiff and awarded him damages, and the court, Richard P. Hathaway, J., ordered Chrysler to offer the plaintiff employment as a new employee with no seniority. The defendants appealed, and the plaintiff cross appealed. The Court of Appeals held: 1. The trial court did not abuse its discretion in denying the defendants’ motion for a directed verdict. Reasonable jurors could have reached different conclusions with regard to the plaintiff’s claim of religious discrimination after he presented a prima facie case based on disparate treatment and the defendants presented nondiscriminatory reasons for the treatment. 2. The trial court did not abuse its discretion in limiting the admissibility of the plaintiff’s personnel file to that portion that related to the three years immediately preceding his discharge. The ruling was consistent with the parties’ collective bargaining agreement, which provided that only that time period could be considered in deciding whether an employee could be discharged. Furthermore, evidence of the plaintiff’s personnel records before that period would have been more prejudicial than probative. 3. Under the circumstances of this case, the trial court did not abuse its discretion in ordering that the plaintiff be reinstated, but treated as a new employee. Although the plaintiff forfeited any right to back pay when he refused Chrysler’s offer of reinstatement, he did not forfeit the right to reinstatement. References Am Jur 2d, Civil Rights §§ 193, 307-309, 432-435, 438-442; Job Discrimination §§ 1231-1245; 2414. See the Index to Annotations under Backpay; Discharge from Employment or Office; Discrimination; Equal Employment Opportunity. 4. The trial court did not err in limiting the plaintiff’s recovery of damages to injuries that occurred within the statutory period of limitation for his claim. The period was not tolled under the "continuing violations” theory because the plaintiff failed to establish that the last act of discrimination was part of a series of past discrimination of which he became aware only at the time of the last act. Affirmed. J. C. Kingsley, J., dissenting in part, stated that a discharged employee’s refusal of an employer’s unconditional offer of reinstatement, unless reasonable under the circumstances, should forfeit the employee’s right to reinstatement. 1. Civil Rights — Wrongful Discharge — Mitigation of Damages — Offers of Reinstatement — Back Pay. An employer’s unconditional offer to reinstate an employee allegedly discharged in violation of the employee’s civil rights tolls the employer’s liability for back pay because rejection of the offer constitutes a failure to mitigate damages. 2. Civil Rights — Wrongful Discharge — Reinstatement. A discharged employee who prevails against the employer in an action for discrimination under the Civil Rights Act does not automatically forfeit the right to reinstatement for refusing, before the filing of the action, an unconditional offer of reinstatement by the employer (MCL 37.2101 -et seq.; MSA 3.548[101] et seq.). 3. Civil Rights — Limitation of Actions — Continuing Violation. The statute of limitations applicable to actions for discrimination under the Civil Rights Act may be tolled in a case involving a continuing violation, i.e., one where a present violation is suffered within the limitation period and where there is a policy of discrimination, a continuing course of conduct, and present effects of past discrimination (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). Durant & Durant, P.C. (by Kirsten Frank), for the plaintiff. Dickinson, Wright, Moon, Van Dusen & Freeman (by George R. Ashford and Eric J. Pelton), for the defendants. Before: Fitzgerald, P.J., and Hood and J. C. Kingsley, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Hood, J. Plaintiff brought an action for religious and racial discrimination, intentional infliction of emotional distress, religious harassment, and fraud against his employer and immediate supervisor. All claims except the religious discrimination claim were dismissed following defendants’ motion for a directed verdict at the close of plaintiffs proofs. Defendants appeal as of right from a judgment in plaintiffs favor and from the trial court’s order of reinstatement. Plaintiff cross appeals from the trial court’s ruling that prohibited him from collecting damages for discriminatory acts that occurred outside the three-year period of limitation and from the trial court’s refusal to order full reinstatement, with seniority and back pay, to his former position. We affirm. Plaintiff had been employed by defendant Chrysler Motors Corporation since 1967. The parties stipulated that, in 1978, plaintiff became a member of the American Muslim Mission. In 1981, plaintiff transferred from Chrysler’s Hugo Foundry plant to its Trenton plant. Plaintiff asserts that after the transfer he was subjected to daily harassment relating to his religious beliefs from both co-workers and his supervisor, defendant James Senart. Plaintiff produced evidence at trial that he made known the difficulties he was experiencing to his supervisor and other managerial and union personnel but that they failed to rectify the problem. Senart informed plaintiff of his dislike for those who adhere to plaintiff’s religion and often encouraged or participated in the harassment. Plaintiff was involved in three disciplinary incidents shortly before being discharged. The first involved plaintiff’s attempt to participate in the fast of Ramadan, which began near the first of June 1984. During this holy month, plaintiff was required to fast from sunup until sundown. He could not break his fast during his regularly scheduled lunch period (8:00 p.m. until 8:30 p.m.). Although Senart would not accommodate his need to take a later lunch break, plaintiff was able, when Senart went on vacation, to make arrangements with the substitute supervisor, Pat Crowe, to take a later break. When Senart returned, he revoked this privilege and suspended plaintiff for one day for abuse of lunch privileges. Plaintiff denied abusing the lunch break and was eventually reimbursed for this involuntary layoff. Shortly after the one-day suspension, plaintiff received a three-day suspension for disobeying his supervisor’s direct order to retrieve certain script charts. Plaintiff denied disobeying the order and pointed out that the suspension came on the heels of his refusal to work voluntary overtime. Plaintiff was also reimbursed for this suspension. On July 12, 1984, the day of the suspension that led to his discharge, plaintiff was charged with destroying company property, specifically, scrap cylinder heads. Plaintiff maintains that he handled the cylinder heads in the usual manner and tossed them into the divider with the normal amount of force used when handling scrap heads. After tossing the heads into the divider, plaintiff was escorted out of the plant by two guards. A week later, plaintiff was notified by mail of his discharge. Plaintiff availed himself of the grievance procedure provided in his union contract to challenge his discharge. Thirteen months later, pursuant to a settlement between his union and Chrysler, plaintiff was offered his job back with seniority, but without back pay, and with the discharge reduced to a disciplinary layoff. Plaintiff refused the offer because it did not include back pay and because he felt the offer was conditioned upon him admitting that he committed the infraction for which he was discharged. The grievance was not arbitrated. This suit followed. Plaintiff prevailed on his claim of religious discrimination, and the jury awarded him damages in the amount of $61,300. After trial, a hearing was held to determine whether the trial court would use its equitable powers to reinstate plaintiff to his former position. The court ruled that defendant was to offer plaintiff employment as a new employee, that is, with no seniority, within the following sixty days. Defendants first argue that the trial court erred in denying their motion for a directed verdict on plaintiff’s religious discrimination claim. This Court reviews a trial court’s denial of a motion for a directed verdict for an abuse of discretion. Howard v Canteen Corp, 192 Mich App 427, 