Whistleblower Cases

ROULSTON v TENDERCARE (MICHIGAN), INC Docket No. 208342. Submitted July 7, 1999, at Grand Rapids. Decided January 7, 2000, at 9:00 am. Laura A. Roulston brought an action in the Mason Circuit Court against Tendercare (Michigan), Inc., and Baywood Nursing Home, assumed name of Tendercare Select Properties, Inc., alleging violation of the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seq.-, MSA 17.428(1) et seq., and claiming that her employment was terminated in retaliation for her reporting to state investigators incidents of suspected resident abuse at the Baywood Nursing Home. The court, Richard I. Cooper, J., entered a judgment in favor of the plaintiff consistent with the jury’s verdict. The defendants appealed. The Court of Appeals held: 1. The circumstantial evidence was such that a reasonable juror could find that the plaintiff was discharged for retaliatory reasons, even if the defendants had mixed motives for the discharge. The evidence indicated that retaliation for protected activity under the wpa, not the plaintiff’s alleged poor performance, was a motivating factor in the decision to discharge her. The proofs could sustain a reasonable inference that the plaintiff’s alleged poor performance was really a pretext for retaliation on the part of the defendants. The plaintiff presented sufficient evidence to raise a triable issue of fact that she was discharged in violation of the wpa. The court correctly denied the defendants’ motion for a directed verdict that alleged that the plaintiff failed to present a prima facie case under the wpa. 2. The court did not abuse its discretion in denying the defendants’ motion to exclude evidence regarding the state’s investigation of an incident at the nursing home and the outcome of the investigation. The evidence was relevant to a determination whether the defendants’ proffered business reason for the plaintiff’s discharge was unworthy of credence. The judgment must be affirmed and the matter must be remanded for a determination of appropriate appellate attorney fees. Affirmed and remanded. 1. Whistleblowers’ Protection Act — Words and Phrases — Protected Activity. “Protected activity” under the Whistleblowers’ Protection Act consists of reporting to a public body a violation of a law, regulation, or rule, or being about to report such a violation to a public body, or being asked by a public body to participate in an investigation (MCL 15.362; MSA 17.428[2]). 2. Whistleblowers’ Protection Act — Prma Facie Case. A prima facie case under the Whistleblowers’ Protection Act is established where the plaintiff shows that the plaintiff was engaged in protected activity as defined by the act, the defendant employer discharged the plaintiff, and a causal connection exists between the protected activity and the discharge (MCL 15.862; MSA 17.428[2]). 3. Whistleblowers’ Protection Act — Burden of Proof. The plaintiff in an action alleging the plaintiff’s discharge from employment violated the Whistleblowers’ Protection Act bears the initial burden of establishing a prima facie case of retaliatory discharge; if the plaintiff succeeds, the burden shifts to the defendant to articulate a legitimate business reason for the discharge; the plaintiff then has an opportunity to prove that the legitimate reason offered by the defendant was not the true reason, but was only a pretext for the discharge; once the pretext question is reached, the question of mixed motive, i.e., retaliation plus legitimate business reason, must be considered; a plaintiff can prove pretext either directly by persuading the court that a retaliatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence; factors for proving pretext include whether participation in a protected activity played any part in the discharge, whether the protected activity was a substantial factor in the discharge, whether the protected activity was the principal, but not sole, reason for the discharge, or whether the discharge would have occurred had there been no protected activity (MCL 15.361 et seq.; MSA 17.428[1] et seq.y Twohey Maggini, P L C (by Arthur B. DeBruyn), for the plaintiff. Bensinger, Cotant, Menkes & Aardema (by Dale L. Arndt), for the defendants. Before: McDonald, P.J., and Kelly and Cavanagh, JJ. Per Curiam. Defendants Tendercare (Michigan), Inc., and Baywood Nursing Home, assumed name of Tendercare Select Properties, Inc., appeal as of right from a jury verdict finding them liable for violation of the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seq.; MSA 17.428(1) et seq. We affirm and remand for a determination of reasonable appellate attorney fees. Plaintiff, Laura Roulston, holds a bachelor’s degree in psychology. She was hired in January 1996 to serve as social services director at defendant Baywood Nursing Home located in Ludington. She claimed that her employment was terminated in retaliation for reporting to state investigators incidents of suspected resident abuse. Robert VanRhee, the Baywood administrator who fired plaintiff, denied having any knowledge of the reports until after plaintiff’s discharge. VanRhee testified that plaintiff’s discharge was strictly a business decision based on deficiencies in her job performance, which included being confrontational with staff, being slow and failing to complete paperwork, and being late for or failing to attend meetings. On June 8, 1996, at 10:25 A.M., Vera Reed, a resident of the Baywood facility, passed away. When plaintiff learned of the death, she looked in on Helen Bennett, who had been Reed’s roommate for two years. Plaintiff found Bennett, crying and seemingly distressed over Reed’s death, sitting in her wheelchair with the wheels in the locked position, and with Reed’s body still lying on her bed. Plaintiff testified that she believed Bennett had been left in the room as a form of punishment. Defendants claimed that Bennett had been confined to her wheelchair following her moming shower, during which time she had become agitated. Defendants also stated that, because Bennett had been diagnosed as suffering from dementia, she was mentally incapable of comprehending Reed’s death. Plaintiff was moving Bennett away from her room when she met the undertaker and a Baywood aide on their way to attend to Reed’s body. The aide’s comments led plaintiff to believe that she had forgotten Bennett had been left in the room. Plaintiff later spoke to Sheryl Nelson, the charge nurse, and inquired about Bennett’s being left in the room with Reed’s body. Allegedly, Nelson became angry and shouted that plaintiff did not know what was going on. Nelson testified that she had no other place to put Reed’s body pending viewing by the family and removal by the funeral home. She also testified that she had put Bennett in her room to separate her from the other residents until she calmed down. Records showed that Reed’s body was moved to the funeral home at 12:20 P.M. Plaintiff testified that she also notified the director of nursing, Patsy Sherman, about the incident, and that Sherman recommended doing nothing until the following Monday, June 10, 1996, when VanRhee could be consulted. Sherman testified that she began investigating the alleged abuse on Monday. It was revealed at trial that Sherman complained two or three times regarding plaintiff’s method of approach when dealing with the staff in the nursing department. Sherman testified that she did not learn that plaintiff had reported the Bennett incident to state investigators until after plaintiff’s employment had been terminated. On Sunday, June 9, 1996, plaintiff wrote a letter to VanRhee describing the incident with Bennett. The next morning, plaintiff put the letter in VanRhee’s office. Plaintiff claimed to have noted the incident in Bennett’s chart after she spoke to Fran Brennan, assistant director of nursing, regarding how much detail should be noted. Brennan told her not to indicate that there had been a dead body in the room with Bennett. Plaintiff believed that Bennett’s treatment constituted abuse. On the night of Monday, June 10, 1996, she called an advocacy group for senior citizens regarding the Bennett incident. The individual she spoke to informed her that she could be fined if she did not report the incident. Sometime thereafter, plaintiff contacted Jeanette Baldwin, a social worker at a Tendercare facility in Lansing, for input on what she should do regarding reporting the incident. VanRhee testified that, if an incident involving a resident is unintentional, he did not consider it to be abuse. On the afternoon of June 11, 1996, VanRhee conducted plaintiff’s ninety-day employee evaluation. At that point, plaintiff had been on the job for more than four months. VanRhee testified that his review of plaintiff’s performance followed a conversation he had with Tim Stoll, defendants’ social services and activities consultant. VanRhee graded plaintiff “average” in every area of concern except “cooperation/teamwork,” which was graded “poor.” He noted that plaintiff was confrontational with staff and that she reacted before she had all the facts. He acknowledge that plaintiff’s position was described as being an advocate for the nursing home residents, but denied that being an advocate would put her at odds with the staff. He also noted that plaintiff had poor attendance at meetings and that she failed to complete paperwork on time. After the review, VanRhee extended plaintiffs probation period for another ninety days. He refused to discuss the Bennett incident. The following morning, Wednesday, June 12, 1996, plaintiff documented her observations regarding Bennett, including that Reed’s body had been left in the room. Plaintiff did not go to work the following two days, but, instead, stayed home and reported her suspicions of abuse to the Department of Consumer and Industry Services and to the Health Care Fraud Unit of the Attorney General’s Office. Plaintiff testified that, in the week following her report to the state, she observed two more incidents of alleged abuse at the nursing home. In the first, Gladys French, a resident, was moved from one room to another. Plaintiff believed the action was not in the resident’s best interest because she suffered from dementia and became disoriented when moved. The second incident involved Doris Schrader, a resident who had declined to complete an advance care directive form and had indicated that she wanted full medical treatment in the event of an emergency. On June 19, 1996, plaintiff was informed by the nursing staff that Schrader needed to change her advance care directive. Plaintiff went to Schrader’s room, where she found Schrader wearing an oxygen mask and asking to be taken to the hospital. When Schrader collapsed and plaintiff realized the seriousness of her illness, she called Schrader’s son, who indicated that he did not know what course of action to follow and that he would call back after speaking with his uncle. Apparently, a nurse telephoned Schrader’s physician, who instructed the facility not to do anything because Schrader was a terminally ill patient. Plaintiff believed that Schrader had the right to have her wish for full medical treatment followed, regardless of whether her son or her physician agreed. Before Schrader’s son called back, and before plaintiff could take any action, Schrader died. Although plaintiff did not discuss this incident with anyone at Baywood, she did report it to state investigators after her employment was terminated. The state investigation of the Schrader incident revealed that the nursing home had a policy of providing aggressive emergency resuscitative measures, and that, on the basis of that policy, Schrader saw no need to complete an advance directive on her admission to the facility. At the time Schrader expired, she was considered by the facility staff to be a “full code” resident and that she should have received aggressive emergency resuscitative measures. The state investigation concluded that those measures were not provided. VanRhee and Stoll testified that there was no requirement that a resident sign an advance directive, and that a resident with no advance directive would be treated no differently than a resident with a “full code” advance directive. VanRhee claimed that plaintiff’s failure to compel Schrader to complete an advance directive contributed to his decision to terminate her employment. However, plaintiff was not responsible for admitting residents, and Schrader’s admission to the nursing home had been handled by an in-take person. It was noted that Schrader was not suffering from any mental incapacity, that she declined to complete an advance care directive, and that she expressed a wish for full resuscitative measures. Plaintiff testified that, on the morning of June 21, 1996, she spoke with Stoll. Plaintiff told Stoll of her concerns regarding resident care and specifically mentioned the incidents involving Bennett, French, and Schrader. Stoll allegedly cautioned plaintiff against using the term “abuse” to describe the situations. Plaintiff testified that she and Stoll were arguing over what constituted “abuse” and that Stoll told plaintiff that she “needed to be like everybody else and start thinking like they did.” Plaintiff testified she then blurted out: “Tim, I have spoke [sic] to people at the state. And they have told me that all of these things that I have brought up are serious and need to be investigated. And it’s not just me that is concerned about these situations.” Sometime that same morning, VanRhee contacted Tendercare’s regional director to discuss plaintiff’s termination. The regional director directed VanRhee to discuss the matter with George Herron, Tender-care’s vice president of human resources. When plaintiff returned from her lunch break, VanRhee and Sherman met her in her office. Plaintiff described VanRhee as “angry, red in the face.” VanRhee told plaintiff, “You’re through.” He stood by while plaintiff gathered her belongings and left the building. Plaintiff theorized that after she told Stoll that she had reported her suspicions of abuse, he contacted VanRhee, who, in turn, terminated plaintiff’s employment. After plaintiff rested, defendants moved for a directed verdict on the ground that plaintiff had failed to present a prima facie case under the wpa. Specifically, defendants argued that they did not know plaintiff had reported her concerns to state investigators and that it was merely a coincidence that plaintiffs employment was terminated shortly thereafter. Defendants argued that, besides the coincidence in timing, plaintiff had presented no other evidence from which the jury could infer causation. The trial court denied the motion, ruling that the circumstantial evidence was such that a reasonable juror could find that plaintiff was discharged for retaliatory reasons, even if defendants had mixed motives for the discharge. We agree. The determination whether evidence establishes a prima facie case under the wpa is a question of law that this Court reviews de novo. Phinney v Perlmutter, 222 Mich App 513, 553; 564 NW2d 532 (1997). This Court also reviews a trial court’s denial of a motion for a directed verdict de novo. Meagher v Wayne State Univ, 222 Mich App 700, 708; 565 NW2d 401 (1997). On appeal, this Court must review all the evidence presented up to the time of the motion to determine whether a factual question existed. Kubczak v Chemical Bank & Trust Co, 456 Mich 653, 663; 575 NW2d 745 (1998); Hatfield v St Mary’s Medical Center, 211 Mich App 321, 325; 535 NW2d 272 (1995). This Court views the evidence in the light most favorable to the nonmoving party, grants that party every reasonable inference, and resolves any conflict in the evidence in that party’s favor. Id. The wpa provides, in pertinent part, as follows: An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action. [MCL 15.362; MSA 17.428(2).] “Protected activity” under the wpa consists of (1) reporting to a public body a violation of a law, regulation, or rule, (2) being about to report such a violation to a public body, or (3) being asked by a public body to participate in an investigation. MCL 15.362; MSA 17.428(2). To establish a prima facie case under the wpa, plaintiff must show that (1) she was engaged in a protected activity as defined by the act, (2) the defendants discharged her, and (3) a causal connection existed between the protected activity and the discharge. Chandler v Dowell Schlumberger Inc, 456 Mich 395, 399; 572 NW2d 210 (1998). Defendants do not dispute that they discharged plaintiff after she engaged in a protected activity. However, as noted, defendants do challenge plaintiffs proof of the causal connection between the activity and the discharge. “ ‘[A]n employer is entitled to objective notice of a report or a threat to report by the whistleblower.’ ” Roberson v Occupational Health Centers of America, Inc, 220 Mich App 322, 326; 559 NW2d 86 (1996), quoting Kaufman & Payton, PC v Nikkila, 200 Mich App 250, 257; 503 NW2d 728 (1993). The testimony presented up to the time of defendants’ motion for a directed verdict reasonably supported the inference that Stoll had notified VanRhee of plaintiffs allegations. Viewing this evidence in the light most favorable to plaintiff, defendants had objective notice that plaintiff had reported her suspicion of abuse to state regulators. Hatfield, supra at 325. Defendants also argue that plaintiff failed to prove a connection between the protected activity and her discharge because she relied solely on the timing of events as evidence of retaliation. Relying on federal cases decided under specific federal acts, defendants argue that the mere fact that plaintiff was discharged hours after defendants allegedly learned of plaintiffs protected activity was insufficient to support an inference of retaliation. However, as the trial court correctly noted, other factors concerning plaintiffs discharge tend to support an inference of notice. The extent of VanRhee’s anger, being red in the face, his abrupt “you’re through,” as well as his standing by until plaintiff removed her belongings and left the building, all suggest that VanRhee had talked to Stoll and learned that plaintiff had reported the Bennett incident to the state. Defendants also argue that, even if there is a link between plaintiff’s whistleblowing and her discharge, it is insignificant in light of the articulated reasons for plaintiff’s firing. This Court has found that the wpa bears substantial similarities to Michigan civil rights statutes and that actions under the wpa are analyzed using the “shifting burdens” framework utilized in retaliatory discharge actions under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. Anzaldua v Band, 216 Mich App 561, 580; 550 NW2d 544 (1996). Thus, the plaintiff bears the initial burden of establishing a prima facie case of retaliatory discharge. Hopkins v Midland, 158 Mich App 361, 378; 404 NW2d 744 (1987). If the plaintiff succeeds, the burden shifts to the defendant to articulate a legitimate business reason for the discharge. Id. If the defendant produces evidence establishing the existence of a legitimate reaso

CHILES v MACHINE SHOP, INC Docket No. 207395. Submitted March 10, 1999, at Lansing. Decided November 5, 1999, at 9:35 am. Robert E. Chiles brought an action in the Isabella Circuit Court against Machine Shop, Inc., and others, alleging that the defendants violated the Worker’s Disability Compensation Act (wdca), MCL 418.101 et seq.; MSA 17.237(101) et seq., and the Handicappers’ Civil Rights Act, now the Persons with Disabilities Civil Rights Act (pwd-. cra), MCL 37.1101 et seq.) MSA 3.550(101) et seq., by laying him off and not recalling him, actions the plaintiff claims were in retaliation for his filing of a worker’s compensation claim for a back injury and a result of discrimination based on a perceived disability. Before jury déliberations, Machine Shop, Inc., did not object to the stipulated dismissal of all other defendants from the action. The court, William R. Rush, J., thereafter entered judgment on the jury’s verdict and award of damages to the plaintiff. Machine Shop, Inc., appealed. The Court of Appeals held: 1. The jury properly considered Machine Shop, Inc., to have been the plaintiff’s employer for purposes of determining its liability under the wdca and the pwdcra even though the plaintiff was classified as an employee of Forestry Products, Inc., which had loaned ■ him to Machine Shop, Inc. Machine Shop, Inc., did not object to the dismissal of the other defendants from the action, and Machine Shop, Inc., can properly be deemed under the economic-reality test to have been the plaintiff’s employer for purposes of the wdca. With respect to the pwdcra, liability under the act is not dependent on the existence of an employer-employee relationship at the time of the adverse employment action, but on the ability to affect adversely the terms and conditions of an individual’s employment or potential employment. 2. The trial court did not err in denying motions by Machine Shop, Inc., for a directed verdict and judgment notwithstanding the verdict with respect to the plaintiff’s worker’s compensation retaliation claim. The plaintiff established that there was a causal connection between the filing of the worker’s compensation claim and the layoff and nonrecall by showing that he applied for and received worker’s compensation benefits, that Machine Shop, Inc., laid him off and did not recall him, that the stated reasons for the layoff and nonrecall were a pretext, and that the real reason was retaliation for filing the worker’s compensation claim. 3. The trial court erred in denying motions by Machine Shop, Inc., for a directed verdict and judgment notwithstanding the verdict with respect to the plaintiff’s pwdcra claim. The plaintiff did not suffer from a perceived disability within the meaning of the pwdcra. Although the plaintiff was perceived to have had a physical impairment, that impairment was not a disability under the pwdcra because it was temporary and did not prevent the plaintiff from performing a range of jobs. Affirmed in part, reversed in part, and remanded for further proceedings. 1. Worker’s Compensation — Employer-Employee Relationships — Economic-Reality Test. The economic-reality test is used in determining whether an employer-employee relationship exists for purposes of the Worker’s Disability Compensation Act; the test involves four factors: control of the worker’s duties; payment of wages; the right to hire, fire and discipline; and performance of the duties toward the accomplishment of a common goal (MCL 418.101 et seq.; MSA 17.237[101] et seq.). 2. Civil Rights — Persons with Disabilities Civil Rights Act — Employers. Employer liability under the Persons with Disabilities Civil Rights Act can arise in the absence of an employer-employee relationship because the act encompasses potential employment in prohibiting ' discrimination based on handicaps not related to ability to perform job duties (MCL 37.1201[b], 37.1202[l][a]; MSA 3.550[201][b], 3.550[202][l][a]). 3. Worker’s Compensation — Employer Retaliation for Employee Claims. An employee establishes employer retaliation against the employee for the filing of a worker’s compensation claim where the employee shows that the employee asserted the right to worker’s compensation, the employee was discharged, the employer’s stated reason for discharge was a pretext, and the real reason was retaliation for the employee’s filing of the worker’s compensation claim (MCL 418.301[11]; MSA 17.237[301] [11]). 4. Civil Rights — Persons with Disabilities Civil Rights Act — Employment Discrimination. A plaintiff establishes a prima facie case of employment discrimination under the Persons with Disabilities Civil Rights Act by show-mg that the plaintiff is “disabled” as defined by the statute, the disability is unrelated to the plaintiff’s ability to perform the duties of a particular job, and the plaintiff has been discriminated against in one of the ways set forth in the statute (MCL 37.1202[l][b]; MSA 3.550[202][l][b]). 5. Civil Rights — Persons with Disabilities Civil Rights Act — Disabilities. A three-step process is used by a court in determining whether a plaintiff is, or is perceived to be, physically disabled within the meaning of the Persons with Disabilities Civil Rights Act; first, the court considers whether the plaintiff suffers from a physical impairment; second, the court identifies the life activity alleged to be limited by the impairment and determines whether it constitutes a major life activity; third, the court determines whether the impairment substantially limited the major life activity (MCL 37.1103[d] [i] [A], [in]; MSA 3.550[103][d][i][A], [iii]). 6. Civil Rights — Persons with Disabilities Civil Rights Act — Major Life Activities — Working. Work can be considered a major life activity that is substantially limited by an impairment when an individual is not substantially limited with respect to any other major life activity; the impairment must significantly restrict an individual’s ability to perform a range of jobs, not a particular job (MCL 37.1103[d][i][A], [iii]; MSA 3.550[103][d][i][A], [iii]). 7. Civil Rights — Persons with Disabilities Civil Rights Act — Impairments — Substantial Limits on Major Life Activities. A court determining whether an impairment substantially limits a major life activity considers the nature and severity of the impairment, the duration or expected duration of the impairment, and the permanent or expected permanent or long-term effect; temporary medical conditions or intermittent, episodic impairments are not disabilities within the meaning of the Persons with Disabilities Civil Rights Act (MCL 37.1103[d][i][A], [iii]; MSA 3.550[103][d][i][A], [iii]). Charles W. Palmer, for the plaintiff. Miller, Johnson, Snell & Cummiskey, PL.C. (by Thomas R. Wurst and Jennifer L. Jordan), for the defendant. Before: Markman, P.J., and Hoekstra and Zahra, JJ. Per Curiam. In this action brought under the Persons with Disabilities Civil Rights Act (pwdcra), MCL 37.1101 et seq.\ MSA 3.550(101) et seq., and the Worker’s Disability Compensation Act, (wdca) MCL 418.101 et seq.] MSA 17.237(101) et seq., defendant Machine Shop, Inc., appeals as of right a jury award of $18,000 in favor of plaintiff and from the trial court’s denial of defendant’s motion for a directed verdict, judgment notwithstanding the verdict (jnov), or a new trial. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. In 1973, plaintiff began working for Morbark Industries, Inc., in its machine shop division. In 1988, Morbark Industries, Inc., split into several separate corporations. Plaintiff became classified as an employee of Forestry Products, Inc. However, plaintiff actually worked for defendant, Machine Shop, Inc., a similarly created offshoot of Morbark Industries, Inc. In December 1991, plaintiff sustained a work-related back injury. Despite this injury, plaintiff continued working as defendant’s sole Blanchard grinder operator until February of 1993, when he took a disability leave. Plaintiff received full worker’s compensation benefits from February until June of 1993, when he returned to work in a “favored” position. While plaintiff was on disability leave, another employee, Jim Zeneberg, was moved to plaintiff’s shift and assigned to operate the Blanchard grinder. However, in July 1994, as part of progressing from the favored position to a work-hardening program, plaintiff was reassigned to the Blanchard grinder. Plaintiff initially operated the grinder four hours a day, but eventually increased to full-time. During this period, Zeneberg was temporarily assigned to other machines. While plaintiff participated in the work-hardening program, he was paid $6 an hour and a supplemental worker’s compensation wage-loss differential. He was told that he would resume earning his regular wage of $11.75 an hour when his doctor lifted his work restrictions. On February 24, 1995, plaintiff’s treating physician provided documentation to defendant indicating that plaintiff could return to work without restrictions. On February 27, plaintiff resumed earning his regular wage. The next day, February 28, 1995, plaintiff was laid off and notified that he would not be rehired. Craig Price, the health and human services director for all of Morbark Industries, agreed that plaintiff was misled into believing that once his restrictions were lifted, he would return to his full-time position as a grinder operator. According to defendant’s president, Gary Cotter, plaintiff was laid off because he was not as productive as Zeneberg, the replacement operator. On May 4, 1995, plaintiff filed suit alleging that he was laid off and not recalled in retaliation for filing his worker’s compensation claim and because he was perceived as suffering from a disability (impaired back). In November 1995, following Zeneberg’s unfortunate death, plaintiff was called back to work as the Blanchard grinder operator. Upon his return, plaintiff was classified as defendant’s employee. i For its first claim of error, defendant contends that because it was not technically plaintiff’s employer when the alleged retaliatory and discriminatory actions occurred, it was not a proper party to this suit. We disagree. At the onset of trial, the named defendants included defendant Machine Shop, Inc., Morbark Industries, Inc., Morbark Maintenance Company, and Forestry Products, Inc. Before jury deliberations, plaintiff offered to stipulate the dismissal of all entities except defendant. In response, defense counsel indicated that he was “not going to object.” Consequently, the jury considered only defendant’s liability. Under the facts in this case, we find that the jury properly considered defendant’s liability under the wdca and the pwdcra. This Court applies the economic-reality test to determine whether an employer-employee relationship exists for purposes of the wdca. James v Commercial Carriers, Inc, 230 Mich App 533, 537; 583 NW2d 913 (1998). The test involves four basic factors: (1) control of the worker’s duties, (2) payment of wages, (3) the right to hire, fire, and discipline, and (4) performance of the duties toward the accomplishment of a common goal. Id. In applying these factors, the totality of the circumstances must be examined, with no single factor controlling. Id. Under this test, defendant was plaintiff’s employer for purposes of the wdca. At the time plaintiff participated in the work-hardening program and when he was laid off, he was working for defendant as a loaned employee. Defendant directed his activities. Further, defendant clearly had the right to hire, fire, and discipline plaintiff because, in making the decision to lay off plaintiff and not recall him for over eight months, defendant exercised these rights. With respect to factor four, plaintiff performed work that was part of a “common objective integral to [defendant’s] business” and work that would “normally follow the usual path of an employee.” Id. The only factor that arguably does not weigh in favor of the finding of an employment relationship is the payment of wages. However, we note that defendant paid plaintiff’s actual employer, Forestry Products, Inc., for the right to use plaintiff’s services. Thus, under the economic-reality test, we find that defendant was plaintiff’s employer. With respect to the PWDCRA, we hold that because liability under the act is not dependent on the actual existence of an employer-employee relationship at the time of the adverse employment action but, rather, on the ability to affect adversely the terms and conditions of an individual’s employment or potential employment, defendant’s position lacks merit. The act addresses the conduct of an “employer” who takes adverse employment action against an “individual” because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job. MCL 37.1202(1)(a); MSA 3.550(202)(1)(a). The act does not limit the definition of “employer” to the plaintiff’s employer but, instead, simply defines it as a “person who has 1 or more employees.” MCL 37.1201(b); MSA 3.550(201)(b). The scope of the act clearly encompasses actions taken by an employer before an employment relationship even exists, e.g., discriminatorily refusing to hire an applicant on account of a disability. Our reading of the plain language of the statute does not require that an employment relationship exist, but simply that the employer/defendant have the authority to affect a plaintiff’s employment or potential employment. Consequently, we find that the act was intended to encompass the relationship present in this case. n Defendant also claims that the trial court erred in denying its motions for a directed verdict and JNOV with respect to plaintiff’s worker’s compensation retaliation claim. We disagree. The grant or denial of a motion for a directed verdict or JNOV is reviewed de novo. Meagher v Wayne State Univ, 222 Mich App 700, 708; 565 NW2d 401 (1997); Forge v Smith, 458 Mich 198, 204; 580 NW2d 876 (1998). In either case, this Court must view the evidence and all legitimate inferences in the light most favorable to the nonmoving party. Forge, supra; Kubczak v Chemical Bank & Trust Co, 456 Mich 653, 663; 575 NW2d 745 (1998); Zeeland Farm Services, Inc v JBL Enterprises, Inc, 219 Mich App 190, 195; 555 NW2d 733 (1996). The denial of a motion for a directed verdict or JNOV is reviewed to determine whether the nonmoving party failed to establish a claim as a matter of law. Kubczak, supra; Forge, supra. Pursuant to the wdca, an employer may not discharge an employee or in any manner discriminate against an employee because the employee filed a complaint or instituted or caused to be instituted a proceeding under [the wdca] or because of the exercise by the employee on behalf of himself or herself or others of a right afforded by [the wdca]. [MCL 418.301(11); MSA 17.237(301)(11).] The burden is on plaintiff to show that there was a causal connection between the protected activity, i.e., the filing of his worker’s compensation claim, and the adverse employment action. See, by analogy, DeFlaviis v Lord & Taylor, Inc, 223 Mich App 432, 436; 566 NW2d 661 (1997). The lower court instructed the jury that plaintiff had the burden of proving that (1) he asserted his right for worker’s compensation, (2) defendant laid off or failed to recall plaintiff, (3) defendant’s stated reason for its actions was a pretext, and (4) defendant’s true reasons for its actions were in retaliation for plaintiff’s having filed a worker’s compensation claim. The court further instructed the jury that it should find for defendant only if retaliation was not one of the motivating factors in its decisions. This instruction appears to have been based on SJI2d 105.04, which sets forth the shifting burdens of proof that apply in retaliation claims based on the Civil Right Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. Neither party objected to the jury instructions at trial, and this Court is satisfied that these instructions accurately set forth the shifting burdens of proof that should also apply in a worker’s compensation retaliation suit. See also, DeFlaviis, supra. It is undisputed that plaintiff applied for and received worker’s compensation benefits and that he was laid off and not recalled. Defendant claims that plaintiff’s layoff was not an adverse employment action. However, there was sufficient evidence to show that defendant’s stated reason for termination was a pretext. Evidence indicated that although plaintiff had worked for Morbark Industries, Inc., for twenty-two years, no disciplinary action was noted in his personnel file. To the contrary, personnel records expressly and repeatedly indicated that plaintiff was an excellent worker. Although Cotter indicated that these positive reports had been fabricated for internal reasons, the jury was free to reject this testimony as untruthful and self-serving. Along the same vein, defendant claimed that plaintiff’s performance was so poor that defendant had no intention of calling him back to work in any position. Yet, after plaintiff filed this lawsuit, defendant recalled him, allegedly because of the company’s standard practice of recalling the most qualified workers to fill open positions. From this evidence, the jury could have concluded that defendant’s stated reason for laying off the plaintiff and failing to recall him was pure pretext. Moreover, there was sufficient evidence from which a reasonable juror could have concluded that a retaliatory motive contributed to defendant’s actions. DeFlaviis, supra at 436. Plaintiff testified that he actively pursued having his work restrictions lifted because company representatives assured him that this was the only obstacle keeping him from returning to his full wages. In effect, plaintiff was terminated on the day after he succeeded in ending his own worker’s compensation eligibility. On the basis of the timing of the layoff, evidence that cutbacks were not necessary, evidence that upper management inquired into the cost of plaintiff’s worker’s compensation benefits, and evidence of defendant’s role in having the work restrictions lifted, it was reasonable for the jury to conclude that retaliation was a motive for laying off plaintiff and not recalling him. Thus, the trial court’s denial of defendant’s motions for jnov and a directed verdict was not error. m Defendant next claims that the lower court erred in denying its motions for a directed verdict and JNOV with respect to plaintiffs pwdcra claim. We agree. We read the PWDCRA in light of the primary goal of judicial interpretation, which is to ascertain and give effect to the intent of the Legislature. Shallal v Catholic Social Services of Wayne Co, 455 Mich 604, 611; 566 NW2d 571 (1997). Unless defined in the statute, every word or phrase of a statute should be accorded its plain and ordinary meaning, taking into account the context in which the words are used. People v Lee, 447 Mich 552, 557-558; 526 NW2d 882 (1994). Provisions of a statute are not construed in isolation but, rather, in the context of other provisions of the same statute to give effect to the purpose of the whole enactment. Guitar v Bieniek, 402 Mich 152, 158; 262 NW2d 9 (1978). “Further, in interpreting provisions of the [pwdcra], analogous federal precedents are persuasive, although not necessarily binding.” Chmielewski v Xermac, Inc, 457 Mich 593, 601-602; 580 NW2d 817 (1998). This Court and the Michigan Supreme Court have noted that the federal Americans with Disabilities Act (ADA), 42 USC 12101 et seq., and the pwdcra share the same purpose and use similar definitions and analyses, and both courts have relied on the ADA in interpreting the pwdcra. Chmielewski, supra at 602-603; Collins v Blue Cross Blue Shield of Michigan, 228 Mich App 560, 568; 579 NW2d 435 (1998); Stevens v Inland Waters, I

