Retaliation Cases

EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Appellant/Respondent v. WILLIAM PEACE, Appellee/Petitioner EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, Appellee/Respondent v. WILLIAM H. PEACE, III, Appellant/Petitioner No. COA95-678 No. COA94-1283 (Filed 2 December 1997) 1. Administrative Law and Procedure § 9 (NCI4th); Labor and Employment § 120 (NCI4th)— Title VII retaliatory discharge claim — jurisdiction of OAH The Office of Administrative Hearings (OAH) had jurisdiction to hear an ESC employee’s claim for retaliatory discharge in violation of Title VII of the Civil Rights Act of 1964 and did not act ultra vires in adjudicating such claim. The OAH does not function as a court in violation of N.C. Const, art. IV, § 1 when making final agency decisions on Title VII charges deferred from the Equal Employment Opportunity Commission. N.C.G.S. § 7A-769. 2. Labor and Employment § 121 (NCI4th)— Title VII claim— burden of proof Plaintiff carries the initial burden of proof in Title VII retaliatory discharge cases. In order to make a prima facie showing of a Title VII retaliatory discharge, plaintiff must show that (1) he engaged in protected activity, (2) the employer took adverse employment action against plaintiff, and (3) a but for causal connection existed between the protected activity and the adverse action. If plaintiff presents a prima facie case of retaliation, defendant employer must articulate a legitimate nondiscriminatory reason for its action. If defendant employer shows a legitimate reason that overcomes the presumption of discrimination from plaintiffs prima facie showing, plaintiff then has to show that the reason was only a pretext for the retaliatory action. 3. Labor and Employment § 121 (NCI4th)— Title VII action— burden of proof The Office of Administrative Hearings erred in placing the initial burden on defendant employer to show an absence of retaliatory purpose in a Title VII retaliatory discharge case prior to plaintiff employee’s prima facie showing of a retaliatory discharge. 4. Public Officers and Employees § 66 (NCI4th)— state employee — continued employment — property interest— due process A state employee had a property interest in continued employment created by N.C.G.S. § 126-35 and protected by the Due Process Clause of the United States Constitution. 5. Public Officers and Employees § 66 (NCI4th)— state employee — dismissal for just cause — burden of proof The employer had the initial burden to produce evidence that a state employee was dismissed for “just cause,” and the employee must then come forward with evidence that his or her dismissal was without “just cause.” 6. Public Officers and Employees § 66 (NCI4th)— state employee — dismissal for just cause — burden on employee— due process Placing the burden of proof on the state employee in determining whether the employee was dismissed for “just cause” within the purview of N.C.G.S. § 126-35 does not pose a substantial threat of erroneous termination and thus does not violate due process. Judge Greene dissenting in part. Appeal by Employment Security Commission from order entered 12 August 1994 in case 93 CVS 10599 by Judge Narley L. Cashwell in Wake County Superior Court, affirming a final order of the Office of Administrative Hearings reinstating Peace as an Equal Employment Opportunity Commission Officer based on retaliatory discharge. Appeal by Peace from an order entered 13 March 1995 in case 94 CVS 11517 by Judge Wiley F. Bowen in Wake County Superior Court, which order concluded that “just cause” existed for terminating Peace and reversed the State Personnel Commission’s decision that Peace be reinstated. Both Peace appeals were thereafter consolidated and were originally heard in the Court of Appeals on 7 May 1996. See Employment Security Comm. v. Peace, 122 N.C. App. 313, 740 S.E.2d 63 (1996), disc, review allowed and remanded, 345 N.C. 640, 483 S.E.2d 706 (1997). Heard on grant of discretionary review in the Supreme Court on 11 June 1996. The cases sub judice were then remanded to this Court for reconsideration in light of the Supreme Court’s ruling in Soles v. The City of Raleigh Civil Service Comm., 345 N.C. 443, 480 S.E.2d 685, reh’g denied, 345 N.C. 761, 485 S.E.2d 299 (1997). Heard on remand in the Court of Appeals on 1 April 1997. Attorney General Michael F. Easley, by Chief Deputy Attorney General Andrew A. Vanore, Jr., and Assistant Attorney General Valerie Bateman, for North Carolina Department of Justice; and Chief Counsel T.S. Whitaker and Attorney Fred R. Gamin, for North Carolina Employment Security Commission, respondent appellant (No. COA94-1283), respondent appellee (No. COA95-678). Hilliard & Jones, by Thomas Hilliard, III, for petitioner appellant (No. COA95-678). William H. Peace, III, petitioner appellee (No. COA94-1283), pro se. SMITH, Judge. On 15 October 1985, William H. Peace, III (“Peace”), began his employment with respondent Employment Security Commission (“ESC”) as its Equal Employment Opportunity (“EEO”) officer. On 10 April 1991, an incident between Peace and a coworker ultimately led to Peace’s dismissal for alleged unacceptable personal conduct. The State Personnel Commission (“SPC”) adopted, inter alia, the following facts as recommended by the Administrative Law Judge (“ALJ”): During his 1985 orientation, Peace was informed that by paying $2.00 per month to the Personnel Office petty fund, he would be entitled to obtain an occasional cup of coffee from a pot located in the personnel file room. He paid the dues; however, his usual practice was to go to the agency’s cafeteria for morning coffee. Prior to 10 April 1991, no one informed Peace that his payment into the petty fund did not entitle him to obtain coffee from the personnel file room. Over the years, on an irregular basis, he obtained coffee from the petty fund coffee pot. At a staff meeting which Peace did not attend, a coffee fund of $3.40 per month was established for any interested participants. Peace was not made aware of a separate coffee fund, nor was he asked to join. On 10 April 1991, Peace got a cup of coffee from the personnel file room. As Peace was leaving the office with the coffee, an exchange took place with Ms. Catherine High, a supervisor in the personnel office, in which she told him that he should pay her for the coffee. Peace refused. Ms. High called Peace “despicable” and told him she hoped he was fired. She told Peace that if he got another cup of coffee and did not pay her, she would get a cup of coffee and scald him with it. Ms. High informed her supervisor and Mr. Gene Baker, who became Peace’s immediate supervisor as of 22 April 1991, of the incident. On the afternoon of 10 April 1991, Peace contacted the magistrate’s office regarding the incident with Ms. High. Peace was informed that, if he believed Ms. High was capable of carrying out her threat, he should take out a warrant against her. Peace spoke with Ms. High following his conversation with the magistrate’s office, at which time he gave her an opportunity to apologize. Ms. High did not apologize. Thereafter, Peace had the magistrate’s office issue summons against Ms. High charging her with communicating a threat. The charge was dismissed by the trial court as frivolous and Peace was ordered to pay court costs. Peace was not contacted by his superiors regarding the incident until he received a predismissal conference memorandum on 5 June 1991, from Gene Baker, his immediate supervisor. Following a 6 June dismissal conference, Peace was discharged for unacceptable personal conduct. In a 7 June letter, Ann Q. Duncan, Chairperson of ESC, explained that Peace was being dismissed for unacceptable conduct, including taking the coffee without paying Catherine High and filing criminal charges against High, which were found to be frivolous. Such conduct, said Duncan, caused Peace’s reputation as the EEO officer at ESC to be called into question and his respect among fellow employees diminished. Peace filed two appeals of the ESC decision to discharge him. The bases of his appeals were that ESC lacked “just cause” to dismiss him pursuant to N.C. Gen. Stat. § 126-35 (1991), and that he had been discharged in retaliation for having filed discrimination charges against ESC in 1989, for violation of Title VII, Section 704(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3 (1988). Peace did not appeal upon a state claim of retaliatory discharge pursuant to N.C. Gen. Stat. § 126-36 (1987). Pursuant to N.C. Gen. Stat. § 7A-759 (1987), Peace’s charge of retaliatory discharge was investigated by the Civil Rights Division of the Office of Administrative Hearings. Through its investigation, the Office of Administrative Hearings (“OAH”) found reasonable cause to believe that a violation of Title VII had occurred. OAH presented Peace with three options. He could: (1) receive a right to sue letter; (2) commence a contested case hearing in OAH; or (3) do nothing. Peace chose to commence a contested case hearing with regard to the retaliatory discharge claim. He also filed a petition for contested case hearing pursuant to N.C. Gen. Stat. § 126-35 on his lack of “just cause” claim. Pursuant to an order of the Chief Administrative Law Judge of OAH, both cases were consolidated for hearing. A hearing was conducted by ALJ Sammie Chess on 12-14 July 1993. Pursuant to N.C. Gen. Stat. § 7A-759(e), an ALJ decision on the merits of a retaliatory discharge claim is a final agency decision binding on the parties absent a petition for judicial review. See N.C. Gen. Stat. § 150B-45 (1987). However, with regard to the N.C. Gen. Stat. § 126-35 lack of “just cause” claim, an ALJ issues a recommended decision to SPC, which then issues a final agency decision also subject to judicial review. N.C. Gen. Stat. § 126-37 (1991). AU Chess issued two separate decisions following the hearing. In his recommended decision to SPC, AU Chess found that ESC had the burden of proving it had “just cause” to discharge petitioner. AU Chess concluded that ESC had failed to meet that burden and recommended Peace be reinstated. In his final decision regarding the retaliatory discharge claim pursuant to Title VII, AU Chess also placed the burden of proof on ESC and concluded that Peace’s discharge violated Section 704(a) of Title VII of the Civil Rights Act of 1964, in that his dismissal was retaliatory. Pursuant to that holding, ALJ Chess ordered petitioner reinstated. The ALJ’s recommended decision reinstating Peace for lack of “just cause” was adopted, with slight modification, by SPC. ESC appealed SPC’s final decision and the ALJ’s final decision separately, pursuant to N.C. Gen. Stat. § 150B-50 (1987). In a 13 August 1994 order, Judge Narley L. Cashwell upheld the final agency decision of the ALJ with regard to the retaliatory discharge claim in which Peace was ordered reinstated. In a 13 March 1995 order, Judge Wiley F. Bowen reversed the final decision of SPC and dismissed Peace’s petition challenging his dismissal on the “just cause” claim. ESC appeals Judge Cashwell’s order affirming the retaliatory discharge claim. Peace appeals Judge Bowen’s order reversing the SPC decision to reinstate him. The proper standard of review for the superior court “ ‘depends upon the particular issues presented on appeal.’ ” Act-Up Triangle v. Commission for Health Services of the State of North Carolina, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (citation omitted). If petitioner asks: “ ‘(1) whether the agency’s decision was supported by the evidence or (2) whether the decision was arbitrary or capricious, then the reviewing court must apply the “whole record” test.’ ” Id. (quoting In re Appeal by McCrary, 112 N.C. App. 161, 165, 435 S.E.2d 359, 363 (1993). Under the whole record test, a reviewing court is required to examine all competent evidence in order to determine whether the agency decision is supported by substantial evidence. Id. The definition of substantial evidence includes “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Id. at 707, 483 S.E.2d at 393 (citation omitted). Furthermore, in making arbitrary or capricious determinations concerning the agency decision, the reviewing court “ ‘does not have authority to override decisions within agency discretion when that discretion is exercised in good faith and in accordance with law.’ ” Id. at 707, 483 S.E.2d at 393 (citation omitted). Appellate review of a superior court order concerning an agency decision requires an examination of the trial court’s order for any errors of law. Id. at 706, 483 S.E.2d at 392. The two tasks involved include: “ ‘(1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.’ ” Id. (citation omitted). The whole record test allows a reviewing court to determine whether an administrative decision has a rational basis in the evidence. Id. at 706-07, 483 S.E.2d at 392. As the reviewing court in the “just cause” case, we must take into account the specialized expertise of the staff of an administrative agency; in this case, the SPC. See High Rock Lake Assoc. v. Environmental Management Comm., 51 N.C. App. 275, 279, 276 S.E.2d 472, 475 (1981). While there is evidence in the record contrary to the Commission’s findings, neither this Court nor the superior court may substitute its judgment for that of the agency. After reviewing the record, we find substantial evidence to support the State Personnel Commission’s findings of fact. At the outset, we note that the actions of both Peace and High were inappropriate and childlike. As a result of both parties’ improper behavior and subsequent refusals to resolve their differences amicably as adults, this matter has involved years of litigation and, as yet, remains unresolved. If there was ever a case that could have been resolved by the parties and participants in an employment controversy and was not, then this must be that case. I. Title VII Retaliatory Discharge Claim A. The Jurisdiction of OAH in Title VII Cases As a preliminary matter, we address ESC’s argument that the trial court erred in failing to find OAH did not have jurisdiction to hear Peace’s Title VII retaliatory discharge claim, and also in failing to find OAH acted ultra vires by adjudicating such claim. ESC contends that only courts, and not administrative agencies, have jurisdiction to hear Title VII cases, and if OAH is authorized to hear Title VII claims, then it is functioning as a court in violation of N.C. Const. art. IV, § 1. N.C. Const. art. IV, § 1 provides: The judicial power of the State shall, except as provided in Section 3 of this Article, be vested in a Court for the Trial of Impeachments and in a General Court of Justice. The General Assembly shall have no power to deprive the judicial department of any power or jurisdiction that rightfully pertains to it as a co-ordinate department of the government, nor shall it establish or authorize any courts other than as permitted by this Article. N.C. Const. art. IV, § 3 permits the General Assembly to vest in administrative agencies established pursuant to N.C. Const. art. Ill, § 11 as part of the executive branch, such judicial powers as are reasonably necessary to accomplish the purposes for which the agencies were created, and also directs that appeals from such agencies shall be to the General Court of Justice. Title VII authorizes the Equal Employment Opportunity Commission (“EEOC”) to enter into worksharing agreements with state and local agencies charged with the administration of state fair employment practices laws in order to fulfill its duty of preventing unlawful employment practices. 42 U.S.C. 2000e-8(b) (1988). When an alleged unlawful employment practice occurs in a state that has a law prohibiting the alleged practice and has established a state or local authority to grant or seek relief from such practice, Title VII provides that “ ‘no charge may be filed [with the EEOC]... by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated.’ ” Davis v. North Carolina Dept. of Correction, 48 F.3d 134, 137 (4th Cir. 1995) (quoting 42 U.S.C. 2000e-5(c) (1988)). Thus, where state law protects against the kind of discrimination alleged, Title VII requires that plaintiffs resort to state and local remedies before seeking relief under federal law. Id. N.C. Gen. Stat § 7A-759 designates OAH as the State’s deferral agency for cases deferred by the EEOC as provided in 42 U.S.C. 2000e-5. N.C. Gen. Stat. § 7A-759(e) provides that orders entered by an ALJ after a contested case hearing on the merits of a deferred charge is a final agency decision binding on the parties, and that an ALJ may order whatever remedial action is necessary to give full relief consistent with the requirements of federal statutes and regulations. However, an ALJ’s decision with respect to a deferred charge is not a judicial decision, but rather a final agency decision. This becomes apparent upon an evaluation of the rationale for the creation of OAH. According to the Administrative Procedure Act as originally adopted, 1973 N.C. Sess. Laws ch. 1331, § 150-30(a), the presiding officers for administrative hearings were designated by either an agency itself or by statute. In an effort to obtain nonbiased hearing officers with specialized knowledge of the issues presented, the General Assembly created OAH, an independent, quasi-judicial agency in order to “provide a source of independent hearing officers to preside in administrative cases and thereby prevent the commingling of legislative, executive, and judicial functions in the administrative process.” N.C. Gen. Stat. § 7A-750 (1985). Thus, because OAH was established as part of the executive branch pursuant to N.C. Const. art. III, § 11, it is not a court, and does not function as such when making final agency decisions on charges deferred from EEOC. See also Utilities Commission v. Finishing Plant, 264 N.C. 416, 422, 142 S.E.2d 8, 12 (1965) (“Administrative agencies . . . are distinguished from courts. They are not constituent parts of the General Court of Justice.”) To support its argument that only courts, and not administrative agencies, have the authority to hear Title VII claims, ESC cites footnote four in Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 108 L. Ed. 2d 834 (1990). This footnote points out that Congress opted for judicial, rather than administrative enforcement of Title VII claims. Id. at 825, 108 L. Ed. 2d 840 n.4. However, this footnote precisely states Congress “preferred that the ultimate determination of discrimination rest with the Federal judiciary,” and not EEOC. Id. The Court does not attempt to say that state administrative agencies have no authority to hear Title VII claims. In fact, the Court, when discussing the 60-day delay found in 42 U.S.C. 2000e-5(c), says that such delay “is designed to give state administrative agencies an opportunity to invoke state rules of law.” Yellow Freight System, Inc., 494 U.S. at 825, 108 L. Ed. 2d at 841. In light of this language and the plain language of Title VII, we conclude the trial court did not err in failing to find that OAH did not have jurisdiction to hear Peace’s Title VII claim, or that OAH acted ultra vires by adjudicating such claim. A. Burden of Proof in Title VII Cases According to the North Carolina Supreme Court, the claimant carries the initial burden of proof in Title VII cases. See North Carolina Department of Correction v. Gibson, 308 N.C. 131, 137, 301 S.E.2d 78, 87 (1983). In addition, a prima facie showing of retaliatory discharge requires a plaintiff to show: (1) he engaged in some protected activity, such as filing an EEO complaint; (2) the employer took adverse employment action aga

DRIVER v HANLEY (AFTER REMAND) Docket No. 193047. Submitted June 11, 1997, at Grand Rapids. Decided November 25, 1997, at 9:10 am. Leave to appeal sought. Maria E. Driver brought an action in the Benzie Circuit Court against William and Julia Hanley, alleging violation of the Whistleblowers’ Protection Act (wpa), MCL 15.362; MSA 17.428(2), retaliatory discharge in violation of public policy, and breach of an employment contract relating to the termination of her employment after she complained about the defendants to the United States Department of Labor. The court, James M. Batzer, J., removed the action to the 85th District Court after mediation resulted in an evaluation in the plaintiff’s favor at less than the circuit court’s jurisdictional limit. The district court, Brent V. Danielson, J., entered a judgment on a jury verdict for the plaintiff on all counts. The circuit court affirmed the judgment with respect to the wpa claim, but reversed with respect to the claims of public policy violation and breach of contract, ruling those claims to be preempted by the wpa. On appeal by the defendants on leave granted and a cross appeal by the plaintiff, the Court of Appeals, Taylor, P.J., and Mackenzie and M. J. Matuzak, JJ., believing that the plaintiff had made her complaint to the Michigan Department of Labor rather than to the United States Department of Labor, affirmed the circuit court’s reversal of the district court judgment with respect to the claims of public policy violation and breach of contract, holding that the wpa is the exclusive remedy for an employee whose employment is terminated in retaliation for reporting an employer’s violation of law. The Court of Appeals, however, reversed the circuit court’s affirmance of the district court judgment with respect to the wpa claim, holding that an action under the wpa is within the exclusive jurisdiction of the circuit court. 207 Mich App 13 (1994). The circuit court thereafter granted the defendants’ motion for summary disposition of the wpa claim on the ground that the wpa offers no protection to employees discharged for reporting to federal agencies. The circuit court also denied the plaintiffs motion for relief from the original circuit court judgment in the form of reinstatement of the district court judgment with respect to the claims of public policy violation and breach of contract. The plaintiff appealed. After remand, the Court of Appeals held-. 1. The defendants were not judicially estopped from asserting on remand to the circuit court that the wpa does not apply to this case. In the proceedings before remand to the circuit court, the defendants never asserted unequivocally that the wpa applies to this case; instead, the defendants merely argued that because the plaintiff had alleged a violation of the wpa, she could not, as a matter of law, allege a cumulative claim of breach of contract. 2. The circuit court abused its discretion by denying the plaintiff’s motion for relief from the original circuit court judgment in the form of reinstatement of the district court judgment with respect to the claim of breach of contract. Reinstatement was denied on the basis that the wpa provided the plaintiffs exclusive remedy. However, because the wpa provided no remedy, it could not have provided the plaintiff exclusive remedy. The doctrine of law of the case does not bind the circuit court or the Court of Appeals to the holding in the prior opinion of the Court of Appeals that the wpa represents the plaintiff’s exclusive remedy. Application of that doctrine requires that the facts remain materially the same. Here, in the first appeal of this case to the Court of Appeals, the Court of Appeals incorrectly believed that the plaintiff had made her complaint about the defendants to the Michigan Department of Labor. The plaintiff is not entitled to reinstatement of the district court judgment with respect to the claim of violation of public policy because that claim was not dismissed by the circuit court on the basis of the purported exclusivity of the wpa. On remand, the circuit court must reinstate the district court judgment in favor of the plaintiff with respect to the claim of breach of contract only. Affirmed in part, reversed in part, and remanded. Cunningham Davison Rogers & Alward (by William M. Davison), for the plaintiff. Michael E. Hall, for the defendants. AFTER REMAND Before: Reilly, P.J., and Hood and Murphy, JJ. Per Curiam. Plaintiff appeals as of right from an order granting defendants’ motion for summary disposition of plaintiff’s claim under § 2 of the Whistleblowers’ Protection Act (wpa), MCL 15.362; MSA 17.428(2). Plaintiff also contests the circuit court’s subsequent order denying plaintiff’s motion for reinstatement of a prior district court judgment. We affirm the circuit court’s order granting defendants’ motion for summary disposition. We reverse, in part, the circuit court’s order denying plaintiff’s motion seeking reinstatement of the district court judgment. This case is before this Court for the second time. In 1985, plaintiff was discharged from her employment with defendants. The facts underlying plaintiff’s discharge were set forth in this Court’s first opinion. See Driver v Hanley, 207 Mich App 13, 14-15; 523 NW2d 815 (1994). As noted in that opinion, plaintiff filed a complaint in the circuit court against defendants alleging (1) a violation of the wpa, (2) a violation of the public policy against retaliatory discharge, and (3) a breach of her employment contract. Because the parties received a mediation evaluation below the jurisdictional limit, the case was removed to the district court, where a jury, in a special verdict, found in favor of plaintiff on each count and awarded $24,800 in damages. On appeal, the circuit court (1) affirmed the district court verdict on plaintiff’s wpa count, (2) reversed the verdict on her public policy count on the ground that plaintiff failed to exhaust her administrative remedies, and (3) reversed the verdict on her breach of contract count on the ground that it was preempted by the wpa. Defendants then appealed to this Court on leave granted, and plaintiff cross appealed. Defendants argued that the district court lacked subject-matter jurisdiction over plaintiff’s wpa claim on the ground that exclusive jurisdiction was within the circuit court. This Court agreed and reversed the circuit court’s ruling with respect to plaintiffs wpa claim. Driver, supra at 16-18. In her cross appeal, plaintiff argued that the circuit court erred in reversing the verdict on her breach of contract count. This Court disagreed and affirmed the circuit court verdict with respect to plaintiff’s breach of contract count, holding that the wpa provided her exclusive remedy. Id. at 18. After remand from this Court, plaintiff was left with only a wpa claim pending in the circuit court. Defendants moved for summary disposition pursuant to MCR 2.116(C)(8) and (C)(10), arguing that plaintiff could not sustain a successful claim under the WPA under the facts as alleged and developed. In particular, defendants argued that plaintiff’s alleged report to the United States Department of Labor (usdl) was insufficient to support plaintiff’s claim, because the usdl did not constitute a “public body” within the meaning of the wpa. According to defendants, the wpa did not offer protection to employees discharged for reporting to federal agencies. The circuit court agreed and granted defendants’ motion for summary disposition. Plaintiff then moved for reinstatement of the original district court judgment, arguing that the dismissal of her other two claims had been predicated solely on the existence of a valid wpa claim against defendants. The circuit court denied plaintiff’s motion, reasoning that the wpa precluded plaintiff’s public policy and breach of contract claims despite being inapplicable to plaintiffs case. Plaintiff first contends that the circuit court erred in dismissing her claim under the wpa. A trial court’s determination regarding a motion for summary disposition is reviewed de novo. Atkinson v Detroit, 222 Mich App 7, 9; 564 NW2d 473 (1997). Here, the circuit court did not specify which subsection of MCR 2.116(C) it was relying on when it granted defendants’ motion for summary disposition. However, because it relied on matters outside the pleadings, we will construe the motion as having been granted pursuant to MCR 2.116(C)(10). Osman v Summer Green Lawn Care, Inc, 209 Mich App 703, 705; 532 NW2d 186 (1995). A motion for summary disposition may be granted pursuant to MCR 2.116(C)(10) when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Atkinson, supra at 9. The moving party is entitled to judgment as a matter of law if the claim suffers a deficiency that cannot be overcome. Id. Plaintiff does not argue that the circuit court erred substantively in dismissing her wpa claim on the ground that the USDL was not a “public body.” Accordingly, we will not address the issue whether an agency of the federal government constitutes a “public body” for purposes of the WPA. Radtke v Everett, 442 Mich 368, 397-398, & n 48; 501 NW2d 155 (1993). Instead, plaintiff argues only that defendants should have been estopped from asserting that the WPA was inapplicable to plaintiff’s case. In Michigan, the doctrine of judicial estoppel prohibits a party who has successfully and unequivocally asserted a position in a prior proceeding from asserting a wholly inconsistent position in a subsequent proceeding. Pashke v Retool Industries, 445 Mich 502, 509-510; 519 NW2d 441 (1994). The fact that the prior and subsequent proceedings in this case occurred within the same litigation is not a bar to the application of the doctrine. See Detroit Edison Co v Public Service Comm, 221 Mich App 370, 382; 562 NW2d 224 (1997). Here, defendants successfully argued to the circuit court (on appeal from the district court) and to this Court that the WPA provided plaintiffs exclusive remedy. Then, on remand to the circuit court, defendants argued that the wpa was inapplicable to the specific facts of plaintiffs case. Plaintiff contends that defendants’ “new” position, allegedly taken for the first time on remand, was wholly inconsistent with defendants’ prior position. We disagree. Contrary to plaintiff’s assertion, defendants’ position on remand regarding the applicability of the WPA to the specific facts of plaintiff’s case did not