Whistleblower Cases

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 (Whitbeck, J., concurring, and M. J. Kelly, J., dissenting), in an unpublished opinion, issued October 15, 2009 (Docket No. 282921), reversed and remanded for entry of an order granting summary disposition to defendants.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 On remand, the Court of Appeals, Murray, PJ., and Hoekstra, J. (Stephens, J., dissenting), in an unpublished opinion per curiam, issued August 25, 2011 (Docket No. 282921), held that plaintiff had failed to establish a genuine issue of material fact regarding the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

HAYS v LUTHERAN SOCIAL SERVICES OF MICHIGAN Docket No. 307414. Submitted January 10, 2013, at Lansing. Decided January 22, 2013. Approved for publication March 19, 2013, at 9:20 a.m. Leave to appeal denied, 494 Mich 869. Barbara J. Hays brought an action in the Midland Circuit Court against Lutheran Social Services of Michigan after it terminated her employment. Plaintiff was a home-healthcare worker employed by defendant. One of her clients smoked marijuana in his home and in plaintiffs presence. She discussed this with her supervisor and coworkers and eventually spoke to an official of a local narcotics enforcement team, inquiring about the potential consequences for someone who knew about another person’s drug use and failed to report it. When asked by the official, she declined to take further action. Plaintiff had signed a confidentiality agreement related to information about clients. Defendant subsequently told plaintiff about a complaint lodged against her for making a phone call about the client. Plaintiff alleged in her action that defendant had terminated her employment in violation of the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., asserting theories that she had been terminated for making a report protected by the WPA and for being about to make a report. The court, Michael J. Beale, J., granted defendant summary disposition on the second claim and denied it with respect to the first. After a jury trial, the court entered a judgment in plaintiffs favor and awarded her attorney fees and costs, but only as case evaluation sanctions. Defendant appealed the denial of summary disposition, and plaintiff cross-appealed the dismissal of her about-to-report WPA claim and the partial denial of her motion for attorney fees. The Court of Appeals held: 1. The WPA provides a remedy for an employee who suffers retaliation for reporting or planning to report a suspected violation of a law, a regulation, or a rule to a public body. The purpose of the WPA is to protect the public by facilitating employee reporting of illegal activity. To establish a prima facie case under the WPA, the plaintiff must show that (1) he or she was engaged in a protected activity as defined by the WPA, (2) he or she was discharged, and (3) a causal connection existed between the protected activity and the discharge. With regard to the first element of a prima facie case, a plaintiff engages in a protected activity when he or she (1) reports to a public body a violation of a law, a regulation, or a rule, (2) is about to report such a violation to a public body, or (3) is being asked by a public body to participate in an investigation. 2. Defendant argued that plaintiff failed to actually make a report. While the WPA does not define “report,” the term means a detailed account of an event or situation, usually based on observation or inquiry. Plaintiff called the officer to inquire about her potential liability if her client’s behavior was discovered, not to report any illegal behavior. She did not provide any particulars or otherwise convey information that could have assisted the officer in actually investigating any wrongdoing, and she declined to take further action. There was no evidence that plaintiff identified herself, the client, or the client’s location, and she did not provide any sort of detailed account of the situation. Thus, rather than providing a detailed account of an event or situation, plaintiff was merely seeking to obtain information and advice. Categorizing plaintiffs inquiry as a report would not further the purpose of the WPA. Because plaintiff failed to establish that she made a report under the WPA, defendant was entitled to summary disposition on that ground. 3. Plaintiff argued that the trial court improperly granted defendant summary disposition on the WPA claim that was based on her being about to report a suspected violation. Under the WPA, an employee who is about to report a violation receives the same level of protection as one who has reported to a public body. Under MCL 15.363(4), however, an employee seeking protection on the basis of being about to report a violation must prove his or her intent by clear and convincing evidence. The employer is also entitled to objective notice of the whistleblower’s report or threat to report. Simply because plaintiff called the official to inquire about her potential liability did not demonstrate that she intended to take any further action and actually report the client’s behavior to a public body. In fact, she declined the offer to do so. Plaintiffs discussions with coworkers and supervisors about the client’s behavior also failed to demonstrate that she intended to report the behavior. Her conversations demonstrated only that while she knew of the behavior and had a sufficiently long time to report it, she declined to do so. There was also no evidence that plaintiff informed anyone that she was about to take further action and report the behavior to a public body. Consequently, there was no clear and convincing evidence that defendant received objective notice or that plaintiff intended to report the behavior to a public body, and the trial court did not err by granting summary disposition to defendant on this claim. 4. There was no need to consider plaintiffs arguments concerning attorney fees because she was no longer a prevailing party and was not entitled to fees. Judgment for plaintiff and attorney-fee award reversed; case remanded for further proceedings. Master and Servant — Whistleblowers’ Protection Act — Reports to Public Body — Prima Facie Case. To establish a prima facie case under the Whistleblowers’ Protection Act, the plaintiff must show that (1) he or she was engaged in a protected activity as defined by the act, (2) he or she was discharged, and (3) a causal connection existed between the protected activity and the discharge; with regard to the first element of a prima facie case, a plaintiff engages in a protected activity when he or she (1) reports to a public body a violation of a law, a regulation, or a rule, (2) is about to report such a violation to a public body, or (3) is being asked by a public body to participate in an investigation; the term “report” means a detailed account of an event or situation, usually based on observation or inquiry; an employee who is about to report a violation receives the same level of protection as one who has reported to a public body, but an employee seeking protection on the basis of being about to report a violation must prove his or her intent by clear and convincing evidence and the employer is entitled to objective notice of the whistleblower’s report or threat to report; a simple inquiry about the plaintiffs potential liability if he or she does not report the violation does not by itself demonstrate