431; 481 NW2d 718 (1992). This Court reviews all the evidence, including all reasonable inferences that can be drawn from it, in the light most favorable to the nonmoving party to determine whether there existed a question of fact for the jury’s determination. Stoken v J E T Electronics & Technology, Inc, 174 Mich App 457, 463; 436 NW2d 389 (1988). To successfully bring a religious discrimination claim under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., a plaintiff must make a prima facie showing of religious discrimination by demonstrating either disparate treatment or intentional discrimination. Pitts v Michael Miller Car Rental, 942 F2d 1067, 1070 (CA 6, 1991); Smith v Consolidated Rail Corp, 168 Mich App 773, 778; 425 NW2d 220 (1988). To establish disparate treatment, the plaintiff must show that he was a member of a protected class, and that he was treated differently than persons of a different class for the same or similar conduct. Singal v General Motors Corp, 179 Mich App 497, 503; 447 NW2d 152 (1989). The employer then has the burden of establishing a legitimate reason for the treatment. If the employer carries its burden, the’ plaintiff must establish that the reason or reasons presented by the employer were a mere pretext. Pitts, supra. The plaintiff may establish pretext by showing either that it is more likely that a discriminatory reason motivated the employer’s action or that the reasons proffered are simply not credible. Pitts, supra at 1071. Plaintiff’s claim is essentially one of disparate treatment. Plaintiff alleges that he was discharged for engaging in conduct that other employees regularly engaged in without being discharged. He further asserts that he was treated differently because he is a Muslim. Plaintiff established through his own testimony as well as the testimony of Larry Allen, Benny Wright, and Terri Williams that he was discharged for tossing a scrap cylinder head into a divider and that others engaging in similar conduct were not fired. In response, defendants offered testimony establishing that plaintiff was fired for destroying company property. There was testimony from Charles Ferns and Senart that the cylinder head was destroyed and there was damage to the plant floor caused by plaintiff’s throwing the head into the divider. It was then necessary for plaintiff to establish that defendants’ reasons for discharging him were a mere pretext. Plaintiff presented testimony from Larry Allen that the cylinder head was not destroyed and that there was no damage to the floor. Further, plaintiff testified about a history of harassment from defendant Senart concerning plaintiff’s religion. In addition, there was testimony from Senart that plaintiff was a good repairman and a productive and capable worker. The resolution of this case rests almost entirely on the jurors’ assessment of each witness’ credibility. The verdict rendered indicates that, in the jury’s estimation, plaintiffs testimony and the testimony of witnesses who supported his version of the events were more credible than defendants’ testimony. If reasonable jurors could reach different conclusions, a motion for a directed verdict should be denied. The trial court cannot substitute its judgment for that of the jury. Jenkins v Raleigh Trucking Services, Inc, 187 Mich App 424, 427; 468 NW2d 64 (1991). The trial court did not commit error requiring reversal when it denied defendants’ motion for a directed verdict. Defendants next argue that the trial court erred in refusing to allow plaintiffs entire personnel file into evidence. The decision to admit evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Michigan Microtech, Inc v Federated Publications, Inc, 187 Mich App 178, 186; 466 NW2d 717 (1991). An abuse of discretion is found only if an unprejudiced person, considering the facts on which the trial court acted, would say that there was no justification or excuse for the ruling made. People v Milton, 186 Mich App 574, 576; 465 NW2d 371 (1990). Only relevant evidence is admissible. MRE 402. However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. MRE 403; Dunn v Nundkumar, 186 Mich App 51, 55; 463 NW2d 435 (1990). The trial court ruled that, under the collective bargaining agreement, defendants were allowed to go back only three years when making a decision to discharge and that, therefore, those were the only relevant years. However, the trial court also determined that, if older information contained in plaintiffs personnel file was needed for impeachment purposes, it would make a ruling at the time the issue arose during trial. The trial court did not abuse its discretion by disallowing the introduction of plaintiff’s entire personnel file. As noted by the trial court, evidence of plaintiffs disciplinary history before the three-year period was not relevant to the decision to discharge. Further, even if marginally relevant, the evidence was substantially more prejudicial than probative. The trial court provided adequate reasons for its ruling on the record and gave defendants an opportunity to use the excluded evidence for impeachment purposes. Next, both plaintiff and defendants find fault with the trial court’s order of reinstatement. At the reinstatement hearing, the trial court ordered defendants to offer plaintiff a position as a new employee within sixty days. Plaintiff had been offered his old job with full seniority and benefits a little over a year after his discharge pursuant to the union’s settlement of his grievance against Chrysler. The discharge was to be reduced to a disciplinary layoff. Defendants argue that plaintiff forfeited his right to back pay and reinstatement because he failed to accept their unconditional offer of reinstatement. Plaintiff argues that he should have been reinstated with back pay and seniority. As stated before, plaintiff declined the offer. An employee who is wrongfully discharged has an obligation to mitigate damages by accepting employment of a "like nature.” In determining whether employment is of a like nature, the trial court looks at the type of work, the hours, the wages, and the working conditions. Hughes v Park Place Motor Inn, Inc, 180 Mich App 213, 220; 446 NW2d 885 (1989). Defendants argue that the trial court erred in reinstating plaintiff when it had ruled earlier, when it limited back pay, that plaintiff had unreasonably rejected an unconditional offer of reinstatement. Plaintiff argues that the trial court should have reinstated him with back pay and seniority. Plaintiff further argues that accepting the initial reinstatement offer would not have made him whole because the religious discrimination would have continued. He also argues that, at the time he rejected the offer, he thought acceptance meant forfeiting his right to pursue other legal remedies. The record, however, does not support plaintiff’s last claim. It is clearly stated in the offer of reinstatement that the settlement of the grievance would not affect the outcome of any other proceeding. In support of his position that he is entitled to reinstatement and back pay, plaintiff cites Ford Motor Co v Equal Employment Opportunity Comm, 458 US 219; 102 S Ct 3057; 73 L Ed 2d 721 (1982), Morvay v Maghielse Tool & Die Co, Inc, 708 F2d 229 (CA 6, 1983), and Boomsma v Greyhound Food Management, Inc, 639 F Supp 1448 (WD Mich, 1986). In Ford, supra at 731, the Court noted that the purpose of the reinstatement rule was to encourage compliance with civil rights laws because reinstatement addresses the discriminatory effect of an unfair discharge. This conclusion is also supported by Morvay, supra. In Boomsma, supra, however, the plaintiff, who was not seeking reinstatement, forfeited his right to back pay because of his refusal to accept the employer’s offer of reinstatement even though earlier in the opinion the court held that the employer had failed to adequately accommodate the plaintiff’s religious beliefs. Plaintiff’s primary complaint in the case at bar was that he was discharged for discriminatory reasons. Reinstatement to his former position would have reversed that discriminatory act. However, none of the cases cited by plaintiff justify his refusal to accept Chrysler’s offer of reinstatement, although they do support