conflict with their prior arguments and was not a new position. Defendants first raised both arguments in their original (and ultimately unsuccessful) motions for summary disposition filed in 1986. Moreover, at no time did defendants ever assert, unequivocally, that the wpa was applicable to the specific facts of plaintiffs case. After the initial district court judgment, defendants’ arguments did not address the applicability of the wpa to the specific facts of plaintiff’s case. Instead, defendants merely argued that, because plaintiff had alleged a violation of the wpa, she could not, as a matter of law, allege a cumulative breach of contract claim. Finally, we note that plaintiff failed to raise the issue of judicial estop-pel before the circuit court and therefore failed to preserve the issue for appellate review. Chilingirian v City of Fraser, 194 Mich App 65, 70-71; 486 NW2d 347 (1992), remanded 442 Mich 874 (1993), on remand 200 Mich App 198; 504 NW2d 1 (1993). For these reasons, we hold that the circuit court did not err in allowing defendants to argue that the WPA was inapplicable to the specific facts of plaintiff’s case. See Pashke, supra at 509-510. Plaintiff next argues, in the alternative, that because the circuit court dismissed her WPA claim, which had been deemed her “exclusive remedy,” it should have reinstated the judgment of the district court with respect to her public policy and breach of contract claims. A trial court on remand possesses the authority to take any action that is consistent with the opinion of the appellate court. VanderWall v Midkiff 186 Mich App 191, 196; 463 NW2d 219 (1990). In this case, it is apparent from the record that when plaintiff requested reinstatement of the district court judgment, she was in fact requesting relief from the original circuit court order dismissing the district court’s favorable judgment on her public policy and breach of contract claims. Under MCR 2.612(C)(1)(f), relief from judgment may be granted for “any reason justifying relief from the operation of the judgment.” Huber v Frankenmuth Mut Ins Co, 160 Mich App 568, 575-576; 408 NW2d 505 (1987). A trial court’s decision to grant such relief is discretionary and will not be disturbed absent an abuse of discretion. Id. at 576. The law of the case doctrine provides that a ruling by an appellate court with regard to a particular issue binds the appellate court and all lower tribunals with respect to that issue. Reeves v Cincinnati, Inc (After Remand), 208 Mich App 556, 559; 528 NW2d 787 (1995). Thus, a question of law decided by an appellate court will not be decided differently on remand or in a subsequent appeal in the same case. Id. This rule applies without regard to the correctness of the prior determination. Id. However, the law of the case doctrine controls only if the facts have remained materially the same. CAF Investment Co v Saginaw Twp, 410 Mich 428, 454; 302 NW2d 164 (1981). In deciding the first appeal in this case, this Court relied on the “well established” rule that “the wpa provides the exclusive remedy for an employee who has been discharged wrongfully from employment for reporting an employer’s violation of the law.” Driver, supra at 18. We then held that, because plaintiff’s breach of contract claim “was based solely on the fact that she reported defendants’ violations of the law,” the remedy provided by the wpa was exclusive. Id. This Court’s holding was expressly limited to the facts of the case, and in reciting the facts, we incorrectly stated that plaintiff had “filed a complaint with the Michigan Department of Labor, Wage and Hour Division.” Id. at 15, 18. On remand, the circuit court dismissed plaintiff’s wpa claim because plaintiff’s report was made to the usdl, a federal agency. Both parties agree that plaintiff’s report was made to the federal agency rather than a state agency. Accordingly, because the key fact upon which the circuit court relied to dismiss plaintiff’s “exclusive remedy” was not among the facts apparently relied on by this Court, the law of the case doctrine was not applicable on remand and does not now bind this Court on the issue. CAF Investment, supra at 454. As a general rule, remedies provided by a statute for the violation of a right having no common-law counterpart are exclusive rather than cumulative. Dudewicz v Norris Schmid, Inc, 443 Mich 68, 78; 503 NW2d 645 (1993), citing Pompey v General Motors Corp, 385 Mich 537, 552-553; 189 NW2d 243 (1971). The wpa is such a statute. Dudewicz, supra at 79; Covell v Spengler, 141 Mich App 76, 82-84; 366 NW2d 76 (1985). The Michigan Supreme Court, in Dudewicz, supra at 80, held that because the wpa provided relief, the plaintiff’s cumulative public policy claim was not sustainable. The Court explained that a public policy claim is sustainable “only where there is not an applicable statutory prohibition against discharge in retaliation for the conduct at issue.” Id. (emphasis added); see also Garavaglia v Centra, Inc, 211 Mich App 625, 630; 536 NW2d 805 (1995). In this case, the circuit court determined that the wpa was not applicable to the facts regarding plaintiff’s discharge. Because the wpa provided no remedy at all, it could not have provided plaintiff’s exclusive remedy. Dudewicz, supra at 80. Therefore, we hold that the circuit court abused its discretion when it denied plaintiff’s motion on the ground that the wpa provided plaintiff’s exclusive remedy. Huber, supra at 576. Although plaintiff sought reinstatement (or relief from a prior circuit court order) with respect to both her public policy and breach of contract claims, only her breach of contract claim was dismissed on the basis of the purported exclusivity of the wpa. Accordingly, plaintiff is not entitled to relief from the circuit court’s order regarding her public policy claim. We therefore remand with instructions to the circuit court to (1) modify its prior order reversing the district court’s judgment in favor of plaintiff with regard to plaintiff’s breach of contract claim and to (2) reinstate the judgment of the district court with respect to that count only. Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction. No taxable costs pursuant to MCR 7.219, neither party having prevailed in full. The circuit court construed plaintiffs public policy claim as being a claim for retaliatory discharge under the wages and fringe benefits act, MCL 408.471 et seq.; MSA 17.277(1) et seq. In plaintiffs reply brief on appeal, she specifically states that the circuit court’s ruling regarding the applicability of the wpa “is not an issue in this appeal.” In these motions, defendants argued (1) that the wpa was inapplicable because the usdl did not constitute a “public body” and (2) that plaintiffs public policy claim was excluded by the wpa. Although plaintiffs motion was entitled “Motion For Rehearing/Reinstatement of Judgment,” she explained at the first hearing on the motion and in her supplemental brief in support of the motion that, procedurally, the motion was actually a motion seeking relief from the prior circuit court order.

HYDE v UNIVERSITY OF MICHIGAN BOARD OF REGENTS Docket Nos. 181187, 190178. Submitted March 13, 1997, at Detroit. Decided November 25, 1997, at 9:00 a.m. Maurice Hyde, an African-American, brought an action in the Washte-naw Circuit Court against the University of Michigan Board of Regents, alleging disparate treatment in employment, retaliation, and discriminatory discharge on the basis of race. The plaintiff also alleged breach of contract, which count was heard separately by the circuit court sitting by stipulation as the Court of Claims. The court, Patrick J. Conlin, J., granted the defendant’s motion for partial summary disposition with regard to the plaintiff’s claim that his assignment was reduced from full-time to part-time because of his race. A jury heard the disparate treatment, retaliation, and discriminatory discharge claims and found that the plaintiff was not discharged from employment because of his race, that he was not retaliated against because of his complaints of discrimination, and that he was not entitled to any monetary back pay. The jury found that the defendant discriminated against the plaintiff by treating him differently than nonminorities, and awarded him noneconomic damages for outrage, indignation, humiliation, and embarrassment. The jury awarded the plaintiff $20,000, plus court costs and attorney fees. The Court of Claims action was decided adversely to the plaintiff. The plaintiff appealed, and the defendant cross appealed. (Docket No. 181187). The plaintiff also appealed from the trial court’s order awarding the defendant mediation sanctions for the plaintiff’s rejection of the mediation evaluation. (Docket No. 190178). The appeals were consolidated. The Court of Appeals held: 1. Partial summary disposition was properly granted with regard to the plaintiff’s claim that his change from full-time to part-time status was motivated by illegal race discrimination. 2. Where, as here, the plaintiff in an employment discrimination case seeks more than economic damages from an employer, the defendant employer may pursue normal discovery of the plaintiff’s emotional and mental history. A plaintiff who prefers to shield the plaintiff’s mental and emotional history from discovery may do so, but only if all claims for mental or emotional distress damages are withdrawn, including claims for damages arising out of embarrassment, anger, indignation, humiliation, and all similar issues. Where, as here, a plaintiff asserts the physician-patient privilege to shield psychological or mental history from discovery, it is error to allow the plaintiff to seek noneconomic damages or to introduce evidence of noneconomic injury. 3. The court erred in attempting to create two separate categories of psychic injuries: “serious” and “garden variety.” The court properly prevented the plaintiff from presenting more specific and additional evidence of mental anguish. 4. The plaintiff did not preserve for appellate review his allegation that the verdict with regard to the issues of retaliation and termination was contrary to the great weight of the evidence. 5. The mediation sanctions imposed on the plaintiff must be affirmed. 6. The jury’s verdict against the plaintiff regarding the claims of discriminatory discharge and retaliation precludes the retrial of any issues concerning economic damages on remand. The Court of Appeals ruling precluding the claims for noneconomic damages where the privilege has been invoked precludes the retrial of any issues concerning noneconomic damages on remand. Therefore, because there can be no evidence of damages on remand, there is no need for a new trial. The judgment reflecting the jury verdict for noneconomic damages and the award of costs and attorney fees must be reversed and the matter must be remanded for entry of a judgment of no cause of action. The remainder of the court’s rulings in other respects must be affirmed. Affirmed in part, reversed in part, and remanded. 1. Civil Rights — Employment Discrimination — Evidence — Noneconomic Damages — Discovery. A plaintiff in an employment discrimination and wrongful discharge case brought under the Civil Rights Act who seeks recovery for noneconomic damages, such as pain and suffering, mental distress, hurt feelings, or embarrassment, places the plaintiff’s mental condition in issue and consequently open to discovery; a plaintiff who asserts a privilege to prevent discovery with regard to this issue must withdraw, or the court must dismiss, any claim for noneconomic damages (MCR 2.314[A],[B]; MCL 37.2101 et seq.; MSA 3.548[101] et seq.). 2. Civil Rights — Actions — Psychic Injuries. Victims of discrimination may recover for psychic injuries such as humiliation, embarrassment, outrage, disappointment, and other forms of mental anguish that flow from discrimination; Michigan courts have not recognized a two-tiered approach to emotional or psychic injuries that would create separate categories for “serious” and “garden variety” injuries. 3. Pretrial Procedure — Mediation — Appeal — Sanctions. It is the ultimate verdict that the parties are left with after appellate review is complete that should be measured against a mediation evaluation to determine whether sanctions should be imposed on a rejecting party pursuant to MCR 2.403(0). Green, Green & Craig, P.C. (by Philip Green and Christine A. Green), for the plaintiff. Miller, Canfield, Paddock and Stone, P.L.C. (by Richard J. Seryak and Megan P Norris), for the defendant. Before: Sawyer, P.J., and Saad and Gage, JJ. Saad, J. i NATURE OF THE CASE In this case we address several legal issues, but highlight here the key issue of first impression. In an employment discrimination, wrongful discharge case brought under the Civil Rights Act, MCL 37.2101 et seq.-, MSA 3.548(101) et seq., may a plaintiff seek more than economic damages yet shield from discovery his mental history? Our answer is clear and simple: no. If a plaintiff, as here, seeks more than economic damages from his employer, the defendant-employer may pursue normal discovery that includes discovery of the plaintiff’s emotional and mental history. If plaintiff prefers to shield his mental and emotional history from discovery, he may do so but only if he withdraws all claims for mental or emotional distress damages, including claims for damages arising out of embarrassment, anger, indignation, humiliation, and all similar issues. Because the trial court erred in allowing plaintiff to seek noneconomic damages after shielding his psychological or mental history from discoveiy by asserting the privilege, we reverse the lower court’s judgment with regard to those damages and the award of costs and attorney fees and affirm the circuit court’s rulings with regard to the other issues raised herein. n FACTS AND PROCEDURAL HISTORY At all times relevant to this case, the University of Michigan School of Social Work had a contract with the UAW-Ford Motor Company National Education, Development & Training Center (UAW-Ford Center) located in Dearborn, to provide academic and career counseling to Ford’s union workers. Plaintiff, an African-American male, was hired by the University of Michigan in 1985 to work as a Regional Life Education Advisor (rlea) with the iife/Education Planning Program (LEPP) for the UAW-Ford Center. Plaintiff’s duties as an rlea required travel to various Ford plants in his region, at which he developed and presented workshops and seminars for Ford employees. Plaintiff testified at trial that although he allegedly enjoyed a good working relationship with his previous supervisors, problems began about a year after Justine Bykowski became his supervisor in 1986 or 1987. Plaintiff filed a formal grievance against Ms. Bykowski in August, 1990, alleging racial discrimination and challenging her alleged “confrontational and inflexible management style.” After a hearing, a grievance panel unanimously found no evidence of discrimination, but called for both parties to “communicate clearly.” In 1989 and 1990, Ms. Bykowski wrote three disciplinary memos to plaintiff addressing alleged travel irregularities. Sometime later, plaintiff’s employment was reduced from full-time to half-time by the UAW-Ford Center. Plaintiff filed a second grievance against Ms. Bykowski, again alleging racial discrimination. On April 16, 1992, a panel again found no evidence of discrimination. Indeed, one African-American member that sat on both grievance panels (by plaintiff’s choice) attributed the difficulties between Bykowski and plaintiff to a personality conflict, rather than race. According to plaintiff, after his second grievance his relationship with Bykowski continued to deteriorate until the “Buffalo” incident at the Buffalo, New York, plant on September 1-3, 1992. On August 24, 1992, plaintiff was asked to service the Buffalo plant beginning on September 1, and he agreed to do so. On August 29, 1992, a friend asked plaintiff to sing in Chicago at the funeral of the friend’s father, and plaintiff telephoned Bykowski repeatedly to ask if his schedule could be changed. She made inquiries with the UAW-Ford Center and reviewed schedules of other regional rleas to determine if anyone could take plaintiff’s place. However, when she was unable to find a replacement, she notified plaintiff that he could not alter his schedule. Plaintiff refused to accept Ms. Bykowski’s answer, and he proceeded to contact others in the program, including people at the UAW-Ford Center in Dearborn and the local co-chair at the Buffalo plant, as well as some of Ms. Bykowski’s superiors in an attempt to override her determination. Eventually, plaintiff and Bykowski spoke by telephone again and Bykowski faxed plaintiff a memo telling him to fulfill the Buffalo assignment. Plaintiff did fulfill his obligations in Buffalo, but also sent a reply to Bykowski, in which he included the statement, “Also, at all costs you forego all professional management skills and opt to perform behaviors that border on what I believe are tactics adopted by the white supremacy.” Plaintiff sent copies of his letter to Harold Johnson (the dean of the university’s School of Social Work under which the lepp was administered), Shirley Anderson, the dean’s assistant, Program Director Bob Toronto, as well as Ron Dick and Dan Gamble of the personnel department. Following notification and a hearing, plaintiff was discharged on October 16, 1992. Mr. Toronto and Ms. Anderson recommended plaintiff’s dismissal to Dean Johnson, who himself felt that the discharge was long overdue, and who instructed Toronto to “proceed with all speed.” (Johnson, an African-American, described plaintiff as being noted for irregular expenditures, having difficulty in accepting assignments, and using poor judgment.) After further consultation with Dean Johnson, Mr. Toronto decided that plaintiff’s employment should be terminated and he authorized plaintiffs termination letter, which stated: In the recent episode at Buffalo Stamping, a routine scheduling decision made, in order to meet the needs of the program, was transformed by you into a point of contention which disrupted the work of numerous people. By your involving others in and outside of the University in your attempt to override the scheduling decision, you placed your personal convenience and priorities above those of the University, the Sponsor, the local site and the program as a whole. Your conduct damaged our relationship with the sponsor and the location and disrupted the provision of service to workers. This was inexcusably unprofessional. The Buffalo episode, in and of itself, would have caused me to consider the termination of your employment. In the context of the prior written warnings and your apparent inability to understand and appreciate the negative impact of your actions on the University’s relationship with its Sponsor, such action is inescapable. Your position in the [Disciplinary Review Conference] was that there was nothing wrong with your conduct in this or any other instance. This strengthened my conviction that termination was the only outcome that would meet the long term needs of the Program. Plaintiff brought this suit against the University of Michigan Board of Regents only, not the UAW-Ford Center or any individual (including Bykowski). In summary, plaintiff alleged: (1) disparate treatment on the basis of race in regard to his travel arrangements, assignments, work schedules, and criticisms from his supervisor, (2) retaliation for having filed two grievances alleging race discrimination, (3) termination from employment in October 1992, on the basis of illegal race discrimination, and (4) breach of contract. On March 8, 1994, the trial court granted defendant’s motion for partial summary disposition regarding plaintiffs claim that his assignment was reduced from full-time to part-time because of his race; the court determined that plaintiff had failed to raise a genuine issue of fact for trial that the decision had been made by the defendant, rather than by the uaw-Ford Center, whom plaintiff had not sued. The case proceeded to a jury trial of plaintiffs disparate treatment, retaliation, and discriminatory discharge claims. The jury found that plaintiff was not discharged from employment because of his race, that he was not retaliated against because of his complaints of discrimination, and that he was not entitled to any monetary back pay. The jury found that defendant discriminated against plaintiff by treating him differently than nonminorities, and awarded him noneconomic damages for outrage, indignation, humiliation, and embarrassment. The jury awarded $20,000, plus court costs and attorney fees. On appeal, in Docket No. 181187, plaintiff raises several substantive issues, one of which is cross appealed by defendant. In Docket No. 190178, plaintiff raises certain procedural issues involving mediation sanctions. The appeals were consolidated. m ANALYSIS A Plaintiff first alleges that the circuit court erred in granting partial summary disposition with regard to his claim that his change from full-time to part-time status was motivated by illegal race discrimination. We disagree. As a threshold matter, it is undisputed that it was the UAW-Ford Center, not the defendant university, that made the decision to reduce plaintiffs status. It is similarly undisputed that, in response to the UAW-Ford Center’s request for information, Ms. Bykowski provided the center with statistical information regarding the services actually performed by the RLE As. Plaintiff claims that Ms. Bykowski’s alleged racial animus tainted the center’s ultimate decision. However, plaintiff was unable to present facts to support his contention. In response to defendant’s motion, plaintiff presented no evidence that the statistics compiled by Bykowski were inaccurate or slanted, or that the statistics were not based on the reports actually submitted by the RLEAs themselves. Although plaintiff stated that “further discovery will very likely shed additional light on these questions,” plaintiff failed to show by affidavit that further development would support his claims. MCR 2.116(H). Thus, had Bykowski harbored illegal discriminatory animus, plaintiff was unable to show that it contributed in any way to the UAW-Ford Center’s decision to reduce plaintiff’s hours. See McDonald v Union Camp Corp, 898 F2d 1155, 1161 (CA 6, 1990). We find no error. B The parties next cross appeal various noneconomic damages issues, for which an additional factual discussion is necessary. In his complaint, plaintiff alleged that, as a result of defendant’s racial discrimination, he suffered, inter alia, “mental anguish, outrage, embarrassment and humiliation.” The applicable Michigan Court Rule regarding discovery provides: (1) When a mental or physical condition of a party is in controversy, medical information about the condition is subject to discovery under these rules to the extent that (a) the information is otherwise discoverable under MCR 2.302(B), and (b) the party does not assert that the information is subject to a valid privilege. [MCR 2.314(A)(1).] Pursuant to MCR 2.314, defendant sought discovery of plaintiffs mental histoiy. Plaintiff refused this request, asserted the physician-patient privilege, and contended: Plaintiff states [in his complaint] that he is seeking damages for mental anguish, humiliation, embarrassment, and the like, which are psychic damages. He is not claiming psychiatric injury or exacerbation of a pre-existing psychological or psychiatric condition. Because plaintiff asserted the privilege to shield his mental history from discovery, defendant asked the trial court by a motion in limine to preclude plaintiff from introducing any evidence of emotional distress at trial, pursuant to MCR 2.314(B)(2): Unless the court orders otherwise, if a party asserts that the medical information is subject to a privilege and the assertion has the effect of preventing discovery of medical information otherwise discoverable under MCR 2.302(B), the party may not thereafter present or introduce any physical, documentary, or testimonial evidence relating to the party’s medical history or mental or physical condition. Plaintiff argued to the circuit court that MCR 2.314(A)(1) did not apply because “as long as the claim for non-economic damages is restricted to embarrassment, humiliation, outrage and indignation, which some courts are referring to as the garden variety of emotional injuries, . . . the medical and psychological] records are not relevant and are not likely to lead to any relevant or admissible evidence.” The trial court incorrectly ruled that it would permit plaintiff to introduce evidence regarding embarrassment, humiliation, outrage, and indignation, but not mental anguish and emotional distress. In an August 12, 1994, opinion, the trial court refused plaintiffs request to expand the ruling to permit evidence of damages for mental anguish. At trial, the court attempted to limit plaintiffs evidence to his feelings of indignation, embarrassment, humiliation, and outrage and to prohibit testimony regarding emotional distress or mental anguish. Thus, plaintiff testified that he felt disgusted, frustrated, and embarrassed, that he felt angry, disrespected, and very insignificant as a person, and that he felt like “a broke forty-one year old man living with his mother.” At one point, the trial court sustained defendant’s objection that plaintiff’s testimony was invading the province of emotional/mental anguish. As previously stated, the jury ultimately awarded plaintiff $20,000 in noneconomic damages for outrage, indignation, humiliation, or embarrassment resulting from racial discrimination in his employment. We reverse this award because it was predicated on evidence of damages that should have been excluded by the trial court. It is well established that victims of discrimination may recover for psychic injuries such as humiliation, embarrassment, outrage, disappointment, and other forms of mental anguish that flow from discrimination. Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785, 799; 369 NW2d 223 (1985). See also Phillips v Butterball Farms Co, Inc (After Second Remand), 448 Mich 239, 250-253; 531 NW2d 144 (1995). However, the trial court clearly erred in attempting to create two separate categories of psychic injuries: (1) “serious” injuries such as “emotional distress” and “mental anguish,” and (2) “garden variety” injuries, such as hurt feelings, outrage, embarrassment, and humiliation. Such a distinction cannot be realistically maintained. In Veselenak v Smith, 414 Mich 567, 576; 327 NW2d 261 (1982), which addressed the duplication between ordinary damages and exemplary damages, the Court rejected the contention that “ordinary damages for shame and mortification” and “exemplary damages for humiliation and indignity” compe

