Retaliation Cases

SUMMER v SOUTHFIELD BOARD OF EDUCATION Docket No. 320680. Submitted May 13, 2015, at Detroit. Decided June 2, 2015, at 9:05 a.m. Leave to appeal and leave to cross-appeal sought. Meredith Summer brought an action in the Oakland Circuit Court against the Southfield Board of Education and the Southfield Public Schools, alleging that she was laid off in violation of the Revised School Code, MCL 380.1 et seq. Defendants moved for summary disposition, asserting that the court lacked subject-matter jurisdiction and that plaintiff had failed to state a claim for which relief could be granted. The court, Denise Langford Morris, J., granted summary disposition in favor of defendants under MCR 2.116(C)(4) and (8). Plaintiff appealed. The Court of Appeals held-. 1. MCL 380.1248 of the Revised School Code concerns policies governing personnel decisions that will result in the elimination of a position, and MCL 380.1249 requires school districts to adopt and implement a performance evaluation system for teachers. Under MCL 380.1248(3), a teacher must seek redress for alleged violations of MCL 380.1248 and MCL 380.1249 in the courts. Accordingly, the trial court erred by concluding that it did not have jurisdiction over plaintiff’s claim that defendants violated her rights under §§ 1248 and 1249 of the Revised School Code. 2. The trial court correctly determined, however, that teachers cannot bring a private cause of action under MCL 380.1249. Instead, the code provides alternative enforcement mechanisms, including the fact that school funding is conditioned on compliance with MCL 380.1249. Nonetheless, a school district’s failure to follow the procedures established in MCL 380.1249 may provide the basis for a private cause of action brought under MCL 380.1248. MCL 380.1248(3) states that if a teacher brings an action against a school district based on § 1248, the teacher’s sole and exclusive remedy is an order of reinstatement commencing 30 days after a decision by a court of competent jurisdiction. MCL 380.1248 expressly incorporates the performance evaluation system delineated in § 1249. Specifically, § 1248(l)(b) requires school districts to adopt a policy that provides that all personnel decisions when conducting a staffing or program reduction are to he based on retaining effective teachers and that the determination of whether a teacher is effective is to be made under the evaluation system delineated in § 1249. Therefore, the requirement that a school district use a performance evaluation system in compliance with § 1249 as it evaluates teachers and makes layoff decisions is one of the requirements with regard to which a teacher may assert a private cause of action under MCL 380.1248(3). Accordingly, if a school district lays off a teacher because the teacher is deemed ineffective, but the school district measured the teacher’s effectiveness using a performance evaluation system that did not comply with § 1249, or made a personnel decision that was not based on the factors delineated in MCL 380.1248(l)(b)(i) through (Hi), the teacher could assert a cause of action under § 1248(3) based on a violation of § 1248(l)(b). Therefore, to the extent that plaintiff’s complaint alleged that she was laid off on the basis of considerations other than those permitted under MCL 380.1248, or was laid off following an evaluation that did not comply with MCL 380.1249, plaintiff may have stated a cause of action under MCL 380.1248 that was sufficient to survive summary disposition under MCR 2.116(C)(8). 3. Although the trial court stated that it was granting summary disposition under MCR 2.116(C)(4) and (8), the court’s ruling only addressed whether summary disposition under MCR 2.116(C)(4) was appropriate. Because the trial court did not specifically articulate grounds that would support a conclusion that plaintiff’s complaint failed to state a viable claim such that defendants’ motion for summary disposition under MCR 2.116(C)(8) should be granted, this aspect of the trial court’s order granting summary disposition in favor of defendants had to be vacated. Trial court determination that teachers cannot bring a private cause of action under MCL 380.1249 affirmed; trial court decision granting summary disposition in favor of defendants under MCR 2.116(C)(4) reversed; trial court decision granting summary disposition under MCR 2.116(C)(8) vacated; case remanded for further proceedings. 1. Education — Teachers — Performance Evaluation System — Enforcement. MCL 380.1249 of the Revised School Code requires school districts to adopt and implement a performance evaluation system for teachers; teachers may not bring a private cause of action under MCL 380.1249. 2. Education — Teachers — Layoffs — Use of Performance Evaluation System — Jurisdiction — Causes of Action. MCL 380.1248 of the Revised School Code concerns policies governing personnel decisions that will result in the elimination of a position and MCL 380.1249 of the code requires school districts to adopt and implement a performance evaluation system for teachers; under MCL 380.1248(3), a teacher must seek redress for alleged violations of MCL 380.1248 and MCL 380.1249 in the courts; a school district’s failure to follow the procedures established in MCL 380.1249 may provide the basis for a private cause of action brought under MCL 380.1248. White, Schneider, Young & Chiodini, PC (by Erika P Thorn), for plaintiff. The Allen Law Group, PC (by Kevin J. Campbell and Sean B. O’Brien), for defendants. Before: WILDER, P.J., and OWENS and M. J. KELLY, JJ. WILDER, P.J. Plaintiff, Meredith Summer, appeals as of right an order granting summary disposition in favor of defendants, Southfield Board of Education and Southfield Public Schools. We affirm in part, reverse in part, vacate in part, and remand for further proceedings consistent with this opinion. I. FACTS This action arises out of a teacher layoff dispute. According to plaintiffs complaint, she began working as a teacher in the Southfield Public Schools in 1999. During the 2010-2011 school year, plaintiff was involved in an ongoing dispute with a colleague. The dispute ultimately led plaintiff to file an internal complaint in the spring of 2011, in which she claimed that the other employee had been harassing her. According to plaintiff, defendants failed to provide any information regarding the results of the investigation that followed plaintiffs complaint. At the beginning of the 2011-2012 school year, an administrator for defendants allegedly informed an employee that she “would not have to worry about [plaintiff]” after the 2011-2012 school year. According to plaintiff, defendants subsequently observed her performance in the classroom, but never shared with her the results of the observation. At the end of the school year, defendants concluded that plaintiffs teaching performance that year was “minimally effective,” but despite this evaluation rating, they did not provide a “plan of improvement” for plaintiff or otherwise give plaintiff an opportunity to improve the purported deficiencies in her performance. At the end of the 2011-2012 school year, plaintiff was laid off by defendants. According to plaintiff, she was the only teacher in the school to receive a “minimally effective” rating. Despite being laid off at the end of the 2011-2012 school year, plaintiff was subsequently