Retaliation Cases

JOHNNY E. BREWER, Plaintiff v. CABARRUS PLASTICS, INC., Defendant No. COA97-200 (Filed 15 September 1998) 1. Employer and Employee— racial discrimination — prima facie case — directed verdict — improper The trial court’s grant of defendant’s directed verdict motion in an employment discrimination action was improper where plaintiff had alleged racial discrimination under 42 U.S.C. § 1981 and established a prima facie case of discrimination. Bearing in mind that plaintiff’s burden in establishing a prima facie case is not an onerous one and that the trial court must examine the evidence in the light most favorable to the nonmoving party on a motion for directed verdict, plaintiff’s evidence on qualifications was sufficient. Directed verdict for defendant would have been appropriate only if defendant conclusively satisfied as a matter of law its burden of producing evidence of legitimate nondiscriminatory reasons for plaintiff’s discipline and termination; viewing the evidence in the light most favorable to plaintiff, a genuine issue of fact existed as to whether plaintiff actually accumulated three “written” warnings as defendant claimed. 2. Employer and Employee— retaliatory discharge — racial discrimination complaint — directed verdict Directed verdict was improperly granted for defendant on a retaliatory discharge claim arising from a racial discrimination complaint where defendant challenged only the third element of retaliatory discharge, causal connection, but plaintiff presented more than a scintilla of evidence. Although defendant contended that the lapse of time between the filing of the first EEOC charge and plaintiff’s termination obviated any causal connection, plaintiff’s proper reliance on evidence of the sequence of events raises a factual issue sufficient to preclude grant of a directed verdict. Appeal by plaintiff from judgment entered 28 May 1996 by Judge James C. Davis in Cabarrus County Superior Court. Heard in the Court of Appeals 8 October 1997. Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A., by John Gresham, and Sharpe & Fosbinder, P.A., by Julie H. Fosbinder, for plaintiff-appellant. Robinson, Bradshaw & Hinson, PA., by Richard A. Vinroot and Frank H. Lancaster, for defendant-appellee. JOHN, Judge. Plaintiff appeals the trial court’s grant of defendant’s directed verdict motion on plaintiff’s claims of racial discrimination and retaliatory discharge. Plaintiff also contends the trial court erred by (1) excluding certain portions of his testimony and that of other witnesses, (2) admitting irrelevant and highly prejudicial evidence, and (3) precluding during jury voir dire “questions reasonably designed to explore jurors’ potential racial bias and bias toward racial discrimination claims.” For the reasons set forth below, we award plaintiff a new trial. Evidence presented at trial included the following: Plaintiff, an African-American male, began work for defendant Cabarrus Plastics, Inc. (CPI) in April 1989 as a machine operator. CPI manufactures molded plastic parts. In October 1989, plaintiff transferred to the position of material handler and received an increase in pay. His duties included filling machines with plastic pellets, collecting materials from machines that had completed a particular job, cleaning machines, assembling boxes for finished parts, and substituting for other machine operators during their breaks. During plaintiff’s first one and one-half years of employment, it appeared to him that white employees were receiving overtime opportunities denied to him and that his wage increases lagged behind those of white employees. In addition, a junior white employee was promoted over plaintiff to the position of set-up technician. Plaintiff recalled that plant manager Russell Hayes said to him during this period, “Johnny Brewer, what are you doing — what the hell you think you’re doing, boy?” Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in November 1990, alleging wrongful denial of promotion, wage increases and overtime based on his race. The first two allegations were resolved against plaintiff. The EEOC determined plaintiff “was not as qualified as the selectee” for promotion and that CPI “properly followed” its promotion and wages practice. However, the EEOC found plaintiff had been denied overtime because of his race and pursued a lawsuit on his behalf. CPI paid plaintiff $200.00 to settle the suit. According to plaintiff, a few weeks after filing his complaint with EEOC, David Brewer (Brewer), a white supervisor, called plaintiff into Brewer’s office on more than one occasion. During those discussions, Brewer attempted to dissuade plaintiff from pursuing the racial discrimination allegation. William Cook (Cook), also a supervisor at CPI, testified Brewer remarked that the plaintiff “[d]idn’t get what he wanted so he’s trying to make a little trouble.” Cook also testified Brewer used the pejorative term “n — ” in his presence, including the protestation, “I ain’t kin to no damn n — ,” when another employee jokingly suggested Brewer and plaintiff were related. Former CPI employee Trina Emrich Wright (Wright) stated that Brewer asserted on more than one occasion “it was a shame that a ‘N’ had to have the same last name as him.” Plaintiff testified a number of changes occurred in his work environment following his EEOC complaint and that his “job got harder” after he made the claim. For example, prior to the charge, plaintiff had been working five or six machines. After the charge, plaintiffs supervisor regularly scheduled him to work eight or nine machines, more than the similarly placed employee on either the preceding or succeeding shifts. Further, plaintiff’s obligation to substitute for machine operators during, their break times also increased, consuming up to three hours of his work day. Wright, plaintiff’s co-worker who was employed by CPI from 1989 through 1992, indicated that after plaintiff filed his charge of discrimination, “he had an extra workload” which “doubled the load in all aspects.” CPI, on the other hand, maintained that plaintiff’s work performance deteriorated during his final year of employment. Plaintiff received three warnings that year and as a result, was terminated pursuant to CPI’s “three strikes” procedure. CPI maintained a two-tier disciplinary policy under which certain offenses might result in immediate termination, while accumulation of three written warnings for certain other offenses also mandated termination. As CPI’s employee handbook stated: Receipt of three written warnings from either section [describing offenses], in any categories, within the same twelve month period will result in discharge. On 17 July 1991, plaintiff was warned for “not doing his job properly” after letting a press run out of material. In documenting the incident, Brewer wrote, under the heading “Action Taken,” “[a]ny other negligence in this matter will result in disciplinary action.” After plaintiff allowed another press to run out of material, a second warning was issued 4 February 1992 for “willful failure to perform work assigned.” Brewer memorialized the action taken on this occasion as a “written warning.” Finally, plaintiff received a “written warning” on 17 March 1992 for “not wearing safety glasses in designated area.” Plaintiff disputed the legitimacy of the three warnings that led to his termination. With respect to the first occurrence, plaintiff explained that the automatic feeder was broken and he was unable to ascertain that material was not being drawn up into the machine. More significantly, however, while acknowledging the warning had been placed into his record in written form, plaintiff testified it was company practice to write down verbal warnings to place in the reprimanded employee’s file. Plaintiff emphasized that the first incident was not classified as being a “written warning,” which designation had been recited in reports of the second and third occurrences. In addition, he offered into evidence other employee records containing written “verbal warnings.” Regarding the second and third warnings, plaintiff asserted they likewise were unwarranted and that he was treated differently from white employees with respect to the issuance of warnings. In any event, plaintiff was terminated the day following receipt of the third warning, and he was replaced by a white employee. Plaintiff thereafter filed a second EEOC complaint, alleging the termination was in retaliation for his first EEOC charge. The EEOC determined that: Examination of the evidence indicates [plaintiff] was discharged because he received three written disciplinary actions within a twelve month period. There was no evidence to show that [CPI] discharged [plaintiff] in retaliation for filing a previous charge of discrimination against [CPI]. Plaintiff filed the instant complaint 31 March 1995, alleging violation of 42 U.S.C. § 1981 (1994 & Supp. 1998) (§ 1981) and wrongful discharge based on the public policy expressed in the Equal Employment Practices Act, N.C.G.S. § 143-422.1 (1996). CPI’s motion for summary judgment was denied 6 November 1995. At the close of plaintiffs evidence during trial before a jury, CPI moved for directed verdict pursuant to N.C.G.S. § 1A-1, Rule 50 (Supp. 1997) (Rule 50). The motion was granted in an “Order and Judgment” entered 28 May 1996, both as to plaintiffs claim of violation of § 1981 and his wrongful discharge and discipline claim. Plaintiff filed timely notice of appeal. Our Supreme Court has written that [a] motion for directed verdict tests the sufficiency of the evidence to take the case to the jury. In making its determination of whether to grant the motion, the trial court must examine all of the evidence in a light most favorable to the nonmoving party, and the nonmoving party must be given the benefit of all reasonable inferences that may be drawn from that evidence. If, after undertaking such an analysis of the evidence, the trial judge finds that there is evidence to support each element of the nonmoving party’s cause of action, then the motion for directed verdict . . . should be denied. Abels v. Renfro Corp., 335 N.C. 209, 214-15, 436 S.E.2d 822, 825 (1993), disc. review denied, 347 N.C. 263, 493 S.E.2d 450 (1997) (citations omitted). If more than a scintilla of evidence supports each element of the non-movant’s claim, the directed verdict motion should be denied. Ace Chemical Corporation v. DSI Transports, Inc., 115 N.C. App. 237, 242, 446 S.E.2d 100, 103 (1994). Finally, a directed verdict should not be granted when conflicting evidence has been presented on contested issues of fact. Id. Plaintiff alleged CPI violated § 1981 because it “discriminated against [him] on the basis of race and retaliation for filing a complaint of discrimination.” In pertinent part, § 1981 provides all persons .... [shall have the] same right in every State and Territory to make or enforce contracts . . . and to the full and equal benefits of all laws and proceedings for the security of persons and property as is enjoyed by white citizens .... The Civil Rights Act of 1991, 42 U.S.C. § 1981 (1994 & Supp. 1998) broadened the scope of § 1981 “to include essentially all forms of racial discrimination in employment.” Percell v. International Business Machines, Inc., 785 F. Supp. 1229, 1231 (E.D.N.C. 1992), aff’d, 23 F.3d 402 (4th Cir. 1994). Therefore, § 1981 encompasses plaintiff’s claims for wrongful termination and wrongful discipline. See Williams v. Carrier Corp., 889 F. Supp. 1528, 1530-31 (M.D. Ga. 1995), aff’d, 130 F.3d 444 (11th Cir. 1997) (plaintiff may establish prima facie case of racially biased discipline under § 1981 by showing he or she did not violate work rule or that he or she engaged in conduct similar to individual outside protected group who was disciplined less severely). Plaintiffs retaliation claim is likewise actionable under § 1981. See Skeeter v. City of Norfolk, 681 F. Supp. 1149, 1154 (E.D. Va. 1987), aff’d 898 F.2d 147 (4th. Cir. 1990), cert. denied, 498 U.S. 838, 112 L. Ed. 2d 81 (1990) (retaliatory discharge actionable under § 1981). The models and standards developed in jurisprudence under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1994 & Supp. 1997) (Title VII) also apply to claims under § 1981. Patterson v. McLean Credit Union, 491 U.S. 164, 181-82, 105 L. Ed. 2d 132, 153 (1989), aff’d 39 F.3d 515 (4th Cir. 1994). The ultimate purpose of both Title VII and G.S. § 143-422.2 is to eliminate “discriminatory practices in employment.” North Carolina Department of Correction v. Gibson, 308 N.C. 131, 141, 301 S.E.2d 78, 85 (1983). In analyzing state claims, our Supreme Court has adopted the evidentiary standards and principles developed under Title VII. Id. Two primary models have developed: (1) the circumstantial evidence model, see McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 677-78 (1973), aff’d 528 F.2d 1102 (8th Cir. 1976) (under circumstantial evidence model as applied to discriminatory discharge claim, plaintiff must establish prima facie case by showing a) he was member of protected class, b) was terminated, c) was qualified to perform assigned job duties, and d) was replaced by a member of non-protected class or treated more harshly than similarly situated non-protected employees), and (2) the direct evidence model, see McCarthy v. Kemper Life Insurance Company, 924 F.2d 683, 686 (7th Cir. 1991) (direct evidence, such as racially derogatory comments, is proof of discriminatory motive on part of employer). In a racial discrimination case, our Supreme Court has set forth the standards as follows: (1) The claimant carries the initial burden of establishing a prima facie case of discrimination. (2) The burden shifts to the employer to articulate some legitimate nondiscriminatory reason for the applicant’s rejection. (3) If a legitimate nondiscriminatory reason for rejection has been articulated, the claimant has the opportunity to show that the stated reason for rejection was, in fact, a pretext for discrimination. Gibson, 308 N.C. at 137, 301 S.E.2d at 82. “The burden of establishing & prima facie case of discrimination is not onerous,” and may be accomplished by a variety of means, id. at 137, 301 S.E.2d at 83, including showing (1) a claimant is a member of a minority group, (2) he was qualified for the position, (3) he was discharged, and (4) the employer replaced him with a person who was not a member of a minority group. Id. Alternatively, a claimant may show discharge of a black employee and retention of a white employee under apparently similar circumstances. Id. Establishment of a prima facie case gives rise to a presumption that “the employer unlawfully discriminated against the employee.” Id. at 138, 301 S.E.2d at 83. The employer then has the “burden of producing evidence to rebut the presumption of discrimination.” Id. The employer’s burden of production is satisfied “if he simply explains what he has done or produces evidence of legitimate nondiscriminatory reasons.” Id. Upon production by the employer of an “explanation . . . legally sufficient to support a judgment” in its favor, “the [employee] is then given the opportunity to show that the employer’s stated reasons are in fact a pretext for intentional discrimination.” Id. at 139, 301 S.E.2d at 83-84. In doing so, the employee may rely on evidence offered to establish a prima facie case “to carry his burden of proving pretext.” Id. In the case sub judice, we believe plaintiff met his burden of establishing aprima facie case of discrimination, thereby precluding the grant of defendant’s directed verdict motion on grounds he failed to do so. See Ace Chemical Corporation, 115 N.C. App. at 242, 446 S.E.2d at 103 (if more than scintilla of evidence supports each element of non-movant’s claim, motion should be denied). Defendant does not dispute that plaintiff presented evidence satisfying three of the four elements recited in Gibson: plaintiff was an African-American discharged from his position at CPI and replaced by a white worker. See Gibson, 308 N.C. at 137, 301 S.E.2d at 82-83. CPI contends, however, that plaintiff failed to present prima facie evidence of his qualification for the position. See Hughes v. Bedsole, 48 F.3d 1376, 1383 (4th Cir. 1995), cert. denied, 516 U.S. 870, 133 L. Ed. 2d 126 (1995) (“[plaintiff] must. . . eliminate concerns that she was fired because of her performance or qualifications, two of the most common nondiscriminatory reasons for any adverse employment decision”). Bearing in mind that plaintiffs burden in establishing a prima facie case was “not an onerous one,” see Gibson, 308 N.C. at 137, 301 S.E.2d at 82, and that on a motion for directed verdict the trial court must examine the evidence in the light most favorable to the nonmoving party, Abels, 335 N.C. at 214-15, 436 S.E.2d at 825, we conclude plaintiffs evidence on the qualifications prong of Gibson was sufficient to withstand defendant’s motion. Plaintiff presented evidence he was hired 3 April 1989 at a pay rate of $6.50 per hour and terminated 17 March 1992 when he was receiving $8 per hour. He received merit pay increases while employed at CPI. See Gomez v. Trustees of Harvard University, 677 F. Supp. 23, 25 (D.D.C. 1988) (plaintiff’s burden in making out prima facie case is “de minimis,” and salary increases are indicative of qualification). Plaintiffs evidence also included positive performance evaluations and a relative lack of disciplinary actions prior to filing the EEOC complaint. Finally, plaintiff performed additional duties following his initial EEOC complaint. We believe this evidence, viewed in the light most favorable to plaintiff, is sufficient to indicate plaintiff’s qualifications for the job. At a minimum, plaintiff presented the necessary “scintilla of evidence” supporting the element of qualification for his position. See Ace Chemical Corporation, 115 N.C. App. at 242, 446 S.E.2d at 103. In response, CPI points to the three warnings received by plaintiff, insisting they reveal inadequate work performance and consequent lack of qualification for promotion. We cannot say this evidence overcame plaintiff’s prima facie case as a matter of law so as to justify verdict being directed in favor of CPI. See Abels, 335 N.C. at 214-15, 436 S.E.2d at 825 (nonmoving party must be given benefit of all reasonable inferences that may be drawn). CPI cites Karpel v. Inova Health System Services, 134 F.3d 1222 (4th Cir. 1998) as supporting its contention plaintiff failed to present sufficient evidence of satisfactory job performance. We disagree. In affirming summary judgment for the defendant-employer, the Fourth Circuit in Karpel noted the record therein “clearly demonstrate^] that [plaintiff’s] job performance was unsatisfactory.” Karpel, 134 F.3d at 1128. The plaintiff-employee had been repeatedly tardy, accumulated multiple inadequate performance reviews, and failed to complete required monthly summaries. Id. By contrast, the record in the case sub judice does not “clearly” demonstrate plaintiffs lack of qualifications for the job. For example, we note plaintiff disputed the warnings, testified they resulted in part from his increased workload, and asserted the first warning was “verbal” as opposed to “written.” Wright corroborated the testimony regarding plaintiffs increased workload. A directed verdict is not proper when there is conflicting evidence on contested issues of fact. Ace Chemical Corporation, 115 N.C. App. at 244, 446 S.E.2d at 104. CPI also relies on McCarthy, 924 F.2d 683. CPI accurately relates that plaintiff in McCarthy, like plaintiff herein, filed suit against his employer alleging racial discrimination and retaliation in violation of Title VII and § 1981. Id. at 685. McCarthy had filed an EEOC charge and was subsequently discharge