SHANNON CAUDILL, Plaintiff v. JAMES L. DELLINGER, C. RICKY BOWMAN, in his official capacity as District Attorney of Judicial District 17-B, and THE ADMINISTRATIVE OFFICE OF THE COURTS, Defendants No. COA97-966 (Filed 16 June 1998) 1. Public Officers and Employees § 43 (NCI4th)— Whistleblower Act — application to district attorney The trial court erroneously granted summary judgment for defendant Dellinger, a former district attorney, for a claim under the North Carolina Whistleblower Act by a former employee. While the trial court apparently granted defendant Dellinger’s motion for summary judgment on this claim partially on the theory that the Act does not apply to constitutional officers of the State under N.C.G.S. § 126-5(cl)(l), the legislative intent that the protections of the legislation apply to all state employees is clear. Furthermore, plaintiffs forecast of evidence makes out a prima facie claim under the Act in that she was performing satisfactorily as Dellinger’s administrative assistant until she talked with the SBI agents in connection with their investigation of Dellinger, Dellinger discharged her almost immediately upon learning of her actions, and her cooperation with SBI agents was a substantial or motivating factor in the decision to discharge her. • 2. Labor ánd Employment § 77 (NCI4th)— administrative assistant to district attorney — discharge for cooperating with SBI — common law wrongful discharge claim — summary judgment for DA properly denied The trial court properly denied a former district attorney’s motion for summary judgment on a common law wrongful discharge claim by his former administrative assistant who was discharged for cooperating with an SBI investigation into his expense accounts where he had pleaded sovereign immunity. Defendant was not entitled to the defense of sovereign immunity if he was acting outside the scope of his authority and, if the jury agrees that defendant-Dellinger discharged plaintiff for cooperating with the SBI, he was clearly acting outside the scope of his official duties and is not entitled to the protection of the sovereign immunity defense. 3. Public Officers and Employees § 35 (NCI4th)— discharge of district attorney’s administrative assistant — free speech and due process claims under North Carolina Constitution — defendant sued in individual capacity The trial court should have granted defendant Dellinger’s motion for summary judgment as to claims against him which were based on alleged violations of the North Carolina Constitution where Dellinger, a former district attorney, was sued in his individual capacity. Plaintiff may not successfully maintain an action against Dellinger in his individual capacity for alleged violations of her rights under the North Carolina Constitution. 4. Constitutional Law § 86 (NCI4th)— wrongful discharge— section 1983 claims — sovereign immunity as defense The trial court correctly denied defendant Dellinger’s motion for summary judgment on plaintiff’s claims under 42 USC 1983 arising from her discharge as Dellinger’s administrative assistant where Dellinger had been a district attorney at the time. Dellinger contended that he was entitled to absolute immunity because his actions were in the scope of his duties as a district attorney, but sovereign immunity alleged under state law is not a defense to an action under section 1983. 5. Parties § 21 (NCI4th)— wrongful discharge of administrative assistant by former district attorney — succeeding district attorney and AOC — not necessary parties The trial court properly granted summary judgment for defendants AOC and Bowman in a wrongful discharge action against Bowman’s predecessor as district attorney, defendant Dellinger, where there was no evidence of any violations by AOC or Bowman. Although plaintiff contends that AOC and Bowman are necessary parties because she will not otherwise be able to secure relief such as reinstatement, payment of back wages, or other employment benefits, plaintiff may collect money damages from Dellinger if successful but cannot be reinstated to her former position because Bowman is entitled by statute to an administrative assistant to serve “at his pleasure.” The continuation of AOC and Bowman as parties adds nothing to plaintiff’s range of remedies against Dellinger. Judge Lewis dissenting. Appeal by plaintiff Shannon Caudill from orders entered 19 May 1997 and 3 June 1997, and appeal by defendant James L. Dellinger from the order entered 3 June 1997, all by Judge C. Preston Cornelius in Surry County Superior Court. Heard in the Court of Appeals 1 April 1998. On 1 October 1991, plaintiff Shannon Caudill (“Caudill”) began employment as an administrative assistant in the office of James L. Dellinger (“Dellinger”), then District Attorney for Judicial District 17-B (Surry and Stokes Counties). During October 1994, Caudill was interviewed by agents of the State Bureau of Investigation (“SBI”), who were investigating allegations that Dellinger had falsified expense reimbursement documents submitted to the State of North Carolina, and had caused his wife’s name to be forged on certain banking and tax documents. Caudill answered the agents’ questions about the forged documents and about Dellinger’s relationship with Old North State Bank (“Bank”). Prior to 2 November 1994, SBI agents questioned Dellinger about his dealings with the Bank. Caudill stated in her deposition that Dellinger called her into his office on 2 November 1994 and asked her what she had told the SBI, since she was the “only one who knew about [his dealings with Old North State Bank].” According to Caudill, when she acknowledged she had talked with SBI agents about the Bank, Dellinger told her she was insubordinate, she was fired, and she had “one d-mn hour to get [her] sh-t out of [the office].” Dellinger stated in his deposition that during the fall of 1994 he suffered heart problems which caused his hospitalization. Upon his release, he learned Caudill had made comments to the effect that she wished he had died, and that he had “faked” a heart attack to get sympathy. Dellinger stated further that he noticed a change in Caudill’s attitude towards him, and other employees in his office complained about Caudill’s attitude. On 2 November 1994, Dellinger talked by telephone with Cynthia Phillips, acting personnel administrator for the Administrative Office of the Courts (“AOC”), and told her that he had lost confidence in the loyalty of Caudill. He also told her about certain negative comments Caudill had allegedly made about him. He did not discuss the ongoing SBI investigation with Ms. Phillips or tell her that Caudill had talked with the agents. Ms. Phillips advised Dellinger it was “within his authority to fire [Caudill] if he wanted to.” In April 1995, Dellinger resigned as District Attorney, and C. Ricky Bowman (“Bowman”) became the District Attorney for District 17-B. On 5 May 1995, Caudill filed this action against Dellinger, Bowman (in his official capacity), and AOC. Caudill alleged six separate claims for relief against Dellinger, including: (1) he violated her rights under the North Carolina “Whistleblower Act,” (N.C. Gen. Stat. § 126-84 (Cum. Supp. 1997), et seq.); (2) she was wrongfully discharged from her employment; (3) she was deprived of her freedom of speech as guaranteed by Article 1, § 14 of the North Carolina Constitution; (4) she was deprived of her right to freedom of speech under the First and Fourteenth Amendments to the United States Constitution in violation of 42 U.S.C. § 1983; (5) she was deprived of her property without due process in violation of the Fourteenth Amendment to the United States Constitution in violation of 42 U.S.C. § 1983; and (6) she was deprived of her property without due process in violation of Article 1, § 19 of the North Carolina Constitution. Plaintiff also added a seventh claim for relief against Bowman, contending that he could give her equitable relief by reinstating her, and could also pay money damages to her. In her eighth claim for relief, plaintiff alleged AOC was in a position to provide money damages and restoration of employment benefits to her. Caudill prayed for compensatory damages “from the defendants,” including back wages and reinstatement of fringe benefits; that her actual damages be trebled; that she be reinstated to her former position; and that she recover her costs, including reasonable attorneys’ fees. In November 1995, the trial court dismissed Caudill’s claims against defendants AOC and Bowman for common law wrongful discharge and for monetary relief against them under 42 U.S.C. § 1983. Caudill did not appeal from that dismissal. On 19 May 1997, summary judgment was entered for defendants AOC and Bowman on all the remaining claims against them. On 3 June 1997, summary judgment was entered for defendant Dellinger on the claim under the Whistleblower Act, but denied as to the remaining causes of action against him. Both Caudill and Dellinger appealed from the entries and denial of summary judgment. Elliot, Pishko, Gelbin & Morgan, P.A., David C. Pishko, for plaintiff appellant. White and Grumpier, by Dudley A. Witt and Laurie A. Schlossberg, for James L. Dellinger, defendant appellant-appellee. Attorney General Michael F. Easley, by Assistant Attorney General Robert M. Curran, for C. Ricky Bowman and Administrative Office of the Courts, defendant appellees. HORTON, Judge. This appeal presents the following issues for decision: (I) whether Caudill forecast sufficient evidence to support her claim against Dellinger under the North Carolina Whistleblower Act; (II) whether Caudill forecast sufficient evidence to support her claim against Dellinger for common law wrongful discharge; (III) whether Caudill may bring claims against Dellinger, in his individual capacity, for violations of her rights to free speech and to due process of law under the North Carolina Constitution; (IV) whether Caudill may bring claims against Dellinger, in his individual capacity, for deprivation of her rights to free speech and due process under the United States Constitution in violation of 42 U.S.C. § 1983; and (V) whether plaintiff Caudill forecast sufficient evidence to support any of her claims against AOC and Bowman, and to resist those defendants’ motions for summary judgment. We will first discuss plaintiffs claims against former District Attorney Dellinger, combining for discussion the two claims based on the North Carolina Constitution, and combining the two § 1983 claims. (I) The Whistleblower Act Chapter 126 of the North Carolina General Statutes (State Personnel System) was enacted in 1965 for the express purpose of “establishing] for the government of the State a system of personnel administration under the Governor....” N.C. Gen. Stat. § 126-1 (Cum. Supp. 1997). Chapter 126 created the State Personnel Commission and gave it power to establish rules and policies governing personnel matters. N.C. Dept. of Justice v. Eaker, 90 N.C. App. 30, 34, 367 S.E.2d 392, 395, disc. review denied, 322 N.C. 836, 371 S.E.2d 279 (1988). Various categories of employees, including constitutional officers of the state, were exempted from portions of the Act. Other categories, including public school employees, and community college employees, were totally exempted from the Act. In 1989, Chapter 126 was amended by Chapter 236 of the 1989 Session Laws (Senate Bill 125), entitled “AN ACT TO ENCOURAGE REPORTING OF FRAUD, WASTE, AND ABUSE IN STATE GOVERNMENT AND ENDANGERMENT TO THE PUBLIC HEALTH AND SAFETY, AND TO PROTECT INFORMANT STATE EMPLOYEES FROM RETALIATION.” Senate Bill 125 added Article 14, popularly known as the “Whistleblower Act,” to Chapter 126. Senate Bill 125 amended the provisions of Chapter 126 which set out numerous categories of exempt employees, by adding the following language: “(c5) Notwithstanding any other provision of this Chapter, Article 14 of this Chapter shall apply to all State employees, public school employees, and community college employees.” The trial court granted defendant Dellinger’s motion for summary judgment on the “Whistleblower” claim, apparently at least partially on the theory that the provisions of the Act do not apply to constitutional officers of the state under N.C. Gen. Stat. § 126-5(cl)(l) (Cum. Supp. 1997), which provides that “Constitutional officers of the State” are exempt from the provisions of Chapter 126 (except for two articles not pertinent to this appeal). Likewise, N.C. Gen. Stat. § 126-5(cl)(2) exempted “Officers and employees of the Judicial Department.” Defendant Dellinger was a district attorney at all times pertinent hereto, and all parties agree that he was a constitutional officer of the state pursuant to Article IV, Section 18, of the North Carolina Constitution. Plaintiff was administrative assistant to the District Attorney pursuant to the provisions of N.C. Gen. Stat. § 7A-68 (1995), and thus was an employee within the Judicial Department. N.C. Gen. Stat. § 126-5(c5), the pertinent provision of the Whistleblower Act, makes it clear, however, that the protection of the Act applies to all state employees, regardless of any other provision of Chapter 126. N.C. Gen. Stat. § 126-5(c5). We note that N.C. Gen. Stat. § 126-5(c5) also specifically includes public school employees and community college employees, two groups which were excluded prior to the amendment. The legislative intent that the protections of this legislation apply to all state employees is clear; and we hold, therefore, that the provisions of the Whistleblower Act apply to plaintiff Caudill. The Act provides, in pertinent part, that “[n]o head of any State department, agency or institution or other State employee exercising supervisory authority shall discharge ...” a state employee because of a report of activities described in the Act. N.C. Gen. Stat. § 126-85(a) (Cum. Supp. 1997). Caudill served at the pleasure of the District Attorney and under his direct supervision. The Act authorizes an action against “the person or agency who committed the violation . . . .’’N.C. Gen. Stat. § 126-86 (1995) (emphasis added). Here, Caudill contends Dellinger committed a violation of the Act by discharging her for protected activity. She brings this action against Dellinger individually, as the “person . . . who committed the violation” of the Act. It would be contrary to the intent and spirit of the Whistleblower Act that Caudill be denied relief merely because Dellinger, as a constitutional officer, is exempted from certain other portions of the Chapter which have no relationship to the Whistleblower provisions. See In Re Filing by Fire Ins. Rating Bureau, 275 N.C. 15, 34, 165 S.E.2d 207, 220 (1969) (statute is to be construed in light of the purpose to be accomplished by the legislation). Our construction of the Act results in no conflict between the two sections in question, and tends to suppress the evil which the legislature intended to prevent by this remedial legislation. In re Hardy, 294 N.C. 90, 96, 240 S.E.2d 367, 372 (1978). Further, even if we assume arguendo that the two provisions in question are in pari materia, but are in irreconcilable conflict, the provisions of N.C. Gen. Stat. § 126-5(c5) were added later in time and will control. State v. Hutson, 10 N.C. App. 653, 657, 179 S.E.2d 858, 861 (1971). Application of that general rule of construction would seem to be especially appropriate in this case, since N.C. Gen. Stat. § 126-5(c5) provides that Article 14 applies to all state employees “[notwithstanding any other provision of. . . Chapter [126].” Further, plaintiffs forecast of evidence makes out a prima facie claim under the Whistleblower Act. Such a claim consists of the following elements: “(1) [plaintiff] engaged in protected activity, (2) followed by an adverse employment action, and (3) that the protected conduct was a substantial or motivating factor in the adverse action.” Hanton v. Gilbert, 126 N.C. App. 561, 571, 486 S.E.2d 432, 439 (citation omitted), disc. review denied, 347 N.C. 266, 493 S.E.2d 454 (1997). In this case, Caudill has forecast evidence tending to show that she was performing satisfactorily as Dellinger’s administrative assistant until she talked with SBI agents in connection with their official investigation of Dellinger, when Dellinger learned of her actions he discharged her almost immediately, and her cooperation with SBI agents was a substantial or motivating factor in the decision to discharge her. As required by the holding in Hanton, Dellinger forecast evidence in support of his motion for summary judgment tending to show that he discharged Caudill “ ‘based on a legitimate non-retai-iatory motive,’ ” because of her change in attitude, negative comments she had made about him, and his loss of confidence in her loyalty. Id. Caudill meets her burden in her deposition testimony of “coming forward with evidence that her alleged whistleblowing activity was a substantial causative factor for her dismissal.” Id. The question of causation raises a genuine question of fact for the jury, so that summary judgment for defendant Dellinger was improvidently granted and must be reversed. II. Common Law Wrongful Discharge Plaintiff Caudill was employed by defendant Dellinger as an administrative assistant “to serve at his pleasure.” N.C. Gen. Stat. § 7A-68 (1995). Dellinger contends he “retained complete discretion in the evaluation of [Caudill’s] job performance and her job security,” and was “acting in his official capacity [in terminating her employment] and is entitled to absolute immunity.” Although plaintiff served at the “pleasure” of District Attorney Dellinger and was thus an “at will” employee, this Court recognized an exception to the common law employment-at-will doctrine in Sides v. Duke University, 74 N.C. App. 331, 328 S.E.2d 818, disc. reviews denied, 314 N.C. 331, 333 S.E.2d 490, disc, review denied, 314 N.C. 331, 335 S.E.2d 13 (1985). In Sides, plaintiff was terminated in alleged retaliation for refusing to testify untruthfully in a medical malpractice case. This Court identified a cause of action for wrongful discharge in violation of public policy: [W]hile there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy. A different interpretation would encourage and sanction lawlessness, which law by its very nature is designed to discourage and prevent. We hold, therefore, that no employer in this State, notwithstanding that an employment is at will, has the right to discharge an employee and deprive him of his livelihood without civil liability because he refuses to testify untruthfully or incompletely in a court case, as plaintiff alleges happened here. Id. at 342, 328 S.E.2d at 826. In Coman v. Thomas Mfg. Co., 325 N.C. 172, 381 S.E.2d 445 (1989), our Supreme Court adopted the public policy exception to the employment-at-will doctrine. In Coman, plaintiff was allegedly discharged for refusing to operate his vehicle excessive hours and refusing to falsify certain records in violation of U.S. Department of Transportation regulations. Our Supreme Court held it was the public policy of this state to protect the safety of persons and property on the highways, and plaintiff’s claim for wrongful discharge should not have been dismissed by the trial court. In the present case, plaintiff Caudill forecast evidence from which a jury could find she was discharged for giving truthful information about Dellinger’s expense accounts and falsification of bank documents to SBI agents. It is the public policy of this state that citizens cooperate with law enforcement officials in the investigation of crimes. Here, SBI agents were investigating serious allegations against Dellinger, including misappropriation of state

ANZALDUA v BAND ANZALDUA v MICHIGAN STATE UNIVERSITY Docket Nos. 106469, 106471. Argued January 7, 1998 (Calendar No. 12). Decided June 9, 1998. Sharon Anzaldua brought an action under the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq., in the Ingham Circuit Court against Michigan State University and Professor Rudolph Band, alleging that her contract as a research laboratory worker had not been renewed because she had complained to the university’s Environmental Affairs Office about conditions in a university laboratory. The court, Carolyn Stell, J., granted the defendants’ motion to strike the plaintiff’s demand for a jury trial, determining that the act provided no such right. The Court of Appeals, Markman, P.J., and J. D. Payant, J. (O’Connell, X, concurring in part and dissenting in part), reversed, holding that there is a right to a jury trial in an action brought under the act, and that the right exists even when the defendant is a state entity (Docket No. 168358). The defendants appeal. In an opinion by Justice Kelly, joined by Chief Justice Mallett, and Justices Brickley, Cavanagh, and Boyle, the Supreme Court held-. The Whistleblowers’ Protection Act provides a right to a jury trial, and that right exists in suits against the state and its subdivisions. 1. The Whistleblowers’ Protection Act neither requires nor forbids jury trials. Consistent with civil actions generally, the right to a jury under the act depends on the nature of the claim made and the relief sought. Where an action by its nature does not bar a jury trial, the claim is for money damages, there is a provision for bringing the action in circuit court, and the right to a jury is not denied, a plaintiff properly may demand a trial by jury. Use of the term “actual damages” in the act indicates an intent to provide a right to a jury trial in suits brought under the act. Actual damages is a legal, rather than an equitable, remedy, and legal issues are traditionally tried by a jury. Case law has held that a jury is proper where a statute creates a cause of action for actual damages without specifying before whom the action is to be tried. 2. The state’s sovereign immunity from liability and its immunity from suit are not the same. The Whistleblowers’ Protection Act specifically includes the state and its political subdivisions among the bodies to be regulated. Nothing in the act suggests that the state is not to be treated the same as a business for purposes of the act’s protection of non-civil service employees like the plaintiff. The express language of the act indicates that the state must submit to the jurisdiction of the circuit court and, thus, that the court rules apply. The court rules provide that legal actions for money damages are to be tried by a jury on request. Hence, the state may be tried by a jury in Whistleblowers’ Protection Act cases. Reasoning vacated; result affirmed. Justice Taylor, joined by Justice Weaver, dissenting, stated that the Legislature’s failure to mention that a jury may hear or award damages in a Whistleblowers’ Protection Act lawsuit should be given its obvious meaning, i.e., that it did not intend to provide for jury trials in such lawsuits. Nor does Const 1963, art 1, § 14 provide a basis for finding a right to a jury trial under the act because there was no common-law analogue of a whistleblowers’ action when art 1, § 14 was adopted. The Court of Appeals clearly erred when it ruled to the contrary. 216 Mich App 561; 550 NW2d 544 (1996) affirmed in part. Green, Green & Craig, P.C. (by Christine A. Green), for the plaintiff-appellee. Fraser, Trebileock, Davis & Foster, P.C. (by Michael E. Cavanaugh, Mark R. Fox, and Graham K. Crabtree) for defendant-appellant Band. Michael J. Kiley for defendant-appellant Michigan State University. Amici Curiae: Butzel Long (by Leonard M. Niehoff and John C. Blattner), Scott P. HiU-Kennedy, Elizabeth M. Barry, Gloria A. Hage, and Daniel J. Bernard for Ferris State University, University of Michigan, and Wayne State University. Clark, Hill, P.L.C. (by Duane L. Tamacki and J. Walker Henry), for Michigan Manufacturers Association. Roy, Shecter, Mirer & Vocht, PC. (by Jeanne Mirer) for Michigan Trial Lawyers Association. Rentrop, Vanderkloot, Haynes & Morrison, PC. (by Jeffrey K. Haynes and C. Thomas Ludden), for Michigan Environmental Council. Kelly, J. We granted leave in this case to decide whether there is a right to trial by jury in an action under the Whistleblowers’ Protection Act. MCL 15.361 el seq.-, MSA 17.428(1) el seq. If the right does exist, does it obtain when the defendant is the state or one of its political subdivisions? We hold that the act contains a right to a jury trial, and that the right exists in suits against the state of Michigan and its subdivisions. We thus affirm the result reached by the Court of Appeals, but for a different reason. i Plaintiff began an action under the Whistleblowers’ Protection Act in circuit court against Michigan State University and Professor Rudolph Band. She alleged that her contract as a research laboratory worker had not been renewed because she had complained to the university’s Environmental Affairs Office about conditions in a university laboratory. The circuit court granted a defense motion to strike the plaintiff’s jury demand. Plaintiff filed an application for leave to appeal. The Court of Appeals granted the application and held that there is a right to a jury trial in an action brought under the act. 216 Mich App 561; 550 NW2d 544 (1996). It held, also, that the right to jury trial exists even when the defendant is a state entity. We granted defendants’ applications for leave to appeal. 456 Mich 865 (1997). This Court is asked to review the Court of Appeals reversal of the trial court’s decision to deny plaintiff a jury. The trial court granted defendants’ motion to strike plaintiff’s jury demand because it determined that the act provided no right to a jury trial. Defendants pose a question of law, which we review de novo. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991). n A The Legislature designed the Whistleblowers’ Protection Act to protect the public from unlawful conduct by corporations and government bodies. The act protects the public by removing barriers to the reporting of violations of law by employees. Dolan v Continental Airlines, 454 Mich 373, 379; 563 NW2d 23 (1997). It defines “employees” to include essentially all workers except those in state classified civil service. MCL 15.361(a); MSA 17.428(1)(a). It governs “employers.” Under subsection 1(b), the state and its political subdivisions are to be considered employers for its purposes. MCL 15.361(b); MSA 17.428(l)(b). The act forbids employers from retaliating against employees who report, or are about to report, violations of the law. MCL 15.362; MSA 17.428(2). Section 3 describes the steps to be taken by employees who believe that their employers have not complied with the act: (1) A person who alleges a violation of this act may bring a civil action for appropriate injunctive relief, or actual damages, or both within 90 days after the occurrence of the alleged violation of this act. (2) An action commenced pursuant to subsection (1) may be brought in the circuit court for the county where the alleged violation occurred, the county where the complainant resides, or the county where the person against whom the civil complaint is filed resides or has his or her principal place of business. (3) As used in subsection (1), “damages” means damages for injury or loss caused by each violation of this act, including reasonable attorney fees. [MCL 15.363; MSA 17.428(3).] Section 4 delineates the potential remedies that are available to a successful claimant: A court, in rendering a judgment in an action brought pursuant to this act, shall order, as the court considers appropriate, reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages, or any combination of these remedies. 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. [MCL 15.364; MSA 17.428(4).] B The foremost rule of statutory construction is to discern and give effect to the intent of the Legislature. Murphy v Michigan Bell Telephone Co, 447 Mich 93, 98; 523 NW2d 310 (1994). See also Nation v W D E Electric Co, 454 Mich 489, 494; 563 NW2d 233 (1997). If statutory language is clear and unambiguous, lawmakers must have intended the meaning they clearly expressed, and the statute must be enforced as written. No further construction is required or permitted. Tryc v Michigan Veterans’ Facility, 451 Mich 129, 135; 545 NW2d 642 (1996). See also Western Michigan Univ Bd of Control v Michigan, 455 Mich 531; 565 NW2d 828 (1997). i There is no express provision in the Whistleblowers’ Protection Act specifying whether an action brought under it is to be tried before a jury or before a judge sitting without a jury. On the basis of this silence, the dissent would hold that no jury right is available in Whistleblowers’ Protection Act actions. The dissent suggests that the Legislature’s failure to specifically state that a jury right exists means the Legislature did not intend whistleblowers’ suits to be tried by a jury. We disagree both with the rule suggested by the dissent and the dissent’s analysis of the jury issue. The rule suggested by the dissent is inappropriate in this case. It could be used alternatively to support a conclusion that the jury right is given, or that it has been withheld. As the dissent suggests, it is clear the Legislature knows how to expressly provide that an action is to be tried to a jury. It is also clear that the Legislature knows how to provide that an action is to be tried to a judge. For example, in the Employee Right to Know Act, the Legislature specifically stated that the court was to “award” damages. One could apply the dissent’s rule to the case at hand and legitimately reach the opposite conclusion from the dissent’s: given that the Legislature knew how to provide that the court should “award” damages, but did not, it did not intend for a judge to decide that issue. Defendants argue that the Legislature’s use of “court” rather than “court or jury” is determinative. We disagree. What is important in understanding the Legislature’s intent is not that it used the word “court” instead of “jury,” but, rather, what it provided that the “court” should do. The Legislature described the court’s role in wpa actions in terms of “render[ing] a judgment,” not in terms of “awarding damages.” The expressions are not interchangeable; “awarding damages” and “render[ing] a judgment” have different meanings. When a court renders a judgment, it is entering an order based on previously decided issues of fact. “Rendering judgment” does not mean the judge is making a determination of the entitlement of a party to an award of actual damages. Instead, it is the procedural step the judge takes after the factfinder has made that determination. The difference in the terms is made clear by the statute itself. The wpa provides that the court is to “award attorney fees.” Deciding the entitlement to an award of attorney fees has traditionally been the job of a judge, not a jury. Because the act provides that the court should award attorney fees, it is clear that the Legislature intended that a judge should decide whether a party is entitled to fees, and in what amount. 2 The defendants in the case before us argue that the remedies available in § 4 of the act indicate that a judge, rather than a jury, should decide factual issues. Section 4 empowers a court to order any of several equitable remedies: reinstatement, back pay, reinstatement of fringe benefits and seniority, or a combination of them. Defendants argue that the act provides for an equitable proceeding, only. They urge the Court to adopt the reasoning of a federal district court that construed all actions under the Ohio Whistleblowers’ Protection Act to be equitable proceedings. Rheinecker v Forest Laboratories, Inc, 813 F Supp 1307 (SD Ohio, 1993). Defendants and amici curiae urge that the use of the word “court” in § 3 of the act is determinative. This, too, comes from Rheinecker, because the court there opined that the legislature would have used the word “jury” had it intended a jury to hear claims under the act. However, as the court stated, its decision was based not only on the absence of the word “jury,” but, also, on the remedies that the act provided: Furthermore, although perhaps not controlling, the Act specifically speaks in terms of the Court’s authority, not the jury’s. Thus, in the face of the enumerated equitable remedies and the language of the statute itself, the Court is not persuaded by the Plaintiff’s argument that the Act gives rise to a right to trial by jury. [813 F Supp 1314 (citation omitted; emphasis added).] We do not find that the reasoning in Rheinecker regarding the Ohio act is persuasive authority for construing the Michigan act. The comparison to Rheinecker is inapposite, because our act provides for a legal remedy in the form of actual damages, while the Ohio act does not. In cases involving both equitable and legal issues, juries may decide factual issues relating to money damages, while judges retain the authority to determine the facts involving equitable remedies. C The existence of actual damages is significant because it distinguishes the Michigan act. Also, it indicates that the Legislature intended that the damages issue be tried by a jury, upon request. On its face, the language of the Whistleblowers’ Protection Act does not answer whether a jury right is available in an action brought under it. The statute neither explicitly requires nor attempts to forbid a jury. Where the language of a statute does not answer our questions, we must look behind its words to determine the Legislature’s intent. Therefore, it is necessary to broaden the scope of our inquiry to determine whether the Legislature intended to provide a jury right in suits brought under the act. In Lorillard v Pons, the United States Supreme Court found a statutory right to a jury in the Age Discrimination in Employment Act (ADEA), 29 USC 624 et seq. One of the reasons it concluded that the adea contained the right to a jury was Congress’ inclusion of “legal” relief among the remedies available under the act. The Court explained how it inferred a statutory right to a jury from Congress’ inclusion of the words “legal relief”: This inference [that the adea provides a statutory jury right] is buttressed by an examination of the language Congress chose to describe the available remedies under the ADEA. Section 7(b) empowers a court to grant “legal or equitable relief” and § 7(c) authorizes individuals to bring actions for “legal or equitable relief” (emphasis added). The word “legal” is a term of art: In cases in which legal relief is available and legal rights are determined, the Seventh Amendment provides a right to jury trial. “[W]here words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country they are presumed to have been used in that sense unless the context compels to the contrary.” We can infer, therefore, that by providing specifically for “legal” relief, Congress knew the significance of the term “legal,” and intended there would be a jury trial on demand to “enforc[e] . . . liability” .... [434 US 583 (citations omitted).] We find the Court’s reasoning in Lorillard persuasive, and apply that reasoning to the whistleblowers’ act. Using this analysis, we conclude that the Legislature’s use of the term “actual damages” is significant. It indicates the Legislature’s intent to provide for a jury right in suits brought under the act. While the ADEA provides a “legal” remedy, analogous language in the whistleblowers’ act provides for “actual damages.” “Actual damages” is also a term of art. Actual damages is a legal, rather than an equitable, remedy, and legal issues are traditionally tried to a jury. Moreover, the notion that the Legislature might intend a jury trial without explicitly so stating is not new. More than one hundred and forty years ago, the Legislature provided a statutory cause of action for actual damages that contained the right to a jury. However, the act itself did not expressly provide for jury trials. It was an 1875 cause of action for the benefit of wives and children of certain persons to whom liquor was sold. It provided: Every wife, child, ... or other person who shall be injured in person or property, means of support, by any intoxicated person, . . . shall have a right of action in his or her own name against any person or persons who . . . have caused . . . the intoxication and in any such action, the plaintiff shall have a right to recover actual and exemplary damages. [1875 PA 231, § 3 (emphasis added).] In Friend v Dunks, this Court considered the appropriate form of action under the statute, stating, “The statute does not prescribe the form of remedy, so that the party seeking to recover under either of these provisions must resort to the common law for an appropriate form of action.” Id. at 27. The Court held that the cause of action for actual and exemplary damages was an action on the case, and was properly tried by a jury. Ironically, the Court relied on an Ohio Supreme Court decision that held under one of that state’s statutes, “ ‘What those damages are, in any given case, the legislature have seen proper to leave in these broad terms to a jury to determine.’ ” Id. at 32, quoting Mulford v Clewell, 21 Ohio St 191, 196 (1871). Like Congress, when it adopted the Age Discrimination in Employment Act and included “legal remedies,” the Michigan Legislature created a cause of action in the wpa and provided for “actual damages.” As far back as 1877, the Court has held that a jury is proper where a statute creates a cause of action for actual damages without specifying before whom the action is to be tried. The Legislature is deemed to be aware of the meaning given to the words it uses, including the jury right that accompanies actual damages. Our holding recognizes that the Legislature imported into the wpa the meaning of actual damages, just as Congress had imported the jury right into the adea by providing for legal relief in Lorillard. We hold that, by including that term, the Legislature intended that the act contain a right to a trial by jury. d There is another aspect of the Supreme Court decision in Lorillard supportive of our conclusion that the whistleblowers’ act provides a right to trial by jury. In addition to Congress’ use of the term “legal remedy,” the Court’s conclusion in Lorillard was based on an historical analysis of the ADEA. Upon examining the adea and its history, the Court found that Congress intended to import into the ADEA the procedures and practices of the Fair Labor Standards Act. This contributed to the Court’s conclusion that the structure of the adea provided a right to a jury trial. The Court noted that Congress had selectively adopted provisions from the flsa by choosing to include those consistent with the adea scheme, and to exclude those not appropriate for the adea. Id. at 578-580. The ADEA specifically stated that suits brought under it were to be tried in a manner similar to suits brought under the flsa. “Long before Congress enacted the adea, it was well established that there was a right to a jury trial in private actions pursuant to the ELSA.” Id. at 580. Where it “adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to th

JACOBSON v PARDA FEDERAL CREDIT UNION Docket No. 105050. Argued November 4, 1997 (Calendar No. 16). Decided May 19, 1998. Rehearing denied 458 Mich 1201. G. Marie Jacobson brought an action in the Oakland Circuit Court against Parda Federal Credit Union and some of its board members under the Whistleblowers’ Protection Act, MCL 15.361 et seq.-, MSA 17.428(1) et seq., alleging that she had been constructively discharged from employment. Following a jury verdict for the plaintiff, the court, Robert C. Anderson, X, directed a verdict for the defendants, finding that the claim was barred because it had not been filed within the requisite period of limitation. The Court of Appeals, Murphy, P.J., and Jansen and R. L. Kaczmarek, JX, reversed in part in an unpublished opinion per curiam, finding that the defendant had engaged in a pattern of discriminatory conduct amounting to a continuing violation, and that the action was filed within the limitation period (Docket No. 162885). The defendant credit union appeals. In an opinion by Justice Cavanagh, joined by Chief Justice Mallett, and Justices Boyle and Kelly, the Supreme Court held: Because the plaintiff has alleged and proven an act by her employer in violation of the Whistleblowers’ Protection Act within the limitation period, her action is not barred. 1. While an employer’s action may lead to a constructive discharge, the discharge itself generally cannot become evident until the employee, in fact, has left the employment. To say that a discharge occurred whenever an employer’s action that resulted in the discharge occurred would be to set a date of occurrence in retrospect. Until the employee resigns, the employer’s action has yet to prove to be one of discharge. A discharge, be it constructive or otherwise, must have in place all the events necessary to determine its existence. 2. A constructive discharge occurs only where an employer or its agent’s conduct is so severe that a reasonable person in the employee’s place would feel compelled to resign. The focus is on the moment of resignation. In this case, the employee’s resignation occurred on October 21, 1989. A jury later agreed that it was reasonable for her to resign at that time. Thus, she was constructively discharged on October 21, 1989. The law does not differentiate between employees who were constructively discharged and those who were actually discharged. At the time plaintiff filed her claim, any act that occurred on October 21, 1989, could timely be addressed. The filing was timely on the basis of her constructive discharge. Affirmed. Justice Taylor, joined by Justices Brickley and Weaver, dissenting, stated that in the context of a constructive discharge claim, it is not an employee’s tender of resignation that triggers the ninety-day limitation period under MCL 15.363(1); MSA 17.428(3)(1); rather, it is the employer’s adverse action. Because the plaintiff alleges no adverse actions by the defendant that occurred within ninety days of the filing of her complaint, subsection 3(1) bars her claim. Constructive discharge is not in itself a cause of action, but rather is a defense against an employer’s argument that the employee is precluded from bringing suit because of voluntary termination of employment. An underlying cause of action is necessary to support maintenance of the employee’s suit. It is the time of the employer’s alleged discriminatory act giving rise to the underlying cause of action that signals the start of the statutory limitation period, not the date the employee eventually resigns. In this case, the relevant event for purposes of the limitation period was the defendant’s alleged discriminatory action in August 1989, not the resignation itself. The majority’s position places control over accrual of a cause of action in the hands of the employee. If the statute of limitations in constructive discharge cases is not triggered until an employee actually resigns, the employer reasonably cannot be viewed as having any control over when the action accrues and, accordingly, has no protection from stale claims. Morganroth & Morganroth (by Mayer Morganroth and Jeffrey B. Morganroth) for the plaintiff. Bowen, Radabaugh, Milton & Brown, RC. (by Thomas R. Bowen, Susan Leigh Brown, and Evelyn C. Tombers), for the defendant. Amicus Curiae: Plunkett & Cooney, P.C. (by Ernest R. Bazzana), for Michigan Defense Trial Counsel, Inc. Cavanagh, J. The case calls on us to decide whether the plaintiffs action, which was successful on the merits before a jury, was barred by the statute of limitations prescribed by the Whistleblowers’ Protection Act. Because the plaintiff has alleged and proven an act by her employer in violation of the Whistleblowers’ Protection Act within the limitation period, we find that her action is not barred. The plaintiff filed her action on January 19, 1990, ninety days after writing and sending her letter of resignation to her employer. Her complaint alleged, inter alia, that she had been constructively discharged from her employment in violation of the act. Following a jury verdict for the plaintiff, the trial court granted defendant’s motion for directed verdict, agreeing with defendant’s contention that the plaintiff’s claim was barred because the plaintiff had not filed her claim within the ninety-day statutory period for claims under the act. The Court of Appeals reversed in part, finding a continuing pattern of discriminatory conduct, with most acts outside the statutory period, but at least one act within it. The Court of Appeals concluded that this fit within an exception to the limitation period for continuing violations, and that the plaintiff’s complaint was therefore timely filed. We granted defendant’s application for leave to appeal. We find that the plaintiff has shown that she was constructively discharged on the date of resignation in retaliation for conduct protected by the act. It is undisputed that when the plaintiff filed her action, the period of limitation covering any actions on the date of her resignation, October 21, 1989, had not expired. Accordingly, we affirm the result reached by the Court of Appeals, but on different grounds. i Plaintiff G. Marie Jacobson worked for defendant Parda Federal Credit Union from 1972 until her resignation on October 21, 1989. Beginning as a temporary employee, she eventually rose to the position of executive vice president and chief operating officer. While serving in this position, plaintiff, after consulting with her private attorney, contacted the Federal Bureau of Investigation on February 28, 1989, to report her suspicions regarding a bond claim filed by the defendant with its insurer. Plaintiff believed that this bond claim was unsupported and, therefore, improper and perhaps fraudulent. That same day, the board of directors of the credit union learned of plaintiff’s action. Thereafter, plaintiff noted a dramatic decline in her relationship with the board. The plaintiff testified that the board was upset and outraged that she had reported the credit union to the FBI. Joseph Abate was president and CEO of the credit union during this time, but had announced his retirement effective April 1, 1989. Plaintiff believed herself to be generally considered to be Abate’s successor. Shortly before Abate’s retirement, she was assured by members of the board that no search was being conducted for a replacement for Abate, and that, even if there was to be a search, she would have a “fair chance” in any search to fill Abate’s position. Following Abate’s retirement, however, the chairman of the credit union’s board, Herman Armstrong, was named acting interim CEO. From there, the plaintiff detailed at trial an extensive collection of actions adverse to her taken by the board, including the placing of a blind advertisement for the CEO position, the offering of the position to another candidate (who declined it), the failure of the board to inform her of its eventual decision to appoint her CEO, and the rescission of that decision before it in fact took effect. It is undisputed that all these actions occurred well outside the statutory limitation period present when the plaintiff filed her action. Eventually, on August 16, 1989, the credit union hired Katie Stone as interim president and CEO. Simultaneously, plaintiffs staff was assigned to report to Stone, and plaintiff was relieved of her previous job duties. Plaintiff testified that from this point forward she was ostracized and ignored by the board. On October 21, 1989, plaintiff typed out a letter of resignation and mailed it to the board members, leaving an additional copy on Stone’s desk. It is undisputed that plaintiff was alone at work that day, a Saturday. Plaintiff reported to work on the following Monday, October 23, 1989, and was instructed by Stone to clean out her desk and leave at once. Plaintiff complied with Stone’s instructions. On January 19, 1990, exactly ninety days after the day plaintiff wrote and mailed her letter of resignation, she filed this action. The defendant moved for a directed verdict at the close of plaintiff’s proofs and again at the close of its proofs. The trial court took both motions under advisement. Following a jury verdict in favor of the plaintiff, the trial court granted a directed verdict (judgment notwithstanding the verdict) in favor of the defendant on all counts. The Court of Appeals reversed in part, with respect to the finding that plaintiffs whistleblowers’ action was barred by the statute of limitations. It is from this portion of the Court of Appeals decision that the defendant appeals. We now affirm, for reasons other than those stated by the Court of Appeals. n The issue whether a claim is within the period of limitation is one of law, Solowy v Oakwood Hosp Corp, 454 Mich 214, 216; 561 NW2d 843 (1997), and hence reviewed de novo, Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991). Here, because a jury has found in favor of the plaintiff, and the trial court entered a directed verdict, plaintiff on appeal is entitled to all factual issues being viewed in the light most favorable to her, along with the drawing of reasonable favorable inferences from them. Caldwell v Fox, 394 Mich 401; 231 NW2d 46 (1975). Plaintiff filed her action on January 19, 1990. Under the act, the period of limitation for an action alleging unlawful retaliatory conduct is ninety days. Therefore, the first step in any analysis of this claim is to determine whether the plaintiff has stated a claim regarding events within the limitation period. Even if we were to agree with the analysis of the Court of Appeals of the events that were otherwise barred by the statute of limitations, the analysis must nevertheless begin at those times within the period of limitation. Simply stated, if the plaintiff has alleged an action within the period of limitation, and the trier of fact has found in favor of the plaintiffs claims, we need look no further. Here the plaintiff resigned on October 21, 1989. She was admittedly alone at work on that day, a Saturday. Plaintiff testified that her working conditions had become intolerable, and offered considerable testimony in support of her claims that the conditions had steadily deteriorated in response to her reporting certain actions of the board of directors of her employer to the FBI. The question when a constructive discharge occurs has been previously addressed by this Court only in the context of a Michigan Civil Rights Act claim. Champion v Nation Wide Security, Inc, 450 Mich 702; 545 NW2d 596 (1996). Noting that “a constructive discharge occurs only where an employer or its agent’s conduct is so severe that a reasonable person in the employee’s place would feel compelled to resign,” we found that the supervisor’s conduct in Champion was severe enough to compel the plaintiff to resign. Defendant argues that Champion stands for the proposition that the act of an employer constitutes the action that results in the “discharge” in a constructive discharge situation, and that, therefore, the timing of the action of the employer controls. We disagree. The act of the employer and the constructive discharge were inseparable in Champion. Our analysis did not deviate from the standard expressed in Vagts, that is, would a reasonable person in plaintiff’s position have felt compelled to resign as a result of the employer’s sexual assault? Applying that same standard, the defendant’s motion for judgment notwithstanding the verdict should not have been granted if, viewing the evidence in a light most favorable to the plaintiff, jurors could have reached different conclusions whether plaintiff’s working conditions were so intolerable that a reasonable person in plaintiff’s position would have felt compelled to resign. Champion, 450 Mich 710; Vagts v Perry Drug Stores, Inc, 204 Mich App 481, 487; 516 NW2d 102 (1994). m In this case, the plaintiff alleged that her work conditions, as a result of retaliatory action prohibited by the act, became intolerable as of October 21, 1989, and she submitted her resignation on that day. The trier of fact accepted this contention. While an employer’s action may lead to a constructive discharge, such a discharge itself generally cannot become evident until the employee has, in fact, left the employment. It seems, therefore, that to say that a discharge occurred whenever an employer’s action that resulted in the discharge occurred would be to set a date of occurrence in retrospect. Until the employee resigns, the employer’s action has yet to prove to be one of discharge. A discharge, be it constructive or otherwise, must have in place all the events necessary to determine its existence. On the day she resigned, plaintiff found her working conditions to finally be intolerable. As we have noted above, “a constructive discharge occurs only where an employer or its agent’s conduct is so severe that a reasonable person in the employee’s place would feel compelled to resign.” Champion at 710-711, citing Vagts at 487-488, and Young v Southwestern Savings & Loan Ass’n, 509 F2d 140 (CA 5, 1975). Our approach historically has been to apply an objective standard of reasonableness to the action of the employee. We decline the defendant’s invitation to depart from our longstanding rule that a discharge occurs when a reasonable person in the employee’s place would feel compelled to resign. In analyzing such circumstances, we cannot know what place the employee is in, and hence evaluate her conduct, until she actually resigns. It seems, therefore, that our focus in these far more common situations must be on the moment of resignation. Here, the employee’s resignation occurred on October 21, 1989. A jury later agreed that it was reasonable for her to resign at that time. She was constructively discharged on October 21, 1989. “[O]nce individuals establish their constructive discharge, they are treated as if their employer has actually fired them.” Champion at 710. The law does not differentiate between employees who were constructively discharged and those who were actually discharged. Id. At the time plaintiff filed her claim, any act that occurred on October 21, 1989, could timely be addressed. If the plaintiff had been fired by her employer on October 21, 1989, her claim would be timely. We, therefore, would find it timely on the basis of her constructive discharge. Because reasonable jurors could differ regarding whether plaintiff was constructively discharged in violation of the act at the time she resigned, we affirm the result of the Court of Appeals, which reversed the directed verdict, and reinstate the jury’s award on the basis of the reasoning herein. Mallett, C.J., and Boyle and Kelly, JJ., concurred with Cavanagh, J. MCL 15.361 et seq.; MSA 17.428(1) et seq. While plaintiffs suit initially named several individual members of her employer’s board of directors as defendants, the trial court dismissed these claims pursuant to MCR 2.116(C)(8), finding the individual directors not to be employers within the meaning of the Whistleblowers’ Protection Act. The Court of Appeals affirmed this dismissal, and the plaintiff has not filed a cross appeal on this issue. The jury awarded the plaintiff $277,000 in present economic damages and $128,000 in future economic damages. The jury also awarded $100,000 in noneconomic damages on the plaintiff’s claim of intentional infliction of emotional distress. The trial court granted a directed verdict on this claim, and the Court of Appeals affirmed. Plaintiff has not filed a cross appeal on this issue. Now a judgment notwithstanding the verdict, MCR 2.610. MCL 15.363(1); MSA 17.428(3)(1). Unpublished opinion per curiam, issued November 17, 1995 (Docket No. 162885). The Court of Appeals cited Sumner v Goodyear Tire & Rubber Co, 427 Mich 505, 528; 398 NW2d 368 (1986), for this proposition. 454 Mich 905 (1997). Constructive discharge is not, itself, a cause of action, but rather a defense to a claim of the voluntary leaving of the employee. See Vagts v Perry Drug Stores, Inc, 204 Mich App 481, 487; 516 NW2d 102 (1994). However, discharge is among the retaliatory actions prohibited by the act. Plaintiff alleged she was constructively discharged. The actual posturing of her claim, accordingly, is one of discharge in violation of the act. In reviewing a motion for judgment notwithstanding the verdict, we examine the testimony and all legitimate inferences that may be drawn in a light most favorable to the nonmoving party. If reasonable jurors could have reached different conclusions, the motion should have been denied. Matras v Amoco Oil Co, 424 Mich 675, 681-682; 385 NW2d 586 (1986). As will be seen, we find no need to reach the issue of a possible “continuing violation” encompassing acts beyond the limitation period. It is apparent that, before the plaintiff contacted the FBI, she had brought her concerns regarding the bond claim to the board of directors, which nonetheless authorized the filing of the claim. While it is apparent that the board decided to promote plaintiff to ceo after the other candidate refused the position, the plaintiff testified she was never informed of that decision and learned of it by way of a third-party’s congratulatory letter a month later. When confronted by the plaintiff, the board informed her that it had already rescinded her promotion, and thereafter hired Katie Stone as interim CEO. A motion for judgment notwithstanding the verdict should be granted only if the evidence, viewed in a light most favorable to the nonmoving party, fails to establish a claim as a matter of law. Orzel v Scott Drug Co, 449 Mich 550, 557-558; 537 NW2d 208 (1995). Our decision rests on a claim of constructive discharge within the limitation period. Plaintiff also alleged numerous discriminatory acts by the defendant outside the limitation period. While those allegations do not, by themselves, form the basis we decide this matter on, they are nonetheless relevant to determining the reasonableness of the plaintiff’s resignation, a determination required in addressing a claim of constructive discharge. See Vagts, n 9 supra at 487-488. MCL 37.2101 et seq.-, MSA 3.548(101) et seq. Subsection 103 of the act provides: (i) Discrimination because of sex includes sexual harassment which means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication of a sexual nature when: (ii) Submission to or rejection of such conduct or communication by an individual is used as a factor in decisions affecting such individual’s employment, public accommodations or public services, education, or housing. Champion at 710, citing Vagts, n 9 supra at 487-488, and Young v Southwestern Savings & Loan Ass’n, 509 F2d 140 (CA 5, 1975). In Champion, the plaintiff was forcibly raped by her supervisor while at wo

