Retaliation Cases

UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER, Petitioner v. Naiel NASSAR. No. 12-484. Supreme Court of the United States Argued April 24, 2013. Decided June 24, 2013. Daryl L. Joseffer, Washington, DC, for Petitioner. Brian P. Lauten, Dallas, TX, for Respondent. Melissa Arbus Sherry, for the United States as amicus curiae, by special leave of the Court, supporting the respondent. Greg Abbott, Attorney General of Texas, Daniel T. Hodge, First Assistant Attorney General, David C. Mattax, Deputy Attorney General for Defense Litigation James "Beau" Eccles, Division Chief-General Litigation, Office of the Attorney General, Daryl L. Joseffer, Counsel of Record, Carolyn M. Sweeney, King & Spalding LLP, Washington, DC, Michael W. Johnston, Merritt E. McAlister, King & Spalding LLP, Atlanta, GA, Lars Hagen, Assistant Attorney General, Office of the Attorney General, Austin, TX, Myrna Salinas Baumann, King & Spalding LLP, Austin, TX, for Petitioner. Michael T. Kirkpatrick, Allison M. Zieve, Public Citizen Litigation Group, Washington, DC, Charla Aldous, Brent Walker, Aldous Law Firm, Dallas, TX, Brian P. Lauten, Counsel of Record, Sawicki & Lauten, LLP, Dallas, TX, for Respondent. Justice KENNEDY delivered the opinion of the Court. When the law grants persons the right to compensation for injury from wrongful conduct, there must be some demonstrated connection, some link, between the injury sustained and the wrong alleged. The requisite relation between prohibited conduct and compensable injury is governed by the principles of causation, a subject most often arising in elaborating the law of torts. This case requires the Court to define those rules in the context of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., which provides remedies to employees for injuries related to discriminatory conduct and associated wrongs by employers. Title VII is central to the federal policy of prohibiting wrongful discrimination in the Nation's workplaces and in all sectors of economic endeavor. This opinion discusses the causation rules for two categories of wrongful employer conduct prohibited by Title VII. The first type is called, for purposes of this opinion, status-based discrimination. The term is used here to refer to basic workplace protection such as prohibitions against employer discrimination on the basis of race, color, religion, sex, or national origin, in hiring, firing, salary structure, promotion and the like. See § 2000e-2(a). The second type of conduct is employer retaliation on account of an employee's having opposed, complained of, or sought remedies for, unlawful workplace discrimination. See § 2000e-3(a). An employee who alleges status-based discrimination under Title VII need not show that the causal link between injury and wrong is so close that the injury would not have occurred but for the act. So-called but-for causation is not the test. It suffices instead to show that the motive to discriminate was one of the employer's motives, even if the employer also had other, lawful motives that were causative in the employer's decision. This principle is the result of an earlier case from this Court, Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), and an ensuing statutory amendment by Congress that codified in part and abrogated in part the holding in Price Waterhouse, see §§ 2000e-2(m), 2000e-5(g)(2)(B). The question the Court must answer here is whether that lessened causation standard is applicable to claims of unlawful employer retaliation under § 2000e-3(a). Although the Court has not addressed the question of the causation showing required to establish liability for a Title VII retaliation claim, it has addressed the issue of causation in general in a case involving employer discrimination under a separate but related statute, the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 623. See Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). In Gross, the Court concluded that the ADEA requires proof that the prohibited criterion was the but-for cause of the prohibited conduct. The holding and analysis of that decision are instructive here. I Petitioner, the University of Texas Southwestern Medical Center (University), is an academic institution within the University of Texas system. The University specializes in medical education for aspiring physicians, health professionals, and scientists. Over the years, the University has affiliated itself with a number of healthcare facilities including, as relevant in this case, Parkland Memorial Hospital (Hospital). As provided in its affiliation agreement with the University, the Hospital permits the University's students to gain clinical experience working in its facilities. The agreement also requires the Hospital to offer empty staff physician posts to the University's faculty members, see App. 361-362, 366, and, accordingly, most of the staff physician positions at the Hospital are filled by those faculty members. Respondent is a medical doctor of Middle Eastern descent who specializes in internal medicine and infectious diseases. In 1995, he was hired to work both as a member of the University's faculty and a staff physician at the Hospital. He left both positions in 1998 for additional medical education and then returned in 2001 as an assistant professor at the University and, once again, as a physician at the Hospital. In 2004, Dr. Beth Levine was hired as the University's Chief of Infectious Disease Medicine. In that position Levine became respondent's ultimate (though not direct) superior. Respondent alleged that Levine was biased against him on account of his religion and ethnic heritage, a bias manifested by undeserved scrutiny of his billing practices and productivity, as well as comments that " 'Middle Easterners are lazy.' " 674 F.3d 448, 450 (C.A.5 2012). On different occasions during his employment, respondent met with Dr. Gregory Fitz, the University's Chair of Internal Medicine and Levine's supervisor, to complain about Levine's alleged harassment. Despite obtaining a promotion with Levine's assistance in 2006, respondent continued to believe that she was biased against him. So he tried to arrange to continue working at the Hospital without also being on the University's faculty. After preliminary negotiations with the Hospital suggested this might be possible, respondent resigned his teaching post in July 2006 and sent a letter to Dr. Fitz (among others), in which he stated that the reason for his departure was harassment by Levine. That harassment, he asserted, " 'stems from ... religious, racial and cultural bias against Arabs and Muslims.' " Id., at 451. After reading that letter, Dr. Fitz expressed consternation at respondent's accusations, saying that Levine had been "publicly humiliated by th[e] letter" and that it was "very important that she be publicly exonerated." App. 41. Meanwhile, the Hospital had offered respondent a job as a staff physician, as it had indicated it would. On learning of that offer, Dr. Fitz protested to the Hospital, asserting that the offer was inconsistent with the affiliation agreement's requirement that all staff physicians also be members of the University faculty. The Hospital then withdrew its offer. After exhausting his administrative remedies, respondent filed this Title VII suit in the United States District Court for the Northern District of Texas. He alleged two discrete violations of Title VII. The first was a status-based discrimination claim under § 2000e-2(a). Respondent alleged that Dr. Levine's racially and religiously motivated harassment had resulted in his constructive discharge from the University. Respondent's second claim was that Dr. Fitz's efforts to prevent the Hospital from hiring him were in retaliation for complaining about Dr. Levine's harassment, in violation of § 2000e-3(a). 674 F.3d, at 452. The jury found for respondent on both claims. It awarded him over $400,000 in backpay and more than $3 million in compensatory damages. The District Court later reduced the compensatory damages award to $300,000. On appeal, the Court of Appeals for the Fifth Circuit affirmed in part and vacated in part. The court first concluded that respondent had submitted insufficient evidence in support of his constructive-discharge claim, so it vacated that portion of the jury's verdict. The court affirmed as to the retaliation finding, however, on the theory that retaliation claims brought under § 2000e-3(a) -like claims of status-based discrimination under § 2000e-2(a) -require only a showing that retaliation was a motivating factor for the adverse employment action, rather than its but-for cause. See id., at 454, n. 16 (citing Smith v. Xerox Corp., 602 F.3d 320, 330 (C.A.5 2010) ). It further held that the evidence supported a finding that Dr. Fitz was motivated, at least in part, to retaliate against respondent for his complaints against Levine. The Court of Appeals then remanded for a redetermination of damages in light of its decision to vacate the constructive-discharge verdict. Four judges dissented from the court's decision not to rehear the case en banc, arguing that the Circuit's application of the motivating-factor standard to retaliation cases was "an erroneous interpretation of [Title VII] and controlling caselaw" and should be overruled en banc. 688 F.3d 211, 213-214 (C.A.5 2012) (Smith, J., dissenting from denial of rehearing en banc). Certiorari was granted. 568 U.S. ----, 133 S.Ct. 978, 184 L.Ed.2d 758 (2013). II A This case requires the Court to define the proper standard of causation for Title VII retaliation claims. Causation in fact-i.e., proof that the defendant's conduct did in fact cause the plaintiff's injury-is a standard requirement of any tort claim, see Restatement of Torts § 9 (1934) (definition of "legal cause"); § 431, Comment a (same); § 279, and Comment c (intentional infliction of physical harm); § 280 (other intentional torts); § 281(c) (negligence). This includes federal statutory claims of workplace discrimination. Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) (In intentional-discrimination cases, "liability depends on whether the protected trait" "actually motivated the employer's decision" and "had a determinative influence on the outcome"); Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 711, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978) (explaining that the "simple test" for determining a discriminatory employment practice is "whether the evidence shows treatment of a person in a manner which but for that person's sex would be different" (internal quotation marks omitted)). In the usual course, this standard requires the plaintiff to show "that the harm would not have occurred" in the absence of-that is, but for-the defendant's conduct. Restatement of Torts § 431, Comment a (negligence); § 432(1), and Comment a (same); see § 279, and Comment c (intentional infliction of bodily harm); § 280 (other intentional torts); Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 27, and Comment b (2010) (noting the existence of an exception for cases where an injured party can prove the existence of multiple, independently sufficient factual causes, but observing that "cases invoking the concept are rare"). See also Restatement (Second) of Torts § 432(1) (1963 and 1964) (negligence claims); § 870, Comment l (intentional injury to another); cf. § 435a, and Comment a (legal cause for intentional harm). It is thus textbook tort law that an action "is not regarded as a cause of an event if the particular event would have occurred without it." W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed. 1984). This, then, is the background against which Congress legislated in enacting Title VII, and these are the default rules it is presumed to have incorporated, absent an indication to the contrary in the statute itself. See Meyer v. Holley, 537 U.S. 280, 285, 123 S.Ct. 824, 154 L.Ed.2d 753 (2003) ; Carey v. Piphus, 435 U.S. 247, 257-258, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). B Since the statute's passage in 1964, it has prohibited employers from discriminating against their employees on any of seven specified criteria. Five of them-race, color, religion, sex, and national origin-are personal characteristics and are set forth in § 2000e-2. (As noted at the outset, discrimination based on these five characteristics is called status-based discrimination in this opinion.) And then there is a point of great import for this case: The two remaining categories of wrongful employer conduct-the employee's opposition to employment discrimination, and the employee's submission of or support for a complaint that alleges employment discrimination-are not wrongs based on personal traits but rather types of protected employee conduct. These latter two categories are covered by a separate, subsequent section of Title VII, § 2000e-3(a). Under the status-based discrimination provision, it is an "unlawful employment practice" for an employer "to discriminate against any individual ... because of such individual's race, color, religion, sex, or national origin." § 2000e-2(a). In its 1989 decision in Price Waterhouse, the Court sought to explain the causation standard imposed by this language. It addressed in particular what it means for an action to be taken "because of" an individual's race, religion, or nationality. Although no opinion in that case commanded a majority, six Justices did agree that a plaintiff could prevail on a claim of status-based discrimination if he or she could show that one of the prohibited traits was a "motivating" or "substantial" factor in the employer's decision. 490 U.S., at 258, 109 S.Ct. 1775 (plurality opinion); id., at 259, 109 S.Ct. 1775 (White, J., concurring in judgment); id., at 276, 109 S.Ct. 1775 (O'Connor, J., concurring in judgment). If the plaintiff made that showing, the burden of persuasion would shift to the employer, which could escape liability if it could prove that it would have taken the same employment action in the absence of all discriminatory animus. Id., at 258, 109 S.Ct. 1775 (plurality opinion); id., at 259-260, 109 S.Ct. 1775 (opinion of White, J.); id., at 276-277, 109 S.Ct. 1775 (opinion of O'Connor, J.). In other words, the employer had to show that a discriminatory motive was not the but-for cause of the adverse employment action. Two years later, Congress passed the Civil Rights Act of 1991 (1991 Act), 105 Stat. 1071. This statute (which had many other provisions) codified the burden-shifting and lessened-causation framework of Price Waterhouse in part but also rejected it to a substantial degree. The legislation first added a new subsection to the end of § 2000e-2, i.e., Title VII's principal ban on status-based discrimination. See § 107(a), 105 Stat. 1075. The new provision, § 2000e-2(m), states: "[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." This, of course, is a lessened causation standard. The 1991 Act also abrogated a portion of Price Waterhouse 's framework by removing the employer's ability to defeat liability once a plaintiff proved the existence of an impermissible motivating factor. See Gross, 557 U.S., at 178, n. 5, 129 S.Ct. 2343. In its place, Congress enacted § 2000e-5(g)(2), which provides: "(B) On a claim in which an individual proves a violation under section 2000e-2(m) of this title and [the employer] demonstrates that [it] would have taken the same action in the absence of the impermissible motivating factor, the court- "(i) may grant declaratory relief, injunctive relief ... and [limited] attorney's fees and costs ...; and "(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment...." So, in short, the 1991 Act substituted a new burden-shifting framework for the one endorsed by Price Waterhouse . Under that new regime, a plaintiff could obtain declaratory relief, attorney's fees and costs, and some forms of injunctive relief based solely on proof that race, color, religion, sex, or nationality was a motivating factor in the employment action; but the employer's proof that it would still have taken the same employment action would save it from monetary damages and a reinstatement order. See Gross, 557 U.S., at 178, n. 5, 129 S.Ct. 2343; see also id., at 175, n. 2, 177, n. 3, 129 S.Ct. 2343. After Price Waterhouse and the 1991 Act, considerable time elapsed before the Court returned again to the meaning of "because" and the problem of causation. This time it arose in the context of a different, yet similar statute, the ADEA, 29 U.S.C. § 623(a). See Gross, supra . Much like the Title VII statute in Price Waterhouse, the relevant portion of the ADEA provided that " '[i]t shall be unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.' " 557 U.S., at 176, 129 S.Ct. 2343 (quoting § 623(a)(1) ; emphasis and ellipsis in original). Concentrating first and foremost on the meaning of the phrase " 'because of ... age,' " the Court in Gross explained that the ordinary meaning of " 'because of' " is " 'by reason of' " or " 'on account of.' " Id., at 176, 129 S.Ct. 2343 (citing 1 Webster's Third New International Dictionary 194 (1966); 1 Oxford English Dictionary 746 (1933); The Random House Dictionary of the English Language 132 (1966); emphasis in original). Thus, the "requirement that an employer took adverse action 'because of' age [meant] that age was the 'reason' that the employer decided to act," or, in other words, that "age was the 'but-for' cause of the employer's adverse decision." 557 U.S., at 176, 129 S.Ct. 2343. See also Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 63-64, and n. 14, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007) (noting that "because of" means "based on" and that " 'based on' indicates a but-for causal relationship"); Holmes v. Securities Investor Protection Corporation, 503 U.S. 258, 265-266, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992) (equating "by reason of" with " 'but for' cause"). In the course of approving this construction, Gross declined to adopt the interpretation endorsed by the plurality and concurring opinions in Price Waterhouse . Noting that "the ADEA must be 'read ... the way Congress wrote it,' " 557 U.S., at 179, 129 S.Ct. 2343 (quoting Meacham v. Knolls Atomic Power Laboratory, 554 U.S. 84, 102, 128 S.Ct. 2395, 171 L.Ed.2d 283 (2008) ), the Court concluded that "the textual differences between Title VII and the ADEA" "prevent[ed] us from applying Price Waterhouse ... to federal age discrimination claims," 557 U.S., at 175, n. 2, 129 S.Ct. 2343. In particular, the Court stressed the congressional choice not to add a provision like § 2000e-2(m) to the ADEA despite making numerous other changes to the latter statute in the 1991 Act. Id., at 174-175, 129 S.Ct. 2343 (citing EEOC v. Arabian American Oil Co., 499 U.S. 244, 256, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991) ); 557 U.S., at 177, n. 3, 129 S.Ct. 2343 (citing 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 270, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009) ). Finally, the Court in Gross held that it would not be proper to read Price Waterhouse as announcing a rule that applied to both statutes, despite their similar wording and near-contemporaneous enactment. 557 U.S., at 178, n. 5, 129 S.Ct. 2343. This different reading was necessary, the Court concluded, because Congress' 1991 amendments to Title VII

