Retaliation Cases

<bold>1. Pleadings — judgment on — outside evidence</bold> <block_quote> There was no error where the trial court heard but did not consider matters outside the pleadings before entering a judgment on the pleadings. Plaintiff initiated the introduction of evidence and may not now complain of the action she began. Moreover, receiving but not relying on evidence does not convert a motion for a judgment on the pleadings into a motion for summary judgment.</block_quote> <bold>2. Open Meetings — judgment on pleadings — no issue of fact</bold> <block_quote> The trial court did not err by granting defendant's motion for judgment on the pleadings on an Open Meetings claim arising from an employment decision. Taking plaintiff's allegations as true, no genuine issues of fact exist. Defendant properly entered a closed session and plaintiff's request that she be appointed to the position was beyond the court's authority under the Open Meetings Law.</block_quote> <bold>3. Pleadings — sanctions — improper purpose of action</bold> <block_quote> The trial court's order imposing Rule 11 sanctions following a dismissal on the pleadings was affirmed. The evidence supports findings that plaintiff was present when the alleged violations of the Open Meetings Law occurred, that she had a duty to inform the Board if it was acting improperly, and that plaintiff intentionally remained silent. The evidence further supports the conclusion<page_number>Page 101</page_number> sion that plaintiff filed this action not to vindicate her rights, but in retaliation for defendant's actions and to gain leverage in settlement negotiations.</block_quote> <bold>4. Pleadings — sanctions — attorney fees — government attorney</bold> <block_quote> The trial court did not abuse its discretion by awarding attorney fees and costs to defendant as a Rule 11 sanction following a judgment on the pleadings for defendant in an Open Meetings case. Plaintiff produced no case law or evidence to sup

WENDY WHITT, Plaintiff v. HARRIS TEETER, INC., and RANDY SHULTZ, Defendants No. COA03-335 (Filed 6 July 2004) Employer and Employee— wrongful discharge — sexual harassment — constructive discharge The trial court erred by granting a directed verdict for defendant on a claim for constructive wrongful discharge in violation of public policy based upon sexual harassment. Such a claim exists in North Carolina even though the discharge is constructive, and plaintiff presented sufficient evidence to survive a motion for a directed verdict. Judge McCullough dissenting. Appeal by plaintiff from judgment entered 2 April 2002 by Judge Sanford L. Steelman, Jr. in Superior Court, Forsyth County. Heard in the Court of Appeals 13 January 2004. Kennedy, Kennedy, Kennedy & Kennedy, L.L.P, by Harvey L. Kennedy and Harold L. Kennedy, III, for plaintiff appellant. Womble Carlyle Sandridge & Rice, PLLC, by Lucretia D. Guia and J. Mark Sampson, for defendant appellee Harris Teeter, Inc. WYNN, Judge. Plaintiff Wendy Whitt appeals from final judgment of the trial court entered upon directed vérdict in favor of Defendant Harris Teeter, Inc. Plaintiff argues she presented sufficient evidence that Defendant terminated her employment in violation of public policy, and that the trial court therefore erred in granting directed verdict to Defendant on her wrongful discharge claim. We conclude Plaintiff presented sufficient evidence to withstand Defendant’s motion for directed verdict, and we therefore reverse the judgment of the trial court. The pertinent facts of the instant appeal are as follows: On 20 November 2000, Plaintiff filed a complaint in Forsyth County Superior Court against Defendant and one of its employees, Randy Schultz. The complaint alleged that Schultz sexually harassed Plaintiff during her employment with Defendant, and that Defendant failed to take appropriate action to protect Plaintiff from such misconduct. Plaintiff further alleged that after she reported the sexual harassment, Defendant took retaliatory action against her, resulting in her eventual termination. Plaintiff set forth claims against Defendant for (1) intentional infliction of emotional distress; (2) negligent retention and supervision; (3) wrongful discharge in violation of public policy based on retaliation; and (4) wrongful discharge in violation of public policy based upon a hostile workplace environment. Plaintiffs case came for trial on 11 February 2002. In support of her claim for wrongful discharge, Plaintiff presented the following evidence: Plaintiff worked as a cashier at Defendant’s grocery store in Kernersville, North Carolina. Schultz, a fellow employee at the grocery store, began sexually harassing Plaintiff in July of 1999. Specifically, Schultz approached Plaintiff at her cash register several times per day on a daily basis and whispered in her ear such statements as: 1. “Let’s go get naked and rub down in baby oil.” 2. “That bright polish you’re wearing is giving me a hard-on.” 3. “I bet you could f — k like hell when you’re that mad.” 4. “If I catch you bent over like that again I might have to come and throw my rod.” 5. “If I’m Santa Claus, I have a lifetime lollipop when you want to sit on my lap.” Plaintiff could feel Schultz’s lips touching her ear as he made these comments. Plaintiff informed Schultz she was married, asked him to stop, and told him she thought he was “sick.” Schultz persisted in his objectionable behavior toward Plaintiff. Plaintiff testified that, whenever possible, she “would push [Schultz] off and try to move away from him.” Plaintiff could not always avoid Schultz, however, as he sometimes approached her while she assisted customers. Another cashier, Nell Williamson, regularly observed Schultz “leaning over up on [Plaintiff] and talking in her ear.” Williamson testified Plaintiff “would pull away or push the groceries down [the] side to get him away from her. If she didn’t have any customers, she would turn around and walk off.” According to Plaintiff, Schultz’s actions humiliated and degraded her and made her feel “helpless [and] trashy.” In October of 1999, Schultz approached Plaintiff from behind while she was standing near the time clock and “took his hand down the back of [her] back down, over [her] bra, down to the top of [her] pants, and threatened [her],” by stating “I’ll get you sooner or later.” Following this incident, Plaintiff became “frightened” and informed her family of Schultz’s behavior. After discussing the situation with her family, Plaintiff decided to report Schultz’s behavior to management. On 26 October 1999, Plaintiff informed her front-end manager, Jenny Poff, that Schultz had been sexually harassing her. Poff informed her that two other female employees had filed sexual harassment charges against Schultz, and she advised Plaintiff to contact the store manager, Mike Turner. Plaintiff met with Turner in his office later that afternoon, who told her “he would have to contact the Field Specialist, Shirley Morgan.” Turner told Plaintiff “he was sorry that [she] had to go through this and that this type of behavior would not be tolerated.” Turner did not ask Plaintiff for the details of the sexual harassment. Later that day, Plaintiff met with the field specialist, Shirley Morgan, who requested Plaintiff “write down the statements that had been said, the remarks” and informed her there would be an investigation, stating the store did “not tolerate this type of behavior.” Despite these meetings, Schultz continued making sexual comments to Plaintiff over the next several days. One week later, Schultz was promoted and entered a manager trainee program at a different store location in Charlotte, North Carolina. However, Schultz continued to regularly visit the Kemersville store and harass Plaintiff by whispering sexual remarks in her ear, winking at her, and licking his lips. Schultz told Plaintiff, “I’ll get you sooner or later” and “The green polish you’re wearing is making me homy.” On several occasions, Schultz followed Plaintiff to her home. As a result, Plaintiffs father, Jack Hodge, began accompanying Plaintiff to and from work. Hodge testified he observed Schultz following his daughter home on three occasions. Plaintiff met again with Turner and informed him of the continued harassment. She also informed Turner that Schultz had followed her home and had threatened her. Turner told Plaintiff “Well, as far as I know he’s not been banned from the store.” Turner informed Plaintiff he would contact Morgan, the field specialist. Later in November, Morgan met with Plaintiff and informed her that the investigation was over, that Schultz had denied everything, and that she could not corroborate Plaintiffs allegations. Morgan gave Plaintiff a copy of Defendant’s sexual harassment policy. Morgan did not discuss the details of her investigation with Plaintiff, nor did she acknowledge or discuss the continued additional instances of harassment of which Plaintiff had informed Turner. Following her meeting with Morgan, Plaintiff arranged to have a third meeting with Turner, which both Plaintiffs father and the store’s assistant manager, Mike Streicher, attended. After informing Turner that Schultz was still making the sexual comments, stalking her, following her home, physically touching her and making threatening phone calls, Turner replied, “harsh[ly] and unconcerned, ‘Wendy, what do you want me to do about it?’ ” Her father then asked Turner, “What are you going to do about it?” Turner “just raised up in his seat and stared out the front out of the glass window of his office.” Plaintiff testified Schultz again approached her in November as she stood at the store’s time clock. He pressed his entire body tightly against Plaintiff, reached around her and attempted to touch her breasts. Before he could touch her breasts, Plaintiff “slung him off.” Instead of going to Turner, Plaintiff contacted the field specialist directly. She told Morgan the sexual harassment was continuing and described the threats and stalking. Morgan informed her that the matter had been “thoroughly investigated” and the investigation was complete. Morgan offered no further assistance. As a result, Plaintiff filed a complaint with the Equal Opportunity Employment Commission. Between the third week of November 1999 and the end of December 1999, Defendant reduced Plaintiffs employment hours from thirty-seven hours to twenty-seven hours per week. Schultz continued to visit the store in December, making sexually offensive comments to Plaintiff several times per week. By this time, Plaintiff was experiencing panic attacks, crying spells, suicidal thoughts, depression, withdrawal, insomnia, nightmares, nervousness and felt “hopeless, helpless, and just totally degraded.” She was “an emotional basketcase.” Plaintiff sought medical treatment and was prescribed Prozac and Xanax. Her condition worsened, however, causing Plaintiff to resign from her position with Defendant in February of 2000. Upon giving her notice of resignation to the assistant manager, he stated “Well, we figured this is going to happen.” At the close of the evidence, the trial court granted Defendant’s motion for a directed verdict on Plaintiffs wrongful discharge claim pursuant to Rule 50(a) of the North Carolina Rules of Civil Procedure. On 27 February 2002, the jury rendered a verdict finding that Defendant was not liable for intentional infliction of emotional distress and negligent retention, and the trial court entered judgment accordingly. Plaintiff appealed. Plaintiff contends the trial court improperly granted Defendant’s motion for directed verdict in that she presented more than a “scintilla” of evidence to support her claim. For the reasons stated herein, we agree that directed verdict was improperly granted, and we reverse the judgment of the trial court. It is well established in North Carolina that in determining whether the evidence is sufficient to withstand a motion for a directed verdict, “the plaintiff’s evidence must be taken as true and all the evidence must be viewed in the light most favorable to her, giving her the benefit of every reasonable inference which may be legitimately drawn therefrom, with conflicts, contradictions, and inconsistencies being resolved in the plaintiff’s favor.” Bryant v. Thalhimer Brothers, Inc., 113 N.C. App. 1, 6, 437 S.E.2d 519, 522 (1993), disc. review denied, 336 N.C. 71, 445 S.E.2d 29 (1994). The trial court should deny the motion for directed verdict if there is more than a scintilla of evidence to support all the elements of the plaintiffs prima facie case. Id. In reviewing the grant of a directed verdict pursuant to Rule 50(a) of the Rules of Civil Procedure, our task is to determine whether the evidence, taken in a light most favorable to the plaintiff, was sufficient for submission to the jury. Stallings v. Food Lion, Inc., 141 N.C. App. 135, 136-37, 539 S.E.2d 331, 332 (2000). We must therefore determine whether Plaintiff presented sufficient evidence to support the elements of her claim for wrongful discharge in violation of public policy. I. Wrongful Discharge in Violation of Public Policy In Coman v. Thomas Manufacturing Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989), our Supreme Court adopted a public policy exception to the employee-at-will doctrine. Although at-will employment may be terminated “ ‘for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy. A different interpretation would encourage and sanction lawlessness, which law by its very nature is designed to discourage and prevent.’ ” Id. at 175, 381 S.E.2d at 447 (quoting Sides v. Duke University, 74 N.C. App. 331, 342, 328 S.E.2d 818, 826, disc. review denied, 314 N.C. 331, 333 S.E.2d 490 (1985), overruled in part on other grounds, Kurtzman v. Applied Analytical Industries, Inc., 347 N.C. 329, 493 S.E.2d 420 (1997)). To state a claim for wrongful discharge in violation of public policy, an employee has the burden of pleading that his “dismissal occurred for a reason that violates public policy.” Considine v. Compass Grp. USA, Inc., 145 N.C. App. 314, 317, 551 S.E.2d 179, 181, affirmed per curiam, 354 N.C. 568, 557 S.E.2d 528 (2001). “Public policy has been defined as the principle of law which holds that no citizen can lawfully do that which has a tendency to be injurious to the public or against the public good.” Coman, 325 N.C. at 175 n.2, 381 S.E.2d at 447 n.2. Although this definition of public policy “does not include a laundry list of what is or is not ‘injurious to the public or against the public good,’ at the very least public policy is violated when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes.” Amos v. Oakdale Knitting Co., 331 N.C. 348, 353, 416 S.E.2d 166, 169 (1992) (footnote omitted). There is no question that “the right to be free of sexual harassment in the workplace ... is implicated in our State declaration of public policy.” Guthrie v. Conroy, 152 N.C. App. 15, 19-20, 567 S.E.2d 403, 407 (2002); see also N.C. Gen. Stat. § 143-422.2 (2003) (declaring that “[i]t is the public policy of this State to protect. . . the right. . . of all persons to seek, obtain and hold employment without discrimination or abridgement on account of . . . sex”); Russell v. Buchanan, 129 N.C. App. 519, 500 S.E.2d 728 (employee suit alleging wrongful discharge in violation of Title VII and North Carolina public policy), disc. review denied, 348 N.C. 501, 510 S.E.2d 655 (1998). Our Supreme Court has ruled that the “ultimate purpose of . . . G.S. 143-422.2 and Title VII (42 U.S.C. 2000(e), et seq.) is the same,” and thus the statute is co-extensive with the federal statute, evaluated under the same standards of evidence and principles of law. Dept. of Correction v. Gibson, 308 N.C. 131, 141, 301 S.E.2d 78, 85 (1983). Title VII prohibits sexual harassment in the workplace. See 42 U.S.C. § 2000(e)(2)(a)(l) (providing that “it shall be an unlawful employment practice for an employer to fail or refuse to hire, discharge, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of such person’s gender”). Various state statutes provide protection against sexual harassment in the workplace and elsewhere. See, e.g., N.C. Gen. Stat. § 143-422.2 (above); N.C. Gen. Stat. § 115C-335.5 (2003) (prohibiting retaliation by any local board of education member against an employee who reports sexual harassment); N.C. Gen. Stat. § 115C-325 (2003) (addressing sexual harassment by career education employees); N.C. Gen. Stat. § 14-395.1(a) (2003) (classifying sexual harassment as a Class 2 misdemeanor). A discharge based on sexual harassment therefore offends the public policy of this State and may properly support a wrongful discharge claim in violation of public policy. Guthrie, 152 N.C. App. at 19-20, 567 S.E.2d at 407; Russell, 129 N.C. App. at 521, 500 S.E.2d at 730; see also Harrison v. Edison Bros. Apparel Stores, Inc., 924 F.2d 530, 534 (4th Cir. 1991) (holding that North Carolina’s public policy wrongful discharge doctrine was applicable to prohibit sexual harassment); Phillips v. J.P. Stevens & Co., Inc., 827 F. Supp. 349, 352-53 (M.D.N.C. 1993) (recognizing wrongful discharge claim in violation of public policy on the basis of sexual harassment). In the instant case, Plaintiff presented evidence tending to show that (1) she was sexually harassed in the workplace by a fellow employee; (2) she repeatedly reported such harassment to Defendant; (3) Defendant promoted the employee responsible for the sexual harassment; (4) the sexual harassment continued after Plaintiff reported the behavior to Defendant; (5) Defendant reduced Plaintiff’s employment hours by ten hours per week after she reported the harassment; (5) Plaintiff developed depression and other psychological conditions as a result of the sexual harassment, Defendant’s failure to effectively address such harassment, and Defendant’s actions following the report of sexual harassment; and (5) Plaintiff’s condition ultimately forced her to resign from her employment with Defendant. We conclude Plaintiff presented sufficient evidence that her termination of employment was predicated upon sexual harassment in violation of public policy. We must now examine whether Plaintiff’s evidence supports her claim that she was wrongfully discharged, where termination of employment was constructive rather than explicit. II. Constructive Discharge Whether an at-will employee may be constructively discharged in contravention of the public policy of our State remains unsettled. See Graham v. Hardee’s Food Systems, 121 N.C. App. 382, 385-86, 465 S.E.2d 558, 560-61 (1995) (indicating that although “North Carolina courts have yet to adopt the employment tort of constructive discharge,” assuming arguendo such a claim exists, the plaintiff’s evidence failed to establish an element of constructive discharge). In Coman, however, our Supreme Court implicitly recognized the viability of a wrongful discharge claim in violation of public policy where termination was constructive. The plaintiff-employee in Coman who refused to violate federal trucking regulations was not fired by his employer; rather, the employer reduced his salary by fifty percent. The Coman Court determined that the reduction in pay was “tantamount to a discharge” of the plaintiff, and went on to recognize the plaintiff’s termination as a wrongful discharge in violation of public policy. Id. at 173-74, 381 S.E.2d at 446. After Coman, our Supreme Court ostensibly confirmed this interpretation of Coman in Garner v. Rentenbach Constructors, Inc., 350 N.C. 567, 515 S.E.2d 438 (1999), by describing the plaintiff’s termination in Coman as a “constructive discharge.” Id. at 570, 515 S.E.2d at 440. Decisions by this Court have left open the possibility of a constructive discharge claim. See, e.g., Doyle v. Asheville Orthopaedic Assocs., P.A., 148 N.C. App. 173, 177, 557 S.E.2d 577, 579 (2001) (“We recognize the viability of [the plaintiff’s claim for constructive discharge] in the context of interpreting whether constructive termination by her employer triggered the termination payment provision of the employment contract.”), disc. review denied, 355 N.C. 348, 562 S.E.2d 278 (2002); Russell, 129 N.C. App. at 524, 500 S.E.2d at 731-32 (affirming, although not directly addressing, jury verdict for plaintiff who brought suit alleging wrongful constructive discharge in violation of Title VII and North Carolina public policy based on sexual harassment); Graham, 121 N.C. App. at 385-86, 465 S.E.2d at 560-61; Wagoner v. Elkin City Schools’ Bd. of Education, 113 N.C. App. 579, 588, 440 S.E.2d 119, 125 (stating that, “[assuming that plaintiff was wrongfully constructively discharged, she is nonetheless not entitled to assert the tort of wrongful discharge because the tort of wrongful discharge arises only in the context of employees at will.”), disc. review denied, 336 N.C. 615, 447 S.E.2d 414 (1994). Further support for the proposition that North Carolina recognizes the validity of wrongful discharge claims in violation of public policy where termination is constructive is found in the principles announced by our Supreme Court in the seminal case of Coman. As explained in Coman, an at-will employee may not be terminated for a reason violating the public policy of our State because “ ‘[a] different interpretation would encourage and sanction lawlessness, which law by its very nature is designed to discourage and prevent.’ ” Coman, 325 N.C. at 175, 381 S.E.2d at 447 (quoting Sides, 74 N.C. App. at 342, 328 S.E.2d at 826). Moreover, our Supreme Court acknowledged in Coman that “[b]ad faith conduct should not be tolerated in

RYMAL v BAERGEN Docket Nos. 243795, 248124. Submitted March 9, 2004, at Detroit. Decided June 8, 2004, at 9:05 A.M. Penny Rymal brought an action against Herman Baergen, MTD Systems, Inc., Clark Products, Inc., and Clark Foodservice, Inc., in the Macomb Circuit Court, alleging quid pro quo sexual harassment, hostile work environment sexual harassment, and retaliation in violation of the Civil Rights Act (cra), MCL 37.2101 et seq., as well as a claim for wrongful withholding of sales commissions, MCL 600.2961. At the time of the alleged conduct, the plaintiff and Baergen were employed by Clark Products and Clark Foodservice (collectively Clark), and Baergen was her supervisor. Also, during that time, the plaintiff and Baergen were working for MTD, and Baergen was the plaintiffs supervisor. Clark entered into a financial settlement with the plaintiff with respect to all claims. Baergen and MTD, however, filed a motion for summary disposition with respect to all the plaintiffs claims. The circuit court, Mary A. Chrzanowski, J., granted summary disposition in favor of Baergen on the basis that there could not be individual, supervisor liability for sexual harassment, sex discrimination, or retaliation under the cra, and the plaintiff failed to establish her retaliation claim against MTD because she failed to show that she engaged in a protected activity and that, if she did participate in a protected activity, the plaintiff failed to show that there was a causal connection to MTD’s employment action against her. Regarding the claims of sexual harassment and hostile work environment against MTD, the court held that the plaintiff failed to show that her rejection of defendant Baergen’s sexual proposition was a factor in MTD’s employment action against the plaintiff or that the rejection created an intimidating, hostile, or offensive work environment. Finally, with respect to the wrongful withholding of sales commissions claim, the court ruled that the plaintiff failed to prove she acted as a sales representative for MTD. The plaintiff appealed only the court’s rulings on her quid pro quo sexual harassment, hostile work environment sexual harassment, and retaliation claims. As a related matter, before the settlement between Clark and the plaintiff, Baergen and MTD brought a cross-motion against Clark that sought to disqualify Clark’s counsel for a conflict of interest. Baergen and MTD claimed that during the initial procedural aspects of the litigation, Clark’s counsel also represented Baergen and MTD, and that subsequent events established that Clark’s interests were materially adverse to those of Baergen and MTD, and Clark’s counsel used privileged information obtained during the common representation against the defendants with respect to Clark’s cross-claim against Baergen and MTD. Therefore, a conflict of interest existed, which Baergen and MTD did not waive, and required the disqualification of Clark’s counsel. After an evidentiary hearing, the court granted Baergen and MTD’s cross-motion. Clark filed an appeal. The plaintiffs appeal and Clark’s appeal were consolidated. The Court of Appeals held: 1. The circuit court erred, in part, in ruling on the basis of the decision in Jager v Nationwide Truck Broker, Inc, 252 Mich App 464 (2002), that the CRA precludes any claim of individual liability under the CRA. The Jager ruling must be kept in its context. To the extent that Jager addressed specifically the antidiscrimination provision in the CRA, MCL 37.2202, along with MCL 37.2103(i), and considered the terms “employer” and “agent” to reach the conclusion that the CRA provides only for employer liability, and that a supervisor engaging in prohibited activity could not be held individually liable for violating a plaintiffs civil rights, that decision supports the circuit court’s ruling that Baergen could not be held individually hable for sexual harassment claims asserted by the plaintiff. The Jager decision does not extend to support the circuit court’s decision that Baergen could not be held individually hable for retaliation under the CRA, MCL 37.2701, because the Jager Court did not address the unambiguous language used in that section, and that Court’s broad brush language is not implicated with respect to the antiretabation provision, § 2701. Section 2701 clearly prohibits a “person” from retaliating against another person who opposes a violation of the CRA, and MCL 37.2103(g), for purposes of the entire CRA, defines a “person” to include an “individual” like Baergen. 2. The circuit court erred by granting summary disposition of plaintiffs claims of sexual harassment and hostile work environment against MTD and of her claim of retaliation against Baergen on the basis of an insufficiency in the documentary evidence. The plaintiff submitted sufficient documentary evidence to show a significant causal connection between a protected activity and the alleged quid pro quo sexual harassment, hostile work environment sexual harassment, and retaliatory acts. In this regard, Baergen’s actions toward the plaintiff while at Clark is circumstantial evidence available to support her claims against the defendants because Baergen was the significant actor for both Clark and MTD, and work for MTD was conducted on Clark premises, using Clark assets and employees, and while on the clock for Clark. The documentary evidence showed that the plaintiff and Baergen worked together, in an employee-supervisor relationship, at Clark, that they worked together to launch and run MTD, that Baergen propositioned the plaintiff, that the plaintiff rejected the sexual advance, and that Baergen, after the rejection of the sexual advance, initiated a campaign of hostility towards the plaintiff and made adverse decisions with respect to the plaintiffs job duties, responsibilities, and pay. Further, the plaintiff complained to a Clark executive that Baergen was harassing her and being abusive and discriminatory, but the executive failed to meet with the plaintiff as he had promised. 3. There is a factual issue with respect to the plaintiffs claim of quid pro quo sexual harassment against MTD sufficient to survive summary disposition, in particular, whether the plaintiffs rejection of Baergen’s advances was a significant factor in the adverse employment decisions respecting the plaintiff. The documentary evidence shows that there was a close temporal proximity between the rejection of the sexual overture and the reduction of the plaintiffs duties for MTD and pay. Also, there was extensive evidence showing a significant causal connection between the verbal abuse after the rejection, a letter written by Baergen that could be construed as threatening, and Baergen’s adverse employment actions against the plaintiff with respect to her work for MTD. 4. There is a factual issue, sufficient to survive a motion for summary disposition, with respect to the plaintiffs claim of a hostile work environment at MTD. There is sufficient evidence to show a hostile environment based on the abusive behavior closely following the plaintiffs rejection of Baergen’s unwelcome communication and based on Baergen’s numerous sexually oriented comments and questions directed at the plaintiff. For the purpose of establishing a hostile MTD work environment, evidence of Baergen’s conduct and communications that occurred on Clark premises could be considered because there was evidence that MTD work was regularly conducted on Clark premises, and Baergen was the significant supervisory actor for both Clark and MTD. 5. There is sufficient evidence to survive summary disposition in regard to the plaintiffs retaliation claim against Baergen and MTD. With respect to Baergen, there was a close temporal proximity between the plaintiffs complaint to the Clark executive and Baergen’s verbal abuse and adverse employment actions directed at the plaintiff, whether related to MTD or Clark, which together with Baergen’s letter threatening retribution provided circumstantial evidence of a significant causal connection to the adverse employment actions sufficient to show that any reasons for those employment decisions were a pretext. Similarly, with respect to MTD, although the evidence is more attenuated, when the totality of the circumstances are considered, there is a connection between the complaint to the Clark executive and the reduction in the plaintiffs MTD duties and pay. 6. The plaintiffs complaint to the Clark executive was a protected activity under the CRA even though she did not specify the sexual nature of Baergen’s conduct. Regardless of the plaintiffs failure to formally invoke the protection of the cra, her claims of demeaning conduct, harassment, and discrimination by a male boss when made to the executive, who was an attorney, created a factual issue concerning whether she raised the specter of a discrimination complaint and was engaged in protected activity. 7. Clark has standing to challenge the circuit court’s order disqualifying its counsel on the basis of a conflict of interest. Although Clark settled the litigation with the plaintiff, Clark’s right to select counsel has been invaded and therefore it is an aggrieved party to the circuit court’s order. The order of disqualification was not limited just to the current litigation, but precluded counsel from representing Clark in any matter against the defendants. Consequently, if Clark failed to challenge the order, the doctrine of collateral estoppel would require in any future litigation that Clark’s counsel be disqualified. 