CHANDLER v DOWELL SCHLUMBERGER INCORPORATED Docket No. 104864. Argued November 6, 1997 (Calendar No. 17). Decided January 21, 1998. Joseph W. Chandler brought an action in the Midland Circuit Court against Dowell Schlumberger Incorporated under the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq., alleging that he was discharged from his employment because the defendant believed that he had reported violations of the law to the Department of Transportation. The court, Paul J. Clulo, J., granted the defendant’s motion to dismiss the case, holding that the act did not protect the plaintiff. The Court of Appeals, Gribbs, P.J., and Markman, J. (D. E. Shelton, J., dissenting), affirmed (Docket No. 166009). The plaintiff appeals. In a unanimous opinion by Justice Kelly, the Supreme Court held-. The Whistleblowers’ Protection Act does not shield an employee who is erroneously perceived to be a whistleblower and subsequently discharged from employment. 1. To establish a prima facie case under the Whistleblowers’ Protection Act, it must be shown that the plaintiff was engaged in protected activity as defined by the act, the defendant employer discharged the plaintiff, and a causal connection exists between the protected activity and the discharge. Protected activity consists of reporting to a public body a violation of law, regulation, or rule; being about to report such a violation to a public body; or being asked by a public body to participate in an investigation. 2. Because the plaintiff has not alleged that he reported a violation of the law to a public body, that he was about to do so, or that he was requested to participate in a public investigation, the plain language of the statute does not protect him. He failed to state a prima facie case under the act. Affirmed. 214 Mich App 111; 542 NW2d 310 (1995) affirmed. Mathieu & Lee (by James H. Mathieu) for the plaintiff. Barry B. George for the defendant. Kelly, J. We granted leave in this case to decide whether the Whistleblowers’ Protection Act shields an employee who was discharged under the erroneous perception that he reported a violation of law. We conclude that the statute does not protect such an employee. i Defendant Dowell Schlumberger Incorporated (DSl) hired the plaintiff on June 4, 1989, as a field engineer trainee. It promoted him to field engineer on November 11, 1990. On April 6, 1992, the Michigan Department of Transportation, acting on a tip, cited DSl for carrying hydrochloric acid in a trailer not properly certified to carry it. Over the next week, plaintiff’s supervisor, Joseph Shurell, sought the identity of the person who had reported the violation to moot. On April 13, 1992, Shurell called plaintiff to his office, questioned him about who reported the violation, and fired him. Plaintiff filed the present action under the Whistleblowers’ Protection Act (wpa). In his complaint, he alleged that Shurell discharged him because Shurell believed that plaintiff had reported violations of the law to MDOT. Among other things, the wpa makes it illegal for an employer to retaliate against an employee because the employee has reported a violation of the law. When defendant moved to dismiss the case under MCR 2.116(C)(10), Midland Circuit Court Judge Paul J. Clulo granted the motion, holding that the WPA did not protect plaintiff. He later denied plaintiffs motion for reconsideration. Plaintiff then appealed to the Court of Appeals, which affirmed. 214 Mich App 111; 542 NW2d 310 (1995). We granted plaintiffs application for leave to appeal. 454 Mich 906 (1997). n This Court is asked to review the trial court’s grant of defendant’s motion for summary disposition under MCR 2.116(C)(10). In deciding a motion under sub-rule (C)(10), the trial court views affidavits and other documentary evidence in the light most favorable to the nonmoving party. Shallal v Catholic Social Services of Wayne Co, 455 Mich 604, 610; 566 NW2d 571 (1997). Our review is de novo. Groncki v Detroit Edison Co, 453 Mich 644, 649; 557 NW2d 289 (1996). See Weymers v Khera, 454 Mich 639; 563 NW2d 647 (1997). m A Plaintiff sues under § 2 of the Whistleblowers’ Protection Act. It provides: An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action. [MCL 15.362; MSA 17.428(2).] When construing a statute, we begin by recognizing that “[w]here the legislative intent is clearly expressed, it is entitled to the utmost respect.” People v Waterman, 137 Mich App 429, 432-433; 358 NW2d 602 (1984). We explained the process recently; The cardinal rule of all statutory construction is to identify and give effect to the intent of the Legislature. The first step in discerning intent is to examine the language of the statute in question. We read the language according to its ordinary and generally accepted meaning. Judicial construction is authorized only where it lends itself to more than one interpretation. We also consider that remedial statutes, such as the Whistleblowers’ Protection Act, are to be liberally construed, favoring the persons the Legislature intended to benefit. [Shallol, supra at 611 (citations omitted).] B Plaintiff alleges that he was fired because dsi believed it was he who blew the whistle. Accordingly, plaintiff is a “perceived whistleblower” and points to an opinion of this Court providing protection under the Michigan Handicappers’ Civil Rights Act to those who are “perceived to be handicapped.” Sanchez v Lagoudakis, 440 Mich 496, 503; 486 NW2d 657 (1992). Plaintiff argues that, because the employer has undertaken the action the statute appears to forbid, firing an employee believed to have reported a violation, the act should punish the employer. Plaintiffs argumerit requires us to examine the Whistleblowers’ Protection Act. Recently, we recognized that a plaintiff must establish three elements to make a prima facie case under § 2 of the WPA. Shallal, supra at 610. The plaintiff must show that (1) he was engaged in protected activity as defined by the act, (2) the defendant discharged him, and (3) a causal connection exists between the protected activity and the discharge. Id. “Protected activity” under the WPA consists of (1) reporting to a public body a violation of a law, regulation, or rule; (2) being about to report such a violation to a public body; or (3) being asked by a public body to participate in an investigation. MCL 15.362; MSA 17.428(2). Plaintiff has not alleged that he reported a violation of the law to a public body or that he was about to report such a violation. Nor does plaintiff allege that he was requested to participate in a public investigation of any kind. In fact, plaintiff has made clear that he was not the person who reported the employer’s violation to the mdot. The plain language of the statute does not protect plaintiff. The ordinary and generally accepted meaning of the words “reports,” “about to report,” and “requested by a public body to participate in an investigation” do not encompass plaintiff’s actions in the present case. The words are clear and do not readily lend themselves to more than one interpretation. As we noted in Shallal, “the implication is that the language of the Whistleblowers’ Protection Act intentionally reduces employee protection the more removed the employee is from reporting to a public body.” Id. at 613 (citation omitted). There is no sliding scale in the wpa based on the employer’s intent. Regardless of the quantum of proof of the employer’s ill will, the act requires an employee to prove he was engaged in protected activity. The statute does not provide that the more obvious the employer’s bad behavior, the less the plaintiff is required to do. In fact, almost the opposite is true. This is evident from the requirement that an employee seeking protection under the “about to report” language of the act prove his intent by clear and convincing evidence. See MCL 15.363(4); MSA 17.428(3)(4). As we noted above, the statute reflects the intent of the Legislature that the further an employee is from reporting, the harder it is for an employee to prove a violation under the wpa. c Plaintiff points to this Court’s opinion in Sanchez v Lagoudakis, supra. In that case, the Court read language in the Michigan Handicappers’ Civil Rights Act (mhcra) similar to § 2 of the wpa to protect a person who was perceived to have a handicap. However, plaintiff’s comparison fails, because none of the factors that led the Court to interpret the mhcra to protect one who is regarded as having a handicap demands the same result under the Whistleblowers’ Protection Act. First, the Michigan Civil Rights Commission, the agency charged with interpreting the meaning of the mhcra on a daily basis, determined that the act protected one regarded as having a handicap. Id. at 503. Here, there is no claim that any state agency has determined that the statute should be read to protect “perceived whistleblowers.” Second, the Sanchez Court reviewed decisions from many other states, finding that “[c]ourts in other jurisdictions with discrimination laws similar to the act have consistently construed their statutes to protect persons perceived to be handicapped.” Id. Here, there is no overwhelming support for the definitional change in other jurisdictions, as there was under the MHCRA. In the whistleblower context, “laws similar to the [WPA]” are sufficiently different definitionally to make comparison between them on this issue ineffective. In the handicappers’ arena, the United States Supreme Court and many states determined that one regarded as having a handicap should be protected. Here, Michigan’s WPA gives broader protection than do most other states, so there is little with which to compare it. Plaintiff points to this Court’s majority opinion in Shallal, supra, which analogized between qui tarn actions under the False Claims Act and the wpa. Plaintiff asserts that he would recover in a qui tarn action under the False Claims Act. The argument fails. First, the analogy to the qui tarn provisions was not necessary to the Court’s opinion in Shallal. Second, the definition of protected activity under qui tarn is very different from that under the wpa. Under the qui tarn provision, one could engage in protected activity by simply observing the wrongful activity and confronting the wrongdoer. See Shallal, supra at 618. There is no corresponding “confrontation” protection under the wpa. Instead, to come under the protection of the statute, a worker must engage in protected activity. Because the definitions of the two statutes differ on this specific issue, the analogy fails. Third and most importantly, the Court noted that the Legislature had amended the mhcra in 1990, changing the definition of “handicap” to include “ ‘[b]eing regarded as having’ a handicap.” Sanchez at 506. On that basis, we held that denying protection to one perceived to have a handicap would go against the purpose and policy of that act. Here, there is no legislative amendment of the act to clarify the Legislature’s meaning. Therefore, we determine the intent of the Legislature in enacting the bill from the words of the statute itself. The wpa, it appears, represents the Legislature’s judgment that one may best combat employer corruption and criminally irresponsible behavior by protecting employees who report that behavior to a public body. Protection under the act extends only to those employees engaged in protected activity as defined by the act, and plaintiff does not qualify for that protection. [T]he Michigan Legislature has seen fit to require either actual reporting or proof by clear and convincing evidence that an employee was “about to report.” It has refused to bring within the protection of the act an employee who discusses reporting and who approaches the employer and threatens to report, but takes no further action. Perhaps this is regrettable and should be remedied. However, the lawmaking that is appropriate is legislative, not judicial. [Shallal, supra at 626-627 (Kelly, J., concurring in part and dissenting in part).] The Legislature has chosen to define the group of persons covered by the act. We conclude that denying protection to plaintiff does not go against the legislative intent behind the enactment of the wpa. D Today’s opinion is consistent with recent decisions under the wpa. In Dickson v Oakland Univ, the Court of Appeals held that the WPA did not protect an employee who reported a violation by a co-worker. The panel held that the act extended only to reported violations of the employer. This Court disagreed with Dickson in Dudewicz v Norris Schmid, Inc. In Dudewicz, the employee had reported a violation of the law by a co-worker. This Court held the wpa protected an employee who reported violations of his fellow employees. More important for our discussion today is the Court’s understanding in Dudewicz that the wpa would not apply to protect one who does not engage in protected activity. In distinguishing the results in Dickson and Dudewicz, we stated: “Forgetting for a moment who broke the law, the plaintiff in Dickson reported the violation only to his employer, not to a public body within the meaning of the wpa. On these facts, the panel correctly found that the wpa was inapplicable.” Dudewicz, supra at 77, n 4. Although dicta, this reasoning supports the Court’s conclusion today that the wpa does not apply to protect plaintiff. Like the plaintiff in Dickson, plaintiff here has not reported to a public body, nor does he allege that he was about to report. Here, as in Dickson, the wpa is inapplicable. This Court has twice considered the wpa in the last year. First, in Dolan v Continental Airlines, the Court followed Dudewicz and held that the act protected an employee who reported a suspected violation by someone who was neither her employer nor a co-worker. Id. at 381. The plaintiff in Dolan was a ticket agent for Continental Airlines. Id. at 374. She was asked to report to the federal Drug Enforcement Agency passengers fitting a drug courier profile. Id. at 375. She reported two such persons. Continental then issued a memo forbidding employees from reporting without its permission. Id. After the memo was disseminated, the plaintiff called the dea again, and Continental fired her. Id. at 375-376. She alleged that, when she placed the postmemo call to the dea, it was merely to inquire about her reward. Id. at 376. In Dolan, we held that “[a] plain reading of the wpa reveals that employees who report violations or suspected violations of the law to a public body are entitled to protection under the act.” Id. at 381. We held that the plaintiff there could recover even though the violation she reported was not that of her employer or of a co-worker. Id. at 382. The act was broad enough to cover violations of the law by a third person. Finally, in Shallal, supra, an employee alleged that she was “about to report” and had expressly declared it to her employer. A majority held that, inter alia, the plaintiffs acts could provide sufficient evidence of intent for a reasonable juror to find by clear and convincing evidence that she was “about to report.” 455 Mich 619-620. Of course, the present case is easily distinguishable because, unlike the plaintiff in Shallal, plaintiff here does not allege that he was about to report. The portion of our opinion in Shallal relevant for purposes of the present case relates to the majority’s understanding of the limits of the WPA’s protection. The majority in Shallal noted that “[a]n employee is engaged in protected activity under the Whistleblowers’ Protection Act who has reported, or is about to report, a suspected violation of law to a public body.” Id. at 610. Because the plaintiff there could not prove that she actually reported, her only other chance for protection under the statute was to qualify under the second option. “Hence, Shallal had the burden of establishing that a question of fact existed regarding whether she was ‘about to’ report [a] violation to a public body.” Id. at 611. Implicit in the majority’s statement is the conclusion that the plaintiff’s only other means for protection under the wpa was to prove she was “about to report.” The majority understood that protection under the wpa was limited, and recognized one of the limitations the Legislature placed on the scope of the wpa. The Legislature could have defined protected activity to include confrontation, as in the False Claims Act. It could have allowed employees to recover without a showing of reporting or being about to report. It did neither. Instead, the Legislature defined protected activity as reporting a violation or being about to report one. The Legislature can and may rewrite the statute, but we will not do so. iv The wpa, as a remedial statute, is to be liberally construed to favor the persons the Legislature intended to benefit. Shallal, supra at 611. The Whistleblowers’ Protection Act was intended to benefit those employees engaged in “protected activity” as defined by the act. The act protects those who report or are about to report violations of a law, regulation, or rule to a public body. It protects those requested by a public body to participate in an investigation. Because one who engagés in no “protected activity” under the act is not intended to benefit from its operation, our decision does not affect the remedial nature of the act. Instead, we reaffirm the broad protection given to those employees who engage in protected activity, and merely recognize that not all employees are covered. v Plaintiff failed to state a prima facie case under the Whistleblowers’ Protection Act because he could not show facts from which to conclude that he was engaged in a protected activity. He did not allege that he reported a violation of a law, regulation, or rule, or that he attempted to report. We decline to extend coverage to one who is perceived to be a whistleblower, but who has not otherwise engaged in protected activity as defined by the act. We affirm the decision of the Court of Appeals. Mallett, C.J., and Brickley, Cavanagh, Boyle, Weaver, and Taylor, JJ., concurred with Kelly, J. MCL 15.361 et seq.; MSA 17.428(1) et seq. MCL 37.1101 et seq.', MSA 3.550(101) et seq. At the time of the case, subsection 202(l)(b) provided that an employer shah not "[discharge or otherwise discriminate against an individual . . . because of a handicap . . . MCL 37.1202(l)(b); MSA 3.550(202)(l)(b). Sanchez, supra at 502. 31 USC 3730. See Shallal, supra at 616-619. 171 Mich App 68; 429 NW2d 640 (1988). 443 Mich 68; 503 NW2d 645 (1993). 454 Mich 373; 563 NW2d 23 (1997). It is undisputed that the violation reported here was sufficient to trigger the protection of the act. As in Dolan, we decline to decide what connection between the violation and the employment, if any, is required. Dolan, supra at 382. We express no opinion on the meaning of the statutory language regarding being “requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action.”

DRIVER v HANLEY (AFTER REMAND) Docket No. 193047. Submitted June 11, 1997, at Grand Rapids. Decided November 25, 1997, at 9:10 am. Leave to appeal sought. Maria E. Driver brought an action in the Benzie Circuit Court against William and Julia Hanley, alleging violation of the Whistleblowers’ Protection Act (wpa), MCL 15.362; MSA 17.428(2), retaliatory discharge in violation of public policy, and breach of an employment contract relating to the termination of her employment after she complained about the defendants to the United States Department of Labor. The court, James M. Batzer, J., removed the action to the 85th District Court after mediation resulted in an evaluation in the plaintiff’s favor at less than the circuit court’s jurisdictional limit. The district court, Brent V. Danielson, J., entered a judgment on a jury verdict for the plaintiff on all counts. The circuit court affirmed the judgment with respect to the wpa claim, but reversed with respect to the claims of public policy violation and breach of contract, ruling those claims to be preempted by the wpa. On appeal by the defendants on leave granted and a cross appeal by the plaintiff, the Court of Appeals, Taylor, P.J., and Mackenzie and M. J. Matuzak, JJ., believing that the plaintiff had made her complaint to the Michigan Department of Labor rather than to the United States Department of Labor, affirmed the circuit court’s reversal of the district court judgment with respect to the claims of public policy violation and breach of contract, holding that the wpa is the exclusive remedy for an employee whose employment is terminated in retaliation for reporting an employer’s violation of law. The Court of Appeals, however, reversed the circuit court’s affirmance of the district court judgment with respect to the wpa claim, holding that an action under the wpa is within the exclusive jurisdiction of the circuit court. 207 Mich App 13 (1994). The circuit court thereafter granted the defendants’ motion for summary disposition of the wpa claim on the ground that the wpa offers no protection to employees discharged for reporting to federal agencies. The circuit court also denied the plaintiffs motion for relief from the original circuit court judgment in the form of reinstatement of the district court judgment with respect to the claims of public policy violation and breach of contract. The plaintiff appealed. After remand, the Court of Appeals held-. 1. The defendants were not judicially estopped from asserting on remand to the circuit court that the wpa does not apply to this case. In the proceedings before remand to the circuit court, the defendants never asserted unequivocally that the wpa applies to this case; instead, the defendants merely argued that because the plaintiff had alleged a violation of the wpa, she could not, as a matter of law, allege a cumulative claim of breach of contract. 2. The circuit court abused its discretion by denying the plaintiff’s motion for relief from the original circuit court judgment in the form of reinstatement of the district court judgment with respect to the claim of breach of contract. Reinstatement was denied on the basis that the wpa provided the plaintiffs exclusive remedy. However, because the wpa provided no remedy, it could not have provided the plaintiff exclusive remedy. The doctrine of law of the case does not bind the circuit court or the Court of Appeals to the holding in the prior opinion of the Court of Appeals that the wpa represents the plaintiff’s exclusive remedy. Application of that doctrine requires that the facts remain materially the same. Here, in the first appeal of this case to the Court of Appeals, the Court of Appeals incorrectly believed that the plaintiff had made her complaint about the defendants to the Michigan Department of Labor. The plaintiff is not entitled to reinstatement of the district court judgment with respect to the claim of violation of public policy because that claim was not dismissed by the circuit court on the basis of the purported exclusivity of the wpa. On remand, the circuit court must reinstate the district court judgment in favor of the plaintiff with respect to the claim of breach of contract only. Affirmed in part, reversed in part, and remanded. Cunningham Davison Rogers & Alward (by William M. Davison), for the plaintiff. Michael E. Hall, for the defendants. AFTER REMAND Before: Reilly, P.J., and Hood and Murphy, JJ. Per Curiam. Plaintiff appeals as of right from an order granting defendants’ motion for summary disposition of plaintiff’s claim under § 2 of the Whistleblowers’ Protection Act (wpa), MCL 15.362; MSA 17.428(2). Plaintiff also contests the circuit court’s subsequent order denying plaintiff’s motion for reinstatement of a prior district court judgment. We affirm the circuit court’s order granting defendants’ motion for summary disposition. We reverse, in part, the circuit court’s order denying plaintiff’s motion seeking reinstatement of the district court judgment. This case is before this Court for the second time. In 1985, plaintiff was discharged from her employment with defendants. The facts underlying plaintiff’s discharge were set forth in this Court’s first opinion. See Driver v Hanley, 207 Mich App 13, 14-15; 523 NW2d 815 (1994). As noted in that opinion, plaintiff filed a complaint in the circuit court against defendants alleging (1) a violation of the wpa, (2) a violation of the public policy against retaliatory discharge, and (3) a breach of her employment contract. Because the parties received a mediation evaluation below the jurisdictional limit, the case was removed to the district court, where a jury, in a special verdict, found in favor of plaintiff on each count and awarded $24,800 in damages. On appeal, the circuit court (1) affirmed the district court verdict on plaintiff’s wpa count, (2) reversed the verdict on her public policy count on the ground that plaintiff failed to exhaust her administrative remedies, and (3) reversed the verdict on her breach of contract count on the ground that it was preempted by the wpa. Defendants then appealed to this Court on leave granted, and plaintiff cross appealed. Defendants argued that the district court lacked subject-matter jurisdiction over plaintiff’s wpa claim on the ground that exclusive jurisdiction was within the circuit court. This Court agreed and reversed the circuit court’s ruling with respect to plaintiffs wpa claim. Driver, supra at 16-18. In her cross appeal, plaintiff argued that the circuit court erred in reversing the verdict on her breach of contract count. This Court disagreed and affirmed the circuit court verdict with respect to plaintiff’s breach of contract count, holding that the wpa provided her exclusive remedy. Id. at 18. After remand from this Court, plaintiff was left with only a wpa claim pending in the circuit court. Defendants moved for summary disposition pursuant to MCR 2.116(C)(8) and (C)(10), arguing that plaintiff could not sustain a successful claim under the WPA under the facts as alleged and developed. In particular, defendants argued that plaintiff’s alleged report to the United States Department of Labor (usdl) was insufficient to support plaintiff’s claim, because the usdl did not constitute a “public body” within the meaning of the wpa. According to defendants, the wpa did not offer protection to employees discharged for reporting to federal agencies. The circuit court agreed and granted defendants’ motion for summary disposition. Plaintiff then moved for reinstatement of the original district court judgment, arguing that the dismissal of her other two claims had been predicated solely on the existence of a valid wpa claim against defendants. The circuit court denied plaintiff’s motion, reasoning that the wpa precluded plaintiff’s public policy and breach of contract claims despite being inapplicable to plaintiffs case. Plaintiff first contends that the circuit court erred in dismissing her claim under the wpa. A trial court’s determination regarding a motion for summary disposition is reviewed de novo. Atkinson v Detroit, 222 Mich App 7, 9; 564 NW2d 473 (1997). Here, the circuit court did not specify which subsection of MCR 2.116(C) it was relying on when it granted defendants’ motion for summary disposition. However, because it relied on matters outside the pleadings, we will construe the motion as having been granted pursuant to MCR 2.116(C)(10). Osman v Summer Green Lawn Care, Inc, 209 Mich App 703, 705; 532 NW2d 186 (1995). A motion for summary disposition may be granted pursuant to MCR 2.116(C)(10) when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Atkinson, supra at 9. The moving party is entitled to judgment as a matter of law if the claim suffers a deficiency that cannot be overcome. Id. Plaintiff does not argue that the circuit court erred substantively in dismissing her wpa claim on the ground that the USDL was not a “public body.” Accordingly, we will not address the issue whether an agency of the federal government constitutes a “public body” for purposes of the WPA. Radtke v Everett, 442 Mich 368, 397-398, & n 48; 501 NW2d 155 (1993). Instead, plaintiff argues only that defendants should have been estopped from asserting that the WPA was inapplicable to plaintiff’s case. In Michigan, the doctrine of judicial estoppel prohibits a party who has successfully and unequivocally asserted a position in a prior proceeding from asserting a wholly inconsistent position in a subsequent proceeding. Pashke v Retool Industries, 445 Mich 502, 509-510; 519 NW2d 441 (1994). The fact that the prior and subsequent proceedings in this case occurred within the same litigation is not a bar to the application of the doctrine. See Detroit Edison Co v Public Service Comm, 221 Mich App 370, 382; 562 NW2d 224 (1997). Here, defendants successfully argued to the circuit court (on appeal from the district court) and to this Court that the WPA provided plaintiffs exclusive remedy. Then, on remand to the circuit court, defendants argued that the wpa was inapplicable to the specific facts of plaintiffs case. Plaintiff contends that defendants’ “new” position, allegedly taken for the first time on remand, was wholly inconsistent with defendants’ prior position. We disagree. Contrary to plaintiff’s assertion, defendants’ position on remand regarding the applicability of the WPA to the specific facts of plaintiff’s case did not conflict with their prior arguments and was not a new position. Defendants first raised both arguments in their original (and ultimately unsuccessful) motions for summary disposition filed in 1986. Moreover, at no time did defendants ever assert, unequivocally, that the wpa was applicable to the specific facts of plaintiffs case. After the initial district court judgment, defendants’ arguments did not address the applicability of the wpa to the specific facts of plaintiff’s case. Instead, defendants merely argued that, because plaintiff had alleged a violation of the wpa, she could not, as a matter of law, allege a cumulative breach of contract claim. Finally, we note that plaintiff failed to raise the issue of judicial estop-pel before the circuit court and therefore failed to preserve the issue for appellate review. Chilingirian v City of Fraser, 194 Mich App 65, 70-71; 486 NW2d 347 (1992), remanded 442 Mich 874 (1993), on remand 200 Mich App 198; 504 NW2d 1 (1993). For these reasons, we hold that the circuit court did not err in allowing defendants to argue that the WPA was inapplicable to the specific facts of plaintiff’s case. See Pashke, supra at 509-510. Plaintiff next argues, in the alternative, that because the circuit court dismissed her WPA claim, which had been deemed her “exclusive remedy,” it should have reinstated the judgment of the district court with respect to her public policy and breach of contract claims. A trial court on remand possesses the authority to take any action that is consistent with the opinion of the appellate court. VanderWall v Midkiff 186 Mich App 191, 196; 463 NW2d 219 (1990). In this case, it is apparent from the record that when plaintiff requested reinstatement of the district court judgment, she was in fact requesting relief from the original circuit court order dismissing the district court’s favorable judgment on her public policy and breach of contract claims. Under MCR 2.612(C)(1)(f), relief from judgment may be granted for “any reason justifying relief from the operation of the judgment.” Huber v Frankenmuth Mut Ins Co, 160 Mich App 568, 575-576; 408 NW2d 505 (1987). A trial court’s decision to grant such relief is discretionary and will not be disturbed absent an abuse of discretion. Id. at 576. The law of the case doctrine provides that a ruling by an appellate court with regard to a particular issue binds the appellate court and all lower tribunals with respect to that issue. Reeves v Cincinnati, Inc (After Remand), 208 Mich App 556, 559; 528 NW2d 787 (1995). Thus, a question of law decided by an appellate court will not be decided differently on remand or in a subsequent appeal in the same case. Id. This rule applies without regard to the correctness of the prior determination. Id. However, the law of the case doctrine controls only if the facts have remained materially the same. CAF Investment Co v Saginaw Twp, 410 Mich 428, 454; 302 NW2d 164 (1981). In deciding the first appeal in this case, this Court relied on the “well established” rule that “the wpa provides the exclusive remedy for an employee who has been discharged wrongfully from employment for reporting an employer’s violation of the law.” Driver, supra at 18. We then held that, because plaintiff’s breach of contract claim “was based solely on the fact that she reported defendants’ violations of the law,” the remedy provided by the wpa was exclusive. Id. This Court’s holding was expressly limited to the facts of the case, and in reciting the facts, we incorrectly stated that plaintiff had “filed a complaint with the Michigan Department of Labor, Wage and Hour Division.” Id. at 15, 18. On remand, the circuit court dismissed plaintiff’s wpa claim because plaintiff’s report was made to the usdl, a federal agency. Both parties agree that plaintiff’s report was made to the federal agency rather than a state agency. Accordingly, because the key fact upon which the circuit court relied to dismiss plaintiff’s “exclusive remedy” was not among the facts apparently relied on by this Court, the law of the case doctrine was not applicable on remand and does not now bind this Court on the issue. CAF Investment, supra at 454. As a general rule, remedies provided by a statute for the violation of a right having no common-law counterpart are exclusive rather than cumulative. Dudewicz v Norris Schmid, Inc, 443 Mich 68, 78; 503 NW2d 645 (1993), citing Pompey v General Motors Corp, 385 Mich 537, 552-553; 189 NW2d 243 (1971). The wpa is such a statute. Dudewicz, supra at 79; Covell v Spengler, 141 Mich App 76, 82-84; 366 NW2d 76 (1985). The Michigan Supreme Court, in Dudewicz, supra at 80, held that because the wpa provided relief, the plaintiff’s cumulative public policy claim was not sustainable. The Court explained that a public policy claim is sustainable “only where there is not an applicable statutory prohibition against discharge in retaliation for the conduct at issue.” Id. (emphasis added); see also Garavaglia v Centra, Inc, 211 Mich App 625, 630; 536 NW2d 805 (1995). In this case, the circuit court determined that the wpa was not applicable to the facts regarding plaintiff’s discharge. Because the wpa provided no remedy at all, it could not have provided plaintiff’s exclusive remedy. Dudewicz, supra at 80. Therefore, we hold that the circuit court abused its discretion when it denied plaintiff’s motion on the ground that the wpa provided plaintiff’s exclusive remedy. Huber, supra at 576. Although plaintiff sought reinstatement (or relief from a prior circuit court order) with respect to both her public policy and breach of contract claims, only her breach of contract claim was dismissed on the basis of the purported exclusivity of the wpa. Accordingly, plaintiff is not entitled to relief from the circuit court’s order regarding her public policy claim. We therefore remand with instructions to the circuit court to (1) modify its prior order reversing the district court’s judgment in favor of plaintiff with regard to plaintiff’s breach of contract claim and to (2) reinstate the judgment of the district court with respect to that count only. Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction. No taxable costs pursuant to MCR 7.219, neither party having prevailed in full. The circuit court construed plaintiffs public policy claim as being a claim for retaliatory discharge under the wages and fringe benefits act, MCL 408.471 et seq.; MSA 17.277(1) et seq. In plaintiffs reply brief on appeal, she specifically states that the circuit court’s ruling regarding the applicability of the wpa “is not an issue in this appeal.” In these motions, defendants argued (1) that the wpa was inapplicable because the usdl did not constitute a “public body” and (2) that plaintiffs public policy claim was excluded by the wpa. Although plaintiffs motion was entitled “Motion For Rehearing/Reinstatement of Judgment,” she explained at the first hearing on the motion and in her supplemental brief in support of the motion that, procedurally, the motion was actually a motion seeking relief from the prior circuit court order.