BUCHANAN v CITY COUNCIL OF FLINT Docket No. 193153. Submitted May 5, 1998, at Grand Rapids. Decided September 11, 1998, at 9:10 A.M. Leave to appeal sought. Darryl Buchanan brought an action in the Genesee Circuit Court against the City Council of Flint. When two female employees filed complaints alleging sexual harassment by the plaintiff, Flint’s ombudsman, the city attorney’s office undertook an investigation. A panel reviewed the investigation undertaken by an assistant city attorney and forwarded to the city council for its independent review and action a recommendation for remedial and disciplinary action. The city council placed the plaintiff on administrative leave with pay pending the outcome of an investigation of a special counsel that it had appointed. The plaintiff then filed his complaint, alleging disparate treatment, false light defamation, and intentional infliction of emotional distress and seeking judicial review, injunctive relief, and damages. The court, Donald R. Freeman, J., revoked the administrative leave and ordered that the plaintiff be reinstated as ombudsman, finding that the city charter made no provision for a suspension of or imposing administrative leave on the ombudsman, but held that the city’s policy regarding harassment and discrimination applied to the ombudsman and that the city council could conduct an investigation of those charges levied against the plaintiff. The city council conducted an impeachment hearing, hearing the testimony of numerous witnesses, and, thereafter, determined that the plaintiff should be removed as ombudsman, holding specifically that the plaintiff had wilfully caused citizens’ complaints not to be worked on, had permitted a conflict of interest in a specified case, had created a difficult work environment through erratic personnel policies, had delegated personnel matters to an advisory board and to consultants, and had failed to train and supervise staff appropriately. The plaintiff amended his complaint in the circuit court, challenging the city council’s removal of him from office. The parties agreed that the proper standard of review by the court was review de novo, but agreed that the court did not have to review all the testimony presented before the city council and rather could render its decision on the basis of an extract of the testimony that would be supplied by the parties. Following its review, the court set aside the city council’s decision and ordered the plaintiff reinstated. The city council moved for reconsideration, asking the court to review the entire record of the hearing before the city council. The court agreed to review the entire record and, following its review of that record, denied the motion for reconsideration. The city council appealed by leave granted. The Court of Appeals held: 1. The city council argues that the standard of review that the court should have used is the substantial evidence standard found in Const 1963, art 6, § 28, rather than the review de novo standard contained in Flint Charter, § 1-603(C), because the standard set forth in the constitution takes precedence over the standard set forth in the city charter. The court properly used the review de novo standard of review required by the city charter, because the substantial evidence standard of art 6, § 28 sets forth the minimum standard that must be observed for judicial review of an administrative determination, but does not preclude the setting of a stricter standard of review. Here the city charter sets a stricter standard of review for judicial review of the city council’s decisions, review de novo, and the court properly used that stricter standard in reviewing the decision of the city council. 2. The court erred in finding that there was insufficient evidence to support the decision of the city council to remove the plaintiff. The city charter provides for-removal of an appointee “for good cause.” Under either the substantial evidence standard or the review de novo standard, there was clearly sufficient evidence to support the city council’s finding that the plaintiff purposefully delayed the investigation of citizens’ complaints to apply pressure on the city council to secure more funding for the ombudsman’s office, and the court’s finding that there was not sufficient evidence to support that finding of the city council was clearly erroneous. Because the plaintiff’s actions in this regard controverted the essential mission of the ombudsman’s office, sufficient cause for the plaintiff’s removal from office was shown, and the court erred in setting aside the city council's decision to remove the plaintiff from office. 3. Because the only matter at issue in these proceedings was the review of the propriety of the city council’s decision to remove the plaintiff torn office, the court did not err as a matter of law in its determination not to make findings of fact concerning the questions whether the plaintiff discriminated or retaliated against employees or whether the plaintiff had a claim for wrongful discharge. 4. The court did not err in denying the city council’s motion to disqualify the plaintiff’s attorney because of alleged conflicts of interests. The court’s finding that there was no continuing attorney-client relationship between the city council and the plaintiff’s attorney or between the ombudsman’s office and that attorney was not clearly erroneous. Reversed in part and affirmed in part. Administrative Law — Findings op Fact — Judicial Review — Standard op Review. The substantial evidence standard set forth in the state constitution for judicial review of the findings of fact of an administrative agency sets a minimum standard of judicial review but does not preclude the adoption of a stricter standard of review, such as review de novo (Const 1963, art 6, § 28). George R. Hamo, for the plaintiff. Patrick L. Rose, for the defendant. Amicus Curiae: Vamum, Riddering, Schmidt & Howlett (by Peter Armstrong and George B. Davis'), for the Michigan Municipal League. Before: Sawyer, P.J., and Kelly and Smolensk, JJ. Kelly, J. Defendant, the City Council of Flint appeals by leave granted from the February 20, 1996, order of the Genesee Circuit Court that set aside the city council’s decision to remove plaintiff, Darryl Buchanan, from the office of ombudsman and reinstated him to the position. The city council also appeals from the June 10, 1996, order that reiterated plaintiff’s reinstatement as ombudsman and denied the city council’s motion to disqualify his attorney. By order of this Court, plaintiff was not permitted to return to his position as ombudsman during the pendency of this appeal. We reverse in part and affirm in part. Plaintiff, who had been with the ombudsman’s office for approximately fourteen years, starting as an investigative trainee and working his way up to assistant ombudsman and director of investigations, was appointed ombudsman by the city council on August 17, 1994. Almost immediately, problems began. In January of 1995, Deborah Milling, plaintiff’s former girlfriend and an employee of the ombudsman’s office, filed a sexual harassment and gender discrimination complaint with the Michigan Department of Civil Rights. In April of 1995, she filed a complaint against plaintiff with the Flint city attorney’s office, alleging sexual harassment. In May of 1995, Rose Fizer, another employee of the ombudsman’s office, also filed a sexual harassment complaint against plaintiff with the city attorney’s office. The city’s policy statement relative to harassment and discrimination requires an independent investigation of complaints. Therefore, the complaints were investigated by an assistant city attorney who took statements from all the employees of the ombudsman’s office regarding the allegations against plaintiff. Thereafter a panel was formed to conduct a review of the investigation. On June 26, 1995, the panel issued its decision finding that plaintiff had violated the city’s policy on harassment and discrimination. Because the city charter provides that only the city council has authority over the office of the ombudsman, the panel forwarded its recommendation for remedial and disciplinary action to the city council for independent review and action. The city council appointed Charles Forrest, a former city attorney, as special counsel to investigate whether there was evidence of official misconduct that would justify removal of plaintiff from office. The city council placed plaintiff on administrative leave with pay pending the outcome of the investigation. Thereafter, plaintiff retained attorney George Hamo and filed a complaint in the Genesee Circuit Court against the city council, alleging disparate treatment, false light defamation, and intentional infliction of emotional distress and requesting judicial review, injunctive relief, and damages. Following a hearing on July 11, 1995, the trial court, after interpreting the city charter to contain no provision for the suspension of or the imposition of administrative leave on the ombudsman, revoked the administrative leave imposed by the city council and ordered plaintiff reinstated as ombudsman. However, the trial court found that the city’s policy regarding harassment and discrimination applied to the ombudsman, and, therefore, the city council could conduct an investigation of those charges levied against plaintiff. An impeachment hearing commenced before the city council on August 23, 1995. After five days of hearings and numerous witnesses, the city council determined that plaintiff should be removed as ombudsman, finding five different specific acts by plaintiff that were cause for his removal. The specific cause for removal was set forth in the August 28, 1995, city council resolution as follows: Be it further resolved, that the specific cause for removal is that the testimony indicates that the Ombudsman did wilfully cause complaints not be worked on or to be backed up for budgetary purposes; permitted a conflict of interest in the Steverson Davis case; created a difficult work environment through erratic personnel policies; delegated personnel matters to the Ombudsman’s Advisory Board and to consultants; and failed to train and supervise staff appropriately. On August 30, 1995, plaintiff filed an amended complaint in the circuit court, challenging the city council’s vote to remove him from office. Subsequently, a hearing was held concerning the matter. At the hearing, the parties agreed that, on the basis of the requirements of the city charter, review de novo was the appropriate standard of review to be used to evaluate the city council’s removal of plaintiff. The parties also agreed that the trial court need not review all the testimony presented before the city council and that the parties would provide the court with the testimony necessary to render its opinion. At the conclusion of the hearing, the trial court determined that the city council was without cause to remove plaintiff from his position as ombudsman. By order entered on February 20, 1996, the trial court set aside the city council’s decision to remove plaintiff from the office of ombudsman and reinstated him to that position. A motion for reconsideration followed. At the March 21, 1996, hearing regarding city council’s motion for reconsideration, the city attorney requested that the trial court review the entire record of the hearing before the city council. The circuit court agreed to do so and spent the next few days listening to the testimony presented before the city council. After reviewing the entire record, the trial court denied the city council’s motion for reconsideration, and this appeal followed. Subsequently, this Court ordered that plaintiff could not return to office during the pendency of this appeal or until further order of this Court. i On appeal, the city council first argues that the circuit court erred in applying a review de novo standard of review with regard to the city council’s decision to remove plaintiff from the office of the ombudsman. The city council claims that the circuit court should have applied the “substantial evidence” standard of review. The city council also argues that the circuit court erred in finding that “cause” for plaintiff’s removal was lacking. We hold that under either a review de novo standard or a substantial evidence standard, there was sufficient evidence to support the city council's action. Const 1963, art 6, § 28 provides that a judicial review should determine whether an administrative ruling was supported by competent, material, and substantial evidence on the whole record. Birmingham School Dist v Buck (On Remand), 211 Mich App 523, 525; 536 NW2d 297 (1995). In In re Payne, 444 Mich 679, 692-693; 514 NW2d 121 (1994), our Supreme Court stated, in pertinent part: When reviewing the decision of an administrative agency for substantial evidence, a court should accept the agency’s findings of fact if they are supported by that quantum of evidence. A court will not set aside findings merely because alternative findings also could have been supported by substantial evidence on the record. “Substantial evidence” has a classic definition: the amount of evidence that a reasonable mind would accept as sufficient to support a conclusion. While it consists of more than a scintilla of evidence, it may be substantially less than a preponderance. . . . [T]he substantial evidence standard found in Const 1963, art 6, § 28, does not depart from this definition, at least according to its drafters. [Citations omitted.] The city council claims that Payne is controlling and that the “substantial evidence” standard should have been the standard of review used by the circuit court. However, according to the comments made at the Constitutional Convention in 1961, in reference to Const 1963, art 6, § 28, the provision was intended only to ensure “ ‘minimum rights so far as appeals are concerned,’ ” In re Payne, supra at 692-693, n 9, quoting 1 Official Record, Constitutional Convention 1961, p 1467 (emphasis supplied), and a more rigorous standard is required by the Flint city charter. Flint Charter, § 1-603 provides for removal of an elected or appointed city employee for cause. Subsection C provides in pertinent part: Decisions made by the city council under this section are not reviewable by the mayor but are subject to judicial review in a hearing de novo. [Emphasis supplied.] Const 1963, art 6, § 28 requires the substantial evidence standard “as a minimum.” By carefully providing for “minimum” standards, it is clear the drafters did not preclude an administrative agency from requiring a stricter standard of review. In this case, the city charter clearly provides for review de novo and both sides requested review de novo before the circuit court. We believe that the Michigan Constitution clearly gives the city freedom to impose a stricter standard of review and to require review de novo of a decision to remove the ombudsman. Therefore, when the circuit court reviewed de novo the city council decision, it was not violating the Michigan Constitution. The Flint charter established the standard of review required in these proceedings, and the circuit court merely followed the requirements set forth in the city charter. In any event, under either standard of review we find sufficient evidence to support the city council's decision to remove Buchanan from office. n Flint Charter, § 1-603 provides that the “city council shall declare the forfeiture of the office of any elective officer or appointee and may remove for cause any person appointed to an office for a fixed term.” Flint Charter, § 3-502(B) provides that the ombudsman may be removed for cause by three-fourths of the city council members elect. Black’s Law Dictionary (6th ed), p 221 defines “cause” “[a]s a reason for an action.” In a similar vein, we note that this Court has recently indicated that “good cause” generally means “ ‘a substantial reason amounting in law to a legal excuse for failing to perform an act required by law.’ ” Franchise Management Unlimited, Inc v America’s Favorite Chicken, 221 Mich App 239, 246; 561 NW2d 123 (1997), quoting Black’s Law Dictionary (6th ed), p 692. In this case, in its resolution adopted August 28, 1995, the city council gave the following reasons for the removal of the ombudsman: Now be it resolved, that based on the testimony and the evidence presented during the hearings, that the Ombudsman, Darryl Buchanan, be removed for cause: Be it further resolved, that the specific cause for removal is that the testimony indicates that the Ombudsman did wilfully cause complaints not be worked on or to be backed up for budgetary purposes; permitted a conflict of interest in the Steverson Davis personnel policies; delegated personnel matters to the Ombudsman’s Advisory Board and to consultants; and failed to train and supervise staff appropriately.[] After conducting its review, the trial court found insufficient evidence to support the stated reasons for Buchanan’s removal. We review the trial court’s factual findings for clear error, which occurs if an appellate court is left with a firm and definite conviction that a mistake has been made. MCR 2.613(C); Ghidotti v Barber (On Remand), 222 Mich App 373, 377; 564 NW2d 141 (1997). We have such a conviction. Even were we to agree with the trial court that there was scant evidence supporting other stated reasons for removal, the evidence, through the testimony of senior investigator Joseph Valu and investigators Barbara Burdette and Ramona Sain, did clearly establish that plaintiff purposefully delayed the assignment and investigation of citizen complaints to apply pressure upon the city council to secure more funding for the ombudsman’s office. The trial court’s finding that there was insufficient evidence to support this stated reason for removal was clearly erroneous. Plaintiff’s actions in this regard controverted the essential mission of the office, which was to investigate and resolve citizen complaints, and, in our opinion, constituted cause for his removal. Because we find that there was sufficient cause for his removal, we believe the circuit court erred in setting aside the city council’s decision to remove plaintiff from office. Having found that the trial court erred in setting aside the city council’s decision to remove plaintiff from office, we need only briefly address some of the other issues raised by the city council. The circuit court did not err as a matter of law in its determination not to make findings of fact concerning the questions whether plaintiff discriminated or retaliated against employees Debra Milling and Rose Fizer or whether plaintiff had a claim for wrongful discharge. The only matter before the circuit court was a review of the decision of the city council to remove plaintiff from his position as the ombudsman. The circuit court was acting in the role of an appellate court for this hearing. Its task was to determine whether the stated reasons for plaintiffs removal constituted sufficient cause based on the evidence before the council. The city council did not state that discrimination or retaliation was a reason for plaintiffs removal as ombudsman, and Milling’s and Fizer’s claims of sexual harassment, sexual discrimination, retaliation and so on are the subject of separate pending circuit court actions. Moreover, in his amended complaint, plaintiff did not state a claim for wrongful discharge. Hence, the claims of wrongful discharge, sexual discrimination, or retaliation were not before the circuit court, and, therefore, the court did not err in its determination that it would not make findings of fact regarding these issues. Lastly, we do not believe that the trial court erred in denying the city council’s motion to disqualify plaintiff’s attorney, George Hamo, on the ground that by Hamo’s

LAMORIA v HEALTH CARE & RETIREMENT CORPORATION Docket No. 199795. Released July 10, 1998, at 9:00 A.M.; vacated July 24, 1998. Before: Fitzgerald, P.J., and O’Connell and Whitbeck, JJ. Per Curiam. Plaintiff Barbara Lamoria appeals as of right the trial court’s grant of summary disposition. Lamoria filed this action after she was discharged from her employment at defendant Sun Valley Manor, Inc., a retirement home owned by defendant Health Care & Retirement Corporation (hcr). Defendant Marilyn K. Martin was, at the time of Lamoria’s discharge, the administrator of Sun Valley. In pertinent part, Lamoria alleges that her discharge (1) violated the prohibition of the state Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., against weight and age discrimination, (2) violated the Handicappers’ Civil Rights Act, MCL 37.1202(l)(b); MSA 3.550(202)(l)(b), with respect to handicap discrimination related to an injury that Lamoria suffered in the course of her employment, and (3) constituted illegal retaliation for plaintiffs seeking worker’s compensation benefits. Lamoria advanced additional claims on which the trial court also granted summary disposition to defendants, but Lamoria does not challenge the grant of summary disposition on those claims. In contrast, defendants assert that Lamoria was discharged in accordance with hcr’s policy of discharging employees who do not return to work after having been on a medical leave of absence for six months. We reverse the grant of summary disposition with respect to the claims at issue in this appeal and remand for further proceedings consistent with this opinion. But for MCR 7.215(H), we would affirm the trial court’s decision with respect to issue iv. However, as we will discuss more fully in this opinion, MCR 7.215(H) requires us to reverse with regard to issue iv. I. FACTS Lamoria has been a registered nurse since 1959 and was employed in that capacity (including time spent on leave) for nearly twenty years at Sim Valley, from September 9, 1975, until July 7, 1994. However, Lamoria stated in an affidavit that she was not officially notified that her employment had been terminated until October 1994. Lamoria alleged in her complaint that, at the time her employment was terminated, she was fifty-five years old, 5’ 7” tall and weighed about 240 pounds and that, previously, she had weighed as much as 311 pounds. Lamoria stated that she began working at Sun Valley as a staff nurse and was promoted in 1991 to the position of “Nurse (Unit) Manager.” According to Lamoria, her “last evaluation in August, 1993, stated that [she] had a ‘demonstrated loyalty’ to Sun Valley Manor and that [she] had the potential for promotion within hcr.” Ruth Wilcox, who also had worked at Sun Valley, testified in her deposition that she had the opportunity to review Lamoria’s work or watch her interact with patients. When asked for her opinion of Lamoria’s work performance as a nurse, Wilcox testified: I respect her. She has good standards. She’s honest and credible and trustworthy. She expressed and demonstrated a lot of behaviors that are consistent with a high degree of caring. I would describe her as dedicated. Wilcox did not recall having any problems with Lamoria during the time that Wilcox was serving as the internal administrator or director of nursing at Sun Valley. Lamoria stated in her affidavit that Martin was hired as the administrator of Sun Valley by Dan Livy, a regional manager for hcr in December 1993. Lamoria suffered a knee injury as a result of a fall at Sun Valley on August 9, 1993, during the course of her employment. Lamoria went on a medical leave from her emplpgnent in January 1994. Faith Hall indicated in her affidavit that she worked at Sun Valley as a “Nurse Consultant” when Martin was hired as the administrator for Sun Valley. Hall stated that, in her first meeting with Martin at Sun Valley, Martin proclaimed that she was going to “clean house” and that she intended to get rid of the employees who had been at Sun Valley the longest because they “would be the hardest to change.” Hall also stated that “Martin said that hcr sought her out for this position and brought her in specifically to clean out the older employees.” According to Hall, “Martin made comments about immediately terminating the director of nursing, several dietary department personnel, and some of the older nurses.” Hall stated that Martin and Livy referred to a “hit list” of employees whom they sought to terminate and that “in several instances [they] would ‘target’ an employee for termination, then begin to build a case for termination or instead force the person to resign.” Hall also stated that Martin and Livy “made critical and harsh remarks in [Hall’s] presence about the weight of some Sun Valley Manor personnel, including Annette Smith and Barbara Lamoria, in a manner that suggested to [Hall] that they intended to terminate people who they perceived as overweight.” Brenda LaVigne, who was employed by Sun Valley as a social worker, stated that, while she was at Sun Valley, Martin became the administrator. LaVigne made the following statements about Martin in her affidavit: 4. Marilyn Martin threatened to fire me on several occasions without justification. 5. Shortly after she started in December, 1993, Martin began to terminate several of the department heads[,] including musing supervisors. These employees were then replaced with younger employees. 6. Among the department heads or supervisors fired by Martin or forced to resign were Annette Smith, Director of Nursing; Sharon DeWhale, Director of Nursing; Donna Hair, Social Worker; Dennis Fox, Nurse Supervisor; and Belda Denzer, Nurse Supervisor. * * * 8. Martin did not like over-weight people. Martin made disparaging comments about heavy people, including Sun Valley Manor employees. 