Retaliation Cases

CHRIS TELESCA, Plaintiff v. SAS INSTITUTE INC., Defendant No. COA98-913 (Filed 15 June 1999) Statute of Limitations— commencement of action — delayed service — Rule 3 The trial court did not err by dismissing a REDA (Retaliatory Employment Discrimination Act) claim on the grounds that the statute of limitations had run where plaintiff attempted to commence the action by delayed service, the application for the extension to file the complaint was filed and a summons issued by the clerk’s office that day, that summons was not sufficient to begin the action because it was not issued pursuant to an order entered by the clerk granting plaintiff’s application for an extension, a second summons was issued pursuant to such an order and that summons commenced the action, and the action accordingly commenced beyond the time limit. Appeal by plaintiff from order filed 16 April 1998 by Judge Henry V. Barnette, Jr: in Wake County Superior Court. Heard in the Court of Appeals 30 March 1999. Daniel F. Read, for plaintiff-appellant. Ogletree, Deakins, Nash, Smoak and Stewart, P.C., by A. Bruce Clarke, C. Matthew Keen, and Robert A. Sar, for defendant-appellee. GREENE, Judge. Christopher Telesca (Plaintiff) appeals from the trial court’s grant of SAS Institute’s (Defendant) motion to dismiss. Plaintiff was employed with Defendant as a photographer and was terminated. After his termination, Plaintiff filed a complaint with the Workplace Retaliatory Discrimination Division of the North Carolina Department of Labor (NCDOL), alleging retaliatory termination. The NCDOL issued Plaintiff a right-to-sue letter on 19 September 1995, giving Plaintiff until 18 December 1995 to commence a civil action against Defendant. On 18 December 1995, Plaintiff filed an application with the Wake County Superior Court clerk’s office for an extension to file his complaint. On that same date, the clerk’s office issued a summons to Defendant directing it to “answer the complaint of the plaintiff.” The summons, however, was not accompanied by a complaint. On 22 December 1995, a deputy superior court clerk entered an order allowing Plaintiff’s application, ordered Plaintiff’s complaint to be filed on or before 7 January 1996, and issued a civil summons commencing Plaintiff’s suit. This summons, which was served on Defendant along with the order of the clerk authorizing the complaint extension, notified Defendant that it was required to serve its answer “to the complaint upon the plaintiff ... after you have been served with the complaint as authorized in the attached order.” Plaintiff did not file his complaint until 9 January 1996. On 29 April 1996, Plaintiff voluntarily dismissed his complaint against Defendant without prejudice, but refiled his complaint on 15 April 1997, alleging, among other claims, a violation of the Retaliatory Employment Discrimination Act (REDA). On 27 February 1998, Defendant moved to dismiss the REDA claim on the grounds that the statute of limitations had expired. The motion was allowed on 16 April 1998. The dispositive issue is whether a civil action is commenced, within the meaning of Rule 3 of our Rules of Civil Procedure, upon the filing of an application for an extension of time to file a complaint and upon the issuance of a summons. A civil action under REDA must “be commenced by an employee within 90 days of the date upon which the right-to-sue letter was issued.” N.C.G.S. § 95-243(b) (1993). A civil action can be commenced either by: (1) “filing a complaint with the court”; or (2) the issuance of a summons when a person makes an “application to the court. . . requesting permission to file [a] complaint within 20 days” and “[the] court makes an order . . . granting the requested permission.” N.C.G.S. § 1A-1, Rule 3(a) (1990). “The summons and the court’s order shall be served in accordance with the provisions of Rule 4.” Id. Thus, an action is not commenced under the delayed service provision of Rule 3 until: (1) an application is made to the court for permission to file a complaint within twenty days; (2) the corut enters an order granting that extension; and (3) a summons is issued pursuant to that order. See Osborne v. Walton, 110 N.C. App. 850, 431 S.E.2d 496 (1993). In this case, Plaintiff attempted to commence his action by delayed service. The application for the extension to file the complaint was filed on 18 December 1995 and a summons was issued by the clerk’s office on that day. This summons was not sufficient to commence the action because it was not issued pursuant to an order entered by the clerk granting Plaintiff’s application for an extension. A second summons dated 22 December 1995, however, was issued pursuant to an order entered by the clerk granting Plaintiff’s application for a complaint extension, and that summons commenced Plaintiff’s action. Accordingly, Plaintiff’s REDA action commenced on 22 December 1995, ninety-four days after the right-to-sue letter was issued and four days beyond the ninety-day time limit mandated in section 95-243(b). The trial court, therefore, properly granted Defendant’s motion to dismiss on the grounds that the statute of lim-Rations had run on Plaintiffs REDA claim. See Long v. Fink, 80 N.C. App. 482, 484, 342 S.E.2d 557, 559 (1986) (statute of limitations violation is a proper basis for the trial court to dismiss a time-barred claim). Affirmed. Judges MARTIN and McGEE concur. . Because 7 January 1996 fell on a Sunday, Plaintiff automatically was given an extension until Monday, 8 January 1996. See N.C.G.S. § 1A-1, Rule 6 (1990). . Although Plaintiff asserts several claims in this re-filed complaint, he only presents and discusses the dismissal of his REDA claim in his brief to this Court. We, therefore, only address the validity of that claim, as he abandoned his right to appellate review of the dismissal of his other claims. See N.C.R. App. P. 28(a).

LeGENDRE v MONROE COUNTY Docket No. 194647. Submitted November 18, 1997, at Lansing. Decided April 2, 1999, at 9:15 A.M. Terrie J. LeGendre and Nancy M. Feick, former Monroe County assistant prosecutors, brought an action under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., against Monroe County and the Monroe County Prosecutor after they were not reappointed as assistant prosecutors and not offered other employment with the county. LeGendre alleged gender discrimination and retaliation for filing civil rights complaints with the Equal Employment Opportunity Commission and the Michigan Department of Civil Rights. Feick raised the same allegations made by LeGendre and further alleged age discrimination and raised issues concerning political activity and affiliation. Both plaintiffs alleged that they suffered embarrassment, mortification, humiliation, and outrage as a result of the claimed discriminatory acts of the defendants. The court, Timothy P. Pickard, J., granted a motion by the defendants for severance of the plaintiffs’ actions. After LeGendre asserted the physician-patient privilege in declining to answer the defendants’ interrogatories about her medical history, including psychiatric care, if any, the court granted defendants’ motion under MCR 2.314 to preclude her from presenting evidence about her medical history or mental or physical condition as they relate to the claim of mental distress. After LeGendre failed to comply with a discovery order to produce medical records related to a physical injury for which she received disability insurance benefits while employed in the prosecutor’s office, the court dismissed her action. LeGendre appealed. The Court of Appeals held,-. 1. The trial court did not abuse its discretion in granting the defendants’ motion for severance. Different proofs would be required to establish each of the plaintiffs’ cases in light of differences in their backgrounds, levels of experience, length of employment in the prosecutor’s office, and positions held in the prosecutor’s office. Feick also raised claims that were not raised by LeGendre. There was great potential for jury confusion and prejudice against the defendants had the claims not been severed. 2. The trial court did not err in precluding LeGendre from presenting evidence of her medical history or mental or physical condition. Administrative Order No. 1996-4 constrains this panel of the Court of Appeals to follow the holding in Hyde v Univ of Michigan Bd of Regents, 226 Mich App 511 (1997), that allegations of ordinary mental distress by a plaintiff in an employment discrimination case place the plaintiff’s mental condition in controversy and, thus, make it open to discovery pursuant to MCR 2.314. MCR 2.314(B)(2) provides that, unless the court orders otherwise, if a party asserts that medical information is subject to a privilege and the assertion has the effect of preventing discovery of medical information otherwise discoverable under MCR 2.302(B), the party may not thereafter present or introduce any physical, documentary, or testimonial evidence relating to the party’s medical history or mental or physical condition. Were it not for Hyde, the Court would hold that the mental condition of a party is in controversy for purposes of MCR 2.314 when there is a separate tort claim for emotional distress, the plaintiff alleges that the plaintiff suffers from a severe ongoing mental injury or a psychiatric disorder, the plaintiff will offer expert testimony to support the claim, or the plaintiff concedes that the plaintiff’s mental condition is in controversy. Because none of these situations is involved in this case, the Court, were it not for Hyde, would reverse the order precluding the plaintiff from introducing evidence supportive of her claim of emotional distress. 3. The trial court abused its discretion in dismissing LeGendre’s action for her failure to comply with the discovery order for the production of medical records related to her disability claim. An in camera hearing is the appropriate vehicle to determine whether the information requested was protected by the physician-patient privilege as contended by LeGendre. The case must be remanded for such a determination. Orders of severance and preclusion of LeGendre from presenting evidence regarding emotional distress affirmed; order of dismissal vacated; case remanded for in camera hearing regarding whether disability medical records are subject to privilege. 1. Trial — Severance. A court may grant a motion for separate trials to avoid prejudice or for convenience, expedition, or economy; although a ruling regarding such a motion is reviewed on appeal for abuse of discretion, severance should be ordered only upon the most persuasive showing that the convenience of all the parties and the court requires it (MCR 2.505[B]). 2. Peetrial Procedure — Discovery — Remedies — Appeal. The Court of Appeals reviews for abuse of discretion a trial court’s decision to dismiss an action or impose sanctions for the plaintiff’s failure to permit discovery. 3. Pretrial Procedure — Discovery — Privileged Information — In Camera Hearings. An in camera hearing is the appropriate vehicle to determine whether information requested in discovery proceedings is protected by a statutory privilege. Green & Green (by Christine A. Green), for Terrie J. LeGendre. Cummings, McClorey, Davis & Acho, P.C. (by Suzanne P. Bartos and Thomas J. Laginess), for Monroe County. Johnson, Rosati, Galica, LaBarge, Aseltyne & Field, P.C. (by Laura A. Amtsbuechler and Marcelyn A. Stepanski), for Monroe County Prosecutor. Before: Hood, P.J., and McDonald and White, JJ. Per Curiam. In this sex discrimination and retaliation case brought under the Civil Rights Act (cra), MCL 37.2101 et seq.; MSA 3.548(101) el seq., plaintiff appeals as of right from the circuit court’s orders severing plaintiff’s case from that of a coplaintiff; precluding plaintiff from presenting evidence relating to her psychological, emotional, or physical condition in support of her claims for noneconomic damages; and granting dismissal in favor of defendants. We vacate the circuit court’s order of dismissal and affirm its order severing the cases. Regarding the order precluding plaintiff from presenting evidence relating to her psychological, emotional, or physical condition, we disagree with, but must follow, Hyde v Univ of Michigan Bd of Regents, 226 Mich App 511; 575 NW2d 36 (1997), under Administrative Order No. 1996-4, and therefore affirm. Were it not for Hyde, we would reverse the portion of the order precluding testimony regarding plaintiffs ordinary psychological or emotional distress and remand for further proceedings consistent with this opinion. Plaintiff and Nancy M. Feick, initially a coplaintiff in this case, were attorneys in the Monroe County Prosecutor’s Office. Feick was hired by the prosecutor’s office in 1985 and plaintiff was hired in 1991. In January of 1991, Feick was promoted to chief assistant prosecutor by then-prosecutor William Frey. Defendant Edward F. Swinkey was elected Prosecuting Attorney of Monroe County in the 1992 election. Plaintiff had run against him. Plaintiff and Feick were the only two women working in the Monroe County Prosecutor’s Office when Swinkey took office. Plaintiffs and Feick’s employment ended on December 31, 1992, when Swinkey did not reappoint them. Two male assistant prosecutors were also not reappointed by Swinkey. Plaintiff and Feick filed complaints with the Equal Employment Opportunity Commission (eeoc) and the Michigan Department of Civil Rights (mdcr), claiming that Swinkey fired them because of their gender. Subsequently, plaintiff applied for an assistant prosecutor position and was granted an interview. During the interview, Swinkey questioned plaintiff about her discrimination charges and warned her that what she had said would be held against her. Swinkey hired a female applicant who had not yet passed the bar examination to fill the position. During the summer of 1993, plaintiff was offered the position of Special Prosecutor for Domestic Affairs for Monroe County, but only when she agreed to withdraw her discrimination charges. Plaintiff left that position at the end of 1993. In December of 1993, plaintiff applied for a position as a Monroe County Juvenile Court Referee, but a male was hired for the job. In the scant excerpts of plaintiffs deposition before us, plaintiff testified that she left the position of special prosecutor for domestic affairs after only six months because of a difference of opinion with a supervisor, John Pace, regarding her being on disability. Plaintiff testified that her doctor had told her that she could go back to work part-time following foot surgery. She testified that she was teaching at a community college at the time and had done so for the preceding four years. Plaintiff testified that she approached Pace regarding working part-time until the end of the college semester, which was in six weeks, and said that she would then return to work full-time. Plaintiff testified that Pace told her that if she could not work full-time as a prosecutor, she could not teach at the college. Plaintiff testified that classes at the college were starting that day, that she could not leave the college without an instructor, and that she therefore left the prosecutor’s position. Plaintiff believed she had been treated discriminatorily by her supervisor because a male co-worker had been allowed to take a great deal of disability time off and hold an outside job without reprisal. Plaintiff received disability payments after her foot surgery, but refused to divulge the amount at deposition, asserting the physician-patient privilege. Plaintiff and Feick filed their complaint on July 14, 1995. They alleged that defendants’ actions regarding their employment violated the cra, as well as their right to equal protection guaranteed by Const 1963, art 1, § 2. The complaint alleged that defendants fired and refused to rehire them because they were female, because of Feick’s age, and in retaliation for their civil rights complaints to the EEOC and the MDCR. It further alleged that they “each suffered injuries, all of which are continuing in nature,” including embarrassment, mortification, humiliation, and outrage. Before discovery began, Swinkey filed a motion to sever plaintiff’s and Feick’s claims, pursuant to MCR 2.505(B), 2.206, and 2.207, with which Monroe County concurred. The circuit court granted defendants’ motion, severing the cases for discovery as well as trial. After both defendants filed motions to compel plaintiff and Feick to answer interrogatories, the parties stipulated that plaintiff and Feick would produce the interrogatory answers within ten days. Plaintiff and Feick served answers to Swinkey’s interrogatories within the stipulated time, but both responded to the following interrogatories with the answer “Plaintiff objects to this interrogatory for the reason that it calls for privileged information.” 14. Have you treated with or consulted with any psychologist, psychiatrist, social worker, clergyman or other professional regarding the mental distress alleged in your Complaint? 15. If you [sic] response to the proceeding [sic] interrogatory was in the affirmative, please state: (a) The name and address of each and every such person visited; (b) The dates that you consulted with, or treated with each and every such professional; (c) Please complete, sign and return the enclosed authorization from [sic] for each and every such person. 16. List chronologically with dates, the names and addresses of all doctors, psychiatrists, psychologist or social workers whom you have seen or with whom you have consulted from January 1980 to present; the nature of the ailment or other reason for which each doctor was consulted and the treatment on each occasion. 17. Give the names and address of all hospitals, including psychiatric, where you have been either and [sic] in-patient or an out-patient during yo [sic] entire life and as to each hospital, give: (a) Date of admission and discharge; (b) Nature of the ailment or illness for which you were hospitalized; (c) Name and addresses of any attending physicians. The interrogatories also asked the foüowing question regarding physical injury: 18. Do you allege any physical injury as a result of the incidents alleged within your Complaint? If so, set forth the exact nature of all present physical complaints which you allege are attributable to the incidents complained of. ANSWER: No. 19. If you have been hospitalized or treated by a doctor or, [sic] medical professional by reason of this incident, list the names and addresses of all such hospitals, doctors clinics or other medical institutions with which you were a patient as well as the date of confinement in any hospital. ANSWER: Not applicable. 