Whistleblower Cases

O’NEILL v HOME IV CARE, INC Docket Nos. 226428, 228162. Submitted January 9, 2002, at Detroit. Decided February 5, 2002, at 9:10 am. Leave to appeal sought. Mary O’Neill brought an action in the Oakland Circuit Court against Home I.V. Care, Inc., and others, alleging that the defendants violated the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seq., in terminating the plaintiffs employment after she reported the defendants’ wage practices to state and federal authorities. Mediation resulted in an evaluation in favor of the plaintiff. The defendants accepted, and the plaintiff rejected, the evaluation. A jury returned a lesser verdict in favor of the plaintiff. The plaintiff submitted to the court a proposed judgment that added to the jury verdict an award of attorney fees and costs pursuant to the wpa and prejudgment interest. The defendants objected to the proposed judgment, arguing that any award of attorney fees that results in the plaintiff’s receiving a judgment high enough to avoid sanctions for her rejection of the mediation evaluation would defeat the purpose of mediation. The plaintiff filed a motion to settle the judgment. The defendants moved for an award of attorney fees and costs as mediation sanctions. At the hearing on the plaintiffs motion, the court, Robert L. Templin, J., over the plaintiff’s objection, decided to also hear the defendants’ motion. The court agreed with the defendants that the plaintiff should not be allowed to avoid mediation sanctions and thus awarded attorney fees in an amount that ensured that the judgment was less favorable to the plaintiff than the mediation evaluation. After conducting a subsequent hearing on the reasonableness of the defendants’ request for an award of attorney fees and costs as mediation sanctions, the court made the requested award. The plaintiff appealed. The Court of Appeals held,-. 1. The trial court abused its discretion by taking into consideration the mediation evaluation and sanctions in determining the plaintiff’s award of attorney fees and costs under the wpa. In deciding whether a plaintiff in an action under the wpa should be awarded costs and attorney fees, a court must limit its consideration to the purpose of the wpa (which is to remove barriers to an employee who seeks to report a violation of law, thereby protecting the integrity of the law and the public at large), the purpose of the attorney fee and cost provisions (which is to encourage whistleblowers discriminated against by their employers to seek legal redress, to ensure them access to the courts, and to prevent employer retaliation against them), and factors relevant to the reasonableness of the attorney fee request. 2. The award of mediation sanctions to the defendants is vacated without prejudice. The case is remanded to a different judge for redetermination of an award of costs and attorney fees to the plaintiff. If the resulting judgment for the plaintiff is less favorable than the mediation evaluation, the defendants can again seek attorney fees and costs as mediation sanctions. Reversed in part, vacated in part, and remanded for further proceedings. Master and Servant — Whistleblowers’ Protection Act — Mediation. A court, in deciding whether to award costs and attorney fees to a plaintiff who prevails against the plaintiff’s employer at trial in an action under the Whistleblowers’ Protection Act after rejecting a mediation evaluation in the plaintifFs favor, may not consider the effect the award would have on the plaintiff’s liability for mediation sanctions; the court must limit its consideration to the purpose of the act, the purpose of the cost and attorney fee provisions of the act, and factors relevant to the reasonableness of the attorney fee request (MCL 15.364; MCR 2.403). Chapman & Associates (by Ronald W. Chapman and Brian J. Richtarcik), for the plaintiff. Miller, Canfield, Paddock and Stone, PL.C. (by Megan P. Norris and Philip B. Phillips), for the defendants. Before: Hood, P.J., and Murphy and Markey, JJ. Murphy, J. Plaintiff Mary O’Neill appeals as of right from an order awarding her attorney fees, costs, and interest pursuant to MCL 15.364, § 4 of the Whistle-blowers’ Protection Act (wpa), MCL 15.361 et seq. Plaintiff disputes the amount of the award. Plaintiff also appeals as of right from a subsequent order awarding defendants attorney fees and costs as mediation sanctions pursuant to MCR 2.403(0). We reverse and remand for a proper determination of plaintiffs attorney fees and costs pursuant to MCL 15.364, and we vacate, without prejudice, the award of mediation sanctions to defendants. Plaintiff was terminated from her job with defendants after she alerted the United States and Michigan Departments of Labor to defendants’ wage practices. Plaintiff filed a complaint, and subsequent amended complaints, alleging that she was terminated in violation of the wpa. Plaintiff also alleged retaliatory discharge