Retaliation Cases

HUGH KEVIN HINES, Plaintiff v. GARLAND N. YATES, in his Individual and Personal Capacity and in His Official Capacity as the District Attorney for the 19-B Prosecutorial District, State of North Carolina; LITCHARD D. HURLEY, in His Individual and Personal Capacity and in His Official Capacity as the Sheriff of Randolph County, North Carolina; WESTERN SURETY COMPANY, a South Dakota Corporation, Defendants No. COA04-775 (Filed 5 July 2005) 1. Appeal and Error— appealability — preservation of issues— failure to argue — interlocutory order The cross-assignments of error that plaintiff failed to argue in his brief are deemed abandoned under N.C. R. App. P. 28(a) and plaintiffs cross-appeals, except for wrongful discharge, are interlocutory and dismissed under N.C. R. App. P. 10. 2. Appeal and Error— appealability — denial of summary judgment — immunity—substantial right Although an appeal from the denial of a motion for summary judgment is generally an appeal from an interlocutory order, defendants’ appeal is properly before the Court of Appeals because defendants’ answer and arguments assert the affirmative defenses of immunity and qualified immunity which affect a substantial right sufficient to warrant immediate appellate review. 3. Wrongful Interference— malicious interference with contractual relations — summary judgment The trial court erred by denying defendant sheriff’s motion for summary judgment on plaintiff’s claim for malicious interference with contractual relations in defendant’s official and individual capacity, because: (1) plaintiff’s allegations fail to establish the element of “no justification” to support his claims for malicious interference with contract as an investigatorial assistant in the district attorney’s office; (2) plaintiff’s allegations do not show that defendant sheriff did not have an official or personal justification in requesting plaintiff to be reassigned or terminated and that defendant, as a constitutionally elected officer, enjoyed a qualified immunity from tort in communicating with defendant district attorney who was also a constitutionally elected officer; (3) plaintiff offered no evidence to show that the district attorney terminated him because of the sheriff’s request or that he suffered recoverable damages as a result of the sheriff requesting plaintiffs termination; and (4) the district attorney’s affidavit and answers to plaintiffs interrogatories set forth objective and substantial reasons for terminating plaintiff, none of which were based upon the sheriffs request to do so. 4. Constitutional Law— North Carolina — suit against district attorney in individual and personal capacity — summary judgment The trial court erred by concluding that defendant district attorney was not entitled to summary judgment on plaintiffs claim for relief under violations of the North Carolina Constitution in defendant’s individual and personal capacity, because: (1) it is well settled in North Carolina that no direct cause of action for monetary damages exists against officials sued in their individual capacities who have allegedly violated a plaintiff’s constitutional rights; and (2) plaintiff concedes that his complaint does not set forth a cause of action against defendant in his individual and personal capacity for this claim. 5. Public Officers and Employees— wrongful termination— investigatorial assistant in district attorney’s office The trial court did not err by granting summary judgment for defendant district attorney on plaintiff’s wrongful termination claim based on defendant firing plaintiff as an investigatorial assistant after plaintiff’s unsuccessful candidacy for sheriff, because: (1) plaintiff did not show that he was discharged for any reason that contravenes public policy; (2) plaintiff was not restrained by defendant from running for public office, making any speech, or engaging in a protected activity which furthers a public policy; (3) as an at-will and exempt employee under N.C.G.S. § 126-5(cl)(2) based on his employment in the Judicial Department, plaintiff’s public opposition to his superior’s discretionary decisions and his inability to work cooperatively with law enforcement agencies with which the district attorney must communicate and coordinate on a daily basis is a legally sufficient reason for defendant to terminate plaintiff’s employment; (4) plaintiff did not allege that his candidacy for sheriff, speeches, and activities, for which he was allegedly terminated, resulted from his employer’s demand that he conduct some unlawful activity or was in retaliation for cooperating with a law enforcement agency conducting an investigation; (5) plaintiff’s allegations and evidence did not show how his candidacy for sheriff immunized his speech as political expression that is protected by a public policy exception to bar his termination when that speech publicly exuded insubordination and directly criticized his supervisor’s prosecutorial discretion whether to bring criminal charges; (6) plaintiffs public statements criticizing defendant’s discretionary decisions and the disruption of his office’s working relationship with law enforcement agencies were sufficient reasons, standing alone, to terminate plaintiff’s at-will employment; and (7) defendant’s decision to terminate plaintiff rested within his lawful and discretionary scope of authority under N.C.G.S. § 7A-69. 6. Civil Rights— § 1983 claim — failure to show deprivation of constitutionally protected rights The trial court erred by denying summary judgment for defendants on plaintiff’s 42 U.S.C. § 1983 claim, because: (1) plaintiff failed to show any public policy exception which cloaks him from termination of his at-will employment as an investiga-torial assistant who serves at the pleasure of the district attorney as provided by N.C.G.S. § 7A-69; (2) there is no genuine issue of material fact as to whether plaintiff was deprived of any rights, privileges, or immunities secured by the Constitution and laws as a terminated at-will employee of defendant district attorney (DA); (3) plaintiff’s right to say whatever he wanted was not restrained by defendant DA or anyone else; and (4) defendant DA had the right to terminate plaintiff’s employment for any reason, for no reason, or for an arbitrary or irrational reason so long as his actions did not violate a recognized public policy. 