8. Clark’s counsel limiting its representation of the defendants to filing an answer and affirmative defenses was proper. MRPC 1.2(b). 9. The circuit court erred by finding that there was a conflict of interest. Clark’s counsel obtained Baergen and MTD’s consent to continue representing Clark after consultation in accordance with MRPC 1.9. Clark’s counsel fully explained the nature of the limited representation and that continuing representation required a lack of any conflict of interest with Clark. Baergen signed an agreement providing that if a conflict were discovered, counsel could continue to represent Clark. While the consent was given before the conflict was discovered, the agreement fully anticipated that event. Also, although counsel did not discuss any specific conflict of interest, Baergen was aware of MTD and its activities and his noncompete agreement with Clark when he executed the agreement approving Clark’s continued representation by counsel in the event of a conflict. Finally, there was no evidence that counsel used confidential information obtained during the limited representation to the disadvantage of Baergen and MTD because Clark’s cross-claim against them was filed several months after the limited representation ceased and after Baergen’s deposition testimony. Therefore, Baergen and MTD failed to meet their burden of proving grounds for disqualification. Affirmed in part, reversed in part, and remanded for further proceedings. Kelly, J., concurred in part and dissented with respect to the majority’s decision that the circuit court erred in granting summary disposition of the plaintiffs retaliation claim against Baergen and MTD. The plaintiffs fairly cursory complaint used the term “retaliation” merely to describe the sexual discrimination that violated the CRA. Although there is no requirement that a complaint contain a specific statutory reference to MCL 32.2701 in order to put the defendants on notice of a retaliation claim, the plaintiff failed to allege that she engaged in a protected activity or that there was a causal connection between that activity and the adverse employment action. With respect to MTD, the plaintiffs contact with the Clark executive was not protected activity. She never indicated that she was being sexually harassed, and generic nonsex-based allegations are insufficient to raise the specter of unlawful discrimination under the CRA. The plaintiff also failed to show that her participation in a protected activity was a significant factor in the adverse employment action. Baergen’s conduct, which had preceded the plaintiffs contact with the Clark executive and which had begun after the plaintiffs rejection of defendant Baergen’s sexual proposition, merely continued in a similar and like fashion after that contact. Thus, the evidence indicates that the adverse employment action was directly attributable to the rejection. In the context of employment discrimination, articles 2 and 7 of the CRA do not permit actions for retaliation against an individual. The Jager decision affects the application of article 7 of the CRA within the context of employment discrimination. The use of the term “person” in MCL 37.2701 must be viewed in light of its purpose in the CEA as a whole. Article 7 uses the term “person” because it protects people in pursuance of claims brought under the other articles of the CRA, i.e., against employers, places of accommodation, educational institutions, persons engaged in real estate transactions, etc. Therefore, the use of the term “person” in article 7 in relation to a claim brought under article 2, which prohibits employers from discriminating, must be construed to apply only to an employer. This conclusion is buttressed by the observation that, in the context of this case, a retaliation claim cannot exist independently of a discrimination claim brought under article 2. Because article 2 does not permit a sexual harassment claim against an individual, article 7 likewise cannot provide a cause of action for retaliation against an individual. Civil Rights - Civil Rights Act - Retaliation - Employer and Individual Liability. The antiretaliation provision of the Civil Rights Act defines the term “person” to include an individual; therefore, a plaintiff can bring a cause of action against her supervisor, individually, for retaliation for the plaintiffs opposition to a violation of the act, or for making a charge, filing a complaint, testifying, assisting, or participating in an investigation, proceeding, or hearing under the act (MCL 37.2701). Mazur, Morgan, Meyers & Kittel, PLLC (by Linda M. Galante and Courtney E. Morgan, Jr.), for Penny Rymal. Vercruysse Murray & Calzone, PC. (by Daniel J. Bernard and Susan Hartmus Hiser), for Herman Baergen and MTD Systems, Inc. Butzel Long, EC. (by Marcia L. Proctor) and Kienbaum, Opperwall, Hardy & Pelton, P.L.C. (by Elizabeth Hardy and Robert Bruce Brown), for Clark Products, Inc., and Clark Foodservice, Inc. Before: KELLY, PJ., and MURPHY and NEFF, JJ. MURPHY, J. In Docket No. 248124, plaintiff appeals as of right the trial court’s order granting summary disposition in favor of defendants Herman Baergen and MTD Systems, Inc., with respect to plaintiffs claims of sexual harassment and retaliation in the workplace brought pursuant to the Civil Rights Act (CRA), MCL 37.2101 et seq. In Docket No. 243795, defendants Clark Products, Inc., and Clark Foodservice, Inc., (hereinafter collectively referred to as Clark) appeal by leave granted an order disqualifying Clark’s counsel for a conflict of interest. Because there exists genuine issues of material fact in regard to all of plaintiffs claims against defendants Baergen and MTD, and because Baergen can be held individually liable solely for the retaliation claim in spite of this Court’s decision in Jager v Nationwide Truck Brokers, Inc, 252 Mich App 464; 652 NW2d 503 (2002), we affirm in part and reverse in part the grant of summary disposition in Docket No. 248124 and remand for further proceedings. Because there was a lack of evidence showing a conflict of interest or improper use of confidential information requiring disqualification, and because Baergen expressly consented to counsel’s continued participation should a conflict be discovered, we reverse the order disqualifying Clark’s counsel in Docket No. 243795. I. FACTUAL ALLEGATIONS and PROCEDURAL HISTORY A. PLAINTIFF’S COMPLAINT On July 26, 2001, plaintiff filed a two-count complaint against all defendants. The complaint alleged that plaintiff commenced her employment with Clark in 1983 as an accounts receivable manager. She later became an office manager, assistant division manager, acting division manager, and subsequently, in 1993, a sales manager. Baergen was an employee-supervisor of Clark having authority over plaintiff. During plaintiffs and Baergen’s tenure with Clark, they formed MTD Systems, which plaintiff refers to as her employer, along with Clark. MTD is in the business of picking up movies from distribution points and delivering the movies to various theaters. Plaintiff alleged that in October 1999, Baergen propositioned plaintiff to have a sexual relationship, and she declined. Shortly thereafter, Baergen asked plaintiff to sign a noncompete agreement that would reflect a promise not to engage in any business that was competitive with Clark. Plaintiff alleged that the request was an act of harassment and was made because of plaintiffs refusal to comply with Baergen’s sexual advances. Plaintiff did not sign the noncompete agreement. Further, plaintiff averred that, beginning in November 1999, Baergen started reassigning plaintiffs duties to other persons. These duties included creation of advertisements, approval of vacation requests, and assignment of new account leads to sales people. Additionally, plaintiff alleged that Baergen removed her as liaison with several customers, thereby interfering with sales commissions, questioned her about her work hours, and pressured plaintiff to relinquish her management position. Moreover, Baergen became verbally abusive and once became so enraged, because he thought plaintiff was on the phone too long, that he punched a wall in plaintiffs office, requiring him to seek medical attention. Plaintiff averred that Baergen started accusing her of having sexual relations with customers to obtain their business and that she spent her lunch hours having sex with various men. The complaint alleged that in January 2000, plaintiff demanded a sales review and a formal description of her job duties and responsibilities in response to a complaint that she was inadequately performing, but Baergen refused. It was asserted that plaintiff contacted a Clark executive about her ongoing problems with Baergen and that the executive promised to, but did not, meet with plaintiff. After this failed attempt by plaintiff to rectify the situation, Baergen refused to pay an expense voucher for plaintiff and removed her expense account entirely. Her duties were lowered to those of an administrator. Plaintiff additionally averred that the claimed reasons for these actions were that, on March 1, 2000, she had been demoted to a sales person. In July 2000, Baergen informed plaintiff that the sales manager job was given to a male. Plaintiff alleged that she left her employment on July 27, 2000, as she had been constructively discharged. We note that with respect to the alleged retaliatory actions, discriminatory practices, and other events, plaintiffs complaint does not distinguish whether the actions were in the context of her employment with Clark or MTD Systems. Count I of the complaint, which is fairly cursory, asserted a cause of action predicated on the CRA. The count provided, in relevant part: 22. Plaintiff was sexually harassed and retaliated against by defendants’ agent and employee, Defendant Baergen, throughout the course of her employment. 23. This sexual harassment and retaliation included, but is not limited to, unwelcome comments and conduct of an offensive and sexual nature directed at plaintiff, the creation of a hostile work environment, as described herein[,] and constructively terminating plaintiff s employment and withholding pay commissions due to her, based on her refusal to engage in a sexual relationship .... Count II of the complaint alleged violations of

CALABRESE v TENDERCARE OF MICHIGAN, INC Docket No. 243697. Submitted April 6, 2004, at Detroit. Decided June 3, 2004, at 9:05 A.M. Kimberly Calabrese brought an action in the Wayne Circuit Court against Tendercare of Michigan, Inc., and Craig Schuler, alleging, in part, wrongful discharge from employment and tortious interference with business relations. The plaintiff alleged that her employment as a supervisor had been terminated when she refused to fire other employees for legal unionizing activities. The defendants moved for summary disposition, alleging that the court lacked subject-matter jurisdiction because the claims were preempted by the National Labor Relations Act (nlra), 29 USC 151 et seq. The court, Warfield Moore, Jr., J, denied the defendants’ motion. The defendants appealed by leave granted. The Court of Appeals held: 1. The trial court erred in denying the defendants’ motion for summary disposition. The claims alleging wrongful discharge and tortious interference were preempted by the nlra. State causes of action are preempted by the nlra when they concern an activity that is actually or arguably protected or prohibited by the act. The plaintiffs claims should have been brought before the National Labor Relations Board because the plaintiff alleged unfair labor practices under 29 USC 158. 2. This case falls within the jurisdiction of the National Labor Relations Board. 3. The discharge of a supervisor is unlawful under the nlra when it interferes with the right of employees to exercise their rights under § 7 of the act. 4. The trial court erred in relying on Garavaglia v Centra, Inc, 211 Mich App 625 (1995), in ruling that the plaintiffs public policy claim was not preempted by the nlra. That decision applies only in those cases in which preemption is not raised or addressed. Reversed. 1. Labor Relations — National Labor Relations Act — Preemption. State regulations and causes of action are preempted by the National Labor Relations Act when they concern an activity that is actually or arguably protected or prohibited by the act; a state claim may survive if the conduct at issue is of only peripheral concern to the federal law or touches interests deeply rooted in local feeling and responsibility (29 USC 151 et seq.). 2. Labor Relations - National Labor Relations Act - National Labor Relations Board. The National Labor Relations Act authorizes the National Labor Relations Board to prevent any person from engaging in any unfair labor practices listed in section 158 of the act affecting commerce; the board has the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause and has the discretion to exercise its jurisdictional authority (29 USC 160[a], 29 USC 164[c]). 3. Labor Relations — National Labor Relations Act — Supervisors — Discharge of Supervisors. The discharge of a supervisor is unlawful under the National Labor Relations Act when the discharge interferes with the right of employees to exercise their rights under § 7 of the act, such as when the supervisor is discharged for refusing to commit unfair labor practices (29 USC 151 et seq.). Scott E. Combs and Katrina A. Murrel for the plaintiff. Keller Thoma, A Professional Corporation (by Terrence J. Miglio and Mark C. Knoth), for the defendants. Before: WILDER, EJ. and HOEKSTRA and KELLY, JJ. PER CURIAM. Plaintiff alleged that defendants wrongfully terminated her employment because she refused to fire employees for engaging in unionizing activities. Defendants appeal by leave granted the trial court’s partial denial of their motion for summary disposition, arguing that the National Labor Relations Act (NLRA) preempts plaintiffs claims and, therefore, the trial court lacks subject-matter jurisdiction. We reverse. 1. BASIC FACTS AND PROCEDURAL HISTORY Plaintiff was hired as an administrator at Wayne Total Living Center (WTLC), a nursing home facility operated by defendant Tendercare of Michigan, Inc. Defendant Craig Schuler was plaintiffs supervisor. Approximately four months into plaintiffs employment, Schuler met with plaintiff, showed her a list of nineteen employees, and advised her to fire them. According to plaintiff: [Schuler] wanted to meet to discuss this list that he had of the nineteen employees that were involved in the union activity and because the next day they were doing [informational] picketing in front of the buildings, he wanted these people terminated. He said it had to come in sections to take out so many per each segment basically, because you didn’t want to do them all at one time. The first person that had to go was Ethel Kitchen. Plaintiff immediately protested, stating that to terminate the employment of these employees for their participation in union organization efforts was unethical and illegal. Schuler responded that “it needed to be done.” One month later, because plaintiff had not fired anyone on the list, Schuler met with plaintiff and again stated that he wanted Kitchen fired. Plaintiff in turn reiterated that this could not be done. After a heated discussion, in which Schuler stated that plaintiff was no longer needed if she could not fire Kitchen, plaintiff pushed her keys across the desk, gathered her belongings, and left WTLC. Afterward, she sent a certified letter to Schuler, which read: “[Y]ou stated ‘you did not need me anymore.’ I am under the impression that you fired me with no documentation for reasons of performance.” Plaintiff received no response. Plaintiff subsequently filed a complaint against defendants alleging wrongful discharge, tortious interference with business relations, and intentional infliction of emotional distress. She specifically alleged that defendants terminated her employment because she refused to fire employees for legal unionizing activities. Defendants succeeded in having the case removed to the federal district court on the basis that the claims were predicated on federal law. Plaintiff then brought a motion in the federal district court seeking to have her claims remanded to state court on the basis that the claims arose solely under state law. The federal district court remanded the case to the Wayne Circuit Court on the basis of plaintiffs representation that the claims were based on Michigan law only and the court’s own determination that plaintiff claimed “that her termination was in violation of Michigan public policy.” After the remand, defendants moved for dismissal on the basis that the trial court lacked subject-matter jurisdiction because the NLRA preempted plaintiffs claims that defendants engaged in unfair labor practices. With regard to plaintiffs claims of wrongful discharge and tortious interference, the trial court denied defendants’ motion, ruling that the claims were not preempted by the NLRA. Defendants appealed this ruling by leave granted. II. STANDARD OF REVIEW Whether a court has subject-matter jurisdiction is a question of law that we review de novo. Travelers Ins Co v Detroit Edison Co, 465 Mich 185, 205; 631 NW2d 733 (2001). III. ANALYSIS A. PLAINTIFF’S CLAIMS ARE PREEMPTED BY THE NLRA The trial court erred in denying defendants’ motion for summary disposition under MCR 2.116(C)(4) because plaintiffs claims of wrongful discharge and tortious interference are preempted by the NLRA under the preemption doctrine set forth in San Diego Building Trades Council v Garmon, 359 US 236, 245; 79 S Ct 773; 3 L Ed 2d 775 (1959). Justice LEVIN explained the Garmon doctrine in his opinion in Bullock v Automobile Club of Michigan, 432 Mich 472, 492-493; 444 NW2d 114 (1989), stating: The United States Supreme Court has developed two doctrines for determining whether a state claim is preempted by the NLRA. One doctrine, set forth in San Diego Building Trades Council v Garmon, 359 US 236, 245; 79 S Ct 773; 3 L Ed 2d 775 (1959), established that state regulations and causes of action are preempted when they concern an activity that is actually or arguably protected or prohibited by the NLRA.[] The state claim may survive, however, if the conduct at issue “is of only peripheral concern to the federal law or touches interests so deeply rooted in local feeling and responsibility....” The court balances the state’s interest in regulating or promoting a remedy for the conduct against the intrusion in the NLRB’s [National Labor Relations Board’s] jurisdiction and the risk that the state’s determination will be inconsistent with provisions of the NLRA. After deciding Garmon, the United States Supreme Court further articulated the preemption doctrine: The critical inquiry, therefore, is not whether the State is enforcing a law relating specifically to labor relations or one of general application but whether the controversy presented to the state court is identical to... or different from ... that which could have been, but was not, presented to the Labor Board. For it is only in the former situation that a state court’s exercise of jurisdiction necessarily involves a risk of interference with the unfair labor practice jurisdiction of the Board which the arguably prohibited branch of the Garmon doctrine was designed to avoid. The primary-jurisdiction rationale unquestionably requires that when the same controversy may be presented to the state court or the NLRB, it must be presented to the Board. [Sears, Roebuck & Co v San Diego Co Dist Council of Carpenters, 436 US 180, 197, 202; 98 S Ct 1745; 56 L Ed 2d 209 (1978).] More recently, this Court held: “Subject to limited exceptions, when an activity is ‘arguably’ subject to the provisions of the nlra, states must defer to the exclusive competence of the National Labor Relations Board. [Int’l Longshoremen’s Ass’n v Davis, 476 US 380, 381, 394; 106 S Ct 1904; 90 L Ed 2d 389 (1986)]; San Diego Building Trades Council v Garmon, 359 US 236, 245; 79 S Ct 773; 3 L Ed 2d 775 (1959). When a party asserts that state proceedings are preempted because the conduct at issue is within the purview of the NLRA, the claim represents a challenge to the subject-matter jurisdiction of the state court or tribunal; it is ‘a claim that the state court has no power to adjudicate the subject matter of the case.’ Davis at 393.” [American Federation of State, Co & Muni Employees v Dep’t of Mental Health, 215 Mich App 1, 5; 545 NW2d 363 (1996), quoting Michigan Council 25, AFSCME v Louisiana Homes, Inc (On Remand), 203 Mich App 213, 216-217; 511 NW2d 696 (1994).] Here, plaintiff alleged that defendants terminated her employment because she refused to fire employees for engaging in unionizing activities. The pertinent portions of the NLRA, 29 USC 158, provide: It shall be an unfair labor practice for an employer— (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title. (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization .... 29 USC 157 provides: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title. In a case very similar to this one, Sitek v Forest City Enterprises, Inc, 587 F Supp 1381 (ED Mich, 1984), the plaintiff alleged that the defendant wrongfully discharged him from his supervisory position because he refused to discourage unionizing activities. The court determined that because the plaintiff claimed that the “defendant discharged him because he refused to engage in union busting,” the NLRB had jurisdiction over the claim pursuant to 29 USC 158. Id. at 1385. Similarly, plaintiff here claimed that defendants fired her for refusing to discourage unionizing activities. Because this is an unfair labor practice under 29 USC 158, plaintiffs claims could have been brought before the NLRB. According to the Garmon doctrine, the NLRA preempts these claims. B. THE NLRB HAS JURISDICTION Nevertheless, plaintiff contends that the NLRB’s jurisdictional requirements are not met. We disagree. The NLRA authorizes the NLRB to prevent “any person from engaging in any unfair labor practice (listed in section 158 of this title) affecting commerce.” 29 USC 160(a). “Commerce” includes interstate and foreign commerce. 29 USC 152(6). As defined by 29 USC 152(7), [t]he term “affecting commerce” means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce. “Congress intended to and did vest in the Board the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause.” Nat’l Labor Relations Bd v Reliance Fuel Oil Corp, 371 US 224, 226; 83 S Ct 312; 9 L Ed 2d 279 (1963). While the NLRB has the broadest jurisdiction permitted under the Commerce Clause, it has adopted jurisdictional standards or guidelines expressed as a dollar amount of business volume to facilitate the efficient use of its resources in monitoring interstate commerce. Nat’l Labor Relations Bd v Pease Oil Co, 279 F2d 135, 137 (CA 2, 1960). But these self-imposed standards do not limit the jurisdiction conferred by Congress. Nat’l Labor Relations Bd v W B Jones Lumber Co, 245 F2d 388, 391 (CA 9, 1957). As demonstrated in Nat’l Labor Relations Bd v Evangelical Lutheran Good Samaritan Society, 477 F2d 297, 299 (CA 9, 1973), the Board ... extended] jurisdiction to proprietary hospitals with gross revenues of $250,000 per year. Butte Medical Properties, etc., 168 NLRB 266 (1967); and on the same date, exercised jurisdiction over the nursing home industry, if such homes were operated for a profit, and had a gross income of $100,000 per year. University Nursing Home, Inc., 168 NLRB 263 (1967). Finally, the Board extended its jurisdiction to non-profit nursing homes. Drexel Home, Inc., 182 NLRB 1045 (1970). Accordingly, this case falls within the jurisdiction of the NLRB. Although defendants concede that the WTLC is not directly engaged in interstate commerce, plaintiffs complaint clearly alleges that defendants engaged in unfair labor practices, which indirectly affect interstate commerce. Also, while defendants’ assertions about the WTLC’s annual gross revenues and Tendercare’s breadth of business are not substantiated by the record, this factual matter is not essential to our resolution of this jurisdictional issue. It is well-settled that the NLRB has the discretion to exercise its jurisdictional authority. See 29 USC 164(c). As defendants correctly state, the issue whether the NLRB has jurisdiction is distinct from the issue whether the NLRB will assert its jurisdiction. Thus, it is not necessary to resolve the factual issue regarding whether defendants satisfy the NLRB’s discretionary standard for exercising jurisdiction. Because plaintiffs allegations of defendants’ unfair labor practice actually or arguably fall within the NLRB’s jurisdiction, we conclude that plaintiffs claims are preempted under Garmon. C. DISCHARGE OF A SUPERVISOR MAY VIOLATE THE NLRA Plaintiff also incorrectly contends that the NLRA is not applicable to this case because it does not apply to supervisors’ actions. Although 29 USC 158 is not expressly applicable to supervisors, in Pontiac Osteopathic Hosp, 284 NLRB 442 (1987), the NLRB held: It is clear that protection under the Act is afforded to employees, not supervisors. Consequently, the discharge of a supervisor violates the Act only where it interferes with the exercise of employees’ Section 7 rights. Stated differently in Parker-Robb Chevrolet, Inc, 262 NLRB 402, 404 (1982), the NLRB said: In final analysis, the instant case, and indeed all supervisory discharge cases, may be resolved by this analysis: The discharge of supervisors is unlawful when it interferes with the right of employees to exercise their rights under Section 7 of the Act, as when they give testimony adverse to their employers’ interest or when they refuse to commit unfair labor practices. Plaintiffs claims come within the scope of the NLRA because she alleged that her employment was terminated for refusing to interfere with employees’ rights under 29 USC 157. See also Sitek, supra. D. GARAVAGLIA IS NOT CONTROLLING We agree with defendants that the trial court erred when it relied on Garavaglia v Centra, Inc, 211 Mich App 625, 629, 633; 536 NW2d 805 (1995), in ruling that plaintiffs public policy claim was not preempted by the NLRA. In Garavaglia, the plaintiff alleged that his employer breached public policy by acts that violated the NLRA. Id. at 629. The defendants argued that the trial court erred in denying their motion for a directed verdict because Michigan does not recognize an implied cause of action for breach of public policy based on an employer’s violation of federal law. Id. This Court determined that the plaintiffs claim “regarding a breach of public policy may be premised on the alleged violation of a federal statute.” Id. at 631. We read Garavaglia as limited to its facts, which are distinct from the facts in this case. In Garavaglia, the defendants asserted that there was no state cause of action based on the NLRA. They did not argue, as defendants do here, that the plaintiffs claim was preempted by the NLRA. In Garavaglia, had the defendants raised or the courts addressed the preemption issue, it is clear the NLRA would have been found to preempt the plaintiffs claim. Therefore, the Garavaglia decision applies to only those cases in which preemption is not raised or addressed. In conclusion, the trial court erred in denying defendants’ motion for summary disposition under MCR 2.116(C)(4), because plaintiffs claims are preempted by the NLRA under Garmon and are within the jurisdiction of the NLRB. Because our resolution of this issue disposes of the appeal, we need not address the other issues raised. Reversed. 29 USC 151 et seq. The trial court dismissed plaintiffs claim alleging intentional infliction of emotional distress on other grounds; this decision is not challenged on appeal. The other doctrine, known as the Machinists doctrine because it originated in Machinists v Wisconsin Employment Relations Comm, 427 US 132; 96 S Ct 2548; 49 L Ed 2d 396 (1976), is inapplicable here because it deals with activity that is not arguably protected or prohibited under the NLRA. Bullock, supra at 493. We note that according to defendants, the NLRB has already asserted its jurisdiction over alleged unfair labor practices at the facility.

CYNTHIA SMITH-PRICE, Plaintiff v. CHARTER BEHAVIORAL HEALTH SYSTEMS, d/b/a CHARTER HOSPITAL, and JAY LAWS, joint and severally Defendants No. COA99-1523 (Filed 18 May 2004) 1. Appeal and Error— appealability — bankruptcy court action — mootness Defendant employer’s motion to dismiss plaintiff employee’s appeal in a negligent infliction of emotional distress, intentional infliction of emotional distress, defamation, retaliation for reporting illegal, unprofessional, and immoral conduct, negligent supervision, and negligent retention of employees case is allowed because the order of the bankruptcy court disallowing plaintiff’s claims against defendant has rendered moot the issue of whether defendant was entitled to summary judgment dismissing plaintiff’s claims. 2. Appeal and Error— preservation of issues — assignments of error Although defendant contends that plaintiff’s appeal should be dismissed based on plaintiff’s alleged failure to follow N.C. R. App. R Rule 10(c) which requires each assignment of error to state plainly, concisely, and without argumentation the legal basis upon which error is assigned, the notice of appeal sufficed as an assignment of error directed to the order of summary judgment. 