Retaliation Cases

CHEN v WAYNE STATE UNIVERSITY Docket Nos. 283420 and 283575. Submitted May 12, 2009, at Detroit. Decided June 2, 2009, at 9:10 a.m. Dr. Kuo-Chun Chen brought an action in the Wayne Circuit Court against Wayne State University, seeking damages and other relief related to his treatment while working as a professor and to the University’s handling of his personal property and a patent. The plaintiff specifically alleged that he was discriminated against because of his national origin, age, and a disability and that he was retaliated against for protesting the discrimination. He also pleaded a claim and delivery count seeking the return of his personal property, a count alleging violation of the Freedom of Information Act, MCL 15.231 et seq., and a count alleging breach of contract. The plaintiff stipulated the dismissal of the counts for breach of contract and claim and delivery, and the court, Robert L. Ziolkowski, J., dismissed those claims without prejudice. The plaintiff then filed those claims in the Court of Claims. At some point, the case in the Court of Claims was consolidated with the case in the circuit court and Judge Ziolkowski heard both cases. The plaintiff was permitted to amend his complaints, but he did not state a claim based on the Freedom of Information Act. The Court of Claims then dismissed the claims of breach of contract and claim and delivery, but allowed the plaintiff to amend the complaint in the Court of Claims action to add as defendants the current chairperson and two former chairpersons of the University’s department of biological sciences and to allege gross negligence against the individuals and negligence against the University with regard to the handling of the plaintiffs property. The Court of Claims then dismissed the negligence claims against the individual defendants and, on May 16, 2006, entered an order dismissing the negligence claim against the University. The order stated that the order resolved the last pending claim in the Court of Claims and closed the case. Judge Ziolkowski dismissed the circuit court claims on March 15,2007, and denied reconsideration of that order on May 3, 2007, and May 8, 2007. The Court of Appeals dismissed the plaintiffs appeals in both cases for lack of jurisdiction because they were not timely filed. Unpublished orders of the Court of Appeals, entered August 30, 2007 (Docket Nos. 278332,278333). The plaintiff applied for leave to appeal both cases, and the Court of Appeals granted leave to appeal both the circuit court order (Docket No. 283420) and the Court of Claims order (Docket No. 283575) in unpublished orders entered August 20, 2008. The appeals were consolidated. The Court of Appeals held: 1. The consolidation of the two cases at the trial court level did not merge the two cases and both retained their separate identities. Therefore, the time to appeal each individual case is determined by reference to the final judgment or order in each case. The application for leave to appeal the Court of Claims case was not filed within one year of the May 16, 2006, final order in that case, as required by the version of MCR 7.205(F)(3)(a) in effect at the time the application was granted. Therefore, the Court of Appeals did not have the discretion to grant the application. The appeal in Docket No. 283575 must be dismissed for lack of jurisdiction. The application for leave to appeal the circuit court case, Docket No. 283420, was timely filed. 2. The plaintiff was required to show that he suffered an adverse employment action in order to establish his discrimination and retaliation claims under the Civil Rights Act, MCL 37.2202(1) and 37.2701. An adverse employment action must be materially adverse to the employee, that is, it must be more than a mere inconvenience or minor alteration of job responsibilities. Materially adverse employment actions are akin to the termination of employment, a demotion shown by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation. There must be an objective basis for demonstrating that the employment action is adverse because a plaintiffs subjective impressions are not controlling. 3. There was no objective evidence presented to show that the alleged refusal to assign the plaintiff a new lab constituted an adverse employment action. 4. The plaintiff failed to present any evidence that a department chairperson’s threat to revoke the plaintiffs tenure resulted in a materially adverse change in the terms or conditions of his employment. The threat did not rise to the level of an adverse employment action. 5. There was no evidence that the changes that occurred to the plaintiffs teaching duties amounted to an adverse employment action. 6. There was no evidence that a department chairperson’s actions or omissions with regard to not restoring the plaintiffs regular graduate faculty status or allowing the plaintiff to supervise a graduate student had any effect on the plaintiffs employment. 7. The plaintiff abandoned on appeal his claims regarding merit increases and other miscellaneous adverse actions. 8. The circuit court did not err in granting summary disposition in favor of the University with regard to the claims based on discrimination and retaliation. The order in Docket No. 283420 must be affirmed. Appeal in Docket No. 283575 dismissed and order appealed in Docket No. 283420 affirmed. 1. Actions — Consolidation op Actions — Appeal op Consolidated Actions. Where two cases involve claims that could not have been brought as separate counts in a single complaint, but are nevertheless consolidated for administrative convenience, the consolidated cases are not merged and both cases retain their separate identities; a circuit court case and a Court of Claims case that are joined for trial are not merged and both cases retain their separate identities, and the time to appeal each case must be determined by reference to the final judgment or order for each case (MCL 600.6421). 2. Civil Rights — Employment Discrimination — Adverse Employment Actions. A plaintiff who brings a discrimination or retaliation claim against an employer under § 102 or § 701 of the Civil Rights Act must establish that he or she suffered an adverse employment action; what might constitute an adverse employment action in one employment context might not be actionable in another; an employment action must be materially adverse to the employee, not a mere inconvenience or minor alteration of job responsibilities in order to be actionable; there must be an objective basis for demonstrating that an employment action was adverse because an employee’s subjective impressions are not controlling (MCL 37.2202, 37.2701). Eisner & Mirer, EC. (by Jeanne Mirer and Eugene Eisner), for the plaintiff. Miller, Canfield, Paddock and Stone, P.L.C. (by Donna J. Donati and Megan P. Norris), for the defendants. Before: BORRELLO, EJ., and MURPHY and M. J. KELLY, JJ. PER CURIAM. In these consolidated appeals, plaintiff Dr. Kuo-Chun Chen appeals by leave granted the trial court’s orders granting summary disposition in favor of defendant Wayne State University (the University). In Docket No. 283420, Chen argues that the trial court, which was sitting as the circuit court, erred when it dismissed under MCR 2.116(0(10) Chen’s claims of age and national origin discrimination and retaliation. In Docket No. 283575, Chen argues that the trial court, which was sitting as the Court of Claims, erred when it refused to permit him to amend his complaint to add new parties and new theories of recovery. We conclude that we lack jurisdiction to hear Chen’s claims of error in Docket No. 283575 and that the trial court did not err when it dismissed Chen’s claims in Docket No. 283420. For these reasons, we dismiss the appeal in Docket No. 283575 and affirm in Docket No. 283420. I. FACTS AND PROCEDURAL HISTORY A. BASIC FACTS This case has its origins in the progression of Chen’s career at the University over a period of more than 25 years. Chen is a citizen of the United States, but was born in China and speaks English with a Chinese accent. The University hired Chen as an associate professor for its department of biological sciences in 1968. Chen’s field of study is genetics. He became a tenured associate professor in 1971. Before joining the University’s faculty, Chen began the development of a device, which he called the Microwave Guide Exposure System (the Microwave Device), with his former roommate at graduate school. Chen completed the Microwave Device with the help of others after he joined the University. He assigned his patent rights to the University, which obtained a patent for it in 1982. The University released the patent to Chen in 1995. Chen apparently did not have any serious difficulties at the University until after Dr. Albert Siegel became the department’s chairperson in 1972. Dr. John Taylor, who joined the department’s faculty in the same year as Chen, testified that Chen apparently did not like Siegel. Taylor said that Siegel treated Chen as though he were a “pseudo molecular biologist” and believed