Heather Fraelick vs. PerkettPR, Inc., & another. No. 11-P-1832. Essex. June 4, 2012. June 6, 2013. Present: Katzmann, Brown, & Sullivan, JJ. Massachusetts Wage Act. Labor, Wages. Employment, Retaliation. Contract, Employment, Misrepresentation, Interference with contractual relations. Unlawful Interference. Declaratory Relief. Practice, Civil, Dismissal. Discussion of the Wage Act, G. L. c. 149, §§ 148 et seq., which commands every employer to pay an employee the wages earned by the employee at regular intervals and within a set number of days after the termination of the pay period during which the wages were earned; which prohibits exemption by means of a special contract; which prohibits retaliation against an employee for seeking his or her rights under the Wage Act; and which permits an aggrieved employee a private right of action to recover wages wrongfully withheld or detained by an employer. [703-705] In a civil action brought by an employee (plaintiff) against her employer, alleging violation of the Wage Act, G. L. c. 149, §§ 148 et seq., the judge erred in dismissing the action for failure to state a claim on which relief could be granted, where, with regard to a claim that the plaintiff’s employment was terminated in retaliation for her speaking out to senior management about the employer’s failure to pay timely sums due under the plaintiff’s contract, the complaint, fairly read, alleged that an otherwise permissible expense reimbursement arrangement designed to benefit employees had been abandoned and replaced with a policy and practice that required the employee, under penalty of discharge, to advance, indefinitely, expenses for the employer’s benefit [705-708]; where a claim of tortious interference with contractual relations (brought against an individual defendant) required an assessment of state of mind and should be evaluated on the basis of a factual record [708]; where, with regard to a claim of misrepresentation, the complaint set forth questions (e.g., whether the plaintiff actually relied on promises made by the individual defendant and whether the plaintiff’s reliance was reasonable) that could not be resolved on a motion to dismiss [708-709]; and where, likewise, with regard to the plaintiff’s request for a judgment declaring that the noncom-petition provision in her contract was unenforceable, the complaint set forth allegations sufficient to survive a motion to dismiss [709]. Civil action commenced in the Superior Court Department on April 13, 2011. A motion to dismiss was heard by Robert A. Cornetia, J. Joseph L. Sulman for the plaintiff. William J. Royal, Jr., for the defendants. Christine Perkett. Brown, J. Just days after an at-will employee reiterated her displeasure to her employer at having long been denied a part of her compensation, she was fired. A complaint, filed by the aggrieved employee (plaintiff), set out a series of interlinked facts, sufficiently detailed, which, when read together, suggested the corporate employer and its president had violated § 148A of the Massachusetts Wage Act, G. L. c. 149, §§ 148 et seq. (Wage Act), by terminating the plaintiff’s employment in retaliation for her speaking out to senior management about the employer’s failure to pay timely the sums due under her employment contract. In addition to the Wage Act claim, the plaintiff also sought compensatory relief, on common-law liability theories, and declaratory relief (see G. L. c. 231 A), from a written noncompete agreement that she had signed, at the behest of the employer, as a condition of employment. Contesting the legal viability of the complaint, the defendants jointly filed a Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), motion. A judge of the Superior Court allowed the motion and dismissed the complaint in its entirety. On appeal from the dismissal of her complaint by the judge, the plaintiff argues that her complaint alleges plausible entitlements to relief against PerkettPR, Inc. (PPR), and Christine Perkett, PPR’s president (collectively, the defendants). We conclude, for the reasons set forth herein, that the motion to dismiss was improvidently allowed. A rule 12(b)(6) motion may be allowed only when the complaint’s factual allegations (and reasonable inferences therefrom), accepted as true, do not plausibly suggest an entitlement to relief. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008); Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). “Factual allegations must be enough to raise a right to relief above the speculative level. . . [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Iannacchino v. Ford Motor Co., supra at 636, quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Assertions set out in a motion to dismiss are not part of the rule 12(b)(6) review equation. Eigerman v. Putnam Invs., Inc., 450 Mass. 281, 285 n.6 (2007). Romano v. Sacknoff, 4 Mass. App. Ct. 862, 863 (1976). We conclude, for the reasons set forth herein, that the complaint plausibly suggested an entitlement to remedial relief for violation of § 148A of the Wage Act, and declaratory relief as to a written noncompete agreement, which allegedly was unreasonably burdensome as to restrain unduly her right to secure gainful employment in her field of expertise (public relations). Claims for tortious interference and misrepresentation also were plausibly stated. A. Background. 1. Complaint. The complaint alleges the following: PPR, a private corporation doing business in this Commonwealth, hired the plaintiff, Heather Fraelick, as a full-time senior account executive, on written terms and conditions, which PPR had offered and which Fraelick, in turn, accepted in June, 2007. PPR holds itself out as a “virtual” public relations firm, since it neither owns nor rents commercial space, a business model that PPR purportedly promotes as a benefit to its clients insofar as lower overhead costs are said to yield lower client fees. PPR required Fraelick to work at home as well as pay a wide variety of business-related overhead costs out of her own pocket before being reimbursed by PPR. Specifically, memorialized by a written offer letter, PPR promised Fraelick an annual base salary of $60,000, plus other compensation and the benefit of the company’s “paid expenses program.” The agreed-to offer letter (or “contract” such as it is alleged) expressly stated the employment was “on an at-will basis.” The company’s paid expenses program called for PPR to reimburse fully an eligible employee, like Fraelick, for the business overhead costs incurred by her in performing her job, including but not limited to: telephone service fees,* ** laptop computer, basic office supplies, postage fees, and expenses associated with business travel undertaken on behalf of PPR. Based on its written offer, Fraelick believed the expense program was a component of her agreed-to compensation package. In December, 2009, PPR ceased to hold to its side of the bargain, by failing to compensate or reimburse Fraelick for costs that she had incurred in the course of her employment. On a number of occasions, throughout 2010, Fraelick took up this compensation issue with PPR’s president, Christine Perkett, who at all times acknowledged the debt owed and unequivocally promised to pay all outstanding expenses as soon as possible. Allegedly, in November, 2010, PPR paid Fraelick for some portion of the business expenses she had incurred some twelve months prior (in December, 2009). However, as late as December 31, 2010, PPR had not repaid Fraelick for overhead expenses that she paid, on behalf of PPR, throughout calendar year 2010, in the regular course of performing her job and attending to PPR client matters. This was of considerable concern to Fraelick, and particularly so in January, 2011, when a PPR client asked that she attend an upcoming meeting or event in Atlanta, Georgia. On February 3, 2011, Fraelick, once again, raised the matter of her unpaid expenses, directly with Perkett. The matter was weighing on Fraelick, both financially and otherwise. Some portion of her costs allegedly extended as far back as 2009. Fraelick expressed concerns that, due to financial hardship, she was then presently unable to travel to Georgia, or meet with other out-of-town clients, until PPR paid her what was due and owing. Two days later, on February 5, PPR delivered a check to Fraelick for the monies owed — some $3,000, more or less — and, on February 8, PPR fired Fraelick, citing her “unwillingness” to continue paying for the firm’s business expenses associated with her traveling to meet with PPR’s clients, without receiving timely reimbursement. Contemporaneously with the termination of Fraelick’s employment, PPR and Perkett directed a letter to Fraelick advising of the latter’s “continuing” contractual obligations under the noncompetition agreement, including its unqualified ban on soliciting (or attempting to solicit) PPR’s existing or prospective clients, for a period of one year from her separation from the company. PPR has clients nationwide and it seeks out business opportunities world-wide. Fraelick took seriously the implied threat of PPR to seek enforcement of its noncompete agreement, and the prospect of substantial costs in defending against such a claim. Fraelick claims to have suffered damages, including loss of future wages and benefits, and compensable emotional harm. This account is, essentially, the sum and substance of the factual allegations contained in the plaintiff’s complaint, allegations we accept as true and from which we draw every reasonable inference in her favor. 