3. Emotional Distress— negligent infliction — duty of care The trial court did not err by granting defendant co-worker’s motion for summary judgment on plaintiff’s claim for negligent infliction of emotional distress based on defendant co-worker communicating false and misleading information regarding plaintiff’s employment behavior and job performance to defendant company, because plaintiff failed to present evidence that defendant co-worker owed her a duty of care or that he breached such a duty. 4. Emotional Distress— intentional infliction — extreme and outrageous conduct required The trial court did not err by granting defendant co-worker’s motion for summary judgment on plaintiffs claim for intentional infliction of emotional distress because considered in the light most favorable to plaintiff, the evidence does not show extreme and outrageous conduct on defendant’s part. 5. Libel and Slander— slander — good faith The trial court erred by granting defendant co-worker’s motion for summary judgment on plaintiff’s slander claim, because there are genuine issues of material fact as to whether defendant acted in good faith in accusing plaintiff of sexual harassment. Appeal by plaintiff from judgment entered 20 September 1999 by Judge Russell G. Walker, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 17 March 2004. Gray, Newell, Johnson & Blackmon, LLP, by Angela Newell Gray, for plaintiff-appellant. Smith Moore LLP, by Julie G. Theall, for defendant-appellee Charter Behavioral Health Systems. Haynsworth Baldwin Johnson & Greaves LLC, by Lucretia D. Guia, for defendant-appellee Jay Laws. MARTIN, Chief Judge. In her amended complaint in this action against defendants Charter Behavioral Health Systems (“Charter”), Jean Hubbard (“Hubbard”), Charter’s Director of Nursing, and Jay Laws (“Laws”), a mental health specialist at Charter, plaintiff alleges claims for negligent infliction of emotional distress, intentional infliction of emotional distress, defamation and retaliation for reporting illegal, unprofessional and immoral conduct. Plaintiff also alleged claims against defendant Charter for negligent supervision and negligent retention of three of its employees. All defendants filed answers in which they denied the material allegations of plaintiff’s amended complaint and asserted affirmative defenses. Plaintiff subsequently dismissed the action against Hubbard with prejudice, and defendants Charter and Laws moved for summary judgment. Materials before the trial court at the hearing on defendants’ motions for summary judgment disclose that plaintiff, a registered nurse, and Laws worked in the children’s unit at Charter’s Greensboro facility. Although Laws was under the direct supervision of plaintiff, she had no administrative authority. As early as November 1997, plaintiff complained about Laws’ tardiness, abuse of phone privileges, failure to follow policy, insubordination and his inappropriate sexual relationship with a co-worker. She also expressed dissatisfaction with Charter’s under-staffing, but Charter took no corrective action. On 5 February 1998, Laws arrived late at work, which, according to plaintiff, was not uncommon. After plaintiff confronted Laws about his tardiness, excessive phone calls, taking “off orders” and his attitude at work, he angrily walked away from plaintiff. Laws returned a few minutes later, claiming taking “off orders” was not his job, and threw a packet of papers containing a job description at plaintiff, hitting her in the chest. Plaintiff testified in her deposition that the impact caused her little physical pain, but the incident was emotionally traumatic. After this episode, plaintiff enlisted the help of the assistant director of nursing, Kathy Williams, who agreed that defendant Laws should be sent home for the day for insubordination. At the request of Williams, plaintiff prepared a written statement of the events to submit to Hubbard the following day. Although Laws was not scheduled to work the following day, he came into Charter and submitted a report claiming plaintiff had sexually harassed him. An investigation of the allegation was promptly initiated by Charter. Some employees corroborated Laws’ complaints while others expressed no knowledge of inappropriate behavior by plaintiff. However, because of the allegations, plaintiff was moved to the adult unit of the hospital while Laws remained on the children’s unit. On or about 10 February 1998 plaintiff took a medical leave due to the stress caused by the accusations. The trial court granted summary judgment in favor of both defendants and plaintiff gave notice of appeal. On 16 February 2000, Charter filed for relief under Chapter 11 of the United States Bankruptcy Code.. By order dated 3 March 2000, this Court stayed all further proceedings in this case until notified that the automatic stay provided by 11 U.S.C. § 362 had been lifted. Such notification was received by this Court on 16 July 2003. Plaintiff’s Appeal as to Defendant Charter On 22 October 2001, the United States Bankruptcy Court for the District of Delaware disallowed plaintiffs claims against Charter in full. .Charter has moved to dismiss plaintiff’s appeal of the order granting summary judgment in its favor on the grounds that plaintiff’s claim against Charter has been disallowed by the Bankruptcy Court, rendering the issues between plaintiff and Charter in this appeal moot. Whenever, during the course of litigation it develops that the relief sought has been granted or that the questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain or proceed with a cause merely to determine abstract propositions of law. In re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912 (1978), cert. denied, 442 U.S. 929, 61 L. Ed. 2d 297 (1979). “An appeal which presents a moot question should be dismissed.” Dickerson Carolina, Inc. v. Harrelson, 114 N.C. App. 693, 698, 443 S.E.2d 127, 131 (1994). The order of the Bankruptcy Court disallowing plaintiff’s claim against Charter has rendered moot the issue of whether Charter was entitled to summary judgment dismissing plaintiff’s claims. Charter’s motion to dismiss plaintiff’s appeal is, therefore, allowed. Plaintiff’s Appeal as to Defendant Laws I. “[T]he standard of review on appeal from summary judgment is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law.” Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998). Summary judgment is appropriate when “viewed in the light most favorable to the non-movant,” Id., “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003). The moving party must establish the lack of any triable issue of material fact “by proving that an essential element of the opposing party’s claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim.” DeWitt v. Eveready Battery Co., 355 N.C. 672, 681-82, 565 S.E.2d 140, 146 (2002) (citation omitted). The burden then shifts to the nonmoving party to “produce a forecast of evidence demonstrating that the [nonmoving party] will be able to make out at least a prima facie case at trial.” Id. (citation omitted). Although summary judgment is seldom granted in negligence cases, it may be granted where the evidence shows “a lack of any negligence on the part of the defendant.” Surrette v. Duke Power Co., 78 N.C. App. 647, 650, 338 S.E.2d 129, 131 (1986). II. Initially, defendant Laws argues that plaintiffs appeal should be dismissed because plaintiff has not followed the North Carolina Rules of Appellate Procedure which require each assignment of error to “state plainly, concisely and without argumentation the legal basis upon which error is assigned.” N. C. R. App. P. Rule 10(c). “An assignment of error is sufficient if it directs the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references.” Id. Each of plaintiff’s assignments of error state, “The trial court erred by granting the defendants’ motion for summary judgment as to plaintiff’s claim of . . . .” An appeal from an order granting summary judgment raises only the issues of whether, on the face of the record, there is any genuine issue of material fact, and whether the prevailing party is entitled to a judgment as a matter of law. Therefore, the notice of appeal suffices as an assignment of error directed to the order of summary judgment. Ellis v. Williams, 319 N.C. 413, 415, 355 S.E.2d 479, 481 (1987); Vernon, Vernon, Wooten, Brown & Andrews, P.A. v. Miller, 73 N.C. App. 295, 297, 326 S.E.2d 316, 319 (1985). Plaintiff’s assignments of error are clearly sufficient. III. Plaintiff contends the trial court erred by granting defendant Laws’ motion for summary judgment as to her claim for negligent infliction of emotional distress. The negligent act upon which plaintiff’s claim is grounded is that Laws “communicat[ed] false and misleading information regarding the Plaintiff’s employment behavior and job performance to the defendant company.” To establish a claim for negligent infliction of emotional distress, the plaintiff must prove that “(1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress . . . , and (3) the conduct did in fact cause the plaintiff severe emotional distress.” Johnson v. Ruark Obstetrics, 327 N.C. 283, 304, 395 S.E.2d 85, 97, reh’g denied, 327 N.C. 644, 399 S.E.2d 133 (1990). “In order to establish actionable negligence, plaintiff must show (1) that there has been a failure to exercise proper care in the performance of some legal duty which defendant owed to plaintiff under the circumstances in which they were placed; and (2) that such negligent breach of duty was a proximate cause of the injury.” Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 232, 311 S.E.2d 559, 564 (1984). In this case, plaintiff presented no evidence to establish that defendant Laws owed her a duty of care or that he breached such a duty. Therefore, an essential element of plaintiff’s claim for negligent infliction of emotional distress is unsupported by the evidence and summary judgment was properly allowed. See Guthrie v. Conroy, 152 N.C. App. 15, 25, 567 S.E.2d 403, 411 (2002). IV. Plaintiff next contends the trial court erred by granting defendant Laws’ motion for summary judgment as to her claim for intentional infliction of emotional distress. The elements for the tort of intentional infliction of emotional distress are: “1) extreme and outrageous conduct by the defendant 2) which is intended to cause and does in fact cause 3) severe emotional distress.” Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992) (citation omitted). Conduct is extreme and outrageous when it is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Briggs v. Rosenthal, 73 N.C. App. 672, 677, 327 S.E.2d 308, 311 (citation omitted), cert. denied, 314 N.C. 114, 332 S.E.2d 479 (1985). The behavior must be more than “mere insults, indignities, threats, . . . and . . . plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate or unkind.” Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 493, 340 S.E.2d 116, 123 (citation omitted), disc. review denied, 317 N.C. 334, 346 S.E.2d 140 (1986). The determination of whether the alleged conduct is considered extreme and outrageous is a question of law for the trial judge, however, the jury must determine whether the conduct is “sufficiently extreme and outrageous to result in liability.” Id. at 490-91, 340 S.E.2d at 121. The evidence, considered in the light most favorable to plaintiff, does not, as a matter of law, show extreme and outrageous conduct on Laws’ part. Plaintiff asserts that prior to 5 February 1998, defendant Laws failed to follow policies and procedures, took excessive personal phone calls, and failed to perform certain tasks. On 5 February 1998, when plaintiff confronted Laws, he threatened to make accusations against her, yelled at her, walked off his assignment and then, when he returned, threw a package of papers at plaintiff. The next day he filed a complaint of sexual harassment against plaintiff. Although defendant’s behavior was undeniably churlish and ill-mannered, it does not rise to the level of the extreme and outrageous conduct which is required to sustain a claim for intentional infliction of emotional distress. See Hogan, 79 N.C. App. at 490, 340 S.E.2d at 121 (extreme and outrageous behavior found where defendant made sexually suggestive remarks and physical insinuations to plaintiff and when she refused his advances he screamed profane names at her, threatened her with bodily injury and slammed a knife down on the table in front of her); Watson v. Dixon, 130 N.C. App. 47, 53, 502 S.E.2d 15, 20 (1998), aff'd, 352 N.C. 343, 532 S.E.2d 175 (2000) (extreme and outrageous behavior found where defendant frightened and humiliated plaintiff with cruel practical jokes, made obscene comments to her, made indecent physical suggestions and threatened her personal safety); McLain v. Taco Bell Corp., 137 N.C. App. 179, 527 S.E.2d 712, disc. review denied, 352 N.C. 357, 544 S.E.2d 563 (2000) (extreme and outrageous behavior found where defendant, after physically assaulting plaintiff, began masturbating, and ejaculated on plaintiff); compare with Wilson v. Bellamy, 105 N.C. App. 446, 468, 414 S.E.2d 347, 359, disc. review denied, 331 N.C. 558, 418 S.E.2d 668 (1992) (extreme and outrageous behavior was not found where defendant engaged in kissing and heavy petting with an intoxicated plaintiff while others were present); Hogan, 79 N.C. App. at 493, 340 S.E.2d at 122-23 (extreme and outrageous behavior was not found where defendant yelled and threw menus at plaintiff and interfered with her supervision of employees). Because plaintiff has not presented evidence sufficient to support a finding of the element of extreme and outrageous conduct necessary to sustain a claim for intentional infliction of emotional distress, the trial court properly granted defendant Laws’ motion for summary judgment as to that claim. V. In her final argument, plaintiff contends that the trial court erred by granting defendant Laws’ motion for summary judgment as to her claim for defamation. To prevail on a claim of defamation, “a plaintiff must allege and prove that the defendant made false, defamatory statements of or concerning the plaintiff, which were published to a third person, causing injury to the plaintiff’s reputation.” Tyson v. L’Eggs Products, Inc., 84 N.C. App. 1, 10-11, 351 S.E.2d 834, 840 (1987). “In North Carolina, the term defamation applies to the two distinct torts of libel and slander.” Boyce & Isley, PLLC v. Cooper, 153 N.C. App. 25, 29, 568 S.E.2d 893, 898 (2002). Slander is defined as “the speaking of base or defamatory words which tend to prejudice another in his reputation, office, trade, business, or means of livelihood.” Black’s Law Dictionary, 1559 (4th Ed. 1968). In this case, plaintiff argues that defendant Laws slandered her by making accusations that she had sexually harassed him. “However, even if it is determined that a statement is slanderous, the law recognizes certain communications as privileged.” Long v. Vertical Technologies, 113 N.C. App. 598, 601, 439 S.E.2d 797, 800 (1994). “The essential elements for the qualified privilege to exist are good faith, an interest to be unheld, a statement limited in its scope to this purpose, a proper occasion and publication in a proper manner and the proper parties only.” Id. at 602, 439 S.E.2d at 800. “Additionally, a qualified privilege may be lost by proof of actual malice on the part of the defendant.” Id. There is conflicting evidence in the record as to whether defendant’s allegations were true. Laws testified that plaintiff sexually harassed him by rubbing his head and telling him his head was “sexy,” hugging him inappropriately, making explicit sexual comments about his penis, and by pulling her clothing aside so as to expose her bra and thong. Hubbard testified in her deposition that although she “initially was not sure [Laws] was telling the truth,” she felt like “there was something going on” even though she could not substantiate the accusations. However, in her deposition, plaintiff denied all of Laws’ accusations. Therefore, there is a genuine issue of material fact as to the truth of Laws’ accusations. Moreover, although Laws had a legitimate interest in reporting any incidents of improper sexual advances or conduct to plaintiff’s supervisor, there is evidence which would support a finding that he did not act in good faith, so as to be entitled to a qualified privilege. There was evidence that Laws filed his sexual harassment claim the morning after he was sent home for insubordination, having never before mentioned any alleged sexual harassment on plaintiff’s part. There was also evidence that during the 5 February 1998 incident, Laws threatened to tell Charter’s administration that plaintiff was having a relationship with another employee, William Bynum. Therefore, there are genuine issues of fact as to whether defendant Laws acted in good faith in accusing plaintiff of sexual harassment and the trial court should not have granted summary judgment as to her claim for defamation. Affirmed in part, reversed in part and remanded. Judges HUDSON and GEER concur.