that Chen’s courses were “out-of-date or just plain wrong.” Indeed, Taylor stated that Siegel and some other faculty members had their graduate students leave Chen’s courses. In a memo written some years after Siegel’s chairmanship, Taylor stated that Siegel tried to “change [Chen], then isolated him and then gave up.” Siegel testified that the problems he had with Chen were related to Chen’s ability to get things done on his own. Siegel explained that other professors who had inadequate space worked hard at improving their space, “got their research programs well funded and started right in working and attracting graduate students and did the best they could under the circumstances.” Siegel stated that the problem with Chen was that he “was not of that nature. He didn’t try to help himself.” Chen testified at his deposition that Taylor was apparently jealous of Chen’s achievements and status and alleged that Taylor used his position to impede Chen’s efforts at the University. Specifically, Chen noted that Taylor was apparently bothered by the fact that the University hired Chen as an associate professor whereas the University hired Taylor as an assistant professor. Although Chen started as an associate professor, Taylor eventually surpassed Chen and became a full professor. In addition, in 1974, Taylor replaced Siegel as the department’s chairperson. Taylor testified that he was not jealous of Chen and that he and Chen were originally friends. He stated that they spent a significant amount of time together when they first joined the University. Taylor also stated that he supported Chen by acting as an intermediary in the acquisition of devices for Chen’s lab. Taylor testified that, after he became the department’s chairperson, he met with Chen and recognized that Chen had inadequate lab space. Taylor stated that he tried to help Chen by moving him to a better lab and also tried to obtain funds to modernize Chen’s lab. However, he was unable to help Chen because Chen’s “tastes were always better than what I could afford” and Chen would not compromise. Taylor stated that he eventually gave up trying to help Chen. Chen also testified that Taylor was biased against him because of his Chinese national origin, which was shown by the fact that Taylor referred to him as being “Chinese Mafia.” Taylor admitted that he had used the phrase “Chinese Mafia,” but said that he did not direct it at Chen. Taylor explained that Chen had asked him for assistance in a business matter involving his brother-in-law, who lived in Taiwan. Taylor stated that he referred Chen to a friend who was Chinese for help with the business matter. Taylor said that his friend called him and indicated that Taylor and Chen might want to avoid dealings with Chen’s brother-in-law. After that, Taylor stated that he would use the phrase “Chinese Mafia” in connection with discussions concerning Chen’s brother-in-law. Dr. David Adamany, who was the University’s president, testified that Taylor was a productive researcher and that he was appointed to chair the department in an effort to strengthen the department’s research program. Adamany stated that faculty members who were not active researchers resisted Taylor’s efforts. He stated that the relations between Taylor and those faculty members eventually deteriorated to the point that the department was no longer able to make progress on improving research. Dr. Robert Arking testified that he was a full professor in the department and that he had served on various committees. He stated that Taylor had favorites on the faculty and that Chen was not one of them. Arking said that the faculty committee eventually asked Taylor to step down as chairperson because of issues with hiring, the budget, and faculty relations. About 1980, Chen requested a promotion to full professor. Chen testified that Taylor handled the request and deliberately refused to submit Chen’s request to the faculty. Chen admitted that there was an advisory committee that considered his request, but stated that Taylor controlled this committee. Arking testified that it was possible to get promoted without the support of the chairperson, but that it would be more difficult. Taylor stated that the committee considered Chen’s promotion to full professor in 1980 and 1981 and decided not to recommend promotion to the faculty in both years. Taylor stated that he did not oppose Chen’s promotion. Chen testified that he also had a condition that caused an irregular heartbeat. According to Chen, starting in about 1980, the stress of his job triggered problems with his condition. Chen stated that this condition sometimes interrupted his work and that he even collapsed once during class and had to be rushed to the hospital. Chen testified that Taylor was aware of his condition. He ultimately had the condition surgically corrected in 1991. In 1987, Siegel again briefly served as the chairperson for the department. During that time, Siegel wrote a memo to Chen noting that Chen had made a conscious decision to stop researching and advising Chen that, for that reason, he would have to teach more classes. Siegel testified that after he assigned Chen more classes, there was a constant stream of complaints by undergraduate students concerning the students’ ability to understand Chen. On the basis of these complaints, Siegel recommended that Chen seek help at the University’s English Language Institute, but Chen refused. Siegel stated that Chen did not acknowledge a problem and blamed the students. Dr. Stanley Gangwere replaced Siegel as the department’s chairperson later in 1987. Gangwere testified that Taylor was a controversial chairperson and, for that reason, he tried to “separate” himself “from any association” with Taylor’s policies. Chen testified that Taylor appeared to have a good relationship with Gang-were. Chen further testified that, from the beginning, Gangwere refused to support him and Chen opined that this must have been the result of Taylor’s influence over Gangwere. Gangwere stated that Taylor did not advise him and that he had official and unofficial complaints about Chen by students concerning their ability to understand Chen’s English. In 1988, the University began a renovation and construction project. To accommodate the renovations, the department temporarily rearranged the lab and office assignments for the faculty. Gangwere asked Chen to vacate his current lab and office so that Taylor could occupy it along with some adjacent space that Chen had requested earlier. Gangwere temporarily assigned Chen space in the natural sciences building. Because the new lab space was smaller, Gangwere gave Chen, as he did every professor, the option of placing some of his property in storage for the duration of the renovation. Chen elected to have his Microwave Device placed into storage. Chen disliked the new lab and refused to use it. He indicated that the lab was too small and had large vent fans that made it unacceptable for use as a lab. Arking testified that Chen’s new lab was very small, but had adequate utilities and could be used for research. Gang-were testified that almost every professor lost space during the renovation period. Indeed, Dr. Dwight Freeman testified that he too was moved during the renovation and that he was moved into an old dealership from the 1920s that was “abysmal.” The University hired Dr. E Dennis Smith to replace Gangwere as the department’s chairperson in 1989. Chen stated that Smith did not show much interest in him and, from this, he concluded that the previous chairpersons — Taylor, Siegel, and Gangwere — must have influenced Smith to form a negative opinion about him. Chen testified that Smith brought in new professors without regard to their ability to teach specific courses because it was hoped that these teachers would bring in grant money. However, when these professors failed to obtain the expected grant money, Smith assigned some of Chen’s teaching responsibilities to these professors. Chen said that Smith criticized Chen’s accent and indicated that he had received student complaints. Chen stated that he thought Smith wanted to take his tenure away and get rid of him. Smith testified that he had numerous student complaints about Chen’s ability to communicate. As a result, Smith decided to sit in on one of Chen’s classes. Smith wrote a memo describing his review of the class. In the memo, Smith stated that Chen appeared to know the material well but the students appeared to have trouble following the lecture. Smith also noted frustration on the part of students who attempted to pose questions to Chen. Smith testified that he advised Chen to get help from the language institute and suggested using more visual aids in teaching the course. In 1991, the University finished its construction of its biological sciences building. Smith assigned Chen office and lab space, but Chen refused to use either room. Chen claimed that the office was contaminated from the use of radioactive isotopes in the rooms. However, Chen did not investigate whether the rooms were