an intent to take any further action and actually report the violation (MCL 15.361 et seq.). Gafkay & Gardner, PLC (by Julie A. Gafkay and Katherine S. Gardner), for plaintiff. Clark Hill PLC (by Mark W.McInerney and Kymberly N. Kinchen) for defendant. Before: OWENS, P.J., and FITZGERALD and RIORDAN, JJ. PER CURIAM. In this action brought under the Michigan Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., defendant, Lutheran Social Services of Michigan, appeals as of right a judgment entered in plaintiffs favor. Plaintiff cross-appeals regarding the trial court’s dismissal of her “about to report” claim under the WPA and the partial denial of her motion for attorney fees. We reverse and remand for proceedings consistent with this opinion. I. FACTUAL BACKGROUND Plaintiff was employed as a home-healthcare provider for defendant. During the course of her employment, she encountered Client A, who smoked marijuana in his home and in plaintiffs presence when she was there on assignment by her employer. Plaintiff was informed of Client A’s drug use before entering his home, and she discussed it with her supervisor and other coworkers. During one discussion with a coworker about Client A’s drug use, plaintiff decided to call 911 and asked to be connected to the Bay Area Narcotics Enforcement Team (BAYANET). When speaking with a BAYANET official, plaintiff inquired about the potential consequences of someone knowing about the drug use of another and not reporting it. At the conclusion of the conversation, when asked by the BAYANET official if she would like to take any further action, plaintiff declined to do so. As a condition of her employment, plaintiff had signed a client confidentially agreement, consenting to keep information about her clients confidential. Plaintiff was eventually called into a meeting with her supervisor, at which the supervisor informed her that a complaint had been lodged against plaintiff for making a phone call about Client A. Plaintiff admitted to her supervisor that she called BAYANET. Plaintiff also recalled that her supervisor mentioned another phone call she supposedly made to an insurance company about Client A, although plaintiff denied making that call. After she was terminated, plaintiff initiated this litigation, claiming that she was terminated in violation of the WPA. While defendant moved for summary disposition on plaintiffs “report” and “about to report” claims, the trial court only granted the motion with respect to the latter claim. After a jury trial, a judgment was awarded in plaintiffs favor in the amount of $77,897.50. The trial court also awarded attorney fees and costs to plaintiff consistently with case evaluation sanctions in the amount of $69,385.55. Defendant now appeals, and plaintiff cross-appeals. II. SUMMARY DISPOSITION A. STANDARD OP REVIEW A grant or denial of a motion for summary disposition is reviewed de novo. MEEMIC Ins Co v DTE Energy Co, 292 Mich App 278, 280; 807 NW2d 407 (2011). Statutory interpretation also presents a question of law that we review de novo. Hoffman v Boonsiri, 290 Mich App 34, 39; 801 NW2d 385 (2010). B. “REPORT” UNDER THE WPA “The WPA provides a remedy for an employee who suffers retaliation for reporting or planning to report a suspected violation of a law, regulation, or rule to a public body.” Anzaldua v Neogen Corp, 292 Mich App 626, 630; 808 NW2d 804 (2011). The purpose of the WPA is to protect the public by facilitating employee reporting of illegal activity. Id. at 631. It is the plaintiffs burden to establish a prima facie case under the WPA, which requires a showing that “(1) the plaintiff was engaged in a protected activity as defined by the WPA, (2) the plaintiff was discharged, and (3) a causal connection existed between the protected activity and the discharge.” Manzo v Petrella, 261 Mich App 705, 712; 683 NW2d 699 (2004). “The determination whether evidence establishes a prima facie case under the WPA is a question of law that this Court reviews de novo.” Roulston v Tendercare (Mich), Inc, 239 Mich App 270, 278; 608 NW2d 525 (2000). In regard to the first element of a prima facie case, a plaintiff engages in a protected activity when he or she (1) reports to a public body a violation of the law, a regulation, or a rule, (2) is about to report such a violation to a public body, or (3) is being asked by a public body to participate in an investigation. Manzo, 261 Mich App at 712-713; see also Ernsting v Ave Maria College, 274 Mich App 506, 510-511; 736 NW2d 574 (2007) . On appeal, defendant argues that the trial court erred by denying its motion for summary disposition because plaintiff failed to actually make a report. As a matter of statutory interpretation, the definition of “report” is a question of law we review de novo. See Hoffman, 290 Mich App at 39. While the WPA does not define the term “report,” courts may consult dictionary definitions when giving undefined statutory terms their plain and ordinary meaning. Koontz v Ameritech Servs, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002). Accordingly, Random House Webster’s College Dictionary (2005) defines “report” as “a detailed account of an event, situation, etc., [usually] based on observation or inquiry.” According to plaintiffs deposition testimony, she asked the BAYANET officer the following question: “If you’re in a situation where there’s illegal drugs and you happen - and this person happens to get in trouble, what is your consequence?” Essentially, plaintiff called the BAYANET officer to inquire about her potential liability if Client A’s behavior was discovered, not to report any illegal behavior. Plaintiff did not provide any particulars or otherwise convey information that could have assisted the BAYANET officer in actually investigating any wrongdoing. There is no evidence that plaintiff identified herself, Client A, or Client A’s location, nor did she provide any sort of detailed account of the situation. She did not even appear to specify the type of “illegal drugs” at issue. Thus, rather than providing a “detailed account of an event, situation, etc.;” plaintiff was merely seeking to obtain information and advice. Her lack of behavior that would constitute reporting is underscored by her negative response when the BAYANET officer asked if she wanted to take any further action. Plaintiff analogizes the instant case to Whitaker v US Sec Assoc, Inc, 774 F Supp 2d 860 (ED Mich, 2011). In Whitaker, the plaintiff was a security officer at the Detroit Metropolitan Wayne County Airport, and he brought an action under the WPA against the defendant, claiming that the defendant had retaliated against him for internal complaints and an e-mail he sent to the Transportation Security Administration (TSA). Id. at 861-865. The e-mail identified gate-related security issues at the airport and indicated that the plaintiff had “some questions on the regulations.” Id. at 863. The federal district court held that the plaintiff had established a prima facie case under the WPA because the e-mail was a “report.” Id. at 868, 871. The court explained that the e-mail specifically identified two problems and communicated the plaintiffs intent to learn more about the regulations applicable to the two security concerns. Id. at 868-869. The court noted that the TSA and the defendant’s own management construed this email as “raising concrete security concerns that warranted further investigation . ...” Id. at 868. Ultimately, the