9. Annette Smith, Donna Hair and Barbara Lamoria were all overweight by Martin’s standards, and all were fired or forced to resign while Martin was Administrator. According to LaVigne, “Martin hired younger, more attractive people to enhance the ‘coiporate image’ of hcr and to replace the people that Martin wanted to terminate.” LaVigne also stated that Martin knew that Lamoria needed surgery to repair her knee and that Martin would be off work for a long time rehabilitating her knee. According to LaVigne, Martin did not want hcr to pay for the cost of this surgery or rehabilitation. Annette Smith-Jones indicated in her affidavit that she was employed as the director of nursing when Martin was hired as the administrator. According to Smith-Jones, Martin along with Livy “almost immediately began trying to fire [Smith-Jones] from [her] job.” SmithJones stated that, at meetings, “Martin often stated how she had no use for certain people, targeting in particular some of the muse unit managers and African-American licensed practical muses.” Defendants stress a provision of the “hcr Employee Handbook” regarding medical leaves that includes the statement, “Normally, a Medical Leave of Absence with extensions may not exceed six months.” However, Lamoria stated that she went to Sun Valley each month from February to August 1994 to complete the necessary forms to extend her leave of absence “for another month while HCR delayed my surgery.” Lamoria further stated that no one advised her during any of these visits that her leave would expire at some point or that she had to return to work by a certain date or face termination. Each time, Lamoria filled out a form on which she stated that her leave of absence was “work related” and that her estimated date of return to work was “undetermined.” Lamoria stated that, each time, Martin approved the leave form without modification. Further, according to Lamoria, neither Martin nor hcr ever stated on the form that the leave would expire at some point, although there is a space on the form to designate the end of a leave period. Lamoria also stated that she visited Sun Valley about ten times during her leave period to complete various paperwork and that she was given no notice of her impending termination during those visits. Kenneth Distler, M.D., an orthopedic surgeon, stated in an affidavit that he performed an arthroscopic procedure on Lamoria on January 10, 1994. The costs associated with this procedure, as well as benefits for partial wage loss and medical bills, were paid by ITT Hartford, which administered worker’s compensation claims for hcr. However, Dr. Distler stated that he thereafter determined that Lamoria’s left knee was not responding to treatment and that a total knee replacement was needed to restore her knee to “functionality” Dr. Distler stated that, in his opinion, Lamoria’s problem with her knee was caused by degenerative arthritis that was aggravated by the August 1993 injury. According to Dr. Distler, he requested authorization from Lamoria’s employer to have the cost of the surgery paid under an insurance policy covering work-related injuries “as the cause of [Lamoria’s] condition was at least partially related to a fall [Lamoria] had while on the job in August, 1993.” Dr. Distler stated that the surgery was not scheduled because of the uncertainty regarding Lamoria’s insurance coverage. He said that hcr never contacted his office to advise him whether hcr would pay for the cost of the surgery. Dr. Distler stated that, “[i]f Ms. Lamoria has surgery, [he] would expect her to return to a normal life, including productive work as a nurse, although she will have some restrictions on her work and activities for a brief period of time.” He stated that “Ms. Lamoria’s knee would improve with surgery because a replacement knee would have corrected not only the problems brought about by her fall, but also any of the degenerative arthritic problems that she has experienced.” Lamoria stated in her affidavit that she contacted hcr and ITT Hartford on several occasions from March to June 1994 “trying to get answers to why the surgery was not being done and about [her] condition, and each time [her] questions largely went unanswered or [she] was told that no decisions had yet been made.” Lamoria stated that she was told by Sun Valley personnel in May 1994 that her file had been “taken over” by Martin and Livy and that Martin had been in contact with hcr personnel who were in charge of worker’s compensation claims. Lamoria stated that it was about this time that her file was transferred within rTT Hartford from Susan Billiett to Wayne Beechum and that Beechum told her that he was taking over her file because hcr was not satisfied with the way that Billiett was handling her case. Lamoria stated that on June 29, 1994, she was finally told by Beechum that a decision had been made to deny her worker’s compensation coverage for her surgery. Lamoria further stated that Beechum told her, on June 29, 1994, that he was being pressured by hcr to deny the claim, that “he had ‘no alternative’ but to stop compensation payments because hcr had told him to do it” and that “hcr was ‘self funded’ for worker’s compensation insurance, thus hcr could tell him to stop payments, a fact noted in [Lamoria’s] records of the conversation.” n. REVIEW OF A GRANT OF SUMMARY DISPOSITION We review a trial court’s grant of summary disposition de novo. Paul v Lee, 455 Mich 204, 210; 568 NW2d 510 (1997). In reviewing a motion for summary disposition based on MCR 2.116(C)(10), we review the documentary evidence and determine whether a genuine issue of material fact exists. Paul, supra at 210. In doing so, we draw all reasonable inferences in the nonmovant’s favor and give the nonmovant the benefit of any reasonable doubt. Id. “Summary disposition is appropriate only if the court is satisfied that it is impossible for the nonmoving party to support his claim at trial because of a deficiency that cannot be overcome.” Id. However, a party opposing a motion for summary disposition under MCR 2.116(C)(10) may not rest on its pleadings, but must come forward with evidence to show the existence of a material factual dispute. Paul, supra at 210-211. If the nonmoving party fails to show that a material fact is at issue, the motion would be properly granted. Id. at 211. Granting a motion for summary disposition is especially suspect where motive and intent are at issue or where the credibility of a witness or deponent is crucial. Vanguard Ins Co v Bolt, 204 Mich App 271, 276; 514 NW2d 525 (1994). m. LAMORIA’S CLAIMS UNDER THE STATE CIVIL RIGHTS ACT A. GENERAL PRINCIPLES MCL 37.2202; MSA 3.548(202) provides in part: (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. [Emphasis added.] The trial court in its written opinion provided the following explanation for its grant of summary disposition to defendants with regard to Lamoria’s claims that her discharge was based on weight and age discrimination contrary to the state Civil Rights Act: In a discrimination case, the plaintiff has the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence. If the plaintiff is successful, then the burden of proof shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. The plaintiff then has the burden to prove that defendants!’] reason for its actions was a mere pretext. Plieth v St Raymond Church, 210 Mich App 568, 571 [534 NW2d 164] (1995); Bamell v Taubman Co, Inc, 203 Mich App 110, 120 [512 NW2d 13] (1993). To establish a prima facie case of employment discrimination, the plaintiff must demonstrate, as a threshold matter, that she was qualified for the position. Ackerman v Diamond Shamrock Corp, 670 F2d 66, 69 (CA 6, 1982). In Baughey v Tecumseh Country Club, 778 F Supp 354 (ED Mich, 1991), vacated 989 F2d 498 (CA 6, 1993), aff’d 1 F3d 1240 (CA 6, 1993), the court found that a former employee failed to establish a prima facie case of age or sex discrimination where she was unable to perform her job due to an on-the-job injury prior to her discharge. While Ms. LaMoria may have all necessary state licensures and other qualifications for the position of Nurse Manager or Staff Nurse, it is not disputed that she cannot physically perform either position. Therefore, she has failed to establish a prima facie case of employment discrimination. Defendants!’] motion for summary disposition is granted as there is no evidence to establish a material factual dispute. Since plaintiff has not established a prima facie case, the court need not consider the disparate treatment nor the intentional discrimination claims. With regard to Lamoria’s claims of weight and age discrimination, the trial court’s analysis overlooks that the prima facie case, as part of a mechanism for shifting the burden of producing evidence, is merely one method that an alleged victim of illegal discrimination may use in attempting to show disparate treatment in violation of the state Civil Rights Act. The “prima facie case” derives from the construct established in McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), for analysis of employment discrimination claims under title VII of the federal Civil Rights Act that involve only circumstantial evidence of discrimination. See Harrison v Olde Financial Corp, 225 Mich App 601, 606-607; 572 NW2d 679 (1997). However, where a plaintiff offers direct evidence of discriminatory animus by a decisionmaker in connection with a claim of employment discrimination, the prima facie case construct, as part of the McDonnell Douglas framework, is inapplicable: [W]hile the McDonnell Douglas burden-shifting analysis is appropriate in cases without direct evidence of discrimination, this case presents a different situation. Federal case law holds, and we agree, that the McDonnell Douglas evidentiary framework does not apply when a plaintiff presents direct evidence of discriminatory animus. Kresnak v Muskegon Heights, 956 F Supp 1327 (WD Mich, 1997); see also Moiras v Amoco Oil Co, 424 Mich 675, 683-684; 385 NW2d 586 (1986). “Direct evidence and the McDonnell Douglas formulation are simply different evidentiary paths by which to resolve the ultimate issue of [the] defendant’s discriminatory intent.” Blalock v Metals Trades, Inc, 775 F2d 703, 707 (CA 6, 1985). [Harrison, supra at 609-610; see also Downey v Charlevoix Co Bd of Co Rd Comm’rs, 227 Mich App 621, 633; 576 NW2d 712 (1998).] Accordingly, where a plaintiff presents direct evidence of discriminatory animus, it is erroneous for a trial court to use the McDonnell Douglas framework. Harrison, supra at 613. This Court in Harrison, id. at 610, further described what constitutes direct evidence of discrimination: “Direct evidence” has been defined in the Sixth Circuit Court of Appeals as evidence that, if believed, “ ‘ “requires the conclusion that unlawful discrimination was at least a motivating factor.” ’ ” Kresnak, supra at 1335 (citations omitted). For example, racial slurs by a decisionmaker constitute direct evidence of racial discrimination that is “ ‘sufficient to get the plaintiff’s case to the jury.’ ” Id. (citation omitted). Cases involving direct evidence of discriminatory animus are sometimes called “mixed motives” cases in light of the presentation of such evidence by the alleged victim of discrimination ordinarily coupled with the presentation of other evidence by the employer of legally permissible motives for an adverse employment-related decision: Thus, when direct evidence of discrimination is involved, we believe that federal case law provides appropriate guidance for analyzing discrimination claims arising under the Michigan Civil Rights Act. In the instant case, plaintiff testified in her deposition that defendant’s employees made derogatory comments about her race. Because of plaintiff’s direct evidence of discrimination, this case presents a question of mixed motives, one in which defendant’s decision not to hire plaintiff could have been based on several factors, legitimate ones as well as legally impermissible ones. [Harrison, supra at 610.] Direct proof of discriminatory animus ordinarily precludes a grant of summary disposition: To summarize, we hold that the following principles of proof apply in a typical single-plaintiff, mixed-motive employment discrimination case. First, as with circumstantial discrimination cases, in a case involving direct evidence of discrimination, the plaintiff always bears the burden of persuading the trier of fact that the employer acted with illegal discriminatory animus. Second, whatever the nature of the challenged employment action, the plaintiff must establish evidence of the plaintiff’s qualification (or other eligibility) and direct proof that the discriminatory animus was causally related to the decisionmaker’s action. Upon such a presentation of proofs, an employer may not avoid trial by merely “articulating” a nondiscriminatory reason for its action. Under such circumstances, the case ordinarily must be submitted to the factfinder for a determination whether the plaintiffs claims are true. [Id. at 612-613; (emphasis added).] In this case, viewing the evidence favorably to Lamoria, she was as “eligible” to be on a medical leave as was any other employee who was, as a practical matter, unable to perform the employee’s job duties because of an injury. In the context of alleged discrimination against an incumbent employee with regard to medical leave, it is not sensible that the employee should have to show that the employee was “qualified” to physically perform the job at the time of discharge. Otherwise, an employer would be free to discriminate against an individual in denying a medical

SHANNON CAUDILL, Plaintiff v. JAMES L. DELLINGER, C. RICKY BOWMAN, in his official capacity as District Attorney of Judicial District 17-B, and THE ADMINISTRATIVE OFFICE OF THE COURTS, Defendants No. COA97-966 (Filed 16 June 1998) 1. Public Officers and Employees § 43 (NCI4th)— Whistleblower Act — application to district attorney The trial court erroneously granted summary judgment for defendant Dellinger, a former district attorney, for a claim under the North Carolina Whistleblower Act by a former employee. While the trial court apparently granted defendant Dellinger’s motion for summary judgment on this claim partially on the theory that the Act does not apply to constitutional officers of the State under N.C.G.S. § 126-5(cl)(l), the legislative intent that the protections of the legislation apply to all state employees is clear. Furthermore, plaintiffs forecast of evidence makes out a prima facie claim under the Act in that she was performing satisfactorily as Dellinger’s administrative assistant until she talked with the SBI agents in connection with their investigation of Dellinger, Dellinger discharged her almost immediately upon learning of her actions, and her cooperation with SBI agents was a substantial or motivating factor in the decision to discharge her. • 2. Labor ánd Employment § 77 (NCI4th)— administrative assistant to district attorney — discharge for cooperating with SBI — common law wrongful discharge claim — summary judgment for DA properly denied The trial court properly denied a former district attorney’s motion for summary judgment on a common law wrongful discharge claim by his former administrative assistant who was discharged for cooperating with an SBI investigation into his expense accounts where he had pleaded sovereign immunity. Defendant was not entitled to the defense of sovereign immunity if he was acting outside the scope of his authority and, if the jury agrees that defendant-Dellinger discharged plaintiff for cooperating with the SBI, he was clearly acting outside the scope of his official duties and is not entitled to the protection of the sovereign immunity defense. 3. Public Officers and Employees § 35 (NCI4th)— discharge of district attorney’s administrative assistant — free speech and due process claims under North Carolina Constitution — defendant sued in individual capacity The trial court should have granted defendant Dellinger’s motion for summary judgment as to claims against him which were based on alleged violations of the North Carolina Constitution where Dellinger, a former district attorney, was sued in his individual capacity. Plaintiff may not successfully maintain an action against Dellinger in his individual capacity for alleged violations of her rights under the North Carolina Constitution. 4. Constitutional Law § 86 (NCI4th)— wrongful discharge— section 1983 claims — sovereign immunity as defense The trial court correctly denied defendant Dellinger’s motion for summary judgment on plaintiff’s claims under 42 USC 1983 arising from her discharge as Dellinger’s administrative assistant where Dellinger had been a district attorney at the time. Dellinger contended that he was entitled to absolute immunity because his actions were in the scope of his duties as a district attorney, but sovereign immunity alleged under state law is not a defense to an action under section 1983. 5. Parties § 21 (NCI4th)— wrongful discharge of administrative assistant by former district attorney — succeeding district attorney and AOC — not necessary parties The trial court properly granted summary judgment for defendants AOC and Bowman in a wrongful discharge action against Bowman’s predecessor as district attorney, defendant Dellinger, where there was no evidence of any violations by AOC or Bowman. Although plaintiff contends that AOC and Bowman are necessary parties because she will not otherwise be able to secure relief such as reinstatement, payment of back wages, or other employment benefits, plaintiff may collect money damages from Dellinger if successful but cannot be reinstated to her former position because Bowman is entitled by statute to an administrative assistant to serve “at his pleasure.” The continuation of AOC and Bowman as parties adds nothing to plaintiff’s range of remedies against Dellinger. Judge Lewis dissenting. Appeal by plaintiff Shannon Caudill from orders entered 19 May 1997 and 3 June 1997, and appeal by defendant James L. Dellinger from the order entered 3 June 1997, all by Judge C. Preston Cornelius in Surry County Superior Court. Heard in the Court of Appeals 1 April 1998. On 1 October 1991, plaintiff Shannon Caudill (“Caudill”) began employment as an administrative assistant in the office of James L. Dellinger (“Dellinger”), then District Attorney for Judicial District 17-B (Surry and Stokes Counties). During October 1994, Caudill was interviewed by agents of the State Bureau of Investigation (“SBI”), who were investigating allegations that Dellinger had falsified expense reimbursement documents submitted to the State of North Carolina, and had caused his wife’s name to be forged on certain banking and tax documents. Caudill answered the agents’ questions about the forged documents and about Dellinger’s relationship with Old North State Bank (“Bank”). Prior to 2 November 1994, SBI agents questioned Dellinger about his dealings with the Bank. Caudill stated in her deposition that Dellinger called her into his office on 2 November 1994 and asked her what she had told the SBI, since she was the “only one who knew about [his dealings with Old North State Bank].” According to Caudill, when she acknowledged she had talked with SBI agents about the Bank, Dellinger told her she was insubordinate, she was fired, and she had “one d-mn hour to get [her] sh-t out of [the office].” Dellinger stated in his deposition that during the fall of 1994 he suffered heart problems which caused his hospitalization. Upon his release, he learned Caudill had made comments to the effect that she wished he had died, and that he had “faked” a heart attack to get sympathy. Dellinger stated further that he noticed a change in Caudill’s attitude towards him, and other employees in his office complained about Caudill’s attitude. On 2 November 1994, Dellinger talked by telephone with Cynthia Phillips, acting personnel administrator for the Administrative Office of the Courts (“AOC”), and told her that he had lost confidence in the loyalty of Caudill. He also told her about certain negative comments Caudill had allegedly made about him. He did not discuss the ongoing SBI investigation with Ms. Phillips or tell her that Caudill had talked with the agents. Ms. Phillips advised Dellinger it was “within his authority to fire [Caudill] if he wanted to.” In April 1995, Dellinger resigned as District Attorney, and C. Ricky Bowman (“Bowman”) became the District Attorney for District 17-B. On 5 May 1995, Caudill filed this action against Dellinger, Bowman (in his official capacity), and AOC. Caudill alleged six separate claims for relief against Dellinger, including: (1) he violated her rights under the North Carolina “Whistleblower Act,” (N.C. Gen. Stat. § 126-84 (Cum. Supp. 1997), et seq.); (2) she was wrongfully discharged from her employment; (3) she was deprived of her freedom of speech as guaranteed by Article 1, § 14 of the North Carolina Constitution; (4) she was deprived of her right to freedom of speech under the First and Fourteenth Amendments to the United States Constitution in violation of 42 U.S.C. § 1983; (5) she was deprived of her property without due process in violation of the Fourteenth Amendment to the United States Constitution in violation of 42 U.S.C. § 1983; and (6) she was deprived of her property without due process in violation of Article 1, § 19 of the North Carolina Constitution. Plaintiff also added a seventh claim for relief against Bowman, contending that he could give her equitable relief by reinstating her, and could also pay money damages to her. In her eighth claim for relief, plaintiff alleged AOC was in a position to provide money damages and restoration of employment benefits to her. Caudill prayed for compensatory damages “from the defendants,” including back wages and reinstatement of fringe benefits; that her actual damages be trebled; that she be reinstated to her former position; and that she recover her costs, including reasonable attorneys’ fees. In November 1995, the trial court dismissed Caudill’s claims against defendants AOC and Bowman for common law wrongful discharge and for monetary relief against them under 42 U.S.C. § 1983. Caudill did not appeal from that dismissal. On 19 May 1997, summary judgment was entered for defendants AOC and Bowman on all the remaining claims against them. On 3 June 1997, summary judgment was entered for defendant Dellinger on the claim under the Whistleblower Act, but denied as to the remaining causes of action against him. Both Caudill and Dellinger appealed from the entries and denial of summary judgment. Elliot, Pishko, Gelbin & Morgan, P.A., David C. Pishko, for plaintiff appellant. White and Grumpier, by Dudley A. Witt and Laurie A. Schlossberg, for James L. Dellinger, defendant appellant-appellee. Attorney General Michael F. Easley, by Assistant Attorney General Robert M. Curran, for C. Ricky Bowman and Administrative Office of the Courts, defendant appellees. HORTON, Judge. This appeal presents the following issues for decision: (I) whether Caudill forecast sufficient evidence to support her claim against Dellinger under the North Carolina Whistleblower Act; (II) whether Caudill forecast sufficient evidence to support her claim against Dellinger for common law wrongful discharge; (III) whether