2. Motion to dismiss. The plaintiff caused each defendant to be duly served and commenced an action in the Superior Court. Pursuant to rule 12(b)(6), the defendants moved to dismiss the complaint, arguing (among other contentions) that the plaintiff’s allegations “do not rise to colorable claims on any of this scattershot eight (8) count complaint.” After a hearing, the judge allowed the defendants’ motion, ruling: “[1] business expenses are not covered under the Massachusetts Wage Act” and [2] “plaintiff’s claims fail to satisfy pleading standards set out under Iannacchino v. Ford Motor Co., 451 Mass. 623 (2008).” B. The Wage Act. It is common ground that the Wage Act, G. L. c. 149, §§ 148 et seq., lies at the heart of this case. It is useful to identify provisions of this long-standing statutory scheme, arguably implicated here, so as to frame the plaintiff’s factual statement, in light of the well-settled public policies advanced by this comprehensive law. 1. Payment of wages. Section 148 of the Wage Act (§ 148) commands “[ejvery” employer to pay an employee “the wages earned” by the employee at regular intervals and within a set number of days after “the termination of the pay period during which the wages were earned.” § 148, first par., as amended through St. 1992, c. 133, § 502. See Boston Police Patrolmen’s Assn. v. Boston, 435 Mass. 718, 720 (2002), citing American Mut. Liab. Ins. Co. v. Commissioner of Labor & Indus., 340 Mass. 144, 147 (1959). The Wage Act does not define “wages” other than to provide they “shall include any holiday or vacation payments due an employee under an oral or written agreement.” § 148, first par., inserted by St. 1966, c. 319. Nor is “earn” defined, but it is commonly understood to mean “[t]o acquire by labor, service, or performance.” Awuah v. Coverall N. America, Inc., 460 Mass. 484, 492 (2011), quoting from Black’s Law Dictionary 584 (9th ed. 2009). For purposes of construing the Wage Act, when an employee has “completed the labor, service, or performance required of him [or her],” it necessarily follows that he or she has “earned” his or her due “wage.” Awuah v. Coverall N. America, Inc., supra. 2. No exemption by means of a special contract. Section 148 of the Wage Act further provides, in relevant part: “No person shall by a special contract with an employee or by any other means exempt himself from this section.” § 148, sixth par., as appearing in St. 1956, c. 259. The legislative intent, again, is to prevent the unlawful detention of wages, including, as alleged here, by agreement between the employer and employee. 3. Antiretaliation. Section 148A of the Wage Act (§ 148A), in no uncertain terms, commands that an employer shall not “penalize[]” an employee, in any way, due to or as a result of “any action” by the employee “to seek his or her rights” under the Wage Act. This is, in effect, a stiff antiretaliation law, which is strictly applied for the protection of employees who suffer adverse employment consequences for engaging in protected activity. “A complaint made to an employer (or a manager of the employer) by an employee who reasonably believes that the wages he or she has been paid violate such laws readily qualifies as such [a protected] action.” Smith v. Winter Place LLC, 447 Mass. 363, 367 (2006). 4. Private right of action. “The basic purpose of the [Wage A]ct is ‘to prevent the unreasonable detention of wages.’ ” Weems v. Citigroup Inc., 453 Mass. 147, 150 (2009), quoting from Boston Police Patrolmen’s Assn. v. Boston, 435 Mass. at 720. An aggrieved employee has a private cause of action to recover “wages” wrongfully withheld or detained by the employer. G. L. c. 149, §§ 148 & 150. Of clear import here, § 148 provides that the “president and treasurer of a corporation and any officers or agents having the management of such corporation shall be deemed to be the employers of the employees of the corporation within the meaning of this section. . . . Whoever violates this section shall be punished ....”§ 148, sixth par. § 148, ninth par., as appearing in St. 1998, c. 236, § 10. Here, at all events, Perkett had served as PPR’s president, and thus, under the Wage Act, she is deemed, for purposes of this litigation, an “employer” of PPR’s employees. See Wiedmann v. The Bradford Group, Inc., 444 Mass. 698, 711 (2005) (under Wage Act’s plain language, “individuals may be held liable”). And, in 1999, prior to the commencement of the present action, the Legislature created a private right of action for employees aggrieved by an employer’s violation of § 148A, the antiretaliation law. See § 150 of the Wage Act (§ 150), second par., as amended by St. 1999, c. 127, § 145. See also Smith v. Winter Place LLC, 447 Mass. at 368 n.12. After filing a written complaint with the Attorney General, an employee may bring an action against her employer “for injunctive relief, for any damages incurred, and for any lost wages and other benefits. An employee so aggrieved who prevails in such an action shall be awarded treble damages . . . and shall also be awarded the costs of the litigation and reasonable attorneys’ fees.” § 150, second par., as amended by St. 2008, c. 80, § 5. See Awuah v. Coverall N. America, Inc., 460 Mass. at 490 n.15. The plaintiff alleges she received written authorization from the Attorney General prior to the time she commenced the underlying action in Superior Court. C. Discussion. 1. Section 148A retaliation claim. Without any explanation, the motion judge ruled, as matter of law, that “business expenses” are not covered by the Wage Act, in ordering the dismissal of the plaintiff’s statutory claims. In effect, the judge’s ruling implicitly failed to acknowledge the somewhat intricate § 148 claim that underlies this action. The judge’s ruling cannot stand. Section 148A of the Wage Act commands, “No employee shall be penalized by an employer in any way as a result of any action on the part of an employee to seek his or her rights under the wages and hours provisions of this chapter.” § 148A, first par., inserted by St. 1977, c. 590. Section 148A provides that an employer “who discharges or in any other manner discriminates against any employee because such employee has made a complaint to the attorney general or any other person . . . shall have violated [§ 148A] and shall be punished” (emphasis added). § 148A, second par., as appearing in St. 1999, c. 127, § 144. The legislative policy advanced by § 148A is clear: “to encourage enforcement of the wage laws by protecting employees who complain about violations of the same.” Smith v. Winter Place LLC, 447 Mass. at 368. In order to maintain an actionable claim under § 148A, a plaintiff is not obliged to successfully prove her right to seek recovery of the untimely paid “wages” in question. It is enough that a plaintiff, as here, reasonably believed the remuneration in question fell within the scope of the Wage Act. Id. at 367. See id. at 364 n.4, quoting from Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 121 (2000) (viability of retaliation claim “does not depend on the success of the underlying . . . claim, so long as the plaintiff can prove that [she] ‘reasonably and in good faith believed the [employer] was engaged in wrongful [conduct under the Wage Act]’ and that the ‘[employer’s] desire to retaliate against [her] was a determinative factor in its decision to terminate [her] employment’ ”). In the instant matter, the complaint alleges the existence of an expense reimbursement arrangement in which the employee is reimbursed for business expenses incurred on behalf of the employer. In the ordinary course, the violation of a standard expense reimbursement arrangement would not constitute a violation of the Wage Act because the reimbursement is not compensation “earned” by “labor, service or performance.” Massachusetts State Police Commissioned Officers Assn. v. Commonwealth, 462 Mass. 219, 226 (2012), quoting from Awuah v. Coverall N. America, Inc., 460 Mass. at 492. However, this complaint alleges that the employer engaged in a pattern of nonpayment, coupled with continued demands that the employee advance expense monies in ever-increasing amounts, and fired her when she refused to advance any more money for the employer’s benefit. The Wage Act prohibits an employer from exempting itself from the timely and complete payment of wages by “special contract ... or by any other means.” § 148, sixth par. This provision is strictly enforced. In Awuah, supra, the employer unlawfully classified workers as independent contractors. The Supreme Judicial Court determined that the employer’s policy of treating employee’s wages as “interest-free advances” constituted an impermissible “special contract” under § 148, and that the “chargebacks” — amounts employees were required to repay when customers failed to pay the employer — constituted improper deductions that were not valid setoffs under § 150. Id. at 490, 492-493. The requirement that employees maintain liability insurance, for the employer’s benefit, also was determined to be a “ ‘special contract’ that [had] the effect of exempting the employer from the obligations to pay earned wages in full.” The court observed, “An employer’s insurance costs, when borne by an employee, reduce wages just as effectively as if the employer had obtained the policy and deducted funds from the wages.” Id. at 497 n.22. See ibid., quoting from 29 C.F.R. § 531.35 (2010) (“ ‘wages’ cannot be considered to have been paid . . . unless they are paid finally and unconditionally or ‘free and clear,’ [and not] ‘kick[ed]-back’... to another person for the employer’s benefit”). In Camara v. Attorney Gen., 458 Mass. 756 (2011), the employer maintained a written policy permitting it to make deductions from the wages of truckers involved in accidents, based on the employer’s “unilateral assessment of liability [and the] amount of damages.” Id. at 763. The Supreme Judicial Court likewise found a violation of the Wage Act’s prohibitions against special contracts and all but “valid set-off[s],” holding that no such unilateral deduction could take place without an adjudication of fault that is procedurally fair. Id. at 763-764. To be sure, these cases invo

