Retaliation Cases

Richard Pontremoli vs. Spaulding Rehabilitation Hospital. No. 99-P-394. Suffolk. November 14, 2000. - May 23, 2001. Present: Porada, Lenk, & Duffly, JJ. Practice, Civil, Complaint, Motion to dismiss. Employment, Discrimination, Termination, Retaliation. A complaint alleging that the plaintiff’s employer terminated him in retaliation for his refusal to falsely implicate a co-worker in a purported workplace theft stated a claim for which relief could be granted, where the facts alleged, if believed, demonstrated activity that was covered by G. L. c. 15 IB, and subjected the plaintiff to an adverse employment action supporting a claim for retaliatory termination under G. L. c. 151B, § 4(4) and (4A). [624-626] Civil action commenced in the Superior Court Department on May 1, 1998. The case was heard by John C. Cratsley, J., on a motion to dismiss. William F. Green for the plaintiff. John J, Reardon for the defendant. In the caption of the complaint, the defendant is further identified as “[a] [m]ajar [a]ffiliate of Partners Health Care Systems, Inc.” The body of the complaint alleges on information and belief that the latter corporation is the sole owner of Spaulding Rehabilitation Hospital. Duffly, J. Richard Pontremoli was fired in October, 1996, by Spaulding Rehabilitation Hospital (hospital), where he had worked as a cook since 1989. Pontremoli’s complaint alleges that the hospital terminated him in retaliation for his refusal to falsely implicate a co-worker in a purported workplace theft, and thus violated G. L. c. 151B, § 4. The hospital’s motion to dismiss the complaint, for failing to allege protected activity that was linked to, or that occurred prior to, his termination, was allowed by a judge of the Superior Court. Pontremoli appeals from the dismissal of his complaint and the denial of his motion for reconsideration. We reverse. Background. We first relate the details of Pontremoli’s complaint, which generally asserts that he was terminated in connection with co-worker George Motta’s claims of discrimination and retaliation by the hospital. The complaint states that on August 9, 1995, Motta filed a discrimination claim with the Massachusetts Commission Against Discrimination (MCAD) alleging that he had been denied a promotion by the hospital because he is Hispanic. In subsequent claims before the MCAD, Motta averred retaliation by the hospital because of the filing of his discrimination complaint and complained of onerous conduct against him by Scott Dánico, the hospital’s food service director. Pontremoli’s complaint further alleged that Pontremoli was an “honest and dedicated employee” who, during his period of employment, had performed his duties in an exemplary manner (as evidenced by consistently positive performance reviews and by a promotion from line cook to first cook) and was aware of Motta’s actions against the hospital. It was “common knowledge” in the food service department that Motta had filed the claims against the hospital and that Dánico had been openly hostile toward Motta after doing so. On October 12, 1996, Pontremoli and Motta left work together to socialize at a local establishment after their shift. Pontremoli carried some cans of soda that he had purchased prior to work; Motta carried dirty laundry from work in an old cocoa box. On the way to Pontremoli’s car, he and Motta were approached by a hospital security guard who inquired whether they were allowed to take the items they were carrying. Pontremoli responded that the items were their own property, and the security guard told them that they were free to go. The guard did not inspect what they were carrying, ask them to return to the hospital or accuse them of theft. Later that day, Dánico called Pontremoli at home and informed him that he was being suspended from his job for the theft of soda from the hospital. Pontremoli denied having stolen anything. In a subsequent meeting, as part of the hospital’s “investigatory” process concerning the theft allegation, Pontremoli reiterated that he had purchased the soda prior to work. He also stated that Motta had been carrying dirty laundry in the cocoa box on the date in question. On October 21, 1996, Pontremoli was terminated for theft. He then filed a grievance, pursuant to the hospital’s internal procedures, seeking reversal of his termination, and thereafter appeared at several grievance hearings. During these proceedings Dánico, on one or two occasions, asked to speak to Pontremoli “off the record.” On one of these occasions, Dánico and Kathleen Smith, Vice President of Human Resources, were both present when Dánico asked to speak with Pontremoli alone, whereupon Smith left the room. He then asked Pontremoli if “there is anything you would like to say to make me change my mind.” Pontremoli told Dánico that he could only reiterate that he was not a thief and had not stolen soda from the hospital. Following the grievance proceeding, Pontremoli’s termination was affirmed. Failure to state a claim. When evaluating the legal sufficiency of a complaint under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), it is well settled that (1) the plaintiff’s factual allegations must be taken as true; and (2) all reasonable inferences that can be drawn therefrom must be made in favor of the plaintiff. See Eyal v. Helen Bdcst. Corp., 411 Mass. 426, 429 (1991). “It is familiar doctrine that a complaint can be dismissed for failure to state a claim for which relief can be granted only if a reading of the complaint establishes beyond doubt that the facts alleged ... do not add up to a cause of action which the law recognizes.” Municipal Light Co. of Ashburnham v. Commonwealth, 34 Mass. App. Ct. 162, 166, cert. denied, 510 U.S. 866 (1993). See Nader v. Citron, 372 Mass. 96, 98 (1977). “Nor should a complaint be dismissed because it asserts a new theory of liability . . . .” New England Insulation Co. v. General Dynamics Corp., 26 Mass. App. Ct. 28, 30 (1988). Pontremoli’s complaint seeks relief under subsection 4A of c. 151B, § 4, which provides that it is unlawful “[f]or any person to coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter,[ ] or to coerce, intimidate, threaten or interfere with such other person for having