RODNEY ALTON LORBACHER, Plaintiff v. HOUSING AUTHORITY OF THE CITY OF RALEIGH, FLOYD T. CARTER, former Executive Director, PAUL H. MESSENGER, current Executive Director and HORACE C. BRANTLEY III, former Deputy Executive Director, Defendants No. COA97-129 (Filed 18 November 1997) 1. Constitutional Law § 86 (NCI4th)— 42 U.S.C. § 1983-action against individuals — presumed in official capacity It was presumed that plaintiff was suing the named defendants under 42 U.S.C. § 1983 in their official capacity as officers of the Housing Authority where the complaint did not identify whether defendants were being sued in their individual or official capacities but the caption of the complaint and the allegations made therein refer to them by both their names and job titles. A suit against a defendant in his or her official capacity is simply another way of pleading an action against the municipality itself. 2. Constitutional Law § 86 (NCI4th)— employment termination — 42 U.S.C. § 1983 — violation of free speech- no policy or practice Summary judgment was properly granted for defendant Housing Authority on a claim under 42 U.S.C. § 1983 for deprivation of free speech arising from plaintiff’s firing as Director of Development where plaintiff neither alleged nor brought forth any evidence that the Housing Authority has a policy or practice of discharging employees for the exercise of First Amendment rights. Although plaintiff alleges that the individual defendants were delegated final policy-making authority, the Housing Authority Board established personnel policies and adopted the employee handbook in question, which states that all personnel decisions regarding demotions and discharges are vested in the Executive Director and those designated to act on the Executive Director’s behalf. The Executive Director is a final decision-maker in matters of promotions and discharges, but is not the final policy-maker with regard to substantive personnel matters. 3. Trial § 43 (NCI4th)— summary judgment — motion to reconsider — new evidence The trial court did not abuse its discretion by denying plaintiff’s motion to reconsider a summary judgment for defendant Housing Authority on a 42 U.S.C. § 1983 claim in light of new evidence where the additional evidence failed to establish that the Housing Authority itself was responsible for the violation of plaintiff’s constitutional rights. 4. Labor and Employment § 68 (NCI4th)— wrongful discharge — municipal agency — 42 U.S.C. § 1983 claim distinguished Defendant Housing Authority could be sued for wrongful discharge where plaintiff brought a state claim for wrongful discharge and a claim under 42 U.S.C. § 1983 against the Housing Authority and individual officials arising from his dismissal from the Housing Authority. A state claim for wrongful discharge may be based on the agency relationship between an entity and its officers and employees and plaintiff alleged that the individual defendants were acting in the scope and course of their employment when they discharged him. The court properly dismissed the claim against the individuals as they were not plaintiff’s employers for purposes of a wrongful discharge claim and, while the Housing Authority contends that the state wrongful discharge claim against it should be dismissed for the same reasons as the § 1983 claim, the requirements for municipal liability under § 1983 are specifically driven by the text and legislative history of the federal statute. 5. Labor and Employment § 77 (NCI4th)— agency negligence disclosed — wrongful discharge claim — summary judgment Summary judgment should not have been granted for defendant Housing Authority on a state wrongful discharge claim where plaintiff alleged that he was dismissed for giving truthful testimony and media statements about the Housing Authority’s knowledge of dangerous conditions and inadequate maintenance programs which led to two deaths and defendant contended that plaintiff was discharged for failure to obtain a valid driver’s license and for accepting rides from contractors in violation of policy. A valid claim for wrongful discharge exists when an at-will employee is discharged for an unlawful reason or in contravention of public policy and if plaintiff’s discharge was in retaliation for his testimony, his claim falls well within the public policy exception. Plaintiff’s evidence created a genuine issue of material fact as to the motive for his discharge; although defendant produced refuting evidence, it is for the finder of fact to determine the motive. However, the trial court correctly granted summary judgment on the issue of punitive damages since punitive damages may not be recovered from a municipal corporation absent statutory authorization. 6. Constitutional Law § 105 (NCI4th)— employment dismissal — federal due process — employee handbook — no entitlement to continued employment The trial court properly dismissed under N.C.G.S. § 1A-1, Rule 12(b)(6) plaintiff’s Fourteenth Amendment Due Process claim arising from his dismissal from the Housing Authority where plaintiff did not allege a liberty interest, failed to allege that he is covered by a statute or ordinance creating an entitlement to continued employment, and employee handbooks are not considered part of the employment contract unless expressly included. 7. Constitutional Law § 105 (NCI4th)— employment termination — North Carolina Constitution — insufficient property interest The trial court properly dismissed plaintiffs claim that his discharge from the Housing Authority violated the Law of the Land clause of the North Carolina Constitution where he lacked the requisite property interest in continued employment to trigger the protections afforded by the State Constitution. 8. Constitutional Law § 98 (NCI4th)— freedom of speech— state constitution — wrongful discharge claim — adequate protection Plaintiffs discharge from the Housing Authority, allegedly for giving deposition testimony and media statements regarding improper Housing Authority practices, did not warrant a direct claim under the North Carolina Constitution for violation of freedom of speech because plaintiffs rights are adequately protected by a wrongful discharge claim. 9. Intentional Mental Distress § 2 (NCI4th)— employment discharge — allegations—insufficient The trial court did not err by dismissing plaintiffs claim for intentional infliction of emotional distress arising from his discharge from the Housing Authority, allegedly for disclosing the Housing Authority’s negligent operations, where defendant’s conduct, even assuming the truth of the allegations, did not rise to the required level of extreme and outrageous conduct and plaintiff did not allege that defendants’ conduct was intentional. 10.Negligence § 75 (NCI4th)— employment discharge— negligent infliction of mental distress — allegations— insufficient The trial court properly dismissed plaintiff’s negligent infliction of emotional distress claim arising from his discharge from the Housing Authority, allegedly for disclosing the Housing Authority’s negligent operations. The conclusion that defendant’s conduct was not extreme and outrageous with respect to plaintiff’s intentional infliction of emotional distress claim also precludes any claim for negligent infliction of emotional distress. Appeal by plaintiff from judgment entered 12 November 1996, by Judge Henry V. Barnette in Wake County Superior Court. Heard in the Court of Appeals 6 October 1997. The purpose of the Housing Authority is to provide and maintain low income residential housing in the Raleigh area. Plaintiff worked for the Housing Authority for a number of years and eventually became “Director of Development.” Part of plaintiffs responsibilities revolved around obtaining federal grant monies for improvements, supervising various employees, monitoring the work of consultants, and visiting construction sites to monitor for construction compliance. On 29 June 1992, plaintiff lost his driver’s license as a result of a driving while impaired conviction. Because performance of his duties required a valid driver’s license, Brantley terminated plaintiff’s employment on 21 July 1992. Plaintiff appealed his termination and agreed to find a car and driver for any necessary travel and was reinstated effective 8 August 1992. As a result of negligent maintenance of a heating system, two residents of Walnut Terrace Apartments died from carbon monoxide poisoning on 10 October 1992. On 3 November 1992, a wrongful death action was filed against the Housing Authority. Plaintiff gave deposition testimony in the case on 22 October 1993 and testified regarding the Housing Authority’s knowledge of the dangerous conditions at the apartment complex and failure to take any remedial action. Plaintiff was discharged by Paul Messenger on 28 October 1993. In October 1994, plaintiff filed suit against the Housing Authority of the City of Raleigh, Floyd T. Carter, former Executive Director, Horace C. Brantley III, former Deputy Executive Director, and Paul H. Messenger, then current Executive Director. He alleged that his discharge resulted from his comments to the media about improper Housing Authority practices and his deposition testimony to the same effect. Defendants claim plaintiff’s discharge was not related to his deposition testimony but rather was the result of plaintiff’s failure to obtain acceptable transportation arrangements that were necessary for the proper performance of his duties. Paul Messenger was hired as the new Executive Director of the Housing Authority, replacing Floyd Carter, on 20 September 1993. Shortly after his arrival, Messenger learned through a routine insurance check that plaintiff did not have a valid license. Messenger also learned that plaintiff was accepting rides to construction sites from the contractors he was supervising, in contravention of Housing Authority policy. Messenger terminated plaintiffs employment on 28 October 1993 on the grounds that plaintiff could not fulfill the responsibilities of his job without a license and that accepting rides from the contractors he was to supervise created an unacceptable conflict of interest. Plaintiff brought the following claims against defendants: (1) a 42 U.S.C. § 1983 claim for violation of his First Amendment rights, (2) violation of his Fourteenth Amendment Due Process rights, (3) a conspiracy claim under 42 U.S.C. § 1985, (4) violations of his state constitutional rights under the Law of the Land and Free Speech Clauses, and (5) state law claims against defendants for breach of their fiduciary duties, intentional infliction of emotional distress and negligent infliction of emotional distress. Plaintiff additionally requested punitive damages. Defendants moved to dismiss all claims except the federal constitutional free speech claim and the wrongful discharge claim against the Housing Authority. On 1 May 1996, Judge Barnette partially granted defendants’ motion. All claims against defendant Brantley were dismissed for the lack of any allegation of misconduct on his part. All the remaining claims covered were dismissed as well, except for plaintiffs claims against defendants Carter and Messenger for punitive damages. Subsequently, defendants’ motion for summary judgment on plaintiff’s free speech, wrongful discharge and punitive damages claims was granted on 2 October 1996. On the same day, plaintiff tendered additional evidence and filed a motion to reconsider or for relief from summary judgment. The trial court denied this motion and plaintiff appealed. William E. Moore, Jr. and Marvin Schiller for plaintiff appellant. Cranfill, Sumner & Hartzog, L.L.P., by Raymond M. Davis, for defendant appellee. ARNOLD, Chief Judge. Plaintiff appeals from the trial court’s order granting defendants’ motion for summary judgment on plaintiff’s 42 U.S.C. § 1983 claim for violation of his First Amendment rights, his state wrongful discharge claim, and claims for punitive damages against defendants Carter and Messenger. He also assigns error to the trial court’s denial of his motion to reconsider or for relief from summary judgment. Finally, plaintiff appeals from the partial grant of defendants’ motion to dismiss on his Fourteenth Amendment Due Process claim, state constitutional Law of the Land and Freedom of Speech claims, and intentional and negligent infliction of emotional distress claims. Summary judgment is appropriate when then there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c) (1990); Gregory v. Perdue, Inc., 47 N.C. App. 655, 656, 267 S.E.2d 584, 586 (1980). It is not the court’s function to decide questions of fact when ruling on a motion for summary judgment; rather, the moving party must establish that there is an absence of a triable issue of fact. Moore v. Bryson, 11 N.C. App. 260, 262, 181 S.E.2d 113, 114 (1971) (citations omitted). All evidence must be considered in the light most favorable to the non-moving party. Burrow v. Westinghouse Electric Corp., 88 N.C. App. 347, 350, 363 S.E.2d 215, 217, disc. review denied, 322 N.C. 111, 367 S.E.2d 910 (1988) (citations omitted). Plaintiff alleges that defendants deprived him of his First Amendment right to free speech in .violation of 42 U.S.C. § 1983. The federal statute reads, in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983 (1994). The Housing Authority is a municipal corporation. Jackson v. Housing Authority of High Point, 316 N.C. 259, 341 S.E.2d 523 (1986). Although the language of § 1983 speaks in terms of “person,” the United States Supreme Court holds that municipalities axe “persons” for purposes of the statute. Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611 (1978). Although plaintiff also brought claims against Housing Authority officers under the statute, we need only consider the liability of the Housing Authority for the § 1983 claim. Municipal officers may be sued under § 1983 in their official or individual capacity. Hafer v. Melo, 502 U.S. 21, 116 L. Ed. 2d 301 (1991). A suit against a defendant in his/her official capacity is simply another way of pleading an action against the municipality itself. Monell, 436 U.S. 658, 690 n.55, 56 L. Ed. 2d 611, 635 n.55. Officials who are sued in their individual capacity are personally liable for damages, although a defense of qualified immunity may be available to them. Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396 (1982). In the present case, the complaint does not identify whether defendants Carter and Messenger are being sued in their individual or official capacities; however, the caption of the complaint, and the allegations made therein, refer to them by both their names and job titles. We presume that plaintiff is suing these individuals in their official capacity as officers of the Housing Authority. See Kolar v. County of Sangamon of State of Ill., 756 F.2d 564, 568 (7th Cir. 1985). Therefore, we need only consider the liability of the Housing Authority with respect to this claim. Although a municipality may be sued under the statute, it may not be held liable solely on the basis of respondeat superior, rather, liability exists only if the entity itself is responsible for the violation. Pembaur v. City of Cincinnati, 475 U.S. 469, 478, 89 L. Ed. 2d 452, 462 (1986). The Housing Authority only can be held liable for the actions of its employees if it officially ordered or sanctioned the conduct, the employees responsible for plaintiffs demotion and discharge had final policy-making authority, or the action was taken pursuant to a municipal policy, practice or custom. Id. at 483 n.12, 89 L. Ed. 2d at 465 n.12. Plaintiff neither alleges nor brings forth any evidence of the Housing Authority having a policy or practice of discharging employees for the exercise of First Amendment rights. Instead, plaintiff alleges that defendants Carter and Messenger were delegated final policy-making authority. It is on this theory of municipal liability alone which plaintiff rests his case. In order that the action properly may be considered a municipal policy, the employee must possess authority to establish “final policy with respect to the subject matter in question.” Id. at 483, 89 L. Ed. 2d at 465. The determination of whether a specific official has final policy-making authority is governed by state or local law. City of St. Louis v. Praprotnik, 485 U.S. 112, 125, 99 L. Ed. 2d 107, 119 (1988). The Housing Authority handbook states that all personnel decisions regarding demotions and discharges are vested in the Executive Director and those designated to act on his/her behalf. The fact that an official has some discretion in the exercise of his/her functions, in and of itself, does not give rise to municipal liability. Pembaur, 475 U.S. at 481-82, 89 L. Ed. 2d at 464. Although the executive director is a final decision-maker in matters of promotions and discharges, he is not the final policy-maker with regard to substantive personnel matters. The Housing Authority Board established personnel policies and adopted the employee handbook in question. Federal courts draw a line between the power to implement policy and the power to make policy. An official’s ability to discharge an employee does not necessarily equate to the ability to create substantive policy. See Greensboro Professional Firefighters Ass’n, Local 3157 v. City of Greensboro, 64 F.3d 962, 966 (4th Cir. 1995) (“The discretion to hire and fire does not necessarily include responsibility for establishing related policy.”). Plaintiff has failed to come forward with any evidence to support a viable theory of liability. Indeed, plaintiff failed to even address this element of a § 1983 claim in his brief. Accordingly, we conclude that summary judgment for defendant Housing Authority was properly granted. At this point, we also consider plaintiffs argument that in light of the introduction of new evidence, the trial court erred in denying his motion to reconsider or for relief from judgment. The standard of review on appeal from the trial court’s denial of such a motion is whether the trial court abused its discretion. Muse v. Charter Hospital of Winston-Salem, Inc., 117 N.C. App. 468, 481, 452 S.E.2d 589, affirmed per curiam, 342 N.C. 403, 464 S.E.2d 44 (1995). We conclude that the trial court did not abuse its discretion in this matter. The additional evidence failed to establish that the Housing Authority itself was responsible for the violation of plaintiff’s constitutional rights. Plaintiff also brought a state law cause of action against defendants for wrongful discharge. The trial court properly dismissed the claim against the individual defendants as they were not plaintiff’s employers for the purposes of a wrongful discharge claim. See Sides v. Duke University, 74 N.C. App. 331, 343, 328 S.E.2d 818, 827, disc. review denied, 314 N.C. 331, 333 S.E.2d 490 (1985). With regard to the Housing Authority, it argues that this claim against it fails for the same reasons that plaintiff’s First Amendment claim fails. We disagree. Plaintiff brought suit against defendant Housing Authority for violation of his First Amendment rights pursuant to 42 U.S.C. § 1983. The requirements for municipal liability under § 1983 are specifically driven by the text and legislative history of this federal statute. Plaintiff’s wrongful discharge claim is not a federal, bu

STEWART v FAIRLANE COMMUNITY MENTAL HEALTH CENTRE (ON REMAND) Docket No. 191460. Submitted June 3, 1997, at Detroit. Decided September 16, 1997, at 9:00 A.M. Carol Stewart brought an action in the Wayne Circuit Court against Fairlane Community Mental Health Centre, alleging violation of the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq., as a result of her alleged constructive discharge from employment. The defendant sought summary disposition, alleging that, through the defendant’s personnel policies manual, the plaintiff had agreed to binding arbitration with regard to any issues relating to her employment. The court, Michael J. Callahan, J., denied the defendant’s motion. The Court of Appeals, in lieu of granting the defendant’s application for leave to bring an interlocutory appeal, entered an unpublished order on February 3, 1995, reversing the trial court’s order and remanding the matter with instructions that the court enter an order directing the parties to proceed to arbitration. (Docket No. 180776). The Supreme Court, in lieu of granting leave to appeal, vacated the order of the Court of Appeals and remanded the matter to the Court of Appeals for plenary consideration. 450 Mich 943 (1995). On remand, the Court of Appeals held: The defendant’s personnel policy manual did not create an enforceable arbitration agreement. An agreement or provision in an employee manual is not mutual or binding where, as between a private employer and a nonunion employee, an employer may unilaterally amend at any time every policy contained in its employee manual. In the absence of a binding contract to arbitrate, the defendant is not entitled to summary disposition. Affirmed. 1. Arbitration — Master and Servant — Contracts. An employer’s personnel policy manual does not create an enforceable arbitration agreement with regard to employment-related issues where it is not a binding contract; an agreement or provision in an employee manual is not mutual or binding where, as between a private employer and a nonunion employee, the employer may unilaterally amend at any time every policy contained in its employee manual. 2. Arbitration — Contracts — Unilateral Revocation. Neither party to an arbitration agreement under the Michigan arbitration act may revoke the agreement without the other party’s consent; a party’s reservation of the right to change the agreement unilaterally at any time is inconsistent with the arbitration act (MCL 600.5011; MSA 27A.5011). Berkley, Mengel & Vining, P.C. (by Christopher E. Mengel and Guy C. Vining), for the plaintiff. Collins, Einhom, Farrell & Ulanoff, P.C. (by Janice G. Hildenbrand and Barbaa H. Goldman), for the defendant. ON REMAND Before: Mackenzie, P.J., and Neff and Markey, JJ. Per Curiam. Defendant appeals as of right from the trial court’s November 1994 order denying its motion for summary disposition regarding plaintiff’s cause of action under the Michigan Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq.; MSA 17.428(1) et seq. In light of our Supreme Court’s decision in Heurtebise v Reliable Business Computers, Inc, 452 Mich 405, 413-414; 550 NW2d 243 (1996), we affirm. I This is the second time that this Court has addressed the instant matter. The facts are not in dispute. Plaintiff is a registered nurse who began working at defendant’s outpatient psychiatric facility in 1989. In 1993, defendant unilaterally amended its personnel policies manual that plaintiff was given in 1989 to include a binding arbitration provision, which states in pertinent part: XI. BINDING ARBITRATION: Pursuant to the Federal Arbitration Act (faa) the following procedure and practice will serve as an agreement between the Centre and all employees to arbitrate any dispute which may arise during the period of employment with the Centre. Both parties agree to the following: Terms of agreement. 1. A signed statement agreeing to this will be executed between both parties prior to employment or prior to the enactment of this policy of which is a separately signed document from the contractual agreement.[] 2. This agreement covers all terms, aspects, and potential disputes that may arise as a result of employment between the Centre and all employees unless otherwise stated below and includes claims that may be brought toward [sic] a third party such as fellow employees. 3. This agreement specifically covers all disputes that may occur that relate to the Age Discrimination in Employment Act (adea). 4. This agreement does however exclude all workers’ compensation claims. 5. This agreement is considered mutual. In as much that this agreement binds the employee to arbitrate claims against the employer, it also obligates the employer to arbitrate the' employee’s claims. 6. It is clearly understood between all parties that no dispute may be litigated in a court of law and that arbitration of all covered by this agreement shall be final and binding. 7. This agreement binds both parties to waive all rights to a jury trial with regard to employment disputes covered by the agreement. * * * 13. At the onset of this agreement all prospective employees shall be entitled to 7 days to consider whether to enter into this agreement and 21 days to revoke it. The arbitration agreement was adopted on January 13, 1993, and signed by defendant’s executive director. Plaintiff signed a document entitled “Acknowledgement of Receipt of the Centre’s Personnel Policies” acknowledging her receipt of the new policy manual containing the arbitration agreement, although she disputes that she actually received it. She also claims that she was induced to sign it in order to receive her paycheck. The document plaintiff signed, which was witnessed on January 27, 1993, did not contain language mentioning the new arbitration policy or indicating whether she agreed to the binding arbitration provision. Rather it contained the following disclaimer: Not a Contract of Employment: I understand the Personnel Policies Manual is neither an “employment agreement,” nor a “contract of employment.” It is a guide for the employer to provide, to the extent possible, a more uniform (though [sic] not precisely equal) approach to personnel practices and policies among Employees. [Emphasis added.][] According to plaintiffs complaint, in mid-1993, plaintiff became aware that members of defendant’s nonmedical staff were putting together and distributing medication without supervision and possibly breaking the law with respect to the dispensing of prescription drugs. When plaintiff informed her superiors of her concern and the fact that these activities should be reported to the proper authorities, plaintiff was told that her position may be compromised. In February 1994, plaintiff refused to prepare medication for a patient, despite her supervisor’s orders, because the medication order needed physician approval and a nonmedical staff member could not administer the medication. Instead, she consulted a physician, who altered the medications, and then gave them to her supervisor to administer to the patient. Plaintiff was thereafter suspended for two weeks for “unwillingness to obey a directive by [her] supervisor” and was placed on disciplinary probation for six months. When defendant refused to return plaintiff to work without the disciplinary conditions, plaintiff considered herself constructively discharged. In April 1994, plaintiff filed her complaint alleging a violation of the wpa. In response, defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(7) claiming that, through defendant’s personnel policies manual, plaintiff had agreed to binding arbitration regarding any issues related to her employment. Rejecting defendant’s motion, the trial court found that the arbitration provision did not apply to the statutorily created tort alleged in plaintiffs complaint. Defendant filed a timely application for leave to bring an interlocutory appeal. Rather than grant leave, this Court, in an unpublished order entered February 3, 1995 (Docket No. 180776), reversed the trial court’s order and remanded the case with instructions that the trial court enter an order directing the parties to proceed to arbitration, citing this Court’s decision in Heurtebise v Reliable Business Computers, Inc, 207 Mich App 308; 523 NW2d 904 (1994). Plaintiff sought leave to appeal this Court’s order to the Michigan Supreme Court. In a December 19, 1995, order, 450 Mich 943 (1995), the Supreme Court, in lieu of granting leave to appeal, vacated this Court’s order and remanded the case to this Court for plenary consideration. n Defendant’s sole issue on appeal is whether the arbitration agreement in the personnel policies manual is enforceable with regard to plaintiff’s claim under the wpa. We believe that it is not enforceable but for different reasons than those cited by the trial court. As a preliminary matter, we review de novo the trial court’s ruling regarding summary disposition. Guerra v Garratt, 222 Mich App 285, 288; 564 NW2d 121 (1997). We must accept as true the plaintiff’s well-pleaded factual allegations, construing them in the plaintiffs favor, and consider the pleadings and other documentary evidence to determine if there is a genuine issue of material fact. Id. at 289. If no facts are in dispute and reasonable minds could not differ regarding the legal effect of those facts, however, the question whether the plaintiffs claim is barred presents a question of law for the court. Id. A The question whether an employee may validly waive her right to a judicial forum with respect to pursuing a claim under the wpa is an issue of first impression in Michigan. The Supreme Court in Heurtebise, 452 Mich 413-414, addressed this question in the civil rights context, and we believe that the same analysis applies to this wpa case. In Heurtebise, the plaintiff filed suit against her employer alleging she had been unlawfully terminated from her employment in violation of the Michigan Civil Rights Act (cra), MCL 37.2101 et seq.; MSA 3.548(101) et seq. 452 Mich 408. The plaintiff, a woman, claimed that she and her male co-worker took longer than the permitted one-hour lunch periods while working together on a project. After returning from a working lunch that lasted over an hour, she was terminated, but her male co-worker was not. The plaintiff filed suit alleging unlawful gender discrimination. The defendant filed its motion for summary disposition seeking, in part, to compel arbitration and stay the proceedings on the basis of a written acknowledgment that the plaintiff signed. The acknowledgment stated that she had received the defendant’s employee handbook and she agreed to be bound by its terms and policies. Heurtebise, 452 Mich 408-409. The handbook provided that all disputes involving money damages would be resolved by final and binding arbitration. Id. at 409, n 3. Refusing to enforce the arbitration agreement because it was against public policy and because the other clauses in the handbook made the arbitration provision ambiguous, the trial court denied the defendant’s motion. On appeal, this Court reversed the order of the trial court. Heurtebise, 207 Mich App 310-312. Without the benefit of the defendant’s entire policy manual, this Court found that the. plaintiff signed the acknowledgment regarding the arbitration agreement even though mutual assent was not required, citing In re Certified Question, 432 Mich 438; 443 NW2d 112 (1989). Heurtebise, 207 Mich App 311. Further, this Court found that the “[p]laintiff’s argument that the handbook specifically states that it does not create an enforceable contract is misguided. The provision plaintiff relies on addresses the at-will nature of plaintiff’s employment, not the handbook in its entirety.” Id. at 311. This Court also found that public policy did not prohibit the enforcement of a valid arbitration agreement in matters involving civil rights questions. Heurtebise, 452 Mich 411-412, citing Heurtebise, 207 Mich App 310-311. In reversing the decision of the Court of Appeals, the Michigan Supreme Court found that the parties were not bound by a valid arbitration agreement. “It is undisputed that an arbitration provision is unenforceable if it is not a binding contract.” Heurtebise, 452 Mich 413; accord Rushton v Meijer, Inc (On Remand), 225 Mich App 156, 161; 570 NW2d 271 (1997). The Supreme Court reviewed the opening statement in the defendant’s employee handbook, which stated: This document is intended to establish and clarify certain employment policies, practices, rules and regulations (hereinafter collectively referred to as “Policies”) of reliable business computers, inc., (hereinafter referred to as the “company”). ... It is important to recognize and clarify that the Policies specified herein do not create any employment or personal contract, express or implied, nor is it intended nor expected that the information provided in this document will provide sufficient detail to answer any and all questions which may arise. Notwithstanding any of the specific POLICIES HEREIN, EACH EMPLOYEE HAS THE ABSOLUTE RIGHT TO TERMINATE HIS/HER OWN EMPLOYMENT AT ANY TIME, WITHOUT NOTICE, AND FOR ANY REASON WHATSOEVER, AND THE COMPANY HAS THE SAME RIGHT. From time to time, the COMPANY specifically reserves the right, and may make modifications to any or all of the Policies herein, at its sole discretion, and as future conditions may warrant. . . . . . . Upon receipt, all employees will sign the Employee Acknowledgement [sic], acknowledging receipt of this document. [Emphasis added.] [Heurtebise, 452 Mich 413-414.] Without more, the Supreme Court set forth its findings and conclusions: This demonstrates that the defendant did not intend to be bound to any provision contained in the handbook. Consequently, we hold that the handbook has not created an enforceable arbitration agreement with respect to this dispute. We note that the above opening statement was not part of the record before the Court of Appeals. Had the Court of Appeals been able to examine the entire handbook, we are confident that it would have reached the same conclusion. We hold that the defendant was not entitled to summary disposition. [Id. at 414. Emphasis added.] Notably, the majority opinion did not address whether private employers can require employees, as a condition of employment, to waive their rights to pursue any future civil rights claims in a judicial forum. Nevertheless, Justice Cavanagh, the author of the majority opinion, opined that the right to pursue civil rights violations is of the highest priority, and the state constitution, as well as longstanding public policy, guaranteed direct access to a judicial forum in civil rights cases, despite an otherwise enforceable arbitration agreement. Id. at 414-438; see also Rushton, supra 158-164. B Applying the Supreme Court’s opinion in Heurtebise to the case at bar, we must reach the same conclusion with respect to plaintiff’s wpa claim: defendant’s personnel policy manual did not create an enforceable arbitration agreement. Heurtebise, 452 Mich 414. First, in January 1993, plaintiff signed a document acknowledging that she received a copy of defendant’s revised personnel policies manual that contained, in bold-faced type, the words "Not a Contract of Employment" and specifically stated that the manual is neither an “employment agreement” nor a “contract of employment.” The acknowledgment also noted that the personnel policies may be amended from time to time. “This demonstrates that the defendant did not intend to be bound to any provision contained in the handbook,” Heurtebise, 452 Mich 414, even though the arbitration provision referred to itself as a “mutual” agreement. We cannot conclude that an agreement or provision is mutual or binding where, as between a private employer and a nonunion employee, an employer may unilaterally amend at any time every policy contained in its employee manual. In the absence of a binding contract to arbitrate, defendant is not entitled to summary disposition. Id. Notably, the Supreme Court also believed that this Court’s reliance on In re Certified Question, supra, which held that an employer could unilaterally change a written policy, was misplaced. See Heurtebise, 207 Mich App 311. Under the Michigan arbitration act, neither party to an arbitration agreement can revoke the agreement without the other party’s consent, MCL 600.5011; MSA 27A.5011, which is contrary to the defendant’s reserving its right to change its employment policies at any time. Heurtebise, 452 Mich 411, n 5. We agree that defendant’s reservation is inconsistent with the Michigan arbitration act. Second, although the record is silent regarding why plaintiff did not sign the acknowledgment sheet entitled “Agreement to Binding Arbitration” that was attached to her brief on appeal, her failure to sign is pivotal. Indeed, this acknowledgment was identical to the one she did sign except that the headings on the documents differed and the one plaintiff signed made no reference to the arbitration agreement. Further, the unsigned acknowledgment states that. the employee had seven days to consider whether to enter into the binding arbitration agreement. Given that plaintiff, unlike the plaintiff in Heurtebise, did not sign the acknowledgment agreeing to the employer’s new binding-arbitration policy set forth in the revised manual, we believe that defendant is in a weaker position to attempt enforcement of the arbitration provision than was the defendant in Heurtebise. Third, although Heurtebise addressed the issue of enforcing a binding arbitration policy in the employment setting to resolve civil rights claims, we believe that the same analysis applies to plaintiff’s wpa claim. Case law supports the conclusion that the CRA and the wpa protect similar statutorily recognized interests and deserve like treatment. For example, in Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 695; 316 NW2d 710 (1982), our Supreme Court recognized that ah exception to the rule of at-will employment exists where the reasons for discharging an employee are so contrary to public policy as to be actionable at law. The Court stated: “Most often these proscriptions are found in explicit legislative statements prohibiting the discharge, discipline, or other adverse treatment of employees who act in accordance with a statutory right or duty.” Id. In support of this proposition, the Court cited the CRA, MCL 37.2701; MSA 3.548(701), the Handicappers’ Civil Rights Act (hcra), MCL 37.1602; MSA 3.550(602), the Occupational Safety and Health Act, MCL 408.1065; MSA 17.50(65), and the wpa, MCL 15.362; MSA 17.428(2). Suchodolski, supra at 695, n 2. Moreover, in determining that the Legislature that drafted the wpa in 1980 expected that litigants under the wpa would retain the right to a jury trial, particularly given that the same right was preserved under the CRA and the hcra, this Court in Anzaldua v Band, 216 Mich App 561, 580; 550 NW2d 544 (1996), found that [t]he wpa bears substantial similarities to Michigan civil rights statutes under which the right to a jury trial is retained. Actions under the wpa are analyzed using the “shifting burdens” framework utilized in retaliatory discharge actions under the cra. We also note that the wpa is similar to Michigan’s civil rights statutes in that all three acts may be broadly characterized as civil rights acts, all three appear directed at protecting employees from wrongful treatment by employers, and actions brought under each of the three acts involve similar factual questions of employer motivation. [Emphasis added (citations omitted).] Finally, in concluding that the “continuing violations doctrine” applies to claims filed not only under title VII of the federal 1964 Civil Rights Act, 42 USC 2000e et seq., the CRA, and the HCRA but also under the wpa, ther

Anne Marie Shea vs. Emmanuel College & another. Suffolk. May 7, 1997. - August 18, 1997. Present: Wilkins, C.J., Abrams, O’Connor, Greaney, & Marshall, JJ. Contract, Employment, Interference with contractual relations. Public Policy. Employment, Termination. Public policy protects from discharge an at-will employee who, in good faith, reports criminal conduct in her place of employment, not to public authorities, but to her superiors within the employing unit. [762-763] In a claim for wrongful discharge, the plaintiff did not establish on the record of a motion for summary judgment that her discharge was for a reason contrary to public policy and judgment was correctly entered for the defendant. [763-764] On a claim for intentional interference with an employment contract, the record on the defendant’s motion for summary judgment did not permit the inference that the defendant acted with “actual malice” in discharging the plaintiff. [764] Civil action commenced in the Superior Court Department on April 27, 1993. The case was heard by Margaret R. Hinkle, J., on a motion for summary judgment. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Paul A. Manoff for the plaintiff. Clare F. Carroll for the defendants. Edward J. Black. Wilkins, C.J. We granted further appellate review to assess the accuracy of the shared conclusion of a Superior Court judge and the Appeals Court that the plaintiff, who was an at-will employee, may not obtain redress from her former employer, Emmanuel College, when, as the plaintiff claims, the college discharged her for reporting within the college’s administration the apparent theft of funds from the office in which she worked. Ws also consider the plaintiff’s claim that the defendant Black, her former supervisor, intentionally interfered with her employment. A Superior Court judge allowed the defendants’ joint motion for summary judgment, and the Appeals Court affirmed in a memorandum and order under its rule 1:28. 42 Mass. App. Ct. 1101 (1997). We affirm the judgment of the Superior Court. 1. We have recognized that, in certain circumstances, an at-will employee may maintain an action against her former employer for wrongful discharge. See Upton v. JWP Businessland, ante 756, 757 (1997), and cases cited. The question is whether a well-established public policy is served by denying the employer the right freely to discharge an employee for engaging in particular conduct. Id. The Appeals Court viewed the summary judgment evidence most favorable to the plaintiff as indicating “that the plaintiff was discharged at the behest of Black for bringing to the attention of college officials a pilferage problem in the office headed by Black, reflecting badly on Black’s administration of the office and suggesting ongoing criminality.” The Appeals Court and the motion judge concluded that public policy is not violated when an employer discharges an employee for reporting criminal activity if the reports were made, not to public officials, but only within the employing unit. In Mello v. Stop & Shop Cos., 402 Mass. 555 (1988), we assumed, without deciding, that an at-will employee who told his employer of criminal wrongdoing occurring within his company would be entitled to recover for a wrongful discharge, “even though before discharge he did not complain to public authorities.” Id. at 560 n.6. Each authority cited by the Appeals Court in support of the trial court’s grant of summary judgment to the college involved an at-will employee who was discharged for objecting to the policies or the manner of operation of his or her former employer, but none involved a report or complaint about an alleged violation of the criminal law. See King v. Driscoll, 418 Mass. 576, 582-585 (1994); Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 472-476 (1992); Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 149-151 (1989); Mello v. Stop & Shop Cos., supra at 560. The distinction of importance is between a discharge for an employee’s internal complaint about company policies or the violation of company rules, for which liability may not be imposed, and an internal complaint made about the alleged violation of the criminal law for which we now decide that liability may be imposed. In an opinion released the day after the entry of the Appeals Court memorandum and order in this case, a judge of the United States District Court for the District of Massachusetts correctly anticipated that this court “would not require the employee to complain outside the organization to claim the public policy exception for whistleblowers in a case like this.” Smith v. Mitre Corp., 949 F. Supp. 943, 950 (D. Mass. 1997). In that case, the employee had reported fraud and false statements in claims made by the employer as a Federal contractor. A policy that protects an at-will employee who, in good faith, reports criminal conduct in her place of employment to public authorities, but does not protect an at-will employee who in good faith reports such conduct to her superiors, would be illogical. See Byle v. Anacomp, Inc., 854 F. Supp. 738, 746 (D. Kan. 1994). In neither case should the reporting of suspected criminal activity be discouraged by the threat of discharge. Although we reject the grounds on which summary judgment in favor of the college was entered, we agree that entry of summary judgment for the college was appropriate. We have reviewed the summary judgment record, taking the evidence in the light most favorable to the plaintiff, and conclude that she has failed to rebut a fact that, standing unrebutted, shows that she is not entitled to relief. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991). There is no dispute that the plaintiff was an at-will employee. In the face of that fact, she had an obligation to present facts on the record that supported her claim that she was discharged for reporting criminal conduct to her superiors. An assertion or speculation that the college discharged her for that reason is not sufficient to create a dispute of material fact concerning the reason for her discharge. See Doe v. Liberty Mut. Ins. Co., 423 Mass. 366, 368 (1996). In her deposition, the plaintiff testified that she had no facts to support her claim that the defendant Black fired her in an effort to cover up his own responsibility for the alleged thefts. The record contains nothing to support the claim that the college discharged the plaintiff for a reason contrary to a well-established public policy. 2. There remains the plaintiff’s claim that Black intentionally interfered with her employment contract. To prevail on this claim, the plaintiff must prove that (1) she had an employment contract with the college, (2) Black knowingly induced the college to break the contract, (3) Black’s interference, in addition to being intentional, was improper in motive or means, and (4) she was harmed by Black’s actions. Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 476 (1992). The improper motive or means required is “actual malice.” See King v. Driscoll, 418 Mass. 576, 587 (1994); Boothby v. Texon, Inc., 414 Mass. 468, 487 (1993). Actual malice is any “spiteful, malignant purpose, unrelated to the legitimate corporate interest.” Wright v. Shriners Hosp. for Crippled Children, supra at 476. The evidence in the summary judgment record would not permit the inference that Black acted with “actual malice” in arranging for the plaintiff’s discharge. The record is replete with examples (some supplied by the plaintiff herself) of the troubles that the plaintiff was having on the job. Moreover, as we have said, the plaintiff admitted in her deposition that she had no facts to support her claim that Black had discharged her because he was trying to cover up the fact of the missing funds. Because Black produced unrebutted evidence that would justify the plaintiff’s discharge and the plaintiff produced no evidence that Black had a spiteful, malignant purpose in making that discharge, the judge properly granted summary judgment on the intentional interference claim. Judgment affirmed. In Smith v. Mitre Corp., 949 F. Supp. 943 (D. Mass. 1997), the victim of the allegedly unlawful conduct was a third party, and not, as here, the employer itself. In our case, the intensity of any public policy in favor of protecting a whistleblower is, therefore, arguably somewhat less. That such an employer, when it is the victim of the alleged criminal conduct, may choose to ignore, to condone, or even to ratify the reported criminal wrongdoing is irrelevant. An employer should not be permitted to justify the discharge of such an employee by deciding after the fact that the reported, seemingly criminal wrongdoing was tolerable or even accepted company practice. See Belline v. K-Mart Corp., 940 F.2d 184, 189 (7th Cir. 1991).

