Wrongful Termination Cases

Kevin Harrison vs. NetCentric Corporation & others. Middlesex. December 4, 2000. March 14, 2001. Present: Marshall, C.J., Greaney, Ireland, Spina, & Cowin, JJ. Practice, Civil, Summary judgment. Fiduciary. Corporation, Close corporation, Stock. Conflict of Laws. Contract, Implied covenant of good faith and fair dealing, Interference with contractual relations. The law of Delaware was applicable to a claim by a minority shareholder of a close corporation for breach of fiduciary duty; and where Delaware’s law did not impose a heightened fiduciary duty on shareholders of a close corporation, the corporation and stockholders were entitled to summary judgment on such a claim. [468-472] The clear and unambiguous provisions of a stock agreement and an employee noncompetition agreement, providing that the corporation had the right to buy back the employee’s unvested shares at the original purchase price if the employee ceased to be employed by the corporation “for any reason . . . with or without cause,” did not support a former employee’s claim that the close corporation breached the implied covenant of good faith and fair dealing when it discharged him and made a demand to repurchase the employee’s unvested shares, where there was no evidence that the unvested shares represented compensation earned but not yet paid. [472-476] No evidence supported a claim by a shareholder and former employee of a close corporation that defendant directors of the corporation interfered with his at-will employment contract; in any event, the employment agreement provided that the employee could be terminated “for any reason or no reason.” [476-479] The clear and unambiguous provisions of a stock agreement and an employee noncompetition agreement required the employee to tender his unvested shares in the close corporation when the corporation exercised its right under the agreement to repurchase the employee’s shares upon the termination of his employment. [479-480] Civil action commenced in the Superior Court Department on October 30, 1996. The case was heard by Judith Fabricant, J., on a motion for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. C. Max Perlman {Robert E. Sullivan with him) for the plaintiff. John G. Fabiano {Douglas J. Nash with him) for the defendants. Cynthia L. Amara & Loretta M. Smith, for Associated Industries of Massachusetts & another, amici curiae, submitted a brief. Northbridge Venture Partners, L.P.; Matrix Partners; Sean O’Sullivan; Edward Anderson; Tim Barrows; Robert Goldman; and Robert Ryan. Cowin, J. The plaintiff filed a complaint against his former employer, NetCentric Corporation (NetCentric); its chief executive officer, Sean O’Sullivan (O’Sullivan); four of its directors; and two venture capital firms that invested in NetCentric (collectively, the defendants). The plaintiff alleged that the defendants breached their fiduciary duty of utmost good faith and loyalty; breached the implied covenant of good faith and fair dealing; wrongfully terminated his employment; and intentionally interfered with his contractual relations. All of the plaintiff’s claims stem from his termination as an officer of Net-Centric and the company’s attempt to repurchase from him certain shares of his stock pursuant to a stock restriction agreement (stock agreement). The plaintiff also seeks a declaration that NetCentric has no right to repurchase the stock for the stated price of $0.001 a share. The defendants asserted a counterclaim for specific enforcement of the purchase option provision of the stock agreement. A Superior Court judge allowed the defendants’ motion for summary judgment on all the plaintiff’s claims, and granted the defendants’ motion for summary judgment on their counterclaim. The plaintiff appealed from the grant of summary judgment, and we transferred the case to this court on our own motion. We affirm the judgment of the Superior Court. 1. Background. We summarize the undisputed material facts. See Annese Elec. Servs., Inc. v. Newton, 431 Mass. 763, 764 (2000). In 1994, the plaintiff, O’Sullivan, and his brother, Donal O’Sullivan (Donal) (collectively, the founders), discussed forming a business entity to develop a medium for delivering facsimile transmissions across the world by way of the internet. The founders agreed to a stock ownership arrangement whereby O’Sullivan would receive approximately 4.5 million shares, the plaintiff 2.9 million shares, and Donal 1.5 million shares. In need of financing, they obtained capital investment from Matrix Partners (Matrix) and Northbridge Venture Partners, L.P. (Northbridge). They incorporated NetCentric the following year under Delaware law and established offices in Massachusetts. O’Sullivan was named the chief executive officer and a director. At some point, he became the chairman of the board as well. The plaintiff served initially as the company’s president, and later as its vice-president of sales and marketing, and as a director. Matrix and Northbridge received preferred stock and each appointed a director: Tim Barrows on behalf of Matrix, and Edward Anderson on behalf of Northbridge. Robert Goldman and Robert Ryan were named as outside directors. The plaintiff executed a stock agreement and an employee noncompetition, nondisclosure, and developments agreement (noncompetition agreement). His stock agreement, executed May 16, 1995, provided that he would purchase 2,944,842 shares of stock in NetCentric at $0,001 a share. Forty per cent of the shares (1,177,938) would vest on May 1, 1996, and an additional five per cent (147,242) would vest each succeeding quarter, until all the shares were vested. According to the agreement, if the plaintiff ceased to be employed by NetCentric “for any reason . . . with or without cause,” the company had the right to buy back his unvested shares at the original purchase price. All the plaintiff’s unvested shares would vest immediately, pursuant to an acceleration clause, should NetCentric merge with, or be acquired by, another company. Both the plaintiff’s stock agreement and his noncompetition agreement contained clauses providing that the agreements did not give the plaintiff any right to be retained as an employee of NetCentric and that each agreement represented the entire agreement between the parties and superseded all prior agreements and understandings relating to the same subject matter. In addition, the agreements contained a choice of law provision, providing that they “shall be construed, interpreted and enforced in accordance with the laws of the Commonwealth of Massachusetts.” In June, 1996, Donal’s employment was terminated, and the company exercised its right pursuant to Donal’s stock agreement to buy back his unvested shares. In September, 1996, the plaintiff’s employment was terminated. At that time, forty-five per cent of the plaintiff’s shares (1,325,180) had vested; the remaining fifty-five per cent (1,619,662) had not vested. A month later, NetCentric notified the plaintiff in writing that it was exercising its right pursuant to the stock agreement to buy back the plaintiff’s unvested shares. The plaintiff has refused to tender the shares to the company. During and after the time that Donal and the plaintiff were fired, NetCentric was in the process of hiring additional staff. New employees often were offered stock options in the company, issued from the employee stock option pool (pool), as part of their compensation packages. Some employee-shareholders expressed concern that this practice of authorizing new shares from the corporate treasury for issuance to new hires would dilute the value of their shares. Existing shares would not be diluted, however, if NetCentric acquired outstanding shares and offered those to new employees. After Donal was fired, the number of shares in the pool was increased by the same number that NetCentric had repurchased from him. Within one month after the plaintiff’s employment was terminated, NetCentric hired a president and two vice-presidents, one of whom replaced the plaintiff as vice-president of sales. All three new employees were granted stock options, totaling 1,812,500 shares. 2. Standard of review. Summary judgment is appropriate where there is no genuine issue of material fact and, where' viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law. See Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974); O’Sullivan v. Shaw, 431 Mass. 201, 203 (2000). 3. Breach of fiduciary duty. Initially, we must resolve a choice of law question. As a minority shareholder in a close corporation, the plaintiff maintains that the defendants owed him a duty of good faith and loyalty and that they breached this duty by terminating his employment in order to repurchase his unvested shares. This claim is based on Massachusetts law, which provides that shareholders in a close corporation owe each other the duty of “utmost good faith and loyalty.” Wilkes v. Springside Nursing Home, Inc., 370 Mass. 842, 848-849 (1976) (majority shareholders breached fiduciary duty by taking adverse employment actions against minority shareholder in order to pressure him into selling his shares at less than fair value); Donahue v. Rodd Electrotype Co. of New England, Inc., 367 Mass. 578, 593 (1975) (failure to offer to purchase minority shareholder’s shares at same price as offered to another shareholder was breach of fiduciary duty). The defendants claim, however, that Massachusetts law is of no avail to the plaintiff, as Massachusetts law is inapplicable to his fiduciary duty claim; NetCentric is a Delaware corporation, Delaware law applies, and Delaware law does not impose the . heightened fiduciary duty of utmost good faith and loyalty on shareholders in a close corporation. See Riblet Prods. Corp. v. Nagy, 683 A.2d 37, 39 (Del. 1996) (noting that Delaware has not adopted duty of utmost good faith and loyalty established in Wilkes v. Springside Nursing Home, Inc., supra); Nixon v. Blackwell, 626 A.2d 1366, 1380-1381 (Del. 1993) (declining “to fashion a special judicially-created rule for minority investors”). Instead, under Delaware law, minority shareholders can protect themselves by contract (i.e., negotiate for protection in stock agreements or employment contracts) before investing in the corporation. Additionally, founding shareholders can elect to incorporate the company as a statutory close corporation under Delaware law, which provides special relief to shareholders of such corporations. To avoid the imposition of “conflicting demands,” “only one State should have the authority to regulate a corporation’s internal affairs — matters peculiar to the relationships among or between the corporation and its current officers, directors, and shareholders.” Atherton v. Federal Deposit Ins. Corp., 519 U.S. 213, 224 (1997), quoting Edgar v. MITE Corp., 457 U.S. 624, 645 (1982). Traditionally, we have applied the law of the State of incorporation in matters relating to the internal affairs of a corporation (including both closely and widely held corporations), such as the fiduciary duty owed to shareholders. See Wasserman v. National Gypsum Co., 335 Mass. 240, 242 (1957); Beacon Wool Corp. v. Johnson, 331 Mass. 274, 279 (1954); Edwards v. International Pavement Co., 227 Mass. 206, 212-213 (1917). The plaintiff claims that we abandoned this “one-factor test” in Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 511 (1997), in favor of a “functional approach” that applies the law of the State with the most “significant relatiónship” to the particular issue. In the Demoulas case, we recognized a recent trend in our cases applying the functional approach to resolving choice of law questions. See id., and cases cited. See also Nile v. Nile, 432 Mass. 390, 401 (2000) (breach of contract); Kahn v. Royal Ins. Co, 429 Mass. 572, 572-573 (1999) (statutes of limitations); Cosme v. Whitin Mach. Works, Inc., All Mass. 643, 646 (1994) (statutes of repose); Bushkin Assocs. v. Raytheon Co., 393 Mass. 622, 631 (1985) (Statutes of Frauds). We followed this functional approach in the Demoulas case because the company involved was formed originally in Delaware but later