Retaliation Cases

PEARLY VEREEN, Plaintiff v. KELLY HOLDEN, Individually and In his official capacity as Brunswick County Commissioner; DONALD SHAW, Individually and In his official capacity as Brunswick County Commissioner; JERRY JONES, Individually and In his official capacity as Brunswick County Commissioner; WAYLAND VEREEN, In his official capacity as Brunswick County Commissioner; DON WARREN, In his official capacity as Brunswick County Commissioner; TOM RABON, In his official capacity as Brunswick County Commissioner; GENE PINKERTON, In his official capacity as Brunswick County Commissioner; FRANKIE RABON, In his official capacity as Brunswick County Commissioner; DAVID CLEGG, Individually and In his official capacity as Interim Manager; and BRUNSWICK COUNTY, Defendants No. COA94-1150 (Filed 5 March 1996) 1. Counties § 124 (NCI4th)— legislative immunity — tests Legislative immunity exists for county legislators, known as county commissioners in North Carolina, provided they are able to prove that they were acting in a legislative capacity at the time of the alleged incident and that their acts were not illegal acts. Am Jur 2d, Public Officers and Employees §§ 358-363. 2. Counties § 124 (NCI4th)— dismissal of county employee— defense of legislative immunity — denial of judgment on pleadings proper The trial court properly denied defendant county commissioners’ motion for judgment on the pleadings with respect to their defense of legislative immunity because it is too early in the case to determine the applicability of legislative immunity where defendants have not had the opportunity to prove either provision of the legislative immunity test, and plaintiff has alleged sufficient facts which, if true, would establish that he was dismissed from county employment in an administrative rather than legislative action which violated his constitutional rights. Am Jur 2d, Public Officers and Employees §§ 369, 370. 3. Labor and Employment § 77 (NCI4th)— wrongful termination — public policy exception to employment-at-will doctrine — sufficiency of complaint to state claim Plaintiff county employee alleged sufficient facts in his complaint to state a claim against defendant county commissioners for wrongful termination under the public policy exception to the employment-at-will doctrine where he alleged that he was fired by defendants due to his political affiliation and activities, and there was no merit to defendants’ argument that N.C.G.S. § 153A-99, which prohibits political coercion in county employment, was inapplicable because it became effective after plaintiff’s discharge, since it could still be used to demonstrate the public policy of the .State. Am Jur 2d, Wrongful Discharge § 34. Discharge from private employment on ground of political views or conduct. 51 ALR2d 742. 4. Labor and Employment § 54 (NCI4th)— breach of contract — personnel policy manual not part of contract — claim properly dismissed The trial court did not err in dismissing plaintiff’s breach of contract claim since there was no merit to plaintiff’s contention that the county personnel policy manual was part of his employment contract. Am Jur 2d, Wrongful Discharge § 97. Right to discharge allegedly “at-will” employee as affected by employer’s promulgation of employment policies as to discharge. 33 ALR4th 120. 5. Labor and Employment § 69 (NCI4th)— dismissal of county employee — violation of procedural due process— judgment on the pleadings improper The trial court erred in granting defendants’ motion for judgment on the pleadings with respect to plaintiff’s procedural due process claim, since, in order for an employee to be entitled to procedural due process protection, he has to possess a property interest or right in continued employment; a crucial factor in determining whether plaintiff possessed a property right in continued employment was whether he was wrongfully terminated or whether he was released in a bona fide RIF and thus did not experience a violation of his due process rights; and resolution of this claim involved factual proof so that judgment on the pleadings was improper. Am Jur 2d, Wrongful Discharge § 6. Rights of state and municipal public employees in grievance proceedings. 46 ALR4th 912. Termination of public employment: right to hearing under due process clause of Fifth or Fourteenth Amendment — Supreme Court cases. 48 L. Ed. 2d 996. Appeal by plaintiff and cross-appeal by defendants from order and judgment entered 28 July 1994 by Judge Jack A. Thompson in Brunswick County Superior Court. Heard in the Court of Appeals 11 September 1995. Anderson & McLamb, by Sheila K. McLamb and Laura Thompson, for plaintiff. Faison & Fletcher, by Reginald B. Gillespie, Jr., Michael R. Ortiz, and Keith D. Bums, for defendants. LEWIS, Judge. Plaintiff instituted this action for wrongful termination, restraint against free political association, violation of due process and breach of contract; he sought damages, injunctive relief, specific performance, and punitive damages. Defendants moved to dismiss plaintiff’s claims. Defendants also pled the defense of legislative immunity and moved for judgment on the pleadings. The trial court dismissed the claims designated by the plaintiff as wrongful termination, specific performance, and breach of contract as to all the defendants and dismissed the restraint against free political association claim as to some of the defendants in their individual capacities. The trial court also granted defendants’ motion for judgment on the pleadings as to the due process claim. However, the court denied defendants’ motion for judgment on the pleadings based on their defense of legislative immunity. Both plaintiff and defendants appeal. Since the claims at issue were dismissed pursuant to Rule 12(b) (6) and Rule 12(c), we look to the allegations of the plaintiff’s complaint. Essentially, the complaint alleges that Plaintiff was employed by defendant Brunswick County as an Assistant Operations Service Director and Water Coordinator. In June 1991, the Board of Commissioners of Brunswick County voted to eliminate plaintiff’s position. Plaintiff was notified on 18 June 1991, that an upcoming reduction in force (RIF) would eliminate his position. The termination came 41 days prior, to the vesting of plaintiff’s retirement benefits. His performance was satisfactory and he had never received any reprimands or indications of poor performance. We first address defendants’ contention that the trial court erred in denying their motion for judgment on the pleadings based on legislative immunity. Motions for judgment on the pleadings pursuant to Rule 12(c) are designed to “dispose of baseless claims or defenses when the formal pleadings reveal their lack of merit.” Ragsdale v. Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499 (1974). The movant bears the burden of proving that, after viewing the facts and permissible inferences in the light most favorable to the non-movant, he or she is entitled to judgment as a matter of law. DeTorre v. Shell Oil Co., 84 N.C. App. 501, 504, 353 S.E.2d 269, 271 (1987). The subject of legislative immunity has never before been addressed by a North Carolina appellate court. However, the United States Supreme Court has recognized the deep roots of legislative immunity in American and English common law and its application to state legislators. Tenney v. Brandhove, 341 U.S. 367, 95 L.Ed 1019 (1951). In Tenney, the Supreme Court explained the reason for legislative immunity: “In order to enable and encourage a representative of the public to discharge his public trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offence.” Tenney, 341 U.S. at 373, 95 L.Ed at 1025 (quoting II Works of James Wilson (Andrews ed. 1896) 38). Later, the Court found legislative immunity equally applicable at the regional government level. Lake Country Estates v. Tahoe Planning Agcy., 440 U.S. 391, 405, 59 L.Ed.2d 401, 413 (1979). Although the United States Supreme Court has not, a majority of federal circuit courts have extended legislative immunity to local legislators. Rini v. Zwirn, 886 F.Supp. 270, 280 (E.D.N.Y. 1995). The Fourth Circuit has acknowledged legislative immunity for county legislators, known as county commissioners in North Carolina, provided they are able to prove: (1) that they were acting in a legislative capacity at the time of the alleged incident; and (2) their acts were not illegal acts. Scott v. Greenville County, 716 F.2d 1409, 1422 (4th Cir. 1983). Because we conclude that this test fairly, succinctly and clearly states the purpose of legislative immunity, we adopt it as a test in suits against local governments and local officials. Whether an action is legislative or administrative has been determined on a case by case basis. While eliminating a position for budgetary reasons has generally been found to be legislative, e.g. Baker v. Mayor and City Council of Baltimore, 894 F.2d 679, 682 (4th Cir.), cert. denied, 498 U.S. 815, 112 L. Ed. 2d 31 (1990), overruled on other grounds, 63 F.3d 295 (4th Cir. 1995); Rateree v. Rockett, 852 F.2d 946, 950 (7th Cir. 1988), hiring, firing and other employment decisions have been held to be administrative and not deserving of legislative immunity, e.g. Alexander v. Holden, 66 F.3d 62, 67 (4th Cir 1995); Detz v. Hoover, 539 F.Supp. 532, 534 (E.D. Pa. 1982). Applying the Scott rule to the case before us, it is clearly too early in the proceedings to determine the applicability of legislative immunity. Defendants have not had the opportunity to prove either provision of the legislative immunity test. Additionally, plaintiff has alleged sufficient facts that, if true, would establish that he was dismissed in an administrative action which violated his constitutional rights. As a result, we affirm the trial court’s denial of defendants’ motion for judgment on the pleadings with respect to their defense of legislative immunity. We now address the substance of plaintiff’s assignments of error. Plaintiff first argues that the trial court erred in dismissing his wrongful termination claim because his complaint adequately states a claim under the public policy exception to the employment-at-will doctrine. We agree. A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint by determining “whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief can be granted under some legal theory.” Lynn v. Overlook Development, 328 N.C. 689, 692, 403 S.E.2d 469, 471 (1991). A Rule 12(b)(6) motion to dismiss for failure to state a claim should not be granted unless it “appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.” Sutton v. Duke, 277 N.C. 94, 103, 176 S.E. 2d 161, 166 (1970). Ordinarily, an employee without a definite term of employment is an employee-at-will and may be discharged for any reason. Still v. Lance, 279 N.C. 254, 259, 182 S.E.2d 403, 406 (1971). However, the North Carolina Supreme Court has recognized a public policy exception to the employee-at-will rule, stating: [Wjhile there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy. A different interpretation would encourage and sanction lawlessness, which law by its very nature is designed to discourage and prevent. Coman v. Thomas Manufacturing Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989) (quoting Sides v. Duke University, 74 N.C. App. 331, 328 S.E.2d 818, disc. review denied, 314 N.C. 331, 333 S.E.2d 490 (1985)). In the present case, plaintiff alleges that he was fired by defendants due to his political affiliation and activities. If true, this would contravene rights guaranteed by our State Constitution, see State v. Ballance, 229 N.C. 764, 769, 51 S.E.2d 731, 734 (1949), and the prohibition against political coercion in county employment stated in N.C. Gen. Stat. § 153A-99 (1991). As a result, if proven, these actions would surely violate North Carolina public policy. See Lenzer v. Flaherty, 106 N.C. App. 496, 515, 418 S.E.2d 276, 287, disc. review denied, 332 N.C. 345, 421 S.E.2d 348 (1992). Defendants argue that G.S. § 153A-99 is inapplicable because it became effective after plaintiff’s discharge. Nonetheless, it can still be used to demonstrate the public policy of the State. See Williams v. Hillhaven Corp., 91 N.C. App. 35, 41, 370 S.E.2d 423, 426 (1988). We hold that plaintiff has alleged sufficient facts in his complaint to state a claim for wrongful termination under the public policy exception to the employment-at-will doctrine. The decision of the trial court dismissing this claim is reversed and this matter is remanded for trial on wrongful termination. Plaintiff also argues that the trial court erred in dismissing his breach of contract claim based on the fact that the Brunswick County Personnel Policy Manual (Personnel Policy) was part of his employment contract. We are not persuaded by this argument. This Court has held that “unilaterally promulgated employment manuals or policies do not become part of the employment contract unless expressly included in it.” Walker v. Westinghouse Electric Corp., 77 N.C. App. 253, 259, 335 S.E.2d 79, 83-84 (1985), disc. review denied, 315 N.C. 597, 341 S.E.2d 39 (1986). Plaintiff relies on Trought v. Richardson, 78 N.C. App. 758, 338 S.E.2d 617, disc. review denied, 316 N.C. 557, 338 S.E.2d 18 (1986). In that case, this Court found plaintiff’s allegations that her employer’s policy manual was part of her contract sufficient to state a claim for wrongful discharge. Id. at 762, 338 S.E.2d at 620. However, in Trought, the plaintiff was required to sign a statement that she had read the personnel manual and agreed to obey the regulations it contained. Id. at 760, 338 S.E.2d at 618. Consequently, this Court determined that she had sufficiently alleged that the contract was expressly included in her employment contract as required by Walker v. Westinghouse. Id. at 762, 338 S.E.2d at 620. There are no such facts alleged in the present case. Additionally, even if the Personnel Policy was part of plaintiff’s employment contract, there was no breach. The policy specifically states that employees may be released due to a RIF. Under this section, all that is required is two weeks notice, which defendants provided. It was not error to dismiss plaintiff’s breach of contract claim. Plaintiff also assigns error to the dismissal of his “claim” for specific performance. Since we have dismissed plaintiff’s breach of contract claim, we affirm the dismissal of his specific performance “claim” as it is a remedy for breach of contract. Finally, with respect to his procedural due process claim, plaintiff argues that the trial court erred in granting defendants’ motion for judgment on the pleadings. It is well settled in North Carolina that in order for an employee to be entitled to procedural due process protection he or she has to possess a “property interest or right in continued employment.” Soles v. City of Raleigh Civil Service Comm., 119 N.C. App. 88, 91, 457 S.E.2d 746, 749 (1995). We hold that viewing the allegations as true, defendants are not entitled to judgment as a matter of law. Given this Personnel Policy, a crucial factor in determining whether, if at all, plaintiff possessed a property right in continued employment is whether or not he was wrongfully terminated. If not, he was released in a bona fide RIF as provided by the policy and has not experienced a violation of his due process rights. Since resolution of this claim involves factual proof, judgment on the pleadings was improper. We also find no need to address plaintiff’s contentions regarding the dismissal of his claim for injunctive relief. The trial court’s dismissal of this claim stemmed from its dismissal of all of the underlying claims. Since we have remanded the issue of wrongful termination, we remand this claim to the trial court to determine if injunctive relief is appropriate. For the foregoing reasons, the order and judgment of the trial court is affirmed in part, reversed in part, and remanded. Judges EAGLES and JOHN concur.

Lisa A. Prader vs. Leading Edge Products, Inc. No. 94-P-476. Worcester. November 2, 1995. January 19, 1996. Present: Brown, Kass, & Porada, JJ. Federal Labor Standards Act. Labor, Discharge. Public Policy. Employment, Termination, Sexual harassment. Practice, Civil, Affidavit. In a civil action the judge correctly ordered summary judgment for the defendant employer where the plaintiff asserted no facts in support of her claims that she was discharged in violation of the anti-retaliation provision of the Fair Labor Standards Act, 29 U.S.C. § 215 (a) (3) [617-618], or for a reason contrary to public policy [618-619], or that she was subject to sexual harassment in her work place [619-620]. The judge in a civil action did not err in refusing to strike, on hearsay grounds, portions of an affidavit submitted in support of a motion for summary judgment where a copy of the affiant’s deposition was filed that clarified the statements in the affidavit. [620] Civil action commenced in the Superior Court Department on October 15, 1992. The case was heard by Charles J. Hely, J., on a motion for summary judgment. James M. Parker for the plaintiff. Howard M. Brown for the defendant. Porada, J. After the plaintiff was fired by the defendant, she filed a complaint in the Superior Court alleging wrongful termination on the grounds that her discharge constituted a violation of the Fair Labor Standards Act, 29 U.S.C. §§ 215(a) (3) and 216(b) (1988), and the public policy which permits an employee to report an alleged criminal violation by her employer to the police. She also claimed that her employer’s conduct violated the Massachusetts sexual harassment law, G. L. c. 214, § 1C. The defendant filed a motion for summary judgment based on the ground that the plaintiff failed to meet her burden of proof that the employer’s conduct constituted a violation of law. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). The Superior Court judge agreed and entered judgment for the defendant. The plaintiff appeals, claiming: (1) that she had produced sufficient evidence at the summary judgment stage to meet her burden and (2) that the judge erred in failing to allow her motion to strike parts of an affidavit submitted by the defendant in support of its motion for summary judgment. We affirm. 1. Federal Labor Standards Act claim. The plaintiff asserts that the defendant violated the anti-retaliation provision of the Fair Labor Standards Act, 29 U.S.C. § 215(a) (3). Under § 215(a) (3) of the Act, if the immediate cause or motivating factor of a discharge is the employee’s assertion of statutory rights, then the discharge of the employee constitutes a violation even if other grounds for discharge exist. If the employee’s assertion of statutory rights is not the motivating factor, however, then the discharge is not unlawful. Martin v. Gingerbread House, Inc., 977 F.2d 1405, 1408 (10th Cir. 1992). Here, the only fact asserted by the plaintiff to support her claim was that she was one of eight employees who received back pay awards for overtime work following an investigation by the Department of Labor. The defendant averred, however, that none of the other employees who received back pay awards was fired and that the plaintiff was fired because of numerous complaints from customers and staff about her uncooperative attitude. The defendant’s reason for firing the plaintiff was buttressed by a written performance evaluation by the plaintiff’s immediate supervisor some months prior to her receipt of the back pay award which, although in general favorable to the plaintiff, stated that the plaintiff needed improvement in the following categories: attitude, tact, communication and courtesy. Accordingly, the plaintiff failed to meet her burden of demonstrating a causal link between her discharge and her receipt of back pay. See Hoeppner v. Crotched Mountain Rehabilitation Ctr., Inc., 31 F.3d 9, 14 (1st Cir. 1994) (conclusory allegation of retaliation unsupported by specific facts is insufficient to survive summary judgment). 2. Public policy claim. The plaintiff claims that her employment was terminated on October 23, 1991, because of a complaint for assault and battery that she filed against her supervisor, Margaret Cardamone, with the Westborough police department. She alleges that on September 27, 1991, the two of them got into a verbal confrontation at work and as she started to walk away, Cardamone grabbed her arm, started to shake it, and uttered obscenities at her. The plaintiff reported the incident to management and the police. There is no dispute that the plaintiff was an at-will employee of the defendant. As such, her employment could be terminated at any time for any reason or for no reason at all. Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 668 n.6 (1981). Relief may, however, be had in some circumstances where an at-will employee’s termination is contrary to public policy. Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 149-150 (1989). “Redress is available for employees who are terminated for asserting a legally guaranteed right (e.g., filing workers’ compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury).” Ibid. Another public policy basis for imposing liability is where there has been retaliation for the performance of an important public deed. See Flesner v. Technical Communications Corp., 410 Mass. 805, 810-811 (1991). The plaintiff has not specified which of the categories of public policy violation her situation falls into. Arguably, it falls into the category of assertion of her legally guaranteed rights. Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass, at 149. Nevertheless, assuming she could not be fired for reporting the incident to the police, it is not enough for her to assert that she was fired for that reason. She was required to produce evidence sufficient to meet her burden of proving a causal relationship between the two events. Although she alleged that she told two other employees that she had filed a police report against Cardamone, there was no evidence that those individuals played any role in the decision to fire her nor was there evidence that the president of the defendant corporation, who made the decision to fire the plaintiff because of her uncooperative attitude, was even aware that she had filed a police report. Absent such evidence, the claim fails. Brunner v. Stone & Webster Engr. Corp., 413 Mass. 698, 704 (1992). 3. Sexual harassment claim. The plaintiff alleges that the excessive use of profanity in the defendant’s work place, particularly from Cardamone, resulted in a sexually hostile work place and, thus, constituted a violation of G. L. c. 151B, § 1(18). Here, the plaintiff’s claim fails, because she produced no evidence that those remarks constituted sexual harassment as defined by the statute or were directed to her based on her sex. See Lipsett v. Rive-Mora, 669 F. Supp. 1188, 1199 (D. P.R. 1987), and cases collected therein. Although the words used by Cardamone do have an explicit sexual connotation, their meaning and usage is not limited to that connotation. Her words amounted to no more than crass garden-variety expletives; they were not sexual commands or lurid innuendos. While scenarios can exist in which explicit sexually charged language alone constitutes harassment, see, e.g., Moffett v. Gene B. Glick Co., 621 F. Supp. 244, 269-270 (N.D. Ind. 1985), the “culture of profanity” in existence at the defendant’s work place, although offensive to the plaintiff, simply was not a form of sexual harassment. Cf. Ramsdell v. Western Mass. Bus Lines, Inc., 415 Mass. 673 (1993). As one Federal court astutely observed, “Title VII is not a clean language act. . . .” Scott v. Sears, Roebuck & Co., 798 F.2d 210, 213 n.2 (7th Cir. 1986), quoting from Katz v. Dole, 709 F.2d 251, 256 (4th Cir. 1983). We similarly conclude that G. L. c. 151B, § 1(18), does not mandate “clean language” in the work place. 4. Motion to strike. The plaintiff claims the motion judge erred in refusing to strike portions of an affidavit of the defendant’s manager of human resources filed by the defendant in support of its motion for summary judgment. The plaintiff claims those portions should have been struck as hearsay. We conclude that any deficiencies in the affidavit were cured by the defendant’s filing with the court a copy of the manager’s deposition which clarified the statements contained in her affidavit. Judgment affirmed. Sexual harassment is defined as “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (a) submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions; (b) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.” G. L. c. 151B, § 1(18), as amended through St. 1986, c. 588, § 2. The plaintiff complains that the supervisor referred to her as a “cocksucker” and “a fucking . . . .”