7. Damages and Remedies— punitive damages — summary judgment The trial court’s denial of defendants’ motions for summary judgment on the remainder of plaintiff’s claims, including those for punitive damages, that have not been previously dismissed are reversed. Judge Wynn concurring in part and dissenting in part. Appeals by defendants and cross appeals by plaintiff from order entered 26 February 2004 by Judge John O. Craig, III, in Randolph County Superior Court. Heard in the Court of Appeals 2 February 2005. Puryear and Lingle, P.L.L.C., by David B. Puryear, Jr., for plaintiff-appellee/cross-appellant. Attorney General Roy Cooper, by Assistant Attorney General Grady L. Balentine, Jr., for defendant-appellant/cross-appellee Garland N. Yates. Womble Carlyle Sandridge & Rice, A Professional Limited Liability Company, by Allan R. Gitter and Douglas R. Vreeland, for defendants-appellants/cross-appellees Litchard D. Hurley and Western Surety Company. TYSON, Judge. Garland N. Yates (“Yates”), Litchard D. Hurley (“Hurley”), and Western Surety Company (collectively, “defendants”) appeal from an order denying their motions for summary judgment. We affirm in part, reverse in part, and dismiss plaintiff’s complaint. I. Background From 7 January 1999 to 31 December 2002, Hugh Kevin Hines (“plaintiff’) worked as an investigatorial assistant in the district attorney’s office for 19-B Prosecutorial District. Plaintiff’s job duties included locating and interviewing witnesses, serving subpoenas for attendance at trials, and acting as a liaison between the district attorney’s office and law enforcement agencies. Prior to working for Yates, plaintiff worked as a lieutenant for the sheriff of Randolph County. During the 2002 election, plaintiff became a candidate in the republican primary election for sheriff of Randolph County and challenged Hurley, the incumbent sheriff. Over the course of the campaign, plaintiff publicly criticized Yates for his prosecutorial decisions in prior cases and publicly announced his disagreement with Yates’ decision to not criminally charge a sheriff’s deputy who had collided with a motorcyclist during a pursuit. The motorcyclist died from injuries sustained from the collision. Plaintiff also publically expressed his disagreement with the sheriff’s department’s investigation and handling of an unrelated and unsolved murder case. Plaintiff’s affidavit states that: Yates, on numerous occasions personally stated to me that he intended to discharge me from my employment . . . due to my seeking the office of Sheriff of Randolph County . . . after each occasion on which I made a public appearance or there was some news media attention in connection with my election campaign. After plaintiff appeared at a public event to express interest in running for the sheriffs position, plaintiff was instructed by Yates not to work on pending cases involving the Randolph County sheriffs department. In the primary election held 10 September 2002, Hurley defeated plaintiff, secured the republican party’s nomination, and won reelection as sheriff of Randolph County in the November general election. On 16 September 2002, less than one week after the primary election, plaintiffs annual employee performance report was completed. On 26 September 2002, Kay Lovin, Yates’ administrative assistant and plaintiff’s supervisor, informed plaintiff of his impending termination. Yates extended the termination date to 31 October 2002, and again to 31 December 2002, and offered plaintiff the opportunity to resign. Yates also offered to provide a reference to other law enforcement agencies. Plaintiff refused to resign and continued to criticize the sheriff’s department after the election. In his sworn affidavit, Yates stated, “[Plaintiff] continued to criticize the Sheriff and even accused him of voter fraud” and “stated pub-lically that he intended to run against the Sheriff again in 2006.” On 31 December 2002, plaintiff received a separation notice from Yates stating as grounds that “[e]mployee is no longer able to function effectively in his position. To wit: cooperate and maintain an effective and confidential relationship with all law enforcement agencies in the judicial district.” Yates listed as a second reason for plaintiff’s separation as “[e]mployee further directly criticized supervisor’s decision in the media concerning a law enforcement matter.” Plaintiff instituted this action seeking damages from defendants for various torts: (1) wrongful discharge against Yates in both his official and individual capacity; (2) malicious interference with contractual relations against Hurley; (3) violation of plaintiff’s State constitutional rights by Yates and Hurley in their official capacities; (4) violation of plaintiff’s federal constitutional rights under 42 U.S.C. § 1983 against Yates and Hurley in their official and personal individual capacities; and (5) claims for punitive damages for Hurley’s and Yates’ conduct in their official and personal individual capacities. Plaintiff asserted claims against Western Surety Company on Hurley’s official bond. Defendants answered and asserted defenses of sovereign immunity, qualified immunity, and that plaintiff was an “at will employee.” Defendants moved for summary judgment. Hurley’s sworn affidavit, filed with his motion for summary judgment, admits he asked Yates to reassign plaintiff from the sheriffs department’s cases due to “[his] concern that a conflict of interest was arising by plaintiff’s reportedly questioning crime victims as to whether they were satisfied with response times, friendliness, etc. of deputy investigators ... for the time during the election campaign.” Hurley denies requesting Yates to terminate plaintiff. Yates’ sworn affidavit states, “[a]t no time did Sheriff Hurley or anyone on his behalf ask me to fire [plaintiff], I made the decision.” The trial court granted defendants’ motions regarding: (1) “plaintiff’s first claim for relief as against defendant Yates in his official capacity and in his individual and personal capacity” (wrongful discharge); (2) “plaintiff’s third claim for relief as against defendant Hurley in his official capacity and in his individual and personal capacity” (denial of State constitutional rights); (3) “plaintiff’s third claim for relief as against defendant Yates in his official capacity, but not as against defendant Yates in his individual and personal capacity” (denial of State constitutional rights); (4) “plaintiff’s fourth claim for relief as against defendant Yates in his official capacity for all forms of relief except injunctive relief, but not as against defendant Yates in his individual and personal capacity” (denial of federal constitutional rights under color of State law); (5) “plaintiff’s sixth claim for relief as against defendant Yates in his official capacity, but not as against defendant Yates in his individual and personal capacity” (punitive damages); and (6) plaintiff’s sixth claim for relief as against defendant Hurley in his official capacity but not as against defendant Hurley in his individual and personal capacity (punitive damages). The trial court denied defendants’ motions for summary judgment on plaintiff’s: (1) second claim of relief for malicious interference with contractual relations against Hurley; (2) injunctive relief for violation of plaintiff’s State constitutional rights by Yates in his individual and personal capacities; (3) violation of plaintiff’s federal constitutional rights under 42 U.S.C. § 1983 against Yates in his individual and personal capacities limited to injunctive relief; (4) plaintiff’s fifth claim for relief on the sheriff’s bond against Western Surety Company (for wrongful conduct by Hurley in his official capacity as sheriff); and (5) punitive damages against both Hurley and Yates in their individual and personal capacities. Defendants appeal and plaintiff cross appeals. II. Issues The common issues presented by defendants are whether the trial court erred in denying defendants’ summary judgment motions on plaintiffs claims for violation under 42 U.S.C. § 1983 and punitive damages. Defendants Hurley and Western Surety separately assert the trial court erred in denying summary judgment on plaintiffs malicious interference with contractual relations as plaintiff failed to allege a waiver of