aided or encouraged any other person in the exercise or enjoyment of any such right granted or protected by this chapter.” G. L. c. 151B, § 4(4A), inserted by St. 1989, c. 722, § 14. A claim based on these provisions is commonly called a “retaliation claim,” even though the statute does not use this term. See Bain v. Springfield, 424 Mass. 758, 765 (1997). “To succeed on claims of retaliatory discharge and retaliatory harassment, a plaintiff must establish the basic fact that he was subjected to an adverse employment action because of his protected activity” (emphasis original). Lewis v. Gillette, Co., 22 F.3d 22, 24 (1st Cir. 1994). Compare MacCormack v. Boston Edison Co., 423 Mass. 652, 662 (1996). Based on facts alleged by Pontremoli, reasonable inferences may be drawn that termination proceedings were instituted against Motta and Pontremoli because the hospital was looking for a pretext to fire Motta. The opportunity arose when both were seen carrying, in full view, an old cocoa box and cans of soda, after Motta had filed discrimination and retaliation claims against the hospital. It may be inferred that the security guard, who questioned them but did not ask to look into the box, immediately reported these facts to Dánico or to someone who reported to Dánico. Dánico contacted Pontremoli by telephone that same afternoon and suspended him. Although Pontremoli told Dánico that the soda was his, Pontremoli, a good and honest worker with an unblemished record, was terminated. Dánico’s later invitation to say something that would “change [his] mind,” during at least one and perhaps two of the grievance proceedings, about an event that on its face did not require prolonged discussion once explained, and that served no legitimate purpose by being “off the record,” permits the reasonable inference, favorable to Pontremoli, that all along Dánico’s actions were calculated to intimidate and coerce Pontremoli into falsely implicating Motta. Pontremoli’s persistent support of Motta’s claims of innocence negated the hospital’s nondiscriminatory reason for terminating Motta. In this way, Pontremoli aided and encouraged Motta’s right to be free from retaliation by the hospital. If believed, the alleged facts demonstrate activity that was covered by G. L. c. 151B, and subjected Pontremoli to an adverse employment action supporting a claim for retaliatory termination under subsections 4 and 4A of G. L. c. 151B, § 4. Compare Melnychenko v. 84 Lumber Co., 424 Mass. 285, 295 (1997). We reverse the judgment of dismissal. So ordered. This chapter makes it unlawful for an employer to discriminate against an employee on the basis of, among other classifications, “race, color . . . national origin ... or ancestry,” including “discriminat[ion] against such individual in compensation or in terms, conditions or privileges of employment . . . .” G. L. c. 151B, § 4(1), as amended through St. 1989, c. 516, § 4. The judge pointed out below, and the hospital echoes on appeal, that the termination preceded, rather than followed, Dánico’s alleged invitation to Pontremoli to implicate Motta in the theft. Thus, the theory goes, there was no retaliation because the termination did not result from Pontremoli’s response to the invitation (i.e., his refusal to turn on Motta). The theory does not persuade us because Pontremoli’s retention, it may be inferred, was contingent upon his cooperation with his employer. The required “adverse employment action [occurring] because of [Pontremoli’s] protected activity,” Lewis v. Gillette, Co., 22 F.3d at 24, was not the initial termination but the subsequent decision affirming it. The facts as alleged could also support a claim under subsection 4 of G. L. c. 151B, § 4, which prohibits retaliation against a “person because he has opposed any practices forbidden under this chapter.” See, for example, subsection 5 of G. L. c. 15IB, § 4, providing that is an unlawful practice “[f]or . . . an employer or an employee ... to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so.” “It is not fatal to the complaint that [the statute in question] was not specifically pleaded. ... ‘[A] complaint is not subject to dismissal if it would support relief on any theory of law’ (emphasis in original). Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 89 (1979). Nor does the failure of the parties to address the statute prohibit us from considering it,” Ourfalian v. Aro Mfg. Co., 31 Mass. App. Ct. 294, 298 n.5 (1991), although we need not do so, see Foley v. Lowell Sun Publishing Co., 404 Mass. 9, 11 (1989).

ST CLAIR COUNTY EDUCATION ASSOCIATION v ST CLAIR COUNTY INTERMEDIATE SCHOOL DISTRICT Docket No. 218135. Submitted August 8, 2000, at Lansing. Decided May 1, 2001, at 9:00 AM. The St. Clair County Education Association (the union) brought an unfair labor practice charge against the St. Clair County Intermediate School District (isd), alleging that the ISD violated subsection 10(l)(a) of the public employment relations act (pera), MCL 423.210(l)(a), by interfering with a person’s rights to join the union and to seek the union’s assistance in obtaining a salary increase. A Michigan Employment Relations Commission (MERC) hearing referee agreed with the union and issued a decision and recommended order to that effect. The merc thereafter issued a decision and order adopting the hearing referee’s decision and recommended order. The union also brought an unfair labor practice charge against the ISD and the Academy for Plastics Manufacturing Technology (the academy), a public school academy formed by the isd, alleging violation of subsection 10(l)(e) of the pera, MCL 423.210(l)(e), as a result of the failure to bargain with the union with regard to the union’s request to represent the employees of the academy in collective bargaining. A merc hearing referee issued a decision and recommended order, finding no violation of subsection 10(l)(e) of the PERA. The referee determined that the academy and the ISD were not joint employers of the academy’s employees and recommended dismissal of the union’s petition for unit clarification. The merc adopted the hearing referee’s decision and recommended order in the same decision and order that addressed the union’s unfair labor practice charge regarding the alleged violation of subsection 10(l)(a) of the pera. The merc also denied the union’s motion to reopen the record with regard to the alleged violation of subsection 10(l)(e). The isd appealed from the decision and order with regard to the alleged violation of subsection 10(l)(a) and the union cross appealed from the decision and order regarding the alleged violation of subsection 10(l)(e), the dismissal of the petition for unit clarification, and the denial of the motion to reopen the record. The Court of Appeals held,: The decision and order must be affirmed with regard to both the isd’s appeal and the union’s cross appeal. 