against public policy and age discrimination in violation of the Michigan civil rights act (cra), MCL 37.2101 et seq. The lower court record indicates that both the retaliatory discharge and age discrimination claims were summarily dismissed. The case was submitted to mediation that resulted in a mediation evaluation of $30,000 in favor of plaintiff. Defendants accepted, and plaintiff rejected, the mediation evaluation. A four-day jury trial was held on plaintiff’s wpa claim, and the jury found in her favor, awarding plaintiff $20,245 in economic damages. Plaintiff submitted a proposed judgment under the seven-day rule, MCR 2.602(B)(3), in which plaintiff sought entry of a judgment incorporating the $20,245 jury verdict and awarding her $48,869 in attorney fees and costs pursuant to MCL 15.364, plus $2,922 in prejudgment interest. Defendants timely objected to the proposed judgment, arguing that the prejudgment interest plaintiff was entitled to amounted to only $1,484. In regards to plaintiff’s attorney fees, defendants argued that plaintiff failed to submit documentation supporting the award, that the request was not reasonable in light of the small jury verdict, and that plaintiff was not the prevailing party under MCR 2.625 because two of the causes of action had been dismissed. Further, defendants argued that plaintiff was not entitled to any fees incurred after rejection of mediation and that to award plaintiff the requested attorney fees would defeat the purpose of mediation sanctions that defendants were rightfully entitled to receive. Subsequently, plaintiff filed a motion to settle the judgment and for an award of attorney fees and costs incurred in litigating the wpa claim. Plaintiff argued in the motion that the mediation evaluation should not be considered in determining her attorney fees and costs, and that the amounts requested were assessable costs to be added to the jury verdict under MCR 2.403(O)(3). Although a judgment on the jury verdict had yet to be entered, defendants filed a motion for taxation of costs and attorney fees, requesting $1,097 in costs and $40,526 in attorney fees on the basis that they were entitled to mediation sanctions under MCR 2.403(0). A hearing on plaintiff’s motion to settle the judgment and for an award of attorney fees and costs was held, and the trial court decided, over plaintiff’s objection, to also address defendants’ motion for taxation of costs and attorney fees based on the mediation evaluation. The trial court rejected plaintiff’s argument that it should not consider the mediation evaluation and sanctions until a judgment was entered on plaintiff’s motion to settle the judgment, including the calculation of costs and attorney fees to be awarded pursuant to § 4 of the wpa, MCL 15.364. The following colloquy occurred at the hearing regarding plaintiff’s attorney fees and costs: Defense counsel. Now, if the Court is inclined to award costs and attorney fees, that [it] not award costs and attorney fees at a point—at a level where [plaintiff is] able to escape the mediation rules, which are clear. If [plaintiff is] given attorney fees, be it a maximum of one-third of whatever the verdict was or whatever number the Court determines is reasonable[,] [b]e it [$]6, $7,000, it should not be a number that permits [plaintiff] to be 10 percent better than the jury verdict in this case, which allows [plaintiff] to double dip and escape the mediation rules. Even if the verdict was a dollar, [plaintiff] can still do the same thing and I don’t think that is appropriate and defeats the entire purpose of the mediation sanction rules. The Court. Well, I agree with Defendant. What I am going to do is this. We’re going to award to the Plaintiff[,] attorney fees in the amount of $7,000. From this exchange, and others during the hearing, it is clear the trial court based its decision to award only $7,000 in attorney fees on its concern that too large an award would allow plaintiff to avoid mediation sanctions under MCR 2.403(0). The trial court also awarded plaintiff costs of $2,063, plus $1,499 in interest. Adding those amounts to the jury award of $20,245, the trial court calculated the adjusted verdict to be $30,807. After this adjustment, and taking into consideration the $30,000 mediation evaluation, the trial court found that the verdict was not more favorable to plaintiff because $30,807 was less than ten percent above the case evaluation. Therefore, the trial court ordered that defendants were entitled to mediation sanctions. Following a subsequent evidentiary hearing concerning the reasonable amount of attorney fees and costs incurred by defendants after the mediation rejection, the trial court awarded defendants attorney fees and costs in the amount of $48,766 pursuant to MCR 2.403(0). On appeal, plaintiff contends that the trial court erred in determining the amount of attorney fees and costs that she was entitled to under the wpa, and that the