DEBANO-GRIFFIN v LAKE COUNTY Docket No. 143841. Argued October 10, 2012 (Calendar No. 6). Decided February 8, 2013. Cheryl Debano-Griffin brought an action in the Lake Circuit Court against Lake County and the Lake County Board of Commissioners alleging, in part, that she had been terminated from her position as the director of Lake County’s 911 department in violation of the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., after she raised concerns about a potentially improper transfer of county funds from the county’s ambulance account and regarding the ambulance service provided to the county. Defendants moved for summary disposition under MCR 2.116(C)(8) and (10). The court, Peter J. Wadel, J., denied the motion, and the jury returned a verdict in plaintiffs favor. Defendants appealed. The Court of Appeals, ZAHRA, PJ. (Whitbeck, J., concurring, and M. J. Kelly, J., dissenting), in an unpublished opinion, issued October 15, 2009 (Docket No. 282921), reversed and remanded for entry of an order granting summary disposition to defendants. In lieu of granting leave to appeal, the Supreme Court reversed the judgment of the Court of Appeals and remanded the case to that Court for consideration of an additional argument that had been raised by defendants. 486 Mich 938 (2010). On remand, the Court of Appeals, Murray, PJ., and Hoekstra, J. (Stephens, J., dissenting), in an unpublished opinion per curiam, issued August 25, 2011 (Docket No. 282921), held that plaintiff had failed to establish a genuine issue of material fact regarding the causation element of her claim and again reversed the trial court’s order denying defendants’ motion for summary disposition. The Supreme Court granted plaintiffs application for leave to appeal. 491 Mich 874 (2012). In an opinion by Justice Cavanagh, joined by Chief Justice Young and Justices Markman and Mary Beth Kelly, the Supreme Court held: Judicial review of plaintiffs claim under the WPA, which questioned defendants’ proffered reason for the elimination of her position by asserting that the proffered reason for termination was a pretext for retaliation, violated neither the business-judgment rule nor the separation of powers given that review of the claim merely required examination of whether the county board had acted outside its constitutionally and legislatively granted powers and that plaintiff did not question whether the purportedly economic decision was wise, shrewd, prudent, or competent. 1. Under the WPA, a plaintiff may establish a prima facie case by showing that (1) the plaintiff was engaged in protected activity as defined by the act, (2) the defendant took an adverse employment action against the plaintiff, and (3) a causal connection existed between the protected activity and the adverse employment action. In this case, only the causal connection was at issue. Absent direct evidence of retaliation, a plaintiff must rely on indirect evidence of his or her employer’s unlawful motivations to show that a causal link existed between the whistleblowing act and the employer’s adverse employment action. A plaintiff may present a rebuttable prima facie case on the basis of proofs from which a fact-finder could infer that the plaintiff was the victim of unlawful retaliation. Something more than a temporal connection between protected conduct and an adverse employment action is required to show causation when retaliation is claimed. In this case, when viewed in the light most favorable to plaintiff, the facts supported a reasonable inference that plaintiff was the victim of unlawful retaliation. Specifically, during a 12-day period when plaintiff engaged in protected activity by raising the concerns, her position went from ftilly funded to nonexistent; from that evidence, a rational fact-finder could infer that the board had decided to fund plaintiff’s position until she voiced her complaints. Further, plaintiff made her complaints to the board that ultimately eliminated her position. It is reasonable to infer that the more knowledge the employer has of the protected activity, the greater the possibility of an impermissible motivation for the adverse employment action. Additionally, the board remedied its prior and potentially unlawful action after plaintiff voiced her concerns, suggesting that because of plaintiffs complaints, the board was forced to do something it would not otherwise have done. From that evidence, a reasonable inference could be drawn that the board was motivated to eliminate plaintiff’s position because of her complaints. 2. Once a plaintiff establishes a prima facie case, a presumption of retaliation arises because an employer’s adverse action is more likely than not based on the consideration of impermissible factors if the employer cannot otherwise justify the action. The employer might be entitled to summary disposition, however, if it offers a legitimate reason for its action and the plaintiff fails to show that a reasonable fact-finder could still conclude that his or her protected activity was a motivating factor for the employer’s adverse action. A plaintiff must not merely raise a triable issue that the employer’s proffered reason was pretextual, but must raise the issue that it was pretext for unlawful retaliation. In this case, defendants claimed that plaintiffs position was eliminated because of economic necessity and that plaintiff could not challenge that justification because any challenge would either impermissibly question defendants’ business judgment or unconstitutionally require judicial review of a legislative body’s policy decision, violating the separation of powers. A plaintiff can establish that a defendant’s stated legitimate, nondiscriminatory reasons are pretexts (1) by showing that the reasons had no basis in fact, (2) if they have a basis in fact, by showing that they were not the actual factors motivating the decision, or (3) if they were factors, by showing that they were jointly insufficient to justify the decision. The soundness of an employer’s business judgment, however, may not he questioned as a means of showing pretext. In this case, plaintiff did not question defendants’ business judgment. Rather, plaintiff asserted that defendants’ proffered justification had no basis in fact, or at least was not the actual factor motivating the decision, when she offered evidence that, when viewed in the light most favorable to her, suggested that the county was not facing a budget crisis. Further, the WPA expressly waives legislative immunity, making the act fully applicable to public employers. Thus, the question whether the hoard lawfully exercised its authority when it eliminated plaintiffs position was subject to judicial review, and that review did not violate the separation of powers. Plaintiff presented sufficient evidence to conclude that reasonable minds could differ regarding the board’s true motivation for eliminating her position and raised a genuine issue of material fact regarding causation. Defendants were not entitled to summary disposition. Judgment of the Court of Appeals reversed, trial court’s denial of defendants’ motion for summary disposition reinstated, and trial court order entering judgment in favor of plaintiff reinstated. Justice Zahra took no part in the decision of this case because he was on the Court of Appeals panel that issued the initial opinion. Justice McCormack took no part in the decision of this case. 1. Actions — Whistleblowers’ Protection Act — Prima Facie Case — Causal Connection — Indirect Evidence — Employer’s Knowledge of Protected Activity. Under the Whistleblowers’ Protection Act, a plaintiff may establish a prima facie case by showing that (1) the plaintiff was engaged in protected activity as defined by the act, (2) the defendant took an adverse employment action against the plaintiff, and (3) a causal connection exists between the protected activity and the adverse employment action; absent direct evidence of retaliation, a plaintiff must rely on indirect evidence of his or her employer’s unlawful motivations to show that a causal link exists between the whistleblowing act and the employer’s adverse employment action; something more than a temporal connection between protected conduct and an adverse employment action is required to show causation when retaliation is claimed; it is reasonable to infer that the more knowledge the employer has of the protected activity, the greater the possibility of an impermissible motivation for the adverse employment action (MCL 15.361 et seq.). 2. Actions — Whistleblowers’ Protection Act — Presumption of Retaliation — Legitimate, Nondiscriminatory Reason for the Adverse Employment Action — Pretext for Unlawful Retaliation — Business-Judgment Rule. Once a plaintiff establishes a prima facie case of retaliation under the Whistleblowers’ Protection Act, a presumption of retaliation arises; the employer might be entitled to summary disposition, however, if it offers a legitimate reason for its action and the plaintiff fails to show that a reasonable fact-finder could still conclude that his or her protected activity was a motivating factor for the employer’s adverse action; a plaintiff must not merely raise a triable issue that the employer’s proffered reason was pretextual, but must raise the issue that it was pretext for unlawful retaliation; a plaintiff can establish that a defendant’s stated legitimate, nondiscriminatory reasons are pretexts (1) by showing that the reasons had no basis in fact, (2) if they have a basis in fact, by showing that they were not the actual factors motivating the decision, or (3) if they were factors, by showing that they were jointly insufficient to justify the decision; the soundness of an employer’s business judgment, however, may not be questioned as a means of showing pretext (MCL 15.361 et seq.). 