Retaliation Cases

BAKER v OAKWOOD HOSPITAL CORPORATION Docket No. 206407. Submitted March 9, 1999, at Detroit. Decided January 18, 2000, at 9:00 A.M. Veronica L. Baker brought a wrongful discharge action in the Wayne Circuit Court against Oakwood Hospital Corporation and Stephen M. Aronson, M.D., claiming breach of contract, retaliation in violation of public policy, and interference with contractual or advantageous relations in connection with her employment as research nurse coordinator for a study of the experimental drug Sabeluzole conducted by Dr. Aronson on patients with Alzheimer’s disease and for a proposed, but not undertaken, study by the same doctor of the experimental drug Milanimine on Alzheimer’s patients. The plaintiff moved for the compelled discovery of the histories and records of the patients in Dr. Aronson’s Sabeluzole study, of documents relating to sponsorship of the Sabeluzole study by the Janssen Research Foundation and to sponsorship of the Milanimine study by Parke-Davis, of documents relating to limitations on Dr. Aronson’s retention of lecture honoraria, of tax forms showing income earned by Dr. Aronson for speaking engagements and the Sabeluzole study, and of Dr. Aronson’s travel records. The plaintiff argued that the medical records and research project records would support her allegations that Dr. Aronson had violated Food and Drug Administration (fda) research rules and the research project protocol and that Dr. Aronson had required the plaintiff to practice medicine without a license and commit other improper acts. The plaintiff argued that the documents pertaining to Dr. Aronson’s travel, speaking engagements, and honoraria were relevant because they related to her allegations that Dr. Aronson’s travel took precedence over his participation in the study, prompting him to delegate medical responsibilities to the plaintiff and falsify records. Over the defendants’ objection that the medical records were privileged and that the other documents were not relevant, the court, Pamela R. Harwood, J., granted the plaintiff’s discovery motion. The defendants appealed by leave granted. The Court of Appeals held: 1. The physician-patient privilege statute, MCL 600.2157; MSA 27A2157, provides that a person duly authorized to practice medicine or surgery shall not disclose any information that the person has acquired in attending a patient in a professional character if the information was necessary to enable the person to prescribe for the patient as a physician or to do any act for the patient as a surgeon. The statute imposes an absolute bar in that it prohibits a physician from disclosing, in the course of any action wherein the physician’s patient or patients are not involved and do not consent, even the names of such noninvolved patients. In this case, the medical records of the patients in the Sabeluzole study are protected by the physician-patient privilege and are not subject to discovery. The trial court abused its discretion in compelling discovery of the medical records. 2. The personal records of Dr. Aronson, with the exception of the documents relating to the Parke-Davis project on which neither the plaintiff nor Dr. Aronson worked, are relevant to the plaintiff’s claims and are subject to discovery under MCR 2.302(B)(1). The trial court did not abuse its discretion in ordering discovery of those records. Affirmed in part and reversed in part. Physicians and Surgeons — Physician-Patient Privilege — Discovery. The physician-patient privilege bars a physician, in the course of any action wherein the physician’s patient is not involved and has not waived the privilege, from disclosing the medical records of the patient (MCL 600.2157; MSA 27A.2157). David D. Kohl, for the plaintiff. 'Dykema Gossett PLLC (by Rosemary G. Schikora), ■ for the defendants. Before: Sawyer, P.J., and Fitzgerald and Saad, JJ. Saad, J. Defendants Oakwood Hospital Corporation and Stephen M. Aronson appeal by leave granted the September 3, 1997, order by Wayne Co Circuit Judge Pamela R. Harwood granting plaintiff Veronica L. Baker’s motion to compel production of patient medical records and certain of defendant Aronson’s personal records in a wrongful discharge lawsuit. This Court granted defendants leave to file this interlocutory appeal. We reverse the order compelling production of the medical records, but affirm the order compelling production of Aronson’s personal records. I. NATURE OF THE CASE This appeal raises several discovery issues, one of which involves an issue of first impression in Michigan regarding the scope of the physician-patient privilege. Plaintiff alleges that the medical research records of Alzheimer’s patients contain necessary and material information relating to her wrongful discharge lawsuit. She contends that these records will bear out her claim that defendant Aronson, a doctor, required her to practice medicine without a license by performing research functions restricted to physicians. She argues that defendants are not entitled to assert the physician-patient and psychotherapist-patient privileges in order to shield relevant evidence. Defendants argue that the privileges constitute an absolute bar to disclosure. Without reaching the issue of privilege, the trial court ordered defendants to produce the records in redacted form. Defendants took an interlocutory appeal from that order. We conclude that under Michigan Supreme Court precedent and subsequent decisions by this Court, the physician-patient privilege is an absolute bar that prohibits the unauthorized disclosure of patient medical records, including when the patients are not parties to the action. We reverse the trial court’s order compelling discovery of those records. n. FACTS AND PROCEEDINGS This lawsuit arises from an employment dispute between plaintiff, a registered nurse who worked as a research nurse coordinator, and defendant Stephen M. Aronson, M.D. Dr. Aronson conducted a study of Sabeluzole, an experimental drug for the treatment of Alzheimer’s disease under the sponsorship of the Janssen Research Foundation (jkf). He began this research at Wayne State University and the Veterans’ Administration Hospital, and later brought the study to Oakwood Hospital. Plaintiff worked with Dr. Aron-son at Wayne State and the VA hospital, and joined him at Oakwood in January 1996 on a less than full-time basis. According to plaintiff, plaintiff’s and Dr. Aronson’s working relationship quickly deteriorated after the move to Oakwood. Plaintiff’s part-time status led to a conflict between her and Dr. Aronson over plaintiff’s hours, compensation, and benefits package. Plaintiff alleges that Dr. Aronson gave her false information on these matters before she made the move. The parties also disagreed over plaintiff’s responsibilities. Plaintiff has alleged the following version of events: After moving to Oakwood, Dr. Aronson was permitted to retain honoraria for lectures and speaking engagements that he had not been permitted to retain at Wayne State. Induced by this financial incentive, Dr. Aronson overbooked himself with speaking engagements that interfered with his participation in the research. Because he was often out of town, he was not available to perform patient medical exams and other research-related duties. Instead, he expected plaintiff to “practice medicine without a license” by assinning certain duties that Food and Drug Administration (fda) regulations and research protocols restricted to medical doctors. He also required plaintiff to falsify records to conceal his lack of involvement. The parties also clashed over a pending ParkeDavis study of the drug Milanimine. This study never materialized. Dr. Aronson contests plaintiffs version of events and has denied asking her to do anything improper. Dr. Aronson avers that plaintiffs dissatisfaction stems from defendants’ inability to accede to her demands regarding wages, benefits, and work schedule. In June 1996 plaintiff left Oakwood’s employ. Again, the parties dispute the circumstances of plaintiff’s departure. Plaintiff alleges that she confronted Dr. Aronson over his illegal and unethical conduct, which caused him to become angry and demand her resignation. When plaintiff refused to sign a resignation letter, he falsely informed Oakwood administration that she had resigned. In contrast, defendants contend that plaintiff voluntarily quit out of dissatisfaction with her compensation and because Dr. Aronson refused her demand to be paid a “finder’s fee” for each patient in the study. Plaintiff filed this three-count lawsuit against Oak-wood and Dr. Aronson. Plaintiff included counts for “wrongful discharge” (specifically, a breach of contract claim), “retaliation in violation of public policy,” and “interference with contractual or advantageous relations.” With respect to the second count, plaintiff alleged that defendants terminated her employment in retaliation for her objections to Dr. Aronson’s illegal and unethical conduct. DISCOVERY REQUESTS AND OBJECTIONS TO DISCOVERY In the course of discovery, plaintiff requested defendants to produce “a copy of the case histories and records of the patients in Dr. Aronson’s JRF Sabeluzole study.” Although the discovery request asked for patient names to be replaced by numbers to preserve confidentiality, plaintiff also requested a key showing the numbers associated with the names. Plaintiff also requested the following: documents relating to the JRF Sabeluzole research project and the abortive Parke-Davis research project on the drag Milanimine; documents relating to limitations on Dr. Aronson’s retention of lecture honoraria at both Oak-wood and Wayne State; Forms 1099 for the tax years 1994-96, showing amounts paid for