merged into a Massachusetts corporation. We applied Massachusetts law to conduct that occurred both when the company was a Delaware corporation and later when it was a Massachusetts corporation because, in the “particular circumstances” of that case, we concluded that this State had a more significant relationship to the issues presented. See id. at 511. We determined that “[ajpplying two different sets of State laws to the activities of a corporation whose existence was, for all practical purposes, continuous throughout the period, would be a cumbersome and unnecessarily formalistic exercise.” Id. The Demoulas case was an exceptional one, as it concerned a company that had changed its State of incorporation as well as conduct that spanned both periods; thus, we conducted a functional analysis to determine which State had the more significant contacts. Nothing in our decision, however, suggested that we were overruling our long-standing policy of applying the law of the State of incorporation to internal corporate affairs. See id. (explicitly stating that we need not address whether we should continue to follow the State of incorporation principle). Today, we adhere to and reaffirm our policy that the State of incorporation dictates the choice of law regarding the internal affairs of a corporation. Our decision accords with that of a majority of the jurisdictions that have addressed this issue. See, e.g., Atherton v. Federal Deposit Ins. Corp., supra at 224 (“States normally look to the State of a business’ incorporation for the law that provides the relevant corporate governance general standard of care”); R.W. Southgate & D.W. Glazer, Massachusetts Corporation Law and Practice § 16.5[d], at 541-542 n.102 (Supp. 1998, 1999), and cases cited. Similarly, our policy is consistent with the Restatement (Second) of Conflict of Laws § 302 (1971), which provides that the rights and liabilities of a corporation are generally determined by the law of the State of incorporation. See Model Business Corporation Act § 15.05(c) official comment (1998) (“Section 15.05[c] preserves the judicially developed doctrine that internal corporate affairs are governed by the state of incorporation even when the corporation’s business and assets are located primarily in other states”). This rule furthers the interests of “certainty, predictability and uniformity of result, ease in the application of the law to be applied and, at least on occasion, protection of the justified expectations of the parties.” Restatement (Second) of Conflict of Laws § 302 comment g, at 311. All three founders, including the plaintiff, deliberately chose to incorporate in Delaware. By so doing, they “ determine [d] the body of law that [would] govern the internal affairs of the corporation and the conduct of their directors. . . . The corporation and its shareholders rightfully expect that the laws under which they have chosen to do business will be applied.” Hart v. General Motors Corp., 129 A.D. 2d 179, 184-185 (N.Y. 1987). The unusual circumstances involved in the Demoulas case are not present in the case before us. We apply the general rule that the law of the State of incorporation governs claims concerning the internal affairs of a corporation, including the treatment of alleged breaches of fiduciary duty. As NetCentric is, and always has been, a Delaware corporation, Delaware law applies to the plaintiff’s claim that the defendants breached their fiduciary duty. Because Delaware law does not impose a heightened fiduciary duty on shareholders in a close corporation, see Riblet Products Corp. v. Nagy, supra at 39; Nixon v. Blackwell, supra at 1380-1381, the standard on which the plaintiff bases his cause of action, summary judgment was properly granted to the defendants on this claim. 4. Breach of implied covenant of good faith and fair dealing. The plaintiff next claims that the defendants violated the implied covenant of good faith and fair dealing implicit in all Massachusetts contracts, including contracts for employment at will. See Fortune v. National Cash Register Co., 373 Mass. 96, 104-105 (1977). The Fortune case and its progeny provide that an employer is accountable to a discharged employee for unpaid compensation if the employee is terminated in bad faith and the compensation is clearly connected to work already performed. See id. See also Cort v. Bristol-Myers Co., 385 Mass. 300, 304 (1982); Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 672 (1981) (Gram 7); Sargent v. Tenaska, Inc., 108 F.3d 5, 8 (1st Cir. 1997). The plaintiff argues that the defendants terminated his employment in bad faith because they were trying to prevent his remaining shares from vesting; that his unvested shares represent compensation previously earned; and that he was unlawfully deprived of this compensation by the defendants’ attempt to repurchase his unvested shares. In support of his contention, the plaintiff relies on the fact that he accepted a salary substantially lower than he had received in recent years because of the equity he received in NetCentric and because he expected he would be retained at least until his stock had fully vested. He also cites the fact that other employees received only stock options, while the founders received shares up front, and that all shares would immediately vest under the acceleration clause in his stock agreement should NetCentric merge with, or be acquired by, another company, a benefit granted only to the founders. The plaintiff claims that the unvested shares could not be considered payment for future services because they could have vested at any time in the event of a NetCentric merger. The defendants did not deprive the plaintiff of any income that he reasonably earned or to which he was entitled. His shares vested over time only if he continued to be employed; thus, the unvested shares are not earned compensation for past services, but compensation contingent on his continued employment. The plaintiff’s argument to the contrary is belied by the terms of his stock agreement. Under the agreement, the plaintiff’s shares were to vest each quarter that he remained a NetCentric employee until they had fully vested. Should the plaintiff cease working for NetCentric for any reason, his right to any unvested shares would terminate immediately, and the company could repurchase the shares at the original purchase price. The longer the plaintiff was employed by NetCentric, the more vested shares he would earn. At the time the plaintiff’s employment was terminated, forty-five per cent of his shares had vested. He had not yet earned the remaining fifty-five per cent. These unvested shares were contingent on the plaintiff providing future services for NetCentric, unless NetCentric merged with, or was acquired by, another company. See Sargent v. Tanaska, Inc., supra at 8-9 (terms “vested” and “unvested” not automatically controlling, but periodic vesting schedule can define line between past and future services). The plaintiff seeks support from Cataldo v. Zuckerman, 20 Mass. App. Ct. 731, 741 (1985), quoting Gram v. Liberty Mut. Ins. Co., 391 Mass. 333, 334 (1984) (Gram II), in which the Appeals Court held that an employee’s unvested interest in real estate development projects “was sufficiently an ‘identifiable, future benefit . . . reflective of past services.’ ” The court concluded that the employee’s interest in future projects was a “continuing inducement” to work for his employer and constituted “compensation for that continuing work.” Id. at 740 (“Actual realization by Cataldo of the value of any share of the developer’s equity was for th

Arbitration—Labor relations—Ohio has no dominant and well-defined public policy that renders unlawful an arbitration award reinstating a safety-sensitive employee who was terminated for testing positive for a controlled substance.

BENJAMIN F. McCALLUM, Plaintiff-Appellee v. NORTH CAROLINA COOPERATIVE EXTENSION SERVICE OF N.C. CAROLINA STATE UNIVERSITY and PATRICIA BARBER in her official capacity, Defendants-Appellants No. COA99-1434 (Filed 6 February 2001) 1. Appeal and Error— appealability — denial of summary judgment — collateral estoppel — substantial right The denial of a motion for summary judgment based on collateral estoppel may affect a substantial right and defendants’ appeal, although interlocutory, was properly before the Court of Appeals. 2. Collateral Estoppel and Res Judicata— collateral estop-pel — state constitutional claim — issues previously litigated in federal court Collateral estoppel may prevent the re-litigation of issues that are necessary to the decision of a North Carolina constitutional claim and that have been previously decided in federal court. Holding that state courts are never barred from hearing state constitutional claims, even when such issues have been previously litigated in the federal courts, would violate the underlying principle of judicial economy that precipitated the creation of the collateral estoppel and res judicata doctrines. 3. Collateral Estoppel and Res Judicata— collateral estop-pel — employment termination — discriminatory intent and improper motivation — previously litigated in federal court The trial court erred when it refused to grant defendants’ motion for summary judgment based on collateral estoppel of plaintiff’s claims of racial discrimination, equal protection violations, and retaliatory discharge. The issues of defendants’ discriminatory intent and improper motivation were tried in federal court after full discovery, with resolution of those issues being material and necessary to the judgment in that court. 4. Public Officers and Employees— state employee — termination — due process — employee at will An Agricultural Extension Agent was barred from bringing a due process claim arising from his discharge because he was an employee-at-will with no cognizable property right in his employment. A letter appointing defendant County Extension Director upon which plaintiff relied to contend that there were mutually explicit understandings of continued employment revealed no understanding regarding plaintiffs status as an Agricultural Extension Agent, a document concerning tenure for the County Extension Director merely expressed the possibility of continued employment as an agent if plaintiff failed to perform satisfactorily in the Director position, and, although the plaintiffs termination was not first discussed with the Richmond County Board of Commissioners, as had been agreed in a memorandum of understanding between the Board and defendants, the Board’s role did not extend to actual authority over the extension service’s ability to discharge employees. Appeal by defendants from order entered 13 July 1999 by Judge Michael E. Beale in Richmond County Superior Court. Heard in the Court of Appeals 21 September 2000. In August 1995, defendant North Carolina Cooperative Extension Service (NCCES) of North Carolina State University discharged plaintiff Benjamin F. McCallum from his employment as an Agricultural Extension Agent. In April 1997, plaintiff filed a complaint in Richmond County Superior Court against NCCES and the District Extension Director for Richmond County, alleging retaliatory discharge and equal protection violations under the United States Constitution, race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, and a violation of his rights under Article I, §§ 1, 12, 14, and 19 of the North Carolina Constitution. Defendants removed the action to the United States District Court for the Middle District of North Carolina. After the completion of discovery, defendants moved for summary judgment. On 4 January 1999, the United States District Court granted defendants’ motion for summary judgment on all claims based on violations of federal law and dismissed without prejudice the claims based on alleged violations of the North Carolina Constitution. In granting summary judgment, the federal court stated that plaintiff had failed to show any discriminatory intent by NCCES. Further, the federal court found that plaintiff could not show a causal connection between any constitutionally protected activities and his discharge from employment. In February 1999, plaintiff filed a second complaint in Richmond County Superior Court, in which he again alleged that he was discharged from employment in violation of the North Carolina Constitution. Defendants moved for summary judgment, contending that plaintiffs claims for violation of equal protection rights, racial discrimination, and retaliatory discharge were barred under the doctrine of collateral estoppel because of the federal court adjudications, and that plaintiffs due process claim was barred because plaintiff was an at-will employee with no property right in his employment. Defendants further contended that, if plaintiff were subject to the State Personnel Act, then he had an alternate remedy under that Act which he had not exhausted. On 13 July 1999, the trial court denied defendants’ motion for summary judgment, and they appealed to this Court. McSurely & Osment, by Alan McSurely and Ashley Osment, for plaintiff appellee. Attorney General Michael F. Easley, by Assistant Attorney General Celia Grasty Lata, for defendant appellants. HORTON, Judge. The denial of summary judgment is not a final judgment, but rather is interlocutory in nature. We do not review interlocutory orders as a matter of course. Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381, reh’g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). If, however, “the trial court’s decision deprives the appellant of a substantial right which would be lost absent immediate reviewf,]” we may review the appeal under N.C. Gen. Stat. §§ 1-277(a) and 7A-27(d)(1). N.C. Dept. of Transportation v. Page, 119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995). The moving party must show that the affected right is a substantial one, and that deprivation of that right, if not corrected before appeal from final judgment, will potentially injure the moving party. Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990). Whether a substantial right is affected is determined on a case-by-case basis. Bernick v. Jurden, 306 N.C. 435, 439, 293 S.E.2d 405, 408 (1982). We have ruled that “appeals raising issues of governmental or sovereign immunity affect a substantial right sufficient to warrant immediate appellate review.” Price v. Davis, 132 N.C. App. 556, 558-59, 512 S.E.2d 783, 785 (1999); Derwort v. Polk County, 129 N.C. App. 789, 790, 501 S.E.2d 379, 380 (1998). As a state agency, NCCES is shielded by sovereign immunity from suits based on torts committed while performing a governmental function. Therefore, to the extent defendants’ appeal is based on an affirmative defense of immunity, this appeal is properly before us. Further, our Supreme Court has ruled that the denial of a motion for summary judgment based on the defense of res judicata (or claim preclusion) is immediately appealable. Bockweg v. Anderson, 333 N.C. 486, 491, 428 S.E.2d 157, 161 (1993). Under the doctrine of res judicata, a final judgment on the merits in a prior action precludes a second suit involving the same claim between the same parties. Thomas M. McInnis & Assoc., Inc. v. Hall, 318 N.C. 421, 428, 349 S.E.2d 552, 556 (1986). Denial of a summary judgment motion based on res judicata raises the possibility that a successful defendant will twice have to defend against the same claim by the same plaintiff, in frustration of the underlying principles of claim preclusion. Bockweg, 333 N.C. at 491, 428 S.E.2d at 161. Thus, the denial of summary judgment based on the defense of res judicata can affect a substantial right and may be immediately appealed. Id. Like res judicata, collateral estoppel (issue preclusion) is “ ‘designed to prevent repetitious lawsuits over matters which have once been decided and which have remained substantially static, factually and legally.’ ” King v. Grindstaff, 284 N.C. 348, 356, 200 S.E.2d 799, 805 (1973) (quoting Commissioner v. Sunnen, 333 U.S. 591, 599, 92 L. Ed. 898, 907 (1948)). Under collateral estoppel, parties are precluded from retrying fully litigated issues that were decided in any prior determination, even where the claims asserted are not the same. McInnis, 318 N.C. at 428, 349 S.E.2d at 557. The denial of summary judgment based on collateral estoppel, like res judicata, may expose a successful defendant to repetitious and unnecessary lawsuits. Accordingly, we hold that the denial of a motion for summary judgment based on the defense of collateral estoppel may affect a substantial right, and that defendants’ appeal, although interlocutory, is properly before us. Summary judgment is appropriate when there is no genuine issue as to any material fact, and a party is entitled to a judgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c) (1999). Defendants assert, on two separate grounds, that they are entitled to such judgment. Defendants first contend that issues dispositive of plaintiffs claims of racial discrimination, equal protection violations and retaliatory discharge have already been litigated to final judgment by the federal court, and that collateral estoppel bars re-litigation of these issues. Second, they argue that plaintiff was an at-will employee with no property right in his employment. We will consider each argument separately. I. Collateral Estoppel Under the doctrine of collateral estoppel, when an issue has been fully litigated and decided, it cannot be contested again between the same parties, even if the first adjudication is conducted in federal court and the second in state court. King, 284 N.C. at 359, 200 S.E.2d at 807. Plaintiff argues, however, that collateral estoppel cannot bar a state constitutional claim based on a denial of equal protection or due process, regardless of previous federal court adjudications, because only North Carolina courts can “ ‘[answer] with finality’ ” “ ‘[w]hether rights guaranteed by the Constitution of North Carolina have been provided....'" Evans v. Cowan, 122 N.C. App. 181, 184, 468 S.E.2d 575, 577, disc. review denied, appeal retained, 343 N.C. 510, 471 S.E.2d 634, affirmed, 345 N.C. 177, 477 S.E.2d 926 (1996) (quoting State v. Arrington, 311 N.C. 633, 643, 319 S.E.2d 254, 260 (1984)). Plaintiff contends that since “[o]ur courts . . . when construing provisions of the North Carolina Constitution, are not bound by opinions of the federal courts ‘construing even identical provisions in the Constitution of the United States[,]’ ” defendants’ collateral estoppel argument fails. Evans, 122 N.C. App. at 183-84, 468 S.E.2d at 577. Plaintiff also bases his argument upon our recent decision in City-Wide Asphalt Paving, Inc. v. Alamance County, 132 N.C. App. 533, 513 S.E.2d 335, appeal dismissed and disc. review denied, 350 N.C. 826, 537 S.E.2d 815 (1999), which held that neither res judicata nor collateral estoppel barred plaintiff’s state constitutional claims, even though plaintiff’s claims under the federal constitution had been previously litigated in federal court. We find neither Evans nor City-Wide controlling in the instant case. Unlike the case before us, the issue before the Evans Court was “whether plaintiff’s state constitutional claims against defendants are barred by res judicata”—not by collateral estoppel. Evans, 122 N.C. App. at 183, 468 S.E.2d at 577. In Evans, plaintiff’s claims, based on violations of both the federal and the state constitutions, were initially litigated in federal court, which granted summary judgment to defendants as to all but the state constitutional claims. On remand to state court, defendants argued that plaintiffs claims under the state constitution were identical to plaintiffs claims under the federal constitution, and therefore plaintiffs subsequent litigation was barred under the doctrine of res judicata. Affirming that North Carolina courts “ ‘have the authority to construe our own constitution differently from the construction ... of the Federal Constitution,’ ” this Court held that “the claims asserted by the plaintiff in the State Court on the basis of the North Carolina Constitution are not identical to the claims asserted by the plaintiff in the Federal Court on the basis of the United States Constitution . . . .” Evans, 122 N.C. App. at 184, 468 S.E.2d at 577. Thus, concluded the Court, the doctrine of res judi-cata did not bar plaintiffs claim. We also find the decision in City-Wide distinguishable from the instant case. There, plaintiff appealed its state constitutional law claims to this Court from the trial court’s grant of defendants’ summary judgment motion. Confusing the principles of collateral estop-pel with those of res judicata, defendants argued that, because plaintiffs claims under the U.S. Constitution had been previously determined, and because those claims were identical to plaintiffs claims based on violations of the North Carolina Constitution, plaintiff was collaterally estopped from re-litigating “identical issues . . . determined by the federal court.” City-Wide, 132 N.C. App. at 536, 513 S.E.2d at 337. Defendants failed to specify, however, what the “identical issues” decided by the federal court were. This Court rejected defendants’ argument, reaffirming Evans’ principle that claims brought under the North Carolina Constitution must be independently determined from claims brought under the U.S. Constitution. Thus, neither res judicata nor collateral estoppel barred plaintiffs claims. Like the defendants in City-Wide, plaintiff in the instant case conflates the doctrines of collateral estoppel and res judicata. The CityWide defendants argued that, because the claims in the federal and state courts were essentially identical, the issues to be decided by each court were necessarily the same and collateral estoppel barred their re-litigation. Here, plaintiff contends that, because his claims in federal and state court are different, the issues cannot be the same, and that therefore collateral estoppel cannot apply. We disagree. Although plaintiff’s present state court claims are different from those brought in federal court, his state court claims may contain issues previously litigated and determined in the federal court. Thus, plaintiff may be collaterally estopped from re-litigating these issues. To hold otherwise, as plaintiff suggests we should, would mean that state courts are never barred from hearing state constitutional claims or issues pertinent to such claims, even when such issues have been previously litigated in the federal courts. Such a finding would directly violate the underlying principle of judicial economy that precipitated the creation of the collateral estoppel and res judicata doctrines as expressed in King and Bockweg. We reaffirm, therefore, that collateral estoppel may prevent the re-litigation of issues that are necessary to the decision of a North Carolina constitutional claim and that have been previously decided in federal court. To determine whether collateral estoppel prevents the re-litigation of issues presented by plaintiff in the instant case, we must first ascertain whether issues raised by the present litigation and dispositive of plaintiffs claim are identical to issues decided by the federal court. Collateral estoppel applies when the following requirements are met: (1) [t]he issues to be concluded must be the same as those involved in the prior action; (2) in the prior action, the issues must have been raised and actually litigated; (3) the issues must have been material and relevant to the disposition of the prior action; and (4) the determination made of those issues in the prior action must have been necessary and essential to the resulting judgment. King, 284 N.C. at 358, 200 S.E.2d at 806. Here, plaintiff asserts claims under the North Carolina Constitution against defendants for racial discrimination, equal protection violations and retaliatory discharge. We will consider the applicability of collateral estoppel for each claim in turn. To prevail upon a claim for racial discrimination in either a federal or state court in North Carolina, a plaintiff must establish improper motivation on defendant’s part by proffering evidence of discriminatory intent. Dept. of Correction v. Gibson, 308 N.C. 131, 138, 301 S.E.2d 78, 83 (1983) (adopting federal guidelines for discri+mination cases in North Carolina and noting that the plaintiff carries the burden of showing intentional discrimination by defendant). In the instant case, the issue of whether defendants intentionally discriminated against plaintiff was fully litigated in the federal court. After reviewing all of the evidence, the federal court found that plaintiff failed to present “any ‘direct evidence of a purpose [by defendants] to discriminate [against plaintiff] or circumstantial evidence of sufficiently probative force to raise a genuine issue of material fact.’ ” The federal court then granted defendants’ motion for summary judgment on plaintiff’s claim for racial discrimination. We hold that the issue of discriminatory intent by defendants was conclusively determined in the federal court, and thus plaintiff is collaterally estopped from re-litigating that issue in this action. Plaintiff’s failure in federal court to establish discriminatory intent by defendants also bars litigation of his equal protection violation claim in state court. In order to prevail upon an equal protection violation claim under the North Carolina Constitution, “the burden is upon the complainant to show the intentional, purposeful discrimination upon which he relies.” Kresge Co. v. Davis, 277 N.C. 654, 662, 178 S.E.2d 382, 386 (1971). As the federal court has already conclusively ruled against plaintiff upon the issue of discriminatory intent by defendants, collateral estoppel prevents the plaintiff from proceeding on this claim. Plaintiff also alleges a claim against defendants for retaliatory discharge. During his employment with NCCES, plaintiff was President of the North Carolina Association of Extension Minorities (NCAEM), a group organized to promote African-American interests within the extension agency. Plaintiff asserts that in his capacity as President, he often “spoke out on matters of public concern regarding trends and activities within the Extension Service that were adverse to the interests of African American extension agents and farmers.” Plaintiff argues that defendants fired him for his NCAEM leadership, thus violating his constitutionally protected rights of freedom of speech and association. In challenging an adverse employment decision for violation of constitutional rights, an employee must show that the “protected activity was a substantial or motivating factor in the employer’s decision.” Lenzer v. Flaherty, 106 N.C. App. 496, 509, 418 S.E.2d 276, 284, disc. review denied, 332 N.C. 345, 421 S.E.2d 348 (1992). Although evidence of retaliation may often be completely circumstantial, the causal connection between the protected activity and the discharge “must be something more than speculation.” Brooks v. Stroh Brewery Co., 95 N.C. App. 226, 237, 382 S.E.2d 874, 882, disc. review denied, 325 N.C. 704, 388 S.E.2d 449 (1989). In the instant case, plaintiff argued in the federal court that his membership in NCAEM, among other things, triggered defendants’ decision to fire him. The federal court found no evidence, direct or indirect, to support plaintiffs claim, stating that “[n]o reasonable jury could find that McCallum’s activities with the NCAEM . . . were a ‘motivating part’ of his termination . . . .” Thus, the federal court ruled against plaintiff on the exact issue that plaintiff now raise

BETTY J. SOUTHER, Petitioner v. NEW RIVER AREA MENTAL HEALTH DEVELOPMENT DISABILITIES AND SUBSTANCE ABUSE PROGRAM, Respondent No. COA99-1092 (Filed 6 February 2001) Public Officers and Employees— termination — insubordination — evidence insufficient The trial court correctly reversed a decision of the State Personnel Commission, which had upheld the termination of petitioner’s employment, where petitioner had worked as an habilitation assistant providing care in the home of a severely disabled client; petitioner complained of sexual harassment by the father of the client; respondent allowed petitioner to take vacation time and to care for the client in petitioner’s own home while undertaking an investigation; respondent concluded that petitioner’s allegations were without merit and asked petitioner to resume caring for the client in the client’s home; and petitioner’s employment was terminated when she refused. Petitioner had the burden of proving that her termination was not for just cause; respondent contended that petitioner was dismissed for insubordination following her failure to attend a meeting with her supervisors and her refusal to provide service to her client. Based upon a de novo review of the proceeding, the refusal to attend the meeting did not constitute insubordination because she had a. reasonable understanding from State Personnel Guidelines that she was entitled to an initial meeting with only her immediate supervisor rather than a joint meeting with several people, one of whom she perceived to be hostile, when she was not aware that her claims had been investigated and feared that she might lose her job. Furthermore, her refusal to comply with the directive to return to the client’s home was reasonable under circumstances in which she was not aware that her complaints had been investigated and was given no alternative to returning to what she considered an unacceptable working environment. Judge Edmunds dissenting prior to 31 December 2000. Appeal by respondent from order entered 21 May 1999 by Judge L. Todd Burke in Superior Court, Wilkes County. Heard in the Court of Appeals 17 May 2000. Legal Services of the Blue Ridge, by Charlotte Gail Blake, for petitioner-appellee. McElwee Firm, PLLC, by Elizabeth K. Mahan and William H. McElwee, III, for respondent-appellant. WYNN, Judge. Respondent New River Area Mental Health appeals from the trial court’s order reversing its termination of petitioner Betty J. Souther. We affirm. New River employed Souther in September 1988 as an habilitation assistant for the Community Alternatives Program For People With Mental Retardation. The Community Alternatives Program allows disabled individuals to avoid institutionalization by receiving care at home. Under the program, habilitation assistants provide personal and respite care to the disabled participants. The assistants typically serve one client at a time. During Souther’s employment with New River, Randy Johnson was her immediate supervisor; Suzanne Tate was the Director of Developmental Disabilities and Johnson’s supervisor; and, Dorothy Beamon was the Area Director and supervisor of New River’s mental health programs. In 1988, New River assigned Souther to care for Robinette Jenkins, the daughter of Lester and Virginia Jenkins. Robinette was severely disabled and required constant assistance with personal maintenance. In late June or early July 1993, Souther informed Lester Jenkins that she was having trouble with her neighbors; so, he allowed her to move her trailer onto his lot. Later in 1993, Souther complained to her immediate supervisor, Johnson, that Mr. Jenkins was sexually harassing her and expressed concerns about working in the Jenkins’ home. Upon receiving these complaints, New River allowed Souther to take vacation time and to care for Robinette in her own home; at the same time, New River undertook an investigation of her complaints. New River’s investigation concluded that Souther’s allegations were without merit. Accordingly, at a meeting on 20 September 1993, Beamon asked Souther to resume assisting Robinette in the Jenkins’ home. Souther, however, refused. Thereafter, New River terminated her employment. Souther appealed to the Office of Administrative Hearings. After conducting an evidentiary hearing, the assigned Administrative Law Judge entered a Recommended Decision to affirm the dismissal for just cause. Souther appealed to the State Personnel Commission, which conducted a whole record review and adopted the recommended findings and conclusions of the Administrative Law Judge and recommended that New River “find and conclude that it had just cause to terminate Souther for her unacceptable personal conduct due to her refusal to obey a reasonable work [order].” Thereafter, Souther brought a Petition for Judicial Review before the Superior Court in Wilkes County. The trial court granted the petition and, “after hearing the arguments of counsel and reviewing the official record, including the transcript of the administrative hearing, and the memo-randa submitted by counsel,” found that New River’s decision to terminate Souther was “arbitrary and capricious and not supported by substantial evidence in light of the whole record.” From the trial court’s order reversing Souther’s termination, New River appeals. Our review of a superior court order regarding an agency decision consists of: “ ‘(1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.’ ” ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997) (quoting Amanini v. N.C. Dep’t of Human Resources, 114 N.C. App. 668, 675, 443 S.E.2d 114, 118-19 (1994)). The proper standard for the superior court to apply depends upon the issues presented on appeal. Where the petitioner alleges that the agency decision was either unsupported by the evidence, or arbitrary and capricious, the superior court applies the “whole record test” to determine whether the agency decision was supported by substantial evidence contained in the entire record. Where the petitioner alleges that the agency decision was based on error of law, the reviewing court must examine the record de novo, as though the issue had not yet been considered by the agency. Avant v. Sandhills Center for Mental Health, 132 N.C. App. 542, 546, 513 S.E.2d 79, 82 (1999) (internal citations omitted). Both parties contend the superior court, in reviewing the Administrative Law Judge’s decision, appropriately employed the “whole record” standard. However, this Court has held that a superior court’s determination of whether a termination was for “just cause” based upon personal misconduct is a question of law, and that questions of law are to be reviewed de novo. See Amanini, 114 N.C. App. at 677, 678, 443 S.E.2d at 119, 120. A de novo review “requires a court to consider a question anew, as if not considered or decided by the agency.” Id. at 674, 443 S.E.2d at 118. We note that the Amanini court observed that “[separate panels of this Court [] appear to have reached differing conclusions concerning the proper standard of appellate review” of orders of the superior court affirming or reversing a decision of an administrative agency. Id. at 675, 443 S.E.2d at 118. After an extended review and discussion of the issue, the Amanini court held that the proper standard of review is whether the superior court applied the proper scope of review and did so properly. Id. at 675-76, 443 S.E.2d at 118-19. Despite some continuing inconsistencies within the court, see Mendenhall v. N.C. Dep’t of Hum. Res., 119 N.C. App. 644, 650, 459 S.E.2d 820, 824 (1995) (citation omitted) (“When an appellate court reviews the decision of a lower court (as opposed to reviewing an administrative agency’s decision on direct appeal), the scope of review is the same as for other civil cases. However, this review also requires an examination of the entire record.”), we believe that the analysis in Amanini is persuasive. We will employ the proper standard of review regardless of that employed by the reviewing trial court. See Amanini, 114 N.C. App. at 675, 677, 443 S.E.2d at 118, 119 (“[T]he manner of our review is [not] governed merely by the label an appellant places upon an assignment of error; rather, we first determine the actual nature of the contended error, then proceed with an application of the proper scope of review. [] [W]here the initial reviewing court should have conducted de novo review, this Court will directly review the State Personnel Commission’s decision under a de novo review standard.”) A state employee may be dismissed only for “just cause.” N.C. Gen. Stat. § 126-35 (1995). An employee challenging his or her termination for just cause has the burden of proving that the agency’s decision was improper. As our Supreme Court has said: [A]n employee terminated