1. The hearing referee and the merc properly found that the isd’s conduct violated subsection 10(l)(a) when the isd attempted to coerce an isd employee while the employee was engaged in the exercise of her rights guaranteed in § 9 of the pera, MCL 423.209. 2. The merc correctly found that the isd and the academy did not violate subsection 10(l)(e) in refusing to bargain with the union with regard to the academy’s employees on the basis that the ISD and the academy did not jointly employ the academy’s employees. The merc correctly dismissed the union’s petition for unit clarification. 3. The additional evidence that the union sought to introduce by reopening the record would not prove that the isd and the academy were joint employers of the academy’s employees and thus would not have had any effect on the administrative proceedings. The merc did not err in denying the motion to reopen the record. ■Affirmed. Labor Relations — Collective Bargaining — Joint-Employer Doctrine. The joint-employer doctrine may be employed to enforce a labor agreement entered into through collective bargaining against a party that did not sign the agreement; characteristics to be examined to determine whether a party that did not sign the agreement exhibits the characteristics of an employer and may be deemed the employer under the agreement include the party’s power to select, engage, or dismiss the employees, the party’s power to control the employees’ conduct, and the party’s payment of the employees’ wages. Amberg, McNenly, Firestone and Lee, P.C. (by Joseph H. Firestone), for the St. Clair County Education Association. Scott C. Moeller, for the St. Clair County Intermediate School District. Fletcher DeGrow, P.C. (by Gary A. Fletcher and John D. Tomlinson), for the Academy for Plastics Manufacturing Technology. Before: M. J. Kelly, P.J., and Whitbeck and Collins, JJ. Whitbeck, J. The St. Clair Intermediate School District (isd) appeals as of right and challenges the decision of the Michigan Employment Relations Commission (MERC) to affirm one of two unfair labor practice charges brought by the St. Clair County Education Association (the union). The union cross appeals the merc’s decision to dismiss the second unfair labor practice charge, its petition for unit clarification, and its motion to reopen the record. We affirm the MERC decision with regard to the appeal and the cross appeal. I. BASIC FACTS AND PROCEDURAL HISTORY A. JANE JOHNSON’S UNFAIR LABOR PRACTICE CHARGE Jane Johnson has been a registered nurse at the ISD’s Woodland Development Center, a center for mentally and physically impaired students, for approximately seventeen years. She is the only registered nurse the ISD employs. Johnson repeatedly sought to have her position included among the positions for which the union would bargain in contract negotiations. The union shared Johnson’s goal of having her position added to the bargaining unit. The union’s efforts to bargain on this issue were, however, unsuccessful. According to isd Superintendent Joe Caimi, several years ago Johnson had asked him for teacher’s pay, but he denied her request. Johnson was always paid the same salary as teachers in the bargaining unit and had received all across-the-board pay increases that teachers in the unit received. However, Johnson, whose pay was equivalent to a teacher at step three, received no step increases in pay. Apparently, if Johnson had received these step pay increases, she would be paid at least $16,000 more a year. In May 1997, the union and the isd began negotiating a new collective bargaining agreement. The union presented its initial proposals to the isd, including a proposal to bring Johnson’s nursing position into the bargaining unit. Shortly thereafter, Caimi discussed the proposal with Janice Frederick, the isd’s director of special education and Johnson’s supervisor. Caimi assumed that Johnson wanted to join the bargaining unit because she believed that unit membership would bring her a teacher’s pay. Caimi told Frederick that Johnson needed to know that this was not necessarily true; Caimi evidently wanted to make sure that “no one was deluded into thinking’’ that the ISD was going to agree to pay Johnson the same salary as a teacher. Caimi also said that “if it became an issue,” the isd might have to terminate Johnson’s position and contract for services with a local hospital. Caimi asked Frederick to meet with Johnson to convey this information. According to Caimi and Frederick, there was no discussion between them about Caimi’s opinion of unions. In late May 1997, Frederick approached Kenneth Adams, who was then the president of the union. According to Adams, Frederick told him that Caimi said that if Johnson’s position were included in the bargaining unit, it would be “jobbed out” and that Johnson would be laid off. However, Frederick said, she told Adams that if Johnson were successful in her attempt to be admitted to the union and receive a teacher’s pay, her wage would be out of the range for registered nurses in the county and she might “place herself out of a position.” On the same day, Frederick also spoke directly with Johnson. According to Johnson, Frederick said that if Johnson continued to “pursue union membership” there was a possibility that she would be released and replaced. Johnson also claimed that Frederick stated that Caimi detested unions and that there was “no way in hell that he was going to allow one more member into the union.” Frederick, however, said that she told Johnson that if she thought union membership would bring her teachers’ pay, that this was a