speaking engagements; travel records for 1994-96; and Forms 1099 for 1994-96 showing amounts jrf paid for the Sabeluzole study. In their response to this request, defendants objected to the request for medical records because the information was not relevant and was not reasonably calculated to lead to the discovery of admissible evidence. Defendants also averred that the request was “overly broad and burdensome” because it involved thousands of pages of documents that filled two file cabinets. They objected to the requests for Forms 1099, research documents, honoraria records, and travel records on grounds of relevance. Plaintiff filed her motion to compel discovery of these documents. She argued that the medical records and research project records were relevant because they would support her allegation that Dr. Aronson violated FDA research rules and the research project protocols, and required plaintiff to practice medicine without a license and commit other improper acts. She argued that documents pertaining to Dr. Aronson’s travel, speaking engagements, and honoraria were relevant because they related to her allegations that Dr. Aronson’s travel took precedence over his participation in the study, prompting him to delegate medical responsibilities to plaintiff and falsify records. In response, defendants reiterated their objection that the medical records were not relevant to any issue and were too burdensome to produce. Additionally, defendants argued at the motion hearing that the records were privileged, although they had not raised this matter in their brief. With respect to the remaining discovery requests, defendants argued that the research documents were not relevant because plaintiff was not required to demonstrate that Dr. Aronson actually committed any violations to prove her retaliatory discharge claim (which defendants erroneously labeled a whistle-blowers’ claim). Similarly, they argued that information on Dr. Aronson’s travels and speaking engagements was irrelevant because plaintiff would not be required to prove that Dr. Aronson did, in fact, neglect his research responsibilities. The trial court heard the motion on August 22, 1997, concluded that the materials were sufficiently relevant to plaintiff’s causes of action for purposes of discovery, and granted the motion to compel. However, the court also issued a protective order to maintain confidentiality of the records and to replace patients’ names with initials. We granted defendants’ application for interlocutory appeal. HI. ANALYSIS A. THE PHYSICIAN-PATIENT PRIVILEGE AND DR. ARONSON’S RESEARCH RECORDS The applicability of the physician-patient privilege is a legal question that this Court reviews de novo. Once we determine whether the privilege is applicable to the facts of this case, we determine whether the trial court’s order was proper or an abuse of discretion. See Dorris v Detroit Osteopathic Hosp, 220 Mich App 248, 250; 559 NW2d 76 (1996), aff’d 460 Mich 26; 594 NW2d 455 (1999), see also Reed Dairy Farm v Consumers Power Co, 227 Mich App 614, 618; 576 NW2d 709 (1998), for the standard for reviewing attorney-client privilege, which we consult for analogy. 1. THE STATUTORY PRIVILEGES The physician-patient privilege statute provides, in pertinent part: Except as otherwise provided by law, a person duly authorized to practice medicine or surgery shall not disclose any information that the person has acquired in attending a patient in a professional character, if the information was necessary to enable the person to prescribe for the patient as a physician, or to do any act for the patient as a surgeon. [MCL 600.2157; MSA 27A.2157 (emphasis added).] The Mental Health Code, MCL 330.1001 et seq.-, MSA 14.800(1) et seq., includes additional protection for communication to a psychiatrist or psychologist. The Mental Health Code defines “privileged communication” as “a communication made to a psychiatrist or psychologist in connection with the examination, diagnosis, or treatment of a patient, or to another person while the other person is participating in the examination, diagnosis, or treatment or a communication made privileged under other applicable state or federal law.” MCL 330.1700(h); MSA 14.800(700)(h). The Mental Health Code provides that privileged communications “shall not be disclosed in civil, criminal, legislative, or administrative cases or proceedings, or in proceedings preliminary to such cases or proceedings, unless the patient has waived the privilege,” except in six enumerated circumstances, none of which is applicable here. MCL 330.1750(1), (2); MSA 14.800(750)(1), (2). The psychiatrist-patient privilege prohibits disclosure of “the fact that the patient has been examined or treated or undergone a diagnosis” except where that information is relevant to a health care provider’s or insurer’s rights or liabilities. MCL 330.1750(3); MSA 14.800(750)(3). The physician privilege bars disclosure of “any information” acquired in the course of the professional relationship, whereas the psychiatrist privilege applies only to the patient’s communications. However, the record in this case is insufficient for determining if the distinction is important here. Although defendants suggest that the psychiatric privilege might preclude discovery even if the physician privilege does not, we conclude that for purposes of this appeal, there is no difference in the application of these two privileges as applied to the facts here. A threshold issue that neither party raised or addressed is whether the physician-patient privilege applies in this case, where Dr. Aronson and the Alzheimer’s patients were not involved in a traditional doctor-patient relationship. Plaintiff has not contended that the patient records from the Sabeluzole study fall outside the scope of privileged matters under either statute. Hence, we assume for purposes of our analysis that the subjects were patients entitled to the privilege. “The purpose of the [patient-physician] privilege is to protect the doctor-patient relationship and ensure that communications between the two are confidential.” Herald Co Inc v Ann Arbor Public Schools, 224 Mich App 266, 276; 568 NW2d 411 (1997). The privilege did not exist at common law; thus, “the statute controls the scope of the privilege in Michigan.” Id. “The privilege belongs to the patient and can be waived only by the patient.” Id. Plaintiff also has not contended that any of the patients expressly or impliedly waived their privilege, or that any of the six enumerated exceptions in MCL 330.1750(2); MSA 14.800(750)(2) is applicable. 2. DEFENDANTS’ ARGUMENTS FOR APPLICATION OF PRIVILEGE There is ample Michigan authority to support defendants’ argument that the physician-patient privilege is an absolute bar that protects the medical information of nonparty patients, although no case is on all fours. Defendants rely on Schechet v Kesten, 372 Mich 346; 126 NW2d 718 (1964). In Schechet, the plaintiff, a physician, sued the defendant, a hospital administrator, for defamation, alleging that the defendant attacked his professional competence. Id., 349. The plaintiff served interrogatories on the defendant that requested the defendant to identify the “cases” (presumably the names of patients and information about their treatments) that induced the defendant to make the censorious statements. Id., 350. The Michigan Supreme Court held that the physician-patient privilege barred disclosure: The statute imposes an absolute bar. It protects, “within the veil of privilege,” whatever in order to enable the physician to prescribe, “was disclosed to any of his senses, and which in any way was brought to his knowledge for that purpose.” (Briggs v Briggs, 20 Mich 34, 41 [1870].) Such veil of privilege is the patient’s right. It prohibits the physician from disclosing, in the course of any action wherein his patient or patients are not involved and do not consent, even the names of such noninvolved patients. [Id., 351 (emphasis added).] Relying on Schechet, this Court has held that the physician-patient privilege barred disclosure of medical information for patients who were not parties to the action. In Dorris, supra, the plaintiff in a medical malpractice action sought the name of the patient who shared her hospital room because she believed this person would corroborate plaintiff’s allegation that plaintiff refused a certain medication. 220 Mich App 249-250. This Court held that Schechet was binding precedent that barred disclosure of a patient’s name. Id., 251-252. Our Supreme Court agreed and affirmed this Court’s decision: The language of § 2157 is clear in its prohibition of disclosure of privileged information. In accordance with prior rulings of this Court, particularly Schechet, that the purpose of the privilege is to encourage patients’ complete disclosure of all symptoms and conditions by protecting the confidential relationship between physician and patient, we find requiring the defendant hospitals to disclose the identity of unknown patients would be in direct contradiction of the language and established purpose of the statute. [460 Mich 37.] Similarly, in Popp v Crittenton Hosp, 181 Mich App 662; 449 NW2d 678 (1989), a medical malpractice patient alleged that the defendants, a hospital and a physician, were negligent in failing to promptly conduct a computerized axial tomography (cat) scan when the plaintiff came to the emergency room. The physician testified that another patient was under the CAT scan when the plaintiff arrived. The plaintiff sought discovery of the other patient’s medical records to determine which patient deserved priority. The trial court denied the request. Id., 665. Citing Schechet, this Court upheld the trial court’s decision because the physician-patient privilege is an “absolute bar prohibiting the disclosure of even the names of patients who are not involved in the litigation.” Id. This Court stated that “the information sought was protected by a physician-patient privilege held by someone not a party to the lawsuit who did not waive his privilege.” Id. In Dierickx v Cottage Hosp Corp, 152 Mich App 162; 393 NW2d 564 (198