court erred in determining the amount of attorney fees and costs defendants were entitled to under MCR 2.403(G). Specifically, plaintiff argues that the trial court abused its discretion by failing to award plaintiff all her reasonable attorney fees pursuant to MCL 15.364, erred in wrongly considering mediation sanctions as a factor in determining the reasonableness of attorney fees requested pursuant to MCL 15.364, and erred in considering defendants’ motion for mediation sanctions before entry of the final judgment. We agree with plaintiff that the trial court abused its discretion by taking into consideration the mediation evaluation and sanctions when determining plaintiff’s award of attorney fees and costs under MCL 15.364. In Phinney v Perlmutter, 222 Mich App 513, 560; 564 NW2d 532 (1997), this Court stated that the decision to award attorney fees under the wpa is reviewed on appeal for an abuse of discretion. A trial court abuses its discretion by rendering a decision when an unbiased person would conclude that there was no justification or excuse for the decision after consideration of the facts relied on by the trial court. Miller v Hensley, 244 Mich App 528, 529; 624 NW2d 582 (2001). MCL 15.364 provides, in relevant part, that “[a] court may also award the complainant all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, if the court determines that the award is appropriate.” Section 802 of the CRA, MCL 37.2802, contains language nearly identical to that found in MCL 15.364. The Legislature’s use of nearly identical language is meaningful, and we believe it appropriate to consider case law addressing MCL 37.2802 when analyzing the issues regarding MCL 15.364 because there is a lack of relevant case law concerning the wpa. See Anzaldua v Band, 457 Mich 530, 546-548; 578 NW2d 306 (1998). In Grow v W A Thomas Co, 236 Mich App 696, 714-715; 601 NW2d 426 (1999), this Court noted the following factors for consideration when determining attorney fees and costs under the CRA; Where attorney fees are to be awarded, the court must determine the reasonable amount of fees according to various factors, including (1) the skill, time, and labor involved, (2) the likelihood, if apparent to the client, that the acceptance of the employment will preclude other employment by the lawyer, (3) the fee customarily charged in that locality for similar services, (4) the amount in question and the results achieved, (5) the expense incurred, (6) the time limitations imposed by the client or the circumstances, (7) the nature and length of the professional relationship with the client, (8) the professional standing and experience of the attorney, and (9) whether the fee is fixed or contingent. Wood v DAIIE, 413 Mich 573, 588; 321 NW2d 653 (1982); Head v Phillips Camper Sales & Rental, Inc, 234 Mich App 94, 114; 593 NW2d 595 (1999). The Grow panel noted that the existence of a contingent fee agreement did not preclude an award of attorney fees under the CRA and that such an arrangement is only one of the factors to be considered in determining a reasonable attorney fee. Grow, supra at 715. Here, the trial court’s focus was on the mediation evaluation and sanctions and not on the relevant factors noted in Grow Moreover, we are of the opinion that the trial court’s focus on mediation in determinmg attorney fees and costs under MCL 15.364 is contrary to the purpose of the wpa as well as the principles pertaining to mediation. Because the wpa is a remedial statute, it is to be liberally construed to favor the persons the Legislature intended to benefit. Chandler v Dowell Schlumberger Inc, 456 Mich 395, 406; 572 NW2d 210 (1998). In Hopkins v City of Midland, 158 Mich App 361, 374; 404 NW2d 744 (1987), this Court noted that the wpa was enacted to remove barriers to an employee who seeks to report violations of the law, thereby protecting the integrity of the law and the public at large. In Collister v Sunshine Food Stores, Inc, 166 Mich App 272, 274; 419 NW2d 781 (1988), this Court, citing Jenkins v Southeastern Michigan Chapter, American Red Cross, 141 Mich App 785, 801; 369 NW2d 223 (1985), stated that the purpose of the attorney fee and cost provisions of MCL 37.2802 (cra) is to “encourage persons who have been deprived of their civil rights to seek legal redress, to insure victims of employment discrimination access to the courts, and to deter discrimination in the work force.” The Collister panel further ruled that a decision by a court to award or deny attorney fees under the cra must be made in light of that purpose and may not be based on considerations inconsistent with that purpose. Collister, supra at 274. We believe that the purpose of the wpa, noted above, and the concerns regarding access to the courts and prevention of wrongful conduct enunciated in Collister, must be considered in making a determination regarding the award of attorney fees and costs under MCL 15.364. The trial court’s focus