20. Have you discussed this case with any potential expert witnesses or do you intend to expect to call an expert to testify on your behalf as the time of trial?. . . . ANSWER: No. Swinkey filed a motion to preclude plaintiffs from presenting evidence of their physical and mental damages at trial pursuant to MCR 2.314(B)(2) so that he would not be “sandbagged” with unknown and unforeseen information. Monroe County concurred in Swinkey’s motion. At the beginning of the hearing regarding Swinkey’s motion, the circuit court requested that separate complaints be filed because it had not received them after entering its order to sever. Plaintiff’s counsel asserted that plaintiff had not put her physical and mental conditions in controversy simply by alleging embarrassment, mortification, humiliation, and outrage, and further stated that plaintiff did not plan to present expert testimony at trial about any physical or mental injuries suffered. The circuit court granted defendants’ motion, stating: It appears from the court rule that when you invoke the privilege that the parties may not thereafter present or introduce any physical, documentary or testimonial evidence relating to the medical history, mental or physical condition of the Plaintiff who is complaining. And I can see a real pitfall to the Defendant if such a motion were not filed for the simple reason that if the testimony comes in at the time of trial that somebody was crying uncontrollably or demonstrating mental or physical stress and trying to relate it to the complaint against the Defendant without the ability to discover these facts there might be some other underlying cause for that emotional distress. So, therefore, I would grant the motion. Swinkey subsequently filed a motion to compel production of plaintiff’s disability insurance records pursuant to MCR 2.313(A)(2)(a). Swinkey had requested medical records related to plaintiff’s disability claim, but plaintiff refused to release them, asserting the physician-patient privilege. Swinkey alleged that plaintiff left the special prosecutor’s job because of her disability, not because of defendants’ threats that she would receive and keep the job only if she dropped her discrimination complaints or because she was forced to choose between employment by Monroe County or by the community college. Swinkey claimed that he needed the disability records to ascertain plaintiff’s ability to hold the special prosecutor’s job or find similar employment and so meet her obligation to mitigate damages. Swinkey also argued that any disability payments plaintiff received after resigning her position as special prosecutor for domestic affairs were a collateral source that defendants should be allowed to deduct from any wage-loss claim under MCL 600.6303(1); MSA 27A.6303(1), and that this information should be contained in the disability insurance records. Swinkey further argued that defendants believed plaintiff was on disability for a different reason before returning to work for the prosecutor’s office in the summer of 1993. He argued that it appeared that plaintiff made the disability claim before leaving the prosecutor’s office on January 1, 1993. At the hearing regarding Swinkey’s motion, Swinkey’s counsel argued that although plaintiff was now willing to answer questions regarding when she received disability and the records of payments received, and that the parties would stipulate an order requiring that she answer those questions and produce records of payment, plaintiff still refused to release the medical records contained in the disability records on the basis of privilege. Counsel asserted that the records were relevant to plaintiff’s ability and efforts to mitigate her damages incurred after leaving the friend of the court position in 1993. Plaintiff’s counsel argued that plaintiff’s medical condition was irrelevant, in that it was not necessary to know the specific medical condition to determine whether plaintiff was available for work because, if she received disability benefits, she was unavailable for work and could not obtain back-pay for those periods. Counsel argued that it was the fact of disability that was relevant, that plaintiff had agreed to provide that information, and that the court had already stricken noneconomic damages and plaintiff still insisted on her right of privacy. Counsel for Monroe County then suggested a compromise, i.e., that the court view the medical records in camera. Plaintiff’s counsel and Swinkey’s counsel agreed, noting: Ms. Amtsbeuchler [defense counsel]: That would be fine. I just want to make sure we are clear, I think there is more than one disability application. I think there may be three: one before she can [sic, came] to the prosecutor’s office: one while she was at the prosecutor’s office, after the time she found out she wasn’t going to be reappointed: and three, at the special prosecutor’s job. We think they are all relevant, whether it was foot surgery or some other condition. I guess the condition may or may not be important depending on what it is. We have no way of knowing until, obviously, somebody takes a look at them. And if the court is willing to do that, that’s fine. Plaintiffs counsel responded: If the Court is inclined to provide copies of the medical records to the Defendants, I think in fairness to the Plaintiff the Plaintiff should have the opportunity to dismiss the lawsuit rather than waiving that privilege. The Court: At this point I will not read the medical records in camera because I will not investigate this case and do the work of the attorneys. I will grant the motion that she either produce those [disability records including the medical records] or the case be dismissed. Plaintiff did not produce the records, and the court dismissed her case. This appeal ensued. i First, we disagree with plaintiffs argument that the circuit court erred in granting defendants’ motion to sever her claims from Feick’s. MCR 2.505(B) allows a circuit court to sever trials to avoid prejudice or for convenience, expedition, or economy. Hodgins v Times Herald Co, 169 Mich App 245, 261; 425 NW2d 522 (1988). Although we review for abuse of discretion a circuit court’s grant of a motion to sever, the decision to sever trials should be ordered only upon the most persuasive showing that the convenience of all parties and the court requires it. Id.; Jemaa v MacGregor Athletic Products, 151 Mich App 273, 278; 390 NW2d 180 (1986). Plaintiff’s claims arose from a different set of occurrences than Feick’s, except, possibly, Swinkey’s not reappointing them on December 31, 1992. See Jemaa, id. at 279. On that date, plaintiff was an assistant prosecutor and had worked for the prosecutor’s office for about one year, while Feick was chief assistant prosecutor and had worked for the prosecutor’s office for over seven years. Feick had more responsibility and more seniority than plaintiff. After not being reappointed, plaintiff and Feick applied for different positions

FRANZEL v KERR MANUFACTURING COMPANY Docket No. 201802. Submitted November 3, 1998, at Detroit. Decided March 30, 1999, at 9:00 A.M. Shirley Franzel brought an action in the Wayne Circuit Court against Kerr Manufacturing Company and Rebecca Leinen, Kerr’s vice president of human resources, alleging several claims as a result of Franzel’s second termination from employment. The court, Kay Tertzag, J., granted Leinen’s motion for summary disposition and dismissed the plaintiff’s claims of sexual harassment, hostile work environment sex discrimination, retaliation for attempting to oppose a violation of the Civil Rights Act, and intentional infliction of emotional distress. The jury considered the claims of wrongful discharge, sex discrimination in violation of the Civil Rights Act, and breach of contract for Kerr’s alleged violation of an unconditional offer to the plaintiff to return to work after her first termination from employment. The jury, specifically finding that the plaintiff was not an employee whose employment could be terminated for just cause only, found no wrongful discharge. The jury also found no sex discrimination, but did find that Kerr breached the contract between it and the plaintiff made before the plaintiff returned to work after her first termination from employment. The jury awarded the plaintiff damages but reduced the amount because of the plaintiff’s failure to mitigate her damages. Kerr appealed and the plaintiff cross appealed. The Court of Appeals held: 1. The plaintiff was entitled to only nominal damages for the breach of the at-will employment contract. The court erred in denying Kerr’s motion for remittitur, and that order must be reversed. 2. The jury did not find that the plaintiff had been an at-will employee before her first termination from employment or that following her reinstatement she was an employee whose employment could be terminated for just cause only. 3. The plaintiff was on notice when she signed the reinstatement contract that her employment was at will. 4. The court erred in admitting, over Kerr’s objection, a letter written by Kerr’s counsel to defendant Leinen. The letter was not intentionally presented to the plaintiff by Kerr’s counsel. An unprejudiced person reviewing the evidence would find no justification or excuse for the court’s decision to deny Kerr’s motion to suppress the evidence. The letter was improperly admitted and its contents created undue prejudice against Kerr. The admission of the evidence constituted error requiring reversal of the judgment with regard to the breach of contract claim. 5. The court abused its discretion in permitting an expert witness to testify that the plaintiff is a credible witness and in permitting the witness to testify with regard to matters outside the witness’ field of expertise. The expert witness should not have been allowed to testify with regard to evidence that was subject to the attorney-client privilege and that was erroneously admitted into evidence. 6. The court did not err in finding either no genuine issue of material fact regarding the claims of intentional gender discrimination, sexual harassment, retailiation for opposing a violation of the Civil Rights Act or the failure to state a claim regarding sexual harassment, gender discrimination by defendant Leinen, or intentional infliction of emotional distress. Those orders of summary disposition must be affirmed. Affirmed in part, reversed in part, and remanded. 1. Contracts — Employment at Will — Breach of Contract — Damages. The measure of damages for an employer’s breach of an employment contract involving an at-will employee is nominal damages. 2. Contracts — Damages. Neither mental distress damages nor exemplary damages are available in an action for breach of contract, even if the breach was malicious or wilful. 3. Master and Servant — Employment at Will. An at-will employment relationship is presumed where an employment agreement is silent regarding the type of employment relationship intended. 4. Witnesses — Experts — Opinion Testimony — Appeal. Whether a witness is qualified to render an expert opinion and the admissibility of an expert’s testimony are matters within a trial court’s discretion; an abuse of discretion will be found only if an unprejudiced person, considering the facts on which the trial court acted, would say there was no justification or excuse for the ruling. 5. Witnesses — Experts. The subject matter of an expert’s testimony should be directly related to and within the immediate scope of the witness’ expertise; a prerequisite to the admission of an expert’s testimony is a showing that the expert has knowledge in a particular area that belongs more to an expert than to the common man; an expert should not be permitted to express an opinion where the jury is in as good a position as the expert to determine intelligently the issue involved without enlightenment from the expert (MRE 702). 6. Witnesses — Experts — Work-Product Privilege. Facts known and opinions held by an expert are not work product, but the expert’s arrangement of those facts and opinions in a report, made in direct response to the inquiries of an attorney, is work product protected by the work-product privilege (MCR 2.302[B][4]). 7. Trial — Witnesses — Jury Trial — Witness Credibility — Expert Testimony. The jury is the sole arbiter of witness credibility in a jury trial; expert testimony regarding the credibility of a witness is improper in a jury trial. Allen J. Counard, P.C. (by Allen J. Counard), for the plaintiff. Kell & Lynch, P. C. (by M. V. Kell and Margaret A. Lynch), for Kerr Manufacturing Company. Before: Hood, P.J., and Griffin and Markey, JJ. Per Curiam. Kerr Manufacturing Company (hereafter defendant) appeals by right the jury verdict finding that while defendant did not wrongfully discharge plaintiff Shirley Franzel or commit sexual discrimination against her, defendant did breach the parties’ contract that formed the basis for plaintiff’s return to work in January 1987. Plaintiff cross appeals to determine whether the trial court erred in summarily dismissing plaintiff’s claims under the Civil Rights Act (cra) of intentional gender discrimination, MCL 37.2202(1); MSA 3.548(202)(1), hostile work environment sexual harassment, MCL 37.2103(1); MSA 3.548(103)(i), retaliation for attempting to oppose a violation of the CRA, MCL 37.2701; MSA 3.548(701), gender discrimination by defendant Rebecca Leinen, Kerr’s vice president of human resources, and her claim of intentional infliction of emotional distress. Plaintiff also cross appeals from the trial court’s refusal to enter an order of judgment including costs, attorney fees, or mediation sanctions. We vacate the judgment in favor of plaintiff and affirm regarding the cross appeal. FACTS Plaintiff worked as a sales representative, district manager, and metro market manager for defendant, a dental products manufacturer, from 1981 through July 1986, and again from January 1987 through May 1987. Plaintiff aspired to the position of regional manager, but allegedly defendant and a host of its employees were committed to preventing a woman from reaching upper management. Plaintiff claims that defendant began discriminating and conspiring against her after three January 1986 incidents at a national sales meeting in Marco Island, Florida, where two comments were made during a slide show that insinuated plaintiff had slept her way to her current position, and where another manager, who was vying for the same regional manager promotion, pinched her on the buttocks. Rick Amos, plaintiff’s supervising regional manager, terminated her employment in July 1986 for failing to satisfy the requirements of a February 1986 “performance improvement plan” (pip), also known as probation. In August 1986, plaintiff filed her complaint in state court against defendant Kerr, asserting claims of sexual harassment and sexual discrimination in violation of the CRA, breach of contract, wrongful discharge, negligent evaluation, and retaliatory treatment for filing the lawsuit, but the action was removed to the United States District Court for the Eastern District of Michigan on diversity grounds. After a lengthy trial before Judge Barbara K. Hackett, the federal court jury found that plaintiffs employment could be terminated for just cause only, but issued a verdict of no cause of action. The federal case was subsequently dismissed, however, when plaintiff filed a posttrial challenge to diversity jurisdiction and defendant did not oppose it. Thus, the parties refiled their pleadings in the Wayne Circuit Court and the instant lawsuit proceeded. Rebecca Leinen was also added as a defendant in the state court action. While her federal lawsuit was pending, however, defendant made plaintiff an unconditional offer to return to work. After negotiations, plaintiff agreed and signed a December 11, 1986, letter setting forth the conditions of her reinstatement, including the geographical territories she would service (which did not include the same successful Michigan accounts she had in the past), that Amos would no longer oversee her work, and that she was subject to annual reviews like all other district managers. From the outset, the problems that had plagued plaintiff before her first termination involving extremely late paperwork and expense reports began to reoccur, and plaintiff was again placed on a pip. When plaintiff refused a direct order to (1) retrieve from home some “documentation” that she claimed existed to rebut the allegations in her pip (and support many of the allegations she made against other employees who allegedly sexually harassed her and conspired against her), and (2) return to work with the documentation on the same day, she was suspended. Plaintiff then informed defendant that she could not return to work for medical reasons at the direction of her psychologist, but she refused to submit to an independent medical or psychological examination that defendant requested. Defendant once again terminated her employment, this time for insubordination. In the state court action, the trial court granted defendant Rebecca Leinen’s motion for summary disposition and dismissed plaintiffs claims of sexual harassment, hostile work environment sex discrimination, retaliation, and intentional Infliction of emotional distress. The jury was instructed with regard to the claims of (1) wrongful discharge, (2) sex discrimination in violation of the CRA, and (3) breach of contract for defendant’s alleged violation of the unconditional offer to return to work. The jury found no wrongful discharge (specifically finding that plaintiff was not an employee whose employment could be terminated for just cause only) and no sex discrimination, but it did find that defendant breached the contract between the parties that formed the basis for plaintiff’s return to work in January 1987. The jury awarded plaintiff $425,000 in damages but reduced that amount by $200,000 for failure to mitigate. Defendant appealed, and plaintiff cross appealed to this Court. i A First, defendant Kerr asserts that the trial court committed error requiring reversal in refusing to reduce the jury’s damage award to a nominal amount Defendant argues that the jury’s damage award was purely speculative and that plaintiff was entitled to only nominal damages under Sepanske v Bendix Corp, 147 Mich App 819; 384 NW2d 54 (1985), and Environair, Inc v Steelcase, Inc, 190 Mich App 289, 293; 475 NW2d 366 (1991). These cases support the proposition that even if defendant breached its contract with plaintiff regarding her return to work, nothing in the contract ensured her continued employment because, as the jury found, she was an at-will employee, not an employee whose employment could be terminated for just cause only. Notably, neither mental distress damages nor exemplary damages are available in an action for breach of contract, even if the breach is malicious or wilful. Walker v Consumers Power Co, 824 F2d 499, 504-505 (CA 6, 1987); Valentine v General American Credit, Inc, 420 Mich 256, 259-263; 362 NW2d 628 (1984). We find that plaintiff was entitled to only nominal damages for breach of the at-will employment contract and the trial court erred in denying defendant’s motion for remittitur. In Sepanske, supra at 828-829, this Court affirmed the proposition that the breach of an at-will employment contract entitles the employee to receive only nominal