ROULSTON v TENDERCARE (MICHIGAN), INC Docket No. 208342. Submitted July 7, 1999, at Grand Rapids. Decided January 7, 2000, at 9:00 am. Laura A. Roulston brought an action in the Mason Circuit Court against Tendercare (Michigan), Inc., and Baywood Nursing Home, assumed name of Tendercare Select Properties, Inc., alleging violation of the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seq.-, MSA 17.428(1) et seq., and claiming that her employment was terminated in retaliation for her reporting to state investigators incidents of suspected resident abuse at the Baywood Nursing Home. The court, Richard I. Cooper, J., entered a judgment in favor of the plaintiff consistent with the jury’s verdict. The defendants appealed. The Court of Appeals held: 1. The circumstantial evidence was such that a reasonable juror could find that the plaintiff was discharged for retaliatory reasons, even if the defendants had mixed motives for the discharge. The evidence indicated that retaliation for protected activity under the wpa, not the plaintiff’s alleged poor performance, was a motivating factor in the decision to discharge her. The proofs could sustain a reasonable inference that the plaintiff’s alleged poor performance was really a pretext for retaliation on the part of the defendants. The plaintiff presented sufficient evidence to raise a triable issue of fact that she was discharged in violation of the wpa. The court correctly denied the defendants’ motion for a directed verdict that alleged that the plaintiff failed to present a prima facie case under the wpa. 2. The court did not abuse its discretion in denying the defendants’ motion to exclude evidence regarding the state’s investigation of an incident at the nursing home and the outcome of the investigation. The evidence was relevant to a determination whether the defendants’ proffered business reason for the plaintiff’s discharge was unworthy of credence. The judgment must be affirmed and the matter must be remanded for a determination of appropriate appellate attorney fees. Affirmed and remanded. 1. Whistleblowers’ Protection Act — Words and Phrases — Protected Activity. “Protected activity” under the Whistleblowers’ Protection Act consists of reporting to a public body a violation of a law, regulation, or rule, or being about to report such a violation to a public body, or being asked by a public body to participate in an investigation (MCL 15.362; MSA 17.428[2]). 2. Whistleblowers’ Protection Act — Prma Facie Case. A prima facie case under the Whistleblowers’ Protection Act is established where the plaintiff shows that the plaintiff was engaged in protected activity as defined by the act, the defendant employer discharged the plaintiff, and a causal connection exists between the protected activity and the discharge (MCL 15.862; MSA 17.428[2]). 3. Whistleblowers’ Protection Act — Burden of Proof. The plaintiff in an action alleging the plaintiff’s discharge from employment violated the Whistleblowers’ Protection Act bears the initial burden of establishing a prima facie case of retaliatory discharge; if the plaintiff succeeds, the burden shifts to the defendant to articulate a legitimate business reason for the discharge; the plaintiff then has an opportunity to prove that the legitimate reason offered by the defendant was not the true reason, but was only a pretext for the discharge; once the pretext question is reached, the question of mixed motive, i.e., retaliation plus legitimate business reason, must be considered; a plaintiff can prove pretext either directly by persuading the court that a retaliatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence; factors for proving pretext include whether participation in a protected activity played any part in the discharge, whether the protected activity was a substantial factor in the discharge, whether the protected activity was the principal, but not sole, reason for the discharge, or whether the discharge would have occurred had there been no protected activity (MCL 15.361 et seq.; MSA 17.428[1] et seq.y Twohey Maggini, P L C (by Arthur B. DeBruyn), for the plaintiff. Bensinger, Cotant, Menkes & Aardema (by Dale L. Arndt), for the defendants. Before: McDonald, P.J., and Kelly and Cavanagh, JJ. Per Curiam. Defendants Tendercare (Michigan), Inc., and Baywood Nursing Home, assumed name of Tendercare Select Properties, Inc., appeal as of right from a jury verdict finding them liable for violation of the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seq.; MSA 17.428(1) et seq. We affirm and remand for a determination of reasonable appellate attorney fees. Plaintiff, Laura Roulston, holds a bachelor’s degree in psychology. She was hired in January 1996 to serve as social services director at defendant Baywood Nursing Home located in Ludington. She claimed that her employment was terminated in retaliation for reporting to state investigators incidents of suspected resident abuse. Robert VanRhee, the Baywood administrator who fired plaintiff, denied having any knowledge of the reports until after plaintiff’s discharge. VanRhee testified that plaintiff’s discharge was strictly a business decision based on deficiencies in her job performance, which included being confrontational with staff, being slow and failing to complete paperwork, and being late for or failing to attend meetings. On June 8, 1996, at 10:25 A.M., Vera Reed, a resident of the Baywood facility, passed away. When plaintiff learned of the death, she looked in on Helen Bennett, who had been Reed’s roommate for two years. Plaintiff found Bennett, crying and seemingly distressed over Reed’s death, sitting in her wheelchair with the wheels in the locked position, and with Reed’s body still lying on her bed. Plaintiff testified that she believed Bennett had been left in the room as a form of punishment. Defendants claimed that Bennett had been confined to her wheelchair following her moming shower, during which time she had become agitated. Defendants also stated that, because Bennett had been diagnosed as suffering from dementia, she was mentally incapable of comprehending Reed’s death. Plaintiff was moving Bennett away from her room when she met the undertaker and a Baywood aide on their way to attend to Reed’s body. The aide’s comments led plaintiff to believe that she had forgotten Bennett had been left in the room. Plaintiff later spoke to Sheryl Nelson, the charge nurse, and inquired about Bennett’s being left in the room with Reed’s body. Allegedly, Nelson became angry and shouted that plaintiff did not know what was going on. Nelson testified that she had no other place to put Reed’s body pending viewing by the family and removal by the funeral home. She also testified that she had put Bennett in her room to separate her from the other residents until she calmed down. Records showed that Reed’s body was moved to the funeral home at 12:20 P.M. Plaintiff testified that she also notified the director of nursing, Patsy Sherman, about the incident, and that Sherman recommended doing nothing until the following Monday, June 10, 1996, when VanRhee could be consulted. Sherman testified that she began investigating the alleged abuse on Monday. It was revealed at trial that Sherman complained two or three times regarding plaintiff’s method of approach when dealing with the staff in the nursing department. Sherman testified that she did not learn that plaintiff had reported the Bennett incident to state investigators until after plaintiff’s employment had been terminated. On Sunday, June 9, 1996, plaintiff wrote a letter to VanRhee describing the incident with Bennett. The next morning, plaintiff put the letter in VanRhee’s office. Plaintiff claimed to have noted the incident in Bennett’s chart after she spoke to Fran Brennan, assistant director of nursing, regarding how much detail should be noted. Brennan told her not to indicate that there had been a dead body in the room with Bennett. Plaintiff believed that Bennett’s treatment constituted abuse. On the night of Monday, June 10, 1996, she called an advocacy group for senior citizens regarding the Bennett incident. The individual she spoke to informed her that she could be fined if she did not report the incident. Sometime thereafter, plaintiff contacted Jeanette Baldwin, a social worker at a Tendercare facility in Lansing, for input on what she should do regarding reporting the incident. VanRhee testified that, if an incident involving a resident is unintentional, he did not consider it to be abuse. On the afternoon of June 11, 1996, VanRhee conducted plaintiff’s ninety-day employee evaluation. At that point, plaintiff had been on the job for more than four months. VanRhee testified that his review of plaintiff’s performance followed a conversation he had with Tim Stoll, defendants’ social services and activities consultant. VanRhee graded plaintiff “average” in every area of concern except “cooperation/teamwork,” which was graded “poor.” He noted that plaintiff was confrontational with staff and that she reacted before she had all the facts. He acknowledge that plaintiff’s position was described as being an advocate for the nursing home residents, but denied that being an advocate would put her at odds with the staff. He also noted that plaintiff had poor attendance at meetings and that