hired to teach summer school during the summer of 2012. On August 30, 2013, plaintiff filed a complaint alleging that she was laid off in violation of the Revised School Code, MCL 380.1 et seq. Plaintiff asserted that while defendants had purportedly “developed a system to effectuate standards for placements, layoffs, and recalls,” which — under the requirements of MCL 380.1249 — “was supposed to be based on teacher effectiveness and be rigorous, transparent and fair,” nevertheless, defendants’ actions in laying off plaintiff “were arbitrary, capricious, and in bad faith” in the following ways: A. Defendants . . . retaliated against [plaintiff] by failing or refusing to share the results of her retaliation complaint [against another employee who had harassed plaintiff] despite the fact that she was the Complainant; B. Defendants ... prejudged her evaluation when it [sic] decided, and declared that at the end of the 2011-2012 school year, people “would not have to worry about [plaintiff];” C. Defendants .. . gave [plaintiff] a “Minimally Effective” evaluation based in part on Observations that were never even shared with [plaintiff] and for which no written feedback was given; D. Defendants ... also harbored ill will towards [plaintiff] based on incidents when she served as the union building representative [.] Plaintiff also alleged that defendants provided no plan of improvement and “no opportunity to cure any alleged performance shortcomings” after it rated plaintiff as minimally effective. Plaintiffs complaint requested a judgment (1) requiring defendants to recall her to her previous position, (2) requiring defendants to void and destroy her 2011-2012 school year evaluation, and (3) awarding money damages equaling her costs and attorney fees, and any other relief to which she was entitled. Defendants filed a motion for summary disposition under MCR 2.116(C)(4) (court lacks jurisdiction of the subject matter) and MCR 2.116(C)(8) (failure to state a claim on which relief can be granted). Defendants argued that jurisdiction over plaintiffs claim that her layoff decision was “arbitrary and capricious” or was made in bad faith rested exclusively with the State Tenure Commission (STC), because plaintiffs allegations amount to nothing more than a claim that the layoff decision constituted a subterfuge. Likewise, defendants argued that the Michigan Employment Relations Commission (MERC) has exclusive jurisdiction over plaintiffs claim arising out of her union activity. Alternatively, defendants argued that plaintiffs complaint was not properly before the circuit court because she had failed to exhaust her administrative remedies. Defendants also presented four separate bases from which they argued the trial court should conclude that summary disposition for failure to state a claim was appropriate. First, defendants contended that plaintiff failed to set forth a cause of action under MCL 380.1248 because plaintiff admitted that she was laid off after being rated minimally effective, did not allege that the evaluation process failed to follow the procedure required under the statute, and failed to make any allegation that she was laid off on the basis of seniority or tenure status. Second, defendants argued that MCL 380.1249 does not establish a private cause of action for teachers against a school district, and, therefore, plaintiff failed to state a valid claim under MCL 380.1249. Third, defendants argued in the alternative that, even if plaintiff has a private cause of action under MCL 380.1249, plaintiffs allegation that defendants did not offer her a plan of improvement following her evaluation did not constitute a violation of MCL 380.1249, because the school district was not required by statute to provide minimally effective teachers with plans of improvement until the 2013-2014 school year. Finally, defendants contended that plaintiff’s allegation, that defendants denied her an opportunity to address shortcomings in her performance, failed to state a claim because plaintiff did not identify the particular statutory provision which they allegedly violated. In response, plaintiff argued that defendants’ motion for summary disposition should be denied. Plaintiff claimed that facts supporting her allegations, if taken as true, articulated a colorable claim under the Revised School Code that defendants laid off plaintiff in an arbitrary and capricious manner and failed to use an evaluation procedure that was fair, open, and transparent. Additionally, plaintiff argued that, if the trial court concluded that plaintiff had not stated an actionable claim, she should be allowed, at the very least, to amend her pleadings. Second, plaintiff argued that it was evident from the plain meaning of the phrase “court of competent jurisdiction” in MCL 380.1248(3) that the Legislature intended to allow teachers to bring claims for reinstatement in the circuit courts of this state. Plaintiff also argued that a private cause of action could be stated under MCL 380.1249. Finally, plaintiff contended that defendants had mistaken her claim as one arising under the public employee relations act (PERA), MCL 423.201 et seq., because she had alleged no cause of action related to her union status. In support of her position that she had stated a claim under MCL 380.1248 and MCL 380.1249, plaintiff also referred to the orders entered by Oakland Circuit Court Judge James Alexander in a similar case, which denied defendant Southfield Board of Education’s motions for summary disposition and held that, in that case, the plaintiffs had stated a cause of action under both MCL 380.1248 and MCL 380.1249. The trial court issued its opinion and order on February 12, 2014, granting defendants’ motion for summary disposition under MCR 2.116(C)(4) and (8). The opinion provided, in relevant part: Plaintiffs Complaint states that she was laid off after she was rated “Minimally Effective.” Plaintiff alleges that her rating was a subterfuge and that the real reason she was laid off was retaliation for an internal complaint about a co-worker. The Court finds that these allegations do not support a claim under MCL 380.1248, which requires the lay-off to be based on “teacher effectiveness.” The [STC] has jurisdiction over a claim that a teacher was laid off in bad faith and for a reason that is arbitrary and capricious. Because Plaintiff has failed to exhaust her administrative remedy by filing her claim with the [STC], summary disposition is appropriate. The Court finds that MCL 380.1249 does not create a cause of action under the facts presented. While this Court understands Plaintiffs desire for it to follow the ruling made by Judge Alexander, that decision is not relevant to this case because this Plaintiff was evaluated under the new system at the end of the 2011-2012 school year. Finally, the Court finds that Plaintiffs allegations regarding her status as a union representative must be brought before the [MERC]. II. STANDARDS OF REVIEW This Court reviews de novo a trial court’s decision on a motion for summary disposition. Williams v Enjoi Transp Solutions, 307 Mich App 182, 185; 858 NW2d 530 (2014). Whether a trial court has subject matter jurisdiction over a dispute is also a question reviewed de novo by this Court. Forest Hills Coop v City of Ann Arbor, 305 Mich App 572, 616; 854 NW2d 172 (2014). Summary disposition is