on the mediation evaluation, and the effect its ruling concerning attorney fees would have on mediation sanctions, are not proper considerations when viewed in the light of the purpose for which the wpa was enacted. We believe that the appropriate analysis in determining an award of attorney fees and costs under MCL 15.364 involves consideration of the various factors noted in Grow in conjunction with consideration of the purpose of the wpa, guided by the specific language found in MCL 15.364. Our decision is further supported by the rules concerning mediation. Although no court rule or statute specifically prohibits a judge from considering a mediation evaluation, after a jury trial, in determining whether to assess costs and award attorney fees, and in determining the amounts to be awarded, we believe that such a prohibition is implicit from various provisions found in MCE 2.403. MCE 2.403(N)(4) provides that “[i]n a nonjury action, the envelope [containing the mediation evaluation] may not be opened and the parties may not reveal the amount of the evaluation until the judge has rendered judgment.” MCE 2.403(D)(3) provides that “[a] judge may be selected as a member of a case evaluation panel, but may not preside at the trial of any action in which he or she served as a case evaluator.” MCE 2.403(N)(2)(d) precludes a judge from presiding at a nonjury trial if the judge hears a motion challenging a mediation panel’s determination that an action or defense is frivolous. These provisions clearly exist to preclude a judge from considering mediation sanctions before rendering judgment in a bench trial. Similarly, we see no reason why a judge should be allowed to consider mediation sanctions where a jury has rendered a verdict, but where the court has input in determining the amount of the final judgment through an award of attorney fees and costs as specifically provided by the Legislature. The danger is the same: the mediation evaluation and potential sanctions could influence a judge’s decision and result in a judgment based not on the facts of the case, but on the amount of the evaluation. The importance of secrecy concerning mediation evaluations is clearly reflected in Bennett v Medical Evaluation Specialists, 244 Mich App 227, 228; 624 NW2d 492 (2000), wherein this Court, addressing a situation where counsel improperly revealed a mediation evaluation, held that “when a party intentionally reveals the amount of a mediation evaluation to the trial court during a nonjury trial, the trial court must declare a mistrial and reassign the case to another judge.” The Bennett panel stated that “[o]ne of the main concerns of the mediation rule, as evidenced by certain subsections of MCR 2.403, is judicial impartiality where a mediated case proceeds to trial.” Bennett, supra at 231. We are of the opinion that judicial impartiality dictates that a judge not consider a mediation evaluation, and the potential sanctions, when determining an award of attorney fees and costs, as was done in the present case. Moreover, our review and interpretation of MCR 2.403(O)(8) leads us to conclude that from a procedural standpoint, consideration of a mediation evaluation before entry of judgment is not permissible. MCR 2.403(O)(8) provides that “[a] request for costs under this subrule must be filed and served within 28 days after the entry of the judgment or entry of an order denying a timely motion for a new trial or to set aside the judgment.” The basic principles regarding statutory interpretation also govern when interpreting court rules. Bennett, supra at 230. “ ‘A court rule should be construed in accordance with the ordinary and approved usage of its language in light of the purpose the rule seeks to accomplish.’ ” Id., quoting Bush v Mobil Oil Corp, 223 Mich App 222, 226; 565 NW2d 921 (1997). We believe that the language of MCL 2.403(O)(8) envisions that a judgment must first be entered before a party even makes a request for mediation sanctions, let alone before a judge entertains consideration of the mediation evaluation. Here, defendants improperly invoked the issue of mediation sanctions before the entry of the judgment, and the trial court improperly considered the mediation evaluation and sanctions before the final judgment was entered. We urge our Supreme Court to consider adoption of specific rules to address the problem that arose in the case before us today. Perhaps, mediation evaluations should remain sealed in all cases until a final judgment is entered, and not just in cases where a bench trial is involved, in order to avoid consideration, or the appearance of consideration, of improper factors. Minimally, we believe that it would be prudent to establish a rule that specifically prohibits a judge from considering a mediation evaluation before a final judgment is entered after a jury trial. In light of our decision, we vacate the award of mediation sanctions to defendants, without prejudice, to allow for a proper determination of attorney fees and cour