she failed to complete paperwork on time. After the review, VanRhee extended plaintiffs probation period for another ninety days. He refused to discuss the Bennett incident. The following morning, Wednesday, June 12, 1996, plaintiff documented her observations regarding Bennett, including that Reed’s body had been left in the room. Plaintiff did not go to work the following two days, but, instead, stayed home and reported her suspicions of abuse to the Department of Consumer and Industry Services and to the Health Care Fraud Unit of the Attorney General’s Office. Plaintiff testified that, in the week following her report to the state, she observed two more incidents of alleged abuse at the nursing home. In the first, Gladys French, a resident, was moved from one room to another. Plaintiff believed the action was not in the resident’s best interest because she suffered from dementia and became disoriented when moved. The second incident involved Doris Schrader, a resident who had declined to complete an advance care directive form and had indicated that she wanted full medical treatment in the event of an emergency. On June 19, 1996, plaintiff was informed by the nursing staff that Schrader needed to change her advance care directive. Plaintiff went to Schrader’s room, where she found Schrader wearing an oxygen mask and asking to be taken to the hospital. When Schrader collapsed and plaintiff realized the seriousness of her illness, she called Schrader’s son, who indicated that he did not know what course of action to follow and that he would call back after speaking with his uncle. Apparently, a nurse telephoned Schrader’s physician, who instructed the facility not to do anything because Schrader was a terminally ill patient. Plaintiff believed that Schrader had the right to have her wish for full medical treatment followed, regardless of whether her son or her physician agreed. Before Schrader’s son called back, and before plaintiff could take any action, Schrader died. Although plaintiff did not discuss this incident with anyone at Baywood, she did report it to state investigators after her employment was terminated. The state investigation of the Schrader incident revealed that the nursing home had a policy of providing aggressive emergency resuscitative measures, and that, on the basis of that policy, Schrader saw no need to complete an advance directive on her admission to the facility. At the time Schrader expired, she was considered by the facility staff to be a “full code” resident and that she should have received aggressive emergency resuscitative measures. The state investigation concluded that those measures were not provided. VanRhee and Stoll testified that there was no requirement that a resident sign an advance directive, and that a resident with no advance directive would be treated no differently than a resident with a “full code” advance directive. VanRhee claimed that plaintiff’s failure to compel Schrader to complete an advance directive contributed to his decision to terminate her employment. However, plaintiff was not responsible for admitting residents, and Schrader’s admission to the nursing home had been handled by an in-take person. It was noted that Schrader was not suffering from any mental incapacity, that she declined to complete an advance care directive, and that she expressed a wish for full resuscitative measures. Plaintiff testified that, on the morning of June 21, 1996, she spoke with Stoll. Plaintiff told Stoll of her concerns regarding resident care and specifically mentioned the incidents involving Bennett, French, and Schrader. Stoll allegedly cautioned plaintiff against using the term “abuse” to describe the situations. Plaintiff testified that she and Stoll were arguing over what constituted “abuse” and that Stoll told plaintiff that she “needed to be like everybody else and start thinking like they did.” Plaintiff testified she then blurted out: “Tim, I have spoke [sic] to people at the state. And they have told me that all of these things that I have brought up are serious and need to be investigated. And it’s not just me that is concerned about these situations.” Sometime that same morning, VanRhee contacted Tendercare’s regional director to discuss plaintiff’s termination. The regional director directed VanRhee to discuss the matter with George Herron, Tender-care’s vice president of human resources. When plaintiff returned from her lunch break, VanRhee and Sherman met her in her office. Plaintiff described VanRhee as “angry, red in the face.” VanRhee told plaintiff, “You’re through.” He stood by while plaintiff gathered her belongings and left the building. Plaintiff theorized that after she told Stoll that she had reported her suspicions of abuse, he contacted VanRhee, who, in turn, terminated plaintiff’s employment. After plaintiff rested, defendants moved for a directed verdict on the ground that plaintiff had failed to present a prima facie case under the wpa. Specifically, defendants argued that they did not know plaintiff had reported her concerns to state investigators and that it was merely a coincidence that plaintiffs employment was terminated shortly thereafter. Defendants argued that, besides the coincidence in timing, plaintiff had presented no other evidence from which the jury could infer causation. The trial court denied the motion, ruling that the circumstantial evidence was such that a reasonable juror could find that plaintiff was discharged for retaliatory reasons, even if defendants had mixed motives for the discharge. We agree. The determination whether evidence establishes a prima facie case under the wpa is a question of law that this Court reviews de novo. Phinney v Perlmutter, 222 Mich App 513, 553; 564 NW2d 532 (1997). This Court also reviews a trial court’s denial of a motion for a directed verdict de novo. Meagher v Wayne State Univ, 222 Mich App 700, 708; 565 NW2d 401 (1997). On appeal, this Court must review all the evidence presented up to the time of the motion to determine whether a factual question existed. Kubczak v Chemical Bank & Trust Co, 456 Mich 653, 663; 575 NW2d 745 (1998); Hatfield v St Mary’s Medical Center, 211 Mich App 321, 325; 535 NW2d 272 (1995). This Court views the evidence in the light most favorable to the nonmoving party, grants that party every reasonable inference, and resolves any conflict in the evidence in that party’s favor. Id. The wpa provides, in pertinent part, as follows: An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action. [MCL 15.362; MSA 17.428(2).] “Protected activity” under the wpa consists of (1) reporting to a public body a violation of a law, regulation, or rule, (2) being about to report such a violation to a public body, or (3) being asked by a public body to participate in an investigation. MCL 15.362; MSA 17.428(2). To establish a prima facie case under the wpa, plaintiff must show that (1) she was engaged in a protected activity as defined by the act, (2) the defendants discharged her, and (3) a causal connection existed between the protected activity and the discharge. Chandler v Dowell Schlumberger Inc, 456 Mich 395, 399; 572 NW2d 210 (1998). Defendants do not dispute that they discharged plaintiff after she engaged in a protected activity. However, as noted, defendants do challenge plaintiffs proof of the causal connection between the activity and the discharge. “ ‘[A]n employer is entitled to objective notice of a report or a threat to report by the whistleblower.’ ” Roberson v Occupational Health Centers of America, Inc, 220 Mich App 322, 326; 559 NW2d 86 (1996), quoting Kaufman & Payton, PC v Nikkila, 200 Mich App 250, 257; 503 NW2d 728 (1993). The testimony presented up to the time of defendants’ motion for a directed verdict reasonably supported the inference that Stoll had notified VanRhee of plaintiffs allegations. Viewing this evidence in the light most favorable to plaintiff, defendants had objective notice that plaintiff had reported her suspicion of abuse to state regulators. Hatfield, supra at 325. Defendants also argue that plaintiff failed to prove a connection between the protected activity and her discharge because she relied solely on the timing of events as evidence of retaliation. Relying on federal cases decided under specific federal acts, defendants argue that the mere fact that plaintiff was discharged hours after defendants allegedly learned of plaintiffs protected activity was insufficient to support an inference of retaliation. However, as the trial court correctly noted, other factors concerning plaintiffs discharge tend to support an inference of notice. The extent of VanRhee’s anger, being red in the face, his abrupt “you’re through,” as well as his standing by until plaintiff removed her belongings and left the building, all suggest that VanRhee had talked to Stoll and learned that plaintiff had reported the Bennett incident to the state. Defendants also argue that, even if there is a link between plaintiff’s whistleblowing and her discharge, it is insignificant in light of the articulated reasons for plaintiff’s firing. This Court has found that the wpa bears substantial similarities to Michigan civil rights statutes and that actions under the wpa are analyzed using the “shifting burdens” framework utilized in retaliatory discharge actions under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. Anzaldua v Band, 216 Mich App 561, 580; 550 NW2d 544 (1996). Thus, the plaintiff bears the initial burden of establishing a prima facie case of retaliatory discharge. Hopkins v Midland, 158 Mich App 361, 378; 404 NW2d 744 (1987). If the plaintiff succeeds, the burden shifts to the defendant to articulate a legitimate business reason for the discharge. Id. If the defendant produces evidence establishing the existence of a legitimate reaso