Caudill may bring claims against Dellinger, in his individual capacity, for violations of her rights to free speech and to due process of law under the North Carolina Constitution; (IV) whether Caudill may bring claims against Dellinger, in his individual capacity, for deprivation of her rights to free speech and due process under the United States Constitution in violation of 42 U.S.C. § 1983; and (V) whether plaintiff Caudill forecast sufficient evidence to support any of her claims against AOC and Bowman, and to resist those defendants’ motions for summary judgment. We will first discuss plaintiffs claims against former District Attorney Dellinger, combining for discussion the two claims based on the North Carolina Constitution, and combining the two § 1983 claims. (I) The Whistleblower Act Chapter 126 of the North Carolina General Statutes (State Personnel System) was enacted in 1965 for the express purpose of “establishing] for the government of the State a system of personnel administration under the Governor....” N.C. Gen. Stat. § 126-1 (Cum. Supp. 1997). Chapter 126 created the State Personnel Commission and gave it power to establish rules and policies governing personnel matters. N.C. Dept. of Justice v. Eaker, 90 N.C. App. 30, 34, 367 S.E.2d 392, 395, disc. review denied, 322 N.C. 836, 371 S.E.2d 279 (1988). Various categories of employees, including constitutional officers of the state, were exempted from portions of the Act. Other categories, including public school employees, and community college employees, were totally exempted from the Act. In 1989, Chapter 126 was amended by Chapter 236 of the 1989 Session Laws (Senate Bill 125), entitled “AN ACT TO ENCOURAGE REPORTING OF FRAUD, WASTE, AND ABUSE IN STATE GOVERNMENT AND ENDANGERMENT TO THE PUBLIC HEALTH AND SAFETY, AND TO PROTECT INFORMANT STATE EMPLOYEES FROM RETALIATION.” Senate Bill 125 added Article 14, popularly known as the “Whistleblower Act,” to Chapter 126. Senate Bill 125 amended the provisions of Chapter 126 which set out numerous categories of exempt employees, by adding the following language: “(c5) Notwithstanding any other provision of this Chapter, Article 14 of this Chapter shall apply to all State employees, public school employees, and community college employees.” The trial court granted defendant Dellinger’s motion for summary judgment on the “Whistleblower” claim, apparently at least partially on the theory that the provisions of the Act do not apply to constitutional officers of the state under N.C. Gen. Stat. § 126-5(cl)(l) (Cum. Supp. 1997), which provides that “Constitutional officers of the State” are exempt from the provisions of Chapter 126 (except for two articles not pertinent to this appeal). Likewise, N.C. Gen. Stat. § 126-5(cl)(2) exempted “Officers and employees of the Judicial Department.” Defendant Dellinger was a district attorney at all times pertinent hereto, and all parties agree that he was a constitutional officer of the state pursuant to Article IV, Section 18, of the North Carolina Constitution. Plaintiff was administrative assistant to the District Attorney pursuant to the provisions of N.C. Gen. Stat. § 7A-68 (1995), and thus was an employee within the Judicial Department. N.C. Gen. Stat. § 126-5(c5), the pertinent provision of the Whistleblower Act, makes it clear, however, that the protection of the Act applies to all state employees, regardless of any other provision of Chapter 126. N.C. Gen. Stat. § 126-5(c5). We note that N.C. Gen. Stat. § 126-5(c5) also specifically includes public school employees and community college employees, two groups which were excluded prior to the amendment. The legislative intent that the protections of this legislation apply to all state employees is clear; and we hold, therefore, that the provisions of the Whistleblower Act apply to plaintiff Caudill. The Act provides, in pertinent part, that “[n]o head of any State department, agency or institution or other State employee exercising supervisory authority shall discharge ...” a state employee because of a report of activities described in the Act. N.C. Gen. Stat. § 126-85(a) (Cum. Supp. 1997). Caudill served at the pleasure of the District Attorney and under his direct supervision. The Act authorizes an action against “the person or agency who committed the violation . . . .’’N.C. Gen. Stat. § 126-86 (1995) (emphasis added). Here, Caudill contends Dellinger committed a violation of the Act by discharging her for protected activity. She brings this action against Dellinger individually, as the “person . . . who committed the violation” of the Act. It would be contrary to the intent and spirit of the Whistleblower Act that Caudill be denied relief merely because Dellinger, as a constitutional officer, is exempted from certain other portions of the Chapter which have no relationship to the Whistleblower provisions. See In Re Filing by Fire Ins. Rating Bureau, 275 N.C. 15, 34, 165 S.E.2d 207, 220 (1969) (statute is to be construed in light of the purpose to be accomplished by the legislation). Our construction of the Act results in no conflict between the two sections in question, and tends to suppress the evil which the legislature intended to prevent by this remedial legislation. In re Hardy, 294 N.C. 90, 96, 240 S.E.2d 367, 372 (1978). Further, even if we assume arguendo that the two provisions in question are in pari materia, but are in irreconcilable conflict, the provisions of N.C. Gen. Stat. § 126-5(c5) were added later in time and will control. State v. Hutson, 10 N.C. App. 653, 657, 179 S.E.2d 858, 861 (1971). Application of that general rule of construction would seem to be especially appropriate in this case, since N.C. Gen. Stat. § 126-5(c5) provides that Article 14 applies to all state employees “[notwithstanding any other provision of. . . Chapter [126].” Further, plaintiffs forecast of evidence makes out a prima facie claim under the Whistleblower Act. Such a claim consists of the following elements: “(1) [plaintiff] engaged in protected activity, (2) followed by an adverse employment action, and (3) that the protected conduct was a substantial or motivating factor in the adverse action.” Hanton v. Gilbert, 126 N.C. App. 561, 571, 486 S.E.2d 432, 439 (citation omitted), disc. review denied, 347 N.C. 266, 493 S.E.2d 454 (1997). In this case, Caudill has forecast evidence tending to show that she was performing satisfactorily as Dellinger’s administrative assistant until she talked with SBI agents in connection with their official investigation of Dellinger, when Dellinger learned of her actions he discharged her almost immediately, and her cooperation with SBI agents was a substantial or motivating factor in the decision to discharge her. As required by the holding in Hanton, Dellinger forecast evidence in support of his motion for summary judgment tending to show that he discharged Caudill “ ‘based on a legitimate non-retai-iatory motive,’ ” because of her change in attitude, negative comments she had made about him, and his loss of confidence in her loyalty. Id. Caudill meets her burden in her deposition testimony of “coming forward with evidence that her alleged whistleblowing activity was a substantial causative factor for her dismissal.” Id. The question of causation raises a genuine question of fact for the jury, so that summary judgment for defendant Dellinger was improvidently granted and must be reversed. II. Common Law Wrongful Discharge Plaintiff Caudill was employed by defendant Dellinger as an administrative assistant “to serve at his pleasure.” N.C. Gen. Stat. § 7A-68 (1995). Dellinger contends he “retained complete discretion in the evaluation of [Caudill’s] job performance and her job security,” and was “acting in his official capacity [in terminating her employment] and is entitled to absolute immunity.” Although plaintiff served at the “pleasure” of District Attorney Dellinger and was thus an “at will” employee, this Court recognized an exception to the common law employment-at-will doctrine in Sides v. Duke University, 74 N.C. App. 331, 328 S.E.2d 818, disc. reviews denied, 314 N.C. 331, 333 S.E.2d 490, disc, review denied, 314 N.C. 331, 335 S.E.2d 13 (1985). In Sides, plaintiff was terminated in alleged retaliation for refusing to testify untruthfully in a medical malpractice case. This Court identified a cause of action for wrongful discharge in violation of public policy: [W]hile there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy. A different interpretation would encourage and sanction lawlessness, which law by its very nature is designed to discourage and prevent. We hold, therefore, that no employer in this State, notwithstanding that an employment is at will, has the right to discharge an employee and deprive him of his livelihood without civil liability because he refuses to testify untruthfully or incompletely in a court case, as plaintiff alleges happened here. Id. at 342, 328 S.E.2d at 826. In Coman v. Thomas Mfg. Co., 325 N.C. 172, 381 S.E.2d 445 (1989), our Supreme Court adopted the public policy exception to the employment-at-will doctrine. In Coman, plaintiff was allegedly discharged for refusing to operate his vehicle excessive hours and refusing to falsify certain records in violation of U.S. Department of Transportation regulations. Our Supreme Court held it was the public policy of this state to protect the safety of persons and property on the highways, and plaintiff’s claim for wrongful discharge should not have been dismissed by the trial court. In the present case, plaintiff Caudill forecast evidence from which a jury could find she was discharged for giving truthful information about Dellinger’s expense accounts and falsification of bank documents to SBI agents. It is the public policy of this state that citizens cooperate with law enforcement officials in the investigation of crimes. Here, SBI agents were investigating serious allegations against Dellinger, including misappropriation of state

ANZALDUA v BAND ANZALDUA v MICHIGAN STATE UNIVERSITY Docket Nos. 106469, 106471. Argued January 7, 1998 (Calendar No. 12). Decided June 9, 1998. Sharon Anzaldua brought an action under the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq., in the Ingham Circuit Court against Michigan State University and Professor Rudolph Band, alleging that her contract as a research laboratory worker had not been renewed because she had complained to the university’s Environmental Affairs Office about conditions in a university laboratory. The court, Carolyn Stell, J., granted the defendants’ motion to strike the plaintiff’s demand for a jury trial, determining that the act provided no such right. The Court of Appeals, Markman, P.J., and J. D. Payant, J. (O’Connell, X, concurring in part and dissenting in part), reversed, holding that there is a right to a jury trial in an action brought under the act, and that the right exists even when the defendant is a state entity (Docket No. 168358). The defendants appeal. In an opinion by Justice Kelly, joined by Chief Justice Mallett, and Justices Brickley, Cavanagh, and Boyle, the Supreme Court held-. The Whistleblowers’ Protection Act provides a right to a jury trial, and that right exists in suits against the state and its subdivisions. 1. The Whistleblowers’ Protection Act neither requires nor forbids jury trials. Consistent with civil actions generally, the right to a jury under the act depends on the nature of the claim made and the relief sought. Where an action by its nature does not bar a jury trial, the claim is for money damages, there is a provision for bringing the action in circuit court, and the right to a jury is not denied, a plaintiff properly may demand a trial by jury. Use of the term “actual damages” in the act indicates an intent to provide a right to a jury trial in suits brought under the act. Actual damages is a legal, rather than an equitable, remedy, and legal issues are traditionally tried by a jury. Case law has held that a jury is proper where a statute creates a cause of action for actual damages without specifying before whom the action is to be tried. 2. The state’s sovereign immunity from liability and its immunity from suit are not the same. The Whistleblowers’ Protection Act specifically includes the state and its political subdivisions among the bodies to be regulated. Nothing in the act suggests that the state is not to be treated the same as a business for purposes of the act’s protection of non-civil service employees like the plaintiff. The express language of the act indicates that the state must submit to the jurisdiction of the circuit court and, thus, that the court rules apply. The court rules provide that legal actions for money damages are to be tried by a jury on request. Hence, the state may be tried by a jury in Whistleblowers’ Protection Act cases. Reasoning vacated; result affirmed. Justice Taylor, joined by Justice Weaver, dissenting, stated that the Legislature’s failure to mention that a jury may hear or award damages in a Whistleblowers’ Protection Act lawsuit should be given its obvious meaning, i.e., that it did not intend to provide for jury trials in such lawsuits. Nor does Const 1963, art 1, § 14 provide a basis for finding a right to a jury trial under the act because there was no common-law analogue of a whistleblowers’ action when art 1, § 14 was adopted. The Court of Appeals clearly erred when it ruled to the contrary. 216 Mich App 561; 550 NW2d 544 (1996) affirmed in part. Green, Green & Craig, P.C. (by Christine A. Green), for the plaintiff-appellee. Fraser, Trebileock, Davis & Foster, P.C. (by Michael E. Cavanaugh, Mark R. Fox, and Graham K. Crabtree) for defendant-appellant Band. Michael J. Kiley for defendant-appellant Michigan State University. Amici Curiae: Butzel Long (by Leonard M. Niehoff and John C. Blattner), Scott P. HiU-Kennedy, Elizabeth M. Barry, Gloria A. Hage, and Daniel J. Bernard for Ferris State University, University of Michigan, and Wayne State University. Clark, Hill, P.L.C. (by Duane L. Tamacki and J. Walker Henry), for Michigan Manufacturers Association. Roy, Shecter, Mirer & Vocht, PC. (by Jeanne Mirer) for Michigan Trial Lawyers Association. Rentrop, Vanderkloot, Haynes & Morrison, PC. (by Jeffrey K. Haynes and C. Thomas Ludden), for Michigan Environmental Council. Kelly, J. We granted leave in this case to decide whether there is a right to trial by jury in an action under the Whistleblowers’ Protection Act. MCL 15.361 el seq.-, MSA 17.428(1) el seq. If the right does exist, does it obtain when the defendant is the state or one of its political subdivisions? We hold that the act contains a right to a jury trial, and that the right exists in suits against the state of Michigan and its subdivisions. We thus affirm the result reached by the Court of Appeals, but for a different reason. i Plaintiff began an action under the Whistleblowers’ Protection Act in circuit court against Michigan State University and Professor Rudolph Band. She alleged that her contract as a research laboratory worker had not been renewed because she had complained to the university’s Environmental Affairs Office about conditions in a university laboratory. The circuit court granted a defense motion to strike the plaintiff’s jury demand. Plaintiff filed an application for leave to appeal. The Court of Appeals granted the application and held that there is a right to a jury trial in an action brought under the act. 216 Mich App 561; 550 NW2d 544 (1996). It held, also, that the right to jury trial exists even when the defendant is a state entity. We granted defendants’ applications for leave to appeal. 456 Mich 865 (1997). This Court is asked to review the Court of Appeals reversal of the trial court’s decision to deny plaintiff a jury. The trial court granted defendants’ motion to strike plaintiff’s jury demand because it determined that the act provided no right to a jury trial. Defendants pose a question of law, which we review de novo. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991). n A The Legislature designed the Whistleblowers’ Protection Act to protect the public from unlawful conduct by corporations and government bodies. The act protects the public by removing barriers to the reporting of violations of law by employees. Dolan v Continental Airlines, 454 Mich 373, 379; 563 NW2d 23 (1997). It defines “employees” to include essentially all workers except those in state classified civil service. MCL 15.361(a); MSA 17.428(1)(a). It governs “employers.” Under subsection 1(b), the state and its political subdivisions are to be considered employers for its purposes. MCL 15.361(b); MSA 17.428(l)(b). The act forbids employers from retaliating against employees who report, or are about to report, violations of the law. MCL 15.362; MSA 17.428(2). Section 3 describes the steps to be taken by employees who believe that their employers have not complied with the act: (1) A person who alleges a violation of this act may bring a civil action for appropriate injunctive relief, or actual damages, or both within 90 days after the occurrence of the alleged violation of this act. (2) An action commenced pursuant to subsection (1) may be brought in the circuit court for the county where the alleged violation occurred, the county where the complainant resides, or the county where the person against whom the civil complaint is filed resides or has his or her principal place of business. (3) As used in subsection (1), “damages” means damages for injury or loss caused by each violation of this act, including reasonable attorney fees. [MCL 15.363; MSA 17.428(3).] Section 4 delineates the potential remedies that are available to a successful claimant: A court, in rendering a judgment in an action brought pursuant to this act, shall order, as the court considers appropriate, reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages, or any combination of these remedies. A court may also award the complainant all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, if the court determines that the award is appropriate. [MCL 15.364; MSA 17.428(4).] B The foremost rule of statutory construction is to discern and give effect to the intent of the Legislature. Murphy v Michigan Bell Telephone Co, 447 Mich 93, 98; 523 NW2d 310 (1994). See also Nation v W D E Electric Co, 454 Mich 489, 494; 563 NW2d 233 (1997). If statutory language is clear and unambiguous, lawmakers must have intended the meaning they clearly expressed, and the statute must be enforced as written. No further construction is required or permitted. Tryc v Michigan Veterans’ Facility, 451 Mich 129, 135; 545 NW2d 642 (1996). See also Western Michigan Univ Bd of Control v Michigan, 455 Mich 531; 565 NW2d 828 (1997). i There is no express provision in the Whistleblowers’ Protection Act specifying whether an action brought under it is to be tried before a jury or before a judge sitting without a jury. On the basis of this silence, the dissent would hold that no jury right is available in Whistleblowers’ Protection Act actions. The dissent suggests that the Legislature’s failure to specifically state that a jury right exists means the Legislature did not intend whistleblowers’ suits to be tried by a jury. We disagree both with the rule suggested by the dissent and the dissent’s analysis of the jury issue. The rule suggested by the dissent is inappropriate in this case. It could be used alternatively to support a conclusion that the jury right is given, or that it has been withheld. As the dissent suggests, it is clear the Legislature knows how to expressly provide that an action is to be tried to a jury. It is also clear that the Legislature knows how to provide that an action is to be tried to a judge. For example, in the Employee Right to Know Act, the Legislature specifically stated that the court was to “award” damages. One could apply the dissent’s rule to the case at hand and legitimately reach the opposite conclusion from the dissent’s: given that the Legislature knew how to provide that the court should “award” damages, but did not, it did not intend for a judge to decide that issue. Defendants argue that the Legislature’s use of “court” rather than “court or jury” is determinative. We disagree. What is important in understanding the Legislature’s intent is not that it used the word “court” instead of “jury,” but, rather, what it provided that the “court” should do. The Legislature described the court’s role in wpa actions in terms of “render[ing] a judgment,” not in terms of “awarding damages.” The expressions are not interchangeable; “awarding damages” and “render[ing] a judgment” have different meanings. When a court renders a judgment, it is entering an order based on previously decided issues of fact. “Rendering judgment” does not mean the judge is making a determination of the entitlement of a party to an award of actual damages. Instead, it is the procedural step the judge takes after the factfinder has made that determination. The difference in the terms is made clear by the statute itself. The wpa provides that the court is to “award attorney fees.” Deciding the entitlement to an award of attorney fees has traditionally been the job of a judge, not a jury. Because the act provides that the court should award attorney fees, it is clear that the Legislature intended that a judge should decide whether a party is entitled to fees, and in what amount. 