SHALLAL v CATHOLIC SOCIAL SERVICES OF WAYNE COUNTY Docket No. 103125. Argued April 9, 1997 (Calendar No. 15). Decided July 30, 1997. Janette Shallal brought an action in the Wayne Circuit Court against Catholic Social Services of Wayne County and its president, Thomas D. Quinn, alleging retaliatory discharge in violation of the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq. The court, John H. Hausner, J., granted summary disposition for the defendants, finding no evidence that the plaintiff was about to report a violation of law at the time of her firing. The Court of Appeals, Jansen, P.J., and M. J. Talbot, J. (White, X, concurring in part and dissenting in part), affirmed in an unpublished opinion per curiam, concluding, as a matter of law, that no reasonable person could have believed that the plaintiff was about to report a violation for purposes of the act (Docket No. 155006). The plaintiff appeals. In an opinion by Justice Cavanagh, joined by Justices Boyle, Riley, and Weaver, the Supreme Court held: The plaintiff presented sufficient facts upon which reasonable minds could conclude that she was about to report a suspected violation. However, because she used the threat of reporting the defendant to force him to allow her to keep her job, no reasonable juror could conclude there was a causal connection between her firing and the protected activity. 1. MCL 15.361 et seq.; MSA 17.428(1) et seq. does not require a plaintiff to actually report a suspected violation. An employee “about to report” receives the same level of protection as one who has actually reported to a public body The plaintiff’s conditional threat to her employer was credible evidence that she had finally decided that she was going to report him. Giving her employer the opportunity to correct his behavior does not in any way affect whether she had formed the requisite intent to report her supervisor. A plaintiff should not be required to say “magic words” in order to reap the protections of the statute. It should be sufficient that the plaintiff actually threatened to report an employer. The plaintiff has met her burden of demonstrating that there is a genuine issue of material fact regarding whether she possessed an actual intent to report defendant’s violations. 2. However, the plaintiff failed to establish a causal connection between her actions and her firing. The primary motivation of an employee pursuing a whistleblower claim must be a desire to inform the public on matters of public concern, and not personal vindictiveness. It is clear that the plaintiff used her own situation to extort defendant not to fire her. No reasonable juror could conclude that the plaintiff threatened to report her supervisor out of an altruistic motive of protecting the public. Furthermore, it is clear that the decision to fire plaintiff was made before her threat to her supervisor. Affirmed. Justice Kelly, joined by Chief Justice Mallett and Justice Brickley, concurring in part and dissenting in part, stated that the plaintiff failed to present evidence that she had formed a definite intent to report to a public body in the near future. Without that intent, she could hardly be found to have been about to report, unless she was about to report without knowing it. No reasonable jury could conclude from the fact of the plaintiff’s discussions about reporting Quinn and her threats to him that she actually formed the intent to do so in the near future. Summary disposition was properly granted. Chambers, Steiner (by Michelle J. Harrison and Courtney E. Morgan, Jr.), and Angela Nicita for plaintiff-appellant. Bodman, Longley & Dahling, L.L.P. (by Karen L. Piper and Stephen K. Postema), for defendantsappellees. Cavanagh, J. We granted leave to appeal in this case to determine whether the trial court abused its discretion in dismissing Janette Shallal’s retaliatory discharge claim under the Whistleblowers’ Protection Act. MCL 15.361 et seq.; MSA 17.428(1) et seq. We find no abuse of discretion and affirm the dismissal. I Defendant Catholic Social Services of Wayne County (css) is a nonprofit social service agency that provides a wide range of services. Plaintiff Shallal worked for css as an adoption department supervisor under a termination “for cause” employment contract. This suit arises out of her claim against CSS for retaliatory discharge. In late 1986, the css Board of Directors appointed defendant Thomas D. Quinn to the position of css president. Quinn’s alleged lack of expertise prompted some members of the staff to write a letter to the board opposing the appointment. Despite the opposition, Quinn began his presidency in January 1987. Approximately one year into Quinn’s tenure, allegations arose that Quinn was drinking on the job and misusing agency funds in violation of agency rules. Shallal discussed the need to report to her supervisor and other staff members. She also discussed her concerns about Quinn’s violations with an honorary CSS-Board Member, Mr. Ryan. Ryan suggested that Shallal report Quinn’s violations to the board and to accrediting bodies, presumably in the dss. Shallal never took action, however, because she feared that her job would be jeopardized. Before her employment with CSS was terminated, Shallal supervised the adoption of a baby, Ray Glover. Soon after the placement, Shallal learned that Ray’s former foster mother had visited Ray and reported seeing bruises on his face, neck, and hands. In retrospect, it appears that Shallal should have reported the allegation to the dss. A case worker did check on Ray within thirty days of the allegation; however, no official action was taken, there being only minor scratches visible on Ray. Several weeks later, however, Ray was rushed to the hospital, nearly dead from “shaken baby syndrome.” Today, he remains in a chronic vegetative state with severe, permanent brain damage. When Shallal notified the DSS about Ray’s injuries, it investigated and cited CSS with violations of several agency rules and regulations. It criticized Shallal for her inadequate response to the first report of abuse, her approval of an inadequate adoption home evaluation, and her failure to coordinate house visits. The DSS faulted Shallal for placing improper emphasis on race in the placement process. The report was equally critical of CSS, listing several institutional failures. As is their practice, DSS officials met with defendant Quinn before issuing a formal written report on April 19, 1991. They did not specifically recommend Shallai’s dismissal. Shallal alleges that, in the past, comparable employee errors did not result in discharge. After the meeting with DSS officials, Quinn called Shallal into his office. The ensuing discussion became heated. Shallal stated her intention to report Quinn’s abuses of alcohol and agency funds if he failed to, in her words, “straighten up.” Quinn decided to discharge Shallal, citing the DSS report as support. He ordered Timothy Kluka, plaintiff’s direct supervisor, to fire her. Kluka refused, feeling he had insufficient information to give as a reason to dismiss. He also believed Shallal’s termination would have negative implications for the staff and the agency. Instead, Kluka resigned from his position that day. On April 24, 1991, Patrick Heron dismissed plaintiff for gross misconduct and negligence in supervising the adoption of Baby Ray. Quinn has since resigned from his position as president. Plaintiff filed this suit on July 22, 1991, alleging a breach of her employment contract and violation of the Whistleblowers’ Protection Act. With respect to the latter claim, the trial court found that any threats plaintiff made to report Quinn were contingent on his continued violation. It also found no evidence plaintiff was “about to” report a violation. It then granted summary disposition for defendants under MCR 2.116(C)(10). The Court of Appeals affirmed in a two-to-one decision. It reasoned that the Whistleblowers’ Protection Act requires a plaintiff to be “near to an action, near to the performance, or in readiness to report the alleged misconduct of defendant Quinn.” Unpublished opinion per curiam, issued February 28, 1995 (Docket No. 155006), slip op at 1. The Court of Appeals found that plaintiff failed to satisfy the immediacy requirement, because her threat was contingent on the perpetuation of Quinn’s alleged misconduct. The Court concluded as a matter of law that no reasonable person could have believed that plaintiff was about to report a violation for purposes of the act. n The party bringing a motion for summary disposition under MCR 2.116(C)(10) bears the initial burden of supporting its position with affidavits, depositions, admissions, or other documentary evidence. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). The burden then shifts to the nonmoving party to go beyond the pleadings to show the existence of a genuine issue of material fact. Id. The trial court views affidavits and other documentary evidence supporting a (C)(10) motion in a light most favorable to the nonmoving party. Quinto at 362. A party is entitled to summary disposition if the evidence shows that there is no genuine issue of material fact to resolve at trial. Id. To determine if a genuine issue of material fact exists, the test is “whether the kind of record which might be developed, giving the benefit of reasonable doubt to the opposing party, would leave open an issue upon which reasonable minds might differ.” [Skinner v Square D Co, 445 Mich 153, 162; 516 NW2d 475 (1994), quoting Farm Bureau Mutual Ins Co v Stark, 437 Mich 175, 184-185; 468 NW2d 498 (1991).] Defendants offered deposition testimony to support their motion for summary disposition. Consequently, in order to survive the motion, Shallal had to provide documentary evidence establishing the existence of a genuine issue of material fact. m Section 2 of the Whistleblowers’ Protection Act provides in part: An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation .... [MCL 15.362; MSA 17.428(2) (emphasis added).] To establish a prima facie case, it must be shown that (1) the plaintiff was engaged in protected activity as defined by the Whistleblowers’ Protection Act, (2) the plaintiff was discharged, and (3) a causal connection existed between the protected activity and the discharge. Terzano v Wayne Co, 216 Mich App 522, 526; 549 NW2d 606 (1996). It is undisputed that Shallal was discharged on April 24, 1991. Therefore, to meet her prima facie burden at the hearing, she needed only to provide facts from which one could reasonably conclude that (1) she had been engaged in protected activity and (2) the activity was causally connected to her discharge. An employee is engaged in protected activity under the Whistleblowers’ Protection Act who has reported, or is about to report, a suspected violation of law to a public body. It is undisputed that Shallal did not report a suspected violation of law to a public body before her discharge. Hence, Shallal had the burden of establishing that a question of fact existed regarding whether she was “about to” report Quinn’s violations to a public body. Our task is to determine if plaintiff met her burden. To accomplish that, we examine the Whistleblowers’ Protection Act. The cardinal rule of all statutory construction is to identify and give effect to the intent of the Legislature. Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995). The first step in discerning intent is to examine the language of the statute in question. Auto Club Ins Ass’n v Hill, 431 Mich 449; 430 NW2d 636 (1988). We read the language according to its ordinary and generally accepted meaning. Judicial construction is authorized only where it lends itself to more than one interpretation. Frame v Nehls, 452 Mich 171; 550 NW2d 739 (1996). We also consider that remedial statutes, such as the Whistleblowers’ Protection Act, are to be liberally construed, favoring the persons the Legislature intended to benefit. Dudewicz v Norris Schmid, Inc, 443 Mich 68, 77; 503 NW2d 645 (1993). 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. The plain language also restricts recovery under the act by requiring a nonreporting employee to establish being “about to” report by offering clear and convincing evidence. MCL 15.363(4); MSA 17.428(3)(4). The face of the statute, however, does not explain what constitutes “about to” report, thereby lending itself to more than one interpretation. Consequently, we examine the purpose of the act for guidance. This Court has noted that the Whistleblowers’ Protection Act’s main purpose is to alleviate “the inability to combat corruption or criminally irresponsible behavior in the conduct of government or large businesses.” Dudewicz at 75. While employees are often in the best position to report violations of law, they are too frequently reluctant to do so for fear of retribution. Id. The act prohibits future employer reprisals against whistleblowing employees for the purpose of encouraging employees to report violations. Id. Legislative analysis indicates that the “about to” report language was added to the bill to protect conscientious employees who intended to, but were discharged in retaliation before they could, report. House Legislative Analysis, HB 5088, 5089, February 5, 1981. Webster’s defines “about” as “on the verge of” when followed by an infinitive, such as “to leave,” or in this case, “to report.” Random House Webster’s College Dictionary, 1995, p 4. The analysis also evidences a legislative recognition that the “about to” report language was a potential source of controversy. Id. In fact, legislative opposition to the bill questioned: How does one establish that a person was “about to” do something? This language is an open invitation for disgruntled employees or former employees to claim that their treatment by an employer has been illegal. It could become difficult or impossible to fire or discipline employees. [House Legislative Analysis, HB 5088, 5089, February 5, 1981, p 2.] In response, the bill’s proponents noted: There is never any foolproof way of guarding against false claims of discrimination, but it would be unreasonable to deny protection to the conscientious because that shelter might be used by the unscrupulous. House Bill 5089 does contain significant safeguards against employee abuse of its provisions by requiring that an action be commenced within 90 days of the occurrence of the alleged violation and by specifying that an employee who claims to have been about to report a violation must give clear and convincing evidence to this intention. [Id. ] Thus, the implication is that the language of the Whistleblowers’ Protection Act intentionally reduces employee protection the more removed the employee is from reporting to a public body. IV Plaintiff Shallal alleges that she was engaged in protected activity under the Whistleblowers’ Protection Act because she was “about to” report Quinn’s abuse of alcohol and agency funds to the dss. She asserts that Quinn’s activities violated DSS agency rules. She supports her claim with deposition testimony that describes her confronting Quinn with his violations. She also provides entries from her personal calendar that identify by date the people she spoke with about her desire to report Quinn. Shallal alleges that Quinn called her to his office on April 17, 1991, following his meeting with dss officials. When the discussion became heated, she told Quinn: [l]t’s all your fault This agency is going down the drain because you’re the one that has no interest, has no commitment. You’re so busy drinking and misusing money that you don’t care. And if you don’t straighten up ... I will report [you] to the department, to the board, anybody, everybody. After her termination, Shallal stated that she tried to retrieve what “actually happened” from her memory. She also said that she had “made some mental notes of conversations and dates . . . that [stuck] out in [her] mind.” Shallal supported her mental notes with calendar entries, which she read at her deposition. On January 25, I went to lunch with Ted Goldberg and my dictation says, “talked about reporting and confronting Tom.” On February 21, it says, “talked to Charlie G. about reporting Tom. We’re all enablers.” On March 22,1 have “scheduled lunch with Mary Therese Lamanek.” That was the lunch she and I discussed — I did not have any notation .... Basically [we talked] about problems in the agency, reporting Tom; we can’t let this thing go on and on. * * * On April 10, when Tim and I were coming back from meeting in Lansing, the federation meeting, I have notated, “talked to T.K. about Tom wanting to fire me. We need to report him.” And I had slash (/) “dss.” In its decision, the Court of Appeals reasoned that the trial court properly dismissed Shallal’s retaliatory discharge as a matter of law. [N]o reasonable person could conclude that plaintiff was near to an action, near to the performance, or in readiness to report the alleged misconduct of defendant Quinn. . . . Plaintiff’s words, “if you don’t straighten up ... I will report [you],” belie any sense of immediacy. [Slip op at 1.] The Court further noted that Shallal’s deposition testimony indicated that “she threatened to report him if he did not shape up, thereby giving him an opportunity to change and avoid being reported.” Id. The employee bears the burden of establishing that being about to act on a belief that a report to a public body was warranted. The employee’s proof, however, need not consist of a concrete action to satisfy the “about to” report element. See Chandler v Dowell Schlumberger, Inc, 214 Mich App 111, 120; 542 NW2d 310 (1995). We hold that the plaintiff has failed to make out a prima facie case under the Whistleblowers’ Protection Act. However, we disagree with the Court of Appeals that plaintiff’s statement, “if you don’t straighten up ... I will report [you],” coupled with her other actions, does not satisfy the “about to report” language under the act. Rather, we hold that plaintiff failed to establish a causal connection between the protected activity and her firing because she knew that she was going to be fired before she confronted her supervisor; thus, she used the information she had about the defendant’s illegal activities as a guise to force the defendant to allow her to keep her job. v Unlike whistleblower statutes in other jurisdictions, Michigan provides unique protection to its citizens because it does not require the plaintiff to have actually reported the suspected violation. For example, “the federal whistleblower statute requires that a plaintiff pursue administrative remedies, including filing a complaint with the Office of Special Counsel. This step is mandatory. 5 USC 1214(a)(3).” Williams v West, unpublished opinion of the northern district of California, decided July 23, 1996 (Docket No. C-95-1516 SI), 1996 US Dist LEXIS 10654 *14 (ND Cal, 1996). Other jurisdictions only protect public employees. See, e.g., Clark v Modern Group Ltd, 9 F3d 321 (CA 3, 1993) (the whistleblower protection statute only applies to public employees in Pennsylvania). However, as we have previously noted, the plain meaning of Michigan’s Whistleblowers’ Protection Act shows that an employee “about to report” receives the same level of protection as one who has actually reported to a public body. The dissent states that “no reasonable jury could conclude from the fa

WILMA K. HANTON, Plaintiff v. LAWRENCE I. GILBERT, in his personal and official capacity; EDWARD D. SALMON, in his personal and official capacity; PAUL HARDIN, in his personal capacity; and the UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Defendants No. 96-1009 (Filed 1 July 1997) 1. Libel and Slander § 23 (NCI4th)— memo by department head — explanation of plaintiff’s dismissal — qualified privilege The trial court did not incorrectly rule in a defamation action that defendant Gilbert had a qualified privilege with respect to a memo he distributed to department members where plaintiff had been employed at UNC in the Department of Biology maintaining an electron microscope and assisting faculty members in the use of the microscope; defendant Gilbert, the chair of the department, changed the department’s policy and began charging for the use of the microscope and for plaintiff’s time; plaintiff believed that the changed policy violated the terms of the grant with which the microscope had been bought and resisted the change; she was ultimately dismissed; and defendant Gilbert circulated the memo at issue here to explain the dismissal. The essential elements of a qualified privilege are good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only. Dr. Gilbert, as chair of the department, had an interest in the smooth running and morale of his department and distributed the memo only to members of the department in order to put an end to misleading rumors and inaccurate accounts of plaintiff’s dismissal. Under these circumstances, the essential elements of a good faith privilege were satisfied. Furthermore, portions of the memo addressed plaintiff’s accusations against him for which he had the privilege of self-defense. Am Jur 2d, Libel and Slander §§ 328 et seq. Defamation: loss of employer’s privilege to publish employee’s work record or qualification. 24 ALR4th 144. 2. Libel and Slander § 29 (NCI4th)— memo by department head — explanation of plaintiffs dismissal — instructions— jury consideration limited to four statements — burden of proof The trial court did not err in a defamation action when it instructed the jury to limit its consideration to four particular statements in a memo explaining plaintiffs dismissal from the UNC Department of Biology, that plaintiff bore the burden of proving the falsity of these statements, and that plaintiff further had the burden of showing actual malice. The four statements submitted to the jury were the only statements which plaintiff claimed were false and the court correctly instructed the jury regarding the burden of proving falsity and actual malice because the court had determined as a matter of law that the memo from the department chair was privileged and a presumption arose in his favor that the statements were made in good faith and without malice. Am Jur 2d, Libel and Slander §§ 512-518. 3. Constitutional Law § 98 (NCI4th)— dismissal from employment — federal and state claims — dismissal of federal claim not res judicata as to state claim — state claim fully already litigated and relief obtained The trial court did not err by granting defendants’ motion for summary judgment on plaintiffs state constitutional claim where plaintiff was dismissed from the UNC Biology Department and a memo written explaining the dismissal; plaintiff brought suit alleging violation of her state and federal constitutional rights to due process, violation of the state Whistleblower Act, and defamation; the case was removed to federal district court which granted summary judgment on all federal constitutional claims and remanded the remaining claims to state court; and the state trial court granted summary judgment for defendants on all but the defamation claim against the department chair in his individual capacity. Although the trial court erred by dismissing the state claims on the basis of res judicata because summary judgment in federal court on plaintiffs federal constitutional claim did not mandate dismissal of her state constitutional claim, plaintiff had already fully litigated and been afforded relief for the violation of procedural due process in her termination in that the Personnel Commission adopted an Administrative Law Judge’s conclusion that due process had not been exercised and awarded back pay and attorney’s fees, the superior court affirmed, and plaintiff did not appeal that decision. Since plaintiff had already prevailed on a statutorily established claim for violation of procedural due process and been afforded relief, she has no additional cause of action on that issue under the North Carolina Constitution. Am Jur 2d, Constitutional Law §§ 813-815; Judgments §§ 539 et seq. 4. Public Officers and Employees § 58 (NCI4th)— whistle-blower claim — summary judgment for defendants — no error The trial court did not err by granting summary judgment for defendants on plaintiffs claim under the Whistleblower Act where defendants supported their motion for summary judgment with evidence that plaintiffs termination was based on insubordination and the record does not reveal that plaintiff met her burden of coming forward with evidence that her alleged whistleblowing activity was a substantial causative factor for her dismissal. A prima facie claim under the Whistleblower Act consists of a plaintiff engaged in protected activity followed by adverse employment action with the protected conduct a substantial or motivating factor in the adverse action. Once a defendant presents evidence that the adverse action was based on a legitimate nonretaliatory motive, the burden shifts to plaintiff to present evidence raising a genuine issue of fact that plaintiffs actions under the Act were a substantial causative factor, or provide an excuse for not doing so. N.C.G.S. § 126-85(a). Am Jur 2d, Judgments §§ 203, 205. Appeal by plaintiff from judgment entered 16 February 1996 by Judge F. Gordon Battle and order entered 29 January 1996 by Judge Donald Stephens in Orange County Superior Court. Heard in the Court of Appeals 24 April 1997. McSurely, Dorosin & Osmént, by Alan McSurely, Mark Dorosin and Ashley Osment, for plaintiff-appellant. Michael F. Easley, Attorney General, by Thomas J. Ziko, Special Deputy Attorney General, and Barbara A. Shaw, Assistant Attorney General, for defendants-appellees. WYNN, Judge. The University of North Carolina at Chapel Hill (“UNC”) employed Wilma K. Hanton (“Hanton”) as a Research Analyst I in the Department of Biology. Her duties included maintaining an electron microscope which UNC had purchased with monies from a 1984 National Institute of Health (“NIH”) grant, teaching electron microscopy and assisting faculty members with research projects using the electron microscope. Faculty members used the microscope without charge until Dr. Lawrence I. Gilbert, Chairman of the UNC Department of Biology, changed the policy on 1 January 1990 and began charging for use of the microscope and Ms. Hanton’s time. To implement the new policy, Dr. Edward D. Salmon, Chairman of the Electron Microscope Committee and Ms. Hanton’s supervisor, informed Ms. Hanton that she would need to keep a daily log of her activities in the electron microscope facility. Ms. Hanton, however, believing that the new charges violated the terms of the grant, resisted the policy change of charging for microscope use and her time, and did not start keeping a record of her activity in the electron microscope facility until June 1990. Consequently, when Dr. Salmon reviewed her records in September 1990, he was unable to determine the use of the facility. He recommended her dismissal to Dr. Gilbert who in turn met with and wrote to Ms. Hanton on 1 October 1990 informing her that failure to follow the rules and policies of the department, including record keeping, would result in her termination. In the spring of 1991, Dr. Salmon again examined Ms. Hanton’s records and found them to be incomplete and in disarray. Subsequently, the Electron Microscope Committee met and discussed Ms. Hanton’s refusal to adequately maintain records of her daily activity. The committee unanimously recommended Ms. Hanton’s termination in a letter to Dr. Gilbert. In response, Dr. Gilbert conducted a pre-dismissal hearing during which Ms. Hanton refused to say that she would obey the rules of the department and keep records. As a result, Dr. Gilbert dismissed her from her position effective 24 May 1991. Five days later, he circulated the following memo to members of the Department of Biology explaining Ms. Hanton’s dismissal: As many of you know, Wilma Hanton was discharged from the Department of Biology on Friday, May 24. Since she has talked to many of you either before or after that event, I thought it best to inform you of the true sequence of events leading to her dismissal. On December 18, 1989, a memo was sent from me to the faculty of the department with a copy to W. Hanton initiating a series of fees for the use of the electron microscope and Ms. Hanton’s time. This was in response to the recommendation of the Electron Microscope Committee and a direct result of the financial problems besetting the University and this department. . . . From January 1990 on, there were a series of incidents in which Ms. Hanton made it quite clear that she disagreed with the policy, challenged the policy and simply was not going to abide by it. Indeed, she refused to keep track of her time, refused to bill for her time, etc. and, in general, made it very difficult for the EM Committee and for anybody who wished to use the facility in accord with the departmental regulations. . . . Since she did not follow my orders nor those of Prof. Salmon, she by definition, did not fulfill her job responsibilities and was given several “unsatisfactories” on her performance evaluation. This has led to a series of very unfortunate events instigated by Ms. Hanton. First, she appealed the performance evaluations made by Prof. Salmon, her supervisor. A three person committee composed of UNC SPA personnel heard this appeal and recommended that the performance evaluations stand as is. Chancellor Hardin so notified Ms. Hanton. The second action was her appeal to the Graduate Student Attorney General to prevent Mr. Ji-da Dai from receiving his doctorate because she accused him of stealing some of her data. This was absolutely untrue and it is of interest that after his doctoral seminar, she congratulated him, came to the Bird Room where she ate his food and toasted him with champagne. The Student Attorney General and faculty advisor examined the evidence and threw out her charges as they rightly should have. Having failed in those two actions, she turned her attention to me and filed complaints to the Dean of the College of Arts and Sciences. Among them were that I purloined some unknown letter written by Dean Williamson from the University Archives, a letter she could not describe and which does not really exist; that I stole her data, etc. All charges were dismissed by Dean Cell except for the accusation that I stole her data since there are specific guidelines indicating how such an accusation must be handled, and this is ongoing. These events have nothing to do with her dismissal since she is obviously entitled to make appeals, take advantage of the grievance procedures, etc., and her slanderous accusations regarding my own integrity will ultimately be resolved in a court of law. After discussing the situation of her insubordination and refusal to carry out the duties of her office with officials of the University, I sent Ms. Hanton a letter on May 23 indicating that a pre-dismissal hearing would be held on May 24 with me, W. Hanton and Collin Rustin from the Department of Human Resources. At that meeting, she was read the letter from the Electron Microscope committee to me dated May 10, 1991 and which is enclosed for your edification. . . . Since she refused to make any comments at that meeting, and after consultation with Mr. Rustin, I informed her that she was dismissed as an employee of the Department of Biology at the University of North Carolina at Chapel Hill effective immediately, i.e. May 24, 1991. . . . This is a synopsis of the events leading to the dismissal of Ms. Hanton and I bring them to your attention only so that you know the real facts of the matter. The department and university, in general, cannot allow technical assistants to make the final decision as to how a facility will be run. . . . For those of you who have listened to Ms. Hanton’s accusations and innuendos [sic], I would be glad to talk to you in person regarding her many ongoing problems with the University beginning as a graduate student in the Department of Botany in 1967. Dr. Gilbert attached to the memo a copy of the letter sent to him from the Electron Microscope Committee recommending Ms. Hanton’s dismissal and explaining the reasons for their recommendation. Following her dismissal, Ms. Hanton brought suit against Dr. Gilbert and Dr. Salmon in their personal and official capacities; the then Chancellor of UNC, Dr. Paul Hardin in his personal capacity; and UNC. She alleged violation of her state and federal constitutional rights to procedural due process, violation of the state Whistleblower Act (N.C. Gen. Stat. § 126-85) and defamation. The case was removed to the United States District Court for the Middle District of North Carolina which granted summary judgment for all defendants on the federal constitutional claim and remanded thé remaining claims to state court. There, the trial court granted summary judgment in favor of the defendants on all the remaining claims except Ms. Hanton’s claim for defamation against Dr. Gilbert individually in his personal capacity. The ensuing trial on that issue resulted in a jury verdict in favor of Dr. Gilbert. Ms. Hanton appeals from the order granting summary judgment and the judgment rendered on the jury verdict. Before this Court, Ms. Hanton contends that the trial court erred by: (I) Ruling that Dr. Gilbert had a qualified privilege in the defamation claim, (II) Improperly instructing the jury as to the defamation claim, (III) Granting summary judgment for defendants on the state constitutional claim on the grounds of res judicata, and (IV) Granting summary judgment for defendants on plaintiffs claim under the Whistleblower Act. We affirm the order and judgment of the trial court. I. Plaintiff first contends that the trial court incorrectly ruled that Dr. Gilbert had a qualified privilege with respect to the 29 May 1991 memo that he distributed to department members. We disagree. In considering the qualified privilege issue the trial court first determined as a matter of law that Dr. Gilbert’s memo was libelous per se. “When a publication is libelous per se, a prima facie presumption of malice and a conclusive presumption of legal injury arise entitling the victim to recover at least nominal damages without proof of special damages.” Arnold v. Sharpe, 296 N.C. 533, 537-38, 251 S.E.2d 452, 455 (1979). The parties do not dispute the trial court’s ruling that the memo was libelous per se\ however, in response, Dr. Gilbert raised the affirmative defense of qualified privilege and thus bore the burden of establishing that the publication of the defamatory statement was made on a privileged occasion. Clark v. Brown, 99 N.C. App. 255, 262, 393 S.E.2d 134, 138, cert. denied, 327 N.C. 426, 394 S.E.2d 167 (1990). “Whether the occasion is privileged is a question of law for the court, subject to review, and not for the jury, unless the circumstances of the publication are in dispute, when it is a mixed question of law and fact.” Id. (quoting Shuping v. Barber, 89 N.C. App. 242, 245, 365 S.E.2d 210, 212 (1988)). A defamatory statement is qualifiedly privileged when made (1) on subject matter (a) in which the declarant has an interest, or (b) in reference to which the declarant has a right or duty, (2) to a person having a corresponding interest, right or duty, (3) on a privileged occasion, and (4) in a manner and under circumstances fairly warranted by the occasion and duty, right or interest. Id. Thus, “[t]he essential elements thereof are good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only.” Stewart v. Check Corp. 279 N.C. 278, 285, 182 S.E.2d 410, 415 (1971). In the subject case, the record indicates that Dr. Gilbert, as Chairman of the Department of Biology, had an interest in the smooth running and morale of his department. To protect against the undermining of employee morale, he distributed the memo in question only to members of the Department of Biology in order to put an end to misleading rumors and inaccurate accounts of Ms. Hanton’s dismissal that were circulating in that department. We hold that under these circumstances the essential elements of a qualified privilege were satisfied. Furthermore, portions of Dr. Gilbert’s memo addressed Ms. Hanton’s accusations against him personally for which he had a privilege of self defense. See Gregory v. Durham County Bd. of Educ., 591 F. Supp. 145, 156 (M.D.N.C. 1984). Therefore, we conclude that the trial court properly ruled that Dr. Gilbert had a qualified privilege with respect to the subject memo. II. Ms. Hanton next contends that the trial court erred when it instructed the jury that it should limit its consideration to four particular statements on the 29 May memo, that she bore the burden of proving the falsity of these statements, and that she further had the burden of showing actual malice by Dr. Gilbert. We disagree. Since the trial court determined as a matter of law that Dr. Gilbert’s memo was privileged, a presumption arises in his favor that the statements were made in good faith and without malice. Clark, 99 N.C. App. at 262, 393 S.E.2d at 138. Furthermore, since Dr. Gilbert’s presumption rebutted Ms. Hanton’s presumption of actual malice, Ms. Hanton then had the burden of proving both the falsity of the charge and that it was made with actual malice. See, Clark at 262-63, 393 S.E.2d at 138; Boston v. Webb, 73 N.C. App. 457, 326 S.E.2d 104, disc. review denied, 314 N.C. 144, 332 S.E.2d 479 (1985). Thus, the trial court correctly instructed the jury regarding the burden of proving falsity and showing actual malice. In order for a defamatory statement to be actionable, it must be false. Long v. Vertical Technologies, Inc., 113 N.C. App. 598, 439 S.E.2d 797 (1994). The undisputed evidence in the record indicates that many of the statements in the subject memo were true. Since the four statements submitted to the jury were the only statements which plaintiff claimed were false and thus the only defamatory statements at issue, the trial court acted properly in presenting only those statements for the jury’s consideration. III. Plaintiff next contends that the trial court erred by granting defendants’ motion for summary judgment on her state constitutional claim because res judicata does not preclude relitigation of her claim. We agree that the doctrine of res judicata does not preclude her state claims; however, we nonetheless affirm the trial court’s award of summary judgment for a different reason. In its order granting summary judgment, the trial court concluded: [U]nder the doctrine of res judicata and collateral estoppel the Plaintiff cannot re-litigate anew her claim of wrongful dismissal. Such claim has been fully litigated adversely to the Plaintiff in the administrative proceedings with a determination that her employment termination was [for] just cause and was free of any substantial due process violation. Collateral estoppel would bar further review of that issue by this court. Similarly, the Plaintiff failed to satisfy the federal court that t