Freenezetter Ashford vs. Massachusetts Bay Transportation Authority & others. Suffolk. October 3, 1995. December 26, 1995. Present: Liacos, C.J., Abrams, Lynch, Greanby, & Fried, JJ. Practice, Civil, Interlocutory appeal, Injunctive relief. Appeals Court, Concurrent jurisdiction, Appeal from order of single justice, Direct appellate review by the Supreme Judicial Court. Supreme Judicial Court, Jurisdiction. Injunction. Discussion of the interlocutory review procedures set forth in G. L. c. 231, § 118. [565-568] This court dismissed the complaint of a litigant who did not follow the procedures set forth in G. L. c. 231, § 118, first and second pars., in Mass. R. A. P. 6 (a), or in G. L. c. 211 A, § 10, in seeking injunctive relief or in seeking review of the denial of her request for injunctive relief. [568] This court stated that henceforth sanctions may be imposed for a litigant’s or attorney’s improper appeal. [568-569] Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 28, 1994. The case was heard by O’Connor, J. Sanford A. Kowal for the plaintiff. Sandra DeSantis for Massachusetts Bay Transportation Authority & others. John McMahon, for Local Division 589, Amalgamated Transit Union & another, was present but did not argue. Local Division 589, Amalgamated Transit Union; Thomas McGary; Alice McLaughlin; and Richard Murphy. Abrams, J. The plaintiff, Freenezetter Ashford, appeals from the denial by a single justice of this court of her request for injunctive relief. Relying on G. L. c. 231, § 118, first and second pars. (1994 ed.), and G. L. c. 231, § 112 (1994 ed.), Ashford appealed to the Supreme Judicial Court for Suffolk County (single justice session) after a single justice of the Appeals Court denied her motion requesting that the Massachusetts Bay Transportation Authority (MBTA) be ordered to reinstate her as a bus driver. For the reasons stated below, we conclude that this appeal should be dismissed. 1. Facts. On December 14, 1992, Ashford was terminated from her job as a bus driver with the MBTA after the MBTA investigated an incident in which she allegedly assaulted another employee. According to the MBTA, Ashford was terminated for four violations of MBTA rules and for her unsatisfactory disciplinary record. Ashford filed a complaint in the Superior Court against the. MBTA, alleging racial discrimination and violations of 42 U.S.C. §§ 1981, 1983, 1985; Title VII of the Civil Rights Act of 1963; G. L. c. 151B (1994 ed.); G. L. c. 93, § 102 (1994 ed.); and Massachusetts common law. She also filed a complaint against Local Division 589, Amalgamated Transit Union, for violation of its duty of fair representation and for failure to take her grievance to arbitration. She also sought damages from three individuals involved in her discharge. In the Superior Court, Ashford moved for a preliminary injunction ordering the MBTA to reinstate her. She asserted that the loss of her job was an irreparable injury, because, due to the delay inherent in litigation, she could not be adequately compensated by any future damage award. Ashford therefore concluded that she had no adequate remedy at law. A Superior Court judge denied the motion, determining that Ashford had not proved a likelihood of success on the merits and that she had an adequate remedy at law. Ashford en- tered a complaint pursuant to G. L. c. 231, §§ 118 and 112, in this court seeking the grant of the preliminary injunction that had been denied in the Superior Court. The clerk correctly transferred the case to the Appeals Court, and a single justice of the Appeals Court denied Ashford’s request for relief. Ashford then appealed to a single justice of this court. That was error. 2. Procedure. It is settled that absent “special authorization,” Cappadona v. Riverside 400 Function Room, Inc., 372 Mass. 167, 169 (1977), “an appellate court will reject attempts to obtain piecemeal review of trial rulings that do not represent final dispositions on the merits.” R.J.A. v. K.A.V., 34 Mass. App. Ct. 369, 372 (1993). General Laws c. 231, § 118, provides such authorization in a narrow range of cases. The first and second paragraphs of § 118 describe two distinct interlocutory procedures. See Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615 (1980); Demoulas Super Mkts., Inc. v. Peter’s Mkt. Basket, Inc., 5 Mass. App. Ct. 750, 752 n.3. (1977). The first paragraph allows a litigant to petition the appropriate appellate court. The “appropriate appellate court” is the court — either this court or the Appeals Court — “in which any ultimate appeal of the completed case would have to be entered.” Foreign Auto Import, Inc. v. Renault Northeast, Inc., 367 Mass. 464, 470 (1975). The Appeals Court is the appropriate appellate court if it has concurrent jurisdiction with this court. G. L. c. 211 A, §§ 1, 10 (1994 ed.). Commonwealth v. Friend, 393 Mass. 310, 313 (1984). See Appeals Court Rule 2:01 (1995). Generally, the Appeals Court has concurrent jurisdiction over matters arising in Superior Court. G. L. c. 211 A, § 10. In a case like this, the petition referred to in § 118, first par., is a pleading (complaint) submitted to a single justice of the appropriate court requesting injunctive relief. Foreign Auto Import, supra at 469-470. The single justice “enjoys broad discretion to deny the petition, or to ‘modify, annul or suspend the execution of the [trial court’s] interlocutory order,’ ... or, finally, to report the request for relief to the appropriate appellate court.” Packaging Indus. Group, supra at 614, quoting Rollins Envtl. Servs., Inc. v. Superior Court, 368 Mass. 174, 181 (1975). Accord Gibbs Ford, Inc. v. United Truck Leasing Corp., 399 Mass. 8, 10 n.8 (1987). This authority includes the power to grant an injunction that has been denied in the Superior Court. See Edwin R. Sage Co. v. Foley, 12 Mass. App. Ct. 20, 22-25 (1981). An Appeals Court single justice’s grant of injunctive relief is immediately appealable to a panel of the Appeals Court. Nabhan v. Selectmen of Salisbury, 12 Mass. App. Ct. 264, 269 (1981). So too, the order of a single justice of this court granting injunctive relief is immediately appealable to this court. See Rollins Envtl. Servs., Inc. v. Superior Court, 368 Mass. 174, 181 (1975). The denial of injunctive relief is not reviewable “unless the single justice has reported his action to the full court or has allowed a petition requesting interlocutory appellate review.” Carista v. Berkshire Mut. Ins. Co., 394 Mass. 1009, 1009-1010 (1985), quoting Corbett v. Kargman, 369 Mass. 971, 971-972 (1976). Rollins Envtl. Servs., Inc., supra at 181. Nabhan, supra at 266. The second paragraph of G. L. c. 231, § 118,allows a litigant a direct appeal from the order of the trial judge granting or denying injunctive relief. See Packaging Indus. Group, supra at 613 (“We also conclude, as a matter of Massachusetts practice, that appeals pursuant to G. L. c. 231, § 118, second par., properly lie to the Appeals Court, or, in an appropriate case, to this court, rather than to a single justice of either court”); Gibbs Ford, supra at 10 n.8. See also Demoulas Super Mkts., supra at 751-752 & n.3 (“the procedure for taking an appeal [pursuant to § 118, second par.] ... is precisely the same as that for taking an appeal from a final judgment”). After an appeal under G. L. c. 231, §118, second par., is properly entered in the Appeals Court, the litigant has twenty days to petition this court for direct appellate review. See G. L. c. 211 A, § 10 (A); Mass. R. A. P. 11, as amended, 378 Mass. 938 (1979). Although the first and second paragraphs of G. L. c. 231, § 118, offer distinct avenues of relief, see Packaging Indus., supra at 615, a party taking an appeal from the denial of a request for injunctive relief pursuant to the second paragraph also may seek temporary relief, available at the discretion of the single justice, pursuant to the first paragraph. Id. at 614. Edwin R. Sage Co. v. Foley, supra at 22, 24. See Demoulas Super Mkts., supra at 754 (if relief from full court pursuant to § 118, second par., is proper, relief pursuant to § 118, first par., from single justice is an available alternative). Alternatively, a litigant may, pending appeal, seek temporary relief pursuant to Mass. R. A. P. 6 (a), as amended, 378 Mass. 930 (1979), which provides in pertinent part: “In civil cases, an application ... for an order suspending, modifying, restoring or granting an injunction during the pendency of an appeal . . . may be made to the appellate court or to a single justice . . . .” Ashford’s complaint pursuant to G. L. c. 231, § 118, first par., was heard and denied by a single justice of the Appeals Court. Absent a report, that decision may not be reviewed until the entire case is ripe for review. Nabhan, supra at 266. Ott v. Preferred Truck Leasing, Inc., 9 Mass. App. Ct. 875, 876 (1980). The single justice did not, however, dispose of Ashford’s appeal pursuant G. L. c. 231, § 118, second par., because that appeal lay directly to the Appeals Court. Ash-ford could have asked the single justice to expedite that appeal or to grant relief (pursuant to either G. L. c. 231, § 118, first par., or Mass. R. A. P. 6 [a]), pending that appeal. After entering her appeal in the Appeals Court, Ash-ford could have applied to this court for direct appellate review. G. L. c. 211 A, § 10. Mass. R. A. P. 11. Ashford followed none of these procedures. Instead, after the Appeals Court single justice denied her request for relief, Ashford appealed directly to a single justice of this court. Neither G., L. c. 231, § 118, nor our caselaw, permits a civil litigant to proceed from one single justice session to another in this manner. Therefore, neither Ashford’s complaint pursuant to G. L. c. 231, § 118, first par., nor her appeal pursuant to G. L. c. 231, § 118, second par., are properly before us. We take this opportunity to remind litigants and their attorneys that, “[bjecause of the delay and wastework which improper appeals necessarily entail, the perpetrator [either litigant or attorney] should expect not only dismissal of his appeal but also the possibility of double costs, penalty interest, or damages under the provisions of Mass. R. A. P. 25, as amended, 378 Mass. 925 (1979), [of G. L. c. 211 § 10,] of G. L. c. 211A, § 15, or of G. L. c. 231, §§ 6F or 6G.” Mancuso v. Mancuso, 10 Mass. App. Ct. 395, 402 (1980). Accord Pollack v. Kelly, 372 Mass. 469, 477 (1977) (imposing double costs); Matter of a Grand Jury Subpoena, 30 Mass. App. Ct. 462, 463 (1991), S.C., 411 Mass. 489 (1992). Because we have not reviewed procedure under G. L. c. 231, §118, recently, we do not impose sanctions in this case. Appeal dismissed. Initially, Ashford filed a complaint against the MBTA with the Massachusetts Commission Against Discrimination (MCAD). Pursuant to G. L. c. 151B, § 9 (1994 ed.), the MCAD dismissed the complaint at Ashford’s request. “[W]hen asked to grant a preliminary injunction, the judge initially evaluates in combination the moving party’s claim of injury and chance of success on the merits. If the judge is convinced that failure to issue the injunction would subject the moving party to a substantial risk of irreparable harm, the judge must then balance this risk against any similar risk of irreparable harm which granting the injunction would create for the opposing party. What matters as to each party is not the raw amount of irreparable harm the party might conceivably suffer, but rather the risk of such harm in light of the party’s chance of success on the merits. Only where the balance between these risks cuts in favor of the moving party may a preliminary injunction properly issue.” Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 617 (1980). Accord Planned Parenthood League of Mass., Inc. v. Operation Rescue, 406 Mass. 701, 710 (1990). At oral argument before this court, the focus was on the adequacy of Ashford’s remedy at law. Ashford’s reliance on G. L. c. 231, § 112 (1994 ed.), is misplaced. Section 112 sets forth the procedure for a report by the single justice. The single justice did not report this matter and thus § 112 is not applicable. Ashford did not seek relief pursuant to G. L. c. 211, § 3 (1994 ed.). General Laws c. 231, § 118, first par., provides, in pertinent part: “A party aggrieved by an interlocutory order of a trial court justice in the superior court . . . may file ... a petition in the appropriate appellate court seeking relief . . . .” Ashford’s assertion that Edwin R. Sage Co. v. Foley, 12 Mass. App. Ct. 20 (1981), stands for a contrary proposition is not correct. In Sage, unlike this case, the single justice authorized the litigant to pursue an interlocutory appeal. Id. at 21. General Laws c. 231, § 118, second par., provides, in pertinent part: “A party aggrieved by an interlocutory order of a trial court justice in the superior court . . . granting [or] refusing ... a preliminary injunction, . . . may appeal therefrom to the appeals court . . . .” In criminal cases, where the defendant has been convicted and sentenced, a motion to stay sentence may be heard by a single justice of this court after being denied by a single justice of the Appeals Court. Commonwealth v. Allen, 378 Mass. 489, 496-497 (1979).

CHANDLER v DOWELL SCHLUMBERGER, INC Docket No. 166009. Submitted April 12, 1995, at Grand Rapids. Decided October 24, 1995, at 9:05 a.m. Leave to appeal sought. Joseph W. Chandler brought an action in the Midland Circuit Court against Dowell Schlumberger, Inc., alleging retaliatory discharge from employment in violation of the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq. The court, Paul J. Clulo, J., granted summary disposition for the defendant, ruling that the act affords no relief where discharge is based on the employer’s mistaken belief that the employee has reported a violation by the employer to a public authority. The plaintiff appealed. The Court of Appeals held: The Legislature, in enacting the Whistleblowers’ Protection Act, sought to protect the public from violations of laws, rules, and regulations and to protect those employees who exercise their civic duty in reporting such violations. The protection of employees who report violations by their employers serves to encourage reporting by those employees who might otherwise be fearful of the consequences of reporting. Consistent with the purposes behind the act, the Legislature did not provide protection under the act to employees discharged because of their employers’ mistaken belief that the employees reported violations to public authorities. Such employees are entitled only to those legal protections to which all other discharged employees in Michigan are entitled. Affirmed. D.E. Shelton, J., dissenting, stated that the protection of the Whistleblowers’ Protection Act extends to an employee whose discharge is based on' the employer’s mistaken belief that the employee has reported a violation and that denying such an employee the protections of the act serves to discourage the reporting of violations. The case should be reversed and remanded for trial. References Am Jur 2d, Wrongful Discharge §§ 55-72. Liability for retaliation against at-will employee for public complaints or efforts relating to health or safety. 75 ALR4th 13. Master and Servant — Whistleblowers’ Protection Act. The Whistleblowers’ Protection Act forbids an employer from discharging an employee on the basis that the employee has reported or is about to report the employer to a public authority for a violation or suspected violation of a law or regulation; the act affords no protection to an employee whose discharge is based on a mistaken belief by the employer that the employee has reported a violation (MCL 15.362; MSA 17.428[2]). R. Drummond Black; for the plaintiff. Riecker, Van Dam & Gannon, P.C. (by Lynn S. Looby), for the defendant. Before: Gribbs, P.J., and Markman and D. E. Shelton, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Markman, J. Plaintiff appeals from an opinion and order of the Midland Circuit Court granting summary disposition in favor of defendant. We affirm. Plaintiff was employed by defendant beginning in June 1989. In January 1992, a new regulation went into effect requiring that defendant obtain certification for vehicles transporting hazardous materials on public roads. Plaintiff complained to defendant’s agents regarding defendant’s inconsistent compliance with the regulation. However, plaintiff did not report the violation to any public authority. On April 6, 1992, defendant was cited by the Michigan Department of Transportation for violating the regulation as a result of an anonymous tip. Shortly thereafter, defendant terminated plaintiffs employment. On July 8, 1992, plaintiff filed a complaint alleging that defendant was liable under the Whistle-blowers’ Protection Act (wpa), MCL 15.361 et seq.; MSA 17.428(1) et seq. Defendant moved for summary disposition pursuant to MCR 2.116(C)(8) and (10), alleging that plaintiff had been dismissed because of economic necessity and that plaintiff could not recover under the wpa because he had not engaged in the protected activity of reporting or being about to report illegal conduct to a public authority. The trial court granted defendant’s motion pursuant to. MCR 2.116(C)(10), reasoning that because plaintiff had never reported a violation to a public authority, he had not engaged in protected activity and thus had failed to state a prima facie case under the wpa. Plaintiff argues that the wpa protects an employee who has been discharged because of an erroneous perception that the employee has reported a violation of law, regulations, or rules to a public body. We disagree. The starting point in every case involving construction of a statute is the language itself. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993). The wpa, at MCL 15.362; MSA 17.428(2), provides the following: An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action. This Court has stated that under the wpa a prima facie case of retaliatory discharge requires proof (1) that the plaintiff was engaged in protected activities as defined by the act, (2) that the plaintiff was subsequently discharged, and (3) that a causal connection existed between the protected activity and the discharge. Tyrna v Adamo, Inc, 159 Mich App 592, 601; 407 NW2d 47 (1987). The issue in this case involves the first and third requirements. The plaintiff did not report, nor does he argue that he was about to report, his employer’s violations to a public body. Thus, he was not "engaged in protected activities as defined by the act.” Because he was not so engaged, there also exists a lack of a causal connection between the discharge and "the protected activity.” Plaintiff claims, however, that he is entitled to protection under the wpa as a "perceived whistle-blower.” In support of his claim, plaintiff points to Sanchez v Lagoudakis, 440 Mich 496; 486 NW2d 657 (1992), in which the Michigan Supreme Court held that the Michigan Handicappers’ Civil Rights Act (mhcra) prohibited employer discrimination based on erroneous perception of membership in a protected category. The mhcra specifically provided a cause of action to employees who were subject to discrimination "because of a handicap.” MCL 37.1202(1); MSA 3.550(202X1); Sanchez, supra at 502. The Court held that the mhcra covered those érroneously perceived of as having a handicap, reasoning: The focus of the act was the basis of the employer’s conduct — the employer’s belief or intent — and not the employee’s condition. If the employer acts on a belief that the employee has a handicap, and subsequently discharges or otherwise discriminates against the employee on the basis of that belief, it is inconsequential whether the employee actually has the handicap because, in either hypothesis, the employer has undertaken the kind of discriminatory action that the act prohibits. Although not applicable to the case before it, the Supreme Court noted that in 1990, the Legislature amended the definition of "handicap” to include "[b]eing regarded as having” a handicap. Id. at 506. Plaintiff urges this Court to follow the rule established in Sanchez to afford protection to perceived whistleblowers. Plaintiff further points to Polk v Yellow Freight System, Inc, 801 F2d 190 (CA 6, 1986), in support of his claim. In Polk, the court concluded that a visit to the Michigan Civil Rights Commission was a protected activity under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. As. the court noted, the act "prohibits discrimination or retaliation against a' person 'because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act.’ [MCL 37.2701(a); MSA 3.548(701)(a)].” Id. at 197. The court, citing Gifford v Atchinson, T & S F R Co, 685 F2d 1149, 1156, n 3 (CA 9, 1982), found no legal distinction between filing a charge and threatening to file a charge. Id. at 200. The court then reasoned: We see no reason to distinguish between a visit to a government agency to inquire about filing a charge and a threat to file a charge. In both instances, the focus is not on whether the employee intends to follow through with, filing the charge, but rather on whether the employer’s decision to discharge was motivated by an improper desire to retaliate against an employee for pursuing rights granted by the Act. [Polk, supra at 200.] The issue whether the wpa affords protection to a perceived whistleblower has not been examined in Michigan. However, the issue of an employer’s knowledge or belief under the wpa was addressed in Kaufman & Payton, PC v Nikkila, 200 Mich App 250; 503 NW2d 728 (1993). In Kaufman & Payton, the counterplaintiff was employed by the law firm of Kaufman & Payton, P.C. Id. at 252. After becoming concerned with the legality of billing procedures that she had executed, she consulted outside counsel who subsequently sent letters to the firm questioning its billing practices and addressing the counterplaintiff’s future duties. Id. at 252-253. The counterplaintiff subsequently resigned. Id. at 253. Thereafter, she sent a request for investigation to the Attorney Grievance Commission and followed up with a formal complaint. Id. The counterplaintiff later alleged in her countercomplaint against the employer that she had been constructively discharged in violation of the wpa. Id. at 253-254. This Court found that the counterplaintiff’s failure to produce evidence that the firm believed, before she resigned, that the counterplaintiff would report her complaints to responsible agencies was fatal to her cause of action under the wpa. Id. at 254-258. A majority of the panel explained: An employer’s subjective fear of retaliation will not substitute for some form of notice of threatened action. Instead, an employer is entitled to objective notice of a report or a threat to report by the whistleblower. Neither Kaufman’s nor the firm’s knowledge that Nikkila [the counterpl’aintiff] had retained counsel, together with other unspecified evidence, yields an inference that the firm believed before she resigned that she would report her complaints to responsible agencies. [Id. at 257-258. Emphasis in original.] One could conceivably argue, under Kaufman & Payton, that plaintiff’s dismissal, which may have been based on a "fear” or "perception” of whistle-blowing, is not covered under the wpa. However, the problem with the counterplaintiff’s case in Kaufman & Payton was the lack of a causal connection between the alleged constructive discharge and protected activity under the wpa due to the employer’s apparent lack of belief or knowledge of any protected activity. In other words, if the employer did not believe or know of the employee’s protected activity, it would be difficult to imagine how that could have been the basis for discharge. In contrast, in the instant case, assuming plaintiff was discharged because of defendant’s erroneous perception of whistleblowing by plaintiff, defendant had the belief or knowledge of whistle-blowing. In fact, defendant in this case admitted that whistleblowing had taken place, the erroneous perception only being that the individual who engaged in the activity was the plaintiff. We recognize, of course, that a causal connection is nevertheless still lacking between the discharge and actual protected activity by the plaintiff. However, defendant’s motivation for the discharge here would be the same as an employer who discharges an employee actually engaged in protected activity. The question thus becomes whether that motivation is enough to provide protection under the wpa to the terminated employee who was not engaged in protected activity. In construing the wpa, plaintiff, citing Sanchez and Polk, would have us focus, not on the action of the employee, but instead on the motive or intent of the employer. In Sanchez and Polk, the Michigan Supreme Court and the Sixth Circuit Court of Appeals, respectively, both expressed the necessity of focusing on the motive or intent of the employer in the context of legislative acts seeking to prevent discrimination. However, we find Polk to be clearly distinguishable from the instant case. In Polk, the Sixth Circuit Court of Appeals noted its focus on employer motive in the context of a case in which the employee had in fact taken some action in an effort to resist discrimination. The court concluded that the employee was pursuing rights protected by the Civil Rights Act and was discharged as a result. In the instant case, however, we do not address whether plaintiff’s actions constitute protected activity under the wpa. It is undisputed that plaintiff neither reported nor was about to report defendant’s violations to a public body. We instead address whether, despite plaintiffs inaction, he is nevertheless entitled to protection under the wpa. In Sanchez, the employee was discharged because of an erroneous perception that she was handicapped. Thus, assuming that plaintiff was discharged because of an erroneous perception that he was a whistleblower, Sanchez provides considerable guidance. In deciding whether the employee was entitled to protection under the mhcra, the Supreme Court examined the language and purpose of the act. The Court concluded that the act focused on the employer’s belief or intent— the process of discrimination — and that denying protection to those erroneously perceived as having a handicap would be inconsistent with the mhcra’s intent of preventing discrimination based on handicap. Sanchez, supra at 502, 502-503, n 16. In deciding whether plaintiff is entitled to protection under the wpa, we similarly examine the language and purpose of the act. The wpa provides that an employer shall not discharge an employee because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body .... [MCL 15.362; MSA 17.428(2). Emphasis added.] In contrast with this section of the wpa is § 202(1) (b) of the mhcra, MCL 37.1202(l)(b); MSA 3.550(202)(l)(b), applied in Sanchez that protects against discharge "because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job or position.” Sanchez, supra at 502. Unlike the mhcra, which protects against discharge or other discrimination on the basis of inherent status, the wpa protects against discharge or other discrimination on the basis of certain concrete actions taken by the employee. However, this difference alone, while not irrelevant, does not appear to require disparate application of the two acts. The importance and effect of this distinction becomes more apparent when viewed in light of the respective purposes of the two acts. The purpose of the mhcra is to prevent discrimination — a process of thinking and conduct by the employer — based on handicap. As the Supreme Court reasoned, it would be inconsistent with that purpose to deny protection to those who are the victims of this process even though the perception is erroneous that they are handicapped. The harm on which the Legislature focused is the same whether the object of the discrimination was handicapped or not. We therefore consider whether a similar inconsistency would result if protection were denied to those discriminated against because of the erroneous perception that they are whistleblowers: The [legislative] analysis [of the wpa] recognizes the problem the wpa was designed to alleviate as the inability to combat corruption or criminally irresponsible behavior in the conduct of government or large businesses. House Legislative Analysis, HB 5088, 5089 (February 5, 1989). The analysis goes on to say that "[t]he people best placed to observe and report violations are the employees of government and business, but employees are naturally reluctant to inform on an employer or a colleague.” [Dudewicz v Norris Schmid, Inc, 443 Mich 68, 75; 503 NW2d 645 (1993). Emphasis omitted.] The wpa "seeks to protect the integrity of the law by removing barriers to employee efforts to report violations of the law” and also "to protect the public by protecting employees who report violations of laws and regulations.” Tyrna, supra at 599-600, citing Hopkins v City of Midland, 158 Mich App 361, 374; 404 NW2d 744 (1987). Violations of laws, rules, and regulations by employers do not just harm their employees but, by definition, also harm the interest of the public at large. However, the public is obviously not as likely to discover these violations as are employees. Statutory protection of the employee who reports a violation serves to encourage reporting by an employee who might otherwise be fearful of the consequences. As a result, the public is better served. In contrast, we do not believe that protection of employees who either are unable or unwilling to report violations of laws, rules, or regulations significantly encourages reporting. In fact, it is arguable that such protection under the wpa could discourage actual reporting where employees are cognizant that they will be protected absent any invocation of their civic duty as long as the employer erroneously believes the employee has engaged in such activity. Plaintiff claims that a primary purpose of the wpa is to discourage employers from retaliation against employees who have reported or are about to report legal violations to a public body. He thus argues that denying him protection would be inconsistent with that goal. We acknowledge that penalizing and discouraging employers are inevitable effects, and presumably inherent in the purpose, of the wpa. Certainly if we look at this as the wpa’s exclusive — or even principal — purpose, we could conclude, as the Supreme Court did in Sanchez, that protection to a perceived whistleblower is provided under the act. However, in doing so, and focusing principally upon the employer’s motive or intent under the wpa, we render it "inconsequential,” Sanchez, supra, whether the employee actually reports or is about to report a legal violation to a public body. Accordingly, we lose sight of the fact that plaintiff has not served or attempted to serve any public interest by reporting the very harm against which the wpa ultimately seeks to protect. The wpa specifically seeks to protect the public from violation of laws, regulations, and rules. How then can we conclude that the employee’s actions, which are so indispensable in facilitating this goal, are "inconsequential”? Unlike an inherent status such as a handicap, over which an employee has no control, an employee has full control over his actions. The wpa seeks to encourage those actions that assist in the protection of the public by in turn protecting the employee. Indeed, this is the only rationale for the wpa. Unlike the mhcra, whose purpose is to prevent discrimination per se, the wpa is designed to prevent discrimination but only as a means to a particular public policy end — an end to which plaintiff has not contributed in any way. In the instant case, plaintiff has not comported himself any differently than any other employee who did not engage in whistleblowing, the only difference b