CHILES v MACHINE SHOP, INC Docket No. 207395. Submitted March 10, 1999, at Lansing. Decided November 5, 1999, at 9:35 am. Robert E. Chiles brought an action in the Isabella Circuit Court against Machine Shop, Inc., and others, alleging that the defendants violated the Worker’s Disability Compensation Act (wdca), MCL 418.101 et seq.; MSA 17.237(101) et seq., and the Handicappers’ Civil Rights Act, now the Persons with Disabilities Civil Rights Act (pwd-. cra), MCL 37.1101 et seq.) MSA 3.550(101) et seq., by laying him off and not recalling him, actions the plaintiff claims were in retaliation for his filing of a worker’s compensation claim for a back injury and a result of discrimination based on a perceived disability. Before jury déliberations, Machine Shop, Inc., did not object to the stipulated dismissal of all other defendants from the action. The court, William R. Rush, J., thereafter entered judgment on the jury’s verdict and award of damages to the plaintiff. Machine Shop, Inc., appealed. The Court of Appeals held: 1. The jury properly considered Machine Shop, Inc., to have been the plaintiff’s employer for purposes of determining its liability under the wdca and the pwdcra even though the plaintiff was classified as an employee of Forestry Products, Inc., which had loaned ■ him to Machine Shop, Inc. Machine Shop, Inc., did not object to the dismissal of the other defendants from the action, and Machine Shop, Inc., can properly be deemed under the economic-reality test to have been the plaintiff’s employer for purposes of the wdca. With respect to the pwdcra, liability under the act is not dependent on the existence of an employer-employee relationship at the time of the adverse employment action, but on the ability to affect adversely the terms and conditions of an individual’s employment or potential employment. 2. The trial court did not err in denying motions by Machine Shop, Inc., for a directed verdict and judgment notwithstanding the verdict with respect to the plaintiff’s worker’s compensation retaliation claim. The plaintiff established that there was a causal connection between the filing of the worker’s compensation claim and the layoff and nonrecall by showing that he applied for and received worker’s compensation benefits, that Machine Shop, Inc., laid him off and did not recall him, that the stated reasons for the layoff and nonrecall were a pretext, and that the real reason was retaliation for filing the worker’s compensation claim. 3. The trial court erred in denying motions by Machine Shop, Inc., for a directed verdict and judgment notwithstanding the verdict with respect to the plaintiff’s pwdcra claim. The plaintiff did not suffer from a perceived disability within the meaning of the pwdcra. Although the plaintiff was perceived to have had a physical impairment, that impairment was not a disability under the pwdcra because it was temporary and did not prevent the plaintiff from performing a range of jobs. Affirmed in part, reversed in part, and remanded for further proceedings. 1. Worker’s Compensation — Employer-Employee Relationships — Economic-Reality Test. The economic-reality test is used in determining whether an employer-employee relationship exists for purposes of the Worker’s Disability Compensation Act; the test involves four factors: control of the worker’s duties; payment of wages; the right to hire, fire and discipline; and performance of the duties toward the accomplishment of a common goal (MCL 418.101 et seq.; MSA 17.237[101] et seq.). 2. Civil Rights — Persons with Disabilities Civil Rights Act — Employers. Employer liability under the Persons with Disabilities Civil Rights Act can arise in the absence of an employer-employee relationship because the act encompasses potential employment in prohibiting ' discrimination based on handicaps not related to ability to perform job duties (MCL 37.1201[b], 37.1202[l][a]; MSA 3.550[201][b], 3.550[202][l][a]). 3. Worker’s Compensation — Employer Retaliation for Employee Claims. An employee establishes employer retaliation against the employee for the filing of a worker’s compensation claim where the employee shows that the employee asserted the right to worker’s compensation, the employee was discharged, the employer’s stated reason for discharge was a pretext, and the real reason was retaliation for the employee’s filing of the worker’s compensation claim (MCL 418.301[11]; MSA 17.237[301] [11]). 4. Civil Rights — Persons with Disabilities Civil Rights Act — Employment Discrimination. A plaintiff establishes a prima facie case of employment discrimination under the Persons with Disabilities Civil Rights Act by show-mg that the plaintiff is “disabled” as defined by the statute, the disability is unrelated to the plaintiff’s ability to perform the duties of a particular job, and the plaintiff has been discriminated against in one of the ways set forth in the statute (MCL 37.1202[l][b]; MSA 3.550[202][l][b]). 5. Civil Rights — Persons with Disabilities Civil Rights Act — Disabilities. A three-step process is used by a court in determining whether a plaintiff is, or is perceived to be, physically disabled within the meaning of the Persons with Disabilities Civil Rights Act; first, the court considers whether the plaintiff suffers from a physical impairment; second, the court identifies the life activity alleged to be limited by the impairment and determines whether it constitutes a major life activity; third, the court determines whether the impairment substantially limited the major life activity (MCL 37.1103[d] [i] [A], [in]; MSA 3.550[103][d][i][A], [iii]). 6. Civil Rights — Persons with Disabilities Civil Rights Act — Major Life Activities — Working. Work can be considered a major life activity that is substantially limited by an impairment when an individual is not substantially limited with respect to any other major life activity; the impairment must significantly restrict an individual’s ability to perform a range of jobs, not a particular job (MCL 37.1103[d][i][A], [iii]; MSA 3.550[103][d][i][A], [iii]). 7. Civil Rights — Persons with Disabilities Civil Rights Act — Impairments — Substantial Limits on Major Life Activities. A court determining whether an impairment substantially limits a major life activity considers the nature and severity of the impairment, the duration or expected duration of the impairment, and the permanent or expected permanent or long-term effect; temporary medical conditions or intermittent, episodic impairments are not disabilities within the meaning of the Persons with Disabilities Civil Rights Act (MCL 37.1103[d][i][A], [iii]; MSA 3.550[103][d][i][A], [iii]). Charles W. Palmer, for the plaintiff. Miller, Johnson, Snell & Cummiskey, PL.C. (by Thomas R. Wurst and Jennifer L. Jordan), for the defendant. Before: Markman, P.J., and Hoekstra and Zahra, JJ. Per Curiam. In this action brought under the Persons with Disabilities Civil Rights Act (pwdcra), MCL 37.1101 et seq.\ MSA 3.550(101) et seq., and the Worker’s Disability Compensation Act, (wdca) MCL 418.101 et seq.] MSA 17.237(101) et seq., defendant Machine Shop, Inc., appeals as of right a jury award of $18,000 in favor of plaintiff and from the trial court’s denial of defendant’s motion for a directed verdict, 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. In 1973, plaintiff began working for Morbark Industries, Inc., in its machine shop division. In 1988, Morbark Industries, Inc., split into several separate corporations. Plaintiff became classified as an employee of Forestry Products, Inc. However, plaintiff actually worked for defendant, Machine Shop, Inc., a similarly created offshoot of Morbark Industries, Inc. In December 1991, plaintiff sustained a work-related back injury. Despite this injury, plaintiff continued working as defendant’s sole Blanchard grinder operator until February of 1993, when he took a disability leave. Plaintiff received full worker’s compensation benefits from February until June of 1993, when he returned to work in a “favored” position. While plaintiff was on disability leave, another employee, Jim Zeneberg, was moved to plaintiff’s shift and assigned to operate the Blanchard grinder. However, in July 1994, as part of progressing from the favored position to a work-hardening program, plaintiff was reassigned to the Blanchard grinder. Plaintiff initially operated the grinder four hours a day, but eventually increased to full-time. During this period, Zeneberg was temporarily assigned to other machines. While plaintiff participated in the work-hardening program, he was paid $6 an hour and a supplemental worker’s compensation wage-loss differential. He was told that he would resume earning his regular wage of $11.75 an hour when his doctor lifted his work restrictions. On February 24, 1995, plaintiff’s treating physician provided documentation to defendant indicating that plaintiff could return to work without restrictions. On February 27, plaintiff resumed earning his regular wage. The next day, February 28, 1995, plaintiff was laid off and notified that he would not be rehired. Craig Price, the health and human services director for all of Morbark Industries, agreed that plaintiff was misled into believing that once his restrictions were lifted, he would return to his full-time position as a grinder operator. According to defendant’s president, Gary Cotter, plaintiff was laid off because he was not as productive as Zeneberg, the replacement operator. On May 4, 1995, plaintiff filed suit alleging that he was laid off and not recalled in retaliation for filing his worker’s compensation claim and because he was perceived as