misperception and that her pay would be out of line with what other nurses make in the county and we couldn’t justify that sort of position for that pay and may need to terminate the position and contract it out. Frederick denied saying anything to Johnson about Caimi’s opinion of unions. The union and the isd finally agreed to a new contract that did not cover Johnson or her position. The union subsequently brought an unfair labor practice charge against the isd, alleging that the ISD violated subsection 10(l)(a) of the public employment relations act (pera) by telling Johnson that she would lose her job if she joined the union. Subsection 10(l)(a) of the pera makes it “unlawful for a public employer or an officer or agent of a public employer . . . to interfere with, restrain or coerce public employees in the exercise of their rights guaranteed in section 9.” In turn, § 9 of the pera states: It shall be lawful for public employees to organize together or to form, join or assist in labor organizations, to engage in lawful concerted activities for the purpose of collective negotiation or bargaining or other mutual aid and protection, or to negotiate or bargain collectively with their public employers through representatives of their own free choice. After a hearing, the merc hearing referee determined that the isd violated pera subsection 10(l)(a) by interfering with Johnson’s rights to join a union and to seek the union’s assistance for a salary increase when Frederick told Johnson that she would lose her job if she joined the union. The hearing referee found that Johnson was engaged in protected activity when she sought to become a member of the bargaining unit and when she sought the union’s assistance in obtaining a wage increase. The hearing referee did not give credit to Johnson’s version of the conversation about Caimi’s negative view of unions, but concluded that, even if Frederick’s testimony regarding her conversation with Johnson were believable, her statements to Johnson constituted “an unlawful threat.” The hearing referee then commented: The threat to terminate Johnson’s position was clearly conveyed. Although the threat to eliminate Johnson’s position is tied to her receiving teachers’ pay, not to her becoming part of the bargaining unit, Frederick made no effort to distinguish the two. The message which Caimi wanted Frederick to convey, and the message which apparently got through to both Johnson and Adams, was the same: stop pushing the issue of Johnson’s inclusion in the unit/salary increase, or Johnson will end up without a job. The hearing referee recommended that the ISD be ordered to do the following: 1. Cease and desist from interfering with its employees’ exercise of their rights under Section 9 of pera by threatening to subcontract their positions if they form, join or assist in labor organizations, or engage in lawful concerted activities for the purpose of collective negotiation or bargaining or other mutual aid and protection. 2. Post the attached notice [promising that the isd will not interfere with employees engaging in protected activities under the pera or threaten that they will lose their jobs if they join the union] to employees in places on the Respondent’s premises where notices are commonly displayed for a period of 30 consecutive days. In late February 1999, the MERC issued a decision and order adopting the hearing referee’s decision and recommended order concerning the isd’s treatment of Johnson, stating: After carefully reviewing the record as a whole, we find that the totality of the evidence supports the [hearing referee’s] conclusion that the statement constituted a threat in violation of Section 10(l)(a) of pera. The clear import of the statement is that Johnson's position would likely be eliminated if she continued her efforts to become a member of the Union and seek the Union’s assistance in obtaining a salary increase. As noted by the [hearing referee], there is no evidence in the record to suggest that the Employer would be forced to terminate Johnson if she were to receive the same salary as a teacher, or that circumstances outside the isd’s control might cause the Employer to eliminate Johnson if her position was in fact included in the unit. See NLRB v River Togs, Inc, 382 F2d 198 (CA2, 1967). B. THE ACADEMY’S UNFAIR LABOR PRACTICE CHARGE The union’s cross appeal involves the isd’s decisions to form a public school academy for its defunct plastics manufacturing program and to prevent the union from bargaining on behalf of the employees at that public school academy. The isd created the plastics program in the 1980s and operated it at its Technical Educational Center (the tec) until 1992, when the isd discontinued the program because it could not produce graduates who were sufficiently trained to secure jobs in the industry. In early 1996, representatives of local plastics manufacturing companies approached the ISD about reinstating the program. The representatives informed the isd that they needed well-trained employees and were willing to commit time and money to work with the ISD to create a program that would achieve this goal. Caimi told the representatives that if they were interested in starting a plastics program, they should consider organizing a public school academy under the relevant part of the Revised School Code. In March 1996, the representatives from the plastics manufacturers submitted an application to the ISD seeking to establish a public school academy. The representatives and the ISD subsequently drafted a contract to create the Academy for Plastics Manufacturing Technology (the academy). In November 1996, the isd submitted the contract between the isd and the academy, along with supporting documentation, to the Michigan Department of Education for approval and authorization of state aid payment. The union, however, objected to the way the contract between the isd and the academy dealt with personnel. In terms of hiring personnel, the contract stated in pertinent part: All persons who perform services for the Academy shall be “at-will” employees or volunteers of the Academy. The District agrees that the Academy may select its personnel directly without prior authorization from the District, subject