CLERICAL-TECHNICAL UNION OF MICHIGAN STATE UNIVERSITY v MICHIGAN STATE UNIVERSITY BOARD OF TRUSTEES CLERICAL-TECHNICAL UNION OF MIHCIGAN STATE UNIVERSITY v MICHIGAN STATE UNIVERSITY Docket Nos. 165131, 165835. Submitted May 9, 1995, at Lansing. Decided October 20, 1995, at 9:00 a.m. Leave to appeal sought. The Clerical-Technical Union of Michigan State University, in separate cases before the Michigan Employment Relations Commission, filed a unit clarification petition and an unfair labor practice charge after Michigan State University unilaterally removed certain job positions from the bargaining unit represented by the Clerical-Technical Union. The Clerical-Technical Union additionally alleged failure by msu to bargain and that the transfer of one position to the unit represented by the Michigan State University Administrative-Professional Association constituted unlawful assistance to that union. In the unit clarification case, the commission decided that msu had unlawfully removed positions from the Clerical-Technical Union’s bargaining unit, issued a cease-and-desist order against msu, and ordered msu to issue to employees a notice explaining the unfair labor practice. In the unfair labor practice case, the commission decided that msu had engaged in an unfair labor practice and the commission ordered msu to cease refusing to bargain. The Clerical-Technical Union appealed in each case, and the Court of Appeals consolidated the appeals. The Court of Appeals held: 1. Section 16(b) of the public employment relations act, MCL 423.216(b); MSA 17.455(16)(b), provides that the Michigan Employment Relations Commission, upon finding an unfair labor practice, shall state its findings of fact, issue an order requiring the offender to cease and desist from the unfair labor practice, and take such affirmative action as will effectuate the policies of the act. The Court of Appeals will not disturb a remedy ordered by the commission pursuant to § 16(b) unless the remedy is a patent attempt to achieve ends other than those that can fairly be said to effectuate the policies of the act. Here, the commission’s order in the unit clarification case, insofar as it failed to direct further remedial action by msu, was a patent attempt to achieve ends other than those that can fairly be said to effectuate the policies of the act, among which is to promote the peaceful settlement of industrial disputes by subjecting labor-management controversies to the mediatory influence of negotiation. References Am Jur 2d, Labor and Labor Relations §§ 2642, 2821. See ALR Index under Labor and Employment. 2. The commission’s order in the unfair labor practice case was also a patent attempt to achieve ends other than those that can fairly be said to effectuate the policies of the act, insofar as the order allowed msu to raise reliance on prior decisions by the commission as a defense to the unfair labor practice charge and failed to place on msu the costs of its wrongdoing. 3. With respect to the claim that msu had engaged in an unfair labor practice by providing illegal assistance to the Michigan State University Administrative-Professional Association, the commission failed to make findings and issue an appropriate order. The commission must do so on remand. 4. The commission failed to decide the appropriate unit for representation by the Clerical-Technical Union. On remand, the commission must specifically state findings with respect to the appropriate unit. Reversed and remanded. Hoekstra, P.J., dissenting, stated that the commission’s orders constituted a lawful exercise of the commission’s discretionary authority pursuant to MCL 423.216(b); MSA 17.455(16) (b), that the commission is under no requirement to return the parties to the status quo ante or to effectuate the remedy requested by a prevailing party, and that the commission implicitly addressed the issues of illegal assistance to the Michigan State University Administrative-Professional Association and appropriate bargaining unit. Labor Relations — Public Employment Relations Act — Unfair Labor Practices — Michigan Employment Relations Commission — Appeal. The Michigan Employment Relations Commission, upon finding an unfair labor practice in a public employment setting, must state its findings of fact, issue an order requiring the offender to cease and desist from the unfair labor practice, and take such affirmative action as will effectuate the policies of the public employment relations act; the Court of Appeals will not disturb a remedy ordered by the commission for such unfair labor practice unless the remedy is a patent attempt to achieve ends other than those that can fairly be said to effectuate the policies of the act (MCL 423.216[b]; MSA 17.455[16][b]). Finkel, Whiteñeld & Selik, P.C. (by Bradley T. Raymond), for Clerical-Technical Union of Michigan State University. Sally S. Harwood, for Michigan State University Board of Trustees. White, Beckman, Przybylowicz, Schneider & Baird, P.C. (by James J. Chiodini), for Michigan State University Administrative-Professional Association, MEA/NEA. Before: Hoekstra, P.J., and Wahls and G. S. Buth, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Wahls, J. The Clerical-Technical Union of Michigan State University appeals as of right from two decisions and orders of the Michigan Employment Relations Commission (merc), which found that Michigan State University had committed an unfair labor practice but did not order restoration of the status quo ante. The merc issued cease-and-desist orders but not orders for further remedial action. We have consolidated the two appeals for the purpose of this opinion. We reverse and remand. Appellant represents a bargaining unit of clerical and technical employees of Michigan State University. The Michigan State University Administrative-Professional Association (apa), intervenor in Docket No. 165131, represents a bargaining unit of nonsupervisory administrative and professional employees. Supervisory employees are represented by a third bargaining unit that is not party to the proceedings involved here. On September 22, 1983, appellant and msu agreed to hire an outside consultant to conduct a jointly funded classification study. On January 30, 1986, the consulting firm’s proposal for the study was accepted by both appellant and msu. In August, 1987, the consulting firm issued its initial draft of the study, which reviewed four thousand employees of msu. On January 28, 1988, msu wrote to appellant and stated that it was "accepting for potential implementation the new classification descriptions, individual placements, grade levels, and PLSA/bargaining unit determinations” of the consulting firm. In February 1988, appellant filed the unit clarification petition at issue in Docket No. 165131, asserting that the bargaining unit status of certain positions was in dispute. In November 1988, msu sent notices to employees of changes in job title, grade level, and bargaining unit. On December 27, 1988, appellant initiated the proceedings involved in Docket No. 165131, alleging that msu had engaged in an unfair labor practice by unilaterally moving positions to a different bargaining unit on the basis of the study’s recommendations. Later, appellant filed an amended charge against msu, additionally alleging that the transfer constituted unlawful assistance to the apa. Hearing referee Bert H. Wicking recommended in Docket No. 165131 that the merc dismiss the unfair labor practice charges and unit clarification petition. On August 31, 1993, the merc held that msu had unlawfully removed positions from appellant’s unit without appellant’s agreement. The merc issued a cease-and-desist order and ordered msu to post a notice to employees that explained the unfair labor practice. The merc dismissed appellant’s unit clarification petition. The appeal in Docket No. 165131 followed. Meanwhile, the position at issue in Docket No. 165835, Financial Aid Officer I (fao i), was initially in the apa bargaining unit. However, pursuant to the classification study, the position was placed in appellant’s unit in October 1988. In June 1989, the Financial Aid Department requested a reclassification of the pao i position. The position was transferred back to the apa in August 1989. On October 26, 1989, appellant filed an unfair labor practice charge against msu in Docket No. 165835, alleging a failure to bargain. Later, appellánt filed an amended charge in which it additionally alleged that msu had unlawfully assisted the apa. On April 26, 1991, hearing referee James P. Kurtz issued his decision recommending that the merc dismiss appellant’s charge. On August 31, 1993, the merc held that msu’s unilateral transfer of positions to a different unit was an unfair labor practice and ordered msu to cease refusing to bargain. However, the merc did not order further remedial action. The appeal in Docket No. 165835 followed. i Appellant argues that the merc arbitrarily refused to grant remedies that would have restored the status quo ante. This Court will not disturb merc remedies unless the merc order is a "patent attempt to achieve ends other than those which can fairly be said to effectuate the policies” of the public employment relations act (pera), MCL 423.201 et seq.; MSA 17.455(1) et seq. Crestwood Ed Ass’n v Employment Relations Comm, 88 Mich App 409, 416; 276 NW2d 592 (1979). The merc’s power to order a remedy is "a broad discretionary one, subject to limited judicial review.” Van Buren Public School Dist v Wayne Circuit Judge, 61 Mich App 6, 32-33; 232 NW2d 278 (1975). The remedy for an unfair labor practice is statutorily provided as follows: If upon the preponderance of the testimony taken the commission is of the opinion that any person named in the complaint has engaged in or is engaging in the unfair labor practice, then it shall state its findings of fact and shall issue and cause to be served on the person an order requiring him to cease and desist from the unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this act. [MCL 423.216(b); MSA 17.455(16)(b).] Under the terms of the statute, upon finding an unfair labor practice, the merc must order the offender to cease and desist from the unfair labor practice. The statute does not explicitly state that the remedy must restore the status quo ante, but instead requires that the merc take other action "as will effectuate the policies of [the pera].” Generally, the pera authorizes the merc to issue a cease-and-desist order without requiring further action. Crestwood Ed Ass’n, supra, p 418. In Crestwood, this Court indicated that, although it believed that a more stringent remedy was warranted, it was not this Court’s role "to replace the remedy fashioned by merc with one consistent with our own views.” Id. Appellant argues that the opposite result is required by Rockwell v Crestwood School Dist Bd of Ed, 393 Mich 616, 642; 227 NW2d 736 (1975), where the Court held that the merc may not adopt an arbitrary policy of refusing to consider exercising its authority in matters falling within its jurisdiction. However, in that case, the merc responded to the union’s request to seek immediate relief with a response that it was "the consistent policy of this Commission to refrain from petitioning for temporary relief or a restraining order.” Id. In this case, there is no comparable policy. As amply cited in appellant’s briefs on appeal, the merc has used its authority in the past to order other remedies. The same result is true under federal law. In construing the pera, both the merc and Michigan courts have frequently been guided by the construction placed on the analogous provisions of the National Labor Relations Act (nlra), 29 USC 141 et seq. Rockwell, supra, p 636; Detroit Fire Fighters Ass’n v Detroit, 96 Mich App 543, 545; 294 NW2d 842 (1980). The provision of the pera at issue here, MCL 423.216(b); MSA 17.455(16)(b), is taken almost verbatim from the nlra, 29 USC 160(c). Appellant argues that both the Sixth Circuit Court of Appeals and the District of Columbia Circuit Court of Appeals have rejected analogous claims that the National Labor Relations Board (nlrb) possesses discretion to refuse to remedy unfair labor practices after finding that they have been committed. However, the cases cited by appellant stand for the proposition that the nlrb must issue a cease-and-desist order, not that it must order other action as well. UAW v NLRB, 427 F2d 1330, 1334 (CA 6, 1970); Int’l Woodworkers v NLRB, 127 US App DC 81; 380 F2d 628 (1967); see also Eichleay Corp v NLRB, 206 F2d 799, 805 (CA 3, 1953). The merc has complied with that requirement here. Indeed, the United States Supreme Court has affirmed the enforcement of an nlrb decision to issue a cease-and-desist order, but not to order reimbursement. Shepard v NLRB, 459 US 344, 349; 103 S Ct 665; 74 L Ed 2d 523 (1983). The Court reasoned that the statute does not require the nlrb "to reflexively order that which a complaining party may regard as 'complete relief for every unfair labor practice.” Id., p 352. The holding that the merc is authorized generally to remedy an unfair labor practice by issuing only a cease-and-desist order does not end the matter. We must still determine whether the merc orders here were "patent attempts] to achieve ends other than those which can fairly be said to effectuate the policies” of the pera. Crestwood Ed Ass’n, supra, p 416. The circumstances of this case are distinguishable from those in Crestwood, where the reinstatements that the charging party sought would not have restored the status quo immediately before the unfair labor practice. One purpose of the pera is "to promote the peaceful settlement of industrial disputes by subjecting labor-management controversies to the mediatory influence of negotiation.” Van Buren Public School Dist, supra, pp 25-26. In addition, provisions of the pera are to be construed liberally in favor of public employees as compensation for the act’s prohibition against striking. MESPA v Jackson Community College, 187 Mich App 708, 711; 468 NW2d 61 (1991); see Detroit Fire Fighters Ass’n v Detroit, 408 Mich 663, 684; 293 NW2d 278 (1980). In Docket No. 165835, the merc gave little guidance with respect to the reasoning behind its decision. It stated simply that "[i]t is not recommended that further remedial action be taken by the University for it well may have been led astray by prior decisions of this Commission.” The merc denied appellant’s motion for clarification or reconsideration of the remedy. Effective appellate review, as well as judicial and administrative accountability, requires that the merc clearly articulate the reasons behind any order, and particularly why other remedies were found to be inappropriate. NLRB v Pacific Southwest Airlines, 550 F2d 1148, 1152 (CA 9, 1977). Here, the merc erred in its sparse legal reasoning. A party’s claim that it acted in detrimental reliance on prior administrative decisions is not a defense to unfair labor practice allegations or the issuance of traditional remedies. See Clear Pine Mouldings v NLRB, 268 NLRB 1044; 115 LRRM 1113 (1984), enf'd 765 F2d 148 (CA 9, 1985). Either the company or the employees must bear the costs of the remedy. See NLRB v JH Rutter-Rex Mfg Co, 396 US 258, 263-264; 90 S Ct 417; 24 L Ed 2d 405 (1969). The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty that his own wrong has created. Bigelow v RKO Radio Pictures, Inc, 327 US 251, 265; 66 S Ct 574; 90 L Ed 652 (1946). Construing the pera liberally on behalf of msu employees, MESPA, supra, p 711, we find that msu should not have been granted the benefit of its wrongdoing. Accordingly, we hold that the merc’s order Docket No. 165835 was a "patent attempt to achieve ends other than those which can fairly be said to effectuate the policies” of the pera. Crestwood Ed Ass’n, supra, p 416. In addition, upon finding an unfair labor practice, the merc should have required msu to post a notice so that msu employees would have full and accurate information of the decisions of the merc. See Mooresville Cotton Mills v NLRB, 97 F2d 959, 963-964 (CA 4, 1938). In Docket No. 165131, the merc’s decision provided more guidance about its reasoning. First, it stated that it is reasonable to assume that msu. relied on the 1978 case to its detriment. Second, the merc found that "the bargaining unit changes cannot be separated from the other changes, e.g. classification, title and grade changes, which resulted from the study and which have now been in effect for more than four years.” The merc concluded that to return the positions removed from appellant now would cause "hopeless confusion.” However, as noted above, msu’s reliance on prior administrative decisions is not a defense to traditional remedies for unfair labor practices. See Clear Pine Mouldings, supra, p 1044, n 3. Moreover, the merc was concerned about the confusion that would result from reversing msu’s actions four years later. However, either the company or the employees had to bear the costs of the administrative delay. JH Rutter-Rex, supra, pp 263-264. Because msu was the wrongdoer, it should have been the party bearing the costs that its own wrong created. Bigelow, supra, p 265. Accordingly, we hold that the merc’s order in Docket No. 165131 was also a "patent attempt to . achieve ends other than those which can fairly be said to effectuate the policies” of the pera. Crestwood Ed Ass’n, supra, p 416. We remand both cases back to the merc to determine a remedy that will effectuate the policies of the pera. ii Appellant argues that the merc did not issue findings with regard to whether defendant provided illegal assistance to the apa. We agree. The merc is required to issue findings and an appropriate order regarding unfair labor practice allegations brought before it. MCL 423.216(b); MSA 17.455(16)(b). Similarly, under the nlra, when a complaint has been brought, the nlrb has two choices: it must determine either that a violation occurred or that it did not. UAW, supra, pp 1331-1332. There is no express authorization in the statutory language for the nlrb to abstain from deciding whether the alleged conduct violates the NLRA. Id., p 1332. Here, both of the merc’s opinions focused entirely on appellant’s complaints concerning msu’s refusal to bargain. Indeed, in Docket No. 165835, the merc specifically stated: "Nor is it material as to how the position of Financial Assistance Officer I came to be in the Charging Party’s bargaining unit.” Nowhere does the pera authorize the merc to abstain from deciding whether the alleged conduct violates the pera. See UAW, supra, p 1332. Upon remand, the merc must determine in both cases whether msu committed an unfair labor practice by providing illegal assistance to the apa. iii Appellant argues in Docket No. 165131 that the merc arbitrarily refused to decide the appropriate unit for collective bargaining. We agree. The pera requires the merc to state its findings. MCL 423.216(b); MSA 17.455(16)(b). Upon remand, the merc should specifically state its findings with respect to the appropriate bargaining unit. Reversed and remanded. G. S. Buth, J., concurred. Hoekstra, P.J. (dissenting). I respectfully dissent because I would conclude that the Michigan Employment Relations Commission (merc) orders in these consolidated cases constitute a lawful exercise of the merc’s discretionary authority pursuant to MCL 423.216(b); MSA 17.455(16)(b). This Court’s review of the merc’s remedial orders is very limited. This Court has consistently refused to substitute its judgment for that of the merc. Crestwood Ed Ass’n v Employment Relations Comm, 88 Mich App 409; 276 NW2d 592 (1979); Muskegon Co Profess

KIRK C. AUNE v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, DR. STUART BONDURANT, WILLIAM D. MATTERN, and EDWIN CAPEL No. COA94-1350 (Filed 17 October 1995) 1. Public Officers and Employees § 58 (NCI4th)— whistle-blowing claim — nonreappointment unrelated to whistle-blowing — summary judgment for defendants proper The evidence was sufficient to support summary judgment for defendants on plaintiffs whistleblower claim where plaintiff was not reappointed as an associate dean at a state university; defendants presented undisputed evidence that plaintiffs performance was scrutinized in compliance with university policy; defendants’ evidence specifically revealed that the final committee review, which recommended that plaintiff not be reappointed, was conducted fairly and without bias; the evidence was that there were questions regarding the adequacy of plaintiffs performance, of which plaintiff had knowledge, even before his whistleblowing to defendants; defendants’ evidence revealed that plaintiff’s nonappointment was based on his inability to collaborate with others; and plaintiff failed to show that his reports of conflicts of interest and possible misappropriation of state resources were a substantial factor in the nonrenewal of his appointment N.C.G.S. § 126-85. Am Jur 2d, Public Officers and Employees §§ 236-239, 261, 262, 288. Pre-emption by workers’ compensation statute of employee’s remedy under state “whistleblower” statute. 20 ALR5th 677. Pre-emption of wrongful discharge cause of action by civil rights laws. 21 ALR5th 1. 2. State § 23 (NCI4th)— emotional distress and misrepresentation — claims barred by sovereign immunity Summary judgment for defendant state university administrators on plaintiff’s emotional distress and misrepresentation claims was appropriate based on defendants’ claims of sovereign immunity, since allegations in the complaint involved acts of defendants performed within the bounds of their official duties and in their capacities as representatives of the state. Am Jur 2d, Damages §§ 41, 251-262; Municipal, County, School and State Tort Liability § 70; States, Territories and Dependencies §§ 104-111. Appeal by plaintiff from order entered 26 September 1994 in Orange County Superior Court by Judge Anthony M. Brannon. Heard in the Court of Appeals 12 September 1995. McSurely & Dorosin, by Mark Dorosin and Alan McSurely, and Levine Stewart & Davis, by John T. Stewart, for plaintiff-appellant. Attorney General Michael F. Easley, by Special Deputy Attorney General Thomas J. Ziko, for defendant-appellees. GREENE, Judge. Kirk C. Aune (plaintiff) appeals from the trial court’s entry of summary judgment in favor of the University of North Carolina at Chapel Hill (University), Dr. Stuart Bondurant (Bondurant), William D. Mattern (Mattern), and Edwin Capel (Capel) (collectively defendants) on plaintiffs “Whistleblower,” intentional and/or negligent infliction of emotional distress and misrepresentation claims. Oh 7 July 1993, plaintiff filed this action against defendants, alleging that in 1991, while he was employed by the University School of Medicine as the Associate Dean for Information Systems and Director of the Office of Information Systems (OIS), he reported to Mattern (Associate Dean of Academic Affairs) and Bondurant (Dean of the School of Medicine) “the existence of an apparent conflict of interest among some employees of the School of Medicine.” In 1992 he reported the “potential conflicts of interest as well as the possible appropriation of state resources by some employees of the School of Medicine for their own private commercial gain” to Capel (University’s internal auditor). He further alleges that “the decision to terminate [his] employment. . . was made in retaliation for the aforesaid reports” and in violation of N.C. Gen. Stat. §§ 126-84, -85. Plaintiff also alleged that the defendants “acted willfully, wantonly and intentionally and/or were negligent in their handling of the performance review and [his] attempt to report suspected misbehavior and conflicts of interest” and that he suffered severe emotional distress as a consequence. The plaintiff finally alleged that the University misrepresented “the fairness with which decisions about his continued employment would be made,” that Capel and the University misrepresented that “an appropriate investigation would be conducted” into his 18 June 1992 report and that Bondurant misrepresented “that there would be no negative repercussions from making a report of suspected misappropriation of state resources.” Plaintiffs suit is captioned against Bondurant, Mattern and Capel in both their official and individual capacities. In support of the defendants’ motion for summary judgment they presented an affidavit by Bondurant in which he recalled only one time, “in early 1992, or possibly 1991,” that plaintiff asserted the possibility of a conflict of interest among employees of the School of Medicine. After Bondurant had Mattern conduct an investigation, which revealed no conflict, Bondurant told plaintiff, who was not satisfied with the outcome, that he could report his concerns to Capel. Bondurant heard nothing else of plaintiffs complaints and therefore “considered the matter to be resolved.” Furthermore, Bondurant did not know of plaintiffs reports to Capel until after the nonrenewal of plaintiffs appointment. In 1992, Bondurant appointed a committee to review plaintiffs performance. Bondurant further states, in his affidavit, that he did not ask Mattern to influence the 1992 review committee’s decision, although he did request that Mattern discuss candidates to serve as committee members. Dr. David Ontjes (Ontjes), who served as chair of the 1992 review committee, and another committee member interviewed Mattern, as a witness, before the committee formally convened to hear from witnesses and write its report. During his interview, Mattern expressed his opinion that plaintiff should not be reappointed. Although Ontjes questioned Bondurant regarding the necessity of a review after hearing Mattern’s opinion, Bondurant “assured [Ontjes] that a review was quite necessary, and that [he] wanted the committee to conduct an impartial and thorough examination of [plaintiff’s] leadership of OIS, on the basis of which [Bondurant] would then make a decision.” Bondurant stressed that Mattern’s opinion was just one person’s and that the committee should consider all sources before making a recommendation. Bondurant gave no indications of his personal views regarding plaintiff to the committee and asked for a thorough and objective review. The 1992 review committee issued a report on 22 April 1993 and “strongly advise[d] that [plaintiff] not be reappointed.” In support of its recommendation it determined that plaintiff’s style of interaction had decreased his effectiveness, citing specifically the perception that he was rigid and uncompromising and his failure to provide a functional long-term plan or to address the microcomputer evolution. Bondurant “decided to accept the [c]ommitte’s recommendation” and not reappoint the plaintiff. In Mattem’s affidavit in support of the motion, he stated that he only remembers a general statement by plaintiff regarding the conflict of interest charge in the fall of 1991. After plaintiffs mention of a potential problem, Mattem carefully questioned the faculty member involved and was satisfied by the faculty member’s explanation that there was no conflict of interest. Mattem reported his satisfaction to plaintiff. Plaintiff never mentioned that conflict issue again. Plaintiff also brought forth a potential conflict of interest held by a programmer, regarding a previous dual employment contract held by the programmer. When Mattern investigated, he determined that the programmer was no longer working on the project which would have given rise to the conflict of interest. Furthermore, Mattern was only limitedly involved in plaintiff’s 1992 review. Mattern worked to appoint the committee members, but members to whom plaintiff objected were removed from the committee and the final committee contained no member to which plaintiff did not agree. Mattem also submitted a list of names to the committee of people they might contact, “specifically omitt[ing] . . . people whose views [he] thought were uniformly negative.” The undisputed evidence also reveals that the committee had numerous sources from which to collect witnesses, including an open request to anyone interested in the hearing to testify either for or against plaintiff’s reappointment. Mattem’s only other involvement with the review was his testimony as a witness. Furthermore, Mattern did not know of plaintiff’s reports to Capel. Defendants also presented affidavits from members of the 1992 review committee. Each member gave specific facts establishing the unbiased nature of plaintiff’s 1992 review. All stated their opinion that the committee conducted a fair, unbiased review of plaintiff’s performance, and none had any preconceived notions regarding plaintiffs reappointment. Additionally, the administrative assistant who staffed the 1992 review committee submitted an affidavit stating that the review was ordinary and conducted as others at the University had been conducted. In response to defendants’ evidence, plaintiff presented an affidavit containing the specific facts relating to his reports to Bondurant, Mattern and Capel. Plaintiff had earlier stated in his complaint his own belief that his appointment was not renewed because of his reports. The plaintiff also presented an affidavit by John Gullo (Gullo), a former OIS employee, which included his statements that Dr. James Wrenn “told top level computer people in the Hospital that [plaintiff] was ‘going to be cut down to size’ and they didn’t have to worry about [plaintiff’s] OIS.” Gullo also saw a budget request by plaintiff, on which Bondurant’s “main administrator” had commented “I don’t think its going to help.” The issues are whether (I) the evidence supports summary judgment for the defendants on the “Whistleblower” claim; and (II) Bondurant, Mattern and Capel have been sued only in their official capacity, rendering them immune from plaintiff’s claims for emotional distress and misrepresentation. I North Carolina General Statute § 126-85, known as the “Whistleblower” Act (the Act) protects State employees who make reports of certain activities described in section 126-84 from retaliation by heads of “any State department, agency, or institution” or retaliation by any other State employee “exercising supervisory authority” over the employee. N.C.G.S. § 126-85 (1993). The Act is violated if the report is a substantial causative factor in any “discharge,” threat or discrimination “regarding the State employee’s compensation, terms, conditions, location, or privileges of employment.” Id.; Kennedy v. Guilford Tech. Community College, 115 N.C. App. 581, 584, 448 S.E.2d 280, 282 (1994); see Brooks v. Stroh Brewery Co., 95 N.C. App. 226, 230, 382 S.E.2d 874, 878 (applying substantial factor test to retaliatory discharge claim under Occupational Safety and Health Act), disc. rev. denied, 325 N.C. 704, 388 S.E.2d 449 (1989); see also Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 484 (1977) (retaliation claim based on first and fourteenth amendments requires proof that protected conduct was a “substantial or motivating factor” in adverse action). Upon a showing of retaliation the employee is entitled to “damages, an injunction, or other remedies.” N.C.G.S. § 126-86 (1993); Minneman v. Martin, 114 N.C. App. 616, 618-19, 442 S.E.2d 564, 566 (1994). In the context of summary judgment in this type of action, once a defendant, moving for summary judgment, presents evidence that the adverse employment action is based' on a legitimate non-retaliatory motive, the burden shifts to the plaintiff to present evidence, raising a genuine issue of fact, that his actions under the Act were a substantial causative factor in the adverse employment action, see Taylor v. Taylor Prods., Inc., 105 N.C. App. 620, 625, 414 S.E.2d 568, 572-73 (1992) (discussing burdens of parties in summary judgment hearing), or provide an excuse for not doing so. N.C.G.S. § 1A-1, Rule 56(f) (1990). In determining whether there are any genuine issues of material fact, the trial court must view the evidence in the light most favorable to the plaintiff and resolve all conflicts in plaintiff’s favor, giving plaintiff all reasonable inferences. Broyhill v. Aycock & Spence, 102 N.C. App. 382, 389, 402 S.E.2d 167, 172, disc. rev. denied, 329 N.C. 266, 407 S.E.2d 831 (1991). A genuine issue of material fact exists if plaintiff’s evidence is substantial. Martin v. Ray Lackey Enters., 100 N.C. App. 349, 353, 396 S.E.2d 327, 330 (1990). In support of their motion for summary judgment, defendants argue that the nonrenewal of plaintiff’s appointment was not a result of his reports regarding any conflicts of interest or the possible misappropriation of State resources and instead was based on legitimate non-retaliatory reasons. We agree that the defendants’ evidence supports their argument. In support of their argument, defendants presented the undisputed evidence that plaintiff’s performance was scrutinized in compliance with University policy. Defendant’s evidence also specifically reveals that the final committee review, which recommended that plaintiff not be reappointed, was conducted fairly and without bias. Moreover, the evidence is that there were questions regarding the adequacy of plaintiff’s performance, of which plaintiff had knowledge, even before his reports to Bondurant and Mattern. Finally, the evidence reveals the nonappointment was based on the plaintiff’s inability to “collaborate with others.” In response to defendants’ motion, plaintiff argues that the 1992 review committee was biased by Bondurant and Mattern and that the reasons cited by defendants for the nonrenewal of plaintiff’s appointment are pretextual. Plaintiff’s complaint contains his own belief that his appointment was not renewed because of his reports. Other than the facts relating to the reports made by plaintiff to Bondurant, Mattern and Capel, which are set forth in his affidavit, plaintiff brings forward an affidavit containing a statement by Gullo that a former student stated that plaintiff would “be cut down to size” and that hospital computer employees “didn’t have to worry about [plaintiff’s] OIS,” and that Bondurant’s administrator commented that plaintiff’s budget request would not help. Even assuming that these statements would be admissible at trial, Taylor, 105 N.C. App. at 625, 414 S.E.2d at 572-73 (evidence used to meet a party’s burden at summary judgment must be admissible at trial), these statements do not raise a genuine issue of material fact with regard to whether the plaintiffs reports were a substantial factor in the nonrenewal of his contract, even viewing all the other evidence in plaintiffs favor and giving him all reasonable inferences. The evidence is simply too speculative to support a finding that the plaintiffs nonrenewal was in any way related to the report. Plaintiff also argues that even if the reasons that defendants give for not renewing his appointment are legitimate, the defendants also retaliated against plaintiff by “undercutting” his authority, “stonewalling” the promised investigation, “setting up oppositional centers of power,” and “creating a self-fulfilling review process.” Without determining whether these acts “otherwise discriminate” against plaintiff within the meaning of the statute, we reject this argument because these acts of retaliation were not alleged in plaintiffs complaint. Truesdale v. University of North Carolina, 91 N.C. App. 186, 190, 371 S.E.2d 503, 506 (1988) (plaintiffs case at summary judgment must be based on allegations in complaint), disc. rev. denied, 323 N.C. 706, 377 S.E.2d 229, cert. denied, 493 U.S. 808, 107 L. Ed. 2d 19 (1989). For an additional reason, summary judgment for Capel was correct. This record reveals that he had no supervisory authority over plaintiff and was not the head of any State department, agency or institution. See N.C.G.S. § 126-85(a); Taylor, 105 N.C. App. at 625, 414 S.E.2d at 572 (summary judgment appropriate where an essential element of plaintiffs case is lacking). II Defendants argue that summary judgment for them on the emotional distress and misrepresentation claims was also appropriate because they are protected from these claims by sovereign immunity. We agree. A governmental entity and its officers or employees when sued in their official capacity are immune from suits based on tort claims, unless there has been some waiver. Taylor v. Ashburn, 112 N.C. App. 604, 607, 436 S.E.2d 276, 278-79 (1993), disc. rev. denied, 336 N.C. 77, 445 S.E.2d 46 (1994). In determining whether a plaintiff has brought an action against a defendant in his official or individual capacity, it is important to consider both the “nature of the conduct giving rise to the action” and the “nature of the relief sought.” 1 Shepard’s Editorial Staff, Civil Actions Against State and Local Government, Its Divisions, Agencies and Officers § 1.16 (2d ed. 1992) [hereinafter Civil Actions]; see Taylor, 112 N.C. App. at 607-08, 436 S.E.2d at 279. The nature of the conduct determines in what capacity one can be sued, General Elec. Co. v. Turner, 275 N.C. 493, 498, 168 S.E.2d 385, 389 (1969), and the nature of the relief sought reveals how a defendant has been sued. Civil Actions §§ 1.17-.18. The designations made in the caption of the complaint are not determinative. Taylor, 112 N.C. App. at 607, 436 S.E.2d at 279. In this case the allegations in the complaint with respect to the tort claims involve acts of the defendants performed within the bounds of their official duties and in their capacities as representatives of the State. Therefore the individual defendants can only be sued in their official capacity and as such share the governmental immunity enjoyed by the University, an agency of the State. See Jones v. Pitt County Memorial Hosp., 104 N.C. App. 613, 617, 410 S.E.2d 513, 515 (1991) (all tort claims against UNC and its constituent institutions must be brought before the Industrial Commission). This immunity supports the summary judgment on these claims. See Dickens v. Puryear, 302 N.C. 437, 453, 276 S.E.2d 325, 335 (1981) (summary judgment appropriate where plaintiff cannot surmount defendant’s affirmative defense). Affirmed. Judges JOHNSON and SMITH concur.