RODNEY ALTON LORBACHER, Plaintiff v. HOUSING AUTHORITY OF THE CITY OF RALEIGH, FLOYD T. CARTER, former Executive Director, PAUL H. MESSENGER, current Executive Director and HORACE C. BRANTLEY III, former Deputy Executive Director, Defendants No. COA97-129 (Filed 18 November 1997) 1. Constitutional Law § 86 (NCI4th)— 42 U.S.C. § 1983-action against individuals — presumed in official capacity It was presumed that plaintiff was suing the named defendants under 42 U.S.C. § 1983 in their official capacity as officers of the Housing Authority where the complaint did not identify whether defendants were being sued in their individual or official capacities but the caption of the complaint and the allegations made therein refer to them by both their names and job titles. A suit against a defendant in his or her official capacity is simply another way of pleading an action against the municipality itself. 2. Constitutional Law § 86 (NCI4th)— employment termination — 42 U.S.C. § 1983 — violation of free speech- no policy or practice Summary judgment was properly granted for defendant Housing Authority on a claim under 42 U.S.C. § 1983 for deprivation of free speech arising from plaintiff’s firing as Director of Development where plaintiff neither alleged nor brought forth any evidence that the Housing Authority has a policy or practice of discharging employees for the exercise of First Amendment rights. Although plaintiff alleges that the individual defendants were delegated final policy-making authority, the Housing Authority Board established personnel policies and adopted the employee handbook in question, which states that all personnel decisions regarding demotions and discharges are vested in the Executive Director and those designated to act on the Executive Director’s behalf. The Executive Director is a final decision-maker in matters of promotions and discharges, but is not the final policy-maker with regard to substantive personnel matters. 3. Trial § 43 (NCI4th)— summary judgment — motion to reconsider — new evidence The trial court did not abuse its discretion by denying plaintiff’s motion to reconsider a summary judgment for defendant Housing Authority on a 42 U.S.C. § 1983 claim in light of new evidence where the additional evidence failed to establish that the Housing Authority itself was responsible for the violation of plaintiff’s constitutional rights. 4. Labor and Employment § 68 (NCI4th)— wrongful discharge — municipal agency — 42 U.S.C. § 1983 claim distinguished Defendant Housing Authority could be sued for wrongful discharge where plaintiff brought a state claim for wrongful discharge and a claim under 42 U.S.C. § 1983 against the Housing Authority and individual officials arising from his dismissal from the Housing Authority. A state claim for wrongful discharge may be based on the agency relationship between an entity and its officers and employees and plaintiff alleged that the individual defendants were acting in the scope and course of their employment when they discharged him. The court properly dismissed the claim against the individuals as they were not plaintiff’s employers for purposes of a wrongful discharge claim and, while the Housing Authority contends that the state wrongful discharge claim against it should be dismissed for the same reasons as the § 1983 claim, the requirements for municipal liability under § 1983 are specifically driven by the text and legislative history of the federal statute. 5. Labor and Employment § 77 (NCI4th)— agency negligence disclosed — wrongful discharge claim — summary judgment Summary judgment should not have been granted for defendant Housing Authority on a state wrongful discharge claim where plaintiff alleged that he was dismissed for giving truthful testimony and media statements about the Housing Authority’s knowledge of dangerous conditions and inadequate maintenance programs which led to two deaths and defendant contended that plaintiff was discharged for failure to obtain a valid driver’s license and for accepting rides from contractors in violation of policy. A valid claim for wrongful discharge exists when an at-will employee is discharged for an unlawful reason or in contravention of public policy and if plaintiff’s discharge was in retaliation for his testimony, his claim falls well within the public policy exception. Plaintiff’s evidence created a genuine issue of material fact as to the motive for his discharge; although defendant produced refuting evidence, it is for the finder of fact to determine the motive. However, the trial court correctly granted summary judgment on the issue of punitive damages since punitive damages may not be recovered from a municipal corporation absent statutory authorization. 6. Constitutional Law § 105 (NCI4th)— employment dismissal — federal due process — employee handbook — no entitlement to continued employment The trial court properly dismissed under N.C.G.S. § 1A-1, Rule 12(b)(6) plaintiff’s Fourteenth Amendment Due Process claim arising from his dismissal from the Housing Authority where plaintiff did not allege a liberty interest, failed to allege that he is covered by a statute or ordinance creating an entitlement to continued employment, and employee handbooks are not considered part of the employment contract unless expressly included. 7. Constitutional Law § 105 (NCI4th)— employment termination — North Carolina Constitution — insufficient property interest The trial court properly dismissed plaintiffs claim that his discharge from the Housing Authority violated the Law of the Land clause of the North Carolina Constitution where he lacked the requisite property interest in continued employment to trigger the protections afforded by the State Constitution. 8. Constitutional Law § 98 (NCI4th)— freedom of speech— state constitution — wrongful discharge claim — adequate protection Plaintiffs discharge from the Housing Authority, allegedly for giving deposition testimony and media statements regarding improper Housing Authority practices, did not warrant a direct claim under the North Carolina Constitution for violation of freedom of speech because plaintiffs rights are adequately protected by a wrongful discharge claim. 9. Intentional Mental Distress § 2 (NCI4th)— employment discharge — allegations—insufficient The trial court did not err by dismissing plaintiffs claim for intentional infliction of emotional distress arising from his discharge from the Housing Authority, allegedly for disclosing the Housing Authority’s negligent operations, where defendant’s conduct, even assuming the truth of the allegations, did not rise to the required level of extreme and outrageous conduct and plaintiff did not allege that defendants’ conduct was intentional. 10.Negligence § 75 (NCI4th)— employment discharge— negligent infliction of mental distress — allegations— insufficient The trial court properly dismissed plaintiff’s negligent infliction of emotional distress claim arising from his discharge from the Housing Authority, allegedly for disclosing the Housing Authority’s negligent operations. The conclusion that defendant’s conduct was not extreme and outrageous with respect to plaintiff’s intentional infliction of emotional distress claim also precludes any claim for negligent infliction of emotional distress. Appeal by plaintiff from judgment entered 12 November 1996, by Judge Henry V. Barnette in Wake County Superior Court. Heard in the Court of Appeals 6 October 1997. The purpose of the Housing Authority is to provide and maintain low income residential housing in the Raleigh area. Plaintiff worked for the Housing Authority for a number of years and eventually became “Director of Development.” Part of plaintiffs responsibilities revolved around obtaining federal grant monies for improvements, supervising various employees, monitoring the work of consultants, and visiting construction sites to monitor for construction compliance. On 29 June 1992, plaintiff lost his driver’s license as a result of a driving while impaired conviction. Because performance of his duties required a valid driver’s license, Brantley terminated plaintiff’s employment on 21 July 1992. Plaintiff appealed his termination and agreed to find a car and driver for any necessary travel and was reinstated effective 8 August 1992. As a result of negligent maintenance of a heating system, two residents of Walnut Terrace Apartments died from carbon monoxide poisoning on 10 October 1992. On 3 November 1992, a wrongful death action was filed against the Housing Authority. Plaintiff gave deposition testimony in the case on 22 October 1993 and testified regarding the Housing Authority’s knowledge of the dangerous conditions at the apartment complex and failure to take any remedial action. Plaintiff was discharged by Paul Messenger on 28 October 1993. In October 1994, plaintiff filed suit against the Housing Authority of the City of Raleigh, Floyd T. Carter, former Executive Director, Horace C. Brantley III, former Deputy Executive Director, and Paul H. Messenger, then current Executive Director. He alleged that his discharge resulted from his comments to the media about improper Housing Authority practices and his deposition testimony to the same effect. Defendants claim plaintiff’s discharge was not related to his deposition testimony but rather was the result of plaintiff’s failure to obtain acceptable transportation arrangements that were necessary for the proper performance of his duties. Paul Messenger was hired as the new Executive Director of the Housing Authority, replacing Floyd Carter, on 20 September 1993. Shortly after his arrival, Messenger learned through a routine insurance check that plaintiff did not have a valid license. Messenger also learned that plaintiff was accepting rides to construction sites from the contractors he was supervising, in contravention of Housing Authority policy. Messenger terminated plaintiffs employment on 28 October 1993 on the grounds that plaintiff could not fulfill the responsibilities of his job without a license and that accepting rides from the contractors he was to supervise created an unacceptable conflict of interest. Plaintiff brought the following claims against defendants: (1) a 42 U.S.C. § 1983 claim for violation of his First Amendment rights, (2) violation of his Fourteenth Amendment Due Process rights, (3) a conspiracy claim under 42 U.S.C. § 1985, (4) violations of his state constitutional rights under the Law of the Land and Free Speech Clauses, and (5) state law claims against defendants for breach of their fiduciary duties, intentional infliction of emotional distress and negligent infliction of emotional distress. Plaintiff additionally requested punitive damages. Defendants moved to dismiss all claims except the federal constitutional free speech claim and the wrongful discharge claim against the Housing Authority. On 1 May 1996, Judge Barnette partially granted defendants’ motion. All claims against defendant Brantley were dismissed for the lack of any allegation of misconduct on his part. All the remaining claims covered were dismissed as well, except for plaintiffs claims against defendants Carter and Messenger for punitive damages. Subsequently, defendants’ motion for summary judgment on plaintiff’s free speech, wrongful discharge and punitive damages claims was granted on 2 October 1996. On the same day, plaintiff tendered additional evidence and filed a motion to reconsider or for relief from summary judgment. The trial court denied this motion and plaintiff appealed. William E. Moore, Jr. and Marvin Schiller for plaintiff appellant. Cranfill, Sumner & Hartzog, L.L.P., by Raymond M. Davis, for defendant appellee. ARNOLD, Chief Judge. Plaintiff appeals from the trial court’s order granting defendants’ motion for summary judgment on plaintiff’s 42 U.S.C. § 1983 claim for violation of his First Amendment rights, his state wrongful discharge claim, and claims for punitive damages against defendants Carter and Messenger. He also assigns error to the trial court’s denial of his motion to reconsider or for relief from summary judgment. Finally, plaintiff appeals from the partial grant of defendants’ motion to dismiss on his Fourteenth Amendment Due Process claim, state constitutional Law of the Land and Freedom of Speech claims, and intentional and negligent infliction of emotional distress claims. Summary judgment is appropriate when then there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c) (1990); Gregory v. Perdue, Inc., 47 N.C. App. 655, 656, 267 S.E.2d 584, 586 (1980). It is not the court’s function to decide questions of fact when ruling on a motion for summary judgment; rather, the moving party must establish that there is an absence of a triable issue of fact. Moore v. Bryson, 11 N.C. App. 260, 262, 181 S.E.2d 113, 114 (1971) (citations omitted). All evidence must be considered in the light most favorable to the non-moving party. Burrow v. Westinghouse Electric Corp., 88 N.C. App. 347, 350, 363 S.E.2d 215, 217, disc. review denied, 322 N.C. 111, 367 S.E.2d 910 (1988) (citations omitted). Plaintiff alleges that defendants deprived him of his First Amendment right to free speech in .violation of 42 U.S.C. § 1983. The federal statute reads, in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983 (1994). The Housing Authority is a municipal corporation. Jackson v. Housing Authority of High Point, 316 N.C. 259, 341 S.E.2d 523 (1986). Although the language of § 1983 speaks in terms of “person,” the United States Supreme Court holds that municipalities axe “persons” for purposes of the statute. Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611 (1978). Although plaintiff also brought claims against Housing Authority officers under the statute, we need only consider the liability of the Housing Authority for the § 1983 claim. Municipal officers may be sued under § 1983 in their official or individual capacity. Hafer v. Melo, 502 U.S. 21, 116 L. Ed. 2d 301 (1991). A suit against a defendant in his/her official capacity is simply another way of pleading an action against the municipality itself. Monell, 436 U.S. 658, 690 n.55, 56 L. Ed. 2d 611, 635 n.55. Officials who are sued in their individual capacity are personally liable for damages, although a defense of qualified immunity may be available to them. Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396 (1982). In the present case, the complaint does not identify whether defendants Carter and Messenger are being sued in their individual or official capacities; however, the caption of the complaint, and the allegations made therein, refer to them by both their names and job titles. We presume that plaintiff is suing these individuals in their official capacity as officers of the Housing Authority. See Kolar v. County of Sangamon of State of Ill., 756 F.2d 564, 568 (7th Cir. 1985). Therefore, we need only consider the liability of the Housing Authority with respect to this claim. Although a municipality may be sued under the statute, it may not be held liable solely on the basis of respondeat superior, rather, liability exists only if the entity itself is responsible for the violation. Pembaur v. City of Cincinnati, 475 U.S. 469, 478, 89 L. Ed. 2d 452, 462 (1986). The Housing Authority only can be held liable for the actions of its employees if it officially ordered or sanctioned the conduct, the employees responsible for plaintiffs demotion and discharge had final policy-making authority, or the action was taken pursuant to a municipal policy, practice or custom. Id. at 483 n.12, 89 L. Ed. 2d at 465 n.12. Plaintiff neither alleges nor brings forth any evidence of the Housing Authority having a policy or practice of discharging employees for the exercise of First Amendment rights. Instead, plaintiff alleges that defendants Carter and Messenger were delegated final policy-making authority. It is on this theory of municipal liability alone which plaintiff rests his case. In order that the action properly may be considered a municipal policy, the employee must possess authority to establish “final policy with respect to the subject matter in question.” Id. at 483, 89 L. Ed. 2d at 465. The determination of whether a specific official has final policy-making authority is governed by state or local law. City of St. Louis v. Praprotnik, 485 U.S. 112, 125, 99 L. Ed. 2d 107, 119 (1988). The Housing Authority handbook states that all personnel decisions regarding demotions and discharges are vested in the Executive Director and those designated to act on his/her behalf. The fact that an official has some discretion in the exercise of his/her functions, in and of itself, does not give rise to municipal liability. Pembaur, 475 U.S. at 481-82, 89 L. Ed. 2d at 464. Although the executive director is a final decision-maker in matters of promotions and discharges, he is not the final policy-maker with regard to substantive personnel matters. The Housing Authority Board established personnel policies and adopted the employee handbook in question. Federal courts draw a line between the power to implement policy and the power to make policy. An official’s ability to discharge an employee does not necessarily equate to the ability to create substantive policy. See Greensboro Professional Firefighters Ass’n, Local 3157 v. City of Greensboro, 64 F.3d 962, 966 (4th Cir. 1995) (“The discretion to hire and fire does not necessarily include responsibility for establishing related policy.”). Plaintiff has failed to come forward with any evidence to support a viable theory of liability. Indeed, plaintiff failed to even address this element of a § 1983 claim in his brief. Accordingly, we conclude that summary judgment for defendant Housing Authority was properly granted. At this point, we also consider plaintiffs argument that in light of the introduction of new evidence, the trial court erred in denying his motion to reconsider or for relief from judgment. The standard of review on appeal from the trial court’s denial of such a motion is whether the trial court abused its discretion. Muse v. Charter Hospital of Winston-Salem, Inc., 117 N.C. App. 468, 481, 452 S.E.2d 589, affirmed per curiam, 342 N.C. 403, 464 S.E.2d 44 (1995). We conclude that the trial court did not abuse its discretion in this matter. The additional evidence failed to establish that the Housing Authority itself was responsible for the violation of plaintiff’s constitutional rights. Plaintiff also brought a state law cause of action against defendants for wrongful discharge. The trial court properly dismissed the claim against the individual defendants as they were not plaintiff’s employers for the purposes of a wrongful discharge claim. See Sides v. Duke University, 74 N.C. App. 331, 343, 328 S.E.2d 818, 827, disc. review denied, 314 N.C. 331, 333 S.E.2d 490 (1985). With regard to the Housing Authority, it argues that this claim against it fails for the same reasons that plaintiff’s First Amendment claim fails. We disagree. Plaintiff brought suit against defendant Housing Authority for violation of his First Amendment rights pursuant to 42 U.S.C. § 1983. The requirements for municipal liability under § 1983 are specifically driven by the text and legislative history of this federal statute. Plaintiff’s wrongful discharge claim is not a federal, bu

RUSHTON v MEIJER, INCORPORATED (ON REMAND) Docket No. 199684. Submitted December 9, 1996, at Lansing. Decided August 19, 1997, at 9:25 A.M. Leave to appeal sought. Christine M. Rushton brought an action in the Genesee Circuit Court against Meijer, Incorporated, alleging wrongful discharge, gender discrimination, and retaliation. The plaintiff had been employed by the defendant as a part-time floor detective. When the plaintiff was hired, she agreed to abide by the defendant’s policies and procedures and acknowledged receipt of an associate handbook, in which there was a provision that required that employees who were terminated follow the alternative dispute resolution (adr) procedure set forth in the handbook before seeking any judicial remedy. When the plaintiff was terminated from her employment, she invoked the adr procedure, indicating that she believed that she had been terminated without just cause, that she was the victim of gender discrimination, and that her termination had been in retaliation for her complaining about not being given a full-time job. Following an investigation, the plaintiff’s termination was upheld. Rather than pursue the next step in the adr procedure, which was binding arbitration, the plaintiff commenced her action in the circuit court. The defendant moved for summary disposition on the basis of the plaintiff’s failure to complete the alternative dispute resolution procedure. Following the plaintiff’s withdrawal of her retaliation claim, the court, Valdemar L. Washington, J., denied defendant’s motion for summary disposition of the wrongful discharge and gender discrimination claims. The defendant appealed by leave granted. The Court of Appeals, Fitzgerald, P.J., and Tailor and Holbrook, Jr., JJ., relying on the holding in Heurtebise v Reliable Business Computers, Inc, 207 Mich App 308 (1994), as controlling precedent for the proposition that private agreements to arbitrate civil rights claims are enforceable, reversed the order of the trial court that denied summary disposition with respect to both the wrongful discharge and the gender discrimination claims. Unpublished memorandum opinion of the Court of Appeals, issued March 1, 1995 (Docket No. 164272). The plaintiff sought leave to appeal to the Supreme Court, which remanded the matter to the Court of Appeals for reconsideration in light of Heurtebise v Relia ble Business Computers, Inc, 452 Mich 405 (1996). 453 Mich 943 (1996). On remand, the Court of Appeals held: 1. The Supreme Court in Heurtebise reversed the decision of the Court of Appeals in that case because the employee handbook contained language demonstrating that the employer did not intend to be bound by the provisions set forth in the handbook, in that the handbook stated that the policies contained therein did not create any employment or personal contract, that the employer retained the right to terminate any employee at any time for any reason, and that the employer retained the right to change any and all of the policies set forth in the handbook. 2. Unlike the employee handbook in Heurtebise, the defendant’s employee handbook in this case does not contain any language suggesting that the defendant does not intend to be bound by the provisions in the handbook or that the defendant does not consider that those policies result in employment that can be terminated only for just cause. Although the defendant’s handbook reserves to the defendant the right to modify or delete existing policies that are set forth in the handbook, it is clear that the defendant intended to be bound by the policies set forth in the handbook until such time that it exercises, with adequate notice to its employees, the reserved right to modify those policies. Because the defendant made no changes to the policies set forth in the handbook before the plaintiff instituted her action, both the plaintiff and the defendant are contractually bound by those provisions. 3. Because the provisions of the defendant’s employee handbook clearly require that a terminated employee pursuing a breach of contract claim first exhaust the nonjudicial remedies set forth in the ADR procedure, including the submission of the matter to binding arbitration, and because contractual provisions requiring the submission of claims of breach of contract to binding arbitration have been held to be valid and enforceable, the plaintiff’s failure to proceed with the remedies under the adr procedure of the employee handbook with respect to the wrongful discharge claim barred her pursuit of that claim in the circuit court. Accordingly, the trial court erred in failing to grant summary disposition for the defendant with respect to the wrongful discharge claim. 4. Section 803 of the Civil Rights Act, MCL 37.2803; MSA 3.548(803), expressly prohibits any requirement that a person asserting a right under that act first exhaust any nonjudicial remedies before seeking legal or equitable remedies in a court of this state. Accordingly, any provision in an employment contract that presumes to require that an employee who has a claim arising under the provisions of the Civil Rights Act first exhaust any nor\judicial remedies is contrary to public policy and unenforceable. Accordingly, the plaintiff was not required to proceed with the nonjudicial remedies set forth in the employee handbook rather than seeking a judicial remedy of her gender discrimination claim by the filing of a complaint in the circuit court, and the trial court properly refused to grant summary disposition for the defendant with respect to the claim of gender discrimination. 5. Because the plaintiffs employment as a store detective did not directly involve or affect interstate commerce, the federal arbitration act, 9 USC 1 et seq., is inapplicable to this matter, even though the defendant’s general business might involve interstate commerce. Affirmed in part, reversed in part, and remanded. Taylor, J., concurring in part and dissenting in part, stated that not only did the trial court err in refusing to grant summary disposition for the defendant with respect to the wrongful discharge claim, but also erred in refusing to grant summary disposition with respect to the gender discrimination claim because there is no binding authority to compel the conclusion that parties may not before a dispute arises contractually decide to submit any dispute that might arise under the Civil Rights Act to binding arbitration as the means of resolving the dispute. The provision of the Civil Rights Act upon which the majority primarily relies, MCL 37.2803; MSA 3.548(803), provides only that the Civil Rights Act does not diminish the right of a person to seek preexisting common-law and statutory legal and equitable rights in the courts of this state and is silent with respect to the question whether parties can contractually adopt binding arbitration as the means of resolving a dispute arising under the Civil Rights Act. In the face of that silence, a predispute agreement to arbitrate such disputes is consistent with state statutory law concerning arbitration and is valid and enforceable. 1. Contracts — Employment Contracts — Employee Handbooks — Intention to be Bound. An employer’s indication that it intends to be bound by the policies and procedures set forth in its employee handbook creates a valid employment contract binding both the employer and the employee to the provisions contained in the handbook even where the employer has reserved an unexercised right to amend or delete existing policies contained in the handbook. 2. Arbitration — Employment Contracts — Breach of Contract — Agreement to Arbitrate. An employer and an employee in an employment contract may validly agree that any dispute involving a breach of that contract be submitted to binding arbitration as the means of resolving the dispute. 3. Arbitration — Civil Rights Act — Employment Contracts — Agreement to Arbitrate — Public Policy. An agreement in an employment contract requiring any subsequent dispute involving a claim arising under the Civil Rights Act to be submitted to binding arbitration is contrary to the express provisions of that act and is unenforceable as a matter of public policy (MCL 37.2803; MSA 3.548[803]). Wascha & Waun, P.C. (by Thomas W. Waun), for the plaintiff. Jeffrey A. Rueble and Miller, Canfield, Paddock and Stone (by Charles S. Mishkind and Diane M. Soubly), for the defendant. Amici Curiae: Dickinson, Wright, Moon, Van Dusen & Freeman (by John Corbett O’Meara, Thomas G. Kienbaum, and Noel D. Massie), for American Society of Employers and others. ON REMAND Before: Fitzgerald, P.J., and Taylor and Holbrook, Jr., JJ. Holbrook, Jr., J. This case is on remand to us from the Michigan Supreme Court, 453 Mich 943 (1996), for reconsideration in light of Heurtebise v Reliable Business Computers, Inc, 452 Mich 405; 550 NW2d 243 (1996). We reverse in part and affirm in part. As we stated in our earlier opinion: Plaintiff worked as a part-time floor detective for defendant Meijer, Incorporated. When she was hired by Meijer, plaintiff signed an employment form agreeing to abide [by] defendant’s policies and procedures. Plaintiff acknowledged receipt of an associate handbook which included defendant’s termination appeal procedure. This document unambiguously provided that terminated employees were required to exhaust the alternate dispute resolution (adr) procedure. A separate document which plaintiff received indicated that exhaustion of the adr procedure is a condition precedent to litigation, regardless of whether the arbitrator’s final decision is upheld by a trial court. When defendant terminated plaintiff’s employment, she [plaintiff] invoked the adr procedure. She indicated that she believed she had been discharged without just cause, that she was the victim of gender discrimination, and that she had been retaliated against for complaining about not being given a full-time job. Following an investigation, plaintiff’s discharge was upheld at step one of the adr procedure. Plaintiff chose not to pursue the next step in the procedure, binding arbitration, and instead filed a lawsuit alleging wrongful discharge, gender discrimination, and retaliation. Defendant moved for summary or partial disposition, or for an order enforcing the adr award or procedure. At the hearing on defendant’s motion, plaintiff withdrew her retaliation claim. The court then denied defendant’s motion for summary disposition of the wrongful discharge and gender discrimination claims. [Rushton v Meijer, Inc, unpublished memorandum opinion of the Court of Appeals, issued March 1, 1995 (Docket No. 164272).] In our original opinion, we reversed the trial court’s denial of a defense motion for summary disposition of plaintiff’s wrongful discharge and gender discrimination claims because plaintiff had failed to exhaust the remedies available to her pursuant to the ADR procedure that defendant had established to resolve such claims. In reversing the trial court’s denial of defendant’s motion for summary disposition of plaintiff’s gender discrimination claim, we relied on Heurtebise v Reliable Business Computers, Inc, 207 Mich App 308; 523 NW2d 904 (1994), as controlling precedent for the proposition that private agreements to arbitrate civil rights claims are enforceable. i The Michigan Supreme Court reversed this Court’s decision in Heurtebise, because the employee handbook contained language demonstrating that the employer did not intend to be bound by its provisions. 