DOLAN v CONTINENTAL AIRLINES/CONTINENTAL EXPRESS Docket No. 102413. Argued January 16, 1997 (Calendar No. 19). Decided May 20, 1997. Sue Ann Dolan brought an action in the Wayne Circuit Court against Continental Express, alleging wrongful discharge from employment in violation of Michigan’s Whistleblowers’ Protection Act, MCL 15.362; MSA 17.428(2), breach of contract principles, and public policy. The plaintiff had been asked to be alert to and to report to the Federal Drug Enforcement Agency persons purchasing tickets or otherwise contacting the airline who fit a designated profile description relating to drug trafficking or terrorist activities. Later, her employer posted a notice directing employees to seek management approval before making such reports. The plaintiff was discharged after her employer was informed that she made another report without management approval. The court, William J. Giovan, J., granted summary judgment for the defendant. The Court of Appeals, Taylor, J. (R. D. Gotham, J., concurring in the result only), and (Shepherd, P.J., not participating), affirmed (Docket No. 149512). The plaintiff appeals. In a unanimous opinion by Justice Boyle, the Supreme Court held: The plaintiff stated a valid claim of wrongful discharge from employment under the Whistleblowers’ Protection Act. 1. Employees who report violations or suspected violations of law by either their employers or fellow employees to a public body are entitled to protection under the Whistleblowers’ Protection Act. The plaintiff alleges she was fired because she reported or was believed to have reported a violation of law. The allegation is sufficient to state a claim of wrongful discharge under the act. In addition, the reported violation was sufficiently related to the employment setting to be protected under the act. The trial court erred in granting the defendant’s motion for summary disposition of the wpa claim. Because the wpa is the exclusive remedy against such discharge, the grant of summary disposition of the public policy claim was proper. 2. The plaintiff had no legitimate expectation of continued employment as a matter of law on the basis of the defendant’s written disciplinary policies alone. Nor could an inference be drawn that the relationship between the parties was a contract for termination only for good cause. Affirmed in part, reversed in part, and remanded for further proceedings. 208 Mich App 316; 526 NW2d 922 (1995) affirmed in part and reversed in part. Cunningham & Associates (by Douglas C. Cunningham) for the plaintiff. Miller, Canfield, Paddock & Stone (by Megan P Norris) for the defendant. Boyle, J. i In this case we are asked to determine whether plaintiff has stated a valid claim of wrongful discharge from employment under Michigan’s Whistleblowers’ Protection Act (wpa), breach of' contract principles, and public policy. For the reasons that follow, we hold that plaintiff has failed to state a claim of wrongful discharge from employment under public policy and breach of contract principles, but has stated a valid claim under the WPA. Accordingly, we affirm the grant of summary disposition as it relates to the public policy and breach of contract claims, and reverse and remand for further proceedings on the wpa claim. n Plaintiff worked as a ticketing agent for defendant airlines at the Capitol City Airport in Lansing, Michigan. In early 1991, as a means of tightening airport security during the Persian Gulf War, plaintiff and her colleagues were asked to stay alert to individuals purchasing tickets or otherwise contacting the airline who fit a designated profile description relating to drug trafficking or terrorist activities. Plaintiff did just that and, in January or February, 1991, she and a coworker informed airport security of individuals who fit the profile description. On the basis of plaintiffs tip, the Federal Drug Enforcement Agency intervened and made an arrest. Shortly thereafter, plaintiff again contacted the authorities to report yet another individual whom she believed fit the designated profile. The dea assured plaintiff that she would be rewarded. On February 10, 1991, the general manager of Continental Express posted a written notice directing employees to seek management approval before contacting authorities to report individuals believed to fit the profile description. One month later, plaintiff was approached by the general manager and asked if she had contacted the DEA after February 10, 1991. Plaintiff claimed that she had not, but was sent home pending an investigation. According to plaintiff, Continental’s investigation unearthed two individuals who agreed to provide written statements indicating that plaintiff had reported two passenger names to the dea after February 10, 1991. When confronted, plaintiff admitted that she contacted the dea after the February date, but insisted that she did so only because she wanted information on the status of her reward. Plaintiff contends that she did not report passenger names after the February 10 posting. In March, 1991, the general manager of Continental Express contacted the plaintiff and told her that her relationship with Continental was over. The next day, plaintiff was shown one of two written statements that alleged that she had contacted the dea without Continental Express’ approval after February 10, 1991. Plaintiff was told that corporate headquarters would make the final determination on her employment status. Subsequently, plaintiff’s employment was terminated. Plaintiff’s original complaint alleged wrongful discharge from employment under the Michigan Whistleblowers’ Protection Act and breach of contract principles. The circuit court granted defendant’s motion for summary disposition on the wpa claim. Shortly thereafter, plaintiff filed an amended complaint, adding a new charge of wrongful discharge from employment in violation of public policy. Defendant again sought dismissal of plaintiffs claims under MCR 2.116(C)(8). At the same time, plaintiff filed a motion for relief from the October 10, 1991, order granting defendant summary disposition on the wpa claim. After consolidating the matters, the court granted defendant’s motion to dismiss plaintiff’s first amended complaint with prejudice and denied plaintiff’s motion for relief from the October 10, 1991, order. The Court of Appeals affirmed. We granted leave to appeal. 452 Mich 867 (1996). m Plaintiff alleges that the court dismissed the wpa claim on the basis of a faulty interpretation of the law. According to plaintiff, the December 16, 1991, decision in Dudewicz v Norris Schmid, Inc, 192 Mich App 247, 254; 480 NW2d 612, aff’d in part and rev’d in part 443 Mich 68; 503 NW2d 645 (1993), extended the application of the act and required that the court grant relief from its earlier order dismissing the whistleblowers’ claim. In considering plaintiff’s motion for relief from that order, the circuit court reviewed the whistleblowers’ claim in light of the Court of Appeals opinion in Dudewicz and determined that the grant of summary disposition had been appropriate. On appeal, the Court of Appeals, having the benefit of this Court’s analysis in Dudewicz, reduced the instant issue to whether the wpa was intended to protect “third parties whose violations, if any, have no connection to the business.” 208 Mich App 316, 318-319; 526 NW2d 922 (1995). The Court of Appeals found that the act did not apply, stating that “in order for the wpa to apply, the violation or suspected violation must be committed in the course of doing business.” Id. at 320. IV Michigan’s Whistleblowers’ Protection Act was first enacted in 1981, largely in response to the accidental PBB-contamination of livestock feed. The act “encourage[s] employees to assist in law enforcement and . . . protects] those employees who engage in whistleblowing activities.” It does so with an eye toward promoting public health and safety. The underlying purpose of the act is protection of the public. The act meets this objective by protecting the whistleblowing employee and by removing barriers that may interdict employee efforts to report violations or suspected violations of the law. Without employees who axe willing to risk adverse employment consequences as a result of whistleblowing activities, the public would remain unaware of large-scale and potentially dangerous abuses. To establish a prima facie case under the wpa, plaintiff must prove that she “reported] or [was] about to report ... a violation or a suspected violation of a law ... to a public body.” MCL 15.362; MSA 17.428(2). Plaintiff asserts that she was terminated “because [she] reported and/or was perceived to report a violation or a suspected violation of a law . . . .” Because plaintiff appeals from a motion granting summary disposition, all factual allegations supporting her claims must be accepted as true. v A motion for summary disposition under MCR 2.116(C)(8), tests the legal basis of the claim and is granted if the claim is so manifestly unenforceable as a matter of law that no factual progression could possibly support recovery. Simko v Blake, 448 Mich 648, 654; 532 NW2d 842 (1995). Motions for summary disposition are examined on the pleadings alone, absent consideration of supporting affidavits, depositions, admissions, or other documentary evidence, and all factual allegations contained in the complaint must be accepted as trae. Id. at 654. VI The pivotal question in this case is whether the plaintiff stated a valid claim of wrongful discharge from employment under the wpa where she alleged that she reported or was perceived to report a violation or suspected violation of the law. We find that she did. A plain reading of the wpa reveals that employees who report violations or suspected violations of the law to a public body are entitled to protection under the act. As interpreted, the act provides protection to employees who report violations of law by either their employers or fellow employees. Dudewicz, 443 Mich 68. The act was intended to protect employees who alert the public to “corruption or criminally irresponsible behavior in the conduct of government or large businesses.” Id. at 75. Frequently, a close connection exists between the reported violation and the employment setting, although no such limitation is found in the statute. Id. In Dudewicz, the plaintiff worked as a parts manager for the defendant automobile dealership. In an effort to gain better service for a customer, the plaintiff, along with the dealership’s owner, convinced the service manager to perform work for the customer under warranty. After the owner left the area, the service manager allegedly assaulted the plaintiff. The plaintiff was fired when he refused to drop criminal charges against the service manager. A majority of this Court afforded the plaintiff protection under the WPA. While acknowledging that the connection between the violation and the employment setting was slightly more attenuated than “traditional notions of whistleblowing,” the majority found that the violation was “very much within the employer-employee setting.” In light of the approach taken in Dudewicz, we decline to limit application of the wpa to reported violations of the employer alone. In accordance with the plain language of the act, plaintiff has alleged that she was fired because she reported or was believed to have reported a violation of the law. This allegation is sufficient to state a claim of wrongful discharge from employment under the wpa. In addition, we find that the reported violation in the present case was sufficiently related to the employment setting to be protected under the wpa. This is not to say that only those violations that are connected to the employment setting are contemplated under the wpa, only that the reported violation in the present case was sufficiently connected to the employment setting to be contemplated under the majority opinion in Dudewicz. Accordingly, we find that the trial court erred in granting the defendant’s motion for summary disposition on the wpa claim. Because the wpa is the exclusive remedy against discharge in retaliation for the conduct at issue, the grant of the motion for summary disposition on the public policy claim is affirmed. Id. at 80. vn Lastly, plaintiff alleges that the defendant maintained written policies that gave rise to an express or implied contract of continued employment and a legitimate expectation that the plaintiff would not be terminated in a manner contrary to those policies. Both the circuit court and the Court of Appeals held that, as a matter of law, on the basis of defendant’s written disciplinary policies alone, plaintiff had no legitimate expectation of continued employment, nor could an inference be drawn that the relationship between the parties was a contract for termination for good cause only. We agree. It is a settled tenet of Michigan law that employment contracts for an indefinite term produce a presumption of employment at will absent distinguishing features to the contrary. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980). To overcome this presumption, evidence may be produced that proves the existence of an express contract for a definite term or an express provision in a contract that forbids termination absent just cause. Proof of a promise of job security implied in fact, such as employment for a particular term or a promise to terminate only for just cause, may also overcome the presumption. Rowe v Montgomery Ward & Co, Inc, 437 Mich 627; 473 NW2d 268 (1991). Furthermore, company policies and procedures may become an enforceable part of an employment relationship if such policies and procedures instill legitimate expectations of job security in employees. Rood v General Dynamics Corp, 444 Mich 107, 117-118; 507 NW2d 591 (1993). This presumption does not prevent proof of actual intent, nor should it sanction unjustified evasions of promissory liability. A Plaintiff does not allege that the defendant orally promised that her employment would continue indefinitely absent just cause for termination. Instead, she alleges that the defendant’s Human Resources Policy Manual incorporated written policies that established a progressive disciplinary system whereby plaintiff could be terminated only for cause. It is by virtue of these policies that plaintiff contends that an express or implied contract of employment arose and that a legitimate expectation was created that plaintiff would not be disciplined or terminated in a manner contrary to those stated policies. In Toussaint, supra at 610, this Court acknowledged that written statements in a company policy and procedure manual could give rise to enforceable rights in contract or to a legitimate expectation of just-cause employ-ment. In Renny v Port Huron Hosp, 427 Mich 415; 398 NW2d 327 (1986), that same idea found expression when the Court held that an employee handbook could provide the basis of a just-cause employment contract. Later, in Rood, this Court once again considered whether written policy statements provided the basis for an employment agreement terminable only for cause. The Court opined that where policy manuals are distributed throughout the company our inquiry is not limited to the question whether the employer sufficiently manifested an intention to enter a single contractual just-cause employment relationship with the party before the Court, but, rather whether the employer has sufficiently manifested an intention to enter such a relationship with all employees subject to the relevant policies and practices. [Id. at 136.][] According to the Court in Rood, the mere dissemination of an employee handbook that implied a discharge-for-cause policy was insufficient as a matter of law to state a cause of action for breach of contract. Policies such as these “may become part of an employment contract only when the circumstances (e.g., the language in the handbook itself, or an employer’s oral statements or conduct) clearly and unambiguously indicate that the parties so intended.” Id. at 137. Plaintiff alleges that she was wrongfully terminated from her employment contrary to defendant’s written policy statements that expressly or impliedly formed the basis of her employment agreement with the defendant. Plaintiff acknowledges that defendant’s policies were not unique to her, but were applicable to all the defendant’s employees. Absent allegations in the pleadings that clearly and unambiguously indicate the defendant’s intent to create a just-cause employment relationship with all its employees, or in particular with this plaintiff, we hold that plaintiff has not, as a matter of law, stated a claim on which relief can be granted. B Plaintiff next contends that she had a legitimate expectation that she would not be terminated, or otherwise disciplined, in a manner contrary to the policies set forth in the defendant’s policy and procedure manual. In other words, plaintiff contends that she had a legitimate expectation of just-cause employment. The legitimate-expectations prong of Toussaint was founded on this Court’s common-law authority to recognize enforceable obligations that arise outside the scope of normal contract principles. The theory operates as a viable, independent basis for enforcing promises of job security contained in policy statements that are circulated “either ‘to the work force in general or to specific classifications of the work force, rather than to an individual employee.’ ” Having announced its policy, and presumably having been benefited by that policy, the employer may not then treat it as illusory. Employer policy statements that are “reasonably capable of being interpreted” as promises to discharge for just cause only, or that are capable of two reasonable interpretations, create an issue of fact for the jury. Defendant’s policy manual states that its progressive disciplinary action plan “allows an employee the opportunity to make necessary corrections in their performance.” It also establishes that discipline “should be used only when other efforts have failed or if the violation in question precludes other alternatives.” Additionally, the manual states that “[t]he supervisor must investigate early and thoroughly to be fair as well as to prepare for possible testimony that just cause existed for disciplinary action.” Defendant’s disciplinary policies also expressly indicate, however, that certain situations may require more severe action than that detailed in the policy manual. In situations where the appropriate disciplinary action is not designated in the manual, the supervisor is not precluded from taking the necessary action, but is required to contact the Human Resource Department to “discuss the proper approach.” Particularly relevant are defendant’s policies on involuntary terminations. Although the policies indicate that “[e]very effort will be made to improve employee performance and correct deficiencies to avoid termination of employment,” they also state that “[w]ith the exception of serious infractions, an employee will be given the opportunity to correct deficiencies.” Infractions serious enough to require automatic termination are listed in the policy manual. Also listed are those infractions that may warrant dismissal on the first offense. Infractions resulting in possible first offense termination include “[r]efusing to follow directions from supervisors or showing gross insubordination.” The policy and procedure manual expressly states that the listed offenses are only “examples of common offenses for which employees may be terminated for cause” and is not an all-inclusive list. As this Court held in Rood, supra, “[a] nonexclusive list of common-sense rules of behavior that can lead to disciplinary action or discharge, clearly reserves the right of an employer to

PHINNEY v PERLMUTTER PHINNEY v ADELMAN PHINNEY v UNIVERSITY OF MICHIGAN BOARD OF REGENTS Docket Nos. 175485, 175857, 176940. Submitted June 18, 1996, at Detroit. Decided April 4, 1997, at 9:00 A.M. Carolyn Phinney, formerly employed as a senior research associate at the Institute of Gerontology at the University of Michigan, brought an action in the Washtenaw Circuit Court against institute research scientist Marion Perlmutter, institute director Richard Adelman, and investigator Lois Verbrugge and an action in the Court of Claims against the University of Michigan Board of Regents. Phinney alleged that Perlmutter, among other things, committed fraud and misrepresentation in appropriating Phinney’s research and making false representations about the prospects of obtaining foundation grants for continued research and about Phinney’s continued employment at the institute. Phinney alleged that Adelman, Verbrugge, and the board of regents, among other things, violated the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seq.; MSA 17.428(1) et seq., in taking retaliatory actions against Phinney after she complained about misconduct by Perlmutter. Judge Patrick J. Conlin, sitting as the circuit court and the Court of Claims in the respective actions, granted summary disposition for Verbrugge and found no cause of action against the board of regents. A jury returned verdicts against Perlmutter and Adelman. The circuit court entered a judgment on the verdicts, awarded prejudgment interest against Perlmutter from the date of Phinney’s fourth amended complaint and against Adelman from the date of Phinney’s first amended complaint, and denied Phinney’s request for an award of attorney fees against Adelman under the wpa. Perlmutter, Adelman, and Phinney appealed and Phinney and the board of regents cross appealed. The appeals were consolidated. The Court of Appeals held: 1. Perlmutter’s claim that the circuit court lacked subject-matter jurisdiction in view of federal copyright law is without merit. Phinney’s claim against Perlmutter was for fraud, a state-law claim over which federal courts have no jurisdiction. Phinney’s claim is not preempted by the Copyright Act in the absence of evidence that Phinney’s writings were registered with the Register of Copyrights. 2. The circuit court did not abuse its discretion in granting Phinney leave to file a fourth amended complaint against Perlmutter in the absence of a showing by Perlmutter of resulting prejudice. 3. The circuit court did not err in denying Perlmutter’s motion for summary disposition based on the statute of frauds. Assuming, for the purposes of argument, that Phinney’s fraud claim against Perl-mutter is inextricably intertwined with a contract of employment, an agreement for an indefinite term of employment, such as that which Phinney had, is generally regarded as not being within the proscription of the statute of frauds. 4. The circuit court did not err in denying Perlmutter’s motion for a directed verdict based on governmental immunity. A question of fact existed regarding whether Perlmutter’s actions were so reckless as to demonstrate a substantial lack of concern for whether injury resulted. 5. The circuit court did not abuse its discretion in denying Perl-mutter’s motions for a directed verdict, judgment notwithstanding the verdict, and a new trial, which were all based on a claim of insufficient evidence of fraud or misrepresentation. A rational trier of fact can conclude from the evidence presented that Perlmutter made material misrepresentations, that they were false, that Perl-mutter knew they were false or made them recklessly without knowledge of their truth or falsity, that Perlmutter made the misrepresentations with the intent that Phinney would act on them, that Phinney acted in reliance on Perlmutter’s misrepresentations, and that Phinney suffered damages. 6. The circuit court did not abuse its discretion with respect to any of the evidentiary rulings challenged by Perlmutter on appeal. 7. The circuit court did not err in refusing to instruct the jury, as requested by Perlmutter, that “[djamages for emotional distress, humiliation, injury to reputation or exemplary damages are not available in a fraud claim,” but did err in limiting the available damages to those based on contract principles. Damages for mental and emotional distress may be awarded where, as here, there is allegation and proof of tortious conduct independent of a breach of contract. The circuit court’s error in limiting damages does not require reversal. The circuit court did not err in refusing to instruct the jury, as requested by Perlmutter, that reliance by Phinney on the alleged misrepresentations by Perlmutter had to be reasonable. Fraud requires proof of actual, but not reasonable, reliance on the alleged misrepresentation. Appellate review of Perlmutter’s claim that the circuit court erred in instructing the jury about burden of proof is precluded in light of Perlmutter’s failure to object at trial to the instruction that was given. 8. Perlmutter waived the issue concerning the lack of a distinction between past and future damages inasmuch as she stipulated the use of a general verdict form. 9. The damages assessed against Perlmutter are not excessive because they are not higher than the highest amount the evidence can support. The circuit court did not abuse its discretion in denying Perlmutter’s motion for a new trial on the grounds of jury misconduct and improper closing argument by Phinney’s counsel. The alleged jury misconduct concerned the jury’s conduct after trial and therefore did not affect the trial or the evidence presented at trial. The circuit court was in the best position to determine whether the jury’s verdict was motivated by such impermissible considerations as passion, bias, or anger. 10. The circuit court did not abuse its discretion in denying Perl-mutter’s motion for a new trial on the ground of newly discovered evidence. Evidence of an interview of Phinney is ambiguous, and the fact that Phinney avoided further injury upon discovering Perl-mutter’s scheme does not undo the damage that was inflicted. 11. The circuit court did not abuse its discretion in denying Perl-mutter’s motion for a new trial on the asserted ground of jury prejudice in the absence of an affirmative showing by Perlmutter of prejudice. 12. Phinney is entitled to prejudgment interest from Perlmutter from the date of the original complaint against Perlmutter, not the date of the fourth amended complaint by which Phinney first alleged the claim of fraud and misrepresentation and on which the judgment was issued. Prejudgment interest is paid from the date of the original complaint because the purpose of prejudgment interest is to compensate the prevailing party for expenses incurred in bringing an action for money damages and for any delay in receiving such damages. Prejudgment interest for future damages may be assessed where, as here, the action does not result from personal bodily iryury. The case must be remanded for recalculation of prejudgment interest against Perlmutter. 13. The circuit court had proper jurisdiction over the wpa claims against Adelman. The wpa defines “employers” to include state entities and specifies that actions thereunder may be filed in the circuit court. The Legislature, in enacting the wpa, waived the right of state entities to be sued only in the Court of Claims. 14. Adelman’s claim on appeal that Phinney was not entitled to a jury trial with regard to the wpa claims is without merit. State entities against whom claims under the wpa are brought may be subjected to jury trials. In any event, Adelman consented to the jury trial. 15. The circuit court did not abuse its discretion in granting Phinney leave to file a fourth amended complaint against Adelman in the absence of a showing of bad faith on Phinney’s part or prejudice to Adelman and in view of the imposition of $10,000 in costs against Phinney. Amendment was not futile because the claims against Adelman were not barred by the applicable statute of limitations. 16. For purposes of reviewing Adelman’s claim on appeal that Phinney’s action against him is barred by the ninety-day statute of limitations of the wpa, the filing date is October 1, 1990, the date of Phinney’s original complaint, not April 1, 1991, the date of the first amended complaint by which Phinney first named Adelman as a defendant. Adelman’s counsel at trial had referred to October 1, 1990, as the filing date, and Adelman is thus barred from now taking the contrary position that the later date was the filing date. A civil action under the wpa must be brought within ninety days after the occurrence of the alleged violation of the wpa, MCL 15.363(1); MSA 17.428(3)(1). While two instances of alleged violations of the wpa by Adelman are within this limitation period, several others occurred before the ninety-day period. Phinney’s action against Adelman for alleged violations that occurred more than ninety days before she filed her action is timely under the continuing violations doctrine, which applies where there was a policy of discrimination, or, as in this case, a continuing course of conduct, i.e., a series of discriminatory acts that were sufficiently related so as to constitute a pattern, only one of which occurred within the limitation period. The circuit court did not err in denying Adelman’s motion for summary disposition based on the statute of limitations in light of the existence of a genuine issue of material fact concerning whether Adelman had engaged in continuing violations of the wpa. 17. Phinney’s claims against Adelman under the wpa are not barred by governmental immunity, and the circuit court did not err in denying Adelman’s motions for summary disposition, a directed verdict, and judgment notwithstanding the verdict, all of which were based on governmental immunity. The act explicitly includes the state in its definition of “employer” and includes an agent of an employer within its definition of “employer.” The governmental immunity statute must be read in pari materia with the wpa, the extension of the remedies under the wpa is consistent with the protections that the governmental immunity act offers to governmental employees against third parties, and the wpa not only contains no language freeing the government from its requirements, regulations, and restraints, but it explicitly includes the state among those employers who are subject to the act. The wpa, being more special and particular than the governmental immunity statute, was intended to be an exception to the governmental immunity statute, because the Legislature must be presumed not to have intended a conflict. 18. The wpa, insofar as it abrogates governmental immunity, does not, as Adelman claims on appeal, violate the Title-Object Clause of the Michigan Constitution. The purpose of the wpa is to protect employees who suffer retaliation for reporting violations of law. The inclusion of the state among employers subject to wpa is incidental to the purpose of the wpa and need not have been stated in the title of the wpa. 19. The circuit court did not abuse its discretion in denying Adelman’s motions for summary disposition, a directed verdict, and judgment notwithstanding the verdict, all of which were based on the asserted grounds that Phinney failed to prove that she had engaged in protected activity under the wpa, failed to establish any nexus between her activily and the nonrenewal of her appointment, or failed to demonstrate pretext. Viewing the evidence in the light most favorable to Phinney, the record discloses that she reported violations of law by Perlmutter to the university, a public body, that there was a sufficient nexus between Phinney’s reporting of such violations and the retaliatory actions taken by Adelman against her, and that her failure to publish academic writings was a pretext for the retaliatory actions taken against her. 20. Phinney’s claims against Adelman are within the scope of the WPA. 21. Adelman, by failing to object at trial, failed to preserve as an issue on appeal his claim that the circuit court failed to properly instruct the jury about quantum of proof. Manifest injustice will not result from the Court of Appeals’ decision not to review this issue. 22. The fact that the circuit court jury ruled against Adelman while the Court of Claims ruled in favor of the board of regents with regard to similar claims under the wpa does not mean that the trial judge improperly deferred to the jury. A trial court sitting as the Court of Claims is not obligated to return a verdict consistent with the jury’s verdict in a circuit court action joined with the Court of Claims action. 23. The circuit court did not abuse its discretion in several evidentiary rulings challenged by Adelman on appeal. 24. The circuit court did not err in denying Adelman’s motions for remittitur or a new trial. The damages assessed against Adelman were not higher than the highest amount the evidence can support, and the jury’s verdict was not motivated by impermissible considerations. Adelman waived the issue concerning a lack of distinction between past and future damages by not objecting to the verdict form used. Contrary to Adelman’s assertion, damages for emotional distress may be awarded in an action under the wpa. 25. Attorney fees in an action under the wpa may be awarded by the trial court at its discretion. In this case, the circuit court did not abuse its discretion in refusing Phinney’s request for attorney fees after considering the contingent fee arrangement between Phinney and her counsel. 26. Prejudgment interest assessed against Adelman must be from the date of the first amended complaint, when Adelman was first named as a defendant, not from the date of the fourth amended complaint, when the claims under the wpa were first made against Adelman. Prejudgment interest on future damages may be awarded where, as here, the action does not result from personal bodily injury. The case must be remanded for recalculation of the amount of prejudgment interest Adelman must pay. 27. The circuit court did not err in granting summary disposition for Verbrugge on the basis of the expiration of the period of limitation applicable to the action against her. Phinney failed to establish any fraudulent concealment, MCL 600.5855; MSA 27A.5855, by Verbrugge that would have tolled the running of the period of limitation. 28. The Court of Claims did not clearly err in finding that Phinney had failed to establish that the board of regents had violated the wpa. The record supports the Court of Claims’ findings that the board had legitimate, nondiscriminatory reasons for actions taken' against Phinney and that Phinney had not shown that those reasons were a pretext. Phinney waived the issue of a wrong burden of proof being employed by the Court of Claims when she failed to raise it in the statement of questions presented. Affirmed; circuit court case remanded for recalculation of prejudgment interest. 1. Fraud — Reliance on Misrepresentation. Fraud requires proof of actual, but not reasonable, reliance on an alleged misrepresentation. 2. Interest — Prejudgment Interest — Amended Complaints. The purpose of prejudgment interest is to compensate the prevailing party for expenses incurred in bringing an action for money damages and for any delay in receiving such damages; prejudgment interest against a defendant who loses with regard to a cause of action raised in an amended complaint should be assessed from the date of the original complaint; prejudgment interest against a defendant who is added in an amended complaint and who loses with regard to a cause of action first raised in a later amended complaint should be assessed from the date of the amended complaint by which the defendant was added (MCL 600.6013[1]; MSA 27A.6013[1]). 3. Interest — Prejudgment Interest — Future Damages. Prejudgment interest may be awarded for future damages where the action does not result from personal bodily injury (MCL ' 600.6013[1], 600.6301; MSA 27A.6013[1], 27A.6301). 4. Master and Servant — Whistleblowers’ Protection Act — Statute of Limitations — Continuing Violations. A civil action under the Whistleblowers’ Protection Act must be brought within ninety days after the occurrence of the alleged violation of the act; violations that occur more than ninety days before the bringing of the action are actionable under the continuing violation doctrine where there is a policy of discrimination or a continuing course of conduct, i.e., a series of discriminatory acts that are sufficiently related so as to constitute a pattern, only one of which occurs within the limitation period (MCL 15.363[1]; MSA 17.428[3][1]). 5. Governmental Immunity — Whistleblowers’ Protection Act. A civil action under the Whistleblowers’ Protection Act against a governmental entity or agent in their capacity as employer is not barred by governmental immunity (MCL 15.361[b], 691.1401 et seq.; MSA 17.428[l][b], 3.996[101] et seq). 6 Constitutional Law — Title-Object Clause — Whistleblowers’ Protection Act — Governmental Immunity. The Whistleblowers’ Protection Act, insofar as it abrogates governmental immunity, does not violate the Title-Object Clause of the Michigan Constitution (Const 1963, art 4, § 24; MCL 15.361 [b]; MSA 17.428[l][b]). 7. Master and Servant — Whistleblowers’ Protection Act — Emotional Distress Damages. Damages for emotional distress are awardable in a civil action under the Whistleblowers’ Protection Act (MCL 15.363[1], [3]; MSA 17.428[3][1],[3]). Green & Green (by Philip Green) (Sommers, Schwartz, Silver & Schwartz, PC. by Patrick Burkett, of Counsel), for Carlyon Phinney. Bodman, Longley & Dahling, LLP (by Jerold Lax), for Marion Perlmutter. Butzel Long (by Diane M. Soubly and James S. Rosenfeld), for Lois Verbrugge, Richard Adelman, and University of Michigan Board of Regents. Before: Wahls, P.J., and Murphy and C. D. Corwin, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Wahls, P.J. Defendant Marion Perlmutter hired plaintiff, Carolyn Phinney, as a senior research associate at the Institute of Gerontology (lOG) at the University of Michigan. At the time, Perlmutter was a research scientist at the lOG, and defendant Richard Adelman was the director of the institute. Plaintiff accused Perlmutter of stealing her research. Adelman appointed defendant Lois Verbrugge to conduct an investigation. The investigators found that Perlmutter was not guilty of scientific misconduct. Perlmutter was also found not guilty in two other investigations concerning allegations that she committed plagiarism. In the meantime, plaintiff lost her job at the lOG. Plaintiff sued, alleging that Perlmutter had defrauded her of her research and that Adelman and defendant University of Michigan Board of Regents retaliated against her for reporting Perlmutter’s misconduct. The jury agreed with plaintiff and awarded her $133,000 in damages against Perlmutter for fraud and $989,200 against Adelman for retaliatory discrimination. The trial court, sitting as the Court of Claims, found no cause of action against the board of regents with regard to plaintiffs claim under the Whistle-blowers’ Protection Act (wpa), MCL 15.361 el seq.; MSA 17.428(1) et seq. In Docket No. 175485, which involved the fraud claim, Perlmutter appeals and plaintiff cross appeals the judgment against Perlmutter. We affirm in part and remand for a recalculation of the amount of prejudgment interest to which plaintiff is entitled. In Docket No. 175857, the retaliation claim against Adelman, Adelman appeals and plaintiff cross appeals the judgment against Adelman. We affirm in part and remand for a recalculation of the amount of prejudgment interest to which plaintiff is entitled. In Docket No. 176940, the claim against the board of regents, plain

ROBERSON v OCCUPATIONAL HEALTH CENTERS OF AMERICA, INC Docket No. 186020. Submitted October 9, 1996, at Detroit. Decided December 3, 1996, at 9:00 A.M. Annette Roberson brought an action in the Wayne Circuit Court against Occupational Health Centers of America, Inc., and one of its managers, alleging that the defendants’ termination of the plaintiff’s employment violated the Whistleblowers’ Protection Act, MCL 15.361 et seq.) MSA 17.428(1) eí seq., and the Civil Rights Act, MCL 37.2101 et seq.) MSA 3.548(101) et seq. The court, J. Phillip Jourdan, X, granted summary disposition for the defendants. The plaintiff appealed. The Court of Appeals held: 1. To establish a prima facie case under the Whistleblowers’ Protection Act, a plaintiff must demonstrate that the plaintiff was engaged in a protected activity as defined by the act, the plaintiff was subsequently discharged, and there existed a causal connection between the protected activity and the discharge. In this case, the plaintiff failed to show that the defendants received notice of her filing with state authorities of a complaint of occupational health and safety violations at the defendants’ Dearborn office and therefore failed to demonstrate the existence of1 a causal connection between her claimed reporting of occupational health and safety violations and her discharge from employment. The trial court correctly ruled that the plaintiff failed to establish a prima facie case under the Whistleblowers’ Protection Act. 2. The plaintiff’s claim pursuant to the Civil Rights Act of racial discrimination under the disparate impact theory required a showing that a facially neutral employment practice burdened a protected class of persons more harshly than others. Although the plaintiff presented evidence to support her claim that the Dearborn office was in worse condition than the defendants’ other offices and that the majority of the employees assigned to the Dearborn office was African-American, the plaintiff failed to present any evidence suggesting that the majority of white employees was assigned to other offices, that the employees in the other offices were predominantly white, or that African-Americans were more likely to be assigned to the Dearborn office. The trial court correctiy determined that the plaintiff failed to establish a prima facie case of racial discrimination under the Civil Rights Act. Affirmed. 1. Master and Servant — Whistleblowers’ Protection Act — Retaliatory Discharge — Prima Facie Case — Appeal. In order to establish a prima facie case of retaliatory discharge under the Whistleblowers’ Protection Act, a plaintiff must establish that the plaintiff was engaged in a protected activity as defined by the act, that the plaintiff was subsequently discharged, and that a causal connection existed between the protected activity and the discharge; the determination whether the evidence establishes a prima facie case as a matter of law is reviewed de novo on appeal (MCL 15.362; MSA 17.428[2]). 2. Civil Rights — Employment Discrimination — Disparate Impact. A prima facie case under the Civil Rights Act of employment discrimination under the disparate impact theory requires a showing that a facially neutral employment practice burdened a protected class of persons more harshly than others (MCL 37.2101 et seq.; MSA 3.548[101] et seq.). Law Offices of Thomas E. Marshall (by Thomas E. Marshall and Nancy Brewer), for the plaintiff. DeWitt, Balke & Vincent, P.L.C. (by Charles C. DeWitt, Jr., and Cathleen C. Jansen), for the defendants. Before: Michael J. Kelly, P.J., and Hood and H. D. SOET JJ. Circuit judge, sitting on the Court of Appeals by assignment. Per Curiam. Plaintiff appeals as of right from an order granting summary disposition to defendants in this wrongful discharge case. Her claims were based on violations of the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seq.; MSA 17.428(1) et seq., and the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. We affirm. Plaintiff, an African-American woman, was hired by defendant Occupational Health Centers of America, Inc., (OHCA) on November 22, 1993, and worked primarily in its Dearborn office. Plaintiff and other employees of that office complained to defendant Tom James and other OHCA managers regarding physical conditions of the office, including rodent and insect infestation, leaky ceilings, sewer backups, exposed wiring, and electrical short circuits. On a Michigan Department of Public Health (dph) form dated both November 29, 1993, and December 9, 1993, plaintiff complained about the conditions in the Dearborn office. Plaintiffs employment with OHCA was terminated on January 12, 1994. Plaintiff brought a two-count action, and defendants moved for summary disposition of both claims pursuant to MCR 2.116(C)(10). Defendants claimed that plaintiff was terminated because of her tardiness and absenteeism. Defendants’ motion was granted. We review a trial court’s decision regarding a summary disposition motion de novo. Ladd v Ford Consumer Finance Co, Inc, 217 Mich App 119, 124; 550 NW2d 826 (1996). A motion brought under MCR 2.116(C)(10) tests the factual basis of a claim and when “[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law,” summary disposition is proper. MCR 2.116(C)(10); Ladd, supra. The moving party must specifically identify those issues for which it believes there is no genuine disputed fact, and, in opposing the motion, the nonmoving party may not rely on mere allegations or denials in its pleadings, but must set forth specific facts through affidavits or other permitted evidence to demonstrate that there exists a genuine issue for trial. MCR 2.116(G)(4). The trial court must consider all affidavits, pleadings, depositions, admissions, and other documentary evidence filed or submitted by the parties in deciding the motion. MCR 2.116(G)(5). The evidence must be considered in a light most favorable to the nonmoving party. Ladd, supra at 125. Plaintiff argues that the trial court erred in finding that she failed to create a genuine factual dispute with respect to a prima facie claim under the wpa. We disagree. We review whether a plaintiff set forth evidence to establish a prima facie case under the wpa de novo. Terzano v Wayne Co, 216 Mich App 522, 526; 549 NW2d 606 (1996). The wpa protects an employee from discharge, threats, or other discrimination regarding her employment because she “reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule . . . .” MCL 15.362; MSA 17.428(2). To establish a prima facie case, a plaintiff must demonstrate that (1) the plaintiff was engaged in a protected activity as defined by the act, (2) the plaintiff was subsequently discharged, and (3) there existed a causal, connection between the protected activity and the discharge. Id. It is clear that by filing a complaint with the DPH, plaintiff was engaged in protected activity. The parties do not dispute that plaintiff was discharged following her filing of the complaint. Plaintiff asserts that the trial court erred in concluding that she failed to demonstrate the existence of a causal connection between the filing of the complaint and her discharge. “[A]n employer is entitled to objective notice of a report or a threat to report by the whistleblower.” Kaufman & Payton, PC v Nikkila, 200 Mich App 250, 257; 503 NW2d 728 (1993). Plaintiff argues that she provided evidence that she had told a manager that she was about to report the conditions of the building to the Occupational Safety and Health Administration (OSHA) and was terminated as a result. We find that plaintiff failed to provide evidence to demonstrate a question of fact regarding this issue. The following exchange took place during plaintiff’s deposition: Q. Did you tell anybody at ohc that you had filed this complaint? A. Kathy [a manager] knew. Q. You say, “Kathy knew” How do you know that Kathy knew? A. I told her I was going to do it if they didn’t get the mice out of here. Q. Well, now, what exactly is it that you tell [sic] Kathy? A. I said — the only thing I said' — we were on the phone and I said, “Well, Kathy, if they don’t do something about these mice, I’m going to have to go to OSHA about this.” Plaintiff was again questioned on this topic: Q. You told — you had a conversation with Kathy in which you indicated, “You know, if this doesn’t get fixed or solved, I’m going to file this complaint.” A. No. That’s not what I said. What I said was, “I’m going to call OSHA.” The trial court discounted plaintiff’s later statement as her paraphrasing what she said to Kathy. As noted by the trial court, plaintiff was earlier asked specifically what she had told Kathy, and she responded in specific terms. With the exception of her statement to Kathy, plaintiff testified that she told no one that she had filed a complaint with osha. We find plaintiffs statement to Kathy to fall short of giving her employer notice of a report or a threat to report the deplorable conditions of the building. Plaintiff further asserts that the week before her termination, OSHA inspectors came to the office and that she had received a letter from OSHA that indicated that they had been to the building. Therefore, she argues, defendants had notice that she had filed a complaint. Again, plaintiff has provided insufficient evidence to create an issue of fact. Plaintiff testified at her deposition that a man from osha was at the office the week before she was terminated. Defendants’ counsel asked her what the inspector’s name was, and plaintiff responded: “Oh, I don’t know. He went straight to the office. And what happened was Gladys came in the office to tell me the osha people were there. And I said, ‘Well, that’s fine.’ ” Plaintiff also testified that she saw the man “when he flashed his badge. He had a badge.” We first note that plaintiff did not indicate that she read the man’s badge or otherwise personally confirmed that he was an osha inspector. Additionally, Gladys’ alleged statement to plaintiff that representatives of osha were on the premises directly contradicts documentary evidence provided by defendants. These statements are the only evidence provided to establish that an inspector was at the office before plaintiff was terminated. Plaintiff further testified that she received (1) confirmation from osha that they had received her complaint and (2) a letter indicating that they had been to the building. Then, apparently the week following her termination, OSHA mailed plaintiff a letter informing her that they had investigated her claim. Plaintiff may not rest on these mere conclusions and allegations, but was required to provide documentary evidence in support of these claims. MCR 2.116(G)(4). This she did not do. Plaintiff did not provide the court with the “little white” card she purportedly received from osha confirming its receipt of her complaint. However, she did submit a letter, dated January 11, 1994, sent to OHCA from the dph, informing OHCA that a report alleging hazardous working conditions had been received by the dph. The letter asked that OHCA investigate the allegations and advise the DPH of the findings and when corrective actions would be taken. The dph also informed OHCA that if it did not receive a response by the stated date, an “investigation may be scheduled.” Defendants provided evidence that this letter was received by OHCA on January 13, 1994, the day following plaintiffs termination. This letter does not support plaintiffs assertion that an inspector visited the site before her termination. Defendants submitted to the trial court a December 29, 1993, letter sent to plaintiff from the dph. This letter indicated that the dph had received plaintiffs complaint and that “[a]n investigation of these issues will be conducted by letter to the employer.” Other documentary evidence provided by defendants in the lower court included a second letter sent to plaintiff from the dph, dated January 11, 1994, from the dph’s district office in Westland. Again, plaintiff was informed that her complaint had been received. This letter further stated: “In an effort to reduce our backlog, complaints meeting certain criteria are initially responded to by letter to the employer. We have determined that your complaint is in this category and have sent the enclosed letter to the employer.” And finally, defendants provided a copy of an inspection report from the Department of Labor, which reflected that the office was inspected on January 13, 1994, by a safety officer from the Department of Labor, who did not contact ohca before arriving for the inspection. Plaintiff has failed to come forth with any documentary evidence to demonstrate that, contrary to these documents, the office was visited by inspectors from the dph before her January 12, 1994, termination. After reviewing this evidence in a light most favorable to plaintiff, we conclude that she failed to establish a prima facie case under the wpa. She has not demonstrated the existence of a causal connection between her protected conduct and her discharge. Because there was no genuine issue of material fact and defendants were entitled to judgment as a matter of law, the trial court properly granted summary disposition for defendants under MCR 2.116(C)(10). Plaintiff next argues that the trial court erred in finding that there existed no genuine issue of material fact with respect to her disparate impact claim under the Civil Rights Act. We disagree. To establish a prima facie case of discrimination under the Civil Rights Act under the theory of disparate impact, plaintiff was required to show, in addition to the fact that she was a member of a protected class, that “a facially neutral employment practice burden[ed] a protected class of persons more harshly than others.” Reisman v Regents of Wayne State Univ, 188 Mich App 526, 538-539; 470 NW2d 678 (1991). Although she presented evidence to support her claim that the Dearborn office was in worse condition than other ohca offices and that the majority of the OHCA employees assigned to the Dearborn office was African-American, plaintiff failed to present any evidence suggesting that the majority of white employees was assigned to other offices, that the staff members in other OHCA offices were predominately white, or that African-Americans were more likely to be assigned to the Dearborn office. In fact, the evidence demonstrated that the majority of the staff in an OHCA office in Detroit, which plaintiff admitted was in good condition, was African-Americans. Because plaintiff failed to present evidence that employees of different races were treated differently, she failed to establish a prima facie case of race discrimination under the disparate impact theory. Affirmed. We note that although plaintiff uses “disparate treatment” to refer to her argument, it appears that she has attempted to set forth a claim under the theory of “disparate impact.”