KATHLEEN VICTORIA JOHNSON, Plaintiff v. FRIENDS OF WEYMOUTH, INC., Defendant No. 9420SC383 (Filed 19 September 1995) 1. Pleadings § 401 (NCI4th)— issue not raised in pleadings— trial by consent Where a substantial portion of plaintiff’s pleadings was devoted to the issue of whether she was fired for financial reasons, defendant averred in its answer that plaintiff was fired for financial reasons, both parties introduced a considerable amount of evidence regarding the financial condition of defendant and its relation to the termination of plaintiff’s employment, and plaintiff did not object to defendant’s introduction of evidence regarding the financial hardship issue, that issue was tried by the implied consent of the parties and should be treated as if it were raised in the pleadings. N.C.G.S. § 1A-1, Rule 15(b). Am Jur 2d, Pleading § 25. 2. Labor and Employment § 71 (NCI4th)— wrongful termination — inconsistent verdict — jury instructions improper The trial court in a wrongful termination case erred in instructing the jury in such a manner that an affirmative answer to both questions submitted to it would require a finding that an employee was wrongfully terminated and that the employer would have terminated the employee in any event, and these answers were inherently inconsistent and not an accurate representation of the standard established by Brooks v. Stroh Brewery Go., 95 N.C. 226, that, once the plaintiff has shown that the employee’s activities were protected and were a substantial factor in the employee’s decision, the burden then shifts to defendant to show that the same decision would have been made if the' employee had not engaged in the protected activity. Am Jur 2d, Master and Servant §§ 43 et seq. Appeal by plaintiff from orders entered on 9 December and 6 January 1994 by Judge James M. Long in Moore County Superior Court. Heard in the Court of Appeals 12 January 1995. Marvin Schiller; and Bass, Bryant & Moore, by William E. Moore, Jr., for plaintiff appellant. Cunningham, Dedmond, Petersen & Smith, by Bruce T. Cunningham, Jr., and Ann C. Petersen, for defendant appellee. COZORT, Judge. In this wrongful termination case, the trial court submitted two issues to the jury. First, the jury found that defendant wrongfully terminated plaintiff’s employment in retaliation for plaintiffs suggestion that defendant return money to an insurance company. However, in their answer to the second issue, the jury also found that defendant would have terminated plaintiff notwithstanding the insurance incident. As a result, the trial court entered judgment in favor of defendant. The trial court denied plaintiff’s motions to set aside the verdict, to amend the judgment, and for a new trial. We find that the two issues submitted to the jury allowed for inconsistent answers and remand the case for a new trial. The facts and procedural history follow. Defendant, a non-profit corporation which operates the Weymouth Center, employed plaintiff as its administrative secretary from 4 October 1982 until her discharge on 28 May 1992. In October 1991, defendant conducted an art auction fundraiser at which six cel-luloids (“cels”) from Disney cartoons were offered for sale. Defendant purchased an insurance policy to protect against any loss of these donated items. Two of the cels were not sold at the auction and were later discovered to be missing. Defendant submitted a claim to the insurance company for these lost cels and the insurance company paid defendant $950.00 under the policy. In January 1992, plaintiff discovered the missing cels in a closet and notified defendant’s president. Plaintiff testified that she encouraged officers of defendant to return the proceeds to the insurance company. Plaintiff presented evidence that two of defendant’s officers sold the two cels outside the state without reporting the sale to the insurance company. Defendant did not return the proceeds received from the insurance company until plaintiff’s counsel notified defendant that the money had not been returned. Defendant informed plaintiff by letter on 28 May 1992 that the position of administrative secretary was abolished and that she would receive one month’s severance pay. Plaintiff filed a complaint alleging that her termination constituted wrongful discharge because it was in retaliation for “her refusal to cooperate and participate in Defendants [sic] . . . unlawful . . . conversion of the insurance proceeds.” The complaint also made reference to a claim by defendant that plaintiff was terminated for financial reasons. In its answer, defendant admitted plaintiff had been fired for financial reasons, but defendant did not plead that reason for firing plaintiff as an affirmative defense. During the course of the trial, both plaintiff and defendant offered evidence regarding whether plaintiff was fired because of the insurance incident or due to defendant’s financial hardship. During the charge conference the trial judge proposed to submit to the jury a question regarding financial hardship, in addition to the issue regarding wrongful termination agreed upon by the parties. The court allowed defendant to amend its pleadings to conform to the evidence which supported the second issue of financial hardship, an affirmative defense not previously pled by defendant. Plaintiff objected to the submission of the second issue. Overruling plaintiff’s objection, the court submitted two questions to the jury: 1. Did the Defendant, Friends of Weymouth, Inc., wrongfully terminate the employment of the Plaintiff, Kathleen Victoria Johnson, because she suggested that insurance proceeds be returned to the insurance company? 2. If so, would the Defendant have terminated the Plaintiff’s employment even if she had not suggested that insurance proceeds be returned to the insurance company? The jury answered “yes” to both questions, and the court entered judgment in favor of defendant. Plaintiff contends that the second question should not have been submitted to the jury. According to plaintiff, submission of this issue amounted to “prejudicial surprise” because defendant did not plead financial hardship as an affirmative defense. While failure to plead an affirmative defense normally results in waiver, the parties may still try the issue by express or implied consent. Nationwide Mut. Insur. Co. v. Edwards, 67 N.C. App. 1, 6, 312 S.E.2d 656, 660 (1984). N.C.R. Civ. P. 15(b) provides: “When issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” N.C. Gen. Stat. § 1A-1, Rule 15(b) (1990). A substantial portion of plaintiffs pleadings are devoted to the issue of whether she was fired for financial reasons. Defendant averred in its answer that plaintiff was fired for financial reasons. Both parties introduced a considerable amount of evidence regarding the financial condition of defendant and its relation to the termination of plaintiffs employment. Plaintiff did not object to defendant’s introduction of evidence regarding the financial hardship issue. Therefore, the financial hardship issue was tried by the implied consent of the parties and should be treated as if it was raised in the pleadings. Even if the parties had not tried the financial hardship defense by implied consent, it was still properly before the jury. The trial court allowed defendant to amend its pleadings to include financial hardship as a defense. Rule 15(b) authorizes the trial court to allow a party to amend its pleadings, so long as it does not permit judgment by ambush. Smith v. Childs, 112 N.C. App. 672, 677, 437 S.E.2d 500, 504 (1993). This particular defense could not have been a surprise to plaintiff because she referred to it in her pleadings and produced evidence regarding defendant’s financial status during the presentation of her case. The proper standard for review of such action is whether the trial court abused its discretion. Id. at 678, 437 S.E.2d at 504. We find no abuse of discretion. Plaintiff next contends that the jury instructions were erroneous. The North Carolina Pattern Jury Instructions provide issues for the jury regarding wrongful termination and the employer’s defense to such a claim. The first question asks: Did the defendant wrongfully terminate the employment of the plaintiff? N.C.P.I., Civ. 640.20. If the jury answers “yes” to that question, they are presented with an issue regarding an affirmative defense for the employer which states: Would the defendant have terminated the plaintiff even if the plaintiff had not [engaged in conduct protected by law] [refused to engage in unlawful conduct] [refused to engage in conduct which violates public policy]? N.C.P.I., Civ. 640.22. The pattern instructions rely on Brooks v. Stroh Brewery Co., 95 N.C. App. 226, 382 S.E.2d 874, disc. review denied, 325 N.C. 704, 388 S.E.2d 449 (1989), as a basis for submitting both of these questions. Brooks stands for the proposition that once the plaintiff has shown that the employee’s activities were protected and were a substantial factor in the employer’s decision, the burden shifts to defendant to show that the same decision would have been made if the employee had not engaged in the protected activity. Id. at 230, 382 S.E.2d at 878. Due to the manner in which the pattern jury instructions are worded, an affirmative answer to both requires a finding that an employee was wrongfully terminated and that the employer would have terminated the employee in any event. These answers are inherently inconsistent and are not an accurate representation of the standard established by Brooks. In the present case, the following issues should have been submitted to the jury: 1. Was plaintiff’s suggestion that insurance proceeds be returned to the insurance company a substantial factor in defendant’s decision to terminate her employment? 2. If so, would defendant have terminated plaintiff’s employment even if she had not suggested that insurance proceeds be returned to the insurance company? With the issues worded in this fashion, the termination becomes wrongful only when both issues are answered favorably to the employee. This more accurately reflects the standard established by Brooks. Defendant brings forth several assignments of error as a cross-appeal. Defendant contends that the trial court erred in denying defendant’s motion for a directed verdict at the close of plaintiff’s evidence. The trial court should deny a motion for directed verdict when it finds there is any evidence more than a scintilla to support plaintiff’s prima facie case in all its constituent elements. Clark v. Moore, 65 N.C. App. 609, 610, 309 S.E.2d 579, 580-81 (1983). The evidence in the present case, taken in the light most favorable to plaintiff, established her prima facie case and warranted the issue going to the jury. Therefore, the trial court properly denied defendant’s motion for a directed verdict. We have reviewed defendant’s remaining assignments of error and find them to be unpersuasive. In sum, we hold the jury instructions submitted to the jury improperly allowed for inconsistent answers, and we remand this case for a new trial. New trial. Judges MARTIN, John C., and JOHN concur.

GTE Products Corporation vs. Jefferson Davis Stewart, Third; Dean T. Langford & others, defendants-in-counterclaim. Essex. May 3, 1995. August 1, 1995. Present: Abrams, Lynch, O’Connor, & Greaney, JJ. Employment, Constructive discharge. Contract, Employment. Public Policy. Attorney at Law, In-house counsel. Discussion of out-of-State cases considering whether an attorney employed as in-house counsel to a corporation is barred from maintaining any action for wrongful discharge. [26-29] This court concluded that an in-house attorney should be permitted to pursue a claim for wrongful discharge against the attorney’s corporate employer in the narrow circumstances where the claim is founded on allegations that the employer’s demands would have required violation of statutory or ethical rules, embodying important public policy, and where the claim can be proved without violation of client confidences and secrets. [29-32] Discussion of State and Federal cases addressing the elements for proof of constructive discharge. [34-35] In an action for wrongful discharge in which there was no claim of formal termination, summary judgment was correctly entered for the employer where the employee did not demonstrate that he could prove he was constructively discharged by being forced to work under conditions so intolerable that a reasonable person would have felt compelled to resign. [32-34, 35-36] Civil action commenced in the Superior Court Department on October 16, 1991. A motion for summary judgment was heard by John P. Forte, J., sitting under statutory authority. The Supreme Judicial Court granted an application for direct appellate review. Arthur G. Telegen for the plaintiff. Earle C. Cooley (Paul F. Beckwith with him) for Jefferson Davis Stewart, III. Earl E. Lawson and Rolfe D. Trevisan. Greaney, J. We granted the defendant’s application for direct appellate review in this case to decide whether summary judgment was properly granted to GTE Products Corporation (GTE), and individual officers and officials of the company on counterclaims brought by Jefferson Davis Stewart, III, a former in-house counsel for the lighting companies of GTE. Stewart’s counterclaims were raised in his answer to an action brought by GTE seeking the return of documents, papers, and other materials taken or retained by Stewart when he left GTE’s employment. (Some of the background of the case is reported in the appeal concerning GTE’s seeking injunctive relief and damages, 414 Mass. 721 [1993].) The counterclaims were based on the assertion by Stewart that he had been wrongfully discharged in retaliation for his continual attempts to convince GTE management to warn the public about safety risks associated with the use of certain GTE products, and his insistence that GTE comply with Federal law governing the disposal of hazardous waste. We conclude that summary judgment properly was ordered in favor of GTE and the remaining defendants in counterclaim, and we direct the entry of an appropriate judgment. The facts, stated in the light most favorable to Stewart based on the materials in the summary judgment record, see Alioto v. Marnell, 402 Mass. 36, 37 (1988), are as follows. Stewart began working for GTE in March, 1980, as an attorney in GTE’s electrical equipment group. In 1986, he was named general counsel to GTE’s lighting businesses, which included U.S. Lighting and Sylvania Lighting. In his capacity as general counsel, Stewart wrote a series of communications to corporate officers and officials concerning safety and liability issues related to three products manufactured by GTE’s lighting businesses. In these communications, he advocated that the company take aggressive and (presumably) costly measures to protect consumer safety and guard against possible corporate liability. In addition, when new Federal regulations on the disposal of hazardous waste were adopted, he advised GTE that a subsidiary of the company which provided lighting maintenance services would have to take the costly step of treating fluorescent and incandescent light bulbs as hazardous waste for purposes of disposal. Stewart asserts that his advice was disregarded on some occasions and generally was not well received. Stewart’s immediate supervisor was Rolfe Trevisan, general counsel for GTE. Trevisan had consistently given Stewart high annual performance ratings, raised his salary each year, and recommended that he receive substantial bonuses. A few months before Stewart left the company, Trevisan told Stewart that his performance was “above expectations” and gave him a good rating, a raise and a bonus of over $30,000. At some point during 1991, however, Trevisan lowered Stewart’s confidential promotability rating on the law department’s executive continuity charts from “promotable immediately” to the lowest promotability rating of “not promotable for three to five years.” According to Stewart, it became clear to him that he was being “squeezed out” of the company after a meeting he had with Trevisan on August 7, 1991. Trevisan told him that Earl Lawson, a corporate officer and manager, had become dissatisfied with Stewart’s domineering and “confrontational” style and that Stewart was going to have to learn to get along with Lawson or his future with GTE would be at risk; that Stewart should stop being the “social conscience” of the company; and that Trevisan intended to develop a set of performance objectives to “rehabilitate” Stewart as a productive member of the law department. Based on his experience advising the company on how to terminate employees, Stewart believed that Trevisan’s actions likely were intended as a precursor to discharge. Concluding that he would have to abandon unpopular but (in his opinion) legally sound positions were he to remain, Stewart resigned from his employment with GTE on August ,8, 1991. After Stewart left, Trevisan tried unsuccessfully to persuade him to return. 1. As a threshold question, we must decide whether Stewart’s status as an attorney and in-house counsel for GTE should bar him from maintaining any action for wrongful discharge. As a general rule, an employee at will (Stewart was employed at will) may be terminated by an employer, without notice, “for almost any reason or for no reason at all.” Jackson v. Action for Boston Community Dev., Inc., 403 Mass. 8, 9 (1988). In company with a majority of other jurisdictions, however, this court has recognized that an at-will employee may sue a former employer for wrongful discharge when that discharge can be shown to be in violation of a clearly defined public policy. “Redress is available for employees who are terminated for asserting a legally guaranteed right (e.g.,- filing workers’ compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury).” Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 149-150 (1989). In limited circumstances, we also have permitted redress “for employees terminated for performing important public deeds, even though the law does not absolutely require the performance of such a deed.” Flesner v. Technical Communications Corp., 410 Mass. 805, 810-811 (1991) (employee terminated for cooperating with criminal investigation of employer permitted to sue for retaliatory discharge). It has been suggested that a “whistleblower” might be entitled to protection on this basis. See id. at 811 n.3. Courts in jurisdictions which generally recognize an employee’s action for wrongful or retaliatory discharge have, however, differed on the question whether an attorney, employed as in-house counsel, should be permitted the same right to sue for wrongful discharge as that enjoyed by other corporate employees. In Balla v. Gambro, Inc., 145 Ill. 2d 492, 501 (1991), the Supreme Court of Illinois concluded “that, generally, in-house counsel do not have a claim ... of retaliatory discharge.” The court based its decision on the destructive impact recognition of the claim would have on the attorney-client relationship that exists between an employer and in-house counsel, id., and on its conclusion that the policy of preserving public health and safety, the basis for recognizing an employee’s wrongful discharge claim, is protected adequately without recognition of the claim by the attorney’s obligations under the Illinois Rules of Professional Conduct to attempt to prevent his employer from committing an illegal or harmful act and to withdraw from employment if he is requested to engage in conduct that would violate those obligations. Id. at 501-502, 504. It has also been noted that ethical canons and disciplinary rules give to a client the unfettered right to discharge an attorney in whom the client has lost confidence, and it has been reasoned that this precept should apply with full force to an attorney employed as in-house counsel. See Willy v. Coastal Corp, 647 F. Supp. 116, 118 (S.D. Tex. 1986) (applying Texas law), rev’d on other grounds, 855 F.2d 1160 (5th Cir. 1988), affd, 503 U.S. 131 (1992). See also Herbster v. North Am. Co. for Life & Health Ins., 150 Ill. App. 3d 21, 28-30 (1986), cert, denied, 484 U.S. 850 (1987). The judge granted GTE’s motian for summary judgment largely on the basis of the reasoning in these decisions. In contrast, in the case of General Dynamics Corp. v. Rose, 7 Cal. 4th 1164 (1994), decided after the judge in this case ruled on GTE’s motion for summary judgment, the Supreme Court of California concluded that there were sound reasons for recognizing the right of in-house counsel to sue for wrongful discharge in certain limited situations. The court noted that a claim of wrongful discharge protects more than the private interests in job security and professional reputation of the claimant. Protection of the policy expressed in the statute or rule claimed to have been violated by the employer is equally at stake, and the claimant’s status as an attorney does not diminish the public interest in the furtherance of that policy. Id. at 1181. In the view of the Supreme Court of California, certain mandatory obligations and prohibitions in the ethical rules of California governing an attorney’s professional conduct embody “by their nature and goals . . . important values affecting the public interest at large.” Id. at 1181-1182. The court observed that “[ajmong other strictures on their conduct, [attorneys] may not be a party to the commission of a crime, destroy evidence or suborn perjury.” Id. at 1186. Thus, “[t]he case for shielding the in-house attorney . . . from retaliation by the employer for either insisting on adhering to mandatory ethical norms of the profession or for refusing to violate them is . . . clear,” id. at 1182, and in-house counsel should be permitted to pursue a claim for wrongful discharge if the claim is “founded on allegations that an in-house attorney was terminated for refusing to violate a mandatory ethical duty embodied in [California’s code of professional conduct].” Id. at 1188. In addition, the court reasoned, in-house counsel should be permitted to pursue a claim in the “limited circumstances in which in-house counsel’s nonattorney colleagues would be permitted to pursue a [wrongful] discharge claim and governing professional rules or statutes expressly remove the requirement of attorney confidentiality” (emphasis in original). Id. The court pointed out, however, that instances in which disclosure of client confidences is permissible are rare, and emphasized that it would not condone any dilution of the obligation of secrecy in the context of the attorney-client relationship between a corporate employer and in-house counsel. We find the latter approach more persuasive. We would be reluctant to conclude that an employee, solely by reason of his or her status as an attorney, must be denied all protection from wrongful discharge arising from the performance of an action compelled by a clearly defined public policy of the Commonwealth. As was pointed out in a treatise critical of the decision in the Balia case, “[i]t is clear that there would have been a right of action had the employee not been a lawyer. It thus seems bizarre that a lawyer employee, who has affirmative duties concerning the administration of justice, should be denied redress for discharge resulting from trying to carry out those very duties” (footnote omitted). 1 G.C. Hazard & W.W. Hodes, Law of Lawyering § 1.16:206, at 477 (Supp. 1994). We agree with the Supreme Court of California that public interest is better served if in-house counsel’s resolve to comply with ethical and statutorily mandated duties is strengthened by providing judicial recourse when an employer’s demands are in direct and unequivocal conflict with those duties. See General Dynamics Corp. v. Rose, supra at 1188. We stress, however, that a claim for wrongful discharge brought by in-house counsel will be recognized only in narrow and carefully delineated circumstances. To the extent that in-house counsel’s claim depends on an assertion that compliance with the demands of the employer would have required the attorney to violate duties imposed by a statute or the disciplinary rules governing the practice of law in the Commonwealth, that claim will only be recognized if it depends on (1) explicit and unequivocal statutory or ethical norms (2) which embody policies of importance to the public at large in the circumstances of the particular case, and (3) the claim can be proved without any violation of the attorney’s obligation to respect client confidences and secrets. See S.J.C. Rule 3:07, Canon 4, DR 4-101 (A) and (B), as appearing in 382 Mass. 778 (1981). “Except in those rare instances when disclosure is explicitly permitted ... [by the disciplinary rules governing the practice of law in the Commonwealth], it is never the business of the lawyer to disclose publicly the secrets of the client.” General Dynamics Corp. v. Rose, supra at 1190. The exceptions to an attorney’s obligation to guard client confidences under S.J.C. Rule 3:07, Canon 4, DR 4-101 (C), as appearing in 382 Mass. 778 (1981), are extremely limited. While confidentiality concerns may to some degree be ameliorated by a trial court’s use of protective orders and other protective devices, the circumstances in which in-house counsel may pursue a claim for wrongful discharge will, of necessity, be limited by the broad obligation to guard client confidences. See G.M. Tuoni, Massachusetts Attorney Conduct Manual § 4-12 (1992) (discussing breadth of definition of client confidences). Similarly, if the claim for wrongful discharge is one that might be brought by a nonattorney colleague, based on the public policy exception as delineated in the Smith-Pfeffer and Flesner cases, it must be established that the claim can be proved without any violation of the attorney’s obligation to respect client confidences and secrets. 2. Having concluded that we shall, in limited circumstances, recognize the right of in-house counsel to bring suit for wrongful discharge, we turn to whether summary judgment was, nonetheless, properly granted. GTE, as the moving party, having met its initial burden of demonstrating by indicia of admissible evidence, see Mass. R. Civ. P. 56 (b) and (c), 365 Mass. 824 (1974), that Stewart cannot prevail, we inquire whether Stewart has established that there exists a genuine dispute as to essential factual elements of his claim. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711, 716 (1991). Stewart maintains that officials at GTE plotted his dismissal in retaliation for the tenor of the legal advice he offered with respect to product safety in three specific instances, and for advising the company that it must comply with Federal regulations despite the cost entailed by compliance. For the most part, Stewart’s claims appear to rest on his advice relating to the avoidance of possible legal liability, rather than with compelling issues of product design directly affecting public health and safety. His insistenpe that GTE conduct its business “in compliance with the highest ethical business standards,” by doing more than was absolutely required by law, met some resistance from others legitimately concerned about profitability. We would be reluctant to conclude that disagreements over the wording of a product warning label, or the hypothetical risk posed by a product, which are matters committed to the business judgment of a company and do not rise to the requisite level of public concern, could be the basis for a wrongful discharge claim. See King v. Driscoll, 418 Mass. 576, 583 (1994) (“internal administration, policy, functioning, and other matters of an organization cannot be the basis for public policy exception”); Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 474 (1992); Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., supra at 151; Mello v. Stop & Shop Cos., 402 Mass. 555, 560-561 (1988); Mistishen v. Falcone Piano Co., 36 Mass. App. Ct. 243, 245-246 (1994). However, we need not decide whether Stewart’s allegations are sufficient in this regard because we conclude, as matter of law, that Stewart has failed to present sufficient proof of constructive discharge. Stewart has not claimed that he was formally terminated from his position at GTE. Thus, to sustain his claim for wrongful discharge, it must appear that he will be able to prove that he was constructively discharged from his position as general counsel. A “[cjonstructive discharge occurs when the employer’s conduct effectively forces an employee to resign. Although the employee may say, T quit,’ the employment relationship is actually severed involuntarily by the employer’s acts, against the employee’s will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation.” Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1244-1245 (1994). We have not had occasion to address what an employee must prove to establish a constructive discharge. The elements for proof of constructive discharge have been discussed in a number of cases decided by Federal and State appellate courts, however, and there is general agreement on the elements pertinent to a decision in this case. See, e.g., id. at 1247. See also Slack v. Kanawha County Hous. & Redevelopment Auth., 188 W. Va. 144, 153 (1992) (collecting cases). In a frequently cited decision, the United States Court of Appeals for the First Circuit has stated that in order for a constructive discharge to be found, “the trier of fact must be satisfied that the new working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.” Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir. 1977). The test is met if, based on an objective assessment of the conditions under which the employee has asserted he was expected to work, it could be found they were so difficult as to be intolerable. See Turner v. Anheuser-Busch, Inc., supra at 1248. See also Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 481 (1st Cir. 1993); Aviles-Martinez v. Monroig, 963 F.2d 2, 6 (1st Cir. 1992); Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983). A single, isolated act of an employer (or an agent of the employer) usually will not be enough to support a constructive discharge claim. Thus, evidence of a single unfavorable performance review or even of a demotion generally will not be deemed sufficient to support a claim. See Turner v. Anheuser-Busch, Inc., supra at 1247. “In order to amount to a constructive discharge, adverse working conditions must be unusually ‘aggravated’ or amount to a ‘continuous pattern’ before the situation will be deemed intolerable.” Id. For example, in Aviles-Martinez v. Monroig, supra at 6, the court held that an employee had present