damages because, regardless of the contract terms, the employee had no reasonable expectation of continued employment. In that case, plaintiff Sepanske returned to work after taking a company-approved social service leave of absence but was placed in a different job in a different department, contrary to company policy guaranteeing reinstatement to a former position or one of equal or greater responsibility. The defendant’s personnel manager had also given Sepanske a letter stating that Sepanske was “ ‘scheduled to return to [his] former position’ ” upon completion of his social service leave. Id. at 823. The jury found that Sepanske’s responsibilities regarding his new job were neither greater than nor equal to those regarding his former job, and awarded him $75,206 in damages for future lost earnings. Id. at 824-825. This Court vacated the jury’s damage award and remanded to the district court for entry of a judgment in Sepanske’s favor “for nominal damages only.” Id. at 829. The Court stated: We take an entirely different approach [than the parties] on the issue of damages. We think that plaintiff was entitled to nominal damages only for defendant’s breach of the employment contract. This is not a case of wrongful discharge. Plaintiff’s expectation under the contract was to be restored to his old job or to an at-will position which was equivalent to or better than his position in pension and payroll, but he had no actionable expectation that any such restoration would be permanent. The position was still at will—one which the employer was free to alter or terminate without consequence. The fact that defendant historically had not arbitrarily reclassified positions or terminated employees does not change its right to do so. . . . The jury’s damage assessment in such a situation amounts to pure speculation. There is no tangible basis upon which damages may be assessed where plaintiff’s eccpectation was for an at-will position which could have been changed or from which he could have been terminated without consequence. See Sax v Detroit, G H & M R Co, 129 Mich 502, 506; 89 NW 368 (1902). [Id. (emphasis added).] This Court recently reiterated that Sepanske should not be extended beyond breach of contract actions where at-will employees are entitled to only nominal damages. Hord v Environmental Research Institute of Michigan, 228 Mich App 638, 643-644; 579 NW2d 133 (1998). In Environair, supra at 293-294, we stated that while Sepanske involved an employment relationship, its holding regarding the speculative nature of damages was equally applicable to nonemployment, at-will contractual relationships (e.g., exclusive sales contracts). Our Supreme Court has not affirmatively endorsed Sepanske, but the Court has discussed its holding, if only to distinguish it from a case being considered. In Phillips v Butterball Farms Co, Inc (After Second Remand), 448 Mich 239, 251, n 31, 253; 531 NW2d 144 (1995), the Supreme Court found Sepanske inapplicable where the plaintiff sued her employer in tort for worker’s compensation retaliatory discharge. After quoting pertinent parts of the Sepanske opinion as set forth above, the Supreme Court merely stated that “[t]he claim in Sepanske, however, was premised on breach of contract, not a separate tort.” Id. at 253. Accord Sax, supra at 506; Mallory v Jack, 281 Mich 156; 274 NW 746 (1937) (future damages may not be awarded under employment contracts terminable at will). Notably, the Sax Court stated: There is no foundation for even a guess by a jury upon either question of fact [regarding when the employment contract would end and when it in fact ended], because either could terminate the contract at will, and it was equally impossible to tell how much of the time [the plaintiff, a train brakeman who was injured and subsequently rehired,] would be employed. The jury were [sic] turned, loose into afield of pure speculation and conjecture, without any practical or tangible basis upon which to assess damages. Under such circumstances, none can be assessed. [Sax, supra at 506 (emphasis added).] Plaintiff offers no case law support contrary to Sepanske; rather, she merely emphasizes Judge Shepherd’s position in his dissenting opinion in Sepanske that because the defendant could have fired the plaintiff at any time, it did not mean that the defendant was likely to fire him. Sepanske, supra at 832. In his dissent, Judge Shepherd also argued that public policy and fairness favor placing the burden of proof on the defendant to show that in fact the plaintiff would have been discharged, particularly given that the plaintiff in Sepanske was providing a public service on the defendant’s behalf while on leave before the employment relationship ended. Id. at 833. We find these arguments unpersuasive. B Plaintiff also argues that the reinstatement “contract” between plaintiff and defendant dated December 11, 1986, constituted an employment contract that was terminable for just cause only. Plaintiff asserts that the jury’s special verdict form evidences that the jury found plaintiff to be an at-will employee during her first term of employment but not during her reinstatement. A quick review of the jury’s special verdict form disproves this argument. The following are the questions and the jury’s responses to the special verdict form: Count i: Do you find that Plaintiff has proven by a preponderance of the evidence that the employment relation ship between the Plaintiff and Defendant was such that Plaintiff would not be discharged except for just cause? NO Count n: Do you find that Plaintiff has proved by a preponderance of the evidence that one of the reasons she was discharged was because of her sex? no Count III: Question 1: Do you find that Plaintiff has proved by a preponderance of the evidence that Defendant breached the contract which Plaintiff and Defendant entered into upon her return to work? yes Question 2: Do you find by a preponderance of the evidence that Plaintiff suffered damages as a result of the breach of contract? yes Damages: Question 1: If plaintiff suffered damages, what is the amount of damages you award to Plaintiff? Count ill, Breach of Contract, $425,000 Question 2: Did Plaintiff make a reasonable effort to minimize her damage? NO By what amount do you find the award of damages will be reduced? $200,000 [Emphasis added.] Cleaxly, nothing in the language of the special vexdict foxm xegaxding count I limited the question of at-will ox just-cause employment to eithex plaintiffs first ox second period of employment. c Plaintiff further argues that the language of the reinstatement contract itself establishes the just-cause nature of the employment relationship. A review of the pertinent language in the reinstatement contract that plaintiff signed supports a contrary view: 1. Kerr will unconditionally reinstate you to the position of District Manager within the Michigan market effective January 5, 1987. 2. You will be reinstated at your former salary of $35,000.00 per year. 3. You will be entitled to the normal bonus arrangement available to District Managers. 4. You will be provided with all fringe benefits available to District Managers. 5. You will be subject to annual reviews the same as is provided to all other District Managers. 6. For a period of six (6) months, you will be assigned the following accounts: A. University of Michigan B. Healthco C. Either Patterson or Bignall While the

BARNEY HUANG, Plaintiff v. THOMAS J. ZIKO, BECKY R. FRENCH, BRUCE R. POULTON, THE BOARD OF GOVERNORS OF THE UNIVERSITY OF NORTH CAROLINA AND CONSTITUENT INSTITUTION, NORTH CAROLINA STATE UNIVERSITY, Defendants No. COA98-352 (Filed 16 February 1999) Statute of Limitations— tolling — federal action The trial court did not err by allowing defendant’s motion for summary judgment on the basis of the statute of limitations where plaintiff pursued through the state and federal courts claims arising from his dismissal as a university professor following charges of attempted second-degree rape and assault on a female; assuming that plaintiffs claims accrued when defendant Board affirmed his dismissal on 9 February 1990, plaintiff ordinarily would have had until 9 February 1993 to file his complaint in state court; plaintiff did not file his claim in state court until 22 May 1996 and his claims were time barred unless the statute of limitations was tolled; no statute or rule provides for the exclusion of the time during which the federal action was pending from the limitations period; and, because North Carolina has no applicable “grace period” longer than the thirty-day period set out in 28 U.S.C.A. § 1367, the statute of limitations was tolled while the federal action was pending and for thirty days thereafter. Plaintiff could have filed his complaint in state court at any time during the pendency of the federal action and up to thirty days after the United States Court of Appeals reached its decision on 7 December 1995. Appeal by plaintiff from judgment entered 16 February 1998 by Judge Stafford G. Bullock in Wake County Superior Court. Heard in the Court of Appeals 25 January 1999. Kenneth N. Barnes for plaintiff-appellant. Attorney General Michael F. Easley, by Special Deputy Attorney General David Roy Blackwell, for defendants-appellees. TIMMONS-GOODSON, Judge. Prior to his dismissal, plaintiff was a tenured professor in the Department of Biological and Agricultural Engineering at North Carolina State University (hereinafter “defendant University”). In June 1988, plaintiff was charged with attempted second-degree rape and assault on a female. On 14 July 1988, defendant Bruce R. Poulton, then chancellor of defendant University, issued a notice of intent to discharge letter to plaintiff suspending him from his duties and terminating his salary as of 1 January 1989. Plaintiff requested a hearing on his dismissal pursuant to the Code of the Board of Governors of the University of North Carolina (hereinafter “defendant Board”). Following a hearing and recommendation by a Faculty Hearing Committee that plaintiff be removed from the faculty, defendant Poulton dismissed plaintiff effective 7 February 1989. Plaintiff appealed to defendant University’s Board of Trustees and, then, to defendant Board. Defendant Board ultimately affirmed the Board of Trustees’ decision on 9 February 1990. Plaintiff appealed to the superior court, which reversed his dismissal. This Court affirmed the superior court’s reversal of plaintiff’s dismissal, but the Supreme Court reversed this Court’s decision and upheld plaintiff’s dismissal. In re Dismissal of Huang, 336 N.C. 67, 441 S.E.2d 696 (1994). Prior to exhausting his administrative remedies, plaintiff filed a complaint in superior court against defendant University and defendant Poulton for breach of contract and intentional infliction of emotional distress. The trial court granted summary judgment for defendants on the emotional distress claim and for plaintiff on the contract claim. Defendants appealed to this Court, which reversed the trial court’s summary judgment for plaintiff on the ground that he had an adequate remedy for breach of contract in the administrative appeal of his discharge. Huang v. N.C. State University, 107 N.C. App. 710, 421 S.E.2d 812 (1992). On 21 June 1991, plaintiff filed a complaint in the United States District Court for the Eastern District of North Carolina against defendants Thomas J. Ziko, Becky R. French, Poulton, Board, and University. In the complaint, he alleged federal claims of civil rights violations, Title VII violations, free speech violations, and age discrimination. He alleged state claims of due process and equal protection. Defendants filed a motion for summary judgment. On 11 January 1993, the United States District Court granted defendants’ motion for summary judgment with respect to all federal claims. As to plaintiff’s state claims, the court ruled as follows: Because all the federal claims have been dismissed against defendants in this action, the court dismisses without prejudice the remaining pendent state claims plaintiff has asserted under the North Carolina Constitution. In view of this, the court is divested of jurisdiction to entertain these claims, and plaintiff is left to pursue these matters in state court. Plaintiff appealed to the United States Court of Appeals for the Fourth Circuit. On 7 December 1995, the Court of Appeals affirmed the lower court’s decision in an unpublished per curiam opinion. Huang v. French, 73 F.3d 357 (4th Cir. 1995). On 22 April 1996, the United States Supreme Court denied plaintiffs petition for a writ of certiorari. Huang v. French, 517 U.S. 1157, 134 L. Ed. 2d 649 (1996). On 22 May 1996, plaintiff filed a complaint in the superior court seeking compensatory and punitive damages from defendants for breach of contract, due process violations, malicious prosecution, intentional infliction of emotional distress, civil conspiracy, and constructive fraud. Defendants subsequently filed an answer that included a motion to dismiss and alternative motion for summary judgment. Defendants asserted as an affirmative defense that each of plaintiffs claims was barred by a three-year statute of limitations. On 16 February 1998, the trial court granted defendants’ motion for summary judgment. The trial court ruled that “[t]he statute of limitations bars each and every one of the Plaintiff’s claims.” Plaintiff appeals. Plaintiff argues that the trial court erred by granting defendants’ motion for summary judgment. He contends that the statute of limitations had not run at the time he filed his complaint. We disagree. The parties agree that each of plaintiff’s claims was subject to a three-year statute of limitations. Assuming arguendo that plaintiff’s claims accrued when defendant Board affirmed his dismissal on 9 February 1990, plaintiff ordinarily would have had until 9 February 1993 to file his complaint in state court. Because plaintiff did not file his complaint in state court until 22 May 1996, his claims were time-barred, unless the statute of limitations was tolled. As the parties recognize, “filing an action in federal court which is based on state substantive law . . . toll[s] the statute of limitations while that action is pending.” Clark v. Velsicol Chemical Corp., 110 N.C. App. 803, 808, 431 S.E.2d 227, 229 (1993), aff’d per curiam, 336 N.C. 599, 444 S.E.2d 223 (1994). The parties agree that plaintiff’s federal action was no longer pending for the purpose of tolling the statute of limitations when the United States Court of Appeals reached its decision on 7 December 1995. See Clark, 110 N.C. App. 803, 431 S.E.2d 227 (holding that because a petition for writ of cer-tiorari to the United States Supreme Court is not an appeal of right, the federal action is not alive for the purpose of tolling the statute of limitations while a decision to allow or deny such a petition is pending). However, the parties disagree as to whether plaintiff had additional time to file his complaint in state court after the United States Court of Appeals reached its decision. Plaintiff contends that once the federal action was no longer pending, the time for filing his complaint in state court should have been extended for the portion of the three-year limitations period that had not been used when he filed the federal action. Since less than a year and a half had passed when plaintiff filed his federal action, he would have had more than a year and a half after 7 December 1995 to file his complaint in state court. Plaintiff’s contention is untenable. The rule which plaintiff would have this Court adopt is contrary to the policy in favor of prompt prosecution of legal claims. Furthermore, such a rule is contrary to the general rule that “[i]n the absence of statute, a party cannot deduct from the period of the statute of limitations applicable to his case the time consumed by the pendency of an action in which he sought to have the matter adjudicated, but which was dismissed without prejudice as to him[.]” 51 Am. Jur. 2d Limitation of Actions § 311 (1970). In this case, no statute or rule provides for the exclusion of the time during which the federal action was pending from the limitations period. We likewise find unpersuasive defendants’ contention that the statute of limitations was tolled only until the United States Court of Appeals reached its decision and that plaintiff had no additional time to file his complaint in state court. We believe the question presented by this appeal is controlled by 28 U.S.C.A. § 1367 (1993). See Kolani v. Gluska, 75 Cal. Rptr. 2d 257 (1998); Roden v. Wright, 611 So. 2d 333 (Ala. 1992). That federal statute provides that when a federal district court has original jurisdiction over a civil action it may also exercise “pendent” or “supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy[.]” 28 U.S.C.A. § 1367(a). A federal district court may decline to exercise supplemental jurisdiction over a claim if it “has dismissed all claims over which it has original jurisdiction].]” 28 U.S.C.A. § 1367(c)(3). The statute further provides that the period of limitations for any supplemental claim “shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.” 28 U.S.C.A. § 1367(d). Since the claims now asserted by plaintiff were supplemental claims dismissed by the United States District Court, he was entitled to thirty additional days to file his complaint in state court after the United States Court of Appeals reached its decision, unless some state statute provided for a longer period of time. Rule 41(b) of the North Carolina Rules of Civil Procedure provides a savings provision for claims that have been involuntarily dismissed: If the court specifies that the dismissal of an action commenced within the time prescribed therefor, or any claim therein, is without prejudice, it may also specify in its order that a new action based on the same claim may be commenced within one year or less after such dismissal. N.C. Gen. Stat. § 1A-1, Rule 41(b) (1990). Assuming arguendo that Rule 41(b) could apply in this case, the United States District Court did not specify in its order that a new action based on the same claims could be commenced within one year after the dismissal. See Bockweg v. Anderson, 328 N.C. 436, 402 S.E.2d 627 (1991). Therefore, the time for plaintiff to file his complaint in state court was not extended for an additional year. Because North Carolina has no applicable “grace period” longer than the thirty-day period set out in 28 U.S.C.A. § 1367, the statute of limitations was tolled while the federal action was pending and for thirty days thereafter. Plaintiff could have filed his complaint in state court at any time during the pendency of the federal action and up to thirty days after the United States Court of Appeals reached its decision on 7 December 1995. Plaintiffs complaint, filed on 22 May 1996, was not timely filed, and the trial court did not err by allowing defendants’ motion for summary judgment. The summary judgment entered by the trial court is affirmed. Affirmed. Judges GREENE and HUNTER concur.