court rejected the defendant’s contention that the plaintiffs e-mail “merely posed questions and sought information . ...” Id. at 869. Whitaker is not similar to the instant case. The plaintiff in Whitaker specifically identified the regulatory violations and provided the TSA with sufficient information to further investigate the regulatory violations. Here, in contrast, plaintiff only referred to “illegal drugs” and did not provide the BAYANET officer with any information to further investigate the illegal activity. Thus, plaintiffs reliance on Whitaker is misplaced. Moreover, categorizing plaintiffs behavior as a report under the WPA would not further the purpose of the statute, namely, to protect the public by encouraging reporting of illegal activity. Plaintiffs phone call did not provide law enforcement with the means to investigate Client A’s marijuana use or to protect the public from that behavior. Plaintiffs only concern was to obtain information about her hypothetical liability, not to provide law enforcement officials with any concrete facts from which they could actually investigate or enforce the law. Thus, plaintiff failed to establish that she made a report under the WPA and because she failed to establish a prima facie case, defendant was entitled to summary disposition. C. “ABOUT TO REPORT” UNDER THE WPA On cross-appeal, plaintiff argues that the trial court improperly dismissed her “about to report” claim and granted summary disposition to defendant. As noted, the WPA extends to employees who are about to report a suspected violation. Manzo, 261 Mich App at 712-713. Thus, “[a] plain meaning reading of the act shows that an employee ‘about to’ report receives the same level of protection as one who has reported to a public body.” Shallal v Catholic Social Servs of Wayne Co, 455 Mich 604, 611; 566 NW2d 571 (1997). An “employee seeking protection under the ‘about to report’ language of the act [must] prove his intent by clear and convincing evidence.” Chandler v Dowell Schlumberger Inc, 456 Mich 395, 400; 572 NW2d 210 (1998); see also MCL 15.363(4). The employer also is entitled “to objective notice of a report or a threat to report by the whistle-blower.” Roulston, 239 Mich App at 279 (quotation marks and citations omitted). In the instant case, plaintiff discussed Client A’s marijuana use with her supervisor and coworkers and called BAYANET to inquire about any potential liability. Plaintiff argues that these facts establish a prima facie case that she was about to report a violation. In particular, plaintiff relies on her phone call to BAYANET to support her argument that she was about to report Client A’s behavior. However, as discussed earlier, that phone call was not a report. Moreover, simply because plaintiff called BAYANET to inquire about her potential liability does not demonstrate that she intended to take any further action and actually report the behavior to a public body. In fact, when the BAYANET officer asked if she would like to take any further action, plaintiff declined the offer. Plaintiffs discussions with coworkers and supervisors about Client A’s behavior also fail to demonstrate that she intended to report the behavior. Her conversations demonstrate only that while plaintiff knew about the behavior and had a sufficiently long time to report the behavior, she declined to do so. There also is no evidence that plaintiff informed anyone that she was about to take further action and report the behavior to a public body. In sharp contrast is Shallal, 455 Mich at 613-614, 621, in which the plaintiff told the president of the company that she would report him for misusing funds and abusing alcohol if he did not “straighten up.” The plaintiff in Shallal also discussed with various individuals the possibility of reporting the president’s behavior. Id. at 613-614, 620 n 9. Our Supreme Court held that the plaintiffs explicit threat to report the president combined with her other actions satisfied the “about to report” language of the statute. Id. at 615, 621. Yet in the instant case, there is no evidence that plaintiff communicated such an explicit threat to report the behavior. There also is no evidence that plaintiff informed others that she intended to actually report the behavior to a public body. Consequently, there is no evidence that defendant received objective notice that plaintiff was about to report Client A’s behavior to a public body. Plaintiff never informed or threatened defendant that she would place a second call to BAYANET or another law enforcement agency. There is nothing in the record to suggest that plaintiff explicitly or implicitly informed defendant that a report of Client A’s illegal activity was pending. Therefore, the trial court did not err by granting summary disposition to defendant on plaintiffs “about to report” claim because there is no clear and convincing evidence of her intent to report the behavior. III. CONCLUSION Because plaintiff failed to establish a prima facie case for her “report” and “about to report” claims under the WPA, defendant was entitled to summary disposition. We decline to address plaintiffs arguments concerning attorney fees because she is no longer a prevailing party and is not entitled to fees. We reverse the trial court’s judgment in favor of plaintiff and the award of fees and costs to plaintiff. We remand this case for proceedings consistent with this opinion and do not retain jurisdiction. Owens, P.J., and Fitzgerald and Riordan, JJ., concurred. Similarly, in People v Holley, 480 Mich 222, 228; 747 NW2d 856 (2008) , our Supreme Court relied on

WURTZ v BEECHER METROPOLITAN DISTRICT Docket No. 301752. Submitted March 13, 2012, at Detroit. Decided October 2, 2012, at 9:05 a.m. Leave to appeal granted, 494 Mich 862. Richard L. Wurtz brought an action under the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., in the Genesee Circuit Court against Beecher Metropolitan District, Leo McClain, Jacquelin Corlew, and Sheila Thorn. On February 1, 2000, plaintiff signed a 10-year employment contract with the district, which provided water and sewage services in Genesee County. Plaintiff alleged that defendants violated the WPA when they decided not to renew his contract after he engaged in activities that amounted to whistleblowing during 2008 and 2009. The individually named defendants were three of the five elected board members for the district during the relevant period. Defendants moved for summary disposition under MCR 2.116(0(10), asserting that plaintiff had not suffered an adverse employment action and that the district had no obligation to renew his contract. The court, Judith A. Fullerton, J., granted summary disposition in favor of defendants concluding that plaintiff had not suffered an adverse employment action. Plaintiff appealed. The Court of Appeals held.-. 