JOHN V. TELLADO, Plaintiff v. TI-CARO CORPORATION, a North Carolina Corporation and DIXIE YARNS, INC., a Tennessee Corporation, Defendants No. 9325SC1248 (Filed 18 July 1995) Workers’ Compensation § 60 (NCI4th); Labor and Employment § 75 (NCI4th)— retaliatory discharge — Workers’ Compensation Act inapplicable — Release and Severance agreement not barred by Act N.C.G.S. § 97-6, which provides that no contract or agreement shall relieve an employer of any obligation created by the Workers’ Compensation Act, does not apply to retaliatory discharge claims, since retaliatory discharge is not an “obligation” within the contemplation of this rule, and obligation refers only to benefits paid under the Act; therefore, N.C.G.S. § 97-6 did not bar the Release and Severance Agreement entered into by the parties which gave plaintiff three months’ severance pay in exchange for his agreement to make no claim of any kind upon defendant employer. Am Jur 2d, Workers’ Compensation §§ 474 et seq. Appeal by plaintiff from judgment entered by Judge J. Marlene Hyatt on 5 October 1993 in Catawba County Superior Court. Heard in the Court of Appeals 3 October 1994. Catawba Valley Legal Services, Inc., by Phyllis Palmieri, for plaintiff appellant. Constangy, Brooks & Smith, by W. R. Loftis, Jr., and Robin E. Shea, for defendant appellees. COZORT, Judge. Plaintiff appeals from order granting summary judgment for defendants on plaintiffs claim for retaliatory discharge. We affirm. Plaintiff was employed by defendants in their Catawba County plant as a supervisor in the card and spinning room. On 12 January 1992, plaintiff was injured on the job while helping a co-worker unchoke a clogged waste line. The door to the line slammed on plaintiffs hand, injuring a finger on his right hand. He immediately reported the accident to his supervisors. On 22 January 1992, plaintiff sought treatment from Dr. Donald Campbell of the Catawba Bone and Joint Clinic. Jane Shoemaker, an employee of defendants, told Dr. Campbell’s office that plaintiff would not be covered by workers’ compensation. On the same day, plaintiff’s supervisor, Donald Arrowood, noted in plaintiff’s personnel file that “John went to the doctor on his own [sic] was not notified until after the fact.” On 24 January 1992, Tom Arrington, plant manager, and Arrowood met with plaintiff. Plaintiff was placed on a sixty-day probation. Arrowood made another entry in plaintiff’s file stating that the meeting was “about following set procedure for accident follow-up . . . John is given 60-day turn around period on behavior.” The plaintiff was discharged on 31 March 1992. On 4 April 1992, plaintiff signed a document prepared by his employer entitled “Severance and Release Agreement” in exchange for three months’ severance pay. The release provides in pertinent part that plaintiff: 1) Hereby unconditionally release Dixie . . . from any and all claims arising out of my employment and termination from employment including, but not limited to, any claims for wrongful discharge.... 2) Agree not to institute any charge, claim, demand, or action based upon any federal, state, or local statutory law, regulation, or any common law theory including, but not limited to, any claims for wrongful discharge . . . against Dixie . . . concerning any aspect of my employment with Dixie or termination thereof. IV. I represent that I have read and understand the foregoing .... I understand that my acceptance of the consideration stated in Section I above and my execution of this Severance and Release Agreement are intended to bar any and all disputes arising out of my employment with Dixie or termination thereof. ... I agree that if I challenge, fail, or refuse to abide by the terms hereof, then Dixie shall be entitled to stop making any future payments and shall be entitled to the return of all monies and benefits paid on behalf of Dixie in consideration for this Severance and Release Agreement and shall be entitled to attorneys’ fees and other claims that it may have against me for the breach of the terms thereof. Plaintiff continued to be treated by Dr. Campbell. On 24 January 1992, defendants notified Dr. Campbell that the workers’ compensation claim would be filed and paid plaintiff’s medical expenses. On 4 August 1992, Dr. Campbell released plaintiff with 20% permanent partial disability in his middle finger. Plaintiff filed a verified complaint on 30 March 1993, alleging retaliatory discharge by defendants. Defendants filed an answer and counterclaim alleging breach of contract. A copy of the Severance and Release Agreement was attached as Exhibit A. In his reply to defendants’ counterclaim, plaintiff denied that the Severance and Release Agreement is a bar to his claims pursuant to N.C. Gen. Stat. § 97-6.1 or that he breached the agreement. On 7 June 1993, defendants filed a motion for judgment on the pleadings. On 9 August 1993, Judge J. Marlene Hyatt heard defendants’ motion. Judge Hyatt considered Exhibit A, the Severance and Release Agreement, and treated the motion as a motion for summary judgment. On 16 August 1993 the trial court ruled that there was no genuine issue of material fact and granted summary judgment for defendants on plaintiff’s claim and defendants’ counterclaim. On 5 October 1993, the trial court entered an order awarding defendants $2,500 on their counterclaim along with reasonable attorneys’ fees and costs. Plaintiff appealed. Plaintiff contends that the trial court erred in concluding that there was no genuine issue of material fact and that defendants were entitled to judgment as a matter of law. Specifically, plaintiff asserts (1) that the trial court erred in granting summary judgment to defendants based on an agreement which is barred by statute, and (2) the pleadings show that there are material issues of fact which preclude summary judgment. We disagree. Summary judgment is properly granted where the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c) (1990). The party moving for summary judgment has the burden of showing that there is no triable issue of material fact. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). “ ‘The movant may meet this burden by proving that an essential element of the adverse party’s claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence sufficient to support an essential element of his claim ....’” Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992) (quoting Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)). Once the movant meets his burden, the burden then shifts to the non-moving party to show that a genuine issue exists by forecasting sufficient evidence of all essential elements of their claim. Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992). The court must look at the evidence in the light most favorable to the non-moving party and with the benefit of all reasonable inferences. Isbey v. Cooper Companies, 103 N.C. App. 774, 775, 407 S.E.2d 254, 256 (1991), disc. review denied, 330 N.C. 613, 412 S.E.2d 87 (1992). Plaintiff argues that N.C. Gen. Stat. § 97-6 prohibits the use of releases by employers to obtain relief from the obligations created under the Workers’ Compensation Act. N.C. Gen. Stat. § 97-6 (1991) provides the following: No contract or agreement, written or implied, no rule, regulation, or other device shall in any manner operate to relieve an employer in whole or in part, of any obligation created by this Article, except as herein otherwise expressly provided. Furthermore, plaintiff contends that a release does not bar a retaliatory discharge claim under N.C. Gen. Stat. § 97-6.1 (repealed 1991, effective 1 October 1992, reenacted as part of Art. 21 of Ch. 95 of the General Statutes, effective 1 October 1992) unless it satisfies the exception under N.C. Gen. Stat. § 97-17. This exception allows “settlements . . . between the employee and employer so long as the amount of compensation and the time and manner of payment are in accordance with the provisions of this Article . . . [and] approved by the Industrial Commission.” N.C. Gen. Stat. § 97-17 (1991). Plaintiffs position is that the exception of N.C. Gen. Stat. § 97-17 applies to claims for lost wages and medical benefits, not retaliatory discharge. Even assuming retaliatory discharge was within this statute, plaintiff argues, the release was not approved by the Industrial Commission. Plaintiff argues the release does not fall within the exception and cannot serve as a bar to plaintiff’s retaliatory discharge claim. We disagree. The primary rule of statutory construction is that the intent of the legislature controls the interpretation of a statute. Derebery v. Pitt County Fire Marshall, 318 N.C. 192, 196, 347 S.E.2d 814, 817 (1986). To determine this intent, the courts should consider the language of the statute, the spirit of the act, and what the act seeks to accomplish. Id. The court must also consider the law that existed at the time of the statute’s enactment to determine legislative intent. News & Observer Publishing Co. v. State of North Carolina, ex. rel. Haywood Starling, 312 N.C. 276, 282, 322 S.E.2d 133, 137 (1984). The North Carolina Workers’ Compensation Act was enacted in 1929 to provide employees swift and certain compensation for injuries suffered on the job, while limiting the liability of employers. Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 709, 295 S.E.2d 458, 460 (1982). N.C. Gen. Stat. §§ 97-6 and -17 were enacted as part of the North Carolina Workers’ Compensation Act in 1929 to protect employees from employers who would try to circumvent the Act through contracts to waive benefits. For this reason, settlement agreements for workers’ compensation claims must be submitted to the Industrial Commission for approval. N.C. Gen. Stat. § 97-17 (1991). On the other hand, the General Assembly enacted N.C. Gen. Stat. § 97-6.1 in 1979 forbidding retaliatory discharge of employees for filing workers’ compensation claims. This retaliatory discharge statute does not compensate employees for injuries on the job nor does it protect limited liability of employers; if anything, it increases the liability of employers. Furthermore, N.C. Gen. Stat. § 97-6.1 overruled Dockery v. Lampart Table Co., 36 N.C. App. 293, 244 S.E.2d 272, disc. review denied, 295 N.C. 465, 246 S.E.2d 215 (1978), where this Court refused to make an exception to North Carolina’s employment-at-will rule for employees who were discharged in retaliation for filing workers’ compensation claims. Case law in the employment law area tends to suggest that the intent of the statute was to provide an exception to the employment-at-will doctrine, not to provide further benefits under the Workers’ Compensation Act. See, e.g., Sides v. Duke Hospital, 74 N.C. App. 331, 328 S.E.2d 818, disc. review denied, 314 N.C. 331, 333 S.E.2d 490 (1985); Coman v. Thomas Mfg. Co., 325 N.C. 172, 381 S.E.2d 445 (1989). Likewise, the fact that the General Assembly repealed N.C. Gen. Stat. § 97-6.1 and recodified it in N.C. Gen. Stat. § 95-241 (1991) (effective 1 October 1992), which specifically addresses retaliatory employment discrimination, further advances this view. We also note several differences between the retaliatory discharge statute and the remainder of the North Carolina Workers’ Compensation Act. First, the Industrial Commission has jurisdiction to determine whether an employee is entitled to compensation under the Act. N.C. Gen. Stat. § 97-91 (1991). Under prior law, jurisdiction for retaliatory discharge claims rests in the General Court of Justice. N.C. Gen. Stat. § 97-6.1(d). Second, workers’ compensation benefits are not fault based, have a two-year statute of limitations, and the benefits scheme is specific in terms of schedule of injuries and rate and period of compensation. Recovery under the retaliatory discharge statute depends on the employer’s motive, making fault an issue. Also, the statute of limitations is one year, and the plaintiff is entitled to reasonable damages suffered. Third, Article V of the Rules of the North Carolina Industrial Commission provides that agreements to settle claims for compensation must be submitted to the Industrial Commission. I.C. Rule 501. Retaliatory discharge claims do not provide compensation; therefore, agreements settling these actions need not be submitted to the Industrial Commission. Based on the foregoing reasons, we conclude that N.C. Gen. Stat. § 97-6 does not apply to retaliatory discharge claims. Retaliatory discharge is not an “obligation” within the contemplation of this rule. Obligation refers only to benefits paid under this Act. N.C. Gen. Stat. § 97-6 does not bar the Release and Severance Agreement. In light of this ruling, we need not reach plaintiff’s contention that there is a genuine issue of material fact with respect to motivation. We hold the trial court properly granted summary judgment for defendants on both the plaintiffs claim and defendants’ counterclaim. The trial court is Affirmed. Chief Judge ARNOLD and Judge LEWIS concur.

HERWEYER v CLARK HIGHWAY SERVICES, INC Docket No. 171720. Submitted March 15, 1995, at Grand Rapids. Decided July 11, 1995, at 9:10 a.m. Leave to appeal sought. Jack Herweyer brought an action in the Missaukee Circuit Court against Clark Highway Services, Inc., alleging breach of an employment contract, discrimination, and retaliatory discharge. The court, Charles D. Corwin, J., granted summary disposition for the defendant, ruling that the action, which had been brought thirty-one months after the discharge, was not timely under the limitation provisions of the contract. The plaintiff appealed. The Court of Appeals held: 1. A contractual limitation period that is shorter than the applicable statutory period of limitation will be upheld if it is reasonable. A contractual period is reasonable where the claimant has a sufficient opportunity to investigate and file an action, the time is not so short as to be a practical abrogation of the right of action, and the action is not barred before loss or damages can be ascertained. In this case, where the contract provided a six-month limitation period and a saving clause stating that any term found to be legally unenforceable as written is to be limited in application so as to allow the enforcement of the term as far as legally possible, the trial court did not err in concluding that, even if the six-month period was unreasonable, the limitation period could be saved by reading it as providing for an unspecified minimum reasonable time that is less than thirty-one months. 2. The question whether it is against public policy to allow employers to shorten by contract limitation periods for actions brought by employees is best addressed by the Legislature, not the Court of Appeals. Affirmed. Neff, J., dissenting, stated that the six-month limitation period under the contract was unreasonable, that the saving clause was vague and ambiguous and should be stricken from the contract, that the statutory three-year period of limitation should apply, and that the case should be remanded for trial. Alternatively, the matter should be remanded for a hearing to determine whether thirty-one months was a reasonable contractual period of limitation. References Am Jur 2d, Limitation of Actions §§ 64, 65. See ALR Index under Contracts; Limitation of Actions. Limitation of Actions — Contracts — Statutes of Limitation. A contractual limitation period that is shorter than the applicable statutory period of limitation will be upheld if it is reasonable; a contractual period is reasonable where the claimant has a sufficient opportunity to investigate and file an action, the time is not so short as to be a practical abrogation of the right of action, and the action is not barred before loss or damages can be ascertained. Bott & Spencer, P.C. (by R. Dillon McCormick), for the plaintiff. Warner, Norcross & Judd (by Robert J. Chovanec, Douglas E. Wagner, and Rodrick W. Lewis), for the defendant. Before: Sawyer, P.J., and Griffin and Neff, JJ. Sawyer, P.J. Plaintiff appeals from an order of the circuit court granting summary disposition in favor of defendant on plaintiff’s claim for breach of contract, discrimination, and retaliatory discharge on the basis of the claim not having been timely brought under the provisions of that contract. We affirm. Plaintiff entered into an employment contract with defendant, which contract included provisions that any claims arising from the termination of employment must be brought within six months and that plaintiff specifically waived any applicable statute of limitations to the contrary. Plaintiff was discharged after filing a worker’s compensation claim. Thirty-one months later, plaintiff brought the instant action. Defendant moved to have the action dismissed on the basis of the contractual provision of bringing all claims within six months, and the trial court granted summary disposition. We first jointly consider two of plaintiffs arguments, namely that the trial court erred in granting summary disposition when the applicable statute of limitations had not run and whether the contractual provision of a six-month limitation was unreasonable and, therefore, the full statutory period should be applied. It is settled law in Michigan that the courts will uphold a contractual provision limiting the time to bring suit where that limitation is reasonable, even though the period specified is less than the applicable statute of limitations. Camelot Excavating Co, Inc v St Paul Fire & Marine Ins Co, 410 Mich 118, 126; 301 NW2d 275 (1981). The determination of such reasonableness is made by looking at whether the claimant had a sufficient opportunity to investigate and file an action, the time was not so short as to be a practical abrogation of the right of action, and the action was not barred before the loss or damages could he ascertained. Id. at 127. In the case at bar, the trial court expressed its reservation that the six-month limitation provided for in the contract may not be reasonable, but concluded that in any event a reasonable time would be less than the thirty-one months in which it took plaintiff to commence suit and, therefore, plaintiffs action was barred by the contractual provision. Plaintiff, in essence, argues that if the six-month period is unreasonable, then the statutory provision of a three-year period of limitation must be applied. In concluding that the contract can be read to provide for a reasonable period of limitation less than the three years provided by statute, but nonetheless more than the six months specifically provided in the contract, the trial court looked to a provision in the contract that stated that if any term was found to be legally unenforceable as written, the particular provision would be limited to allow its enforcement as far as legally possible. The trial court interpreted this provision to mean that even if the six-month period provided in the contract was unreasonable, that provision would then be read as providing for the minimum reasonable time. While the trial court did not specifically indicate what the minimum reasonable time was, it did determine that it was less than the thirty-one months that it took plaintiff to bring suit. We agree with the trial court’s interpretation of the contract. 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, supra at 127. 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. Plaintiff also argues that allowing employers to shorten the statute of limitations for employment actions is contrary to public policy. That may or may not be the case, but we believe it presents a public policy question best addressed by the Legislature, not this Court. The Legislature is in a superior position to consider the arguments, consider the ramifications of restricting the right to contract in this area, and determine what is in the public interest. If the Legislature deems such contractual provisions to be contrary to public policy, it may endeavor to enact the appropriate legislation. We, however, decline to impose by judicial fiat such restrictions on the right to contract. Affirmed. Defendant may tax costs. Griffin, J., concurred. Neff, J. (dissenting). The trial court and the majority here reached the conclusion that the six-month limitation period contained in the "application for employment” is unreasonable, and I agree with that conclusion. However, I cannot agree that a further provision in the application to the effect that if the six-month term is found to be unenforceable, then a "minimum reasonable time” is to be determined and enforced "as far as legally possible” can properly be read to support the conclusion that thirty-one months is unreasonably long. . i As a preliminary matter, I note that the language of the contract is vague and ambiguous. It seems obvious that the drafter (presumably defendant or its attorney) contemplated the probability that the six-month limitation period would be attacked in these circumstances and the possibility of a finding that it is unreasonable, as was found to be the case. In anticipation of this result the "minimum reasonable time” and "as far as legally possible” language were added, but without any effort to define these imprecise terms, leaving the parties, and ultimately the courts, with the task of interpretation case by case. This situation leads to an inexact limitation period and, inevitably, to the possibility of different limitation periods arising out of the same contract language. I find this potential to be untenable. Surely, parties are entitled to certainty in their legal dealings to a greater degree than this contract language allows, particularly with regard to the time limits that govern their mutual rights to seek redress against each other in the courts. Because it is ambiguous and might lead to unreasonable results, I would construe this language strictly against the drafter and strike it from the agreement. See DeMello v McNamara, 178 Mich App 618, 623; 444 NW2d 149 (1989). This would restore the parties to reliance on the applicable statutory limitation periods that have been established by the Legislature. This result would serve a number of important purposes. First, it would provide certainty to the determination of the time in which to bring suit. Second, as the legislative articulation of the limitation period, it is a simple, straightforward, and objective measure of what time period is "reasonable.” ii Next, I share the concerns expressed by the trial court with regard to the public policy arguments raised by plaintiff. Shortening the statute of limitations to six months will result in premature litigation because parties will be forced to rush to file suit before they have the opportunity to mitigate damages or fully investigate their claims. This is not in keeping with the purpose of a statute of limitations, that is, to protect defendants against stale or fraudulent claims. See Larson v Johns-Manville Sales Corp, 427 Mich 301, 310; 399 NW2d 1 (1986). In addition, an employee who must choose between signing an agreement such as the one in this case or risking termination does not deal at arm’s length with the employer. This is not a commercial setting where the parties could negotiate the terms of their agreement with regard to the limitation period or even one in which the employee was represented by a labor union that could have negotiated the terms and conditions of employment on his behalf. Where the parties are not on equal footing, the reduction in the limitation period for causes of action pursuant to remedial statutes should not be permitted lightly. hi Further, my review of the record reveals that there is nothing to establish whether the thirty-one-month time period between termination and filing was reasonable. If we assume that the language of the application permits a judicial determination of a limitation period more than six months but less than the period established by the Legislature, then defendant has the burden of showing that the elapsed time was unreasonable and plaintiff should have the opportunity to establish whether the time period in question was reasonable. The determination should, in any event, be measured by some'objective standard of reasonableness. It is not enough to say, as the trial court did, that while we agree that a six-month period is unreasonably short and therefore unenforceable, thirty-one months exceeds the fuzzy "minimum reasonable time,” but without articulating any reasons for that finding and without saying just how much time does fit within the "minimum reasonable time.” At the very least, we should remand this case to give plaintiff the opportunity to establish whether thirty-one months is reasonable within the context of this case. IV Finally, I note that the majority relies for its conclusion on Camelot Excavating Co, Inc v St Paul Fire & Marine Ins Co, 410 Mich 118; 301 NW2d 275 (1981). In my view, that case is distinguishable from this one and does not support the result for which it is cited as authority. The Camelot case involved a shortened statute of limitations in a construction bond. Two commercial entities, a general plumbing contractor and an insurance company, were the principal and the surety on the bond, which was a labor and material bond, the purpose of which was to protect the owner of the construction project against claims of those who furnished labor or materials to the contractor. The owner of the project was therefore a third-party beneficiary of the bond contract. There is nothing remotely similar in the fact situation of this case where the employer and an individual employee are parties to the application that shortens the limitation period solely for the benefit of the employer. Ultimátely, I agree with Justice Levin’s concurring opinion in Camelot, supra at 140-143, that the holding there is limited to the narrow circumstances of that case. Specifically, I agree with the following statement: 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. [Id. at 141.] Thus, to the extent this, rule is applicable in other settings, I would require that the parties to the contract, in contrast to the parties here, be more equal with regard to bargaining power. See, e.g., Rowry v Univ of Michigan, 441 Mich 1, 19, n 2; 490 NW2d 305 (1992), concurring opinion of Riley, J. (suggesting that public policy does not prohibit parties to a collectively bargained for agreement from shortening the period of limitation). By allowing this rule to apply in situations involving parties possessing unequal bargaining power, the majority will be allowing one of the contracting parties to unilaterally supplant the period of limitation mandated by the Legislature, a questionable practice from a public policy standpoint. Camelot, supra at 141. Accordingly, I would reverse and remand for trial or, in the alternative, for a hearing to determine if a thirty-one-month time period was reasonable on the basis of the facts of this case.