unusable and did not ask to have them decontaminated. Instead, Chen continued to use the office temporarily assigned to him during the renovations. Smith testified that the room at issue likely was not radioactive, but had only been used for some sort of radiometric counter. He also stated that, had Chen brought up the issue with him, he would have followed up on the problem. Smith said that he thought that Chen had just given up on research. Smith also testified that he was aware that Chen refused to move and had continued to use his old office. Chen later obtained permission from Linda Van Thiel to use another office in the same building that housed his current office. Van Thiel testified that Chen wanted the office for additional space. The office was part of a suite of offices in Room 309. She stated that the agreement was informal and that she never got permission or told anyone about the arrangement. She also testified that she informed Chen that if a particular funding request came through, the space would be renovated into a computer lab. She said that she informed Chen when the funding finally came through. In July 1994, Dr. Jack Lilien replaced Smith as the chairperson. Shortly after the change, Chen sent Lilien a letter notifying Lilien that he felt he was not in a position to do research and requesting help. Chen later had a meeting with Lilien. Chen testified that he told Lilien about his past unfair treatment by previous chairpersons and told him that he did not have an office or space for research. Chen said that he initially got along well with Lilien. Lilien testifie

RICHARD A. FRANCO, JR., Plaintiff v. LIPOSCIENCE, INC., Defendant No. COA08-785 (Filed 19 May 2009) 1. Employer and Employee— at-will — retaliation letter — absence of consideration The trial court did not err by granting summary judgment in favor of defendant company on plaintiffs breach of contract claim even though plaintiff contends the promises in a retaliation letter formed a contract precluding defendant’s right to terminate his employment in retaliation for the actions of plaintiff’s father because: (1) there was no consideration to form a contract when the two promises in the retaliation letter constituted additional obligations on the part of defendant; the letter did not increase or diminish plaintiff’s pay, duties, rights, or anything else that could be deemed consideration flowing from plaintiff to defendant; and mere continued employment by the employee is insufficient consideration; (2) there was no evidence showing that plaintiff’s father negotiated the retaliation letter for his son’s benefit, the promises in the retaliation letter were not incorporated and made binding in the father’s severance agreement, and thus plaintiff cannot enforce the promises in the letter as a third-party beneficiary; and (3) the principles from debtor cases such as forbearance were inapplicable to defeat the application of the at-will employment doctrine, and the holding does not affect the rights of plaintiff’s father as he is not a party to this action, nor does it appear he has sought to enforce his rights in another action. 2. Judges— motions for new trial and recusal — failure to show trial judge disqualified The trial court did not err by denying plaintiff’s combined motions for a new trial and to recuse the trial judge on the ground that the judge’s father and defendant’s CEO were once commonly affiliated with the University of North Carolina because, given the remote and arm’s length affiliation defendant’s CEO had with the trial judge’s father, plaintiff did not carry his burden to demonstrate objectively that grounds for the trial judge’s recusal existed. Judge ERVIN dissenting. Appeal by plaintiff from order and judgment entered 9 August 2007 by Judge Allen Baddour in Superior Court, Wake County. Heard in the Court of Appeals 10 February 2009. James, McElroy & Diehl, P.A., by Richard B. Fennell & Preston 0. Odom, III, for plaintiff. Ogletree, Deakins, Nash, Smoak & Stewart, P.C., by Gregory P. McGuire & Phillip J. Strach, for defendant. WYNN, Judge. North Carolina embraces a strong presumption of at-will employment unless the employment relationship fits within one of three recognized exceptions — the pertinent exception here being an alleged contractual relationship. In this appeal, Plaintiff Richard A. Franco, Jr. argues that the evidence established that he had a contract with Defendant Liposcience, Inc. that barred his termination as an at-will employee. Because the record shows there was insufficient consideration to form a binding contract, we affirm the trial court’s grant of directed verdict in favor of Liposcience on Franco, Jr.’s breach of contract claim. In September 2002, Liposcience, a manufacturer and marketer of medical technology products, hired Franco, Jr. to serve as Vice President of Marketing. At that time, Franco, Jr.’s father — Richard A. Franco, Sr. — served as Chairman of Liposcience’s Board of Directors. However, Liposcience’s Board of Directors voted to remove Franco, Sr. as Chairman of the Board of Directors in October 2002. Thereafter, severance negotiations resulted in the drafting of three documents, each dated 13 December 2002. First, a document titled “Severance and Release Agreement” was signed by Franco, Sr. and Dr. Charles A. Sanders, Liposcience’s incoming Chairman of the Board of Directors. Under the Severance and Release Agreement, the parties agreed that Franco, Sr. would resign as Chairman of the Board of Directors, but would remain a voting member of the Board of Directors and a shareholder. Second, Dr. Sanders signed a letter as “Chairman of the Board of Directors of Liposcience, Inc.” that was addressed to Franco, Jr. and copied to Franco, Sr. (“Retaliation Letter”). The Retaliation Letter stated, in relevant part: First of all, this letter will signify my commitment to you that there will be no retaliation against you by the Company in connection with your father’s resignation. For the purposes of this letter, the term “retaliation” shall mean to take adverse employment action against you based upon your relationship with Richard Franco, Sr., and not for any legitimate business reason. In addition, from and after the date of this letter and for a period of two years thereafter, no employment action will be taken by Liposcience that will have any material adverse effect on the terms and conditions of your employment without my prior express written approval, of which you will receive a copy. Such employment actions include any material reduction in your compensation and benefits; any material diminution of your title, role and responsibilities with the Company; and any material disciplinary action, up to and including the termination of your employment. Nothing in this letter agreement shall diminish any other rights that you may have relative to your employment with the Company. Third, a letter addressed to Franco, Jr. (signed by Executive Vice President Lucy Martindale and Vice President, General Counsel, and Secretary Timothy J. Williams), stated that any Chairman of the Board of Directors succeeding Dr. Sanders would be bound to the conditions in the Retaliation Letter. During 2003, Liposcience made a series of internal restructuring moves to make the company more efficient and to reduce payroll expenses. By February 2003, Liposcience had hired Richard Brajer as Chief Executive Officer, and shortly thereafter, hired Richard Pinnola as Chief Operating Officer. By December 2003, Mr. Brajer and Mr. Pinnola discussed eliminating the Vice President of Marketing and other lower-level positions to create a Vice President of Sales position, as Liposcience shifted its focus from marketing to product sales. That decision was finalized and executed on 24 February 2004, resulting in Franco, Jr.’s termination. However, under Franco, Jr.’s version of the events leading to his termination, a “quid-pro-quo” pattern of retaliatory adverse employment actions corresponded to each conflict Franco, Sr. had with Liposcience executives. Specifically, Franco, Jr. alleged that before he was terminated, the following series of events occurred: 1.) in March and April 2003, Franco, Sr. made several accountability requests of CEO Brajer; in response, Franco, Jr. received a critical voice message from CEO Brajer, and had his responsibilities and approved personal days reduced; 2) in June 2003, Franco, Sr. requested a full performance review of CEO Brajer; in response, Franco, Jr. received a critical performance review outside the normal review cycle; 3) in August 2003, Franco, Sr. criticized and requested a full performance review of CEO Brajer; in response, Franco, Jr.’s approved vacation time was reduced; 4) in September and October 2003, Franco, Sr. requested and was denied Liposcience sales information, was suspected of authoring an anonymous email criticizing shareholder communications, and ultimately resigned from the Board of Directors; in response, Franco, Jr.’s responsibilities were reduced further despite positive reviews. After his termination, Franco, Jr. brought