immunity. Plaintiff assigned cross assignments of error on the granting of defendants’ motions for summary judgment dismissing plaintiffs claims for: (1) wrongful discharge by Yates; (2) punitive damage charge against Hurley in his official capacity; (3) all forms of relief except injunction in regards to his 42 U.S.C. § 1983 action; and (4) punitive damages against Yates and Hurley in their official capacities. Except for the trial court’s granting Yates summary judgment and dismissing plaintiff’s claims for wrongful discharge, plaintiff’s arguments in his brief assert solely alternative grounds to support the trial court’s partial summary judgment in his favor. Plaintiff abandoned his remaining cross assignments of error by not arguing them in his brief. N.C. R. App. P. 28(a) (2004); Summers v. City of Charlotte, 149 N.C. App. 509 n.8, 562 S.E.2d 18 n.8 (2002). Also, plaintiff’s cross appeals, except the wrongful discharge, are interlocutory and are dismissed. N.C. R. App. P. 10 (2004). III. Interlocutory Appeal Defendants’ appeal of an order denying their motions for summary judgment is interlocutory. However, “this Court has repeatedly held that appeals raising issues of governmental or sovereign immunity affect a substantial right sufficient to warrant immediate appellate review.” Price v. Davis, 132 N.C. App. 556, 558-59, 512 S.E.2d 783, 785 (1999) (citations omitted). We recognize the non-prevailing party’s right to immediate review because “ ‘the essence of absolute immunity is its possessor’s entitlement not to have to answer for his conduct in a civil damages action.’ ” Id. (quoting Epps v. Duke University, Inc., 122 N.C. App. 198, 201, 468 S.E.2d 846, 849, disc. rev. denied, 344 N.C. 436, 476 S.E.2d 115 (1996) (citing Herndon v. Barrett, 101 N.C. App. 636, 639, 400 S.E.2d 767, 769 (1991))). Defendants’ answer and arguments assert the affirmative defense of immunity and qualified immunity. This appeal is properly before this Court. Id. IV. Standard of Review . In a motion for summary judgment, the movant has the burden of establishing that there are no genuine issues of material fact. The movant can meet the burden by either: “1) Proving that an essential element of the opposing party’s claim is nonexistent; or 2) Showing through discovery that the opposing party cannot produce evidence sufficient to support an essential element of his claim nor [evidence] sufficient to surmount an affirmative defense to his claim.” Price v. Davis, 132 N.C. App. 556, 559, 512 S.E.2d 783, 786 (1999) (citing Messick v. Catawba County, 110 N.C. App. 707, 712, 431 S.E.2d 489, 492-93, disc. rev. denied, 334 N.C. 621, 435 S.E.2d 336 (1993)). When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. N.C. Gen. Stat. § 1A-1, Rule 56(e) (2003). V. Interference with Contract Hurley asserts the trial court erred in its order denying his motion for summary judgment on plaintiffs claim against him for malicious interference with contractual relations in his official and individual capacity. We agree. The five essential elements a plaintiff must show for a viable claim for malicious interference with contract are: (1) a valid contract existed between plaintiff and a third person, (2) defendant knew of such contract, (3) defendant intentionally induced the third person not to perform his or her contract with plaintiff, (4) defendant had no justification for his or her actions, and (5) plaintiff suffered damage as a result. Wagoner v. Elkin City Schools’ Bd. of Education, 113 N.C. App. 579, 587, 440 S.E.2d 119, 124 (1994) (citing McLaughlin v. Barclays American Corp., 95 N.C. App. 301, 308, 382 S.E.2d 836, 841, cert. denied, 325 N.C. 546, 385 S.E.2d 498 (1989); Uzzell v. Integon Life Ins. Corp., 78 N.C. App. 458, 463, 337 S.E.2d 639, 643 (1985), cert. denied, 317 N.C. 341, 346 S.E.2d 149 (1986)). Plaintiffs complaint alleges “[a]t all times herein alleged, Hurley was the duly elected Sheriff of Randolph County.” Plaintiff’s claim for malicious interference with contractual relations asserts Hurley “acted without any proper purpose related to his duties as Sheriff . . . solely for reasons of ill will and malice ... to intentionally and maliciously cause defendant Yates to terminate plaintiffs employment.” Hurley argues public official immunity and qualified immunity bar this claim. “Governmental immunity protects the governmental entity and its officers or employees sued in their ‘official capacity.’ ” Taylor v. Ashburn, 112 N.C. App. 604, 607, 436 S.E.2d 276, 279 (1993) (quoting Whitaker v. Clark, 109 N.C. App. 379, 382, 427 S.E.2d 142, 144, disc. rev. and cert. denied, 333 N.C. 795, 431 S.E.2d 31 (1993)), cert. denied, 336 N.C. 77, 445 S.E.2d 46 (1994). We have held “absent an allegation to the effect that immunity has been waived, the complaint fails to state a cause of action.” Clark v. Burke C

Doreen M. Smith vs. Bell Atlantic & another. No. 03-P-1522. Middlesex. October 4, 2004. - June 10, 2005. Present: Lbnk, Grasso, & Cohen, JJ. Anti-Discrimination Law, Employment, Handicap, Damages. Employment, Discrimination. Evidence, Expert opinion. Massachusetts Commission Against Discrimination. Words, “Qualified handicapped person.” At the trial of a complaint brought by the plaintiff employee pursuant to G. L. c. 151B, § 9, alleging that the defendant employer failed to reasonably accommodate her handicap in violation of G. L. c. 151B, § 4(16), the evidence, taken in the light most favorable to the employee, permitted the jury to find that neither daily presence in the office nor travel was essential to the plaintiff’s employment [711-714], and that allowing the plaintiff to do substantial amounts of her work at home was, in the circumstances, a reasonable accommodation that the defendant failed effectively to implement [714-717]; however, the trial judge was entitled to exercise her discretion to strike the opinion of the employee’s medical expert, which lacked a specific factual foundation to support a causal connection between the employer’s failure to accommodate and the permanent decline in the employee’s health, and properly allowed the employer’s motion for judgment notwithstanding the verdict as to the employee’s claims for front pay and other future damages [717-720], At the trial of a civil action alleging employment discrimination on the basis of handicap, the judge did not err in directing a verdict for the defendant employer on the plaintiff employee’s claim for punitive damages, where on the facts presented, there was no basis for finding that the defendant intentionally or willfully violated the law or that its conduct was evil in motive [720-722]; further, the judge did not abuse her discretion in ruling that the jury’s award of emotional distress damages was grounded in the evidence and within the range of just damages [723-724]; did not err in reducing the plaintiff’s award of attorney’s fees and costs [724-725]; and correctly calculated prejudgment interest [725-726], At the trial of a civil action alleging employment discrimination on the basis of handicap on a continuing violation theory, the judge did not err in allowing the jury to consider events that occurred after the plaintiff had filed her original charge with the Massachusetts Commission Against Discrimination (MCAD), and which were never included in that charge, where nothing in G. L. c. 151B, §§ 5 and 9, required the