GARAVAGLIA v CENTRA, INC Docket No. 148153. Submitted October 19, 1994, at Detroit. Decided June 23, 1995, at 9:35 a.m. Leave to appeal sought. Charles Garavaglia brought an action in the Wayne Circuit Court against Centra, Inc., Central Transport, Central Cartage Company, and Manuel J. and Agnes A. Moroun, alleging age discrimination in employment, breach of an employment contract terminable for just cause only, discharge from employment in breach of public policy, tortious interference with contractual relations, and violation of the Employee Right to Know Act, MCL 423.501 et seq.; MSA 17.62(1) et seq. The plaintiff also sought a declaration regarding the existence of a contract and an order providing for the specific performance of the contract. The jury returned a verdict for the plaintiff, and the court, Claudia House Morcom, J., entered a judgment consistent with the verdict. The defendants, except Agnes A. Moroun, appealed from the judgment entered by the trial court. The Court of Appeals held: 1. Defendants’ claim that the plaintiff cannot recover damages for both breach of an employment contract terminable for just cause only and discharge from employment in breach of public policy was not preserved for appellate review. 2. The jury instructions regarding the alleged breach of public policy adequately informed the jury of the applicable law. 3. A claim regarding an alleged breach of public policy may be premised on the alleged violation of a federal statute. An employer at will is not free to discharge an employee when the reason for the discharge is an intention on the part of the employer to contravene the public policy of this state. 4. The National Labor Relations Act, 29 USC 158(b)(1)(B), imposes a duty on a union not to influence or interfere with an emp1 oyer’s choice of a bargaining representative. The plaintiff was entitled to be his employer’s bargaining representative without being pressured to leave by the union involved. References Am Jur 2d, Labor and Labor Relations § 2385; Wrongful Discharge §§ 11, 19, 23-39, 44. See ALR Index under At-Will Relationship; Discharge from Employment or Office; Public Policy; Unfair Labor Practices. 5. The plaintiff presented sufficient evidence of a claim for breach of public policy to withstand the defendants’ motion for a directed verdict. A rational trier of fact legitimately could infer that the union pressured the defendants into firing the plaintiff in order to achieve labor peace. 6. The trial court’s order taxing costs must be affirmed. Affirmed. 1. Labor Relations — Unfair Labor Practices — Labor Relations Representatives. It is an unfair labor practice for a union to coerce an employer regarding the selection of the employer’s labor relations representative; the National Labor Relations Act confers a right upon an employee to be the employer’s bargaining representative without being pressured to leave by the union (29 USC 158[b][l][B]). 2. Labor Relations — At-Will Employees — Discharge — Breach of Public Policy — Federal Statutes. An employee at will may not be discharged when the reason for the discharge is the employer’s intention to contravene the public policy of this state; a claim regarding a breach of public policy may be premised on the alleged violation of a federal statute. 3. Labor Relations — Employment At Will — Exceptions — Public Policy. An exception to the employment at will doctrine is recognized on the basis of the principle that some grounds for discharging an employee are so contrary to public policy as to be actionable; another exception exists where there are explicit legislative statements prohibiting the discharge, discipline, or other adverse treatment of employees who act in accordance with a statutory right or duty (however, a public policy claim is sustainable only where there is no applicable statutory prohibition against discharge in retaliation for the conduct at issue); a third exception exists where the alleged reason for the discharge was the employee’s failure or refusal to violate a law in the course of employment; a fourth exception exists where the alleged reason for the discharge was the employee’s exercise of a right conferred by a well-established legislative enactment. Gottlieb & Goren, P.C. (by Charles Gottlieb), for the plaintiff. Plunkett & Cooney, P.C. (by Ernest R. Bazzana and Kelly A. Freeman), for the defendants. Before: Wahls, P.J., and Jansen and J. P. Noecker, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Jansen, J. Defendants Centra, Inc., Central Transport, Central Cartage Company, and Manuel J. Moroun (hereafter defendants), appeal as of right from a jury verdict for plaintiff in the amount of $197,500 in this action alleging wrongful discharge. We affirm. Plaintiff filed his complaint in the Wayne Circuit Court, alleging age discrimination, breach of an employment contract terminable for just cause only, discharge in breach of public policy, tortious interference with contractual relations, violation of the Employee Right to Know Act, MCL 423.501 et seq.; MSA 17.62(1) et seq., and seeking a declaratory judgment (specific performance). A jury found for plaintiff with regard to the claim of breach of an employment contract terminable for just cause only (awarding $60,000), the claim of breach of public policy (awarding $100,000), and the declaratory judgment claim (awarding $37,500 for breach of a written retainer fee contract). Defendants now contest the verdict with regard to the claim of breach of public policy. Plaintiff alleged that his employment was terminated in breach of public policy on the bases that defendants submitted to union demands that they fire plaintiff to achieve "labor peace,” that plaintiff failed to obey defendants’ request to destroy documents subpoenaed by a federal grand jury, and that plaintiff blocked an offer by the union to dismiss a lawsuit by refusing to agree not to countersue the union. Defendants admitted in their trial brief that they terminated plaintiffs employment because of union pressure that there would be no labor peace unless plaintiff was removed. It was plaintiffs contention that it was a violation of the National Labor Relations Act (nlra) for the union to influence defendants in their choice of a bargaining representative. 29 use 158(b)(1)(B). i Defendants first contend that the jury verdict regarding the claim of breach of public policy must be vacated because plaintiff cannot recover damages for both breach of an employment contract terminable for just cause only and discharge in breach of public policy. We find that this issue is not properly preserved for appellate review. Defendants never argued below that breach of an employment contract terminable for just cause only and breach of public policy are alternative theories and that plaintiff cannot recover under both. Issues raised for the first time on appeal ordinarily are not subject to review. Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich 211, 234; 507 NW2d 422 (1993). Because this issue was never raised below, we decline to review it. See Peterman v Dep’t of Natural Resources, 446 Mich 177, 183; 521 NW2d 499 (1994) (it is a "time-honored rule that, absent unusual circumstances, issues not raised at trial may not be raised on appeal”). ii Defendants next contend that the trial court erred in denying their motion for a directed verdict with regard to the claim of breach of public policy. Plaintiffs claim regarding breach of public policy was based on the nlra. Specifically, plaintiff alleged that defendants breached public policy by yielding to union demands to fire plaintiff. Pursuant to 29 USC 158(b)(1)(B), it is an unfair labor practice for a union to coerce an employer regarding the selection of the employer’s labor relations representative. Defendants contend that plaintiffs claim is legally insufficient because Michigan does not recognize an implied cause of action for breach of public policy when an employer violates federal law. Defendants also contend that the nlra does not confer rights on plaintiff and, because he is not protected by the nlra, he cannot receive a remedy for the alleged violation. We first note that the question regarding legal sufficiency raised by defendants was not raised in the trial court in their motion for a directed verdict. Rather, defendants raised this issue by objecting to the trial court’s instructions regarding the alleged breach of public policy. Thus, with regard to the issue concerning legal sufficiency, we review the trial court’s instructions as a whole. The question is whether the instructions as given adequately informed the jury of the applicable law reflecting the various evidentiary claims in the particular case. Riddle v McLouth Steel Products Corp, 440 Mich 85, 101; 485 NW2d 676 (1992). We find that the jury instructions adequately informed the jury of the applicable law. In Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 695; 316 NW2d 710 (1982), the Supreme Court stated that an exception to the employment at will doctrine will be recognized on the basis of the principle that some grounds for discharging an employee are so contrary to public policy as to be actionable. First, an exception exists where there are explicit legislative statements prohibiting the discharge, discipline, or other adverse treatment of employees who act in accordance with a statutory right or duty. Id. Second, such a cause of action has been found to be implied where the alleged reason for the discharge of the employee was the failure or refusal to violate a law in the course of employment. Id. Finally, a cause of action has also been found to be implied where the alleged reason for the discharge was the employee’s exercise of a right conferred by a well-established legislative enactment. Id., p 696. To some extent, the first of the three grounds in Suchodolski has been limited in Dudewicz v Norris Schmid, Inc, 443 Mich 68, 80; 503 NW2d 645 (1993), where the Court held 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. The trial court instructed the jury in pertinent part as follows: Now, you are instructed that if you find the plaintiff was dismissed from his employment or from performing the obligations, the duties and demands of his office or release from his employment service, or moved from a greater job to a lesser job that you may find that plaintiff was wrongfully discharged. You are further instructed that an employer is not free to discharge, discipline or otherwise adversely treat an employee who acts in accordance with the statutory right or duty, or where the employee fails or refuses to violate the law in the course of his employment; nor can the employer discharge the employee when the reason for the discharge is an intention on the part of the employer to contravene the public policy of Michigan or the United States. Now, you are further instructed that it is against public policy to restrain or coerce an employer in the selection of its representative for collective bargaining or adjustment of grievances or; secondly, to refuse to bargain with an employer based on the employers’ selection of its representative. We find that the trial court’s instructions adequately informed the jury of the law. We agree with plaintiff that a claim regarding a breach of public policy may be premised on the alleged violation of a federal statute. Other jurisdictions have also recognized a wrongful discharge action based on a clearly articulated federal policy. Sherman v St Barnabas Hosp, 535 F Supp 564 (SD NY, 1982); D’Agostino v Johnson & Johnson, Inc, 133 NJ 516; 628 A2d 305 (1993). Further, the fact that the nlra does not specifically confer rights upon plaintiff is not dispositive. As this Court has stated, "the better view is that an employer at will is not free to discharge an employee when the reason for the discharge is an intention on the part of the employer to contravene the public policy of this state.” Sventko v Kroger Co, 69 Mich App 644, 647; 245 NW2d 151 (1976). Thus, it is the fact that the employer discharged plaintiff in contravention of the public policy of this state that permits plaintiff’s claim regarding the breach of public policy. In any event, plaintiff was entitled to be the employer’s bargaining representative without influences from the union. Under the nlra, a duty is imposed on the union not to influence or interfere with an employer’s choice of a bargaining representative. Accordingly, the nlra did confer a right upon plaintiff to be the bargaining representative without being pressured to leave by the union. Under these circumstances, the third prong of Suchodolski is satisfied because a cause of action may be had where the alleged reason for the discharge is the employee’s exercise of a right conferred by a well-established legislative enactment. Next, defendants contend that plaintiff failed to prove a prima facie case of breach of public policy and that the trial court, therefore, erred in denying their motion for a directed verdict. When evaluating a motion for a directed verdict, the court must consider the evidence in a light most favorable to the nonmoving party, making all reasonable inferences in the nonmoving party’s favor. Locke v Pachtman, 446 Mich 216, 223; 521 NW2d 786 (1994). Directed verdicts are appropriate only when no factual question exists upon which reasonable minds may differ. Brisboy v Fibreboard Corp, 429 Mich 540, 549; 418 NW2d 650 (1988). We find that plaintiff presented sufficient evidence at trial of a claim for breach of public policy. Plaintiff alleged that defendants terminated his employment by yielding to union demands that terminating his employment was the only way of achieving labor peace. Plaintiff testified that he was told that he would be removed from labor relations because he had been rendered neutral with the union during the many "snowballs” with other transportation companies. According to plaintiff, defendants were taking over the bankruptcies of other transportation companies, closing out the operations and creating confrontations with the unions in the bankruptcy courts. Plaintiff met with Manuel Moroun and it was reiterated that defendants’ actions put plaintiff in the position that he had problems with the unions. Moroun made clear to plaintiff that plaintiff’s work was satisfactory and that he knew that plaintiff was loyal. Further, defendants admitted in their opening statement that the union made clear to Moroun that it did not want to deal with plaintiff. Taking this evidence in a light most favorable to plaintiff and drawing all legitimate inferences therefrom, we find that plaintiff presented sufficient evidence regarding his claim of breach of public policy to withstand a motion for a directed verdict. A rational trier of fact legitimately could infer that the union pressured defendants into firing plaintiff in order to achieve labor peace. m Last, defendants argue that the trial court’s order taxing costs should be reversed if this Court vacates the jury verdict or grants a new trial. Because we are affirming the jury’s verdict, we also affirm the trial court’s order taxing costs pursuant to MCR 2.625(A) and (B). Affirmed.

REO v LANE BRYANT, INC Docket No. 166515. Submitted February 7, 1995, at Grand Rapids. Decided June 6, 1995, at 9:00 a.m. Kelley A. Reo petitioned the Kalamazoo Circuit Court for judicial review of the Department of Labor’s dismissal of her claim that Lane Bryant, Inc., her employer, violated the wages and fringe benefits act, MCL 408.471 et seq.; MSA 17.277(1) et seq., by discharging her for disclosing her wages. The department had determined that the claim was not timely under MCL 408.483(2); MSA 17.277(13X2) because it had not been filed within thirty days of the discharge. The court, William G. Schma, J., agreeing with the department, granted Lane Bryant’s motion to dismiss the petition for review. The petitioner appealed. The Court of Appeals held: The petitioner’s claim is not subject to MCL 408.483(2); MSA 17.277(13X2) because the claim is not for discharge in retaliation for asserting, on behalf of another, a right afforded under the wages and fringe benefits act. The claim is for a violation of MCL 408.483a(c); MSA 27.277(13a)(c), which prohibits an employer from discharging, formally disciplining, or otherwise discriminating against an employee who discloses the amount of the employee’s own wages. A violation of § 13a, as well as any other section of the wages and fringe benefits act, except for § 13, is subject to the one-year filing requirement of MCL 408.481; MSA 17.277(11). Reversed and remanded for further proceedings. Master and Servant — Wages and Fringe Benefits Act — Discharge for Disclosure of Wages. The wages and fringe benefits act prohibits an employer from discharging, formally disciplining, or otherwise discriminating against an employee who discloses the amount of the employee’s own wages; a complaint alleging a violation of the prohibition may be filed with the Department of Labor within twelve months after the alleged violation (MCL 408.481, 408.483a(c); MSA 17.277[11], 17.277[13a][c]). References Am Jur 2d, Labor and Labor Relations § 656. See ALR Index under Labor and Employment. John T. Burhans, for Kelley A. Reno. Gemrich, Moser, Bowser, Fette & Lohrman (by Mary E. Delahanty) (Vorys, Sater, Seymour & Pease by Douglas L. Williams and Susan A. Cohen, of Counsel), for Lane Bryant, Inc. Before: Murphy, P.J., and Mackenzie and Hoekstra, JJ. Per Curiam. Petitioner Kelly A. Reo appeals from a circuit court order that granted a motion by respondent Lane Bryant, Inc., for dismissal of petitioner’s petition for judicial review. We reverse. Petitioner had filed a claim with the Michigan Department of Labor alleging that she had been fired in violation of MCL 408.483a; MSA 17.277(13a) more than three months earlier for disclosing her wages. The Department of Labor eventually issued a determination order dismissing petitioner’s claim because of her failure to file the claim within thirty days of the violation, as required by MCL 408.483(2); MSA 17.277(13X2). Petitioner’s petition for review in the circuit court was dismissed after the circuit court agreed that petitioner’s delay in filing her claim precluded her from seeking relief.___ We believe the circuit court and the Department of Labor incorrectly interpreted the statutes at issue. While this Court is generally required to give great weight to any reasonable construction of a statute adopted by the agency charged with its enforcement, In re Quality of Service Standards for Regulated Telecommunication Services, 204 Mich App 607, 612; 516 NW2d 142 (1994), the agency’s interpretation cannot be used to overcome a statute’s plain meaning. Ludington Service Corp v Acting Comm’r of Ins, 444 Mich 481, 505; 511 NW2d 661 (1994). Additionally, statutes granting power to administrative agencies. must be strictly construed. In re Public Service Commission’s Determination Regarding Coin-Operated Telephones, Direct-Inward Dialing, and Touchtone Service, No 2, 204 Mich App 350, 353; 514 NW2d 775 (1994). Because the thirty-day filing requirement contained in § 13(2) applies only to violations of § 13, the circuit court and the Department of Labor erred in applying that requirement to petitioner’s claim under § 13a, an entirely different section of the wages and fringe benefits act, MCL 408.471 et seq.; MSA 17.277(1) et seq. The circuit court further erred in concluding that petitioner was exercising a right afforded by the act and in analyzing petitioner’s claim under § 13(1). Section 13(1) is inapplicable to petitioner’s claim because petitioner was not fired for filing a complaint, instituting a proceeding under the act, testifying in a proceeding, or exercising a right on behalf of another, the only situations to which § 13 is applicable. MCL 408.483(1); MSA 17.277(13X1)-provides, in pertinent part: An employer shall not discharge an employee or discriminate against an employee because the employee filed a complaint, instituted or caused to be instituted, a proceeding under or regulated by this act, testified or is about to testify in a proceeding, or because of the exercise by the employee on behalf of an employee or others of a right afforded by this act. [Emphasis added.] We believe that in order to fall within the plain meaning of the above provision an employee must be exercising a right afforded by the act on behalf of another employee or other person. Simply exercising a right on one’s own behalf would not bring an employee within the purview of § 13. Here, petitioner’s claim is clearly addressed by § 13a(c), which prohibits an employer from "discharging], formally disciplining], or otherwise discriminating] against for job advancement an employee who discloses his or her wages.” Accordingly, we conclude that petitioner was entitled to file her claim with the Department of Labor within one year of the alleged violation, as permitted by MCL 408.481; MSA 17.277(11), which provides a twelve-month filing period for violations of all sections of the act with the exception of § 13(2). Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. _ Petitioner also argues on appeal that the circuit court had jurisdiction to hear the case despite her failure to exhaust administrative remedies. Although not explicitly decided by the circuit court, because the circuit court impliedly decided this issue in petitioner’s favor, she is not the proper party to raise this issue on appeal, and respondent has not filed a cross appeal. See Burke v Gaukler Storage Co, 13 Mich App 536; 164 NW2d 691 (1968). In any event, exhaustion of administrative remedies is not an inflexible condition precedent to judicial consideration. Int’l Business Machines Corp v Dep’t of Treasury, 75 Mich App 604, 608-610; 255 NW2d 702 (1977). Because it appears that the trial court could have granted petitioner leave for judicial review, any error in failing tó explicitly do so is harmless. Id. We note that § 13a was added to the wages and fringe benefits act in 1982 and became effective in 1983, while all other sections of the act took effect in 1978. We recognize that an earlier panel of this Court has interpreted § 13 differently. In Cockels v Int’l Business Expositions, Inc, 159 Mich App 30; 406 NW2d 465 (1987), a panel of this Court interpreted § 13 to apply to a situation in which an employee was exercising a right afforded by the act on her own behalf. We believe that interpretation to be incorrect. We recognize that our construction of the act may result in a civil fine being the only remedy available under the act if petitioner’s claim is proved on remand, because the remedies provided in MCL 408.488(1), (2), and (3); MSA 17.277(18X1), (2), and (3) apply only to violations of §§ 2 through 8. While we are cognizant of this result, we are without authority to change it, given our interpretation of the statutes and the Legislature’s failure to provide explicit remedies for violations of § 13a. Furthermore, because the Department of Labor has never even ruled on the merits of petitioner’s claim, a discussion of available remedies at this point would be premature.

WRIGHT v RESTAURANT CONCEPT MANAGEMENT, INC Docket No. 165676. Submitted February 9, 1995, at Lansing. Decided April 21, 1995, at 10:05 a.m. Michael Wright brought an action in the Genesee Circuit Court against Thomas M. Charters and Restaurant Concept Management, Inc. (rcmi), alleging that he was wrongfully discharged from his employment as a restaurant manager in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., because he refused to comply with the defendants’ directive to fire all the bláck employees. The court, Donald R. Freeman, J., granted summary disposition for the defendants, ruling that the plaintiffs failure to disclose a prior criminal conviction on his employment application, which failure was discovered by the defendants after they had discharged the plaintiff, provided just cause for termination and a defense to the action. The plaintiff appealed the grant of summary disposition for RCMI. The Court of Appeals held: An employee discharged in violation of the Civil Rights Act is not barred from relief under the act when, after discharge, the employer discovers evidence of wrongdoing that would have led to the employee’s termination on lawful and legitimate grounds. Evidence of wrongdoing, however, may be considered in granting relief to the employee. Reversed and remanded for trial. Civil Rights — Civil Rights Act — Wrongful Discharge — Employee Misconduct Discovered After Termination. Relief under the Civil Rights Act for wrongful discharge is not foreclosed” by reason of the employer’s discovery after discharge of wrongdoing that would have led to the employee’s termination on lawful and legitimate grounds; evidence of such wrongdoing, however, is relevant in fashioning any relief to be granted in an action for wrongful discharge (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). _ ' References Am Jur 2d, Job Discrimination § 1068. See ALR Index under Civil Rights and Discrimination; Discharge from Employment or Office. Blum, Konheim, Elkin & Blum (by Loren D. Blum), for the plaintiff. Charters, Heck & O’Donnell, P.C. (by Michael A. Heck), for the defendants. Before: Fitzgerald, P.J., and Taylor and Mark-man, JJ. Markman, J. Plaintiff appeals that portion of the circuit court’s order granting summary disposition in favor of defendant Restaurant Concept Management, Inc. (rcmi). We reverse. On August 16, 1991, plaintiff filed in the Gene-see Circuit Court a complaint alleging that he had been hired by defendants Thomas M. Charters and rcmi as a store manager "for the sole purpose of firing as many black employees that he could.” Plaintiff further alleged "[t]hat after two black employees were terminated, plaintiff refused the defendant’s instructions to wrongfully terminate the remaining black employees,” and that, as a consequence, plaintiff’s employment was terminated, in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and public policy. Defendants moved for summary disposition on August 31, 1992. Defendants alleged that plaintiff, in applying for employment with defendants in 1990, had indicated that he had never been convicted of a crime other than a traffic offense although, in fact, he had been convicted of felonious assault in 1988. When the police attempted to arrest plaintiff for that offense, he engaged them in a six-hour standoff. Defendants discovered the misrepresentation on plaintiff’s employment application only after plaintiff had been terminated. Terry Pellman, who had hired and terminated plaintiff on behalf of defendants, submitted an affidavit on August 31, 1992, indicating that Pellman had relied on plaintiffs claimed lack of a criminal record in hiring plaintiff. Pellman further indicated that he immediately would have terminated plaintiff if he had discovered plaintiffs misrepresentation during plaintiffs employment, particularly in light of the six-hour standoff with police. Plaintiff asserted in his answer to the motion that when he filled out his application for employment with defendants he believed that he had never been convicted of a crime other than a traffic offense because the dangerous weapon involved in his assault conviction was a recklessly driven automobile. The trial court granted defendants’ motion for summary disposition, dismissing all of plaintiffs claims against the defendants. The plaintiff appeals only that portion of the order granting summary disposition and dismissing plaintiffs claims against rcmi. With respect to plaintiffs claims against rcmi, the trial court reasoned that his criminal history and related misrepresentation clearly established just cause for his termination by defendants, and that as a result, plaintiff could obtain no relief in this action. A motion for summary disposition under MCR 2.116(0(10) tests whether there is factual support for a claim. When deciding a motion for summary disposition, a court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it. On appeal, a trial court’s grant of summary disposition will be reviewed de novo, and this Court must determine whether the plaintiff was entitled to judgment as a matter of law. Allen v Keating, 205 Mich App 560, 562; 517 NW2d 830 (1994). In granting summary disposition in favor of defendants, the trial court relied heavily on Johnson v Honeywell Information Systems, Inc, 955 F2d 409 (CA 6, 1992). In Johnson, the Sixth Circuit Court of Appeals held that under Michigan law "an employer may rely upon an employee’s false representations made at the time of employment, of which the employer was unaware, and which were not the grounds for the employee’s discharge, as a just cause defense to the employee’s wrongful discharge and state civil rights claims.” Id. at 410-411. The employee’s résumé fraud was held to entitle the employer to judgment as a matter of law with regard to the employee’s claim of violations of the Civil Rights Act. Id. at 413-415. The trial court further relied on Bradley v Philip Morris, Inc, 194 Mich App 44; 486 NW2d 48 (1992), affirmed after remand 444 Mich 634; 513 NW2d 797 (1994). In Bradley, former employees sued an employer for wrongful discharge. This Court found that the trial court had erred in excluding from trial "any evidence of previous [employee] misconduct that was discovered after [the plaintiffs’] employment was terminated.” 194 Mich App 48. This Court reasoned: Evidence of employee misconduct occurring before termination is admissible as substantive evidence even if the former employer did not know of the misconduct until after the termination. Just cause for termination may include facts and circumstances existing at termination but not known to the employer. See 53 Am Jur 2d, Master and Servant, § 46, pp 120-121; Leahey v Federal Express Corp, 685 F Supp 127 (ED Va, 1988); Summers v State Farm Mutual Automobile Ins Co, 864 F2d 700, 708 (CA 10, 1988); and Pugh v See’s Candies, Inc, 203 Cal App 3d 743; 250 Cal Rptr 195 (1988). Moreover, this type of evidence is relevant to the issue of damages. Having reviewed the record, we conclude that the trial court abused its discretion in excluding this type of evidence and in not permitting defendants’ attorney to make a corresponding argument to the jury. [194 Mich App 48.] However, Bradley did not address the implications of such evidence for a claim brought under the Civil Rights Act. The United States Supreme Court recently decided a similar issue involving the Age Discrimination in Employment Act (adea), 29 USC 621 et seq., in McKennon v Nashville Banner Publishing Co, 531 US —; 115 S Ct 879; 130 L Ed 2d 852 (1995). In McKennon, the Court unanimously held that an employee discharged in violation of the adea is not barred from all relief when, after his discharge, the employer discovers evidence of wrongdoing that would have led to the employee’s termination on lawful and legitimate grounds. The Court found that "a violation of the adea cannot be so altogether disregarded.” 115 S Ct 884. The Court reasoned in part: Deterrence is one object of [statutes establishing private causes of action for invidious employment discrimination]. Compensation for injuries caused by the prohibited discrimination is another. . . . The private litigant who seeks redress for his or her injuries vindicates both the deterrence and the compensation objectives of the adea. ... It would not accord with this scheme if after-acquired evidence of wrongdoing that would have resulted in termination operates, in every instance, to bar all relief for an earlier violation of the Act. Our inquiry is not at an end, however, for even though the employer has violated the Act, we must consider how the after-acquired evidence of the employee’s wrongdoing bears on the specific remedy to be ordered. . . . We have rejected the unclean hands defense "where a private suit serves important public purposes.” . . . That does not mean, however, the employee’s own misconduct is irrelevant to all the remedies otherwise available under the statute. [115 S Ct 884-886. Citations omitted.] During oral argument, in light of the recent decision in McKennon, rcmi expressly abandoned its argument that plaintiffs résumé fraud, although discovered after his termination, barred all relief under the Civil Rights Act. Although the defendant no longer raises this issue, we find it appropriate to apply the United States Supreme Court’s prohibition of an absolute bar to relief in this case. An employer should not be absolutely insulated from liability for violations of state civil rights laws because of the fortuitous discovery, after the employee’s termination, of employee wrongdoing sufficient to have caused his termination. Although, as this Court has recognized, there may be differences between the Civil Rights Act and the adea, Riethmiller v Blue Cross & Blue Shield of Michigan, 151 Mich App 188, 198-199; 390 NW2d 227 (1986) (discussing the difference in the language used in the respective remedy provisions), we find nothing at all in the language of the former that would preclude application of the Supreme Court’s logic to this action. Moreover, we find the Supreme Court’s reasoning persuasive, and further find its objectives consistent with the purpose of the Civil Rights Act. As the Michigan Supreme Court has stated: The Civil Rights Act is "aimed at 'the prejudices and biases’ borne against persons because of their membership in a certain class, and seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases.” Miller v C A Muer Corp, 420 Mich 355, 363; 362 NW2d 650 (1984) (citations omitted). [Radtke v Everett, 442 Mich 368, 379; 501 NW2d 155 (1993).] The Supreme Court further noted in Rasheed v Chrysler Corp, 445 Mich 109, 125-126; 517 NW2d 19 (1994): Over the years, various legislatures and the courts have added certain restrictions to the contractual relationship between employer and employee in cases where ordinary contract law did not adequately protect important rights of the parties. Examples are the law on discriminatory discharge, which has been the topic of numerous regulations, guidelines on the right of labor to organize, and even rules concerning compensation for work-related injuries. The Supreme Court included "the Michigan Fair Employment Practices Act, MCL 423.301 et seq.; MSA 17.458(1) et seq. (since repealed and replaced by the Michigan Civil Rights Act)” as one example of "numerous regulations.” Id. at 125, n 22. Unlike in Bradley, where an alleged violation of civil rights was not at issue and contract law may well have served to adequately protect the employee, a claim of violation of civil rights should not be barred solely because of employee wrongdoing that could not possibly have been the reason for the employee’s discharge. Although such wrongdoing, to the extent it exists, does not constitute an absolute bar to all relief, this does not mean that the relief afforded the employee should be unaffected by the wrongdoing or that the wrongdoing should be ignored. In McKennon, the Court further observed: [A]s a general rule in cases of this type, neither reinstatement nor front pay is an appropriate remedy. It would be both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, in any event and upon lawful grounds. The proper measure of backpay presents a more difficult problem. . . . Once an employer learns about employee wrongdoing that would lead to a legitimate discharge, we cannot require the employer to ignore the information, even if it is acquired during the course of discovery in a suit against the employer and even if the information might have gone undiscovered absent the suit. The beginning point in the trial court’s formulation of a remedy should be calculation of backpay from the date of the unlawful discharge to the date the new information was discovered. [115 S Ct 886.] Although the plaintiff in this action is not barred from all relief as a matter of law, any wrongdoing on his part may be reflected in the relief awarded to him. As the Supreme Court articulated: The proper boundaries of remedial relief in the general class of the cases where, after termination, it is discovered that the employee has engaged in wrongdoing must be addressed by the judicial system in the ordinary course of further decisions, for the factual permutations and the equitable considerations they raise will vary from case to case. [115 S Ct 886.] To the extent rcmi is liable for plaintiff’s claims under the Civil Rights Act and to the extent rcmi has established wrongdoing by the plaintiff that would have led to his lawful termination in any event once discovered by the defendant, evidence of the wrongdoing should be considered in granting relief based on the "factual permutations and the equitable considerations” raised and in light of the remedies available under the Civil Rights Act. This approach precludes the exoneration of either wrongdoer while preserving the statutory goal of deterring discrimination. Reversed and remanded for a trial on the merits. We do not retain jurisdiction._ While the effect of any such wrongdoing by the employee will vary with the facts and circumstances of the case, we agree with the general guidance provided by the United States Supreme Court with respect to certain remedies. To the extent that future damages or reinstatement would otherwise be available to plaintiff, we agree that as a general rule in cases of this type, neither reinstatement nor front pay is an appropriate remedy. McKennon, 115 S Ct 886; see also Rasheed, supra at 144, n 8 (separate opinion by Justice Levin). We further find the Court’s general calculations of backpay appropriate, more particularly, from the date of unlawful discharge to the date the new information was discovered. McKennon, 115 S Ct 886.