appropriate under MCR 2.116(C)(4) when the trial court “lacks jurisdiction of the subject matter.” MCR 2.116(C)(4). See also Packowski v United Food & Commercial Workers Local 951, 289 Mich App 132, 138; 796 NW2d 94 (2010). “For jurisdictional questions under MCR 2.116(C)(4), this Court determine[s] whether the affidavits, together with the pleadings, depositions, admissions, and documentary evidence, demonstrate ... [a lack of] subject matter jurisdiction.” Packowski, 289 Mich App at 138-139 (quotation marks and citation omitted; alterations in original). “A motion under MCR 2.116(C)(8) tests the legal sufficiency of the claim on the pleadings alone to determine whether the plaintiff has stated a claim on which relief may be granted. Summary disposition under subrule (C)(8) is appropriate if no factual development could justify the plaintiffs claim for relief.” Stone v Auto-Owners Ins Co, 307 Mich App 169, 173; 858 NW2d 765 (2014) (quotation marks and citation omitted). III. THE 2011 AMENDMENTS TO THE REVISED SCHOOL CODE Before the enactment of the “tie-barred” 2011 amendments to the Revised School Code, the regulation of teacher layoffs was solely a matter of the collective-bargaining process and was subject to adjudication by MERC. Baumgartner v Perry Pub Sch, 309 Mich App 507, 510-512; _ NW2d _(2015). “As such, challenges to layoff decisions were regarded as unfair labor practices, which would be a violation of PERA adjudicated by MERC.” Id. at 522-523. However, the teacher tenure act, MCL 38.71 et seq., previously included two provisions that provided a basis for the STC to assert jurisdiction over some teacher layoff disputes. Under former MCL 38.105, repealed by 2011 PA 101, tenured teachers could be terminated only “because of a necessary reduction in personnel,” and they were entitled to be appointed to the first vacancy in any school district for which they were certified and qualified. See 1993 PA 59. Under MCL 38.121, any tenured teacher could “appeal to the tenure commission any decision of a controlling board under this act,” including claims arising under former MCL 38.105. See Freiberg v Bd of Ed of Big Bay De Noc Sch Dist, 61 Mich App 404, 411-414; 232 NW2d 718 (1975), superseded by statute as noted in Baumgartner, 309 Mich App at 513, 521-524. Accordingly, in a small number of cases, a plaintiff could assert a cause of action known as “subterfuge” — i.e., that an employment action was taken for ostensibly legal reasons, but was, in actuality, not done in “good faith as a ‘necessary reduction in personnel’ ” — over which the STC “ha[d] jurisdiction to determine, as a factual matter, whether the local school board took the action because of bona fide economic necessity.” Freiberg, 61 Mich App at 413-414; see also Baumgartner, 309 Mich App at 523. However, under the 2011 amendments of the Revised School Code, the Legislature (1) removed the subject of teacher layoffs from the collective-bargaining process, such that teachers could no longer raise challenges to layoff decisions with MERC as unfair labor practices in violation of PERA, (2) required that layoff decisions be based on teacher effectiveness, and (3) established that the courts, not the STC or any other administrative agency, have jurisdiction over layoff-related challenges. Baumgartner, 309 Mich App at 524. Correspondingly, under the provisions of the Revised School Code in place at all times relevant to these proceedings, school districts are required to adopt a “performance evaluation system” that meets the following pertinent requirements: Not later than September 1, 2011,... with the involvement of teachers and school administrators, the board of a school district or intermediate school district or board of directors of a public school academy shall adopt and implement for all teachers and school administrators a rigorous, transparent, and fair performance evaluation system that does all of the following: (a) Evaluates the teacher’s or school administrator’s job performance at least annually while providing timely and constructive feedback. * * (c) Evaluates a teacher’s or school administrator’s job performance, using multiple rating categories that take into account data on student growth as a significant factor.... If the performance evaluation system implemented by a school district, intermediate school district, or public school academy under this section does not already include the rating of teachers as highly effective, effective, minimally effective, and ineffective, then the school district, intermediate school district, or public school academy shall revise the performance evaluation system not later than September 19, 2011 to ensure that it rates teachers as highly effective, effective, minimally effective, or ineffective. (d) Uses the evaluations, at a minimum, to inform decisions regarding all of the following: (i) The effectiveness of teachers and school administrators, ensuring that they are given ample opportunities for improvement. (ii) Promotion, retention, and development of teachers and school administrators, including providing relevant coaching, instruction support, or professiona

COTTON v BANKS Docket No. 319001. Submitted February 10, 2015, at Detroit. Decided March 26, 2015, at 9:10 a.m. Tramaine Cotton brought a wrongful-termination suit in the Wayne Circuit Court against the state of Michigan and Brian Banks (a member of the Michigan House of Representatives by whom Cotton had been hired as a legislative assistant). Cotton alleged that Banks terminated his employment because Cotton rejected Banks’s romantic advances. Banks contended that he terminated Cotton’s employment after learning that Cotton had been driving without a valid driver’s license and that a bench warrant had been issued for Cotton’s arrest following his failure to appear at a court hearing related to a traffic violation. Cotton’s suit claimed that Banks discriminated against him on the basis of his sex, demanded sexual favors as a condition of employment, created a hostile work environment, and retaliated against him for reporting Banks’s conduct. Cotton also claimed that Banks’s conduct constituted the tort of intentional infliction of emotional distress. The state moved for summary disposition on the basis that it was not Cotton’s employer for purposes of his civil rights claim and that his intentional tort claim should have been brought in the Court of Claims. Banks claimed that his conduct was protected by the legislative immunity provided under the Speech or Debate Clause of Michigan’s Constitution, Const 1963, art 4, § 11, and moved for summary disposition on that basis. The court, Susan D. Borman, J., denied Banks’s motion and granted the state’s motion for summary disposition. The court also granted Cotton’s motion to amend his complaint to add the House of Representatives as a defendant. Cotton’s amended complaint alleged civil rights violations against Banks and the House of Representatives and one count of intentional infliction of emotional distress against Banks alone. Banks appealed. The Court of Appeals held,'. 1. The trial court erred by determining that the Civil Rights Act, MCL 37.2101 et seq., effectively waived the legislative immunity provided by the Speech or Debate Clause of the Michigan Constitution, Const 1963, art 4, § 11, for certain acts of legislators, because the Civil Rights Act did not expressly and unequivocally state such a waiver. Waiver of the constitutional immunity offered by the Speech or Debate Clause cannot be made by inference. 