LAMORIA v HEALTH CARE & RETIREMENT CORPORATION Docket No. 199795. Submitted October 15, 1998, at Lansing. Decided January 29, 1999, at 9:10 A.M. Barbara A. Lamoria brought an action in the Saginaw Circuit Court against Health Care & Retirement Corporation and others, seeking damages for her alleged wrongful discharge from her employment as a registered nurse at a retirement home owned by the corporate defendant. Among the theories of recovery pleaded by the plaintiff were violation of the state Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., violation of the state Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq., and retaliation for the plaintiffs seeking worker’s compensation benefits. The plaintiff had injured her knee in the course of her employment and was discharged from her employment eleven months after her injury while she was still on an extended medical leave related to the knee injury, allegedly on the basis of an employment policy providing that medical leaves of absence were not to exceed six months. The plaintiff alleged that the defendant’s’ failure to extend her medical leave violated the provisions of the hcra because by such failure the defendant failed to malee reasonable accommodation for the handicap that she suffered as a result of her injured knee. The court, Leopold P. Borrello, J., granted summary disposition for the defendants with respect to all of the plaintiff’s claims, finding that the plaintiff did not have a valid claim under the hcra because the alleged handicap was related to the plaintiff’s ability to do her job and that the defendants were not required to give the plaintiff more time to heal. The plaintiff appealed. The Court of Appeals, O’Connell and Whitbeck, JJ. (Fttzserald, P.J., concurring), in an opinion released July 10, 1998, reversed the trial court’s grant of summary disposition with respect to the claims alleging violation of the Civil Rights Act and retaliation for filing a worker’s compensation claim on the basis that there were contested issues of material fact and reversed with respect to the hcra claim on the basis that it was required by MCR 7.215(H) to follow the holding in Rymar v Michigan Bell Telephone Co, 190 Mich App 504 (1991), although the majority opinion expressed disagreement with the holding in Rymar. 230 Mich App 801, 812-817 (1998). By its order of July 24, 1998, the Court of Appeals vacated the July 10 opinion and convened a special panel pursuant to MCR 7.215(H) to resolve the conflict between the position taken by the panel in the Lamoria opinion and the position taken by the panel in the Rymar opinion. 230 Mich App 801 (1998). After consideration by the conflict resolution panel, the Court of Appeals held: The majority opinion in Lamoria properly concluded that the hcra does not require that an employer allow a disabled employee a reasonable time to heal before applying the provision in the hcra that limits its application to handicaps that are unrelated to an employee’s ability to perform the duties of a particular job or position. Accordingly, the trial court’s grant of summary disposition for the defendants with respect to the plaintiffs hcra claim must be affirmed. In all other respects, the opinion of the prior Lamoria panel is adopted. Affirmed in part and reversed in part. Cavanagh, J., concurring, stated that the “reasonable time to heal” doctrine is too vague to give either employers or employees any meaningful guidance. Civil Rights — Handicappers’ Civil Rights Act — Temporary Disabilities — Employment Discrmnation. A person who is unable to perform the duties of a particular position because of a temporary disability, even if that disability could be remedied within a reasonable period so that the person would be able to perform those duties, does not have a handicap for which that person may seek the protections against employment discrimination provided by the Handicappers’ Civil Rights Act (MCL 37.1101 et seq.; MSA 3.550[101] et seq.). Howard & Howard Attorneys, P.C. (by Michael J. Brown), for the plaintiff. Kienbaum Opperwall Hardy & Pelton, P.L.C. (by Eric J. Pelton and Noel D. Massie), for the defendants. Amicus Curiae: Clark Hill P.L.C. (by Duane L. Tamacki and J. Walker Henry), for Michigan Manufacturers Association. Before: Corrigan, C.J., and Kelly, Gribbs, McDonald, Doctoroff, Cavanagh, and Markey, JJ. Per Curiam. This Court convened this special panel under MCR 7.215(H)(3) to resolve the conflict between the prior vacated opinion in this case, Lamoria v Health Care & Retirement Corp, 230 Mich App 801; 584 NW2d 589 (1998), and Rymar v Michigan Bell Telephone Co, 190 Mich App 504; 476 NW2d 451 (1991), regarding the “reasonable time to heal” doctrine under the Handicappers’ Civil Rights Act (HCRA), MCL 37.1101 et seq.; MSA 3.550(101) et seq. The original Lamoria panel, in compliance with MCR 7.215(H)(1), followed this Court’s holding in Rymar that an employee who on the date of his discharge is unable to perform the requirements of his job because of a disability may still have a claim under the hcra if he would have regained the capacity to do the work within a reasonable time. If not for the precedential effect of Rymar, the Lamoria majority would have affirmed the trial court’s grant of summary disposition for defendants regarding plaintiff’s HCRA claim. We agree with the Lamoria majority and hold for the reasons it expressed that the hcra does not require that an employer allow a disabled employee a reasonable time to heal. We therefore affirm the trial court’s grant of summary disposition regarding plaintiff’s HCRA claim. In all other respects, we adopt the opinion of the prior Lamoria panel as our own. Affirmed in part and reversed in part. Plaintiff, as the prevailing party, may tax costs under MCR 7.219. Judge Fitzgerald concurred, but wrote separately to express his belief that Rymar was correctly decided. Cavanagh, J. (concurring). I concur in the result reached by the majority. Even assuming that a temporary disability constitutes a handicap within the meaning of the Handicappers’ Civil Rights Act, MCL 37.1101 et seq.] MSA 3.550(101) et seq., I believe that the “reasonable time to heal” doctrine is too vague to give either employers or employees any meaningful guidance in making decisions in situations such as that presented in the instant case.

GLORIA ANN EVANS, Plaintiff v. JUDITH R. COWAN, Individually and in her official capacity as Director of Student Health Services, UNC-CH; BRUCE VUKOSON, Individually and in his official capacity as Director of the AfterHours Program at Student Health Services, UNC-CH; and JANE M. HOGAN, Individually and in her official capacity as Associate Director of Student Health Services, UNC-CH; Defendants No. COA97-781 (Filed 5 January 1999) 1. Constitutional Law— State — Law of the Land Clause— employment interest — employment at will The trial court properly granted summary judgment for defendant on a claim under Art. I, § 19 of the North Carolina Constitution (the Law of the Land Clause) arising from the termination of plaintiff’s employment. Plaintiff must possess a property interest in the employment before the Law of the Land analysis may be undertaken and plaintiffs assertions that she fell outside the category of an at-will employee are unfounded. 2. Constitutional Law— State — freedom of speech — public concern — reason for discharge The trial court did not err by granting summary judgment for defendant on plaintiffs free speech claim under the North Carolina Constitution arising from the termination of her employment where, assuming that the Whistleblower Act did not afford an adequate state remedy, plaintiffs statements related to internal policies and office administration and there was no forecast of evidence showing that her statements were either the motivating or a substantial factor underlying her dismissal. Appeal by plaintiff from order filed 16 April 1997 by Judge Robert H. Hobgood in Orange County Superior Court. Heard in the Court of Appeals 18 February 1998. McSurely Dorosin & Osment, by Alan McSurely, Mark Dorosin and Ashley Osment, for plaintiff-appellant. Attorney General Michael F. Easley, by Thomas J. Ziko and Celia Grasty Jones, for defendants-appellees. JOHN, Judge. Plaintiff appeals the trial court’s grant of summary judgment in favor of defendants. We affirm the trial court. Pertinent factual and procedural information includes the following: Defendant Jane Hogan (Dr. Hogan) was awarded a Ph.D. degree in health care administration in 1991 by the University of Pennsylvania. In 1990, she served as a volunteer consultant at the University of North Carolina at Chapel Hill (UNC-CH) Student Health Services (SHS). In that capacity, Dr. Hogan contacted plaintiff and suggested employment at SHS to plaintiff. The latter had under consideration a tenure track faculty position at the University of South Carolina School of Nursing, but instead agreed 9 April 1990 to become Associate Director of the AfterHours Program (AfterHours) at SHS. AfterHours provided health services to UNC-CH students during evenings, weekends and holidays. Plaintiff joined a task force comprised of defendant Dr. Bruce Vokoson (Dr. Vokoson), Director of AfterHours; Dr. Hogan; defendant Dr. Judith Cowan (Dr. Cowan), Director of SHS; and Jaclyn Jones (Jones), Acting Director of Nursing. The task force was seeking methods of improving the efficiency of SHS. In addition, plaintiffs duties included clinical responsibilities and the task of recruiting and supervising physician extenders, i.e., physician assistants attached to a physician’s medical license, employed in AfterHours. The AfterHours task force met regularly for several months. In December 1990, plaintiff suggested that SHS change its practice of paying “moonlighting” physicians to provide AfterHours medical care. In plaintiff’s opinion, that service could be more efficiently and economically furnished by full-time nurse practitioners. According to plaintiff, this suggestion made Dr. Vukoson “visibly angry.” In task force meetings, plaintiff also sought implementation of a comprehensive alcohol policy for SHS, noting “most of our patients’ problems [are] alcohol-related.” At one meeting, plaintiff also expressed concern that Dr. Hogan had acted as the second R.N. covering a SHS night shift. Plaintiff noted Dr. Hogan was a non-employee acting in a medical capacity at a state institution. In April 1991, Dr. Cowan informed plaintiff that her job responsibilities would be strictly clinical as of 1 July 1991. Shortly thereafter, plaintiff developed pleural pericarditis, an inflammation of the lung tissue and heart covering. Plaintiff informed Jones, her supervisor, that she expected to return to work the week of 5 May 1991. However, because her sick leave was exhausted, plaintiff actually resumed her duties 29 April 1991. On 30 April 1991, Dr. Vukoson telephoned plaintiff’s cardiologist to ascertain if plaintiff was working contrary to her physician’s instructions. Plaintiff subsequently received a letter dated 6 May 1991, signed by Jones and Drs. Vukoson and Cowan, described therein as a “Final Written Warning for personal conduct.” Noting plaintiff’s earlier than anticipated return to work, the correspondence asserted plaintiff’s “inconsistent communications” had resulted in 1) the waste of administrative time expended in procuring coverage for her shifts, 2) inconvenience to staff who had agreed to provide coverage, and 3) dimin-ishment in supervisory and employee relations as a result of the confusion. In addition, plaintiff was relieved of responsibility for the AfterHours schedule. According to plaintiff, the warning communicated by the letter was rescinded 30 August 1991. In May 1991, plaintiff learned at a nursing staff meeting that SHS planned to use “Fellows,” physicians who were current recipients of a fellowship in a graduate medical education program, as back-up supervision for nurse practitioners in AfterHours. To be approved to practice in North Carolina, nurse practitioners must work continuously under the supervision of a primary supervising physician (PSP). Believing this new policy would directly conflict with 21 N.C.A.C. 32M.0009(5)(a), plaintiff approached Jones and Dr. Cowan with her concerns. Dr. Cowan contacted the Board of Medical Examiners (the Board) to request clarification of the regulation and obtain advice regarding the proposed practice. Dr. Cowan was informed the physicians in question could properly serve as back-up supervisors. This response was consistent with information Dr. Hogan had sought and received from the Board. Plaintiff’s re-certification with the Board as a nurse practitioner came due in June 1991. Dr. Vukoson, as plaintiffs PSP, was required to sign her application for reapproval to practice, and despite some reluctance, he did so. However, by copy of a letter to the Board dated 18 October 1991, Dr. Vukoson advised plaintiff he intended to withdraw as her PSP effective 1 January 1992. Dr. Vukoson indicated this decision was based on his increasing lack of trust in plaintiff and what he perceived as her lack of respect for his medical license. In her deposition, Dr. Cowan related that Dr. Vukoson had communicated to her two instances of plaintiffs failure to follow established protocol in treating students. The first concerned a student with a history of suicide, and the second involved a prescription to a student of a drug not in the treatment protocol and allowing that student to leave SHS while “complaining of what could have been a serious reaction with the [drug].” Dr. Cowan also indicated she was aware of a “profound communication difficulty, such a profound difference in perceptions” between plaintiff and Dr. Vukoson. On 14 November 1991, the UNC-CH Medical Staff (the Staff) passed a resolution (the resolution) under which only physicians serving as full-time employees of the Staff and working in the same section as a physician extender were permitted to serve as the latter’s PSP. This rule in effect prevented any physician other than Dr. Vukoson from acting as plaintiff’s PSP. As a result of the resolution, plaintiff was unable to maintain the necessary medical credentials for her position and was notified she would be discharged as of 6 May 1992. Plaintiff received a pre-termination hearing 24 April 1992 and appealed through the highest available grievance procedure levels. Ultimately, UNC-CH Chancellor Paul Hardin upheld plaintiffs discharge for failure to maintain credentials. On 16 November 1993, plaintiff filed the instant action in Orange County Superior Court, alleging slander, violation of her federal constitutional rights and violation of her rights under Article I, §§ 1, 12, 14 and 19 of the North Carolina Constitution. Following removal of the case , by defendants to the United States District Court for the Middle District of North Carolina, defendants moved for summary judgment. In an order filed 6 January 1995, the federal court granted summary judgment on the federal constitutional and slander claims and remanded the state constitutional claims brought against defendants in their official capacities to Orange County Superior Court. On 14 February 1995, defendants sought summary judgment from the trial court on plaintiffs state constitutional claims, arguing each was barred by res judicata as being “identical in all respects to the federal constitutional claims already adjudicated.” Defendants’ motion was allowed, and plaintiff filed timely notice of appeal. On appeal, this Court reversed the trial court’s grant of summary judgment and remanded. See Evans v. Cowan, 122 N.C. App. 181, 468 S.E.2d 575 (1996) (“an independent determination of plaintiff’s constitutional rights under the state constitution is required”). Upon review by our Supreme Court, the ruling of this Court was affirmed per curiam. Evans v. Cowan, 345 N.C. 177, 477 S.E.2d 926 (1996). Following remand to Orange County Superior Court, defendants again moved for summary judgment. The motion was granted in an order filed 16 April 1997. Plaintiff appeals. Summary judgment is properly entered when the pleadings, depositions, answers to interrogatories, admissions and affidavits show no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. N.C.R. Civ. P. 56; Davis v. Town of Southern Pines, 116 N.C. App. 663, 665, 449 S.E.2d 240, 242 (1994), disc. review denied, 339 N.C. 737, 454 S.E.2d 648 (1995). The burden is on the movant to show: (1) an essential element of plaintiff’s claim is nonexistent; (2)' plaintiff cannot produce evidence to support an essential element of its claim; or (3) plaintiff cannot surmount an affirmative defense raised in bar of its claim. Lyles v. City of Charlotte, 120 N.C. App. 96, 99, 461 S.E.2d 347, 350 (1995), rev'd on other grounds, 344 