3. Actions — Whistleblowers’ Protection Act — Waiver of Legislative Immunity. The Whistleblowers’ Protection Act expressly waives legislative immunity, making the act fully applicable to public employers; the question whether a legislative body has lawfully exercised its authority when taking an adverse employment action is subject to judicial review (MCL 15.361 et seq.). Mark Granzotto, EC. (by Mark Granzotto), and Parsons Law Firm, PLC (by Grant W. Parsons), for Cheryl Debano-Griffin. Abbott Nicholson, EC. (by John R. McGlinchey and Kristen L. Baiardi), for Lake County and the Lake County Board of Commissioners. CAVANAGH, J. This case requires us to determine whether plaintiff, Cheryl Debano-Griffin, provided sufficient evidence to create a genuine issue of material fact regarding the causation element of her claim under the Whistleblowers’ Protection Act (WPA), MCL 15.361, et seq. We hold that plaintiff presented evidence that showed more than a temporal relationship between the protected activity and defendants’ adverse employment action. See West v Gen Motors Corp, 469 Mich 177; 665 NW2d 468 (2003). Also, because plaintiff must rely on circumstantial evidence to overcome defendants’ motion for summary disposition, the framework set forth in McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), is applicable. In this case, we hold that plaintiff provided sufficient evidence to establish her prima facie case of unlawful retaliation under the WPA. Additionally, we must determine whether plaintiffs claim, which questions defendants’ proffered reason for the elimination of her position by asserting that the proffered reason was a pretext for retaliation, violates either the business-judgment rule, see Hazle v Ford Motor Co, 464 Mich 456, 475-476; 628 NW2d 515 (2001), or the separation of powers. We hold that it does not violate the separation of powers because judicial review of plaintiffs statutory claim merely examines whether the county board of commissioners acted outside its constitutionally and legislatively granted powers. Additionally, plaintiffs challenge to defendants’ budgetary justifications does not implicate the business-judgment rule because plaintiff does not question whether the economic decision was “ ‘wise, shrewd, prudent, or competent.’ ” See id. at 476 (citation omitted). Moreover, in addition to adequately rebutting defendants’ facially legitimate budgetary grounds for eliminating plaintiffs position, plaintiff presented sufficient evidence to conclude that reasonable minds could differ regarding defendants’ true motivations for eliminating her position. Therefore, plaintiff created a triable issue of fact and defendants were not entitled to summary disposition. Accordingly, we reverse the judgment of the Court of Appeals and reinstate the trial court’s denial of defendants’ motion for summary disposition. I. FACTS AND PROCEEDINGS In 1998, plaintiff began working as the director of Lake County’s 911 department. Before her hiring, county voters had passed a millage for the purpose of operating Lake County’s ambulance service. Lake County then contracted with Life EMS to provide two ambulances a day to service the county. In 2002, plaintiff discovered that Life EMS was using one of the ambulances to transport residents of other counties in nonemergency circumstances. She informed the county board of commissioners (hereinafter “the board”) and other county officials that Life EMS was in breach of the contract, which posed a threat to the health and safety of county residents. Additionally, on September 28, 2004, as authorized by the board, $50,000 was transferred from the ambulance account to a 911 account to use for a “mapping project.” Plaintiff testified that on November 1, 2004, during a mapping meeting, plaintiff objected to the transfer, claiming that it violated the millage proposal and explaining that she had obtained a grant to cover the cost of the mapping project. She further stated that she had previously made similar objections regarding the transfer to the board and at a county finance committee meeting. Later, the board voted to return the funds to the ambulance account, which occurred on November 12, 2004. Also, on November 10, 2004, the board voted to merge two county employment positions. As a result of the merger, plaintiffs position was eliminated. Plaintiff received official notice of her termination on December 22, 2004, which explained that her position was eliminated because of “budget problems” and that the county was “forced to take cost cutting measures in order to balance its budget.” However, according to the proposed county budget as of October 29, 2004, the position of 911 director was fully funded at that time. In January 2005, plaintiff filed a whistleblower claim under MCL 15.362, asserting that she was terminated as result of her complaints regarding the funds transfer and Life EMS’s ambulance service. Defendants filed a motion for summary disposition under MCR 2.116(C)(8) and (10), arguing that plaintiff had not met her burden of establishing a prima facie case under the WPA because plaintiff did not engage in “protected activity” and had not provided sufficient evidence to support causation. The trial court denied defendants’ motion, and the jury returned a verdict in plaintiffs favor. Defendants appealed, and the Court of Appeals, holding that plaintiff was not engaged in protected activity under the WPA, reversed the trial court’s denial of defendants’ motion and remanded the case to the trial court for the entry of an ‘order granting summary disposition to defendants. Debano-Griffin v Lake Co, unpublished opinion per curiam of the Court of Appeals, issued October 15, 2009 (Docket No. 282921). Plaintiff sought leave to appeal, and, in lieu of granting leave to appeal, this Court reversed the judgment of the Court of Appeals and remanded the case to that Court for consideration of the argument raised by defendants but not addressed by the Court of Appeals during its initial review of the case. Debano-Griffin v Lake Co, 486 Mich 938 (2010). On remand, the Court of Appeals held that plaintiff had failed to establish a genuine issue of material fact on the causation element of her claim, relying primarily on West, and again reversed the trial court’s order denying defendants’ motion for summary disposition. Debano-Griffin v Lake Co (On Remand), unpublished opinion per curiam of the Court of Appeals, issued August 25, 2011 (Docket No. 282921). We granted plaintiffs application for leave to appeal to consider “(1) whether the plaintiff established a causal connection between her protected activity and the adverse employment action” and (2) whether a whistleblower may challenge an adverse employment decision, which is claimed to be a matter of business judgment that was based on a fiscal or budgetary reason, as a mere pretext over the defendants’ assertion that the separation of powers principle prevents the judiciary from examining the budgetary decisions of a legislative body. [Debano-Griffin v Lake Co, 491 Mich 874 (2012).] II. STANDARD of review We review de novo a trial court’s ruling on a motion for summary disposition. Chandler v Dowell Schlum-herger Inc, 456 Mich 395, 397; 572 NW2d 210 (1998). Because defendants focused their argument supporting their motion for summary disposition on MCR 2.116(0(10), we must ask whether a genuine issue of material fact exists when, viewing the evidence in a light most favorable to the nonmoving party, the “record which might be developed . . . would leave open an issue upon which reasonable minds might differ.” Shallal v Catholic Social Servs of Wayne Co, 455 Mich 604, 609; 566 NW2d 571 (1997) (citations and quotation marks omitted). Likewise, this Court reviews de novo constitutional questions, including those concerning the separation of powers. People v Garza, 469 Mich 431, 433; 670 NW2d 662 (2003). III. ANALYSIS Under the WPA, a plaintiff may establish a prima facie case by showing that (1) the plaintiff was engaged in protected activity as defined by the act, (2) the defendant took an adverse employment action against the plaintiff, and (3) “a causal connection exists between the protected activity” and the adverse employment action. Chandler, 456 Mich at 399. However, the only issue that we must decide in this case is causation. Because whistleblower claims are analogous to other antiretaliation employment claims brought under employment discrimination statutes prohibiting various discriminatory animuses, they “should receive treatment under the standards of proof of those analogous [claims].” Shallal, 455 Mich at 617. Specifically, this case requires application of the burden-shifting framework set forth in McDonnell Douglas. See, e.g., Hazle, 464 Mich at 462-466 (applying the McDonnell Douglas framework in the context of alleged discrimination in employment). Absent direct evidence of retaliation, a plaintiff must rely on indirect evidence of his or her employer’s unlawful motivations to show that a causal link exists between the whistleblowing act and the employer’s adverse employment action. See Hazle, 464 Mich at 462-463. A plaintiff may “ ‘present a rebuttable prima facie case on the basis of proofs from which a factfinder could infer that the plaintiff was the victim of unlawful [retaliation].’ ” Id. at 462, quoting DeBrow v Century 21 Great Lakes, Inc (After Remand), 463 Mich 534, 537-538; 620 NW2d 836 (2001). Once a plaintiff establishes a prima facie case, “a presumption of [retaliation] arises” because an employer’s adverse action is “more likely than not based on the consideration of impermissible factors” — for example, here, plaintiffs protected activity under the WPA — if the employer cannot otherwise justify the adverse employment action. Hazle, 464 Mich at 463 (citations and quotation marks omitted). The employer, however, may be entitled to summary disposition if it offers a legitimate reason for its action and the plaintiff fails to show that a reasonable fact-fin