the conclusion that reinstatement is a preferred and uniquely effective remedy for a discriminatory discharge. We agree with defendants that plaintiff is not entitled to any back pay that accrued after the date of the first offer of reinstatement. An unconditional offer of reinstatement tolls an employer’s liability for back pay because rejecting it constitutes a failure to mitigate damages. See Hughes, supra at 220; see also Figgs v Quick Fill Corp, 766 F2d 901, 904 (CA 5, 1985); Morvay, supra; O’Donnel v Georgia Osteopathic Hosp, Inc, 748 F2d 1543, 1550-1551 (CA 11, 1984); Fiedler v Indianhead Truck Line, Inc, 670 F2d 806 (CA 8, 1982). However, despite federal precedent to the contrary, including Boomsma, we disagree with defendants’ contention that plaintiff’s rejection of Chrysler’s offer also automatically forfeits his right to reinstatement. See Giandonato v Sybron Corp, 804 F2d 120, 125 (CA 10, 1986) (employee’s refusal of unconditional offer of reinstatement forfeited right to back pay and reinstatement); Stanfield v Answering Service, Inc, 867 F2d 1290, 1296 (CA 11, 1986) (refusal of offer of reinstatement, unless reasonable, forfeits employee’s right to reinstatement). Although federal precedent is persuasive, this Court is not bound to follow it even where there is no Michigan law on point. We feel that following federal precedent in this case would lead to an unduly harsh result. Further, it would unnecessarily interfere with the trial court’s ability to fashion an appropriate remedy. Flexibility in that regard is crucial to implementing justice in light of the jury’s verdict. In this case, on the basis of hotly contested evidence, the jury found that plaintiff had been the victim of religious discrimination. The trial court, although expressing disagreement with that result, had no power to substitute its judgment and overturn the jury’s verdict. The court further had an affirmative obligation to implement the verdict and remedy the discrimination found. The trial court could reasonably conclude that awarding plaintiff only the one year of back pay that accrued before the first offer of reinstatement was insufficient under the circumstances. The trial court did not abuse its discretion in exercising its equitable powers and reinstating plaintiff, albeit without seniority. However, this Court does not hold that reinstatement is required in all similar situations, only that ordering it in this case was not an abuse of discretion. Plaintiff next argues that the trial court erred in limiting his damages to injuries that occurred within the th

HOWARD v CANTEEN CORPORATION Docket No. 120825. Submitted May 13, 1991, at Detroit. Decided October 15, 1991; approved for publication January 15, 1992, at 9:00 a.m. Carol J. Howard brought an action in the Wayne Circuit Court against Canteen Corporation and David Spender, alleging breach of an employment contract and sexual discrimination as a result of the defendants’ failure to promote her, harassment, retaliation, and wrongful termination of her employment. The jury returned a verdict for the plaintiff on the claims for breach of contract and sex discrimination, and the court, Louis F. Simmons, Jr., J., entered a judgment for $299,530 plus interest, costs, and attorney fees. The defendants appealed from the denial of their motions for directed verdict, judgment notwithstanding the verdict, a new trial, and remittitur. The Court of Appeals held: 1. There was sufficient evidence of sexual discrimination on the basis of the failure to promote, sexual harassment, retaliation, and wrongful discharge and of breach of contract to send the case to the jury and to support its verdicts regarding those claims. The trial court did not err in denying the defendants’ motions for directed verdict or judgment notwithstanding the verdict. 2. The award of $200,000 for mental anguish, emotional distress, and humiliation associated with the sex discrimination claims was supported by the evidence and was not excessive. The court did not abuse its discretion in denying the defendants’ motion for remittitur. 3. The court did not abuse its discretion in denying the defendants’ motion for a new trial. 4. A remand is necessary for an evidentiary hearing regarding the reasonableness of the attorney fees awarded to the _plaintiff because the defendants were not provided a sufficient opportunity to challenge the affidavits and other documentary evidence in support of the requested fees and the trial court did not make findings of fact with regard to the attorney fee issue. References Am Jur 2d, Costs §§ 72, 79, 261; Damages §§ 143, 144, 678; Job Discrimination § 2498. Effect of anticipated inflation on damages for future losses — modern cases. 21 ALR4th 21. 5. The use of a multiplier for the attorney fees granted under the Civil Rights Act was not justified under the circumstances of this case, and, therefore, the portion of the attorney fees awarded that are attributable to the multiplier is vacated. 6. The award of attorney fees under both the Civil Rights Act and MCR 2.403(0) was appropriate because each provision serves an independent policy or purpose. The court, on remand, must determine the reasonableness of the fees awarded as mediation sanctions. 7. The court erred in failing to reduce the award for damages for the plaintiffs future wage loss to present value or to instruct the jury to do so. Inflation is a factor that may be considered in assessing damages, but a court may not employ it to omit the present-value reduction. Remand is required for the court to reduce the future wage loss award to present value. Affirmed in part, reversed in part, and remanded. 1. Attorney and Client — Attorney Fees. Each party in a lawsuit ordinarily bears its own attorney fees unless there is express statutory authorization to the contrary. 2. Civil Rights — Attorney Fees — Findings of Fact. A trial court, in its discretion, may award reasonable attorney fees in cases involving violations of the Civil Rights Act; the court, where attorney fees are to be awarded, must determine the reasonable amount of fees according to the nonexclusive list of factors and guidelines set forth in Wood v DAIIE, 413 Mich 573 (1982), and, while not required to detail its findings regarding each specific factor, it is required to make findings of fact with regard to the issue of attorney fees (MCL 37.2802; MSA 3.548[802]). 3. Attorney and Client — Attorney Fees — Evidentiary Hearings. The party seeking an award of attorney fees bears the burden of establishing entitlement and documenting the appropriate hours expended and hourly rates; where the opposing party challenges the reasonableness of the requested fee, the trial court should hold an evidentiary hearing regarding the issue, and, if any of the underlying facts are in dispute, the court should make findings of fact regarding those issues. 4. Attorney and Client — Attorney Fees. A reasonable attorney fee is presumed to be based on a reasonable hourly rate multiplied by a reasonable number of hours expended; a trial court’s discretion to increase such a presumptively reasonable attorney fee is limited to rare circumstances where the attorney’s work is so superior and outstanding that it far exceeds client expectations and normal levels of competence, or where it is necessary for attracting competent counsel. 5. Civil Rights — Attorney Fees — Mediation Sanctions. Reasonable attorney fees may be awarded under both the court rule governing mediation sanctions and the attorney fee provision of the Civil Rights Act in an appropriate case because each provision serves an independent policy or purpose (MCR 2.403[O]; MCL 37.2802; MSA 3.548[802]). 6. Damages — Future Losses — Present Value. An award of damages for future losses must be reduced to its present cash value; a trial court faced with such an award either must instruct the jury regarding such reduction or reduce the award to its present value. . 