this action asserting claims for breach of contract, wrongful discharge in violation of North Carolina public policy, unfair and deceptive trade practices, and punitive damages. In response, Liposcience answered denying liability and moved for summary judgment which Superior Court Judge Howard E. Manning granted on the wrongful discharge claim but denied on the breach of contract claim. Following Franco, Jr.’s voluntary • dismissal of his unfair and deceptive trade practices and punitive damages claims, a jury trial commenced on the breach of contract claim before Superior Court Judge Allen Baddour. However, at the close of all the evidence during the trial, Judge Baddour directed a verdict for Liposcience concluding that “[p]laintiff did not present any evidence at trial of consideration supplied by him to support the alleged contract at issue.” Thereafter, Franco, Jr. learned that Judge Baddour’s father and Dr. Sanders were once commonly affiliated with the University of North Carolina, and therefore filed motions for new trial and recusal. Judge Baddour denied those motions. On appeal, Franco, Jr. argues the trial court erred by (I) granting a directed verdict for Liposcience on his breach of contract claim; and (II) denying his motion to recuse Judge Baddour. I. Franco, Jr. acknowledges that Liposcience originally hired him as an at-will employee. In this appeal, however, he contends that the promises in the Retaliation Letter formed a contract precluding Liposcience’s right to terminate his employment in retaliation for Franco, Sr.’s actions. Because there was no consideration to form a contract, we diságree. North Carolina embraces a strong presumption of at-will employment unless the employment relationship fits within an exception, one being a contract specifying a definite period of employment. See Kurtzman v. Applied Analytical Indus., Inc., 347 N.C. 329, 331-32, 493 S.E.2d 420, 422 (1997). Moreover, we have held that an “employment-at-will contract may be supplemented by additional agreements which are enforceable.” Martin v. Vance, 133 N.C. App. 116, 121, 514 S.E.2d 306, 309 (1999) (citing Walker v. Westinghouse Elec. Corp., 77 N.C. App. 253, 261, 335 S.E.2d 79, 84 (1985)). Like any other contract, however, such additional agreements must be supported by consideration. See id.; Watson Electrical Constr. Co. v. Summit Cos., LLC, 160 N.C. App. 647, 655, 587 S.E.2d 87, 94 (2003) (“Consideration is the glue that binds parties together, and a mere promise, without more, is unenforceable.”) (citation and quotation marks omitted). The Retaliation Letter’s two distinct promises — that Liposcience would not retaliate against Franco, Jr. for Franco, Sr.’s actions and that the Chairman of the Board of Directors would provide express written approval of any material adverse employment action — constitute additional obligations on the part of Liposcience. Indeed, when Franco, Jr. received the Retaliation Letter, he was already employed. The Retaliation Letter did not increase or diminish his pay, duties, rights, or anything else that could be deemed consideration flowing from Franco, Jr. to Liposcience. As the trial court noted, mere continued employment by the employee is insufficient. See Howard v. Oakwood Homes Corp., 134 N.C. App. 116, 121-22, 516 S.E.2d 879, 882-83 (“the prospect of continued employment is insufficient to support a covenant not to compete where the employee receives no change in compensation, commission, duties, nature of employment or other consideration in exchange for signing the agreement”), disc. review denied, 350 N.C. 832, 539 S.E.2d 288 (1999). Nonetheless, Franco, Jr. contends that consideration to support the Retaliation Letter was supplied by Franco, Sr. He argues that because Franco, Sr. negotiated for the Retaliation Letter in connection with the Severance Agreement, Franco, Jr. is entitled to enforce the Retaliation Letter as a third-party beneficiary. Neither party disputes the validity of the Severance Agreement, and there is evidence showing that Franco, Sr. negotiated for the Retaliation Letter for Franco, Jr.’s benefit. However, the Retaliation Letter is not referenced in the Severance Agreement, which contains a merger clause. Therefore, the promises in the Retaliation Letter were not incorporated and made binding in the Severance Agreement. Accordingly, Franco, Jr. cannot enforce the promises in the Retaliation Letter as a third-party beneficiary and we reject this assignment of error. We note that our dissenting colleague implores us to hold that forbearance by Franco, Sr. created sufficient consideration to transform the letter sent by Liposcience to Franco, Jr. into an employment contract. First, our research reveals no case in North Carolina has ever held such regarding employment contracts. Second, all of the cases relied upon by the dissent to support holding that the forbearance of a third party may be sufficient to create consideration for another party, are debtor-type cases. Inv. Props. of Asheville, Inc. v. Norburn, 281 N.C. 191, 188 S.E.2d 342 (1972) (“In a guaranty contract, a consideration moving directly to the guarantor is not essential. The promise is enforceable if a benefit to the principal debtor is shown or if detriment or inconvenience to the promisee is disclosed.”); Myers v. Allsbrook, 229 N.C. 786, 51 S.E.2d 629 (1949) (defendant’s oral promise to pay his brother’s debt to plaintiff not enforceable under Statute of Frauds); Branch Banking & Trust Co. v. Kenyon Inv. Corp., 76 N.C. App. 1, 332 S.E.2d 186, appeal withdrawn, 316 N.C. 192, 341 S.E.2d 587 (1986) (the defendant, holder of a second deed of trust on a parcel of land, assumed principal debtor’s obligation relating to first deed of trust). Though in general, employment contracts are guided by the general principles of contract, we decline to extend the principles from the debtor cases cited by the dissent to defeat the application of the at-will employment doctrine here. The dissent further notes that “a failure to allow Plaintiff to enforce the Retaliation Letter would have the effect of substantially undermining a significant component of the bargain that Franco Sr. made with Defendant in the Severance Agreement.” Post at 18. Our holding does not affect the rights of Franco Sr. as he is not a party to this action nor does it appear he has sought to enforce his rights in another action. II. Franco, Jr. next argues that the trial court erred by denying his combined motions for a new trial and to recuse Judge Baddour. We disagree. First, we address the denial of Franco, Jr.’s motion for a new trial pursuant to N.C. Gen. Stat. § 1A-1, Rule 59(a)(8) (2007), on the ground that the court committed various errors of law. We review denial of a Rule 59(a)(8) motion de novo. Kinsey v. Spann, 139 N.C. App. 370, 373, 533 S.E.2d 487, 490 (2000). However, the argument in Franco, Jr.’s brief before this Court consists of the following: “[T]he trial court reversibly erred in directing a verdict for Defendant. The trial court therefore also erred in denying Franco, Jr.’s motion for a new trial....” Because we have already concluded that the trial court did not err by granting the directed verdict, and Franco, Jr. advances no further argument, we summarily reject this assignment of error. Second, we consider Franco, Jr.’s argument that his motion for new trial should have been granted because he objectively demonstrated grounds for Judge Baddour’s disqualification. A party requesting a judge’s recusal “must ‘demonstrate objectively that grounds for disqualification actually exist.’ ” In re LaRue, 113 N.C. App. 807, 809, 440 S.E.2d 301, 303 (1994) (quoting State v. Kennedy, 110 N.C. App. 302, 305, 429 S.E.2d 449, 451 (1993)). “The requesting party has the burden of showing through substantial evidence that the judge has such a personal bias, prejudice or interest that he would be unable to rule impartially.” See State v. Fie, 320 N.C. 626, 627, 359 S.E.2d 774, 775 (1987) (citations omitted). Franco, Jr. argues that Judge Baddour’s father’s affiliation with Liposcience CEO Dr. Sanders created grounds for Judge Baddour’s disqualification. Specifically, Franco, Jr. produced evidence that Dr. Sanders served on the University of North Carolina’s Board of Trustees when the Board approved the hiring of Judge Baddour’s father as the University’s Athletic Director. Dr. Sanders’ tenure on the Board of Trustees ended in 2001. At the time of trial, Dr. Sanders was a member of UNC’s School of Public Health Advisory Council, which allegedly worked closely with the Athletic Department to promote health and nutrition in local schools. However, Dr. Sanders offered an affidavit which established that he had very little personal communication with Judge Baddour’s father, and that even his professional connection to the judge’s father was limited to Board of Trustees’ meetings and related functions. Accordingly, given the remote and arm’s length affiliation Dr. Sanders had with Judge Baddour’s father, Franco, Jr. did not carry his burden to demonstrate objectively