N.C. 676, 477 S.E.2d 150 (1996). In assessing whether this burden is met, all inferences are to be viewed in the light most favorable to the non-movant. Crow v. Citicorp Acceptance Co., 319 N.C. 274, 281, 354 S.E.2d 459, 464 (1987). Bearing these general principles in mind, we first consider plaintiff’s assertion that her termination violated Article I, § 19 of the North Carolina Constitution (the Law of the Land Clause). The Law of the Land Clause provides that “[n]o person shall be ... in any manner deprived of his life, liberty, or property, but by the law of the land,” N.C. Const. art. I, § 19, and has generally been held to be equivalent to the Due Process Clause of the United States Constitution. Lorbacher v. Housing Authority of the City of Raleigh, 127 N.C. App. 663, 675, 493 S.E.2d 74, 81 (1997). Given the similarities, a decision of the United States Supreme Court interpreting the Due Process Clause is persuasive, though not controlling, authority for interpretation of the Law of the Land Clause. Id. Defendants argue plaintiff was an employee at will with no vested property right in continued employment, and thus failed to show the threshold element of a due process analysis. Plaintiff, apparently recognizing that the weight of authority supports defendants’ position, see, e.g., Lorbacher, 127 N.C. App. at 675, 493 S.E.2d at 81 (“plaintiffs complaint fails to state a valid claim under the Law of the Land Clause . . . [because] [h]e simply lacks the requisite property interest in continued employment to trigger the protections afforded by our State Constitution”); Woods v. City of Wilmington, 125 N.C. App. 226, 234, 480 S.E.2d 429, 434 (1997) (trial court’s grant of summary judgment to defendant on Article I, § 19 claim affirmed where “plaintiff did not possess a cognizable property interest in continued employment protected by the North Carolina Constitution”); and Ware v. Fort, 124 N.C. App. 613, 617, 478 S.E.2d 218, 221 (1996) (plaintiff’s argument failed “because plaintiff simply had no property right in the position of which he could be constitutionally deprived — under either the North Carolina or federal constitutions”), nonetheless urges us to take an independent approach to the unique fact situation here, informed by the particularities of North Carolina constitutional jurisprudence, reflecting the unique language, history and policy of the North Carolina Constitution. However, plaintiff is unable to point us to a case supporting her position, and we agree with defendants that plaintiff must possess a property interest in the employment at issue before the Law of the Land Clause analysis may be undertaken. We consider then whether the requisite property interest is present in the case sub judice. This jurisdiction has long adhered to the employment-at-will doctrine, i.e. “[w]here a contract of employment does not fix a definite term, it is terminable at the will of either party, with or without cause.” Burgess v. Your House of Raleigh, 326 N.C. 205, 209, 388 S.E.2d 134, 137 (1990) (citations omitted). An employee at will has no property interest by virtue of her employment, though an enforceable interest in continued employment may “be created by [statute], or by an implied contract.” Howell v. Town of Carolina Beach, 106 N.C. App. 410, 417, 417 S.E.2d 277, 281 (1992) (citations omitted). Plaintiff, having accumulated but twenty-five months of service, makes no claim of statutory “permanent employee status” under N.C.G.S. § 126-5(c)(l) prior to 1 July 1993. See also N.C.G.S. § 126-15.1 (1995) (“probationary employee” is one exempt from state Personnel Act because not “continuously employed for the period of time required by G.S. 126-5(c)). However, plaintiff asserts an implied employment contract in that [she] was heavily recruited for the position at SHS and lured away from a better paying tenure track position at the University of South Carolina; was promised that she would be able to continue to conduct her research; given a joint appointment for a time certain with the School of Nursing; and assured that while she would be accepting a position as a PE II, her position would be quickly upgraded to a PE III. This Court has previously held that an implied employment contract may arise out of representations and additional consideration proffered at the time of hiring. See Sides v. Duke University, 74 N.C. App. 331, 345, 328 S.E.2d 818, 828, disc. review denied, 314 N.C. 331, 333 S.E.2d 490 (1985) (allegations (1) that plaintiff was assured by employer “she could only be discharged for incompetence, [(2) and that] these assurances induced her to move here from Michigan in order to accept the job offer, and [(3)] were part of her employment contract,” sufficient “to remove plaintiffs employment contract from the terminable-at-will rule” for purposes of surviving motion to dismiss breach of contract claim pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6) (1990) for failure to state a claim). However, our Supreme Court has recently cast doubt upon the Sides holding. See Kurtzman v. Applied Analytical Industries, Inc., 347 N.C. 329, 334, 493 S.E.2d 420, 424 (1997) (change of residence exception to employment-at-will doctrine disapproved, and “employer’s assurances of continued employment [held not to] remove an employment relationship from the at-will presumption”). In addition, Sides is readily distinguishable from the instant case. In Sides, the plaintiff was assured individuals in her position could be discharged only for incompetence. Sides, 74 N.C. App. at 345, 328 S.E.2d at 828. Nothing in the record indicates plaintiff herein received any analogous promise. Moreover, the Sides plaintiff moved from Michigan to North Carolina to accept employment. On the other hand, plaintiff acknowledged “there were some good reasons why it might be convenient” to remain in Chapel Hill as opposed to relocating to South Carolina, because her data set was located in Chapel Hill. We therefore conclude that plaintiff’s assertions she fell outside the category of an at-will employee are unfounded. See Salt v. Applied Analytical, Inc., 104 N.C. App. 652, 659, 412 S.E.2d 97, 101 (1991) (no additional consideration where plaintiff failed to show assurances containing “specific terms or conditions, as in Sides”), cert. denied, 331 N.C. 119, 415 S.E.2d 200 (1992); see also McMurry v. Cochrane Furniture Co., 109 N.C. App. 52, 57-58, 425 S.E.2d 735, 739 (1993) (“[plaintiffs failure to accept a tentative offer of employment elsewhere in return for defendant’s gratuitous offer of continued employment for an indefinite period was ... not sufficient additional consideration” to create implied contract). Accordingly, because plaintiff lacked a property interest in continued employment, the trial court’s grant of defendant’s summary judgment motion on plaintiff’s Law of the Land Clause claim is affirmed. Turning to plaintiff’s freedom of speech claim, we note that the North Carolina Constitution proclaims that “[fjreedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained . . . .” N.C. Const, art. I, § 14. Our Supreme Court has deemed the foregoing section “a direct personal gúarantee of each citizen’s right of freedom of speech.” Corum v. University of North Carolina, 330 N.C. 761, 781, 413 S.E.2d 276, 289, cert. denied, 506 U.S. 985, 121 L. Ed. 2d 431 (1992). Nonetheless, a citizen asserting abridgement of her state constitutional rights may assert a direct claim thereunder only absent an adequate state remedy. Id. at 782, 413 S.E.2d at 289. The judiciary “must bow to established claims and remedies where these provide an alternative to the extraordinary exercise of its inherent constitutional power.” Id. at 784, 413 S.E.2d at 291. Arguing that plaintiff possessed an adequate state remedy precluding her direct constitutional claim, defendants point to what is referred to as our “Whistleblower Act,” N.C.G.S. §§ 126-84 through 126-88 (1995). In her complaint, plaintiff alleged she was discharged in retaliation for her “good faith and truthful communications about important health and administrative issues at the Student Health Services,” speech protected by the North Carolina Constitution. Plaintiff maintains the Whistleblower Act did not afford an adequate state remedy for this claim. Assuming arguendo plaintiff is correct, we nonetheless hold summary judgment was proper on her freedom of speech claim. For such a claim to be properly advanced, the speech at issue first must involve a matter of public concern. Connick v. Myers, 461 U.S. 138, 146, 75 L. Ed. 2d 708, 719 (1983). Second, “such protected speech or activity [must have been] the ‘motivating’ or ‘but for’ cause for [the plaintiff’s] discharge or demotion.” Warren v. New Hanover County Bd. of Education, 104 N.C. App. 522, 525-26, 410 S.E.2d 232, 234 (quoting Jurgensen v. Fairfax County, 745 F.2d 868, 877-78 (4th Cir. 1984)). Resolution of these issues is a matter of law for the court. Id. As to the question of public concern, the court must look to the content, form and context of the speech involved. Connick, 461 U.S. at 147-48, 75 L. Ed. 2d at 720; see also Corum, 330 N.C. at 775, 413 S.E.2d at 285. The test is whether the employee was speaking as a citizen about matters of public concern, or as an employee on matters of personal interest. Connick, 461

WILLIAM H. PEACE, III, Petitioner v. EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Respondent WILLIAM H. PEACE, III, Petitioner v. EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Respondent No. 599A97 (Filed 4 December 1998) 1. Labor and Employment § 68 (NCI4th)— property interest in continued employment Under North Carolina law, an employee has a protected “property” interest in continued employment only if the employee can show a legitimate claim to continued employment under a contract, a state statute, or a local ordinance. 2. Public Officers and Employees § 66 (NCI4th)— State employee — just cause protection — property interest Petitioner, as a career State employee, is entitled to the “just cause” protection of the State Personnel Act and is thereby imbued with a constitutionally protected “property” interest in continued employment. N.C.G.S. § 126-35. 3. Public Officers and Employees § 66 (NCI4th)— State employee — dismissal for just cause — burden of proof on employee — due process The allocation of the burden of proof to a career State employee in an action contesting the validity of a “just cause” termination pursuant to N.C.G.S. § 126-35 does not violate procedural due process under the Fourteenth Amendment to the United States Constitution. Under the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, the individual “property” interest sought to be protected by the employee, while important and significant, is decisively outweighed by the substantial government interest in maintaining a productive and efficient work force, and there is a very minimal risk of erroneous decision making when the existing administrative and judicial review protections are utilized. U.S. Const, amend. XIV. 4. Public Officers and Employees § 66 (NCI4th)— State employee — dismissal for just cause — burden of proof on employee — N.C. law A career State employee terminated pursuant to the “just cause” provision of N.C.G.S. § 126-35 should bear the burden of proof under North Carolina law in an action contesting the validity of that termination since the employee is the party attempting to alter the status quo; and neither party in a “just cause” termination dispute has peculiar knowledge not available to the opposing party because the employee may utilize available statutory and administrative procedures to obtain all necessary information to establish and advocate his or her position. Justice Frye concurring in part and dissenting in part. Justice Whichard joins in this concurring and dissenting opinion. Justice Wynn did not participate in the consideration or decision of this case. Appeal by petitioner pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 128 N.C. App. 1, 493 S.E.2d 466 (1997), remanding an order entered by Bowen, J., on 13 March 1995 in Superior Court, Wake County. On 5 February 1998, the Supreme Court retained the Employment Security Commission’s notice of appeal of a substantial constitutional question pursuant to N.C.G.S. § 7A-30(1) and allowed discretionary review of an additional issue from the unanimous portion of that same decision of the Court of Appeals reversing and remanding an order entered by Cashwell, J., on 12 August 1994 in Superior Court, Wake County. Heard in the Supreme Court 29 May 1998. Hilliard & Jones, by Thomas Hilliard, III, for petitioner-appellant Peace. Michael F. Easley, Attorney General, by Andrew A. Vanore, Jr., Chief Deputy Attorney General; John R. Gome, Special Deputy Attorney General; and Sylvia Thibaut, Assistant Attorney General, for respondent-appellant and -appellee Employment Security Commission. LAKE, Justice. The essential question presented for review is whether the Court of Appeals erred in affirming the trial court’s determination that the State Personnel Commission improperly placed the burden of proof on the Employment Security Commission of North Carolina (ESC) in a claim for “just cause” termination pursuant to N.C.G.S. § 126-35. For the reasons discussed herein, we conclude that allocating the burden of proof to the disciplined employee does not violate that employee’s rights to due process. Accordingly, we affirm the Court of Appeals. Petitioner, William H. Peace, III, was hired by respondent ESC on 5 October 1985 as its Equal Employment Opportunity (EEO) officer. Petitioner was responsible for the direction of the employee relations section, and his duties included the administration of both internal and external EEO programs. During his employee orientation in 1985, petitioner learned that the ESC office employees maintained a petty fund, with monthly dues of $2.00. Petitioner also learned that participation in the petty fund entitled participants to an occasional cup of coffee from the personnel file room. Petitioner chose to participate in the fund, paid his monthly dues, and occasionally obtained coffee from the file room. However, petitioner’s normal habit was to obtain coffee each morning from the agency cafeteria. Generally, petitioner did not attend the staff meetings where the employees discussed office policies, including the petty fund. At some point following petitioner’s 1985 orientation, a local commercial coffee service was contracted with, and a new and separate coffee fund, with monthly dues of $3.40, was established. The office employees maintained the new coffee fund separate from and in addition to the office petty fund. Petitioner was not aware of the new coffee fund, and he was not asked to participate in or contribute to the new fund. On 10 April 1991, petitioner was involved in an incident with a coworker, Ms. Catherine High, concerning access to coffee from the personnel file room. As was his normal custom, petitioner went to the agency cafeteria the morning of 10 April 1991 to obtain a cup of coffee. However, the cafeteria was out of coffee, so petitioner proceeded to obtain coffee from the personnel file room. As he was leaving the file room, Ms. High confronted petitioner and stated, “[Y]ou are going to have to pay me for that coffee.” Petitioner refused to pay for the coffee, and a heated exchange ensued. Following the exchange, petitioner alleged that Ms. High stated, “If you get another cup of coffee and do not pay me, I’m going to get a cup of coffee and scald you with it.” Several other office employees witnessed the argument between petitioner and Ms. High. Ms. High also informed her supervisor of the incident. Petitioner contacted the magistrate’s office on the afternoon of 10 April 1991 concerning the alleged threat made by his co-worker, Ms. High. The magistrate advised petitioner that if he believed Ms. High to be capable of carrying out her threat, he should take out a warrant. Petitioner approached Ms. High following his discussion with the magistrate, seeking an apology for her earlier actions and statements. Ms. High refused to provide an apology for the morning coffee incident. Later that same afternoon, petitioner again contacted the Wake County magistrate’s office and formally filed criminal charges against his co-worker for communicating a threat. On 21 May 1991, the trial court dismissed the charge as frivolous and ordered petitioner to pay court costs. Petitioner’s supervisors did not contact or question petitioner about the coffee incident pending resolution of the criminal charges. On 5 June 1991, petitioner’s immediate supervisor, Gene Baker, informed petitioner by written memorandum of a 6 June 1991 predismissal conference. The conference culminated in a