pursuant to the “just, cause” provision of N.C.G.S. § 126-35 should bear the burden of proof in an action contesting the validity of that termination. Petitioner, the terminated employee, is the party attempting to alter the status quo. The burden should appropriately rest upon the employee who brings the action, even if the proof of that position requires the demonstration of the absence of certain events or causes. Neither party in a “just cause” termination dispute has peculiar knowledge not available to the opposing party. A terminated employee may readily utilize the procedures outlined in chapter 126 and section 1A-1 of the North Carolina General Statutes, as well as title 26 of the North Carolina Administrative Code, to obtain any and all necessary information to establish and advocate his or her position. Peace v. Employment Sec. Comm’n of North Carolina, 349 N.C. 315, 328, 507 S.E.2d 272, 281-82 (1998). Just cause may result either from unacceptable job performance or unacceptable personal conduct. See Amanini at 679, 443 S.E.2d at 120. The difference is important because an employee must receive certain warnings before being terminated for unsatisfactory job performance, while no warnings are required for termination based on personal misconduct. See id. at 679, 443 S.E.2d at 121. However, “[t]he categories are not mutually exclusive, as certain actions by employees may fall into both categories, depending upon the facts of each case.” N.C. Admin. Code tit. 25, r. 1J.0604 (June 2000). Although New River never specifically stated the grounds for Souther’s dismissal, Beamon’s letter terminating petitioner read in pertinent part: Over the past weeks, your relationship with your client’s family has deteriorated to the point that you refuse to provide in-home services to your client in her home. As you have been aware, the main purpose of the work you do for us is to enable clients to live in their own homes. You refused to meet with me and your supervisor on 9-15-93, after being required by your supervisor to do so for the purpose of getting services flowing to your client again. Recently, you have spent a great deal of time and energy discussing with various staff how stressful it is for you to work here. Thus, New River’s finding of just cause was based on (1) petitioner’s refusal to provide service to her client, and (2) petitioner’s failure to attend the 15 September 1993 meeting with her supervisors. New River contends that these reasons for dismissal constitute insubordination. “Insubordination” is defined as “the refusal to accept a reasonable and proper assignment from an authorized supervisor.” Mendenhall, 119 N.C. App. at 651, 459 S.E.2d at 824 (citation omitted). Insubordination has been defined more broadly as “1. A willful disregard of an employer’s instructions .... 2. An act of disobedience to proper authority; esp. a refusal to obey an order that a superior officer is authorized to give.” Black’s Law Dictionary 802 (7th ed. 1999). Thus, insubordination involves two elements: (1) A reasonable and proper instruction or assignment by an authorized supervisor; and (2) A willful or intentional refusal to comply with such instruction or assignment. We must therefore determine the reasonableness of the requests made by New River for Souther to return to the Jenkins’ home and to attend the 15 September 1993 meeting, and the reasonableness of Souther’s failure to comply with those requests. We note that, because insubordination is a form of personal misconduct, see Amanini, 114 N.C. App. at 679, 334 S.E.2d at 121, if Souther’s conduct constituted insubordination, then New River was not required to provide warnings to her before her discharge. We first consider the 15 September 1993 meeting, which was called for the purpose of reviewing the results of the investigation into petitioner’s allegations and to re-establish service to Robinette. We assume arguendo that the request by Beamon and Johnson that Souther attend the meeting was reasonable and proper. Our inquiry thus proceeds to whether Souther’s refusal to comply with this reasonable request was willful. “The conduct of an employee cannot be termed willful misconduct if it is determined that the employee’s actions were reasonable and taken with good cause.” Urback v. East Carolina Univ., 105 N.C. App. 605, 608, 414 S.E.2d 100, 102, disc. review denied, 331 N.C. 291, 417 S.E.2d 70 (1992). What constitutes a “reasonable” action by petitioner is necessarily a subjective determination. See, e.g., Mendenhall (holding that under whole record test, a petitioner was improperly terminated for insubordination where petitioner refused to care for AIDS patient on the basis of legitimate and reasonable health concerns). Therefore, we will review the record in some detail to determine the reasonableness of Souther’s actions. The record shows that on 14 September 1993, Johnson and Beamon met with Tate to discuss Souther’s allegations and the results of Johnson’s abbreviated investigation into those allegations. At that meeting, Beamon, the Area Director, decided on the basis of Johnson’s investigation and report that Lester Jenkins had not sexually harassed Souther and that Souther’s allegations were unfounded. Following the 14 September 1993 meeting, Beamon called Souther to arrange for a meeting with Beamon and Johnson. According to Souther’s account of this telephone call from Beamon on 14 September 1993, Beamon was very angry with Souther and spoke rudely to her. Beamon informed Souther during this call that she did not believe Souther’s account of the events concerning Lester Jenkins. Souther testified that she was worried about meeting with Beamon and Johnson together on 15 September. Furthermore, she understood from her copy of the State Employees’ Grievance Policy that she first was entitled to a meeting alone with her immediate supervisor, Johnson, rather than a joint meeting with both Johnson and Beamon. On 15 September 1993, Souther sent a letter to Johnson asking for his help in resolving her complaint. When Souther failed to show up for the 15 September meeting, Beamon called Souther again. According to Beamon’s notes from this conversation, Souther repeatedly expressed her reservations about meeting with the supervisors without an attorney present, and indicated that she could not meet with the supervisors without an attorney. The North Carolina Administrative Code, as it existed in 1993, provided that “[p]rior to dismissal of a permanent employee on the basis of personal conduct, there shall be a pre-dismissal conference between the employee and the person recommending dismissal. This conference shall be held in accordance with the provision of 25 NCAC 1J .0606(2), (3).” 25 NCAC 1J .0608(c) (effective 1 July 1989). The requirements for the pre-dismissal conference provided in part that “[t]he Supervisor or designated management representative shall schedule and conduct a pre-dismissal conference with the employee. Advance notice of the pre-dismissal conference must be given to the employee. A second management representative or security personnel may be present at management’s discretion.” 25 NCAC 1J .0606(2) (effective 1 September 1991). Following the hearing of this matter, an Administrative Law Judge issued a recommended decision which included findings of fact and conclusions of law. In her conclusions of law, the Administrative Law Judge found that “[t]he presence of more than one management person at the [20 September 1993] conference was a violation of [State Personnel Commission] rules regarding who is to attend pre-dismissal conferences.” Nonetheless, the Administrative Law Judge found that, because Souther was permitted to have her attorney present at the 20 September meeting, “she was not unduly prejudiced by this procedural violation.” Souther’s understanding that she was entitled, pursuant to these State Personnel Commission guidelines, to an initial meeting with only Johnson was not inherently unreasonable. Furthermore, Souther was worried by what she perceived to be a hostile attitude on behalf of Beamon, and feared that she might lose her job. It is apparent from the record that Souther perceived that Beamon and Johnson did not believe her allegations, and Souther was not aware that her claims had been investigated at all. Moreover, the record supports Souther’s contention that she understood from Beamon’s telephone call on 14 September 1993 that Beamon, Tate and Johnson (who were all present at the 14 September discussion) would all be present at the proposed 15 September meeting, which would have been a clear violation of the requirements for the pre-dismissal conference (as was the presence of all three at the 20 September meeting). These facts indicate the basis of Souther’s failure to attend the 15 September 1993 meeting, which failure appears under the circumstances to have been reasonable. Thus, Souther’s refusal to attend the meeting did not constitute insubordination. We must next determine whether Souther’s refusal at the 20 September 1993 meeting to re-establish in-house care for Robinette amounted to insubordination. A careful review of the record on appeal reveals the reasonableness of this action as well. The investigation which was performed by New River into Souther’s allegations of sexual harassment by Lester Jenkins appears to have been limited at best. Souther testified that she initially believed that Lester Jenkins’ comments that she should get out and date, and asking for sex with her, were “one big joke.” However, he persisted, and she testified that when Lester Jenkins forthrightly stated without euphemisms that he wanted to have sex with her, she knew his comments had not been a joke. According to petitioner, she notified Johnson and asked him to talk to Lester Jenkins. She wanted Johnson to “tell [Lester Jenkins] that this was bothering [her], and ... to leave that kind of jokes alone because . . . they weren’t appropriate for the work.” On 17 August 1993, Souther first contacted Johnson regarding her concerns, reporting, according to Johnson’s notes from the conversation, that Lester Jenkins “had said or done something which caused [Souther] emotional pain and hurt.” Souther also expressed her desire to tell Johnson the details regarding the incident but was hesitant to do so as she did not feel she would be believed. At this point Johnson took no action, though he was clearly aware that something had occurred between Souther and Lester Jenkins which was causing Souther some distress. On 19 August 1993, Souther again spoke with Johnson; and, according to Johnson’s notes, she informed Johnson that “Jenkins offered to help her complete moving into her new trailer if she would repay him with sexual favors.” According to Souther’s testimony before the Administrative Law Judge, she informed Johnson that Lester Jenkins’ comments were bothering her, and asked Johnson to talk to Lester Jenkins alone as she did not wa