TURNER O. WILEY, Plaintiff v. UNITED PARCEL SERVICE, INC., Defendant No. COA03-516 (Filed 4 May 2004) Employer and Employee— employment discrimination — retaliatory action — judicial estoppel The trial court did not err by granting summary judgment in favor of defendant employer in an employment discrimination action based on alleged retaliation for filing a workers’ compensation claim, because: (1) plaintiff employee cannot establish that defendant’s failure to return plaintiff to work constituted an adverse employment action nor can plaintiff demonstrate that the alleged retaliatory action was taken based on the fact that he exercised his workers’ compensation rights; (2) defendant’s failure to return plaintiff to work as a fueler was the result of his physicians’ recommendations and plaintiff’s own statements; (3) although plaintiff pointed to three other positions that he believes that he could do, he failed to offer any evidence that any one of the positions currently exists, is vacant, and is within his physical capabilities without modification; (4) unlike the Americans with Disabilities Act under 42 U.S.C. §§ 12101 to -12213, the Retaliatory Employment Discrimination Act (REDA) under N.C.G.S. §§ 95-240 to -245 does not require an employer to make an accommodation for an employee; (5) REDA does not prohibit all discharges of employees who are involved in a workers’ compensation claim, but only prohibits those discharges made because the employee exercises his compensation rights; (6) plaintiff offered no evidence showing that defendant had a retaliatory motive, he never discussed his workers’ compensation claim with anyone at the company, and he admits that no one at the company suggested that he should not file a workers’ compensation claim; (7) defendant’s attempts to identify a position for plaintiff that met all of his medical restrictions demonstrates a lack of retaliatory intent, and plaintiff has offered no circumstantial evidence otherwise; (8) judicial estoppel is inapplicable when defendant’s position in the arbitration case was consistent with its position in the present case, and the record does not reflect defendant’s position in plaintiff’s claim before the Employment Security Commission for unemployment benefits; and (9) although findings of fact and conclusions of law are not necessary in an order determining a motion for summary judgment, such findings and conclusions do not render a summary judgment void or voidable and may be helpful if the facts are not at issue and support the judgment as they did in this case. Appeal by plaintiff from judgment entered 17 March 2003 by Judge Peter M. McHugh in Guilford County Superior Court. Heard in the Court of Appeals 17 March 2004. Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner, for plaintiff-appellant. Alston & Bird LLP, by Brian D. Edwards and Meredith S. Jeffries, for defendant-appellee. MARTIN, Chief Judge. On 6 October 2000, plaintiff filed an employment discrimination complaint with the North Carolina Department of Labor alleging that defendant United Parcel Service, Inc. (UPS) had discriminated against him in retaliation for his having filed a workers’ compensation claim. After receiving a right to sue letter in December 2000, plaintiff filed this action, seeking money damages and injunctive relief, pursuant to the North Carolina Retaliatory Employment Discrimination Act (REDA). N.C. Gen. Stat. §§ 95-240 to -245 (2003). Plaintiff alleged that defendant had violated N.C. Gen. Stat. § 95-241(a)(la) by refusing to return him to work as a retaliatory action for filing a workers’ compensation claim. Defendant filed an answer, denying plaintiff’s allegations, and subsequently moved for summary judgment. The materials before the trial court disclose that plaintiff, who had been an employee of UPS since 1975, suffered a seizure while driving a UPS package car in March 1985. When plaintiff returned to work, he was unable to operate a commercial vehicle pursuant to UPS and federal regulations, 49 C.F.R. § 391.41, due to his use of seizure control medication. In order to accommodate his medical restrictions, UPS created a full time position for him by combining part time positions in the car wash and package handling areas of the facility. Plaintiff subsequently suffered two back strains and an injury to his shoulder. Despite plaintiff’s medical restrictions due to his seizures, his back and shoulder injuries, and his medical need to use the restroom frequently, UPS accommodated plaintiff in non-driving positions from 1985 until 1997. UPS terminated plaintiff in April 1997, but rehired him in February 1999. In his new position as a car-wash fueler, plaintiff pumped diesel fuel into UPS vehicles and logged the information. On 30 August 2000, while fueling UPS tractor-trailers, plaintiff allegedly suffered another seizure which caused a fuel spill. Although plaintiffs personal physician, Dr. Edward D. Hill, Jr., released him to return to work that same day, UPS required a company-approved doctor to examine him before he could return. On 8 September 2000, Dr. George Whittenburg, the company-approved physician, examined plaintiff and determined he should not be allowed to work at heights, with hazardous materials or machinery, or in water. In addition, Dr. Whittenburg limited plaintiff to lifting objects less than thirty pounds. Under the Collective Bargaining Agreement provision between UPS and the union to which plaintiff belonged, in cases where a dispute arises between the company’s doctor and an employee’s doctor, a third doctor, whose opinion is binding upon all parties, is selected to evaluate the employee. Dr. Carlo P. Yuson examined plaintiff on 4 October 2000 and concluded that plaintiff should not be allowed to handle hazardous material, to work at heights, to work at extreme temperatures or to drive. On 20 November 2000, Dr. Hill, plaintiff’s personal physician, reversed his earlier decision and concluded that plaintiff could not return to work where he was “exposed to noxious diesel fuel, as it may have been a precipitant” for his seizures. On 10 September 2000, plaintiff filed a workers’ compensation claim, which he amended on 8 November 2000, alleging that the exposure to diesel fuel fumes was a significant contributing factor to the onset of his seizure on 30 August 2000. He also claimed that the stress of his work since February 1999 “activated and accelerated the seizure he experienced.” After considering the restrictions placed upon plaintiff by the physicians, UPS determined that plaintiff could not return to work in his job as a fueler because the job could not be performed without working with diesel fuel, a hazardous material. Robert Kociolek (Kociolek), UPS’s District Human Resources Manager of the West Carolina District, tried to identify a position for plaintiff that would accommodate his medical restrictions. Kociolek considered positions in the feeder division but determined that such positions required driving and/or handling of hazardous materials. He also considered positions as a car washer, operations clerk and package handler, but such positions were either not available or they required the ability to lift packages in excess of thirty pounds. Kociolek ruled out a position as a small sorter because, among other reasons, plaintiff had previously informed UPS he was unable to work in that area due to the lack of close restroom facilities. In December 2000, Kociolek, having been unable to identify a position for plaintiff, sent plaintiff a letter informing him of this fact and asking him if there were any accommodations that could be made that would enable him to return to work. Plaintiff did not respond. Since UPS has been unable to identify a position meeting plaintiffs needs, plaintiff has not returned to work since August 2000. The trial court granted defendant’s motion for summary judgment. Plaintiff appeals. Plaintiff argues that the trial court erred in granting summary judgment because there was a genuine issue of material fact in dispute. Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003). The evidence must be viewed in the light most favorable to the non-moving party. Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998). The North Carolina Retaliatory Employment Discrimination Act (REDA) prohibits discrimination or retaliation against an employee for filing a worker’s compensation claim. N.C. Gen. Stat. § 95-241(a)(la) (2003). In order to state a claim under REDA, a plaintiff must show (1) that he exercised his rights as listed under N.C. Gen. Stat. § 95-241 (a), (2) that he suffered an adverse employment action, and (3) that the alleged retaliatory action was taken because the employee exercised his rights under N.C. Gen. Stat. § 95-241(a). Salter v. E & J Healthcare, Inc., 155 N.C. App. 685, 693, 575 S.E.2d 46, 51 (2003). An adverse action includes “the discharge, suspension, demotion, retaliatory relocation of an employee, or other adverse employment action taken against an employee in the terms, conditions, privileges, and benefits of employment.” N.C. Gen. Stat. § 95-240(2) (2003). If plaintiff presents a prima facie case of retaliatory discrimination, then the burden shifts to the defendant to show that he “would have taken the same unfavorable action in the absence of the protected activity of the employee.” N.C. Gen. Stat. § 95-241 (b) (2003). “Although evidence of retaliation in a case such as this one may often be completely circumstantial, the causal nexus between protected activity and retaliatory discharge must be something more than speculation.” Swain v. Elfland, 145 N.C. App. 383, 387, 550 S.E.2d 530, 534, cert. denied, 354 N.C. 228, 554 S.E.2d 832 (2001) (citation omitted). Plaintiff exercised his rights under the Workers’ Compensation Act by filing a claim alleging his exposure to fuel fumes and the stress of his work were significant factors in the onset of his seizure on 30 August 2000. However, plaintiff cannot establish that UPS’s failure to return him to work constituted an adverse employment action nor can he demonstrate that the alleged retaliatory action was taken because he exercised his workers’ compensation rights. The medical doctors that examined plaintiff after his alleged seizure concluded he should be restricted from working with hazardous materials such as diesel fuel. In addition, plaintiff’s workers’ compensation claim states that the “occupational disease was caused by . . . the exposure to the chemical fumes” in his work as a fueler. UPS’s failure to return plaintiff to work as a fueler was the result of his physicians’ recommendations and plaintiff’s own statements, not an adverse employment action. Although plaintiff has not cited any authority suggesting that a failure to return an employee to work in a position other than his own violates the REDA, we need not reach that issue. Plaintiff has pointed to three other positions that he believes that he could do, but has offered no evidence that any one of the positions currently exists, is vacant, and is within his physical capabilities without modification. Unlike the Americans with Disabilities Act, 42 U.S.C. § 12101 to -12213, the REDA does not require an employer to make an accommodation for an employee. If no position currently exists that plaintiff could perform, necessarily no adverse employment action has occurred. The REDA statute “does not prohibit all discharges of employees who are involved in a workers’ compensation claim, it only prohibits those discharges made because the employee exercises his compensation rights.” Johnson v. Trustees of Durham Tech. C Gmty. College, 139 N.C. App. 676, 682, 535 S.E.2d 357, 361 (2000) (citation omitted). Plaintiff offered no evidence showing that UPS had a retaliatory motive, he never discussed his workers’ compensation claim with anyone at UPS, and he admits that no one at UPS suggested that he should not file a workers’ compensation claim. Moreover, plaintiff has not been discharged or suspended; the only adverse employment action he cites is the failure to return him to work. UPS’s attempts to identify a position for plaintiff that met all of his medical restrictions demonstrates a lack of retaliatory intent and plaintiff has offered no circumstantial evidence otherwise. Plaintiff’s claim that the discharge was made because plaintiff exercised his right to file a workers’ compensation claim is simply unsupported by the evidence. Since plaintiff has not met his burden of showing a prima facie case, we are not required to address whether defendant would have taken the action in the absence of plaintiff’s workers’ compensation claim. Taken in the light most favorable to the plaintiff, we find there is no genuine issue of material fact as to whether defendant took retaliatory action against plaintiff because he filed a workers’ compensation claim. Plaintiff argues that the doctrine of judicial estoppel, which precludes a party from making a factual assertion on one position when it had successfully argued the opposite position in a previous proceeding, Whitacre P’ship v. Biosignia, Inc., 358 N.C. 1, 28, 591 S.E.2d 870, 888 (2004), should apply in this case. In Whitacre P’ship, the North Carolina Supreme Court adopted the test for judicial estoppel set forth by the United States Supreme Court in New Hampshire v. Maine, 532 U.S. 742, 149 L. Ed. 2d 968, reh’g denied, 533 U.S. 968, 150 L. Ed. 2d 793 (2001). Id. While noting that “the circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle,” Id. (citation omitted), the Court identified three factors used to determine if the doctrine should apply. Id. The first factor, and the only factor that is an essential element which must be present for judicial estoppel to apply, id. at 28 n.7, 591 S.E.2d at 888 n.7, is that a “party’s subsequent position ‘must be clearly inconsistent with its earlier position.’ ” Id. at 29, 591 S.E.2d at 888 (internal citations omitted). Second, the court should “inquire whether the party has succeeded in persuading a court to accept that party’s earlier position.” Id. at 29, 591 S.E.2d at 889. Third, the court should inquire “whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Id. (citation omitted). Judicial estoppel is an “equitable doctrine invoked by a court at its discretion.” Id. (citation omitted). In the present case, UPS asserted that the medical restrictions imposed by numerous physicians prevented plaintiff from returning to work. In 1999, plaintiff filed a grievance with Teamsters Local Union 391 asserting he was wrongfully terminated from employment with UPS. In arbitration, UPS contended that plaintiffs medical restrictions, specifically his need to urinate up to twenty times in a four hour period, limited his employment options. UPS’s position in the arbitration case, that medical restrictions prevented plaintiffs return to work, was consistent with its position in the present case making judicial estoppel inapplicable. In April 2001, plaintiff filed for unemployment benefits. The record does not reflect UPS’s position in plaintiff’s claim before the Employment Security Commission and UPS contends that it took no position in the adjudication. Since there is no evidence that UPS’s position was inconsistent with its position in the previous claim, judicial estoppel cannot apply. Plaintiff also asserts that the trial court erred when it made findings of fact in the order granting summary judgment. Although “ [findings of fact and conclusions of law are not necessary in an order determining a motion for summary judgment,” Bland v. Branch Banking & Trust Co., 143 N.C. App. 282, 285, 547 S.E.2d 62, 64-65 (2001), “such findings and conclusions do not render a summary judgment void or voidable and may be helpful, if the facts are not at issue and support the judgment.” Id. Here, the order includes an introductory section which recognizes that an “entry of summary judgment presupposes that there are no issues of material fact; and that findings of fact are not required.” The order explicitly states that the summarized findings of fact are not at issue and support the court’s conclusions of law and the entry of judgment. After careful review, we conclude the findings of fact are not in dispute and support the conclusions of law. Therefore, this assignment of error is overruled. Affirmed. Judges LEVINSON and GEER concur.