to compliance with all applicable federal and Michigan rules and regulations, including, without limitation, requirements concerning the recruitment of applicants and the use of background and criminal checks. The Academy shall inform the District’s Superintendent or designee of all personnel selected in order that their hiring may be approved by the District in accordance with Section 516 of the Act. Such approval shall not be unreasonably withheld. It is the intent of the parties hereto not to create a joint-employer relationship. The Academy may terminate the employment of any personnel so long as such employees are not terminated for constitutionally impermissible reasons or reasons prohibited by Applicable Law. All teachers and employees required to the certified, authorized or permitted if employed in a school district as defined in the Act, shall be required to be certified, authorized or permitted by the Academy as well, all in compliance with Part 22 of the Act. According to the referee’s findings, the contract between the ISD and the academy also set forth a variety of personnel policies for the academy, including: (1) when the academy makes personnel decisions, it must comply with all state and federal laws and the terms of the contract; (2) the academy must make all employment decisions, including prescribing employment duties and determining compensation and other benefits; (3) the academy has the final authority on all disciplinary matters, but could designate an individual or entity to perform the disciplinary functions; (4) the academy must provide the ISD with a quarterly report detailing its progress, policy development, student attendance and discipline information, and personnel matters; (5) the academy has the authority to design and implement its educational program, curriculum, and content standards consistent with the requirements that apply to area vocational-technical education programs; (6) the academy must adopt and enforce its own attendance policies, which must accommodate the attendance policies of the ISD and its component districts in a manner that permits the local districts to comply with state compulsory attendance laws, including day and hour requirements; (7) the academy must adopt and enforce its own student conduct policies, policies concerning student health and welfare, and policies governing work-based instruction; and (8) the academy has the authority to discipline students, but the academy board must make any disciplinary decision involving a suspension of ten or more days. Subsection 7(e) of the contract stated in part: The Academy shall be responsible for its own operations within the limitations of any funding provided through the District as fiscal agent to the Academy and other revenues derived by the Academy consistent with law, and shall have authority to independently exercise, also consistent with applicable law, the following powers: contract for goods and services; prepare a budget; select and direct personnel, evaluate their performance and determine their compensation and continued employment; procure insurance; own or lease facilities for school purposes; purchase, lease or rent furniture, equipment and supplies; and accept and expend gifts, donations or grants of any kind in accordance with such conditions prescribed by the donor as are consistent with law and all other powers provided by law, not contrary to any of the terms of this Contract. The District shall be given written notice of all accepted gifts, donations and grants, and any condition thereof, within ten (10) business days of receipt. As the hearing referee explained: As provided by statute, the isd is the fiscal agent for the Academy and has general oversight of the Academy’s fiscal status. The academy must submit to the isd a copy of its annual budget and a monthly revenue and expenditure report. The Academy receives state aid calculated on a per pupil basis, and has also obtained grants. The Academy pays the isd for a variety of business and administrative services the isd provides to it. The isd also pays the Academy for “educational services,” i.e., plastic manufacturing and metal machining instruction provided to students of the isd. The initial board of trustees of the academy consisted of five representatives from different local plastics manufacturing companies, including three chief operating officers. Under the articles of incorporation, the ISD could increase the number of trustees to a maximum of nine individuals. The articles of incorporation required the academy to submit a list of nominees for a trustee position to the isd, the district then had the task of appointing the new trustee from that list. Either the board of the isd or the board of the academy could remove a trustee by a two-thirds vote. In late 1996, the academy began its operations at the TEC facility with one instructor and six students. Pursuant to the contract between the academy and the isd, the academy hired the instructor, who did not become part of the union’s bargaining unit. Under the service contract attached to the main contract, the ISD provided the academy with a range of services and the academy reimbursed the ISD for those services. Fred Stanley oversaw operations at the academy and also became its director. In early 1997, the isd offered to transfer its existing metal machine tool program to the academy. The ISD told the academy that the academy would continue to control its own membership, set policy, and hire and direct its own staff. The academy accepted the proposal. Accordingly, the isd and the academy amended the existing contract to include the metal machine tool program. In late May 1997,