DeBROW v CENTURY 21 GREAT LAKES, INC (AFTER REMAND) Docket No. 114615. Decided January 17, 2001. On application by the plaintiff for leave to appeal, the Supreme Court, in lieu of granting leave, reversed in part the judgments of the Court of Appeals and the circuit court and remanded the case to the circuit court for further proceedings. Rehearing denied post, 1223. Paul DeBrow brought an action in the Oakland Circuit Court against his former employer Century 21 Great Lakes, Inc., and others, alleging, inter alia, age discrimination. The court, Robert C. Anderson, X, granted summary disposition for the defendants. The Court of Appeals, Michael X Kelly, P.J., and N. O. Holowka, X (Young, X, dissenting in part), affirmed in an unpublished opinion per curiam (Docket No. 161048). The Supreme Court remanded the case to the Court of Appeals for reconsideration in light of Lytle v Malady (On Rehearing), 458 Mich 153 (1998). On remand, the Court of Appeals, Michael X Kelly, P.J., and Gribbs and Hoekstra, JX, again affirmed in an unpublished opinion per curiam. The plaintiff seeks leave to appeal. In an opinion per curiam, signed by Chief Justice Corrigan, and Justices Cavanagh, Weaver, Kelly, and Taylor, the Supreme Court held-. Intentional discrimination can be proven by direct and circumstantial evidence. Where direct evidence is offered to prove discrimination, a plaintiff is not required to establish a prima facie case within the framework of McDonnell Douglas Co-rp v Green, 411 US 792 (1973), and the case should proceed as an ordinary civil matter. The shifting burden of proofs as contemplated in McDonnell Douglas and Texas Dep’t of Community Affairs v Burdine, 450 US 248 (1981), only applies to discrimination claims based solely on indirect or circumstantial evidence of discrimination. In this case, the plaintiff testified in his deposition regarding direct evidence of age animus, which bears directly on the intent with which his employer acted in choosing to demote him. The evidence cannot be ignored in the context of a motion for summary disposition and precludes dismissal of the plaintiffs age claim. If believed by the trier of fact, it suggests that plaintiffs age was a factor in the mind of the employer at the point the plaintiff was removed from his position. Justice Markman, concurring, stated that the only evidence of age discrimination presented by the plaintiff consists of a single comment allegedly made to him by his supervisor during a meeting at which he was terminated. It is ultimately for the factfinder to determine whether the comment is better understood in its literal or colloquial sense. Particularly in the context of discrimination cases predicated upon age, there are a wide variety of innocent comments that, taken out of context and divorced from their meaning in common parlance, could be used by a plaintiff to defeat a motion for summary disposition. The requirements of MCR 2.116(C)(10) will not invariably be satisfied by a plaintiff who alleges remarks of this kind by an employer or a supervisor.'Although an employer or a supervisor’s comments must be viewed in the light most favorable to a plaintiff at the summary judgment stage, the proofs nevertheless must be sufficient to allow the trier of fact to reasonably conclude that age animus was a motivating factor resulting in an adverse employment action. Reversed in part and remanded. Justice Young took no part in the decision of this case. Sommers, Schwartz, Silver & Schwartz, P.C. (by Donald J. Gasiorek and Carl B. Downing), for the plaintiff-appellant. Brady Hathaway, P.C. (by John F. Brady and David A. Hardesty), for defendant Century 21 Great Lakes, Inc. W. Gregory Shanaberger for defendant-appellee Century Franchise Association. AFTER REMAND Per Curiam. After the plaintiff was fired from his job, he sued his former employer and others. He alleged seven species of misconduct, including age discrimination. The circuit court granted summary disposition in favor of the defendants, and the Court of Appeals has twice affirmed. Because the plaintiff has shown enough to prosecute a claim of age discrimination, we reverse in part the judgments of the Court of Appeals and the circuit court. i At the age of forty-eight, plaintiff Paul DeBrow was removed from an executive position in the Century 21 real estate network. He sued his former employer, alleging wrongful discharge and unlawful discrimination. When the employer moved for summary disposition, the circuit court granted the motion and denied rehearing. The Court of Appeals affirmed over the partial dissent of Justice Young, who was a member of the panel. On application to this Court, we remanded the case to the Court of Appeals for reconsideration in light of Lytle v Malady (On Rehearing), 458 Mich 153; 579 NW2d 906 (1998). After the Court of Appeals again affirmed, the plaintiff filed another application for leave to appeal in the Supreme Court. n This opinion will focus on a single issue. Did the circuit court err when it granted the former employer’s motion for summary disposition with regard to the claim that it unlawfully discriminated against the plaintiff on the basis of age? In this instance, summary disposition was granted under MCR 2.116(C)(10). Such a motion tests the factual support of a plaintiff’s claim, and is subject to de novo review. Harts v Farmers Ins Exchange, 461 Mich 1, 5; 597 NW2d 47 (1999); Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999). In its initial opinion of affirmance, the Court of Appeals discussed this case in light of the shifting burdens of proof commonly applied in employment-discrimination cases. The second opinion of the Court of Appeals used a similar analysis. This approach has its roots in McDonnell Douglas Corp v Green, 411 US 792, 802-805; 93 S Ct 1817; 36 L Ed 2d 668 (1973), and has been employed in countless subsequent decisions. The McDonnell Douglas approach was adopted because many plaintiffs in employment-discrimination cases can cite no direct evidence of unlawful discrimination. The courts therefore allow a plaintiff to present a rebuttable prima facie case on the basis of proofs from which a factfinder could infer that the plaintiff was the victim of unlawful discrimination. The present case falls outside that common pattern, however. Here, the plaintiff has direct evidence of unlawful age discrimination. The plaintiff testified during his deposition that, in the conversation in which he was fired, his superior told him that he was “getting too old for this shit.” We recognize that this remark may be subject to varying interpretations. It might reasonably be taken as merely an expression of sympathy that does not encompass a statement that the plaintiffs age was a motivating factor in removing him from his position as an executive. However, it is well established that, in reviewing a decision on a motion for summary disposition under MCR 2.116(C)(10), we must consider the documentary evidence presented to the trial court “in the light most favorable to the nonmoving party.” Harts v Farmers Ins Exchange, supra at 5. According to the plaintiff’s deposition testimony, the remark was made during the conversation in which the plaintiff’s superior informed him that he was being fired. Considered in the light most favorable to the plaintiff, this remark could be taken as a literal statement that the plaintiff was “getting too old” for his job and this was a factor in the decision to remove him from his position. While a factfinder might be convinced by other evidence regarding the circumstances of the plaintiffs removal that it was not motivated in any part by the plaintiffs age and that the facially incriminating remark was no more than an expression of sympathy, such weighing of evidence is for the factfinder, not for this Court in reviewing a grant of a motion for summary disposition. The shifting burdens of proof described in McDonnell Douglas are not applicable if a plaintiff can cite direct evidence of unlawful discrimination. Trans World Airlines, Inc v Thurston, 469 US 111, 121; 105 S Ct 613; 83 L Ed 2d 523 (1985). This point was well explained by Justice Young in his dissent from the first opinion of the Court of Appeals. We agree with his analysis, set forth below, and adopt it as our own. Intentional discrimination can be proven by direct and circumstantial evidence. Lytle v Malady, 209 Mich App 179, 185; 530 NW2d 135 (1995).[] Where direct evidence is offered to prove discrimination, a plaintiff is not required to establish a prima facie case within the McDonnell Douglas framework, and the case should proceed as an ordinary civil matter. Trans World Airlines v Thurston, 469 US 111, 121; 105 S Ct 613; 83 L Ed 2d 523 (1985); Matras v Amoco Oil Co, 424 Mich 675, 683-684; 385 NW2d 586 (1986); Lytle, supra, 209 Mich App 186, n 3. The shifting burden of proofs as contemplated in McDonnell Douglas and Burdine only apply to discrimination claims based solely on indirect or circumstantial evidence of discrimination. Thurston, supra, 469 US 121; Lytle, supra, 209 Mich App 185. Plaintiff testified in his deposition that when he was being removed as president, his superior, Century 21’s Great Lakes Executive Vice President, Robert Hutchinson, told plaintiff “you’re too old for this shit.” This statement is direct evidence of age animus. Moreover, because it was allegedly made in the context of the discussion in which plaintiff was informed that he was being removed as president, it bears directly on the intent with which his employer acted in choosing to demote him. The [Court of Appeals] majority ignores this evidence as unworthy of credibility. Neither this Court nor the trial court can make factual findings or weigh credibility in deciding a motion for summary disposition. Manning v Hazel Park, 202 Mich App 685, 689; 509 NW2d 874 (1993). This evidence cannot be ignored in the context of a motion for summary disposition and precludes, in my judgment, dismissal of the plaintiff’s age claim. See Lytle, supra, 209 Mich App 187-188. Clearly, the statement by Vice President Hutchinson, if believed by the trier of fact, suggests that plaintiff’s age was a factor in the mind of his employer at the point plaintiff was removed from his position. See Matras, supra, 424 Mich 682. The plaintiffs former employer argues that the disputed statement was a “stray remark[]” that cannot give rise to liability. See Price Waterhouse v Hopkins, 490 US 228, 277; 109 S Ct 1775; 104 L Ed 2d 268 (1989) (opinion of O’Connor, J., concurring in the judgment). In the circumstances of the present case, however, that is an argument for the finder of fact to consider. For these reasons, we reverse in part the judgments of the Court of Appeals and the circuit court. We remand this case to the circuit court for further proceedings limited to the plaintiff’s claim that his former employer unlawfully discriminated against him on the basis of age. MCR 7.302(F)(1). Corrigan, C.J., and Cavanagh, Weaver, Kelly, and Taylor, JJ., concurred. Mr. DeBrow was employed by Century 21 Great Lakes, Inc. From materials at hand, it appears that Century 21 has a three-tiered organizational structure. Century 21 Real Estate Corporation Is a nationwide company that franchises its system and trademarks to regional organizations such as Mr. DeBrow’s former employer. In turn, Century 21 Great Lakes arranges for individual brokers to become Century 21 franchisees. We are told that Century 21 Great Lakes handled franchises in Michigan, Ohio, and parts of two other states. The plaintiff was apparently offered other employment by Century 21 Great Lakes. He declined the offer, however, and proceeded on the basis that his employment had been terminated. In an amended complaint, he added claims against four other defendants (three individuals and an association of Century 21 franchisees). The Court of Appeals has affirmed the circuit court’s decision to grant summary disposition in favor of these additional defendants. Unpublished per curiam opinion, issued August 13, 1996 (Docket No. 161048). 459 Mich 899 (1998). In this opinion, the portions of Lytle on which we rely were supported by a majority of this Court. See the partial concurrence of former Chief Justice Mallett, 458 Mich 186. Unpublished per curiam opinion, issued April 13, 1999 (Docket No. 161048). MCR 2.116(C)(10). Writing in the context of a plaintiffs claim that an employer refused to rehire a laid-off employee because of racial animus, the U.S. Supreme Court formulated in McDonnell Douglas four elements that compose a prima facie case of racial discrimination. 411 US 802. The four factors have been restated, in more general terms, for use in cases involving, inter alia, claims of age discrimination: To establish a prima facie case of [age] discrimination, plaintiff must prove by a preponderance of the evidence that (1) she was a member of the protected class; (2) she suffered an adverse employment action, in this case, demotion and then discharge; (3) she was qualified for the position; but (4) she was discharged under circumstances that give rise to an inference of unlawful discrimination. [Lytle, 458 Mich 172-173, 177.] Both the U.S. Supreme Court and this Court have cautioned that these factors are “not to be applied mechanically, but with due deference to the unique facts of the individual case.” 458 Mich 173, n 19; see also 411 US 802, n 13. If the plaintiff submits such a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action. 