suffering from a disability (impaired back). In November 1995, following Zeneberg’s unfortunate death, plaintiff was called back to work as the Blanchard grinder operator. Upon his return, plaintiff was classified as defendant’s employee. i For its first claim of error, defendant contends that because it was not technically plaintiff’s employer when the alleged retaliatory and discriminatory actions occurred, it was not a proper party to this suit. We disagree. At the onset of trial, the named defendants included defendant Machine Shop, Inc., Morbark Industries, Inc., Morbark Maintenance Company, and Forestry Products, Inc. Before jury deliberations, plaintiff offered to stipulate the dismissal of all entities except defendant. In response, defense counsel indicated that he was “not going to object.” Consequently, the jury considered only defendant’s liability. Under the facts in this case, we find that the jury properly considered defendant’s liability under the wdca and the pwdcra. This Court applies the economic-reality test to determine whether an employer-employee relationship exists for purposes of the wdca. James v Commercial Carriers, Inc, 230 Mich App 533, 537; 583 NW2d 913 (1998). The test involves four basic factors: (1) control of the worker’s duties, (2) payment of wages, (3) the right to hire, fire, and discipline, and (4) performance of the duties toward the accomplishment of a common goal. Id. In applying these factors, the totality of the circumstances must be examined, with no single factor controlling. Id. Under this test, defendant was plaintiff’s employer for purposes of the wdca. At the time plaintiff participated in the work-hardening program and when he was laid off, he was working for defendant as a loaned employee. Defendant directed his activities. Further, defendant clearly had the right to hire, fire, and discipline plaintiff because, in making the decision to lay off plaintiff and not recall him for over eight months, defendant exercised these rights. With respect to factor four, plaintiff performed work that was part of a “common objective integral to [defendant’s] business” and work that would “normally follow the usual path of an employee.” Id. The only factor that arguably does not weigh in favor of the finding of an employment relationship is the payment of wages. However, we note that defendant paid plaintiff’s actual employer, Forestry Products, Inc., for the right to use plaintiff’s services. Thus, under the economic-reality test, we find that defendant was plaintiff’s employer. With respect to the PWDCRA, we hold that because liability under the act is not dependent on the actual existence of an employer-employee relationship at the time of the adverse employment action but, rather, on the ability to affect adversely the terms and conditions of an individual’s employment or potential employment, defendant’s position lacks merit. The act addresses the conduct of an “employer” who takes adverse employment action against an “individual” because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job. MCL 37.1202(1)(a); MSA 3.550(202)(1)(a). The act does not limit the definition of “employer” to the plaintiff’s employer but, instead, simply defines it as a “person who has 1 or more employees.” MCL 37.1201(b); MSA 3.550(201)(b). The scope of the act clearly encompasses actions taken by an employer before an employment relationship even exists, e.g., discriminatorily refusing to hire an applicant on account of a disability. Our reading of the plain language of the statute does not require that an employment relationship exist, but simply that the employer/defendant have the authority to affect a plaintiff’s employment or potential employment. Consequently, we find that the act was intended to encompass the relationship present in this case. n Defendant also claims that the trial court erred in denying its motions for a directed verdict and JNOV with respect to plaintiff’s worker’s compensation retaliation claim. We disagree. The grant or denial of a motion for a directed verdict or JNOV is reviewed de novo. Meagher v Wayne State Univ, 222 Mich App 700, 708; 565 NW2d 401 (1997); Forge v Smith, 458 Mich 198, 204; 580 NW2d 876 (1998). In either case, this Court must view the evidence and all legitimate inferences in the light most favorable to the nonmoving party. Forge, supra; Kubczak v Chemical Bank & Trust Co, 456 Mich 653, 663; 575 NW2d 745 (1998); Zeeland Farm Services, Inc v JBL Enterprises, Inc, 219 Mich App 190, 195; 555 NW2d 733 (1996). The denial of a motion for a directed verdict or JNOV is reviewed to determine whether the nonmoving party failed to establish a claim as a matter of law. Kubczak, supra; Forge, supra. Pursuant to the wdca, an employer may not discharge an employee or in any manner discriminate against an employee because the employee filed a complaint or instituted or caused to be instituted a proceeding under [the wdca] or because of the exercise by the employee on behalf of himself or herself or others of a right afforded by [the wdca]. [MCL 418.301(11); MSA 17.237(301)(11).] The burden is on plaintiff to show that there was a causal connection between the protected activity, i.e., the filing of his worker’s compensation claim, and the adverse employment action. See, by analogy, DeFlaviis v Lord & Taylor, Inc, 223 Mich App 432, 436; 566 NW2d 661 (1997). The lower court instructed the jury that plaintiff had the burden of proving that (1) he asserted his right for worker’s compensation, (2) defendant laid off or failed to recall plaintiff, (3) defendant’s stated reason for its actions was a pretext, and (4) defendant’s true reasons for its actions were in retaliation for plaintiff’s having filed a worker’s compensation claim. The court further instructed the jury that it should find for defendant only if retaliation was not one of the motivating factors in its decisions. This instruction appears to have been based on SJI2d 105.04, which sets forth the shifting burdens of proof that apply in retaliation claims based on the Civil Right Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. Neither party objected to the jury instructions at trial, and this Court is satisfied that these instructions accurately set forth the shifting burdens of proof that should also apply in a worker’s compensation retaliation suit. See also, DeFlaviis, supra. It is undisputed that plaintiff applied for and received worker’s compensation benefits and that he was laid off and not recalled. Defendant claims that plaintiff’s layoff was not an adverse employment action. However, there was sufficient evidence to show that defendant’s stated reason for termination was a pretext. Evidence indicated that although plaintiff had worked for Morbark Industries, Inc., for twenty-two years, no disciplinary action was noted in his personnel file. To the contrary, personnel records expressly and repeatedly indicated that plaintiff was an excellent worker. Although Cotter indicated that these positive reports had been fabricated for internal reasons, the jury was free to reject this testimony as untruthful and self-serving. Along the same vein, defendant claimed that plaintiff’s performance was so poor that defendant had no intention of calling him back to work in any position. Yet, after plaintiff filed this lawsuit, defendant recalled him, allegedly because of the company’s standard practice of recalling the most qualified workers to fill open positions. From this evidence, the jury could have concluded that defendant’s stated reason for laying off the plaintiff and failing to recall him was pure pretext. Moreover, there was sufficient evidence from which a reasonable juror could have concluded that a retaliatory motive contributed to defendant’s actions. DeFlaviis, supra at 436. Plaintiff testified that he actively pursued having his work restrictions lifted because company representatives assured him that this was the only obstacle keeping him from returning to his full wages. In effect, plaintiff was terminated on the day after he succeeded in ending his own worker’s compensation eligibility. On the basis of the timing of the layoff, evidence that cutbacks were not necessary, evidence that upper management inquired into the cost of plaintiff’s worker’s compensation benefits, and evidence of defendant’s role in having the work restrictions lifted, it was reasonable for the jury to conclude that retaliation was a motive for laying off plaintiff and not recalling him. Thus, the trial court’s denial of defendant’s motions for jnov and a directed verdict was not error. m Defendant next claims that the lower court erred in denying its motions for a directed verdict and JNOV with respect to plaintiffs pwdcra claim. We agree. We read the PWDCRA in light of the primary goal of judicial interpretation, which is to ascertain and give effect to the intent of the Legislature. Shallal v Catholic Social Services of Wayne Co, 455 Mich 604, 611; 566 NW2d 571 (1997). Unless defined in the statute, every word or phrase of a statute should be accorded its plain and ordinary meaning, taking into account the context in which the words are used. People v Lee, 447 Mich 552, 557-558; 526 NW2d 882 (1994). Provisions of a statute are not construed in isolation but, rather, in the context of other provisions of the same statute to give effect to the purpose of the whole enactment. Guitar v Bieniek, 402 Mich 152, 158; 262 NW2d 9 (1978). “Further, in interpreting provisions of the [pwdcra], analogous federal precedents are persuasive, although not necessarily binding.” Chmielewski v Xermac, Inc, 457 Mich 593, 601-602; 580 NW2d 817 (1998). This Court and the Michigan Supreme Court have noted that the federal Americans with Disabilities Act (ADA), 42 USC 12101 et seq., and the pwdcra share the same purpose and use similar definitions and analyses, and both courts have relied on the ADA in interpreting the pwdcra. Chmielewski, supra at 602-603; Collins v Blue Cross Blue Shield of Michigan, 228 Mich App 560, 568; 579 NW2d 435 (1998); Stevens v Inland Waters, I