1. The elements of a prima facie case under the WPA are well established: (1) the plaintiff was engaged in protected activity as defined by the act, (2) the plaintiff was discharged or discriminated against, and (3) a causal connection exists between the protected activity and the discharge or adverse employment action. Under the act, protected activity includes reporting to a public body a violation of a law, regulation, or rule. Plaintiff engaged in protected activity under the act when he reported to the local prosecutor and other governmental entities that he suspected that defendants had violated the Open Meetings Act, MCL 15.261 et seq., and when he met with members of the sheriffs office to report that he believed the individual defendants had acted illegally with regard to reimbursements they had claimed for attending an American Water Works Association conference in San Diego. For an employer’s action to amount to an adverse employment action, the action must he materially adverse, meaning that it must be more than a mere inconvenience or an alteration of job responsibilities. Nonrenewal of an employment contract may constitute an adverse employment action under the WPA. To hold otherwise would be to carve an arbitrary distinction between contractual and at-will employees. Accordingly, the trial court erred by granting summary disposition in favor of defendants on that basis. 2. Summary disposition before the close of discovery is appropriate if there is no reasonable chance that further discovery will result in factual support for the nonmoving party. However, summary disposition is inappropriate when questions of motive, intention, or other conditions of the mind are material issues. Whether nonrenewal of a contract amounts to an adverse employment action in a particular instance will depend on the circumstances of the case. In this case, summary disposition was premature. Plaintiff was not given an adequate opportunity to develop a record regarding whether the nonrenewal of his contract was an adverse employment action. Plaintiff had submitted a discovery request for documents concerning whether other contractual employees had their contracts renewed. Whether other employees’ contracts were renewed pro forma was relevant to whether plaintiff’s contract was not renewed because of his whistleblowing activity. Further, questions of material fact remained regarding when the district decided not to renew plaintiff’s contract. Summary disposition was also improper because the motivation for defendants’ decision not to renew plaintiff’s contract was at issue. Reversed and remanded. K. F. Kelly, J., dissenting, would have affirmed the decision of the trial court. The WPA requires the existence of an employment relationship; its protections do not extend to cover former employees who seek reemployment, to preemployment negotiations, or to the refusal to hire. By plaintiff’s own admission, defendants scrupulously adhered to the terms of his contract. Absent a contractual obligation or legal duty to consider an extension or renewal of an employment contract, a cause of action under the WPA is unavailing when a contractual employee finishes a fixed-term contract. Because plaintiff was not an employee under the act after his contract was fulfilled, he did not suffer an adverse employment action. Because no additional amount of discovery would have assisted plaintiff in developing his case, the trial court correctly granted summary disposition in favor of defendants. Labor Relations — Whistleblowers’ Protection Act — Adverse Employment Actions — Nonrenewal of an Employment Contract. The elements of a prima facie case under the Whistleblowers’ Protection Act are (1) the plaintiff was engaged in protected activity as defined by the act, (2) the plaintiff was discharged or discriminated against, and (3) a causal connection exists between the protected activity and the discharge or adverse employment action; under the act, protected activity includes reporting to a public body a violation of a law, regulation, or rule; for an employer’s action to amount to an adverse employment action, the action must be materially adverse, meaning that it must be more than a mere inconvenience or an alteration of job responsibilities; nonrenewal of an employment contract may constitute an adverse employment action under the act; whether nonrenewal of a contract amounts to an adverse employment action in a particular instance will depend on the circumstances of the case (MCL 15.361 et seq.). Charles A. Grossmann for plaintiff. Landry, Mazzeo & Dembinski, EC. (by David B. Landry and Nancy V. Dembinski), for defendants. Before: WHITBECK, EJ., and JANSEN and K. E KELLY, JJ. JANSEN, J. Plaintiff appeals by right an order granting summary disposition to defendants in this action under the Whistleblowers’ Protection Act (WPA). We reverse and remand for further proceedings consistent with this opinion. I. FACTS AND PROCEDURAL HISTORY This case pertains to the last two years of plaintiffs employment with Beecher Metropolitan District. The district provides water and sewage services to approximately 4,000 residential and commercial customers near Flint. The three individually named defendants, McClain, Corlew, and Thorn, were three of five elected board members for the district at all times relevant to this case. On February 1, 2000, plaintiff signed an employment contract with the district. The contract provided that the district would employ plaintiff from February 1, 2000, until February 1, 2010, as the district’s administrator. The parties do not dispute that plaintiff was employed for the full 10-year period under the contract, nor do the parties dispute that plaintiff received all compensation to which he was entitled under his contract. Rather, plaintiff alleges that he was discriminated against under the WPA when defendants decided to not renew his contract. Plaintiff alleges that, over the course of a two-year period, he engaged in activities that amounted to whistleblowing under the WPA, and that his contract was not renewed as a consequence of his whistleblowing activity. A. 2008 In May 2008, plaintiff sent a letter to the Genesee County Prosecutor, the Genesee County Sheriff, and the Mt. Morris Township police chief. The letter alleged that McClain, Corlew, and Thorn had violated the Open Meetings Act (OMA). Specifically, the letter claimed that plaintiff, in his capacity as administrator, had received a billing statement from an attorney indicating that on April 2, 2008, the attorney had met privately with board members McClain, Corlew, and Thorn. Plaintiff, in his letter, inferred that, because this attorney had no existing arrangement with the district, “a majority of the [board] had met privately . .. [with the attorney] to discuss public business.” The letter noted that the board had later voted to hire the attorney. The letter also claimed that the attorney, along with McClain, Corlew, and Thorn, had “attended a... union negotiating session. Neither [plaintiff], nor any other staff, nor the other 2 members of the Board, knew anything in advance about this meeting, which was not scheduled as a special meeting with the appropriate 18-hour notice to the public.” Plaintiff alleged that, because the April 2 meeting and the subsequent union negotiating session were private meetings involving a majority of the board, those meetings violated the OMA. It is unclear whether the sheriff or police chief responded to the letter, but David Leyton, the Genesee County Prosecutor, did. He wrote that criminal prosecution was but one remedy for OMA violations and that he did not believe that the events described by plaintiff warranted criminal investigation. The prosecutor accordingly did not act on plaintiffs letter. B. 2009 In January 2009, plaintiff sent a memorandum to McClain, the board president, proposing an extension and alteration of his employment contract. Plaintiff recommended that the district extend his employment to August 1, 2012, and reduce his salary and benefits, which would save the district about $33,000. At