458 Mich 173-174; 411 US 802. Upon such a showing, the burden returns to the plaintiff to show that the employer’s stated reason for its action was actually a mere pretext. 458 Mich 174; 411 US 804. Justice Young’s partial dissent was authored in 1996, before this Court decided Lytle on appeal, 456 Mich 1; 566 NW2d 582 (1997), and on rehearing, 458 Mich 153; 579 NW2d 906 (1998). McDonnell Douglas v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973). Texas Dep’t of Community Affairs v Burdine, 450 US 248; 101 S Ct 1089; 67 L Ed 2d 207 (1981). As such, I disagree with the majority’s statement that plaintiff failed to set forth a prima facie case of age discrimination due to insufficient evidence that he was replaced by a younger person. As the United States Supreme Court recently stated, discrimination laws protect persons not classes. O’Connor v Consolidated Coin Caterers Corp, 517 US 308; 116 S Ct 1307; 134 L Ed 2d 433 (1996). In all other respects, leave to appeal is denied. Markman, J. (concurring). The only evidence of age discrimination presented by plaintiff consists of a single comment allegedly made to him by his superior during a meeting at which he was terminated. During this meeting, Robert Hutchinson, an official of Century 21 Great Lakes, told plaintiff that he was “getting too old for this sh — .” There are at least two conceivable interpretations of this comment: (1) that it constitutes what the majority describes as “direct evidence” of age animus in the context of an adverse employment decision taken by defendant, or (2) that it represents a colloquial expression which does not necessarily communicate the speaker’s perspective that the object of his remark is literally too aged to perform a particular task, but rather empathizes with the other person by indicating that, on the basis of his experience, education, or level of achievement, he should not have to tolerate certain difficult circumstances in which he has become enmeshed. I concur in the result reached by the majority because I agree that it is ultimately for the factfinder to determine which of these alternative interpretations best describes Hutchinson’s remarks, to wit, whether these remarks are better understood in their literal or in their colloquial senses. However, I write separately to express my concern that, particularly in the context of discrimination cases predicated upon age, there are a wide variety of innocent comments that, taken out of context and divorced from their meaning in common parlance, could be used by a plaintiff to defeat a motion for summary disposition. For example, if made in rough proximity to an adverse employment action and if construed literally, the following comments might be understood to constitute evidence of age discrimination: - “That’s just old hat” - “You can’t teach an old dog new tricks” - “He’s an old hand at this sort of thing” - “Your thinking is just old school” - “You’re old enough to know better” - “You belong to the good-old-boys network” Each of these phrases, similar to the one uttered in the present case, have colloquial meanings in the contemporary language that are distinct from their literal meanings and that are generally unconnected with any serious intimation of age animus. I join here with the majority because we lack any specific information concerning the context of defendant’s comment, and because there may be circumstances in which it is not unreasonable to accord the comment a literal construction. However, I do not believe that the requirements of MCR 2.116(C)(10) will invariably be satisfied by a plaintiff who alleges remarks of this kind by an employer or a supervisor. Although an employer or a supervisor’s comments must be viewed in “the light most favorable” to a plaintiff at the summary judgment stage, the proofs nevertheless must be sufficient to allow the trier of fact to reasonably conclude that age animus was a motivating factor resulting in an adverse employment action. Lytle v Malady (On Rehearing), 458 Mich 153, 176; 579 NW2d 906 (1998). Whether a comment removed from the ordinary vernacular would constitute “direct evidence” of discrimination or merely circumstantial evidence does not, in my judgment, alter the validity of this proposition. Young, J., took no part in the decision of this case.

KROHN v SEDGWICK JAMES OF MICHIGAN, INC Docket No. 211111. Submitted July 5, 2000, at Detroit. Decided January 12, 2001, at 9:05 A.M. Norine Krohn brought an action in the Oakland Circuit Court against Sedgwick James of Michigan, Inc., and Mark Miller, seeking damages as a result of the termination of her employment with Sedgwick James of Michigan and alleging that the termination was the result of age-based discrimination in violation of the provisions of the Michigan Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. The plaintiff had been hired in 1981, had held various positions, and had eventually become senior vice president of human resources. In 1993, Michael Rastigue, who was then the managing executive for Sedgwick James of Michigan and the plaintiffs supervisor, hired a group of employees from a competing firm. The plaintiff alleged that Rastigue, in referring to this new group of employees, had remarked “out with the old and in with the new.” In July 1995, Rastigue was transferred to another office, and defendant Miller became managing executive for Sedgwick James of Michigan. In June 1996, the plaintiff, then fifty-seven years old, and several other employees were dismissed, allegedly as part of a downsizing effort brought on by financial necessity. Before trial, the defendants filed a motion in limine to exclude certain evidence, including any reference to Rastigue’s remark. The court, Robert C. Anderson, J., granted the defendants’ motion to exclude Rastigue’s remark. Following a trial at which the thrust of the defense was that the plaintiff’s employment had been terminated because of financial necessity, the jury returned a verdict of no cause of action. The plaintiff appealed, claiming among other things error as a result of the trial court’s exclusion of testimony concerning Rastigue’s remark. The Court of Appeals held'. 1. Courts are reluctant to overturn a jury’s verdict, particularly if there is ample evidence to justify the jury’s decision, and will not do so on the basis of an erroneous evidentiary ruling unless refusal to take this action would be inconsistent with substantial justice. 2. After the plaintiff in an employment discrimination case involving alleged wrongful termination establishes a prima facie case of termination as the result of unlawful discrimination, the defendant may present evidence of any legitimate nondiscriminatory reason for terminating the plaintiff’s employment. If the defendant carries the burden of establishing a nondiscriminatory reason, the burden then shifts to the plaintiff to show that the reason articulated by the defendant was not the true reason, but rather was a mere pretext for discrimination. 3. Because the defendant had asserted the defense that the termination of the plaintiffs employment was the result of legitimate financial reasons, the plaintiff had the burden of proving that the defendants’ articulated reason was not the true reason, but rather was a mere pretext for discrimination. Accordingly, the issues with respect to the admission of testimony concerning the statement made by the defendants’ agent were whether the statement was relevant to the establishing of unlawful discrimination and, if the statement was relevant, whether its relevance was substantially outweighed by the risk of unfair prejudice. 4. In employment discrimination cases, federal courts have adopted a four-part test to assess the relevancy of isolated or stray remarks. In determining the admissibility of evidence of such remarks, a trial court should consider whether the disputed remarks were made by the decisionmaker or by an agent of the employer uninvolved in the challenged decision, whether the disputed remarks were isolated or part of a pattern of biased comments, whether the disputed remarks were made close in time or remote from the challenged decision, and whether the disputed remarks were ambiguous or were clearly reflective of discriminatory bias. 5. The record shows that although the disputed remark was made by Rastigue while he was the plaintiff’s supervisor, Rastigue was not the person who decided that the plaintiff’s employment should be terminated. The remark was not directed toward the plaintiff, but was rather made in reference to recently hired employees, and it was made more than two years before the plaintiff’s employment was terminated. Under these circumstances, any discriminatory intent was ambiguous. Accordingly, because the remark was an ambiguous, isolated, and temporally remote statement by a person who was not involved in the decision to terminate the plaintiff’s employment, the proffered evidence was not relevant, and the trial court did not abuse its discretion by excluding that evidence. 6. Even if the remark were found to have some minimal relevance, the probative value would have been substantially outweighed by the harm likely to result from its admission. Affirmed. Evidence — Civil Rights — Employment Discrimination — Stray Remarks. A court assessing the relevancy of proffered evidence of remarks asserted to show discrimination in an employment discrimination case should consider whether the disputed remarks were made by the decisionmaker or by an agent of the employer uninvolved in the challenged decision, whether the disputed remarks were isolated or part of a pattern of biased comments, whether the disputed remarks were made close in time or remote from the challenged decision, and whether the disputed remarks were ambiguous or were clearly reflective of discriminatory bias. Stark and Gordon (by Deborah L. Gordon and Carol A. Laughbaum), for the plaintiff. Cox, Hodgman & Giarmarco, P.C. (by Andrew T. Baran and William H. Horton), for the defendants. Before: Saad, P.J., and Cavanagh and Meter, JJ. Saad, P.J. I. nature of the case In this age-based employment discrimination case, plaintiff seeks to overturn the jury’s verdict because of the trial court’s evidentiary ruling made pursuant to defendants’ motion in limine. Defendants asked the trial court to exclude the statement “out with the old and in with the new” made by plaintiff’s former supervisor. Plaintiff contends that this is an ageist statement that constitutes direct evidence that she was fired because of her age as part of defendants’ plan to terminate older employees and replace them with younger employees. Conversely, defendants claim that the remark is irrelevant because it (1) is ambiguous, (2) was an isolated remark, (3) was made long before plaintiffs termination, and (4) was made by a manager who had no involvement in plaintiffs termination. Further, defendants say that any possible relevancy of this remark is substantially outweighed by its potential prejudicial effect. The trial court agreed with defendants’ position and ruled the proffered evidence inadmissible. Because this precise issue has not been addressed by our appellate courts in a published opinion, this narrow issue is one of first impression and one on which we will seek guidance from federal precedent. Accordingly, we have reviewed a line of authority from the federal courts known as stray remarks cases. The federal courts in these employment discrimination cases assess the relevancy of stray remarks by reviewing the following factors: (1) Were the disputed remarks made by the decisionmaker or by an agent of the employer uninvolved in the challenged decision? (2) Were the disputed remarks isolated or part of a pattern of biased comments? (3) Were the disputed remarks made close in time or remote from the challenged decision? (4) Were the disputed remarks ambiguous or clearly reflective of discriminatory bias? We hold that our courts should review these factors in ruling on the relevancy of