7. Damages — Future Losses — Inflation. Inflation is a factor that may be considered in assessing damages, but it does not entitle a trial court to ignore the duty to reduce to present value an award of damages for future losses. Kelman, Loria, Downing, Schneider & Simpson (by Janet M. Tooley), for the plaintiff. Clark, Klein & Beaumont (by P. Robert Brown, Jr., Dorothy M. Basmaji, Amy Bateson, Sheryl A. Moody, and Nancy J. Gordon), for the defendants. Before: Cavanagh, P.J., and Neff and W. R. Beasley, JJ. Former Court of Appeals judge, sitting on the Court of Appeals by assignment. Per Curiam. In this gender-based discrimination case, defendants appeal as of right from a judgment entered on a jury verdict of approximately $300,000. They also claim that the trial court erred in denying their posttrial motions for directed verdict, judgment notwithstanding the verdiet, a new trial, and remittitur. We affirm in part and reverse in part. Plaintiff, Carol Howard, began working at defendant Canteen’s Cadillac 5 cafeteria as a shift supervisor in 1982. In September 1984, defendant David Spender was hired as manager of Cadillac 5. Plaintiff claims that Spender performed several acts and made several statements that constituted sexual harassment. Shortly before plaintiff left Canteen’s employ, she had a meeting with Bernard Palko, manager of food services, and Spender regarding her complaints where Spender claimed that, rather than harassing, he was only complimenting plaintiff in the things he had said. Plaintiff believed that the two men were only trying to appease her and that she was not going to get anywhere with her complaint. Spender told plaintiff after the meeting that she would be terminated, removed, or reprimanded, and that he was going to make sure she was transferred out of Cadillac 5. During plaintiff’s last week of employment, Palko told her that she was being transferred to the Cadillac Main account, which was located in a dangerous neighborhood in Detroit and was a farther distance from her home. She protested the transfer, which was obviously undesirable for her, as being made only because Spender could not be controlled. She turned down the transfer because of the way it was handled, it would cause her financial hardship, she did not have reliable transportation to drive the farther distance, she would not be getting extra income, and her feelings regarding her safety. Palko told her that if she did not transfer, she would be considered terminated. Plaintiff did not return to work for Canteen. In February 1986, plaintiff filed suit against defendants, alleging, among other things, breach of contract and sexual discrimination as a result of defendants’ failure to promote her, harassment, retaliation, and wrongful termination of her employment. These issues were thoroughly ventilated before the jury, and, after trial, the jury returned a verdict in plaintiff’s favor on both the breach of contract and sex discrimination claims. The trial court entered a judgment for $299,530, plus interest, costs, and attorney fees. Defendants filed motions for directed verdict, judgment notwithstanding the verdict, a new trial, and remittitur, which were denied. Defendants appeal. First, defendants claim the trial court erred in denying their motions for directed verdict or judgment notwithstanding the verdict because there was insufficient evidence to send the case to the jury or to support the verdicts for sexual discrimination and breach of contract. When deciding motions for directed verdict and judgment notwithstanding the verdict, the trial court must view the evidence in a light most favorable to the nonmoving party. Relief is required where insufficient evidence is presented to create an issue for the jury. Conversely, relief is not required where reasonable minds could differ on issues of fact. We will not disturb the trial court’s decision unless there has been a clear abuse of discretion. To establish a prima facie case of sex discrimination, the plaintiff must show membership in a class protected under the Civil Rights Act and that, for the same or similar conduct, the plaintiff was treated differently than a member of the opposite sex. If the defendant employer asserts legitimate, nondiscriminatory reasons for its actions, the plaintiff must then show that the reasons asserted were a mere pretext for discrimination. With regard to plaintiff’s claim of sexual discrimination regarding the failure to promote her to the Cadillac 5 manager position, for which she had requested consideration, defendants argue that plaintiff did not present sufficient evidence to support her claim because Spender was more qualified for the position than she was. However, plaintiff presented evidence that she had supervisory experience before coming to work for Canteen in 1982, she had filled in for the manager at another location on numerous occasions, she had managed both shifts of the Cadillac 5 cafeteria for a few weeks before Spender was hired, and she had generally fulfilled all the job duties of a manager at some point in time. Additionally, she was told by Palko to try to assist and guide a previous manager because she had more experience. Viewing this and the other evidence of discrimination in a light most favorable to plaintiff, a jury question was raised regarding whether plaintiff had shown, by a preponderance of the evidence, that she applied for an available position for which she was qualified but was rejected under circumstances giving rise to an inference of unlawful conduct and that sex discrimination played a significant role in the decision to deny plaintiff the promotion._ With regard to plaintiffs claim of sexual harassment, defendants argue that plaintiff did not present sufficient evidence to establish either quid pro quo sexual harassment or sexual harassment that results from a hostile or offensive work environment. However, the jury heard testimony that Spender would inquire into plaintiffs personal life, asking why she was divorced and how she could get a younger man like Michael Hobson, her live-in boyfriend who also worked on her shift at Cadillac 5; that Spender asked if plaintiff paid Hobson for his sexual favors, how she could keep up with a younger man, and why she was not more sociable with a man of Spender’s age; and that Spender also told plaintiff that if it were not for Hobson, he and plaintiff would be "closer” and they would have a better "working relationship.” Additionally, the jury heard testimony that Spender would open, read, and throw away plaintiffs mail, would go through her purse, and had grabbed a personal check out of her hand, and that he told plaintiff that women should not work out in public, that she was too aggressive, and that she was wasting her time because the company did not promote women to upper management positions, but rather would stick them in lower management positions just to keep various women’s groups happy. The jury also heard testimony that Spender told plaintiff she was not going to go anywhere unless she cooperated and that Spender was responsible for food shortage problems that occurred two or three times a week. This evidence, if accepted by the jury, was sufficient to show, at least, sexual harassment resulting from a hostile or offensive work environment. Regarding plaintiffs claim of sexual discrimination concerning retaliation, defendants argue that there was nothing of an actionable nature to retaliate against, that there was no evidence of retaliation, and that plaintiffs claim of retaliation based on her transfer to Cadillac Main was pure speculation. However, plaintiff testified that, after the meeting between Palko, Spender, and herself, Spender told her she would be terminated, removed, or reprimanded and that Spender would make sure plaintiff was moved out of his account. Soon afterward, plaintiff was told she must transfer to what was for her a much less desirable situation. Further, when plaintiff refused to transfer, Canteen hired a person "off the street” to fill the position, which tends to render quite unbelievable defendants’ claim that this was a promotion or growing experience for plaintiff. Viewing this evidence in a light most favorable to plaintiff, there was ample evidence for the jury to reasonably find that the elements of plaintiffs retaliation claim were proved. With regard to plaintiffs claim of sexual discrimination concerning her discharge, there was sufficient evidence to support the jury’s findings. Plaintiff was terminated immediately after she