HAYS v LUTHERAN SOCIAL SERVICES OF MICHIGAN Docket No. 307414. Submitted January 10, 2013, at Lansing. Decided January 22, 2013. Approved for publication March 19, 2013, at 9:20 a.m. Leave to appeal denied, 494 Mich 869. Barbara J. Hays brought an action in the Midland Circuit Court against Lutheran Social Services of Michigan after it terminated her employment. Plaintiff was a home-healthcare worker employed by defendant. One of her clients smoked marijuana in his home and in plaintiffs presence. She discussed this with her supervisor and coworkers and eventually spoke to an official of a local narcotics enforcement team, inquiring about the potential consequences for someone who knew about another person’s drug use and failed to report it. When asked by the official, she declined to take further action. Plaintiff had signed a confidentiality agreement related to information about clients. Defendant subsequently told plaintiff about a complaint lodged against her for making a phone call about the client. Plaintiff alleged in her action that defendant had terminated her employment in violation of the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., asserting theories that she had been terminated for making a report protected by the WPA and for being about to make a report. The court, Michael J. Beale, J., granted defendant summary disposition on the second claim and denied it with respect to the first. After a jury trial, the court entered a judgment in plaintiffs favor and awarded her attorney fees and costs, but only as case evaluation sanctions. Defendant appealed the denial of summary disposition, and plaintiff cross-appealed the dismissal of her about-to-report WPA claim and the partial denial of her motion for attorney fees. The Court of Appeals held: 1. The WPA provides a remedy for an employee who suffers retaliation for reporting or planning to report a suspected violation of a law, a regulation, or a rule to a public body. The purpose of the WPA is to protect the public by facilitating employee reporting of illegal activity. To establish a prima facie case under the WPA, the plaintiff must show that (1) he or she was engaged in a protected activity as defined by the WPA, (2) he or she was discharged, and (3) a causal connection existed between the protected activity and the discharge. With regard to the first element of a prima facie case, a plaintiff engages in a protected activity when he or she (1) reports to a public body a violation of a law, a regulation, or a rule, (2) is about to report such a violation to a public body, or (3) is being asked by a public body to participate in an investigation. 2. Defendant argued that plaintiff failed to actually make a report. While the WPA does not define “report,” the term means a detailed account of an event or situation, usually based on observation or inquiry. Plaintiff called the officer to inquire about her potential liability if her client’s behavior was discovered, not to report any illegal behavior. She did not provide any particulars or otherwise convey information that could have assisted the officer in actually investigating any wrongdoing, and she declined to take further action. There was no evidence that plaintiff identified herself, the client, or the client’s location, and she did not provide any sort of detailed account of the situation. Thus, rather than providing a detailed account of an event or situation, plaintiff was merely seeking to obtain information and advice. Categorizing plaintiffs inquiry as a report would not further the purpose of the WPA. Because plaintiff failed to establish that she made a report under the WPA, defendant was entitled to summary disposition on that ground. 3. Plaintiff argued that the trial court improperly granted defendant summary disposition on the WPA claim that was based on her being about to report a suspected violation. Under the WPA, an employee who is about to report a violation receives the same level of protection as one who has reported to a public body. Under MCL 15.363(4), however, an employee seeking protection on the basis of being about to report a violation must prove his or her intent by clear and convincing evidence. The employer is also entitled to objective notice of the whistleblower’s report or threat to report. Simply because plaintiff called the official to inquire about her potential liability did not demonstrate that she intended to take any further action and actually report the client’s behavior to a public body. In fact, she declined the offer to do so. Plaintiffs discussions with coworkers and supervisors about the client’s behavior also failed to demonstrate that she intended to report the behavior. Her conversations demonstrated only that while she knew of the behavior and had a sufficiently long time to report it, she declined to do so. There was also no evidence that plaintiff informed anyone that she was about to take further action and report the behavior to a public body. Consequently, there was no clear and convincing evidence that defendant received objective notice or that plaintiff intended to report the behavior to a public body, and the trial court did not err by granting summary disposition to defendant on this claim. 4. There was no need to consider plaintiffs arguments concerning attorney fees because she was no longer a prevailing party and was not entitled to fees. Judgment for plaintiff and attorney-fee award reversed; case remanded for further proceedings. Master and Servant — Whistleblowers’ Protection Act — Reports to Public Body — Prima Facie Case. To establish a prima facie case under the Whistleblowers’ Protection Act, the plaintiff must show that (1) he or she was engaged in a protected activity as defined by the act, (2) he or she was discharged, and (3) a causal connection existed between the protected activity and the discharge; with regard to the first element of a prima facie case, a plaintiff engages in a protected activity when he or she (1) reports to a public body a violation of a law, a regulation, or a rule, (2) is about to report such a violation to a public body, or (3) is being asked by a public body to participate in an investigation; the term “report” means a detailed account of an event or situation, usually based on observation or inquiry; an employee who is about to report a violation receives the same level of protection as one who has reported to a public body, but an employee seeking protection on the basis of being about to report a violation must prove his or her intent by clear and convincing evidence and the employer is entitled to objective notice of the whistleblower’s report or threat to report; a simple inquiry about the plaintiffs potential liability if he or she does not report the violation does not by itself demonstrate an intent to take any further action and actually report the violation (MCL 15.361 et seq.). Gafkay & Gardner, PLC (by Julie A. Gafkay and Katherine S. Gardner), for plaintiff. Clark Hill PLC (by Mark W.McInerney and Kymberly N. Kinchen) for defendant. Before: OWENS, P.J., and FITZGERALD and RIORDAN, JJ. PER CURIAM. In this action brought under the Michigan Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., defendant, Lutheran Social Services of Michigan, appeals as of right a judgment entered in plaintiffs favor. Plaintiff cross-appeals regarding the trial court’s dismissal of her “about to report” claim under the WPA and the partial denial of her motion for attorney fees. We reverse and remand for proceedings consistent with this opinion. I. FACTUAL BACKGROUND Plaintiff was employed as a home-healthcare provider for defendant. During the course of her employment, she encountered Client A, who smoked marijuana in his home and in plaintiffs presence when she was there on assignment by her employer. Plaintiff was informed of Client A’s drug use before entering his home, and she discussed it with her supervisor and other coworkers. During one discussion with a coworker about Client A’s drug use, plaintiff decided to call 911 and asked to be connected to the Bay Area Narcotics Enforcement Team (BAYANET). When speaking with a BAYANET official, plaintiff inquired about the potential consequences of someone knowing about the drug use of another and not reporting it. At the conclusion of the conversation, when asked by the BAYANET official if she would like to take any further action, plaintiff declined to do so. As a condition of her employment, plaintiff had signed a client confidentially agreement, consenting to keep information about her clients confidential. Plaintiff was eventually called into a meeting with her supervisor, at which the supervisor informed her that a complaint had been lodged against plaintiff for making a phone call about Client A. Plaintiff admitted to her supervisor that she called BAYANET. Plaintiff also recalled that her supervisor mentioned another phone call she supposedly made to an insurance company about Client A, although plaintiff denied making that call. After she was terminated, plaintiff initiated this litigation, claiming that she was terminated in violation of the WPA. While defendant moved for summary disposition on plaintiffs “report” and “about to report” claims, the trial court only granted the motion with respect to the latter claim. After a jury trial, a judgment was awarded in plaintiffs favor in the amount of $77,897.50. The trial court also awarded attorney fees and costs to plaintiff consistently with case evaluation sanctions in the amount of $69,385.55. Defendant now appeals, and plaintiff cross-appeals. II. SUMMARY DISPOSITION A. STANDARD OP REVIEW A grant or denial of a motion for summary disposition is reviewed de novo. MEEMIC Ins Co v DTE Energy Co, 292 Mich App 278, 280; 807 NW2d 407 (2011). Statutory interpretation also presents a question of law that