Employment relations—Whistleblower protection—It is sufficient that an employee had a reasonable belief that a co-worker violated a statute, city ordinance, work rule, or company policy to gain protection of R.C. 4113.52(A)(3).

ANZALDUA v BAND SUROWY v WAYNE STATE UNIVERSITY Docket Nos. 168358, 170339. Submitted November 21, 1995, at Lansing. Decided May 14, 1996, at 9:10 A.M. Leave to appeal sought. Sharon E. Anzaldua brought an action in the Ingham Circuit Court against Rudolph N. Band and Michigan State University, seeking damages under the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seq.-, MSA 17.428(1) et seq. The court, Carolyn Stell, J., granted the defendants’ motion to strike the plaintiff’s jury demand. The plaintiff appealed by leave granted. John E. Surowy brought an action in the Wayne Circuit Court against Wayne State University, seeking damages under the wpa. The court, James Mies, J., denied the defendant’s motion to strike the plaintiffs jury demand. The defendant appealed by leave granted. The appeals were consolidated. The Court of Appeals held: 1. Const 1963, art 1, § 14 provides that the right to a trial by jury “shall remain.” Although there is some authority that suggests that the constitutional right to a trial by jury exists with respect to new statutory causes of action only where there existed a similar common-law cause of action that predated the adoption of the 1963 constitution, there is little persuasive rationale for that position, and the weight of authority supports the conclusion that the constitutional right to a jury trial exists with respect to all actions that had they existed before the adoption of the 1963 constitution, would have been denominated as actions at law. Because actions under the wpa generally are denominated as legal actions entitled to a jury trial, the constitutional right to a jury trial exists with respect to actions for damages brought under the wpa. 2. The defendant universities are state entities that enjoy the state’s sovereign immunity, which, in the absence of a waiver of that immunity by the Legislature, would be liable for damages only in an action brought in the Court of Claims, in which there is no right to a jury trial. Sovereign immunity may be waived either by express statutory enactment or by necessary inference from a statute. Because the Legislature included state entities within the definition of employer in the wpa and provided that wpa actions may be filed in the circuit court, the Legislature, by necessary inference, waived the right of state entities to be sued with respect to wpa claims only in the Court of Claims. Accordingly, in light of the Legislature’s clear intent that both public and private defendants in wpa actions be treated in the same manner, the fact that the defendant universities are state entities does not preclude the plaintiffs from demanding that their claims for damages under the wpa be tried before a jury. Order of the Ingham Circuit Court reversed; order of the Wayne Circuit Court affirmed. O’Connell, J., concurring in part and dissenting in part, stated that because the plaintiffs seek legal relief under the wpa, they would normally be entitled to a jury trial. However, because the defendant universities are state entities subject to the state’s right to sovereign immunity, the right to a trial by jury exists only if immunity has been waived, either explicitly or by necessary inference. The Legislature has not explicitly directed that a wpa claim for damages against a state entity shall include the right to demand a jury trial, and a jury trial may not necessarily be inferred from the subjecting of state entities to wpa liability or from the direction that wpa claims may be filed in the circuit court. 1. Trial — Trial by Jury — Whistleblowers’ Protection Act. Actions for damages brought under the Whistleblowers’ Protection Act are subject to the constitutional right of a trial by jury (Const 1963, art 1, § 14; MCL 15.361 et seq:, MSA 17.428[1] et seq.). 2. Trial — Trial by Jury — State Entities — Whistleblowers’ Protection Act. A plaintiff bringing an action for damages under the Whistleblowers’ Protection Act against a state entity may demand that the claim be tried by a jury; the Legislature, by necessary inference, waived the state’s right to have claims for damages under the wpa tried in a bench trial in the Court of Claims (MCL 15.361 et seq:, MSA 17.428[1] et seq.). Thomas J. Jewett and Green and Green (by Philip Green and Christine A. Green), for Sharon E. Anzaldua. Dib and Fagan, P.C. (by Barry S. Fagan and Robert A. Dubin), for John E. Surowy. Fraser Trebilcock Davis & Foster, P.C. (by Michael E. Cavanaugh and Mark R. Fox), for Rudolph N. Band. Michael J. Kiley, for Michigan State University. Daniel J. Bernard, for Wayne State University. Before: Markman, P.J., and O’Connell and J. D. Payant JJ. Circuit judge, sitting on the Court of Appeals by assignment. Markman, P.J. In Docket No. 168358, plaintiff Anzaldua appeals by leave granted a trial court order striking her jury demand. In Docket No. 170339, defendant Wayne State University appeals by leave granted a trial court order denying its motion to strike plaintiff Surowy’s jury demand. These cases, consolidated for appeal, are actions for relief under the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seq.-, MSA 17.428(1) et seq. They present the issue whether the right to a jury trial is retained in actions under the wpa. We conclude that it is. We further conclude that the fact that the defendant universities are state institutions does not change this result. We therefore reverse in Docket No. 168358 and affirm in Docket No. 170339. The WPA is silent regarding whether parties bringing actions under its provisions are to be afforded a right to a jury trial.* In both cases here, the trial courts appropriately framed the issue as whether parties bringing actions under the wpa retained the right to a jury trial under the Michigan Constitution. Const 1963, art 1, § 14 states in pertinent part: The right of trial by jury shall remain, but shall be waived in all civil cases unless demanded by one of the parties in the manner prescribed by law. The “shall remain” language indicates that this provision retains the right to a jury trial as it existed at the time the constitution was adopted and neither restricts nor enlarges it. Accordingly, the question before us in interpreting this provision is what the “right of trial by jury” was in 1963. We must define the parameters of the constitutional right to a jury trial to determine whether this right is retained in actions under the wpa. Here, the trial courts came to opposite conclusions regarding whether the right to a jury trial is retained in actions under the wpa because each used a different test to analyze the constitutional right to a jury trial. In Docket No. 168358, the trial court stated, “there is no right to a jury trial under the [WPA] because that Act was not a common law cause of action prior to the adoption of the 1963 Constitution.” In Docket No. 170339, the trial court compared the case before it to King v General Motors Corp, 136 Mich App 301; 356 NW2d 626 (1984), which held that the right to a jury trial is preserved in actions under the Civil Rights Act. It stated that “an employment discrimination action constitutes a suit for damages and is therefore an action at law which existed prior to the adoption of the Michigan Constitution” and concluded that “I think that is the issue.” These two approaches differ regarding the conditions under which the constitutional right to a jury trial is retained when the Legislature creates a new cause of action without indicating whether the action is to be tried by a jury or the bench. We will refer to these two approaches as the historical-analogue approach and the nature-of-action approach throughout this opinion. Under the historical-analogue approach, the test is whether a similar cause of action in which a jury trial was accorded existed at the time the 1963 constitution was adopted. Under the nature-of-action approach, the test is whether the cause of action would have been denominated as legal at the time that the 1963 constitution was adopted and, therefore, whether a party bringing the action would have been accorded a right to a jury trial. Our nomenclature for the two approaches is intended to distinguish them. However, the distinction between them is more subtle than this nomenclature indicates. Both approaches have an historical-analogue element. Because Const 1963, art 1, § 14 states that the right to a trial by jury shall “remain” as it was at the time the state constitution was adopted, the focus under each approach is whether a party bringing a similar cause of action would have been afforded a right to a jury trial at that time. With respect to this historical-analogue element, the distinction between the two approaches is how broadly the concept of a similar cause of action is read. The historical-analogue approach requires the existence before the adoption of the 1963 constitution of a common-law action protecting similar legal interests in which a right to a jury trial was afforded. The nature-of-action approach requires only that the cause of action at issue be legal as opposed to equitable, because the common law at the time of the adoption of the 1963 constitution recognized a right to a jury trial in actions denominated as legal. Both approaches also consider the nature of the action — whether it is legal or equitable. The denomination of an action as legal or equitable determines whether there is a right to a jury trial under the nature-of-action approach. The historical-analogue approach also analyzes whether an action is legal or equitable to decide if a right to a jury trial is retained. Under this approach, if an analogue predating the 1963 constitution exits, it must still be determined whether the analogue incorporated the right to a jury trial. The cases supporting the historical-analogue approach require the existence of an analogue at common law that afforded the right to a jury trial at the time the 1963 constitution was adopted. “Common law” is generally read as the opposite of “statutory.” But “common law” is also an antonym to “equitable.” Black’s Law Dictionary (5th ed), at 251. The Seventh Amendment, US Const, Am VII, provides the federal constitutional right to a jury trial “[i]n suits at common law.” In Granfinanciera, SA v Nordberg, 493 US 33, 41; 109 S Ct 2782; 106 L Ed 2d 26 (1989), the United States Supreme Court held: We have consistently interpreted the phrase “Suits at common law” to refer to “suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized and equitable remedies were administered.” Parsons v Bedford, 28 US (3 Pet) 433, 447; 7 L Ed 732 (1830). Accordingly, in the cases supporting the historical-analogue approach, the term “common law” is appropriately read as a contrast to equity. The requirement of these cases of a common-law analogue is therefore a requirement of a legal analogue. Further, several of the cases supporting the historical-analogue approach explicitly discuss the legal or equitable nature of the case before them. For example, in In re Colon, 144 Mich App 805, 818; 377 NW2d 321 (1985), this Court set forth this underlying principle: - In general, before the Constitution was adopted, there was a right to jury trial at law but not in equity. Thus, under the historical-analogue approach, the denomination of an action as legal or equitable determines whether there is a right to a jury trial only if there existed before the adoption of the 1963 constitution a common-law cause of action. Accordingly, while both approaches ultimately look to the nature of the action, they differ in that the historical-analogue approach has the additional requirement that a similar common-law cause of action existed before the adoption of the 1963 constitution. The language of the constitutional provision does not indicate which of these two approaches is correct. There is Michigan case law supporting both approaches. Accordingly, the case law offers no definitive guidance regarding which approach correctly construes the constitutional provision. Even individual cases are often ambiguous regarding which approach controlled the determination whether the right to a jury trial had been retained. We found cases that arguably support the historical-analogue approach. Conservation Dep’t v Brown, 335 Mich 343; 55 NW2d 859 (1952),. involved the confiscation of an illegal fishing net. The Court, noted that the statute at issue was silent regarding whether there was a right to a jury trial and held: [T]he right to trial by jury is preserved in all cases where it existed prior to the adoption of the Constitution. The constitutional guaranty applies to cases arising under statutes enacted subsequent to adoption of the Constitution, which are similar in character to cases in which the right to jury trial existed before the Constitution was adopted. . . . The precise question presented, then, is whether the proceedings here are of such character that a jury trial would have been available before adoption of the Constitution. [Id. at 346-347 (citations omitted).] The Brown Court noted that the proceedings at issue were not equitable in nature. Id. at 347. But we note that an action involving the confiscation of personal property is not an ordinary legal action. The Brown Court concluded: We are not persuaded that this is a cause of action known to the common law in which a jury trial was accorded prior to adoption of the Constitution of this state. [Id. at 350.] Several other cases that arguably support the historical-analogue approach determined that no right to a jury trial was retained. In Chamberlin v Detroit Edison Co, 14 Mich App 565; 165 NW2d 845 (1968), this Court affirmed the dismissal of the property owners’ complaint contesting nonjury utility condemnation proceedings. In Meyer v Dep’t of Treasury, 129 Mich App 335; 341 NW2d 516 (1983), this Court affirmed the denial of a jury trial request in Tax Tribunal proceedings. In Tomlin v Dep’t of Social Services, 154 Mich App 675; 398 NW2d 490 (1986), an action regarding alleged overpayments of medicaid benefits, this Court found no right to a jury trial. In In re Colon, supra, this Court held that there was no right to a jury trial in child custody matters. The Colon Court held: [Respondent's entitlement to a jury trial depends on whether this case is “similar in character” to cases affording a jury trial before the Constitution was adopted. In addition, we must look to whether the instant proceeding involves a cause of action “known to the common law.” [Id. at 818.] We note that the Colon Court’s use of the term “in addition” indicates that this approach has two distinct elements: (1) that the cause of action at issue be “similar in character” to actions predating the 1963 constitution that afforded a jury trial and (2) that the cause of action at issue be “known to the common law.” The Colon Court concluded that child custody matters are clearly equitable in nature and rejected the respondent’s argument that he was entitled to a jury trial. Id. at 819. The basis for the result in each of these five cases in which no right to a jury trial was found is unclear. None of them were traditional legal actions that sought legal remedies. Therefore, application of the nature-of-action approach to these actions would have also resulted in determinations that no right to a jury trial was retained. A case, legal in nature, in which no right to a jury trial was found solely on the basis of the lack of an historical analogue would have directly addressed the situation in which application of the two approaches would yield different results. However, we found no such case. Several cases in which the right to a jury trial was found to be retained under the Civil Rights Act (cra), MCL 37.2101 et seq.; MSA 3.548(101) et seq., and the Handicappers’ Civil Rights Act (HCRA), MCL 37.1101 et seq.; MSA 3.550(101) et seq., also arguably support the historical-analogue approach. In King v General Motors Corp, supra at 308-309, this Court held that the right to a jury trial is retained in an employment discrimination action under the CRA: An employment discrimination action constitutes a suit for damages and is therefore an action at law which existed prior to the adoption of the Michigan Constitution in 1963. Ferguson v Gies, 82 Mich 358, 365; 46 NW 718 (1890); St John v General Motors Corp, 308 Mich 333, 336; 13 NW2d 840 (1944); Pompey v General Motors Corp, 385 Mich 537, 556-557; 189 NW2d 243 (1971). We note that the basis of the King Court’s conclusion that the right to a jury trial was retained is ambiguous. It is unclear whether its conclusion turned on the fact that the suit was a legal action or on the fact that there existed common-law analogues predating the 1963 constitution that afforded a right to a jury trial. In Smith v Univ of Detroit, 145 Mich App 468, 477; 378 NW2d 511 (1985), a race discrimination action under the CRA by students, this Court reversed a denial of a jury trial request because “common-law actions for damages for similar discriminatory acts were recognized prior to the adoption of the 1963 constitution.” In Barbour v Dep’t of Social Services, 172 Mich App 275, 280-281; 431 NW2d 482 (1988), this Court affirmed the denial of the defendant’s motion to strike a jury demand in an employment discrimination action under the hcra on the basis that “employment discrimination claims are actions at law which existed prior to the adoption of the state constitution.” These cases that support the historical-analogue approach fail to provide clear authority for choosing the historical-analogue approach over the nature-of-action approach. The language of these cases is ambiguous. The requirement of an historical analogue is drawn from language stating that the constitutional guaranty applies to actions “similar in character” to cases having the right to a jury trial at the time Michigan’s constitution was adopted. As noted above, such language can be read to require the existence of an analogue predating the 1963 constitution or to refer to the nature of the action; i.e., to require that the cause of action at issue be legal in nature because legal actions retained the right to a jury trial at the time the constitution was adopted. We acknowledge that the opinion in In re Colon, supra, explicitly refers to two separate elements: “similar in character” and “known to the common law.” The language of Colon thus provides the least ambiguous evidence that “similar in character” should be read to require an historical analogue rather than to require that action be legal in nature. But the Colon Court ultimately focused on the equitable nature of child custody matters rather than the absence of an historical analogue in holding that there was no right to a jury trial. Colon at 818-819. In contrast to the cases supporting the historical-analogue approach, we found cases supporting the nature-of-action approach that unambiguously identify the factors on which their determinations regarding the right to a jury trial turn. These cases focus exclusively on the nature of the action to determine whether there is a right to a jury trial. In Kahoun v Metropolitan Life Ins Co, 12 Mich App 441, 445; 162 NW2d 922 (1968), this Court held that an insured was improperly denied a jury trial in an action for reimbursement expenses because “[t]he right to jury trial should not be abridged in actions brought at law.” In Abner A Wolf, Inc v Walch, 385 Mich 253; 188 NW2d 544 (1971), an action to foreclose a mortgage, the defendants demanded a jury trial in connection with their counterclaim that raised legal issues. The entire case was tried before a jury and the trial judge made no independent factual findings regarding the equitable issues. The Wolf Court remanded for reargument before the trial judge. It cited with approval 1

TERZANO v WAYNE COUNTY Docket No. 171831. Submitted March 12, 1996, at Detroit. Decided May 10, 1996, at 9:15 AM. Michael A. Terzano brought an action in the Wayne Circuit Court against Wayne County and Daniel Kerber, the operations director of Detroit Metropolitan Airport, alleging that the defendants, in violation of the Whistleblowers’ Protection Act, MCL 15.361 et seq.-, MSA 17.428(1) et seq., terminated the plaintiffs employment as airport electrical inspector after the plaintiff alerted the electrical inspector of the City of Romulus to improper wiring at an airport tenant’s premises and work by an unlicensed electrician for the same tenant. The court, Sharon Tevis Finch, J., after a jury trial, entered judgment on a verdict in favor of the plaintiff. The defendants appealed by leave granted. The Court of Appeals held: 1. An employee who reports a violation of law or suspected violation of law by a third party, i.e., someone other than the employer or a fellow employee, is protected by the Whistleblowers’ Protection Act when, as in this case, the employee acts within the scope of employment and the reported violation or suspected violation affects the business of the employer. 2. The plaintiff, through his testimony and that of a former supervisor, established a causal link between the plaintiffs whistleblowing and his discharge. 3. The trial court did not abuse its discretion in refusing to admit evidence that the plaintiff had been convicted of a misdemeanor twenty-six years before trial. The defendant sought to introduce this evidence to establish that the plaintiff was fired for failing to disclose the conviction. However, the evidence is irrelevant and the defendants conceded that they learned of the conviction while the plaintiff was still their employee, but that they chose to take no action with regard to the matter. Affirmed. 1. Master and Servant — Whistleblowers’ Protection Act — Retaliatory Discharge — Prima Facie Case — Appeal. In order to establish a prima facie case of retaliatory discharge under the Whistleblowers’ Protection Act, a plaintiff must establish that the plaintiff was engaged in a protected activity as defined by the act, that the plaintiff was subsequently discharged, and that a causal connection existed between the protected activity and the discharge; the determination whether the evidence establishes a prima facie case as a matter of law is reviewed de novo on appeal (MCL 15.362; MSA 17.428[2]). 2. Master and Servant — Whistleblowers’ Protection Act — Third Parties. An employee who reports a violation of law or suspected violation of law by a third party is protected by the Whistleblowers’ Protection Act when the employee acts within the scope of employment and the reported violation or suspected violation affects the business of the employer (MCL 15.362; MSA 17.428[2]). Steven Fellows, for the plaintiff. Jennifer Granholm, Corporation Counsel, and Ellen E. Mason, Assistant Corporation Counsel, for the defendants. Before: Murphy, P.J., and Griffin and E. R. Post JJ. Circuit judge, sitting on the Court of Appeals by assignment. Griffin, J. In this whistleblower’s case, defendants appeal by leave granted a judgment in plaintiff’s favor entered following a jury trial. On appeal, defendants raise an issue regarding the breadth of § 2 of the Whistleblowers’ Protection Act (wpa), MCL 15.362; MSA 17.428(2). We affirm and hold, inter alia, that an employee who reports third-party violations of law or suspected violations of law is protected by the wpa when the employee acts within the scope of employment and the reported violation or suspected violation affects the business of the employer. i Plaintiff is a licensed electrician who was hired on April 9, 1990, by defendant Wayne County to work as a maintenance electrician at the Detroit Metropolitan Airport in Romulus, Michigan. At the outset, plaintiffs job was primarily that of an electrician. However, shortly after plaintiff began working at the airport, his supervisor, Jerald Wisusik, assigned electrical inspection duties to plaintiff. Plaintiff testified that it was explained to him that the airport needed an electrical inspector because some of the tenants of the airport were doing substandard electrical work that was going uninspected. In May 1990, Wisusik instructed plaintiff to order the stoppage of some construction work that was being performed without a license at a restaurant operating at the airport. While in the restaurant, plaintiff noticed that a high-wattage neon menu board was improperly wired. Plaintiff informed Wisusik that the improperly wired menu board was a potential fire hazard. When plaintiff and Wisusik returned to inspect the menu board, the electrical inspector for the City of Romulus, Joseph Watt, was at the restaurant. Plaintiff showed Watt the improper wiring. Watt ordered the restaurant to unplug the menu board. Watt and plaintiff walked across the aisle to a hotel, where they observed a workman performing electrical work in a newly constructed bar. After learning that the worker did not have an electrician’s license, Watt ordered the bar closed and all construction to temporarily cease. Both the restaurant and the bar were owned by the Host Company. Aside from the airlines, the Host Company was the largest tenant of the Detroit Metropolitan Aiiport. Two days later, plaintiff and Wisusik were called into the office of the airport’s operations director, defendant Daniel Kerber. During the meeting, defendant Kerber harshly reprimanded plaintiff for reporting the electrical violations to the City of Romulus inspector. According to plaintiff, Kerber said, “I don’t want any small town electrical inspector harassing any of my tenants. They can do as they please in their own space.” Kerber then ordered plaintiff to have no further contact with city inspectors. Approximately four months later, defendants terminated plaintiff’s employment. Plaintiff’s discharge occurred just two weeks before the end of his six-month probationary term. Plaintiff brought this action, claiming that his discharge violated the wpa because his termination was causally related to his reporting of “violations and suspected violations” to the City of Romulus electrical inspector. At trial, plaintiff testified that county officials told him that his reporting of the violations to the Romulus inspector was a reason for his firing. Defendants, however, claimed that plaintiff’s discharge was unrelated to the reporting. Defendants argued that plaintiff was terminated for failing to timely repair an electrical problem that affected air traffic and for being rude to an employee of Northwest Airlines. The jury found that plaintiff was discharged in violation of the wpa and awarded damages. n On appeal, defendants argue that the trial court abused its discretion in denying their motion for judgment notwithstanding the verdict (jnov) because plaintiff allegedly failed to show either the first or third element of a prima facie violation of the wpa. We disagree. In reviewing the trial court’s denial of jn’ov, we examine the testimony and all legitimate inferences that may be drawn therefrom in the light most favorable to the nonmoving party. Matras v Amoco Oil Co, 424 Mich 675, 681-682; 385 NW2d 586 (1986); Howard v Canteen Corp, 192 Mich App 427, 431; 481 NW2d 718 (1992). In Tyrna v Adamo, Inc, 159 Mich App 592, 601; 407 NW2d 47 (1987), this Court held that in order to establish a prima facie case under the wpa the plaintiff must establish (1) that plaintiff was engaged in protected activities as defined by the act, (2) that plaintiff was subsequently discharged, and (3) that a causal connection existed between the protected activity and the discharge. See also Chandler v Dowell Schlumberger, Inc, 214 Mich App 111, 114; 542 NW2d 310 (1995); Hopkins v City of Midland, 158 Mich App 361, 378; 404 NW2d 744 (1987). The determination whether the evidence established a prima facie case under the wpa is a question of law to be. determined de novo. Dudewicz v Norris Schmid, Inc, 192 Mich App 247, 254; 480 NW2d 612 (1991), aff’d in part and rev’d in part on different grounds 443 Mich 68; 503 NW2d 645 (1993). The dispositive issue presented is whether the wpa protects employees who, while acting in the scope of employment, report third-party violations or suspected violations of law that directly affect their employer’s business. See, e.g., Dudewicz, 443 Mich 74; People v Weiss, 191 Mich App 553, 559; 479 NW2d 30 (1991). In addressing this question, we are mindful that “[t]he fundamental purpose of any rule of statutory construction, of course, is to assist the court in discovering and giving effect to the intent of the Legislature.” In re Certified Question, 433 Mich 710, 722; 449 NW2d 660 (1989). Further, “[i]t is thus equally axiomatic that ‘the intention of the Legislature, when discovered, must prevail, any existing rule of construction to the contrary.’ ” Id., quoting Michigan Central R Co v Michigan, 148 Mich 151, 156; 111 NW 735 (1907). Finally, where reasonable minds can differ with regard to the meaning of a statute, the court should look to the objective of the statute and the harm it is designed to remedy and apply a reasonable construction that best accomplishes the purpose of the Legislature. Weiss, supra at 559. Defendants contend that the wpa protects only those employees who report violations committed by either their employer or fellow employees. However, no such limitation exists in either the text of the wpa or its legislative history. Section 2 of the wpa provides: An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action. [MCL 15.362; MSA 17.428(2).] As our Supreme Court observed in Dudewicz, supra at 74-75: A plain reading of this provision reveals that protection is not limited to employee reports of violations by employers. On its face, the provision only seems to apply to the discharge of an employee who “reports ... a violation or a suspected violation of a law . . . .” Accord Dudewicz, 192 Mich App 255; Tyma, supra at 599; Hopkins, supra at 377. The legislative analysis of the house bill that became the wpa is consistent with the Supreme Court’s reading of the broadly worded statute. Although the legislative analysis emphasizes acts of misconduct committed by government or large businesses, the analysis found no express intention to limit the protection of the WPA to circumstances where the reported violation of law was committed by a particular entity. House Legislative Analysis, HB 5088, 5089 (February 5, 1981). Instead, the analysis envisions protection for employees who do their “civic duty” and “volunteer their assistance to law enforcement authorities.” Id. Accordingly, when the text of the wpa is analyzed in conjunction with its legislative analysis, there is no express support for defendants’ proposed limitation on the scope of the statute. Nevertheless, defendants argue that our Supreme Court in Dudewicz, supra, limited the scope of the wpa to those situations where the reported violation pertains to the conduct of either an employer or fellow employees. We disagree. In Dudewicz, the Supreme Court held that the wpa protected an employee who reported a criminal assault by a fellow employee that occurred during working hours and arose out of a dispute over the proper handling of company business. Dudewicz, supra at 70. In reaching this conclusion, the Supreme Court addressed the defendant’s contention that the wpa only protects employees who report violations committed by their employers. In rejecting this argument and holding the wpa to be applicable, the Supreme Court emphasized that nothing in either the wpa itself or its legislative analysis limits protection only to those employees who report violations of law by their employer. On the contrary, the explicit language of the analysis and the broad scope of the statute strongly suggest that the wpa was intended to protect employees who report violations by either employers or fellow employees. [Id. at 76-77.] Contrary to defendants’ argument, the Dudewicz Court expressly reserved comment on the issue whether the wpa expended to other situations where the reported violation was unrelated to the employer or to the employee’s employment. Indeed, the Supreme Court stated that the facts presented in Dudewicz did not test the “outer limits of this rather broad statute.” Id. at 77. We also reject defendants’ contention that Dudewicz implicitly approved statements in Dickson v Oakland Univ, 171 Mich App 68; 429 NW2d 640 (1988), that arguably suggest that the scope of the WPA is limited to circumstances where an employee reports violations of law by the employer. To the contrary, our Supreme Court in Dudewicz was clear to state that the wpa contained no such limitation and that the language in Dickson had been “unfortunate,” incorrect, and “dicta.” Dudewicz, 443 Mich 76-77, n 4. Furthermore, defendants’ reliance on Dolan v Continental Airlines, 208 Mich App 316; 526 NW2d 922 (1995), is misplaced. The opinion in Dolan does not resolve the present issue. Further, the opinion was signed by only one judge. Accordingly, the Dolan opinion lacks precedential significance. Supreme Court Administrative Order No. 1994-4; People v Young, 212 Mich App 630, 637; 538 NW2d 456 (1995). Although the Supreme Court has yet to establish an outer boundary for the wpa, it has found it helpful to analyze the legislative intent of the enactment because “a strictly literal interpretation of the statute without an analysis of legislative intent arguably could lead to an interpretation that would bar discharge of an employee for reporting a crime by anyone under any circumstances.” Dudewicz, 443 Mich 77. Further, the Court in Dudewicz noted that “remedial statutes, such as the wpa, are to be liberally construed in favor of the persons intended to be benefited.” Id. at 77 (emphasis added). Thus, because our Supreme Court has implied that the Legislature may not have intended the wpa to be construed as broadly as the statutory language suggests, we proceed to determine whether extending the protection of the wpa to the present case is consistent -with the objectives of the wpa. The first judicial articulation of the legislative intent of the wpa was made by this Court in Hopkins, supra at 374. Later, in Chilingirian v City of Fraser, 194 Mich App 65, 68; 486 NW2d 347 (1992), remanded on different grounds 442 Mich 874 (1993), this Court summarized the Legislature’s intent as follows: The wpa seeks to protect the integrity of the law by removing barriers to employee efforts to report violations of the law. Hopkins [supra at 374]. Inherent in the WPA is a purpose to protect the public by protecting employees who report violations of laws and regulations. Id.; Chilingirian v City of Fraser, 182 Mich App 163, 165; 451 NW2d 541 (1989). See also Tyma, supra at 599-600. In Dudewicz, 443 Mich 75, the Supreme Court reviewed the legislative analysis of the wpa and drew the following, more restrictive conclusions about the Legislature’s objective in enacting the WPA: The analysis recognizes the problem the wpa was designed to alleviate as the inability to combat corruption or criminally irresponsible behavior in the conduct of government or large businesses. House Legislative Analysis, HB 5088, 5089 (February 5, 1981). The analysis goes on to say that “[t]he people best placed to observe and report violations are the employees of government and business, but employees are naturally reluctant to inform on an employer or a colleague.” Id. It appears that, at the time the bill was considered, the Legislature intended the protection to apply to employee reports of any and all violations of law by either employers or fellow employees. [Emphasis omitted.] The Supreme Court also noted that although the WPA provides no such express limitation, “traditional notions of whistleblowing” involve the violation of laws “closely connected with the employment setting.” Id. at 75. in In the present case, plaintiff was acting within the scope of his employment when he reported violations of law committed by a major tenant of his employer. Further, as evidenced by Kerber’s alleged statement that he did not want small town inspectors harassing his tenants, the reporting of the violations had an effect on the business of defendants. Plaintiff falls within the class of persons the wpa was intended to protect. Further, the harm is the type that the wpa was designed to remedy. Under these circumstances, we conclude that plaintiffs complaint states a cause of action under the WPA. We are convinced that an employee may be just as fearful of telling authorities about violations of law committed by an entity that has a direct financial effect on the business of his employer as the employee would be to report a violation of law committed by his employer. Under either circumstance, the employer may suffer financial harm or embarrassment and, hence, the employee may be reluctant to report the violation for fear of employer retaliation. To this extent, the legislative objective of encouraging employees to report illegal activities would be thwarted if the wpa were not applied. In addition, the employee who reports such third-party conduct may be in the best or only position to observe such wrongful conduct. The rationale for applying the wpa in such circumstances is as strong as in the situations where the employer itself is the perpetrator of the reported violation. The objectives of the wpa are furthered by affording plaintiff protection. Under the facts of the present case, the application of the wpa to plaintiff’s conduct is consistent with the language of the statute, its legislative history, and the objectives that the Legislature sought to achieve. Accordingly, we affirm the trial court’s denial of defendants’ motion for JNOV and hold that plaintiff is protected by the wpa. Consistent with the case-by-case approach of Dudewicz, we express no opinion regarding whether our holding is the outer limit of the wpa with respect to coverage for the reporting of third-party violations. IV Defendants farther contend that plaintiff failed to establish a causal link between plaintiffs whistleblowing and his discharge. Defendants’ argument in this regard is premised upon the fact that over four months elapsed between the alleged whistleblowing incident and plaintiff’s discharge. However, plaintiff testified that defendants told him that his reporting of the electrical violations to the city inspector was part of the reason he was terminated. Plaintiff’s testimony in this regard was corroborated by plaintiff’s immediate supervisor, who testified that he heard an airport official tell plaintiff that the whistleblowing incident constituted one of the reasons that plaintiff was discharged. When this evidence is viewed in a light most favorable to plaintiff, Matras, supra at 681-682; Howard, supra at 431, a rational trier of fact could find a causal connection between the whistleblowing and plaintiff’s discharge. v Finally, defendants assert that the trial court abused its discretion in refusing to admit evidence that plaintiff had been convicted of a misdemeanor twenty-six years before trial. Defendants argue that the evidence w