452 Mich 414. As the Supreme Court noted, the handbook in Heurtebise contained clauses stating: (1) the policies in the handbook do not create any employment or personal contract, express or implied; (2) the employer had the right to terminate employees’ employment at any time, without notice, for any reason; and (3) the employer reserved the right to make modifications to any or all of the policies in the handbook. Thus, the instrument in Heurtebise expressly disclaiming contract status, yielding the employee no benefit above the minimal required status even to be an employee — namely, at-will status— and having provisions that could be changed unilaterally by the employer was, as might be expected, determined not to be a contract by the Supreme Court. It is in light of this holding that we are directed to reexamine the Meijer employee handbook. The dissimilarities are marked. Unlike the Heurtebise handbook, the Meijer handbook does not contain language stating that Meijer does not intend to be bound by its provisions. Further, it does not indicate that Meijer considers the policies not to create a contract and, finally, rather than an at-will termination policy, this instrument has consideration running to the employee in the form of an express promise of termination from employment only for just cause. Were this the extent of the provisions of the Meijer handbook, we could easily discern its determinative distinctions from the Heurtebise booklet and find it to be a contract binding on both parties. There is, however, reservation language in the Meijer handbook stating that the existing policies may be “modified or deleted” by the employer. This reservation clause, plaintiff argues, would allow all or part of the contractual provisions to be deleted and means that the instrument here at issue, just as the one in Heurtebise, is no contract at all. This argument has some allure, but on serious scrutiny, the problem plaintiff points to is illusory in the factual circumstances found here. It must be recalled that this instrument is an agreement to control an ongoing course of conduct between the employer and its employees. By its clear terms, they are both bound by it unless and until the employer chooses to change it. Even then, the employer cannot retroactively escape from its requirements. Any change can only take effect prospectively. See In re Certified Question, 432 Mich 438, 441; 443 NW2d 112 (1989). Accordingly, because the alleged improper acts by the employer at issue here came before any change was made in the agreement by the employer (in fact, as far as we know, even now no changes have been instituted by the employer), both parties are bound. In particular, the parties are bound to utilize the exclusive ADR procedure for handling their contract dispute. While the reservation language in the handbook will allow Meijer, for example, to change its policy of being a just-cause employer to become an at-will employer, the change would be effective only from the time of the implementation of the change (and after reasonable employee notification). Until such a change is made (which might cause the new arrangement to run afoul of the Heurtebise holding), Meijer is bound by the handbook in its dealing with its employees. Indeed, any other conclusion would mean that an employer could never change its employment agreements with its employees. Once a just-cause employer would mean always a just-cause employer. No employer would be likely to choose voluntarily to be so bound, and, thus, plaintiffs position, if adopted, would have the unfortunate and surely undesirable consequence of discouraging the practice of granting employees just-cause termination protection. Moreover, if an employer should cavalierly eliminate provisions that restrict its options in dealing with its employees, arbitrability could be jeopardized under Heurtebise, and valued employees, the retention of whom no doubt prompted the adoption of the just-cause policy in the first place, might choose to leave the employer. Rood v General Dynamics Corp, 444 Mich 107, 137-141; 507 NW2d 591 (1993). This economic regulation of the employment marketplace will undoubtedly cause an employer to exercise caution before making any change in the employment relationship, just as conditions of the employment market no doubt were factors considered in the granting of just-cause termination status in this case. Therefore, because the Meijer and Heurtebise handbooks are distinguishable, this plaintiff was bound by the handbook with regard to any contractual claim. The fact that Meijer could later change the agreement does not vitiate the fact that, as things currently stand, these parties are contractually bound. Accordingly, Meijer can, consistent with prior case law, require employees to arbitrate contract disputes regarding adverse employment decisions. See, e.g., Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 624; 292 NW2d 880 (1989). Because plaintiff failed to pursue her breach of contract claim utilizing the required ADR procedure, she is barred from pursuing such a claim in the circuit court. Renny v Port Huron Hosp, 427 Mich 415, 429-430; 398 NW2d 327 (1986); Zeniuk v RKA, Inc, 189 Mich App 33, 35, 37-38; 472 NW2d 23 (1991). Accordingly, we reverse the trial court’s order denying defendant’s motion for summary disposition of this claim. H With regard to plaintiff’s gender discrimination claim, we conclude, in light of Heurtebise, that summary disposition was properly denied by the trial court. To this end, we agree with and adopt as our own the reasoning of Justice Cavanagh in parts m through VI of his opinion in Heurtebise, which addressed, albeit in dicta, the issue “whether private employers can require employees, as a condition of employment, to waive prospectively their right to pursue civil rights claims in a judicial forum.” 452 Mich 414. As noted by Justice Cavanagh in Heurtebise, “[u]nlike federal law, Michigan has an unwavering history of faithfully defending an aggrieved individual’s right to a judicial forum to remedy unlawful discrimination.” 452 Mich 414. This unwavering history is currently reflected in the judicial remedies clause of Const 1963, art 5, § 29, as well as its legislative counterpart, MCL 37.2803; MSA 3.548(803). Article 5, § 29 of our state constitution establishes a civil rights commission with certain powers and responsibilities, and incorporates a judicial remedies clause: “Nothing contained in this section shall be construed to diminish the right of any party to direct and immediate legal or equitable remedies in the courts of this state.” Similarly, our Legislature in § 803 of the Civil Rights Act has reinforced and broadened the constitutional right of Michigan’s citizens to immediate and direct judicial review of a civil rights claim: “This [civil rights] act shall not be construed to diminish the right of a person to direct or immediate legal or equitable remedies in the courts of this state.” Justice Cavanagh aptly concluded that § 803 “expressly prohibits an exhaustion of administrative remedies requirement.” 452 Mich 420. Michigan’s declared public policy entitling a state civil rights plaintiff to direct and immediate review of such claims in the circuit court cannot be abrogated by contract: A contract which is contrary to public policy is illegal and void. Federoff v Ewing, 386 Mich 474, 481; 192 NW2d 242 (1971). Public policy has been described as “the community common sense and common conscience, extended and applied throughout the State to matters of public morals, public health, public safety, public welfare, and the like.” Skutt v Grand Rapids, 275 Mich 258, 264; 266 NW 344 (1936). It is expressed in the constitution, statutes, judicial decisions, or customs and conventions of the people, and it concerns the primary principles of equity and justice. Id. [Badon v General Motors Corp, 188 Mich App 430, 439; 470 NW2d 436 (1991).] Contrary to defendant Meijer’s argument, we do not find the parties’ employment contract to be governed by the federal arbitration act (faa), 9 USC 1 et seq. In Bernhardt v Polygraphic Co of America, Inc, 350 US 198, 200-201; 76 S Ct 273; 100 L Ed 199 (1956), Bernhardt, a New York resident, was hired by Polygraphic, a New York corporation, to be the superintendent of its lithographic plant in Vermont. Under the terms of the part

Anne Marie Shea vs. Emmanuel College & another. Suffolk. May 7, 1997. - August 18, 1997. Present: Wilkins, C.J., Abrams, O’Connor, Greaney, & Marshall, JJ. Contract, Employment, Interference with contractual relations. Public Policy. Employment, Termination. Public policy protects from discharge an at-will employee who, in good faith, reports criminal conduct in her place of employment, not to public authorities, but to her superiors within the employing unit. [762-763] In a claim for wrongful discharge, the plaintiff did not establish on the record of a motion for summary judgment that her discharge was for a reason contrary to public policy and judgment was correctly entered for the defendant. [763-764] On a claim for intentional interference with an employment contract, the record on the defendant’s motion for summary judgment did not permit the inference that the defendant acted with “actual malice” in discharging the plaintiff. [764] Civil action commenced in the Superior Court Department on April 27, 1993. The case was heard by Margaret R. Hinkle, J., on a motion for summary judgment. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Paul A. Manoff for the plaintiff. Clare F. Carroll for the defendants. Edward J. Black. Wilkins, C.J. We granted further appellate review to assess the accuracy of the shared conclusion of a Superior Court judge and the Appeals Court that the plaintiff, who was an at-will employee, may not obtain redress from her former employer, Emmanuel College, when, as the plaintiff claims, the college discharged her for reporting within the college’s administration the apparent theft of funds from the office in which she worked. Ws also consider the plaintiff’s claim that the defendant Black, her former supervisor, intentionally interfered with her employment. A Superior Court judge allowed the defendants’ joint motion for summary judgment, and the Appeals Court affirmed in a memorandum and order under its rule 1:28. 42 Mass. App. Ct. 1101 (1997). We affirm the judgment of the Superior Court. 1. We have recognized that, in certain circumstances, an at-will employee may maintain an action against her former employer for wrongful discharge. See Upton v. JWP Businessland, ante 756, 757 (1997), and cases cited. The question is whether a well-established public policy is served by denying the employer the right freely to discharge an employee for engaging in particular conduct. Id. The Appeals Court viewed the summary judgment evidence most favorable to the plaintiff as indicating “that the plaintiff was discharged at the behest of Black for bringing to the attention of college officials a pilferage problem in the office headed by Black, reflecting badly on Black’s administration of the office and suggesting ongoing criminality.” The Appeals Court and the motion judge concluded that public policy is not violated when an employer discharges an employee for reporting criminal activity if the reports were made, not to public officials, but only within the employing unit. In Mello v. Stop & Shop Cos., 402 Mass. 555 (1988), we assumed, without deciding, that an at-will employee who told his employer of criminal wrongdoing occurring within his company would be entitled to recover for a wrongful discharge, “even though before discharge he did not complain to public authorities.” Id. at 560 n.6. Each authority cited by the Appeals Court in support of the trial court’s grant of summary judgment to the college involved an at-will employee who was discharged for objecting to the policies or the manner of operation of his or her former employer, but none involved a report or complaint about an alleged violation of the criminal law. See King v. Driscoll, 418 Mass. 576, 582-585 (1994); Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 472-476 (1992); Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 149-151 (1989); Mello v. Stop & Shop Cos., supra at 560. The distinction of importance is between a discharge for an employee’s internal complaint about company policies or the violation of company rules, for which liability may not be imposed, and an internal complaint made about the alleged violation of the criminal law for which we now decide that liability may be imposed. In an opinion released the day after the entry of the Appeals Court memorandum and order in this case, a judge of the United States District Court for the District of Massachusetts correctly anticipated that this court “would not require the employee to complain outside the organization to claim the public policy exception for whistleblowers in a case like this.” Smith v. Mitre Corp., 949 F. Supp. 943, 950 (D. Mass. 1997). In that case, the employee had reported fraud and false statements in claims made by the employer as a Federal contractor. A policy that protects an at-will employee who, in good faith, reports criminal conduct in her place of employment to public authorities, but does not protect an at-will employee who in good faith reports such conduct to her superiors, would be illogical. See Byle v. Anacomp, Inc., 854 F. Supp. 738, 746 (D. Kan. 1994). In neither case should the reporting of suspected criminal activity be discouraged by the threat of discharge. Although we reject the grounds on which summary judgment in favor of the college was entered, we agree that entry of summary judgment for the college was appropriate. We have reviewed the summary judgment record, taking the evidence in the light most favorable to the plaintiff, and conclude that she has failed to rebut a fact that, standing unrebutted, shows that she is not entitled to relief. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991). There is no dispute that the plaintiff was an at-will employee. In the face of that fact, she had an obligation to present facts on the record that supported her claim that she was discharged for reporting criminal conduct to her superiors. An assertion or speculation that the college discharged her for that reason is not sufficient to create a dispute of material fact concerning the reason for her discharge. See Doe v. Liberty Mut. Ins. Co., 423 Mass. 366, 368 (1996). In her deposition, the plaintiff testified that she had no facts to support her claim that the defendant Black fired her in an effort to cover up his own responsibility for the alleged thefts. The record contains nothing to support the claim that the college discharged the plaintiff for a reason contrary to a well-established public policy. 2. There remains the plaintiff’s claim that Black intentionally interfered with her employment contract. To prevail on this claim, the plaintiff must prove that (1) she had an employment contract with the college, (2) Black knowingly induced the college to break the contract, (3) Black’s interference, in addition to being intentional, was improper in motive or means, and (4) she was harmed by Black’s actions. Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 476 (1992). The improper motive or means required is “actual malice.” See King v. Driscoll, 418 Mass. 576, 587 (1994); Boothby v. Texon, Inc., 414 Mass. 468, 487 (1993). Actual malice is any “spiteful, malignant purpose, unrelated to the legitimate corporate interest.” Wright v. Shriners Hosp. for Crippled Children, supra at 476. The evidence in the summary judgment record would not permit the inference that Black acted with “actual malice” in arranging for the plaintiff’s discharge. The record is replete with examples (some supplied by the plaintiff herself) of the troubles that the plaintiff was having on the job. Moreover, as we have said, the plaintiff admitted in her deposition that she had no facts to support her claim that Black had discharged her because he was trying to cover up the fact of the missing funds. Because Black produced unrebutted evidence that would justify the plaintiff’s discharge and the plaintiff produced no evidence that Black had a spiteful, malignant purpose in making that discharge, the judge properly granted summary judgment on the intentional interference claim. Judgment affirmed. In Smith v. Mitre Corp., 949 F. Supp. 943 (D. Mass. 1997), the victim of the allegedly unlawful conduct was a third party, and not, as here, the employer itself. In our case, the intensity of any public policy in favor of protecting a whistleblower is, therefore, arguably somewhat less. That such an employer, when it is the victim of the alleged criminal conduct, may choose to ignore, to condone, or even to ratify the reported criminal wrongdoing is irrelevant. An employer should not be permitted to justify the discharge of such an employee by deciding after the fact that the reported, seemingly criminal wrongdoing was tolerable or even accepted company practice. See Belline v. K-Mart Corp., 940 F.2d 184, 189 (7th Cir. 1991).

MICHIGAN STATE AFL-CIO v CIVIL SERVICE COMMISSION Docket No. 102567. Argued April 8, 1997 (Calendar No. 5). Decided July 31, 1997. Michigan State AEL-CIO and several other unions, serving employees in the state classified civil service, and others brought an action in the Wayne Circuit Court against the Civil Service Commission and others, seeking to enjoin enforcement of revised Civil Service Commission Rule 1-5.7, which prohibits the use of union leaves of absence for partisan political activity. The court, John H. Hausner, X, granted summary disposition for the plaintiffs, ruling that they had standing to bring the action and that the commission, in promulgating the rule, had exceeded its authority and violated the Michigan political freedom act, 1979 PA 169, MCL 15.401 et seq.) MSA 4.1702(1) et seq. The Court of Appeals, Griffin, P.J., and Reilly and T. M. Burns, JX, affirmed the standing issue, but reversed with respect to the rule, and remanded the case for consideration of the plaintiffs’ pending constitutional claims (Docket No. 113228). On remand, the court granted summary disposition for the commission, finding that the rule did not violate equal protection or due process, and further that there was no violation of free speech and association. After remand, the Court of Appeals, Michael X Kelly, P.J., and Corrigan and C. D. Corwin, JJ., affirmed the dismissal of the constitutional claims, holding that the revised rule affects the Civil Service Commission’s legitimate ban on partisan political activity during actual-duty hours and that nothing in the rule offends a recognized constitutional right of free speech or assembly (Docket No. 149885). The Supreme Court remanded the case to the Court of Appeals to address the plaintiffs’ argument that Rule 1-5.7 unconstitutionally bans speech and association on the basis of the content of the speech. On remand, the Court of Appeals, Michael X Kelly, P.J., and Corrigan and Bandstra, JX, unable to identify a content-based abrogation of speech or association rights, affirmed in an unpublished opinion per curiam (Docket No. 191523). The plaintiffs appeal. In an opinion by Justice Cavanagh, joined by Chief Justice Mallett, and Justices Boyle and Kelly, the Supreme Court held: Revised Civil Service Rule 1-5.7, prohibiting the use of union leaves of absence for partisan political activity, violates the Michigan political freedom act. 1. The political freedom act extends to employees in state classified civil service the right to engage in partisan political activity while on mandatory leaves of absence. What a state classified civil service employee does during off-duty hours, including political activity, is not of proper concern to the Civil Service Commission unless it is shown to adversely affect job performance. Whether an activity is off duty or actual duty depends on its particular circumstances. The political freedom act allows a state employee to engage in partisan political activity except during those hours when the employee is being compensated for the performance of duties as a public employee. 2. Where the union reimburses the state not only for the wages of an employee, but also the flange benefits, the state may not prohibit that employee from participating in partisan political activities pursuant to thp political freedom act. Because union leave is often antagonistic to an employer’s interest and because an employee on union leave is not doing the duty the employee was employed to perform, the state may not prohibit participation in partisan political activities while on union leave pursuant to the political freedom act unless the activities are shown to adversely affect job performance. Reversed. Justice Brickley, joined by Justices Riley and Weaver, dissenting, stated that, correctly interpreted, the political freedom act does not allow a classified state employee to engage in political activity while being compensated for the performance of the duties of a public employee. The majority determines that these employees were not compensated by the employer because the state was reimbursed for the total costs of their wages and benefits, and, thus, their activity is protected under the act. The source of the compensation is irrelevant, however. The fact that they were compensated merely presents the question whether they were engaged in the performance of their duties as public employees. Employees on union leave are performing their duties as public employees. Employees are assigned to these types of leave by the state. Further, legitimate union activities contribute to a productive relationship between the state and its employees; the state, as employer, derives a benefit from the activities. The majority’s holding to the contrary violates both the political freedom act and the collective bargaining agreement. Therefore, the application of Rule 1-5.7 to these employees did not violate the act. Rule 1-5.7 is neither a content-based restraint on the freedom of speech in violation of the First Amendment of the United States Constitution nor an impermissible regulation of the content of speech during union leave. States have the authority to regulate the speech of their employees under certain conditions. The First Amendment protects a public employee’s speech when that speech involves a matter of public concern and is not outweighed by the interests of the state employer. Rule 1-5.7 is limited to specific conduct while an employee is performing the duties of a public employee. The state’s interest in preventing political activity while on actual duty overrides the employee’s interest in engaging in such activity. It is evenhanded in its application, uniformly prohibiting certain political activities by employees engaged in the performance of their actual duties, defined to include all times when the employee is performing the duties of a state employee. Likewise, it does not violate the protection provided by the Equal Protection Clause of the Michigan Constitution. While employees on occasion will be treated differently than other employees, especially in regard to benefits such as union leave to which they are entitled, the designation of union leave as actual duty does not violate equal protection. Further, the rule is not overbroad. It does not substantially interfere with conduct that the state cannot prohibit. Rather, it addresses a specific political activity by state employees when they are performing their duties as state employees. Under the constitution and the political freedom act, the state can regulate this behavior. This prohibition is consistent with the recognized interest of the state in preventing politics from interfering with the performance of classified state employees. In addition, the rule is not vague. It gives fair notice of the conduct prohibited. It is clear that both partisan and nonpartisan political activity are barred from working hours. Sachs, Waldman, O’Hare, Helveston, Bogas & McIntosh, P.C. (by Andrew Nickelhoff and Theodore Sachs'), for the plaintiffs. Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Deborah Anne Devine, Assistant Attorney General, for the defendants. Amicus Curiae: Robert A. Sedler and Paul Denenfeld for American Civil Liberties Union Fund of Michigan. Cavanagh, J. This is an appeal by the Michigan State AFL-CIO, challenging the validity of Civil Service Rule 1-5.7, modified effective July 14, 1988, prohibiting the use of union leaves of absence for partisan political activity. We hold that the revised rule violates the political freedom act enacted by the Michigan Legislature. i This case presents a rather long, factual and procedural history. In December 1987, the United Auto Workers-Conununity Action Program (UAW-CAP) and the Michigan Democratic Party sponsored a training seminar on election campaign strategies. The Office of the State Employer was given notice of the three-day seminar; however, it was unaware that the seminar would involve partisan political issues. Fifty-six state employees who were members of the UAW Local 6000 attended the seminar. Thirty-seven employees used the union sponsored administrative leave buy-back program, under which the union reimbursed the state the net salary of the employees for the period of absence. Seventeen employees invoked the union officer leave, pursuant to a collective bargain, under which the union reimbursed the state for the gross total cost of the employee’s wages and the employer’s share of insurance premiums and retirement. One employee invoked the administrative leave bank 1, under which the employee suffered no loss of pay or benefits and one employee used his own time, which was not provided for under any leave arrangement. In response to a letter from two Republican legislators, State Representative Frank Fitzgerald and Senator William Sederburg, the Civil Service Commission investigated the December 1987 meeting. As a result of the investigation, the commission issued a strong statement that partisan political activities are not to be engaged in by employees who are on administrative leave or who have been released from work under conditions specified for “union business” in bargaining agreements. The Department of Civil Service stated, “An employee using his or her authorized annual leave is not restricted, but annual leave used for partisan political purposes may not be ‘bought back’ under union business provisions . . . .” As a result of the controversy over the December 1987 meeting, the commission revised its rule relating to the activity prohibited during work hours. The old rule provided: 1-5.7 Prohibited During Work Hours.- — -Activities permitted under Sections 1-5.1 and 1-5.5 shall not be engaged in by a classified employee during the hours the employee is on actual duty.[] The new rule provides: 1-5.7 Prohibited During Work Hours. — Activities permitted under sections 1-5.1 and 1-5.5 shall not be engaged in by a classified employee during the hours the employee is on actual duty. Actual duty includes the employee’s scheduled work hours and overtime. Off duty includes all time outside scheduled work hours and overtime, annual leave, unpaid leave of absence, lost time and leave granted to the employee to become a full time employee of an employee organization holding exclusive representation rights, pursuant to an approved collective bargaining agreement. For purposes of this rule, employees released from their regular state workplace for union activities, union business or any other employee organization purpose under any leave agreement, including “annual leave buy-back” provisions, shall be considered to be on actual duty, assigned by the employer to take part in union activities deemed to be in the best interests of the state and not including partisan political activity. In response to the rule change, an objection was filed by every employee organization exclusively representing state classified employees, representing in the aggregate approximately seventy-two percent of the state classified work force, or roughly 44,600 individuals. The employees’ objections stemmed from the commission’s exclusion of partisan political activities while on union leave, while allowing partisan political activities while on other types of leave. To fully understand the employees’ objections, it is necessary to review the different types of leave of absences that are available to an employee: 1. Leave for Union Business. There are seven types of leave for union business. The employee is compensated by the state in whole or in part. 2. Jury Duty Leave. The employee is granted administrative leave for jury duty, with full pay. 3. Time off for Court Appearances. The employee is entitled to administrative leave with full pay. However, if an employee appears in court in any capacity other than as a witness for the People, he or she will not be considered as being on duty, nor will administrative leave be granted. 4. Sick Leave. The employee may use accrued sick time, annual leave, or lost time to cover periods of approved medical absence. All sick leave must be approved by the employer. 5. Annual Leave. Initial annual leave is available upon approval of the employer, for such purposes of voting, religious observances, and necessary personal business. 6. Paid Leave. The employee is authorized to use paid leave for education and systematic improvement of knowledge or skills required in the performance of their work. The State Personnel Director reviewed the objections filed by the employees; however, it found no basis for delaying the effective date of the enactment of the revised rule. Therefore, on July 14, 1988, the revised rule became effective. The employee unions commenced the instant action in Wayne Circuit Court for a preliminary and permanent injunction restraining enforcement of revised Rule 1-5.7, and for declaratory relief. The parties filed cross-motions for summary disposition. On October 28, 1988, the circuit court granted summary disposition for plaintiffs. It ruled that the plaintiff employee organizations had standing to assert the claims and that the commission had exceeded its authority and violated the Michigan political freedom act. The trial court did not reach the constitutional issues raised in counts I and in of the complaint. The commission appealed, and the Court of Appeals affirmed in part, reversed in part, and remanded the case for further proceedings. 191 Mich App 535; 478 NW2d 722 (1991) (hereinafter AFL-CIO I). The Court of Appeals affirmed the ruling that plaintiffs had standing to seek a declaratory judgment. Id. at 544-549. However, it reversed the ruling that the revised rule violated the political freedom act. Plaintiffs argued that union leave is “off-duty” time that is beyond the scope of regulation by the Civil Service Commission. However, the Court rejected plaintiffs’ characterization of union leave as “off-duty” time because Rule 1-5.7 defines union leave time as “actual-duty.” AFL-CIO I at 550-551. The Court stated that actual duty means on-the-job behavior related to job performance, including activities of classified employees during work hours for which they are being compensated. The Court relied on Council No 11, AFSCME v Civil Service Comm, 408 Mich 385, 408; 292 NW2d 442 (1980), in which this Court stated that “the commission’s ‘sphere of authority’ delimits its rule-making power and confines its jurisdiction over the political activity of classified personnel to on-the-job behavior related to job performance.” The Court of Appeals held that a prohibition against political activity by classified employees is permissible under the political freedom act if three conditions are satisfied: (1) The classified employee receives some form of compensation for the time spent on leave, (2) The employee would be performing duties at the usual job site if the employee were not on leave, and (3) The employee is permitted to leave for a specific purpose approved by the employer. [AFL-CIO I, supra at 550.] The Court concluded that the release of employees under union leave was part of the employees’ duties for which they were compensated, therefore the union leave programs at issue did not implicate classified employees’ off-duty activities. The Court remanded the case for consideration of plaintiffs’ pending constitutional claims. Id. at 552. The parties again filed cross-motions for summary disposition with respect to the constitutional claims. Judge Hausner granted summary disposition for the commission, finding that the rule did not violate equal protection or due process, and further that there was no violation of free speech and association. After remand, plaintiffs appealed, and in a decision issued February 6, 1995, the Court of Appeals affirmed the dismissal of plaintiffs’ constitutional claims. 