its February 11, 2009 meeting, the board told plaintiff that he could present the amended contract to the board, but at its March 11, 2009 meeting, a motion to have “[plaintiff] draw up an employment agreement with [the board’s attorney]” failed; McClain, Corlew, and Thorn voted against the motion. In May 2009, plaintiff expressed disapproval, in a memorandum sent to the board, about the possible expense to taxpayers of the board members’ upcoming trip to San Diego for the American Water Works Association (AWWA) conference. Plaintiff noted that the trip was projected to cost taxpayers $29,000, which included trips for the board members to Sea World and the San Diego Zoo. Moreover, the board members were apparently planning on driving to San Diego for the conference; plaintiff noted that “if gas mileage is given [for the board members to drive], as previously requested, that amounts to over $11,000.00, whereas members can fly from Bishop Airport. . . for $280.00 round trip .... Another $4,000.00 could be saved for food and lodging for the nearly ten days requested for travelling [by car].” Plaintiffs memorandum requested that the board pass resolutions detailing the method of compensation for travel, and recommended that the board members be reimbursed only for the price of airfare even if they opted to drive to the AWWA conference. On July 8, 2009, plaintiff asked the board to hold a special meeting to discuss the possibility of “mutually discontinuing]” their relationship, and an attempt at that meeting was held on July 15, 2009. Plaintiff, however, refused to meet with the board because the board had its attorney present for the meeting, and plaintiff interpreted the attorney’s presence as a breach of the “gentlemen’s understanding” that the meeting would be an open dialogue between the board and plaintiff only. Plaintiff indicated that he was “frustrated” with the board, but wanted to continue his employment with the district and expressed his desire to do so. In August 2009, after the AWWA conference, plaintiff met with members of the Genesee County Sheriffs Office to discuss his belief that the board members had acted improperly or illegally regarding reimbursements for their trip to the AWWA conference. For example, plaintiff was concerned that the board members had gone to the San Diego Zoo, Sea World, and lavish dinners with family and friends, all at taxpayer expense. Additionally, plaintiff told the sheriffs office that four of five board members actually flew to San Diego, but had reported that they drove, accordingly receiving an amount of per diem compensation and reimbursement for mileage that they were not entitled to claim. Following defendant’s meeting with the sheriffs office, a criminal investigation of the board members ensued. At least one article about the board members’ reimbursements from the AWWA conference appeared in the Flint Journal. Public attendance at board meetings increased, and at those meetings members of the public began openly questioning board members about their travel expenses. On November 11, 2009, Thorn made a motion to not extend plaintiffs employment contract beyond its expiration and to begin looking for a new administrator. The motion passed the board three votes to two. McClain, Corlew, and Thorn voted in favor of the motion. C. 2010 Plaintiffs last day of employment with the district was January 31, 2010. On January 19, 2010, plaintiff filed a complaint alleging that defendants had violated the WPA by not renewing his employment contract; plaintiff alleged that the board’s decision to not renew his contract was retaliation for his reporting suspected violations of, inter alia, the OMA, the Freedom of Information Act, and other Michigan statutes. On October 18, 2010, plaintiff served defendants with a request for production of employment contracts and records. Among other things, plaintiff asked for “the written contracts . . . [of] non-union employees who were employed anytime with the District between 1990 to the present.” Defendants did not produce these documents. On November 15, 2010, defendants filed a motion for summary disposition under MCR 2.116(C)(10), in which they argued that plaintiff did not suffer an adverse employment action because “there is no evidence that Defendants discharged, threatened, or discriminated against the Plaintiff regarding his compensation, terms, conditions, location or privileges of employment.” In any case, defendants argued, the board had no obligation to renew plaintiffs contract. Defendants also argued that the board’s decision to not renew plaintiffs employment contract was made for the first time in March 2009, well before any of the events surrounding the AWWA conference and reimbursements. That decision, according to defendants, was merely “reiterated” in November 2009, when the board formally voted to not renew defendant’s employment. Concurrent with the time frame of this case, the criminal case against the board members, including McClain, Corlew, and Thorn, related to the AWWA conference expenses and reimbursements, continued. The trial judge dismissed the charges against McClain, and a jury returned verdicts of not guilty in favor of Corlew, Thorn, and the other board members. In its response to defendants’ summary disposition motion, plaintiff argued that summary disposition was premature because at the time he served them with discovery requests, the criminal case against McClain, Corlew, and Thorn was still pending, and “the individual Defendants. . . exercised their 5th Amendment rights” and did not respond to discovery requests. Plaintiff asserted that “[n]ow, the Defendants, after taking the Plaintiffs deposition, but not allowing their own, [are] refusing to provide the requested information . . . .” The trial court granted defendants’ motion for summary disposition on December 6, 2010. After noting that whether nonrenewal of an employment contract amounts to an adverse employment action under Michigan law appears to be an issue of first impression, the trial court explained: [I]n this case the contract for the plaintiff did expire in February of TO — February 1. And despite the activities that took place earlier in the year of reporting by [plaintiff] to a public body and public officials ... everything from the [Flint] Journal [newspaper] to the sheriffs department and the prosecutor, the Board, and I’m surprised it happened, let him stay on to February 1 of TO. And so I find there’s no adverse employment action by the District and that summary disposition should be granted and I grant it. Plaintiff now appeals by right. II. STANDARD OF REVIEW “This Court reviews the grant or denial of summary disposition de novo to determine if the moving party is entitled to judgment as a matter of law. In making this determination, the Court reviews the entire record to determine whether defendant was entitled to summary disposition.” A motion under MCR 2.116(0(10) tests the factual sufficiency of the complaint. In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties ... in the light most favorable to the party opposing the motion. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law.