MANZO v PETRELLA AND PETRELLA & ASSOCIATES, PC Docket No. 245735. Submitted April 6, 2004, at Detroit. Decided May 4, 2004, at 9:15 A.M. Leave to appeal sought. David L. Manzo, M.D., filed a legal malpractice action against Marisa C. Petrella and Petrella & Associates, PC., after the defendants concluded their representation of the plaintiff in his action against his former employer, the Henry Ford Health System. The defendants filed a motion for summary disposition contending that the plaintiff could not prove the proximate cause element — the case within a case — necessary to prevail. Specifically, the defendants asserted that even if the plaintiffs Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., claim in the underlying action had not been dismissed as untimely filed, it was subject to dismissal because the plaintiff did not allege that he was discharged for reporting to a public body unlawful or improper conduct committed by other doctors working for his former employer. Moreover, the defendants claimed that the former employer’s Peer Standards and Conduct Committee, which the plaintiff asserted he made a report to, was not a “public body” as defined in the wpa, MCL 15.361(d). The Oakland Circuit Court, Denise Langford-Morris, J., entered an order that denied defendants’ motion. The court reasoned that, but for the statute of limitations barring the plaintiffs wpa claim in the underlying action, the factual evidence was sufficient to permit that claim to survive the motion for summary disposition. The Court of Appeals denied the defendants’ application for leave to appeal. The Supreme Court, in lieu of granting leave, remanded the case to the Court of Appeals for consideration as on leave granted. 467 Mich 930 (2002). The Court of Appeals held: The circuit court erred when it denied the defendants’ motion for summary disposition. The plaintiff cannot show a viable wpa claim and so he cannot prevail on that claim. Therefore, the plaintiff cannot succeed in his legal malpractice action because he cannot prove that the defendants’ failure to timely file his WPA claim proximately caused him injury. The plaintiff is unable to prove the first element of a prima facie violation of the wpa, i.e., that he was engaged in a protected activity as defined by the wpa. The plaintiffs claim that he reported a violation or suspected violation of law to his former employer’s Peer Standards and Conduct Committee was not a protected activity because that committee was not a public body as defined by the WPA, MCL 15.361(d)(iv). MCL 15.361(d)(iv) provides that a public body is one that is created by a state or local authority. As interpreted by our Supreme Court, the Public Health Code, MCL 333.21513(d), requires hospitals, like the plaintiffs former employer, to establish peer review committees. Here, the former employer, a private entity, pursuant to its internal bylaws and procedures established the Peer Standards and Conduct Committee. That fact, in conjunction with the absence in MCL 333.21513(d) of any legislative scheme implementing reporting requirements by a peer review committee to any governmental agency, established that the Peer Standards and Conduct Committee was not created by governmental authority. Additional support for that conclusion is found in MCL 333.20175(8) and MCL 333.21515. These statutes expressly state that any information or documents collected, used, or generated by a peer review committee, like the Peer Standards and Conduct Committee, are not public documents and are not subject to court subpoena. Finally, the protections of the WPA are not made applicable to reports made to the Peer Standards and Conduct Committee by implication from MCL 333.20180. A plain reading of that statute discloses no private right of action. Specifically, the statute repeatedly references “the department” and that term clearly means a governmental department or agency. In addition, the plaintiff does not meet the express conditions set forth in the statute for gaining any protections afforded by that statute. Reversed and remanded. Hospitals — Peer Review Committees — Whistleblowers’ Protection Act — Public Body. A peer review committee created by a private hospital under legislative mandate, but pursuant to that hospital’s internal bylaws and procedures, is not a “public body” created by state or local authority as defined in the Whistleblowers’ Protection Act; an employee of that hospital is not engaged in a protected activity under the Whistleblowers’ Protection Act when he reports violations or suspected violations of laws, regulations, or rules to the hospital’s peer review committee (MCL 15.361[d][iv], 333.21513[d]). Sommers, Schwartz, Silver & Schwartz, PC. (by Donald J. Gasiorek and Patrick Burkett), for the plaintiff. Plunkett & Cooney, PC. (by Christine D. Oldani, Michael P. Ashcraft, Jr., and Ellen Bartman Jannette), for the defendant. Before: TALBOT, EJ., and NEFF and DONOFRIO, JJ. DONOFRIO, J. Defendants appeal by leave granted an order denying their motion for summary disposition. After this Court denied defendants’ initial application for leave to appeal, our Supreme Court remanded the case to this Court in lieu of reviewing this legal malpractice action. 467 Mich 930 (2002). Defendants argue that the trial court erred when it did not grant their summary disposition motion. Plaintiff is unable to meet his burden of proving causation in the legal malpractice claim because he cannot show a viable claim under the Whistleblowers’ Protection Act, MCL 15.361 et seq. We reverse and remand. Defendant Petrella represented plaintiff in a suit filed against his former employer, Henry Ford Health System, and numerous individuals and related entities. Plaintiff began working for Henry Ford Health System (HFHS) in 1988 and is a board-certified ophthalmologist. In 1997 friction developed between plaintiff and his division head, Dr. Bogorad. Plaintiff accused Dr. Bogorad of using his position to make sure that he saw patients with particular problems and especially those who needed surgery, apparently because surgical procedures generate more revenue than routine eye care. Plaintiff claims that this made it increasingly difficult for plaintiff and other ophthalmologists to schedule and perform surgery, which not only meant that plaintiff was losing the opportunity to keep his surgical skills current, but also meant that his patients had less or delayed access to surgical procedures. Plaintiff, at some point, also raised concerns regarding allegedly improper billing practices by Dr. Bogorad and others whom he supervised. According to plaintiffs former employer and the others that he sued in the original action, plaintiff was a disruptive influence in Dr. Bogorad’s division, for example, plaintiff actively solicited other staff members at HFHS’s West Bloomfield and Troy facilities to support his campaign against Dr. Bogorad by signing letters in support. When plaintiff accused Dr. Bogorad of being “subversive, manipulative, and derelict” in his duties, Dr. Nussbaum, chairperson of the HFHS eye care services department, requested a six-month probationary period be imposed upon plaintiff in light of his behavior and bad judgment. The vice president of medical affairs agreed with the request. In July 1997 plaintiff retained defendants to represent him in connection with the administrative actions being taken or contemplated against him. Plaintiff appealed to the HFHS Professional Standards and Conduct Committee (PSCC). Following a hearing held in December 1997, plaintiff and his attorney received a letter placing him on decision-making leave for one week. Plaintiff was expected to resign or face further action. When plaintiff refused to resign, his employment and staff membership with the hospital were terminated by letter to counsel dated February 10, 1998. Further administrative appeals upheld the termination. Later that year, on September 9, 1998, defendant Marisa C. Petrella filed a complaint on plaintiffs behalf in the circuit court alleging breach of contract, promissory estoppel, defamation, violation of the Whistleblowers’ Protection Act (WPA), MCL 15.361, et seq., retaliatory or constructive discharge, religious or ethnic origin discrimination, tortious interference ■ with advantageous business relationship, and misappropriation of name. Hfhs moved for summary disposition on all counts. In connection with the WPA claim, HFHS argued that it was untimely because it was filed more than ninety days after plaintiffs discharge. HFHS also argued in the alternative that plaintiff could not establish a prima facie whistleblower violation case. After a hearing, the trial court granted summary disposition on most of the counts of the complaint. In connection with the whistleblower’s action, the court agreed that it was untimely, and that plaintiffs attempt to state a separate cause of action under the Public Health Code, MCL 333.20180, was likewise time-barred. The trial court stated: While arguably, plaintiff, would have the protection of the whistleblower’s protection act, plaintiff is still bound by the statute of limitations for such claims, and there is no dispute that the complaint was filed in excess of 90 days after the termination. Plaintiffs argument that the statute must be told [sic], is without authority, and otherwise unpersuasive. The motion is granted as to count 4. With regard to count 5, which alleges retaliation. The Public Health Code provides no separate right of action other than the referenced application to the whistleblower’s protection act. As such, this count is also dismissed as to the whistleblower’s claim is time-barred. According to defendants, an order was entered on May 31, 2000. The order was not appealed, and the case was eventually resolved after all parties accepted the results of case evaluation. Plaintiff filed the instant action on September 13, 2000, alleging legal malpractice. Defendants moved for summary disposition, arguing that plaintiff cannot establish the proximate cause element of his cause of action, i.e., cannot prove the “case within a case,” necessary to prevail in a legal malpractice action. Defendants argued that plaintiffs WPA claim should have been dismissed even if it was not untimely because the hospital’s PSCC was not a “public body” within the meaning of the Whistleblowers’ Protection Act, MCL 15.361(d), and because plaintiff had not even alleged that he was discharged for having reported, or for being about to report, a violation or suspected violation of a law or regulation or rule to a public body. Plaintiff responded that the PSCC was a “public body” for purposes of the WPA, and even if it was not, MCL 333.20180 of the Public Health Code in effect made the PSCC a public body for purposes of the WPA. After hearing argument, the court noted the elements of causes of action for legal malpractice and violation of the WPA, and then denied defendants’ motion for the following reasons: The court finds that plaintiff has established a prima facie case of legal malpractice. Plaintiff has presented sufficient evidence that there was a factual basis for the Whistleblower’s Act claim, and that but for the statute of limitations problem, his cause of action would have survived the motion for summary disposition. Therefore, defendants’ motion for summary disposition is not appropriate. An order was entered denying defendants’ motion for the reasons stated by the court on the record. Defendants applied for leave to appeal, arguing that the trial court erred in denying their motion for summary disposition. This Court denied defendants’ motion. Defendants appealed to our Supreme Court which, in lieu of granting leave, remanded the case for our consideration. This Court reviews de novo the trial court’s decision concerning a motion for summary disposition. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). If genuine issues of material fact do not exist and the moving party is entitled to judgment as a matter of law, summary disposition pursuant to MCR 2.116(0(10) is appropriate. West, supra at 183. “A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” Id., citing Shallal v Catholic Social Services of Wayne Co, 455 Mich 604, 609; 566 NW2d 571 (1997); Quinto v Cross & Peters Co, 451 Mich 358, 369; 547 NW2d 314 (1996). Whether a plaintiff has established a prima facie case under the WPA is a question of law subject to review de novo. Phinney v Perlmutter, 222 Mich App 513, 553; 564 NW2d 532 (1997). We also review de novo questions of statutory interpretation. Frank W Lynch Co v Flex Technologies, Inc, 463 Mich 578, 583; 624 NW2d 180 (2001). “A bedrock principle of statutory construction is that ‘a clear and unambiguous statute leaves no room for judicial construction or interpretation.’. . . When the statutory language is unambiguous, the proper role of the judiciary is to simply apply the terms of the statute to the facts of a particular case.” Rakestraw v Gen Dynamics Land Systems, Inc, 469 Mich 220, 224; 666 NW2d 199 (2003) (citations omitted). Defendants argue on appeal that the trial court clearly erred when it denied their motion for summary disposition because plaintiff was unable to meet his burden of proving causation in this legal malpractice action. The elements of legal malpractice are: (1) the existence of an attorney-client relationship; (2) negligence in the legal representation of the plaintiff; (3) that the negligence was the proximate cause of an injury; and (4) the fact and extent of the injury alleged. Charles Reinhart Co v Winiemko, 444 Mich 579, 585-586; 513 NW2d 773 (1994). For purposes of this appeal, we are only concerned with causation. In order to establish proximate cause, a plaintiff must show that a defendant’s action was a cause in fact of the claimed injury. Hence, a plaintiff must show that, but for an attorney’s alleged malpractice, the plaintiff would have been successful in the underlying suit. This is the “suit within a suit” requirement in legal malpractice cases. Id. at 586-587. Specifically, defendants argue that plaintiff could not show a viable WPA claim and that, because he could not prevail on the WPA claim, plaintiff could not succeed in his legal malpractice action. To establish a prima facie violation of the WPA, a plaintiff must show that (1) the plaintiff was engaged in a protected activity as defined by the WPA, (2) the plaintiff was discharged, and (3) a causal connection existed between the protected activity and the discharge. Chandler v Dowell Schlumberger, Inc, 456 Mich 395, 399; 572 NW2d 210 (1998); Shallal, supra at 610. The instant case only involves the first element. Plaintiff claims he was discharged in violation of the WPA because he reported a violation or a suspected violation of the law or regulation or rule to a public body. Defendants contend that the hospital’s PSCC is not a public body within the meaning of the WPA. Thus, the key question before us is whether the PSCC is a public body within the meaning of the WPA. A protected activity under the act consists of “(1) reporting to a public body a violation of a law, regulation, or rule, (2) being about to report such a violation to a public body, or (3) being asked by a public body to participate in an investigation.” Chandler, supra at 399 citing the WPA, MCL 15.362; Roulston v Tendercare (Michigan), Inc, 239 Mich App 270, 279; 608 NW2d 525 (2000). The PSCC is what is commonly referred to as a peer review committee responsible for the retrospective review of patient care. Defendants argue that the hospital is a private entity, not a public or governmental hospital, and that the PSCC is a private administrative entity and not a “public body” for purposes of the WPA. Plaintiff argues to the contrary that the PSCC is a public body pursuant to the operation of MCL 333.21513 and MCL 15.361(d)(iv). Under the Public Health Code, MCL 333.21513(d), hospitals [s]hall assure that physicians and dentists admitted to practice in the hospital are organized into a medical staff to enable an effective review of the professional practices in the hospital for the purpose of reducing morbidity and mortality and improving the care provided in the hospital for patients. The review shall include the quality and necessity of the care provided and the preventability of complications and deaths occurring in the hospital. Our Supreme Court has interpreted this provision to mean that “[h]ospitals are required to establish peer review committees whose purposes are to reduce morbidity and mortality and to ensure quality care.” Dorris v Detroit Osteopathic Hosp Corp, 460 Mich 26, 41; 594 NW2d 455 (1999). Further, MCL 15.361(d)(iv) provides that “public body” means: Any other body which is created by state or local authority or which is primarily funded by or through state or local authority, or any member or employee of that body. [Emphasis added.] We are not persuaded by plaintiffs interpretation of the application of the foregoing statutes that the PSCC was created through state or local authority. Hfhs is a private hospital. Michigan requires all hospitals, even private entities like HFHS to establish peer review committees. Through its compliance with a legislative mandate to monitor and review their own professional practices, HFHS, a private body, created the PSCC by virtue of its own internal bylaws and procedures. MCL 333.21513(d) provides that these committees are for the purpose of improving patient care. The statute does not provide a legislative scheme or any guidelines whatsoever governing implementation, action, or reporting requirements to any governmental agency. Considering the lack of direction, we find that MCL 333.21513(d) does not implicate governmental authority. We also find significant two additional sections in the Public Health Code, MCL 333.20175 and MCL 333.21515. Both statutes “govern the confidentiality of records, reports, and other information collected or used by peer review committees in the furtherance of their duties and evidence the Legislature’s intent to fully protect quality assurance/peer review records from discovery.” Ligouri v Wyandotte Hosp, 253 Mich App 372, 376; 655 NW2d 592 (2002), citing Dorris, supra at 40 (emphasis in original). MCL 333.20175(8) states: The records, data, and knowledge collected for or by individuals or committees assigned a professional review function in a health facility or agency ... are confidential, shall be used only for the purposes provided in this article, are not public records, and are not subject to court subpoena. And, MCL 333.21515 reads: The records, data, and knowledge collected for or by individuals or committees assigned a review function described in this article are confidential and shall he used only for the purposes provided in this article, shall not be public records, and shall not be available for court subpoena. The plain language of each statute illustrates that the records, reports, and other related documents collected, used, or generated by a hospital’s PSCC are privileged from disclosure. The discoverability of these documents is not contingent upon the type of claim asserted by a subpoena proponent. Ligouri, supra at 377. These documents are not subject to disclosure in a criminal investigation pursuant to a search warrant, In re Investigation of Lieberman, 250 Mich App 381; 646 NW2d 199 (2002), a civil suit concerning an assault on a hospital patient, Dorris, supra, a medical malpractice claim, Gallagher v Detroit-Macomb Hosp Ass’n, 171 Mich App 761, 431 NW2d 90 (1988), or an investigation by the Board of Medicine, Attorney General v Bruce, 422 Mich 157; 369 NW2d 826 (1985). Any data amassed, assembled, or produced by a PSCC is statutorily protecte