BARRETT v KIRTLAND COMMUNITY COLLEGE Docket No. 217040. Submitted October 17, 2000, at Lansing. Decided April 10, 2001, at 9:00 AM. Leave to appeal sought. Brent Barrett brought an action in the Roscommon Circuit Court against Kirtland Community College, alleging, among other things, breach of contract and retaliation that violated the Civil Rights Act (cra), MCL 37.2101 et seq., after his employment at the college was terminated. The plaintiff presented evidence at a jury trial that his employment was terminated before the expiration of a one-year employment contract and after he lodged with the president of the college and with the Michigan Department of Civil Rights complaints concerning his treatment by an immediate supervisor who discovered that the plaintiff was romantically involved with a college employee in whom the supervisor had expressed a romantic interest. The defendant presented evidence that the plaintiff was discharged for insubordination and for abandoning his position. The jury rendered a verdict in favor of the plaintiff with respect to the claims of breach of contract and retaliation under the cra. Damages were awarded to the plaintiff by the jury on the retaliation claim and, pursuant to the parties’ agreement, by the trial court, Michael J. Matuzak, X, on the breach of contract claim. The trial court denied the defendant’s motion for judgment notwithstanding the verdict or for a new trial, and awarded costs and attorney fees to the plaintiff with respect to the retaliation claim. The defendant appealed. The Court of Appeals held: The trial court erred in denying the defendant’s motion for judgment notwithstanding the verdict with respect to the claim of retaliation, but did not err in denying the defendant’s motion for judgment notwithstanding the verdict or for a new trial with respect to the claim of breach of contract. The judgment for the plaintiff on the retaliation claim must be reversed and the award of attorney fees and costs in connection with that claim must be vacated. On remand, the trial court shall enter a judgment for the defendant with respect to the retaliation claim. 1. A plaintiff seeking to establish unlawful employment-related retaliation under subsection 701(a) of the CRA, MCL 37.2701(a), must show, among other things, that the plaintiff’s participation in activity protected by the cra was a significant factor in the adverse employment action taken by the defendant. Here, although the plaintiffs filings of complaints with the Department of Civil Rights constituted protected activity, the plaintiff cannot establish a causal connection between the filings and the termination of his employment in view of evidence indicating that, before the plaintiff filed the complaints, the president of the college had already considered and recommended to the board of trustees that the plaintiff be fired for not accepting direction and responsibility and for having a poor attitude. 2. The plaintiff, in complaining to the president of the college about the supervisor’s treatment of the plaintiff based on romantic jealously, did not make a charge under the CRA or oppose a violation of the CRA such that the plaintiff can establish that the defendant retaliated against him for making a charge or opposing a violation. The plaintiff did not make a charge under the cra because he did not raise a specter of a claim of unlawful gender discrimination or sexual harassment by the supervisor when he complained of the way tire supervisor treated him after the supervisor learned of the plaintiff’s romantic involvement with the college employee. The plaintiff did not oppose a violation of the CRA in complaining about the supervisor’s treatment because that treatment, being devoid of gender-based discrimination or sexual harassment, did not constitute “discrimination because of sex” under the cra. 3. The defendant, in reporting to the police that the plaintiff had taken items owned by the college after his employment was terminated, did not retaliate against the plaintiff for filing complaints with the Department of Civil Rights. A causal connection between the plaintiffs filing of complaints and the defendant’s reporting to the police is lacking because the plaintiff acknowledged that he took college-owned property and because of the defendant’s interest in recovering its properly. 4. The trial court did not abuse its discretion in excluding evidence of several incidents of the plaintiff’s work-related misconduct. The decision to exclude such evidence was not palpably and grossly violative of fact and logic, given that the trial court correctly concluded that the evidence would be a waste of time and would likely confuse the jurors because the evidence that was admitted included enough evidence of the plaintiff’s conduct to allow the jury to infer that the plaintiff was fired for poor job performance and insubordination. Affirmed in part, reversed in part, and remanded. 1. Civil Eights — Civil Rights Act — Employment — Retaliation. A plaintiff seeking to establish a prima facie case of unlawful employment-related retaliation under the Civil Rights Act must show that the plaintiff engaged in a protected activity, that this was known by the defendant, that the defendant took an employment action adverse to the plaintiff, and that the plaintiffs participation in protected activity was a significant factor in the defendant’s adverse employment action (MCL 37.2701[a]). 2. Civil Rights — Civil Rights Act — Employment — Discrimination Because op Sex. Employment discrimination because of sex, as proscribed by the Civil Rights Act, is limited to instances of gender-based discrimination or instances where the employee is required to submit to sexually-based harassment (MCL 37.2103[i], 37.2201[d], 37.2202[1]). Robert J. Krwpka and Michael J. Forster, for the plaintiff. Thrun, Maatsch and Nordberg, P.C. (by Martha J. Marcero and Roy H. Henley), for the defendant. Before: Holbrook, Jr., P.J., and Sawyer and Zahra, JJ. Zahra, J. Defendant Kirtland Community College (kcc) appeals as of right from an order denying its motion for judgment notwithstanding the verdict (jnov) or a new trial. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. I. FACTS Plaintiff was hired by KCC in February 1992 as part-time cultural events coordinator. In September 1992, plaintiff signed a one-year contract to serve as KCC’s full-time coordinator of cultural events/activities. In September 1993, plaintiff signed another one-year contract to remain in that position. That second contract was to expire on September 17, 1994. Plaintiff’s duties as full-time coordinator of cultural events/ activities included planning performances at kcc’s theater, running the theater’s box office, contracting with performers, producing shows at the theater, and completing accounting duties with respect to the performances. Plaintiff’s coordinator position was not a faculty position. Defendant Cary Vajda was KCC’s dean of student services and plaintiff’s immediate supervisor at all times pertinent to this case. Defendant Katherine Grosser was kcc’s dean of business services and defendant Dorothy Franke was president of kcc during plaintiff’s employment. In October 1993, Vajda asked KCC employee Allison Goshom on a date. Vajda did not know Goshom was romantically involved with plaintiff at the time he asked her out. Plaintiff claimed that the quality of his working relationship with Vajda declined once Vajda discovered the nature of Goshom’s relationship with plaintiff. As a result, plaintiff filed three complaints with the Michigan Department of Civil Rights (mdcr), charging gender discrimination and retaliation under the Civil Rights Act (cra), MCL 37.2101 et seq. Plaintiff claimed that he suffered psychological and physical problems as a result of continual adverse treatment by Vajda. Those problems prompted plaintiff to take a personal leave from his job in May 1994 and a later unpaid leave under the Family Medical Leave Act (fmla), 29 USC 2601 et seq. During the time plaintiff was on leave, the coordinator of cultural events/activities position was reconfigured by KCC administrators into a faculty position. Plaintiff applied for the new position, but was not hired. On September 13, 1994 (four days before the expiration of his employment contract), plaintiff returned from his leave and was discharged by Franke after a short meeting. In a letter Franke wrote to plaintiff on the date of his discharge, she stated that plaintiffs “[c]ontinued insubordination” and his “[abandonment of position” were the reasons for his discharge. Franke specified that plaintiffs insubordination included failing to return keys to KCC facilities despite being directed to do so on four separate occasions and refusing to provide proof of attendance at a meeting for which plaintiff sought travel expenses. Franke further specified that plaintiff abandoned his position by failing to return to work after his doctor indicated he was able to return on September 6, 1994, and by failing to notify KCC personnel to discuss returning to his job. In October 1995, plaintiff filed this lawsuit, alleging breach of employment contract, violation of the fmla, gender discrimination under the CRA, retaliation under the CRA, and defamation. Plaintiffs retaliation, breach of contract, and FMLA claims went to trial. The jury found no violation of the fmla. However, the jury found that KCC retaliated against plaintiff and assessed damages of $99,960 in regard to that claim. The jury also found that KCC breached plaintiffs employment contract. Pursuant to the parties’ agreement, the trial court assessed damages in connection with the breach of contract verdict, determining damages in the amount of $750. Kcc brought a motion for jnov or, alternatively, for a new trial, arguing that there was no evidence of a causal link between protected activity by plaintiff and adverse actions taken by kcc, nor evidence that plaintiff was terminated without just cause or that his employment contract was otherwise breached. The trial court denied kcc’s motion. Thereafter, the court assessed $46,500 in attorney fees and $986 in costs with respect to the retaliation claim. H. LEGAL ANALYSIS A. RETALIATION IN VIOLATION OF MCL 37.2701(A) On appeal, kcc argues that the trial court erred in denying its motion for jnov with respect to plaintiffs retaliation claim. We agree. A trial court’s decision to grant or deny a motion for jnov is reviewed de novo. Attard v Citizens Ins Co of America, 237 Mich App 311, 321; 602 NW2d 633 (1999); Farm Credit Services of Michigan’s Heartland, PCA v Weldon, 232 Mich App 662, 672; 591 NW2d 438 (1998). In reviewing a decision on a motion for jnov, this Court must view the testimony and all legitimate inferences in the light most favorable to the nonmoving party. Forge v Smith, 458 Mich 198, 204; 580 NW2d 876 (1998). If reasonable jurors honestly could have reached different conclusions, the jury verdict must stand. Central Cartage Co v Fewl-ess, 232 Mich App 517, 524; 591 NW2d 422 (1998). Only if the evidence fails to establish a claim as a matter of law is jnov appropriate. Forge, supra. The CRA provides, in part: An employer shall not do any of the following: (a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status. (b) Limit, segregate, or classify an employee or applicant for employment in a way that deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, height, weight, or marital status. [MCL 37.2202(l)(a) and (b).] The cra also prohibits an employer from retaliating against an employee for pursuing rights under the CRA, stating: Two or more persons shall not conspire to, or a person shall not: (a) Retaliate or discriminate against a person because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act. [MCL 37.2701(a).] 1. claims of pretermination retaliation In the trial court, plaintiff asserted that his job was reconfigured and he was eventually discharged in retaliation for complaining to Franke about Vajda’s adverse treatment of him and for filing complaints with the mdcr. On appeal, kcc claims that plaintiff did not engage in protected activity under the CRA that could be said to have led to any adverse employment action. We read the CRA in light of the primary goal of judicial interpretation, which is to ascertain and give effect to the intent of the Legislature. Radtke v Everett, 442 Mich 368, 386; 501 NW2d 155 (1993). If the plain and ordinary meaning of a statute is clear, judicial construction is neither necessary nor permitted. Cherry Growers, Inc v Agricultural Marketing & Bargaining Bd, 240 Mich App 153, 166; 610 NW2d 613 (2000). We may not speculate about the probable intent of the Legislature beyond the words expressed in the statute. In re Schnell, 214 Mich App 304, 310; 543 NW2d 11 (1995). If a statute provides its own glossary, the terms must be applied as expressly defined. Tryc v Michigan Veterans’ Facility, 451 Mich 129, 136; 545 NW2d 642 (1996). When reasonable minds may differ with respect to the meaning of a statute, the courts must look to the object of the statute and the harm it is designed to remedy and apply a reasonable construction that best accomplishes the purpose of the statute. Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich 638, 644; 513 NW2d 799 (1994). In interpreting provisions of the CRA, we are guided by federal court interpretations of the counterpart federal statute. Chambers v Trettco, Inc, 463 Mich 297, 313; 614 NW2d 910 (2000); see title VII of the federal Civil Rights Act of 1964, 42 USC 2000e et seq. While we are not bound by federal precedent based on title VII, those precedents analogous to questions presented under the CRA are persuasive and will be afforded substantial consideration by this Court. DeFlaviis v Lord & Taylor, Inc, 223 Mich App 432, 437; 566 NW2d 661 (1997), citing McCalla v Ellis, 180 Mich App 372, 377-378; 446 NW2d 904 (1989). However, we are always primarily obligated when interpreting Michigan law to ascertain and give effect to the intent of the Michigan Legislature. Chambers, supra at 314. Therefore, while we may look for guidance in federal interpretations of similar laws, we must not defer to federal interpretations when doing so would be inconsistent with any portion of our Legislature’s enactment. Id.-, Chiles v Machine Shop, Inc, 238 Mich App 462, 472-473; 606 NW2d 398 (1999). This Court has interpreted the retaliation provision of the CRA, MCL 37.2701(a), to require that a plaintiff prove a prima face case by showing: (1) that the plaintiff engaged in a protected activity, (2) that this was known by the defendant, (3) that the defendant took an employment action adverse to the plaintiff, and (4) that there was a causal connection between the protected activity and the adverse employment action. [Meyer v Center Line, 242 Mich App 560, 568-569; 619 NW2d 182 (2000), citing DeFlaviis, supra at 436.] To establish causation, the plaintiff must show that his participation in activity protected by the CRA was a “significant factor” in the employer’s adverse employment action, not just that there was a causal link between the two. Jacklyn v Schering-Plough Healthcare Products Sales Corp, 176 F3d 921, 929 (CA 6, 1999); Polk v Yellow Freight System, Inc, 801 F2d 190, 199 (CA 6, 1986). (a) RETALIATION BASED ON THE FILING OF FORMAL COMPLAINTS WITH THE MDCR In the present case, plaintiff’s conduct of filing complaints with the mdcr on March 11, 1994, May 12, 1994, and September 16, 1994, charging gender discrimination and retaliation was “protected activity” for purposes of a retaliation claim. See MCL 37.2701(a) (prohibiting retaliation “because the person has . . . filed a complaint . . . under this act”). These complaints became known to KCC. Subsequently, plaintiff’s employment was terminated. Thus, plaintiff presented sufficient evidence to satisfy the first three elements of his claim of retaliation. In order for plaintiff to prevail on his retaliation claim, he must establish causation. The record is void of any evidence of causation with respect to the MDCR complaints. The undisputed evidence establishes that Franke considered discharging plaintiff and had definitely decided not to renew plaintiff’s contract before plaintiff filed any of the three complaints. Plaintiff did not dispute Franke’s trial testimony that she was the only KCC administrator with authority to discharge employees. A memo written by Franke, dated March 3, 1994, and sent to KCC’s board of trustees, stated that plaintiff was having problems accepting direction and responsibility and had a generally “poor attitude.” Franke specified: “If all this spells ‘fire’ to you, it does to me, also. ... I can tell you for sure that I won’t be recommending renewal for his contract which ends in September.” Given the content of that memo, plaintiffs filing of the MDCR complaints commencing on Maxch 11, 1994, cannot be said to have been a “significant factor” in Franke’s decision not to renew plaintiff’s contract or to discharge plaintiff. See Jacklyn, supra, and Polk, supra. Consequently, those filings cannot form the basis of a retaliation claim. Meyer, supra. (b) RETALIATION BASED ON AN ORAL COMPLAINT The relevant question, therefore, is whether plaintiff engaged in any protected activity before Franke’s drafting of the March 3, 1994, memo. Plaintiff presented evidence that soon after Vajda became aware of his relationship with Goshom, Vajda severed direct communication with him, created new employment policies pertaining only to him, and enforced old policies that were not previously enforced with respect to other employees. Plaintiff claims that he disclosed Vajda’s adverse treatment to Franke during a meeting in January 1994. He contends that Franke’s failure to put a stop to Vajda’s adverse treatment of him was, itself, an adverse employment action sufficient to support a retaliation claim. Plaintiff cannot prevail on a claim of retaliation in violation of the CRA without establishing that he engaged in activity protected under the act. Meyer, supra. MCL 37.2701(a) specifically defines the type of activity protected under the cra. As it relates to this action, the cra specifically prohibits retaliation or discrimination because “the person has opposed a violation of this act, or because the person has made a charge . . . under this act.” Applying MCL 37.2701(a) to the facts of this case, we must determine whether plaintiff’s oral complaint to Franke in January 1994 amounted to a charge made under the CRA or opposition to a violation of the CRA. We conclude that it did not. (i) PLAINTIFF DID NOT MAKE A CHARGE UNDER THE CRA Plaintiff did not take any action that could be construed as a “charge” under tae act. An employee need not specifically cite the CRA when making a charge under the act. However, the employee must do more than generally assert unfair treatment. See Mitan v Neiman Marcus, 240 Mich App 679, 682; 613 NW2d 415 (2000) (holding complaints amounting to generic claims of “job discrimination” did not qualify as a charge made under the Persons with Disabilities Act, MCL 37.1101 et seq.'). The employee’s charge must clearly convey to an objective employer that the employee is raising the specter of a claim of unlawful discrimination pursuant to the CRA. McLe