refused the transfer to Cadillac Main. She presented evidence that, in the context of this case, working conditions there were so difficult or unpleasant that a reasonable person in her shoes would have felt compelled to resign and that such action was a reasonably foreseeable consequence of Canteen’s conduct. As indicated, there was evidence that plaintiffs employment situation had been made intolerable by discrimination and sexual harassment and that her employment situation was further aggravated by a transfer to an undesirable location. Defendants also argue that there was insufficient evidence to support plaintiffs claim of breach of contract. However, plaintiff testified that Palko had told plaintiff that as long as she was familiar with the company’s policies, followed those policies, and did her job well, she would have a future with Canteen. Such verbal statements can give rise to a contract that an employee will be discharged only for just cause. In addition, Palko testified that it was Canteen’s policy not to terminate employees without a fair reason or just cause. Thus, plaintiff presented sufficient evidence to support her claim for breach of contract. Viewing all the evidence in a light most favorable to plaintiff, we do not find that the trial court abused its discretion in denying defendants’ motions for directed verdict and judgment notwithstanding the verdict. Second, defendants claim that the evidence was insufficient to support the $200,000 damage award for mental anguish, emotional distress, and humiliation with regard to the discrimination count, and they contend that the trial court erred in denying their motion for remittitur. Victims of discrimination may recover for the humiliation, embarrassment, disappointment, and other forms of mental anguish resulting from the discrimination, and medical testimony substantiating the claim is not required. When a verdict is within the range of the evidence produced at trial, it should not be reversed as excessive. With regard to remittitur, the only consideration expressly authorized by the remittitur court rule, MCR 2.611(E)(1), is whether the award is supported by the evidence. However, other objective factors such as whether the verdict was induced by bias or prejudice relating to the actual conduct of the trial or to the evidence adduced may be considered. The testimony indicated that defendants’ actions left plaintiff sad and depressed and that she is still dealing with her problems today. She is behind in paying her bills and suffers from a medical problem that she believes stems from her work situation. The evidence to support these results is found in the harassment and discrimination inflicted upon her for a lengthy period of time, despite her complaints to Palko. Under these circumstances, we do not believe the award was excessive, nor do we believe, giving deference to the trial court that personally observed the witnesses and heard the testimony, that the trial court abused its discretion in denying defendants’ motion for remittitur. Third, defendants claim that the trial court abused its discretion in denying their motion for a new trial because of numerous errors or irregularities in the trial proceedings. We have reviewed each of defendants’ alleged errors and do not find that the trial court abused its discretion so as to justify a new trial. Fourth, defendants claim that the trial court erred in its award of attorney fees. They contend that the attorney fees requested and granted were unreasonable, that the use of a multiplier for the fees granted under the Civil Rights Act was not justified, and that an additional award of attorney fees as a mediation sanction constituted double-dipping. The "American Rule” provides that each party in a lawsuit ordinarily bears its own attorney fees unless there is express statutory authorization to the contrary. MCL 37.2802; MSA 3.548(802) provides the authority to award reasonable attorney fees in state civil rights cases. The decision to grant or deny attorney fees under the Civil Rights Act is discretionary with the trial court. Where attorney fees are to be awarded, the court must determine the reasonable amount of fees according to the nonexclusive list of factors and guidelines set forth in Wood v DAIIE. While the court is not required to detail its findings regarding each specific factor, it is required to make findings of fact with regard to the attorney fee issue. The most useful starting point for determining the amount of a reasonable attorney fee is the number of hours reasonably expended on the case multiplied by a reasonable hourly rate. The party seeking the fee bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates. In plaintiffs brief in support of her motion for attorney fees submitted to the trial court, plaintiffs attorney claims that she does not keep contemporaneous time records. She stated: It may be noted that Plaintiffs firm does not ordinarily keep contemporaneous billing records, as we are strictly a plaintiffs law firm and rarely bill clients. While such records are not required to be kept, in demanding a large sum of attorney fees the lack of contemporaneous time records leaves room for doubt regarding the reasonableness of the hours expended. Where the opposing party challenges the reasonableness of the requested fee, the trial court should hold an evidentiary hearing regarding the issue. If any of the underlying facts, such as the number of hours spent in preparation, are in dispute, the trial court should make findings of fact regarding the disputed issues. In this case, no evidentiary hearing was held regarding the reasonableness of the attorney fee. Rather, plaintiffs counsel submitted affidavits and other documentary evidence in support of her requested fees, and oral arguments were heard. The trial court, in ruling on the issue, stated: [T]he Court is satisfied that both

DOWNER v DETROIT RECEIVING HOSPITAL Docket No. 118568. Submitted July 15, 1991, at Detroit. Decided September 16, 1991, at 9:00 a.m. Jennifer R. Downer brought an action in the Wayne Circuit Court against Detroit Receiving Hospital, Desabee Meadows, and others, alleging sexual harassment, negligent supervision, and negligent hiring, after she allegedly was sexually harassed by Meadows, one of her supervisors at the hospital. The court, Richard P. Hathaway, J., granted summary disposition for the defendants. The plaintiff appealed The Court of Appeals held: 1. The court properly refused to consider the plaintiffs affidavit submitted in opposition to the defendants’ motion for summary disposition. The affidavit contradicted testimony the plaintiff gave in a previous deposition. 2. The court properly granted summary disposition for the employer with regard to the plaintiffs sexual harassment claim based on a hostile work environment. The employer adequately investigated and took prompt and appropriate remedial action upon notice of the alleged hostile work environment. 3. Summary disposition of the claims against four of the defendants, which were based on their failure or refusal to investigate the plaintiffs claims against Meadows, was proper. A failure to investigate is not, in and of itself, a civil rights violation. 4. Summary disposition with regard to the negligent-hiring claim was proper. The plaintiff did not allege that the employer acted intentionally, and therefore the claim is barred by the exclusive remedy provision of the Workers’ Disability Compensation Act, MCL 418.131; MSA 17.237(131). Affirmed. 1. Motions and Orders — Summary Disposition — Affidavits. A party may not create factual issues by merely asserting the contrary in an affidavit after giving damaging testimony in a deposition (MCR 2.116[C][10]). References Am Jur 2d, Job Discrimination §§ 810-814; Motions, Rules, and Orders §§ 13,14, 20; Summary Judgment §§ 23, 35, 36. On-the-job sexual harassment as violation of state civil rights law. 18 ALR4th 328. 2. Civil Rights — Sexual Harassment — Hostile Work Environment — Duty to Investigate. An employer may avoid liability for an employee’s claim of sexual harassment based on a hostile work environment if it adequately investigated and took prompt and appropriate remedial action upon notice of the alleged hostile work environment; the employer has a duty to investigate and take prompt remedial action only if it has actual or constructive notice of the offensive environment. 