[] “Whether a plaintiff has established a prima facie case under the WPA is a question of law subject to review de novo.” III. ANALYSIS The elements of a prima facie case under the WPA are well established: “(1) the plaintiff was engaged in protected activity as defined by the act, (2) the plaintiff was discharged or discriminated against, and (3) a causal connection exists between the protected activity and the discharge or adverse employment action.” The parties do not dispute that the first element of the prima facie case is satisfied here. In May 2008, plaintiff reported to the local prosecutor and other governmental entities that he suspected that defendants had violated the OMA; in August 2009, plaintiff met with members of the sheriffs office to report that he believed defendants had acted illegally with regard to the AWWA conference reimbursements. The WPA defines “protected activity” as, among other things, “ ‘reporting to a public body a violation of a law, regulation, or rule . . . .’ ” Accordingly, plaintiffs actions amount to a “protected activity” under the WPA. Defendants focus their argument on the second element of the prima facie case, arguing that plaintiff was a contractual employee, and the failure to renew his contract was not, and could not be, an adverse employment action because plaintiff had no expectation of employment after the expiration of his contract, the terms of which were fulfilled. Michigan courts have defined “adverse employment action” in the context of Michigan’s Civil Rights Act (CRA) and in the WPA context. Those definitions are identical. In both contexts, for an employer’s action to amount to an adverse employment action, the action must be “materially adverse,” meaning that it must be more than a “mere inconvenience or an alteration of job responsibilities . . . .” This definition of “adverse employment action” initially arose in federal courts, in the context of federal workplace discrimination laws, and was eventually adopted by Michigan courts for purposes of the CRA and the WPA. Michigan courts have also suggested that, in the CRA context, the nonrenewal of an employment contract may amount to an adverse employment action, although no Michigan case addresses the issue squarely. There are no Michigan cases interpreting the WPA that address the issue at all. “Though not binding on this Court, federal precedent is generally considered highly persuasive when it addresses analogous issues. In the context of discrimination cases, federal precedent may be consulted for guidance.” Accordingly, because the WPA’s definition of “adverse employment action” derives from the federal courts’ interpretation of the same term as used in federal discrimination laws, we turn to the federal courts for guidance regarding whether non-renewal of a contract may amount to an adverse employment action. This issue was addressed directly by the United States Court of Appeals for the Second Circuit in Leibowitz v Cornell University. In Liebowitz, the plaintiff, a 51-year-old female university professor, accepted an early retirement package after her employer did not offer

DR. YAN-MIN WANG, Petitioner v. UNC-CH SCHOOL OF MEDICINE and DR. WILLIAM SNIDER, Respondents No. COA10-1021 (Filed 4 October 2011) 1. Public Officers and Employees — Whistleblower Act — EPA non-faculty employee A de novo review revealed that the trial court did not err when it concluded that the Whistleblower Act applied to petitioner, an EPA non-faculty employee. 2. Public Officers and Employees — Whistleblower Act — sufficiency of findings of fact Although the trial court properly determined that petitioner was entitled to the protections of the Whistleblower Act, it erred by proceeding to determine that petitioner had been subjected to impermissible employment-related retaliation instead of remanding this issue to the Board of Governors (BOG) for appropriate findings of fact. The case was remanded to the superior court for further remand to the BOG. 3. Public Officers and Employees — doctor—failure to show gender, age, and national origin discrimination The trial court erred by reversing the Board of Governors’ (BOG) finding that a doctor had not discriminated against petitioner on the basis of her gender, age, and national origin. However, a remand was not necessary because there was competent, material, and substantial evidence in the record to support the BOG’s decision. 4. Constitutional Law — due process — equal protection The trial court erred by concluding that petitioner established the existence of valid due process or equal protection claims. Judge ELMORE concurring in part, concurring in result in part, and dissenting in part in separate opinion. Appeal by respondents from order entered 14 May 2010 by Judge Abraham Penn Jones in Orange County Superior Court. Heard in the Court of Appeals 9 February 2011. Alan McSurely for petitioner. Attorney General Roy Cooper, by Special Deputy Attorney General Gary R. Govertfor respondents. ERVIN, Judge. Respondents UNC-Chapel Hill School of Medicine and Dr. William Snider appeal an order reversing a decision of the Board of Governors of the University of North Carolina to the effect that Petitioner Dr. Yan-Min Wang had not been treated in an impermissible and unlawful manner in connection with her employment and ordering UNC-Chapel Hill to reinstate Petitioner to a position she previously held with the university, to pay Petitioner’s attorney’s fees, and to revise its grievance procedures. On appeal, Respondents argue that the trial court misapplied the whole record test in evaluating the BOG’s decision, erred reviewing the constitutional and other legal issues raised by Petitioner, and erred by reversing the BOG’s decision. After careful consideration of Respondents’ challenges to the trial court’s order in light of the record and the applicable law, we affirm the trial court’s order in part and reverse and remand the trial court’s order in part. I. Factual Background A. Substantive Facts On 1 August 2004, Dr. William Snider, the director of the Neuroscience Center at the UNC-Chapel Hill School of Medicine, appointed Petitioner to a part-time position as a research scientist. Dr. Snider leads a team that conducts experiments on the nerve processes of genetically modified mice. The funding necessary to support this work comes from grants provided by the National Institutes of Health and private foundations. Petitioner was initially appointed for a one year term, with her employment contingent upon the continued availability of the necessary funding and subject to the need for compliance with the University’s Employment Policies for EPA Non-Faculty Employees. In an e-mail sent prior to Petitioner’s appointment, Dr. Snider stated that, “if things go well” and the needed funding became available, Petitioner might obtain a full-time appointment as a non-tenure track research assistant professor in the future. On 27 April 2005, Dr. Snider submitted an application for a “reentry” grant from the NIH to fund Petitioner’s position as a full-time research assistant professor. On 1 August 2005, while the grant application was still pending, Petitioner was appointed to a second one-year term as a part-time research scientist. After her reappointment, Petitioner worked for Dr. Snider on a separate funding proposal involving the provision of support for Dr. Snider’s work using a line of experimental mice. As part of that process, Petitioner conducted preliminary genotyping tests on the mice used in the lab’s experiments for the purpose of confirming that the mice-in question were isletl-Cre positive as had been reported in the funding proposal. As a result of the tests that she performed, Petitioner concluded that the mice were not all isletl-Cre