that grounds for Judge Baddour’s recusal existed. Affirmed. Judge Robert C. HUNTER concurs. Judge ERVIN dissents by separate opinion. . Kurtzman v. Applied Analytical Indus., Inc., 347 N.C. 329, 331-32, 493 S.E.2d 420, 422 (1997). ERVIN, Judge dissenting. Although I fully concur in the Court’s conclusion that the trial court properly denied Plaintiff’s recusal motion, I respectfully dissent from my colleagues’ determination that the trial court correctly granted a directed verdict in favor of Defendant at the close of all of the evidence. As a result, I believe that the trial court’s judgment should be reversed and that this matter should be remanded for a new trial. A trial court evaluating a dismissal motion under N.C. Gen. Stat. § 1A-1, Rule 50(a), must view the evidence in the light most favorable to the non-moving party and give that party the benefit of every reasonable inference arising from the evidence. Clark v. Moore, 65 N.C. App. 609, 610, 309 S.E.2d 579, 580 (1983). During this process, all conflicts and inconsistencies in the evidence must be resolved in favor of the non-moving party. Davis & Davis Realty Co., Inc. v. Rodgers, 96 N.C. App. 306, 308-09, 385 S.E.2d 539, 541 (1989), dis. rev. den., 326 N.C. 263, 389 S.E.2d 112 (1990). After a careful review of the briefs and the record, I am convinced that there is evidence in the record tending to show that Plaintiff had an enforceable employment agreement providing him with protection from retaliatory treatment, which Defendant breached, and that this evidence is sufficient to withstand Defendant’s directed verdict motion. When viewed in the light most favorable to the Plaintiff, the evidence tends to show that, at the time that Plaintiff’s father, Richard Franco, Sr., was removed from his position as the Executive Chairman of Defendant’s Board of Directors, he negotiated a Severance Agreement with Charles Sanders, the new Board Chairman, under which Franco Sr. resigned as Executive Chairman while remaining a voting member of the Board until at least May 2004. The Severance Agreement included a mutual release of claims between the parties to that agreement and contained language providing that “[t]his Agreement, together with the Non-Competition Agreement, sets forth the entire and fully integrated understanding between the parties, and there are no representations, warranties, covenants or understandings, oral or otherwise, that are not expressly set out herein [(merger clause)].” During the negotiations leading up to the execution of the Severance Agreement, Franco Sr. insisted that Plaintiff be provided with protection from retaliatory conduct stemming from his relationship with Franco Sr. As a result, Defendant provided Plaintiff with the Retaliation Letter, which is the document upon which he bases his claims in this proceeding. Plaintiff had no involvement in the negotiation of the Retaliation Letter. The Retaliation Letter provided that (I) Plaintiff would not be subject to adverse employment action “based on [his] relationship with [Franco Sr.] and not for any legitimate business purpose” and that (2), “from and after the date of this letter and for a period of two years thereafter, no employment action will be taken by [Defendant] that will have any material adverse effect on the terms and conditions of

Chi-Sang Poon vs. Massachusetts Institute of Technology & another. No. 06-P-1993. Middlesex. March 11, 2008. May 6, 2009. Present: Duffly, Vuono, & Sikora, JJ. Anti-Discrimination Law, Employment, Race. Employment, Discrimination, Retaliation. Practice, Civil, Summary judgment. Discussion of the standard of review applicable to the allowance of a motion for summary judgment in a civil action alleging employment discrimination. [194-195] In a civil action alleging racial discrimination in employment, the employee failed to show any reasonable prospect of proof at trial that the reasons given for the employer’s decision not to promote him were a pretext, and failed to generate a genuine issue of material fact of pretext [195-199]; further, the employee had no reasonable expectation of proof that any of the identified incidents after he filed a letter of complaint qualified as retaliation [199-201], Civil action commenced in the Superior Court Department on July 9, 2004. The case was heard by Nonnie S. Bumes, J., on a motion for summary judgment. Jonathan Shapiro for the plaintiff. Jeffrey Swope (Robert G. Young with him) for the defendants. Martha L. Gray. Sikora, J. This appeal requires review of a summary judgment disposition of claims of employment discrimination and retaliation brought under G. L. c. 15IB, § 4. The plaintiff employee Chi-Sang Poon, Ph.D. (Dr. Poon), is a scientist concentrating in the field of bioengineering. The defendant Massachusetts Institute of Technology (MIT) has been his employer for almost twenty years and the defendant Martha L. Gray, Ph.D. (Professor Gray), a member of the university faculty, has been a supervisor of Dr. Poon’s work for the past twelve years. Background. 1. Procedural history. In November, 2001, Dr. Poon lodged his original charges with the Massachusetts Commission Against Discrimination (MCAD). He alleged that MIT and Professor Gray had effectively denied him promotion from the position of principal research scientist (PRS) to the position of senior research scientist (SRS) in 1993, 1997, and 2001, by reason of his race (Asian) and national origin (Chinese), and that the defendants had subsequently retaliated against him for his complaints of discriminatory treatment in May and November, 2001. After investigation, the MCAD in May, 2004, found the claim of discriminatory nonpromotion in 1993 to be untimely and the claims of similar treatment in 1997 and 2001 and of retaliation after May, 2001, to lack the support of probable cause. It dismissed them. In July, 2004, Dr. Poon brought the present action in the Superior Court upon the same claims of discrimination (count one) and retaliation (count two) in violation of G. L. c. 15IB, § 4. Extensive discovery results and verified information had accumulated in the MCAD and continued to accrue in the Superior Court in the form of answers to interrogatories, the production of documents, deposition testimony, and affidavit statements and exhibits. At the conclusion of discovery, MIT and Professor Gray moved for full summary judgment. They supported the motion with an itemized statement of undisputed facts and legal elements in accordance with Superior Court Rule 9A(b)(5). Pursuant to that rule, Dr. Poon responded to the defendants’ statements of facts and legal elements. After consideration of the voluminous record, memoranda of law, and oral argument, in September of 2006, a judge of the Superior Court concluded in a thirty-four page memorandum of decision that the claim of discrimination in 1993 had become time barred and that the factual materials relating to the claims of discrimination in 1997 and 2001, and to the claim of retaliation after May, 2001, did not permit any reasonable expectation of proof at trial. She entered full summary judgment. Dr. Poon has appealed from the portion of the judgment disposing of the claims rooted in the events of 1997 onward. 2. Facts. The following information emerges from the summary judgment record as undisputed. Dr. Poon was bom and raised in Hong Kong. He earned a bachelor’s and a master’s degree in electrical sciences from universities in that city and then a Ph.D. in systems science and bioengineering from the University of California, Los Angeles. From 1981 until 1988, he held junior faculty positions at North Dakota State University and began research in bioengineering subjects, particularly cardiovascular and respiratory functions. In 1988, he came to MIT as a visiting scientist in the Harvard-MIT Division of Health Sciences and Technology (HST). HST is a multidisciplinary division, and not an academic department, of those universities. It engages in bioengineering research strengthened by the human and technological resources available from the schools of general science, engineering, and medicine at each institution. Two codirectors serve as its chief officers. It enjoys access to approximately 200 faculty professors. HST maintains a staff of ten nonfaculty, nontenure track, MIT-employed research scientists. Those individuals fall into three ranks arranged in ascending order and title as research scientist (RS), principal research scientist (PRS), and senior research scientist (SRS). These ranks appear available across a number of MIT departments, divisions, and units, and not merely in the HST. In 1989, Dr. Poon received appointment as a PRS. Under MIT’s published policies and procedures, both SRS and PRS appointees enjoy indefinite duration but remain subject to quadrennial review and to periodic review by an appropriate supervisor (one of the two codirectors of HST) for determination of the continuance of the appointment in light of the quality of the individual’s work and the need for his or her services. At all relevant times, the published