2 The defendants in the case before us argue that the remedies available in § 4 of the act indicate that a judge, rather than a jury, should decide factual issues. Section 4 empowers a court to order any of several equitable remedies: reinstatement, back pay, reinstatement of fringe benefits and seniority, or a combination of them. Defendants argue that the act provides for an equitable proceeding, only. They urge the Court to adopt the reasoning of a federal district court that construed all actions under the Ohio Whistleblowers’ Protection Act to be equitable proceedings. Rheinecker v Forest Laboratories, Inc, 813 F Supp 1307 (SD Ohio, 1993). Defendants and amici curiae urge that the use of the word “court” in § 3 of the act is determinative. This, too, comes from Rheinecker, because the court there opined that the legislature would have used the word “jury” had it intended a jury to hear claims under the act. However, as the court stated, its decision was based not only on the absence of the word “jury,” but, also, on the remedies that the act provided: Furthermore, although perhaps not controlling, the Act specifically speaks in terms of the Court’s authority, not the jury’s. Thus, in the face of the enumerated equitable remedies and the language of the statute itself, the Court is not persuaded by the Plaintiff’s argument that the Act gives rise to a right to trial by jury. [813 F Supp 1314 (citation omitted; emphasis added).] We do not find that the reasoning in Rheinecker regarding the Ohio act is persuasive authority for construing the Michigan act. The comparison to Rheinecker is inapposite, because our act provides for a legal remedy in the form of actual damages, while the Ohio act does not. In cases involving both equitable and legal issues, juries may decide factual issues relating to money damages, while judges retain the authority to determine the facts involving equitable remedies. C The existence of actual damages is significant because it distinguishes the Michigan act. Also, it indicates that the Legislature intended that the damages issue be tried by a jury, upon request. On its face, the language of the Whistleblowers’ Protection Act does not answer whether a jury right is available in an action brought under it. The statute neither explicitly requires nor attempts to forbid a jury. Where the language of a statute does not answer our questions, we must look behind its words to determine the Legislature’s intent. Therefore, it is necessary to broaden the scope of our inquiry to determine whether the Legislature intended to provide a jury right in suits brought under the act. In Lorillard v Pons, the United States Supreme Court found a statutory right to a jury in the Age Discrimination in Employment Act (ADEA), 29 USC 624 et seq. One of the reasons it concluded that the adea contained the right to a jury was Congress’ inclusion of “legal” relief among the remedies available under the act. The Court explained how it inferred a statutory right to a jury from Congress’ inclusion of the words “legal relief”: This inference [that the adea provides a statutory jury right] is buttressed by an examination of the language Congress chose to describe the available remedies under the ADEA. Section 7(b) empowers a court to grant “legal or equitable relief” and § 7(c) authorizes individuals to bring actions for “legal or equitable relief” (emphasis added). The word “legal” is a term of art: In cases in which legal relief is available and legal rights are determined, the Seventh Amendment provides a right to jury trial. “[W]here words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country they are presumed to have been used in that sense unless the context compels to the contrary.” We can infer, therefore, that by providing specifically for “legal” relief, Congress knew the significance of the term “legal,” and intended there would be a jury trial on demand to “enforc[e] . . . liability” .... [434 US 583 (citations omitted).] We find the Court’s reasoning in Lorillard persuasive, and apply that reasoning to the whistleblowers’ act. Using this analysis, we conclude that the Legislature’s use of the term “actual damages” is significant. It indicates the Legislature’s intent to provide for a jury right in suits brought under the act. While the ADEA provides a “legal” remedy, analogous language in the whistleblowers’ act provides for “actual damages.” “Actual damages” is also a term of art. Actual damages is a legal, rather than an equitable, remedy, and legal issues are traditionally tried to a jury. Moreover, the notion that the Legislature might intend a jury trial without explicitly so stating is not new. More than one hundred and forty years ago, the Legislature provided a statutory cause of action for actual damages that contained the right to a jury. However, the act itself did not expressly provide for jury trials. It was an 1875 cause of action for the benefit of wives and children of certain persons to whom liquor was sold. It provided: Every wife, child, ... or other person who shall be injured in person or property, means of support, by any intoxicated person, . . . shall have a right of action in his or her own name against any person or persons who . . . have caused . . . the intoxication and in any such action, the plaintiff shall have a right to recover actual and exemplary damages. [1875 PA 231, § 3 (emphasis added).] In Friend v Dunks, this Court considered the appropriate form of action under the statute, stating, “The statute does not prescribe the form of remedy, so that the party seeking to recover under either of these provisions must resort to the common law for an appropriate form of action.” Id. at 27. The Court held that the cause of action for actual and exemplary damages was an action on the case, and was properly tried by a jury. Ironically, the Court relied on an Ohio Supreme Court decision that held under one of that state’s statutes, “ ‘What those damages are, in any given case, the legislature have seen proper to leave in these broad terms to a jury to determine.’ ” Id. at 32, quoting Mulford v Clewell, 21 Ohio St 191, 196 (1871). Like Congress, when it adopted the Age Discrimination in Employment Act and included “legal remedies,” the Michigan Legislature created a cause of action in the wpa and provided for “actual damages.” As far back as 1877, the Court has held that a jury is proper where a statute creates a cause of action for actual damages without specifying before whom the action is to be tried. The Legislature is deemed to be aware of the meaning given to the words it uses, including the jury right that accompanies actual damages. Our holding recognizes that the Legislature imported into the wpa the meaning of actual damages, just as Congress had imported the jury right into the adea by providing for legal relief in Lorillard. We hold that, by including that term, the Legislature intended that the act contain a right to a trial by jury. d There is another aspect of the Supreme Court decision in Lorillard supportive of our conclusion that the whistleblowers’ act provides a right to trial by jury. In addition to Congress’ use of the term “legal remedy,” the Court’s conclusion in Lorillard was based on an historical analysis of the ADEA. Upon examining the adea and its history, the Court found that Congress intended to import into the ADEA the procedures and practices of the Fair Labor Standards Act. This contributed to the Court’s conclusion that the structure of the adea provided a right to a jury trial. The Court noted that Congress had selectively adopted provisions from the flsa by choosing to include those consistent with the adea scheme, and to exclude those not appropriate for the adea. Id. at 578-580. The ADEA specifically stated that suits brought under it were to be tried in a manner similar to suits brought under the flsa. “Long before Congress enacted the adea, it was well established that there was a right to a jury trial in private actions pursuant to the ELSA.” Id. at 580. Where it “adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to th

JACOBSON v PARDA FEDERAL CREDIT UNION Docket No. 105050. Argued November 4, 1997 (Calendar No. 16). Decided May 19, 1998. Rehearing denied 458 Mich 1201. G. Marie Jacobson brought an action in the Oakland Circuit Court against Parda Federal Credit Union and some of its board members under the Whistleblowers’ Protection Act, MCL 15.361 et seq.-, MSA 17.428(1) et seq., alleging that she had been constructively discharged from employment. Following a jury verdict for the plaintiff, the court, Robert C. Anderson, X, directed a verdict for the defendants, finding that the claim was barred because it had not been filed within the requisite period of limitation. The Court of Appeals, Murphy, P.J., and Jansen and R. L. Kaczmarek, JX, reversed in part in an unpublished opinion per curiam, finding that the defendant had engaged in a pattern of discriminatory conduct amounting to a continuing violation, and that the action was filed within the limitation period (Docket No. 162885). The defendant credit union appeals. In an opinion by Justice Cavanagh, joined by Chief Justice Mallett, and Justices Boyle and Kelly, the Supreme Court held: Because the plaintiff has alleged and proven an act by her employer in violation of the Whistleblowers’ Protection Act within the limitation period, her action is not barred. 1. While an employer’s action may lead to a constructive discharge, the discharge itself generally cannot become evident until the employee, in fact, has left the employment. To say that a discharge occurred whenever an employer’s action that resulted in the discharge occurred would be to set a date of occurrence in retrospect. Until the employee resigns, the employer’s action has yet to prove to be one of discharge. A discharge, be it constructive or otherwise, must have in place all the events necessary to determine its existence. 2. A constructive discharge occurs only where an employer or its agent’s conduct is so severe that a reasonable person in the employee’s place would feel compelled to resign. The focus is on the moment of resignation. In this case, the employee’s resignation occurred on October 21, 1989. A jury later agreed that it was reasonable for her to resign at that time. Thus, she was constructively discharged on October 21, 1989. The law does not differentiate between employees who were constructively discharged and those who were actually discharged. At the time plaintiff filed her claim, any act that occurred on October 21, 1989, could timely be addressed. The filing was timely on the basis of her constructive discharge. Affirmed. Justice Taylor, joined by Justices Brickley and Weaver, dissenting, stated that in the context of a constructive discharge claim, it is not an employee’s tender of resignation that triggers the ninety-day limitation period under MCL 15.363(1); MSA 17.428(3)(1); rather, it is the employer’s adverse action. Because the plaintiff alleges no adverse actions by the defendant that occurred within ninety days of the filing of her complaint, subsection 3(1) bars her claim. Constructive discharge is not in itself a cause of action, but rather is a defense against an employer’s argument that the employee is precluded from bringing suit because of voluntary termination of employment. An underlying cause of action is necessary to support maintenance of the employee’s suit. It is the time of the employer’s alleged discriminatory act giving rise to the underlying cause of action that signals the start of the statutory limitation period, not the date the employee eventually resigns. In this case, the relevant event for purposes of the limitation period was the defendant’s alleged discriminatory action in August 1989, not the resignation itself. The majority’s position places control over accrual of a cause of action in the hands of the employee. If the statute of limitations in constructive discharge cases is not triggered until an employee actually resigns, the employer reasonably cannot be viewed as having any control over when the action accrues and, accordingly, has no protection from stale claims. Morganroth & Morganroth (by Mayer Morganroth and Jeffrey B. Morganroth) for the plaintiff. Bowen, Radabaugh, Milton & Brown, RC. (by Thomas R. Bowen, Susan Leigh Brown, and Evelyn C. Tombers), for the defendant. Amicus Curiae: Plunkett & Cooney, P.C. (by Ernest R. Bazzana), for Michigan Defense Trial Counsel, Inc. Cavanagh, J. The case calls on us to decide whether the plaintiffs action, which was successful on the merits before a jury, was barred by the statute of limitations prescribed by the Whistleblowers’ Protection Act. Because the plaintiff has alleged and proven an act by her employer in violation of the Whistleblowers’ Protection Act within the limitation period, we find that her action is not barred. The plaintiff filed her action on January 19, 1990, ninety days after writing and sending her letter of resignation to her employer. Her complaint alleged, inter alia, that she had been constructively discharged from her employment in violation of the act. Following a jury verdict for the plaintiff, the trial court granted defendant’s motion for directed verdict, agreeing with defendant’s contention that the plaintiff’s claim was barred because the plaintiff had not filed her claim within the ninety-day statutory period for claims under the act. The Court of Appeals reversed in part, finding a continuing pattern of discriminatory conduct, with most acts outside the statutory period, but at least one act within it. The Court of Appeals concluded that this fit within an exception to the limitation period for continuing violations, and that the plaintiff’s complaint was therefore timely filed. We granted defendant’s application for leave to appeal. We find that the plaintiff has shown that she was constructively discharged on the date of resignation in retaliation for conduct protected by the act. It is undisputed that when the plaintiff filed her action, the period of limitation covering any actions on the date of her resignation, October 21, 1989, had not expired. Accordingly, we affirm the result reached by the Court of Appeals, but on different grounds. i Plaintiff G. Marie Jacobson worked for defendant Parda Federal Credit Union from 1972 until her resignation on October 21, 1989. Beginning as a temporary employee, she eventually rose to the position of executive vice president and chief operating officer. While serving in this position, plaintiff, after consulting with her private attorney, contacted the Federal Bureau of Investigation on February 28, 1989, to report her suspicions regarding a bond claim filed by the defendant with its insurer. Plaintiff believed that this bond claim was unsupported and, therefore, improper and perhaps fraudulent. That same day, the board of directors of the credit union learned of plaintiff’s action. Thereafter, plaintiff noted a dramatic decline in her relationship with the board. The plaintiff testified that the board was upset and outraged that she had reported the credit union to the FBI. Joseph Abate was president and CEO of the credit union during this time, but had announced his retirement effective April 1, 1989. Plaintiff believed herself to be generally considered to be Abate’s successor. Shortly before Abate’s retirement, she was assured by members of the board that no search was being conducted for a replacement for Abate, and that, even if there was to be a search, she would have a “fair chance” in any search to fill Abate’s position. Following Abate’s retirement, however, the chairman of the credit union’s board, Herman Armstrong, was named acting interim CEO. From there, the plaintiff detailed at trial an extensive collection of actions adverse to her taken by the board, including the placing of a blind advertisement for the CEO position, the offering of the position to another candidate (who declined it), the failure of the board to inform her of its eventual decision to appoint her CEO, and the rescission of that decision before it in fact took effect. It is undisputed that all these actions occurred well outside the statutory limitation period present when the plaintiff filed her action. Eventually, on August 16, 1989, the credit union hired Katie Stone as interim president and CEO. Simultaneously, plaintiffs staff was assigned to report to Stone, and plaintiff was relieved of her previous job duties. Plaintiff testified that from this point forward she was ostracized and ignored by the board. On October 21, 1989, plaintiff typed out a letter of resignation and mailed it to the board members, leaving an additional copy on Stone’s desk. It is undisputed that plaintiff was alone at work that day, a Saturday. Plaintiff reported to work on the following Monday, October 23, 1989, and was instructed by Stone to clean out her desk and leave at once. Plaintiff complied with Stone’s instructions. On January 19, 1990, exactly ninety days after the day plaintiff wrote and mailed her letter of resignation, she filed this action. The defendant moved for a directed verdict at the close of plaintiff’s proofs and again at the close of its proofs. The trial court took both motions under advisement. Following a jury verdict in favor of the plaintiff, the trial court granted a directed verdict (judgment notwithstanding the verdict) in favor of the defendant on all counts. The Court of Appeals reversed in part, with respect to the finding that plaintiffs whistleblowers’ action was barred by the statute of limitations. It is from this portion of the Court of Appeals decision that the defendant appeals. We now affirm, for reasons other than those stated by the Court of Appeals. n The issue whether a claim is within the period of limitation is one of law, Solowy v Oakwood Hosp Corp, 454 Mich 214, 216; 561 NW2d 843 (1997), and hence reviewed de novo, Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991). Here, because a jury has found in favor of the plaintiff, and the trial court entered a directed verdict, plaintiff on appeal is entitled to all factual issues being viewed in the light most favorable to her, along with the drawing of reasonable favorable inferences from them. Caldwell v Fox, 394 Mich 401; 231 NW2d 46 (1975). Plaintiff filed her action on January 19, 1990. Under the act, the period of limitation for an action alleging unlawful retaliatory conduct is ninety days. Therefore, the first step in any analysis of this claim is to determine whether the plaintiff has stated a claim regarding events within the limitation period. Even if we were to agree with the analysis of the Court of Appeals of the events that were otherwise barred by the statute of limitations, the analysis must nevertheless begin at those times within the period of limitation. Simply stated, if the plaintiff has alleged an action within the period of limitation, and the trier of fact has found in favor of the plaintiffs claims, we need look no further. Here the plaintiff resigned on October 21, 1989. She was admittedly alone at work on that day, a Saturday. Plaintiff testified that her working conditions had become intolerable, and offered considerable testimony in support of her claims that the conditions had steadily deteriorated in response to her reporting certain actions of the board of directors of her employer to the FBI. The question when a constructive discharge occurs has been previously addressed by this Court only in the context of a Michigan Civil Rights Act claim. Champion v Nation Wide Security, Inc, 450 Mich 702; 545 NW2d 596 (1996). Noting that “a constructive discharge occurs only where an employer or its agent’s conduct is so severe that a reasonable person in the employee’s place would feel compelled to resign,” we found that the supervisor’s conduct in Champion was severe enough to compel the plaintiff to resign. Defendant argues that Champion stands for the proposition that the act of an employer constitutes the action that results in the “discharge” in a constructive discharge situation, and that, therefore, the timing of the action of the employer controls. We disagree. The act of the employer and the constructive discharge were inseparable in Champion. Our analysis did not deviate from the standard expressed in Vagts, that is, would a reasonable person in plaintiff’s position have felt compelled to resign as a result of the employer’s sexual assault? Applying that same standard, the defendant’s motion for judgment notwithstanding the verdict should not have been granted if, viewing the evidence in a light most favorable to the plaintiff, jurors could have reached different conclusions whether plaintiff’s working conditions were so intolerable that a reasonable person in plaintiff’s position would have felt compelled to resign. Champion, 450 Mich 710; Vagts v Perry Drug Stores, Inc, 204 Mich App 481, 487; 516 NW2d 102 (1994). m In this case, the plaintiff alleged that her work conditions, as a result of retaliatory action prohibited by the act, became intolerable as of October 21, 1989, and she submitted her resignation on that day. The trier of fact accepted this contention. While an employer’s action may lead to a constructive discharge, such a discharge itself generally cannot become evident until the employee has, in fact, left the employment. It seems, therefore, that to say that a discharge occurred whenever an employer’s action that resulted in the discharge occurred would be to set a date of occurrence in retrospect. Until the employee resigns, the employer’s action has yet to prove to be one of discharge. A discharge, be it constructive or otherwise, must have in place all the events necessary to determine its existence. On the day she resigned, plaintiff found her working conditions to finally be intolerable. As we have noted above, “a constructive discharge occurs only where an employer or its agent’s conduct is so severe that a reasonable person in the employee’s place would feel compelled to resign.” Champion at 710-711, citing Vagts at 487-488, and Young v Southwestern Savings & Loan Ass’n, 509 F2d 140 (CA 5, 1975). Our approach historically has been to apply an objective standard of reasonableness to the action of the employee. We decline the defendant’s invitation to depart from our longstanding rule that a discharge occurs when a reasonable person in the employee’s place would feel compelled to resign. In analyzing such circumstances, we cannot know what place the employee is in, and hence evaluate her conduct, until she actually resigns. It seems, therefore, that our focus in these far more common situations must be on the moment of resignation. Here, the employee’s resignation occurred on October 21, 1989. A jury later agreed that it was reasonable for her to resign at that time. She was constructively discharged on October 21, 1989. “[O]nce individuals establish their constructive discharge, they are treated as if their employer has actually fired them.” Champion at 710. The law does not differentiate between employees who were constructively discharged and those who were actually discharged. Id. At the time plaintiff filed her claim, any act that occurred on October 21, 1989, could timely be addressed. If the plaintiff had been fired by her employer on October 21, 1989, her claim would be timely. We, therefore, would find it timely on the basis of her constructive discharge. Because reasonable jurors could differ regarding whether plaintiff was constructively discharged in violation of the act at the time she resigned, we affirm the result of the Court of Appeals, which reversed the directed verdict, and reinstate the jury’s award on the basis of the reasoning herein. Mallett, C.J., and Boyle and Kelly, JJ., concurred with Cavanagh, J. MCL 15.361 et seq.; MSA 17.428(1) et seq. While plaintiffs suit initially named several individual members of her employer’s board of directors as defendants, the trial court dismissed these claims pursuant to MCR 2.116(C)(8), finding the individual directors not to be employers within the meaning of the Whistleblowers’ Protection Act. The Court of Appeals affirmed this dismissal, and the plaintiff has not filed a cross appeal on this issue. The jury awarded the plaintiff $277,000 in present economic damages and $128,000 in future economic damages. The jury also awarded $100,000 in noneconomic damages on the plaintiff’s claim of intentional infliction of emotional distress. The trial court granted a directed verdict on this claim, and the Court of Appeals affirmed. Plaintiff has not filed a cross appeal on this issue. Now a judgment notwithstanding the verdict, MCR 2.610. MCL 15.363(1); MSA 17.428(3)(1). Unpublished opinion per curiam, issued November 17, 1995 (Docket No. 162885). The Court of Appeals cited Sumner v Goodyear Tire & Rubber Co, 427 Mich 505, 528; 398 NW2d 368 (1986), for this proposition. 454 Mich 905 (1997). Constructive discharge is not, itself, a cause of action, but rather a defense to a claim of the voluntary leaving of the employee. See Vagts v Perry Drug Stores, Inc, 204 Mich App 481, 487; 516 NW2d 102 (1994). However, discharge is among the retaliatory actions prohibited by the act. Plaintiff alleged she was constructively discharged. The actual posturing of her claim, accordingly, is one of discharge in violation of the act. In reviewing a motion for judgment notwithstanding the verdict, we examine the testimony and all legitimate inferences that may be drawn in a light most favorable to the nonmoving party. If reasonable jurors could have reached different conclusions, the motion should have been denied. Matras v Amoco Oil Co, 424 Mich 675, 681-682; 385 NW2d 586 (1986). As will be seen, we find no need to reach the issue of a possible “continuing violation” encompassing acts beyond the limitation period. It is apparent that, before the plaintiff contacted the FBI, she had brought her concerns regarding the bond claim to the board of directors, which nonetheless authorized the filing of the claim. While it is apparent that the board decided to promote plaintiff to ceo after the other candidate refused the position, the plaintiff testified she was never informed of that decision and learned of it by way of a third-party’s congratulatory letter a month later. When confronted by the plaintiff, the board informed her that it had already rescinded her promotion, and thereafter hired Katie Stone as interim CEO. A motion for judgment notwithstanding the verdict should be granted only if the evidence, viewed in a light most favorable to the nonmoving party, fails to establish a claim as a matter of law. Orzel v Scott Drug Co, 449 Mich 550, 557-558; 537 NW2d 208 (1995). Our decision rests on a claim of constructive discharge within the limitation period. Plaintiff also alleged numerous discriminatory acts by the defendant outside the limitation period. While those allegations do not, by themselves, form the basis we decide this matter on, they are nonetheless relevant to determining the reasonableness of the plaintiff’s resignation, a determination required in addressing a claim of constructive discharge. See Vagts, n 9 supra at 487-488. MCL 37.2101 et seq.-, MSA 3.548(101) et seq. Subsection 103 of the act provides: (i) Discrimination because of sex includes sexual harassment which means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature when: (ii) Submission to or rejection of such conduct or communication by an individual is used as a factor in decisions affecting such individual’s employment, public accommodations or public services, education, or housing. Champion at 710, citing Vagts, n 9 supra at 487-488, and Young v Southwestern Savings & Loan Ass’n, 509 F2d 140 (CA 5, 1975). In Champion, the plaintiff was forcibly raped by her supervisor while at wo