PHILLIPS v BUTTERBALL FARMS COMPANY, INC (AFTER SECOND REMAND) Docket No. 97976. Argued November 2, 1994 (Calendar No. 14). Decided March 21, 1995. Teresa Phillips brought an action in the Kent Circuit Court against Butterball Farms Company, Inc., claiming that she was discharged in retaliation for exercising rights under the worker’s compensation act by requesting that medical bills for injuries suffered on the job be paid. The court, Robert A. Benson, J., granted summary disposition for the defendant, ruling that punitive damages or damages for mental or emotional distress could not be recovered. The Court of Appeals, Maher, P.J., and Sullivan and Reilly, JJ., affirmed in an unpublished opinion per curiam (Docket No. 118024). The Supreme Court vacated and remanded the case for reconsideration. 439 Mich 895 (1991). On remand, the Court of Appeals, Sullivan, P.J., and Reilly and Jansen, JJ., affirmed in an unpublished opinion per curiam, finding that the cause of action sounded in contract (Docket No. 147501). The Supreme Court again vacated and remanded the case for reconsideration in light of Dunbar v Dep’t of Mental Health, 197 Mich App 1 (1992). 442 Mich 911 (1993). On second remand, the Court of Appeals, McDonald, P.J., and Reilly and Jansen, JJ., reversed, holding that the cause of action sounded in tort, permitting damages for mental or emotional distress, but that because the plaintiff was an employee at will, only limited or nominal damages could be recovered (Docket No. 165049). The plaintiff appeals. In an opinion by Justice Levin, joined by Justices Cavanagh, Boyle, and Mallett, the Supreme Court held: Although Phillips was an employee at will, recovery is not limited to nominal damages. If she can establish that she was discharged for exercising rights under the worker’s compensation act, she may recover compensation for lost wages, back and front pay, and mental or emotional distress damages. References Am Jur 2d, Wrongful Discharge §§ 25, 26. Recovery for discharge from employment in retaliation for filing workers’ compensation claim. 32 ALR4th 1221. 1. A cause of action seeking damages from an employer for retaliatory discharge for filing a worker’s compensation claim is independent of the contract, and sounds in tort, not contract. While the contractual relationship is "at will,” it is not the source of an employee’s right to protection. The right stems not from an implied promise by the employer, but from the worker’s compensation statute. 2. Because this action sounds in tort, the available damages are not limited by contract principles. Thus, the plaintiff is not required to plead a separate claim for intentional infliction of emotional distress to recover damages, nor must she meet the burdens requisite to establishing that cause of action. She stated a separate and independent basis for recovery of mental and emotional distress damages. She may recover lost wages because she had a reasonable expectation that she would not be terminated for filing a worker’s compensation claim, despite the nature of the employment relationship. Because the right to recovery under the public policy exceptions to the employment at will doctrine arises independently of the employment contract, she should be compensated for lost wages. Nominal damages would not compensate her for the loss of employment, nor would they provide sufficient deterrence to employers who would violate the statute. Reversed and remanded. Justice Riley, joined by Chief Justice Brickley, dissenting, stated that a common-law action claiming retaliation for asserting worker’s compensation rights sounds in contract, and damages are limited to traditional contract remedies. Appropriate remedies would include reinstatement and back pay from the date of the discharge to the date of judgment, not mental distress or exemplary damages. This type of wrongful discharge gives rise to a judicially created cause of action that attempts to protect an expressed state policy that is implied in every contract of employment, i.e., the right to assert worker’s compensation rights without being discharged or discriminated against. The liability associated with worker’s compensation does not derive from the fault or negligence of the employer, but from injury arising out of and in the course of employment. Justice Weaver took no part in the decision of this case. 201 Mich App 663; 506 NW2d 606 (1993) reversed. Worker’s Compensation — Employment at Will — Retaliatory Discharge — Torts. A cause of action seeking damages from an employer for retaliatory discharge for filing a worker’s compensation claim is independent of the contract, and sounds in tort, not contract; while the contractual relationship is "at will,” it is not the source of an employee’s right to protection; the right stems not from an implied promise by the employer, but from the worker’s compensation statute (MCL 418.301[11]; MSA 17.237[301][11]). Drew, Cooper & Anding (by Stephen R. Drew and Amy L. Young) for the plaintiff. Miller, Johnson, Snell & Cummiskey, P.L.C. (by Craig H. Lubben), for the defendant. Amicus Curiae: Clark, Klein & Beaumont (by Dwight H. Vincent, J. Walker Henry, and Donica T. Thomas) for Michigan Manufacturers Association. AFTER SECOND REMAND Levin, J. Plaintiff Teresa Phillips, an employee at will, commenced this action against her former employer, defendant Butterball Farms Company, Inc., claiming that she was discharged for exercising rights under the worker’s compensation act. The circuit court entered orders limiting the damages recoverable, and trial has been deferred to provide Phillips with an opportunity to appeal those orders. The Court of Appeals held that because Phillips was an employee at will, damages for lost wages will be nominal and the measure of damages for mental or emotional distress will also be limited. We hold that, although Phillips was an employee at will, recovery is not limited to nominal damages, and, if she can establish that she was discharged for exercising rights under the worker’s compensation act, she may recover compensation for lost wages, back pay and front pay, and mental or emotional distress damages. The parties have not briefed or argued the issues that might arise respecting the length of front pay and mitigation of damages. We remand for trial. i Phillips was a probationary employee at Butterball. She injured her wrist on the job, and returned to work on August 19, 1986, five days after the injury. She alleges that she claimed benefits under the worker’s compensation act by requesting that her medical bills be paid by Butterball and was met with a hostile attitude, and, approximately two weeks later, before the end of the probationary period, her employment was terminated. Phillips commenced this action, and the circuit court entered the orders limiting damages. The Court of Appeals essentially affirmed the circuit court orders limiting damages. The Court of Appeals ruled that the instant case was factually similar to Dunbar v Dep’t of Mental Health, 197 Mich App 1; 495 NW2d 152 (1992), and that, under Administrative Order No. 1990-6, it was bound to follow Dunbar. The Court, however, criticized Dunbar. The Court said that, because it was bound to follow Dunbar, it was "compelled to conclude that plaintiff’s cause of action sounds in tort, and, therefore, plaintiff may claim all the damages allowed for that cause of action, including damages for mental or emotional distress.” The Court, however, limited the amount recoverable: [T]he measure of damages for her mental or emotional distress necessarily will be conñned to proof of distress arising solely from the retaliatory nature of the discharge, because an at will employee has no reasonable expectation of being continued in employment. Similarly, whether the action be in tort or contract, damages for lost wages will be nominal because an at-will employee cannot show a reasonable expectation of continued employment. [Emphasis added.]_ II Phillips was an employee at will. The general rule is that "in the absence of a contractual basis for holding otherwise, either party to an employment contract for an indefinite term may terminate it at any time for any, or no, reason.” Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 694-695; 316 NW2d 710 (1982). This Court continued that nevertheless "some grounds for discharging an employee are so contrary to public policy as to be actionable.” In addition to statutory causes of action for violation of explicit prohibitions, causes of action have been implied where the employee was discharged for failure or refusal to violate a law in the course of employment. This Court continued in Suchodolski that "the courts have found implied a prohibition on retaliatory discharges when the reason for a discharge was the employee’s exercise of a right conferred by a well-established legislative enactment. See, e.g., Sventko v Kroger Co [69 Mich App 644; 245 NW2d 151 (1976)]; Hrab v Hayes-Albion Corp, 103 Mich App 90; 302 NW2d 606 (1981). Both cases involved allegations of discharges in retaliation for having filed worker’s compensation claims.” In Sventko, the Court of Appeals recognized a cause of action for discharge in retaliation for filing a worker’s compensation claim. The lead opinion said that "while it is generally true that either party may terminate an employment at will for any reason or for no reason, that rule is not absolute.” The opinion continued that "the better view is that an employer at will is not free to discharge an employee when the reason for the discharge is an intention on the part of the employer to contravene the public policy of this state.” The Court of Appeals thus found that, although there was no explicit statutory proscription, the public policy expressed in the worker’s compensation act precluded an employer from discharging an employee for filing a claim. hi The Court of Appeals initially determined that an action for retaliatory discharge sounded in tort. Subsequent panels concluded that the action sounded in contract. In Dun bar, the Court ruled that an action for wrongful discharge in retaliation for filing a worker’s compensation claim sounds in tort, not contract. The Court continued that the cause of action is now statutorily-based, and that, for breach of the statutory duty, the action sounds in tort not contract. Butterball argues, consistent with the Court of Appeals opinions concluding that the claim sounds in contract, that the contractual employment relationship is what gives rise to Phillips’ cause of action. Implied in every contract, Butterball contends, is a promise not to contravene public policy. Thus, the action for retaliatory discharge is in contract because the right not to be discharged arises out of a promise implied in the contract. This argument ignores that the source of this right against retaliatory discharge does not stem from any term agreed upon by the contracting parties, but from public policy now expressed in a statute. The duty not to retaliate against an employee for filing a worker’s compensation claim arises independently from the employment contract. In Lathrop v Entenmann’s, Inc, 770 P2d 1367, 1373 (Colo App, 1989), a Colorado appellate court said: "[t]he duty of the employer to refrain from retaliation in violation of a state’s public policy does not find its source in any private contract; it is a duty imposed by the state’s legislative body; and it is one that cannot be adjusted or modified lay the private actions of an employer and a collective bargaining agent.” Many states now recognize a cause of action for retaliatory discharge of an employee who has filed a worker’s compensation claim. The vast majority hold that such an action is grounded in tort on the basis of a public policy exception or express statutory proscription. The Nevada Supreme Court observed:_ We know of no more effective way to nullify the basic purposes of Nevada’s workmen’s compensation system than to force employees to choose between a continuation of employment or the submission of an industrial claim. In the absence of an injury resulting in permanent total disability, most employees would be constrained to forego their entitlement to industrial compensation in favor of the economics necessity of retaining their jobs.[] In holding that such a cause of action sounds in tort, not contract, the Kansas Court of Appeals observed that "the mere existence of a contractual relationship between the parties does not change the nature of [this] action.” In enacting § 301(11) of the Worker’s Disability Compensation Act, the Legislature codified Sventko. While the contractual relationship was "at will,” the contractual relationship is not the source of an employee’s right to protection against retaliatory discharge for filing a worker’s compensation claim. The right stems not from an implied promise by the employer, but from the statute. A cause of action seeking damages from an employer who violates the worker’s compensation act is independent of the contract, and sounds in tort, not contract. IV The Court of Appeals, in holding that because Phillips was an employee at will, she may recover only limited or nominal damages, in effect ruled that there is no meaningful remedy for retaliatory discharge for filing a worker’s compensation claim. Some employees are employed for fixed terms. Others are protected by individual or union contracts providing that the employee may only be discharged for just cause. And still others, perhaps the majority, are "at will.” A fixed-term or just-cause employee is protected by that term of the employment relationship. Unless employees at will are also protected from retaliatory discharge for filing a worker’s compensation claim, almost no employee is protected by the prohibition against discharge of an employee therefor. In Dunbar, supra, the Court of Appeals held that, because a claim for retaliatory discharge sounds in tort, the employee can claim damages for mental distress and loss of pay resulting from the improper discharge. Butterball contends that the Dunbar panel erred, and argues that decisions of this Court have limited the circumstances in which an employee can obtain mental distress damages when there has been no evidence of physical injury. Butterball cites this Court’s decisions in Valentine v General American Credit, Inc, 420 Mich 256; 362 NW2d 628 (1984), concerning mental distress damages for breach of an employment contract, and Roberts v Auto-Owners Ins Co, 422 Mich 594; 374 NW2d 905 (1985), concerning the tort of intentional infliction of emotional distress. In Kewin v Massachusetts Mutual Life Ins Co, 409 Mich 401, 419; 295 NW2d 50 (1980), this Court held that mental and emotional distress damages were not ordinarily available in an action for bad-faith breach of contract. The Court also declined to recognize a tort for bad-faith breach because it would "open the door to recovery for mental pain and suffering caused by breach of a commercial contract.” The Court said, however, that damages for mental and emotional distress may be awarded where there was allegation and proof of tortious conduct independent of the breach of contract. Valentine, an action for breach of contract for termination of employment without just cause, followed Kewin. Valentine did not address an action in tort that arose independently of the employment contract. Because this action sounds in tort, the available "damages are not limited by contract principles.” Other courts that recognize an action in tort for worker’s compensation retaliatory discharge have allowed recovery for mental and emotional distress, as well as lost wages. The Iowa Supreme Court said: While it is not a crime or an act requiring a malicious motive or outrageous conduct, wrongful discharge offends standards of fair conduct and normally will cause the employee damages in lost income. In addition to his monetary loss of wages, the employee may suffer mentally. . . . We know of no logical reason why a wrongfully discharged employee’s damages should be limited to out-of-pocket loss of income, when the employee also suffers causally connected emotional harm. Distressful emotions not involving bodily injury are compensable in actions for the infringement of some other interest. . . . We believe that fairness alone justifies the allowance of a full recovery in this type of tort. Butterball contends that allowing Phillips to recover emotional and mental distress damages would contravene Roberts, supra. There, this Court declined to recognize an action in tort for intentional infliction of emotional distress for breach of an insurance contract. Phillips was not required to plead a separate claim for intentional infliction of emotional distress to recover damages for mental and emotional distress, nor must she meet the burdens requisite to establishing that cause of action. In pleading a cause of action for worker’s compensation retaliatory discharge, Phillips stated a separate and independent basis for recovery of mental and emotional distress damages. The Court of Appeals stated that to permit Phillips to recover full compensatory damages would transform her "at will” employment contract into a "just cause” contract. Again, we disagree. The Court of Appeals in Sepanske said that "either party to an at will employment contract for an indefinite term may terminate it at any time and for any reason, unless the employer has violated a specific public policy in discharging the employee.” The Court found that an employee at will could only recover nominal damages for lost wages because "[t]here is no tangible basis upon which damages may be assessed where plaintiff’s expectation was for an at will position which could have been changed or from which he could have been terminated without consequence.” The claim in Sepanske, however, was premised on breach of contract, not a separate tort. We hold that Phillips may recover lost wages. Phillips had a reasonable expectation that she would not be terminated for filing a worker’s compensation claim, despite the at-will nature of the employment relationship. Recovery under the public policy exceptions to the employment at will doctrine arises independently of the employment contract. Phillips should be compensated for lost wages to give effect to the mandate now expressed in § 301(11). Nominal damages would not compensate Phillips for her loss of employment, nor would it provide sufficient deterrence to employers who would violate the statute. Reversed and remanded to the circuit court for trial. Cavanagh, Boyle, and Mallett, JJ., concurred with Levin, J. The circuit court granted summary disposition in favor of Butterball dismissing Phillips’ claims of handicap discrimination and breach of implied contract. The circuit court ruled that Phillips could not recover punitive damages or damages for mental or emotional distress. The Court of Appeals affirmed in an unpublished opinion per curiam, issued February 22, 1991 (Docket No. 118024). This Court vacated the judgment of the Court of Appeals and remanded for reconsideration. 439 Mich 895 (1991). On remand, in an unpublished opinion per curiam, issued May 14, 1992 (Docket No. 147501), the Court of Appeals found that Phillips’ cause of action was in contract. This Court again vacated and remanded, this time for reconsideration in light of Dunbar v Dep’t of Mental Health, 197 Mich App 1; 495 NW2d 152 (1992). 442 Mich 911 (1993). 201 Mich App 663; 506 NW2d 606 (1993). The Court said: Furthermore, the Dunbar majority has presented no rationale for distinguishing between retaliatory discharge for filing a workers’ compensation claim and other types of retaliatory discharge that are equally offensive to public policy. The mere fact that the Workers’ Disability Compensation Act has codified the public policy against retaliatory disch