LAURA TARRANT, Plaintiff v. FREEWAY FOODS OF GREENSBORO, INC., d/b/a WAFFLE HOUSE, FREEWAY FOODS, INC., d/b/a WAFFLE HOUSE, JESSE YUN, DOUG KINGTON, SR., and JOHN DOE, Defendants No. COA03-210 (Filed 6 April 2004) 1. Appeal and Error— appealability — dismissal of two claims — voluntary dismissal of remaining claims An appeal was not interlocutory where only two of four claims were dismissed by the trial court, but the other two were later voluntarily dismissed by plaintiff as part of a settlement. There is nothing left for the trial court to adjudicate; any delay would impede rather than expedite resolution of the matter. 2. Employer and Employee— wrongful termination — workers’ compensation claim The trial court erred by dismissing plaintiffs claim for wrongful termination in violation of public policy for asserting her workers’ compensation rights where plaintiff was injured, collected temporary disability, returned to work, and was then terminated because she had “cost the company a lot of money.” 3. Employer and Employee— retaliatory discharge — temporal requirement The trial court erred by dismissing plaintiffs claim under REDA (the Retaliatory Employment Discrimination Act) where the employer admitted that plaintiffs firing was in retaliation for a workers’ compensation claim and the question was the length of time between the filing of the claim and the retaliation. The major concern is whether plaintiff was fired for asserting her workers’ compensation claim; strictly requiring a close temporal relationship between the claim and the retaliation would allow employers to circumvent the statute. 4. Arbitration and Mediation— employment contract — existence of arbitration agreement Claims arising from an employment termination were remanded for determination of whether there was a valid arbitration agreement between the parties. Appeal by plaintiff and defendant Freeway Foods, Inc., from order entered 8 October 2002 by Judge John R. Jolly, Jr., in Wake County Superior Court. Heard in the Court of Appeals 13 January 2004. Faith Herndon for plaintiff appellant-appellee. Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by John W. Ormand III and Charles E. Coble, for defendant appellant-appellee. Glenn, Mills & Fisher, P.A., by Stewart W. Fisher; and Ferguson, Stein, Chambers Wallas, Adkins, Gresham & Sumter, P.A., by Margaret Errington for North Carolina Academy of Trial Lawyers Amicus Curiae. McCullough, Judge. This case arises out of plaintiffs termination from employment. Plaintiff asserted one claim under the Retaliatory Employment Discrimination Act (REDA) and one claim for wrongful discharge in violation of public policy. Plaintiff also sued for slander and conversion. In response, defendant filed a motion to compel plaintiff to arbitrate her claims. Plaintiff Laura Tarrant was employed by defendant Freeway Foods of Greensboro, Inc., in 1989. In 1993, plaintiff sustained a work-related back injury and was compensated under North Carolina’s Workers’ Compensation Act. For the first several years after the injury, plaintiff continued to work. In 1996, plaintiff’s compensable back injury worsened, and she required surgery. Around June of 1996, she was put on a leave of absence because of her back surgery and condition. At this time, defendant paid temporary total disability benefits during plaintiff’s period of disability. In early 1997, plaintiff’s physician assigned restrictions, including limiting plaintiff to lifting items no greater than thirty pounds. Also, in 1997 and 1998, plaintiff’s doctors indicated that she was still disabled from working part time and recommended further surgical procedures. During 1997 and most of 1998, defendant and its insurance carriers paid plaintiff total disability benefits. Plaintiff was unable to work for defendant or any other employer. On or about 23 October 1998, the parties settled plaintiff’s workers’ compensation claim. The agreement did not prevent plaintiff from working for defendant in the future. In 1999, plaintiff worked for other employers. Later that year, she applied to work for defendant and was rehired by Larry Davis, a Unit Manager. At that time, plaintiff was physically able to do the job. Plaintiff claims that when she was leaving the store after being hired, the District Manager for defendant, Ken Tindall, inquired about plaintiffs back condition and expressed concerns about whether plaintiff could do the job. According to plaintiff, Tindall asked her if she was going to behave and stated, “You’re not going to fall again, are you?” Plaintiff reported to work on 2 November 1999. On 4 November 1999, Larry Davis told plaintiff that her employment with defendant had been terminated. Plaintiff alleges that Davis told her that her job performance was fine, but she “cost the company a lot of money.” Plaintiff contacted Ken Tindall and other managers and told them that she was not too disabled to do the job. However, the managers disagreed. They told plaintiff that she agreed that she could not work for defendant again when she settled her workers’ compensation claim. Plaintiff filed claims for (1) violation of North Carolina’s Retaliatory Employment Discrimination Act (REDA), (2) wrongful discharge in violation of public policy, (3) slander, and (4) wrongful conversion. In response, defendant filed a motion to dismiss or in the alternative, to stay action and compel plaintiff to submit her claims to binding arbitration. In support of its motion to compel arbitration, defendant presented evidence tending to show that when she was rehired in 1999, plaintiff completed and signed the standard “Waffle House” employment application. The documents in the application include an Application for Hourly Employment, a form which contains an arbitration clause. In the arbitration clause, employees agree to resolve all disputes arising out of employment through binding arbitration. Although plaintiff acknowledged signing some application documents, defendant was unable to locate the actual Application for Hourly Employment that plaintiff signed. The trial court dismissed plaintiff’s REDA claim and claim for wrongful discharge in violation of public policy, but did not dismiss the slander and conversion claims. The court denied defendant’s motion to stay action and compel arbitration. Both sides appeal. On appeal, plaintiff argues that the trial court erred by: (1) dismissing the REDA claim and (2) dismissing the claim for wrongful termination in violation of public policy. In contrast, defendant asserts that the trial court erred by (1) denying defendant’s motion to stay action and compel arbitration or, in the alternative, (2) by failing to make and enter sufficient findings of fact. Before addressing these issues, we must evaluate defendant’s contention that this appeal should be dismissed as interlocutory. I. Interlocutory Appeal Defendant argues that plaintiff’s appeal should be dismissed as interlocutory. We disagree. Under N.C. Gen. Stat. § 1A-1, Rule 54(a) (2003), a judgment is either final or interlocutory. Our Supreme Court has explained this distinction: A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court. An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy. Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381, reh’g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). Under N.C. Gen. Stat. § 7A-27 (2003), final judgments are immediately appealable. However, interlocutory orders are only appealable in a limited set of circumstances. The purpose of the restrictions on the right to appeal immediately from an interlocutory ruling “is to prevent fragmentary, premature and unnecessary appeals by permitting the trial divisions to have done with a case fully and finally before it is presented to the appellate division.” Waters v. Personnel, Inc., 294 N.C. 200, 207, 240 S.E.2d 338, 343 (1978). We decline to dismiss this case because plaintiff’s appeal is not interlocutory. Originally, plaintiff filed four causes of action. The first two claims were for violations of the Retaliatory Employment Discrimination Act (REDA) and for wrongful discharge in violation of public policy. The remaining two claims were for slander and wrongful conversion. On 4 October 2002, the trial court dismissed plaintiff’s REDA claim and plaintiff’s claim for wrongful discharge in violation of public policy, but refused to dismiss the other two claims for slander and wrongful conversion. At that point, plaintiff’s appeal would have been interlocutory because the entire case was not disposed of. However, on 7 February 2003, plaintiff voluntarily dismissed the claims for slander and wrongful conversion as part of a settlement agreement with defendant. At this juncture, we believe that the interests of justice would be furthered by hearing the appeal. All claims and judgments are final with respect to all the parties, and there is nothing left for the trial court to determine. Therefore, the rationale behind dismissing interlocutory appeals, the prevention of fragmentary and unnecessary appeals, does not apply in this case. In fact, any delay on our part would impede, rather than expedite, the efficient resolution of this matter. For these reasons, we decline to dismiss the appeal and will consider the case on the merits. II. Wrongful Termination in Violation of Public Policy Plaintiff argues that the trial court erred in dismissing plaintiffs claim for wrongful discharge in violation of public policy. We agree. Under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2003), a party may file a motion to dismiss for failure to state a claim upon which relief can be granted. In considering the motion, the court evaluates “whether the facts alleged in the complaint, when viewed in the light most favorable to the plaintiff[], give[s] rise to a claim for relief on any theory.” Ford v. Peaches Entertainment Corp., 83 N.C. App. 155, 156, 349 S.E.2d 82, 83 (1986), disc. review denied, 318 N.C. 694, 351 S.E.2d 746 (1987). North Carolina adheres to the at-will employment doctrine which states that “in the absence of a contractual agreement . . . establishing a definite term of employment, the relationship is presumed to be terminable at the will of either party without regard to the quality of performance of either party.” Kurtzman v. Applied Analytical Industries, Inc., 347 N.C. 329, 331, 493 S.E.2d 420, 422 (1997), reh’g denied, 347 N.C. 586, 502 S.E.2d 594 (1998). However, there is a public policy exception to the rule. Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 259, 580 S.E.2d 757, 761 (2003). While there is not a specific list of what actions constitute a violation of public policy, the exception has applied where the employee is fired “ ‘(1) for refusing to violate the law at the employer[’]s request, (2) for engaging in a legally protected activity, or (3) based on some activity by the employer contrary to law or public policy.’ ” Id. (citation omitted). This Court has considered whether “a claim of wrongful discharge based upon North Carolina public policy of not punishing employees for exercising their statutory rights under the Workers’ Compensation Act was tenable[.]” Salter v. E & J Healthcare, Inc., 155 N.C. App. 685, 697, 575 S.E.2d 46, 54 (2003). In Salter, we concluded that such a cause of action probably does exist, but plaintiffs claim could not succeed because there was insufficient evidence. Id,. The next time this Court considered the issue we stated unequivocally, “we agree with the reasoning of Salter on this issue.” Brackett, 158 N.C. App. at 259, 580 S.E.2d at 762. “[A] plaintiff may state a claim for wrongful discharge in violation of public policy where he or she alleges the dismissal resulted from an assertion of rights under the Workers’ Compensation Act ."Id. at 260, 580 S.E.2d at 762. In this case, plaintiff has alleged sufficient facts to survive a motion to dismiss on the claim of wrongful discharge in violation of public policy. Plaintiff claims that she was fired because she asserted her rights under the Workers’ Compensation Act. Evidence in the record reveals that plaintiff sustained a back injury in 1993 while working for defendant. The injury was compensable under North Carolina’s Workers’ Compensation Act. For the first few years after the injury, plaintiff was able to continue working. However, in 1996, the injury worsened, and plaintiff required surgery. At that time, defendant paid temporary total disability benefits. During 1997 and most of 1998, plaintiff received total disability benefits because she could not work for defendant or any other employer. On 1 November 1999, defendant rehired plaintiff. Plaintiff’s allegations of the events regarding her hiring and firing tend to show that she was fired because she filed a workers’ compensation claim. When plaintiff was leaving the store after being rehired, plaintiff claims that the District Manager, Ken Tindall, asked her, “Are you going to behave? You’re not going to fall again, are you?” Plaintiff also produced evidence showing what happened on the day she was terminated. A manager told plaintiff that her job performance was fine, but the company did not want her around because she cost them a lot of money. We conclude that this is sufficient evidence to allow plaintiff’s wrongful discharge claim to go forward. Therefore, we reverse the trial court’s dismissal of this claim. III. REDA Claim Plaintiff also argues that the trial court erred by dismissing her claim under the Retaliatory Employment Discrimination Act (REDA). Enacted in 1992, REDA prohibits discrimination against an employee who has filed a workers’ compensation claim. N.C. Gen. Stat. § 95-240, et. seq. (2003). N.C. Gen. Stat. § 95-241(a)(l)(a), prevents discrimination or retaliation against an employee who does or threatens to [f]ile a claim or complaint, initiate any inquiry, investigation, inspection, proceeding or other action, or testify or provide information to any person with respect to . . . Chapter 97 of the General Statutes. REDA replaced N.C. Geni. Stat. § 97-6.1 which sought to allow employees to “pursue remedies under the Workers’ Compensation Act without fear of retaliation from their employers.” Salter, 155 N.C. App. at 691, 575 S.E.2d at 50. The issue in the present case is whether a plaintiff must show a close temporal connection between the filing of the claim and the alleged retaliatory act when the employer or the employer’s agent has admitted that plaintiff was fired because she asserted her rights under the Workers’ Compensation Act. “[0]ur appellate courts indicated in applying the former provision that a plaintiff fails to make out a case of retaliatory action where there is no close temporal connection between the filing of the claim and the alleged retaliatory act.” Id. (emphasis added). However, we note that at least two of the cases that have dismissed these claims have considered the lack of a close temporal connection as one of many factors. ■ For example, in a case that applied the former statute (N.C. Gen. Stat. § 97-6.1), this Court affirmed a jury verdict that denied relief to plaintiff where the evidence showed that defendant did not question the fact that plaintiff was disabled, but terminated plaintiff for misrepresenting the extent of the disability. Shaffner v. Westinghouse Electric Corp., 101 N.C. App. 213, 398 S.E.2d 657 (1990), disc. review denied, 328 N.C. 333, 402 S.E.2d 839 (1991). Although we stated that there was no close temporal connection between the initiation of the workers’ compensation claim and the termination, the key factor was causation. Id. at 216, 398 S.E.2d at 659. Plaintiff was not fired because he instituted a workers’ compensation claim; he was terminated because he lied about the gravity of his injuries. Id. In Salter, “[s]everal things ... [were] wrong with plaintiff’s claim.” Salter, 155 N.C. App. at 691, 575 S.E.2d at 50. We acknowledged that there was no close temporal connection between the filing of the workers’ compensation claim and plaintiff’s termination. Id. However, we also indicated that plaintiff offered “little more than mere speculation” that defendant fired her “because she filed a workers’ compensation claim.” Id. at 692, 575 S.E.2d at 50. Thus, our major concern was whether plaintiff was terminated because she filed a workers’ compensation claim, rather than timing alone. Perhaps, if plaintiff offered more evidence, there would have been a triable issue. We are not aware of any REDA case in which the employer admitted that the employee was terminated for pursuing her workers’ compensation rights. However, that is precisely what happened here. When plaintiff was rehired by defendant, a district manager allegedly asked plaintiff if she was going to behave and stated, “You’re not going to fall again, are you?” Similarly, when she was fired, plaintiff was told that her job performance was fine, but she was being terminated because “she cost the company a lot of money.” These statements strongly suggest that plaintiff was terminated because she instituted and later settled a workers’ compensation claim. We recognize that a long interval between the filing of a workers’ compensation claim and the termination of the employee could reveal that the two events were not causally related. However, such a concern does not arise where the employer openly admits that the firing was retaliatory. We believe that strictly requiring a close temporal connection would allow employers to circumvent the statute. By simply delaying the retaliatory firing for several months, an employer could prevent a REDA claim from ever going forward, even where there is direct evidence of a wrongful motive. At the very least, this case presents a triable issue. Ultimately, if this matter is not settled or resolved through binding arbitration, the jury should determine whether plaintiff was wrongfully terminated because she pursued her rights under the Workers’ Compensation Act. For these reasons, we reverse the trial court’s decision to dismiss plaintiff’s REDA claim. IV. Arbitration Agreement The final issue we must consider is whether the parties agreed to settle their disputes through binding arbitration. When a party denies the existence of an arbitration agreement, a court must “summarily determine whether a valid arbitration agreement exists.” Barnhouse v. American Express Fin. Advisors, Inc., 151 N.C. App. 507, 508, 566 S.E.2d 130, 131 (2002). “Failure of.the court to determine this issue, where properly raised by the parties, constitutes reversible error.” Id. After a careful review of the record, we are unable to clearly determine if the trial court found that there was a valid arbitration agreement. Therefore, we respectfully remand this issue for the purpose of clarification. If there was a valid arbitration agreement, plaintiffs claims will be settled through binding arbitration. If there was not a valid agreement, plaintiff should be allowed to pursue her claims in court. For these reasons, the decision of the trial court is Reversed and remanded. Judges WYNN and TIMMONS-GOODSON concur.