qualifications for the rank of PRS have been the demonstrated ability “to generate and develop concepts independently and to conduct independent research” and the capacity for “unique scholarly or other technical contributions to research projects.” The published qualifications for the higher rank of SRS have included the following. “Individuals holding [an SRS] appointment conduct independent investigations, with the ability to direct the work of others. They possess a demonstrated research competence equal to that of a tenured faculty member. Appointment or promotion to this rank is evidence of wide external and internal recognition of independent contribution to research in the individual’s field. Such contributions may be illustrated by traditional scholarly recognition, excellence in the leadership of technical projects, or other significant research impact.” In effect, MIT policies and procedures require from the SRS both the ability for independent research and the capacity for direction and leadership of other scientists. a. Events of 1997. In February of 1997, Professor Gray, as codirector of HST, received a document entitled “Guidelines for the Review of Principal Research Scientists and Research Scientists” (guidelines) from the MIT vice-president and dean of research. The guidelines became effective on March 1, 1997, and required a four-year review of the performance of each PRS individual by a committee of three (two faculty and one researcher) appointed by an HST director. The committee was to evaluate the quality, funding, and future of the PRS’s research and educational contributions, and to submit a report to the HST codirectors. It was to solicit at least seven letters of assessment from recognized experts in the individual’s field at MIT; and six or more letters from comparable experts outside MIT. The HST head would, in turn, generate a recommendation about the PRS upward to the vice-president of research, and would provide the PRS with a formal written assessment of standing and of the probability for advancement. During the period of January 31 into April, 1997, Professor Gray drafted documents in preparation for an assessment of Dr. Poon’s performance, including a request that he furnish a statement of career goals, a list of individuals within and beyond MIT capable of evaluation of him, and copies of five of his most recent and significant papers. On April 8, she forwarded a memorandum to the members of the HST personnel committee placing the subject of Dr. Poon’s four-year evaluation under the new guidelines on the agenda of an April 11 meeting. At that meeting the members addressed the subject of evaluation of Dr. Poon and a second HST member. The record of the agenda indicates without elaboration that they did not vote to go forward with the evaluation of Dr. Poon. By deposition Professor Gray testified that the personnel committee discontinued the evaluation because the members anticipated negative assessment letters potentially harmful to Dr. Poon’s long-term career prospects. By answers to interrogatories, Professor Gray reported that such “letters likely would not have reflected well upon his interpersonal abilities and therefore could have undermined his future academic career.” She did not inform him of the aborted evaluation. Professor Gray regarded the 1997 process as an exercise of personnel review. None of the documents from Professor Gray to Dr. Poon used the word promotion. Dr. Poon viewed it as an application for promotion to SRS rank. By deposition he testified that, several months after the submission of his papers, Professor Gray had told him that she had been too busy to complete the process. b. Events of 2001. In May of 2001, Dr. Poon wrote to Professor Gray to request prompt consideration of his promotion to SRS. On July 12, 2001, Professor Gray informed him by letter that an internal review by the HST personnel committee in 1997 “did not result in a sufficient mandate to warrant proceeding with consideration of your promotion,” but that the committee would now be willing to entertain his candidacy for promotion. Dr. Poon submitted updated materials of his performance. At a meeting on November 27, 2001, the committee adopted a policy statement of qualifications for SRS rank, including the following language. “With regard to the individual’s role in the Division [the HST unit], a candidate should be well-integrated into the fabric of the Division and should play a vital, leadership role in the overall program. In fact, the Institute policy states that the individual should have ‘the ability to direct the work of others.’ It was the sense of the meeting that HST Senior Research Scientist appointments should be awarded only to individuals who bring major programmatic leadership that advances the collegial, interdisciplinary goals of the Division. Again, it was pointed out that the numeric limitation by the Institute is meant to recognize world-class scientific stature as well as leadership; i.e., such appointments are to be given only to stellar individuals whom the Division would like to keep.” The committee then considered the application of Dr. Poon as “measured against [the] policy,” received the recommendations of the two HST codirectors against promotion, and after further discussion “unanimously supported the position that there is not compelling basis to move the appointment forward.” The committee did not place a record of this action in Dr. Poon’s personnel file or inform him of it at that time. c. Events related to the claim of retaliation. In the course of his letter of May 9, 2001, to Professor Gray requesting promotion to SRS rank, Dr. Poon suggested that his “Asian descent” was causing, or contributing to the cause of, his lack of promotion. Professor Gray rejected the suggestion in her letter of July 12, 2001. Dr. Poon attributes four subsequent events to retaliation against his allegations of discrimination. On July 13, 2001, Professor Gray informed him of a plan to move his office to an alternate building with a resulting loss of space and a reassignment of his secretary. When Dr. Poon objected and suggested the action to be retaliatory, Professor Gray responded that the plan had formed before his complaint and had sought to satisfy his desire for office space closer to his laboratory space. She withdrew the changes. In August, 2001, Dr. Poon requested MIT to appeal from the denial by the National Science Foundation (NSF) of a grant application submitted by him earlier that year. He prepared a letter of appeal to a superior officer at NSF and requested HST’s endorsement of it. After discussion of the NSF process, Dr. Poon closed with the following paragraph. “We cannot speculate on the motive behind the program director’s [the NSF official originally denying the grant] mishandling, which could stem from anything such as a possible conflict of interest or racial discrimination. Neither should we be held responsible for his highly improper behavior, or the reporting of it to the NSF administration — which would have to be the last resort by us for fear of reprisal. Indeed, denial of our appeal would only make us a victim once again.” The HST codirector (acting in Professor Gray’s place during vacation) emphatically denied approval of it. “As you may know, an appeal to the NSF Deputy Director .. . must be approved up the chain of command at MIT all the way to the president’s office. In my opinion the letter you have written is inflammatory and confrontational, and is not in the best interests of you, HST, or the Institute. It should not be sent further.” Shortly afterward, both the vice-president and dean of research and the university provost denied approval. The provost called upon Dr. Poon to present to him “any evidence to support such a serious charge” as “racial discrimination” at NSF. No such evidence appears in the record. In November, 2001, Dr. Poon was investigating a possible appointment at Harvard University and Massachusetts General Hospital. He requested that, in the event of the appointment, he retain his office and laboratory space at MIT. He reported his belief that another HST scientist (who was not Asian) had a primary appointment at Harvard and office and laboratory space at MIT. After consultation with another researcher about space, the codirector of HST (not Professor Gray) concluded that space constraints at MIT could not permit Dr. Poon’s continued allocation if he were to move his primary appointment elsewhere. The offer of a new appointment never materialized. Finally, in December of 2004, the same HST codirector met with Dr. Poon as part of a performance review for that year. The evaluation centered upon two subjects. He rated Dr. Poon’s achievement of funding for research projects as “good” and as a source of satisfaction of HST. At the same time the codirector characterized the required supervision and mentoring of graduate students in his laboratory as “disappointing” and “sub-par.” The review cited conflicts with two such students and a resulting confrontation with an HST