we review de novo. Hoffman v Boonsiri, 290 Mich App 34, 39; 801 NW2d 385 (2010). B. “REPORT” UNDER THE WPA “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 purpose of the WPA is to protect the public by facilitating employee reporting of illegal activity. Id. at 631. It is the plaintiffs burden to establish a prima facie case under the WPA, which requires a showing that “(1) the plaintiff was engaged in a protected activity as defined by the WPA, (2) the plaintiff was discharged, and (3) a causal connection existed between the protected activity and the discharge.” Manzo v Petrella, 261 Mich App 705, 712; 683 NW2d 699 (2004). “The determination whether evidence establishes a prima facie case under the WPA is a question of law that this Court reviews de novo.” Roulston v Tendercare (Mich), Inc, 239 Mich App 270, 278; 608 NW2d 525 (2000). In regard to the first element of a prima facie case, a plaintiff engages in a protected activity when he or she (1) reports to a public body a violation of the law, a regulation, or a rule, (2) is about to report such a violation to a public body, or (3) is being asked by a public body to participate in an investigation. Manzo, 261 Mich App at 712-713; see also Ernsting v Ave Maria College, 274 Mich App 506, 510-511; 736 NW2d 574 (2007) . On appeal, defendant argues that the trial court erred by denying its motion for summary disposition because plaintiff failed to actually make a report. As a matter of statutory interpretation, the definition of “report” is a question of law we review de novo. See Hoffman, 290 Mich App at 39. While the WPA does not define the term “report,” courts may consult dictionary definitions when giving undefined statutory terms their plain and ordinary meaning. Koontz v Ameritech Servs, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002). Accordingly, Random House Webster’s College Dictionary (2005) defines “report” as “a detailed account of an event, situation, etc., [usually] based on observation or inquiry.” According to plaintiffs deposition testimony, she asked the BAYANET officer the following question: “If you’re in a situation where there’s illegal drugs and you happen - and this person happens to get in trouble, what is your consequence?” Essentially, plaintiff called the BAYANET officer to inquire about her potential liability if Client A’s behavior was discovered, not to report any illegal behavior. Plaintiff did not provide any particulars or otherwise convey information that could have assisted the BAYANET officer in actually investigating any wrongdoing. There is no evidence that plaintiff identified herself, Client A, or Client A’s location, nor did she provide any sort of detailed account of the situation. She did not even appear to specify the type of “illegal drugs” at issue. Thus, rather than providing a “detailed account of an event, situation, etc.;” plaintiff was merely seeking to obtain information and advice. Her lack of behavior that would constitute reporting is underscored by her negative response when the BAYANET officer asked if she wanted to take any further action. Plaintiff analogizes the instant case to Whitaker v US Sec Assoc, Inc, 774 F Supp 2d 860 (ED Mich, 2011). In Whitaker, the plaintiff was a security officer at the Detroit Metropolitan Wayne County Airport, and he brought an action under the WPA against the defendant, claiming that the defendant had retaliated against him for internal complaints and an e-mail he sent to the Transportation Security Administration (TSA). Id. at 861-865. The e-mail identified gate-related security issues at the airport and indicated that the plaintiff had “some questions on the regulations.” Id. at 863. The federal district court held that the plaintiff had established a prima facie case under the WPA because the e-mail was a “report.” Id. at 868, 871. The court explained that the e-mail specifically identified two problems and communicated the plaintiffs intent to learn more about the regulations applicable to the two security concerns. Id. at 868-869. The court noted that the TSA and the defendant’s own management construed this email as “raising concrete security concerns that warranted further investigation . ...” Id. at 868. Ultimately, the court rejected the defendant’s contention that the plaintiffs e-mail “merely posed questions and sought information . ...” Id. at 869. Whitaker is not similar to the instant case. The plaintiff in Whitaker specifically identified the regulatory violations and provided the TSA with sufficient information to further investigate the regulatory violations. Here, in contrast, plaintiff only referred to “illegal drugs” and did not provide the BAYANET officer with any information to further investigate the illegal activity. Thus, plaintiffs reliance on Whitaker is misplaced. Moreover, categorizing plaintiffs behavior as a report under the WPA would not further the purpose of the statute, namely, to protect the public by encouraging reporting of illegal activity. Plaintiffs phone call did not provide law enforcement with the means to investigate Client A’s marijuana use or to protect the public from that behavior. Plaintiffs only concern was to obtain information about her hypothetical liability, not to provide law enforcement officials with any concrete facts from which they could actually investigate or enforce the law. Thus, plaintiff failed to establish that she made a report under the WPA and because she failed to establish a prima facie case, defendant was entitled to summary disposition. C. “ABOUT TO REPORT” UNDER THE WPA On cross-appeal, plaintiff argues that the trial court improperly dismissed her “about to report” claim and granted summary disposition to defendant. As noted, the WPA extends to employees who are about to report a suspected violation. Manzo, 261 Mich App at 712-713. Thus, “[a] plain meaning reading of the act shows that an employee ‘about to’ report receives the same level of protection as one who has reported to a public body.” Shallal v Catholic Social Servs of Wayne Co, 455 Mich 604, 611; 566 NW2d 571 (1997). An “employee seeking protection under the ‘about to report’ language of the act [must] prove his intent by clear and convincing evidence.” Chandler v Dowell Schlumberger Inc, 456 Mich 395, 400; 572 NW2d 210 (1998); see also MCL 15.363(4). The employer also is entitled “to objective notice of a report or a threat to report by the whistle-blower.” Roulston, 239 Mich App at 279 (quotation marks and citations omitted). In the instant case, plaintiff discussed Client A’s marijuana use with her supervisor and coworkers and called BAYANET to inquire about any potential liability. Plaintiff argues that these facts establish a prima facie case that she was about to report a violation. In particular, plaintiff relies on her phone call to BAYANET to support her argument that she was about to report Client A’s behavior. However, as discussed earlier, that phone call was not a report. Moreover, simply because plaintiff called BAYANET to inquire about her potential liability does not demonstrate that she intended to take any further action and actually report the behavior to a public body. In fact, when the BAYANET officer asked if she would like to take any further action, plaintiff declined the offer. Plaintiffs discussions with coworkers and supervisors about Client A’s behavior also fail to demonstrate that she intended to report the behavior. Her conversations demonstrate only that while plaintiff knew about the behavior and had a sufficiently long time to report the behavior, she declined to do so. There also is no evidence that plaintiff informed anyone that she was about to take further action and report the behavior to a public body. In sharp contrast is Shallal, 455 Mich at 613-614, 621, in which the plaintiff told the president of the company that she would report him for misusing funds and abusing alcohol if he did not “straighten up.” The plaintiff in Shallal also discussed with various individuals the possibility of reporting the president’s behavior. Id. at 613-614, 620 n 9. Our Supreme Court held that the plaintiffs explicit threat to report the president combined with her other actions satisfied the “about to report” language of the statute. Id. at 615, 621. Yet in the instant case, there is no evidence that plaintiff communicated such an explicit threat to report the behavior. There also is no evidence that plaintiff informed others that she intended to actually report the behavior to a public body. Consequently, there is no evidence that defendant received objective notice that plaintiff was about to report Client A’s behavior to a public body. Plaintiff never informed or threatened defendant that she would place a second call to BAYANET or another law enforcement agency. There is nothing in the record to suggest that plaintiff explicitly or implicitly informed defendant that a report of Client A’s illegal activity was pending. Therefore, the trial court did not err by granting summary disposition to defendant on plaintiffs “about to report” claim because there is no clear and convincing evidence of her intent to report the behavior. III. CONCLUSION Because plaintiff failed to establish a prima facie case for her “report” and “about to report” claims under the WPA, defendant was entitled to summary disposition. We decline to address plaintiffs arguments concerning attorney fees because she is no longer a prevailing party and is not entitled to fees. We reverse the trial court’s judgment in favor of plaintiff and the award of fees and costs to plaintiff. We remand this case for proceedings consistent with this opinion and do not retain jurisdiction. Owens, P.J., and Fitzgerald and Riordan, JJ., concurred. Similarly, in People v Holley, 480 Mich 222, 228; 747 NW2d 856 (2008) , our Supreme Court relied on