similar comments, and we further hold that, here, the trial court properly excluded the disputed remark. n. FACTS AND PROCEEDINGS Defendant Sedgwick James of Michigan, Inc., hired plaintiff as an executive secretary in April 1981. Plaintiff held several positions while at the company and, in 1995, became senior vice president of human resources while continuing to work as an executive secretary. During her employment, plaintiff worked under various supervisors, including Michael Rastigue, who was managing executive for Sedgwick James of Michigan during the early to mid-1990s. In February 1993, Rastigue hired a group of employees, including defendant Mark Miller, from a competing firm, Marsh & McClennan. Miller later took over Rastigue’s job as managing executive in July 1995, after Rastigue transferred to another office. After company executives discovered that Sedgwick James of Michigan was operating at a significant financial deficit, Miller terminated the employment of plaintiff, along with the employment of several other employees, as part of a downsizing effort in June 1996. Following her dismissal, plaintiff filed this age discrimination claim against Miller, Sedgwick James of Michigan, and its parent company, Sedgwick James, Inc. Plaintiff, fifty-seven years old at the time her employment was terminated, alleged that defendants fired her because of her age in violation of the Michigan Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. Before trial, defendants filed a motion in limine to exclude certain potential evidence, including Rastigue’s remark “out with the old and in with the new.” According to plaintiff’s deposition testimony, Rastigue made this comment in reference to the new group of employees hired from Marsh & McClennan. The trial court granted defendants’ motion to exclude the remark, but did not articulate its reasons for doing so on the record. That is, the trial court did not specify whether it excluded the proffered evidence as irrelevant or as more prejudicial than probative. At trial, plaintiff presented evidence of her qualifications and history with Sedgwick James of Michigan as well as statistical evidence regarding the companies’ termination of employment of employees over the age of forty. In response, defendants presented several present and former employees of the Sedgwick James companies who testified about financial problems in the Michigan office resulting, in part, from the expense of highly paid employees who were performing low-level work. The defense witnesses further testified that personnel changes and reorganization were necessary for Sedgwick James of Michigan to remain in operation. Defense witnesses testified that, despite these changes, the company continued to lose money and executives determined that significant revenue could be saved by transferring the accounting and human resources functions of Sedgwick James of Michigan to the Chicago office, thereby eliminating several positions, including plaintiff’s. The defense witnesses denied plaintiff’s allegation that plaintiff’s age was a factor in their decision to terminate her employment. The jury apparently accepted defendants’ business reasons for the termination of plaintiffs employment and returned a verdict of no cause of action. m. ANALYSIS A. STANDARD OF REVIEW Plaintiff avers that the trial court’s exclusion of Rastigue’s comment so prejudiced her case that the jury’s verdict should be reversed. Our courts axe reluctant to overturn a jury’s verdict, particularly if there is ample evidence to justify the jury’s decision, and we will not do so on the basis of an erroneous evidentiary ruling unless refusal to take this action would be inconsistent with substantial justice. MCR 2.613(A); MRE 103(a); Chmielewski v Xermac, Inc, 216 Mich App 707, 710-711; 550 NW2d 797 (1996), aff’d 457 Mich 593; 580 NW2d 817 (1998). It is well established that this Court reviews a trial court’s evidentiary rulings for an abuse of discretion and, in making that determination, we consider the facts on which the trial court acted to determine whether an unprejudiced person “would say that there is no justification or excuse for the ruling made.” Roulston v Tendercare (Michigan), Inc, 239 Mich App 270, 282; 608 NW2d 525 (2000). In general, in an employment discrimination case, after the plaintiff establishes a prima facie case, the defendant presents evidence of its legitimate, nondiscriminatory reason for terminating the plaintiff’s employment. Kerns v Dura Mechanical Components, Inc (On Remand), 242 Mich App 1, 12; 618 NW2d 56 (2000). Thereafter, the plaintiff bears the burden of proving that the employer’s articulated reason was not the true reason, but rather a mere pretext for discrimination. Wilcoxon v Minnesota Mining & Mfg Co, 235 Mich App 347, 359; 597 NW2d 250 (1999). Here, plaintiff would have presumably offered Rastigue’s remark to persuade the jury that defendants’ asserted reason for the termination of her employment (financially induced downsizing) was untrue and that her age made a difference in defendants’ decision to terminate her employment. The analysis used to determine the admissibility of an agent’s remark is particularly important in this type of employment discrimination case because the central question the jury must decide is not what occurred, but why the action was taken by the employer. Because the controlling issue is motivation (the reason for the decision), courts must be particularly careful in making determinations regarding the relevancy of remarks by agents of corporate defendants. Obviously, remarks indicating bias by the decisionmaker directed at the discharged employee would be highly probative when made at or about the time of the decision. On the other hand, allegedly biased but, in fact, ambiguous remarks by an agent who is not involved in the decision and made remote in time from the decision would hardly be relevant and certainly would be highly prejudicial precisely because motivation is the key issue in this type of employment discrimination case. Thus, our review of whether the remark was properly excluded requires more than merely labeling the comment a “stray remark.” The important issues here are whether the employee’s remark is relevant to show that defendants made the employment decision on the basis of plaintiff’s age and whether, if relevant, the remark’s relevance is substantially outweighed by the risk of unfair prejudice. B. RELEVANCE Because a work-related comment may be uttered in myriad factual contexts, a simple definition of an inadmissible stray or isolated remark is not feasible and would not facilitate a proper determination of its relevance at trial. The proffered evidence may range from an innocuous remark made by an employee with no involvement in the alleged adverse employment action long before such action takes place to a blatantly discriminatory comment made by a decisionmaker at the time the adverse action occurs. A trial court’s determination of the probative value of a remark depends on where it falls on that continuum. Accordingly, a trial court must consider several factors to determine whether the comment in issue is relevant to show that an employer took the challenged action because of the employee’s age. As stated above, because our state courts have not articulated those factors in a published opinion, we look to various federal court decisions for guidance. C. STRAY REMARKS CASES In Cooley v Carmike Cinemas, Inc, 25 F3d 1325 (CA 6, 1994), the defendant appealed from a jury verdiet in favor of the plaintiff and argued that the district court abused its discretion in admitting certain ageist remarks made by the defendant’s president. Id. at 1327-1329. In deciding the issue, the Sixth Circuit Court of Appeals emphasized that the admissibility of the proffered comments requires the court to balance the relevancy of the comments against their prejudicial effect. Id. at 1330. The Court reviewed various cases defining stray remarks and set forth several factors to determine the admissibility of statements offered to show an employer’s discriminatory bias. Id. at 1330-1331. Specifically, the Court opined: In age discrimination cases, this court has examined statements allegedly showing employer bias by considering whether the comments were made by a decision maker or by an agent within the scope of his employment; whether they were related to the decision-making process; whether they were more than merely vague, ambiguous, or isolated remarks; and whether they were proximate in time to the act of termination. [Id. at 1330.] Other federal courts have considered these factors in a number of procedural contexts to determine the probative value of an agent’s remarks. In Lawrence v Syms Corp, 969 F Supp 1014 (ED Mich, 1997), the plaintiff attempted to defeat the employer’s motion for summary judgment by raising a genuine issue of material fact to rebut the employer’s assertion that it had terminated the plaintiff’s employment because of poor performance. Id. at 1017. The plaintiff presented his supervisor’s comment “that the defendant was ‘out to get’ the oldest store managers who were well paid, and replace them with younger, more energetic peopie.” Id. at 1018. The court concluded that, because the comment was made up to two years before the plaintiff’s employment was terminated, it was isolated and remote in time and its meaning was ambiguous. Id. Further, although the plaintiff’s supervisor made the comment, no evidence showed that it was related to the decision to discharge the plaintiff. Id. Therefore, the court ruled that the remark did not raise an issue of material fact showing the employer’s discriminatory motivation because it was isolated, remote in time, vague, and unrelated to the discharge decision. Id. In Phelps v Yale Security, Inc, 986 F2d 1020 (CA 6, 1993), the plaintiff appealed a district court’s grant of judgment notwithstanding the verdict in favor of the defendant. At trial, the plaintiff presented evidence that her age was a factor in her dismissal by presenting, among other evidence, comments by her supervisor, Ray McCulloch. Id. at 1025. The plaintiff alleged that, when she was transferred to McCulloch’s office from her job as the plant manager’s secretary, McCulloch told her she was too old to be the plant manager’s secretary and that he later said that her upcoming fifty-fifth birthday “was a cause for concern.” Id. In considering whether the manager’s remarks established that the defendant was motivated by the plaintiff’s age, the court opined: Age-related comments referring directly to the worker may support an inference of age discrimination. However, as Yale Security argues, isolated and ambiguous comments “ ‘are too abstract, in addition to being irrelevant and prejudicial, to support a finding of age discrimination.’ ” Because [the manager] made the statements nearly a year before the layoff, the comments were made too long before the layoff to have influenced the termination decision. Moreover, the statement regarding [the plaintiff’s] birthday was too ambiguous to establish the necessary inference of age discrimination. [Id. at 1025-1026 (citations omitted).] Thus, regardless of the procedural context, federal courts have consistently held that isolated or vague comments made by nondecisionmakers long before the adverse employment decision is made are not probative of an employer’s discriminatory motivation. See, also, McDonald v Union Camp Corp, 898 F2d 1155, 1161, n 3, 1162 (CA 6, 1990) (comment by a person other than the decisionmaker that “a senior salesman at age 55 ‘could be cheaply replaced with a younger salesman’ ” does not raise an issue of material fact regarding the employer’s motives); Stone v Autoliv ASP, Inc, 210 F3d 1132, 1140 (CA 10, 2000) (remark that “ ‘at [the plaintiff’s] age, it would be difficult to train for another position’ ” or “ ‘difficult to find a new job’ ” was insufficient to survive a motion for summary judgment because it was unrelated to the termination decision and was too ambiguous to show discriminatory animus); Shorette v Rite Aid of Maine, Inc, 155 F3d 8, 13-14 (CA 1, 1998