2. The trial court properly held that Banks was not immune from civil suit under the Speech or Debate Clause because terminating Cotton’s employment did not constitute activity within the legitimate sphere of legislative activity for which the immunity was intended. Banks’s decision to terminate Cotton’s employment was not integral to the legislative process. That is, Banks’s personnel management was not essential to the consideration and passage or rejection of proposed legislation, nor did it involve a matter solely within the jurisdiction of the Legislature. 3. Banks was not protected by the Speech or Debate Clause because his decision to terminate Cotton’s employment was administrative, not legislative, in nature. Whether the absolute immunity provided legislators by the Speech or Debate Clause protects a legislator from civil arrest and civil process for the legislator’s employment decisions does not depend on the nature of an employee’s duties. Rather, the immunity offered by the Speech or Debate Clause depends on whether the legislator is engaged in a true legislative act, not simply an act that has some connection to the legislative process. Trial courts must be careful to distinguish between a true legislative act, and an act that is merely performed by a legislator. 4. The trial court properly denied Banks’s motion for summary disposition, which was based on the ground that he was protected by the absolute immunity found in the Speech or Debate Clause. Banks was not entitled to absolute immunity because analysis of Banks’s alleged misconduct — terminating Cotton’s employment for improper reasons — did not require an investigation into Banks’s legislative activity. 5. The trial court did not err by denying Banks’s motion for summary disposition based on his contention that the Civil Rights Act provided the exclusive remedy for Cotton’s claim of sexual harassment and his consequent allegation of the common-law tort of intentional infliction of emotional distress. The Civil Rights Act did not abrogate Cotton’s right to bring suit against Banks, because the statutory language in the Civil Rights Act contains no reference to legislators, and it does not preclude an action for the intentional infliction of emotional distress even when the same facts could give rise to a statutory violation of the Civil Rights Act. Affirmed. 1. Constitutional Law — Speech or Debate Clause — Legislative Immunity— Waiver. The Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq., does not expressly and unequivocally waive the absolute immunity to which a legislator is entitled under the Speech or Debate Clause of the Michigan Constitution, Const 1963, act 4, § 11, and a waiver of the immunity cannot be made by inference. 2. Constitutional Law — Speech or Debate Clause — Legislative Immunity. The Speech or Debate Clause of the Michigan Constitution immunizes a legislator from civil arrest and civil process premised on actions that the legislator took within the legitimate sphere of legislative activity; a legislator’s conduct that is integrally related to the consideration and passage or rejection of proposed legislation or concerns a matter solely within the Legislature’s jurisdiction is engaged in conduct within the legitimate sphere of legislative activity. 3. Constitutional Law — Speech or Debate Clause — Legislative Immunity— Employment Decisions. Whether a legislator is immune from civil arrest and civil process under the Speech or Debate Clause for decisions related to his or her staffs employment does not depend on the nature of an employee’s duties; whether a legislator is entitled to immunity depends on whether the legislator’s conduct constituted a true legislative act and was not merely an act performed by a legislator. 4. Constitutional Law — Speech or Debate Clause — Legislative Immunity— Investigation Into Legislator’s Conduct. A legislator is absolutely immune from civil arrest and civil process when evaluation of the legislator’s conduct would require an investigation into his or her legislative activity. Darryl K. Segars for Trámame Cotton. The Bradley Law Center, LLC (by Avery J. Bradley and Andrea J. Bradley), for Brian Banks. Dickinson Wright, PLLC (by Peter H. Ellsworth, Jeffery V. Stuckey, and Ryan M. Shannon), for the Michigan House of Representatives. Before: SERVITTO, P.J., and STEPHENS and M. J. KELLY, JJ. M. J. KELLY, J. In this employment dispute, defendant Representative Brian Banks of the Michigan House of Representatives appeals by right the trial court’s order denying his motion for summary disposition of the claims by Banks’s former staff member, plaintiff, Tramaine Cotton. The primary issue on appeal is whether Banks has absolute immunity from suit under the Speech or Debate Clause of Michigan’s Constitution for personnel decisions involving those members of his staff who might have involvement in the legislative process. See Const 1963, art 4, § 11. For the reasons fully explained below, we conclude that there were no errors warranting relief. Accordingly, we affirm. I. BASIC FACTS According to Cotton, Banks hired him in January 2013 to serve as a driver. Cotton alleged that, after his hire, Banks continuously expressed his desire to have a dating relationship with him, but Cotton rejected Banks’s advances. After Cotton made it clear that he would not agree to a romantic relationship, Cotton maintained that Banks began to assign him tasks that were beyond the scope of his employment and asked him to work on days he was not supposed to work. Cotton alleged that he was constructively discharged in April 2013. Banks, however, presented a very different version of events in the trial court. Banks stated that he hired Cotton in February 2013 to serve as a legislative assistant and that Cotton’s duties included responding to constituent concerns, attending functions, and driving Banks and other representatives between Detroit and Lansing. Banks claimed that he began proceedings to terminate Cotton’s employment after he learned that Cotton had been arrested for driving on a suspended license and had missed a court date, after which a bench warrant issued for Cotton’s arrest. He stated that Cotton was terminated from his employment in May 2013 for those reasons. In May 2013, Cotton sued Banks and the state of Michigan for wrongful termination. Cotton alleged that Banks violated Michigan’s Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq., by discriminating against him on the basis of his sex, by demanding sexual favors as a condition of employment, by creating a hostile work environment, and by retaliating against him. Cotton also alleged that Banks’s sexual harassment constituted the intentional infliction of emotional distress. Cotton alleged that the state, as Banks’s employer, was vicariously liable for Banks’s wrongful conduct. In August 2013, the state moved for summary disposition under MCR 2.116(C)(4) and (10). The State argued that, because employees of the House of Representatives were excluded from state civil service, the State was not Cotton’s employer for purposes of the Civil Rights Act. The state also argued that the circuit court did not have jurisdiction over Cotton’s intentional