EDWIN SWAIN, Plaintiff v. CAROLYN ELFLAND, individually and in her official capacity as an Assistant Vice Chancellor for Auxiliary Services of the University of North Carolina at Chapel Hill, JEFFREY McCRACKEN, individually and in his official capacity as Major in the Police Department of the University of North Carolina at Chapel Hill, DRAKE MAYNARD, individually and in his official capacity as Human Resources Administrator for the University of North Carolina at Chapel Hill, and OTHER UNKNOWN UNIVERSITY OFFICIALS, and the UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Defendants No. COA00-258 (Filed 7 August 2001) 1. Employer and Employee— wrongful discharge — retaliation — conj ecture The trial court did not err by granting summary judgment for defendants on wrongful discharge and conspiracy claims by a UNC police officer who issued an underage drinking citation to the daughter of a University trustee. Plaintiff presented nothing more than conjecture to support his allegations of retaliation and there was no evidence of any agreement to unlawfully discharge plaintiff. 2. Public Officers and Employees— whistleblower claim— failure to exhaust administrative remedies The trial court did not err by dismissing a UNC police officer’s whistleblower claim for failure to exhaust administrative remedies where there was no question that he had unsuccessfully exercised his right to seek relief from the State Personnel Commission under N.C.G.S. § 126-34.1(a)(7) and did not seek judicial review. Although plaintiff contends that he could maintain an administrative action under N.C.G.S. § 126-34.1(a) (7) and an action in superior court under N.C.G.S. § 126-85, the only reasonable interpretation of these statutes is that a state employee may choose to pursue a whistleblower claim in either forum, but not both. Moreover, plaintiff did not include the required allegations that exhaustion of his administrative remedy would be futile, and, even if the two statutory provisions are assumed to be in para materia, N.C.G.S. § 126-34.1(a)(7) controls as the more recent enactment. 3. Constitutional Law— free speech — official capacities— adequate state remedy A dismissed UNC police officer’s state constitutional claim was properly dismissed where plaintiff brought a claim for alleged constitutional violations against defendants in their official capacities and had an adequate state remedy available to him. Appeal by plaintiff from order entered 13 December 1999 by Judge James C. Davis in Orange County Superior Court. Heard in the Court of Appeals 22 January 2001. McSurely & Osment, by Alan McSurely and Ashley Osment, for plaintiff appellant. Attorney General Michael F. Easley, by Senior Deputy Attorney General Ann Reed, Assistant Attorneys General Bruce S. Ambrose, and Richard E. Slipsky, for defendant appellees. SMITH, Judge. The plaintiff, Lt. Edwin Swain, Jr., is employed as a police officer at the University of North Carolina at Chapel Hill. On 27 September 1997, plaintiff was assigned to an “Interdiction and Arrest” team at a football game at Kenan Stadium. The primary purpose of the team was to enforce the alcohol laws. After the game, plaintiff observed a young woman, Caroline Hancock, holding what appeared to be a malt beverage. When plaintiff approached Hancock, a member of Hancock’s party alerted her to plaintiffs presence. Hancock took the bottle and placed it in the back of a truck. Plaintiff told Hancock he saw her in possession of a malt beverage, asked her if it was a beer, and she replied affirmatively. Plaintiff then requested Hancock’s driver’s license, which listed her age as eighteen years old. Plaintiff proceeded to write her a citation for underage drinking. Soon thereafter, Hancock’s father approached, and plaintiff informed him that he was citing Hancock. Hancock’s father, Billy Armfield, was a member of the University Board of Trustees. Armfield asked plaintiff not to issue the citation, but plaintiff declined the request. Plaintiff then left and headed back to the police department. After the game, Armfield protested his daughter’s citation to University officials. Plaintiff’s superior, Major Jeffrey McCracken, later communicated to plaintiff that there were questions regarding plaintiff’s probable cause to issue the citation. On 29 September 1997, plaintiff reported for duty and entered Hancock’s citation into the computer. According to plaintiff, Major McCracken ordered him to turn over the copies of the citation to him, and tried to persuade him to withdraw the citation. The citation was later pulled from a stack of citations ready for transfer to a magistrate. Plaintiff accused his superiors of obstruction of justice and refused to cooperate with them. On 31 September 1997, the citation was returned to the “judicial stream” and forwarded to the magistrate. Soon thereafter, plaintiff reported the alleged “coverup” to