plaintiff to refile or amend her charge with the MCAD as a prerequisite to relying upon later incidents in support of an ongoing violation. [722-723] Civil action commenced in the Superior Court Department on June 5, 1998. The case was tried before S. Jane Haggerty, J., and a motion for judgment notwithstanding the verdict was heard by her. Laura R. Studen (Shepard Davidson with her) for the plaintiff. Barry A. Guryan for the defendants. NYNEX. Cohen, J. In this action brought pursuant to G. L. c. 151B, § 9, a jury awarded damages to the plaintiff, Doreen Smith, on account of the failure of her employer, the defendant telephone company (company), to reasonably accommodate her handicap, in violation of G. L. c. 151B, § 4(16). After concluding that the opinion of Smith’s medical expert was deficient and had to be struck, the trial judge allowed the company’s motion for judgment notwithstanding the verdict as to Smith’s claims for future damages; however, the judge refused to disturb the jury’s award for emotional distress suffered by Smith while she remained in the company’s employ. Before us are the parties’ cross appeals. Smith’s primary argument is that it was error to strike the opinion of her medical expert on the causal relationship between the company’s failure to accommodate and the permanent decline in her health, and that, therefore, the jury’s awards for front pay and other future damages should be reinstated. She also claims that the judge erred in directing a verdict for the company on her claim for punitive damages, that the judge improperly reduced her requested award of fees and costs, and that prejudgment interest was not properly computed. The company argues that its motion for judgment notwithstanding the verdict should have been allowed in its entirety, because no reasonable jury could find that Smith was a “qualified handicapped person” and because it made accommodations that were reasonable as matter of law. The company also contends that Smith was not entitled to rely upon events that occurred under supervisors who had not been named in the charge Smith filed with the Massachusetts Commission Against Discrimination (MCAD), and that both the jury’s award for emotional distress and the judge’s award of attorney’s fees and costs were excessive. We conclude that all of the challenged rulings were correct and, accordingly, affirm. 1. Factual background. We summarize the facts as the jury could have found them, adding details as needed during our discussion of the issues. From 1978 to 1999, Smith was employed by the company in its various iterations. Over the years, Smith, a college graduate with postgraduate engineering training, performed a number of different jobs and attained the position of “second-level manager.” Smith succeeded in the workplace despite having a significant disability. When she was two years old, Smith contracted polio, and after a long and difficult recovery that included a year in an iron lung and many surgical procedures, she was left with paralysis in one leg and diminished use of the other. As an adult, Smith ambulated using wrist-braced crutches, until 1992, when she began to experience increased fatigue, loss of body strength, and pain. She then started to use a scooter for all but short distances, transporting it in a large van equipped with hand controls and a lift. Eventually, Smith was diagnosed with post polio syndrome (PPS), a degenerative condition affecting some polio survivors. PPS is a consequence of polio’s effects upon nerve cells, some of which die, some of which are infected and weakened, and some of which remain normal. Functioning cells sprout more axons and try to compensate for the lost and weakened cells. Over time, these overworked cells start to die, and the patient experiences the symptoms of PPS. If the patient does not take care to avoid overexertion, PPS may accelerate. Individuals like Smith, who have diminished use of their legs, run the risk that overuse of their arms will result in wear and tear that eventually will compromise their ability to perform daily functions and live independently. In 1993, Smith worked out of the company’s Waltham office, but reported to a supervisor in Marlborough and traveled there on a regular basis. In May of that year, Smith was distressed to learn that she would have to work exclusively at the Marlborough facility. Smith lived in Dedham; her commute to Waltham had been only about twenty minutes, and parking was readily available. The longer drive to Marlborough was more fatiguing, and once she arrived, she often had trouble parking because there was only one van-accessible handicapped parking space, and people would park illegally and block access to her lift. When told of the move, Smith asked that she be allowed to continue using an office in Waltham, but she was required to relocate. She was not given an explanation for the transfer and knew of no reason why it was necessary. From June 21, 1993, until June 17, 1994, Smith was out of work on medical leave, undergoing and recuperating from knee replacement and shoulder surgery. This was not the first time that Smith had taken medical leave for surgical procedures. Between 1978 and 1991, she had several operations, but according to Smith, her medical absences did not cause any work-related problems, no one discussed them with her, and she remained involved with the company while on leave. Her performance evaluations between 1990 and 1993 were favorable, indicating that, with few exceptions, she met or exceeded objectives. During Smith’s June, 1993, to June, 1994, absence, another employee took over her projects. When preparing to return to work, Smith asked if she could come back on a part-time basis (she still needed to attend physical therapy) and do some of her work from home. Her doctor supported her request and wrote a letter to the company’s medical director requesting that Smith’s commuting distance be decreased or that she be allowed to perform some of her duties at home. Robert Olson, Smith’s supervisor, in conjunction with a company physician and the company’s disability advocate, considered her request and agreed to it. Such arrangements were not unprecedented; there were other, nonhandicapped second-level managers who did almost all of their work from home. When Smith returned to work, she was given a “special assignment” to perform asset measurement and planning. Smith’s project involved gathering and analyzing data, preparing reports, and reviewing the utilization of technology. In this position, Smith did not have supervisory responsibilities, but this, too, was not unique; there were other second-level managers on special assignments who did not supervise others. While it was necessary for her to do some traveling to company sites, the basic plan was for Smith to work at home at least two days a week and either at home or in Marlborough on the other days. This arrangement did not work out as Smith had hoped. Because she did not have a home office, she frequently needed to travel to Marlborough to collect and print out data to analyze at home. Early on, Smith requested that she be provided with a computer, but none was forthcoming until 1995 when Olson gave her a laptop that could not reliably run Lotus Notes, an important communications program that she needed for her work. Eventually, Smith