tort claim — that claim had to be brought in the Court of Claims. Banks moved for summary disposition under MCR 2.116(C)(7) and (8) in September 2013. Banks argued that he was absolutely immune, under MCL 691.1407(5), from claims arising out of his termination of Cotton’s employment. He claimed he was entitled to immunity under an unpublished decision from a circuit court because his decision to terminate Cotton involved an integral part of the legislative process, but Banks did not specifically argue that he had immunity under Const 1963, art 4, § 11. Additionally, Banks argued that the trial court must dismiss Cotton’s claim of retaliation because Cotton did not plead that he reported the alleged sexual harassment to anyone before his discharge. Cotton’s claim for intentional infliction of emotional distress similarly had to be dismissed, Banks stated, because that claim, as alleged, involved wrongful sexual discrimination in employment, and the Civil Rights Act is the exclusive remedy for such a claim. In response, Cotton argued that the Civil Rights Act constitutes an exception to the immunity provided under MCL 691.1407 and, in any event, the acts of sexual harassment were outside the scope of Banks’s authority as a representative. He also maintained that the Civil Rights Act is not the exclusive remedy for the harms occasioned by sexual harassment. Therefore, he argued, the trial court should deny Banks’s motion for summary disposition. In his reply brief, Banks cited Const 1963, art 4, § 11, and for the first time argued that he had absolute immunity from suit under the Speech or Debate Clause of Michigan’s Constitution for any personnel decisions involving his staff. Banks argued that the undisputed evidence — namely the job description for a legislative assistant and copies of correspondence — showed that Cotton’s job duties were integrally related to the legislative process. On that basis, Banks claimed he was immune from liability for his actions related to Cotton’s employment. In October 2013, the trial court held a hearing on the motions. At the hearing, the trial court expressed its belief that the Civil Rights Act created an exception to all governmental immunity, including immunity provided under the Speech or Debate Clause. The trial court also did not believe that Cotton was so integrally related to the legislative process that immunity would apply. As for Cotton’s retaliation claim, the trial court refused to consider Banks’s evidence that Cotton did not report the alleged harassment because Banks’s motion was brought under MCR 2.116(C)(8). See MCR 2.116(G)(5). Additionally, the trial court did not agree that the Civil Rights Act preempted Cotton’s claims for intentional infliction of emotional distress. Finally, the trial court agreed that the state was not Cotton’s employer and that the claims against it should be dismissed. The trial court entered an order granting the state’s motion for summary disposition and dismissed the state without prejudice. It also entered a separate order allowing Cotton to amend his complaint to include the House of Representatives as a defendant. Finally, the trial court entered an order denying Banks’s motion for summary disposition. Cotton soon filed his first amended complaint naming the Michigan House of Representatives as a defendant. In his amended complaint, Cotton alleged that he reported the sexual harassment to his superiors. Cotton again alleged four counts against Banks and the House of Representatives premised on violations of the Civil Rights Act, and a fifth claim of intentional infliction of emotional distress against Banks alone. Banks then appealed in this Court. II. THE SPEECH OR DEBATE CLAUSE A. STANDARDS OF REVIEW Banks first argues that the trial court erred when it denied his motion for summary disposition, which was based on the ground that he was absolutely immune from suit under Const 1963, art 4, § 11. He maintains that Michigan courts should construe Michigan’s Speech or Debate Clause similarly to the federal courts’ construction of the federal Speech or Debate Clause. Relying on federal authority, Banks contends that this Court should conclude that the Speech or Debate Clause applies to bar any claims premised on acts or omissions arising from the legislative process. According to Banks, because his decision to terminate Cotton implicated the legislative process, the trial court should have determined that he had absolute immunity under Const 1963, art 4, § 11. This Court reviews de novo a trial court’s decision on a motion for summary disposition. Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 369; 775 NW2d 618 (2009). This Court also reviews de novo whether the trial court properly interpreted and applied Michigan’s Constitution. Wayne Co v Hathcock, 471 Mich 445, 455; 684 NW2d 765 (2004). B. CIVIL IMMUNITY UNDER THE SPEECH OR DEBATE CLAUSE Michigan’s Speech or Debate Clause provides legislators with a privilege against civil arrest and civil process during sessions of the Legislature and immunity from liability for their speech in either house: Except as provided by law, senators and representatives shall be privileged from civil arrest and civil process during sessions of the legislature and for five days next before the commencement and after the termination thereof. They shall not be questioned in any other place for any speech in either house. [Const 1963, art 4, § 11.] The purpose of the privilege from civil arrest and civil process, our Supreme Court explained, is “to protect the legislators from the trouble, worry and inconvenience of court proceedings during the session, and for a certain time before and after, so that the State could have their undivided time and attention in public affairs.” Auditor General v Wayne Circuit Judge, 234 Mich 540, 542; 208 NW 696 (1926) (construing Const 1908, art 5, § 8, the predecessor to the present Speech or Debate Clause). Although an unreasonably long period of immunity might result in the denial of due process in an extreme case, the privilege must generally be construed to give effect to the policy which underlies it: to prevent both actual distraction and potential distraction from public duty during the legislative session. Bishop v Wayne Circuit Judge, 395 Mich 672, 677; 237 NW2d 465 (1976). The immunity provision in the Speech or Debate Clause is similarly intended to protect legislators from the distraction of litigation. See Prelesnik v Esquina, 132 Mich App 341, 347; 347 NW2d 226 (1984). Read literally, the clause only provides senators and representatives with immunity for speeches made in either house — that is, from being “questioned in any other place for any speech in either house.” See Const 1963, art 4, § 11. Because Michigan’s Speech or Debate Clause is substantially similar to the Speech or Debate Clause found in the Constitution of the United States, it should be similarly construed. See Prelesnik, 132 Mich App at 347, citing Eastland v United States Servicemen’s Fund, 421 US 491; 95 S Ct 1813; 44 L Ed 2d 324 (1975). The United States Supreme Court has stated that the Speech or Debate Clause was the product of the English experience and was intended to ensure the independence of the legislative branch from interference by the executive branch or a possibly hostile judiciary. Eastland, 421 US at 502. But, the Court noted, it had