the media, and several news accounts appeared in the press. Plaintiff later filed a grievance to protest his supervisor’s decisions, and requested an investigation into what he believed was improper police procedures and obstruction of justice. Plaintiff’s grievances were denied. On 30 October 1997, Major McCracken received information that plaintiff, while on duty, had visited the offices of the Chapel Hill News. Plaintiff was seen there between the hours of noon and 2:00 p.m., and he was not there on official UNC-CH business. Major McCracken later confirmed this information with Anne England, an employee at the newspaper. Plaintiff had not informed his dispatcher of his location during this time period. Major McCracken did not immediately confront plaintiff with this information and instead decided to wait and see whether plaintiff claimed the time as personal time on his timecard. After plaintiff submitted his timecard, Major McCracken asked him about the time he spent at the newspaper on 30 October 1997. Plaintiff had not claimed the time as personal leave. Plaintiff’s reply was “interesting” without further elaboration. Major McCracken then gave plaintiff the opportunity to change his timecard, but plaintiff refused. A pre-disciplinary conference was held on 17 November 1997, and plaintiff declined to provide any explanation for his time-card. On 19 November 1997, Major McCracken fired plaintiff. Plaintiff filed the instant lawsuit on or about 2 December 1997 alleging: (1) violation of N.C. Gen. Stat. § 126-85 (1999), the “Whistleblower Act”; (2) wrongful discharge in violation of public policy and racial discrimination in violation of N.C. Gen. Stat. § 143-422.2 (1999); (3) violation of his state constitutional rights to free speech; and (4) a conspiracy by Carolyn Elfland, Major McCracken, and Drake Maynard to unlawfully discharge plaintiff from his employment. Shortly after plaintiff filed this action, his dismissal was rescinded by Chancellor Michael Hooker. Chancellor Hooker adopted the findings of an independent investigation which found there was just cause for discipline, but that dismissal was too harsh a penalty. Plaintiff was reinstated but suspended for one week without pay. On or about 23 December 1997, plaintiff filed a petition for a contested case hearing in the North Carolina Office of Administrative Hearings. Plaintiff alleged his suspension was without cause, and was the result of racial discrimination and retaliation. A hearing was held on 11-14 May 1998. On 31 July 1998, Judge Fred G. Morrison issued a Recommended Decision concluding that defendants had just cause to discipline plaintiff for unacceptable personal conduct, and that plaintiff was not the victim of illegal discrimination or retaliation. Accordingly, the suspension of plaintiff without pay for one week was affirmed. On 18 November 1998, the State Personnel Commission upheld the Recommended Decision. Plaintiff did not appeal. On 27 October 1999, defendants moved for summary judgment in the instant case. On 13 December 1999, the trial court granted summary judgment to defendants. The trial court concluded that: (1) plaintiffs Whistleblower claim was dismissed due to plaintiffs failure to exhaust his administrative remedies; (2) plaintiffs wrongful discharge claim was dismissed due to plaintiffs failure to exhaust his administrative remedies; (3) plaintiffs state constitutional claims were dismissed because plaintiff had an adequate state remedy available, and thus his claim was lacking an essential element; and (4) summary judgment on all claims in the complaint was allowed on the ground that there was no genuine issue of material fact and defendants were entitled to judgment as a matter of law. Plaintiff appealed. I. We first consider whether the trial court erred in dismissing plaintiffs complaint on summary judgment because there was no genuine issue as to any material fact. Specifically, plaintiff challenges the trial court’s dismissal of his claim of wrongful discharge, and his allegation that defendants conspired to unlawfully discharge him. To establish a cause of action for wrongful discharge or demotion in violation of his right to freedom of speech, plaintiff must forecast sufficient evidence “ ‘that the speech complained of qualified as protected speech or activity’ ” and “ ‘that such protected speech or activity was the ‘motivating’ or ‘but for’ cause for his discharge or demotion.’ ” Warren v. New Hanover County Bd. of Education, 104 N.C. App. 522, 525-26, 410 S.E.2d 232, 234 (1991) (quoting Jurgensen v. Fairfax County, 745 F.2d 868, 877-78 (4th Cir. 1984)). “ ‘[T]he resolution of these two critical issues is a matter of law and not of fact.’ ” Id. See also Evans v. Cowan, 132 N.C. App. 1, 9, 510 S.E.2d 170, 175 (1999). The only motivation established by the competent evidence in the case sub judice was that plaintiff was dismissed due to the discrepancies in his timecard and his refusal to either amend his timecard or provide an explanation for the discrepancies. Major McCracken, who was plaintiff’s supervisor, and made the decision to dismiss plaintiff, testified that plaintiff’s grievances over the ticket had “nothing to do” with the decision to dismiss plaintiff. In fact, Major McCracken testified that he took disciplinary action against plaintiff in spite of the publicity, not because of it. Major McCracken admitted that plaintiff’s submission of the falsified time-card created a “terrible timing” problem, but that he “had to act on it.” Chancellor Hooker testified that he concluded that plaintiff had violated policies, and although he believed the punishment of dismissal was too severe, there was no evidence to support a conclusion that any UNC-CH official was motivated to retaliate against plaintiff because he had gone to the newspapers. Chancellor Hooker also stated that the disciplinary action against plaintiff was in spite of all the attendant publicity, and not because of it. “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.” Lenzer v. Flaherty, 106 N.C. App. 496, 510, 418 S.E.2d 276, 284, disc. review denied, 332 N.C. 345, 421 S.E.2d 348 (1992). Here, plaintiff presented nothing more than mere conjecture to support his allegations of retaliation. Accordingly, we conclude that the trial court properly dismissed plaintiff’s retaliatory discharge claim. Because plaintiff’s underlying claims were properly dismissed, his allegation that defendants conspired to unlawfully discharge him must likewise fail. “A claim for conspiracy . . . cannot succeed without a successful underlying claim . . . .” Jay Group, Ltd. v. Glasgow, 139 N.C. App. 595, 599, 534 S.E.2d 233, 236, disc. review denied, 353 N.C. 265, 546 S.E.2d 100 (2000). See Burton v. Dixon, 259 N.C. 473, 476, 131 S.E.2d 27, 30 (1963) (“A civil action for conspiracy is an action for damages resulting from acts committed by one or more of the conspirators pursuant to the formed conspiracy ....”). Assuming arguendo that plaintiff had succeeded on his underlying claims, plaintiff has not pointed to any competent evidence in the record to support his allegations that defendants conspired to unlawfully discharge him, and our review of the record discloses no such evidence. This Court has stated: A civil conspiracy claim consists of: (1) an agreement between two or more persons; (2) to do an unlawful act or to do a lawful act in an unlawful way; (3) which agreement resulted in injury to the plaintiff. Although an action for civil conspiracy may be established by circumstantial evidence, sufficient evidence of the agreement must exist “to create more than a suspicion or conjecture in order to justify submission of the issue to a jury.” Boyd v. Drum, 129 N.C. App. 586, 592, 501 S.E.2d 91, 96 (1998) (citations omitted) (quoting Dickens v. Puryear, 302 N.C. 437, 456, 276 S.E.2d 325, 337 (1981)), aff'd, 350 N.C. 90, 511 S.E.2d 304 (1999). Where such an agreement exists, “ ‘all of the conspirators are liable, jointly and severally, for the act of any one of them done in furtherance of the agreement.’ ” Johnson v. First Union Corp., 128 N.C. App. 450, 459, 496 S.E.2d 1, 7 (1998) (quoting Fox v. Wilson, 85 N.C. App. 292, 301, 354 S.E.2d 737, 743 (1987)). In the case at bar, there is no evidence of any agreement among defendants to unlawfully discharge plaintiff. Carolyn Elfland testified that she did not make the decision to dismiss plaintiff, and did not instruct Major McCracken to dismiss him. Elfland was the Associate Chancellor for Auxiliary Services at the University and Major McCracken’s supervisor. Drake Maynard, Senior Director of Human Resources, testified that he provided information about the disciplinary process to Elfland and Major McCracken, but played no role in the decision to dismiss plaintiff. Thus, there is no evidence that defendants acted in concert to willfully and intentionally discredit and discharge plaintiff in violation of his rights, only plaintiff’s allegations based on mere suspicion. This assignment of error is overruled. II. We next consider whether the trial court erred in dismissing plaintiff’s “Whistleblower” claim on the ground that plaintiff failed to exhaust his administrative remedies. Plaintiff argues that N.C. Gen. Stat. § 126-86 (1999) expressly authorizes superior court jurisdiction over a state employee’s claim of retaliation for reports of governmental wrongs. Plaintiff asserts that he chose to sue in superior court pursuant to N.C. Gen. Stat. 126-86, and there is “no exhaustion condition precedent.” We are not persuaded by plaintiffs argument. Two statutes provide avenues to redress violations of the Whistleblower statute. N.C. Gen. Stat. § 126-86 states that “[a]ny State employee injured by a violation of G.S. 126-85 may maintain an action in superior court . . . .” N.C. Gen. Stat. § 126-34.1(a)(7) (1999) provides that a State employee may file in the Office of