208 Mich App 479; 528 NW2d 811 (1995) (hereinafter AFL-CIO II). It held that the revised rule affects the Civil Service Commission’s “legitimate ban on partisan political activity during actual-duty hours. Nothing in this rule offends a recognized Michigan or federal constitutional right to free speech or assembly. The state government, as an employer, most assuredly may restrict the partisan political activity of its employees while they are on duty.” Id. at 491. The Court also disagreed with the plaintiffs that the revised rule is unconstitutionally vague and over-broad, and that it violates equal protection and due process. It affirmed the decision of the trial court on remand. Plaintiffs filed a delayed application for leave to appeal to this Court. In an order dated December 19, 1995, this Court remanded to the Court of Appeals “to address plaintiffs’ argument that Rule 1-5.7 unconstitutionally bans speech and association on the basis of the content of the speech.” The Court of Appeals issued a supplemental opinion on remand on March 8, 1996, unpublished opinion per curiam (Docket No. 191523), which stated in part, “[t]he rule arose out of a specific incident of partisan political activities while employees were on union leave and the Commission amended the rule to address that problem. Unless and until evidence is adduced that the Commission fails to prevent other partisan political activity that comes to its attention in a similar fashion, we cannot identify a content-based abrogation of speech or association rights, much less a violation of equal protection.” The plaintiffs again appealed to this Court, and this Court granted leave on May 22, 1996. 451 Mich 898. n Initially, defendant asserts that plaintiffs failed to appeal the decision of the Court of Appeals in AFL-CIO I to this Court pursuant to MCR 7.301(C)(3) and (4), and instead pursued remand. As a consequence, defendant asserts, this Court is divested of its jurisdiction to review the determinations made in AFL-CIO I, and those determinations are now the law of the case. We reject defendant’s argument. MCR 7.302(C)(4) provides: If the decision of the Court of Appeals remands the case to a lower court for further proceedings, an application for leave may be filed within 21 days after (a) the Court of Appeals decision ordering the remand, or (b) the Court of Appeals decision disposing of the case following the remand procedure, in which case an application may be made on all issues raised in the Court of Appeals, including those related to the remand question. We agree with plaintiffs that MCR 7.302(C)(4) gives the parties the option, after a Court of Appeals judgment ordering remand, of seeking immediate appeal or of waiting until proceedings following remand are completed, before seeking plenary appeal. The commentary to the rule provides guidance: New MCR 7.302(C)(4)-(6) clarifies the parties’ options when a decision of the Court of Appeals remands the case to the trial court for further proceedings. Basically, a party may immediately appeal to the Supreme Court or may await the conclusion of the proceedings in the trial court and in the Court of Appeals following the remand. Therefore, we retain jurisdiction over both AFL-CIO I and AFL-CIO II. m THE POLITICAL FREEDOM ACT The political freedom act is an uncommon exercise of the Legislature’s power to protect and insure the personal freedoms of all citizens, “including the rights of free speech and political association . . . Council No 11, supra at 394. As a unanimous Court stated, the act “undertakes to authorize and extend to a specific class of citizens — employees in the state classified civil service — the right to engage in partisan political activity . . . while on mandatary leave of absence.” Id. at 395. In Council No 11, this Court stated: We do not question the commission’s authority to regulate employment-related activity involving internal matters such as job specifications, compensation, grievance procedures, discipline, collective bargaining and job perfo

SHALLAL v CATHOLIC SOCIAL SERVICES OF WAYNE COUNTY Docket No. 103125. Argued April 9, 1997 (Calendar No. 15). Decided July 30, 1997. Janette Shallal brought an action in the Wayne Circuit Court against Catholic Social Services of Wayne County and its president, Thomas D. Quinn, alleging retaliatory discharge in violation of the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq. The court, John H. Hausner, J., granted summary disposition for the defendants, finding no evidence that the plaintiff was about to report a violation of law at the time of her firing. The Court of Appeals, Jansen, P.J., and M. J. Talbot, J. (White, X, concurring in part and dissenting in part), affirmed in an unpublished opinion per curiam, concluding, as a matter of law, that no reasonable person could have believed that the plaintiff was about to report a violation for purposes of the act (Docket No. 155006). The plaintiff appeals. In an opinion by Justice Cavanagh, joined by Justices Boyle, Riley, and Weaver, the Supreme Court held: The plaintiff presented sufficient facts upon which reasonable minds could conclude that she was about to report a suspected violation. However, because she used the threat of reporting the defendant to force him to allow her to keep her job, no reasonable juror could conclude there was a causal connection between her firing and the protected activity. 1. MCL 15.361 et seq.; MSA 17.428(1) et seq. does not require a plaintiff to actually report a suspected violation. An employee “about to report” receives the same level of protection as one who has actually reported to a public body The plaintiff’s conditional threat to her employer was credible evidence that she had finally decided that she was going to report him. Giving her employer the opportunity to correct his behavior does not in any way affect whether she had formed the requisite intent to report her supervisor. A plaintiff should not be required to say “magic words” in order to reap the protections of the statute. It should be sufficient that the plaintiff actually threatened to report an employer. The plaintiff has met her burden of demonstrating that there is a genuine issue of material fact regarding whether she possessed an actual intent to report defendant’s violations. 2. However, the plaintiff failed to establish a causal connection between her actions and her firing. The primary motivation of an employee pursuing a whistleblower claim must be a desire to inform the public on matters of public concern, and not personal vindictiveness. It is clear that the plaintiff used her own situation to extort defendant not to fire her. No reasonable juror could conclude that the plaintiff threatened to report her supervisor out of an altruistic motive of protecting the public. Furthermore, it is clear that the decision to fire plaintiff was made before her threat to her supervisor. Affirmed. Justice Kelly, joined by Chief Justice Mallett and Justice Brickley, concurring in part and dissenting in part, stated that the plaintiff failed to present evidence that she had formed a definite intent to report to a public body in the near future. Without that intent, she could hardly be found to have been about to report, unless she was about to report without knowing it. No reasonable jury could conclude from the fact of the plaintiff’s discussions about reporting Quinn and her threats to him that she actually formed the intent to do so in the near future. Summary disposition was properly granted. Chambers, Steiner (by Michelle J. Harrison and Courtney E. Morgan, Jr.), and Angela Nicita for plaintiff-appellant. Bodman, Longley & Dahling, L.L.P. (by Karen L. Piper and Stephen K. Postema), for defendantsappellees. Cavanagh, J. We granted leave to appeal in this case to determine whether the trial court abused its discretion in dismissing Janette Shallal’s retaliatory discharge claim under the Whistleblowers’ Protection Act. MCL 15.361 et seq.; MSA 17.428(1) et seq. We find no abuse of discretion and affirm the dismissal. I Defendant Catholic Social Services of Wayne County (css) is a nonprofit social service agency that provides a wide range of services. Plaintiff Shallal worked for css as an adoption department supervisor under a termination “for cause” employment contract. This suit arises out of her claim against CSS for retaliatory discharge. In late 1986, the css Board of Directors appointed defendant Thomas D. Quinn to the position of css president. Quinn’s alleged lack of expertise prompted some members of the staff to write a letter to the board opposing the appointment. Despite the opposition, Quinn began his presidency in January 1987. Approximately one year into Quinn’s tenure, allegations arose that Quinn was drinking on the job and misusing agency funds in violation of agency rules. Shallal discussed the need to report to her supervisor and other staff members. She also discussed her concerns about Quinn’s violations with an honorary CSS-Board Member, Mr. Ryan. Ryan suggested that Shallal report Quinn’s violations to the board and to accrediting bodies, presumably in the dss. Shallal never took action, however, because she feared that her job would be jeopardized. Before her employment with CSS was terminated, Shallal supervised the adoption of a baby, Ray Glover. Soon after the placement, Shallal learned that Ray’s former foster mother had visited Ray and reported seeing bruises on his face, neck, and hands. In retrospect, it appears that Shallal should have reported the allegation to the dss. A case worker did check on Ray within thirty days of the allegation; however, no official action was taken, there being only minor scratches visible on Ray. Several weeks later, however, Ray was rushed to the hospital, nearly dead from “shaken baby syndrome.” Today, he remains in a chronic vegetative state with severe, permanent brain damage. When Shallal notified the DSS about Ray’s injuries, it investigated and cited CSS with violations of several agency rules and regulations. It criticized Shallal for her inadequate response to the first report of abuse, her approval of an inadequate adoption home evaluation, and her failure to coordinate house visits. The DSS faulted Shallal for placing improper emphasis on race in the placement process. The report was equally critical of CSS, listing several institutional failures. As is their practice, DSS officials met with defendant Quinn before issuing a formal written report on April 19, 1991. They did not specifically recommend Shallai’s dismissal. Shallal alleges that, in the past, comparable employee errors did not result in discharge. After the meeting with DSS officials, Quinn called Shallal into his office. The ensuing discussion became heated. Shallal stated her intention to report Quinn’s abuses of alcohol and agency funds if he failed to, in her words, “straighten up.” Quinn decided to discharge Shallal, citing the DSS report as support. He ordered Timothy Kluka, plaintiff’s direct supervisor, to fire her. Kluka refused, feeling he had insufficient information to give as a reason to dismiss. He also believed Shallal’s termination would have negative implications for the staff and the agency. Instead, Kluka resigned from his position that day. On April 24, 1991, Patrick Heron dismissed plaintiff for gross misconduct and negligence in supervising the adoption of Baby Ray. Quinn has since resigned from his position as president. Plaintiff filed this suit on July 22, 1991, alleging a breach of her employment contract and violation of the Whistleblowers’ Protection Act. With respect to the latter claim, the trial court found that any threats plaintiff made to report Quinn were contingent on his continued violation. It also found no evidence plaintiff was “about to” report a violation. It then granted summary disposition for defendants under MCR 2.116(C)(10). The Court of Appeals affirmed in a two-to-one decision. It reasoned that the Whistleblowers’ Protection Act requires a plaintiff to be “near to an action, near to the performance, or in readiness to report the alleged misconduct of defendant Quinn.” Unpublished opinion per curiam, issued February 28, 1995 (Docket No. 155006), slip op at 1. The Court of Appeals found that plaintiff failed to satisfy the immediacy requirement, because her threat was contingent on the perpetuation of Quinn’s alleged misconduct. The Court concluded as a matter of law that no reasonable person could have believed that plaintiff was about to report a violation for purposes of the act. n The party bringing a motion for summary disposition under MCR 2.116(C)(10) bears the initial burden of supporting its position with affidavits, depositions, admissions, or other documentary evidence. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). The burden then shifts to the nonmoving party to go beyond the pleadings to show the existence of a genuine issue of material fact. Id. The trial court views affidavits and other documentary evidence supporting a (C)(10) motion in a light most favorable to the nonmoving party. Quinto at 362. A party is entitled to summary disposition if the evidence shows that there is no genuine issue of material fact to resolve at trial. Id. To determine if a genuine issue of material fact exists, the test is “whether the kind of record which might be developed, giving the benefit of reasonable doubt to the opposing party, would leave open an issue upon which reasonable minds might differ.” [Skinner v Square D Co, 445 Mich 153, 162; 516 NW2d 475 (1994), quoting Farm Bureau Mutual Ins Co v Stark, 437 Mich 175, 184-185; 468 NW2d 498 (1991).] Defendants offered deposition testimony to support their motion for summary disposition. Consequently, in order to survive the motion, Shallal had to provide documentary evidence establishing the existence of a genuine issue of material fact. m Section 2 of the Whistleblowers’ Protection Act provides in part: 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 .... [MCL 15.362; MSA 17.428(2) (emphasis added).] To establish a prima facie case, it must be shown that (1) the plaintiff was engaged in protected activity as defined by the Whistleblowers’ Protection Act, (2) the plaintiff was discharged, and (3) a causal connection existed between the protected activity and the discharge. Terzano v Wayne Co, 216 Mich App 522, 526; 549 NW2d 606 (1996). It is undisputed that Shallal was discharged on April 24, 1991. Therefore, to meet her prima facie burden at the hearing, she needed only to provide facts from which one could reasonably conclude that (1) she had been engaged in protected activity and (2) the activity was causally connected to her discharge. An 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. It is undisputed that Shallal did not report a suspected violation of law to a public body before her discharge. Hence, Shallal had the burden of establishing that a question of fact existed regarding whether she was “about to” report Quinn’s violations to a public body. Our task is to determine if plaintiff met her burden. To accomplish that, we examine the Whistleblowers’ Protection Act. The cardinal rule of all statutory construction is to identify and give effect to the intent of the Legislature. Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995). The first step in discerning intent is to examine the language of the statute in question. Auto Club Ins Ass’n v Hill, 431 Mich 449; 430 NW2d 636 (1988). 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. Frame v Nehls, 452 Mich 171; 550 NW2d 739 (1996). 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. Dudewicz v Norris Schmid, Inc, 443 Mich 68, 77; 503 NW2d 645 (1993). A plain meaning reading of the act shows that an employee “about to” report receives the same level of protection as one who has reported to a public body. The plain language also restricts recovery under the act by requiring a nonreporting employee to establish being “about to” report by offering clear and convincing evidence. MCL 15.363(4); MSA 17.428(3)(4). The face of the statute, however, does not explain what constitutes “about to” report, thereby lending itself to more than one interpretation. Consequently, we examine the purpose of the act for guidance. This Court has noted that the Whistleblowers’ Protection Act’s main purpose is to alleviate “the inability to combat corruption or criminally irresponsible behavior in the conduct of government or large businesses.” Dudewicz at 75. While employees are often in the best position to report violations of law, they are too frequently reluctant to do so for fear of retribution. Id. The act prohibits future employer reprisals against whistleblowing employees for the purpose of encouraging employees to report violations. Id. Legislative analysis indicates that the “about to” report language was added to the bill to protect conscientious employees who intended to, but were discharged in retaliation before they could, report. House Legislative Analysis, HB 5088, 5089, February 5, 1981. Webster’s defines “about” as “on the verge of” when followed by an infinitive, such as “to leave,” or in this case, “to report.” Random House Webster’s College Dictionary, 1995, p 4. The analysis also evidences a legislative recognition that the “about to” report language was a potential source of controversy. Id. In fact, legislative opposition to the bill questioned: How does one establish that a person was “about to” do something? This language is an open invitation for disgruntled employees or former employees to claim that their treatment by an employer has been illegal. It could become difficult or impossible to fire or discipline employees. [House Legislative Analysis, HB 5088, 5089, February 5, 1981, p 2.] In response, the bill’s proponents noted: There is never any foolproof way of guarding against false claims of discrimination, but it would be unreasonable to deny protection to the conscientious because that shelter might be used by the unscrupulous. House Bill 5089 does contain significant safeguards against employee abuse of its provisions by requiring that an action be commenced within 90 days of the occurrence of the alleged violation and by specifying that an employee who claims to have been about to report a violation must give clear and convincing evidence to this intention. [Id. ] Thus, 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. IV Plaintiff Shallal alleges that she was engaged in protected activity under the Whistleblowers’ Protection Act because she was “about to” report Quinn’s abuse of alcohol and agency funds to the dss. She asserts that Quinn’s activities violated DSS agency rules. She supports her claim with deposition testimony that describes her confronting Quinn with his violations. She also provides entries from her personal calendar that identify by date the people she spoke with about her desire to report Quinn. Shallal alleges that Quinn called her to his office on April 17, 1991, following his meeting with dss officials. When the discussion became heated, she told Quinn: [l]t’s all your fault This agency is going down the drain because you’re the one that has no interest, has no commitment. You’re so busy drinking and misusing money that you don’t care. And if you don’t straighten up ... I will report [you] to the department, to the board, anybody, everybody. After her termination, Shallal stated that she tried to retrieve what “actually happened” from her memory. She also said that she had “made some mental notes of conversations and dates . . . that [stuck] out in [her] mind.” Shallal supported her mental notes with calendar entries, which she read at her deposition. On January 25, I went to lunch with Ted Goldberg and my dictation says, “talked about reporting and confronting Tom.” On February 21, it says, “talked to Charlie G. about reporting Tom. We’re all enablers.” On March 22,1 have “scheduled lunch with Mary Therese Lamanek.” That was the lunch she and I discussed — I did not have any notation .... Basically [we talked] about problems in the agency, reporting Tom; we can’t let this thing go on and on. * * * On April 10, when Tim and I were coming back from meeting in Lansing, the federation meeting, I have notated, “talked to T.K. about Tom wanting to fire me. We need to report him.” And I had slash (/) “dss.” In its decision, the Court of Appeals reasoned that the trial court properly dismissed Shallal’s retaliatory discharge as a matter of law. [N]o reasonable person could conclude that plaintiff was near to an action, near to the performance, or in readiness to report the alleged misconduct of defendant Quinn. . . . Plaintiff’s words, “if you don’t straighten up ... I will report [you],” belie any sense of immediacy. [Slip op at 1.] The Court further noted that Shallal’s deposition testimony indicated that “she threatened to report him if he did not shape up, thereby giving him an opportunity to change and avoid being reported.” Id. The employee bears the burden of establishing that being about to act on a belief that a report to a public body was warranted. The employee’s proof, however, need not consist of a concrete action to satisfy the “about to” report element. See Chandler v Dowell Schlumberger, Inc, 214 Mich App 111, 120; 542 NW2d 310 (1995). We hold that the plaintiff has failed to make out a prima facie case under the Whistleblowers’ Protection Act. However, we disagree with the Court of Appeals that plaintiff’s statement, “if you don’t straighten up ... I will report [you],” coupled with her other actions, does not satisfy the “about to report” language under the act. Rather, we hold that plaintiff failed to establish a causal connection between the protected activity and her firing because she knew that she was going to be fired before she confronted her supervisor; thus, she used the information she had about the defendant’s illegal activities as a guise to force the defendant to allow her to keep her job. v Unlike whistleblower statutes in other jurisdictions, Michigan provides unique protection to its citizens because it does not require the plaintiff to have actually reported the suspected violation. For example, “the federal whistleblower statute requires that a plaintiff pursue administrative remedies, including filing a complaint with the Office of Special Counsel. This step is mandatory. 5 USC 1214(a)(3).” Williams v West, unpublished opinion of the northern district of California, decided July 23, 1996 (Docket No. C-95-1516 SI), 1996 US Dist LEXIS 10654 *14 (ND Cal, 1996). Other jurisdictions only protect public employees. See, e.g., Clark v Modern Group Ltd, 9 F3d 321 (CA 3, 1993) (the whistleblower protection statute only applies to public employees in Pennsylvania). However, as we have previously noted, the plain meaning of Michigan’s Whistleblowers’ Protection Act shows that an employee “about to report” receives the same level of protection as one who has actually reported to a public body. The dissent states that “no reasonable jury could conclude from the fa

HERWEYER v CLARK HIGHWAY SERVICES, INC Docket No. 103802. Argued April 8, 1997 (Calendar No. 3). Decided July 8, 1997. Jack Herweyer brought an action for wrongful termination in the Missaukee Circuit Court against Clark Highway Services, Inc., alleging breach of an employment contract, age and handicap discrimination, and retaliatory discharge for filing a worker’s compensation claim. The court, Charles D. Corwin, J., granted summary disposition for the defendant, citing the contract’s saving clause to provide a period of limitation to bring an action shorter than the applicable statutory period. The Court of Appeals, Sawyer, P.J., and Griffin, J. (Neff, J., dissenting), affirmed (Docket No. 171720). The plaintiff appeals. In a unanimous opinion by Justice Kelly, the Supreme Court held: When the period of limitation in an employment contract is unreasonably short, the applicable period is that established by statute. 1. A statutory period of limitation provides a defense that bars a plaintiffs cause of action because of an undue lapse of time since the cause of action arose. Parties may contract for a period of limitation shorter than the applicable statute of limitations, but that period must be reasonable. A limitation period is reasonable if the claimant has sufficient opportunity to investigate and file an action, the time is not so short as to work a practical abrogation of the right of action, and the action is not barred before the loss or damage can be ascertained. 2. Employer and employee often do not deal at arm’s length when negotiating contract terms. Where one party has less bargaining power than another, the contract might be, but is not necessarily, one of adhesion, and at the least deserves close judicial scrutiny. In this case, the plaintiff had little or no negotiating leverage. The saving clause is vague and ambiguous, and must be construed against the defendant. It does not call for an alternate limitation period. Instead, it uses the terminology “as far as legally possible.” A legal period has already been determined by the Legislature. The defendant has not stated a convincing argument why the objective indicator should be abandoned and nonspecific contractual periods of limitation authorized. By enacting a statute of limitation, the Legislature determines the reasonable maximum period a plaintiff can take to file a claim. Courts should defer to the statutory period unless the period in the parties’ contract is specific and reasonable. A contractual saving clause providing for enforcement “as far as legally possible” cannot be construed to allow imposition of uncertain, varying periods of limitation case by case. Reversed and remanded. 212 Mich App 105; 537 NW2d 225 (1995) reversed. Bott & Spencer, P.C. (by Timothy J. Botf), for the plaintiff-appellant. Warner, Norcross & Judd (by Douglas E. Wagner, Robert J. Chovanec, and Melvin G. Moseley, Jr.), for the defendant-appellee. Amici Curiae: David A. Kotzian, Kenneth Watkins, and Jan C. Leventer for Wolverine Bar Association. Stark & Gordon (by Sheldon J. Stark and Carol A. Laughbaum) for Michigan Trial Lawyers Association, American Civil Liberties Union of Michigan, Michigan State AFL-CIO, and International Union UAW. Amberg, McNenly, Zuschlag, Firestone & Lee, P.C. (by Joseph H. Firestone), for Michigan Education Association. Kelly, J. In this wrongful termination case, the single issue is what limitation period for filing suit is appropriate where the period written into the employment contract is unreasonably short. Defendant, Clark Highway Services, Inc., asks that we interpret a saving clause in the contract to allow the courts to establish the period. The interpretation would require legal action be brought by a date earlier than that set by the applicable statute of limitations as long as it is reasonable. We hold that, when the period of limitation in an employment contract is unreasonably short, the applicable period is that established by statute. i The pertinent facts of this case are not in dispute. Plaintiff, Jack Herweyer, was hired by defendant in June, 1987, to operate a truck that paints the center and edge lines on state highways. Because the work is seasonal, plaintiff’s employment ran from May to November. In May, 1989, defendant asked plaintiff to sign an employment contract. The agreement stated in pertinent part: I will not commence any action or suit relating to my employment with the Company (or termination of the employment) more than six (6) months after the termination of my employment, and I agree to waive any statute of limitations to the contrary. I understand that this means that even if the law would give me the right to wait a longer time to make a claim, I am waiving that right, and that any claims not brought within six (6) months after my employment will be barred. I agree to the above terms of employment. I agree that if any of the above commitments by me is ever found to be legally unenforceable as written, the particular agreement concerned shall be limited to allow its enforcement as far as legally possible. Plaintiff signed the agreement. On November 7, 1989, he was injured while in the course of his employment. Nevertheless, he continued working until November 13, 1989, the last day of the season. After treating plaintiff for his injury, plaintiff’s doctor placed a fifty-pound lifting restriction on his work. In January, 1990, he increased the restriction to seventy pounds. Nonetheless, defendant did not ask plaintiff to work again the following season. In May, 1990, when plaintiff contacted defendant, he learned that he had no job. In December, 1992, plaintiff filed suit alleging breach of the written employment contract, age discrimination, handicap discrimination and retaliatory discharge for filing of a worker’s compensation claim. Defendant moved for summary disposition under MCR 2.116(C)(10), arguing that the action was barred by the six-month period of limitation contained in the employment contract. Plaintiff responded that the six-month period was unenforceable as unreasonably short, given the applicable statute of limitation governing the claims. The trial court granted defendant’s motion for summary disposition. It expressed reservations about enforcing the six-month period of limitation. Nevertheless, it concluded that, even if the six-month period were unreasonable, plaintiff was not entitled to file suit as late as thirty-one months after the alleged breach. The court found that the contract’s saving clause should be interpreted to mean that suit must be filed within a minimally reasonable time. A reasonable time in this case was a period shorter than the thirty-one months that plaintiff waited to file. Without determining what period would have been minimally reasonable, the trial court concluded that the action was time-barred. The Court of Appeals affirmed. 