not limited the protection provided by the Speech or Debate Clause to acts of interference by public officials: The applicability of the Clause to private civil actions is supported by the absoluteness of the term “shall not be questioned,” and the sweep of the term “in any other Place.” In reading the Clause broadly we have said that legislators acting within the sphere of legitimate legislative activity “should be protected not only from the consequences of litigation’s results but also from the burden of defending themselves.” Just as a criminal prosecution infringes upon the independence which the Clause is designed to preserve, a private civil action, whether for an injunction or damages, creates a distraction and forces Members to divert their time, energy, and attention from their legislative tasks to defend the litigation. Private civil actions also may be used to delay and disrupt the legislative function. Moreover, whether a criminal action is instituted by the Executive Branch, or a civil action is brought by private parties, judicial power is still brought to bear on Members of Congress and legislative independence is imperiled. We reaffirm that once it is determined that Members are acting within the “legitimate legislative sphere” the Speech or Debate Clause is an absolute bar to interference. [Id. at 503 (citations omitted).] Consequently, in the absence of a waiver of the immunity, the Speech or Debate Clause immunizes a legislator from civil suits premised on actions that he or she took within the legitimate sphere of legislative activity. Id. C. WAIVER OF IMMUNITY UNDER THE ELLIOTT-LARSEN CIVIL RIGHTS ACT Banks initially argued that the trial court should dismiss Cotton’s claims because Banks had immunity under MCL 691.1407(5), and Cotton failed to plead in avoidance of that immunity. See Yono v Dep’t of Transp (On Remand), 306 Mich App 671, 682; 858 NW2d 128 (2014) (stating that a plaintiff must plead in avoidance of governmental immunity by alleging facts that, if true, would establish that his or her claim falls within an exception to governmental immunity). Cotton did, however, plead claims under the Civil Rights Act, and our Supreme Court has recognized that the act constitutes an exception to the immunity provided by MCL 691.1407. See Mack v Detroit, 467 Mich 186, 195; 649 NW2d 47 (2002). Banks later asserted before the trial court that he was also entitled to immunity under the Speech or Debate Clause, Const 1963, art 4, § 11. On appeal, Banks has abandoned any contention that MCL 691.1407 immunizes him from claims brought under the Civil Rights Act; instead, he now relies exclusively on the Speech or Debate Clause as the source of his immunity. Defendant Michigan House of Representatives notes that at the hearing on Banks’s motion for summary disposition, the trial court expressed its belief that there was no immunity for a

PACE v EDEL-HARRELSON Docket No. 319223. Submitted January 9, 2015, at Lansing. Decided February 24, 2015, at 9:00 a.m. Leave to appeal sought. Barbara Pace brought an action in the Eaton Circuit Court against Jessica Edel-Harrelson, Christy Long, and SIREN/Eaton Shelter, Inc. (SIREN), claiming that she was discharged in violation of public policy and the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq. Plaintiff had worked for SIREN. Plaintiff alleged that while she was employed there, Long, who was a coworker, told her that she intended to use grant funds that SIREN had received for other purposes to purchase a stove for Long’s daughter. Plaintiff claimed that she reported this conversation to her superiors at SIREN, including Edel-Harrelson, SIREN’s executive director. Edel-Harrelson later fired plaintiff, claiming the termination was based on unrelated misconduct by plaintiff. Plaintiff filed suit alleging that she was terminated because she reported Long’s alleged intent to misuse the grant funds. Defendants moved for summary disposition under MCR 2.116(0(10). The court, Conrad J. Sindt, J., granted defendants’ motion. Plaintiff appealed. The Court of Appeals held: 1. Under MCL 15.362, an employer shall not discharge, threaten, or otherwise discriminate against an employee because the employee reports or is about to report a violation or a suspected violation of a law to a public body. To establish a prima facie case under the statute, a plaintiff must show that (1) the plaintiff was engaged in protected activity as defined by the act, (2) the plaintiff was discharged or discriminated against, and (3) a causal connection exists between the protected activity and the discharge or adverse employment action. With regard to whether plaintiff engaged in protected conduct, plaintiff allegedly reported a suspected violation of Michigan’s embezzlement statute, MCL 750.174. Plaintiff’s deposition testimony was sufficient to permit a jury to conclude that plaintiff reasonably suspected a violation of law, whether the violation was completed or actively planned. Defendants also contended that plaintiff could not establish a causal connection between her alleged protected activity and her discharge. Establishing causation in a WPA claim requires application of the burden-shifting analysis articulated in McDonnell Douglas Corp v Green, 411 US 792 (1973). In this case, the basis for plaintiff’s termination was a disputed factual issue. The weight to be given to the conflicting evidence presented a question for the finder of fact. Accordingly, the trial court erred by granting summary disposition in favor of defendants on plaintiffs WPA claim. 2. The WPA provides the exclusive remedy for retaliatory-discharge claims and consequently preempts common-law public-policy claims arising from the same activity. However, if the WPA does not apply, it provides no remedy and there is no preemption. Because plaintiff established her prima facie case under the WPA, the trial court correctly granted summary disposition in favor of defendants on plaintiffs discharge against public policy claim, albeit for the wrong reason. Trial court’s grant of summary disposition in favor of defendants on plaintiffs WPA claim reversed; trial court’s grant of summary disposition in favor of defendants on plaintiffs claim of discharge against public policy affirmed. Actions — Whistleblowers’ Protection Act — Protected Activity — Reporting Suspected Violations of Law. Under MCL 15.362 of the Whistleblowers’ Protection Act, an employer shall not discharge, threaten, or otherwise discriminate against an employee because the employee reports or is about to report a violation or a suspected violation of a law to a public body; to establish a prima facie case under the statute, a plaintiff must show that (1) the plaintiff was engaged in protected activity as defined by the act, (2) the plaintiff was discharged or discriminated against, and (3) a causal connection exists between the protected activity and the discharge or adverse employment action; protected activity includes reporting a suspected a violation of law, whether the violation has been completed or is actively planned. Law Offices of Lisa C. Ward, PLLC (by Lisa C. Ward and Nicole J. Schmidtke), for plaintiff. Nemier, Mathieu & Johnson, PLLC (by Mark R. Johnson and Michelle E. Mathieu), and Foley & Mansfield, PLLP (by Greg M. Meihn and Melinda A. Balian), for defendants. Before: SHAPIRO, P.J., and GLEICHER and