3. Civil Rights — Sexual Harassment — Hostile Work Environment — Failure to Investigate Allegations. A failure to investigate allegations of sexual harassment based on a hostile work environment is not, in and of itself, a violation of the Civil Rights Act (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). Burkett, Cooper, Cooper & Woods (by Raymond R. Burkett and Arlene F. Woods), for the plaintiff. Honigman Miller Schwartz & Cohn (by Thomas E. Marshall), for Detroit Receiving Hospital, Kenneth Maly, Edward Thomas, Marjorie Lester, and Patrick Greaves. Before: Doctoroff, P.J., and McDonald and Brennan, JJ. Brennan, J. Plaintiff appeals as of right from a June 6, 1989, order granting summary disposition in favor of defendants pursuant to MCR 2.116(C) (8), (10). Plaintiff, an employee of defendant hospital, filed the present action against defendants alleging sexual harassment, negligent supervision, and negligent hiring after being sexually harassed by one of her supervisors at defendant hospital. We affirm. On appeal, plaintiff first argues that the trial court erred in refusing to consider her affidavit submitted in opposition to defendants’ motion for summary disposition. However, plaintiffs affidavit contradicted testimony she gave in a previous deposition. Parties may not create factual issues by merely asserting the contrary in an affidavit after giving damaging testimony in a deposition. Peterfish v Frantz, 168 Mich App 43, 54-55; 424 NW2d 25 (1988). Therefore, we find that the trial court did not err in this regard. Plaintiff next argues that the trial court erred in granting summary disposition to defendants where plaintiff stated a cause of action for sexual harassment. Plaintiffs claim was based on a hostile work environment. An employer may avoid liability for such a claim if it adequately investigated and took prompt and appropriate remedial action upon notice of the alleged hostile work environment. Eide v Kelsey-Hayes Co, 154 Mich App 142, 152; 397 NW2d 532 (1986), rev’d in part on other grounds 431 Mich 26; 427 NW2d 488 (1988). Plaintiff’s deposition testimony indicated that, upon receiving plaintiff’s first and only complaint regarding the sexual harassment by her supervisor, Desabee Meadows, defendant hospital immediately terminated Meadows’ employment. Therefore, we find that the trial court properly granted summary disposition on this basis. Plaintiff next argues that the lower court erred in granting summary disposition to defendants Lester, Maly, Greaves, and Thomas. Plaintiff alleged in her complaint that these individual defendants, specifically defendants Lester and Maly, were informed by plaintiff of her complaints of sexual harassment by Meadows but failed and refused to investigate the complaints. However, Michigan’s Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548 (101) et seq., is specific with regard to what constitutes a violation, and failure to investigate is not, in and of itself, a civil rights violation. Sumner v Goodyear Tire & Rubber Co, 427 Mich 505, 545; 398 NW2d 368 (1986). It has been used only as a formula for derivative liability against an employer whose employees have engaged in sexual harassment. Id. The employer has a duty to investigate and take prompt remedial action regarding claims of sexual harassment only if it has actual or constructive notice of the offensive environment. Eide, supra, p 152. As noted above, upon receiving plaintiff’s first and only complaint, regarding Meadows’ sexual harassment of plaintiff, defendant hospital immediately terminated Meadows’ employment. Therefore, we find that the trial court properly granted summary disposition with regard to this claim as well. Finally, plaintiff maintains that the trial court erred in granting defendant hospital’s motion for summary disposition regarding plaintiff’s negligent-hiring claim. We disagree. However, we find that the trial court reached the correct result for the wrong reason. DeWitt Twp v Clinton Co, 113 Mich App 709, 713; 319 NW2d 2 (1982). The trial court found that plaintiff failed to state a claim, citing Hersh v Kentfield Builders, Inc, 385 Mich 410, 412; 189 NW2d 286 (1971). However, we find that plaintiff’s claim is barred by the exclusive remedy provision of the Workers’ Disability Compensation Act. MCL 418.131; MSA 17.237 (131). The wdca bars claims brought by employees against their employer for injuries sustained in the course of employment unless the claim is one for an intentional tort. Radtke v Everett, 189 Mich App 346, 357; 471 NW2d 660 (1991); MCL 418.131; MSA 17.237 (131). An employer is deemed to have intended an injury if it had actual knowledge that an injury was certain to occur and wilfully disregarded that knowledge. Id. Here, plaintiff alleges that her employer acted negligently in hiring Desabee Meadows. Plaintiff does not allege that her employer acted intentionally, and therefore, her claim is barred. Compare Schutt v Lado, 138 Mich App 433, 437; 360 NW2d 214 (1984). See also Irvin Investors, Inc v Superior Court, 166 Ariz 113; 800 P2d 979 (1990). Affirmed.

RADTKE v EVERETT Docket No. 121611. Submitted November 7, 1990, at Grand Rapids. Decided May 20, 1991, at 9:15 a.m. Leave to appeal sought. Tamara J. Radtke brought an action in the Grand Traverse Circuit Court against Stuart B. Everett and Clarke-Everett Dog and Cat Hospital, P.C., claiming, on the basis of a single incident, sexual harassment in the workplace, constructive discharge from her employment, and assault and battery. The court, William R. Brown, J., granted the defendants summary disposition with respect to the sexual harassment and constructive discharge claims on the basis that a single act would not support a finding of sexual harassment within the meaning of the Civil Rights Act, and with respect to the assault and battery claim on the basis that it was precluded by the exclusive remedy provision of the Workers’ Disability Compensation Act. The plaintiff appealed. The Court of Appeals held: 1. Because a standard which views sexual harassment of a female from the perspective of a gender-neutral "reasonable person” has a tendency to have a male bias, claims by women of sex discrimination in the workplace as a result of sexual harassment should be viewed from the perspective of a "reasonable woman.” Under the reasonable woman standard, an actionable claim within the meaning of the Civil Rights Act for sex discrimination caused by sexual harassment in the workplace is stated where a woman alleges conduct of a sexual nature which a reasonable woman would consider to be sufficiently severe or pervasive to alter her conditions of employment by substantially interfering with her employment or to create an intimidating, hostile, or offensive employment environment. Under certain circumstances, the offensive nature may be so severe that a single incident will be sufficient to support a finding of sexual harassment. Because a jury might find that the claimed incident constituted sexual harassment, it was error for the trial court to grant summary disposition of the sexual harassment and constructive discharge claims. References Am Jur 2d, Job Discrimination § 804. See the Index to Annotations under Reasonableness; Sex Discrimination. 2. The exclusive remedy provision of the Workers’ Disability Compensation Act does not bar the plaintiffs assault and battery claim, because it was brought against Dr. Everett individually, rather than against the employer, Clarke-Everett Dog and Cat Hospital, P.C. Reversed and remanded. 1. Civil Rights — Sex Discrimination — Sexual Harassment — Reasonable Woman Standard — Civil Rights Act. In an action for sex discrimination by a woman pursuant to the Civil Rights Act because of sexual harassment, the offensiveness of the claimed conduct should be viewed from the perspective of a "reasonable woman” rather than from that of a "reasonable person,” i.e., the severity or pervasiveness of the claimed conduct should be viewed from the perspective of the actual victim rather than a hypothetical gender-neutral person (MCL 37.2103[h]; MSA 3.548[103][h]). 