212 Mich App 105, 108; 537 NW2d 225 (1995). It stated: The savings clause in the contract can be read as providing that the period of limitation shall be the minimum reasonable time in excess of six months. Furthermore, like the trial court, we agree that thirty-one months is in excess of the minimum reasonable time. While we do not draw a bright line with respect to what the minimum reasonable time is, we are not persuaded that plaintiff required thirty-one months in which to investigate and file the action, nor would a period of less than thirty-one months operate as a practical abrogation of the right to sue and certainly did not bar the bringing of the action before the loss or damage could be ascertained. See Camelot [Excavating Co, Inc v St Paul Fire & Marine Ins Co, 410 Mich 118, 127; 301 NW2d 275 (1981)]. Therefore, whatever the minimum reasonable time is, it is less than thirty-one months. Accordingly, the action was barred by the provisions of the contract at the time plaintiff brought the action. Thus, the trial court properly granted summary disposition in favor of defendant. The Court also rejected plaintiff’s argument that allowing employers to shorten the statutory period of limitation for employment actions is contrary to public policy. Although the argument may have merit, we do not address it because of the constraints in our order granting leave to appeal. Also, we express no opinion regarding the reasonableness of any shortened period agreed to by the parties. We granted plaintiff’s application in order to determine whether the contract’s saving provision can be read to require any claims to be brought within the minimum reasonable period. n A statutory period of limitation provides a defense that bars a plaintiff’s cause of action because of an undue lapse of time since the cause of action arose. 51 Am Jur 2d, Limitation of Actions, § 2, p 592. There are several policy reasons underlying the adoption of statutes of limitation. They protect defendants’ rights by eliminating stale claims, shielding defendants from protracted fear of litigation, and ensuring that they have a fair chance of defending themselves. Chase v Sabin, 445 Mich 190, 199; 516 NW2d 60 (1994); Bigelow v Walraven, 392 Mich 566, 576; 221 NW2d 328 (1974). Statutes of limitation are also constructed to give plaintiffs a reasonable opportunity to bring suit. Chase, supra. This Court has discussed the use of contracts to shorten the period of limitation. Camelot, supra. In Camelot, a general plumbing contractor, Priestley, contracted with an insurance company, St. Paul, for a labor and materials payment bond. Id. at 125. Priestly entered into a subcontract with Camelot Excavating Company for excavation work. Camelot completed its work under the contract. In April, 1974, Priestly abandoned the project without paying monies it owed to Camelot. Id. In August, 1976, Camelot sued St. Paul on the bond. St. Paul asserted in defense that the suit was barred by a one-year limitation clause contained in the bond. Id. at 126. We held that parties may contract for a period of limitation shorter than the applicable statute of limitation. Id. at 125. The limitation period must be reasonable. Id. at 126. It is reasonable if (1) the claimant has sufficient opportunity to investigate and file an action, (2) the time is not so short as to work a practical abrogation of the right of action, and (3) the action is not barred before the loss or damage can be ascertained. Id. at 127. Courts have held that limitation periods written into certain insurance, shipping, and bond contracts were valid although they shortened legislatively prescribed limitation periods. See, generally, anno: Validity of contractual time period, shorter than statute of limitations, for bringing action, 6 ALR3d 1197. In Camelot, Justice Levin expressed concerns about the development of a rule authorizing contractually shortened periods of limitation. Camelot, supra at 141 (Levin, J., concurring). He reasoned: The rationale of the rule allowing parties to contractually shorten statutory periods of limitation is that the shortened period is a bargained-for term of the contract. Allowing such bargained-for terms may in some cases be a useful and proper means of allowing parties to structure their business dealings. In the case of an adhesion contract, however, where the party ostensibly agreeing to the shortened period has no real alternative, this rationale is inapplicable. We share Justice Levin’s concerns. Employment contracts differ from bond contracts. An employer and employee often do not deal at arm’s length when negotiating contract terms. An employee in the position of plaintiff has only two options: (1) sign the employment contract as drafted by the employer or (2) lose the job. Therefore, unlike in Camelot where two businesses negotiated the contract’s terms essentially on equal footing, here plaintiff had little or no negotiating leverage. Where one party has less bargaining power than another, the contract agreed upon might be, but is not necessarily, one of adhesion, and at the least deserves close judicial scrutiny. In this case, neither the trial court nor the Court of Appeals upheld the six-month period of limitation in the contract. Defendant argues, notwithstanding, that both courts properly interpreted the saving clause as requiring that plaintiff’s claims must be brought within the minimum reasonable time in excess of six months. We find the interpretation unworkable. A The saving clause is vague and ambiguous. It does not call for an alternate limitation period of two, three, four, or five years. Instead, it uses the terminology “as far as legally possible.” The Court of Appeals found that the term could be interpreted to mean suit should be brought in the minimum reasonable time beyond the six-month limitation period. However, it could as easily be read to mean that, if the contractual period of limitation is found unreasonable, the statutory period governs. A legal period has already been determined by the Legislature. As the contract period under consideration is ambiguous, it must be construed against the drafter, the defendant. Lichnovsky v Ziebart Int’l Corp, 414 Mich 228, 239; 324 NW2d 732 (1982). B For reasons of policy, courts should not determine periods of limitation on a case-by-case basis. We agree with the observation in the Court of Appeals dissent that claimants are entitled to certainty in their legal dealings. Statutes of limitation embody the important public policy considerations of stimulating business activity, punishing negligence, and giving security and stability to human affairs in general. 51 Am Jur 2d, Limitation of Actions, § 18, p 603, citing Kyle v Green Acres at Verona, Inc, 44 NJ 100; 207 A2d 513 (1965). A statutory limitation period provides peace of mind to a potential defendant. A defendant can be certain that, once the period expires, extensive defense of a new lawsuit will be unnecessary. A plaintiff, also, is entitled to certainty in legal dealings. Allowing courts to fashion arbitrary periods of limitation depending on the facts of each case sometimes would force claimants to file suit prematurely, lending further instability to employment relations. In many cases, suit would have to be brought before adequate investigation had been completed. The public policy considerations underlying limitation periods are not advanced, either, by encouraging uncertain periods of limitation. We agree with the Court of Appeals dissent that the applicable statutory limitation period is a straightforward and objective indicator of what period is reasonable. Lothian v Detroit, 414 Mich 160, 165; 324 NW2d 9 (1982). In the case before us, defendant has not stated a convincing argument why we should abandon the objective indicator and authorize nonspecific contractual periods of limitation. c Historically, courts have relied on the Legislature to establish limitation periods. As we stated over a century ago: Every suitor must have a reasonable time in which to commence an action to enforce his rights, and it is for the Legislature to provide a general rule applicable to all cases falling within a class, and not for the judiciary to declare what is or should be a reasonable time varying with the circumstances of each case as it arises. Important legal and property rights depend upon the rule within which such right must be asserted, or, failing to do it, will be lost; and the necessity of a fixed, certain, and definite rule established by legislative authority is manifest. [McKisson v Davenport, 83 Mich 211, 215; 47 NW 100 (1890).] Similarly, where the Legislature has not provided a statutory period of limitation governing a particular claim, this Court has not allowed lower courts to apply differing periods on a case-by-case basis. Instead, we have adopted the period of limitation of analogous statutes. See Hart v Detroit, 416 Mich 488; 331 NW2d 438 (1982). Federal decisions follow the same principle. Where no federal statute of limitation applies to a particular suit, the court does not assume that no time limit applies, nor does it determine a reasonable time. Rather, the most suitable statute or other established rule of timeliness is “borrowed.” DelCostello v Int’l Brotherhood of Teamsters, 462 US 151, 158; 103 S Ct 2281; 76 L Ed 2d 476 (1983). By enacting a statute of limitation, the Legislature determines the reasonable maximum period a plaintiff can take to file a claim. Nielsen v Barnett, 440 Mich 1, 8; 485 NW2d 666 (1992). Courts should defer to the statutory period unless the period in the parties’ contract is specific and reasonable. m In conclusion, a contractual saving clause providing for enforcement “as far as legally possible” cannot be construed to allow imposition of uncertain, varying periods of limitation case by case. As a consequence, the limitation period for each of plaintiff’s claims is the applicable statutory period. The decision of the Court of Appeals is reversed. We remand this case to the trial court for further proceedings. Mallett, C.J., and Brickley, Cavanagh, Boyle, Riley, and Weaver, JJ., concurred with Kelly, J. The period of limitation for plaintiffs breach of contract claim is six years. MCL 600.5807(8); MSA 27A.5807(8). For the rest of his claims, the period is three years. MCL 600.5805(8); MSA 27A.5805(8). The trial court was concerned that shortening the limitation period to six months might foster premature lawsuits because of a lack of investigation time. Also, plaintiff did not have a realistic choice in deciding to sign the agreement. If he did not sign, he would have risked discharge. The transaction was not at arm’s length. Finally, there are public policy reasons for prohibiting the shortening of the limitation periods in discrimination lawsuits. 453 Mich 915 (1996). The contract in Camelot provided as follows: “No suit or action shall be commenced hereunder by any claimant: Ms * * “After the expiration of one (1) year following the date on which principal ceased work on said contract, it being understood, however, that if any limitation embodied in this bond is prohibited by any law controlling the construction hereof such limitation shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law.” [Id. at 128.]

WILMA K. HANTON, Plaintiff v. LAWRENCE I. GILBERT, in his personal and official capacity; EDWARD D. SALMON, in his personal and official capacity; PAUL HARDIN, in his personal capacity; and the UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Defendants No. 96-1009 (Filed 1 July 1997) 1. Libel and Slander § 23 (NCI4th)— memo by department head — explanation of plaintiff’s dismissal — qualified privilege The trial court did not incorrectly rule in a defamation action that defendant Gilbert had a qualified privilege with respect to a memo he distributed to department members where plaintiff had been employed at UNC in the Department of Biology maintaining an electron microscope and assisting faculty members in the use of the microscope; defendant Gilbert, the chair of the department, changed the department’s policy and began charging for the use of the microscope and for plaintiff’s time; plaintiff believed that the changed policy violated the terms of the grant with which the microscope had been bought and resisted the change; she was ultimately dismissed; and defendant Gilbert circulated the memo at issue here to explain the dismissal. The essential elements of a qualified privilege are good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only. Dr. Gilbert, as chair of the department, had an interest in the smooth running and morale of his department and distributed the memo only to members of the department in order to put an end to misleading rumors and inaccurate accounts of plaintiff’s dismissal. Under these circumstances, the essential elements of a good faith privilege were satisfied. Furthermore, portions of the memo addressed plaintiff’s accusations against him for which he had the privilege of self-defense. Am Jur 2d, Libel and Slander §§ 328 et seq. Defamation: loss of employer’s privilege to publish employee’s work record or qualification. 24 ALR4th 144. 2. Libel and Slander § 29 (NCI4th)— memo by department head — explanation of plaintiffs dismissal — instructions— jury consideration limited to four statements — burden of proof The trial court did not err in a defamation action when it instructed the jury to limit its consideration to four particular statements in a memo explaining plaintiffs dismissal from the UNC Department of Biology, that plaintiff bore the burden of proving the falsity of these statements, and that plaintiff further had the burden of showing actual malice. The four statements submitted to the jury were the only statements which plaintiff claimed were false and the court correctly instructed the jury regarding the burden of proving falsity and actual malice because the court had determined as a matter of law that the memo from the department chair was privileged and a presumption arose in his favor that the statements were made in good faith and without malice. Am Jur 2d, Libel and Slander §§ 512-518. 3. Constitutional Law § 98 (NCI4th)— dismissal from employment — federal and state claims — dismissal of federal claim not res judicata as to state claim — state claim fully already litigated and relief obtained The trial court did not err by granting defendants’ motion for summary judgment on plaintiffs state constitutional claim where plaintiff was dismissed from the UNC Biology Department and a memo written explaining the dismissal; plaintiff brought suit alleging violation of her state and federal constitutional rights to due process, violation of the state Whistleblower Act, and defamation; the case was removed to federal district court which granted summary judgment on all federal constitutional claims and remanded the remaining claims to state court; and the state trial court granted summary judgment for defendants on all but the defamation claim against the department chair in his individual capacity. Although the trial court erred by dismissing the state claims on the basis of res judicata because summary judgment in federal court on plaintiffs federal constitutional claim did not mandate dismissal of her state constitutional claim, plaintiff had already fully litigated and been afforded relief for the violation of procedural due process in her termination in that the Personnel Commission adopted an Administrative Law Judge’s conclusion that due process had not been exercised and awarded back pay and attorney’s fees, the superior court affirmed, and plaintiff did not appeal that decision. Since plaintiff had already prevailed on a statutorily established claim for violation of procedural due process and been afforded relief, she has no additional cause of action on that issue under the North Carolina Constitution. Am Jur 2d, Constitutional Law §§ 813-815; Judgments §§ 539 et seq. 4. Public Officers and Employees § 58 (NCI4th)— whistle-blower claim — summary judgment for defendants — no error The trial court did not err by granting summary judgment for defendants on plaintiffs claim under the Whistleblower Act where defendants supported their motion for summary judgment with evidence that plaintiffs termination was based on insubordination and the record does not reveal that plaintiff met her burden of coming forward with evidence that her alleged whistleblowing activity was a substantial causative factor for her dismissal. A prima facie claim under the Whistleblower Act consists of a plaintiff engaged in protected activity followed by adverse employment action with the protected conduct a substantial or motivating factor in the adverse action. Once a defendant presents evidence that the adverse action was based on a legitimate nonretaliatory motive, the burden shifts to plaintiff to present evidence raising a genuine issue of fact that plaintiffs actions under the Act were a substantial causative factor, or provide an excuse for not doing so. N.C.G.S. § 126-85(a). Am Jur 2d, Judgments §§ 203, 205. Appeal by plaintiff from judgment entered 16 February 1996 by Judge F. Gordon Battle and order entered 29 January 1996 by Judge Donald Stephens in Orange County Superior Court. Heard in the Court of Appeals 24 April 1997. McSurely, Dorosin & Osmént, by Alan McSurely, Mark Dorosin and Ashley Osment, for plaintiff-appellant. Michael F. Easley, Attorney General, by Thomas J. Ziko, Special Deputy Attorney General, and Barbara A. Shaw, Assistant Attorney General, for defendants-appellees. WYNN, Judge. The University of North Carolina at Chapel Hill (“UNC”) employed Wilma K. Hanton (“Hanton”) as a Research Analyst I in the Department of Biology. Her duties included maintaining an electron microscope which UNC had purchased with monies from a 1984 National Institute of Health (“NIH”) grant, teaching electron microscopy and assisting faculty members with research projects using the electron microscope. Faculty members used the microscope without charge until Dr. Lawrence I. Gilbert, Chairman of the UNC Department of Biology, changed the policy on 1 January 1990 and began charging for use of the microscope and Ms. Hanton’s time. To implement the new policy, Dr. Edward D. Salmon, Chairman of the Electron Microscope Committee and Ms. Hanton’s supervisor, informed Ms. Hanton that she would need to keep a daily log of her activities in the electron microscope facility. Ms. Hanton, however, believing that the new charges violated the terms of the grant, resisted the policy change of charging for microscope use and her time, and did not start keeping a record of her activity in the electron microscope facility until June 1990. Consequently, when Dr. Salmon reviewed her records in September 1990, he was unable to determine the use of the facility. He recommended her dismissal to Dr. Gilbert who in turn met with and wrote to Ms. Hanton on 1 October 1990 informing her that failure to follow the rules and policies of the department, including record keeping, would result in her termination. In the spring of 1991, Dr. Salmon again examined Ms. Hanton’s records and found them to be incomplete and in disarray. Subsequently, the Electron Microscope Committee met and discussed Ms. Hanton’s refusal to adequately maintain records of her daily activity. The committee unanimously recommended Ms. Hanton’s termination in a letter to Dr. Gilbert. In response, Dr. Gilbert conducted a pre-dismissal hearing during which Ms. Hanton refused to say that she would obey the rules of the department and keep records. As a result, Dr. Gilbert dismissed her from her position effective 24 May 1991. Five days later, he circulated the following memo to members of the Department of Biology explaining Ms. Hanton’s dismissal: As many of you know, Wilma Hanton was discharged from the Department of Biology on Friday, May 24. Since she has talked to many of you either before or after that event, I thought it best to inform you of the true sequence of events leading to her dismissal. On December 18, 1989, a memo was sent from me to the faculty of the department with a copy to W. Hanton initiating a series of fees for the use of the electron microscope and Ms. Hanton’s time. This was in response to the recommendation of the Electron Microscope Committee and a direct result of the financial problems besetting the University and this department. . . . From January 1990 on, there were a series of incidents in which Ms. Hanton made it quite clear that she disagreed with the policy, challenged the policy and simply was not going to abide by it. Indeed, she refused to keep track of her time, refused to bill for her time, etc. and, in general, made it very difficult for the EM Committee and for anybody who wished to use the facility in accord with the departmental regulations. . . . Since she did not follow my orders nor those of Prof. Salmon, she by definition, did not fulfill her job responsibilities and was given several “unsatisfactories” on her performance evaluation. This has led to a series of very unfortunate events instigated by Ms. Hanton. First, she appealed the performance evaluations made by Prof. Salmon, her supervisor. A three person committee composed of UNC SPA personnel heard this appeal and recommended that the performance evaluations stand as is. Chancellor Hardin so notified Ms. Hanton. The second action was her appeal to the Graduate Student Attorney General to prevent Mr. Ji-da Dai from receiving his doctorate because she accused him of stealing some of her data. This was absolutely untrue and it is of interest that after his doctoral seminar, she congratulated him, came to the Bird Room where she ate his food and toasted him with champagne. The Student Attorney General and faculty advisor examined the evidence and threw out her charges as they rightly should have. Having failed in those two actions, she turned her attention to me and filed complaints to the Dean of the College of Arts and Sciences. Among them were that I purloined some unknown letter written by Dean Williamson from the University Archives, a letter she could not describe and which does not really exist; that I stole her data, etc. All charges were dismissed by Dean Cell except for the accusation that I stole her data since there are specific guidelines indicating how such an accusation must be handled, and this is ongoing. These events have nothing to do with her dismissal since she is obviously entitled to make appeals, take advantage of the grievance procedures, etc., and her slanderous accusations regarding my own integrity will ultimately be resolved in a court of law. After discussing the situation of her insubordination and refusal to carry out the duties of her office with officials of the University, I sent Ms. Hanton a letter on May 23 indicating that a pre-dismissal hearing would be held on May 24 with me, W. Hanton and Collin Rustin from the Department of Human Resources. At that meeting, she was read the letter from the Electron Microscope committee to me dated May 10, 1991 and which is enclosed for your edification. . . . Since she refused to make any comments at that meeting, and after consultation with Mr. Rustin, I informed her that she was dismissed as an employee of the Department of Biology at the University of North Carolina at Chapel Hill effective immediately, i.e. May 24, 1991. . . . This is a synopsis of the events leading to the dismissal of Ms. Hanton and I bring them to your attention only so that you know the real facts of the matter. The department and university, in general, cannot allow technical assistants to make the final decision as to how a facility will be run. . . . For those of you who have listened to Ms. Hanton’s accusations and innuendos [sic], I would be glad to talk to you in person regarding her many ongoing problems with the University beginning as a graduate student in the Department of Botany in 1967. Dr. Gilbert attached to the memo a copy of the letter sent to him from the Electron Microscope Committee recommending Ms. Hanton’s dismissal and explaining the reasons for their recommendation. Following her dismissal, Ms. Hanton brought suit against Dr. Gilbert and Dr. Salmon in their personal and official capacities; the then Chancellor of UNC, Dr. Paul Hardin in his personal capacity; and UNC. She alleged violation of her state and federal constitutional rights to procedural due process, violation of the state Whistleblower Act (N.C. Gen. Stat. § 126-85) and defamation. The case was removed to the United States District Court for the Middle District of North Carolina which granted summary judgment for all defendants on the federal constitutional claim and remanded thé remaining claims to state court. There, the trial court granted summary judgment in favor of the defendants on all the remaining claims except Ms. Hanton’s claim for defamation against Dr. Gilbert individually in his personal capacity. The ensuing trial on that issue resulted in a jury verdict in favor of Dr. Gilbert. Ms. Hanton appeals from the order granting summary judgment and the judgment rendered on the jury verdict. Before this Court, Ms. Hanton contends that the trial court erred by: (I) Ruling that Dr. Gilbert had a qualified privilege in the defamation claim, (II) Improperly instructing the jury as to the defamation claim, (III) Granting summary judgment for defendants on the state constitutional claim on the grounds of res judicata, and (IV) Granting summary judgment for defendants on plaintiffs claim under the Whistleblower Act. We affirm the order and judgment of the trial court. I. Plaintiff first contends that the trial court incorrectly ruled that Dr. Gilbert had a qualified privilege with respect to the 29 May 1991 memo that he distributed to department members. We disagree. In considering the qualified privilege issue the trial court first determined as a matter of law that Dr. Gilbert’s memo was libelous per se. “When a publication is libelous per se, a prima facie presumption of malice and a conclusive presumption of legal injury arise entitling the victim to recover at least nominal damages without proof of special damages.” Arnold v. Sharpe, 296 N.C. 533, 537-38, 251 S.E.2d 452, 455 (1979). The parties do not dispute the trial court’s ruling that the memo was libelous per se\ however, in response, Dr. Gilbert raised the affirmative defense of qualified privilege and thus bore the burden of establishing that the publication of the defamatory statement was made on a privileged occasion. Clark v. Brown, 99 N.C. App. 255, 262, 393 S.E.2d 134, 138, cert. denied, 327 N.C. 426, 394 S.E.2d 167 (1990). “Whether the occasion is privileged is a question of law for the court, subject to review, and not for the jury, unless the circumstances of the publication are in dispute, when it is a mixed question of law and fact.” Id. (quoting Shuping v. Barber, 89 N.C. App. 242, 245, 365 S.E.2d 210, 212 (1988)). A defamatory statement is qualifiedly privileged when made (1) on subject matter (a) in which the declarant has an interest, or (b) in reference to which the declarant has a right or duty, (2) to a person having a corresponding interest, right or duty, (3) on a privileged occasion, and (4) in a manner and under circumstances fairly warranted by the occasion and duty, right or interest. Id. Thus, “[t]he essential elements thereof are good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only.” Stewart v. Check Corp. 279 N.C. 278, 285, 182 S.E.2d 410, 415 (1971). In the subject case, the record indicates that Dr. Gilbert, as Chairman of the Department of Biology, had an interest in the smooth running and morale of his department. To protect against the undermining of employee morale, he distributed the memo in question only to members of the Department of Biology in order to put an end to misleading rumors and inaccurate accounts of Ms. Hanton’s dismissal that were circulating in that department. We hold that under these circumstances the essential elements of a qualified privilege were satisfied. Furthermore, portions of Dr. Gilbert’s memo addressed Ms. Hanton’s accusations against him personally for which he had a privilege of self defense. See Gregory v. Durham County Bd. of Educ., 591 F. Supp. 145, 156 (M.D.N.C. 1984). Therefore, we conclude that the trial court properly ruled that Dr. Gilbert had a qualified privilege with respect to the subject memo. II. Ms. Hanton next contends that the trial court erred when it instructed the jury that it should limit its consideration to four particular statements on the 29 May memo, that she bore the burden of proving the falsity of these statements, and that she further had the burden of showing actual malice by Dr. Gilbert. We disagree. Since the trial court determined as a matter of law that Dr. Gilbert’s memo was privileged, a presumption arises in his favor that the statements were made in good faith and without malice. Clark, 99 N.C. App. at 262, 393 S.E.2d at 138. Furthermore, since Dr. Gilbert’s presumption rebutted Ms. Hanton’s presumption of actual malice, Ms. Hanton then had the burden of proving both the falsity of the charge and that it was made with actual malice. See, Clark at 262-63, 393 S.E.2d at 138; Boston v. Webb, 73 N.C. App. 457, 326 S.E.2d 104, disc. review denied, 314 N.C. 144, 332 S.E.2d 479 (1985). Thus, the trial court correctly instructed the jury regarding the burden of proving falsity and showing actual malice. In order for a defamatory statement to be actionable, it must be false. Long v. Vertical Technologies, Inc., 113 N.C. App. 598, 439 S.E.2d 797 (1994). The undisputed evidence in the record indicates that many of the statements in the subject memo were true. Since the four statements submitted to the jury were the only statements which plaintiff claimed were false and thus the only defamatory statements at issue, the trial court acted properly in presenting only those statements for the jury’s consideration. III. Plaintiff next contends that the trial court erred by granting defendants’ motion for summary judgment on her state constitutional claim because res judicata does not preclude relitigation of her claim. We agree that the doctrine of res judicata does not preclude her state claims; however, we nonetheless affirm the trial court’s award of summary judgment for a different reason. In its order granting summary judgment, the trial court concluded: [U]nder the doctrine of res judicata and collateral estoppel the Plaintiff cannot re-litigate anew her claim of wrongful dismissal. Such claim has been fully litigated adversely to the Plaintiff in the administrative proceedings with a determination that her employment termination was [for] just cause and was free of any substantial due process violation. Collateral estoppel would bar further review of that issue by this court. Similarly, the Plaintiff failed to satisfy the federal court that t