GROW v W A THOMAS COMPANY Docket No. 209865. Submitted July 1, 1999, at Lansing. Decided August 6, 1999, at 9:00 a.m. Leave to appeal sought. Shirley A. Grow brought an action in the Washtenaw Circuit Court against W. A. Thomas Company and W. A. Thomas Company supervisor Dennis Arquette, alleging liability under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and seeking damages for constructive discharge and emotional distress for sexual discrimination in the form of a hostile work environment. The court, Melinda Morris, J., granted summary disposition for the defendants with respect to the constructive discharge claim. A mediation panel rendered an evaluation in favor of the plaintiff. The mediation evaluation was accepted by the plaintiff, but rejected by the defendants. A jury returned a verdict for the plaintiff. The court entered a judgment consistent with the verdict, and awarded interest, costs, and attorney fees. The award of attorney fees was made pursuant to the Civil Rights Act and the mediation court rule, MCR 2.403. The defendants appealed. The Court of Appeals held: 1. The trial court did not abuse its discretion in rejecting the defendants’ proposed jury instruction regarding how an employer can avoid liability for a hostile work environment through adequate investigation and prompt and remedial action. The trial court fairly and accurately advised the jury of the applicable law by instructing the jurors to determine whether W. A. Thomas Company, once it knew or should have known of the alleged harassment by Arquette, adequately investigated and implemented prompt and appropriate corrective action. 2. The trial court did not abuse its discretion in rejecting portions of the defendants’ proposed jury instructions that dealt with unwelcome sexual conduct or communication and an employee’s participation in sexual conduct or communication. The proposed instruction concerning participation in sexual conduct or communication would have incorrectly advised the jury that such participation, standing alone, will defeat a claim of hostile work environment. The trial court’s instruction concerning unwelcome sexual conduct or communication fairly and adequately stated the applicable law. 3. The trial court properly refused to instruct the jury that the plaintiffs damages for emotional distress should be limited as of the date the defendants discovered certain false statements on the plaintiffs employment application. Evidence of employee wrongdoing acquired after the employer has illegally discriminated against the employee may limit the amount of economic damages available to the employee, but may not limit the amount of damages for emotional distress. The purpose of the after-acquired evidence rule is to ensure that an employee does not benefit from the employee’s own misconduct or misrepresentation in obtaining employment that otherwise would have been denied to the employee, a consideration not present where only damages for emotional distress are claimed. 4. The trial court did not abuse its discretion in excluding the testimony of a rebuttal witness for the defendants. Because the defendants did not file a counterclaim, they were not entitled to present rebuttal evidence after resting their defense. In any event, the proposed rebuttal testimony would have been cumulative to evidence already presented by other defense witnesses. 5. By not objecting at trial, the defendants failed to preserve their challenge to the plaintiffs testimony that she felt compelled to quit her job. The trial court properly refused to admit into evidence the order that dismissed the plaintiffs claim of constructive discharge. Such an admission could have caused juror confusion. 6. The trial court did not abuse its discretion in allowing the plaintiffs therapist to testify as an expert regarding posttraumatic stress disorder. The therapist, a certified social worker, was qualified to testify as an expert by virtue of his experience in counseling persons who suffered from the disorder. The fact that he was not a medical practitioner did not render him unqualified as an expert witness. Any limitations in his qualifications are relevant to the weight, not the admissibility, of his testimony. 7. The trial court did not abuse its discretion in awarding attorney fees to the plaintiff under the Civil Rights Act. The trial court clearly and carefully considered the results achieved and the existence of the contingent fee agreement in determining a reasonable attorney fee. 8. The trial court’s award of attorney fees under the mediation court rule, MCR 2.403, must be vacated. A prevailing party may not recover an award of attorney fees under MCR 2.403 where the party has already been compensated for reasonable attorney fees under a fee-shifting statute like the Civil Rights Act. 9. The trial court properly awarded prejudgment interest on the entire judgment, including the award of costs and attorney fees. MCL 600.6013; MSA 27A.6013, in providing that interest attributable to that part of the money judgment from which attorney fees are paid shall be retained by the plaintiff, does not render ambiguous its requirement that interest be calculated on the entire amount of the judgment, including attorney fees and costs. 10. The matter must be remanded for a determination of reasonable appellate attorney fees awardable to the plaintiff. Affirmed in part, vacated in part, and remanded. 1. Civil Rights — Sexual Harassment — Hostile Work Environment — Employees — Supervisors — Affirmative Defense. An employer is vicariously liable for a supervisor’s creation of a hostile work environment unless the employer can prove, by a preponderance of the evidence, that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise; this affirmative defense is not available where the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 2. Civil Rights — Sexual Harassment — Hostile Work Environment. A plaintiff employee who claims hostile work environment must establish that the employee belonged to a protected group, that the employee was subjected to communication or conduct on the basis of sex, that the employee was subjected to unwelcome sexual conduct or communication, and that the unwelcome sexual conduct or communication was intended to or in fact substantially interfered with tíie employee’s employment or created an intimidating, hostile, or offensive work environment, and must establish respondeat superior (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 3. Civil Rights — Sexual Harassment — Hostile Work Environment — Employee Participation in Sexual Conduct or Communication. A plaintiff employee’s participation in sexual behavior or comments, standing alone, does not necessarily defeat a claim of hostile work environment; such participation is merely a factor to consider when determining whether the conduct or comments were unwelcome (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 4. Civil Rights — Employment Discrimination — Employee Wrongdoing — Damages. Evidence of wrongdoing by an employee that is acquired by the employer after the employer has illegally discriminated against the employee may limit the amount of economic damages available to the employee for discrimination, but may not limit the amount of damages available for emotional distress (MCL 37.2101 et seq.; MSA 3.648[101] et seq.). 5. Civil Rights — Civil Rights Act — Attorney Fees. A court determining a reasonable attorney fee to be awarded in an action brought pursuant to the Civil Rights Act considers the skill, time, and labor involved, the likelihood, if apparent to the client, that the acceptance of the employment will preclude other employment by the lawyer, the fee customarily charged in that locality for similar services, the amount in question and the results achieved, the expense incurred, the time limitations imposed by the client or the circumstances, the nature and length of the professional relationship with the client, the professional standing and experience of the attorney, and whether the fee is fixed or contingent (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 6. Pretrial Procedure — Mediation — Attorney Fees. A prevailing party may not recover an award of attorney fees under the mediation court rule where the party has already been compensated for reasonable attorney fees under a fee-shifting statute (MCR 2.403). 