colleague. It concluded that this supervisory performance and “the pattern of contentious interpersonal interactions with your professional peers and colleagues” prevented “a fully favorable performance review.” The codirector recommended Dr. Poon for a three percent merit-based salary increase rather than a maximum four percent. d. Interpersonal relations. In support of its motion for summary judgment and in accordance with Superior Court Rule 9A(b)(5), MIT submitted multiple allegations, with supporting record references, of interpersonal conflicts between Dr. Poon and colleagues, administrators, and students. It characterized the alleged facts as material because they supported legitimate grounds for actions which Dr. Poon characterized as discriminatory refusal of promotion or retaliation. In the following particulars, Dr. Poon’s rule 9A(b)(5) responses left intact or admitted certain information of personal friction or conflict. He acknowledged that during his career at HST he had experienced multiple disagreements with faculty and staff at MIT inside and outside HST. Several scientists and at least one graduate student had left his laboratory as a result of disputes with him. In 2001, a research scientist resigned from HST as the result of a dispute with him. Dr. Poon accused Professor Gray and the HST personnel department with discrimination and harassment toward him and the personnel administrator with “sabotage” by reason of their support of the research scientist. Dr. Poon had engaged in certain verbally abusive and hostile conflicts with HST administrators. In 1997, HST designated Dr. Poon as the principal investigator of two funding proposals intended to create a neuro-engineering initiative. The proposals did not progress. In 1999, HST had then designated an MIT faculty member as an alternate principal investigator to undertake a new grant application for the neuroengineering initiative. Finally, the voluminous summary judgment record contains no specific derogation of Dr. Poon’s individual research skills as a PRS. Nor does it contain any deprecation of his Asian identity by any member of the HST or MIT community. Discussion. 1. Standard of review. From the same record as the motion judge, the reviewing court examines the allowance of summary judgment de novo. Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 123 n.1 (1997) (the record is open to independent consideration on appeal; the appellate court may make its own compilation from the record to decide the ultimate questions of the correctness of summary judgment). We assess the factual information in the light most favorable to the nonmoving or opposing party (Dr. Poon) and then determine whether the record resolves the material questions of fact and the issues of law in favor of the movant. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Correllas v. Viveiros, 410 Mass. 314, 316-317 (1991). Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 35 (2005). The “most favorable” light does not exclude adverse facts. It illuminates both positive and negative information. See Sullivan v. Liberty Mut. Ins. Co., supra at 35-37 (taking account of concerns about the employee’s “responsiveness to clients,” “collegiality,” and “human relations skills”). In a typical posture presented here, the defendant moving parties, MIT and Professor Gray, shoulder the burden of demonstrating the absence of genuine issues of discrimination and retaliation even though they would not bear that burden at trial. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991); Matthews v. Ocean Spray Cranberries, Inc., supra at 127. They may do so by showing that Dr. Poon has no reasonable expectation of proving an essential element of his prima facie claims at trial. Ibid. Earlier Massachusetts employment discrimination decisions cautioned against disposition by summary judgment because those disputes hinge on questions of mentality and credibility traditionally committed to the first-hand observation of witnesses by a trier of fact. Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 439-440 (1995), and cases cited. See Matthews v. Ocean Spray Cranberries, Inc., supra; Sullivan v. Liberty Mut. Ins. Co., supra at 39. However, a substantial exception has evolved for the category of cases in which a defendant employer demonstrates that the employee’s “evidence of intent, motive, or state of mind is insufficient to support a judgment in the plaintiff’s favor.” Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 440, and cases cited. See Matthews v. Ocean Spray Cranberries, Inc., supra at 127 (affirming summary judgment against the allegation of discriminatory motive); Sullivan v. Liberty Mut. Ins. Co., supra (same); Romero v. UHS of Westwood Pembroke, Inc., 72 Mass. App. Ct. 539, 545-548 (2008) (same); and Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 447-450 (1996) (same). In appropriate circumstances summary judgment can filter out groundless accusations by disgruntled or ter

Powers v Post-Newsweek Stations, No. 138114; Court of Appeals No. 288582. Kelly, C.J. (concurring). Plaintiff, an African-American woman, worked for defendant WDIV-TV as an advertising account executive. She was eventually promoted to the position of sales manager. When she was not made general sales manager (GSM), she filed suit alleging that she had been discriminated against on the basis of her race and gender. The previous GSM, Matt Kell, held the position until he succumbed to cancer. While he was ill, plaintiff applied for and received short-term disability leave for depression. Plaintiff claimed that defendants discriminated against her by terminating her employment after denying her an extension of her medical leave of absence. Finally, she alleged that defendants’ conduct constituted intentional infliction of emotional distress. Defendants moved for summary disposition on the ground that plaintiff had failed to create a genuine issue of material fact concerning racial discrimination or intentional infliction of emotional distress. The trial court denied the motions. On interlocutory appeal, the Court of Appeals reversed the trial court’s ruling on the intentional infliction of emotional distress claim, but denied leave to appeal with respect to her discrimination claims. Defendants now seek leave to file an interlocutory appeal in this Court. Under the Michigan Civil Eights Act (CRA), a claim of racial or gender discrimination in employment may be made with direct or indirect evidence. Where the employee adduces direct evidence of bias, a plaintiff can go forward and prove unlawful discrimination in the same manner as a plaintiff would prove any other civil case. Where direct evidence is unavailable, to avoid summary disposition, the employee must present evidence from which the fact-finder could infer that the plaintiff was the victim of unlawful discrimination. Thus, to establish a prima facie case of discrimination, a plaintiff must present evidence that she was (1) a member of a protected class; (2) subject to an adverse employment action; (3) qualified for the position; and that (4) others, similarly situated and outside the protected class, were unaffected by the employer’s adverse conduct.[] Once the employee establishes a prima facie case, the employer must articulate a nondiscriminatory reason for its actions. If the employer adduces such a reason, even if that reason later turns out to be incredible, the presumption of discrimination evaporates. Nonetheless, the evidence supporting an employee’s prima facie case may also be considered in deciding whether a genuine issue exists about whether the employer’s purported nondiscriminatory reasons constitute a pretext. Here, defendants claim that plaintiff failed to create a genuine issue of material fact that she suffered an adverse employment action in defendants’ failure to promote her to GSM. According to defendants, plaintiff failed to show that the position was open at any time before she became disabled. But plaintiff asserts that, although she was available for the job, defendant never formally offered it to anyone and took no steps to screen candidates to fill it. Plaintiff states that she was forced to assume the duties and responsibilities of the position and yet was never given the title or the pay. Plaintiff gave deposition testimony about Theodore Pearse, the head of her department, showing that he acted in a discriminatory manner. Plaintiff also testified about disparate treatment by Pearse concerning the hours that she worked and the duties that she performed. This contrasted with the favorable treatment that Pearse gave to Kell. Plaintiffs testimony establishes a genuine issue of material fact about adverse employment actions. It also raises an inference that Pearse acted out of racial animus in failing to pay plaintiff for her work as GSM and in refusing to promote her to that position. According to plaintiffs testimony, Pearse could have chosen a GSM when Kell died, but did not. If plaintiffs testimony is believed, a finder of fact could infer racial animus