RONAYNE Krause, JJ. SHAPIRO, P.J. In this employment termination case, plaintiff Barbara Pace appeals by right the trial court order granting summary disposition in favor of defendants under MCR 2.116(0(10) (no genuine issue of material fact) on plaintiffs two claims: (1) that her employment was terminated in violation of the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., and, alternatively, (2) that her discharge was against public policy. For the reasons discussed in this opinion, we reverse the trial court’s grant of summary disposition on the WPA claim, but affirm the trial court’s grant of summary disposition on the claim of discharge against public policy. I. FACTS Defendants in this action are: SIREN/Eaton Shelter, Inc. (SIREN), an organization devoted to helping domestic violence victims and the homeless in Eaton County; Jessica Edel-Harrelson, SIREN’s executive director; and Christy Long, a SIREN caseworker, who was one of plaintiffs former coworkers. In January 2012, plaintiff was terminated from her position as a domestic violence transitional supportive housing coordinator and advocate with SIREN. In this position, plaintiff was responsible for using state grant funds to assist domestic violence victims in finding permanent housing as well as providing other services. Plaintiff was allowed to use grant funds to purchase housing items for SIREN clients. Plaintiff testified that when she purchased a housing item for a client using grant funds, she wrote the client’s name on the back of the receipt and submitted the receipt to Long. Plaintiff stated that Long was in charge of tracking the expenditures related to each grant. Plaintiff testified that, in August 2011, she became concerned about what she viewed as discrepancies in grant records; she believed that grant money was being used to make unauthorized purchases. Plaintiff claimed that she discussed her concerns with Edel-Harrelson. However, Edel-Harrelson testified that no such discussion ever took place. She did acknowledge that plaintiff asked her for “clarification” concerning alleged grant discrepancies. Plaintiff testified that, on December 9, 2011, Long came to her and stated that she knew there was money remaining in a certain grant fund. Plaintiff stated that Long told her that Long’s daughter needed a new stove but could not afford one. Plaintiff claimed that Long then told her she was going to use grant money to purchase the stove for her daughter; plaintiff felt that Long implied that plaintiff should document the transaction in an attempt to cover up the unauthorized purchase. At her deposition, Long denied ever using grant funds for this purpose, or indeed ever discussing such a purchase with plaintiff. Plaintiff testified that, following this conversation with Long, she immediately contacted Nancy Oliver, Edel-Harrelson’s predecessor as the director of SIREN, to discuss the situation. Oliver suggested that plaintiff contact her supervisors, Carol Chandler and Martha Miller. According to plaintiff, she called Chandler and spoke with her for approximately 45 minutes, after which Chandler stated that she would report the matter to Miller and take care of the situation. Plaintiff stated that this procedure observed SIREN’s chain of command for reporting such issues. Plaintiff testified that she was unsatisfied with the lack of action and so, in late December 2011 or early January 2012, she reported her suspicions directly to Edel-Harrelson. She stated that, at that time, she believed that Long had already purchased the stove with grant funds. Plaintiff claimed that Edel-Harrelson told her that she would look into the matter and discuss it with Chandler and Miller. However, in her deposition, Edel-Harrelson claimed to have no recollection of this discussion with plaintiff. Edel-Harrelson also testified that she had not been approached by Chandler or Miller regarding plaintiffs claim; indeed, she stated that she had no knowledge of the alleged conversation between plaintiff and Long. Edel-Harrelson did eventually investigate plaintiffs claim against Long and found no wrongdoing; however, that investigation occurred only after plaintiff filed her complaint in the instant action in April 2012. On January 18, 2012, plaintiffs employment with SIREN was terminated after ten years of what she characterizes as “loyal service and a spotless employment record . . . .” In this action, plaintiff alleges that her employment was illegally terminated for reporting Long’s violation or planned violation of law to Edel-Harrelson. Plaintiff also claimed that her reporting resulted in harassment, which she identified as “snide comments” and “eye piercing dirty looks” from a former SIREN employee who had returned to volunteer, and Long being rude to her when she asked about vision insurance. SIREN’s stated reason for terminating plaintiffs employment was plaintiffs own allegedly harassing and intimidating behavior toward a fellow employee. A letter addressed to plaintiff from Edel-Harrelson, dated January 22, 2012, states in relevant part: I regret to inform you that you are released from employment with SIREN/Eaton Shelter effective January 21, 2012. The reason for your termination is as follows: On Thursday, January 12, 2012, you engaged in behavior that resulted in fear and intimidation in co-workers, and which was witnessed by three employees. This behavior is in direct violation of SIREN/Eaton Shelter’s policy Section 13.2, 13.2 Sub-section 6, and Section 13.3. As outlined in the agency policies, Section 13.2 states that conduct which may jeopardize personal safety, security or the welfare of the agency or its employees is prohibited. Any type of workplace violence or intimidation committed by employees will not be tolerated. Subsection 6 states that employees shall refrain from aggressive or hostile behavior that frightens, distresses, or creates reasonable fear of injury to another person. Section 13.3 states that all employees are entitled to a work environment free from behavior that is disruptive or that interferes with employee ability to perform their duties. Defendants presented evidence to support this reason for plaintiffs termination. On or about January 10, 2012, plaintiff, in the presence of witnesses, made an inappropriate comment to a coworker. Plaintiff admitted making the comment as a joke. When Carol Hatch, a coworker who witnessed the comment, told plaintiff that the remark had been inappropriate, plaintiff asked if Hatch wished to go “toe to toe” with her. The incident was reported to Miller, plaintiffs supervisor, who discussed the incident the next day with Edel-Harrelson. Edel-Harrelson testified that she originally advised Miller to proceed with a formal write-up, but upon further consideration, directed Miller to issue plaintiff a verbal warning. According to Edel-Harrelson, Miller met with plaintiff on January 12, 2012, to deliver the verbal warning. Edel-Harrelson testified that plaintiff became angry and walked out of the meeting. After leaving the meeting, plaintiff apparently approached Hatch in the case managers’ office. Hatch averred that in the presence of two other case managers, Cheryl Tisdale and Elaine Shegitz, plaintiff “came into my office space . . . toward me with clenched fists, aggressively.” Hatch stated that plaintiff “said to me T hope you’re happy, I just quit because of you.’ She kicked the boxes inside the doors, twice, very hard, and I thought she was going to come toward me. I responded to her comment, ‘No, I’m afraid.’ ” Hatch then took the rest of the day off, as well as the following day, “because I was feeling very shaken, threatened and vulnerable to attack by [plaintiff]’s rage toward me.” Shegitz averred that plaintiff “stomped into the office, angry, with her hands clenched” and “glared” at Hatch, saying “something to [Hatch] along the lines of ‘Thanks a lot....’ ” However, Shegitz did not state that plaintiff kicked boxes or physically advanced on Hatch. Plaintiff categorically denied that she engaged in any physically intimidating behavior; indeed, she denied that she ever went into Hatch’s work area after the meeting. After the meeting about the verbal warning, plaintiff acknowledged that she was “upset” and walked back to her office and “slammed [her] door.” She denied that she threw or kicked anything. After consulting with SIREN’s personnel committee, Edel-Harrelson decided to terminate plaintiffs employment for the reasons cited in the January 22, 2012 letter. Plaintiff was informed of her firing in a meeting with Edel-Harrelson and Miller on January 18, 2012, and her employment was formally terminated on January 21, 2012. On April 12, 2012, plaintiff brought the instant action, alleging two counts: that her termination was in violation of the WPA and constituted a retaliatory discharge in violation of public policy. On August 21, 2013, defendants moved for summary disposition, arguing that plaintiff could not establish a prima facie case under the WPA because (1) no conduct had occurred that could be considered a violation or suspected violation of law and, therefore, plaintiff had not engaged in protected activity, and (2) plaintiff could not establish a causal connection between her alleged report of a suspected violation of law and her termination. Defendants further argued that there was no applicable public policy basis to support plaintiffs claim of discharge against public policy. On November 6, 2013, the trial court granted summary disposition in favor of defendants, ruling that plaintiff failed to establish that a violation or suspected violation of law occurred and that there was no public policy basis on which to assert her claim of discharge against public policy. II. WHISTLEBLOWERS’ PROTECTION ACT Plaintiff argues that the trial court erred by granting defendants’ motion for summary disposition on her WPA claim. We agree. “The WPA provides a remedy for an employee who suffers retaliation for reporting or planning to report a suspected violation of a law, regulation, or rule to a public body.” Anzaldua v Neogen Corp, 292 Mich App 626, 630; 808 NW2d 804 (2011). “The underlying purpose of the WPA is protection of the public. The statute meets this objective by protecting the whistleblowing employee and by removing barriers that may interdict employee efforts to report violations or suspected violations of the law.” Id. at 631 (quotation marks and citations omitted). Additionally, “[t]he WPA is a remedial statute and must be liberally construed to favor the persons that the Legislature intended to benefit.” Id. MCL 15.362 provides: An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action. [Emphasis added.] “ ‘To establish a prima facie case under [MCL 15.362], a plaintiff must show that (1) the plaintiff was engaged in protected activity as defined by the act, (2) the plaintiff was discharged or discriminated against, and (3) a causal connection exists between the protected activity and the discharge or adverse employment action.’ ” Shaw v Ecorse, 283 Mich App 1, 8; 770 NW2d 31 (2009), quoting West v Gen Motors Corp, 469 Mich 177, 183-184; 665 NW2d 468 (2003). In this case, it is undisputed that plaintiff was discharged from her employment, thus satisfying the second element. A. PROTECTED ACTIVITY In their motion for summary disposition, defendants argued, and the trial court later agreed, that plaintiff had not engaged in protected activity because, at most, she reported a “possible future violation” of the law, not a “violation or a suspected violation” of law and that, even taking plaintiffs deposition testimony as true, Long merely announced her intention to commit a violation of law in the future, which was insufficient to constitute either the crime of embezzlement or attempted embezzlement. Contrary to the parties’ contention, this case does not present an issue of first impression. In Debano-Griffin v Lake Co, 486 Mich 938 (2010), the Supreme Court reversed this Court’s opinion holding that the plaintiff had not engaged in protected activity under the WPA. See Debano-Griffin v Lake Co, unpublished opinion per curiam of the Court of Appeals, issued October 15, 2009 (Docket No. 282921). In that case, the plaintiffs employment was terminated after she reported what she believed were unlawful transfers of county funds from an ambulance fund into a 911 fund. Id. at 1-2. This Court concluded that the plaintiff had not engaged in “protected activity,” writing: Because plaintiff had only a subjective belief that defendants’ activities or suspected activities violated unspecified “governing .rules” (which may indeed have just been the suggestions of 911 directors she had been in contact with on how to make sure ambulance service was efficiently provided), and because she could not identify what law, rule, or regulation had been violated by the movement of funds from the ambulance account to another county account, she failed to establish the prima facie elements of a claim under the WPA. [Id. at 4.] In lieu of granting the plaintiffs application for leave to appeal, the Supreme Court reversed, writing: The Court of Appeals erred in holding that the plaintiff was not engaged in protected activity under the Whistle-blowers Protection Act (WPA), MCL 15.361 et seq. Reporting a “suspected violation of a law” is protected activity. MCL 15.362. MCL 211.24f(2)(d) requires the ballot to include “[a] clear statement of the purpose for the millage.” In City of South Haven v Van Buren Co Bd of Comm’rs, 478 Mich 518, 533 n 23, 534 [734 NW2d 533] (2007), this Court, relying on this statutory language, held that “funds derived from levies must be used for the purpose stated in the ballot,” and that using such funds for another purpose would “violate the law.” See also, MCL 750.489; MCL 750.490; MCL 141.439. Accordingly, when the plaintiff reported her concerns that the ambulance funds were being used for purposes other than those stated in the ballot, the plaintiff was reporting a “suspected violation of a law,” and, thus, was engaged in protected activity. Because the plaintiff reported a suspected violation of an actual law, it is unnecessary to address whether the reporting of a suspected violation of a suspected law constitutes protected activity. [Debano-Griffin, 486 Mich at 938.] As in Debano-Griffin, this case does not involve a suspected violation of a suspected law. It concerns a suspected violation of an actual law. Defendants do not argue that if Long purchased a stove for her daughter with grant funds (or took sufficient steps to constitute an attempt of such a purchase), she would not have committed the crime of embezzlement (or attempted embezzlement). See MCL 750.174. This case then turns on whether plaintiff r