decision to discharge petitioner from employment for “unacceptable personal conduct.” A 7 June 1991 letter from Ann Q. Duncan, chairperson of ESC, further explained petitioner’s dismissal. The 7 June letter reaffirmed the dismissal for “unacceptable personal conduct,” including the taking of coffee without payment and the filing of frivolous charges against a co-worker. The letter explained that the “unacceptable personal conduct” diminished petitioner’s respect among fellow employees and called into question his reputation as the EEO officer for the ESC. Petitioner filed two appeals from the ESC’s decision to discharge him from employment. Petitioner contended (1) that the ESC lacked “just cause” to dismiss him pursuant to N.C.G.S. § 126-35; and (2) that he had been terminated in retaliation for a discrimination complaint he filed against the ESC in 1989, for violation of title VII, section 704(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3 (1988). The Civil Rights Division of the Office of Administrative Hearings (OAH) investigated petitioner’s retaliatory discharge claim pursuant to N.C.G.S. § 7A-759. The OAH found that there was reasonable cause to believe that a title VII violation had occurred. The OAH determined that petitioner could select one of three options: (1) receive a right-to-sue letter, (2) commence a contested-case hearing in OAH, or (3) do nothing. Petitioner decided to pursue his retaliatory discharge claim by commencing a contested-case hearing. As for his claim that the ESC lacked “just cause” to dismiss him, petitioner filed another petition for contested-case hearing pursuant to N.C.G.S. § 126-35. A consolidated hearing was conducted on petitioner’s two administrative appeals by Administrative Law Judge (ALJ) Sammie Chess, Jr. on 12-14 July 1993. ALJ Chess determined that under the applicable “just cause” termination statute, the ESC bears the ultimate burden of persuasion to demonstrate the validity of the termination. In his recommended decision to the State Personnel Commission (SPC), the AU concluded that the ESC had failed to meet its burden of proof and recommended petitioner’s reinstatement with back pay. In determining petitioner’s claim as to retaliatory discharge under title VII, ALJ Chess again put the burden of proof on the ESC. The ALJ then found petitioner was the victim of a retaliatory discharge, and he therefore ordered reinstatement. The SPC adopted the AU’s recommendation for petitioner’s “just cause” claim with slight modification by an order dated 3 November 1994. The SPC agreed that the ESC bore the burden of proof in a “just cause” termination and affirmed the order reinstating petitioner with back pay. The ESC petitioned for judicial review of the SPC decision and the AU decision separately, pursuant to N.C.G.S. § 150B-50. In a 12 August 1994 order, Superior Court Judge Narley L. Cashwell upheld the ALJ’s final decision as to petitioner’s retaliatory discharge claim. By order dated 13 March 1995, Superior Court Judge Wiley E Bowen reversed the SPC’s decision with prejudice and dismissed petitioner’s “just cause” claim on the basis of two prejudicial errors of law: (1) that the SPC inappropriately placed the burden of proof on the ESC, and (2) that the SPC incorrectly concluded that petitioner was dismissed without “just cause.” The ESC then appealed to the Court of Appeals Judge Cashwell’s order affirming the decision concerning petitioner’s retaliatory discharge claim. Petitioner also appealed to the Court of Appeals Judge Bowen’s order reversing the SPC’s decision to reinstate him. The Court of Appeals consolidated the ESC’s appeal and petitioner’s appeal, and both were originally heard in the Court of Appeals on 7 May 1996. See Employment Sec. Comm’n v. Peace, 122 N.C. App. 313, 740 S.E.2d 63 (1996). This Court allowed the ESC’s petition for discretionary review and thereupon remanded the case to the Court of Appeals in order for the Court of Appeals to reconsider its ruling in light of Soles v. City of Raleigh Civil Serv. Comm’n, 345 N.C. 443, 480 S.E.2d 685 (1997). Employment Sec. Comm’n v. Peace, 345 N.C. 640, 483 S.E.2d 706 (1997). On 2 December 1997, the Court of Appeals, on remand, with Judge Greene dissenting, held that the burden of proof in “just cause” claims pursuant to N.C.G.S. § 126-35 may be allocated to an employee without violating due process. The Court of Appeals ruled that while the trial court may not substitute its judgment for that of the agency with respect to the evidence, the trial court did not err in determining that the SPC’s decision and order improperly placed the burden of proof on the ESC. Employment Sec. Comm’n v. Peace, 128 N.C. App. 1, 14, 493 S.E.2d 466, 474 (1997). Therefore, the Court of Appeals remanded the matter to the superior court for further remand to the SPC for application of the proper burden of proof. Id. at 14, 493 S.E.2d at 474-75. Petitioner subsequently filed his notice of appeal, based on the dissent, to this Court on 17 December 1997. On 6 January 1998, the ESC petitioned this Court for discretionary review seeking to have this Court determine whether the OAH acted ultra vires when it adjudicated petitioner’s title VII claim. Contemporaneously with its petition for discretionary review, ESC filed with this Court a notice of appeal asserting a substantial constitutional question pursuant to N.C.G.S. § 7A-30(1) as to whether the provisions of N.C.G.S. § 7A-759(d) and (e) violate the provisions of Article IV, Sections 1 and 3 of the North Carolina Constitution. This Court entered an order allowing discretionary review and retaining ESC’s notice of appeal; upon review, we conclude this petition was improvidently allowed, and such appeal should be dismissed. With respect to the issue which this Court previously remanded to the Court of Appeals and which is again before us by virtue of the dissent, petitioner asserts that the Court of Appeals incorrectly concluded that this Court’s holding in Soles mandates the assignment of the burden of proof in “just cause” termination disputes to the employee. Petitioner also contends that the assignment of the burden of proof to the employee following a “just cause” termination violates the procedural protections required by the Due Process Clause of the Fourteenth Amendment. For the reasons stated below, we reject these assertions. Procedural due process restricts governmental actions and decisions which “deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332, 47 L. Ed. 2d 18, 31 (1976). A terminated employee must initially demonstrate a “property” interest in continued employment in order to invoke procedural due process protection. Board of Regents v. Roth, 408 U.S. 564, 570-71, 33 L. Ed. 2d 548, 557 (1972). State law determines whether an individual employee does or does not possess a constitutionally protected “property” interest in continued employment. Bishop v. Wood, 426 U.S. 341, 344, 48 L. Ed. 2d 684, 690 (1976). Under North Carolina law, an employee has a protected “property” interest in continued employment only if the employee can show a legitimate claim to continued employment under a contract, a state statute or a local ordinance. Nantz v. Employment Sec. Comm’n, 290 N.C. 473, 226 S.E.2d 340 (1976). The North Carolina General Assembly created, by enactment of the State Personnel Act, a constitutionally protected “property” interest in the continued employment of career State employees. N.C.G.S. § 126-35 provides, in pertinent part, that “[n]o career State employee subject to the State Personnel Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause.” N.C.G.S. § 126-35(a) (1995). It is undisputed in the case sub judice that petitioner, as a career State employee, is entitled to the “just cause” protection of the State Personnel Act and is thereby imbued with a constitutionally protected “property” interest. Board of Regents, 408 U.S. at 577, 33 L. Ed. 2d at 561; Leiphart v. N.C. Sch. of the Arts, 80 N.C. App. 339, 348, 342 S.E.2d 914, 921, cert. denied, 318 N.C. 507, 349 S.E.2d 862 (1986). While the demonstration of a protected “property” interest is a condition precedent to procedural due process protection, the existence of the “property” interest does not resolve the matter before this Court. We must inquire further and determine exactly what procedure or “process” is due. The fundamental premise of procedural due process protection is notice and the opportunity to be heard. Cleveland Bd. of Educ. v Loudermill, 470 U.S. 532, 542, 84 L. Ed. 2d 494, 503 (1985). Moreover, the opportunity to be heard must be “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552, 14 L. Ed. 2d 62, 66 (1965). While the United States Supreme Court has consistently held that some form of hearing is required prior to a final deprivation of a protected “property” interest, the exact nature and mechanism of the required procedure will vary based upon the unique circumstances surrounding the controversy. Mathews, 424 U.S. at 333, 47 L. Ed. 2d at 32; Wolff v. McDonnell, 418 U.S. 539, 557-58, 41 L. Ed. 2d 935, 952 (1974). The United States Supreme Court has never required the allocation of a particular burden of proof in an employee termination dispute. In Lavine v. Milne, 424 U.S. 577, 47 L. Ed. 2d 249 (1976), the Supreme Court did recognize the important and potentially dispositive effect of the allocation of the burden of proof. However, in that decision, the Court also stated, “[o]utside the criminal law area, where special concerns attend, the locus of the burden of persuasion is normally not an issue of federal constitutional moment.” Id. at 585, 47 L. Ed. 2d at 256. Only in cases involving the deprivation of a fundamental right has the United States Supreme Court found a constitutionally protected right to a particular allocation of the burden of proof. See Santosky v. Kramer, 455 U.S. 745, 71 L. Ed. 2d 599 (1982) (termination of parental rights); Addington v. Texas, 441 U.S. 418, 60 L. Ed. 2d 323 (1979) (fundamental right to physical liberty associated with involuntary commitment to state hospital); Speiser v. Randall, 357 U.S. 513, 2 L. Ed. 2d 1460 (1958) (fundamental right to freedom of speech). Fundamental rights are those rights “deeply rooted in this Nation’s history” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U.S. 702, 721, 138 L. Ed. 2d 772, 787-88 (1997). The United States Supreme Court has held that an interest in continued employment is not a constitutionally protected fundamental right, but rather a “property” right subject to traditional procedural due process protections. Board of Regents, 408 U.S. at 576-78, 33 L. Ed. 2d at 560-61. In this case, petitioner has failed to identify the impingement of any fundamental right in his “just cause” termination claim. The United States Supreme Court, in Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, set forth a three-part balancing test to determine the appropriate procedures required to comply with procedural due process protection in any given situation. The Supreme Court in Mathews reiterated that procedural due process protection is a flexible, not fixed, concept governed by the unique circumstances and characteristics of the interest sought to be protected. The Court there identified the following three factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 335, 47 L. Ed. 2d at 33. There is no dispute that the initial Mathews-Eldridge factor, the private interest affected by the official action, is of significant importance in the matter before this Court. The ability to obtain and retain employment is of utmost concern to individuals as they strive to provide support for themselves and their families, as well as in seeking to achieve their aspirations and goals. The United Stat

CREMONTE v MICHIGAN STATE POLICE Docket Nos. 195669, 195670. Submitted September 8, 1998, at Lansing. Decided October 20, 1998, at 9:00 A.M. Leave to appeal sought. Thomas A. Cremonte brought actions in the Livingston Circuit Court and the Court of Claims against the Michigan State Police, his employer, alleging in the circuit court complaint that the defendant, in violation of the Civil Rights Act, MCL 37.2101 et seq.\ MSA 3.548(101) et seq., denied him promotion on the basis of his age or in retaliation for his opposition to policies of the defendant that discriminated against employees on the basis of age, race, and gender, and alleging in the Court of Claims complaint, for the same alleged conduct by the defendant, a violation of “public policy embodied in the Michigan and United States Constitutions” and a violation of equal protection under the state constitution. The parties stipulated to a joint trial, with the circuit court action tried before a jury. After five days of trial, the court, Daniel A. Burress, J., granted a motion by the plaintiff to amend the circuit court complaint to add claims of racial and gender discrimination. The jury found the defendant liable with regard to all claims and awarded the plaintiff damages. In the Court of Claims action, the court found the defendant liable for racial and gender, but not age, discrimination and awarded the plaintiff damages. The defendant appealed the jury verdict in the circuit court action and the award of damages in the Court of Claims action. The appeals were consolidated. The Court of Appeals held: 1. The defendant did not raise at trial, and therefore failed to preserve for appellate review, its claim that the plaintiff did not show that he opposed a violation of the Civil Rights Act, as required under MCL 37.2701(a); MSA 3.548(701)(a). 2. The trial court abused its discretion by allowing the plaintiff to amend his circuit court complaint midtrial. Pleadings may be amended to conform to evidence introduced at trial only where issues not raised by the pleadings are tried by express or implied consent of the parties, MCR 2.118(C)(1), or, if evidence is objected to at trial on the ground that it is not within the issues raised by the pleadings, where the party seeking amendment satisfies the court that the amendment and the admission of evidence will not prejudice the objecting party in its action or defense, MCR 2.118(C)(2). Here, the defendant did not consent to amendment of the complaint and the plaintiff did not show that the defendant would not be prejudiced by amendment. 3. The trial court erred in awarding damages for a violation of the state constitution. While the propriety of an inferred damage remedy arising directly from violations of the state constitution has been recognized in Smith v Dep’t of Public Health, 428 Mich 540 (1987), aff’d sub nom Will v Michigan Dep’t of State Police, 491 US 58; 109 S Ct 2304; 105 L Ed 2d 45 (1989), the availability in this case of a remedy under the Civil Rights Act obviates any need for an inferred damage remedy. Circuit court jury verdict reversed and circuit court case remanded for new trial; Court of Claims award of damages reversed. 1. Pleadings — Midtkial Amendment of Pleadings — Court Rules. A party whose evidence is objected to at trial on the ground that it is not within the issues raised by the pleadings is not allowed to amend its pleadings to conform the pleadings to the evidence unless the party satisfies the trial court that the amendment and the admission of the evidence will not prejudice the objecting party in its action or defense (MCR 2.118[C][2]). 2. Civil Rights — Civil Rights Act — Employment Discrimination — Dam- ages — Michigan Constttution. A damage remedy for violations of the state constitution may be inferred from the constitution in certain cases; no inferred remedy applies to claims of employment discrimination based on age, race, or gender or to claims of retaliation for opposing discriminatory employment practices or policies in view of remedies available under the Civil Rights Act (Const 1963, art 1, § 2; MCL 37.2101 et seq.; MSA 3.548(101) et seq.f Malley & Fett, P.C. (by James K. Fett and Marla A. Linderman), for the plaintiff. Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Richard P. Gartner, Assistant Attorney General, for the defendant. Before: Jansen, P.J., and Neff and O’Connell, JJ. O’Connell, J. This is an employment discrimination and retaliation case. In Docket No. 195669, defendant appeals a jury verdict in favor of plaintiff. We reverse and remand. In Docket No. 195670, defendant appeals the trial court’s damage award in the Court of Claims action. We reverse. The facts relevant to this appeal are fairly straightforward. Plaintiff is a white male and has been a Michigan State Police Trooper since 1977. Although he has been eligible for promotion for a number of years, he has not been promoted. In the years preceding this suit, plaintiff derided his superiors for hiring and promoting employees pursuant to an affirmative action program. He also wrote a memo questioning Ms superiors’ use of seMority as a factor in promotion decisions, arguing that low semority troopers were bemg promoted more often than Mgh seMority troopers. During tMs time, defendant was hiring and promoting pursuant to an affirmative action program. Defendant was also participating in a system of “augmented certification,” that, in certain circumstances, gave favorable treatment to women and minorities. Plaintiff originally filed a complaint in the Livmgston Circuit Court allegmg that the MicMgan State Police failed to promote him on the basis of Ms age or m retaliation for Ms opposition to MicMgan State Police policies that discriminated against certain employees on the basis of their age, race, and gender. Plaintiff also filed a Court of Claims complaint allegmg a violation of “the public policy embodied in the MicMgan and Urnted States Constitutions” and a violation of equal protection under the MicMgan Constitution. The parties stipulated jomder of the two actions, with the circmt court action to be decided by a jury and the Court of Claims action to be decided by the circmt judge. During the trial, plaintiff amended Ms circmt court complaint to add claims of race and gender discrimination. At trial, plaintiff argued that he has not been promoted because he opposed violations of the Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq., and because of Ms age, race, and gender. Defendant argued that plaintiff was not promoted because he did not have the qualities of a leader. Using a special-verdict form, the jury found defendant liable on all claims and awarded plaintiff $850,000 in damages. In the Court of Claims action, the trial court found defendant not hable on plaintiffs public policy and age claims, but found defendant hable for race and gender discrimination in violation of the Michigan Constitution, and awarded plaintiff $850,000. The trial court then added costs and interest to both awards, and attorney fees to the circuit court award. DOCKET NO. 195669 On appeal, defendant first argues that plaintiff failed to prove a prima facie case of retahation. Defendant contends that plaintiff did not show that he opposed a violation of the Civil Rights Act, as required under MCL 37.2701(a); MSA 3.548(701)(a). While it appears that this argument has merit, defendant failed to raise it below. Thus, this issue is unpreserved, and we will not review it. Napier v Jacobs, 429 Mich 222, 237-238; 414 NW2d 862 (1987). Defendant next argues that the trial court abused its discretion in allowing plaintiff to amend his complaint midtrial. We agree. MCR 2.118(C) provides for the amendment of pleadings to conform to the evidence introduced at trial: (1) When issues not raised by the pleadings are tried by express or implied consent of the parties, they are treated as if they had been raised by the pleadings. In that case, amendment of the pleadings to conform to the evidence and to raise those issues may be made on motion of a party at any time, even after judgment. (2) If evidence is objected to at trial on the ground that it is not within the issues raised by the pleadings, amendment to conform to that proof shall not be allowed unless the party seeking to amend satisfies the court that the amendment and the admission of the evidence would not prejudice the objecting party in maintaining his or her action or defense on the merits. The court may grant an adjournment to enable the objecting party to meet the evidence. Our Supreme Court has addressed the difference between amendments before trial and amendments during trial: MCR 2.118(C)(2) establishes strict requirements for amending a pleading during trial. Unless the party requesting amendment “satisfies the court that. . . amendment. . . would not prejudice the objecting party,” amendment “shall not be allowed.” This rule contrasts sharply with the free amendment allowed before trial. [Dacon v Transue, 441 Mich 315, 333; 490 NW2d 369 (1992). ] Here, the trial court allowed plaintiff to amend his complaint on the basis of a motion brought after five days of trial. In granting the motion, the trial court placed a great deal of emphasis on the fact that the parties both referenced race and gender claims in their opening statements. According to the trial court, plaintiff’s counsel “opened the door” to race and gender claims in his opening argument, and defendant failed to object. The trial court also focused on defense counsel's statements at the beginning of the third day of trial. At that time, defense counsel essentially stated that he had always perceived the case as a reverse discrimination case, but, after reviewing the pleadings, he realized that plaintiff was claiming only age discrimination and retaliation. The trial court felt that defense counsel’s statements were crucial: “It appears to me from my recollection now that there was a defining moment in this case, and I can’t remember what day that was, where [defense counsel] came in and said, I had a chance to really look at this case. And I was trying something different than what [plaintiff alleged in his complaint].” The trial court apparently concluded that defense counsel was prepared to defend against claims of race and gender discrimination. After discussing the amendment during the sixth day of trial, a Wednesday, the trial court put the matter off and finished the day’s testimony. There was no action on the case on Thursday, and on Friday morning the parties came in to further argue the motion to amend. Plaintiff’s attorney essentially argued that, on the basis of defense counsel’s statements on the third day of trial, defendant was not “in a position to argue that they were actually prejudiced.” Defense counsel responded: “[W]hen I prepared for that opening statement I had corrected my erroneous belief and no longer thought it was [a race and gender case].” The trial court continued its focus on the opening statements, asking defense counsel: “Do you agree that it was laid out in the opening statements it was clearly laid out in that fashion to the jury?” After listening to both attorneys, the trial court questioned defense counsel: “Mr. Gartner, if I were to grant the motion, tell me how you would be prejudiced and what you would need to cure that prejudice.” After additional arguments, the trial court granted the motion: Rule 2.118 (C)(1) [and] (2) take a liberal approach towards conforming the pleadings to the proofs, and they include safety valves of prejudice, hi this case, it’s clear to me that the issue [sic] of retaliation, age, gender, sex, race was [sic] clearly laid on the table, and in the Plaintiff’s opening statement not objected to by the Defendant; and, in fact, responded to by the Defendant in their [sic] opening statement. The case was really being tried on those issues until what I call the moments of enlightenment came on this record, at least which would be February 2nd, 1996 after we had gone through a number of witnesses when the matter was brought up by [defense counsel], I am satisfied that substantial justice can be achieved and complete relief as it relates to this case can be submitted to the jury. I’m going to allow the amendment as indicated. The trial court went on to describe the remedial measures it would allow defendant to use to “shore up the defense.” The court also noted that the trial was being delayed for one week anyway, because of the judge’s and jurors’ schedules, which would give the defense time to prepare. The trial court applied the wrong analysis and standard in granting plaintiffs motion. In focusing on the opening statements, the trial court was apparently trying to apply MCR 2.118(C)(1). In other words, the trial court was trying to decide whether defendant had impliedly consented to the additional claims. This was improper, because defense counsel made it clear on the third day of trial that he was not consenting to the trial of race and gender issues. In fact, defense counsel vigorously opposed the introduction of evidence on those issues. When plaintiff brought his motion to amend two days later, any “implied consent” had long since been revoked. Thus, MCR 2.118(C)(1) was inapplicable. The trial court’s statement that MCR 2.118(C)(2) “takes a liberal approach” toward amendments was clearly incorrect as a matter of law. As noted above, our Supreme Court has made it clear that MCR 2.118(C)(2) establishes strict requirements that must be met by the party requesting amendment. Dacon, supra at 333. Otherwise, the amendment “shall not be allowed.” Id. The trial court compounded its error by asking defendant to establish the nature and extent of any prejudice, when the court rule clearly places that burden entirely on the party requesting amendment, in this case, plaintiff. After a thorough review of the record, it is clear that plaintiff did not meet the requirements of MCR 2.118(C)(2), and we conclude that the trial court abused its discretion in granting plaintiff’s motion to amend. Plaintiff argues on appeal that defendant could not have been surprised by the amendment and that defendant was not prejudiced by it. First, we note that this argument is not especially convincing coming from the party who had the ability to avoid this issue by simply amending before trial. Second, it is clear that the addition of race and gender claims changed the nature of the case. The added claims placed new factual questions at issue and changed the import of evidence that had already been admitted. Under these circumstances, plaintiff could not have shown an absence of prejudice to defendant. As our Supreme Court has recognized, “ ‘litigation may proceed to a point where the opposing party cannot reasonably be expected to defend against the amendment; this is an especially pertinent factor on the eve of, during, or after trial.’ ” Weymers v Khera, 454 Mich 639, 659; 563 NW2d 647 (1997) (quoting Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 663; 213 NW2d 134 [1973]). In this case, litigation had proceeded well past the point where defendant could reasonably have been expected to defend against plaintiff’s amendment. Therefore, we reverse the jury verdict in Docket No. 195669 and remand for a new trial. DOCKET NO. 195670 Defendant argues that the trial court erred in awarding plaintiff monetary damages for a constitutional violation. We agree. In a splintered opinion, our Supreme Court has addressed the question whether a plaintiff may sue the state for damages for a violation of the Michigan Constitution. Smith v Dep’t of Public Health, 428 Mich 540; 410 NW2d 749 (1987), aff’d sub nom Will v Michigan Dep’t of State Police, 491 US 58; 109 S Ct 2304; 105 L Ed 2d 45 (1989). After a thorough review of United States Supreme Court decisions on point, two justices declined to find such a remedy. Id. at 612-632 (Justice Brickley, joined by Chief Justice Riley). However, four other justices “would recognize the propriety of an inferred damage remedy arising directly from violations of the Michigan Constitution in certain cases.” Id. at 647 (Justice Boyle, joined by Justice Cavanagh), 658 (Justice Archer, joined by Justice Levin). While the Court did not precisely identify which cases would justify an inferred damage remedy, Justice Boyle offered some guidance: We would recognize the propriety of an inferred damage remedy arising directly from violations of the Michigan Constitution in certain cases. As the Bivens [v Six Unknown Federal Narcotics Agents, 403 US 388, 407; 91 S Ct 1999; 29 L Ed 2d 619 (1971)] Court recognized, there are circumstances in which a constitutional right can only be vindicated by a damage remedy and where the right itself calls out for such a remedy. On the other hand, there are circumstances in which a damage remedy would not be appropriate. The absence of any other remedy would, as in Bivens, heighten the urgency of the question. Justice Harlan, concurring in Bivens, states that “[t]he question then, is, as I see it, whether compensatory relief is ‘necessary’ or ‘appropriate’ to the vindication of the interest asserted.” 403 US 407. In answering this question in the positive, Justice Harlan commented, “[f]or people in Bivens’ shoes, it is damages or nothing.” Id., p 410. Where a statute provides a remedy, the stark picture of a constitutional provision violated without remedy is not presented. [Id. at 647.] Justice Boyle went on to look at other factors that might weigh for or against an inferred damage remedy. One of those factors calls for a court “to consider the text, history, and previous interpretations of the specific provision for guidance on the propriety of a judicially inferred damage remedy. The provision itself may commit creation of a remedy to the Legislature rather than the courts.” Id. at 650-651. Art 1, § 2 of the Michigan Constitution of 1963 states: The last line of the section certainly weighs against an inferred damage remedy. Indeed, that sentence alone could be viewed as dispositive of this issue. See Smith, supra at 632 (opinion of Brickley, J.). hi addition, the availability of a remedy under the Civil Rights Act obviates any need for an inferred damage remedy in age, race, or gender discrimination cases, or in retaliation cases. Here, plaintiff could, and did, file a Civil Rights Act action against defendant. Thus, we have no trouble concluding that this was not an appropriate case in which to infer a damage remedy. For this reason, we must reverse the trial court’s damage award in Docket No. 195670. No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation. Docket No. 195669: Reversed and remanded for a new trial. We do not retain jurisdiction. Docket No. 195670: The trial court’s damage award is reversed. Several of plaintiff’s writings were introduced at trial. These writings included statements regarding affirmative action. One statement came from plaintiff’s evaluation of a State Police instructor: Once again our department is using officers with far too little experience to teach programs which relate to patrols. I respect only those that I know in my own mind are qualified to teach those areas. Those promoted under the auspices of “affirmative action” are not worthy of respect, or my attention. Having been a 21 yr resident of Detroit I did not appreciate [the instructor] ridiculing the Detroit Police tactics of the 60’s. When I was a kid I could walk the streets of Detroit and was safe. S.T.R.E.S.S. and the “Big Four,” both of which [the instructor] attacked were responsible for the safe streets. Its [sic] very