purchased her own equipment, including a computer, printer, fax machine, copier, software, and office furniture. She did not seek reimbursement for these items, because she believed that the company would be unwilling to pay for them. Despite her requests, she had no dedicated telephone access from her home to the company’s network until 1997, when the company installed two “POTS” (“plain old telephone service”) lines in her home, one for her fax machine and one for her computer. She was not supplied with high-speed access. Smith’s efforts to avoid wear and tear on her arms by minimizing her driving and the number of “transfers” that she needed to make (e.g., from her scooter to the car and back again) were frustrated by her frequent need to travel to the office and to vendors. She repeatedly informed Olson, the company disability advocate, and company doctors about her difficulties. She asked to be assigned to a location closer to home and, before she acquired it herself, to be given home office equipment. Dr. Birchette-Pierce of the company’s medical department was supportive of Smith’s requests, but changes were not forthcoming. In early 1995, the company had Smith stay out of work for several weeks because Dr. Birchette-Pierce was of the opinion that Smith should not work without accommodation. Then, during the first week of April, 1995, Dr. Ryan, the head of the company’s medical department, called Smith and told her she would be fired unless she came to work the next day — informing her that it was her supervisor’s responsibility to provide accommodations for her, and not the medical department’s. Smith attempted to reach Olson; when she could not, she called the company’s ethics hotline. Again she was informed that it was her supervisor’s responsibility to provide reasonable accommodations. Smith came back to work on April 5, 1995, on a full-time basis. Smith wrote to Olson informing him that failure to change her work location or work arrangements would compromise her health. When they met the following week, Olson told her that he would look into transferring her to a location that was within a one-half hour commute of Dedham. Subsequently, Olson transferred Smith to Boston, where he had other subordinates working for him. While based in Boston, Smith continued to report to Olson, but her commute to Marlborough was reduced to one day a week. Although Smith’s commute was improved by getting an office in Boston, she had considerable difficulty with parking, because her oversized van would not fit into covered garages, and open lots refused to take such a large vehicle. On one day in June, 1995, Smith was unable to find a parking spot that would allow her to gain access to her ramp and retrieve her scooter. She therefore attempted to walk from her van to the office on crutches, but was knocked down by another pedestrian and injured her ankle. This injury kept her out of work until late July, 1995, when she returned, initially part-time, but full-time as of October, 1995. Shoulder surgery resulted in Smith losing considerable time from work during 1996, but in January, 1997, she again resumed full-time duties. In April, 1997, Smith had to have her knee surgery redone. She returned to work on a part-time basis at the end of November, and on a full-time basis the following year. In late 1997 or early 1998, Smith was transferred back to the Marlborough office, where her supervisor was now William Haid. She was assigned to develop measurement packages for new departments, which involved determining what data needed to be tracked and developing a system to collect it. According to Smith, with a functional home office, she could have performed ninety percent of her job at home. As it was, her home office was not adequate to the task. Smith had a friend from work install Lotus Notes on the home computer that she had purchased and, for a short time, that was successful. But then the computer developed a virus, and Smith lost the ability to use the program. When she tried to get help from the company’s information technology people, they refused because the company did not own the computer. Smith called a computer “doctor” and the computer company’s technical support Une. As she attempted to simultaneously hold the telephone and maneuver her computer, she lost her balance and tore her rotator cuff. When Smith informed Haid about issues with her home office, he told her that she needed to address them herself. For example, when she requested that her home be designated a secure site so that she would be permitted access to certain databases, Haid did not object, but said that she should do it herself, even though this was beyond her capacity. Furthermore, under Haid, Smith again found herself stymied in her efforts to restrict her trips to the office. Instead of communicating with her electronically, Haid sometimes would leave notes on her desk, which she would need to retrieve by travehng to Marlborough; when she attempted to participate in meetings by conference call, Haid and others sometimes neglected to call her or failed to caU her back after a break. Haid also once told Smith that people with disabihties have a place in the workplace, but that there are only certain jobs they are quaUfied to do. Smith informed Haid that her lack of resources and support was resulting in a decline in her over-all productivity. She frequently worked extra hours because more time was required to complete the assignments she was given. Haid did not respond to these concerns, but in her 1998 performance appraisal, Smith was told that even though she exceeded expectations in some respects, she did not meet other performance objectives. One of the unmet objectives was to define a “skill set” for telecommuting. Smith had informed Haid that accomplishing that task would require significant training, but he had not offered any support in that regard. In connection with her performance appraisal, Smith also was told that her contributions were not comparable to those of other second-level managers. Smith felt that this was because Haid expected her to be able to set up and maintain her own home office while other managers were not responsible for keeping their computers online. As of January, 1999, Smith again was working part-time, but resumed full-time work in March. By the end of 1999, however, despite the fact that she had always loved her job with the company, Smith came to the conclusion that she no longer could do her work effectively. She was too fatigued to travel and had a serious shoulder injury that required surgery. In June, 2000, after six months of short-term disability, Smith went out on total, permanent disability. She was then forty-seven years old. 2. Procedural background. Smith first pursued legal action against the company in December, 1995, when her requests for accommodations from Olson remained unresolved to her satisfaction. She filed a handicap discrimination charge with the MCAD against the company and Olson, claiming that they were not providing her with reasonable accommodations and had retaliated against her for requesting them. The charge was dismissed by the MCAD in November, 1998, on the ground that there was insufficient information to establish a violation. Meanwhile, in June, 1998, Smith filed a complaint asserting the same claims in Superior Court. As the