FEICK v MONROE COUNTY Docket No. 198014. Submitted November 18, 1997, at Lansing. Decided April 21, 1998, at 9:00 A.M. Leave to appeal sought. Nancy M. Feick, a former Monroe County chief assistant prosecutor, brought an action in the Monroe Circuit Court against Monroe County and the Monroe County Prosecutor, alleging violations of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. The plaintiff contended that the defendants retaliated against her for filing a complaint with the Equal Employment Opportunity Commission (eeoc), that the county prosecutor discriminated against her on the basis of age and gender when he refused to reappoint her as chief assistant prosecutor after he defeated the incumbent county prosecutor who last appointed her, and that the county discriminated against her in rejecting various applications for county employment after she lost her assistant prosecutor position. The court, Timothy P. Pickard, J., granted summary disposition for the defendants and imposed sanctions against the plaintiff for filing a frivolous action. The plaintiff appealed. The Court of Appeals held: 1. The discrimination claim regarding the county’s refusal to hire the plaintiff for various county positions was correctly dismissed by the trial court. By failing to present evidence regarding her qualifications for those county positions, the plaintiff failed to establish that there was a genuine issue of material fact concerning whether she was qualified for the position. 2. The plaintiff established a prima facie case of gender and age discrimination with respect to the county prosecutor’s decision not to reappoint her as chief assistant prosecutor. The plaintiff showed that she was a member of a protected class, that she was qualified for continued employment as chief assistant prosecutor, and that she was replaced by someone who was younger and who was male. However, a legitimate, nondiscriminatory reason for not reappointing the plaintiff was given, and the plaintiff failed to show that the articulated reason was a mere pretext for discrimination. The plaintiff’s political affiliation with the county prosecutor’s opponent was a legitimate, nondiscriminatory reason for not reappointing the plaintiff inasmuch as political affiliation is pertinent to the performanee of the duties of an assistant prosecutor. The plaintiff failed to show that the county prosecutor’s reason for not reappointing her had no basis in fact, or, if it did, it was not the actual factor motivating the decision, or, if it was, it was insufficient to justify the decision. 3. The trial court correctly dismissed the retaliation claim. The evidence presented by the plaintiff to support the claim was not sufficient to establish a genuine issue of material fact with regard to whether there had been retaliation for the plaintiff’s filing of an eeoc complaint. 4. The trial court did not clearly err in finding that the action was brought with malice to harass and embarrass the county prosecutor and that it was therefore frivolous, thereby subjecting the plaintiff to sanctions under MCL 600.2591(3)(a); MSA 27A.2591(3)(a), MCR 2.114(F), and MCR 2.625(A)(2). Affirmed. 1. CrviL Rights — Employment Discrimination — Prima Facie Case. A plaintiff, absent direct evidence of discrimination, may establish a prima facie case of employment discrimination by showing membership in a protected class, adverse employment action, qualification for position, and replacement by one who was not a member of the protected class; once a prima facie case is established, the burden shifts to the employer, who must articulate a legitimate, nondiscriminatory reason for the employment action; if the employer articulates a nondiscriminatory reason, the plaintiff must show by a preponderance of the evidence that the reason given is a mere pretext for discrimination (MCL 37.2101 et seq.-, MSA 3.548[101] et seq.). 2. Civil Rights — Employment Discrimination — Prima Facie Case. A plaintiff alleging employment discrimination establishes that an articulated legitimate, nondiscriminatory reason given by the employer for the challenged employment action is a mere pretext for discrimination by showing that the reason has no basis in fact, or, if it does, that it was not the actual factor motivating the decision, or, if it was, that it was insufficient to justify the decision (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 3. Civil Rights — Employment Discrimination — County Prosecutors — Political Affiuation. Political affiliation inimical to that of the county prosecutor is a legitimate, nondiscriminatory reason for not reappointing an assistant prosecutor; a county prosecutor incurs no liability under the Civil Rights Act for discrimination by not reappointing on that basis (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 4, Appeal — Frivolous Claims — Costs — Sanctions — Standard of Review. Clear error is the standard of review of a trial court’s findings in support of a decision to impose sanctions and costs against a plaintiff for filing a frivolous claim (MCL 600.2591[3][a]; MSA 27A.2591[3][a]; MCR 2.114[F], 2.625[A][2]). Green & Green (by Philip Green), for Nancy M. Feick. Cummings, McClorey, Davis & Acho, P.C. (by Joseph Nimako and Thomas J. Laginess), for Monroe County. Johnson, Rosati, Gálica, Labarge, Aseltyne & Field, P.C. (by Marcia L. Howe and Laura S. Amtsbuechler), for Edward F. Swinkey. Before: Hood, P.J., and McDonald and White, JJ. Per Curiam. Plaintiff appeals as of right from the circuit court’s order granting summary disposition and awarding sanctions to defendants in this employment discrimination action brought under the Civil Rights Act (CRA), MCL 37.2101 et seq.; MSA 3.548(101) et seq. Plaintiff, a former chief assistant prosecuting attorney, alleged that by terminating her and not subsequently rehiring her for various positions, defendants discriminated against her on the basis of her gender and age, and retaliated against her for filing a complaint with the Equal Employment Opportunity Commission (eeoc). We affirm. i Plaintiff first argues that the circuit court improperly dismissed her claims of gender and age discrimination because genuine issues of material fact remained regarding whether defendants discriminated against her. We disagree. A Absent direct evidence of discrimination, a plaintiff may establish a prima facie case of employment discrimination by showing (1) that the plaintiff was a member of a protected class, (2) that an adverse employment action was taken against the plaintiff, (3) that the plaintiff was qualified for the position, and (4) that the plaintiff was replaced by one who was not a member of the protected class. Matras v Amoco Oil Co, 424 Mich 675, 683; 385 NW2d 586 (1986). Plaintiff established that she was a member of protected classes on the basis of her age and gender and that she was not reappointed by Monroe County Prosecutor Edward E Swinkey after he won the 1992 election, defeating her former boss, William Frey. Plaintiff also established that she was replaced by a younger male and subsequently not rehired as chief assistant prosecutor and for various other positions. Although defendants dispute that plaintiff was qualified to be rehired as chief assistant prosecuting attorney, viewing the facts in a light most favorable to plaintiff, we conclude that plaintiff established that she was qualified for the position of chief assistant prosecutor on the basis of having held the position for seven years and the qualifications she testified to at deposition. However, regarding the remaining positions plaintiff applied for, department head in the office of the friend of the court and a position with the drain commission, plaintiff presented no evidence of the qualifications required for those positions or that she met those qualifications. Accordingly, with regard to the friend of the court and drain commission positions, plaintiff failed to present the requisite evidence to establish a genuine issue of material fact that she was cis qualified as the persons who obtained the positions. Dubey v Stroh Brewery Co, 185 Mch App 561, 564-565; 462 NW2d 758 (1990). We thus conclude that plaintiff presented a prima facie case of gender and age discrimination with respect to Swinkey’s not reappointing her to the chief assistant prosecutor position on December 31, 1992, find with respect to Swinkey’s failure to subsequently rehire her for that position. B The burden therefore shifted to defendant to articulate a legitimate, nondiscriminatory reason for not reappointing plaintiff and not subsequently rehiring her for the chief assistant prosecutor position. Dubey, supra at 563. It is undisputed that after Swinkey won the 1992 election, he did not reappoint four prosecuting attorneys who had served under Frey, his predecessor: plaintiff, another woman, and two men. In an affidavit submitted in support of his motion for summary disposition, Swinkey stated that he did not reappoint plaintiff because he wanted to hire a staff of committed and competent attorneys who would appropriately and adequately represent and further the policies and goals he promised to the electorate and that he had evaluated plaintiffs performance and decided she did not possess the requisite competence and ability. Swinkey presented evidence that, before the 1992 election, Frey came under investigation by the Attorney Grievance Commission (AGC). Swinkey presented evidence that several of the charges brought against Frey involved plaintiff, including that plaintiff and Frey represented adverse parties in a divorce action while plaintiff was chief assistant prosecutor; that plaintiff took part in Frey’s decision to fire Swinkey’s brother, an assistant prosecutor under Frey who had testified before the AGC during its investigation of Frey; and that plaintiff had been aware that Frey was monitoring Swinkey’s telephone conversations and had listened to tapes made by Frey. Plaintiff argues that defendant discharged plaintiff “for being associated with his opponent in an election” and that such reason does not constitute a legitimate reason for its adverse employment actions but is, rather, unlawful political discrimination. In response to plaintiff’s argument, Swinkey argued that, by statute, assistant prosecuting attorneys hold office at the pleasure of the prosecuting attorney. See MCL 49.35; MSA 5.795, which provides that “assistant prosecuting attorneys and other employees appointed by said prosecuting attorney under this act shall hold office during the pleasure of the prosecuting attorney.” Swinkey also argues that he could properly premise not reappointing plaintiff on plaintiff’s political affiliation. Under the circumstances presented here, we agree. A dismissal or other adverse employment action toward a public employee based solely on the employee’s private political beliefs or affiliation presumptively violates the First Amendment. Branti v Finkel, 445 US 507, 515-517; 100 S Ct 1287; 63 L Ed 2d 574 (1980); Rutan v Republican Party of Illinois, 497 US 62, 65, 71-73, 75; 110 S Ct 2729; 111 L Ed 2d 52 (1990) (noting that promotions, transfers, and recalls after layoffs of lower-level public employees based on political affiliation or support impermissibly infringe their First Amendment rights). However, political affiliation may be an acceptable requirement for some types of employment. Branti, supra at 517-518; Hall v Tollett, 128 F3d 418, 422 (CA 6, 1997). The term “political affiliation” includes not only partisan political interests and concerns, but also beliefs and commitments, Monks v Marlinga, 732 F Supp 749, 753, n 2 (ED Mich, 1990), aff’d 923 F2d 423 (CA 6, 1991). In the instant case, plaintiff and Swinkey are members of the same political party. The United States Court of Appeals for the Sixth Circuit in McCloud v Testa, 97 F3d 1536, 1553 (CA 6, 1996), held that First Amendment protection from adverse patronage employment actions extends to nonideologicai political factions of the same party. See also Monks, supra at 753, n 2. To determine whether political considerations are appropriate in making personnel decisions for a certain position, courts must examine the inherent duties of that position and the duties that the new holder of that position will perform. Hall, supra at 423. In Monks, supra, which also involved members of the same party, the plaintiffs were assistant prosecutors who brought suit against Macomb County’s prosecutor, alleging that the defendant terminated them because of their political affiliation, in violation of 42 USC 1983. The district court dismissed the plaintiffs’ political affiliation claims, concluding that political affiliation is pertinent to the effective performance of an assistant prosecutor’s duties: The Court’s research has uncovered no precedent squarely addressing whether political affiliation is pertinent to the performance of the duties of an assistant county prosecutor appointed pursuant to Michigan law. The language of the relevant statutes, however, suggests that an assistant prosecutor’s position involves, at a minimum, “a modicum of policymaking responsibility, access to confidential information, or official communication.” Mariani-Giron v Acevedo Ruiz, 877 F2d 1114, 1117 (1st Cir 1989) (emphasis in original). Specifically, assistant prosecutors “perform any and all duties pertaining to the office of prosecuting attorney at such time or times as he may be required so to do by the prosecuting attorney and during the absence or disability of the prosecuting attorney . . . .” [Quoting MCL 49.42, 49.52; MSA 5.802, 5.812.] . . . .... The mere fact that assistant prosecutors try cases under the direction of the prosecutor indicates that political loyalty is important to the office of assistant prosecutor. Every prosecuting attorney, as an elected official, necessarily possesses a political agenda. That agenda is manifested through the handling of criminal cases within such prosecutor’s county. Thus, the Court cannot escape the conclusion that political affiliation is pertinent to the effective performance of an assistant prosecutor’s duties. [Monks, supra at 753], See also McCloud, supra at 1557, in which the court established four categories which attempt to capture the positions that could possibly fall into the Branti exception, including: Category One: positions specifically named in relevant federal, state, county or municipal law to which discretionary authority with respect to the enforcement of that law or the carrying out of some other policy of political concern is granted. We conclude that under this line of authority, Swinkey could properly premise his decision not to reappoint plaintiff on plaintiffs political affiliation with his opponents. Swinkey thus articulated a legitimate, nondiscriminatory reason for not reappointing or subsequently rehiring plaintiff. The burden then shifted to plaintiff to show by a preponderance of the evidence that the legitimate reason offered by defendants was a mere pretext for discrimination. Dubey, supra at 563. A plaintiff can establish that a defendant’s articulated legitimate, nondiscriminatory reasons are pretexts (1) by showing the reasons had no basis in fact, (2) if they have a basis in fact, by showing that they were not the actual factors motivating the decision, or (3) if they were factors, by showing that they were jointly insufficient to justify the decision. Id. at 565-566. Plaintiff did not present evidence sufficient to satisfy any of the three prongs. She did not present evidence that defendants’ reasons had no basis in fact or that they were insufficient to justify the decision not to reappoint or rehire. Plaintiff also failed to introduce evidence from which a factfinder could conclude that Swinkey’s articulated reasons were not the actual factors motivating the decisions. We conclude that the circuit court properly dismissed plaintiffs claims of age and gender discrimination because plaintiff failed to present sufficient evidence to raise a triable factual issue that Swinkey’s articulated nondiscriminatory reasons for not reappointing her or subsequently rehiring her were pretexts. Grant v Michigan Osteopathic Medical Center, Inc, 172 Mich App 536, 540; 432 NW2d 313 (1988). n Plaintiff next argues that a genuine issue of material fact remained regarding whether defendants retaliated against her. We disagree. The cra prohibits an employer from retaliating against an employee for making a charge, filing a complaint, testifying, assisting, or participating in an investigation, proceeding, or hearing under the act. MCL 37.2701; MSA 3.548(701). McLemore v Detroit Receiving Hosp, 196 Mich App 391, 395-396; 493 NW2d 441 (1992). Plaintiff’s retaliation claim fails because she presented no evidence from which a reasonable factfinder could infer that there was a causal connection between her eeoc complaint and defendants’ adverse employment actions. Kocenda v Detroit Edison Co, 139 Mich App 721, 726; 363 NW2d 20 (1984); see also Parnell v Stone, 793 F Supp 742, 746 (ED Mich, 1992), aff’d 12 F3d 213 (CA 6, 1993). The only evidence plaintiff presented was that Swinkey testified at deposition that he was not pleased that plaintiff had filed an eeoc complaint and that he had talked about the complaint to one other person. This was insufficient to establish a causal link between plaintiff’s eeoc complaint and the adverse employment actions. The circuit court properly dismissed plaintiffs retaliation claim for failing to establish that a genuine issue of material fact remained regarding whether defendants retaliated against her for filing her discrimination complaint. McLemore, supra at 395-396. In light of our disposition, we need not address defendant Monroe County’s argument that it was not an employer within the meaning of the CRA. Monroe County was properly dismissed because plaintiff’s claims of discrimination and retaliation failed. in Finally, plaintiff argues that the circuit court erred in granting defendants’ motions for sanctions and costs pursuant to MCL 600.2591(3)(a); MSA 27A.2591(3)(a), MCR 2.114(F), and MCR 2.625(A)(2). A circuit court’s finding that a claim is frivolous is reviewed for clear error. LaRose Market, Inc v Sylvan Center, Inc, 209 Mich App 201, 210; 530 NW2d 505 (1995). The trial court expressly found that the action was brought to harass and embarrass defendant Swinkey and with malice. While the conclusion was not compelled, we are unable to conclude that the circuit court’s finding was clearly erroneous. Affirmed. Plaintiff also presented evidence that her younger male replacement left after less than a year on the job and that another younger male was hired as chief assistant prosecutor. Plaintiff also applied for a position with the probate court. However, at the hearing regarding defendants’ motion for summary disposition, plaintiff’s counsel withdrew plaintiff’s claim regarding that position. Plaintiff has cited no authority in support of this argument. In McCloud, several Franklin County auditor’s office employees, who were Republicans, brought suit when they were dismissed following the resignation of the Ohio Auditor and the appointment of a rival Republican to serve out the term. Id. at 1539. The plaintiffs alleged that their First Amendment rights to be free of patronage dismissals were violated, contravening 42 USC 1983. Id. at 1541. Plaintiff alleged that Monroe County funded and assisted in operating the office of Monroe County prosecutor and assisted in staffing that office with assistant prosecutors, all of whom are Monroe County employees.