DOLAN v CONTINENTAL AIRLINES/CONTINENTAL EXPRESS Docket No. 102413. Argued January 16, 1997 (Calendar No. 19). Decided May 20, 1997. Sue Ann Dolan brought an action in the Wayne Circuit Court against Continental Express, alleging wrongful discharge from employment in violation of Michigan’s Whistleblowers’ Protection Act, MCL 15.362; MSA 17.428(2), breach of contract principles, and public policy. The plaintiff had been asked to be alert to and to report to the Federal Drug Enforcement Agency persons purchasing tickets or otherwise contacting the airline who fit a designated profile description relating to drug trafficking or terrorist activities. Later, her employer posted a notice directing employees to seek management approval before making such reports. The plaintiff was discharged after her employer was informed that she made another report without management approval. The court, William J. Giovan, J., granted summary judgment for the defendant. The Court of Appeals, Taylor, J. (R. D. Gotham, J., concurring in the result only), and (Shepherd, P.J., not participating), affirmed (Docket No. 149512). The plaintiff appeals. In a unanimous opinion by Justice Boyle, the Supreme Court held: The plaintiff stated a valid claim of wrongful discharge from employment under the Whistleblowers’ Protection Act. 1. Employees who report violations or suspected violations of law by either their employers or fellow employees to a public body are entitled to protection under the Whistleblowers’ Protection Act. The plaintiff alleges she was fired because she reported or was believed to have reported a violation of law. The allegation is sufficient to state a claim of wrongful discharge under the act. In addition, the reported violation was sufficiently related to the employment setting to be protected under the act. The trial court erred in granting the defendant’s motion for summary disposition of the wpa claim. Because the wpa is the exclusive remedy against such discharge, the grant of summary disposition of the public policy claim was proper. 2. The plaintiff had no legitimate expectation of continued employment as a matter of law on the basis of the defendant’s written disciplinary policies alone. Nor could an inference be drawn that the relationship between the parties was a contract for termination only for good cause. Affirmed in part, reversed in part, and remanded for further proceedings. 208 Mich App 316; 526 NW2d 922 (1995) affirmed in part and reversed in part. Cunningham & Associates (by Douglas C. Cunningham) for the plaintiff. Miller, Canfield, Paddock & Stone (by Megan P Norris) for the defendant. Boyle, J. i In this case we are asked to determine whether plaintiff has stated a valid claim of wrongful discharge from employment under Michigan’s Whistleblowers’ Protection Act (wpa), breach of' contract principles, and public policy. For the reasons that follow, we hold that plaintiff has failed to state a claim of wrongful discharge from employment under public policy and breach of contract principles, but has stated a valid claim under the WPA. Accordingly, we affirm the grant of summary disposition as it relates to the public policy and breach of contract claims, and reverse and remand for further proceedings on the wpa claim. n Plaintiff worked as a ticketing agent for defendant airlines at the Capitol City Airport in Lansing, Michigan. In early 1991, as a means of tightening airport security during the Persian Gulf War, plaintiff and her colleagues were asked to stay alert to individuals purchasing tickets or otherwise contacting the airline who fit a designated profile description relating to drug trafficking or terrorist activities. Plaintiff did just that and, in January or February, 1991, she and a coworker informed airport security of individuals who fit the profile description. On the basis of plaintiffs tip, the Federal Drug Enforcement Agency intervened and made an arrest. Shortly thereafter, plaintiff again contacted the authorities to report yet another individual whom she believed fit the designated profile. The dea assured plaintiff that she would be rewarded. On February 10, 1991, the general manager of Continental Express posted a written notice directing employees to seek management approval before contacting authorities to report individuals believed to fit the profile description. One month later, plaintiff was approached by the general manager and asked if she had contacted the DEA after February 10, 1991. Plaintiff claimed that she had not, but was sent home pending an investigation. According to plaintiff, Continental’s investigation unearthed two individuals who agreed to provide written statements indicating that plaintiff had reported two passenger names to the dea after February 10, 1991. When confronted, plaintiff admitted that she contacted the dea after the February date, but insisted that she did so only because she wanted information on the status of her reward. Plaintiff contends that she did not report passenger names after the February 10 posting. In March, 1991, the general manager of Continental Express contacted the plaintiff and told her that her relationship with Continental was over. The next day, plaintiff was shown one of two written statements that alleged that she had contacted the dea without Continental Express’ approval after February 10, 1991. Plaintiff was told that corporate headquarters would make the final determination on her employment status. Subsequently, plaintiff’s employment was terminated. Plaintiff’s original complaint alleged wrongful discharge from employment under the Michigan Whistleblowers’ Protection Act and breach of contract principles. The circuit court granted defendant’s motion for summary disposition on the wpa claim. Shortly thereafter, plaintiff filed an amended complaint, adding a new charge of wrongful discharge from employment in violation of public policy. Defendant again sought dismissal of plaintiffs claims under MCR 2.116(C)(8). At the same time, plaintiff filed a motion for relief from the October 10, 1991, order granting defendant summary disposition on the wpa claim. After consolidating the matters, the court granted defendant’s motion to dismiss plaintiff’s first amended complaint with prejudice and denied plaintiff’s motion for relief from the October 10, 1991, order. The Court of Appeals affirmed. We granted leave to appeal. 452 Mich 867 (1996). m Plaintiff alleges that the court dismissed the wpa claim on the basis of a faulty interpretation of the law. According to plaintiff, the December 16, 1991, decision in Dudewicz v Norris Schmid, Inc, 192 Mich App 247, 254; 480 NW2d 612, aff’d in part and rev’d in part 443 Mich 68; 503 NW2d 645 (1993), extended the application of the act and required that the court grant relief from its earlier order dismissing the whistleblowers’ claim. In considering plaintiff’s motion for relief from that order, the circuit court reviewed the whistleblowers’ claim in light of the Court of Appeals opinion in Dudewicz and determined that the grant of summary disposition had been appropriate. On appeal, the Court of Appeals, having the benefit of this Court’s analysis in Dudewicz, reduced the instant issue to whether the wpa was intended to protect “third parties whose violations, if any, have no connection to the business.” 208 Mich App 316, 318-319; 526 NW2d 922 (1995). The Court of Appeals found that the act did not apply, stating that “in order for the wpa to apply, the violation or suspected violation must be committed in the course of doing business.” Id. at 320. IV Michigan’s Whistleblowers’ Protection Act was first enacted in 1981, largely in response to the accidental PBB-contamination of livestock feed. The act “encourage[s] employees to assist in law enforcement and . . . protects] those employees who engage in whistleblowing activities.” It does so with an eye toward promoting public health and safety. The underlying purpose of the act is protection of the public. The act meets this objective by protecting the whistleblowing employee and by removing barriers that may interdict employee efforts to report violations or suspected violations of the law. Without employees who axe willing to risk adverse employment consequences as a result of whistleblowing activities, the public would remain unaware of large-scale and potentially dangerous abuses. To establish a prima facie case under the wpa, plaintiff must prove that she “reported] or [was] about to report ... a violation or a suspected violation of a law ... to a public body.” MCL 15.362; MSA 17.428(2). Plaintiff asserts that she was terminated “because [she] reported and/or was perceived to report a violation or a suspected violation of a law . . . .” Because plaintiff appeals from a motion granting summary disposition, all factual allegations supporting her claims must be accepted as true. v A motion for summary disposition under MCR 2.116(C)(8), tests the legal basis of the claim and is granted if the claim is so manifestly unenforceable as a matter of law that no factual progression could possibly support recovery. Simko v Blake, 448 Mich 648, 654; 532 NW2d 842 (1995). Motions for summary disposition are examined on the pleadings alone, absent consideration of supporting affidavits, depositions, admissions, or other documentary evidence, and all factual allegations contained in the complaint must be accepted as trae. Id. at 654. VI The pivotal question in this case is whether the plaintiff stated a valid claim of wrongful discharge from employment under the wpa where she alleged that she reported or was perceived to report a violation or suspected violation of the law. We find that she did. 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. As interpreted, the act provides protection to employees who report violations of law by either their employers or fellow employees. Dudewicz, 443 Mich 68. The act was intended to protect employees who alert the public to “corruption or criminally irresponsible behavior in the conduct of government or large businesses.” Id. at 75. Frequently, a close connection exists between the reported violation and the employment setting, although no such limitation is found in the statute. Id. In Dudewicz, the plaintiff worked as a parts manager for the defendant automobile dealership. In an effort to gain better service for a customer, the plaintiff, along with the dealership’s owner, convinced the service manager to perform work for the customer under warranty. After the owner left the area, the service manager allegedly assaulted the plaintiff. The plaintiff was fired when he refused to drop criminal charges against the service manager. A majority of this Court afforded the plaintiff protection under the WPA. While acknowledging that the connection between the violation and the employment setting was slightly more attenuated than “traditional notions of whistleblowing,” the majority found that the violation was “very much within the employer-employee setting.” In light of the approach taken in Dudewicz, we decline to limit application of the wpa to reported violations of the employer alone. In accordance with the plain language of the act, plaintiff has alleged that she was fired because she reported or was believed to have reported a violation of the law. This allegation is sufficient to state a claim of wrongful discharge from employment under the wpa. In addition, we find that the reported violation in the present case was sufficiently related to the employment setting to be protected under the wpa. This is not to say that only those violations that are connected to the employment setting are contemplated under the wpa, only that the reported violation in the present case was sufficiently connected to the employment setting to be contemplated under the majority opinion in Dudewicz. Accordingly, we find that the trial court erred in granting the defendant’s motion for summary disposition on the wpa claim. Because the wpa is the exclusive remedy against discharge in retaliation for the conduct at issue, the grant of the motion for summary disposition on the public policy claim is affirmed. Id. at 80. vn Lastly, plaintiff alleges that the defendant maintained written policies that gave rise to an express or implied contract of continued employment and a legitimate expectation that the plaintiff would not be terminated in a manner contrary to those policies. Both the circuit court and the Court of Appeals held that, as a matter of law, on the basis of defendant’s written disciplinary policies alone, plaintiff had no legitimate expectation of continued employment, nor could an inference be drawn that the relationship between the parties was a contract for termination for good cause only. We agree. It is a settled tenet of Michigan law that employment contracts for an indefinite term produce a presumption of employment at will absent distinguishing features to the contrary. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980). To overcome this presumption, evidence may be produced that proves the existence of an express contract for a definite term or an express provision in a contract that forbids termination absent just cause. Proof of a promise of job security implied in fact, such as employment for a particular term or a promise to terminate only for just cause, may also overcome the presumption. Rowe v Montgomery Ward & Co, Inc, 437 Mich 627; 473 NW2d 268 (1991). Furthermore, company policies and procedures may become an enforceable part of an employment relationship if such policies and procedures instill legitimate expectations of job security in employees. Rood v General Dynamics Corp, 444 Mich 107, 117-118; 507 NW2d 591 (1993). This presumption does not prevent proof of actual intent, nor should it sanction unjustified evasions of promissory liability. A Plaintiff does not allege that the defendant orally promised that her employment would continue indefinitely absent just cause for termination. Instead, she alleges that the defendant’s Human Resources Policy Manual incorporated written policies that established a progressive disciplinary system whereby plaintiff could be terminated only for cause. It is by virtue of these policies that plaintiff contends that an express or implied contract of employment arose and that a legitimate expectation was created that plaintiff would not be disciplined or terminated in a manner contrary to those stated policies. In Toussaint, supra at 610, this Court acknowledged that written statements in a company policy and procedure manual could give rise to enforceable rights in contract or to a legitimate expectation of just-cause employ-ment. In Renny v Port Huron Hosp, 427 Mich 415; 398 NW2d 327 (1986), that same idea found expression when the Court held that an employee handbook could provide the basis of a just-cause employment contract. Later, in Rood, this Court once again considered whether written policy statements provided the basis for an employment agreement terminable only for cause. The Court opined that where policy manuals are distributed throughout the company our inquiry is not limited to the question whether the employer sufficiently manifested an intention to enter a single contractual just-cause employment relationship with the party before the Court, but, rather whether the employer has sufficiently manifested an intention to enter such a relationship with all employees subject to the relevant policies and practices. [Id. at 136.][] According to the Court in Rood, the mere dissemination of an employee handbook that implied a discharge-for-cause policy was insufficient as a matter of law to state a cause of action for breach of contract. Policies such as these “may become part of an employment contract only when the circumstances (e.g., the language in the handbook itself, or an employer’s oral statements or conduct) clearly and unambiguously indicate that the parties so intended.” Id. at 137. Plaintiff alleges that she was wrongfully terminated from her employment contrary to defendant’s written policy statements that expressly or impliedly formed the basis of her employment agreement with the defendant. Plaintiff acknowledges that defendant’s policies were not unique to her, but were applicable to all the defendant’s employees. Absent allegations in the pleadings that clearly and unambiguously indicate the defendant’s intent to create a just-cause employment relationship with all its employees, or in particular with this plaintiff, we hold that plaintiff has not, as a matter of law, stated a claim on which relief can be granted. B Plaintiff next contends that she had a legitimate expectation that she would not be terminated, or otherwise disciplined, in a manner contrary to the policies set forth in the defendant’s policy and procedure manual. In other words, plaintiff contends that she had a legitimate expectation of just-cause employment. The legitimate-expectations prong of Toussaint was founded on this Court’s common-law authority to recognize enforceable obligations that arise outside the scope of normal contract principles. The theory operates as a viable, independent basis for enforcing promises of job security contained in policy statements that are circulated “either ‘to the work force in general or to specific classifications of the work force, rather than to an individual employee.’ ” Having announced its policy, and presumably having been benefited by that policy, the employer may not then treat it as illusory. Employer policy statements that are “reasonably capable of being interpreted” as promises to discharge for just cause only, or that are capable of two reasonable interpretations, create an issue of fact for the jury. Defendant’s policy manual states that its progressive disciplinary action plan “allows an employee the opportunity to make necessary corrections in their performance.” It also establishes that discipline “should be used only when other efforts have failed or if the violation in question precludes other alternatives.” Additionally, the manual states that “[t]he supervisor must investigate early and thoroughly to be fair as well as to prepare for possible testimony that just cause existed for disciplinary action.” Defendant’s disciplinary policies also expressly indicate, however, that certain situations may require more severe action than that detailed in the policy manual. In situations where the appropriate disciplinary action is not designated in the manual, the supervisor is not precluded from taking the necessary action, but is required to contact the Human Resource Department to “discuss the proper approach.” Particularly relevant are defendant’s policies on involuntary terminations. Although the policies indicate that “[e]very effort will be made to improve employee performance and correct deficiencies to avoid termination of employment,” they also state that “[w]ith the exception of serious infractions, an employee will be given the opportunity to correct deficiencies.” Infractions serious enough to require automatic termination are listed in the policy manual. Also listed are those infractions that may warrant dismissal on the first offense. Infractions resulting in possible first offense termination include “[r]efusing to follow directions from supervisors or showing gross insubordination.” The policy and procedure manual expressly states that the listed offenses are only “examples of common offenses for which employees may be terminated for cause” and is not an all-inclusive list. As this Court held in Rood, supra, “[a] nonexclusive list of common-sense rules of behavior that can lead to disciplinary action or discharge, clearly reserves the right of an employer to

DeFLAVIIS v LORD & TAYLOR, INC Docket No. 186156. Submitted March 4, 1997, at Detroit. Decided May 13, 1997, at 9:10 A.M. Gabriel and Maria DeFlaviis brought an action in the Wayne Circuit Court against Lord & Taylor, Inc., alleging claims of defamation and unlawful retaliation based on the Civil Rights Act following the defendant’s termination of Gabriel’s employment. The court, Richard P. Hathaway, X, granted summary disposition for the defendant. The plaintiffs appealed. The Court of Appeals held: 1. Section 701 of the Civil Rights Act, MCL 37.2701; MSA 3.548(701), allows Gabriel, a former employee, to bring an action alleging unlawful retaliation as a result of Lord & Taylor’s postemployment actions allegedly taken in retaliation for Gabriel’s having filed an action against Lord & Taylor in the federal courts alleging age discrimination in violation of the Civil Rights Act. 2. The plaintiffs presented a prima facie case of unlawful retaliation. Summary disposition of the plaintiffs’ unlawful retaliation claim was improper. 3. The plaintiffs presented evidence indicating that the defendant took an adverse employment action against Gabriel that resulted in Gabriel’s loss of an opportunity to work for another employer. Summary disposition of this claim was improper. 4. The plaintiffs presented sufficient evidence to create an issue of material fact with regard to their defamation claim. Summary disposition of the defamation claim was improper. Reversed and remanded. 1. Civil Rights — Unlawful Retaliation — Master and Servant. A plaintiff seeking to establish a prima facie case of unlawful employment-related retaliation under the Civil Rights Act must show that the plaintiff engaged in a protected activity, that this was known by the defendant, that the defendant took an employment action adverse to the plaintiff, and that there was a causal connection between the protected activity and the adverse employment action (MCL 37.2701; MSA 3.548[701]). 2. Civil Rights — Master and Servant — Postemployment Discrimination. A former employee may bring an action under the Civil Rights Act against a former employer for postemployment actions of the employer allegedly taken in retaliation for the employee’s having engaged in activity protected under the Civil Rights Act such as the filing of an action under the Civil Rights Act alleging age discrimination in employment by the employer (MCL 37.2701; MSA 3.548[701]). 3. Torts — Defamation — Elements. The elements of a defamation claim are: a false and defamatory statement concerning the plaintiff, an unprivileged communication to a third party, fault amounting to at least negligence on the part of the publisher, and either actionability of the statement irrespective of special harm or the existence of special harm caused by publication. Reosti, James & Sirlin, RC. (by Ronald Reosti), and Neal Bush, for the plaintiff. Moffett & Dillon, PC. (by Stephen T. Moffett and Christine Marakas Battle), for the defendant. Before: Doctoroff, P.J., and Michael J. Kelly and Young, JJ. Per Curiam. Plaintiff appeals as of right from the trial court’s order awarding summary disposition to defendant with regard to plaintiff’s unlawful retaliation action brought pursuant to the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and plaintiff’s defamation action. We reverse and remand. Briefly, in 1990, plaintiff was terminated from his position as regional alterations director for defendant, Lord & Taylor, Inc. According to plaintiff, defendant’s stated reason for the termination was that plaintiff had provided free alterations to company executives. Subsequently, plaintiff filed a lawsuit against defendant in the United States District Court, Eastern District of Michigan, alleging, among other things, age discrimination in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. Summary disposition was granted in favor of defendant in that case in an unpublished opinion issued February 24, 1992 (Docket No. 91-CV-60024-AA). In May 1992, plaintiff interviewed with Scott Cullen, operations manager for Neiman Marcus, for the position of alterations manager at the Troy Neiman Marcus store. Plaintiff claimed that during the interview he explained the circumstances surrounding his discharge from Lord & Taylor and that Cullen told him that the discharge would have no effect on the hiring decision made by Neiman Marcus. Thereafter, in the summer of 1992, Gary Manson, director of security for Neiman Marcus, called Craig Cunningham, who was vice president of loss prevention for Lord & Taylor, and requested information regarding plaintiffs discharge. Manson indicated that Cunningham told him that plaintiff was terminated for cause for giving away alterations and for bringing in outside work and having it performed by defendant’s tailors, and that plaintiff had personally benefited from the work performed. Manson stated in an affidavit that he decided not to hire plaintiff because of the discrepancies between plaintiff’s explanation and Cunningham’s explanation of the reasons for plaintiff’s discharge. On the other hand, Cunningham claimed that he provided Manson no information regarding the circumstances surrounding plaintiffs discharge. Subsequently, plaintiff filed the instant lawsuit claiming that the alleged negative reference given by Cunningham to Manson was in retaliation for the age discrimination lawsuit plaintiff previously had filed against defendant in the federal court. Plaintiff also claimed that the remarks made by Cunningham to Manson were defamatory in nature. Subsequently, defendant moved for and was granted summary disposition. On appeal, plaintiff contends that the trial court erred in granting defendant summary disposition. Summary disposition was granted in favor of defendant pursuant to MCR 2.116(C)(10) on the basis that plaintiff had failed to present credible evidence “to establish the existence of the disputed material facts.” This Court reviews de novo the trial court’s order under MCR 2.116(C)(10). Michigan Mutual Ins Co v Dowell, 204 Mich App 81, 85-86; 514 NW2d 185 (1994). When conducting this review, we examine the entire record in a light most favorable to the nonmoving party to determine whether a record could be developed that would leave open an issue on which reasonable minds could differ. Id. Giving the nonmoving party the benefit of reasonable doubt, “[t]he trial court must review the record evidence, make all reasonable inferences therefrom, and determine whether a genuine issue of material fact exists . . . .” Bertrand v Alan Ford, Inc, 449 Mich 606, 617-618; 537 NW2d 185 (1995). Summary disposition is proper where no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Id. However, a court may not weigh the evidence before it or make findings of fact; if the evidence before it is conflicting, summary disposition is improper. Barnell v Taubman Co, Inc, 203 Mich App 110, 115; 512 NW2d 13 (1993). We first address the merits of the trial court’s ruling regarding plaintiff’s claim of unlawful retaliation based on the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. We find the trial court improperly granted summary disposition of this claim. Section 701 of the Civil Rights Act, MCL 37.2701; MSA 3.548(701) reads in relevant part as follows: Two or more persons shall not conspire to, or a person shall not: (a) Retaliate or discriminate against a person because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act. To establish a prima facie case of unlawful retaliation under the Civil Rights Act, a plaintiff must show (1) that he engaged in a protected activity; (2) that this was known by the defendant; (3) that the defendant took an employment action adverse to the plaintiff; and (4) that there was a causal connection between the protected activity and the adverse employment action. Polk v Yellow Freight System, Inc, 876 F2d 527, 531 (CA 6, 1989); see also Booker v Brown & Williamson Tobacco Co, Inc, 879 F2d 1304, 1310 (CA 6, 1989); Kroll v Disney Store, Inc, 899 F Supp 344, 348 (ED Mich, 1995). Before considering plaintiff’s contention that he established a prima facie case of retaliation, we must first determine whether the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) el seq., protects the activities of former employees like plaintiff. Plaintiff claims that former employees may sue for retaliation under the Civil Rights Act. Conversely, defendant asserts that Cunningham’s alleged negative reference to Manson could not have been unlawful retaliation under the Civil Rights Act because plaintiff was no longer employed by defendant at the time of the negative reference. Whether a former -employee may bring an action for unlawful retaliation under the Civil Rights Act is a question of first impression in Michigan. However, the United States Supreme Court, in Robinson v Shell Oil Co, 519 US_; 117 S Ct 843; 136 L Ed 2d 808 (1997), recently held that § 704(a) of title VII of the Civil Rights Act of 1964 protects former employees from retaliation by a former employer. While this Court is not bound by federal precedent based on title VII, those precedents analogous to questions presented under the Civil Rights Act are highly persuasive and will be considered by this Court. McCalla v Ellis, 180 Mich App 372, 377-378; 446 NW2d 904 (1989). Section 704(a) of title VII makes it unlawful “for an employer to discriminate against any of his employees or applicants for employment” who have either availed themselves of the protections of title VII or assisted others in doing so. 78 Stat 257, as amended, 42 USC 2000e-3(a). The Robinson Court determined that the term “employees” as used in § 704(a) included former employees so that the petitioner could bring suit against his former employer for post-employment actions allegedly taken in retaliation for the petitioner’s having filed a charge with the Equal Employment Opportunity Commission (eeoc): Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and “the statutory scheme is coherent and consistent.” The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole. In this case, consideration of those factors leads us to conclude that the term “employees,” as used in § 704(a), is ambiguous as to whether it excludes former employees. At first blush, the term “employees” in § 704(a) would seem to refer to those having an existing employment relationship with the employer in question. This initial impression, however, does not withstand scrutiny in the context of § 704(a). First, there is no temporal qualifier in the statute such as would make plain that § 704(a) protects only persons still employed at the time of the retaliation. That the statute could have expressly included the phrase “former employees” does not aid our inquiry. Congress also could have used the phrase “current employees.” But nowhere in Title VII is either phrase used — even where the specific context otherwise makes clear an intent to cover current or former employees. . . . Second, Title VII’s definition of “employee” likewise lacks any temporal qualifier and is consistent with either current or past employment. . . . Third, a number of other provisions in Title VII use the term “employees” to mean something more inclusive or different than “current employees.” For example, §§ 706(g)(1) and 717(b) both authorize affirmative remedial action . . . “which may include . . . reinstatement or hiring of employees.” 