Administrative Hearings a contested case for “[a]ny retaliatory personnel action that violates G.S. 126-85.” Here, plaintiff alleged in his petition for a Contested Case Hearing that he had been retaliated against. Thus, it is without question that he exercised his right under N.C. Gen. Stat. § 126-34.1(a)(7) to seek relief from the State Personnel Commission of the alleged violation of the Whistleblower Act. Under plaintiff’s interpretation of the statutes at issue, he could maintain an administrative action and an action in superior court simultaneously. However, this would allow plaintiff two bites of the apple, could lead to the possibility that different forums would reach opposite decisions, as well as engender needless litigation in violation of the principles of collateral estoppel. See University of Tennessee v. Elliott, 478 U.S. 788, 797, 92 L. Ed. 2d 635, 645 (1986) (“[I]t is sound policy to apply principles of issue preclusion to the fact-finding of administrative bodies acting in a judicial capacity.”). The only reasonable interpretation of these statutes is that a state employee may choose to pursue a Whistleblower claim in either forum, but not both. See Hobbs v. Moore County, 267 N.C. 665, 671, 149 S.E.2d 1, 5 (1966) (“If possible, the language of a statute will be interpreted so as to avoid an absurd consequence. A statute is never to be construed so as to require an impossibility if that result can be avoided by another fair and reasonable construction of its terms.”). Id. (citations omitted). Plaintiff chose to pursue an administrative action, the administrative law judge ruled against plaintiff, and plaintiff did not seek judicial review. See Huang v. N.C. State University, 107 N.C. App. 710, 715, 421 S.E.2d 812, 815 (1992) (“[T]he policy of requiring the exhaustion of administrative remedies prior to the filing of court actions ‘does not require merely the initiation of prescribed administrative procedures, but that they should be pursued to their appropriate conclusion and their final outcome awaited before seeking judicial intervention . . . .’ ”). Id. (quoting 2 Am. Jur. 2d Administrative Law § 608 (1962)). Additionally, plaintiff did not allege in his complaint that exhaustion of his administrative remedy would be futile. “The burden of showing the inadequacy of the administrative remedy is on the party claiming the inadequacy, and the party making such a claim must include such allegation in the complaint.” Id. (citation omitted). Accordingly, we conclude that plaintiff has failed to exhaust his administrative remedies for this claim, and it was properly dismissed. Even if we were to assume arguendo that the two provisions in question here are in pari materia, but are in irreconcilable conflict, the provisions of N.C. Gen. Stat. § 126-34.1(a)(7) would control, because it is the more recent enactment. This Court has stated: Statutes in pari materia, although in apparent conflict or containing apparent inconsistencies, should, as far as reasonably possible, be construed in harmony with each other so as to give force and effect to each; but if there is an irreconcilable conflict, the latest enactment will control, or will be regarded as an exception to, or qualification of, the prior statute. State v. Hutson, 10 N.C. App. 653, 657, 179 S.E.2d 858, 861 (1971); see also Caudill v. Dellinger, 129 N.C. App. 649, 655, 501 S.E.2d 99, 103 (1998), aff’d in part, dismissed in part, 350 N.C. 89, 511 S.E.2d 304 (1999). Thus, N.C. Gen. Stat. § 126-34.1(a)(7) would control and plaintiff’s exclusive remedy would be administrative. III. We next consider whether the trial court erred in dismissing plaintiffs state constitutional claim on the grounds that plaintiff had an adequate state remedy available to him, and thus, plaintiff was lacking an essential element of his claim. Plaintiff alleged in his complaint that his discharge “was made to chill his free speech rights.” Plaintiff contended that “[t]he retaliatory discharge described here violates the public’s interest in free expression to make decisions about public funds and policies. If this retaliatory discharge is declared constitutional, it would create a chilling wind against plaintiff, other police officers, and other employees of this and other public institutions.” Plaintiff then stated he was bringing his claim directly against defendants, under the North Carolina Constitution, because no other legal remedy was available to him. We disagree with plaintiff’s arguments. Plaintiff’s complaint seeks a monetary remedy for alleged state constitutional violations by defendants. “Such a claim is commonly called a ‘Corum claim.’ ” Ware v. Fort, 124 N.C. App. 613, 616, 478 S.E.2d 218, 220 (1996). See Corum v. University of North Carolina, 330 N.C. 761, 413 S.E.2d 276, cert. denied sub. nom. Durham v. Corum, 506 U.S. 985, 616, 121 L. Ed. 2d 431 (1992). To the extent that plaintiff alleges a Corum claim against defendants in their in