case proceeded, the issues were narrowed: a judge partially allowed the company’s motion for summary judgment, dismissing Smith’s retaliation claim; and Smith discontinued her claims against Olson. When the case was tried to a jury in May, 2002, it was limited to Smith’s claim against the company for failure reasonably to accommodate her. At the close of the plaintiff’s evidence, the trial judge directed a verdict for the company on Smith’s claim for punitive damages. As for compensatory damages, Smith contended that the company’s failure to provide her with reasonable accommodations not only caused her to suffer emotional distress during the final years of her employment between 1993 and 1999, but also accelerated her physical deterioration to the point where she no longer could work and had to go out on total disability. The case was submitted to the jury on special questions. The jury found that Smith was a qualified handicapped person; that the company failed reasonably to accommodate her by providing her with an adequate home office, but that the company did not fail reasonably to accommodate her by providing her with a shorter commute and parking; and that fair compensation for her emotional distress from 1993 through 1999 was $207,000. The jury also found that the company’s failure reasonably to accommodate Smith was a substantial contributing factor in rendering her unable to work after 1999. They awarded her $1,000,000 for lost future wages; $300,000 for future medical and life care costs; and $200,000 for emotional distress after she ceased working. Before and during the trial, the company objected to the admission of the opinion testimony of Dr. Julie Silver, an expert on PPS and Smith’s treating physician, who stated that the company’s failure to accommodate was the major contributing factor leading to Smith’s rapid deterioration and inability to work. The judge reserved the issue and revisited it on the company’s motion for judgment notwithstanding the verdict, ruling that Dr. Silver’s opinion had to be struck because it was not adequately supported in methodology or fact. The judge further ruled that without Dr. Silver’s opinion there was no basis for any award of future damages. She therefore allowed the company’s motion for judgment notwithstanding the verdict except as to the jury’s award for emotional distress damages during the period of Smith’s employment between 1993 and 1999. On Smith’s motion, the judge awarded her attorney’s fees and costs, but not in the amount requested. The judge declined to award fees and costs incurred at the MCAD prior to the filing of Smith’s law

GARG v MACOMB COUNTY COMMUNITY MENTAL HEALTH SERVICES Docket No. 121361. Argued November 9, 2004 (Calendar No. 1). Decided May 11, 2005. Amended 473 Mich 1205. Sharda Garg, a person of Asian Indian ancestry, brought an action in the Macomb Circuit Court against Macomb County Community Mental Health Services, her employer, alleging violations of the Civil Rights Act, MCL 37.2101 et seq., specifically that she was denied promotions and subjected to poor treatment because of national-origin discrimination and in retaliation for engaging in activities protected by the act. A jury awarded damages, finding retaliation but not discrimination. The court, Roland L. Olzark, J., entered a judgment consistent with the verdict and denied the defendant’s motion for judgment notwithstanding the verdict or a new trial. The Court of Appeals, Griffin, EJ, and Meter and Kelly, JJ., affirmed in an unpublished opinion per curiam, issued March 29, 2002 (Docket No. 223829). The Supreme Court granted the defendant’s application for leave to appeal. 469 Mich 1042 (2004). In an opinion by Justice Markman, joined by Chief Justice Taylor, and Justices Corrigan and Young, the Supreme Court held: The plaintiff failed to present sufficient evidence that she was subjected to retaliation either for her alleged opposition to sexual harassment or for filing a grievance claiming national-origin discrimination. The judgment of the Court of Appeals must be reversed and the matter must be remanded to the trial court for entry of a judgment in favor of the defendant. 1. There is insufficient evidence either that plaintiff opposed sexual harassment or that defendant knew that plaintiff was engaged in opposition to sexual harassment in the workplace. The plaintiff claimed that she observed a supervisor sexually harass women in the workplace and that she engaged in activity protected by the Civil Rights Act by opposing such harassment in striking an unknown person who had touched her back and who turned out to be the same supervisor. However, the supervisor was not sexually harassing the plaintiff when she struck him, the plaintiff never characterized her reaction to the touching as opposing sexual harassment until she filed her action, and the plaintiff never told or gave any indication to the supervisor or anyone else that striking the supervisor was an act of opposing sexual harassment. 2. The “continuing violations” doctrine of Sumner v Goodyear Tire & Rubber Co, 427 Mich 505 (1986), which allows consideration of acts falling outside the three-year limitations period of MCL 600.5805(1) and (10) applicable to actions under the Civil Rights Act, is inconsistent with the statute of limitations and must be overruled. 3. The plaintiff engaged in activity protected by the Civil Rights Act in filing a grievance alleging violation of the act. The defendant was aware of this activity. However, absent evidence of acts occurring outside the period of limitations, the plaintiff failed to establish a causal link between the filing of the grievance and the subsequent alleged adverse employment actions. There is no evidence to suggest any distinction between denials of promotion by the supervisor who received the grievance and by other supervisors who were not aware of the grievance. Also lacking was evidence that the plaintiff was treated any differently at work by the supervisor who received the grievance and by other supervisors who were not aware of the grievance. Reversed and remanded to the circuit court. Justice Cavanagh, joined by Justice Kelly, dissenting, agreed with the majority’s conclusion that there was insufficient evidence of retaliation based on the plaintiffs alleged opposition to the sexual harassment of her coworkers, but disagreed with the conclusion that the plaintiff presented insufficient evidence that she was retaliated against for filing a grievance. Further, Sumner should not be overruled and the continuing violations doctrine should not be abolished. The majority also erred in concluding that because the continuing violations doctrine no longer applies, evidence of prior acts must be excluded from consideration. In this case, the continuing violations doctrine should be applied and should result in a conclusion that all of the adverse employment actions taken by the defendant against the plaintiff are actionable. A review of the four principles to be considered before established precedent is overruled, as detailed in Pohutski v City of Mien Park, 465 Mich 675, 694 (2002), shows that none of the factors weighs in favor of overruling Sumner and abolishing the continuing violations doctrine. Even if Justice Cavanagh were to agree with the majority that the continuing violations doctrine is no longer viable, the natural consequence of abolishing that doctrine is not to exclude untimely acts from consideration. Rather, abolishing the doctrine simply means that untimely acts are not actionable. Justice Weaver, joined by Justice Kelly, dissenting, agreed with the reasoning and conclusions in Justice Cavanagh’s dissenting opinion. She wrote separately to state that she is not persuaded that the unanimous adoption of the continuing violations doctrine in Sumner v Goodyear Tire & Rubber Co, 427 Mich 505 (1986), was unwarranted or that the doctrine should be abandoned. 