2. Civil Rights — Sex Discrimination — Sexual Harassment — Hostile Environmental Workplace — Single Incidents — Civil Rights Act. A woman states an actionable claim under the Civil Rights Act of sex discrimination caused by hostile-environment sexual harassment where she alleges conduct of a sexual nature that a reasonable woman would consider to be sufficiently severe or pervasive to alter the conditions of employment by substantially interfering with her employment or by creating an intimidating, hostile, or offensive employment environment; the required showing of the severity of the harassing conduct will vary inversely with the pervasiveness of the conduct; under some circumstances, a single incident may be sufficient to establish a claim of sex discrimination caused by hostile-environment sexual harassment (MCL 37.2103[h]; MSA 3.548[103] M>. Menmuir, Zimmerman, Kuhn & Bearup (by Mark D. Williams), for the plaintiff. Cunningham, Davison, Beeby, Rogers & Alward (by William M. Davison), for the defendants. Before: Neff, P.J., and Maher and Hood, JJ. Hood, J. Plaintiff appeals as of right from a circuit court order granting summary disposition in favor of defendants. Plaintiff’s complaint alleged sexual harassment in violation of the Michigan Civil Rights Act (count i), constructive discharge (count ii), and assault and battery (count hi). Counts i and ii were dismissed by the trial court pursuant to MCR 2.116(C)(10), and count m was dismissed pursuant to MCR 2.116(C)(8). We reverse. Plaintiff began working for defendant Clarke-Everett Dog and Cat Hospital, P.C., as an unregistered veterinary technician in January 1984. Her employment required her to work occasional weekends and holidays with one of the two veterinarians. Because of her personal schedule, plaintiff often worked those days with defendant Everett. That was the case on May 29,1988. That Sunday proved to be busy at the hospital; however, plaintiff and Everett managed to take a break late in the day. While plaintiff was relaxing on the couch in the employee lounge, Everett sat down next to her and placed his arm around her neck. When plaintiff tried to get up, Everett restrained her. After three attempts, plaintiff finally freed herself and sat forward on the couch. Everett proceeded to flatter plaintiff as he moved closer to her. Everett began caressing plaintiff’s back and arms, even after she had indicated her displeasure and unease with his advances. According to plaintiff, Everett continued to caress her back, while moving his hand toward her breasts. He then placed his hand behind her neck and brought his face toward plaintiff’s face in an attempt to kiss her. Plaintiff was able to push Everett’s face away, went across the room, and accused him of wanting to play a "nasty game.” Rattled by the incident, plaintiff requested that they go outside. She did so because they would then be in public. Although plaintiff stayed to finish her shift, she felt compelled to terminate her employment the next day, particularly because she was scheduled to work again with Everett. Plaintiff alleged that when she notified Dr. Clarke of Everett’s conduct, he took no remedial measures and told her that women like her had to watch themselves around men because of their cute, bubbly personalities. In addition to ending her employment, plaintiff immediately sought counseling for the adverse effect the incident had on her psychological well-being. In December 1988, plaintiff instituted this action, alleging that she was the victim of unlawful sexual harassment and assault and battery and that, because of the hostile work environment created by Everett’s sexual advances, her termination of employment constituted a constructive discharge. Defendants moved for summary disposition, claiming that a single incident is not sufiicient to state a cause of action for sexual harassment resulting from a hostile work environment. Accordingly, defendants argued for dismissal of count ii, because the constructive discharge claim was predicated on a deficient sexual harassment claim. Lastly, defendants moved for dismissal of count hi, alleging that the Workers’ Disability Compensation Act (wdca) barred plaintiff’s assault and battery claim. In granting defendants’ motion, the trial court determined that even accepting as true all of plaintiff’s allegations, her claim of sexual harassment and constructive discharge must fail. Relying on Langlois v McDonald’s Restaurants of Michigan, Inc, 149 Mich App 309; 385 NW2d 778 (1986), the trial court determined that a single act does not state a claim of hostile-environment sexual harassment. In addition, the court agreed with defendants that the wdca barred plaintiff’s assault and battery claim. i Plaintiff alleged that defendants violated §202 of the Michigan Civil Rights Act by discriminating against her on the basis of sex. The state Civil Rights Act defines this type of discrimination in § 103(h), MCL 37.2103(h); MSA 3.548(103)(h), which provides: Discrimination because of sex includes sexual harassment which means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature when: (i) Submission to such conduct or communication is made a term or condition either explicitly or implicitly to obtain employment.... (ii) Submission to or rejection of such conduct or communication by an individual is used as a factor in decisions affecting such individual’s employment .... (iii) Such 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. In her complaint, plaintiff alleges that Everett’s conduct substantially interfered with her employment and created a hostile work environment; therefore, we focus our analysis on the sufficiency of her claim under § 103(h)(iii). Michigan courts have frequently reviewed sexual harassment claims under the state Civil Rights Act with reference to the persuasive federal precedent developed under the analogous federal legislation, title VII of the Civil Rights Act of 1964. When examining claims of hostile-environment sexual harassment, the court may properly look to the guidelines promulgated by the Equal Employment Opportunity Commission. Meritor Savings Bank, FBS v Vinson, 477 US 57; 106 S Ct 2399; 91 L Ed 2d 49 (1986). The eeoc guidelines describe hostile-environment harassment as "conduct [which] has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.” 29 CFR 1604.11(a)(3). We note that the language of this guideline is nearly identical to that of § 103(h)(iii) of the state Civil Rights Act quoted above. Title VII affords employees the right to work in an environment that is free from discriminatory intimidation, insult, and ridicule. Meritor Savings Bank, 477 US 65. However, not all harassment affects a "term, condition, or privilege” of employment within the meaning of title VII. In order to maintain a claim under title VII, the sexual harassment must be sufficiently severe or pervasive to alter the conditions of the victim’s employment. Id. at 67. See also Henson v City of Dundee, 682 F2d 897, 904 (CA 11, 1982). In Langlois, supra, this Court determined that the single incident experienced by the plaintiff was not sufficiently severe and pervasive to constitute the substantial interference required under the state Civil Rights Act. Defendants urge us to follow Langlois and the cases cited therein, and conclude that a single incident is not sufficient to state a claim of hostile-environment harassment under the state Civil Rights Act. In addition, defendants ask us to apply the "reasonable person” standard announced in Rabidue v Osceola Refining Co, 805 F2d 611 (CA 6, 1986), from which the totality of the circumstances should be viewed. We do not agree with the standards or principles announced in Rabidue and Langlois, and we choose not to follow them. In Rabidue, the Sixth Circuit Court of Appeals declined to find that a hostile environment was created where there was a display of posters of naked and partially dressed women and where male employees customarily referred to women by derogatory sexual names, referred to the plaintiff as "fat ass,” and specifically stated that "all that bitch needs is a good lay.” Over a strong dissent, the majority concluded that the remarks and posters did not seriously affect plaintiff’s psychological well-being. The court stated that the trier of facts was required to "adopt the perspective of a reasonable person’s reaction to a similar environment under essentially like or similar circumstances.” 