positive, a finding that she reported to Dr. Snider. Although the evidence concerning the extent to which there actually were any genotyping problems in the laboratory and what, if any, steps needed to be taken to identify and solve any genotyping problems was conflicting, the record indicates that, in early December 2005, Petitioner and Dr. Snider exchanged a series of e-mails in which they disputed the appropriateness of the tone that each had used in commrmicating with other during various conversations concerning the genotyping issue and the specifics of what each had said to the other during these conversations. On 12 December 2005, Dr. Snider learned that the NIH grant had been approved. In January 2006, Dr. Snider sent e-mails to Petitioner stressing the importance that the level of collegiality that she displayed while interacting with others would play in his decision concerning whether to reappoint Petitioner to another term of employment. On 31 January 2006, Dr. Snider informed Petitioner that he had decided not to recommend her for a research faculty appointment due to concerns about her tendency to make “intemperate comments” and engage in “harsh interactions.” However, Dr. Snider told Petitioner that, if she could “interact productively around the science,” he would set up a “mentoring committee” that would monitor Petitioner’s progress and advise him “if and when it is appropriate to make the research faculty appointment.” In February 2006, Petitioner met with Denise Vandervort, a human relations facilitator, for the purpose of expressing her concerns about Dr. Snider’s decision to refrain from recommending her for appointment to a full-time position. After discussing the matter with Petitioner and Dr. Snider, Ms. Vandervort and Dr. Snider “agreed that any further interactions between [Dr. Snider and Petitioner] should take place in the presence of a third party” and created a mentoring committee for the purpose of assisting in the resolution of the various issues that surrounded Petitioner’s employment. On 24 March 2006, the mentoring committee presented Petitioner with a “memorandum of understanding” detailing the terms under which she would be allowed to continue to work at the Center. However, Petitioner did not sign the MOU because she did not agree with its terms. On 31 March 2006, Petitioner met with Karen Silverburg, the Associate Dean of Human Resources, for the primary purpose of discussing her contention that Dr. Snider had “promised” to promote her to a full-time position. Although Plaintiff asserts in her brief before this Court that she “mentioned” problems with the mouse colony during this meeting, the record contains no indication that issues concerning laboratory procedures were addressed at that time. In late March and early April, 2006, Petitioner wrote a letter (referred to as the “Dear Dr.” letter) in which she complained about Dr. Snider’s “broken promises” to hire her as a full-time researcher. In addition, the “Dear Dr.” letter included a paragraph discussing Petitioner’s concerns about mouse genotyping in Dr. Snider’s lab. Petitioner e-mailed or gave this letter to Dr. James Anderson and Dr. Colin Hall, the chairs of the two departments in which Dr. Snider had an appointment; Associate Dean Karen Silverberg; Dr. Albert Collier, the University’s Scientific Integrity Officer; Wayne Blair and Dr. Laurie Mesibov, the University’s ombudsmen; and Dr. Anthony-Sam Lamantia, a professor in the Neurosciences Center and one of Dr. Snyder’s colleagues. According to applicable University policies, Drs. Anderson, Hall, Collier and Mesibov and Mr. Blair were faculty members or administrators to whom a complaint could appropriately be directed. However, Petitioner should not, under established University policy, have sent the “Dear Dr.” letter to Dr. Lamantia. After learning that Petitioner had sent a copy of the “Dear Dr.” letter to Dr. Lamantia, Dr. Snider decided that he could not work with Petitioner any longer. As a result, on 13 April 2006, Dr. Snider rejected the funding from the NIH grant which would have been used to employ Petitioner in a full-time position, instructed Petitioner to work at an off-campus site for the remainder of her contract, and notified Petitioner that she would not be reappointed. B. Procedural History On 23 April 2006, Petitioner filed a grievance with the EPA Non-Faculty Grievance Committee in which she alleged that Dr. Snider had failed to renew her appointment in retaliation for her decision to report his “broken promises” to promote her to a full-time position and the problems with mouse genotyping in his lab. On 1 June 2006, the Grievance Committee reported to Chancellor James Moeser that it had found “no basis to determine that Dr. Snider has engaged in unfair or retaliatory treatment toward the grievant or to other employees.” Petitioner appealed the Grievance Committee’s decision to the Chancellor, who rejected her appeal on 22 August 2006. At that point, Petitioner appealed to the Board of Trustees. On 20 December 2006, the BOT’s Grievance Panel remanded Petitioner’s grievance to the Grievance Committee in order to permit that body to make detailed factual findings concerning Petitioner’s grievance on the basis of a de novo review of the record and recommended that Petitioner be permitted to submit a new grievance. On 25 February 2007, Petitioner submitted a new statement of her grievances in which she asserted four claims: 1.) On April 13, 2006, Dr. Snider gave me a signed letter informing me that I was to [work off campus for the rest of my appointment.] This action was in retaliation for reports I had made about him to appropriate University administrative officials starting in late March, 2006 .. . concerning] matters governed by . . . University policy and [the Whistleblower Act.] 2.) On April 13, 2006 in the same letter Dr. Snider informed me that my contract would not be renewed and that my reentry grant would be returned to NIH. This action was in retaliation for reports I had made about him to appropriate University administrative officials starting in late March, 2006... concerning] matters governed by . . . University policy and [the Whistleblower Act.] 3.) During the entire period of my employment in his lab, Dr. Snider discriminated against me on the basis of my age (48), sex (female), and national origin (Chinese). After identifying the issues that it needed to address in order to resolve Petitioner’s grievance, the Grievance Committee reviewed documentary evidence, interviewed witnesses and conducted a hearing at which Petitioner and Dr. Snider presented their respective contentions. On 21 May 2007, the Grievance Committee issued a report concluding that it could not “find in favor of any of Dr. Wang’s claims.” On 4 June 2007, Petitioner appealed the Grievance Committee’s decision to the Chancellor. On 10 October 2007, Chancellor Moeser rejected Petitioner’s appeal. Petitioner appealed the Chancellor’s determination to the BOT, which rejected Petitioner’s appeal by means of a letter dated 26 February 2008. Petitioner appealed the BOT’s decision to the BOG on 11 July 2008. On 8 January 2009, the BOG’s Committee on Personnel and Tenure submitted a report addressing Petitioner’s allegations. The report was adopted by the BOG as its decision on the following day. In its decision, the BOG considered Petitioner’s arguments on a de novo basis. In response to Petitioner’s contention that she had been