1. Civil Rights — Employment Discrimination — Retaliation. A plaintiff seeking to establish a prima facie case of unlawful employment-related retaliation under the Civil Rights Act must show that the plaintiff engaged in a protected activity, that this was known by the defendant, that the defendant took an employment action adverse to the plaintiff, and that there was a causal connection between the protected activity and the adverse employment action (MCL 37.2701). 2. Civil Rights — Employment Discrimination — Limitation of Actions — Continuing Violations Doctrine. The continuing violations doctrine announced in Sumner v Goodyear Tire & Rubber Co, 427 Mich 505 (1986), which allows consideration of acts falling outside the three-year limitations period of MCL 600.5805(1) and (10) applicable to actions under the Civil Rights Act, is inconsistent with the language of the statute of limitations and may no longer be applied. Pitt, Dowty, McGehee, Mirer & Palmer, PC. (by Beth M. Rivers and Robert W. Palmer), and Monica Farris Linkner and Allyn Carol Ravitz for the plaintiff. Kitch Drutchas Wagner DeNardis & Valitutti (by Susan Healy Zitterman and Karen B. Berkery) for the defendant. Amici Curiae: Michael A. Cox, Attorney General, and Susan I. Leffler, Ron D. Robinson, and Suzanne D. Sonneborn, Assistant Attorneys General, for the Michigan Civil Rights Commission and the Department of Civil Rights. Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Patrick J. O’Brien and Heather S. Meingast, Assistant Attorneys General, for the Attorney General. Sachs Waldman, PC. (by Mary Katherine Norton), for the Michigan State AFL-CIO, the Michigan Trial Lawyers Association, and the Michigan Employment Lawyers Association. MARKMAN, J. We granted leave to appeal to consider whether there was sufficient evidence to support plaintiffs claims of retaliatory discrimination and whether the “continuing violations” doctrine of Sumner v Goodyear Tire & Rubber Co, 427 Mich 505; 398 NW2d 368 (1986), should be preserved, modified, or abrogated in light of the language of the statute of limitations, MCL 600.5805(1). The jury found that plaintiff was not discriminated against on the basis of national origin, but was retaliated against on the basis of either her opposition to sexual harassment or because she filed a grievance claiming national-origin discrimination. The Court of Appeals affirmed. Because we conclude that, once, evidence of acts that occurred outside the statute of limitations period is removed from consideration, there was insufficient evidence of retaliation based on either plaintiffs alleged opposition to sexual harassment or her filing of a grievance, we reverse the judgment of the Court of Appeals and remand to the trial court for entry of a judgment in favor of defendant. In so holding, we overrule the “continuing violations” doctrine of Sumner, supra, as inconsistent with the language of the statute of limitations, MCL 600.5805(1) and (10). As a result, we do not reach the other issues raised on appeal or the issues raised in plaintiffs cross-appeal. i. pacts and procedural history Plaintiff Sharda Garg is of Asian Indian ancestry. She began her employment as a staff psychologist with defendant Macomb County Community Mental Health Services in 1978. Plaintiff testified that Donald Habkirk, the director of defendant’s disability section, which included the facility where plaintiff worked, had during 1981 engaged in what plaintiff characterized as “sexually harassing” behavior with female coworkers. Specifically, plaintiff observed Habkirk pull one coworker’s bra strap and snap the elastic panties of another. Plaintiff acknowledges that she herself was never treated in this manner or otherwise sexually harassed, and that she never reported to anyone the incidents she allegedly observed. Habkirk denied engaging in such conduct. At “around the same time,” plaintiff, while walking down an office corridor, felt someone’s hand touch her upper back, near her shoulder. Plaintiff reacted as follows: “I felt somebody touching me, and I just turned around and swung at him.” She farther observed, “it was a very automatic reaction on my part.” It was only after she hit this person that she realized it was Habkirk whom she had hit. She and Habkirk stared at each other for a moment before she proceeded into her office. Plaintiff did not file a grievance, tell anyone about the incident, or offer any explanation to anyone regarding why she had struck Habkirk. In response to a question concerning whether the touching was “improper,” plaintiff did not characterize it as such. While Habkirk never took any formal action against plaintiff for striking him, and indeed testified that he could not even remember the incident, plaintiff claims that her formerly cordial relationship with Habkirk deteriorated as he became increasingly cold and distant. While plaintiff generally enjoyed a good employment relationship with defendant and its management initially, she asserted that she began to perceive changes in this relationship following the touching incident. After six years of being rated as either “outstanding” or “very good,” plaintiffs 1983 performance review was downgraded to “satisfactory.” It was also at this point that plaintiff applied for several job promotions, in each case unsuccessfully. The first position she applied for in 1983 was given to someone from outside the organization, despite a general inclination by defendant in favor of internal promotions. Two other promotion applications in 1983 were also rejected. Over the next three years, plaintiff applied unsuccessfully for four more promotions. Plaintiff was denied a total of eighteen promotion opportunities, including eleven during the period of 1983 through 1987. During this period, Habkirk always served in plaintiffs chain of command. Once at a dinner party with plaintiffs immediate supervisor, Robert Slaine, plaintiffs husband asked why plaintiff had not been promoted. Slaine responded that, in his opinion, it was because Habkirk did not like plaintiff. Slaine denied making this statement, and Habkirk denied telling Slaine that he disliked plaintiff. In 1986, Kent Cathcart was chosen by Habkirk as the new program director in plaintiffs facility. However, little changed for plaintiff because she failed to receive any of the next three promotions for which she applied. In December 1986, she was denied a promotion in favor of a contract employee with less seniority. Following this rejection in February 1987, plaintiff filed her first promotion-related grievance with the union representing defendant’s employees. When plaintiff was again denied a promotion in early 1987, this time in favor of a person from outside the company, she filed a second promotion-related grievance with