CHANDLER v DOWELL SCHLUMBERGER, INC Docket No. 166009. Submitted April 12, 1995, at Grand Rapids. Decided October 24, 1995, at 9:05 a.m. Leave to appeal sought. Joseph W. Chandler brought an action in the Midland Circuit Court against Dowell Schlumberger, Inc., alleging retaliatory discharge from employment in violation of the Whistleblowers’ Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq. The court, Paul J. Clulo, J., granted summary disposition for the defendant, ruling that the act affords no relief where discharge is based on the employer’s mistaken belief that the employee has reported a violation by the employer to a public authority. The plaintiff appealed. The Court of Appeals held: The Legislature, in enacting the Whistleblowers’ Protection Act, sought to protect the public from violations of laws, rules, and regulations and to protect those employees who exercise their civic duty in reporting such violations. The protection of employees who report violations by their employers serves to encourage reporting by those employees who might otherwise be fearful of the consequences of reporting. Consistent with the purposes behind the act, the Legislature did not provide protection under the act to employees discharged because of their employers’ mistaken belief that the employees reported violations to public authorities. Such employees are entitled only to those legal protections to which all other discharged employees in Michigan are entitled. Affirmed. D.E. Shelton, J., dissenting, stated that the protection of the Whistleblowers’ Protection Act extends to an employee whose discharge is based on' the employer’s mistaken belief that the employee has reported a violation and that denying such an employee the protections of the act serves to discourage the reporting of violations. The case should be reversed and remanded for trial. References Am Jur 2d, Wrongful Discharge §§ 55-72. Liability for retaliation against at-will employee for public complaints or efforts relating to health or safety. 75 ALR4th 13. Master and Servant — Whistleblowers’ Protection Act. The Whistleblowers’ Protection Act forbids an employer from discharging an employee on the basis that the employee has reported or is about to report the employer to a public authority for a violation or suspected violation of a law or regulation; the act affords no protection to an employee whose discharge is based on a mistaken belief by the employer that the employee has reported a violation (MCL 15.362; MSA 17.428[2]). R. Drummond Black; for the plaintiff. Riecker, Van Dam & Gannon, P.C. (by Lynn S. Looby), for the defendant. Before: Gribbs, P.J., and Markman and D. E. Shelton, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Markman, J. Plaintiff appeals from an opinion and order of the Midland Circuit Court granting summary disposition in favor of defendant. We affirm. Plaintiff was employed by defendant beginning in June 1989. In January 1992, a new regulation went into effect requiring that defendant obtain certification for vehicles transporting hazardous materials on public roads. Plaintiff complained to defendant’s agents regarding defendant’s inconsistent compliance with the regulation. However, plaintiff did not report the violation to any public authority. On April 6, 1992, defendant was cited by the Michigan Department of Transportation for violating the regulation as a result of an anonymous tip. Shortly thereafter, defendant terminated plaintiffs employment. On July 8, 1992, plaintiff filed a complaint alleging that defendant was liable under the Whistle-blowers’ Protection Act (wpa), MCL 15.361 et seq.; MSA 17.428(1) et seq. Defendant moved for summary disposition pursuant to MCR 2.116(C)(8) and (10), alleging that plaintiff had been dismissed because of economic necessity and that plaintiff could not recover under the wpa because he had not engaged in the protected activity of reporting or being about to report illegal conduct to a public authority. The trial court granted defendant’s motion pursuant to. MCR 2.116(C)(10), reasoning that because plaintiff had never reported a violation to a public authority, he had not engaged in protected activity and thus had failed to state a prima facie case under the wpa. Plaintiff argues that the wpa protects an employee who has been discharged because of an erroneous perception that the employee has reported a violation of law, regulations, or rules to a public body. We disagree. The starting point in every case involving construction of a statute is the language itself. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993). The wpa, at MCL 15.362; MSA 17.428(2), provides the following: An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action. This Court has stated that under the wpa a prima facie case of retaliatory discharge requires proof (1) that the plaintiff was engaged in protected activities as defined by the act, (2) that the plaintiff was subsequently discharged, and (3) that a causal connection existed between the protected activity and the discharge. Tyrna v Adamo, Inc, 159 Mich App 592, 601; 407 NW2d 47 (1987). The issue in this case involves the first and third requirements. The plaintiff did not report, nor does he argue that he was about to report, his employer’s violations to a public body. Thus, he was not "engaged in protected activities as defined by the act.” Because he was not so engaged, there also exists a lack of a causal connection between the discharge and "the protected activity.” Plaintiff claims, however, that he is entitled to protection under the wpa as a "perceived whistle-blower.” In support of his claim, plaintiff points to Sanchez v Lagoudakis, 440 Mich 496; 486 NW2d 657 (1992), in which the Michigan Supreme Court held that the Michigan Handicappers’ Civil Rights Act (mhcra) prohibited employer discrimination based on erroneous perception of membership in a protected category. The mhcra specifically provided a cause of action to employees who were subject to discrimination "because of a handicap.” MCL 37.1202(1); MSA 3.550(202X1); Sanchez, supra at 502. The Court held that the mhcra covered those érroneously perceived of as having a handicap, reasoning: The focus of the act was the basis of the employer’s conduct — the employer’s belief or intent — and not the employee’s condition. If the employer acts on a belief that the employee has a handicap, and subsequently discharges or otherwise discriminates against the employee on the basis of that belief, it is inconsequential whether the employee actually has the handicap because, in either hypothesis, the employer has undertaken the kind of discriminatory action that the act prohibits. Although not applicable to the case before it, the Supreme Court noted that in 1990, the Legislature amended the definition of "handicap” to include "[b]eing regarded as having” a handicap. Id. at 506. Plaintiff urges this Court to follow the rule established in Sanchez to afford protection to perceived whistleblowers. Plaintiff further points to Polk v Yellow Freight System, Inc, 801 F2d 190 (CA 6, 1986), in support of his claim. In Polk, the court concluded that a visit to the Michigan Civil Rights Commission was a protected activity under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. As. the court noted, the act "prohibits discrimination or retaliation against a' person 'because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act.’ [MCL 37.2701(a); MSA 3.548(701)(a)].” Id. at 197. The court, citing Gifford v Atchinson, T & S F R Co, 685 F2d 1149, 1156, n 3 (CA 9, 1982), found no legal distinction between filing a charge and threatening to file a charge. Id. at 200. The court then reasoned: We see no reason to distinguish between a visit to a government agency to inquire about filing a charge and a threat to file a charge. In both instances, the focus is not on whether the employee intends to follow through with, filing the charge, but rather on whether the employer’s decision to discharge was motivated by an improper desire to retaliate against an employee for pursuing rights granted by the Act. [Polk, supra at 200.] The issue whether the wpa affords protection to a perceived whistleblower has not been examined in Michigan. However, the issue of an employer’s knowledge or belief under the wpa was addressed in Kaufman & Payton, PC v Nikkila, 200 Mich App 250; 503 NW2d 728 (1993). In Kaufman & Payton, the counterplaintiff was employed by the law firm of Kaufman & Payton, P.C. Id. at 252. After becoming concerned with the legality of billing procedures that she had executed, she consulted outside counsel who subsequently sent letters to the firm questioning its billing practices and addressing the counterplaintiff’s future duties. Id. at 252-253. The counterplaintiff subsequently resigned. Id. at 253. Thereafter, she sent a request for investigation to the Attorney Grievance Commission and followed up with a formal complaint. Id. The counterplaintiff later alleged in her countercomplaint against the employer that she had been constructively discharged in violation of the wpa. Id. at 253-254. This Court found that the counterplaintiff’s failure to produce evidence that the firm believed, before she resigned, that the counterplaintiff would report her complaints to responsible agencies was fatal to her cause of action under the wpa. Id. at 254-258. A majority of the panel explained: An employer’s subjective fear of retaliation will not substitute for some form of notice of threatened action. Instead, an employer is entitled to objective notice of a report or a threat to report by the whistleblower. Neither Kaufman’s nor the firm’s knowledge that Nikkila [the counterpl’aintiff] had retained counsel, together with other unspecified evidence, yields an inference that the firm believed before she resigned that she would report her complaints to responsible agencies. [Id. at 257-258. Emphasis in original.] One could conceivably argue, under Kaufman & Payton, that plaintiff’s dismissal, which may have been based on a "fear” or "perception” of whistle-blowing, is not covered under the wpa. However, the problem with the counterplaintiff’s case in Kaufman & Payton was the lack of a causal connection between the alleged constructive discharge and protected activity under the wpa due to the employer’s apparent lack of belief or knowledge of any protected activity. In other words, if the employer did not believe or know of the employee’s protected activity, it would be difficult to imagine how that could have been the basis for discharge. In contrast, in the instant case, assuming plaintiff was discharged because of defendant’s erroneous perception of whistleblowing by plaintiff, defendant had the belief or knowledge of whistle-blowing. In fact, defendant in this case admitted that whistleblowing had taken place, the erroneous perception only being that the individual who engaged in the activity was the plaintiff. We recognize, of course, that a causal connection is nevertheless still lacking between the discharge and actual protected activity by the plaintiff. However, defendant’s motivation for the discharge here would be the same as an employer who discharges an employee actually engaged in protected activity. The question thus becomes whether that motivation is enough to provide protection under the wpa to the terminated employee who was not engaged in protected activity. In construing the wpa, plaintiff, citing Sanchez and Polk, would have us focus, not on the action of the employee, but instead on the motive or intent of the employer. In Sanchez and Polk, the Michigan Supreme Court and the Sixth Circuit Court of Appeals, respectively, both expressed the necessity of focusing on the motive or intent of the employer in the context of legislative acts seeking to prevent discrimination. However, we find Polk to be clearly distinguishable from the instant case. In Polk, the Sixth Circuit Court of Appeals noted its focus on employer motive in the context of a case in which the employee had in fact taken some action in an effort to resist discrimination. The court concluded that the employee was pursuing rights protected by the Civil Rights Act and was discharged as a result. In the instant case, however, we do not address whether plaintiff’s actions constitute protected activity under the wpa. It is undisputed that plaintiff neither reported nor was about to report defendant’s violations to a public body. We instead address whether, despite plaintiffs inaction, he is nevertheless entitled to protection under the wpa. In Sanchez, the employee was discharged because of an erroneous perception that she was handicapped. Thus, assuming that plaintiff was discharged because of an erroneous perception that he was a whistleblower, Sanchez provides considerable guidance. In deciding whether the employee was entitled to protection under the mhcra, the Supreme Court examined the language and purpose of the act. The Court concluded that the act focused on the employer’s belief or intent— the process of discrimination — and that denying protection to those erroneously perceived as having a handicap would be inconsistent with the mhcra’s intent of preventing discrimination based on handicap. Sanchez, supra at 502, 502-503, n 16. In deciding whether plaintiff is entitled to protection under the wpa, we similarly examine the language and purpose of the act. The wpa provides that an employer shall not discharge an employee because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body .... [MCL 15.362; MSA 17.428(2). Emphasis added.] In contrast with this section of the wpa is § 202(1) (b) of the mhcra, MCL 37.1202(l)(b); MSA 3.550(202)(l)(b), applied in Sanchez that protects against discharge "because of a handicap that is unrelated to the individual’s ability to perform the duties of a particular job or position.” Sanchez, supra at 502. Unlike the mhcra, which protects against discharge or other discrimination on the basis of inherent status, the wpa protects against discharge or other discrimination on the basis of certain concrete actions taken by the employee. However, this difference alone, while not irrelevant, does not appear to require disparate application of the two acts. The importance and effect of this distinction becomes more apparent when viewed in light of the respective purposes of the two acts. The purpose of the mhcra is to prevent discrimination — a process of thinking and conduct by the employer — based on handicap. As the Supreme Court reasoned, it would be inconsistent with that purpose to deny protection to those who are the victims of this process even though the perception is erroneous that they are handicapped. The harm on which the Legislature focused is the same whether the object of the discrimination was handicapped or not. We therefore consider whether a similar inconsistency would result if protection were denied to those discriminated against because of the erroneous perception that they are whistleblowers: The [legislative] analysis [of the wpa] recognizes the problem the wpa was designed to alleviate as the inability to combat corruption or criminally irresponsible behavior in the conduct of government or large businesses. House Legislative Analysis, HB 5088, 5089 (February 5, 1989). The analysis goes on to say that "[t]he people best placed to observe and report violations are the employees of government and business, but employees are naturally reluctant to inform on an employer or a colleague.” [Dudewicz v Norris Schmid, Inc, 443 Mich 68, 75; 503 NW2d 645 (1993). Emphasis omitted.] The wpa "seeks to protect the integrity of the law by removing barriers to employee efforts to report violations of the law” and also "to protect the public by protecting employees who report violations of laws and regulations.” Tyrna, supra at 599-600, citing Hopkins v City of Midland, 158 Mich App 361, 374; 404 NW2d 744 (1987). Violations of laws, rules, and regulations by employers do not just harm their employees but, by definition, also harm the interest of the public at large. However, the public is obviously not as likely to discover these violations as are employees. Statutory protection of the employee who reports a violation serves to encourage reporting by an employee who might otherwise be fearful of the consequences. As a result, the public is better served. In contrast, we do not believe that protection of employees who either are unable or unwilling to report violations of laws, rules, or regulations significantly encourages reporting. In fact, it is arguable that such protection under the wpa could discourage actual reporting where employees are cognizant that they will be protected absent any invocation of their civic duty as long as the employer erroneously believes the employee has engaged in such activity. Plaintiff claims that a primary purpose of the wpa is to discourage employers from retaliation against employees who have reported or are about to report legal violations to a public body. He thus argues that denying him protection would be inconsistent with that goal. We acknowledge that penalizing and discouraging employers are inevitable effects, and presumably inherent in the purpose, of the wpa. Certainly if we look at this as the wpa’s exclusive — or even principal — purpose, we could conclude, as the Supreme Court did in Sanchez, that protection to a perceived whistleblower is provided under the act. However, in doing so, and focusing principally upon the employer’s motive or intent under the wpa, we render it "inconsequential,” Sanchez, supra, whether the employee actually reports or is about to report a legal violation to a public body. Accordingly, we lose sight of the fact that plaintiff has not served or attempted to serve any public interest by reporting the very harm against which the wpa ultimately seeks to protect. The wpa specifically seeks to protect the public from violation of laws, regulations, and rules. How then can we conclude that the employee’s actions, which are so indispensable in facilitating this goal, are "inconsequential”? Unlike an inherent status such as a handicap, over which an employee has no control, an employee has full control over his actions. The wpa seeks to encourage those actions that assist in the protection of the public by in turn protecting the employee. Indeed, this is the only rationale for the wpa. Unlike the mhcra, whose purpose is to prevent discrimination per se, the wpa is designed to prevent discrimination but only as a means to a particular public policy end — an end to which plaintiff has not contributed in any way. In the instant case, plaintiff has not comported himself any differently than any other employee who did not engage in whistleblowing, the only difference b

KIRK C. AUNE v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, DR. STUART BONDURANT, WILLIAM D. MATTERN, and EDWIN CAPEL No. COA94-1350 (Filed 17 October 1995) 1. Public Officers and Employees § 58 (NCI4th)— whistle-blowing claim — nonreappointment unrelated to whistle-blowing — summary judgment for defendants proper The evidence was sufficient to support summary judgment for defendants on plaintiffs whistleblower claim where plaintiff was not reappointed as an associate dean at a state university; defendants presented undisputed evidence that plaintiffs performance was scrutinized in compliance with university policy; defendants’ evidence specifically revealed that the final committee review, which recommended that plaintiff not be reappointed, was conducted fairly and without bias; the evidence was that there were questions regarding the adequacy of plaintiffs performance, of which plaintiff had knowledge, even before his whistleblowing to defendants; defendants’ evidence revealed that plaintiff’s nonappointment was based on his inability to collaborate with others; and plaintiff failed to show that his reports of conflicts of interest and possible misappropriation of state resources were a substantial factor in the nonrenewal of his appointment N.C.G.S. § 126-85. Am Jur 2d, Public Officers and Employees §§ 236-239, 261, 262, 288. Pre-emption by workers’ compensation statute of employee’s remedy under state “whistleblower” statute. 20 ALR5th 677. Pre-emption of wrongful discharge cause of action by civil rights laws. 21 ALR5th 1. 2. State § 23 (NCI4th)— emotional distress and misrepresentation — claims barred by sovereign immunity Summary judgment for defendant state university administrators on plaintiff’s emotional distress and misrepresentation claims was appropriate based on defendants’ claims of sovereign immunity, since allegations in the complaint involved acts of defendants performed within the bounds of their official duties and in their capacities as representatives of the state. Am Jur 2d, Damages §§ 41, 251-262; Municipal, County, School and State Tort Liability § 70; States, Territories and Dependencies §§ 104-111. Appeal by plaintiff from order entered 26 September 1994 in Orange County Superior Court by Judge Anthony M. Brannon. Heard in the Court of Appeals 12 September 1995. McSurely & Dorosin, by Mark Dorosin and Alan McSurely, and Levine Stewart & Davis, by John T. Stewart, for plaintiff-appellant. Attorney General Michael F. Easley, by Special Deputy Attorney General Thomas J. Ziko, for defendant-appellees. GREENE, Judge. Kirk C. Aune (plaintiff) appeals from the trial court’s entry of summary judgment in favor of the University of North Carolina at Chapel Hill (University), Dr. Stuart Bondurant (Bondurant), William D. Mattern (Mattern), and Edwin Capel (Capel) (collectively defendants) on plaintiffs “Whistleblower,” intentional and/or negligent infliction of emotional distress and misrepresentation claims. Oh 7 July 1993, plaintiff filed this action against defendants, alleging that in 1991, while he was employed by the University School of Medicine as the Associate Dean for Information Systems and Director of the Office of Information Systems (OIS), he reported to Mattern (Associate Dean of Academic Affairs) and Bondurant (Dean of the School of Medicine) “the existence of an apparent conflict of interest among some employees of the School of Medicine.” In 1992 he reported the “potential conflicts of interest as well as the possible appropriation of state resources by some employees of the School of Medicine for their own private commercial gain” to Capel (University’s internal auditor). He further alleges that “the decision to terminate [his] employment. . . was made in retaliation for the aforesaid reports” and in violation of N.C. Gen. Stat. §§ 126-84, -85. Plaintiff also alleged that the defendants “acted willfully, wantonly and intentionally and/or were negligent in their handling of the performance review and [his] attempt to report suspected misbehavior and conflicts of interest” and that he suffered severe emotional distress as a consequence. The plaintiff finally alleged that the University misrepresented “the fairness with which decisions about his continued employment would be made,” that Capel and the University misrepresented that “an appropriate investigation would be conducted” into his 18 June 1992 report and that Bondurant misrepresented “that there would be no negative repercussions from making a report of suspected misappropriation of state resources.” Plaintiffs suit is captioned against Bondurant, Mattern and Capel in both their official and individual capacities. In support of the defendants’ motion for summary judgment they presented an affidavit by Bondurant in which he recalled only one time, “in early 1992, or possibly 1991,” that plaintiff asserted the possibility of a conflict of interest among employees of the School of Medicine. After Bondurant had Mattern conduct an investigation, which revealed no conflict, Bondurant told plaintiff, who was not satisfied with the outcome, that he could report his concerns to Capel. Bondurant heard nothing else of plaintiffs complaints and therefore “considered the matter to be resolved.” Furthermore, Bondurant did not know of plaintiffs reports to Capel until after the nonrenewal of plaintiffs appointment. In 1992, Bondurant appointed a committee to review plaintiffs performance. Bondurant further states, in his affidavit, that he did not ask Mattern to influence the 1992 review committee’s decision, although he did request that Mattern discuss candidates to serve as committee members. Dr. David Ontjes (Ontjes), who served as chair of the 1992 review committee, and another committee member interviewed Mattern, as a witness, before the committee formally convened to hear from witnesses and write its report. During his interview, Mattern expressed his opinion that plaintiff should not be reappointed. Although Ontjes questioned Bondurant regarding the necessity of a review after hearing Mattern’s opinion, Bondurant “assured [Ontjes] that a review was quite necessary, and that [he] wanted the committee to conduct an impartial and thorough examination of [plaintiff’s] leadership of OIS, on the basis of which [Bondurant] would then make a decision.” Bondurant stressed that Mattern’s opinion was just one person’s and that the committee should consider all sources before making a recommendation. Bondurant gave no indications of his personal views regarding plaintiff to the committee and asked for a thorough and objective review. The 1992 review committee issued a report on 22 April 1993 and “strongly advise[d] that [plaintiff] not be reappointed.” In support of its recommendation it determined that plaintiff’s style of interaction had decreased his effectiveness, citing specifically the perception that he was rigid and uncompromising and his failure to provide a functional long-term plan or to address the microcomputer evolution. Bondurant “decided to accept the [c]ommitte’s recommendation” and not reappoint the plaintiff. In Mattem’s affidavit in support of the motion, he stated that he only remembers a general statement by plaintiff regarding the conflict of interest charge in the fall of 1991. After plaintiffs mention of a potential problem, Mattem carefully questioned the faculty member involved and was satisfied by the faculty member’s explanation that there was no conflict of interest. Mattem reported his satisfaction to plaintiff. Plaintiff never mentioned that conflict issue again. Plaintiff also brought forth a potential conflict of interest held by a programmer, regarding a previous dual employment contract held by the programmer. When Mattern investigated, he determined that the programmer was no longer working on the project which would have given rise to the conflict of interest. Furthermore, Mattern was only limitedly involved in plaintiff’s 1992 review. Mattern worked to appoint the committee members, but members to whom plaintiff objected were removed from the committee and the final committee contained no member to which plaintiff did not agree. Mattem also submitted a list of names to the committee of people they might contact, “specifically omitt[ing] . . . people whose views [he] thought were uniformly negative.” The undisputed evidence also reveals that the committee had numerous sources from which to collect witnesses, including an open request to anyone interested in the hearing to testify either for or against plaintiff’s reappointment. Mattem’s only other involvement with the review was his testimony as a witness. Furthermore, Mattern did not know of plaintiff’s reports to Capel. Defendants also presented affidavits from members of the 1992 review committee. Each member gave specific facts establishing the unbiased nature of plaintiff’s 1992 review. All stated their opinion that the committee conducted a fair, unbiased review of plaintiff’s performance, and none had any preconceived notions regarding plaintiffs reappointment. Additionally, the administrative assistant who staffed the 1992 review committee submitted an affidavit stating that the review was ordinary and conducted as others at the University had been conducted. In response to defendants’ evidence, plaintiff presented an affidavit containing the specific facts relating to his reports to Bondurant, Mattern and Capel. Plaintiff had earlier stated in his complaint his own belief that his appointment was not renewed because of his reports. The plaintiff also presented an affidavit by John Gullo (Gullo), a former OIS employee, which included his statements that Dr. James Wrenn “told top level computer people in the Hospital that [plaintiff] was ‘going to be cut down to size’ and they didn’t have to worry about [plaintiff’s] OIS.” Gullo also saw a budget request by plaintiff, on which Bondurant’s “main administrator” had commented “I don’t think its going to help.” The issues are whether (I) the evidence supports summary judgment for the defendants on the “Whistleblower” claim; and (II) Bondurant, Mattern and Capel have been sued only in their official capacity, rendering them immune from plaintiff’s claims for emotional distress and misrepresentation. I North Carolina General Statute § 126-85, known as the “Whistleblower” Act (the Act) protects State employees who make reports of certain activities described in section 126-84 from retaliation by heads of “any State department, agency, or institution” or retaliation by any other State employee “exercising supervisory authority” over the employee. N.C.G.S. § 126-85 (1993). The Act is violated if the report is a substantial causative factor in any “discharge,” threat or discrimination “regarding the State employee’s compensation, terms, conditions, location, or privileges of employment.” Id.; Kennedy v. Guilford Tech. Community College, 115 N.C. App. 581, 584, 448 S.E.2d 280, 282 (1994); see Brooks v. Stroh Brewery Co., 95 N.C. App. 226, 230, 382 S.E.2d 874, 878 (applying substantial factor test to retaliatory discharge claim under Occupational Safety and Health Act), disc. rev. denied, 325 N.C. 704, 388 S.E.2d 449 (1989); see also Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 484 (1977) (retaliation claim based on first and fourteenth amendments requires proof that protected conduct was a “substantial or motivating factor” in adverse action). Upon a showing of retaliation the employee is entitled to “damages, an injunction, or other remedies.” N.C.G.S. § 126-86 (1993); Minneman v. Martin, 114 N.C. App. 616, 618-19, 442 S.E.2d 564, 566 (1994). In the context of summary judgment in this type of action, once a defendant, moving for summary judgment, presents evidence that the adverse employment action is based' on a legitimate non-retaliatory motive, the burden shifts to the plaintiff to present evidence, raising a genuine issue of fact, that his actions under the Act were a substantial causative factor in the adverse employment action, see Taylor v. Taylor Prods., Inc., 105 N.C. App. 620, 625, 414 S.E.2d 568, 572-73 (1992) (discussing burdens of parties in summary judgment hearing), or provide an excuse for not doing so. N.C.G.S. § 1A-1, Rule 56(f) (1990). In determining whether there are any genuine issues of material fact, the trial court must view the evidence in the light most favorable to the plaintiff and resolve all conflicts in plaintiff’s favor, giving plaintiff all reasonable inferences. Broyhill v. Aycock & Spence, 102 N.C. App. 382, 389, 402 S.E.2d 167, 172, disc. rev. denied, 329 N.C. 266, 407 S.E.2d 831 (1991). A genuine issue of material fact exists if plaintiff’s evidence is substantial. Martin v. Ray Lackey Enters., 100 N.C. App. 349, 353, 396 S.E.2d 327, 330 (1990). In support of their motion for summary judgment, defendants argue that the nonrenewal of plaintiff’s appointment was not a result of his reports regarding any conflicts of interest or the possible misappropriation of State resources and instead was based on legitimate non-retaliatory reasons. We agree that the defendants’ evidence supports their argument. In support of their argument, defendants presented the undisputed evidence that plaintiff’s performance was scrutinized in compliance with University policy. Defendant’s evidence also specifically reveals that the final committee review, which recommended that plaintiff not be reappointed, was conducted fairly and without bias. Moreover, the evidence is that there were questions regarding the adequacy of plaintiff’s performance, of which plaintiff had knowledge, even before his reports to Bondurant and Mattern. Finally, the evidence reveals the nonappointment was based on the plaintiff’s inability to “collaborate with others.” In response to defendants’ motion, plaintiff argues that the 1992 review committee was biased by Bondurant and Mattern and that the reasons cited by defendants for the nonrenewal of plaintiff’s appointment are pretextual. Plaintiff’s complaint contains his own belief that his appointment was not renewed because of his reports. Other than the facts relating to the reports made by plaintiff to Bondurant, Mattern and Capel, which are set forth in his affidavit, plaintiff brings forward an affidavit containing a statement by Gullo that a former student stated that plaintiff would “be cut down to size” and that hospital computer employees “didn’t have to worry about [plaintiff’s] OIS,” and that Bondurant’s administrator commented that plaintiff’s budget request would not help. Even assuming that these statements would be admissible at trial, Taylor, 105 N.C. App. at 625, 414 S.E.2d at 572-73 (evidence used to meet a party’s burden at summary judgment must be admissible at trial), these statements do not raise a genuine issue of material fact with regard to whether the plaintiffs reports were a substantial factor in the nonrenewal of his contract, even viewing all the other evidence in plaintiffs favor and giving him all reasonable inferences. The evidence is simply too speculative to support a finding that the plaintiffs nonrenewal was in any way related to the report. Plaintiff also argues that even if the reasons that defendants give for not renewing his appointment are legitimate, the defendants also retaliated against plaintiff by “undercutting” his authority, “stonewalling” the promised investigation, “setting up oppositional centers of power,” and “creating a self-fulfilling review process.” Without determining whether these acts “otherwise discriminate” against plaintiff within the meaning of the statute, we reject this argument because these acts of retaliation were not alleged in plaintiffs complaint. Truesdale v. University of North Carolina, 91 N.C. App. 186, 190, 371 S.E.2d 503, 506 (1988) (plaintiffs case at summary judgment must be based on allegations in complaint), disc. rev. denied, 323 N.C. 706, 377 S.E.2d 229, cert. denied, 493 U.S. 808, 107 L. Ed. 2d 19 (1989). For an additional reason, summary judgment for Capel was correct. This record reveals that he had no supervisory authority over plaintiff and was not the head of any State department, agency or institution. See N.C.G.S. § 126-85(a); Taylor, 105 N.C. App. at 625, 414 S.E.2d at 572 (summary judgment appropriate where an essential element of plaintiffs case is lacking). II Defendants argue that summary judgment for them on the emotional distress and misrepresentation claims was also appropriate because they are protected from these claims by sovereign immunity. We agree. A governmental entity and its officers or employees when sued in their official capacity are immune from suits based on tort claims, unless there has been some waiver. Taylor v. Ashburn, 112 N.C. App. 604, 607, 436 S.E.2d 276, 278-79 (1993), disc. rev. denied, 336 N.C. 77, 445 S.E.2d 46 (1994). In determining whether a plaintiff has brought an action against a defendant in his official or individual capacity, it is important to consider both the “nature of the conduct giving rise to the action” and the “nature of the relief sought.” 1 Shepard’s Editorial Staff, Civil Actions Against State and Local Government, Its Divisions, Agencies and Officers § 1.16 (2d ed. 1992) [hereinafter Civil Actions]; see Taylor, 112 N.C. App. at 607-08, 436 S.E.2d at 279. The nature of the conduct determines in what capacity one can be sued, General Elec. Co. v. Turner, 275 N.C. 493, 498, 168 S.E.2d 385, 389 (1969), and the nature of the relief sought reveals how a defendant has been sued. Civil Actions §§ 1.17-.18. The designations made in the caption of the complaint are not determinative. Taylor, 112 N.C. App. at 607, 436 S.E.2d at 279. In this case the allegations in the complaint with respect to the tort claims involve acts of the defendants performed within the bounds of their official duties and in their capacities as representatives of the State. Therefore the individual defendants can only be sued in their official capacity and as such share the governmental immunity enjoyed by the University, an agency of the State. See Jones v. Pitt County Memorial Hosp., 104 N.C. App. 613, 617, 410 S.E.2d 513, 515 (1991) (all tort claims against UNC and its constituent institutions must be brought before the Industrial Commission). This immunity supports the summary judgment on these claims. See Dickens v. Puryear, 302 N.C. 437, 453, 276 S.E.2d 325, 335 (1981) (summary judgment appropriate where plaintiff cannot surmount defendant’s affirmative defense). Affirmed. Judges JOHNSON and SMITH concur.

DOLAN v CONTINENTAL AIRLINES Docket No. 149512. Submitted April 12, 1994, at Detroit. Decided January 17, 1995, at 9:15 a.m. Leave to appeal sought. Sue Ann Dolan brought an action in the Wayne Circuit Court against Continental Airlines, alleging violation of the Whistle-blowers’ Protection Act (wpa), MCL 15.361 et seq.; MSA 17.428(1) et seq., breach of contract, and a public policy tort claim as a result of the termination of the plaintiff’s employment with the defendant after she, without the employer’s permission, allegedly contacted the United States Drug Enforcement Administration with information regarding suspected drug traffickers and terrorists after her supervisor posted a notice requiring all employees first to receive permission to make such contacts. The court, William J. Giovan, J., granted the defendant’s motions to dismiss the claims. The plaintiff appealed. The Court of Appeals held: The circuit court’s grant of the defendant’s motions to dismiss the plaintiff’s claims is affirmed. Taylor, J., in an opinion with which R. D. Gotham, J., concurred in the result only, stated: 1. In order for the wpa to apply, the violation or suspected violation must be committed in the course of doing business. The wpa does not apply to this case because the failure to report or to be allowed to report suspected drug traffickers or terrorists is not itself a violation of the law and the defendant’s refusal to allow employees to report to the dea independently the information that the plaintiff sought to report did not constitute criminally irresponsible behavior on the part of the defendant. 2. The plaintiff’s public policy tort claim is not preempted by the wpa. However, the plaintiff did not state a valid public policy tort claim. 3. The trial court properly dismissed the breach of contract claim. The plaintiff was an at-will employee with no legitimate expectation of termination only for just cause. Shepherd, P.J., did not participate. Cunningham & Associates (by Douglas C. Cunningham), for the plaintiff. Miller, Canñeld, Paddock & Stone (by Leonard D. Givens and Megan P. Norris), for the defendant. Before: Shepherd, P.J., and Taylor and R. D. Gotham, JJ. Circuit judge, sitting on the Court of Appeals by assignment. Taylor, J. Plaintiff appeals as of right a circuit court order granting defendant’s renewed motion to dismiss plaintiff’s first amended complaint. We affirm. Plaintiff worked for defendant as an agent in its Capitol City Airport hub. In early 1991, defendant informed plaintiff and her coemployees to be aware of persons purchasing tickets who fit certain "profiles” related to drug trafficking or terrorist activities. At the time, there were increased concerns about security measures because of the Persian Gulf Crisis. Relying on these profiles, on two separate occasions plaintiff reported persons to airport security, resulting in the arrest of these individuals. The United States Drug Enforcement Administration (dea) advised plaintiff that because of her tips she would receive a monetary reward. Because of concerns about overzealous reporting and the,unnecessary embarrassment of customers, plaintiff’s supervisor, Gordy Sullivan, posted a notice directing defendant’s employees not to call the dea without first clearing it with him. After the notice was posted, a dispute developed regarding whether plaintiff directly contacted the dea. She asserted that she did not, or, if she did, it was about the reward money and not in violation of Sullivan’s notice. Plaintiff’s employment with defendant was then terminated. Plaintiff filed her original complaint asserting violation of the Whistleblowers’ Protection Act (wpa), MCL 15.361 et seq.; MSA 17.428(1) et seq., and breach of contract. The circuit court granted defendant’s motion to dismiss the wpa claim, but granted plaintiff leave to amend her complaint in order to add a public policy tort claim. After plaintiff filed her amended complaint, defendant filed a renewed motion to dismiss both the breach of contract claim and the public policy tort claim. At that time, plaintiff also filed a motion requesting relief from the court’s earlier order dismissing her wpa claim. The court consolidated these matters, granted defendant’s motion to dismiss the breach of contract and public policy tort claims, and denied plaintiff’s motion for relief from the court’s original order that dismissed her wpa claim. Plaintiff argues that the trial court erred in dismissing her wpa claim because she has stated a prima facie case under the wpa. To state a prima facie claim under the wpa, a plaintiff must establish (1) that plaintiff was engaged in protected activities as defined by the act, (2) that plaintiff was subsequently discharged, and (3) that a causal connection existed between the protected activity and the discharge. [Tyrna v Adamo, Inc, 159 Mich App 592, 601; 407 NW2d 47 (1987).] Plaintiif asserts that, even after defendant’s notice, any telephone call to the dea to report profile information on customers constituted protected activity. The fundamental question raised in this case is whether the wpa was intended to protect employees who report customers meeting a profile of terrorists or drug traffickers. That is, third parties whose violations, if any, have no connection to the business. In Dudewicz v Norris Schmid, Inc, 443 Mich 68; 503 NW2d 645 (1993), the Supreme Court held that the wpa was intended to protect employees who report violations of law arising out of company business regardless of whether the criminal actor is an employer or employee. However, the Court noted that its holding did not begin to "test the outer limits of this rather broad statute.” Id. at 77. The case before us does test the outer limits of wpa coverage. In Dudewicz, the plaintiff filed assault and battery charges against a fellow employee. The employer told the plaintiff to drop the charges and the plaintiffs employment was terminated when he refused. In concluding that the wpa afforded the plaintiff protection, the Supreme Court explained that the Legislature intended the act to protect "employees who report violations of law by either their employers or fellow employees.” Id. at 75. With regard to whether the wpa extends coverage to employees who report violations by third parties, the Court suggestively stated that "a strictly literal interpretation of the statute without an analysis of legislative intent arguably could lead to an interpretation that would bar discharge of an employee for reporting a crime by anyone under any circumstances.” Id. at 77. Yet, because it was possible to do so, the Supreme Court resolved Dudewicz without addressing the outer limits of the wpa’s reach. In her dissent in Dudewicz, Justice Boyle indicated that she agreed with the majority that the purpose of the act is "both to encourage employees to assist in law enforcement and to protect those employees who engage in whistleblowing activities.” Id. at 83 (Boyle, J., dissenting). However, she continued by indicating that this observation [of the majority] fails to take account of a significant focus of the statute noted in the bill analyses. A whistleblowing employee alerts the public to the employer’s, or a co-worker’s, "corruption or criminally irresponsible behavior in the conduct of government or large business.” [Id] She summarized, saying: In other words, where the conduct of business itself violates a law, statute, or regulation, an employee’s report of that illegal conduct is protected activity. [Id.] In Justice Boyle’s view, when the employer in Dudewicz fired the plaintiff because he refused to drop the assault and battery charge against a coemployee, the plaintiff was not reporting illegal conduct on the part of the business, and thus, he should have had no wpa protection. I believe that the majority, had it gone that far in its analysis, would have agreed with Justice Boyle’s elaboration of the wpa’s focus if not her ultimate conclusion. My position is supported by the Dudewicz majority’s conclusion that states: "The wpa applies to an employee who reports a violation of a law arising out of a dispute over the handling of company business and occurring. during business hours.” Id. at 80. Had the Dudewicz majority utilized Justice Boyle’s approach, I believe it would have found that the defendant, by discharging the plaintiff for reporting criminal activity, was placing the business in the posture of being an accessory after the fact to the assaultive behavior of the assaulting employee. In doing so, the business was acting in a criminally irresponsible manner. Thus, in order for the wpa to apply, the violation or suspected violation must be committed in the course of doing business. In this case, plaintiff claims that she was discharged for reporting third parties who met a profile that would have placed those individuals in a pool of potential criminal actors. Plaintiff does not assert that her failure to make such a report, or to be allowed to make one, is itself a violation of law. Accordingly, defendant’s refusal to allow employees to report independently profile information did not constitute criminally irresponsible behavior on the part of the business, and thus, the wpa does not apply. Plaintiff also argues that the trial court erred in dismissing her public policy tort claim. A wpa claim and a public policy tort claim are mutually exclusive. Shuttleworth v Riverside Osteopathic Hosp, 191 Mich App 25; 477 NW2d 453 (1991). As the Court said in Dudewicz, supra at 80: A public policy claim is sustainable, .then, only where there also is not an applicable statutory prohibition against discharge in retaliation for the conduct at issue. As a result, because the wpa provides relief to Dudewicz for reporting his fellow employee’s illegal activity, his public policy claim is not sustainable. Given that the wpa affords no protection under the circumstances, plaintiff’s public policy tort claim is not preempted by the wpa. It does not necessarily follow, however, that plaintiff has a viable public policy tort claim. Plaintiff argues that defendant terminated her employment because it believed she telephoned the dea regarding persons meeting profiles of suspected drug traffickers and terrorists. Taking this factual allegation as true, Michigan Ins Repair Co, Inc v Manufacturers Natl Bank of Detroit, 194 Mich App 668, 673; 487 NW2d 517 (1992), plaintiff has failed to state a valid public policy tort claim. The Supreme Court, in Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 695; 316 NW2d 710 (1982), has recognized three situations in which the grounds for discharge are so contrary to public policy as to be actionable even when the employment is at will. First, when the employee is discharged in violation of an explicit legislative statement prohibiting discharge of employees who act in accordance with a statutory right or duty. Second, when the employee is discharged for the failure or refusal to violate the law in the course of employment. Third, when the employee is discharged for exercising a right conferred by a well-established legislative enactment. Id. at 695-696. None of the above situations applies to the present case. Plaintiff does not cite any legislation explicitly prohibiting the termination of employees for reporting suspicious passengers to the dea. Plaintiff does not allege that she was discharged for failing or refusing to violate the law. Finally, plaintiff does not allege that she was discharged for exercising a statutorily conferred right. Therefore, plaintiff has no valid public policy tort claim. Finally, the trial court properly dismissed plaintiff’s breach of contract claim. Plaintiff argues that she was protected as a "just cause” employee because of statements in defendant’s human resources manual. The manual contained a progressive discipline system, but it also vested defendant with the unilateral option of an immediate termination. Accordingly, the manual could not create a legitimate expectation of termination only for just cause. Rood v General Dynamics Corp, 444 Mich 107, 140-142; 507 NW2d 591 (1993). This policy manual did not purport to be anything other than a disciplinary guideline and therefore the employer was able to treat plaintiff as an at-will employee and terminate her employment accordingly. Affirmed. R. D. Gotham, J., concurred in the result only. Shepherd, P.J., did not participate.