BURCHETT v RX OPTICAL Docket No. 196681. Submitted January 13, 1998, at Grand Rapids. Decided October 9, 1998, at 9:15 AM. Leave to appeal denied 459 Mich_. Lisa and John Burchett and their minor son, Jacob Burchett, by his next friend, Lisa Burchett, brought an action in the Kalamazoo Circuit Court against Rx Optical, Lisa Burchett’s former employer. The plaintiffs alleged that the defendant terminated Lisa Burchett’s employment after she went on disability for a medical condition related to her pregnancy with Jacob Burchett and after she complained to the Michigan Department of Labor that the defendant was docking her pay for mistakes made on the job. The plaintiffs alleged that the termination violated the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seq.; MSA 17.428(1) et seq., the Civil Rights Act (cra), MCL 37.2101 et seq.; MSA 3.548(101) et seq., the Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq., and the Family and Medical Leave Act (fmla), 29 USC 2601 et seq. John Burchett claimed loss of consortium, and Jacob Burchett claimed that the defendant’s actions caused Lisa Burchett to suffer stress while pregnant, resulting in the premature birth and injury of Jacob Burchett. The defendant moved for summary disposition. The court, Philip D. Schaefer, J., denied the motion with respect to Lisa and John Burchett, but granted the motion with respect to Jacob Burchett. The parties settled the claims of Lisa and John Burchett. Jacob Burchett, by his next friend, appealed the order summarily dismissing his claims under the cra, the hcra, and the wpa. The Court of Appeals held: 1. Jacob Burchett cannot maintain a cause of action under the cra for damages for injuries allegedly sustained as a result of the alleged violation of Lisa Burchett’s civil rights. The language of subsection 801(1) and § 202 of the cra indicate legislative intent that only the person whose civil rights were violated in a given case may bring an action under the cra. 2. Jacob Burchett cannot maintain a cause of action under the hcra for damages for injuries allegedly sustained as a result of the alleged violation of Lisa Burchett’s rights under the hcra. The purposes and goals of the hcra are the same as those of the cra, and language in the hcra similarly indicate legislative intent that only the person whose rights under the hcra were violated in a given case may bring an action under the hcra. 3. Jacob Burchett cannot maintain a cause of action under the wpa for damages for injuries allegedly sustained as a result of alleged retaliatory actions taken against Lisa Burchett. Although the wpa has purposes and goals that are distinct from those of the cra and the hcra, all three acts are given like treatment. Jacob Burchett cannot maintain an action under the wpa for the same reasons that he cannot maintain an action under the cra and the hcra. Affirmed. Neff, P.J., concurring in part and dissenting in part, stated that Jacob Burchett cannot maintain an action under the wpa, but should be allowed to proceed under the cra and the hcra. Regardless of whether Jacob Burchett’s action under the cra and the hcra is derivative or independent of his mother’s action under the cra and the hcra, nothing in the cra and the hcra precludes Jacob Burchett’s claim. 1. Civil Rights — Civil Rights Act — Handicappers’ Civil Rights Act —• Infants. An action under the Civil Rights Act or the Handicappers’ Civil Rights Act may be brought and maintained only by those whose rights under either act are violated; an infant who claims injury only from discriminatory conduct directed at its mother while pregnant with the infant cannot maintain an action under either act (MCL 37.1101 et seq., 37.2101 et seq.; MSA 3.550[101] et seq., 3.548[101] et seq.). 2. Master and Servant — Whistleblowers’ Protection Act — Infants. An action under the Whistleblowers’ Protection Act may be brought and maintained only by those employees who report violations or suspected violations of law by their employers; an infant who claims injury only from retaliatory conduct directed at its mother while pregnant with the infant cannot maintain an action under the act (MCL 15.361 et seq.; MSA 17.428[1] et seq.). Durant, Piper & Sorei (by William F. Piper), for the plaintiff. Mary E. Delehanty, for the defendant. Before: Neff, P.J., and Sawyer and Murphy, JJ. Murphy, J. Plaintiff appeals as of right from the order granting in part and denying in part defendant’s motion for summary disposition. We affirm. This case arises out of Lisa Burchett’s termination of employment as an optician with defendant. However, this appeal only addresses the claims involving plaintiff’s son, Jacob. Lisa began working at Rx Optical in 1992. In December 1994, she became pregnant and informed her supervisor. On January 1, 1995, Lisa received a paycheck from which defendant had deducted money pursuant to its policy that its opticians would be responsible for mistakes made on accounts. On January 4, 1995, plaintiff contacted the Michigan Department of Labor to report defendant’s policy of requiring opticians to reimburse defendant for mistakes that they made on certain accounts. Upon discovering that defendant’s policy was illegal, Lisa informed both the owner and the president of Rx Optical. That same day, Lisa experienced vaginal bleeding and her doctor instructed her to go home. The next day, she was placed on a two-week disability leave; however, before the end of this two-week period she was terminated from her job for allegedly having a bad attitude. On March 16, 1995, Lisa and John Burchett, her husband, filed an action alleging that Lisa’s termination violated the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seq.; MSA 17.428(1) et seq., the Civil Rights Act (CRA), MCL 37.2101 et seq.; MSA 3.548(101) et seq., the Michigan Handicappers’ Civil Rights Act (hora), MCL 37.1101 et seq.; MSA 3.550(101) et seq., and the Family and Medical Leave Act (fmla), 29 USC 2601 et seq. John Burchett alleged that because of Lisa’s termination, he suffered loss of consortium. Following the premature birth of their son, Jacob, the Burchetts amended their complaint to add Jacob as a party, alleging that defendant’s actions caused Lisa to suffer stress, which resulted in Jacob’s premature birth and associated injuries. Defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and (10). Although plaintiff may very well have had considerable problems establishing that defendant’s alleged violations of the statutes proximately caused the alleged injuries to Jacob, the trial court did not reach the issue of proof. Rather, the trial court granted the motion with respect to the claims involving Jacob under MCR 2.116(C)(8) (failure to state a claim on which relief can be granted). The trial court denied defendant’s motion for summaiy disposition with respect to John and Lisa Burchett’s claims; however, the parties settled those claims after the trial court’s order. Plaintiff appeals from the trial court’s dismissal of Jacob’s claims. We review de novo a trial court’s decision to grant a motion for summary disposition. Citizens Ins Co v Bloomfield Twp, 209 Mich App 484, 486; 532 NW2d 183 (1995). A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of a claim and only permits consideration of the pleadings. Wade v Dep’t of Corrections, 439 Mich 158, 162; 483 NW2d 26 (1992). A trial court should grant a motion for summary disposition under MCR 2.116(C)(8) only where a claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Id. Plaintiff argues that Jacob should be allowed to maintain a cause of action under the cra, the hcra, and the wpa. Plaintiff does not challenge the trial court’s decision with respect to the fmla. The fundamental purpose of statutory construction is to discover and give effect to the intent of the Legislature. Ansell v Dep’t of Commerce (On Remand), 222 Mich App 347, 355; 564 NW2d 519 (1997). Once discovered, the Legislature’s intent must prevail, any existing rule of construction to the contrary notwithstanding. Id. Where reasonable minds may differ about the meaning of the statute, we look to the objective of the statute and the harm it is designed to remedy and apply a reasonable construction that best accomplishes the Legislature’s purpose. Id. Although we appreciate the remedial nature of these acts and recognize that appellate courts have consistently construed these acts liberally, see Chmielewski v Xermac, Inc, 457 Mich 593; 580 NW2d 817 (1998) (the HCRA); Chandler v Dowell Schlumberger Inc, 456 Mich 395, 398; 572 NW2d 210 (1998) (the wpa); Reed v Michigan Metro Girl Scout Council, 201 Mich App 10, 15; 506 NW2d 231 (1993) (the CRA), we are not prepared to say that the Legislature, by its adoption of these acts, intended to create a cause of action for physical injuries to an infant, allegedly resulting from a stress-induced premature birth caused by unlawful employment discrimination directed at the infant’s mother. We first address whether Jacob can maintain a cause of action under the CRA. In Eide v Kelsey-Hayes Co, 431 Mich 26; 427 NW2d 488 (1988), our Supreme Court addressed a distinctly different question. In that case, the Court addressed whether a derivative cause of action for loss of consortium is precluded by the CRA. Id., 28. According to the majority in Eide, “a claim for loss of consortium is simply one for loss of society and companionship,” which needs no independent statutory authority for it to be brought. Id., 29-30. What is necessary is that the impaired spouse has sustained some legally cognizable harm or injury — in Eide, injuries from sexual harassment in violation of the CRA — resulting in a loss of society and companionship to the unimpaired spouse. Id., 29. Because “courts have consistently treated loss of consortium not as an item of damages, but as an independent cause of action,” Justice Boyle, writing for the majority, framed the issue before the Court as “not whether a cause of action [for loss of consortium] is available under the Civil Rights Act, but whether there is anything in the act which would preclude this independent cause of action.” Id., 29-30 (emphasis added). Stated differently, a loss of consortium claim is not a claim under the CRA at all, but a claim at common law. Id., 33-34, citing Prosser & Keeton, Torts (5th ed), § 125, pp 931-934. Our Supreme Court concluded that neither the plain language of the CRA nor conventional rules of statutory construction support the argument that the Legislature intended to preclude a cause of action for loss of consortium. Id., 31, 34. In our view, the question before this Court is entirely different. Unlike the loss of consortium claim, the claim presented here is not an independent cause of action rooted in the common law. While it is true that Michigan common law recognizes a claim of negligence on behalf of a fetus for prenatal injury if (1) the fetus is later bom alive, or (2) the fetus was viable at the time of injury, Jarvis v Providence Hosp, 178 Mich App 586, 591; 444 NW2d 236 (1989), the cause of action presented in this case is not a negligence claim. Rather, the claim made by lisa Burchett, as next friend of her son Jacob, can only be perceived as a civil rights claim brought directly under the CRA. In other words, we are asked to decide not whether there is anything in the CRA that would preclude an infant’s independent cause of action for physical injuries, resulting from a premature birth that was allegedly caused by employment discrimination against the infant’s pregnant mother, but whether the infant can maintain such a cause of action directly under the CRA. We believe that the CRA cannot be so broadly construed as to authorize such a claim. Statutory analysis necessarily begins with the language of the statute in question. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993). The civil enforcement provision of the CRA provides: A person alleging a violation of this act may bring a civil action for appropriate injunctive relief or damages, or both. [MCL 37.2801(1); MSA 3.548(801)(1).] Although remedial statutes are to be liberally construed to suppress the evil and advance the remedy, Eide, supra, 34, we are not convinced that the Legislature intended to allow an infant to pursue a cause of action for injuries that the infant has incurred as a result of a civil rights violation inflicted upon the infant’s mother, irrespective of whether the infant has alleged that prenatal or postnatal injuries were incurred as a result of the civil rights violation. Enacted by the Michigan Legislature in 1976 to supplant the Fair Employment Practices Act, the CRA prohibits discrimination based on sex, race, national origin, religion, height, weight, or marital status in employment, housing, use of public accommodations, public service, and educational facilities. With respect to discrimination in employment, the CRA provides: (1) 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. (c) Segregate, classify, or otherwise discriminate against a person on the basis of sex with respect to a term, condition, or privilege of employment, including, but not limited to, a benefit plan or system. [MCL 37.2202; MSA 3.548(202).] In our view, when this portion of the CRA is read with the civil enforcement provision of the act, we are compelled to conclude that the Legislature intended to authorize only the person whose civil rights were violated to bring a cause of action under the CRA. Because plaintiff does not claim that defendant violated Jacob’s civil rights but, rather, alleges that Jacob suffered damages as a result of the violation of the civil rights of Jacob’s mother, we conclude that Jacob cannot maintain a cause of action directly under the CRA. Plaintiff next argues that Jacob should be allowed to maintain a cause of action under the HCRA. However, the HCRA has the same purposes and goals as the CRA, and this Court has held that claims under the hcra should be treated similarly to those under the cra. Milnikel v Mercy-Memorial Medical Center, Inc, 183 Mich App 221, 223-224; 454 NW2d 132 (1989). Further, the civil enforcement provision of the hcra is identical to that of the CRA. See MCL 37.1606(1); MSA 3.550(606)(1). Therefore, for the reasons set forth above, we likewise decline to interpret the hcra as authorizing Jacob’s claim. Plaintiff also argues that Jacob should be allowed to maintain a cause of action under the wpa. Although the wpa and the civil rights acts do not share identical purposes and goals — the wpa is designed to protect the public by protecting employees who report violations or suspected violations of the law to a public body, Dolan v Continental Airlines, 454 Mich 373, 378; 563 NW2d 23 (1997) — case law nonetheless supports the conclusion that the wpa, the cra, and the HCRA deserve like treatment. See Stewart v Fairlane Community Mental Health Centre (On Remand), 225 Mich App 410, 421; 571 NW2d 542 (1997); Anzaldua v Band, 216 Mich App 561, 580-581; 550 NW2d 544 (1996). Further, the civil enforcement provision of the wpa is substantively the same as those of both the CRA and the HCRA. See MCL 15.362; MSA 17.428(2). Accordingly, for the reasons discussed above, we are also satisfied that the Legislature, by its adoption of the wpa, did not intend to establish a cause of action for a person other than the person against whom a violation of the WPA was directed. Because the alleged violation of the wpa in this case was directed at Jacob’s mother and not Jacob, we conclude that Jacob cannot maintain a cause of action against defendant under the statutory scheme established in the WPA. In sum, a court’s decision regarding whether a statute creates a private right of action must be consistent with legislative intent while furthering the Legislature’s purpose in enacting the statute. See Gardner v Wood, 429 Mich 290, 301; 414 NW2d 706 (1987). We conclude that the Legislature, by its adoption of the cra, the hcra, and the wpa did not intend to create the private right of action brought in this case by lisa Burchett, as next friend of her son Jacob. Further, because these areas of law have been so extensively addressed by the Legislature, we are not prepared to recognize a new derivative cause of action in the area of civil rights or the wpa for prenatal injuries allegedly inflicted on the child of the person whose rights were violated. Such recognition is best left to the Legislature, if it is so inclined. Accordingly, the trial court did not err in granting defendant’s motion for summary disposition with respect to Jacob’s claims. Affirmed. Sawyer, J., concurred. Neff, P.J., ([concurring in part and dissenting in part). I concur with the majority that the trial court properly granted defendant’s motion for summary disposition with respect to plaintiff’s attempt to seek redress on Jacob’s behalf under the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq. However, I would hold that plaintiff is entitled to proceed under the Civil Rights Act (CRA), MCL 37.2101 et seq.; MSA 3.548(101) et seq., and the Michigan Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq., and write separately to address the issue of derivative liability, which, because of the unique relationship between an unborn child and its mother, and the particular allegations set forth in plaintiffs complaint, is critical to the resolution of this case. Although the concept of derivative liability is not always clearly articulated, it generally refers to a claim in which the plaintiff seeks damages for a wrong done to the plaintiff that is proximately caused by a wrong done to another. Generally, the inquiry whether a claim is “derivative” focuses not on how the injury occurred but on whether the claimed damages are based on the plaintiffs own injury, or that of another. A common example of derivative liability is that of loss of consortium, which cannot exist without a prior injury to a spouse. See Berryman v Kmart Corp, 193 Mich App 88, 94; 483 NW2d 642 (1992). The alleged damages are separate and distinct from any damages to the physically injured spouse, yet they are dependent both legally and causally on the latter. Our Supreme Court has recognized that a claim for loss of consortium is derivative “but only in the sense that it does not arise at all unless the other, impaired spouse has sustained some legally cognizable harm or injury,” and treats such a claim not as an item of damages, but as a separate cause of action. Eide v Kelsey-Hayes Co, 431 Mich 26, 29; 427 NW2d 488 (1988). The facts alleged in the present case do not fit neatly into a recognized category. Unlike a loss of consortium claim, plaintiffs complaint on Jacob’s behalf does not seek compensation for damages suffered by or on account of an injury to plaintiff. Neither is Jacob a mere assignee of plaintiff’s cause of action. Rather, plaintiff in her representative capacity seeks to recover for various injuries allegedly sustained by Jacob as a result of statutory violations involved in the termination of plaintiff’s employment. Plaintiff alleges that de