the union in June 1987, alleging that the denial was due to discrimination based on her national origin and color. The grievance was forwarded to Cathcart, and was denied without investigation. Plaintiff next applied for a promotion in 1989, but was again denied. Plaintiff was denied seven promotions during the period of 1989 through 1997. Plaintiff claims that the “retaliation” against her for filing these grievances also took the form of poor overall treatment by defendant. Specifically, she claims that Cathcart, and the two supervisors who succeeded Cathcart after plaintiff was transferred to defendant’s First North facility in 1995, treated her “in a degrading and humiliating manner.” Plaintiff claims that Cathcart would criticize her for not participating in agency activities, but would then deny her requests to participate in meetings, conferences, and committees. In addition, plaintiff testified that Cathcart would reprimand her for being even two minutes late for work, but would let her coworkers “come and go as they pleased.” Plaintiff also testified that Cathcart once chastised her for going outside to look at a rainbow, but that her coworkers were routinely allowed to go outside for cigarette breaks on company time. Cathcart also refused to give her keys to the facility. Finally, when she moved to First North, plaintiff was given an office that was formerly a storage closet. The office was uncarpeted and had no windows. In addition, it was located next to a bathroom, forcing plaintiff to hear “people defecating and urinating” throughout the day. Plaintiff was assigned to this office despite her seventeen years of seniority and the availability of more desirable office spaces. Plaintiff also claims that Cathcart demonstrated a predisposition against “people of color” during the period that she was employed by defendant under his supervision. Specifically, plaintiff testified regarding four separate displays of this predisposition. First, when Cathcart learned that plaintiffs son had been accepted to medical school, he allegedly stated that “there are enough Indian doctors already.” Second, Cathcart allegedly complained about the accent of an Indian psychiatrist, stating that “these people have been here long enough, they ought to speak good English.” Third, Cathcart allegedly stated that he would not have hired an African-American nurse if a white candidate had been available. Finally, Cathcart allegedly used a racially derogatory term when referring to African-Americans. Cathcart denies making any of these statements. On -July 21,1995, plaintiff brought this action under the Civil Rights Act, MCL 37.2101 et seq., claiming that her promotion denials and poor treatment were due to national-origin discrimination and were in retaliation for engaging in activities protected by the aGt. Plaintiff originally claimed retaliatory discrimination based solely on the union grievance claiming national-origin discrimination. She later amended her complaint to allege that she was also retaliated against for opposing sexual harassment. Defendant denied the allegations and asserted that some of the allegations were barred by the three-year period of limitations. MCL 600.5805(1) and (10). Defendant moved for partial summary disposition on that basis, but the trial court denied the motion, citing the “continuing violations” doctrine adopted in Sumner. Following a three-week trial, the jury found that plaintiff was not discriminated against because of national origin or color. However, the jury also found that defendant had retaliated against plaintiff because she “opposed sexual harassment or because she filed a complaint or charge about being discriminated against.” The jury awarded plaintiff $250,000 in damages. Defendant filed a motion for judgment notwithstanding the verdict or a new trial. The trial court noted that “physical acts can convey a message better than words,” and that plaintiffs physical response to the touching by Habkirk was sufficient to inform defendant that she opposed Habkirk’s sexually harassing behavior. The trial court further held that sufficient evidence was presented to allow a reasonable juror to find a causal connection between plaintiffs striking Habkirk and her failure to be promoted. Because the evidence supported at least one of the retaliation theories, defendant’s motion was denied. In an unpublished opinion, the Court of Appeals affirmed the jury’s verdict. Unpublished opinion per curiam of the Court of Appeals, issued March 29, 2002 (Docket No. 223829). The Court of Appeals held that the “continuing violations” doctrine allowed the introduction of factual allegations going back more than three years before plaintiff filed her lawsuit and thus the statute of limitations was not a bar to the facts plaintiff presented to the jury. With regard to the merits, the Court of Appeals held that when plaintiff struck Habkirk, a reasonable juror could have concluded that she “ ‘raise[d] the specter,’ ” quoting Mitan v Neiman Marcus, 240 Mich App 679, 682; 613 NW2d 415 (2000), that she was opposing Habkirk’s sexual harassment. The Court of Appeals also determined that there was sufficient evidence to allow a reasonable juror to conclude that plaintiff established both of her retaliation claims. After this Court directed the parties to present oral argument on whether to grant leave to appeal or take other action permitted by MCR 7.302(G)(1), 469 Mich 983 (2003), and having heard such argument, we granted defendant’s application for leave to appeal, directing briefing regarding whether the “continuing violations” doctrine of Sumner was consistent with the statute of limitations, MCL 600.5805(1). 469 Mich 1042 (2004). II. STANDARD OF REVIEW The denial of a motion for judgment notwithstanding the verdict is subject to review de novo. Sniecinski v Blue Cross & Blue Shield of Michigan, 469 Mich 124, 131; 666 NW2d 186 (2003). Reversal is permitted only if the evidence, while viewed in a light most favorable to plaintiff, fails to establish a claim as a matter of law. Wilkinson v Lee, 463 Mich 388, 391; 617 NW2d 305 (2000). Whether the “continuing violations” doctrine is consistent with MCL 600.5805(1) and (10) is a question of law that we review de novo. Jenkins v Patel, 471 Mich 158, 162; 684 NW2d 346 (2004). III. ANALYSIS The issue in this case is not whether plaintiff was treated poorly or insensitively by defendant. Nor is it whether defendant “retaliated” against plaintiff for her conduct in hitting Habkirk. Instead, the issue is whether defendant retaliated against plaintiff specifically for conduct on her part protected by the Civil Rights Act. MCL 37.2701 provides, in pertinent part: Two or more persons shall not conspire to, or a person shall not: (a) Retaliate or discriminate against a person because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act. To establish a prima facie case of 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. [DeFlaviis v Lord & Taylor, Inc, 223 Mich App 432, 436; 566 NW2d 661 (1997).] A. RETALIATION BASED ON OPPOSITION TO SEXUAL HARASSMENT Plaintiffs first theory is that defendant retaliated against her because she opposed Habkirk’s sexual harassment. At “around the same time” that plaintiff allegedly observed sexually harassing behavior by Habkirk toward female employees, she felt someone touch her on the ba