subjected to impermissible discrimination stemming from her age, sex, and national origin, the BOG concluded that, “based upon all of the evidence in the record and the legal precedents,” Petitioner had “failed to carry her burden of demonstrating that she was discriminated against.” Moreover, the BOG concluded that, given her status as an EPA Non-Faculty employee, Petitioner was not protected by the Whistleblower Act and that Petitioner was not entitled to relief on First Amendment grounds. In addition, the BOG stated that: Although we conclude that Dr. Wang does not have an appeal to this Board for retaliation under the whistleblower statute or the First Amendment, we note that the Record on Appeal does not show retaliation by Dr. Snider under either basis. It shows two people who simply could not get along, and a supervisor who finally reached the breaking point and ended the relationship. Finally, the BOG concluded that: in this appeal, Dr. Wang did not meet her burden of proving discrimination or retaliation. She did not show that discrimination or retaliation were the reasons she was not reappointed, the grant application was withdrawn, and/or she was barred from the lab. .. . Therefore, the Committee recommends that the Chancellor’s decision not to reappoint should be affirmed. On 9 February 2009, Petitioner filed a petition seeking judicial review of the BOG’s decision in the Orange County Superior Court. In her petition, Petitioner asserted that the BOG had erred in a number of respects, including allegations that: 1. The BOG erred by ruling that, as an EPA Non-Faculty employee, Petitioner was not protected by the Whistleblower Act. 2. The BOG erred by rejecting Petitioner’s claim to the protection of the First Amendment and analogous provisions of the North Carolina Constitution. 3. The BOG erred in its reliance on and interpretation of case law and its analysis of salaries paid to other employees in connection with its consideration of Petitioner’s discrimination claims[.] 4. The BOG erred by denying Petitioner’s request for copies of CD recordings of the witness interviews conducted in connection with the Grievance Committee’s investigation. 5. The BOG erred in its analysis of Petitioner’s retaliation and discrimination claims by failing to subject the record evidence to “a pretext or mixed motive analysis.” 6. The applicable grievance procedures, on their face and as applied to Petitioner, “violated Petitioner’s Constitutional rights under Article I of the North Carolina Constitution, particularly Sections 18 and 19, which provide for timely hearings and guaranteeing that the state will provide equal protection and the law of the land to all citizens, which includes the right to a fair, impartial hearing.” In addition, Petitioner asserted that the BOG’s decision was arbitrary and capricious and rested upon a misapplication of the applicable law. Petitioner’s petition came on for hearing before the trial court at the 25 January 2010 civil session of Orange County Superior Court. On 14 May 2010, the trial court entered an order reversing the BOG and ruling that: 1. Petitioner, an EPA Non-Faculty employee, was protected by the Whistleblower Act. 2. Dr. Wang’s distribution of the “Dear Dr.” letter was protected activity, and was “a substantial or motivating factor” in Dr. Snider’s decision not to renew her contract. 3. The BOG “arbitrarily and capriciously mis-stated and misapplied the appropriate law” to the evidence concerning Petitioner’s claims under the Whistleblower Act by failing to “subject the evidence to the pretext and mixed motive analyses.” 4. The BOG violated Petitioner’s rights under the North Carolina Constitution by failing to provide her with transcripts of its interviews with witnesses. 5. The applicable grievance procedures, which afford more procedural rights to career State employees who challenge the existence of just cause for an adverse employment action than to EPA Non-Faculty employees who file a grievance alleging discrimination or retaliation, violated Petitioner’s rights to due process and equal protection. Based upon these determinations, the trial court ordered the UNC School of Medicine to “reinstate, Petitioner in a comparable position with retroactive pay and benefits that she would now be entitled to as if she had been employed since the University banned her from her workplace!,] • • • reimburse her reasonable attorney’s fees and costs[,] . . . bring the University’s unconstitutional Grievance Procedure into compliance consistent with this Decision and Order, and . . . make available to all parties ... all testimonial evidence adduced in any grievance!.]” Respondents noted an appeal to this Court from the trial court’s order. II. Legal Analysis A. Standard of Review According to N.C. Gen. Stat. § 150B-43, “[a]ny person who is aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of the decision.” N.C. Gen. Stat. § 150B-51(b) authorizes a trial court to reverse or modify an agency’s decision if the petitioner’s substantial rights have been prejudiced because the agency’s findings, inferences, conclusions, or decisions are: (1) In violation of constitutional provisions; (2) In excess of the statutory authority or jurisdiction of the agency; (3) Made upon unlawful procedure; (4) Affected by other error of law; (5) Unsupported by substantial evidence admissible under [N.C. Gen. Stat. §§] 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted; or (6) Arbitrary, capricious, or an abuse of discretion. “On judicial review of an administrative agency’s final decision, the substantive nature of each assignment of error dictates the standard of review.” N.C. Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C. 649, 658, 599 S.E.2d 888, 894 (2004). The first four grounds are “law-based” inquiries warranting de novo review. The latter two grounds are “fact-based” inquiries warranting review under the whole-record test. Under de novo review, a court “considers the matter anew[] and freely substitutes its own judgment for the agency’s.” Under the whole-record test, a court “examines all the record evidence ... to determine whether there is substantial evidence to justify the agency’s decision.” Trayford v. N.C. Psychology Bd., 174 N.C. App. 118, 121, 619 S.E.2d 862, 863-64 (2005) (quoting Carroll, 358 N.C. at 659-60, 599 S.E.2d at 894-95), aff’d, 360 N.C. 396, 627 S.E.2d 462 (2006). “As to appellate review of a superior court order regarding an agency decision, ‘the appellate court examines the trial court’s order for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.’ ” ACT-UP Triangle v. Commission for Health Servs., 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (quoting Amanini v. N.C. Dep’t of Human Resources, 114 N.C. App. 668, 675, 443 S.E.2d 114, 118-19 (1994)). In reviewing “an agency decision, the trial court should state the standard of review it applied to resolve each issue.” Zimmerman v. Appalachian State Univ., 149 N.C. App. 121, 130, 560 S.E.2d 374, 380 (2002) (citing In re Appeal of Willis, 129 N.C. App. 499, 502, 500 S.E.2d 723, 726 (1998)). B. Whistleblower Act 1. Applicability N.C. Gen. Stat. Chapter 126, Article 14, §§ 126-84-88, which is commonly known as the “Whistleblower Act,” protects State employees who report serious misconduct to their superiors or other appropriate authorities. The determination of whether EPA Non-Faculty employees such as Petitioner are protected by the Whistleblower Act requires inte