7. Civil Rights — Civil Rights Act — Attorney Fees — Appellate Attorney Fees. The purpose of the Civil Rights Act provision for attorney fees is to encourage persons deprived of their civil rights to seek legal redress, to ensure victims of discrimination access to the courts, and to deter discrimination; appellate attorney fees may be awarded under the act (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). Kurt Berggren, for Shirley A. Grow. Barlow & Derby (by Matthew S. Derby and Christine R. Essique), for W. A. Thomas Company and Dennis Arquette. Amicus Curiae: Clark Hill P.L.C. (by Duane L. Tamacki, J. Walker Henry, and Julie A. Lawson), for Michigan Manufacturers Association. Before: Murphy, P.J., and Doctoroff and Neff, JJ. Neff, J. Defendants W. A. Thomas Company (hereafter defendant) and Dennis Arquette appeal as of right from the trial court’s judgment for plaintiff in this sexual harassment case involving an alleged hostile work environment. We affirm in part, vacate the judgment in part, and remand for further proceedings consistent with this opinion. i Plaintiff began working for defendant in March 1994. Plaintiff testified that from the very beginning Arquette, her supervisor, subjected her to continuous sexual harassment. We do not deem it necessary to describe in detail the specific conduct described by plaintiff. It is sufficient to note that plaintiff testified that Arquette’s alleged conduct toward her included sexually explicit comments and unwanted kissing and groping; Plaintiff testified that she complained about Arquette’s conduct to another supervisor and to the plant manager, and that these men personally witnessed some of Arquette’s sexual conduct in the workplace, but that no action was taken to punish Arquette for the sexual harassment or to prevent further occurrences. Plaintiff testified that after Arquette began berating her for things such as her attitude, work output, and attendance record, she quit. Plaintiff testified that defendant sent her a copy of a newly formed sexual harassment policy and ordered her to return to work. Plaintiff complied, but found the harassment had turned from sexual to something more hostile. After four days back on the job, plaintiff quit again. She described for the jury the emotional distress she suffered, including a suicide attempt and various physical ailments. Defendants denied that plaintiff was subjected to a sexual and hostile work environment. Arquette stated that although he may have touched plaintiff, or given her a casual hug on occasion, he denied ever touching her in a sexual manner. In addition, defendant’s plant manager denied witnessing any inappropriate conduct by Arquette and denied that plaintiff ever complained of sexual harassment before quitting. Defendants presented evidence regarding their investigation of Arquette’s conduct, which failed to reveal any corroboration of plaintiff’s allegations. Defendants also presented evidence that plaintiff, rather than Arquette, was the one who made crude, sexual comments and engaged in offensive behavior in the workplace. In addition, defendants presented the testimony of some of plaintiff’s former employers, who testified that the reasons for plaintiff’s leaving previous employment were insubordination and poor attendance, contrary to plaintiff’s representations on her employment application with defendant. Plaintiff filed a complaint alleging a hostile work environment pursuant to the Civil Rights Act (cra), MCL 37.2101 et seq.; MSA 3.548(101) et seq. On defendants’ motion, plaintiff’s constructive discharge claim was summarily dismissed, thus leaving only her claim for emotional distress damages. A mediation evaluation for $125,000 was accepted by plaintiff and rejected by defendants. After a six-day jury trial, the jury found defendants liable and awarded plaintiff $80,555 in emotional distress damages. The court awarded plaintiff $43,376.66 in attorney fees and costs, and $37,827.50 in mediation sanctions, bringing the total judgment to $192,684. This appeal followed. n Defendants raise several challenges to the instructions given to the jury. A trial court’s decisions regarding jury instructions are reviewed for an abuse of discretion. Lagalo v Allied Corp (On Remand), 233 Mich App 514, 519; 592 NW2d 786 (1999). We review the instructions in their entirety and will not reverse a court’s decision regarding supplemental instructions unless failure to vacate the verdict would be inconsistent with substantial justice. Nabozny v Pioneer State Mut Ins Co, 233 Mich App 206, 217; 591 NW2d 685 (1998). A Defendants first argue that the trial court erred in its instructions regarding the effect of defendants’ investigation of plaintiff’s complaints and subsequent remedial action. We disagree. As defendants correctly note, an employer may avoid liability under the CRA “if it adequately investigated and took prompt and appropriate remedial action upon notice of the alleged hostile work environment.” Downer v Detroit Receiving Hosp, 191 Mich App 232, 234; 477 NW2d 146 (1991); see Radtke v Everett, 442 Mich 368, 396; 501 NW2d 155 (1993). However, the duty to investigate arises only if the employer has actual or constructive notice of the alleged offensive environment. Downer, supra at 234-235. In the recent cases of Burlington Industries, Inc v Ellerth, 524 US 742; 118 S Ct 2257; 141 L Ed 2d 633 (1998), and Faragher v Boca Raton, 524 US 775; 118 S Ct 2275; 141 L Ed 2d 662 (1998)—both decided after trial in the present case—the United States Supreme Court held that an employer is vicariously hable for a supervisor’s creation of a hostile environment unless the employer can prove, by a preponderance of the evidence, both elements of the following affirmative defense: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. [Ellerth, supra, 118 S Ct 2270; Faragher, supra, 118 S Ct 2293.] This affirmative defense is not available where the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. Id. On appeal, defendants complain that the trial court erred in refusing to give their proposed instruction regarding this subject in its entirety. We find no abuse of discretion in the trial court’s decision. Although the court’s instructions perhaps were not as detailed as defendants may have liked, they fairly and accurately advised the jury of the applicable law. The jury was instructed that it must determine whether defendant, once it knew or should have known of the alleged harassment committed by Arquette, adequately investigated and implemented prompt and appropriate corrective action. On its verdict form, the jury specifically found that defendant did not. The result of this determination by the jury, whether viewed as an element of plaintiff’s claim or as a part of an affirmative defense, is vicarious liability for defendant. Consequently, substantial justice does not require reversal of the jury’s verdict on the basis of the trial court’s failure to read instruction 36 in its entirety. B Defendants also argue about the trial court’s rulings regarding defendant’s proposed instructions 33 and 34, which focus on evidence of plaintiff’s own sexual activities in the workplace. The trial court gave the first paragraph, but not the second, of each of these instructions: 33. DEFINITION OF UNWELCOME SEXUAL CONDUCT OR COMMUNICATION The threshold for determining that sexual conduct or communication is unwelcome is that the employee did not solicit or incite it, and the employee regarded the sexual conduct or communication as undesirable or offensive. Evidence of an employee’s participation and/or initiation in the sexual conduct or communication is relevant to determining whether the employee found the sexual conduct or communication of others unwelcome. An employee’s participation and/or initiation in the sexual conduct or communication will defeat an employee’s allegation of unwelcomeness unless the employee establishes a point at which her participation and/or initiation stopped and at which she made known to her coworkers or supervisors that the sexual conduct or communication would henceforth be considered unwelcome. 34. DEFINITION OF INTIMIDATING, HOSTILE, OR OFFENSIVE WORK ENVIRONMENT Not all sexual conduct or communication constitutes hostile environment sexual harassment. To sustain a claim of hostile environment sexual harassment, the harassment must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Evidence of an employee’s active contribution in the sexual conduct or communication is relevant to determining whether a hostile working environment existed. An employee’s active contribution in the sexual conduct or communication- will defeat an employee’s allegation of hostile work environment. In the present case, plaintiff bore the burden of establishing the following elements of a hostile work environment: (1) the employee belonged to a protected group; (2) the employee was subjected to communication or conduct on the basis of sex; (3) the employee was subjected to unwelcome seocual conduct or communication; (4) the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with the employee’s employment or created an intimidating, hostile, or offensive work environment; and (5) respondeat superior. [Radtke, supra at 382-383 (emphasis added).] Defendants presented evidence in support of their claim that plaintiff often engaged in sexual conduct herself. Plaintiffs own conduct was therefore relevant to the question whether Arquette’s alleged acts were “unwelcome.” See, e.g., Balletti v Sun-Sentinel Co, 909 F Supp 1539, 1547 (SD Fla, 1995) (“Where a plaintiff’s action in the work place shows that she was a willing and frequent participant in the conduct at issue, courts are less likely to find that the conduct was ‘unwelcome’ or ‘hostile.’ ”) However, plaintiff’s participation in sexual behavior or comments, standing alone, does not necessarily defeat a claim of hostile work environment. To the contrary, it is merely a factor to consider when determining whether the conduct or comments at issue were “unwelcome.” For this reason, the second paragraph of defendants’ proposed instruction 34 is an incorrect statement of the law and was properly rejected by the trial court. Regarding the second paragraph of instruction 33, we note that the last sentence is a reasonable paraphrase of a footnote in Loftin-Boggs v City of Meridian, 633 F Supp 1323, 1327, n 8 (SD Miss, 1986). Accordingly, had the trial court chosen to give this portion of the instruction, it would have been a proper exercise of discretion. See Radtke, supra at 381-382 (Michigan courts often turn to federal precedent interpreting title VII for guidance when interpreting the cra). However, the trial court’s refusal to give the second paragraph of ins