Doris Blanchette vs. School Committee of Westwood. Norfolk. December 9, 1997. - April 6, 1998. Present: Wilkins, C.J., Abrams, Lynch, Greaney, Fried, Marshall, & Ireland, JJ. School and School Committee, Arbitration, Collective bargaining, Termination of employment. Arbitration, Collective bargaining, School committee, Waiver. Labor, Arbitration, Collective bargaining. Anti-Discrimination Law, Arbitration, Employment. Employment, Retaliation, Sexual harassment, Termination. Waiver. Judicial Estoppel. An employee of a school committee who filed an action alleging violation of G. L. c. 151B, § 4 (4), was not precluded from raising the issue whether the school committee unlawfully retaliated against her for filing a charge of sexual harassment with State and Federal agencies by reason of her having proceeded to arbitration on the same facts pursuant to a collective bargaining agreement that by statute and its own terms was limited to disputes concerning its own interpretation and application [179-183]; nor was the doctrine of waiver applicable to thé circumstances [183-184], The doctrine of judicial estoppel was not applicable in circumstances in which a civil plaintiff was not asserting an inconsistent position from that put forward in an arbitration proceeding under a collective bargaining agreement involving the same factual situation. [184-185] Civil action commenced in the Superior Court Department on January 10, 1996. The case was heard by Barbara A. Dortch-Okara, J., on a motion to dismiss. Leave to prosecute an interlocutory appeal was allowed in the Appeals Court by Christopher J. Armstrong, J. The Supreme Judicial Court granted an application for direct appellate review. Kay H. Hodge (Geoffrey R. Bok with her) for the defendant. Albert W. Wallis (Betty A. Gittes & Daniel S. O’Connor with him) for the plaintiff. Harold L. Lichten & Warren H. Pyle for the Massachusetts National Employment Lawyers Association & another, amici curiae, submitted a brief. Judith M. Neumann for the Massachusetts Teachers Association, amicus curiae, submitted a brief. Ireland, J. The plaintiff, Doris Blanchette, a former employee of the defendant, school committee of Westwood (committee), commenced this action in the Superior Court, alleging that the committee, in violation of G. L. c. 15IB, § 4 (4), retaliated against her by evaluating her unfairly and by failing to renew her employment because she had filed a charge of sexual harassment with the Equal Employment Opportunity Commission (EEOC) and the Massachusetts Commission Against Discrimination (MCAD). The committee moved to dismiss or for summary judgment, contending that the claims raised in this action had been fully and fairly adjudicated in an arbitration proceeding pursuant to the terms of a collective bargaining agreement (agreement) between the Westwood Teachers Association (association) and the committee. The judge denied the motion. A single justice of the Appeals Court granted the committee’s petition for leave to prosecute an interlocutory appeal, and we granted the committee’s application for direct appellate review. We now affirm. 1. Facts. Blanchette began working as a library media specialist at the Thurston Middle School (Thurston) in Westwood in September, 1990. At all relevant times, Blanchette was a member of the association, and the association had an agreement with the committee. On June 8, 1992, Blanchette complained to the superintendent of schools that she had been sexually harassed by Thurston’s principal. The superintendent investigated Blanchette’s allegations and similar allegations that other members of the association subsequently made. As a result of the investigation, the principal resigned on July 3, 1992. On August 7, 1992, Blanchette filed a charge of sexual harassment against the committee with the EEOC and the MCAD. Following an investigation, the EEOC and the MCAD dismissed Blanchette’s charge in May, 1994. In the fall of 1992, Thurston’s new principal began formal evaluations of Blanchette’s performance, pursuant to the agreement’s procedures for awarding tenure. On January 13, 1993, the principal wrote a letter to Blanchette discussing her job performance in mostly negative terms. In March, 1993, the principal completed the formal evaluation procedures and recommended to the committee that Blanchette not receive tenure. Based on this recommendation, the committee did not grant Blanchette tenure and did not renew her employment at the conclusion of the 1992-1993 school year. 2. The grievances. The association filed two grievances on behalf of Blanchette. The first grievance was filed on February 11, 1993, and concerned the principal’s letter of January 13. The association claimed that the letter violated the agreement’s evaluation procedures and was in retaliation against Blanchette because she had filed the sexual harassment charge with the EEOC and the MCAD. After the grievance was denied at each procedural level contained in the agreement, the association invoked its right under the agreement to demand binding arbitration. The second grievance was filed on May 17, 1993, and concerned the committee’s failure to renew Blanchette’s contract. The association again claimed that the decision was in retaliation against Blanchette because she had filed the sexual harassment charge. This grievance was also denied, and the association again invoked its right under the agreement to demand binding arbitration. By mutual consent, the two grievances were consolidated into a single arbitration. 3. The arbitration. The arbitration hearing began on March 10, 1994. At the outset, the committee contended that the arbitrator did not have authority to hear the association’s retaliation claims because the agreement contained no language that prohibited such retaliation. The association argued in response that the agreement incorporated by reference State and Federal antidiscrimination laws, including G. L. c. 15IB, § 4 (4), and Title VII of the Federal Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (1994) (Title VII), which prohibit retaliation against an employee for filing a harassment charge. In an interim ruling issued on May 17, 1994, the arbitrator concluded that the retaliation claim was arbitrable. Relying on explicit references in the agreement to external law, the arbitrator determined that “the parties intended that claims of discrimination be examined in light of such external law, as well as the language of the Agreement.” On February 29, 1996, the arbitrator issued an opinion and award in which she determined that the committee had violated the agreement in its evaluation and treatment of Blanchette. On March 25, 1996, the arbitrator issued a final award, consisting of the expungement of various offending documents from Blanchette’s personnel file, reinstatement of Blanchette to her former position (in order to redo her third year and be properly and fairly evaluated for tenure), and back pay. The arbitrator offered Blanchette the option, in lieu of reinstatement, of receiving back pay as a lump-sum payment with interest.* 4. The Superior Court action. On January 10, 1996, Blanchette filed this action in the Superior Court, while the arbitration was still pending. Based on the same facts at issue in the arbitration, Blanchette claimed that the committee had violated her civil rights under G. L. c. 151B, § 4 (4), by retaliating against her for filing a charge of sexual harassment with the EEOC and the MCAD (statutory civil rights claim). The committee moved to dismiss or for summary judgment. Relying on Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), and Boston v. Massachusetts Comm’n Against Discrimination, 39 Mass. App. Ct. 234 (1995), the judge denied the motion. 5. Discussion. The committee argues that the doctrines of preclusion, waiver, and judicial estoppel prevent Blanchette from pursuing her statutory civil rights claim in a judicial forum. We address the arguments under each doctrine separately. a. Preclusion. By statute, parties to a collective bargaining agreement may include grievance procedures “culminating in final and binding arbitration” in their agreement. G. L. c. 150E, § 8. However, the grievance procedures can apply only to disputes “concerning the interpretation or application” of any such agreement. Id. Consistent with this statutory treatment, art. XVII of the agreement here states that the grievance procedures “shall be applicable only to questions of interpretation of the terms of this Agreement.” We have held that the prior submission of a claim to arbitration may have a preclusive effect on the same claim in a subsequent court action. See Miles v. Aetna Cas. & Sur. Co., 412 Mass. 424, 427 (1992). The inquiry turns, in large part, on whether the “right” or “issue” on which preclusion is sought has been “the product of full litigation and careful decision.” Id., quoting Home Owners Fed. Sav. & Loan Ass’n v. Northwestern Fire & Marine Ins. Co., 354 Mass. 448, 455 (1968). In Alexander v. Gardner-Denver Co., 415 U.S. 36, 43 (1974), the United States Supreme Court held that an employee who had exhausted his remedies under the grievance procedures of a collective bargaining agreement was not precluded from pursuing a judicial action under Title VII, because the “rights” that concern the interpretation and application of a collective bargaining agreement are distinguishable from the statutory “rights” to be free from discrimination in the workplace under Title VII. Id. at 49-50. In particular, the Court stated that: “In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective-bargaining agreement. By contrast, in filing a lawsuit under Title VH, an employee asserts independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence. And certainly no inconsistency results from permitting both rights to be enforced in their respectively appropriate forums.” Id. The Court further noted that “in instituting an action under Title VII, the employee is not seeking review of the arbitrator’s decision. Rather, he is asserting a statutory right independent of the arbitration process.” Id. at 54. We reached a similar result interpreting our State antidiscrimination statute in School Comm. of Brockton v. Massachusetts Comm’n Against Discrimination, 377 Mass. 392, 399 (1979), where we relied on Alexander to distinguish rights that are part of a collective bargaining process from individual rights conferred by G. L. c. 151B, § 4, including the right to equal employment opportunities. The Appeals Court discussed this distinction in more detail in Boston v. Massachusetts Comm’n Against Discrimination, 39 Mass. App. Ct. 234, 238 (1995), and concluded that the “dominant idea underlying the [Alexander] line of cases is that when Congress accords a person an independent statutory right (or in the State context, when the Legislature accords such a right), that public right ... is independent and paramount to the privately arrived at collective bargaining agreement.” The Appeals Court then held that submitting a claim of racial discrimination to arbitration under a collective bargaining agreement did not give preclusive effect to the arbitrator’s decision in a subsequent discrimination action brought before a court or specialized agency under G. L. c. 151B, § 4. Id. Applying these analyses to the instant case, the arbitrator determined that the committee “violated the Collective Bargaining Agreement with respect to its evaluation and treatment” of Blanchette. However, the arbitrator also expressly recognized that her opinion and award of February 29, 1996, pertained only to “contractual violations.” She indicated that there may have been additional “statutory violations” with respect to any “statute(s) prohibiting retaliation or reprisal” against Blanchette, but this was a “legal question” and she did not address it. Consistent with both G. L. c. 150E, § 8, and art. XVH of the agreement, the arbitrator thus did not hear Blanchette’s statutory civil rights claim, because that claim did not involve a question of interpreting the agreement. As a result, the rights on which the committee is seeking preclusion have not been the product of full litigation and carefhl decision. See Miles, supra. We thus conclude that the preclusion doctrines do not apply to Blanchette here. Blanchette is not getting a second bite of the same apple, as the committee contends. Instead, she is seeking single bites from two separate apples as she looks to enforce two different sets of rights in the respective forums that are available to her. Nothing in the preclusion doctrine prevents this. The committee attempts to distinguish this case from Alexander on the basis that the collective bargaining agreement in that case contained a general nondiscrimination clause only, while the agreement here explicitly incorporated Federal and State law. However, the committee gives us no reason why such a distinction should be of any importance. Similarly, the committee attempts to distinguish this case because Blanchette prevailed in the arbitration. We find nothing in the language of Alexander and its progeny or in our own cases that makes such a distinction, nor has the committee pointed us to any such language. The committee also urges us to abandon the principles of Alexander in favor of Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26-27 (1991), in which the Supreme Court held that an employee’s statutory claims under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. (ADEA), could be submitted to arbitration and that such submission precluded a subsequent judicial review of the claims. We do not necessarily follow the interpretation of Federal antidiscrimination statutes in construing G. L. c. 151B, § 4. See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 440-441 (1995), citing College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 163 (1987). Were we persuaded that we should do so here, we note first that Gilmer appears to strike out in a different direction from Alexander. However, the Supreme Court has gone to great lengths to distinguish the two cases and to emphasize their over-all consistency, both in Gilmer, supra at 35, and in Livadas v. Bradshaw, 512 U.S. 107, 127 n.21 (1994). The distinctions that are of particular relevance here are that Gilmer involved an employee who was not covered by a collective bargaining agreement and who had signed an agreement requiring that all disputes be resolved by arbitration. Here, Blanchette was a member of a union covered by a collective bargaining agreement and the agreement, both by statute and by its own terms, was limited to disputes concerning its own interpretation and application. Accordingly, this case more closely follows Alexander than Gilmer. 8Even if we were persuaded to follow the interpretation of Federal antidiscrimination statutes in construing G. L. c. 15IB, § 4, we would agree with the United States Court of Appeals for the Eleventh Circuit that, although Gilmer may have cut back Alexander, the latter case remains the applicable standard for cases of this type. See Brisentine v. Stone & Webster Eng’g Corp., 117 F.3d 519, 525 (11th Cir. 1997). b. Waiver. We note first that Blanchette did not waive her right to pursue her statutory civil rights claim in a judicial forum merely by being a member of a union that was covered by a collective bargaining agreement. Although a union has the power to waive statutory rights related to collective activity, rights of the kind protected by G. L. c. 151B, § 4, which are of a personal, and not merely economic, nature are beyond the union’s ability to bargain away. See School Comm. of Brockton v. Massachusetts Comm’n Against Discrimination, 377 Mass. 392, 399 (1979), citing Alexander, supra at 51. The larger question here is whether Blanchette, by her own individual actions, waived her right to pursue her statutory civil rights claim in a judicial forum. The committee argues that Blanchette’s voluntary choice to request the association to proceed to arbitration constituted such a waiver, because Blanchette could have proceeded with her statutory civil rights claim in a judicial forum in the first place. However, the committee’s argument here is based solely on its contention that Blanchette’s statutory civil rights claim was, in fact, brought to arbitration. This contention is incorrect. See supra at 180-183. Accordingly, the committee’s argument is without merit. Blanchette may have been able explicitly and voluntarily to waive her right to pursue her statutory civil rights claim in a judicial forum. See Gilmer, supra at 26, quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985). See also Alexander, supra at 52; Mugnano-Bornstein v. Crowell, 42 Mass. App. Ct. 347, 351-353 (1997). However, there is no evidence that Blanchette made such an explicit and voluntary waiver, nor does the committee contend that she ever did so. We thus conclude that the waiver doctrine does not apply to Blanchette here. c. Judicial estoppel. Judicial estoppel is an equitable doctrine that precludes a party from asserting a position in one legal proceeding that is contrary to a position it had previously asserted in another proceeding. Fay v. Federal Nat’l Mtge. Ass’n, 419 Mass. 782, 787 (1995). We have never precisely defined the specific requirements for judicial estoppel and need not do so here. It is sufficient to note that in deciding whether a party should be judicially estopped, “we will look to see whether that party is seeking to use the judicial process in an inconsistent way that courts should not tolerate.” East Cambridge Sav. Bank v. Wheeler, 422 Mass. 621, 623 (1996). At the arbitration, the association argued that the arbitrator should award the “full range” of both contractual and statutory remedies. From this, the committee concludes that it is inconsistent for Blanchette to argue now that additional remedies could be available in a different legal proceeding. Logically,.the association’s argument that the arbitrator should award the full range of statutory damages can pertain only to those damages that were within her authority to award in the first place. It was within the arbitrator’s authority to award some damages as a result of the committee’s violations of the antidiscrimination statutes, because those statutes were incorporated into the agreement. But these “statutory” damages were necessarily limited by G. L. c. 150E, § 8, and art. XVII of the agreement to the impact such violations had on Blanchette’s rights under the agreement, because the arbitrator had no authority to hear any other matters. See supra at 180. The arbitrator could not and did not hear Blanchette’s statutory civil rights claim under G. L. c. 151B, § 4 (4), see supra at 180-184, and thus could not award damages with respect to this claim. Neither Blanchette nor the association have argued to the contrary. There is thus no inconsistency in Blanchette’s looking now to a different legal proceeding for damages that were not available to her in the arbitration. Because Blanchette is not asserting an inconsistent position, the doctrine of judicial estoppel does not apply here. Larson v. Larson, 30 Mass. App. Ct. 418, 427-428 (1991). Of course, any remedies that Blanchette may receive from judicial action with respect to her statutory civil rights claim cannot be duplicative of the remedies that she may already have recieved as a result of the arbitration. See Szalla v. Locke, 421 Mass. 448, 453 (1995), and cases cited. 6. Conclusion. For the reasons stated above, the doctrines of