805 F2d 620. A plaintiff could prevail only if a hypothetical reasonable person’s work performance was interfered with and the conduct seriously affected the psychological well-being of the reasonable employee. Id. Among the circumstances to be considered by the factfinder is "the lexicon of obscenity that pervaded the environment of the workplace both before and after the plaintiff’s introduction into its environs.” Id. However, we believe that in a sexual harassment case involving a woman, the proper perspective to view the offensive conduct from is that of the "reasonable woman,” not that of the "reasonable person.” Thus, the severity or pervasiveness of the conduct should be viewed from the perspective of the victim, not that of a hypothetical employee irrespective of gender. Ellison v Brady, 924 F2d 872, 878-879 (CA 9, 1991); King v Bd of Regents of University of Wisconsin System, 898 F2d 533, 537 (CA 7, 1990). We believe that a standard which views harassing conduct from the "reasonable person” perspective has the tendency to be male-biased and runs the risk of reinforcing the prevailing level of discrimination which the state Civil Rights Act and title VII were designed to eliminate. In such a case, harassers could continue to discriminate merely because such harassment was the norm at the workplace. See Ellison, supra at 878; Abrams, Gender discrimination and the transformation of workplace norms, 42 Vand L Rev 1183 (1989). We believe that the adoption of the reasonable person standard, coupled with the consideration of the level of "obscenity” that pervaded the workplace before and after plaintiff’s arrival, strips the provisions of the state Civil Rights Act of their effect. In essence, the principles in Rabidue prevent the state Civil Rights Act from achieving its purpose of eliminating sexual harassment from the workplace and ensuring employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult. Accordingly, we adopt the "reasonable woman” perspective. This standard, which ensures a gender-conscious review of sexual harassment, will help enable women to participate in the work force on an equal footing with men, and prevent the trivializing of the effects of sexual harassment that has previously occurred under the gender-neutral "reasonable person” standard. Ellison, supra at 879, 880. By adopting a gender-conscious standard that views the harassment from the victim’s perspective, it is important to analyze and understand the different perspectives of men and women. See, e.g., Yates v Arco Corp, 819 F2d 630, 637, n 2 (CA 6, 1987); Lipsett v Univ of Puerto Rico, 864 F2d 881, 898 (CA 1, 1988); Abrams, Gender discrimination and the transformation of workplace norms, 42 Vand L Rev 1183 (1989). For example, because of their historical vulnerability in the work force, women are more likely to regard a verbal or physical sexual encounter as a coercive and degrading reminder that the woman involved is viewed more as an object of sexual desire than as a credible coworker deserving of respect. Such treatment can prevent women from feeling, and others from perceiving them, as equal in the workplace. We hold, therefore, that a female plaintiff states an actionable claim for sex discrimination caused by hostile-environment sexual harassment under the state Civil Rights Act where she alleges conduct of a sexual nature that a reasonable woman would consider to be sufficiently severe or pervasive to alter the conditions of employment by substantially interfering with her employment or by creating an intimidating, hostile, or offensive employment environment. Under this standard, the required showing of the severity of the harassing conduct will vary inversely with the pervasiveness of the conduct under the totality of the circumstances. Ellison, supra at 878; King, supra at 537. Accordingly, we hold that a single incident could be sufficiently severe under some circumstances to support a finding that a reasonable woman’s employment was substantially interfered with or that an intimidating, hostile, or offensive employment environment had been created. We believe that in some situations the mere presence of the harasser who has engaged in particularly offensive conduct can create a hostile work environment. We therefore reject the conclusions in Langlois that a single incident is insufficient, as a matter of law, to state a claim for hostile-environment sexual harassment. We must now turn to the specific case at hand and determine whether plaintiff’s complaint was properly dismissed. We are presented with a situation in which plaintiff, a married woman, often worked alone with defendant Everett, who is also married, in a small veterinarian hospital in a relatively small community. The acts complained of included repeated physical contact and restraint, verbal remarks of a sexual nature, and an admitted attempt for a romantic kiss. Further, when she informed Dr. Clarke of the incident, no remedial measures were taken, and plaintiff was "warned” that women like her had to be careful around men because of their cute, bubbly personalities. Under the totality of the circumstances, we cannot say as a matter of law that plaintiff’s reaction was idiosyncratic or hypersensitive, particularly where she was scheduled to work with Everett the very next day. Consequently, we reverse the trial court’s grant of summary disposition to defendants on count i of plaintiff’s complaint. Accordingly, count n of plaintiff’s complaint, which alleged constructive discharge arising from the creation of a hostile work environment and from Dr. Clarke’s comment and failure to take remedial measures, was likewise improperly granted and is reversed. See Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785, 796; 369 NW2d 223 (1985). ii Plaintiff’s complaint also alleged assault and battery. The trial court dismissed this claim, finding that it was barred by the Workers’ Disability Compensation Act. On appeal, plaintiff argues that the dismissal was improper where the court did not provide her an opportunity to amend her complaint as provided in MCR 2.116(I)(5) to allege that defendant intended her injuries. We find that summary disposition was improperly granted as a result of the trial court’s erroneous application of the exclusive remedy provision of the wdca, MCL 418.131; MSA 17.237(131). The wdca applies to bar claims brought by employees against their employers for injuries sustained in the course of work, unless such claims fall within the intentional tort exception to the exclusive remedy provision of the act. However, we have reviewed plaintiff’s complaint and note that the claim of assault and battery was brought against defendant Everett individually, and not against plaintiff’s employer, defendant Clarke-Everett Dog and Cat Hospital. Plaintiff is not suing her employer for the assault and battery, but rather the perpetrator, defendant Everett. The wdca therefore is inapplicable to this claim and does not operate to bar plaintiffs recovery. Accordingly, we reverse the grant of summary disposition of this claim. Reversed and remanded for proceedings consistent with this opinion. MCL 37.2101 et seq.; MSA 38.548(101) et seq. Plaintiffs fourth count, which alleged a violation of the Employee Right to Know Act, MCL 423.501 et seq.; MSA 17.16(1) et seq., was dismissed with prejudice by stipulation of the parties and is not a subject of this appeal. Defendant Everett admitted that he did attempt to kiss plaintiff. In Langlois, the plaintiff based her claim of hostile-work-environment sexual harassment on a single incident that occurred while she worked at one of the defendant’s fast-food restaurants. The plaintiff was instructed by "first assistant” Ivan Forney to take a break, and he whispered to her, "Hi, baby, let’s have some fun.” Once on break, Forney again asked her if she wanted to "have some fun,” and moved his hips back and forth in a crude manner. He then placed his hand on her breast and grabbed her buttocks. The plaintiff then left the crewroo