from Pearse’s decision not to formally promote plaintiff to the position of GSM. Defendants also argue that plaintiff failed to provide evidence of an adverse employment action with respect to her medical leave extension. They assert that she did not show that she was disparately treated compared to similarly situated employees. Defendants point out that white employees were also denied leave extensions. However, plaintiff persuasively argues that the failure to extend her medical leave resulted in the termination of her employment, which could clearly constitute an adverse employment action. Moreover, although plaintiffs employment was terminated in accord with defendants’ standard policy, an exception to that policy had been made for Kell. But, no exception to defendants’ standard policy exists for terminally ill employees. As a result, a genuine issue of fact exists concerning whether plaintiff was treated differently because of her race. Finally, defendants contend that plaintiffs retaliation claim fails as a matter of law. They assert that no one involved in the decision not to offer her the GSM position or to deny her a medical leave extension knew of the alleged protected activity. However, plaintiff claimed that Pearse was aware of her complaints of racial discrimination. Thus, if believed, plaintiffs testimony demonstrates resentment toward plaintiff by Pearse that could constitute retaliation. For these reasons, summary disposition, in favor of defendants, of plaintiffs discrimination claims was inappropriate. The case should proceed to trial. Therefore, I concur in the Court’s order denying defendants’ application for leave to appeal. MCL 37.2201 et seq. Town v Michigan Bell Tel Co, 455 Mich 688, 694-695 (1997). “Direct evidence” is evidence that, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions. Hazle v Ford Motor Co, 464 Mich 456, 462 (2001). Hazle, supra at 462-463. Town, supra at 695. Id. Id. at 696. Markman, J. (dissenting). I respectfully dissent. Plaintiff filed suit alleging multiple claims of racial and gender discrimination. The trial court denied defendants’ motions for summary disposition, and the Court of Appeals denied leave to appeal on all but one of these motions. Powers v Post-Newsweek Stations Michigan Inc, unpublished order of the Court of Appeals, entered December 11, 2008 (Docket No. 288582). Because I believe that all but one of plaintiffs remaining claims should be dismissed, I dissent. To raise an inference of discrimination, a plaintiff must establish a prima facie case by showing that (1) she belongs to a protected class, (2) she suffered an adverse employment action, (3) she was qualified for the position, and (4) the job was given to another person under circumstances giving rise to an inference of unlawful discrimination. [Hazle v Ford Motor Co, 464 Mich 456, 463 (2001).] Establishing a prima facie case, however, “does not necessarily preclude summary disposition in the defendant’s favor.” Id. at 463-464. Instead, the defendant can “articulate a legitimate, nondiscriminatory reason for its employment decision” that rebuts the inference of discrimination. Id. at 464. Once the defendant has articulated such a reason, the plaintiff can only survive summary disposition by demonstrating that the evidence would allow a reasonable trier of fact to conclude that the employer’s action was motivated by discriminatory animus and that the employer’s proffered reason was “ ‘a pretext for [unlawful] discrimination.’ ” Id. at 465-466 (alteration in original), quoting Lytle v Malady (On Rehearing), 458 Mich 153, 176 (1998). Plaintiff first claims that defendants discriminated against her by not promoting her to the general sales manager (GSM) position, which was the next level above her local sales manager position. The previous GSM, Matt Kell, held the position until he died from cancer. While Kell was sick, plaintiff applied for and received short-term disability leave for work-induced depression. She was still on short-term leave when Kell died. Defendants did not seek to fill the GSM position until approximately a year after Kell passed away. By that time, defendants had terminated plaintiffs employment because she did not return after her short-term disability leave expired. The GSM position was eventually filled by a black man. Plaintiff has failed to establish a material issue of fact regarding an adverse employment action, because the GSM position did not open until after she had effectively ended her employment by not returning when her short-term leave expired. Plaintiff has also not established an inference of a discriminatory purpose because defendants hired an individual in the same “protected class” to which she belonged. Additionally, even assuming plaintiff has established a prima facie case, defendants’ non-discriminatory reason, that defendants did not want to remove Kell from the position while he battled terminal cancer, clearly overcomes any presumption of discrimination. See Hazle, 464 Mich at 473. Plaintiff presented no evidence showing that defendants’ reason was a pretext for keeping her out of the position. Plaintiff next claims discrimination based on defendants’ decision to not extend her short-term disability leave. The thrust of her argument is that defendants’ denial of an extension was based on race because Kell, a white male, had received short-term disability extensions while he battled cancer. Kell was the only employee who received extensions beyond the period set by defendants’ policy (two other white employees also did not receive extensions). I do not believe that this raises an inference of discrimination, because the differences between plaintiffs and Kell’s medical situations were drastic. However, again, even assuming that plaintiff established a prima facie case, she did not rebut defendants’ non-diseriminatory reason for extending Kell’s benefits (that he was battling terminal cancer). Accordingly, I believe the presumption of discrimination “drops away,” Hazle, 464 Mich at 465, and plaintiffs claim cannot continue because she did not present further evidence showing that defendants’ actions were motivated by discriminatory animus. Plaintiff lastly claims that defendants retaliated against her for complaining to their general manager about the mistreatment of black employees. To establish a prima facie case of retaliation, a plaintiff must show “(1) that he engaged in a protected activity; (2) that this was known by the defendant; (3) that the defendant took an employment action adverse to the plaintiff; and (4) that there was a causal connection between the protected activity and the adverse employment action.” [Garg v Macomb Co Community Mental Health Services, 472 Mich 263, 273 (2005) (citation omitted).] For one of plaintiffs claims, there are material facts in dispute regarding these elements. Plaintiff alleged that Kell’s supervisor did not discipline Kell for making plaintiffs job more difficult. A “supervisor’s decision not to take action to stop harassment” can be considered an “adverse employment action.” Meyer v Center Line, 242 Mich App 560, 571 (2000). When plaintiff complained to the supervisor regarding Kell’s behavior, he told her that Kell was upset that plaintiff had complained to the general manager about racial mistreatment and that she should leave if she did not like Kell’s behavior. I believe this arguably establishes a material dispute about whether the supervisor’s inactivity was causally connected to plaintiffs earlier complaints to the general manager. However, I do not believe that plaintiff has presented any evidence of a causal connection between her complaints and defendants’ decisions not to promote her to the GSM position and not to extend her short-term disability. Plaintiff only shows that the decision-makers for those actions had knowledge of plaintiffs past complaints, which I believe alone is insufficient to establish a causal connection between plaintiffs complaints and the alleged adverse employment actions. See West v Gen Motors Corp, 469 Mich 177, 186 (2003) (“Something more than a temporal connection between protected conduct and an adverse employment action is required to show causation where discrimination-based retaliation is claimed.”). Accordingly, I would reverse the trial court’s decision and dismiss plaintiffs claims with respect to the GSM promotion and short-term disability leave. Likewise, I would dismiss plaintiffs retaliation claim, except with respect to the portion of that claim arising out of the supervisor’s failure to correct Kell’s alleged mistreatment of plaintiff. Corrigan, J. I join the statement of Justice Markman. I respectfully disagree with Chief Justice Kelly that an inference of discrimination was raised because “no exception to defendants’ standard policy existfed] for terminally ill employees.” Ante at 988.1 do not believe any formal exception is required to explain an employer’s decision to provide an employee with extended disability care while he battled a serious cancer that would eventually cause his death.