CHANDLER v DOWELL SCHLUMBERGER INCORPORATED Docket No. 104864. Argued November 6, 1997 (Calendar No. 17). Decided January 21, 1998. Joseph W. Chandler brought an action in the Midland Circuit Court against Dowell Schlumberger Incorporated under the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq., alleging that he was discharged from his employment because the defendant believed that he had reported violations of the law to the Department of Transportation. The court, Paul J. Clulo, J., granted the defendant’s motion to dismiss the case, holding that the act did not protect the plaintiff. The Court of Appeals, Gribbs, P.J., and Markman, J. (D. E. Shelton, J., dissenting), affirmed (Docket No. 166009). The plaintiff appeals. In a unanimous opinion by Justice Kelly, the Supreme Court held-. The Whistleblowers’ Protection Act does not shield an employee who is erroneously perceived to be a whistleblower and subsequently discharged from employment. 1. To establish a prima facie case under the Whistleblowers’ Protection Act, it must be shown that the plaintiff was engaged in protected activity as defined by the act, the defendant employer discharged the plaintiff, and a causal connection exists between the protected activity and the discharge. Protected activity consists of reporting to a public body a violation of law, regulation, or rule; being about to report such a violation to a public body; or being asked by a public body to participate in an investigation. 2. Because the plaintiff has not alleged that he reported a violation of the law to a public body, that he was about to do so, or that he was requested to participate in a public investigation, the plain language of the statute does not protect him. He failed to state a prima facie case under the act. Affirmed. 214 Mich App 111; 542 NW2d 310 (1995) affirmed. Mathieu & Lee (by James H. Mathieu) for the plaintiff. Barry B. George for the defendant. Kelly, J. We granted leave in this case to decide whether the Whistleblowers’ Protection Act shields an employee who was discharged under the erroneous perception that he reported a violation of law. We conclude that the statute does not protect such an employee. i Defendant Dowell Schlumberger Incorporated (DSl) hired the plaintiff on June 4, 1989, as a field engineer trainee. It promoted him to field engineer on November 11, 1990. On April 6, 1992, the Michigan Department of Transportation, acting on a tip, cited DSl for carrying hydrochloric acid in a trailer not properly certified to carry it. Over the next week, plaintiff’s supervisor, Joseph Shurell, sought the identity of the person who had reported the violation to moot. On April 13, 1992, Shurell called plaintiff to his office, questioned him about who reported the violation, and fired him. Plaintiff filed the present action under the Whistleblowers’ Protection Act (wpa). In his complaint, he alleged that Shurell discharged him because Shurell believed that plaintiff had reported violations of the law to MDOT. Among other things, the wpa makes it illegal for an employer to retaliate against an employee because the employee has reported a violation of the law. When defendant moved to dismiss the case under MCR 2.116(C)(10), Midland Circuit Court Judge Paul J. Clulo granted the motion, holding that the WPA did not protect plaintiff. He later denied plaintiffs motion for reconsideration. Plaintiff then appealed to the Court of Appeals, which affirmed. 214 Mich App 111; 542 NW2d 310 (1995). We granted plaintiffs application for leave to appeal. 454 Mich 906 (1997). n This Court is asked to review the trial court’s grant of defendant’s motion for summary disposition under MCR 2.116(C)(10). In deciding a motion under sub-rule (C)(10), the trial court views affidavits and other documentary evidence in the light most favorable to the nonmoving party. Shallal v Catholic Social Services of Wayne Co, 455 Mich 604, 610; 566 NW2d 571 (1997). Our review is de novo. Groncki v Detroit Edison Co, 453 Mich 644, 649; 557 NW2d 289 (1996). See Weymers v Khera, 454 Mich 639; 563 NW2d 647 (1997). m A Plaintiff sues under § 2 of the Whistleblowers’ Protection Act. It provides: An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action. [MCL 15.362; MSA 17.428(2).] When construing a statute, we begin by recognizing that “[w]here the legislative intent is clearly expressed, it is entitled to the utmost respect.” People v Waterman, 137 Mich App 429, 432-433; 358 NW2d 602 (1984). We explained the process recently; The cardinal rule of all statutory construction is to identify and give effect to the intent of the Legislature. The first step in discerning intent is to examine the language of the statute in question. We read the language according to its ordinary and generally accepted meaning. Judicial construction is authorized only where it lends itself to more than one interpretation. We also consider that remedial statutes, such as the Whistleblowers’ Protection Act, are to be liberally construed, favoring the persons the Legislature intended to benefit. [Shallol, supra at 611 (citations omitted).] B Plaintiff alleges that he was fired because dsi believed it was he who blew the whistle. Accordingly, plaintiff is a “perceived whistleblower” and points to an opinion of this Court providing protection under the Michigan Handicappers’ Civil Rights Act to those who are “perceived to be handicapped.” Sanchez v Lagoudakis, 440 Mich 496, 503; 486 NW2d 657 (1992). Plaintiff argues that, because the employer has undertaken the action the statute appears to forbid, firing an employee believed to have reported a violation, the act should punish the employer. Plaintiffs argumerit requires us to examine the Whistleblowers’ Protection Act. Recently, we recognized that a plaintiff must establish three elements to make a prima facie case under § 2 of the WPA. Shallal, supra at 610. The plaintiff must show that (1) he was engaged in protected activity as defined by the act, (2) the defendant discharged him, and (3) a causal connection exists between the protected activity and the discharge. Id. “Protected activity” under the WPA consists of (1) reporting to a public body a violation of a law, regulation, or rule; (2) being about to report such a violation to a public body; or (3) being asked by a public body to participate in an investigation. MCL 15.362; MSA 17.428(2). Plaintiff has not alleged that he reported a violation of the law to a public body or that he was about to report such a violation. Nor does plaintiff allege that he was requested to participate in a public investigation of any kind. In fact, plaintiff has made clear that he was not the person who reported the employer’s violation to the mdot. The plain language of the statute does not protect plaintiff. The ordinary and generally accepted meaning of the words “reports,” “about to report,” and “requested by a public body to participate in an investigation” do not encompass plaintiff’s actions in the present case. The words are clear and do not readily lend themselves to more than one interpretation. As we noted in Shallal, “the implication is that the language of the Whistleblowers’ Protection Act intentionally reduces employee protection the more removed the employee is from reporting to a public body.” Id. at 613 (citation omitted). There is no sliding scale in the wpa based on the employer’s intent. Regardless of the quantum of proof of the employer’s ill will, the act requires an employee to prove he was engaged in protected activity. The statute does not provide that the more obvious the employer’s bad behavior, the less the plaintiff is required to do. In fact, almost the opposite is true. This is evident from the requirement that an employee seeking protection under the “about to report” language of the act prove his intent by clear and convincing evidence. See MCL 15.363(4); MSA 17.428(3)(4). As we noted above, the statute reflects the intent of the Legislature that the further an employee is from reporting, the harder it is for an employee to prove a violation under the wpa. c Plaintiff points to this Court’s opinion in Sanchez v Lagoudakis, supra. In that case, the Court read language in the Michigan Handicappers’ Civil Rights Act (mhcra) similar to § 2 of the wpa to protect a person who was perceived to have a handicap. However, plaintiff’s comparison fails, because none of the factors that led the Court to interpret the mhcra to protect one who is regarded as having a handicap demands the same result under the Whistleblowers’ Protection Act. First, the Michigan Civil Rights Commission, the agency charged with interpreting the meaning of the mhcra on a daily basis, determined that the act protected one regarded as having a handicap. Id. at 503. Here, there is no claim that any state agency has determined that the statute should be read to protect “perceived whistleblowers.” Second, the Sanchez Court reviewed decisions from many other states, finding that “[c]ourts in other jurisdictions with discrimination laws similar to the act have consistently construed their statutes to protect persons perceived to be handicapped.” Id. Here, there is no overwhelming support for the definitional change in other jurisdictions, as there was under the MHCRA. In the whistleblower context, “laws similar to the [WPA]” are sufficiently different definitionally to make comparison between them on this issue ineffective. In the handicappers’ arena, the United States Supreme Court and many states determined that one regarded as having a handicap should be protected. Here, Michigan’s WPA gives broader protection than do most other states, so there is little with which to compare it. Plaintiff points to this Court’s majority opinion in Shallal, supra, which analogized between qui tarn actions under the False Claims Act and the wpa. Plaintiff asserts that he would recover in a qui tarn action under the False Claims Act. The argument fails. First, the analogy to the qui tarn provisions was not necessary to the Court’s opinion in Shallal. Second, the definition of protected activity under qui tarn is very different from that under the wpa. Under the qui tarn provision, one could engage in protected activity by simply observing the wrongful activity and confronting the wrongdoer. See Shallal, supra at 618. There is no corresponding “confrontation” protection under the wpa. Instead, to come under the protection of the statute, a worker must engage in protected activity. Because the definitions of the two statutes differ on this specific issue, the analogy fails. Third and most importantly, the Court noted that the Legislature had amended the mhcra in 1990, changing the definition of “handicap” to include “ ‘[b]eing regarded as having’ a handicap.” Sanchez at 506. On that basis, we held that denying protection to one perceived to have a handicap would go against the purpose and policy of that act. Here, there is no legislative amendment of the act to clarify the Legislature’s meaning. Therefore, we determine the intent of the Legislature in enacting the bill from the words of the statute itself. The wpa, it appears, represents the Legislature’s judgment that one may best combat employer corruption and criminally irresponsible behavior by protecting employees who report that behavior to a public body. Protection under the act extends only to those employees engaged in protected activity as defined by the act, and plaintiff does not qualify for that protection. [T]he Michigan Legislature has seen fit to require either actual reporting or proof by clear and convincing evidence that an employee was “about to report.” It has refused to bring within the protection of the act an employee who discusses reporting and who approaches the employer and threatens to report, but takes no further action. Perhaps this is regrettable and should be remedied. However, the lawmaking that is appropriate is legislative, not judicial. [Shallal, supra at 626-627 (Kelly, J., concurring in part and dissenting in part).] The Legislature has chosen to define the group of persons covered by the act. We conclude that denying protection to plaintiff does not go against the legislative intent behind the enactment of the wpa. D Today’s opinion is consistent with recent decisions under the wpa. In Dickson v Oakland Univ, the Court of Appeals held that the WPA did not protect an employee who reported a violation by a co-worker. The panel held that the act extended only to reported violations of the employer. This Court disagreed with Dickson in Dudewicz v Norris Schmid, Inc. In Dudewicz, the employee had reported a violation of the law by a co-worker. This Court held the wpa protected an employee who reported violations of his fellow employees. More important for our discussion today is the Court’s understanding in Dudewicz that the wpa would not apply to protect one who does not engage in protected activity. In distinguishing the results in Dickson and Dudewicz, we stated: “Forgetting for a moment who broke the law, the plaintiff in Dickson reported the violation only to his employer, not to a public body within the meaning of the wpa. On these facts, the panel correctly found that the wpa was inapplicable.” Dudewicz, supra at 77, n 4. Although dicta, this reasoning supports the Court’s conclusion today that the wpa does not apply to protect plaintiff. Like the plaintiff in Dickson, plaintiff here has not reported to a public body, nor does he allege that he was about to report. Here, as in Dickson, the wpa is inapplicable. This Court has twice considered the wpa in the last year. First, in Dolan v Continental Airlines, the Court followed Dudewicz and held that the act protected an employee who reported a suspected violation by someone who was neither her employer nor a co-worker. Id. at 381. The plaintiff in Dolan was a ticket agent for Continental Airlines. Id. at 374. She was asked to report to the federal Drug Enforcement Agency passengers fitting a drug courier profile. Id. at 375. She reported two such persons. Continental then issued a memo forbidding employees from reporting without its permission. Id. After the memo was disseminated, the plaintiff called the dea again, and Continental fired her. Id. at 375-376. She alleged that, when she placed the postmemo call to the dea, it was merely to inquire about her reward. Id. at 376. In Dolan, we held that “[a] plain reading of the wpa reveals that employees who report violations or suspected violations of the law to a public body are entitled to protection under the act.” Id. at 381. We held that the plaintiff there could recover even though the violation she reported was not that of her employer or of a co-worker. Id. at 382. The act was broad enough to cover violations of the law by a third person. Finally, in Shallal, supra, an employee alleged that she was “about to report” and had expressly declared it to her employer. A majority held that, inter alia, the plaintiffs acts could provide sufficient evidence of intent for a reasonable juror to find by clear and convincing evidence that she was “about to report.” 455 Mich 619-620. Of course, the present case is easily distinguishable because, unlike the plaintiff in Shallal, plaintiff here does not allege that he was about to report. The portion of our opinion in Shallal relevant for purposes of the present case relates to the majority’s understanding of the limits of the WPA’s protection. The majority in Shallal noted that “[a]n employee is engaged in protected activity under the Whistleblowers’ Protection Act who has reported, or is about to report, a suspected violation of law to a public body.” Id. at 610. Because the plaintiff there could not prove that she actually reported, her only other chance for protection under the statute was to qualify under the second option. “Hence, Shallal had the burden of establishing that a question of fact existed regarding whether she was ‘about to’ report [a] violation to a public body.” Id. at 611. Implicit in the majority’s statement is the conclusion that the plaintiff’s only other means for protection under the wpa was to prove she was “about to report.” The majority understood that protection under the wpa was limited, and recognized one of the limitations the Legislature placed on the scope of the wpa. The Legislature could have defined protected activity to include confrontation, as in the False Claims Act. It could have allowed employees to recover without a showing of reporting or being about to report. It did neither. Instead, the Legislature defined protected activity as reporting a violation or being about to report one. The Legislature can and may rewrite the statute, but we will not do so. iv The wpa, as a remedial statute, is to be liberally construed to favor the persons the Legislature intended to benefit. Shallal, supra at 611. The Whistleblowers’ Protection Act was intended to benefit those employees engaged in “protected activity” as defined by the act. The act protects those who report or are about to report violations of a law, regulation, or rule to a public body. It protects those requested by a public body to participate in an investigation. Because one who engagés in no “protected activity” under the act is not intended to benefit from its operation, our decision does not affect the remedial nature of the act. Instead, we reaffirm the broad protection given to those employees who engage in protected activity, and merely recognize that not all employees are covered. v Plaintiff failed to state a prima facie case under the Whistleblowers’ Protection Act because he could not show facts from which to conclude that he was engaged in a protected activity. He did not allege that he reported a violation of a law, regulation, or rule, or that he attempted to report. We decline to extend coverage to one who is perceived to be a whistleblower, but who has not otherwise engaged in protected activity as defined by the act. We affirm the decision of the Court of Appeals. Mallett, C.J., and Brickley, Cavanagh, Boyle, Weaver, and Taylor, JJ., concurred with Kelly, J. MCL 15.361 et seq.; MSA 17.428(1) et seq. MCL 37.1101 et seq.', MSA 3.550(101) et seq. At the time of the case, subsection 202(l)(b) provided that an employer shah not "[discharge or otherwise discriminate against an individual . . . because of a handicap . . . MCL 37.1202(l)(b); MSA 3.550(202)(l)(b). Sanchez, supra at 502. 31 USC 3730. See Shallal, supra at 616-619. 171 Mich App 68; 429 NW2d 640 (1988). 443 Mich 68; 503 NW2d 645 (1993). 454 Mich 373; 563 NW2d 23 (1997). It is undisputed that the violation reported here was sufficient to trigger the protection of the act. As in Dolan, we decline to decide what connection between the violation and the employment, if any, is required. Dolan, supra at 382. We express no opinion on the meaning of the statutory language regarding being “requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action.”