Barbara Tate vs. Department of Mental Health & others. Suffolk. October 3, 1994. January 24, 1995. Present: Liacos, C.J., Wilkins, Nolan, Lynch, & Greaney, JJ. Practice, Civil, Summary judgment, Burden of proof. Federal Rehabilitation Act. Handicapped Persons. Employment, Discrimination, Termination. Anti-Discrimination Law, Prima facie case, Burden of proof, Termination of employment, Handicap. In a claim of handicap employment discrimination brought under the Federal Rehabilitation Act of 1973, 29 U.S.C. § 794 (a), and the Massachusetts employment discrimination statute, G. L. c. 15IB, the judge correctly ordered summary judgment for the employer where the plaintiff did not establish a prima facie case by producing evidence that she was dismissed because of her handicap and, in any event, did not produce any evidence to support a claim that the employer’s stated nondiscriminatory reason for the plaintiff’s dismissal, viz., insubordination, was a pretext [360-364]; nor did the plaintiff sustain her burden of proof to establish she was terminated in retaliation for complaining about the employer’s failure reasonably to accommodate her handicap [364-365], A Superior Court judge correctly ruled that an employment discrimination claim based on an allegation of a violation of art. 114 of the Amendments to the Massachusetts Constitution was barred where an adequate remedy was provided under the general antidiscrimination statute, G. L. c. 151B. [365] Civil action commenced in the Superior Court Department on March 4, 1987. The case was heard by Charles M. Grabau, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Paul H. Merry for the plaintiff. Catherine C. Ziehl, Assistant Attorney General, for Department of Mental Health & another. Kay H. Hodge for North Suffolk Mental Health Association, Inc. North Suffolk Mental Health Association, Inc., and Massachusetts Commission for the Deaf and Hard of Hearing. Lynch, J. The plaintiff brought an action alleging handicap discrimination and retaliatory discharge pursuant to § 504 of the Federal Rehabilitation Act of 1973, 29 U.S.C. § 794 (1982 & Supp. IV 1986); the Massachusetts employment discrimination statute, G. L. c. 15IB (1992 ed.); the Massachusetts Civil Rights Act, G. L. c. 12, § 111 (1992 ed.); and art. 114 of the Amendments to the Massachusetts Constitution. The allowance of summary judgments in favor of the Department of Mental Health (department), the Massachusetts Commission for the Deaf and Hard of Hearing (commission), and North Suffolk Mental Health Association, Inc. (Association), is the basis for the plaintiff’s appeal. We transferred the case here on our own motion. We affirm. The following facts are undisputed for the purpose of summary judgment. The plaintiff, who has been deaf since birth, is a licensed independent clinical social worker. From 1979 until March of 1985, she was employed by the Vinfen Corporation (Vinfen) as a social worker and eventually as the program director of the deaf outpatient mental health services program (program). Vinfen is a private company which operated this clinical program under a contract with the department. In early 1985, Vinfen terminated the contract prior to its expiration. The department then approached the Association and requested that it assume Vinfen’s role of operating the program. On March 27, 1985, the department executed a contract with the Association to provide clinical services to deaf and hearing-impaired clients through the Association’s Freedom Trail Clinic (clinic). In March, 1985, the Association offered the plaintiff the position of social work supervisor. Her responsibilities would include hiring and supervising a sign-language interpreter and a social worker for deaf clients, and providing direct clinical services for these clients. In this position, the plaintiff was under the supervision of the clinic unit chief, Dr. Robert Abernethy, III. Before she accepted this position, the plaintiff had several discussions with James Cassetta, the assistant executive director (director) of the Association, concerning . her dissatisfaction with her job description and her lines of supervision. The plaintiff submitted her own proposed job description to the director. He told the plaintiff that her “proposal was unacceptable and that the Association would not hire her unless she accepted its job description and lines of supervision.” Additionally, as an employee of the Association, the plaintiff would be required to submit to all of the Association’s policies and procedures. She agreed to these provisions and accepted the position. She commenced work on April 9, 1985. On April 16, 1985, the plaintiff sent a memorandum to the director expressing her concerns about the clinic’s administrative structure, policies, and procedure. In addition, she asked to renegotiate her job title. The plaintiff’s complaints concerning the structure and policies of the program continued over the next several weeks. During June and July the plaintiff made additional complaints to the director. She insisted on changing her title to “program director” and refused to recognize, the unit chief as her supervisor. On July 31, 1985, the director sent a memorandum to the plaintiff addressing these issues, which the plaintiff had been raising since the beginning of her employment. The director stated that these administrative policies and the clinic’s services would not be altered until after the program had been in operation for six months. The director strongly urged the plaintiff to postpone discussion about these organizational issues and to focus on her responsibilities of the recruitment of staff and delivery of services to the clients. In the beginning of August, the plaintiff sent a memorandum, to Barbara Ferguson, the clinic’s administrative coordinator. In this memorandum she directed the administrative coordinator to “suspend” her duty to supervise the secretary’s work at the clinic. She further stated that the secretary was to work exclusively for the program. In addition, on August 14, 1985, the plaintiff sent another memorandum to the director stating that the administrative coordinator did not have the authority to supervise or to delegate work to any member of the deaf services staff, including the secretary. The plaintiff further argued that keeping the original staffing pattern, which dated back to the prior contractor, Vinfen, served the original intent of the program. On August 30, 1985, the unit chief sent a memorandum to the plaintiff concerning her persistent resistance to the Association’s authority and structure. In this memorandum, the unit chief stated that the plaintiff would be terminated if she did not explicitly agree to accept the Association’s managerial prerogatives. Specifically, the memorandum warned the plaintiff that she must “accept the fact that the Association, not you personally, has the right to manage the [p]rogram .... Your response on the secretarial issue reveals either an unwillingness or an inability to meet these obligations.” The unit chief requested that she sign the memorandum to signify her understanding of her obligations. The plaintiff refused to sign the memorandum after receiving advice from the Massachusetts State Association for the Deaf. On September 18, 1985, the Association sent a letter to the plaintiff terminating her employment, effective October 18, 1985. After receiving this letter, the plaintiff informed the unit chief, “You can’t fire me,” and stated that she would not terminate her relationships with her clients. In light of the plaintiffs response, on September 19, 1985, the Association made the plaintiffs termination effective immediately. After her dismissal, the plaintiff filed complaints with the Massachusetts Commission Against Discrimination (MCAD) and with the Office of Civil Rights (OCR) of the United States Department of Health and Human Services alleging employment discrimination. On July 15, 1986, MCAD issued a finding of lack of probable cause, concluding that the Association had not discriminated against the plaintiff on the basis of her handicap, but that she had been terminated for her refusal to comply with “[m]anagement prerogatives.” On March 3, 1987, the OCR also issued a similar finding of lack of probable cause. The party moving for summary judgment assumes the burden of affirmatively demonstrating that there is no genuine issue of material fact on every relevant issue, even if he would have no burden on an issue if the case were to go to trial. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989), citing Attorney Gen. v. Bailey, 386 Mass. 367, 371, cert. denied sub nom. Bailey v. Bellotti, 459 U.S. 970 (1982). The materials presented by the moving party need not negate or disprove an essential element of the claim of the party on whom the burden of proof at trial will rest, but they must demonstrate that there is no reasonable expectation that proof of the elements will be forthcoming at trial. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711-716 (1991). The moving party must clearly show that there is an absence of evidence to support the nonmoving party’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). We first look to the plaintiff’s claim that the defendants discriminated against her on the basis of her handicap in violation of the Federal Rehabilitation Act of 1973 and in violation of G. L. c. 15IB. The Federal Rehabilitation Act states: “No otherwise qualified individual with handicaps in the United States . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794(a) (1982 & Supp. IV 1986). Similarly, G. L. c. 151B, § 4 (16), provides in material part that it shall be an unlawful practice “[f]or any employer ... to dismiss from employment ... or otherwise discriminate against, because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation . . . .” To prove a claim of employment discrimination in violation of the Federal statute, a plaintiff must demonstrate that he or she: (1) is a handicapped person; (2) is otherwise qualified for the position sought; (3) is being excluded from that position solely by reason of his or her handicap; and also must prove (4) that the position is part of a program receiving Federal financial assistance. Doe v. New York Univ., 666 F.2d 761, 774-775 (2d Cir. 1981). After establishing the requisite prima facie case, the burden then shifts to the employer to rebut the employee’s case by presenting a legitimate nondiscriminatory reason for her discharge. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Hall v. United States Postal Serv., 857 F.2d 1073, 1078 (6th Cir. 1988). If the plaintiff establishes the prima facie case, but the defendant answers it by advancing lawful grounds for the action and produces evidence of underlying facts in support of its justification, the plaintiff, in order to prevail, must persuade the fact finder by a fair preponderance of the evidence that the defendant’s asserted reason was not the real reason for the action. See McDonnell Douglas Corp. v. Green, supra at 802-805. In construing the Commonwealth’s employment discrimination statute, we have looked to the considerable case law applying the analogous Federal statute for guidance. See Cox v. New England Tel. & Tel. Co. 414 Mass. 375, 382 (1993); White v. University of Mass. at Boston, 410 Mass. 553, 557 (1991) (analysis of discrimination claim essentially same under State and Federal statutes). For employment discrimination cases involving an allegation of disparate treatment of an employee, we have adopted this framework of shifting burdens of production of evidence which was articulated in McDonnell Douglas Corp. v. Green, supra. See McKenzie v. Brigham & Women’s Hosp., 405 Mass. 432, 435 (1989); Smith College v. Massachusetts Comm’n Against Discrimination, 376 Mass. 221, 229-230 (1978); Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 136-139 (1976). In this case, the only element of the plaintiff’s prima facie case which is in dispute is whether the plaintiff was terminoted solely on the basis of her handicap. Although the plaintiff argues on appeal that there is a factual issue whether the Association reasonably accommodated her handicap, this issue is only considered when a handicapped person is not able to perform the essential functions of the job. See Cox v. New England Tel. & Tel. Co., supra at 383. There is no dispute that the plaintiff was qualified to perform the essential functions of her position; therefore, whether the Association accommodated her handicap is irrelevant. See Hall v. United States Postal Serv., supra at 1078 (“otherwise qualified” inquiry requires consideration of employer’s reasonable accommodation). The Association argues that the plaintiff was terminated for insubordination. Although the cause of an employee’s termination would ordinarily raise a question of fact, in this case the plaintiff is faced with twin hurdles to her recovery that she has failed to overcome. First, she must establish a prima facie case of employment discrimination by producing evidence that she was dismissed because of her handicap. Once that hurdle is surmounted, the Association’s only burden is to produce evidence of nondiscriminatory reasons for the termination. Once the employer has proposed such a reason for the termination and has presented facts to support the action, the presumption of discrimination is dispelled. The employer does not have to persuade the trier of fact that it was correct in its belief. See Trustees of Forbes Library v. Labor Relations Comm’n, 384 Mass. 559, 566 (1981). Nor does the employer have to show that the employee’s acts of insubordination would have caused it to terminate an employee who was not handicapped. Id. The burden of persuasion remains with the employee at all times. The employee must prove by a preponderance of the evidence that the asserted lawful reason was not the real reason for the termination. See McKenzie v. Brigham & Women’s Hosp., supra; School Comm. of Braintree v. Massachusetts Comm’n Against Discrimination, 377 Mass. 424, 429-430 (1979); Smith College v. Massachusetts Comm’n Against Discrimination, supra at 230; Wheelock College v. Massachusetts Comm’n Against Discrimination, supra at 136-137. The employer’s reasons for its decision to terminate “may be unsound or even absurd, but if they are not discriminatory and if the plaintiff does not prove they are pretexts, the plaintiff cannot prevail.” Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 766 (1986). See McKenzie v. Brigham & Women’s Hosp., supra at 434. In ruling on the defendants’ motions for summary judgment, the judge had before him an affidavit from the director of the Association, which clearly supported the Association’s charge of insubordination. The affidavit states that the plaintiff refused to accept the authority of the Association to control her work. The plaintiff never contested that charge. It is clear from this affidavit and from the memoranda and correspondence in the record that the Association had a legitimate nondiscriminatory reason to terminate the plaintiff, i.e., her constant refusal to accept the most basic tenet of employment: the employer has the right to direct the employee in her work. The determinative issue then is whether the plaintiff will be able to satisfy her burden of proving that this stated reason was a pretext. See Brunner v. Stone & Webster Eng’g Corp., 413 Mass. 698, 703 (1992). The plaintiff never contested the charge that she was insubordinate. Instead of rebutting this allegation, the plaintiff’s affidavit recounts her constant attempts to change the managerial structure implemented by the Association and focused on the areas in which she felt the Association was not accommodating her needs. The plaintiff admits that, from the outset of her employment, she relayed to the director her concerns about the structure of the program, the allocation of funding and positions, and the communications skills of the staff members. The plaintiff’s deposition testimony also does not offer any support for her contention that the Association’s claim that she was insubordinate is a pretext. At her deposition, the plaintiff stated: “[The clinic unit chief] is not really considered ... to be my supervisor.” The plaintiff further said that, while she worked at the Association, she did not have a supervisor and stated: “I am responsible for myself. I was a clinical program director, that’s why I’m responsible.” These statements are contrary to the conditions that the plaintiff agreed to when she accepted employment with the Association and do not offer any support for the plaintiff’s claim that the charge of insubordination is a pretext. Additionally, the record contains several written communications between the plaintiff and her supervisors which reveal her refusal to abide by the Association’s directives and her supervisors’ instructions to perform her work in accordance with its directions or face termination. Further, although it is not determinative of whether the plaintiff will be able to satisfy her burden of proof, it is important to note that both the MCAD and the OCR issued findings of lack of probable cause with respect to the plaintiff’s claim that the Association discriminated against her on the basis of her handicap. The depositions, affidavits, and written memoranda demonstrate that the plaintiff will be unable to prevail at trial and, therefore, the judge properly granted summary judgment on the plaintiff’s claims under the Federal Rehabilitation Act and under G. L. c. 15IB. See Brunner v. Stone & Webster Eng’g Corp., supra at 703. The judge also was justified in his ruling that the plaintiff would not be able to sustain her burden of proof on her claim that she was terminated in retaliation for complaining about the Association’s failure reasonably to accommodate her handicap. To succeed on such a claim the plaintiff must prove that she reasonably and in good faith believed that the Association was engaged in wrongful discrimination, that she acted reasonably in response to her belief, and that the Association’s desire to retaliate against her was a determinative factor in its decision to terminate her employment. Ryan v. Raytheon Data Sys. Co., 601 F. Supp. 243, 247 (D. Mass. 1984). As we discussed above, the plaintiff did not present any evidence to show that the Association terminated her for any reason other than her insubordination. Her insubordination was demonstrated by her own deposition testimony, affidavit, and memoranda, as well as the substantially uncontested affidavits of the Association. Without presenting any support for her allegation that the real basis for her termination was her handicap, the plaintiff failed to satisfy her burden of proving that she was reasonable in her belief that the Association was engaged in unlawful discrimination and that its desire to retaliate against her was a determinative factor in her discharge, summary judgment on this claim was appropriate. With respect to the plaintiff’s claim under art. 114, we conclude that the judge was correct in his ruling that this claim is barred. Claims of employment discrimination can be vindicated under the general antidiscrimination statute, G. L. c. 15IB. In Layne v. Superintendent, Mass. Correctional Inst., Cedar Junction, 406 Mass. 156, 159 (1989), we held that, if a violation of art. 114 rights can be redressed within the ambi

BENJAMIN WHITE v. N.C. DEPARTMENT OF CORRECTION No. 9312SC862 (Filed 3 January 1995) 1. Public Officers and Employees § 41 (NCI4th)— decision by State Personnel Commission — timeliness Though the State Personnel Commission did not make its decision in this case within 90 days after receiving the official record, it did make its decision within 90 days of its next regularly scheduled meeting; therefore, the decision was timely, and the trial court properly refused to find that the decision was made on unlawful procedure. N.C.G.S. § 150B-44. Am Jnr 2d, Civil Service §§ 52 et seq. 2. Public Officers and Employees § 67 (NCI4th)— inability of petitioner to perform job responsibilities — sufficiency of evidence to support findings There was no merit to petitioner’s argument that the State Personnel Commission erred in finding that he was not able to perform all his duties as a correctional officer where correctional officers were required to rotate through all positions, and the physician who examined petitioner concluded that he could not perform all the duties listed in the job description for a correctional officer. Am Jur 2d, Civil Service §§ 52 et seq. 3. Handicapped Persons § 25 (NCI4th)— inability to perform duties of correctional officer — risk to self and others— petitioner not qualified handicapped person — accommodations not required of respondent Because petitioner could not perform the duties of the job of correctional officer as defined in the job description and petitioner’s condition could create an unreasonable risk to himself, his fellow correctional officers, other inmates, and the public at large, petitioner was not a “qualified handicapped person,” and respondent was under no duty to make accommodations for petitioner’s physical condition. N.C.G.S. §§ 168A-3(4), 168A-3(9)(a). Am Jur 2d, Job Discrimination §§ 111 et seq. Accommodation requirement under state legislation forbidding job discrimination on account of handicap. 76 ALR4th 310. What constitutes handicap under state legislation forbidding job discrimination on account of handicap. 82 ALR4th 26. Who is “qualified” handicapped person protected from employment discrimination under Rehabilitation Act of 1973 (29 USCS §§ 701 et seq.) and regulations promulgated thereunder. 80 ALR Fed. 830. 4. Public Officers and Employees § 67 (NCI4th)— State employee put on permanent leave without pay — suspension — just cause required Respondent’s placement of petitioner on permanent leave without pay amounted to a suspension under the State Personnel Act, and the case is remanded for a determination of whether such suspension was made for just cause. N.C.G.S. § 126-35. Am Jur 2d, Civil Service §§ 52 et seq. Appeal by petitioner from order entered 16 April 1993 by Judge Wiley F. Bowen in Cumberland County Superior Court. Heard in the Court of Appeals 21 April 1994. Petitioner, a former employee of respondent N.C. Department of Correction, filed a grievance with respondent alleging that he had been placed on leave without pay discriminatorily because he had a handicapping condition and because he had earlier filed a grievance concerning his work place. Following a contested case hearing, Administrative Law Judge Robert Reilly, Jr. made a recommended decision that petitioner be reinstated. The full State Personnel Commission (the Commission), however, rejected the ALJ’s recommended decision and affirmed respondent’s decision to place petitioner on leave without pay. Petitioner appealed this decision to the superior court. Following a hearing on the matter, Judge Bowen entered an order on 16 April 1993, affirming the Commission’s order. From this order, petitioner appeals. Reid, Lewis, Deese & Nance, by James R. Nance, Jr., for petitioner-appellant. Attorney General Michael F. Easley, by Assistant Attorney General Valerie L. Bateman, for respondent-appellee. McCRODDEN, Judge. Relying upon fifteen assignments of error, petitioner argues the trial court erred in (I) determining that the Commission’s decision was not made upon unlawful procedure, (II) finding that the Commission’s decision was supported by substantial competent evidence, and (III) determining that the Commission’s order was not affected by error of law. The facts are as follows. In June 1990, petitioner was employed by respondent as a correctional officer at Hoke Correctional Institution in McCain, North Carolina. For security reasons, that facility required all correctional officers to rotate among all of the custody positions. On 22 June 1990, petitioner alleged that he pulled his back while trying to lift a trap door in one of the facility’s guard towers, tower number 3. He requested that he not be assigned to work in that tower until the door was repaired. He subsequently requested not to be assigned to another tower which had a particularly long spiral staircase. On 29 June 1990, petitioner filed a written grievance after he was again assigned to work in tower number 3. In response to this, the Assistant Superintendent Wilford Shields met with petitioner on 3 July 1990. Shields informed petitioner that for the time being he would not be assigned to work in tower number 3, but that he would be required to undergo an examination by a medical specialist to determine whether he could continue to perform his duties as a correctional officer. Petitioner continued to work, and on 24 July 1990, he was instructed that he should not report to work until the evaluation of his back had been performed. Petitioner then began to use his accumulated vacation and sick leave. On 7 August 1990, petitioner filed a claim with the N.C. Industrial Commission for workers’ compensation benefits for the injury to his back allegedly sustained on 22 June 1990. However, respondent refused to accept liability for petitioner’s claim because petitioner had failed to notify respondent of his injury immediately or within 30 days of the injury. On 17 August 1990, Dr. J.N. Ellis, who had examined petitioner, wrote to respondent to report on petitioner’s physical status, stating: In my opinion, based on his past injury and his current problems with degenerative joint disease in the spine, I do not think that he could perform all the duties listed in the job description of a Correctional Officer and [in the] Criminal Justice physical requirements, especially in regard to lifting, carrying and dragging heavy objects, and pursuing foot-fleeing subjects.... I would agree that he should be restricted from lifting greater than 25 pounds and should not do strenuous physical activity. By 22 August 1990, petitioner had exhausted all of his vacation and sick leave, and respondent placed him on unpaid leave status. Dr. Ellis examined petitioner again and wrote a second letter to respondent stating that petitioner was not totally disabled and that he was “capable of maintaining a job that is not as strenuous as described in his job description.” In reviewing a trial court’s consideration of an agency’s final decision, our task is to determine whether the trial court properly applied the standard of review mandated by N.C. Gen. Stat. § 150B-51 (1991). Walker v. N.C. Dept. of Human Resources, 100 N.C. App. 498, 502, 397 S.E.2d 350, 353 (1990), disc. review denied, 328 N.C. 98, 402 S.E.2d 430 (1991). That statute provides that a reviewing court may reverse or modify an agency’s decision if: [T]he substantial rights of the petitioners may have been prejudiced because the agency’s findings, inferences, conclusions, or decisions are: (3) Made upon unlawful procedure; (4) Affected by other error of law; [or] (5) Unsupported by substantial evidence ... in view of the entire record as submitted. N.C.G.S. § 150B-51. The standard of review the trial court applies depends upon the issues presented on appeal. Brooks, Com’r of Labor v. Rebarco, Inc., 91 N.C. App. 459, 463, 372 S.E.2d 342, 344 (1988). When an appellant alleges that the agency made an error of law, the trial court must review the matter de novo-, however, when the issue is the sufficiency of the evidence to support the agency’s order, it applies the whole record test. Id. The standard of review for administrative decisions is the same in the Court of Appeals as in superior court. Teague v. Western Carolina University, 108 N.C. App. 689, 691, 424 S.E.2d 684, 686, disc. review denied, 333 N.C. 466, 427 S.E.2d 627 (1993). We do not defer to the superior court’s decision. Id., at 691-92, 424 S.E.2d at 686. I. Petitioner’s first argument, that the Commission’s decision was made upon unlawful procedure, implicates the de novo standard of review, and therefore allows us to substitute freely our judgment for that of the Commission. Nonetheless, we find that the Commission’s decision was not grounded upon unlawful procedure. Petitioner argues that the Commission rendered its decision outside the time allowed. An agency such as the Commission has 90 days from the day it receives the official record in a contested case from the Office of Administrative Hearings, or 90 days after its next regularly scheduled meeting, whichever is longer, to make a final decision in a case. N.C. Gen. Stat. § 150B-44 (1991). In this case, the Commission received the official record on 5 December 1991 and rendered its decision on 30 April 1991, more than 90 days after it received the record. However, the Commission’s next regularly scheduled meeting after 5 December 1991 was 4 February. Petitioner concedes that the decision was rendered within 90 days of the 4 February meeting. Based on this admission, we conclude that the Commission timely made its decision and the trial court properly refused to find that the decision was made on unlawful procedure. II. Petitioner next argues that certain of the Commission’s findings were not supported by substantial evidence. We disagree. In addressing this issue, we use the whole record test, which means that we must examine all the competent evidence, including that which contradicts the Commission’s findings, to determine if the Commission’s findings were supported by substantial evidence. Henderson v. N.C. Dept. of Human Resources, 91 N.C. App. 527, 530-31, 372 S.E.2d 887, 889-90 (1988). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Thompson v. Board of Education, 292 N.C. 406, 414, 233 S.E.2d 538, 544 (1977) (quoting Commissioner of Insurance v. Rating Bureau, 292 N.C. 70, 79, 231 S.E.2d 882, 888 (1977)). In applying the whole record test to this case, we are not allowed to replace the Commission’s judgment as between two reasonably conflicting views of the evidence. Id. at 410, 233 S.E.2d at 541. Petitioner argues that the Commission erred in finding that he was not able to perform all his duties both because he was able to work after his injury and because Dr. Ellis stated that he was not totally disabled and could perform some of the duties of a correctional officer. However, we find that the Commission’s finding was well supported. In light of the fact that correctional officers at Hoke were required to rotate through all positions, Dr. Ellis’ conclusion that petitioner could not perform all of the duties listed in the job description for a correctional officer, is certainly substantial evidence supporting the Commission’s finding. We find petitioner’s further assertion, that the Commission erred in finding that his handicap renders him not fit by definition to be a correctional officer, similarly meritless. Dr. Ellis’ opinion that respondent could not perform all of the duties of a correctional officer as listed in the job description adequately supports the Commission’s finding. III. In his next three arguments, petitioner alleges errors of law, again requiring us to review the issues de novo. Petitioner argues that the Commission misapplied the law in determining that the respondent did not owe petitioner a duty to make reasonable accommodations for petitioner’s condition. We disagree. When a “qualified handicapped person” requests that an accommodation be made for his handicapping condition, his employer must investigate whether there are reasonable accommodations that can be made and must make reasonable accommodations for the person’s condition. N.C. Gen. Stat. § 168A-4 (1987). Assuming without deciding that petitioner is a “handicapped person,” as that term is defined in N.C. Gen. Stat. § 168A-3(4) (1987), we conclude that petitioner is not a “qualified handicapped person.” That term means: With regard to employment, a handicapped person who can satisfactorily perform the duties of the job in question, with or without reasonable accommodation, (i) provided that the handicapped person shall not be held to standards of performance different from other employees similarly employed, and (ii) further provided that the handicapping condition does not create an unreasonable risk to the safety or health of the handicapped person, other employees, the employer’s customers, or the public. N.C.G.S. 168A-3(9)(a). The evidence demonstrates that the petitioner could not perform the duties of the job of correctional officer as defined in the job description. Furthermore, given the fact that the job of correctional officer entails the supervision of inmates, we believe that petitioner’s condition, which renders him unable to pursue foot-fleeing inmates or physically subdue them effectively, could create an unreasonable risk to himself, his fellow correctional officers, other inmates and the public at large. As petitioner was not a “qualified handicapped person,” we conclude that respondent was under no duty to make accommodations for petitioner’s physical condition. Next, petitioner argues that the Commission misinterpreted the workers’ compensation law in making its decision. The Commission found that “ [petitioner did not file a worker’s compensation claim about his alleged injury until August 7, 1990, even though departmental policy, about which he knew, required him to notify the agency immediately or, at the latest, within 30 days of his work-related injury.” Petitioner does not contend that he actually filed a claim within 30 days of his injury or that he did not know of the respondent’s policy concerning workers’ compensation claims. Rather, he claims that “[t]his finding adds nothing to the decision except to give the department an excuse as to why it didn’t give [petitioner] an accommodation.” We agree that this finding added nothing to the Commissions order but, having determined that respondent did not owe petitioner the duty to make accommodation for his condition, find that its inclusion was harmless. We reject these assignments of error. Finally, petitioner argues that the Commission erred in failing to conclude, as the AU had determined, that by placing petitioner on unpaid leave, respondent actually suspended him without cause. The Commission accepted the AU’s finding that petitioner was a permanent State employee subject to the State Personnel Act, N.C. Gen. Stat. §§ 126-1 to -88 (1993). However, the Commission refused to adopt each of the AU’s conclusions of law. In his first conclusion, the AU stated: The petitioner was a permanent State employee subject to the State Personnel Act. Involuntary placement on permanent leave without pay status for alleged inability to perform the duties of the job is the equivalent of being discharged, suspended and involuntarily separated for disciplinary reasons under GS 126-35. The respondent is required to establish just cause. The respondent failed to establish the required substantive just cause. Furthermore, the respondent failed to afford the petitioner the benefits of progressive warnings required by GS 126-35. It is arbitrary and capricious to deny the petitioner the opportunity to establish that he is able to perform the essential duties of a correctional officer despite his back injury. State agencies may not discharge or suspend a permanent State employee except for just cause. N.C.G.S. § 126-35. Before subjecting a State employee to such disciplinary action, the State shall furnish him with a written statement of the grounds for the action and of the employee’s appeal rights. Id. This section requires that a State employee be given three warnings before he may be terminated. Jones v. Dept. of Human Resources, 300 N.C. 687, 691, 268 S.E.2d 500, 502 (1980). It is uncontested that petitioner received no such warning. Thus, the question presented for our de novo review is: when respondent placed petitioner on leave without pay, was this the equivalent of suspension for disciplinary reasons within the meaning of N.C.G.S. § 126-35? We conclude that it was. Respondent asserts that leave without pay is not a sanction but a benefit offered to State employees. It is true that Subchapter IE of Title 25 of the North Carolina Administrative Code, which contains the regulation relating to leave without pay, is entitled “Employee Benefits.” It is also true that a State agency is required to reinstate an employee who takes leave without pay at his previous position or at one of like seniority, status and pay. N.C. Admin. Code tit. 25, r. IE. 1104 (January 1994). However, the leave without pay described in Subchapter IE is voluntary leave, initiated by the employee. See N.C. Admin. Code tit. 25, r. IE. 1103 (“The employee shall apply in writing to his supervisor for leave without pay.”). In this case, petitioner made no application for leave without pay. Instead, respondent placed him involuntarily on sick leave until his accumulated time elapsed, then required him to expend his accumulated vacation, and finally placed him on leave without pay. This was, in essence, a suspension, which could not be made without just cause. Neither the Commission nor the trial court made any findings relative to the issue of whether respondent suspended petitioner without just cause. Having concluded that the respondent’s placement of petitioner on permanent leave without pay amounted to a suspension under the State Personnel Act, we remand the case for a determination of whether such suspension was made for just cause. Remanded. Chief Judge ARNOLD and Judge GREENE concur. Opinion written and concurred in prior to 16 December 1994.

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