42 USC §§ 2000e-5(g)(l) and 2000e-16(b). As petitioner notes, because one does not “reinstate]” current employees, that language necessarily refers to former employees. Likewise, one may hire individuals to be employees, but one does not typically hire persons who already are employees. * * * Of course, there are sections of Title VII where, in context, use of the term “employee” refers unambiguously to a current employee, for example those sections addressing salary or promotions. . . . Once it is established that the term “employees” includes former employees in some sections, but not in others, the term standing alone is necessarily ambiguous and each section must be analyzed to determine whether the context gives the term a further meaning that would resolve the issue in dispute. Finding that the term “employees” in § 704(a) is ambiguous, we are left to resolve that ambiguity. The broader context provided by other sections of the statute provides considerable assistance in this regard. As noted above, several sections of the statute plainly contemplate that former employees will make use of the remedial mechanisms of Title VII. Indeed, § 703(a) expressly includes discriminatory “discharge” as one of the unlawful employment practices against which Title VII is directed. 42 USC § 2000e-2(a). Insofar as § 704(a) expressly protects employees from retaliation for filing a “charge” under Title VII, and a charge under § 703(a) alleging unlawful discharge would necessarily be brought by a former employee, it is far more consistent to include former employees within the scope of “employees” protected by § 704(a). In further support of this view, petitioner argues that the word “employees” includes former employees because to hold otherwise would effectively vitiate much of the protection afforded by § 704(a). . . . * * * We hold that the term “employees,” as used in § 704(a) of Title VII, is ambiguous as to whether it includes former employees. It being more consistent with the broader context of Title VII and the primary purpose of § 704(a), we hold that former employees are included within § 704(a)’s coverage. [Robinson, supra, 136 L Ed 2d 813-817 (citations omitted).] While we note that § 704(a) of title VII refers to discrimination against “employees” and the analagous provision of the Civil Rights Act, MCL 37.2701; MSA 3.548(701) (hereinafter referred to as § 701), refers to retaliation or discrimination against a “person,” indicating that perhaps § 701 provides broader protection than § 704(a) of title VII, we find persuasive and adopt the reasoning set forth in Robinson and hold that § 701 of the Civil Rights Act protects former as well as current employees. Section 701 “clearly tracks” § 704(a) of title VII, Booker, supra, p 1312, and we believe that it should be construed in the same manner. Moreover, such an interpretation furthers the overall purpose of the Civil Rights Act, to prevent discrimination directed against a person because of that person’s membership in a certain class and to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases, Radtke v Everett, 442 Mich 368, 379; 501 NW2d 155 (1993); Noecker v Dep’t of Corrections, 203 Mich App 43, 46; 512 NW2d 44 (1993), and furthers the specific purpose of § 701, to protect access to the machinery available to seek redress for civil rights violations and to protect operation of that machinery once it has been engaged, Booker, supra. Having established that plaintiff, a former employee, is entitled to bring an action for unlawful retaliation under § 701 of the Civil Rights Act, we now find that plaintiff established a genuine issue of material fact regarding the existence of a prima facie case of unlawful retaliation, and summary disposition pursuant to MCR 2.116(C)(10) was therefore improper. Plaintiff, by filing the age discrimination action against defendant, was engaged in an activity protected under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. Moreover, defendant, a party to the age discrimination lawsuit, obviously knew that plaintiff had filed the age discrimination action. Next, plaintiff presented evidence to indicate that defendant took an adverse employment action against plaintiff that resulted in plaintiff losing the opportunity to work for Neiman Marcus. Gary Manson, Neiman Marcus’ director of security, testified during his deposition that Craig Cunningham, defendant’s vice president of loss prevention, informed him that plaintiff had been terminated for giving away alterations and for bringing in outside work, having it performed by defendant’s tailors, and personally benefiting from the work performed. In his affidavit, Manson averred that he decided not to hire plaintiff because of the discrepancies between plaintiffs version of the reasons he was fired and Cunningham’s version of the reasons plaintiff was fired. Cunningham, on the other hand, stated in his affidavit that he did not provide Manson with any information regarding the discharge and that it would be a violation of store policy to reveal the reasons for an employee’s discharge. Where, as here, the evidence is conflicting with regard to an element of plaintiff’s prima facie case, summary disposition is improper. Bamell, supra, p 115. Lastly, we believe that plaintiff presented some evidence that there was a causal connection between the protected activity, the age discrimination lawsuit, and the adverse employment action, Cunningham’s negative reference to Manson resulting in plaintiff losing the opportunity to work for Neiman Marcus. The age discrimination lawsuit was pending at the time Cunningham made his disparaging remarks to Manson. While plaintiff admitted that he performed alterations for defendant’s executives free of charge, he denied bringing in outside work and personally profiting from the performance of that work, and defendant presented no evidence to indicate that plaintiff had done so. Moreover, evidence was presented that indicated that Cunningham’s remarks were made in violation of store policy, an indication that perhaps there was a retaliatory motive behind the remarks. We believe it could be inferred from the evidence presented that Cunningham made the complained-of remarks in order to retaliate against plaintiff for his age discrimination lawsuit. If that was the purpose of the remarks, they had the desired effect. Manson acknowledged in his affidavit that he decided not to hire plaintiff after hearing Cunningham’s version of the reasons plaintiff was fired. Notes prepared by Manson immediately after his telephone conversation with Cunningham indicate that plaintiff was “rejected for hire” by Neiman Marcus as a result of the information supplied to Manson by Cunningham. In conclusion, we believe that plaintiff presented a prima facie case of unlawful retaliation. The trial court therefore erred in granting summary disposition in favor of defendant with regard to this claim. Next, we address the merits of plaintiffs’ defamation claim. We conclude that the trial court also erred in granting summary disposition of this claim. The elements of a defamation claim are (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged communication to a third party, (3) fault amounting to at least negligence on the part of the publisher, and (4) either actionability of the state-merit irrespective of special harm or the existence of special harm caused by publication. Northland Wheels Roller Skating Center, Inc v Detroit Free Press, Inc, 213 Mich App 317, 323; 539 NW2d 774 (1995). Plaintiff contends that defendant defamed him when Cunningham told Manson that plaintiff had been terminated for cause for giving away alterations and that plaintiff had “personally benefited from the work.” Specifically, plaintiff points to the following portion of Manson’s deposition testimony: Mr. Cunning

PHINNEY v PERLMUTTER PHINNEY v ADELMAN PHINNEY v UNIVERSITY OF MICHIGAN BOARD OF REGENTS Docket Nos. 175485, 175857, 176940. Submitted June 18, 1996, at Detroit. Decided April 4, 1997, at 9:00 A.M. Carolyn Phinney, formerly employed as a senior research associate at the Institute of Gerontology at the University of Michigan, brought an action in the Washtenaw Circuit Court against institute research scientist Marion Perlmutter, institute director Richard Adelman, and investigator Lois Verbrugge and an action in the Court of Claims against the University of Michigan Board of Regents. Phinney alleged that Perlmutter, among other things, committed fraud and misrepresentation in appropriating Phinney’s research and making false representations about the prospects of obtaining foundation grants for continued research and about Phinney’s continued employment at the institute. Phinney alleged that Adelman, Verbrugge, and the board of regents, among other things, violated the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seq.; MSA 17.428(1) et seq., in taking retaliatory actions against Phinney after she complained about misconduct by Perlmutter. Judge Patrick J. Conlin, sitting as the circuit court and the Court of Claims in the respective actions, granted summary disposition for Verbrugge and found no cause of action against the board of regents. A jury returned verdicts against Perlmutter and Adelman. The circuit court entered a judgment on the verdicts, awarded prejudgment interest against Perlmutter from the date of Phinney’s fourth amended complaint and against Adelman from the date of Phinney’s first amended complaint, and denied Phinney’s request for an award of attorney fees against Adelman under the wpa. Perlmutter, Adelman, and Phinney appealed and Phinney and the board of regents cross appealed. The appeals were consolidated. The Court of Appeals held: 1. Perlmutter’s claim that the circuit court lacked subject-matter jurisdiction in view of federal copyright law is without merit. Phinney’s claim against Perlmutter was for fraud, a state-law claim over which federal courts have no jurisdiction. Phinney’s claim is not preempted by the Copyright Act in the absence of evidence that Phinney’s writings were registered with the Register of Copyrights. 2. The circuit court did not abuse its discretion in granting Phinney leave to file a fourth amended complaint against Perlmutter in the absence of a showing by Perlmutter of resulting prejudice. 3. The circuit court did not err in denying Perlmutter’s motion for summary disposition based on the statute of frauds. Assuming, for the purposes of argument, that Phinney’s fraud claim against Perl-mutter is inextricably intertwined with a contract of employment, an agreement for an indefinite term of employment, such as that which Phinney had, is generally regarded as not being within the proscription of the statute of frauds. 4. The circuit court did not err in denying Perlmutter’s motion for a directed verdict based on governmental immunity. A question of fact existed regarding whether Perlmutter’s actions were so reckless as to demonstrate a substantial lack of concern for whether injury resulted. 5. The circuit court did not abuse its discretion in denying Perl-mutter’s motions for a directed verdict, judgment notwithstanding the verdict, and a new trial, which were all based on a claim of insufficient evidence of fraud or misrepresentation. A rational trier of fact can conclude from the evidence presented that Perlmutter made material misrepresentations, that they were false, that Perl-mutter knew they were false or made them recklessly without knowledge of their truth or falsity, that Perlmutter made the misrepresentations with the intent that Phinney would act on them, that Phinney acted in reliance on Perlmutter’s misrepresentations, and that Phinney suffered damages. 6. The circuit court did not abuse its discretion with respect to any of the evidentiary rulings challenged by Perlmutter on appeal. 7. The circuit court did not err in refusing to instruct the jury, as requested by Perlmutter, that “[djamages for emotional distress, humiliation, injury to reputation or exemplary damages are not available in a fraud claim,” but did err in limiting the available damages to those based on contract principles. Damages for mental and emotional distress may be awarded where, as here, there is allegation and proof of tortious conduct independent of a breach of contract. The circuit court’s error in limiting damages does not require reversal. The circuit court did not err in refusing to instruct the jury, as requested by Perlmutter, that reliance by Phinney on the alleged misrepresentations by Perlmutter had to be reasonable. Fraud requires proof of actual, but not reasonable, reliance on the alleged misrepresentation. Appellate review of Perlmutter’s claim that the circuit court erred in instructing the jury about burden of proof is precluded in light of Perlmutter’s failure to object at trial to the instruction that was given. 8. Perlmutter waived the issue concerning the lack of a distinction between past and future damages inasmuch as she stipulated the use of a general verdict form. 9. The damages assessed against Perlmutter are not excessive because they are not higher than the highest amount the evidence can support. The circuit court did not abuse its discretion in denying Perlmutter’s motion for a new trial on the grounds of jury misconduct and improper closing argument by Phinney’s counsel. The alleged jury misconduct concerned the jury’s conduct after trial and therefore did not affect the trial or the evidence presented at trial. The circuit court was in the best position to determine whether the jury’s verdict was motivated by such impermissible considerations as passion, bias, or anger. 10. The circuit court did not abuse its discretion in denying Perl-mutter’s motion for a new trial on the ground of newly discovered evidence. Evidence of an interview of Phinney is ambiguous, and the fact that Phinney avoided further injury upon discovering Perl-mutter’s scheme does not undo the damage that was inflicted. 11. The circuit court did not abuse its discretion in denying Perl-mutter’s motion for a new trial on the asserted ground of jury prejudice in the absence of an affirmative showing by Perlmutter of prejudice. 12. Phinney is entitled to prejudgment interest from Perlmutter from the date of the original complaint against Perlmutter, not the date of the fourth amended complaint by which Phinney first alleged the claim of fraud and misrepresentation and on which the judgment was issued. Prejudgment interest is paid from the date of the original complaint because the purpose of prejudgment interest is to compensate the prevailing party for expenses incurred in bringing an action for money damages and for any delay in receiving such damages. Prejudgment interest for future damages may be assessed where, as here, the action does not result from personal bodily iryury. The case must be remanded for recalculation of prejudgment interest against Perlmutter. 13. The circuit court had proper jurisdiction over the wpa claims against Adelman. The wpa defines “employers” to include state entities and specifies that actions thereunder may be filed in the circuit court. The Legislature, in enacting the wpa, waived the right of state entities to be sued only in the Court of Claims. 14. Adelman’s claim on appeal that Phinney was not entitled to a jury trial with regard to the wpa claims is without merit. State entities against whom claims under the wpa are brought may be subjected to jury trials. In any event, Adelman consented to the jury trial. 15. The circuit court did not abuse its discretion in granting Phinney leave to file a fourth amended complaint against Adelman in the absence of a showing of bad faith on Phinney’s part or prejudice to Adelman and in view of the imposition of $10,000 in costs against Phinney. Amendment was not futile because the claims against Adelman were not barred by the applicable statute of limitations. 16. For purposes of reviewing Adelman’s claim on appeal that Phinney’s action against him is barred by the ninety-day statute of limitations of the wpa, the filing date is October 1, 1990, the date of Phinney’s original complaint, not April 1, 1991, the date of the first amended complaint by which Phinney first named Adelman as a defendant. Adelman’s counsel at trial had referred to October 1, 1990, as the filing date, and Adelman is thus barred from now taking the contrary position that the later date was the filing date. A civil action under the wpa must be brought within ninety days after the occurrence of the alleged violation of the wpa, MCL 15.363(1); MSA 17.428(3)(1). While two instances of alleged violations of the wpa by Adelman are within this limitation period, several others occurred before the ninety-day period. Phinney’s action against Adelman for alleged violations that occurred more than ninety days before she filed her action is timely under the continuing violations doctrine, which applies where there was a policy of discrimination, or, as in this case, a continuing course of conduct, i.e., a series of discriminatory acts that were sufficiently related so as to constitute a pattern, only one of which occurred within the limitation period. The circuit court did not err in denying Adelman’s motion for summary disposition based on the statute of limitations in light of the existence of a genuine issue of material fact concerning whether Adelman had engaged in continuing violations of the wpa. 17. Phinney’s claims against Adelman under the wpa are not barred by governmental immunity, and the circuit court did not err in denying Adelman’s motions for summary disposition, a directed verdict, and judgment notwithstanding the verdict, all of which were based on governmental immunity. The act explicitly includes the state in its definition of “employer” and includes an agent of an employer within its definition of “employer.” The governmental immunity statute must be read in pari materia with the wpa, the extension of the remedies under the wpa is consistent with the protections that the governmental immunity act offers to governmental employees against third parties, and the wpa not only contains no language freeing the government from its requirements, regulations, and restraints, but it explicitly includes the state among those employers who are subject to the act. The wpa, being more special and particular than the governmental immunity statute, was intended to be an exception to the governmental immunity statute, because the Legislature must be presumed not to have intended a conflict. 18. The wpa, insofar as it abrogates governmental immunity, does not, as Adelman claims on appeal, violate the Title-Object Clause of the Michigan Constitution. The purpose of the wpa is to protect employees who suffer retaliation for reporting violations of law. The inclusion of the state among employers subject to wpa is incidental to the purpose of the wpa and need not have been stated in the title of the wpa. 19. The circuit court did not abuse its discretion in denying Adelman’s motions for summary disposition, a directed verdict, and judgment notwithstanding the verdict, all of which were based on the asserted grounds that Phinney failed to prove that she had engaged in protected activity under the wpa, failed to establish any nexus between her activily and the nonrenewal of her appointment, or failed to demonstrate pretext. Viewing the evidence in the light most favorable to Phinney, the record discloses that she reported violations of law by Perlmutter to the university, a public body, that there was a sufficient nexus between Phinney’s reporting of such violations and the retaliatory actions taken by Adelman against her, and that her failure to publish academic writings was a pretext for the retaliatory actions taken against her. 20. Phinney’s claims against Adelman are within the scope of the WPA. 21. Adelman, by failing to object at trial, failed to preserve as an issue on appeal his claim that the circuit court failed to properly instruct the jury about quantum of proof. Manifest injustice will not result from the Court of Appeals’ decision not to review this issue. 22. The fact that the circuit court jury ruled against Adelman while the Court of Claims ruled in favor of the board of regents with regard to similar claims under the wpa does not mean that the trial judge improperly deferred to the jury. A trial court sitting as the Court of Claims is not obligated to return a verdict consistent with the jury’s verdict in a circuit court action joined with the Court of Claims action. 23. The circuit court did not abuse its discretion in several evidentiary rulings challenged by Adelman on appeal. 24. The circuit court did not err in denying Adelman’s motions for remittitur or a new trial. The damages assessed against Adelman were not higher than the highest amount the evidence can support, and the jury’s verdict was not motivated by impermissible considerations. Adelman waived the issue concerning a lack of distinction between past and future damages by not objecting to the verdict form used. Contrary to Adelman’s assertion, damages for emotional distress may be awarded in an action under the wpa. 25. Attorney fees in an action under the wpa may be awarded by the trial court at its discretion. In this case, the circuit court did not abuse its discretion in refusing Phinney’s request for attorney fees after considering the contingent fee arrangement between Phinney and her counsel. 26. Prejudgment interest assessed against Adelman must be from the date of the first amended complaint, when Adelman was first named as a defendant, not from the date of the fourth amended complaint, when the claims under the wpa were first made against Adelman. Prejudgment interest on future damages may be awarded where, as here, the action does not result from personal bodily injury. The case must be remanded for recalculation of the amount of prejudgment interest Adelman must pay. 27. The circuit court did not err in granting summary disposition for Verbrugge on the basis of the expiration of the period of limitation applicable to the action against her. Phinney failed to establish any fraudulent concealment, MCL 600.5855; MSA 27A.5855, by Verbrugge that would have tolled the running of the period of limitation. 28. The Court of Claims did not clearly err in finding that Phinney had failed to establish that the board of regents had violated the wpa. The record supports the Court of Claims’ findings that the board had legitimate, nondiscriminatory reasons for actions taken' against Phinney and that Phinney had not shown that those reasons were a pretext. Phinney waived the issue of a wrong burden of proof being employed by the Court of Claims when she failed to raise it in the statement of questions presented. Affirmed; circuit court case remanded for recalculation of prejudgment interest. 1. Fraud — Reliance on Misrepresentation. Fraud requires proof of actual, but not reasonable, reliance on an alleged misrepresentation. 2. Interest — Prejudgment Interest — Amended Complaints. The purpose of prejudgment interest is to compensate the prevailing party for expenses incurred in bringing an action for money damages and for any delay in receiving such damages; prejudgment interest against a defendant who loses with regard to a cause of action raised in an amended complaint should be assessed from the date of the original complaint; prejudgment interest against a defendant who is added in an amended complaint and who loses with regard to a cause of action first raised in a later amended complaint should be assessed from the date of the amended complaint by which the defendant was added (MCL 600.6013[1]; MSA 27A.6013[1]). 3. Interest — Prejudgment Interest — Future Damages. Prejudgment interest may be awarded for future damages where the action does not result from personal bodily injury (MCL ' 600.6013[1], 600.6301; MSA 27A.6013[1], 27A.6301). 4. Master and Servant — Whistleblowers’ Protection Act — Statute of Limitations — Continuing Violations. A civil action under the Whistleblowers’ Protection Act must be brought within ninety days after the occurrence of the alleged violation of the act; violations that occur more than ninety days before the bringing of the action are actionable under the continuing violation doctrine where there is a policy of discrimination or a continuing course of conduct, i.e., a series of discriminatory acts that are sufficiently related so as to constitute a pattern, only one of which occurs within the limitation period (MCL 15.363[1]; MSA 17.428[3][1]). 5. Governmental Immunity — Whistleblowers’ Protection Act. A civil action under the Whistleblowers’ Protection Act against a governmental entity or agent in their capacity as employer is not barred by governmental immunity (MCL 15.361[b], 691.1401 et seq.; MSA 17.428[l][b], 3.996[101] et seq). 6 Constitutional Law — Title-Object Clause — Whistleblowers’ Protection Act — Governmental Immunity. The Whistleblowers’ Protection Act, insofar as it abrogates governmental immunity, does not violate the Title-Object Clause of the Michigan Constitution (Const 1963, art 4, § 24; MCL 15.361 [b]; MSA 17.428[l][b]). 7. Master and Servant — Whistleblowers’ Protection Act — Emotional Distress Damages. Damages for emotional distress are awardable in a civil action under the Whistleblowers’ Protection Act (MCL 15.363[1], [3]; MSA 17.428[3][1],[3]). Green & Green (by Philip Green) (Sommers, Schwartz, Silver & Schwartz, PC. by Patrick Burkett, of Counsel), for Carlyon Phinney. Bodman, Longley & Dahling, LLP (by Jerold Lax), for Marion Perlmutter. Butzel Long (by Diane M. Soubly and James S. Rosenfeld), for Lois Verbrugge, Richard Adelman, and University of Michigan Board of Regents. Before: Wahls, P.J., and Murphy and C. D. Corwin, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Wahls, P.J. Defendant Marion Perlmutter hired plaintiff, Carolyn Phinney, as a senior research associate at the Institute of Gerontology (lOG) at the University of Michigan. At the time, Perlmutter was a research scientist at the lOG, and defendant Richard Adelman was the director of the institute. Plaintiff accused Perlmutter of stealing her research. Adelman appointed defendant Lois Verbrugge to conduct an investigation. The investigators found that Perlmutter was not guilty of scientific misconduct. Perlmutter was also found not guilty in two other investigations concerning allegations that she committed plagiarism. In the meantime, plaintiff lost her job at the lOG. Plaintiff sued, alleging that Perlmutter had defrauded her of her research and that Adelman and defendant University of Michigan Board of Regents retaliated against her for reporting Perlmutter’s misconduct. The jury agreed with plaintiff and awarded her $133,000 in damages against Perlmutter for fraud and $989,200 against Adelman for retaliatory discrimination. The trial court, sitting as the Court of Claims, found no cause of action against the board of regents with regard to plaintiffs claim under the Whistle-blowers’ Protection Act (wpa), MCL 15.361 el seq.; MSA 17.428(1) et seq. In Docket No. 175485, which involved the fraud claim, Perlmutter appeals and plaintiff cross appeals the judgment against Perlmutter. We affirm in part and remand for a recalculation of the amount of prejudgment interest to which plaintiff is entitled. In Docket No. 175857, the retaliation claim against Adelman, Adelman appeals and plaintiff cross appeals the judgment against Adelman. We affirm in part and remand for a recalculation of the amount of prejudgment interest to which plaintiff is entitled. In Docket No. 176940, the claim against the board of regents, plain